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"It is proper to prove the customary way of doing such things in the business in hand, but such evidence is not controlling. It is competent only to throw light on the question, since a customary way may be a negligent way."

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, would go far towards relieving them of all re would go far towards relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due, or reasonable, or proper care, and therefore not ordinary care within the meaning of the law."

See, also, Texas, etc., R. Co. v. Behymer, 189 U. S. 468, 23 Sup. Ct. 622, 47 L. Ed. 905. Mr. Labatt in the work above referred to vigorously opposes the Pennsylvania rule at section 947, where other cases in accord with his views are collected, saying:

"In spite of the imposing array of authorities which have adopted the doctrine explained in sections 940 et seq., the present writer has no hesitancy in saying that, in his opinion, the cases just cited embody the correct principle," etc.

We believe that proper rules may be formulated for cases such as this, as follows:

When such proof of conformity to customary usage is made by an employer, there is made a prima facie case of nonliability, nothing else appearing.

This case is, however, subject to be rebutted by the plaintiff employé showing by proof that the appliance where set for use or the place of work was one so inherently and flagrantly dangerous as that it must have been obviously so to the employer.

The Court of Civil Appeals, however, as above indicated, passed on other assignments of error in favor of the Iron Works, and properly remanded the case for another trial. Without entering into a discussion here of its action in those respects, we approve the lastnamed 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

CO.

(Supreme Court of Tennessee. Oct. 8, 1915.) 1. EXECUTORS AND ADMINISTRATORS 11JURISDICTION TO APPOINT-EXISTENCE OF "ASSETS"-"CHATTEL"-'GOODS AND CHATTELS" "ESTATE"-"GOODS, CHATTELS, OR ASSETS OR ANY ESTATE, REAL OR PERSONAL"-"CHOSE IN ACTION."

application to the full extent laid down in the SHARP v. CINCINNATI, N. O. & T. P. RY. Titus Case; that is, holding that a defense conclusive in character is not made out by a showing on the part of an employer that in respect to appliances or place of work furnished by him he has conformed to the usage obtaining among employers of like character in the district. The contrary rule, said to be "unbending," lacks that flexibility that is required to reach a just result in certain cases, of which this one is a type.

The doctrine is too absolute in that it denies a jury the right to find the common usage to be an obviously negligent one; and, in effect, the right to find that such other employers are not in that respect men of ordinary care and prudence, which may be the truth. The fact may be that the customary usage has its basis on motives of economy, self-interest, or a reckless disregard of the subordinate, and not on consideration for the safety of the employé. Is supineness on the part of an isolated employer to be denounced while the same supineness if only it be found in aggregate is to be vindicated?

Under Shannon's Code, § 3935, providing that letters of administration may be granted upon the estate of a nonresident by the county court of any county where deceased had any goods, chattels, or assets or any estate, real or personal, at the time of his death, or where the same may be when the letters are applied for, or where any suit is to be brought, prosecuted, or defended in which the estate is interested, an administrator may be appointed in the county in which the decedent was wrongfully killed, though the cause of action for the wrongful are no technical assets. Since the word "chatdeath is the only asset in the county, and there tels" includes not only personal property in possession, but choses in action, the term "goods and chattels" is of very wide signification, and includes choses in action. The term "choses in action" includes rights of action for tort. The word "assets," as used in the administration statutes, though usually meaning items subject to payment of the debts of the decedent, is not wholly limited to this meaning, but has been ap

The rule that tends to cause vigilance in the protection of human life is to be pre-plied to money collected by an administrator as ferred over one that tends to encourage concerted indifference.

While the point has not been passed on in any of our cases involving the relation of master and servant, it was said in Railroad v. Wade, 127 Tenn. 154, 153 S. W. 1120, Ann. Cas. 1914B, 1020, which was a case that involved the measure of care to be observed by

damages for the wrongful killing of an intestate. The word "estate," though in its primary and technical sense referring only to an interest in land, as used with reference to a decedent's property, has acquired a wider application in a popular sense and refers to the entire mass of decedent's property, both real and personal, while the words "goods, chattels, or assets or any estate, real or personal," include every kind of property of any nature whatsoever, and

are not limited to technical assets subject to the payment of debts.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 25; Dec. Dig.

On 11.

For other definitions, see Words and Phrases, First and Second Series, Chattel; Goods; Chose in Action; Assets; Estate.]

