Southern Ry. Co. v. Maxwell

Citation82 S.W. 1137
PartiesSOUTHERN RY. CO. v. MAXWELL.
Decision Date18 November 1904
CourtSupreme Court of Tennessee

Action by Arthur Maxwell, administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. Dismissed.

Kirkpatrick, Williams & Bowman, for plaintiff in error. S. E. Miller and Harr & Burrows, for defendant in error.

NEIL, J.

This action was brought in the law court at Johnson City by the appellee to recover damages for the killing of his intestate, J. W. Ball, on the line of the railway company. There were verdict and judgment for $2,500 in favor of the appellee, from which the appellant company, after the overruling of a motion for a new trial, and also a motion in arrest of judgment, prayed an appeal to this court, and has here assigned three errors to the action of the court below.

In the view we take of this case, it will be necessary to consider only two of the errors assigned.

The first assignment necessitates a construction of chapter 501, p. 1344, of the Acts of 1903.

The question made upon this act in the present case is whether a nonresident administrator of the estate of a person dying in this state, or leaving assets or property in the state, and appointed by the courts of this state, can prosecute a suit in this state on the pauper oath. The defendant in error is a citizen of the state of Virginia, but qualified as administrator here, and brought the present suit upon the pauper oath. In the court below, a motion was made to dismiss the suit on this ground, or for want of a prosecution bond, which motion was overruled by the court. To test the correctness of this ruling, the first assignment of error was filed.

In order to a proper understanding of this matter, it will be necessary to make a short review of previous legislation on the subject.

Section 4928 of Shannon's Code (section 3192 of the Code of 1858) provides that, except in suits brought for false imprisonment, malicious prosecution, slanderous words, and divorce suits brought by males, "any person" may commence an action on taking the oath prescribed for poor persons. This was held to apply to nonresidents as well as to residents in Lisenbee v. Holt, 1 Sneed, 42, but not to apply to administrators, either resident or nonresident, in Smith v. Railway Company, 89 Tenn. 664, 15 S. W. 842. Then chapter 133, p. 313, Acts 1897, was passed, which provided that "any personal representative of the estate of any deceased person in this state" might prosecute suits upon the pauper oath. This was broad enough to cover both resident and nonresident administrators of the estates of persons dying in this state, qualified here. Then chapter 126, p. 197, Acts 1901, was passed, which provided that no person "not a citizen or resident of the state of Tennessee" should be permitted to bring suits under the pauper oath. In Southern Railway Company v. Thompson, 109 Tenn. 343, 71 S. W. 820, this act was enforced against a plaintiff suing in his own right, and held to apply to pending suits. In Fawcett v. Railway Co. (Tenn.) 81 S. W. 839, decided July 25, 1904, it was held that the act of 1901 applied to nonresident administrators, and prevented them from bringing suits upon the pauper oath.

In this state of the law, with the exception that the last-mentioned case had not then been decided, the act of 1903, above referred to, was passed. This reads as follows: "That whenever a non-resident of the state of Tennessee qualifies in this state as the executor or administrator of a person dying in or leaving assets or property in this state, that for the purpose of suing and being sued, he shall be treated as a citizen of this state, and in case it is desired by any citizen of this state to sue said administrator or executor in his official capacity for any debt or demand, due or owing to any citizen of this state, from his testator or intestate, that, in case of the inability of the officer in whose hands process is placed, to find said administrator or executor in this state, that notice of said suit, served upon the clerk of the county court of the county wherein said party qualified as administrator or executor, shall be sufficient notice to bring said administrator or executor before the court or justice issuing said process: provided, said clerk notify said executor or administrator of such notice served upon him by United States mail.

"That said non-resident of the state, qualifying as executor or administrator as aforesaid, shall give to the clerk of the county court of the county in which he qualifies, his address, and that a letter mailed to him at said address — unless subsequently changed and notice given to said county court clerk — shall be sufficient notice, or to the changed address, as the case may be."

Acts 1903, p. 1344, c. 501.

At the date of the passage of this act, it appears, summarizing, that the state of the law was as follows, viz.:

That suits might be brought on the pauper oath in this state by any resident able to subscribe thereto, with the exceptions made in Shannon's Code, § 4928, whether suing in his own right or as the administrator of a decedent, but that no nonresident, whether suing in his own right or as administrator, could so institute an action.

Now the question to be determined is whether the act of 1903 was intended to change the law as it then stood, so as to grant to nonresident administrators or executors of the kind referred to in the act the right to sue under the pauper oath.

The act could not be held good as a technical amendatory act, because it does not comply with article 2, § 17, of the Constitution, in that it does not recite the title or substance of the act to be amended; and for the same reason it could not be held valid as an act passed for the direct purpose of repealing a former act. But it may be treated as an independent act, and so may, by implication, operate as a repeal of former acts with which it may be inconsistent, so far as inconsistent therewith. Home Ins. Co. v. Taxing Dist., 4 Lea, 644; Zickler v. Union Bank & Trust Co., 104 Tenn. 227, 57 S. W. 341.

