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Tenn.)

SHARP v. CINCINNATI, N. 0. & T. P. RY. CO.

375

whose negligence has caused him to be injured-- a railway towards a licensee in its switching by exercising, not that degree of care which operations: ought to have been observed, but only such as like corporations are accustomed to observe,

"It is proper to prove the customary way of would go far towards relieving them of all re- such evidence is not controlling. It is compe

doing such things in the business in hand, but lection and retention of incompetent servants. tent only to throw light on the question, since a If the general practice of such corporations in customary way may be a negligent way.” the appointment of servants is evidence which We believe that proper rules may be fora in , in the particular case, the requisite degree of mulated for cases such as this, as follows: care was observed, such practice cannot be taken

When such proof of conformity to custoas conclusive upon the inquiry as to the care mary usage is made by an employer, there which ought to have been exercised. A degree is made a prima facie case of nonliability, of care ordinarily exercised in such matters may not be due, or reasonable, or proper care, and nothing else appearing. therefore not ordinary care within the meaning This case is, however, subject to be rebutof the law."

ted by the plaintiff employé showing by proof See, also, Texas, etc., R. Co. v. Behymer, that the appliance where set for use or the 189 U. S. 468, 23 Sup. Ct. 622, 47 L. Ed. 905. place of work was one so inherently and fla

Mr. Labatt in the work above referred to grantly dangerous as that it must have been vigorously opposes the Pennsylvania rule at obviously so to the employer. section 947, where other cases in accord with The Court of Civil Appeals, however, as his views are collected, saying:

above indicated, passed on other assignments "In spite of the imposing array of authorities of error in favor of the Iron Works, and which have adopted the doctrine explained in properly remanded the case for another trial, sections 940 et seq., the present writer has no hesitancy in saying that, in his opinion, the Without entering into a discussion here of its cases just cited embody the correct prin action in those respects, we approve the lastciple," etc.

named rulings. The trial on remand will be Among the later cases so holding are Pratt- in conformity to those rulings and to what ville Cotton Mills v. McKinney, 178 Ala. 554, is said in this opinion on the matter segre 59 South. 498; Winkler v. Power, etc., Co., gated for discussion. 141 Wis. 244, 124 N. W. 273.

In our opinion the sounder view is that maintained by the cases denying the rule of application to the full extent laid down in the SHARP v. CINCINNATI, N. 0. & T. P. RY. Titus Case; that is, holding that a defense

CO. conclusive in character is not made out by a (Supreme Court of Tennessee. Oct. 8, 1915.) showing on the part of an employer that in 1. EXECUTORS AND ADMINISTRATORS Cw11respect to appliances or place of work fur JURISDICTION TO APPOINT-EXISTENCE OF nished by him he has conformed to the usage “ASSETS”'-"CHATTEL''-'GOODS AND CHATobtaining among employers of like character TELS”—“ESTATE” — “Goods, CHATTELS, OR in the district. The contrary rule, said to be

ASSETS OR ANY ESTATE, REAL OR PERSON

AL"-"CHOSE IN ACTION.' "unbending," lacks that flexibility that is re Under Shannon's Code, § 3935, providing quired to reach a just result in certain cas- that letters of administration may be granted es, of which this one is a type.

upon the estate of a nonresident by the counThe doctrine is too absolute in that it de goods, chattels, or assets or any estate, real or

ty court of any county where deceased had any nies a jury the right to find the common personal, at the time of his death, or where the usage to be an obviously negligent one; and, same may be when the letters are applied for, in effect, the right to find that such other or where any suit is to be brought, prosecuted, employers are not in that respect men of or- administrator may be appointed in the county

or defended in which the estate is interested, an dinary care and prudence, which may be the in which the decedent was wrongfully killed, truth. The fact may be that the customary though the cause of action for the wrongful usage has its basis on motives of economy,

death is the only asset in the county, and there

are no technical assets. Since the word "chatself-interest, or a reckless disregard of the tels” includes not only personal property in subordinate, and not on consideration for the possession, but choses in action, the term "goods safety of the employé. Is supineness on the and chattels” is of very wide signification, and

includes choses in action. The term "choses in part of an isolated employer to be denounced action” includes rights of action for tort. The while the same supineness if only it be found word "assets,” as used in the administration in aggregate is to be vindicated ?

statutes, though usually meaning items subject The rule that tends to cause vigilance in to payment of the debts of the decedent, is not

wholly limited to this meaning, but has been apthe protection of human life is to be pre- plied to money collected by an administrator as ferred over one that tends to encourage con- damages for the wrongful killing of an intestate. certed indifference.

