NOTES TO DECISIONS

1. Beneficiary of Section.

The right conferred by this section is given to the nominal complainant or plaintiff, not to the defendant. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

2. Pauper's Oath.

The real plaintiff may be required to give security for costs, but if he is a resident of Tennessee he has the right to take the pauper's oath. Metropolitan Life Ins. Co. v. Brown, 25 Tenn. App. 514, 160 S.W.2d 434, 1941 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1941).

Collateral References. 59 Am. Jur. 2d Parties §§ 24, 38-44, 255.

67A C.J.S. Parties §§ 13-15.

Alien enemy as real party in interest, right to maintain suit. 137 A.L.R. 1338, 147 A.L.R. 1298, 148 A.L.R. 1384, 149 A.L.R. 1452, 150 A.L.R. 1418, 154 A.L.R. 1447.

Amendment of verdict as to parties, reassembling jury after discharge, for purpose of. 66 A.L.R. 549.

Automobile liability insurance, who may recover indemnity granted by omnibus coverage clause. 106 A.L.R. 1251, 126 A.L.R. 544, 15 A.L.R.3d 711.

Automobile, liability of one undertaking to repair, for injury to third person. 52 A.L.R. 857.

Bank directors or officers, who may maintain action against, for civil liability for damages resulting from false reports or statements. 114 A.L.R. 478.

Bank in charge of liquidating officer who refuses or fails to enforce liability of person to bank, right of creditors to maintain action for that purpose, and conditions of such right. 97 A.L.R. 169, 116 A.L.R. 783.

Beneficiaries of decedent's estate, right of, to maintain action independent from executor or administrator to enforce contracts or other transactions entered into by executor or administrator or behalf of the estate. 135 A.L.R. 1130.

Bond given by owner of property constructing building thereon to mortgagee, right of person furnishing material or labor to maintain action. 77 A.L.R. 177, 118 A.L.R. 57.

Bondholder's right to maintain action against trustee for money received by trustee to discharge bond or coupon. 64 A.L.R. 1186.

Bonds of municipality, taxpayer's right of action for sale at less than par, in violation of statute. 91 A.L.R. 72, 162 A.L.R. 396.

Boundary line, private, necessary or proper parties in suit or proceeding for establishment of. 73 A.L.R.3d 948.

Branch banks, proper name in which to sue. 50 A.L.R. 1355, 136 A.L.R. 471.

Bucket shops or bucket-shop transactions, violation of statute relating to, as ground of action by customer or patron. 113 A.L.R. 853.

Care to be exercised or precautions to be taken for protection of third persons, availability in action by third person for damages against public contractor, of provisions in contract as to. 69 A.L.R. 522.

Carriers, right of assignee of aggrieved party to maintain action to recover excessive freight charges. 13 A.L.R. 298.

Charitable trust, right of trustees to maintain suit to administer or enforce. 62 A.L.R. 901, 124 A.L.R. 1237.

Collective labor agreements, who may enforce. 95 A.L.R. 51.

Contingent or defeasible future interest, right of owner of, to maintain action for relief in respect of acts affecting property. 144 A.L.R. 769.

Conveyance fraudulently procured from decedent, right of executor or administrator to set aside. 53 A.L.R. 364.

Corporate dividends wrongfully paid, action on behalf of creditors to recover. 55 A.L.R. 120, 76 A.L.R. 885, 109 A.L.R. 1381.

Corporate name, right of bondholders to maintain action to prevent use by another corporation. 66 A.L.R. 1030, 72 A.L.R.3d 8.

Corporate officer's liability for incurring excessive debts, individual creditor's right to enforce. 43 A.L.R. 1147.

Corporate stock, shares as within statute enabling assignee to maintain action in his own name. 193 Iowa 1096, 184 N.W. 823, 1922 Iowa Sup. LEXIS 168, 23 A.L.R. 1322.

Corporation's creditors, right to recover dividends wrongfully paid, or to enforce liability of directors for wrongfully declaring them. 55 A.L.R. 116, 76 A.L.R. 885, 109 A.L.R. 1381.

Corporation's liability for debts of predecessor, old creditors' right to sue on. 149 A.L.R. 787.

Decedent's estate, right of creditors to maintain action in interest of. 158 A.L.R. 729.

Delay or mistake, right of undisclosed principal to recover against telegraph company because of. 72 A.L.R. 1198.

Devise or bequest of property as compensation for services, parties in action for breach of contract as to. 69 A.L.R. 104.

Dividends, suit to compel payment. 55 A.L.R. 133, 76 A.L.R. 885, 109 A.L.R. 1381.

Dividends wrongfully paid, suit to recover, or to enforce liability of directors for wrongfully declaring them. 55 A.L.R. 73, 76 A.L.R. 885, 109 A.L.R. 1381.

Divorce or separation, enforcement by third person as beneficiary of contract between husband and wife to prevent or end. 11 A.L.R. 287.

Easement, right of reversioner or remainderman to maintain action or suit in respect of. 138 A.L.R. 1006.

Eminent domain, wife or widow as necessary party to proceeding to condemn her husband's real property. 5 A.L.R. 1347, 101 A.L.R. 697.

Enforceability by purchaser of business, of covenant of third person with his vendor not to engage in similar business. 4 A.L.R. 1078, 22 A.L.R. 754.

Enforcement of option contained in lease for purchase of property. 38 A.L.R. 1162.

Escrow, proper party defendant in action for refusal of depository to deliver instrument or property placed in, notwithstanding performance of conditions of delivery. 95 A.L.R. 298.

Excessive freight charge, who may maintain action to recover back. 13 A.L.R. 289.

Explosives, violation of statute as ground of action in favor of one injured in person or property by explosion. 12 A.L.R. 1309.

Fire or marine policy taken out by bailee, warehouseman, or carrier, right of owner to sue. 61 A.L.R. 720.

Guaranty, who may enforce. 41 A.L.R.2d 1213.

Harassment or garnishment by employee's creditor as constituting misconduct connected with employment so as to disqualify employee from unemployment compensation. 86 A.L.R.2d 1013.

Heir or next of kin, standing to attack gift or conveyance made by ancestor in his lifetime, as affected by will by which he is disinherited in whole or part. 112 A.L.R. 1405.

Illegitimate child, validity and construction of putative father's promise to support or provide for. 20 A.L.R.3d 500.

Indemnity or liability insurer, parties plaintiff in action against, by injured person, under statutory or policy provisions. 85 A.L.R. 41, 106 A.L.R. 516.

Inducing breach of contract, who may maintain action for. 84 A.L.R. 49, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078.

Insurance agents or brokers, proper party to maintain action to enforce statutory liability of, in respect of policies of foreign insurance companies not authorized to do business in the state. 131 A.L.R. 1097.

Insurance, right of third person to sue upon promise made by beneficiary to insured, to pay proceeds to third person. 102 A.L.R. 594.

Insurance, who may enforce policy containing facility of payment clause. 166 A.L.R. 28.

Invalid or unenforceable contract, right of taxpayer to recover back payments made under. 140 A.L.R. 583.

Legislative body of state or municipality, who may obtain injunction against. 140 A.L.R. 454.

Local improvements, power of municipality to transfer or assign its right to enforce assessment or lien for. 55 A.L.R. 667.

Massachusetts or business trusts. 88 A.L.R.3d 704.

Mere possession in plaintiff as basis of action for wrongfully taking or damaging personal property. 150 A.L.R. 163.

Officers or directors, parties plaintiff in action to enforce statutory liability of, in respect of loans or advances to stockholders or officers. 129 A.L.R. 1261.

Option to purchase contained in lease, right of assignee to enforce. 38 A.L.R. 1163.

Parties to action for specific performance of contract for conveyance of realty after death of party to contract. 43 A.L.R.2d 938.

Partner, party plaintiff in action against, for profits earned subsequently to death or dissolution. 55 A.L.R.2d 1391.

Privacy, who may assert right of. 138 A.L.R. 22, 168 A.L.R. 446, 11 A.L.R.3d 1296, 57 A.L.R.3d 16.

Private right of action for violation of Civil Rights Act. 171 A.L.R. 920.

Promoters, right of corporation to sue on contract made before its organization. 66 A.L.R. 1425.

Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance. 13 A.L.R.3d 229.

Reciprocal insurance association, proper party plaintiff in actions by, or on behalf of. 94 A.L.R. 851, 141 A.L.R. 765, 145 A.L.R. 1121.

Recovery by conditional seller or buyer, or person standing in his shoes, against third person for damage or destruction of property. 67 A.L.R.2d 582.

Refusal to deal with corporation as giving stockholder right of action. 59 A.L.R. 1099.

Resale price, right of manufacturer to enforce contract as to, made by retailer with middleman. 7 A.L.R. 488.

Rescission of deed or land contract for grantee's breach of agreement to support grantor, right of heirs of grantor to maintain suit for. 112 A.L.R. 720.

Right of beneficiary to enforce contract between third persons to provide for him by will. 2 A.L.R. 1193, 33 A.L.R. 739, 73 A.L.R. 1395.

Right of one brought into action as a party by original defendant upon ground that he is or may be liable to latter in respect to matter in suit, to raise or contest issues with plaintiff. 78 A.L.R. 327.

Right of plaintiff suing jointly with others to separate trial or order of severance. 99 A.L.R.2d 670.

Right of pledgor of commercial paper to maintain action thereon in his own name. 43 A.L.R.3d 824.

Right of substitution of successive personal representatives as party plaintiff. 164 A.L.R. 702.

Right of third person or his creditors or representatives to enforce contract made by defendant to induce promisee to enter into contractual or other relations with a third person. 129 A.L.R. 172.

Right of third person to enforce contract between others for his benefit. 81 A.L.R. 1271, 148 A.L.R. 359.

Rights of beneficiary under obligation or deposit payable to him at death of holder or depositor if not previously paid to latter. 131 A.L.R. 967, 155 A.L.R. 174, 158 A.L.R. 1464, 161 A.L.R. 304.

Sealed instrument, right of third person to maintain action at law. 47 A.L.R. 5, 170 A.L.R. 1299.

Shares of corporate stock as within statute enabling assignee to maintain action in his own name. 193 Iowa 1096, 184 N.W. 823, 1922 Iowa Sup. LEXIS 168, 23 A.L.R. 1322.

Subcontractor, liability for damages to or loss of profits of contractee in principal contract who discontinues same. 48 A.L.R. 458.

Subrogation of insurer to extent of loss paid by it, right of, as affecting question of proper party plaintiff in action against tort-feasor for damage to insured property. 96 A.L.R. 864, 157 A.L.R. 1242.

Subscription to stock in corporation to be formed, who may enforce. 61 A.L.R. 1504.

Tax wrongfully exacted on shares of its stock, corporation paying as proper party to maintain action for its recovery. 84 A.L.R. 107.

Third person, remedy of mortgagee or other holder of lien on real property against, for damage to or trespass on property. 37 A.L.R. 1120, 48 A.L.R. 1156.

Timber contract, necessary and proper parties in action growing out of delay in performance of. 164 A.L.R. 461.

Title, joinder of claims to separate parcels in suit to quiet title, or to remove cloud on, or to determine adverse claims of land. 118 A.L.R. 1400.

Trust receipt, right of one giving, to maintain action for purchase-price against one to whom he sells. 49 A.L.R. 314, 87 A.L.R. 302, 101 A.L.R. 453, 168 A.L.R. 359.

United States war savings bonds, judicial decisions regarding. 168 A.L.R. 245.

Vendee under executory contract, right to bring action against third person for damage to land. 151 A.L.R. 938.

Ward's right, after majority, to maintain action on contracts entered into by guardian on ward's behalf. 102 A.L.R. 269.

Waste, who may maintain action to recover multiple damages against tenant committing. 46 A.L.R. 774.

Water user as necessary party to litigation involving right of ditch or canal company or irrigation or drainage district from which he takes water. 100 A.L.R. 561.

Who may be regarded as injured in his business or property within provision of antitrust acts as to persons who may recover damages resulting from violation of the act. 139 A.L.R. 1017.

Zoning ordinance, injunction at suit of property owners against violation of. 129 A.L.R. 885.

Parties 6.

NOTES TO DECISIONS

1. Effect of Statute.

For the failure of a public official to discharge any of his duties, he is civilly responsible to the party injured and all parties aggrieved may maintain actions upon his bond to recover damages sustained by them. State use of Cardin v. McClellan, 113 Tenn. 616, 85 S.W. 267, 1904 Tenn. LEXIS 55 (1904).

This section extended the right of action against public officers only to the extent of allowing the injured party to sue without an assignment from the payee of the bond, and did not otherwise extend the right to sue such officers. Brown v. Brown, 16 Tenn. App. 230, 64 S.W.2d 59, 1933 Tenn. App. LEXIS 6 (Tenn. Ct. App. 1933).

The effect of this statute is equivalent to an assignment of the bond to the person aggrieved to the extent of his damage, not exceeding, of course, the penalty of the bond. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

2. Real Plaintiff.

Any party aggrieved can sue on the bond in the name of the state, and in such cases the suing party is considered the real plaintiff. Tennessee use of United States v. Hill, 60 F. 1005, 1894 U.S. App. LEXIS 2152, 24 L.R.A. 170 (6th Cir. Tenn. 1894).

3. —Diversity of Citizenship.

The fact that suit to recover against a sheriff and his sureties, for the wrongful killing of one under arrest, was brought by a nonresident administratrix in the name of the state, did not prevent diversity of citizenship since the state was only a nominal party and for the purpose of jurisdiction the administratrix was the real party in interest. Chambers v. Anderson, 58 F.2d 151, 1932 U.S. App. LEXIS 4660 (6th Cir. Tenn. 1932).

4. Naming State as Party — Necessity.

A bill in chancery may be maintained in the name of the beneficiaries under an administrator's bond and his bond as special commissioner to sell decedent's lands in a suit in chancery, without making the state a party thereto, though both bonds are made payable to the state of Tennessee. Brandon v. Mason, 69 Tenn. 615, 1878 Tenn. LEXIS 145 (1878).

