Alabama statute. This latter statute is subHOWARD ). NASHVILLE, C. & ST. L. stantially like our own on the same subject, RY. CO.

but confers the right of action only on the (Supreme Court of Tennessee. Oct. 19, 1915.) administrator of the deceased. After the fil1. EXECUTORS AND ADMINISTRATORS'lling of the declaration the defendant moved

JURISDICTION TO APPOINT-EXISTENCE OF the court to compel the plaintiff to elect beASSETS.

tween the right of action claimed under the An administrator may be appointed to federal Employers' Liability Act and that bring an action for wrongful death wherever the claimed under the Alabama statute. Before was a nonresident and left no assets in the this motion was acted on, however, the destate other than such right of action, and though fendant filed a petition in the county court he sustained the injuries causing his death in of Hamilton county, praying that the letters another state, as the right of action itself is property and is transitory, and exists wherever of administration be recalled, on the ground the defendant may be found.

that the decedent left no property or estate [Ed. Note.-For other cases, see Executors in Tennessee that could furnish a basis for

a and Administrators, Cent. Dig. $ 25; Dec. Dig. the appointment. The plaintiff answered the Om 11.]

petition, claiming that there existed certain 2. COURTS @ 7-JURISDICTION – TRANSITORY small items of property, and the right of acACTIONS-ACTIONS FOR WRONGFUL DEATH.

A right of action for wrongful death is tion against the railroad company for the transitory and may be enforced against the de- wrongful death. The existence of the small fendant wherever he may be found, provided it items referred to was denied and contested, is not contrary to the policy of the forum and but we deem it unnecessary to incumber the is allowed by the state wherein the injury occurred, except in those cases controlled by fed record with a further reference to these materal statutes.

ters. We shall assume that the deceased [Ed. Note. For other cases, see Courts, Cent. left no property, except the right of action Dig. 88 14, 16, 22-31; Dec. Dig. Om7.]

against the railway company for the alleged 3. COMMERCE 8—LIABILITY FOR INJURIES, wrongful death. The county court held that STATUTORY PROVISIONS.

this could not be treated as a basis for adThe federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Ů. S. Comp. ministration in Tennessee, if unaccompanied St. 1913, $8 8657-8665]) in the cases to which by technical assets subject to the payment of it applies is necessarily supreme.

the debts of the deceased, and therefore en[Ed. Note.-For_other cases, see Commerce, tered a judgment recalling the administration Cent. Dig. § 5; Dec. Dig. Oi8.]

previously granted. On appeal to the cirBuchanan, J., dissenting.

cuit court of the county this judgment was Certiorari to Court of Civil Appeals.

affirmed. The case was then appealed to the Proceeding by the Nashville, Chattanooga Court of Civil Appeals, and that court re& St. Louis Railway Company to revoke let-versed the circuit court. The case was then ters of administration granted to Mrs. Mol- brought to this court by the writ of certiorari.

The defendant is a railroad chartered in lie Howard on the estate of her deceased husband. A judgment revoking said letters Tennessee, and runs from Nashville, in Dawas reversed by the Court of Civil Appeals, vidson county, Tenn., to Chattanooga, in and the Railroad Company brings certiorari. Hamilton county, Tenn., but for a short disJudgment of the Court of Civil Appeals af- tance passes through a part of Alabama, and firmed.

in so doing through the town of Bridgeport,

in that state. The defendant had at the Thompson, Williams & Thompson, of Chat-time, and now has, a depot and offices in Chattanooga, for plaintiff. Brown, Spurlock & tanooga. Brown, of Chattanooga, for defendant.

