Wheeler v. Southern Railway Co.

• Decision Date: 22 May 1916
• Docket Number: 18097
• Citation: 71 So. 812,111 Miss. 528
• Court: Mississippi Supreme Court
• Parties: WHEELER v. SOUTHERN RAILWAY COMPANY

71 So. 812

111 Miss. 528

WHEELER v. SOUTHERN RAILWAY COMPANY

No. 18097

Supreme Court of Mississippi

May 22, 1916

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Suit by Dr. J. S. Wheeler, administrator, against the Southern Railway Company.From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Cunningham & Cunningham and J. E. Berry, for appellant.

Counsel's brief refers to two Tennessee statutes, and in doing so calls attention to the very death knell of their own contentions as to the rights of a mother, through an administrator, to maintain a suit for the negligent killing of a bastard child.

Sections 4025-6-7-8-9 of Shannon's Code of Tennessee gives (we quote the language from the supreme court of Tennessee as quoted by appellant's brief, page 3) the right to maintain an action against one person for wrongfully causing the death of another is purely statutory--given for the benefit of the widow, the children or next of kin of the deceased."The next of kin."Aye, that is the question.This phrase used in the statute, properly defined refers to whom?A reference to words and Phrases, Volume 5page 4799, shows that the courts have frequently defined the phrase to mean and include any person who inherits in any given jurisdiction.

A very able and lucid discussion of this question is found in the recent case of L. T. Dickerson Coal Company v Liddel,94 N.E. 411.This case takes up the authorities cited by counsel for appellee and shows clearly that they have nothing whatever to do with the case at bar.Sections 4166-7 of Shannon's Code of Tennessee considered in connection with the above authority absolutely demolishes the position taken by counsel for appellee on this question.

Two things are conceded by counsel for appellee.One is that the Tennessee statutes give the "next of kin" the right to maintain this action, and the other is that the mother of a bastard child is given the right by statute to inherit.The latter concession unquestionably makes her "the next of kin," and the former gives her the right to maintain the action.

An examination of the authorities cited by appellee will show how repeatedly "the next of kin" is recognized as having this right, and the authorities make it clear that she is within the contemplation of this phrase.

In defining who is meant by the legislature to be included in the term "the next of kin"the supreme court of Tennessee in defining its own statute in the case of Freeman v. The Illinois Central Railroad Company,64 S.W. p. 2, says: "The parties who are entitled to take under the statutes of distribution are, in the contemplation of the other statutes"the next of kin."

W. J. Lamb, for appellee.

The declaration in this case says that the deceased was a bastard, and suit was brought for the benefit of his mother, Mattie Thomas, and his two bastard brothers, Hout and Harry Thomas.

Under the common law there could be no right of recovery in this case.If the statutes of Tennessee give no right of recovery, then the case of the appellant must fail, and the decision of the lower court was correct.The common law must govern except where it is charged by statutory enactment.We know of nothing that expresses better the situation that the mother and brothers are in this case, than has been held by this court in the case of Railroad v. Johnson,77 Miss. 732.Railroad Company v. Williams, 78 Miss. 216.

We now turn to the statute of Tennessee, and we find the same condition exists regarding the laws of the state of Tennessee, as do in our state.Sections 4025,4026,4027,4028and4029 of Shannon's Code of Tennessee, are the statutes that provide for the right of action in case of injury or death.In none of these statutes is there anything said, taking the injury done a bastard out of the common-law rule.This being the law of the state of Tennessee, then the appellant has no right to recover under the statute above mentioned.

The supreme court of Tennessee says in the case of Railroad Company v. Pitts, Administrator,91 Tenn.(7 Pickle)page 92, as follows: "The right to maintain an action against one person for wrongfully causing the death of another is purely statutory--given for the benefit of the widow, children, or next of kin of the deceased.The suit may be brought by the beneficiaries, in their own right, or by the personal representative for their use and benefit.Code, secs. 3130-3132;Webb v. RailwayCo., 4 Pickle 119; Greenlee v. Railroad, 5 Lea, 418;Trafford v. Adams ExpressCo., 8 Lea, 100."

No express mention is made in any of the foregoing Tennessee statutes, embracing illegitimate kindred, as among those given the right to recover for the death of an illegitimate.The right to maintain such an action is purely statutory and is given for the benefit of the widow, children, or next of kin.No such parties exist in the case at bar, so the suit must fail.E. T., V. & G. Ry. Co. v. Thos. B. Lilly Admr. etc., 6 Pickle, 563.