By both statute and judicial interpretation, the person for whose use the suit is brought is the real complainant of record, and, in chancery, is the real complainant in fact, and while technically a suit on any of the bonds mentioned in state for the use of the party aggrieved, nevertheless the practice of suing directly in the name of the real complainant, and not in the name of the state, has long prevailed, and been directly sanctioned by the supreme court of the state. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

5. Suit by State for Use of County.

Where suit on an official bond is expressly authorized by resolutions of the quarterly county court (now county legislative body), it may properly be brought in the name of the state for the use of the county. State use of Giles County v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 1928 Tenn. LEXIS 73 (1929).

6. Amendment to Make State Nominal Plaintiff.

A declaration failing to name the state as party plaintiff may be amended, upon application, so as to correct the error, and, if leave is granted so to amend and the cause is tried as if the amendment had been made, even though it is not made, the necessity for making it is obviated. Chambers v. Anderson, 58 F.2d 151, 1932 U.S. App. LEXIS 4660 (6th Cir. Tenn. 1932).

7. Particular Bonds.

8. —Bond for Return of Child.

Where bond is given in compliance with decree of court to insure the return of a child to the father and the condition of the bond is broken, the party may sue on bond for his own use. State ex rel. Hooten v. Hooten, 1 Tenn. App. 154, — S.W. —, 1925 Tenn. App. LEXIS 23 (Tenn. Ct. App. 1925).

9. —Executor's Bond.

The period of liability of an executor's surety is the duration of administration and until it has been closed in manner prescribed by law, and the presumption is that surety contracted with reference to law as it existed at time of bond's execution, with applicable law becoming a part of the bond. Hartford Acci. & Indem. Co. v. White, 22 Tenn. App. 1, 115 S.W.2d 249, 1937 Tenn. App. LEXIS 70 (Tenn. Ct. App. 1937).

10. —Mine Inspector's Bond.

A district mine inspector was civilly responsible to the parties injured by reason of failure to perform his duties, and any party aggrieved could maintain an action upon the bond of such inspector to recover the damages sustained by him. State use of Lay v. Clymer, 27 Tenn. App. 518, 182 S.W.2d 425, 1943 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1943).

11. —Ne Exeat Bond.

Suit to recover on ne exeat bond in divorce proceeding could be brought directly by wife for her own use and the use of the children though bond was payable to state. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

12. Declarations of Nominal Plaintiff — Admissibility.

Declarations or admissions of nominal plaintiff were inadmissible, where made after he has parted with his interest in the subject matter of the suit, and the party for whose use the suit was prosecuted had acquired the exclusive right in the same subject matter. Moyers v. Inman, 32 Tenn. 80, 1852 Tenn. LEXIS 19 (1852).

Collateral References. 63 Am. Jur. 2d Public Officers §§ 463-465.

67 C.J.S. Officers § 303.

Officers 140.

NOTES TO DECISIONS

1. Construction.

A deserted wife can maintain suit in her husband's name, upon any cause of action that had accrued to him, and which he could have asserted before the desertion, and she may sue in her own name upon any cause of action accruing subsequent to the desertion. Hester v. Hester, 88 Tenn. 270, 12 S.W. 446, 1889 Tenn. LEXIS 46 (1889); Smith v. Smith, 98 Tenn. 101, 38 S.W. 439, 1896 Tenn. LEXIS 207, 60 Am. St. Rep. 838 (Tenn. Dec. 1896).

2. Effect of Statute.

The statute operated to restore the wife to the rights of a femme sole. Cocke v. Garrett, 66 Tenn. 360, 1874 Tenn. LEXIS 144 (1874); Chavin v. Mayor of Nashville, 1 Tenn. Civ. App. (1 Higgins) 317 (1910).

The statute giving married women, who have been deserted by their husbands, the right to sue, did not make a municipal corporation liable for the tort of its police officers in making an arrest. Chavin v. Mayor of Nashville, 1 Tenn. Civ. App. (1 Higgins) 317 (1910).

3. Abandonment.

Where the husband is dissipated, lives apart, and contributes nothing to the wife's support which comes from a business in which she engages, there is an abandonment. Yeatman, Shields & Co. v. Bellmain, 74 Tenn. 488, 1880 Tenn. LEXIS 278 (1880).

The fact of abandonment is not confined to the time of actual separation. Hester v. Hester, 88 Tenn. 270, 12 S.W. 446, 1889 Tenn. LEXIS 46 (1889).

4. Wife as Prosecutrix Against Husband.

Under this section, a deserted wife may be prosecutrix on an indictment against her husband for nonsupport. Moye v. State, 139 Tenn. 680, 202 S.W. 919, 1917 Tenn. LEXIS 137 (1917).

A wife living apart from her husband may be prosecutrix of her husband for his criminal libel of herself. State v. Kirby, 167 Tenn. 307, 69 S.W.2d 886, 1934 Tenn. LEXIS 1 (1934).

5. Separate Estate of Wife — Liability.

The wife's separate estate is liable for debts incurred in a business conducted by her after abandonment. Yeatman, Shields & Co. v. Bellmain, 74 Tenn. 488, 1880 Tenn. LEXIS 278 (1880); Sam Levy & Co. v. Davis, 125 Tenn. 342, 142 S.W. 1118, 1911 Tenn. LEXIS 31 (1911).

Where married woman was sued for tort under the provisions of this section and judgment obtained against her, her separate estate held by her under a deed which provided she could sell and dispose of same as a femme sole was subject to execution at law for satisfaction of the judgment. Nardi v. Monteverde, 2 Tenn. Civ. App. (2 Higgins) 288 (1912).

6. Disposal of Property Held as Tenants by Entirety.

Where husband, without consent of the wife, disposed of property owned by them as tenants by the entirety and then absconded, the wife could maintain an action under this section to recover the interest wrongfully withheld from her. Moore v. Chase, 25 Tenn. App. 239, 156 S.W.2d 84, 1941 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1941).

7. Costs — Adjudging against Wife.

A judgment may be rendered against the wife for costs. State v. Travis, 1 Shan. 593 (1876).

Costs of a frivolous or malicious indictment may be taxed against married woman, particularly when living apart. State v. Kirby, 167 Tenn. 307, 69 S.W.2d 886, 1934 Tenn. LEXIS 1 (1934).

8. Interspousal Tort Immunity Abolished.

Interspousal tort immunity is totally abolished in this state and all decisions to the contrary are overruled. Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

Collateral References. 41 Am. Jur. 2d Husband and Wife § 538.

41 C.J.S. Husband and Wife § 422.

NOTES TO DECISIONS

1. Injuries Covered.

The injury to a minor child, for which the parent may sue under this section, must be construed to mean or refer to an injury to the person of the child. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

2. Emancipation.

A minor, who has not left the father's home, but has remained as a member of the family, and, out of his wages which his father has permitted him to earn and receive, has contributed to the family expenses through voluntary gifts to his mother, but has not paid for meals or lodging as a boarder, and has never been formally set free by his father, is not completely emancipated, so as to bar a suit by the father for loss of his services caused by injury. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

Where the emancipation of a minor is complete, the father's right to maintain an action for loss of services due to injuries is cut off, the act affecting the entire unspent period of minority and being one that is not revocable at the father's instance. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

A minor, who was living away from home and working when injured, but who, after her injuries, returned to her home where she remained until able to return to work, was a member of the father's family. Baskin & Cole v. Whitson, 8 Tenn. App. 578, — S.W.2d —, 1928 Tenn. App. LEXIS 181 (Tenn. Ct. App. 1928).

3. —Partial Emancipation.

A father can recover for the loss of his minor child's services, although such child has been partially emancipated. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

The partial emancipation of an infant is revocable by the father. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

4. —Burden of Proof.

In an action by the parent for loss of services of his minor child caused by injury, the burden of proof to establish a complete emancipation is upon the defendant. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

5. Married Infants.

A mother of a married infant son has no right to bring action to recover damages for his wrongful death, since the right to bring such action is in the widow of decedent as his representative, where decedent was not at the time of the fatal accident and death a member of his mother's family. McWhorter v. Gibson, 19 Tenn. App. 152, 84 S.W.2d 108, 1935 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1935).

Where an accident occurred in Alabama, resulting in the death of a 19 year old husband, it was presumed in absence of a showing to the contrary that the Alabama law was the same as Tennessee law and decedent's mother is not entitled to sue, in Tennessee, for damages for the death of her such infant married son in Tennessee, but decedent's wife has the right to sue to recover damages for his death. McWhorter v. Gibson, 19 Tenn. App. 152, 84 S.W.2d 108, 1935 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1935).

6. Recovery by Child.

The right of a parent to maintain suit is not affected by a previous recovery by the child for the injuries sustained. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

Where a child's father is civilly dead and the child's mother died before the accident in question, the child is entitled to sue and recover for necessary expenses required in treatment of personal injuries resulting from the accident in question. Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631, 1940 Tenn. LEXIS 67 (1941).

7. Damages.

Upon a proper construction of this section, the recovery of either parent entitled to sue for an injury to a minor child is limited to the expenses and the actual loss of services resulting from an injury to the minor child, not resulting in his death. Tennessee Cent. R.R. v. Doak, 115 Tenn. 720, 92 S.W. 853, 1905 Tenn. LEXIS 101 (1905).

The mother's suit as administratrix of her deceased minor son to recover damages for his wrongful death is a suit in the right of the deceased himself, and, in such suit, an amendment seeking to recover damages for the loss of the services of the deceased during his minority is wholly unauthorized. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

Though the parent may not be able to show by exact calculation the amount of damages resulting from the loss of services of the minor child, the suit of the parent may be maintained, and a recovery, if not excessive, will be allowed to stand. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

Trial court erred by denying the minor's motion to amend the complaint under Tenn. R. Civ. P. 15.01 only to the extent that he could be permitted to assert pre-majority medical expenses that were paid by him or that he was legally obligated to pay. Blackwell ex rel. Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 2017 Tenn. App. LEXIS 6 (Tenn. Ct. App. Jan. 9, 2017), appeal denied, Blackwell v. Sky High Sports Nashville Operations, LLC, — S.W.3d —, 2017 Tenn. LEXIS 305 (Tenn. May 18, 2017).

8. Prior Judgment.

Where the mother has exclusive custody and is entitled to the services of the child injured in an automobile accident, a prior judgment against the father for damages arising out of the same accident does not affect the cause of action of the mother for loss of services and expenses. Boring v. Miller, 215 Tenn. 394, 386 S.W.2d 521, 1965 Tenn. LEXIS 627 (1965).

9. Parties.

Father could maintain suit under this section for expenses incurred in payment of medical expenses resulting from injury of minor son in automobile accident and was not required to join mother as party plaintiff under the provisions of § 34-101 (now § 34-1-101 (repealed)). Whitley v. Hix, 207 Tenn. 683, 343 S.W.2d 851, 1961 Tenn. LEXIS 386 (1961).

10. Noncustodial Parents.

The trial court properly awarded damages to noncustodial parent representing medical expenses he testified he incurred on behalf of the minor plaintiff as a result of an accident. Bowers v. City of Chattanooga, 855 S.W.2d 583, 1992 Tenn. App. LEXIS 1049 (Tenn. Ct. App. 1992).

Trial court properly granted summary judgment in favor of an operator and sponsor of a club for boys and girls (the defendants) for lack of standing because a father was statutorily barred from bringing any claim to recover medical expenses or loss of his child's service resulting from an injury where he was not a primary residential parent and the father failed to present evidence or assert that he had paid or was responsible for the child's medical expenses. Neale v. United Way of Greater Kingsport, — S.W.3d —, 2015 Tenn. App. LEXIS 607 (Tenn. Ct. App. July 28, 2015).

Father's motion to demand compulsory joinder of the mother was relevant only insofar as he was barred from bringing a claim on his own behalf (as a non-custodial parent) for expenses and loss of their child's service. Neale v. United Way of Greater Kingsport, — S.W.3d —, 2015 Tenn. App. LEXIS 607 (Tenn. Ct. App. July 28, 2015).

Collateral References. 59 Am. Jur. 2d Parent and Child §§ 112, 129.

67A C.J.S. Parent and Child §§ 137-140, 147; 67A C.J.S. Parties §§ 13-15, 58-60.

Action for death of unborn child. 84 A.L.R.3d 411.

Act or omission which would not support an action for damages by person injured as ground of action by parent for consequential damages. 94 A.L.R. 1211.

Appearance of parent as next friend, guardian, or guardian ad litem in an action to recover for injury to child, or verdict or judgment in such action, as affecting right of parent to recover for consequential damages to himself on account of injury to child. 116 A.L.R. 1087.

Award of custody of child to another as affecting right of parent to recover for injury to minor child. 147 A.L.R. 482.

Funeral expenses, parent's right of recovery at common law from tortfeasor causing child's death. 3 A.L.R.2d 932.

Parent's right of action for prenatal injury of child. 40 A.L.R.3d 1222.

Recovery by tenant of damages for injury to child as result of wrongful eviction. 17 A.L.R.2d 936.

Right of parent who consents to, or acquiesces in, employment of child under statutory age to recover for latter's injury or death in such employment. 23 A.L.R. 635.

NOTES TO DECISIONS

1. Nature and Effect of Statute.

The statute altered the common law rule so that an obligee may now sue the surviving obligors without the necessity of joining the representatives of a deceased obligor in the action, and if one of the defendants die pending the suit his death may be suggested and the caused proceeded with against the survivors. Claiborne v. Goodloe, 3 Tenn. 391, 1 Cooke, 1813 Tenn. LEXIS 43 (1813).

All joint obligations and promises are made joint and several, and a note joint in its terms is a joint and several obligation, and separate and several suits can be maintained against the makers thereof. Judgment may be rendered against a surety alone. Trustees of McMinn Academy Trustees v. Reneau, 32 Tenn. 94, 1852 Tenn. LEXIS 25 (1852); Hawkins v. Humble, 45 Tenn. 531, 1868 Tenn. LEXIS 43 (1868).

Although the statute makes obligations joint and several so that all parties liable in such obligations are not now in many cases necessary parties, yet they are none the less proper parties. Craig v. McKnight, 108 Tenn. 690, 69 S.W. 322, 1902 Tenn. LEXIS 16 (1902).