The word “estate," though in its primary and While the point has not been passed on in technical sense referring only to an interest in

land, as used with reference to a decedent's any of our cases involving the relation of property, has acquired a wider application in master and servant, it was said in Railroad a popular sense and refers to the entire mass v. Wade, 127 Tenn. 154, 153 S. W. 1120, Ann. of decedent's property, both real and personal, Cas. 1914B, 1020, which was a case that in while the words "goods, chattels, or assets or

any estate, real or personal," include every volved the measure of care to be observed by I kind of property of any nature whatsoever, and

are not limited to technical assets subject to the judgment was granted in the county court payment of debts.

revoking the letters, and on appeal to the [Eā. Note. For other cases, see Executors circuit court this judgment was affirmed, and Administrators, Cent. Dig. § 25; Dec. Dig. and subsequently on appeal to the Court of Omw11.

For other definitions, see Words and Phrases, Civil Appeals was there again affirmed. The First and Second Series, Chattel; Goods ; Chose case has now reached us in regular course in Action; Assets; Estate.]

under the writ of certiorari. 2. EXECUTORS AND ADMINISTRATORS Om 11- The ground of recall in the several courts JURISDICTION TO APPOINT-STATUTORY PRO

was that the decedent was a nonresident of VISIONS—'ESTATE.”

The word "estate," as used in Shannon's this state, and had no assets in Scott county, Code, $ 3935, subd. 4, authorizing the appoint and the county court was therefore without ment of an administrator of the estate of a non- jurisdiction to grant letters of administration resident in any county where any suit is to be brought, prosecuted, or defended in which the upon this estate. estate is interested, means the whole legal entity

Wilson was killed in Scott county, Tenn., which may be the subject of devolution on the in an accident on the line of the defendant legatees, devisees, heirs, or distributees of a railroad company, alleged to have been due

a ment, which, under such laws, may be attacked to the negligence of the railway company. or defended, or to obtain which, a suit may be The railway company is a corporation of the brought.

state of Ohio. It is alleged that deceased [Ed. Note. For other cases, see Executors was a citizen of the state of Kentucky. He and Administrators, Cent. Dig. § 25; Dec. Dig. left no assets or property in Scott county exOn11.) 3. DEATH 10 – ACTIONS FOR CAUSE OF cept the cause of action arising from his DEATH-NATURE.

alleged wrongful death. The action of the The right of action for wrongful death Court of Civil Appeals in revoking the letgiven by Shannon's Code, $ 4025 et seq., is that ters is assigned as error. which the deceased would have had if he had lived, and the recovery is in right of the de

[1] The question is whether a county court ceased.

of this state has jurisdiction to appoint an [Ed. Note.-For other cases, see Death, Dec. administrator for the estate of a nonresiDig. Om 10.]

dent who died as the result of an injury 4. DEATH 8 - ACTIONS FOR WRONGFUL which was tortiously inflicted upon him in DEATH-LAW GOVERNING.

A right of action for wrongful death is the county in which administration is sought, governed by the laws of the state where the in- where it appears the decedent left no other jury occurred.

property or estate in that county, except the [Ed. Note.-For other cases, see Death, Cent. right of action for the wrongful death. Dig. $$ 12, 36, 52, 121, 133; Dec. Dig. Om8.]

The solution of this question depends upon 5. STATUTES 231 - REVISIONS AND COM- the construction of section 3935 of Shannon's PILATIONS-CONSTRUCTION.

