Whaley v. Catlett

• Decision Date: 18 October 1899
• Citation: 53 S.W. 131,103 Tenn. 347
• Parties: WHALEY v. CATLETT et al. (two cases).
• Court: Tennessee Supreme Court

53 S.W. 131

103 Tenn. 347

WHALEY v. CATLETT et al. (two cases).

Supreme Court of Tennessee.

October 18, 1899

Appeal from circuit court, Sevier county; Thomas A. R. Nelson Judge.

Action by Mollie L. Whaley, through her next friend, B. B. McMahan against W. R. Catlett and others. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. Affirmed.

J. R Penland, A. C. Grimm, Welcker & Parker, and J. W. Culton, for appellant.

Shields & Mountcastle, W. W. Mullendore & Son, W. J. McSween, and G. L. Zerkle, for appellees.

WILKES J.

These are actions founded upon sections 4025, 4026, 4027, and 4029 of Shannon's Code, but more especially upon section 4029, which said sections read as follows:

"Sec. 4025 (2291) 3130. Right of Action in Case of Injuries, or Death. 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. (1851-52, ch. 17; 1871, ch. 78, sec. 1.)

"Sec. 4026 (2292) 3131. How Suit is Prosecuted. 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. (1851-52, ch. 17.)

"Sec. 4027, 3132. When Action may be Instituted by Widow or Children. The action may also be instituted by the widow in her own name, or, if there be no widow, by the children. (1871, ch. 78, sec. 2.)"

"Sec. 4029, 3134. Measure of Damages. Where a person's death is caused by the wrongful act, fault, or omission of another, and suit is brought for damages, as provided for by sections 4025 to 4027, inclusive, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses 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. (1883, ch. 186.)"

The facts in the case are about as follows: One night in December, 1896, two parties, by the name of Catlett Tipton and Pleas Wynn, went to the house of William Whaley, in Sevier county, and shot down and instantly killed both Whaley and his wife; neither having spoken after the fatal shots were fired, which were in rapid succession. They left as heir and only survivor the plaintiff in this cause, who was then a child about six months old. No representative of the estate of the deceased father or mother was ever appointed, nor has the said child had a guardian. After the death of the father and mother, it was discovered, as alleged in the declaration that the defendants Catlett, hired, procured, aided, and abetted the said Wynn and Tipton to commit these murders. Two suits were instituted against the defendants by this minor child, by next friend, for $25,000 each,--one for causing the wrongful death of the father, and the other for causing the wrongful death of the mother. Declarations were filed in each case, and the defendants demurred to each on the ground that they were each barred by the statute of limitation of one year. The court below sustained these demurrers, from which action of the court the plaintiff appealed.

The only question involved is, are the actions barred by the statute of limitations? The proper answer to this question makes necessary a critical examination of the acts which have been cited, and, to some extent, a review of our cases wherein these acts have been construed. The question narrows itself to this: Is the action which the statute authorizes that of the deceased, or is there, under the acts, a new, substantive, original cause of action in the widow, children, or next of kin, independent of that existing in and passing from the deceased, though resting upon or growing out of the same injury? In other words, does the deceased's cause of action alone survive and pass to the parties named, or does the statute create a new cause of action in their behalf and for their benefit? We are of opinion that a careful reading of the statutes can lead to no other conclusion than that they provide alone for the continued existence and passing of the right of action of the deceased, and not for any new, independent cause of action in his widow, children, or next of kin. Section 4025, Shannon's Code, refers to it as the right of action which the deceased would have had in case death had not ensued, and provides that it shall not abate or be extinguished, but shall pass to his widow, etc. It does not provide for or refer to any new cause of action arising or coming into existence in their favor. It is alone by virtue of these statutes that a right of action exists in the widow, children, or next of kin for the unlawful killing of the deceased, and this right exists under the statute, not because it arises directly to them in their own right, but because it passes to them in the right of the deceased.

At common law all personal actions for wrongs or injuries died with, or abated by the death of, the party injured, and no right of action survived or arose in favor of the widow or children or next of kin. They can therefore take only under and according to the provisions of the statutes. Bream v Brown, 5 Cold. 170; Chambers v. Porter, 5 Cold. 276; Flatley v. Railroad Co., 9 Heisk. 234; Fowlkes v. Railroad Co., Id. 831, 836; Trafford v. Express Co., 8 Lea, 97-108; Railroad Co. v. Lilly, 90 Tenn. 564, 18 S.W. 243; Railroad Co. v. Pitt, 91 Tenn. 86-92, 18 S.W. 118; Loague v. Railroad Co., 91 Tenn. 459-462, 19 S.W. 430; Railroad Co. v. Bean, 94 Tenn. 393, 394, 29 S.W. 370. In Haley v. Railroad Co., 7 Baxt. 242, it is held that the right of action of the deceased, with all its incidents, passes, and it must be treated as if the injured party had brought it. And again in Loague v. Railroad Co., 91 Tenn. 460-462, 19 S.W. 430, it is held that the right of action is still the right of the deceased, although under section 4029 (Acts 1883, c. 186) the recovery may include as an element such damages as are sustained by the person to...