Estate was the plaintiff, not the beneficiary, and decedent had no obligation under the promissory note, and when her real estate which was pledged as security for the promissory note was sold with the proceeds applied to the note obligation, the estate became entitled to complete indemnity against each and every one of the obligors on the note; debtors, as makers of the note obligation, were jointly and severally liable. Estate of Hindmon v. Jones, — S.W.3d —, 2008 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 27, 2008).

2. Declaration.

A declaration against the defendants summoned, without noticing those not summoned, is an informal dismissal as to them, and not a discontinuance as to those summoned and declared against. Pollard v. Huston, 75 Tenn. 689, 1881 Tenn. LEXIS 171 (1881).

3. Nature of Obligation in Particular Instances.

4. —Bonds.

The common obligors on several different bonds may all be sued in one action, though there are others on the different bonds and not on all the bonds, who are not sued, for the bonds sued on are to be regarded as the bonds of the defendants alone. Trustees of McMinn Academy Trustees v. Reneau, 32 Tenn. 94, 1852 Tenn. LEXIS 25 (1852).

A bond of indemnity to secure the obligees “against all claims or suits at law, or both,” is a joint and several obligation, and protects the obligees against suits and judgments for mechanic's lien on the property embraced in the contemplation of the bond. Wilson v. Davidson, 3 Cooper's Tenn. Ch. 536 (1877).

5. —Notes.

6. — —Notice of Nonpayment to One Joint Indorser.

One of two joint indorsers of a note was bound by notice of nonpayment given to himself alone. Jarnigen v. Stratton, 95 Tenn. 619, 32 S.W. 625, 1895 Tenn. LEXIS 137, 30 L.R.A. 495 (1895).

7. — —Unauthorized Compromise by One Joint Maker.

Where a note was executed by two joint makers, and the consideration failed so that there could be no recovery on the note, after which one of the makers compromised the matter with the payee by the entry of a credit on the note, there could be no recovery against the other maker for the balance, where he was not a party to such compromise agreement, which was made without his knowledge or consent. Hawkins v. Humble, 45 Tenn. 531, 1868 Tenn. LEXIS 43 (1868).

8. — —Simultaneous Suits against Resident and Nonresident Comakers in Different Courts.

A resident, as one of the makers of a note, could be sued by summons in one court, and a nonresident, as a comaker of the same note, at the same time, be proceeded against by attachment and publication in another court; and the attachment was not abatable, though the suit by service of process was still pending. Sims v. McNeil, 29 Tenn. 500, 1850 Tenn. LEXIS 22 (1850).

9. —Partnership Obligations.

Partnership debts are several as well as joint, and each member of the firm is individually liable therefor, especially in view of this section. House v. Thompson, 40 Tenn. 512, 1859 Tenn. LEXIS 147 (1859).

A joint suit against partners could be dismissed as to some and prosecuted to judgment against the others. Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870).

The liability of partners in joint obligations is both joint and several. Doggrell v. Great Southern Box Co., 206 F.2d 671, 1953 U.S. App. LEXIS 2794 (6th Cir. Tenn. 1953), vacated, Doggrell v. Southern Box Co., 208 F.2d 310, 1953 U.S. App. LEXIS 3054 (6th Cir. 1953).

10. —Personal Representative — Suit Against.

Obligee may sue representative of deceased obligor with other obligors or separately. Claiborne v. Goodloe, 3 Tenn. 391, 1 Cooke, 1813 Tenn. LEXIS 43 (1813); Saunders v. Wilder, 39 Tenn. 577, 1859 Tenn. LEXIS 281 (Tenn. Apr. 1859).

Heir at law was bound by a judgment against the executor of a deceased partner and the surviving partner, upon a bill filed to subject the partnership land to the satisfaction of the judgment. Logan v. Greenlaw, 25 F. 299, 1885 U.S. App. LEXIS 1769 (C.C.D. Tenn. 1885).

11. —Sureties.

Where the obligation was joint and several, the liability of the surety did not depend upon the rendition of a judgment against the principal. Martin Furniture Co. v. Massey, 135 Tenn. 338, 186 S.W. 451, 1916 Tenn. LEXIS 30 (1916).

12. — —Part of Sureties Not Sued.

In a bill against a former county trustee and a part of his sureties on his official bond, the defendant sureties cannot complain that certain of their cosureties, although mentioned in the bill, were not made defendants. State ex rel. Stewart v. Follis, 140 Tenn. 513, 205 S.W. 444, 1917 Tenn. LEXIS 157 (1918).

13. — —Dismissal as to One Surety.

In an action against the sheriff and his sureties on his official bond, the dismissal of the suit by the plaintiff as to one of the sureties will not affect his right to proceed against the other sureties. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879).

14. —Warranty of Ancestor — Liability of Heirs.

Heirs are but representatives of ancestor and they are jointly liable on his covenant of warranty. House v. Mitchell, 19 Tenn. 138, 1838 Tenn. LEXIS 35 (1838).

15. —Stockholders.

Suit by business brokers against all stockholders of corporation to recover commissions allegedly due on sale of all capital stock of the corporation was based on separate asserted rights against each stockholder for separate commissions and amounted to misjoinder of parties and actions and would abate as to stockholders served by counterpart summons after suit was commenced in county where a single stockholder resided. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

16. Judgment.

An action commenced against two defendants, with a declaration against both, cannot be prosecuted to judgment against one, without any disposition of the case as to the other, and such judgment may be arrested. Greer v. Miller, 2 Tenn. 187, 1812 Tenn. LEXIS 8 (1812).

A judgment against one obligor is not a merger of the contract which precludes a subsequent suit brought against the others. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843).

A judgment against one obligor or partner is not a bar in a suit against the other or others. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843); Nichols v. Cheairs, 36 Tenn. 229, 1856 Tenn. LEXIS 87 (1856); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

The defendants against whom the judgment is valid cannot complain because the judgment is erroneous as to one or more of their codefendants. Bently v. Hurxthal, 40 Tenn. 378, 1859 Tenn. LEXIS 105 (1859); Webbs v. State, 44 Tenn. 199, 1867 Tenn. LEXIS 32 (1867); Ouly v. Dickinson & Fegan, 45 Tenn. 486, 1868 Tenn. LEXIS 36 (1868); Nashville St. Ry. v. Gore, 106 Tenn. 390, 61 S.W. 777, 1900 Tenn. LEXIS 173 (1900).

17. Process.

The privilege of issuing a counterpart summons under § 20-2-108 to a county other than the county of suit must be based upon a proper joinder of defendants who are (1) jointly liable, or (2) severally liable on the same instrument or judgment, and may not be based upon a misjoinder of parties. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

Collateral References. 17 Am. Jur. 2d Contracts §§ 298-301; 59 Am. Jur. 2d Parties §§ 107, 112, 119-122.

17A C.J.S. Contracts §§ 352, 353.

Oral agreement between joint obligors as to extent of liability inter se. 65 A.L.R. 822.

Pledge to secure joint obligation and other debts or liabilities to pledgee, debts covered by. 87 A.L.R. 618.

Soldiers' and Sailors' Civil Relief Act. 147 A.L.R. 1368, 148 A.L.R. 1395, 149 A.L.R. 1463, 150 A.L.R. 1428, 151 A.L.R. 1460, 152 A.L.R. 1457, 153 A.L.R. 1429, 154 A.L.R. 1455, 155 A.L.R. 1456, 156 A.L.R. 1455, 157 A.L.R. 1454, 158 A.L.R. 1456, 35 A.L.R. Fed. 649.

NOTES TO DECISIONS

1. Nature of Statute.

This section relates alone to procedure. Jarnigen v. Stratton, 95 Tenn. 619, 32 S.W. 625, 1895 Tenn. LEXIS 137, 30 L.R.A. 495 (1895).

2. Joint Obligation — Effect of Misconstruction.

The legal effect of a joint promise, by the makers of a note, in clear and unambiguous terms, to pay, in solido, the full amount of the note, could not be modified by a mistaken belief of the holders and makers that each maker is liable only for a proportional part of the full amount. Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

3. Joint Obligors — Suit and Judgment Against Part.

Suit and judgment against part of the joint obligors or partners is no merger of the obligation, and is no bar to a suit subsequently brought against the remaining obligors or partners, where there has been no satisfaction. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843); Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

A suit against partners may be dismissed as to some and prosecuted against the others. Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

4. Notes — Misjoinder of Defendants.

The maker and endorser of a promissory note cannot be sued with a guarantor whose guarantee was on a separate paper, and who was not a party to the note. This rule is based upon the fact that there was no joint liability created by the guaranty, and the suit was a palpable misjoinder of parties. Eakin & Co. v. Burger, 33 Tenn. 417, 1853 Tenn. LEXIS 66 (1853).

5. Partnerships.

If one of two partners brings a suit upon a partnership demand, the defendant may take advantage of it at the trial, under the general issue. Coffee v. Eastland, 3 Tenn. 158, 1 Cooke, 1812 Tenn. LEXIS 44 (1812).

Payee of note executed by partnership could sue individual member without naming other members. Hyman Gratz & Co. v. Stump, 3 Tenn. 493, 1 Cooke, 1814 Tenn. LEXIS 42 (1814).

If one sued on a partnership demand failed to disclose the names of the other partners by a plea in abatement, judgment might be had against him alone as if the demand were single. Coffee v. Eastland, 3 Tenn. 158, 1 Cooke, 1812 Tenn. LEXIS 44 (1812); Southern Ry. v. McNabb, 130 Tenn. 197, 169 S.W. 757, 1914 Tenn. LEXIS 16, 1915B L.R.A. (n.s.) 761 (1914).

In an action upon a partnership's contract all partners at the time it was made should be joined as plaintiffs, even after dissolution. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

A dormant partner may or may not be joined in suit by partnership and a failure to join him as plaintiff is no ground for abatement, nonsuit or writ of error, such partners being proper but not necessary parties plaintiff. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

Where a contract is made in the name of one partner but for the benefit of all, all should join in a suit thereon. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

When the partnership occupies, substantially, the position of an undisclosed principal, the action may be by that partner in whose name the contract was made alone, or by all. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

Where a contract is made with one partner in his individual capacity, he must sue alone, although he may, in fact, have been acting for the benefit of his firm. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

In an action on a contract of carriage one who had bought several cows in the shipment under an agreement to show profits equally, was a dormant partner, as the contract was in the name of the other and active partner, and he need not be joined as party plaintiff. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

6. —Individual and Partnership Creditors — Rights Unaffected.

The statute did not alter or change general rule that individual creditors were entitled to priority from the individual effects of the debtors, and the partnership creditors from the effects of the firm of which he is a member. Jackson Ins. Co. v. Partee, 56 Tenn. 296, 1872 Tenn. LEXIS 144 (1872).

7. —Setting Off Partnership Debt Against Debt to Partner.

This statute did not affect the rule that a partnership debt could not be set off at law against a debt due to a plaintiff who was a member of the partnership. Flint v. Tillman, 49 Tenn. 202, 1870 Tenn. LEXIS 212 (1870).

8. —Surviving Partner as Personal Representative of Deceased Partner.

Suit against one as surviving partner and as the personal representative of deceased partner could be maintained. Trundle v. Edwards & Harris, 36 Tenn. 572, 1857 Tenn. LEXIS 58 (1857).

9. Principal and Sureties — Suits as to.

Separate or several judgments nisi may be taken and prosecuted to final judgments against the principal and sureties upon a joint and several recognizance, entered into by a prisoner and his sureties for his appearance at a designated time. Brewer v. State, 74 Tenn. 198, 1880 Tenn. LEXIS 232 (1880).

It was proper for complainant to bring his suit against the surety alone, without joining the principal, or against any one or more of the parties bound either as principal or sureties. Brannon v. Wright, 113 Tenn. 692, 84 S.W. 612, 1904 Tenn. LEXIS 59 (1904).

A recognizance, with sureties, for the appearance of a defendant in a felony case, is a joint and several obligation, and a writ of scire facias thereon may issue against the sureties alone, without the principal, and is not, for that reason, subject to a motion to quash the writ. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 1904 Tenn. LEXIS 72 (1904).

10. —Joinder of Personal Representative of Deceased Surety.

A judgment by motion against a constable and his sureties, upon notice against the constable alone, and a judgment against the personal representative of a surety dying after the motion against the constable and his sureties, is valid without scire facias to revive the motion against such personal representative. Hopson v. Hoge & Lester, 16 Tenn. 153, 1835 Tenn. LEXIS 63 (1835).

11. —Sureties of Deceased Guardian.

A bill for an account and settlement may be maintained against a surety of a deceased guardian, without making his personal representative a party, especially where the insolvency of the deceased guardian's estate is alleged and shown, though it be without administration. Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

12. —Sureties of Deceased Purchaser at Court Sale.

The clerk selling land under decree of court may, without notice, obtain judgment by motion against the sureties on the purchase money notes, without including in the judgment the personal representatives of the deceased purchaser, for all actions are joint and several. Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865).

13. Joinder under Workers' Compensation Law.

Under the provisions of this section and § 50-915 (now § 50-6-113) as construed together, an injured employee of a subcontractor could join his immediate employer and the principal contractor in the same suit under the Workers' Compensation Law. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

14. Process.

The privilege of issuing a counterpart summons under § 20-2-108 to a county other than the county of suit must be based upon a proper joinder of defendants who are: (1) jointly liable, or (2) severally liable on the same instrument or judgment, and may not be based upon a misjoinder of parties. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

15. Stockholders.

Suit by business brokers against all stockholders of corporation to recover commissions allegedly due on sale of all capital stock of the corporation was based on separate asserted rights against each stockholder for separate commissions and amounted to misjoinder of parties and actions, and would abate as to stockholders served by counterpart summons after suit was commenced in county where a single stockholder resided. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

Collateral References. 17 Am. Jur. 2d Contracts §§ 298-301; 59 Am. Jur. 2d Parties §§ 112, 122.

67A C.J.S. Parties §§ 43-45, 50.

Right of employer sued for tort of employee to implead the latter. 5 A.L.R.3d 871.