On these facts the question arises which

we are to decide. NEIL, C. J. In the early part of the year

[1] In the case of Joseph Sharp, Adm’r, v. 1915, plaintiff's husband being engaged in C., N. 0. & T. P. Ry. Co., 179 S. W. 375 the service of defendant, received at Bridge (Knoxville, September term, 1914), in which port, Ala., an injury from which he died an opinion was filed at the present term, we eight hours later, in Chattanooga, Tenn., to had before us the question whether an adwhich place he had been at once removed, on ministrator could be lawfully appointed in the happening of the injury. The deceased this state for a nonresident killed here who was a resident of the state of Alabama at left no property except his right of action the time he was hurt. A few days after against the railway company that caused his death plaintiff, his widow, appeared be- his wrongful death. In the opinion filed it fore the county court of Hamilton county, was settled both on reason and authority Tenn., and applied for and obtained letters that such jurisdiction existed. In the case of administration on his estate. She then before us the question of jurisdiction is prebrought an action against the defendant to sented on a different state of facts. The recover damages for the alleged wrongful intestate was a nonresident, received the indeath. She filed her declaration containing jury that caused his death in a foreign state, several counts, one of these under the federal Alabama, was brought to Hamilton county, Employers' Liability Act, and one under the Tenn., soon after the injury, and died within eight hours thereafter. He left no property, have assets of both kinds to deal with—that (as we assume for the purposes of the pres- is, assets for the payment of debts and assets ent discussion), except his right of action devoted solely to the distributees of the inagainst the railway company for causing his testate. Any other view must rest on the wrongful death.

inherently false basis that the administra[2] Is there any fundamental difference in tor is appointed solely for the benefit of the two cases? We think not. Such a right creditors, or to realize assets devoted in of action is transitory, and may be enforced whole or in part to them, to the ignoring of against the defendant wherever he may be those which belong solely to distributees. found. This must be understood, of course,

[3] Furthermore, such a rule would make with the qualification that such action is not it impossible, in very many instances, to encontrary to the policy of the forum, and force the federal Employers' Liability Act. with the further qualification that the right That act can be put in motion only by an of action is that allowed by the state where- administrator. Suits must be brought. in the injury occurred, save only such cases There is no provision in the federal laws for as are controlled by the federal Employers' the appointment of administrators. These Liability Act or other federal act. Subject must be appointed by the state tribunals. to these conditions, such rights of action are That act is as much a law of each state as permitted by comity in nearly all of the if enacted by the Legislatures of all the states of the Union. The extension of the states, and it is as much the duty of the comity seems to depend on the question state courts to enforce it. Mondou v. New whether the same or a substantially similar York, N. H. & H. R. Co., 223 U. S. 1, 32 Sup. right of action is recognized by the laws of Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) the forum, subject to the distinction, how- 44. In the cases to which it applies that ever, that where the laws of the foreign law is necessarily supreme, being a law of state are penal in their nature, comity will the federal government. The right of action not be extended to them.

so given, being in its nature transitory, must It is generally necessary, as a preliminary apply to the defendant wherever found in to the bringing of such actions, that an ad- these United States, since it proceeds from ministrator be appointed in the state where supreme power, and is not by its terms limitthe suit is to be brought; that is, the stated to any special locality. utes creating the liability generally provide Now, let us suppose a case in which it for its enforcement by an administrator. At appears a man has been killed under such this point the question arises whether it is circumstances as to clothe his widow, and essential that any property be found in such children or next of kin with the right to a state, other than the right of action for the recovery under that act, in a suit to be wrongful death, as a basis for the appoint- brought by the administrator of the decement of an administrator. In some cases dent. The decedent left no other property where it is assumed, if not held, that the except this right of action. Can any one finding of such other property is essential, suppose that a county court or probate court it has been held that the finding of an in- would be permitted to nullify this act of significant amount of property would suffice, Congress by refusing to appoint an adminis$3 or $4, old clothing, or some other trifle. trator on the ground that the decedent ownThis fact shows the artificial and highly ed no other property except the right of actechnical and wholly unsubstantial charac- tion given him or his estate by the Congress? ter of such a rule. And it is unreasonable Take another case.

. In the same probate and unnecessary. As pointed out in Sharp court an application for administration is v. Railway Co., supra, and other cases, the made on the estate of a man who left $5 right of action itself is property; and it is and the right of action referred to. Admintransitory, and exists wherever the defendant istration is granted on his estate, and denied may be found, and an administrator may be on the other. Can the courts sanction such there appointed to collect it as in the case discrimination ? of debt. As shown in Sharp's Case, it is not .