2. EXECUTORS AND ADMINISTRATORS 11JURISDICTION TO APPOINT-STATUTORY PROVISIONS-ESTATE."

The word "estate," as used in Shannon's Code, 3935, subd. 4, authorizing the appointment of an administrator of the estate of a nonresident in any county where any suit is to be brought, prosecuted, or defended in which the estate is interested, means the whole legal entity which may be the subject of devolution on the legatees, devisees, heirs, or distributees of a decedent, under the laws of a state or government, which, under such laws, may be attacked or defended, or to obtain which, a suit may be brought.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 25; Dec. Dig. 11.]

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ACTIONS FOR CAUSE OF

DEATH-NATURE. The right of action for wrongful death given by Shannon's Code, § 4025 et seq., is that which the deceased would have had if he had lived, and the recovery is in right of the deceased.

[Ed. Note. For other cases, see Death, Dec. Dig. 10.]

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[Ed. Note. For other cases, see Statutes, Cent. Dig. § 312; Dec. Dig. 231.]

Buchanan, J., dissenting.

Certiorari to Court of Civil Appeals. Proceeding by the Cincinnati, New Orleans & Texas Pacific Railway Company for the revocation of letters of administration granted to Joseph Sharp on the estate of Charles B. Wilson. A judgment revoking the letters was affirmed by the Court of Civil Appeals, and the administrator brings certiorari. Reversed.

E. G. Foster, of Huntsville, and Pickle, Turner & Kennerly, of Knoxville, for plaintiff. H. M. Carr, of Harriman, for defendant.

judgment was granted in the county court revoking the letters, and on appeal to the circuit court this judgment was affirmed, and subsequently on appeal to the Court of Civil Appeals was there again affirmed. The case has now reached us in regular course under the writ of certiorari.

The ground of recall in the several courts was that the decedent was a nonresident of this state, and had no assets in Scott county, and the county court was therefore without jurisdiction to grant letters of administration upon this estate.

Wilson was killed in Scott county, Tenn., in an accident on the line of the defendant railroad company, alleged to have been due to the negligence of the railway company. The railway company is a corporation of the state of Ohio. It is alleged that deceased was a citizen of the state of Kentucky. He left no assets or property in Scott county except the cause of action arising from his alleged wrongful death. The action of the Court of Civil Appeals in revoking the letters is assigned as error.

[1] The question is whether a county court of this state has jurisdiction to appoint an administrator for the estate of a nonresident who died as the result of an injury which was tortiously inflicted upon him in the county in which administration is sought, where it appears the decedent left no other property or estate in that county, except the right of action for the wrongful death.

The solution of this question depends upon the construction of section 3935 of Shannon's Code (Code of 1858, § 2203), which reads as follows:

"Letters testamentary or of administration may be granted upon the estate of a person who resided, at the time of his death, in some other state or territory of the Union, or in a foreign country, by the county court of any county in this state:

"(1) Where the deceased had any goods, chattels, or assets, or any estate, real or personal, at the time of his death, or where the same may be when said letters are applied for.

"(2) Where any debtor of the deceased resides.

"(3) Where any debtor of a debtor of the deceased resides, his debt being unpaid when the application is made.

(4) Where any suit is to be brought, prosecuted, or defended, in which said estate is interested."

The word "chattels," used in the first subsection, includes not only personal property in possession, but choses in action. Cyc. Law Dict.

In Cyc. the word "chattels" is thus defined: "Every species of property, movable or immovable, which is less than a freehold." Volume 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. Aincludes rights of action for tort. Cyclopedic

Law Dict. 149; Pitts v. Curtis, 4 Ala. 350; McKee v. Judd, 12 N. Y. 622, 64 Am. Dec. 515. The word "assets," as used in our administration statutes, usually means items subject to payment of the debts of the decedent. Agee v. Saunders, 127 Tenn. 680, 157 S. W. 64, 46 L. R. A. (N. S.) 788. Still it is not wholly limited to this meaning, but has been applied to money collected by an administrator as damages for the wrongful killing of an intestate, since the administrator owes a duty to distributees as well as to creditors. This court said on the subject, in Glass v. Howell, 70 Tenn. (2 Lea) 50, 52:

"It is argued that the right of action for damages resulting in the death of an intestate is not assets with which an administrator is officially chargeable. But this is directly in conflict with the statute which expressly provides that the right of action for injuries resulting in death shall survive and pass to the personal representative. Code, § 2291. It is true he may decline to sue, in which case the next of kin may use his name by giving security for costs. Code, § 2292. The reason is that there may be no assets with which to pay costs, and the personal representative may decline to actively proceed without security, and as, by the statute, the recovery inured to the next of kin, free from the claims of creditors, the next of kin were authorized to sue in his name, upon indemnifying him against costs. If he acted, and received the fund, it would undoubtedly be as administrator."