Vacation of judgment as to one or more multiple parties against whom rendered as requiring vacation as to all. 42 A.L.R.2d 1030.

Parties 24-35.

NOTES TO DECISIONS

1. Trade-Name.

Question reserved whether a person or partnership can maintain suit in a trade-name. Smith v. Modern Bakery, 165 Tenn. 508, 56 S.W.2d 163, 1932 Tenn. LEXIS 77 (1933).

2. Note Payable to “Legal Representative of Succession of.”

The administrator with the will annexed may sue and recover upon a note made payable “to the order of the legal representatives of the succession of” the testator named. Lewis v. Woodfolk, 61 Tenn. 25, 1872 Tenn. LEXIS 337 (1872).

Collateral References. 17 Am. Jur. 2d Contracts § 295.

17A C.J.S. Contracts § 518.

NOTES TO DECISIONS

1. Application.

This provision does not apply where there is no privity between the parties or no joint contract or liability. Eakin & Co. v. Burger, 33 Tenn. 417, 1853 Tenn. LEXIS 66 (1853).

2. Joint Action — Recovery against One.

In an action on a contract against two defendants as common carriers, in which the declaration alleged that they jointly contracted with the plaintiff, the recovery may be against one of them. Darwin v. Cox, 13 Tenn. 257, 1833 Tenn. LEXIS 156 (1833).

In an action against two defendants jointly in tort, for the deceitful warranty of the soundness of a horse, the recovery could be against one of them, and so, also, under this statute, if the action had been on the contract of warranty. Carpenter v. Lee, 13 Tenn. 264, 13 Tenn. 265, 1833 Tenn. LEXIS 158 (1833).

3. Dismissal as to One Codefendant.

In an action against the sheriff and his sureties on his official bond, the dismissal of the suit by the plaintiff as to one of the sureties did not affect his right of recovery against the other defendants. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879); Pollard v. Huston, 75 Tenn. 689, 1881 Tenn. LEXIS 171 (1881).

4. Suit Against One Obligor After Judgment Against Another.

Judgment, without satisfaction, against one of three joint makers of a note, taken for only one-third of the amount, upon the mistaken belief that he was not liable for more, though effectual to protect such maker from suit for the balance of the note, did not protect his comakers from suit for the full amount of the note. Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

5. Principal's Discharge in Bankruptcy — Effect on Surety.

The surety on an injunction bond was not released by the discharge in bankruptcy of the principal, and upon the dissolution of the injunction, the surety was liable on the bond, according to its conditions. Martin Furniture Co. v. Massey, 135 Tenn. 338, 186 S.W. 451, 1916 Tenn. LEXIS 30 (1916).

Collateral References. 1 C.J.S. Actions § 143.

NOTES TO DECISIONS

1. “Removal” — Meaning of Term.

“Removal,” as used here, does not mean temporary absence, but a change of residence. Fickle v. Fickle, 13 Tenn. 203, 1833 Tenn. LEXIS 138 (1833); Bledsoe v. Huddleston, 13 Tenn. 294 (1833).

2. Statute of Limitations.

In an action upon a covenant of warranty of title to land, begun against one of the two executors of the will of one of the deceased covenanters and against the administrator of the other deceased covenanter, both made parties and served with process within the allowed period after the eviction, where the other executor was made a party and served by counterpart summons after the lapse of that time, the plea of the statute of limitations in favor of the estates of decedents is not a good defense to either executor; nor, for a stronger reason, to the administrator of the other covenanter so sued and served with process. Burgie v. Parks, 79 Tenn. 84, 1883 Tenn. LEXIS 18 (1883).

Collateral References. 34 C.J.S. Executors and Administrators § 1046.

Executors and Administrators 441.

NOTES TO DECISIONS

1. Leave of Court to Add Parties — Necessity.

Leave of court to add parties is necessary and is grantable upon the terms as to costs that may be imposed. Amendment must be made so as to prevent delay. Jones v. Cloud, 44 Tenn. 236, 1867 Tenn. LEXIS 38 (1867).

2. Striking Plaintiff and Inserting Third Person.

A plaintiff, in a suit commenced before a justice (now general sessions judge) and carried to the circuit court, could strike out his own name and insert that of a third person. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

3. Plaintiff as Administrator Substituted for Plaintiff in Own Name.

The court may allow an amendment substituting plaintiff as administrator instead of plaintiff in his own name, and process to bring the defendant in after the amendment is not required, and a notification by the court's order, in place of formal process, is sufficient. Studer v. Roberts, 132 Tenn. 599, 179 S.W. 131, 1915 Tenn. LEXIS 51 (1915).

4. Personal Representative as Additional Defendant.

A personal representative, before the expiration of the statutory period after his qualification, or after his suggestion of the insolvency of the estate, could not be made a defendant by amendment, because he is not then liable to suit. Bank of Tennessee v. Skillern & Merriwether, 34 Tenn. 698, 1855 Tenn. LEXIS 121 (1855).

5. Supplemental Process as to New Defendants.

The order of the court granting leave to the plaintiff to make an additional defendant is the commencement of the suit against him, and imposes upon the plaintiff the necessity of obtaining supplemental process to bring him before the court, which he must continue from term to term, with the same regularity that would be required of him in case of an original summons; otherwise, his suit as to such additional defendant will be discontinued. Jones v. Cloud, 44 Tenn. 236, 1867 Tenn. LEXIS 38 (1867).

6. New Defendant — Right to Plead Limitations.

If relief is sought against a new party defendant, or if his interests are in fact involved, he may successfully interpose a plea of limitations, when it is sought to bring him in after the bar of the statute, but where the addition of new parties merely corrects a defect in the original proceeding, the statute of limitations cannot be relied on, but the amendments relate back to the institution of the suit. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916); Mellon v. American Flour & Grain Co., 9 Tenn. App. 383, — S.W.2d —, 1929 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1929), superseded by statute as stated in, Duke v. Repogle Enters., 891 S.W.2d 205, 1994 Tenn. LEXIS 378 (Tenn. 1994).

A new party defendant, having a distinct legal entity could not be brought in after one year in suit for personal injuries, except subject to the limitation statutes. Abdallah v. Weil, 168 Tenn. 382, 79 S.W.2d 284, 1934 Tenn. LEXIS 69 (1935).

7. Effect of New Party on Sureties.

The sureties of the defendant on bond for certiorari from a justice of the peace (now general sessions judge) to the circuit court were released from liability where a new party plaintiff was substituted in the circuit court in the place of the original plaintiff. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

8. Liberality in Permitting Addition of Parties.

The legislature has evidenced an intention that liberality be practiced in permitting addition of new parties. White v. Henry, 199 Tenn. 219, 285 S.W.2d 353, 1955 Tenn. LEXIS 447 (1955).

9. Propriety of Addition of Parties.

It was proper for chancellor to permit city to become a party defendant in suit to have reviewed and reversed a decree pro confesso adjudging city zoning ordinance invalid and in which proceeding city had been a party defendant. White v. Henry, 199 Tenn. 219, 285 S.W.2d 353, 1955 Tenn. LEXIS 447 (1955).

10. Amended Petition.

Amended petition bringing in new parties in workers' compensation suit which was filed before any answer, demurrer or other pleading had been entered was filed as a matter of right and tolled the running of the statute of limitations as to the new parties. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

Collateral References. 59 Am. Jur. 2d Parties §§ 192-213.

67A C.J.S. Parties §§ 90, 102-111.

Effect of judgment “for plaintiff” in action against multiple defendants. 47 A.L.R.2d 803.

Parties 49-56.

NOTES TO DECISIONS

1. Application.

The intervention of new parties as defendants is allowed in equity proceedings or suits in chancery, as well as in actions at law. Hill v. Bowers, 51 Tenn. 272, 1871 Tenn. LEXIS 161 (1871); Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874); Speak v. Ransom, 2 Cooper's Tenn. Ch. 210 (1875).

This statute applies only in suits for the recovery of specific property. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872); Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874).

An intervening petition filed in an action at law in the United States district court for the use of a certain other company named therein, was properly dismissed for lack of jurisdiction under the conformity act. Austin Machinery Co. v. Consolidation Coal Co., 67 F.2d 775, 1933 U.S. App. LEXIS 4630 (6th Cir. Tenn. 1933).

2. Mode of Intervening.

A person may, upon affidavit, become a defendant by intervention by filing an answer to the complainant's bill, under the permission of the court. Banks v. Banks, 42 Tenn. 546, 1865 Tenn. LEXIS 101 (1865).

3. Requisites as to Intervention.

Where a person intervenes as a party defendant, claiming an interest in the property, he must make an issue as to the title or interest, or he cannot have his alleged rights adjudicated, and the only judgment that can be rendered against him in such case will be a judgment for costs. Wilson v. Eifler, 47 Tenn. 31, 1869 Tenn. LEXIS 5 (1869).

A petition for permission to intervene as a defendant should clearly show the interest of the petitioner in the property, and where the petition states any matter outside of the record, or operates to suspend the proceeding, it should be verified by affidavit. Hunt v. Wing, 57 Tenn. 139, 1872 Tenn. LEXIS 410 (1872).

Where petitioners merely alleged that they had “equities” in property in litigation which they “believed” belonged to defendant they were not entitled to intervene. Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874).

To enable one to intervene under this section, he must show himself “interested in the subject matter of the suit” and must have an interest in the property itself, a title to it, a lien on it, or a right to its possession, and without such an interest in the property, he cannot come in under this statute. Marlin v. Merrill, 25 Tenn. App. 328, 156 S.W.2d 814, 1941 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1941); Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

That one as a creditor might have a right to attach the property, or to reduce his debt to judgment and have execution levied on the property, is not enough to entitle him to intervene under this statute. Marlin v. Merrill, 25 Tenn. App. 328, 156 S.W.2d 814, 1941 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1941); Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

Attorney, who was not a party to case and had no interest in case, could not intervene in case because of imputations of fraud against her in the case. Barnes v. Kyle, 202 Tenn. 529, 306 S.W.2d 1, 1957 Tenn. LEXIS 436 (1957).

4. —Attachment Suits.

An attachment suit cannot be regarded as a suit for the recovery of the property attached, in the sense of this section, and the purchaser of the attached property is not entitled to be made a defendant to the suit. American Exchange Bank v. Andrews, 59 Tenn. 306, 1873 Tenn. LEXIS 62 (1873); Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872).

Where property is attached for the realization of a debt, a third person may intervene by petition asserting right to the property if there be no objection that intervention should have been by a bill. Bradshaw v. Georgia Loan & Trust Co., 59 S.W. 785, 1900 Tenn. Ch. App. LEXIS 122 (1900).

5. —Dower Proceedings.

A person claiming title paramount to that of a deceased husband could become a party defendant to a proceeding for dower (now abolished), on his own petition. Hill v. Bowers, 51 Tenn. 272, 1871 Tenn. LEXIS 161 (1871).

Person claiming dower (now abolished) could intervene as defendant in a suit of the oral vendee against the heirs of the deceased vendor for specific performance, or for an account of payments and permanent improvements. Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880).

6. —Money Derived from Particular Transaction.

Ordinarily, money unearmarked, or otherwise distinctive, would not constitute “property” within the meaning of this section, but, under certain circumstances, where funds derive from a particular transaction and the judgment of the court is invoked as to whether they are subject to garnishment at the instance of a judgment creditor, they are deemed then to be of such character as to permit intervention by an adverse claimant, not a party to the proceeding, demonstrating an interest therein. Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

7. —Proceedings to Assert Lien.

Where divorce decree awarded a lien against husband's realty to secure support and maintenance of minor child awarded to wife and also awarded a lien against such property to secure attorney's fees, wife was entitled to intervene in suit by attorney to assert his lien, and to assert the superiority of the lien awarded for support and maintenance. Clements v. Holmes, 22 Tenn. App. 230, 120 S.W.2d 988, 1938 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1938).

In suit by mortgagor to recover on fire insurance policy for alleged loss and damages to buildings and personal property, mortgagee which alleged that it would suffer irreparable injury if equitable lien was not impressed on half the interest in the proceeds of the policy should have been permitted to become a party. Greer v. American Sec. Ins. Co., 223 Tenn. 390, 445 S.W.2d 904, 1969 Tenn. LEXIS 424 (1969).

8. —Purchase Pending Litigation.

While the complainant may make the purchaser of property pending litigation a party, or may ignore the purchaser and proceed to final decree against the original parties, the purchaser is not entitled to be made a party defendant to the litigation, either by petition or by original bill in the nature of a supplemental bill. American Exchange Bank v. Andrews, 59 Tenn. 306, 1873 Tenn. LEXIS 62 (1873).

A purchaser at a tax sale, pending litigation about the property in controversy, and, in the custody of the court, may come in by petition to have his rights declared, or for leave to institute the proper legal proceedings for their assertion. Paul v. Hill, 3 Cooper's Tenn. Ch. 443 (1877).

9. —Trustee under Assignment for Creditors.

The intervening defendant must show his interest in the property, and, therefore, a mere trustee under an assignment for creditors is considered not to be entitled to be made a party defendant in an attachment proceeding against the goods of his assignor, upon his affidavit that he was interested in the subject matter of the suit. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872).

10. —Vendor's Lien Note.

Where A files a bill on a vendor's lien note, and B seeks to intervene to show his ownership of the note, the latter is properly allowed to intervene and to file an answer and cross bill to establish his rights. Bank of McKenzie v. Manley, 13 Tenn. App. 630, — S.W.2d —, 1931 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1931).

11. Effect of Former Judgment on Intervener.

A former judgment in another state, upon intervention, is a bar to a suit in this state, for, where a party intervenes, a judgment in the case is conclusive upon him. Rembert v. Halley & Haskins, 29 Tenn. 512, 29 Tenn. 513, 1850 Tenn. LEXIS 26 (1850).

Collateral References. 59 Am. Jur. 2d Parties § 152.

67A C.J.S. Parties §§ 73, 75.

Private boundary line, bringing in necessary parties in suit or proceeding for establishment of. 73 A.L.R.3d 948.

Who may intervene in suit to quiet title. 170 A.L.R. 149.

Parties 40(2).