Or let us take this Alabama act. It likematerial that such right of action is not wise can be made effective only through available for the payment of the debts of suit by an administrator. Ought the right the deceased. If it be the administrator's of action thereby given, which is equally duty to sue on the demand, it is not material property, as in the case of the other, and that the law requires him to pay the amount also transitory, and litigable wherever the recovered to the widow and children or next defendant may be found-ought this right to of kin, instead of to creditors. It is just as be destroyed because the decedent was so much his duty to sue in the one case as in unfortunate as to own no other property? the other; and it is just as much the duty Will it be said that the right could be enof a probate court, county court, or other forced in Alabama? But the same difficulty court having jurisdiction of such matters to would perhaps be found there. Or let us appoint an administrator for this purpose suppose he had been killed in Alabama, not or when only this purpose is to be served as by a railroad company, but by some man of to which state he returned after the homi- it was held that the right of action would be cide. Could the wrongdoer defeat justice entertained where the defendant was found, through heading off the appointment of an although both plaintiff and defendant were administrator on the ground that the dece- citizens of the same foreign state. The same dent owned no property in Tennessee, except rule was announced in Eingartner v. Illinois the right of action, and thus permanently Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. prevent the bringing of an action against A. 503, 59 Am. St. Rep. 859. This latter was him?

a case between a citizen of Illinois and a corThe foregoing questions, with the inevita- poration of that state for an injury inflicted ble answers they suggest, show the unsound- in Illinois. In Nelson, Adm'r, v. Chesapeake ness of the view that administration can be & Ohio R. Co., 88 Va. 971, 14 S. E. 838, 15 L. denied solely because the decedent left no R. A. 583, it was held that a recovery, in an other property than his right of action action for death, brought by a duly appointed against the wrongdoer.

administrator, under an administration proAnd so are the authorities. Brown v. Rail-ceeding based on a statute of another state, road Co., 97 Ky. 228, 30 S. W. 639; Findlay giving a right of action to an administrator, v. Railroad Co., 106 Mich. 700, 64 N. W. 732; but not providing that such administrator Hutchins v. Railroad Co., 44 Minn. 5, 46 N. must be appointed in such other state so givW. 79; Reiter-Connoly Mfg. Co. v. Hamlin, ing the right of action, will be a complete bar 144 Ala. 192, 219, 40 South. 280; Washington to an action in the latter state for the same Asphalt Block & Tile Co. v. Mackey, 15 App. wrong. D. C. 410; Western Union Telegraph Co. v.

In the case of Re Lowham's Estate, supra, Lipscomb, 22 App. D. C. 104; Appeal of it appeared the death occurred in Wyoming. Jenkins, 25 Ind. App. 532, 58 N. E. 560, 81 Am. The administrator was appointed in Utah, St. Rep. 114; Missouri Pac. Railroad Co. v. and suit brought there; no other asset or Bradley, 51 Neb. 596, 71 N. W. 283; Boston, property of the estate appearing except the etc., R. Co. v. Hurd, 108 Fed. 116, 47 C. c. right of action for the wrongful death. In A. 615, 56 L. R. A. 193; Missouri Pac. R. Co. Fickeisen v. Wheeling Electrical Company, V. Lewis, 24 Neb. 848, 40 N. W. 401, 2 L. R. supra, the facts, so far as they concern the A. 67; Re Mayo, 60 S. C. 401, 38 S. E. 634, 54 present question, were that the intestate was L. R. A. 660; Jordan v. Chicago, etc., R. Co., killed in the city of Bridgeport, in the state 125 Wis. 581, 104 N. W. 803, 1 L. R. A. (N. S.) of Ohio, by a current of electricity from the 885, 890, 110 Am. St. Rep. 865, 4 Ann. Cas. wires of the Bridgeport Electrical Company. 1113; Vance v. Southern Ry. Co., 138 N. C. Asserting and believing that the Wheeling 460, 462-464, 50 S. E. 860; In re Lowham's Electrical Company, operating in Wheeling, Estate, 30 Utah, 436, 85 Pac. 445; Richards W. Va., owned and controlled the poles and v. Riverside Iron Works, 56 W. Va. 510, 49 wires of the Bridgeport Company, the plainS. E. 437;. Fickeisen v. Wheeling Electrical tiff applied for administration in Ohio counCo., 67 W. Va. 335, 67 S. E. 788, 27 L. R. A. ty, in the state of West Virginia, was ap(N. S.) 893, 898; Fann v. N. C. R. Co., 155 N. pointed administrator there, and brought suit C. 136, 71 S. E. 81; Southern Pac. R. Co. v. there to recover for the wrongfui death. The De Valle Da Costa, 190 Fed. 689, 111 C. C. defendant filed a plea contesting the jurisdicA. 417; Rivera v. Atchison, T. & S. F. Ry. tion of the county court in West Virginia to Co. (Tex. Civ. App.) 149 S. W. 223; Gulf, c. appoint an administrator, since the death oc& S. F. R. Co. v. Beezley (Tex. Civ. App.) 153 curred in the state of Ohio. Responding to S. W. 651; Eastern Ry. Co. of New Mexico this objection, the court said: v. Ellis (Tex. Civ. App.) 153 S. W. 701. And "As the defendant company had its habitat see Hartford & N. H. R. Co. v. Andrews, 36 demand against it was property of the estate of