Though the substance of Shannon's Code, Code (Code of 1858, $ 2202), which reads as 8 3935, relative to the jurisdiction to appoint

follows: administrators of the estates of non residents "Letters testamentary or of administration was enacted prior to the Code of 1858, with may be granted upon the estate of a person who which the right of action for wrongful death resided, at the time of his death, in some other originated, it having been made a part of that state or territory of the Union, or in a forCode along with the sections giving the right of eign country, by the county court of any counaction for wrongful death, they must be con- ty in this state: strued together as if they had originated with "(1) Where the deceased had any goods, chatthe Code, as that Code was a single enact- tels, or assets, or any estate, real or personal, ment.

at the time of his death, or where the same may [Ed. Note.-For other cases, see Statutes, be when said letters are applied for. Cent. Dig. § 312; Dec. Dig. 231.]

“(2) Where any debtor of the deceased re

sides. Buchanan, J., dissenting.

(3) Where any debtor of a debtor of the deCertiorari to Court of Civil Appeals.

ceased resides, his debt being unpaid when the Proceeding by the Cincinnati, New Orleans application is made.

**(4) Where any suit is to be brought, prose& Texas Pacific Railway Company for the cuted, or defended, in which said estate is inrevocation of letters of administration grant- terested." ed to Joseph Sharp on the estate of Charles

The word “chattels,” used in the first subB. Wilson. A judgment revoking the letters section, includes not only personal property was affirmed by the Court of Civil Appeals, in possession, but choses in action. Cye. and the administrator brings certiorari. Re-Law Dict. versed.

In Cyc. the word "chattels" is thus defined: E. G. Foster, of Huntsville, and Pickle, “Every species of property, movable or imTurner & Kennerly, of Knoxville, for plain- movable, which is less than a freehold.” Voltiff. H. M. Carr, of Harriman, for defendant. ume 7, p. 122.

So of the term "goods and chattels." This NEIL, C. J. This case was originally expression is of very wide signification, and, brought in the county court of Scott county among many other things, includes choses to revoke the letters of administration pre- in action as well as those in possession. 20 viously granted to petitioner Joseph Sharp, Cyc. 1268–1270. The term "choses, in action” as administrator of Charles B. Wilson. Al includes rights of action for tort. Cyclopedic Tenn.)

SHARP v. CINCINNATI, N. 0. & T. P. RY. CO.

377

Law Dict. 149; Pitts v. Curtis, 4 Ala. 350; [2] Subsection 4, as if to remove any amMcKee v. Judd, 12 N. Y. 622, 64 Am. Dec. 515. biguity that might reside in the very ex

The word "assets," as used in our admin- tensive expressions already referred to, speciistration statutes, usually means items sub- fies that administration may be had in any ject to payment of the debts of the decedent. county where any suit is to be brought, prosAgee v. Saunders, 127 Tenn. 680, 157 S. w.ecuted, or defended in which "said estate” is 64, 46 L. R. A. (N. S.) 788. Still it is not interested. By the word “estate," as used wholly limited to this meaning, but has been in this latter subsection, is meant the whole applied to money collected by an administra- legal entity which may be the subject of tor as damages for the wrongful killing of devolution on the legatees, devisees, heirs, an intestate, since the administrator owes or distributees of a decedent under the opera duty to distributees as well as to creditors. ation of the laws of a state or government, This court said on the subject, in Glass v. and which, under such laws, may be attacked Howell, 70 Tenn. (2 Lea) 50, 52:

or defended, through forms prescribed by "It is argued that the right of action for law, or to obtain which a suit may be brought. damages resulting in the death of an intestate

[3] We think there is no doubt that the is not assets with which an administrator is officially chargeable. But this is directly in right of action which arose in the present conflict with the statute which expressly pro- case to the estate of Wilson by reason of vides that the right of action for injuries re- his wrongful death was a part of his estate, sulting in death shall survive and pass to the and that an administrator could be properly

, It true he may decline to sue, in which case the appointed in Scott county, where he was next of kin may use his name by giving security killed, to recover therefor. It has been abun for costs. Code, § 2292. The reason is that dantly held in this state that the right of there may be no assets with which to pay costs, and the personal representative may decline action under the Code sections referred to to actively proceed without security, and as, is that which the deceased would have posby the statute, the recovery inured to the next sessed if he had lived, and the recovery is of kin, free from the claims of creditors, the in right of the deceased. Davidson Benenext of kin were authorized to sue in his name, upon indemnifying him against costs. If he act dict Co. v. Severson, 109 Tenn. 572, 613-623, ed, and received the fund, it would undoubtedly 72 S. W. 967, inclusive, and cases cited; be as administrator."

