Wagner v. Woolsey

• Decision Date: 30 September 1870
• Court: Tennessee Supreme Court
• Parties: Henry Wagner, in error, v. Hannah Woolsey, Administratrix, &c.

48 Tenn. 235

Henry Wagner, in error,

v.Hannah Woolsey, Administratrix, &c.

Supreme Court of Tennessee.

September Term, 1870.

FROM GREENE.

In the Circuit Court. E. E. GILLENWATERS, J., presiding.

Nelson and Deaderick, J's, did not sit in this cause, having been of counsel--R. McFarland and J. T. Shields Special J's, sitting in their stead.

J. G. DEADERICK, for Plaintiff in error.

R. M. BARTON and S. T. LOGAN, for Defendants.

FREEMAN, J., delivered the opinion of the Court.

This suit was brought by defendant in error, as administratrix of her deceased husband, under sections 2291, 2292, of the Code,^a1 providing in substance, “that the right of action which a person who dies from injuries received from another, or where death is caused by the wrongful act or omission of another, would have had against the wrong-doer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representatives, for the benefit of his widow or next of kin;” and such action may be instituted by such personal representative; or if he decline, the widow and children of the deceased may sue, &c.

The right of action that survives under this section of the Code, is one for injuries of which the party injured dies--that is, for injuries or wrongs causing his death; and this suit is brought on the assumption that the facts alleged and shown by the proof, caused the death of the husband, in the sense intended by the statute, or as a legal consequence of such acts. The proof shows, in this case, that the deceased did leave his home, and conceal himself for a considerable time in the mountains; was greatly exposed, and endured much suffering, in consequence of the efforts of parties with whom, perhaps, plaintiff in error was connected; and if the suit had been brought by Woolsey himself for such wrongs, and the injury resulting from them, he might well have sustained his action on this proof, and recovered for suffering and inconvenience.

But this action must be sustained by proof of wrongs or omissions, causing the death of the party; and we are constrained to say that there is, not only no satisfactory proof in the record that any injury done by the plaintiff in error caused the death of Woolsey; but on the contrary, that in a legal view of the proof it is clearly and distinctly shown that his death was caused or resulted from other acts, by other parties, with whom the plaintiff in error had no connection, and in which he had no participation; and we may add, that the acts of the other parties referred to were brought on, induced and caused by the voluntary act of said Woolsey himself in assuming...