Whitson v. Tennessee Cent. Ry. Co.

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 396,163 Tenn. 35
• Parties: WHITSON v. TENNESSEE CENT. RY. CO.
• Court: Tennessee Supreme Court

40 S.W.2d 396

163 Tenn. 35

WHITSON v. TENNESSEE CENT. RY. CO.

Supreme Court of Tennessee.

July 3, 1931

Appeal from Circuit Court, Putnam County; J. R. Mitchell, Judge.

Suit by H. T. Whitson individually against the Tennessee Central Railway Company. The summons was subsequently amended so as to add to plaintiff's name therein the words, "as administrator of estate of Mary Frances Whitson deceased." To review judgment dismissing suit, plaintiff appeals in error.

Reversed and remanded.

COOK J., dissenting.

Haile & Haile, of Cookeville, for plaintiff in error.

Walter Stokes, of Nashville, and Holladay & Holladay, of Cookeville for defendant in error.

SWIGGART J.

This suit was begun in the circuit court of Putnam county by summons which described the action as brought by H. T Whitson individually for damages for the negligent and wrongful killing of his minor daughter, Mary Frances Whitson. The declaration avers that, in the accident which is the basis of the suit, and from the effects of the injury she there received, plaintiff's daughter "died instantly."

The statutes of this state give plaintiff no right to sue individually for damages for the injuries so sustained by his daughter. "Where death occurs by a wrongful act, the rights of the parents are to be redressed under sections 4025-4028 of Shannon's Code." St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 16, 107 S.W. 684, 687; Holston v. Coal & Iron Co., 95 Tenn. 521, 32 S.W. 486. No declaration could have been so framed as to state a valid cause of action in the plaintiff individually under the summons, as issued and served upon defendant.

The sections of the Code cited above provide for the survival of the right of action which the injured person would have had if death had not ensued, with the right to sue vested in the widow or personal representative of the deceased person, for the benefit of the widow and next of kin, free from the claims of creditors of the deceased, to be distributed as personal property.

H. T. Whitson, as the father of his deceased daughter, is her next of kin, and is sole beneficiary of any action for damages for her wrongful death, brought in the name of her personal representative. Code (Shannon), § 4172, subsec. 4.

It follows from the foregoing that by the summons, as originally issued, the plaintiff in his individual capacity instituted suit on a cause of action of which he was sole beneficiary, but which could only be prosecuted for his benefit by and in the name of the personal representative of his deceased daughter.

This right of action is subject to the statute of limitations of one year. Code (Shannon), § 4469.

The summons was issued and served upon defendant within one year from the date of the accident and death. After the expiration of the year, plaintiff was appointed and qualified as administrator of the estate of his daughter, and thereafter moved to amend the summons so as to add to his name therein the words, "as administrator of the estate of Mary Frances Whitson, deceased." This amendment was allowed by the court, over the protest of the defendant, and the latter's motion to quash the summons was overruled. Thereupon defendant filed its plea in abatement to the summons as amended, on the ground that the amendment was made more than one year after the date of the injury as stated in the summons. This plea was stricken, on motion, and thereafter declaration was filed by the plaintiff as administrator.

Defendant then filed its plea to the declaration, reciting the previous proceedings as above outlined, and averring that the administrator was not appointed and qualified until a date more than twelve months after the death of Mary Frances Whitson. The circuit court, treating this as a plea of the statute of limitations, ruled that the amendment to the summons did not relate to the date of the issuance of the writ, and that the suing out of the summons did not stop the running of the statute. The court accordingly sustained the plea and dismissed the suit. The plaintiff has appealed in error.

The question made by the record and appeal is therefore whether this suit, begun by and in the name of the sole statutory beneficiary of the cause of action stated in the summons and declaration, within the time allowed, can be prosecuted in the name of the personal representative of the deceased, by amendment made after the expiration of the period prescribed in the statute of limitations. If this can be done, it is by relating the amendment to the date of the issuance of the writ amended.