Furthermore, there are many estates which owe no debts, and still it is proper to have an administrator to take charge of all of the personal property, realize on it, and divide the proceeds among the distributees.

Of the word "estate" it is said: "While in its primary and technical sense the term estate refers only to an interest in land, yet by common usage it has acquired a much wider import and application, being applied to personal property as well as realty, and in its most extreme sense signifying everything of which riches or fortune may consist." 16 Cyc.

599, 600.

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[2] Subsection 4, as if to remove any ambiguity that might reside in the very extensive expressions already referred to, specifies that administration may be had in any county where any suit is to be brought, prosecuted, or defended in which "said estate" is interested. By the word "estate," as used in this latter subsection, is meant the whole legal entity which may be the subject of devolution on the legatees, devisees, heirs, or distributees of a decedent under the operation of the laws of a state or government, and which, under such laws, may be attacked or defended, through forms prescribed by law, or to obtain which a suit may be brought.

[3] We think there is no doubt that the right of action which arose in the present case to the estate of Wilson by reason of his wrongful death was a part of his estate, and that an administrator could be properly appointed in Scott county, where he was killed, to recover therefor. It has been abun

dantly held in this state that the right of action under the Code sections referred to is that which the deceased would have possessed if he had lived, and the recovery is in right of the deceased. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 613-623, 72 S. W. 967, inclusive, and cases cited; Stuber v. Railroad, 113 Tenn. 305, 87 S. W. 411.

[4] The injury having occurred in this state, the right of action would be governed by the laws of this state. The universal rule is that this right of action is governed by the laws of the state where the injury occurred. Nashville & Chattanooga R. R. Co. v. Eakin, 46 Tenn. (6 Cold.) 582; Nashville & Chattanooga R. R. Co. v. Sprayberry, 56 Tenn. (9 Heisk.) 852, 856; Id., 67 Tenn. (8 Baxt.) 341, 35 Am. Rep. 705; Hobbs v. Memphis & Charleston R. R. Co., 56 Tenn.

(9 Heisk.) 873; Railroad v. Foster, 78 Tenn. (10 Lea) 351; Whitlow v. N. C. & St. L. Ry. Co., 114 Tenn. (6 Cates) 344, 84 S. W. 618, 68 L. R. A. 503; Erickson v. Pacific Coast S. S. Co. (C. C.) 96 Fed. 80; Cowen v. Ray, 108 Fed. 320, 47 C. C. A. 352; Van Doren v. Pa. R. R. Co., 93 Fed. 260, 35 C. C. A. 282; Leman v. Baltimore & O. R. R. Co. (C. C.) 128 Fed. 191; Davidow v. Pa. R. R. Co. (C. C.) 85 Fed. 943; In re Coe's Estate, 130 Iowa, 307, 106 N. W. 743, 4 L. R. A. (Ñ. S.)

814, 114 Am. St. Rep. 416, 8 Ann. Cas. 148;

Louisville & Nashville R. R. Co. v. Whitlow's Adm'r, 105 Ky. 1, 43 S. W. 711, 41 L. R. A. 614; Id., 114 Ky. 470, 43 S. W. 711, 41 L. R. A. 614.

If not permitted to be sued on in this state, it probably could not be made the subject of an action anywhere, because each state enforces such rights of action accruing in any other state only through comity, and when the state in which the injury occurred does not recognize it as giving a right of action, there is nothing on which comity could rest. We should then have the singular re

ed in this state by wrongful act, if the person was a nonresident at the time he was killed, could enforce a right of action against the wrongdoer anywhere unless the deceased left in this state some property other than the right of action for this wrongful death. This would create an exception to our statute allowing recoveries for death caused by wrongful act not warranted by anything in the statute itself; the statute being general in its terms.

That statute reads as follows:

"4025. 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.

"4026. 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.

"4027. The action may also be instituted by the widow in her own name, or, if there be no widow, by the children.

"4028. If the deceased had commenced an action before his death, it shall proceed without a revivor. The damages shall go to the widow and next of kin, free from the claims of the creditors of the deceased, to be distributed as personal property."

had not died, for the use and benefit of the heirs at law of such deceased beneficiary."