Stuber v. Railroad, 113 Tenn. 305, 87 S. W. Furthermore, there are many estates which 411. owe no debts, and still it is proper to have an [4] The injury having occurred in this administrator to take charge of all of the state, the right of action would be governed personal property, realize on it, and divide by the laws of this state. The universal the proceeds among the distributees.

rule is that this right of action is governed Of the word "estate" it is said:

by the laws of the state where the injury “While in its primary and technical sense the occurred. Nashville & Chattanooga R. R. term estate refers only to an interest in land, Co. v. Eakin, 46 Tenn. (6 Cold.) 582; Nashyet by common usage it has acquired a much wider import and application, being applied ville & Chattanooga R. R. Co. v. Sprayberry, to personal property as well as realty, and in 56 Tenn. (9 Heisk.) 852, 856; Id., 67 Tenn. its most extreme sense signifying everything of (8 Baxt.) 341, 35 Am. Rep. 705; Hobbs v. which riches or fortune may consist.” 16 Cyc. Memphis & Charleston R. R. Co., 56 Tenn. 599, 600. In the notes to the text it is said:

(9 Heisk.) 873; Railroad v. Foster, 78 Tenn. “The word 'estate' is genus generalissimum (10 Lea) 351; Whitlow v. N. C. & St. L. Ry. and includes all things real and personal. Co., 114 Tenn. (6 Cates) 344, 84 S. W. 618, Thornton v. Mulquinne, 12 Iowa, 549, 79 Am. 68 L. R. A. 503; Erickson v. Pacific Coast Dec. 548; Bridgewater v. Bolton, 6 Mod. 106; S. S. Co. (C. C.) 96 Fed. 80; Cowen v. Ray, 1 Salk. 236; O'Neil v. Carey, 8 U. C. & C. P. 108 Fed. 320, 47 C. C. A. 352; Van Doren v. 339."

The word "estate,” as used with reference Pa. R. R. Co., 93 Fed. 260, 35 C. C. A. 282; to a decedent's property, has acquired a wid- Leman v. Baltimore & O. R. R. Co. (C. C.) er application in a popular sense and refers 128 Fed. 191; Davidow v. Pa. R. R. Co. (C. to the entire mass of the decedent's property, C.) 85 Fed. 943; In re Coe's Estate, 130 both real and personal. Harrison v. Lamar, Iowa, 307, 106 N. W. 743, 4 L. R. A. (N. S.) 33 Ark. 824.

814, 114 Am. St. Rep. 416, 8 Ann. Cas. 148; Finally, in our own case of Gourley v. Louisville & Nashville R. R. Co. v. WhitThompson, 34 Tenn. (2 Sneed) 387, 393, it is low's Adm’r, 105 Ky. 1, 43 S. W. 711, 41 L. said:

R. A. 614; Id., 114 Ky. 470, 43 S. W. 711, “The word 'estate, unqualified or unrestricted, 41 L. R. A. 614. is always construed to embrace every descrip

If not permitted to be sued on in this tion of property, real, personal, and mixed.” state, it probably could not be made the

Taking together all the words referred to subject of an action anywhere, because each as used in subsection 1, viz., "goods, chattels, state enforces such rights of action accruing or assets, or any estate real or personal,” in any other state only through comity, and we think it was the intention of the Leg- when the state in which the injury occurred islature to include every kind of property does not recognize it as giving a right of acof any nature whatsoever and that they can- tion, there is nothing on which comity could not be limited merely to technical assets rest. We should then have the singular reed in this state by wrongful act, if the per- had not died, for the use and benefit of the son was a nonresident at the time he was heirs at law of such deceased beneficiary." killed, could enforce a right of action against It is perceived that the right of action the wrongdoer anywhere unless the deceased given is general, for the benefit of the widleft in this state some property other than ow, children, and next of kin, without rethe right of action for this wrongful death. spect to whether residents or nonresidents. This would create an exception to our stat. Accordingly it has been held that a widow ute allowing recoveries for death caused by residing in a foreign state might bring her wrongful act not warranted by anything in suit in this state to recover for the death of the statute itself; the statute being general her husband wrongfully caused here. Chesain its terms.