The rule to be followed in this regard is that which is applied to amendments of pleadings. "The general principle is that when the amendment does not set up a new cause of action, or bring in new parties, the running of the statute is arrested at the date of the filing of the original pleading. *** It is evident that the term 'new cause of action' may refer to a new state of facts out of which liability arises, or it may refer to new parties who are alleged to be entitled under the same state of facts, or it may embrace both features." Love v. Southern Ry. Co., 108 Tenn. 104, 109, 65 S.W. 475, 476, 55 L. R. A. 471; Macklin v. Dunn, 130 Tenn. 342, 170 S.W. 588, Ann. Cas. 1916B, 508; Gardner v. Quinn, 154 Tenn. 167, 289 S.W. 513.

It is recognized in the cases cited, and particularly in Love v. Southern Railway Company, that difficulty lies in properly applying this general rule; that is, in determining whether an amendment does or does not introduce a new cause of action or new party into a pending suit.

This difficulty is acute in the case before us. In Flatley v. Railroad, 56 Tenn. (9 Heisk.) 230, it was held that an amendment, by which the suit of a widow for damages for the wrongful killing of her husband was subsequently prosecuted in the name of the administrator of the estate of her husband, did introduce a new party plaintiff so as to constitute a new action, begun at the date of the amendment, in respect to the application of the statutes of limitation. This was before the statute, Shannon's Code, § 4027, permitting the suit in the name of the widow. But in Nashville, C. & St. L. Ry. v. Anderson, 134 Tenn. 666, 185 S.W. 677, 679, L. R. A. 1918C, 1115, Ann. Cas. 1917D, 902, a similar action brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), this court ruled the contrary, saying: "So far as the change from the widow as a party plaintiff to the administrator as a party plaintiff is concerned, such a change is not a change of the cause of action." And again, with reference to Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 137, 57 L.Ed. 355, Ann. Cas. 1914B, 134, we said: "Certainly this case establishes the proposition that such a change of parties--that is, from the beneficiary to the representative of the beneficiary--is no change in the cause of action."

In Missouri, K. & T. R. Co. v. Wulf, supra, the conclusion of the Supreme Court of the United States with respect to the change of the plaintiff from sole beneficiary to administratrix was stated thus: "The change was in form rather than in substance (Stewart v. Baltimore & O. R. Co., 168 U.S. 445, 42 L.Ed. 537, 18 S.Ct. 105).

It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit."

The cause of action here involved is essentially similar to that arising under the Federal Employers' Liability Act (45 USCA §§ 51-59), involved in the case just cited. Each is a revival of the right of action of the person wrongfully killed, for the benefit of his widow or next of kin. Of the right of widow or children of a deceased employee under the federal act, Mr. Justice Holmes says: "It is established that the present right, although not strictly representative, is derivative and dependent upon the continuance of a right in the injured employee at the time of his death." Flynn v. New York, etc., R. Co., 51 S.Ct. 357, 358, 75 L.Ed. 837, decided March 23, 1931. The right of widow or next of kin under section 4025 (Shannon) is characterized by this court in similar language:

"It is said the right to recover by the administrator is the same right that the intestate had, if he had lived; but this is not (construing the statutes together) strictly accurate, for the right is not only as administrator, but as father, and the damages are given in view of both aspects of the case, and embrace both rights. The right is not strictly a descendible or inheritable right, but one arising out of the special statute, and as to its scope is governed by the statute." Bamberger v. Citizens' Street Railway Co., 95 Tenn. 18, 36, 31 S.W. 163, 168, 28 L. R. A. 486, 49 Am. St. Rep. 909.

We are therefore confronted with the necessity of overruling the authority of Flatley v. Railroad, supra, or of administering at the same time contradictory and conflicting rules of procedure in cases of essentially similar character. The obvious inconsistency of the latter alternative not only justifies but requires inquiry into the soundness of the principle underlying the rule previously followed by this court.

In a suit brought by an administrator under section 4025 of Shannon's Code, neither the administrator nor the estate of the deceased has any pecuniary interest. A recovery does not enrich the estate, but passes immediately to the statutory beneficiaries of the suit, free from all claims of creditors of the estate. The administrator is referred to as the "nominal plaintiff," and if the existence of a statutory beneficiary at the time the suit is commenced is not disclosed in the progress of the case, the action fails. Louisville & N. R....