NOTES TO DECISIONS

1. Effect on Action.

The action and question to be tried remain unchanged, and in a replevin suit the substitution does not release the surety on the replevin bond. Elder v. Fielder, 68 Tenn. 272, 1878 Tenn. LEXIS 5 (1878).

2. Plaintiff's Assent Unnecessary.

Plaintiff's assent to the substitution of the party at whose instance the levy was made, as the real defendant instead of the levying officer, is not necessary. Elder v. Fielder, 68 Tenn. 272, 1878 Tenn. LEXIS 5 (1878).

Collateral References. 59 Am. Jur. 2d Parties § 152.

67A C.J.S. Parties §§ 58-64.

Parties 59.

NOTES TO DECISIONS

1. Applicability.

In a personal injury action, where T.C.A. § 20-1-119 was enacted and effective prior to the running of the general statute of limitations as to certain third-party defendants, the section applied to extend the statute until after 90 days had elapsed from filing the answer alleging the complicity of such defendants in plaintiff's injuries. Graves v. Grady's Inc., 906 S.W.2d 463, 1995 Tenn. App. LEXIS 400 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 550 (Tenn. Sept. 18, 1995).

Defendants in a suit for personal injuries based on allegations of negligence and strict liability in tort could not assert as an affirmative defense that plaintiff's employer caused or contributed to plaintiff's injuries and damages, notwithstanding that the injuries were sustained in the course and scope of plaintiff's employment. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 1996 Tenn. LEXIS 57 (Tenn. 1996).

Where plaintiff filed a negligence action against a restaurant for injuries sustained when a stool collapsed, the actions for strict liability and negligence against the manufacturer and the seller of the stool which were brought more than six years from the date of the injury were barred by the statute of limitations; the enactment of T.C.A. § 20-1-119 after the date of plaintiff's original complaint did not revive the plaintiff's right to assert such claims. Owens v. Truckstops of Am., 915 S.W.2d 420, 1996 Tenn. LEXIS 62 (Tenn. 1996).

T.C.A. § 20-1-119 can not be used to extend the period in which to file suit against a governmental entity under T.C.A. § 29-20-305. The 12 month period in T.C.A. § 29-20-305 is a condition precedent to a right of action. Daniel ex rel. Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 1997 Tenn. App. LEXIS 920 (Tenn. Ct. App. 1997), superseded by statute as stated in, Cunningham v. Williamson County Hosp. Dist., — S.W.3d —, 2011 Tenn. App. LEXIS 645 (Tenn. Ct. App. Nov. 30, 2011).

Consistent with the construction that T.C.A. § 20-1-119 should be construed liberally, an added defendant's status as a party should be determined, not when the original defendant names the added defendant as an additional comparative tortfeasor in its answer or amended answer, but rather when the plaintiff either seeks to amend its complaint to name the additional comparative tortfeasor as an additional defendant or to file a separate complaint against the additional comparative tortfeasor. Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 2001 Tenn. App. LEXIS 68 (Tenn. Ct. App. 2001).

T.C.A. § 20-1-119 gives an additional 90 days to file suit against a potential nonparty tortfeasor whenever an answer gives notice of the nonparty's identity and alleges facts that reasonably support a conclusion that the nonparty caused or contributed to an injury, and T.C.A. § 20-1-119 applies whether the nonparty is alleged to be partially responsible or totally responsible for the injuries; therefore, summary judgment was inappropriately granted to the state in a case where a county's answer in a personal injury case relating to the placement of a stop alleged that the state was responsible for the maintenance of the area. Austin v. State, 222 S.W.3d 354, 2007 Tenn. LEXIS 434 (Tenn. 2007).

T.C.A. § 20-1-119 was inapplicable where defendant driver's answer to the couple's original personal injury complaint made no reference to his employer, and therefore it did not satisfy the statute, as it neither gave the couple notice of the identity of a potential nonparty tortfeasor nor alleged facts that reasonably supported a conclusion that the nonparty caused or contributed to the couple's injury; this section did not save untimely claims simply because the couple learned that there may be another potential defendant to the suit. Grindstaff v. Bowman, — S.W.3d —, 2008 Tenn. App. LEXIS 323 (Tenn. Ct. App. May 29, 2008).

Hotel’s allegations in their answer to plaintiffs’ complaint in their premises liability action that the political party caused or contributed to husband’s injuries was sufficient to trigger T.C.A. § 20-1-119(a); because plaintiffs did not add the political party within the 90-day window provided by the statute, the statute of limitations once again expired and therefore plaintiffs’ claims against the political party were time barred. Allen v. Historic Hotels of Nashville, LLC, — S.W.3d —, 2008 Tenn. App. LEXIS 764 (Tenn. Ct. App. Dec. 9, 2008).

T.C.A. § 20-1-119 was not applicable in the case against the officer defendants because the officer defendants were not identified in the corporation's answer alleging comparative fault in keeping with Tennessee state law, and the corporation's general identification of “law enforcement” in its answer was too vague to indicate any specific individuals or enable plaintiffs to serve anyone without additional information. Woodward v. City of Gallatin, — F. Supp. 2d —,  2012 U.S. Dist. LEXIS 105568 (M.D. Tenn. July 30, 2012).

Argument that T.C.A. § 20-1-119 should not have applied because the officer defendants were already parties to the suit as John Does failed because John Does were consistently recognized as separate parties from subsequently charged parties intended to replace the John Does. Woodward v. City of Gallatin, — F. Supp. 2d —,  2012 U.S. Dist. LEXIS 105568 (M.D. Tenn. July 30, 2012).

Section 20-1-119 is not a statute of limitations. The phrase “applicable statute of limitations” used in the body of the statute does not refer to the ninety-day period, but refers only to the statute of limitations applicable to the plaintiff's cause of action. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

Section 20-1-119 provides a ninety-day window in which a plaintiff may name a new nonparty as a defendant only if the defendant alleging comparative fault against the new nonparty was sued within the statute of limitations applicable to the plaintiff's cause of action. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

“Applicable statute of limitations” does not include the ninety-day period and Tenn. Ann. Code § 20-1-119 does not afford successive ninety-day windows during which a plaintiff may file an amended complaint naming a nonparty defendant as a comparative tort-feasor. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

T.C.A. § 20-1-119 says that the defendant alleging comparative fault against the nonparty must have been sued within the statute of limitations. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

Court of appeals erred in affirming an order granting fraternity members'  motion to dismiss vehicle owners'  complaint on the ground that it was barred by the one-year statute of limitations, T.C.A. § 28-3-104, because “a person not a party to the suit,” for purposes of T.C.A. § 20-1-119, included any defendant previously dismissed pursuant to a written, non-final order under Tenn. R. Civ. P. 54.02; a named defendant ceases to be a “party to the suit,” for purposes of § 20-1-119, when the trial court issues an order, whether final or interlocutory, dismissing that defendant. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

1.5. Construction.

Arguments are unconvincing that the statute exists to remedy unfairness and construing the statute a certain way disregards its limited purpose, as accepting such arguments would require the court to read a requirement into the statute that is simply not there. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Plain reading of the statute indicates a plaintiff is permitted to assert a claim against a person not a party to the complaint within 90 days if (1) a defendant is named in an original or amended complaint within the statute of limitations, (2) that defendant alleges in an answer or amended answer that a person not a party caused or contributed to the injury, and (3) the plaintiff's cause(s) of action against that person would be barred by the statute of limitations were it not for the statute. Scales v. H.G. Hill Realty Co., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 56 (Tenn. Ct. App. Jan. 30, 2018).

Drafters contemplated the possibility that the original complaint and the claim against the comparative tortfeasor could be governed by different statutes of limitations; a plain and ordinary reading of the statute requires that the original complaint be filed within the statute of limitations applicable to the original claim in order to trigger the 90-day grace period afforded by the statute. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

Utilization of the 90-day grace period simply does not shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in T.C.A. § 20-1-119(a); to now hold that governmental entities are protected from the provisions of the statute whenever the original claim is governed by a longer statute of limitations than a claim under the Governmental Tort Liability Act (GTLA) would frustrate the general purpose of the statute and the legislature's specific amendment to bring GTLA defendants within its scope. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

“Applicable statute of limitations” referred to with regard to the timeliness of the original complaint will never include the statute of limitations applicable to the comparative tortfeasor; moreover, the 90-day period is available to a plaintiff only when a defendant sued within the statute of limitations applicable to the plaintiff's underlying cause of action raises an issue of comparative fault in its answer. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

2. Vicarious Liability.

Although a literal reading of Tenn. Code Ann. § 20-1-119 suggests that only a person or entity whose negligent conduct caused or contributed to the plaintiff's injury in a cause in fact sense can be named as a defendant under the statute, Tenn. Code Ann. § 20-1-119 should not be construed so narrowly. This statute was enacted in response to the Tennessee supreme court's adoption of comparative fault, and the concepts of fairness and efficiency form the basis of such a system. As such, Tenn. Code Ann. § 20-1-119 contemplates naming vicariously liable nonparties as defendants. Browder v. Morris, 975 S.W.2d 308, 1998 Tenn. LEXIS 463 (Tenn. Special Workers' Comp. App. Panel 1998).

The plaintiff in an automobile accident case was permitted to amend the complaint after the expiration of the limitations period and after the defendant filed an answer naming the driver's employer as an unnamed defendant, to assert a vicarious liability claim against the driver's employer. Browder v. Morris, 975 S.W.2d 308, 1998 Tenn. LEXIS 463 (Tenn. Special Workers' Comp. App. Panel 1998).

3. Notice of Identity of Third Person.

In a personal injury action, dismissal of plaintiff's third-party claim as time barred was proper even though the defendant did not disclose the identity of the third person in its answer asserting a comparative fault defense; plaintiff had adequate opportunity to discover the identity of the third party in order to amend the complaint within 90 days of the defendant's answer. Soper v. Wal-Mart Stores, 923 F. Supp. 1032, 1996 U.S. Dist. LEXIS 6145 (M.D. Tenn. 1996).

T.C.A. § 20-1-119 does not apply to a plaintiff who had knowledge that a third party may be at fault for the complained of injuries long before the defendant's answer to the complaint. Whittlesey v. Cole, 142 F.3d 340, 1998 FED App. 120P, 1998 U.S. App. LEXIS 7552 (6th Cir. Tenn. 1998).

T.C.A. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity to be joined. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

Defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to T.C.A. § 20-1-119, even if the defendant establishes the nonparty's existence by clear and convincing evidence. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

To allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant's incentive to identify additional tortfeasors, but also would effectively impose a burden on the plaintiff to “defend” the unidentified nonparty. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

A plaintiff's knowledge of the existence of other persons who might be liable for the plaintiff's injuries is irrelevant. Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 2001 Tenn. App. LEXIS 68 (Tenn. Ct. App. 2001).

Pedestrian did not meet her burden of establishing that her slip and fall claim against a janitorial service was excepted from the statute of limitations under T.C.A. § 28-3-104(a)(1) because the janitorial service was added as a defendant during the 90-day grace period created by T.C.A. § 20-1-119; the 90-day period was not triggered by an airport's response to a discovery request because an answer was required to trigger the 90-day period, and a discovery response was not the same thing as an answer. Shaffer v. Memphis Airport Auth., — S.W.3d —, 2013 Tenn. App. LEXIS 32 (Tenn. Ct. App. Jan. 18, 2013).

By its terms, T.C.A. § 20-1-119 provides a kind of safe harbor to a plaintiff, a window of opportunity to amend the complaint to add a defendant after the statute of limitations has run, but this window is opened only under the limited circumstances specified in the statute, namely, where a defendant named in an original complaint filed within the applicable statute of limitations alleges in an answer or amended answer that a person not a party to the suit caused or contributed to the injury for which the plaintiff seeks recovery; a discovery response simply is not the same thing as an answer. Shaffer v. Memphis Airport Auth., — S.W.3d —, 2013 Tenn. App. LEXIS 32 (Tenn. Ct. App. Jan. 18, 2013).

Sixth Circuit rejected the notion that the statute applies to any tortfeasor identified in the defendant's answer, regardless of whether that tortfeasor was known or unknown to the plaintiff before the statute of limitations expired, and the Sixth Circuit's view is incorrect. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Having determined that the interpretation of the statute in Townes v. Sunbeam Oster Co. is controlling authority for all purposes, the Tennessee Supreme Court answers the certified question as follows: a plaintiff may rely on the 90-day savings provision in order to add a previously known potential nonparty tortfeasor to an existing lawsuit even when the plaintiff knew the identity of the potential tortfeasor at the time of the filing of the plaintiff's original complaint but chose not to sue the potential tortfeasor. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Plaintiff's ability to utilize the statute to amend its complaint to assert a claim against a non-party against whom a defendant has asserted a comparative fault claim or to file a separate new complaint against such a non-party does not depend on whether the non-party was either known or unknown to the plaintiff when its original complaint was filed. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Application of the statute is not restricted to tortfeasors who were unknown to the plaintiff when its original complaint was filed; therefore, the statute permits a plaintiff to file an amended complaint against the tortfeasor named by the defendant within 90 days after the filing of the answer or amended answer in which the defendant first asserts a comparative fault claim against the tortfeasor. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Trial court properly dismissed a patient's medical malpractice action as time barred because medical malpractice actions were subject to a one-year statute of limitations, the patient's amended complaint was filed more than one year after the alleged negligent medical treatment, although a hospital's original answer did not name specific physicians or parties who treated the patient, it was sufficient to put the patient on notice that a nonparty caused or contributed to the injuries alleged. Swearengen v. DMC-Memphis, Inc., 488 S.W.3d 774, 2015 Tenn. App. LEXIS 192 (Tenn. Ct. App. Apr. 2, 2015), appeal denied, Swearengen v. DMC-Memphis, Inc., — S.W.3d —, 2015 Tenn. LEXIS 636 (Tenn. Aug. 13, 2015).

Decision to strike the affirmative defense of comparative fault as to John Doe and a truck was premature because a driver and employer were not given a reasonable opportunity to engage in pre-trial discovery to identify John Doe in sufficient detail for a pedestrian to serve process on John Doe; the employer obtained a recording of the 911 call made from the scene, discovered the pedestrian was allegedly struck by the truck, and amended its answer attributing fault to the company and John Doe. Santore v. Stevenson, — S.W.3d —, 2018 Tenn. App. LEXIS 94 (Tenn. Ct. App. Feb. 20, 2018).