peake, Ohio & Southwestern Railroad Co. v. That statute reads as follows:

Higgins, 85 Tenn. (1 Pick.) 620, 4 S. W. 47. “4025. The right of action which a person But the right of the widow and children to who dies from injuries received from another, or

sue directly was first conferred by Acts 1871, whose death is caused by the wrongful act, omission, or killing by another, would have had c. 78, § 2, embodied in Shannon's Code, ś against the wrongdoer in case death had not 4027. Prior to that time, under the sections ensued, shall not abate or be extinguished by of the Code of 1858 quoted, the action could his death, but shall pass to his widow, and, in be brought only by the administrator. Bledcase there is no widow, to his children or to his personal representative, for the benefit of soe v. Stokes, 60 Tenn. (1 Baxt.) 312, 314; his widow or next of kin, free from the claims Flatley V. Memphis & Charleston Railroad of creditors.

Co., 56 Tenn. (9 Heisk.) 230, 233, 234; Traf"4026. The action may be instituted by the ford V. Adams Express Co., 76 Tenn. (8 Lea) personal representative of the deceased; but, if he decline it, the widow and children of the 96, 99; Loague V. Railroad, 91 Tenn. (7 deceased may, without the consent of the repre- Pick.) 458-460, 19 S. W. 430; Holston v. sentative, use his name in bringing and prose- Coal & Iron Co., 95 Tenn. (11 Pick.) 521, 522, cuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. et seq., 32 S. W. 486. If plaintiff's conThe personal representative shall not, in such tention be sound, then it must follow that case, be responsible for costs, unless he sign his prior to the act of 1871 there could be no name to the prosecution bond.

“4027. The action may also be instituted by recovery at all for the wrongful killing of a the widow in her own name, or, if there be no nonresident in this state, unless, as appearwidow, by the children.

ed in Anderson v. Louisville & N. R. Co., 128 "4028. If the deceased had commenced an Tenn. 244, 159 S. W. 1086, there was found action before his death, it shall proceed without a revivor. The damages shall go to the widow on his body, or otherwise in some county of and next of kin, free from the claims of the this state, some personal property, even creditors of the deceased, to be distributed as though small and comparatively inconsiderpersonal property.

able, so that an administrator could be apThe provisions of the Code of 1858 on the pointed. It would likewise follow, on the subject were these:

same theory, that after the act of 1871 a “2291. The right of action, which a person foreign widow and children could sue for who dies from injuries received from another, or the injury, but in case there were neither whose death is caused by the wrongful act or omission of another, would have had against the widow nor children, but other next of kin, wrongdoer, in case death had not ensued, shall these latter could have no remedy, because not abate or be extinguished by his death; but they could not sue without an administrator, shall pass to his personal representative for the benefit of his widow and next of kin, free from and none could be appointed here, because the claims of his creditors.

no technical assets could be found here; **2292. The action may be instituted by the that is, no property subject to debts. We personal representative of the deceased; but if should thus have imported into the statute, he decline it, the widow and children of the de- by construction, the new and important conceased may, without the consent of the representative, use his name in bringing and prose- dition that, while the widow and children cuting the suit, on giving bond and security for might recover regardless of the existence of costs, or in the form prescribed for paupers, technical assets in this state, there could be The personal representative shall not in such case be responsible for costs, unless he sign his no recovery for the benefit of the next of name to the prosecution bond.

kin other than children, unless there could “2293. If the deceased had commenced an ac- be found in this state at least a few doltion before his death, it shall proceed without lars' worth of property liable for debts. A a revivor. The damages shall go to the widow and next of kin, free from the claims of the theory leading to such a result cannot be creditors of the deceased, to be distributed as sound. personal property.'

The error resides in the assumption that In 1903 an act was passed (chapter 317) no administrator can be appointed here unwhich provided:

less there be technical assets. This theory “That no suit now pending or hereafter ignores the fact that the duty of taking posbrought for personal injuries or death from session of property, realizing on it, and paywrongful act in any of the courts of this state, whether by appeal or otherwise, and whether in ing to distributees rests on the administrator an inferior or superior court, shall abate or be as well as the payment of debts, and that abated, because or on account of the death of this duty exists even though there be no the beneficiary or beneficiaries for whose use debts. It fails to accord the proper meaning and benefit said suit was brought, and that such suit shall be proceeded with to final judg- to the broad terms “goods” and “chattels,” Tenn.)