v

in Ohio county [West Virginia], we think the Conn. 214; Bruce v. Cincinnati R. Co., 83 Ky. the deceased, so as to confer such jurisdiction"174; Anderson v. R. Co., 210 Fed. 689, 127 C. citing Richards v. Riverside Iron Works, supra. C. A. 277 (C. C. A. 6th Circuit).

In Southern Pacific Co. v. De Valle Da That an action of the kind we have under Costa, supra, decided by the Circuit Court examination is transitory and may be brought of Appeals of the First Circuit, it appeared in any jurisdiction, if the statute giving the that the intestate was at the time of his action is not inconsistent with the statutes death a servant of the defendant, a Kentucor public policy of the forum, is shown not ky corporation; that a statute of that state only by our own cases, cited in Sharp v. gave a right of action for wrongful death to Railroad, supra, but the rule is quite general. be brought by an administrator; that the inDennick v. Railroad Co., 103 U. S. 11, 26 L. testate was killed on the high seas in a vessel Ed. 439; Stewart v. Baltimore & Ohio R. Co., belonging to the defendant by negligence of 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. his employer while in the service of the And see the note appended to Dougherty v. latter. It appeared that administration was American McKenna Process Co., Ann. Cas. taken out in Massachusetts, where the de, 1913D, 570, 571, and the cases there cited. fendant was found; that the estate of the

In Pullman Palace Car Co. v. Lawrence, 74 intestate had no other property than the Miss. 782, 22 South. 53, and Knight v. West right of action for the wrongful death; that

*

*

validity of the grant of the letters of admin- ers' Liability Act. The same is true of Eastistration; that upon the trial of this plea ern Ry. Co. of New Mexico v. Ellis, supra. it was stipulated as follows:

In M. P. R. R. Co. v. Lewis, 24 Neb. 848, "That unless the right of action against the 40 N. W. 401, 2 L. R. A. 67, it appeared that defendant is assets in this jurisdiction, the de- the deceased was killed in Kansas, the adceased having no other property here, and not having been at the time of his death a resident ministrator was appointed in Nebraska, and of Massachusetts, the plea in abatement is to the suit brought in the latter state under be sustained; but, if such right of action is as- the Kansas statute. sets sufficient to give jurisdiction to the pro- suit was well brought.

It was held that the bate court to appoint an administrator here, the suit was well brought. plea in abatement is to be overruled; and the In Dennick v. Central R. R. Co., 103 U. S. case is submitted to the court for a ruling on 11, 26 L. Ed. 439, the facts were that the the matter."

decedent was killed in a railway accident It was held that the administrator was in New Jersey, the administrator was approperly appointed in Massachusetts, and the pointed in New York, and the action brought action rightly instituted there. In the course in the latter state. The New Jersey statute of the opinion the court said:

giving the cause of action provided that “If the statute which gives the right provides actions based on it should be brought by an for a suit by the personal representative, a question arises whether it is a personal repre

administrator. It was objected in the case sentative appointed by the courts of the state that an administrator could not be appointed wherein death was caused, a personal represen- in New York and bring suit there. The court tative appointed at the decedent's domicile, or held that the right of action was transitory,

| risdiction where the defendant is sued.