It is perceived that the right of action given is general, for the benefit of the widow, children, and next of kin, without respect to whether residents or nonresidents. Accordingly it has been held that a widow residing in a foreign state might bring her suit in this state to recover for the death of her husband wrongfully caused here. Chesapeake, Ohio & Southwestern Railroad Co. v. Higgins, 85 Tenn. (1 Pick.) 620, 4 S. W. 47. But the right of the widow and children to sue directly was first conferred by Acts 1871, c. 78, § 2, embodied in Shannon's Code, & 4027. Prior to that time, under the sections of the Code of 1858 quoted, the action could be brought only by the administrator. Bledsoe v. Stokes, 60 Tenn. (1 Baxt.) 312, 314; Flatley v. Memphis & Charleston Railroad ford v. Adams Express Co., 76 Tenn. (8 Lea) Co., 56 Tenn. (9 Heisk.) 230, 233, 234; Traf96, 99; Loague v. Railroad, 91 Tenn. (7 Pick.) 458-460, 19 S. W. 430; Holston v. Coal & Iron Co., 95 Tenn. (11 Pick.) 521, 522, If plaintiff's conet seq., 32 S. W. 486. tention be sound, then it must follow that prior to the act of 1871 there could be no recovery at all for the wrongful killing of a nonresident in this state, unless, as appeared in Anderson v. Louisville & N. R. Co., 128 Tenn. 244, 159 S. W. 1086, there was found on his body, or otherwise in some county of this state, some personal property, even though small and comparatively inconsiderable, so that an administrator could be ap

The provisions of the Code of 1858 on the pointed. It would likewise follow, on the subject were these:

"2291. The right of action, which a person who dies from injuries received from another, or whose death is caused by the wrongful act or omission of 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 personal representative for the benefit of his widow and next of kin, free from the claims of his creditors.

"2292. 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.

"2293. If the deceased had commenced an action before his death, it shall proceed without a revivor. The damages shall go to the widow and next of kin, free from the claims of the creditors of the deceased, to be distributed as personal property."

same theory, that after the act of 1871 a foreign widow and children could sue for the injury, but in case there were neither widow nor children, but other next of kin, these latter could have no remedy, because they could not sue without an administrator, and none could be appointed here, because no technical assets could be found here; that is, no property subject to debts. We should thus have imported into the statute, by construction, the new and important condition that, while the widow and children might recover regardless of the existence of technical assets in this state, there could be no recovery for the benefit of the next of kin other than children, unless there could be found in this state at least a few dollars' worth of property liable for debts. theory leading to such a result cannot be sound.

A

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," ment, as though such beneficiary or beneficiaries and improperly confines the term "estate"

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, § 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 The argument is herein given, and we cannot adhere to it. We not be treated as assets. It is true the substance of the may add that Railroad v. Herb, is in con- not sound. 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 theresupra, and Whitlow v. fore they must be construed together, just v. Railroad, supra. 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 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 Then follows the whole Code as one act in the Whitlow Case whether plaintiff was 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 Tenn. 157, 167, 52 S. W. 802; State v. Runopinion that such was the case. In the Spray-nels, 92 Tenn. 320, 323, 324, 21 S. W. 665;

berry Case, supra, suit was brought by a husband and father for the wrongful death of his wife and children, occurring in the state of Mississippi.

The three cases last referred to are in harmony with the great weight of authority elsewhere. The cases are so numerous that we shall not attempt to cite them. The rule is practically uniform in the states of the Union that suits will be entertained on rights of action for wrongful injuries causing death occurring in foreign states unless the statutes of the foreign states are penal in their nature, or contain provisions in conflict with the public policy of the state in which they are sought to be enforced. In some of the states the foreign administrator is permitted to sue,

Tennessee.

lows."

Trust Co. v. Weaver, 102 Tenn. 66, 69, 50 S. W. 763; Whitworth v. Hager, 124 Tenn. 355, 360, 140 S. W. 205.

"While the court will presume, in doubtful cases, that it was not the intention of the compilers of the Code to change, but only to revise or compile, the old statutes, still, where the meaning of the Code is clear, by reason of its express terms, or as a matter of necessary implication, its provisions are the law of the state, without regard to the old statutes which may have been the basis of its provisions, and which it in express terms repeals.' Padgett v. Ducktown, etc., Iron Co., 97 Tenn. 690, 694, 695, 37 S. W. 698.

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The result is the judgment of the Court of Civil Appeals is reversed.

BUCHANAN, J., dissents.

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