SHARP v. CINCINNATI, N. 0. & T. P. RY. CO.

379

to assets subject to the payment of debts. As but generally an administrator is appointed we have already shown, the term "assets" in the state of the forum, as has always been has a broader meaning under the statute the practice in Tennessee. we are considering.

[5] It is suggested that Shan. Code, 5 We are referred to the case of Railroad 3935 (Code of 1858, $ 2203), copied supra, was v. Herb, 125 Tenn. 408, 143 S. W. 1138, as taken from Acts 1831, c. 24, and Acts 1841in conflict with what we have herein held. 42, c. 69, and at that time the right of action That case, so far as concerns the facts in de- for personal injuries resulting in death died cision, is not in conflict, since it appears that with the injured party, and therefore they the injury which was the subject of that could not have been intended to cover a cause action occurred in Kentucky. However, the of action such as that sued on in the case construction therein given to Shannon's Code, before us, originating with the Code of 1858, § 3935, is in conflict with the construction and that for this reason such a claim could herein given, and we cannot adhere to it. We not be treated as assets. The argument is may add that Railroad v. Herb, is in con- not sound. It is true the substance of the flict with two prior decisions of this court section was in the original acts referred to, concerning the right of action for injuries but this section was made a part of the code resulting in death where the injuries oc- of 1858, along with the sections giving the curred in a foreign state. Railroad v. Foster, right of action for wrongful death, and there supra, and Whitlow v. Railroad, supra.

fore they must be construed together, just These cases are not referred to in Railroad as if they originated with the Code. The v. Herb. In the case of Railroad v. Foster whole Code of 1858 was itself a single enthe action was brought by the administrator. actment, and went into effect as a whole on It does not appear from the opinions in the the 1st day of May, 1858. The title and encases where these administrators were ap- "An act to revise the statutes of the state of

acting clause are as follows: pointed, but they must have been appointed

Tennessee. in some county in Tennessee, since, under "Be it enacted by the General Assembly of the rule well established at the time in this the state of Tennessee, that the General Statstate, a foreign administrator was not per- utes of the state of Tennessee shall be as folmitted to sue. It does not distinctly appear

lows." in the Whitlow Case whether plaintiff was

Then follows the whole Code as one act the administrator, but it is to be inferred or body of laws. Chapman v. State, 2 Head from the Alabama statute quoted in the (39 Tenn.) 36, 41; Brien v. Robinson, 102 opinion that such was the case. In the Spray- Tenn. 157, 167, 52 S. W. 802; State v. Runberry Case, supra, suit was brought by a nels, 92 Tenn. 320, 323, 324, 21 S. W. 665; husband and father for the wrongful death Trust Co. v. Weaver, 102 Tenn. 66, 69, 50 of his wife and children, occurring in the S. W. 763; Whitworth v. Hager, 124 Tenn. state of Mississippi.

355, 360, 140 S. W. 205. The three cases last referred to are in har- cases, that it was not the intention of the com

“While the court will presume, in doubtful mony with the great weight of authority pilers of the Code to change, but only to reelsewhere. The cases are so numerous that vise or compile, the old statutes, still, where the we shall not attempt to cite them. The rule meaning of the Code is clear, by reason of its

express terms, or as a matter of necessary imis practically uniform in the states of the plication, its provisions are the law of the state, Union that suits will be entertained on rights without regard to the old statutes which may of action for wrongful injuries causing death have been the basis of its provisions, and which occurring in foreign states unless the statutes town, etc.,

Iron Co., 97 Tenn. 690, 694, 695, 37

it in express terms repeals.” Padgett v. Duckof the foreign states are penal in their nature, S. W. 698. or contain provisions in conflict with the The result is the judgment of the Court public policy of the state in which they are of Civil Appeals is reversed. sought to be enforced. In some of the states the foreign administrator is permitted to sue, BUCHANAN, J., dissents.

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