and the administrator might be appointed Though a defendant's liability may be clear, and the suit brought in any jurisdiction whatever course may be taken in an attempt to where the defendant might be found. enforce this liability, there arise objections supported by good authority which imperil the We are referred to the case of L. & N. R. substantial rights of those for whose benefit the R. Co. v. Herb, 125 Tenn. 408, 143 S. W. 1139, liability was imposed. If administration be taken out in the place of the domicile of the de- as an authority in opposition to the views ceased, objection is made that only the state herein expressed. As pointed out in Sharp which gives the right of action can appoint a V. Railroad, supra, the fundamental mislegal representative with authority to enforce conception in Railroad v. Herb was in the that right of action. If a legal representative is appointed in such state, it is objected in the view that nothing could authorize the apstate wherein suit is brought that the authority pointment of an administrator in this state of an administrator has the territorial limits of except the existence of technical assets, cathe state of his appointment. If suit is brought in the state of defendant's residence, a twofold pable of appropriation to the payment of objection may be made, that the administrator debts, and specifically in holding that the exshould have been appointed either at the dece istence of a claim for wrongful death would dent's domicile or in the state whose statute not alone justify such appointment.

It is creates the right of action. *

* The right to administration is recognized whenever there clear from the discussion in Sharp v. Railare assets within the jurisdiction. Is a death road, supra, and from the discussion and claim assets for the purpose of the appointment authorities in the present case, that we must of an administrator

“The enactment of a statute giving an action recede from the views entertained in Railfor death, and requiring that it shall be brought road v. Herb on the point just referred to. by a personal representative, we think, should It results that the Court of Civil Appeals right of administration to enforce such a claim. committed no error in reversing the trial

. If a statute designates the personal representa- judge, and in dismissing the proceedings tive of the deceased as the proper plaintiff, to instituted in the county court of Hamilton left assets other than the right of action would county to recall the administration previously introduce an unreasonable and arbitrary dis- granted in that court. The judgment of the tinction. To hold that suit might be brought in Court of Civil Appeals will therefore be afthe state of Massachusetts for causing death of firmed. the deceased if the deceased left property in the

We observe in the record a motion to comstate, but that it could not be brought if he had no propertv, would be to make a distinction in pel the plaintiff to elect between the right of favor of persons who have estates against per- action claimed under the federal Employers' sons who have no estates-to deny, the remedy Liability Act, and that claimed under the to those most in need of it.

"We think, further, that either the court of Alabama statute. In what we have said as the state wherein the cause of action accrued or to the supremacy of the federal law we are the court of the state wherein the defendant re- not to be understood as expressing an opinion sides should recognize the right of action for wrongful death as a sufficient basis for the ! on this subject, as it does not come before us grant of letters of administration."

on the present hearing, and we find authorThis case was followed in Rivera V. At-ities on both sides of the question. Cases chison, T. & S. F. Ry. Co., supra, in which cited in notes 218 and 219, p. 79, of 47 L. R. it appeared that the deceased was killed in A. (N. S.), parts of an extensive note on the New Mexico, and in Gulf, C. & S. F. Ry. Co. federal act, under Lamphere v. Oregon R. v. Beezeley, supra. In both instances the ad- & Nav. Co., 47 L. R. A. (N. S.) 48–84. ministrator was appointed in Texas, and the

*

clusive as that it could be overcome only by JACKSON et al. v. THORNTON et al. proof of impotence on the part of the hus(Supreme Court of Tennessee. Oct. 30, 1915.) | band or his absence from the realm (“beyond

the four seas”) during the period when the 1. BASTARDS Ow3 EVIDENCE PRESUMP-child must in the course of nature have been TION OF LEGITIMACY,

The presumption of the legitimacy of a chila begotten; but the hardship worked by that born during wedlock is indulged, though ante- rule led to its modification by the courts of nuptial conception is made to appear.

nearly, if not quite, all jurisdictions, includ(Ed. Note.-For other cases, see Bastards, ing this court. Cannon v. Cannon, 7 Humph. Cent. Dig. $$ 4, 5; Dec. Dig. 3.]

(26 Tenn.) 410. 2. BASTARDS 3 EVIDENCE PRESUMP

[1] The authorities differ on the point as TION OF LEGITIMACY.