4. Joinder.

Where separate independent negligent acts of more than one tortfeasor combine to cause single, indivisible injury, all tortfeasors must be joined in same action unless joinder is specifically prohibited by law. Samuelson v. McMurtry, 962 S.W.2d 473, 1998 Tenn. LEXIS 61 (Tenn. 1998).

Trial court properly granted defendants'  motions for summary judgment and to dismiss because the original statute of limitations, T.C.A. § 28-3-104, had expired, and T.C.A. § 20-1-119 could not be utilized extend the limitations period against defendants; because the trial court failed to direct the entry of a final judgment when it granted defendants'  motions as to plaintiffs'  first amended complaint, the action did not terminate as to defendants, and since no final order was entered against defendants, they remained parties to when plaintiffs sought to assert claims against them in their second amended complaint. Mann v. Alpha Tau Omega Fraternity, — S.W.3d —, 2011 Tenn. App. LEXIS 422 (Tenn. Ct. App. Aug. 2, 2011), rev'd, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Mere filing of a motion for an interlocutory appeal by vehicle owners of the dismissal of their first amended complaint before filing their second amended complaint did not somehow nullify the trial court's orders dismissing fraternity members because for purposes of T.C.A. § 20-1-119, the members were not parties to the suit. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Trial court erred in granting limited liability companies'  (LLCs) motion to dismiss because the statute permitted a customer to add the formerly dismissed LLCs back into her lawsuit to recover for injuries she sustained when she slipped and fell at a grocery store; pursuant to the one-year statute of limitations, the action against the LLCs was still viable when the grocery store identified them as comparative tortfeasors, and the customer filed her second amended complaint within 90 days. Scales v. H.G. Hill Realty Co., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 56 (Tenn. Ct. App. Jan. 30, 2018).

5. Filing Requirement.

If a plaintiff elects to add a new defendant to the complaint pursuant to Tenn. Code Ann. § 20-1-119(a)(1), an amended complaint must in fact be filed within the 90-day period, and the mailing of a copy of the proposed amended complaint to the defendant within 90 days does not suffice. Young v. Toys R Us, 987 F. Supp. 1035, 1997 U.S. Dist. LEXIS 20428 (E.D. Tenn. 1997).

Trial court properly denied plaintiffs' motion to amend their complaint although plaintiffs met the requirements of T.C.A. § 20-1-119, as the cardiology company was named a defendant within the applicable statute of limitations but not within the limits of the statute of repose. McCullough v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 2002 Tenn. App. LEXIS 896 (Tenn. Ct. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 529  (Tenn. 2003).

In a medical malpractice action, the first doctor's answer to the complaint alleging that the first doctor did not prescribe the drug and denying any negligence or responsibility triggered T.C.A. § 20-1-119, which allowed the patient and the family member 90 days in which to amend their complaint to add the anesthesiologist and the nurse; thus, their claims against the anesthesiologist and the nurse were not time barred under T.C.A. § 29-26-116(a)(1). Romine v. Fernandez, 124 S.W.3d 599, 2003 Tenn. App. LEXIS 500 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1292 (Tenn. 2003).

Trial court did not err in granting summary judgment to a doctor who had been charged with comparative fault by defendant hospital in a medical malpractice suit, where the patient's representative's amended complaint naming the doctor was filed beyond the one-year statute of limitation and she failed to file her amended complaint and to cause process to be issued within 90 days as required by T.C.A. § 20-1-119; the motion to amend her complaint simply failed to fulfill the unambiguous requirements of T.C.A.§ 20-1-119. Ward v. AMI SUB (SFH), Inc., 149 S.W.3d 35, 2004 Tenn. App. LEXIS 117 (Tenn. Ct. App. 2004), appeal denied, Ward v. AMI SUB, Inc., — S.W.3d —, 2004 Tenn. LEXIS 760 (Tenn. Sept. 7, 2004).

Plaintiff's right to invoke T.C.A. § 20-1-119 does not depend upon whether the defendant whose answer triggered a ninety-day window remains a party to the suit because the plaintiff need only to have sued this defendant within the statute of limitations and filed within the ninety-day window an amended complaint naming the non-party. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Trial court erred in dismissing a claim for injuries suffered when a tree fell on a car as untimely where the driver's timely filed notice with the Division of Claims Administration was the original complaint under T.C.A. § 20-1-119, the requirements of T.C.A. § 20-1-119(a) had been met, and as a result, the statute of limitations in T.C.A. § 29-20-305(b) had been extended. Moreno v. City of Clarksville, — S.W.3d —, 2014 Tenn. App. LEXIS 94 (Tenn. Ct. App. Feb. 25, 2014), rev'd, 479 S.W.3d 795, 2015 Tenn. LEXIS 741 (Tenn. Sept. 18, 2015).

6. Governmental Entities.

Defendant in tort claim based on auto accident was prohibited from attributing fault to non-party county where plaintiffs were precluded from bringing suit against the county by the limitations period applicable to governmental entities. Bumgardner v. Vonk, 995 F. Supp. 815, 1998 U.S. Dist. LEXIS 2912 (E.D. Tenn. 1998).

Intent and purpose of the legislature was to include the state of Tennessee as a governmental entity for the purpose of T.C.A. § 20-1-119(g); because the estate's claim was filed within 90 days of the nursing home's answer, the claim was timely filed and was not barred by the statute of limitations. Conley v. State, 141 S.W.3d 591, 2004 Tenn. LEXIS 662 (Tenn. 2004).

7. Jury Instructions.

In multi-party actions, the trial court should instruct the jury to engage in a three-step process which creates a correlation between liability and fault: (1) As in any comparative fault case, the jury should determine the actual dollar amount of the damages incurred by each claimant individually without taking fault into consideration; (2) The jury should allocate percentages of fault (totalling 100 percent) to each actor whose fault caused or contributed to the accident; and (3) The jury should state the percentage by which the claimant's conduct caused or contributed to the claimant's own injuries along with the percentage of fault collectively attributable to the actor or actors whose fault was the cause of the accident. Grandstaff v. Hawks, 36 S.W.3d 482, 2000 Tenn. App. LEXIS 355 (Tenn. Ct. App. 2000).

8. Additional Parties.

Plaintiff substantially complied with T.C.A. § 20-1-119 and Tenn. R. Civ. P. 15.01 and the denial of a motorcycle escort service's motion to dismiss the amended complaint was not an abuse of discretion where: (1) Plaintiff's one-day delay in filing the motion to amend her complaint was not fatal as the amended complaint was filed, service of process was obtained, and leave to amend was granted within the ninety-day time frame required by T.C.A. § 20-1-119; (2) This was plaintiff's first attempt to amend her complaint and the amendment was important in order to resolve the matter with all potentially liable parties before the trial court at once; and (3) Had the trial court denied plaintiff's motion, she could have proceeded by bringing an original complaint in a separate action and the escort service could have been made a party to that suit without permission of the trial court or the parties. Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 2006 Tenn. LEXIS 430 (Tenn. 2006).

As defendant-A was named in an amended personal injury complaint filed within the applicable statute of limitations under T.C.A. § 28-3-104, and as defendant-B was thereafter named in a second amended complaint within 90 days from the identification of it for comparative fault purposes under T.C.A. § 20-1-119, the claim against defendant-B was not time-barred; accordingly, it was error to grant summary judgment to defendant-B on that basis. Mills v. Fulmarque, Inc., — S.W.3d —, 2010 Tenn. App. LEXIS 793 (Tenn. Ct. App. Dec. 23, 2010), rev'd, 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

In a negligence action, plaintiff's claims against a late-added defendant were barred by the one-year statute of limitations of T.C.A. § 28-3-104 when plaintiff failed to amend her complaint pursuant to T.C.A. § 20-1-119 to add the late-added defendant within 90 days of the filing of the first answer naming the late-added defendant as a potential tortfeasor. Morris v. Phillips, — S.W.3d —, 2013 Tenn. App. LEXIS 809 (Tenn. Ct. App. Dec. 17, 2013).

In a case arising from on-the-job injuries in which two defendants, who were added in an amended complaint, moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the plaintiff's claims against them were time-barred, he could not rely on T.C.A.§ 20-1-119 to save his claims against them, and the discovery rule did not apply. Wagner v. Int'l Auto. Components Grp. N. Am., Inc., — F. Supp. 2d —,  2015 U.S. Dist. LEXIS 123716 (M.D. Tenn. Sept. 16, 2015).

Alleged injured party's claim against a city was time-barred because, inter alia, the party's notice of claim against the State was not an “original complaint” under T.C.A. § 20-1-119 that triggered a 90-day period within which to name the city as a party, after the State alleged the city's comparative fault for the party's injury, as the notice and a complaint served different functions, so the time within which to sue the city was not extended. Moreno v. City of Clarksville, 479 S.W.3d 795, 2015 Tenn. LEXIS 741 (Tenn. Sept. 18, 2015).

9. Amended Complaint.

In all situations other than the one-time right to amend before a responsive pleading is served, the right to amend under Tenn. R. Civ. P. 15.01 is governed by the second sentence of the rule, which permits amendments only by written consent of the adverse party or by leave of court, with the understanding that leave is to be freely given when justice so requires; since T.C.A. § 20-1-119 is always invoked by the filing of a responsive pleading, the Tennessee supreme court concludes that its reference to Tenn. R. Civ. P. 15 is a reference specifically to the second sentence of Tenn. R. Civ. P. 15.01 and that a plaintiff's right to amend a complaint to add a defendant in a comparative fault action under T.C.A. § 20-1-119 requires written consent of the adverse parties or leave of court. Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 2006 Tenn. LEXIS 430 (Tenn. 2006).

Claimant's argument that her notice of claim was necessary to preserve her action against the state and must be filed within 90 days under T.C.A. § 9-8-402 was untenable, because the claim was for personal injuries, which was governed by T.C.A. § 28-3-104, and the court had allowed amendments to be made pursuant to T.C.A. § 20-1-119 regardless of whether the other person(s) who might be liable for the claimant's injuries was known to the claimant prior to the filing of the original complaint; the claimant did not allege that her injuries were proximately caused by the Tennessee highway patrolman's negligence, but rather stated that she was providing notice that such a claim could be asserted once more facts pertaining to the causation of the accident and ultimate nature of her injuries were known. Rogers v. State, — S.W.3d —, 2007 Tenn. App. LEXIS 503 (Tenn. Ct. App. Aug. 2, 2007).

Because, in a car owner's answer to a complaint for damages arising out of a car accident between plaintiff and the owner's son, the owner never named her son as a comparative tortfeasor, plaintiff could not add the son as a defendant pursuant to T.C.A. § 20-1-119, and the one-year statute of limitations, T.C.A. § 28-3-104 (a)(1), had expired. Lindsey v. Baker, — S.W.3d —, 2011 Tenn. App. LEXIS 103 (Tenn. Ct. App. Feb. 10, 2011).

Employee who sued a coworker was not entitled to amend the employee's complaint to add the employer as an additional defendant because T.C.A. § 20-1-119 was not triggered by the co-worker's motion to dismiss characterizing the employer as an indispensable party. Johnson v. Trane U.S. Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 537 (Tenn. Ct. App. Aug. 19, 2013).

In a medical malpractice case, a certificate of good faith did not have to be filed with an amended complaint; a claim asserted against a second doctor arose out of the same conduct set forth in the original complaint. The allegations of comparative fault related back to the date of the original complaint, which was prior to the effective date of T.C.A. § 29-26-122. Rogers v. Jackson, — S.W.3d —, 2014 Tenn. App. LEXIS 293 (Tenn. Ct. App. May 19, 2014), appeal denied, Rogers ex rel. Rogers v. Jackson, — S.W.3d —, 2014 Tenn. LEXIS 904 (Tenn. Oct. 22, 2014).

When, in a health care liability suit, physicians sued in one county raised the comparative negligence of a patient's primary physician, who resided in another county, and the patient filed an amended complaint adding the primary physician, under T.C.A. § 20-1-119 and Tenn. R. Civ. P. 15.01, venue was properly transferred to the county where the patient and primary physician resided, in which the cause of action also arose, because the patient's amended complaint, rather than being an amendment to the original complaint, completely superseded the original complaint such that the court had to evaluate venue based on the parties in the amended complaint. Barrett v. Chesney, — S.W.3d —, 2015 Tenn. App. LEXIS 790 (Tenn. Ct. App. Sept. 28, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 274 (Tenn. Apr. 7, 2016).

Circuit court properly granted a hospital's motion to dismiss an administrator's action for health care liability for failure to attach a certificate of good faith because, while the administrator attached the original certificate of good faith to the amended complaint, he failed to file a new certificate when a nursing home asserted a comparative fault affirmative defense against the hospital. Peatross v. Graceland Nursing Ctr., LLC, — S.W.3d —, 2016 Tenn. App. LEXIS 686 (Tenn. Ct. App. Sept. 20, 2016), appeal denied, Peatross v. Graceland Nursing Ctr., LLC, — S.W.3d —, 2017 Tenn. LEXIS 37 (Tenn. Jan. 18, 2017).

Insurer's property damage claim was appropriately filed within the three-year statute of limitations applicable to private defendants, and the original defendant manufacturer thereafter filed an answer raising the comparative fault of the city, and thus the insurer was afforded a 90-day grace period in which to file an amended complaint naming the city, despite the fact that the one-year statute of limitations applicable to the city under the Governmental Tort Liability Act had lapsed. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

10. Amended Answer.

In a consolidated personal injury action, the trial court erred in denying Tenn. R. Civ. P. 15.01 motions by a private club and a surgeon to amend their answers to assert comparative fault claims against a nursing home because the doctrine of joint and several liability no longer applied to circumstances in which separate, independent negligent acts of more than one tortfeasor combined to cause a single, indivisible injury. Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214, 2010 Tenn. LEXIS 5 (Tenn. Jan. 13, 2010).

