Walker v. Peels

• Decision Date: 06 June 1958
• Citation: 315 S.W.2d 400,8 McCanless 40,204 Tenn. 40
• Parties: Estle WALKER, Mother and next of kin of Clarence Walker, deceased, v. Vernon PEELS and Erskin Peels. 8 McCanless 40, 204 Tenn. 40, 315 S.W.2d 400
• Court: Tennessee Supreme Court

Page 400

315 S.W.2d 400

Estle WALKER, Mother and next of kin of Clarence Walker deceased, v. Vernon PEELS and Erskin Peels.

8 McCanless 40, 204 Tenn. 40, 315 S.W.2d 400

Supreme Court of Tennessee.

June 6, 1958.

Leming & Brown, Knoxville, for plaintiff in error.

Hodges & Doughty, Knoxville, for defendants in error.

BURNETT, Justice.

Estle Walker, as mother and next of kin of Clarence Walker, deceased, instituted this action against the defendants in error, Peels, for recovery of damages for the death of her son alleged to have been done negligently by the operation of the Peels' truck, one of them driving and the other being present.

The defendants interposed a plea in abatement setting forth the fact that the cause had been tried theretofore and judgment rendered in favor of the Peels and against the plaintiff's cause of action on the merits of the case. The trial judge sustained the plea in abatement and dismissed the action. From this action of the trial judge the cause was seasonably appealed to this Court where briefs have been filed and arguments heard. We now have the matter for disposition.

The present cause of action was instituted on February 28, 1957 by Estle Walker as the mother, and next of kin of Clarence Walker, 'for her use and benefit, and the use and benefit of Fred Walker, the father of deceased, Clarence Walker.' On April 18, 1956, Fred Walker, as administrator of the estate of Clarence Walker instituted an action in the same court against the same defendants. In the Fred Walker declaration he asserted that he was the administrator of the estate of Clarence Walker, deceased, and that the deceased was 'a son of the plaintiff'. The first lawsuit came on to trial before the court and jury and at the conclusion of all the proof the defendants made a motion for a directed verdict on various grounds, one of these grounds was that there was insufficient evidence to take the case to the jury on the matter of negligence of these defendants in causing the death of this son Clarence Walker. As to this ground the trial judge responded thus:

'That motion has been sustained by the Court, and the Court will peremptorily instruct you to return a verdict for the defendants in the case, owing to the fact that there is insufficient evidence here to take the case to the jury as charged in the declaration. * * * I have tried to search these first four counts for evidence applying to them; I don't find evidence that will justify submitting those first four statutory counts to the jury * * * There are some grounds here that I have looked for, taking the most favorable view of the plaintiff, and I don't know how this accident happened, sitting as the thirteenth juror, I could not tell you to save my life, what happened to that bicycle, I don't believe anybody else can.'

That case was appealed to the Court of Appeals (no petition for certiorari was ever filed) and that Court affirmed the trial court. Among other things Judge Howard, speaking for the Court of Appeals, said:

'As will be observed, the plaintiff neither proved how the accident occurred nor how the decedent met his death. No one saw the truck before it arrived on the scene, nor was there any evidence that it was ever in contact with either the decedent's body or his bicycle. There was no conflict in the evidence, nor were there inferences from which men of reasonable minds might differ. In fact, there was no evidence whatsoever from which the jury could determine liability.'

After this was determined thus by the Court of Appeals the present suit was brought. As has been said above a plea in abatement was filed to his suit to which a replication was filed and to this replication a demurrer was filed by the defendants.

Among other things necessary to refer to in these various pleas was the fact that the pleas show on their face that the first suit was brought by the father as administrator. He alleged that he was the father and the second suit was brought by the mother in her own right, for her use and benefit and in this suit she alleges that she and the father were the only heirs of this deceased boy. These pleas as above, and particularly the replication, attempts to say that the present plaintiff Mrs. Walker and Fred Walker are different people and have sued in different capacities and that thus the doctrine of res judicata does not apply and that Mrs. Walker is not estopped to maintain her action.

This argument is based to a large extent on the holding of this Court that it is necessary to aver for the recovery of a deceased person the existence of a beneficiary and in the absence of this averment the case cannot be maintained. The particular case relied upon is that of Louisville & N. Ry. Co. v. Pitt, 1892, 91 Tenn. 86, 18 S.W. 118. It is thus argued and...