The statute of Tennessee expressly provides that suit for a wrongful death can only be brought where there is a widow, child or next of kin to receive the benefit.The declaration in this case shows that the deceased had neither widow, child or next of kin, to receive the benefit for as shown by the declaration, he was the bastard son of Mattie Thomas, and the bastard brother of Harry and Hour Thomas, neither being included in the Tennessee statutes, which leaves the common-law rule absolutely in force.

Wherever the question has arisen upon statutes similar to our own, the courts have held with unanimity that the declaration is fatally defective unless it avers that the deceased left a widow, child, or next of kin, surviving him.Such, at least, is the uniform holding of all the caseswe have been able to find.It is the prevailing doctrine in New York, Indiana, Illinois, Minnesota, Vermont, South Carolina, Kansas, and Wisconsin, as will appear from the following cases: Safford v. Drew,3 Duer. 627;Lucas v. N.Y. CentralR. R. Co., 21 Barbour, 245;I. R. R. Co. v. Keely's Admr.,23 Ind. 133;Stewart v. T. H. & I. R. R. Co.,103 Ind. 44;S. C., 21 Am.andEng. R. R. Cas. 209;C. & R. R. Co. v. Morris,26 Ill. 400;Cohant v. Griffin,48 Ill. 411;Holton v. Daly,106 Ill. 131;Schwartz v. Judd,28 Minn. 371;Westcott v. C. V. R. R. Co.,61 Vt. 438;Geroux's Adm'r v. Graves(Vt.),10 S.E. R. 932;Mo. Pac. R. Y. Co. v. Barber,44 Am.andEng. R. R. Cas. 523;Woodward v. Railway Co., 23 Wis. 400."

The supreme court of Tennessee in the case of Railway v. Lilly,90 Tenn.(6 Pickle) 565, in construing the statute in this case says as follows: "The statute virtually creates a liability in favor of the widow or next of kin, which did not exist, at common law, hence the courts will not extend or enlarge that liability by liberality of construction, but will confine it to cases clearly within the provisions of the act.No right of action will be inferred; no remedy will be given in favor of any persons except those distinctly contemplated as beneficiaries."

"The very comprehensive language: 'The right of action' shall not abate or be extinguished, 'standing by itself, would undoubtedly embrace every case of wrongful killing.'That which follows, however, qualified the preceeding words, and restricts the provisions to cases in which there is a widow or next of kin to be benefited."

All of the decisions of the courts of Tennessee hold that before the right to recover exists, it must be shown that the deceased left surviving him a widow, child or next of kin.The deceased left no widow, child, nor could he have any next of kin, because of being a bastard.It necessarily follows that any right of action which cannot pass for the lack of a widow or next of kin to take the benefit of recovery, is not within the provisions of the statutes, and the action must abate as at common law.

OPINION

HOLDEN, J.

This case is appealed from the circuit court of Tishomingo county, where the appellant, Dr. J. S. Wheeler, administrator of the estate of Fred Thomas, deceased, filed his declaration against the appellee, Southern Railway Company, claiming damages for the death of Freddie Thomas, caused by one of appellee's trains, about two miles east of Rossville, Tenn.The deceased, Freddie Thomas, was a bastard, about sixteen years of age, and the suit was filed by the administrator for the benefit of the mother of this bastard son.The testimony in the case shows that one night in October, 1912, Freddie Thomas and Audie Gaines, both boys about sixteen years of age, were traveling afoot east on the right of way of the appellee, about two miles east of Rossville, Tenn., on their way to Corinth, Miss.While walking along the track in the nighttime, they became tired and seated themselves for a temporary rest upon the appellee's main track at a place where the roadbed was level and the track clear and straight for a distance of two or three miles.While seated upon the track, they both fell asleep, and while they were sitting there asleep, the appellee's eastbound fast passenger train approached, running at a speed of forty or fifty miles an hour.When the train got within about two hundred feet of the boys, one of them, Audie Gaines, awoke, and, seeing his danger, sprang from the track just in time to escape being struck by the engine, while the deceased, Freddie Thomas, awoke and raised his head to look, and was struck by the train and killed.

As the law of Tennessee, where the death occurred, must govern this action, we here set out the statutes of Tennessee upon which the cause of action is based: Section 1574, subsec.4 Shannon's Code...