11. Statute of Repose.

Summary judgment in favor of defendants based upon the construction statute of repose, T.C.A. § 28-3-202, was proper, because the injured's minority did not toll the statute, and there existed no question of fact as to the date of substantial completion; T.C.A. § 20-1-119(b) could not operate to extend the statute of repose, and the Tennessee Supreme Court had pronounced that T.C.A. § 28-1-106 could not operate to toll statutes of repose. Etheridge v. YMCA, 391 S.W.3d 541, 2012 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 27, 2012), appeal denied, Etheridge ex rel. Etheridge v. YMCA, — S.W.3d —, 2012 Tenn. LEXIS 425 (Tenn. June 19, 2012).

20-2-101. Summons from general sessions court.

The summons from a court of general sessions shall be substantially the same as the summons from a court of record, but requiring the defendant to appear before the judge on a day fixed, or generally. If no time or place is designated, the officer serving the process shall notify the defendant of the time and place, and make the officer's return accordingly.

Code 1858, § 2817; Shan., § 4522; Code 1932, § 8649; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-204; modified.

Cross-References. Summons, Tenn. R. Civ. P. 3, 4.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-1.

Tennessee Jurisprudence, 1 Tenn. Juris., Amendments,. § 9; 7 Tenn. Juris., Corporations, § 118.

Law Reviews.

Civil Procedure — Rejection of Transient Jurisdiction Over an Unincorporated Association, 16 Mem. St. U.L. Rev. 291 (1986).

Comparative Legislation. Commencement of actions:

Ala.  Code § 6-4-1 et seq.

Ark.  Code § 16-58-101 et seq.

Ga. O.C.G.A. § 9-11-3 et seq.

Ky. R. C. P. 3 et seq.

Miss.  Code Ann. § 13-3-1 et seq.

Mo.  Sup. Ct. R. 53.01, 54.01-54.04, 54.13, 54.16, 54.17, 54.20, 54.22.

N.C. Gen. Stat. § 1A-1.

Va.  Code § 8.01-270 et seq.

20-2-102. Security for costs and damages.

The general sessions judge may, and the clerk shall, before issuing the summons or other leading process, require the plaintiff to enter into bond, with sufficient surety, conditioned to prosecute the plaintiff's suit with effect, or to pay such costs and damages as may be awarded against the plaintiff by the court having cognizance thereof, unless the plaintiff sue in forma pauperis.

Code 1858, § 2818 (deriv. Acts 1787, ch. 19, § 1); Shan., § 4523; Code 1932, § 8650; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-205.

Cross-References. Actions in forma pauperis, §§ 20-12-127 — 20-12-133.

Appointment of counsel for paupers, § 23-2-101.

Bond on change of venue, § 20-4-207.

Requirement of bond, §§ 20-12-120 — 20-12-126.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 81.

Law Reviews.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219.

Cited: In re Barrett, 132 F. 362, 1904 U.S. Dist. LEXIS 133 (D. Tenn. 1904); Kelley v. Byington, 185 Tenn. 421, 206 S.W.2d 409, 1947 Tenn. LEXIS 347 (1947).

20-2-103. Date of process shown — Penalty for violation.

1. The clerk, general sessions judge or attorney issuing any process shall mark on the process the day on which the process is issued; and the sheriff or other officer into whose hands the process comes to be executed, shall, in like manner, mark on the process the day on which the sheriff or other officer received it.
2. The penalty for neglect of this requirement shall be a forfeiture of one hundred twenty-five dollars ($125), to be recovered in any court having cognizance thereof, by any persons who shall sue for the penalty, with costs.

Code 1858, § 2819 (deriv. Acts 1794, ch. 1, § 9); Shan., § 4524; Code 1932, § 8651; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-206.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 26; 21 Tenn. Juris., Process, § 12; 22 Tenn. Juris., Sheriffs, § 14.

Cited: Glenn v. Payne, 153 Tenn. 240, 280 S.W. 1019, 1925 Tenn. LEXIS 24 (1926).

20-2-104. Issuance of process on Sunday.

1. Civil process may be issued on Sundays on the application of any party, supported by oath or affirmation, that the defendant is removing or about to remove the defendant's person or property beyond the jurisdiction of the court applied to.
2. The clerk or general sessions judge shall endorse on the back of the process that it was obtained on the oath of the plaintiff, the plaintiff's agent or attorney, as directed in subsection (a).
3. It is the duty of the proper officers to execute all such process on Sundays, subject to the same penalties and regulations as in other cases.

Code 1858, §§ 2824-2826 (deriv. Acts 1821, ch. 1, §§ 1-3); Shan., §§ 4529-4531; Code 1932, §§ 8656-8658; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-207.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 126, 129.

Tennessee Jurisprudence, 3 Tenn. Juris., Associations and Clubs, § 6; 23 Tenn. Juris., Sundays and Holidays, § 4.

Law Reviews.

Procedure — Motion to Dismiss in Chancery, 33 Tenn. L. Rev. 245.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914); Jersey Farms Milk Service, Inc. v. Amalgamated Meat Cutters, etc., 297 F. Supp. 1098, 1969 U.S. Dist. LEXIS 9545 (M.D. Tenn. 1969).

20-2-105. Service of process on Sunday on parties leaving jurisdiction.

Sheriffs or constables having process in their hands in civil actions pending in magistrate's court or courts of record, if it appears to their satisfaction that parties to be sued are leaving the county or state, have the right to execute the process on Sunday.

Acts 1885, ch. 53, § 1; Shan., § 4532; Code 1932, § 8659; T.C.A. (orig. ed.), § 20-208.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 126.

Law Reviews.

Procedure — Motion to Dismiss in Chancery, 33 Tenn. L. Rev. 245.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914).

20-2-106. Process on Sunday generally prohibited.

With the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.

Code 1858, § 2827 (deriv. Acts 1777 (Nov.), ch. 8, § 6); Acts 1885, ch. 53, § 1; Shan., § 4533; Code 1932, § 8660; T.C.A. (orig. ed.), § 20-209.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 126.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914).

20-2-107. Process in other counties.

Process in local actions may run to any county.

Code 1858, § 2820; Shan., § 4525; Code 1932, § 8652; T.C.A. (orig. ed.), § 20-210.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 26.

Cited: Bell v. Hosse, 31 F.R.D. 181, 1962 U.S. Dist. LEXIS 5927 (M.D. Tenn. 1962).

20-2-108. Counterpart summons.

1. Where there are two (2) or more defendants in any suit in courts of law or equity or before judges of the courts of general sessions, the plaintiff may cause a counterpart summons or subpoena to be issued to any county where any of the defendants is most likely to be found, the fact that the counterpart process is issued in the same suit being noted on each process, which, when returned, shall be docketed as if only one (1) process had issued.
2. If the defendants are not served, the same proceedings shall be had as in cases of other similar process not executed.
3. The counterpart, when issued from a judge of the court of general sessions, shall be returned within thirty (30) days.

Code 1858, §§ 2821, 2822 (deriv. Acts 1820, ch. 25, § 3); Shan., §§ 4526, 4527; Code 1932, §§ 8653, 8654; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-211.

Compiler's Notes. This section may be affected by Tenn. R. Civ. P. 4.01, summons and issuance thereof, except as to general sessions courts.

Cross-References. Summons and issuance thereof, Tenn. R. Civ. P. 4.01.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 127, 129.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 84; 21 Tenn. Juris., Process, § 2; 24 Tenn. Juris., Venue, § 3.

Law Reviews.

Civil Procedure and Evidence — Tennessee Survey 1970 (Jerry J. Phillips), 38 Tenn. L. Rev. 127.

Cited: Southern Paving Const. Co. v. Knoxville, 245 F. 421, 1917 U.S. App. LEXIS 1503 (6th Cir. Tenn. 1917); Pinkerton v. Fox, 23 Tenn. App. 159, 129 S.W.2d 514, 1939 Tenn. App. LEXIS 22 (Tenn. Ct. App. 1939); Stevens v. Linton, 190 Tenn. 351, 229 S.W.2d 510, 1950 Tenn. LEXIS 492 (1950); Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531, 1963 Tenn. LEXIS 442 (1963); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979).

20-2-109. Service on joint obligor on negotiable paper.

In joint actions on negotiable paper, service of a counterpart writ on the drawer or maker shall not be sufficient service to hold the drawer or maker to answer the action, unless the original writ was executed on a joint drawer or maker.

Code 1858, § 2823 (deriv. Acts 1827, ch. 74, § 2); Shan., § 4528; Code 1932, § 8655; T.C.A. (orig. ed.), § 20-212.

Cross-References. Several liability on joint obligations, §§ 20-1-107, 47-3-414.

Summons and issuance thereof, Tenn. R. Civil P. 4.01.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 121, 127.

20-2-110. [Repealed.]

Compiler's Notes. Former § 20-2-110 (Code 1858, § 2828 (deriv. Acts 1835-1836, ch. 19, § 13); Shan., § 4534; Code 1932, § 8661; Acts 1975, ch. 96, § 1; T.C.A. (orig. ed.), § 20-213), concerning tests of process, was repealed by Acts 1985, ch. 538, § 1.

20-2-111. Returns made with ink — Penalty for violation.

1. Sheriffs, constables and all officers are required to make their returns upon all processes issued to them with pen and ink or some other nonerasable material or fluid; but the failure of the officer to make the officer's return as required shall in no case vitiate the return.
2. Any officer violating this section commits a Class A misdemeanor, and is further liable in damages to any person or persons aggrieved by the violation.

Acts 1889, ch. 51, §§ 1, 2; Shan., §§ 4537, 4538; mod. Code 1932, §§ 8664, 8665; T.C.A. (orig. ed.), § 20-216; Acts 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Powers of attorney to serve subpoenas, § 23-2-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.13.

Collateral References.

Civil liability of one making false or fraudulent return of process. 31 A.L.R.3d 1393.

20-2-112. Wrongful death action by other than personal representative pending — Service in civil action against estate.

1. Where a wrongful death action has been instituted by any person other than an executor, executrix, administrator or administratrix of a decedent's estate, the estate may be made a party defendant to any civil action arising out of the same facts, happenings, or circumstances otherwise properly brought by serving process on the person instituting the original wrongful death action.
2. If, after a decedent's estate is made a party defendant as provided in subsection (a), an executor, executrix, administrator or administratrix of the decedent's estate is thereafter appointed, the person who instituted the original wrongful death action shall notify the executor, executrix, administrator or administratrix of the decedent's estate in writing of all actions heretofore instituted against the decedent's estate. The failure of the person to notify the executor, executrix, administrator or administratrix of the decedent's estate, as provided in this subsection (b), may render the person liable for all resultant damages.
3. Any individual served with process under this section shall notify any person or entity charged with the responsibility of defending the action to which the subject estate has been made a defendant. The notice shall be in writing.

Acts 1968, ch. 552, §§ 1, 2; T.C.A., § 20-242.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276.

Cited: Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988).

20-2-113. Long-arm statute — Service upon person in foreign country.

1. If service is to be effected upon a party in a foreign country, service of the summons and complaint may be made:
   1. In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;
   2. As directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice;
   3. Upon an individual, by delivery to the individual personally; and upon a corporation, partnership or association, by delivery to an officer or a managing or general agent;
   4. By any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
   5. As directed by order of the court.
2. Service under subdivision (a)(3) or (a)(5) may be made by any person who is not a party and is not less than twenty-one (21) years of age, anyone duly authorized to serve summons by the law of the country where service is to be made or anyone designated by order of the court or the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. Proof of service may be made as prescribed in Tenn. R. Civ. P. 4, by order of the court or by the law of the foreign country. Proof of service by mail shall include an affidavit or certificate of addressing and mailing by the clerk of court.

Acts 1992, ch. 679, § 1.

Law Reviews.

Service of Process Upon Foreign Defendants Under the Hague Convention (Michael L. Silhol) 28 No. 5 Tenn. B.J. 16 (1992).

Part 2
Long-Arm Statutes

NOTES TO DECISIONS

1. Application of Other Laws.

In bill to subject property, provisions of § 26-4-104 relating to lien lis pendens contained in chapter dealing with bills to subject property governed over general provisions relating to lis pendens contained in this section. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

This section is applicable to the attachment provision of § 29-6-135, and bank's attachment was ineffective in defeating the rights of bona fide purchasers, where that attachment had not been properly filed. American Nat'l Bank & Trust Co. v. Wilds, 545 S.W.2d 749, 1976 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1976).

2. Effect of Lis Pendens.

Lot upon which lien lis pendens was fixed was not subject to execution or attachment at law. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

An attaching creditor who records a notice of lis pendens has priority over a bona fide conveyee whose deed is not recorded until after the registration of the lis pendens notice. W. & O. Constr. Co. v. IVS Corp., 688 S.W.2d 67, 1984 Tenn. App. LEXIS 3187 (Tenn. Ct. App. 1984).

Filing of a notice of lien lis pendens neither created nor perfected a lien for purposes of removal of the judgment as a voidable preference under bankruptcy law. In re Ressler, 61 B.R. 403, 1986 Bankr. LEXIS 6099 (Bankr. E.D. Tenn. 1986).

3. Failure to File Abstract.

Where property owners, who brought suit to enforce restrictive covenants upon use of land against defendant's property by imposition of an equitable servitude or negative reciprocal easement, did not file an abstract of the suit as required by this section, and where defendant had entered upon performance of its contract for the purchase of realty without notice of property owner's equitable claim, defendant was a bona fide encumbrancer for value of the tract of land to which no lien lis pendens attached. Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 1976 Tenn. LEXIS 620 (Tenn. 1976).

It is unnecessary, when compliance has been had with §§ 64-1115 (now § 66-11-115) and 64-1117 (now § 66-11-117 (repealed)), to go further and file the notice of abstract pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

4. Necessity for Filing.

No one is required, in addition to complying with every requirement of the mechanic's and materialmen's statute, to file lis pendens pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

5. Effect of Filing.

Architectural firm's filing a notice of lien lis pendens pursuant to this section did not in and of itself create a lien; such a filing was merely a procedural step, and there had to be some other authority, equitable or otherwise, to provide the basis for a lien right. In re Airport-81 Nursing Care, Inc., 32 B.R. 960, 1983 Bankr. LEXIS 5408 (Bankr. E.D. Tenn. 1983).