The presumption of the legitimacy of a child to whether if it be made to appear, as here, born during wedlock is weakened and may be that conception antedated the nuptials, the overcome by a less weight of evidence where presumption is then weakened. All the auantenuptial conception is shown. [Ed. Note:- For other cases, see Bastards, imacy continues to be indulged in such case.

thorities agree that the presumption of legitCent. Dig. $$ 4, 5; Dec. Dig. 3.]

[2] Some of the courts hold that the pre3. BASTARDS 3 EVIDENCE-PRESUMPTION OF LEGITIMACY.

sumption in such case must arise from the Though antenuptial conception is shown, fact of the marriage, and not from sexual clear, strong, and convincing testimony must be intercourse assumed to result from the maradduced to overcome the presumption of the legiti- riage, and that the presumption of legitimate macy of a child born in wedlock, and a mere preponderance is not enough, nor may testimony birth is therefore so far weakened as that it of mere rumor and suspicion among neighbors may be overcome by a less weight of evitouching the paternity of the child overcome the dence. Wilson v. Babb, 18 S. C. 59; Wright presumption.

v. Hicks, 15 Ga. 171, 60 Am. Dec. 687. [Ed. Note.-For other cases, see Bastards, Cent. Dig. $$ 4, 5; Dec. Dig. On3.]

In other cases it is held that antenuptial

conception does not weaken the presumption Appeal from Chancery Court, Jefferson of legitimacy arising from birth after the County; H. N. Cate, Special Chancellor. marriage. Dennison v. Page, 29 Pa. 42, 79

Action by William Jackson and others Am. Dec. 644; McCullock v. McCullock, 69 against Cal Thornton and others. From a Tex. 682, 7 S. W. 593, 5 Am. St. Rep. 96; judgment for defendants, complainants ap- Wallace v. Wallace, 137 Iowa, 37, 114 N. peal. Affirmed.

W. 527, 14 L. R. A. (N. S.) 544, 126 Am. St. Walsh i& Ely and J. Arthur Atchley, all Rep. 253, 15 Ann. Cas. 761. We think the of Knoxville, for appellants. C. T. Rankin, better rule is that laid down in the first line of Jefferson City, for appellees.

of cases.

[3] But, even so, we hold that, in respect

of the weight of the evidence required to WILLIAMS, J. Complainants sue to recover land, claiming to be the heirs at law override the presumption, clear, strong, and of one Houston Jackson. Defendants claim convincing testimony must be adduced by

him who alleges illegitimacy.

A mere preunder a deed executed by Fred Jackson, who, they contend, was the only child and heir of ponderance in his favor is not enough; nor Houston Jackson.

may testimony of mere rumor and suspicion The legitimacy of Fred Jackson is the sole among neighbors touching the true paternity

the child avail to overcome the presumpquestion for determination.

tion. Houston Jackson was a colored man, and

Scott v. Hillenberg, 85 Va. 245, 7 S. intermarried with a young colored girl, E. 377; Bethany Hospital Co. v. Hale, 64 Rachael Gentry. Fred Jackson was borne by Kan. 367, 67 Pac. 848; 8 Enc. Ev. 171. Rachael after the marriage. This fact is

The proof introduced by complainant is

The chancellor clearly established. The proof tends to show largely of that character. that the child was born three or four months properly held it not sufficient to the award after the marriage, and there is proof indi- of relief to complainants. Affirmed. cating that he was begotten by a white man in whose family the mother had worked as a servant girl just before her marriage, and

BIVENS V. STATE. while she was being courted by Houston Jackson.

(Supreme Court of Tennessee. Oct. 23, 1915.) The proof as to the paternity of the child FISH C9-PRESERVATION — STATUTES - IMis so mixed as to make the case turn on the PLIED REPEAL. presumption as to legitimacy raised by the

Acts 1897, c. 57, made it unlawful to exlaw in favor of the legitimacy of one born in plode

dynamite in any stream, lake, or pond,

Acts 1907, wedlock, as we have found that Fred Jack- c. 489, made it unlawful to kill or wound by the son was.

use of dynamite any fish in any stream, lake, The earlier rule of the common law was river, or pond, and made any violation a misde that the presumption of legitimacy growing sentment under the 1897 statute.

meanor. Defendant was convicted under a pre

Held, that out of birth during wedlock was so far con- the 1897 act was impliedly repealed by that of