Sanders' Adm'x v. Louisville & N.R. Co.

• Decision Date: 06 November 1901
• Docket Number: 912.
• Citation: 111 F. 708
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: SANDERS' ADM'X v. LOUISVILLE & N.R. CO.

111 F. 708

SANDERS' ADM'X v. LOUISVILLE & N.R. CO.

No. 912.

United States Court of Appeals, Sixth Circuit.

November 6, 1901

John F Allen, for plaintiff in error.

J. W Judd and Charles N. Burch, for defendant in error.

This action was brought by Kate G. Sanders, administratrix of Martin J. Sanders, deceased, against the Louisville &amp Nashville Railroad Company, for negligently causing the death of the deceased. The declaration averred that Martin J Sanders was unmarried and without issue, and left surviving him his father, Martin Sanders, his mother, one brother, and four sisters. Subsequently an amended declaration was filed, which averred that the father, Martin Sanders, for a valuable consideration before this suit was brought, had sold and transferred his right to the recovery in the case to the plaintiff, Kate G. Sanders, individually, and in trust for her mother and brother and sisters. To the amended declaration the defendant pleaded in abatement that the deceased, Martin J. Sanders, died unmarried, without children, leaving surviving him as his next of kin his father, Martin Sanders, who alone was entitled to recover damages for the wrongful death of said Martin J. Sanders, and that since the bringing of this suit said father, Martin Sanders, had died. The plaintiff demurred to this plea in abatement. The demurrer was overruled, and, the plaintiff refusing to plead further, it was adjudged that the plea in abatement was good, and the plaintiff's suit was dismissed. This action of the court in sustaining the plea in abatement and in dismissing the action of the plaintiff is assigned as error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

The right of action in the state of Tennessee for the negligent death of a human being is purely statutory. We must therefore look to the statute to determine when and in whose favor the right of action survives, and by whom such an action may be brought. Railway Co. v. Lilly, 90 Tenn. 564, 18 S.W. 243; Loague v. Railroad Co., 91 Tenn. 458, 19 S.W. 430; Railroad Co. v. Bean, 94 Tenn. 388, 29 S.W. 370; Railway Co. v. Hooper, 35 C.C.A. 24, 92 F. 820. This action was brought under sections 4025 and 4026 of Shannon's Revision, which are as follows:

'Sec. 4025. The right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission or killing by another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children or to his personal representative, for the benefit of his widow or next of kin, free from the claims of creditors.

'Sec. 4026. The action may be instituted by the personal representative of the deceased; but, if he decline it, the widow and children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he sign his name to the prosecution bond.'

Section 4025 was construed by the supreme court of Tennessee as preserving only the deceased's right of action for the damage which he might have recovered for the wrong and injury done him in case death had not ensued. Railroad Co. v. Burke, 6 Cold. 45; Trafford v. Express Co., 8 Lea, 96, 105. The pecuniary loss sustained by the widow or children or next of kin in whose favor the action survived was not recoverable in this statutory suit. To enlarge the measure of damages and the scope of the action, the act of 1883, c. 186, was passed, by which it was provided that the plaintiff in such an action should, if entitled to damages, 'have the right to recover for the mental and physical suffering, loss of time and necessary expense resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received. ' Shannon's Code Tenn. Sec. 4029. The next of kin for whose benefit the rights of action survives are the real plaintiffs, and the administrator, though made a necessary party plaintiff by the statute, is nevertheless a mere trustee and a nominal party. Webb v. Railway Co., 88 Tenn. 119, 128, 12 S.W. 428; Loague v. Railroad Co., and Railway Co. v. Lilly, cited above; Railway Co. v. Hooper, 35 C.C.A. 24, 26, 92 F. 820. The damages sustained by the deceased, as well as those sustained by the statutory beneficiaries, must be recovered in one action, brought by one authorized to maintain the suit by the express terms of sections 4026 and 4027, set out above. Loague v. Railroad Co., 91 Tenn. 458, 460, 461, 19 S.W. 430. Inasmuch as the right of action survives only for the benefit of the beneficiaries designated in the statute, it is essential that the plaintiff's declaration show that the suit is brought for the use and benefit of a statutory beneficiary in existence when the right of action accrued. Railway Co. v. Lilly, 90 Tenn. 564, 18 S.W. 243; Railroad Co. v. Pitt, 91 Tenn. 86, 18 S.W. 118. In Railway Co. v. Hooper, 35 C.C.A. 24, 92 F. 820, we held that, inasmuch as the pecuniary damages recoverable for the loss sustained by the next of kin for whose benefit the action survives would depend much upon the nearness and dependence of the beneficiary, a suit brought by an administrator for the benefit of one averred to be the next of kin entitled to the recovery was a different cause of action from that stated in an amendment substituting a different beneficiary as the person for whose use the action was brought, and that a plea of the statute of limitations was good against the new action, which would not be good against the action as originally brought.

The...