Treating the act, then, as an independent statute, yet construing it in the light of the law as it then stood, what meaning should it be held to bear in respect to the special aspect of the general question now presented to us?

Looking to the language of the act, we find its terms broad and general. It is said that, "for the purposes of suing and being sued, he [such nonresident "executor or administrator of a person dying in or leaving assets or property in this state"] shall be treated as a citizen of this state." There is no exception as to the form, methods, agencies, or privileges of suit. All are included. On what ground should the court introduce an exception? None is perceivable. Indeed, the act, on the point in question, seems to be in entire harmony with the purpose of the Legislature, as evidenced by the act of 1901, to confine the privilege of suing under the oath to the people of this state, or to suits devoted to their interests, since the right is not extended to nonresident administrators generally, but only to those who have qualified in this state as the personal representative of persons dying or leaving assets or property in this state. It is said in the brief of counsel for the company that the purpose of the act was merely to subject the nonresident administrator or executor to the full control of our courts. That was one of the purposes, no doubt, but not the sole purpose. He was by the act subjected not only to the control of the courts of our state, but to their protection as well, and to the use of such privileges as the law extends to litigants or prospective litigants therein.

It is held that to so hold would be in conflict with the most recent of our cases upon the subject — Fawcett v. Railway Co., supra. This is an erroneous view. The case referred to was based upon the act of 1901, and arose before the passage of the act of 1903, although decided subsequent thereto. The latter act was not referred to in the opinion of the court in that case, because not applicable, for the reason just stated.

The first assignment of error is not well taken, and must be overruled.

The second assignment raises the point that the circuit judge erred in refusing to sustain the railway company's motion in arrest of judgment.

The ground of the motion in arrest was that the declaration failed to allege that there was any widow, next of kin, or beneficiaries to take the recovery.

A declaration in an action to recover damages for wrongful death, defective in the matter referred to, states no cause of action. Railroad v. Pitt, Adm'r, 91 Tenn. 86, 18 S. W. 118; Love v. Southern Railway, 108 Tenn. 104, 65 S. W. 475, 55 L. R. A. 471.

The appellee insists that the defect was cured by the verdict.

The rule on this subject is thus laid down in Chitty on Pleadings, vol. 1, p. 673: "The doctrine upon this subject is founded on the common law, and is independent of any statutory enactments. The general principle upon which it depends appears to be that where there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer, yet if the issue be such as necessarily required, in the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict."

The author continues: "On the other hand, the particular thing which is presumed to have been proven must always be such as can be implied from allegations in the record by fair and reasonable...

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13 cases
  • Cheatham County v. Murff
    • United States
    • Tennessee Supreme Court
    • 6 April 1940
    ...bad because of insufficient reference to former laws amended. Following Memphis Street Ry. Co. v. State, supra, are Railroad Co. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137; State v. Smith, 119 Tenn. 521, 105 S.W. 68; Hessig-Ellis Drug Co. v. Stone, 129 Tenn. 608, 167 S.W. 864; Willis v. Mann C......
  • Wright v. Donaldson
    • United States
    • Tennessee Supreme Court
    • 30 April 1921
    ...148 S. W. 662, 41 L. R. A. (N. S.) 828, Ann. Cas. 1913C, 153; State ex rel. v. Taylor, 118 Tenn. 229, 104 S. W. 242; Railroad v. Maxwell, 113 Tenn. 471, 82 S. W. 1137; Railroad v. Railroad, 116 Tenn. 500, 95 S. W. 1019; Railroad v. Crider, 91 Tenn. 506, 19 S. W. 618; State v. Yardley, The a......
  • Wright v. Donaldson
    • United States
    • Tennessee Supreme Court
    • 30 April 1921
    ... ... 662, 41 ... L. R. A. (N. S.) 828, Ann. Cas. 1913C, 153; State ex rel ... v. Taylor, 118 Tenn. 229, 104 S.W. 242; Railroad v ... Maxwell, 113 Tenn. 471, 82 S.W. 1137; Railroad v ... Railroad, 116 Tenn. 500, 95 S.W. 1019; Railroad v ... Crider, 91 Tenn. 506, 19 S.W. 618; State v ... ...
  • Illinois Cent. R. Co. v. Porter
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 30 June 1913
    ... ... not abrogated by the federal Employer's Liability Act ... There was no error in refusing a peremptory instruction. In ... Southern Ry. Co. v. Gadd, 207 F. 277 (decided May 6, ... 1913), we held that even at common law the employe did not ... assume the risk of the employer's ... Pitt, 91 Tenn. 86, 90, 18 S.W. 118; ... Love v. Southern Railway Co., 108 Tenn. 104, 108, 65 S.W ... 475, 55 L.R.A. 471; Railroad Co. v. Maxwell, 113 Tenn. 464, ... 473, 82 S.W. 1137 ... ...
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