6. Personalty.

Buildings to be used as branch banks, annexed to the property only by utility hookups and constructed to be portable so they could be moved or sold as market conditions or need changed, were personalty and not subject to lien lis pendens. Hubbard v. Hardeman County Bank, 868 S.W.2d 656, 1993 Tenn. App. LEXIS 564 (Tenn. Ct. App. 1993).

Collateral References. 51 Am. Jur. 2d, Lis Pendens §§ 15, 22-25.

54 C.J.S. Lis Pendens §§ 4-6, 25.

Fraudulent conveyance, doctrine of lis pendens as applicable to actions to avoid or to prevent. 74 A.L.R. 690.

Lis pendens as applicable to suit for divorce or separation. 65 A.L.R.4th 522.

Right to secure new or successive notice of lis pendens in same or new action after loss or cancellation of original notice. 52 A.L.R.2d 1308.

Will contest, necessity of filing notice of lis pendens in. 159 A.L.R. 386.

Lis Pendens 6-11.

20-4-101. Transitory actions.

1. In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the individual defendant resides.
2. If, however, the plaintiff and defendant both reside in the same county in this state, then the action shall be brought either in the county where the cause of action arose or in the county of their residence.
3. Where the action is brought either in the county where the cause of action arose or in the county where the defendant resides, process may be sent to another county as in local action, and it shall not be necessary nor required that the defendant be in the county of action either when the action is commenced or during the time between the commencement of the action and service of process.

Code 1858, §§ 2808, 2809 (deriv. Acts 1809 (Sept.), ch. 126, § 3); Shan., §§ 4513, 4514; Code 1932, §§ 8640, 8641; Acts 1967, ch. 55, § 1; 1971, ch. 51, § 1; 1972, ch. 446, § 1; T.C.A. (orig. ed.), § 20-401; Acts 2011, ch. 510, § 3.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which amended subsection (a), shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment substituted “individual defendant resides” for “defendant resides or is found” at the end of (a).

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Cross-References. Divorce action, § 36-4-105.

Venue of chancery courts, § 16-11-114.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-8-4.1, 1-8-2, 1-8-12.

Tennessee Jurisprudence, 1 Tenn. Juris., Actions, § 5; 3 Tenn. Juris., Attorney and Client, § 12; 4 Tenn. Juris., Automobiles, § 36; 7 Tenn. Juris., Corporations, § 118; 11 Tenn. Juris., Equity, § 47; 24 Tenn. Juris., Venue, §§ 3, 4; 26 Tenn. Juris., Workers' Compensation, § 47.

Law Reviews.

Abolishing Local Action Rules: A First Step toward Modernizing Jurisdiction and Venue in Tennessee, 34 U. Mem. L. Rev. 251 (2004).

Jurisdiction, Venue and “Localized Actions” in Tennessee (June F. Entman), 39 No. 4 Tenn. B.J. 33 (2003).

Tennessee Workers' Compensation — Where Is the Proper Venue? (D. Andrew Byrne, Ted C. Raynor), 20 Mem. St. U.L. Rev. 189 (1990).

Comparative Legislation. Venue:

Ala.  Code § 6-3-1 et seq.

Ark.  Code § 16-60-101 et seq.

Ga. O.C.G.A. § 9-10-30 et seq.

Ky. Rev. Stat. Ann. § 452.400 et seq.

Miss.  Code Ann. § 11-11-1 et seq.

Mo.  Rev. Stat. § 508.010 et seq.

N.C. Gen. Stat. § 1-76 et seq.

Va.  Code § 8.01-257 et seq.

Cited: Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595, 1948 Tenn. LEXIS 587 (1948); Williams v. Williams, 193 Tenn. 133, 244 S.W.2d 995, 1951 Tenn. LEXIS 336 (1951); White v. Garner, 192 Tenn. 429, 241 S.W.2d 518, 1951 Tenn. LEXIS 425 (1951); Parker v. Reddick, 196 Tenn. 472, 268 S.W.2d 357, 1954 Tenn. LEXIS 408, 45 A.L.R.2d 1096 (1954); Beckham v. Johnson, 220 Tenn. 572, 421 S.W.2d 94, 1967 Tenn. LEXIS 439 (1967); Romines v. K & S Engineering & Contracting Co., 556 S.W.2d 85, 1977 Tenn. LEXIS 610 (Tenn. 1977); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 1988 Tenn. LEXIS 242 (Tenn. 1988); Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990); Valley Fidelity Bank & Trust Co. v. Ayers, 861 S.W.2d 366, 1993 Tenn. App. LEXIS 361 (Tenn. Ct. App. 1993); Davis v. Holland, 31 S.W.3d 574, 2000 Tenn. App. LEXIS 184 (Tenn. Ct. App. 2000); Hawkins v. Tenn. Dep't of Corr., 127 S.W.3d 749, 2002 Tenn. App. LEXIS 536 (Tenn. Ct. App. 2002); Netherland v. Hunter, 133 S.W.3d 614, 2003 Tenn. App. LEXIS 730 (Tenn. Ct. App. 2003); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011).

20-4-102. District in which tort arose.

1. When the plaintiff and defendant are both residents of the same county but reside in different districts within the venue of separate courts, a tort action may be brought in the court within the venue of the district where the cause of action arose, and the process may be served in other districts in the county not within the venue of the court.
2. [Deleted by 2011 amendment.]

Acts 1953, ch. 34, §§ 3, 4 (Williams, §§ 8641.3, 8641.4); T.C.A. (orig. ed.), § 20-403; Acts 2011, ch. 510, § 4.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which deleted former subsection (b), shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment deleted (b) which read: “This section shall also apply to corporations, either domestic or foreign, that maintain an office or agency, or are otherwise amenable to service of process, in a district in the county where the cause of action arose, but outside of the district within the venue of the court where the cause of action arose and where the action is pending.”

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Hawkins v. Tenn. Dep't of Corr., 127 S.W.3d 749, 2002 Tenn. App. LEXIS 536 (Tenn. Ct. App. 2002).

20-4-103. Actions in rem.

In actions commenced by the attachment of property without personal service of process, and in cases where the suit is brought to obtain possession of personal property, or to enforce a lien or trust deed or mortgage, or where it relates to real property, the attachment may be sued out or suit brought in any county where the real property, or any portion of it, lies, or where any part of the personal property may be found.

Code 1858, § 2810 (deriv. Acts 1847-1848, ch. 173); Shan., § 4515; mod. Code 1932, § 8642; T.C.A. (orig. ed.), § 20-404.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, §§ 3, 34, 101; 10 Tenn. Juris., Ejectment, § 13; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

Venue — Localizing Transitory Actions in Tennessee Civil Proceedings, 35 Tenn. L. Rev. 520.

20-4-104. Business office of party.

For all civil actions, if the defendant is not a natural person, the action shall be brought in:

1. The county where all or a substantial part of the events or omissions giving rise to the cause of action accrued;
2. The county where any defendant organized under the laws of this state maintains its principal office; or
3. 1. If the defendant is not organized under the laws of this state, the county where the defendant's registered agent for service of process is located; or
   2. If the defendant does not maintain a registered agent within this state, the county where the person designated by statute as the defendant's agent for service of process is located.

Code 1858, § 2811 (deriv. Acts 1845-1846, ch. 55, § 2; 1849-1850, ch. 136; 1851-1852, ch. 136); Shan., § 4516; Code 1932, § 8643; T.C.A. (orig. ed.), § 20-40; Acts 2011, ch. 510, § 2.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which rewrote this section, shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment rewrote this section which read: “When a corporation, partnership or individual has an office or agency in any county for the transaction of business, actions growing out of, or connected with, the business of that office or agency, may be brought in the county in which the office or agency is located.”

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Agency, § 57; 7 Tenn. Juris., Corporations, §§ 91, 118, 121; 24 Tenn. Juris., Venue, §§ 2, 4.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Cartmell v. Mechanics' Ins. Co., 167 Tenn. 498, 71 S.W.2d 688, 1934 Tenn. LEXIS 7 (1934); Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595, 1948 Tenn. LEXIS 587 (1948); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979); Nelson v. Ford Motor Credit Co., 590 S.W.2d 457, 1979 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1979); Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

20-4-105. Objection to venue.

If action is brought in the wrong county, it may be prosecuted to a termination, unless abated by plea of the defendant.

Code 1858, § 2812; Shan., § 4517; Code 1932, § 8644; T.C.A. (orig. ed.), § 20-406.

Cross-References. Pleading, Tenn. R. Civ. P. 7-12.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 28; 24 Tenn. Juris., Venue, §§ 2, 3.

Law Reviews.

Jurisdiction, Venue and “Localized Actions” in Tennessee (June F. Entman), 39 No. 4 Tenn. B.J. 33 (2003).

Venue — Localizing Transitory Actions in Tennessee Civil Proceedings, 35 Tenn. L. Rev. 520.

Cited: Hall v. Southhall Bros. & Carl, 146 Tenn. 129, 240 S.W. 298, 1921 Tenn. LEXIS 9 (1921); Metropolitan Dev. & Housing Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 1982 Tenn. App. LEXIS 390 (Tenn. Ct. App. 1982).

20-4-106. [Repealed.]

Acts 1968, ch. 523, § 1 (17.05); T.C.A., § 20-407, repealed by Acts 2011, ch. 510, § 5, effective October 1, 2011.

Compiler's Notes. Former § 20-4-106 concerned venue of actions against foreign corporations.

20-4-107. Real property — State or agency a party.

Notwithstanding any other law or rule of procedure to the contrary, any action the subject matter of which involves real property in which this state, or any agency of this state, is a party, may be properly instituted in any county in which the property is located.

Acts 1981, ch. 493, § 1.

Law Reviews.

Judicial Review under the Tennessee Uniform Administrative Procedures Act — An Update (Ben H. Cantrell), 13 Mem. St. U.L. Rev. 589 (1984).

Cited: Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999); Lanius v. Nashville Elec. Serv., 181 S.W.3d 661, 2005 Tenn. LEXIS 1047 (Tenn. 2005); Williams v. Nicely, 230 S.W.3d 385, 2007 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 28, 2007).

20-4-108. Construction.

Nothing in this part shall be construed to repeal or modify any other specific or special venue provision of state law.

Acts 2011, ch. 510, § 6.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which enacted this section, shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Part 2
Change of Venue

NOTES TO DECISIONS

1. Revival of Action.

Two terms after death of a party an action can be abated, but if procedure is not followed the action can be revived by a bill of revivor. Cobb v. Conway, 1 Tenn. 294, 1808 Tenn. LEXIS 16 (1808).

A suit which has abated by the death of either party, may be revived by or against the heirs, personal representatives or assigns who may be legally entitled to decedent's place in the subject matter of the litigation. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914).

In suit by conservator to have certain deeds of a decedent declared invalid, where plaintiff died prior to submission of case to jury it was error for the trial court to proceed with the submission of the case to the jury without revivor in the name of the proper party complainants and in withholding from the jury the information of the plaintiff's death, however such error was not reversible where no assignment of error was made to this action of the court. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action brought by conservator, court erred in submitting case to jury after receiving word that complainant had died, the action of the chancellor in reviving the cause in the name of the proper parties complainant after the verdict of the jury was received but before a decree was entered cured all defects resulting from the failure of the chancellor to require the cause to be revived before the submission of the case to the jury. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action by conservator of plaintiff to have deeds executed by a deceased declared invalid, the plaintiff died prior to the submission of the case to the jury, defendant was not entitled to a mistrial, but only to have the proceedings suspended until the cause was revived in the name of the proper parties. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

2. Abatement of Specified Actions.

According to the general rule the legal cause of action for fraud does not survive the death of the defrauded person or the wrongdoer. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

3. —Will Contest.

In will contest, the death of one of the contestants was without effect on the jurisdiction of the court; the order of abatement should not have been entered; and order of revival would have been unnecessary and inapt. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

4. —Inquisition of Lunacy.

In proceeding instituted to have a defendant declared a lunatic and to have a guardian appointed for him and his property, the cause of action does not survive or continue after the death of the defendant, not even for a determination as to whether the costs shall be adjudged against the defendant's estate. Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, 1904 Tenn. LEXIS 52 (1904).

5. —Divorce Suit.

A suit for divorce and alimony does not survive; and the wife cannot, after the death of her husband, bring her bill against his personal representative for alimony, where she failed to enforce her remedy in his lifetime. Even when a proceeding was commenced during his lifetime, it abates at his death, and cannot be carried on against his personal representative. Swan v. Harrison, 42 Tenn. 534, 1865 Tenn. LEXIS 100 (1865); Owens v. Sims, 43 Tenn. 544, 1866 Tenn. LEXIS 85 (1866).

6. —Suits by and Against Public Officers.

A suit for the public benefit prosecuted by a public officer in his official capacity will not abate upon his death or upon the expiration of his term of office, and may be prosecuted by his successor. Felts v. Memphis, 39 Tenn. 650, 1859 Tenn. LEXIS 296 (1859); State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881). See Polk v. Plummer, 21 Tenn. 500, 1841 Tenn. LEXIS 55, 37 Am. Dec. 566 (1841).

A suit to assert a right against a county, through its financial agent as defendant, as a mandamus suit to compel a county judge to issue a warrant, did not abate, and no revivor against the successor in office was necessary. State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881).

7. —Defectively Incorporated Municipality.

Where suit was brought on bonds issued by a town and such bonds were declared invalid on account of the invalidity of the law incorporating the city, the judgment declaring the bonds invalid cannot be treated as of no effect on the theory that, as the town was defectively incorporated, there was no one in existence to represent it. Beyer v. Athens, 249 F. 849, 1918 U.S. App. LEXIS 2304 (6th Cir. Tenn. 1918).

8. —Insurance Matters.

Where insured died before commencing action against automobile liability insurer based on alleged bad faith in refusing to settle within the policy limits, the cause of action abated. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961). But see § 20-5-120.

The assignability of a right of action depends on whether it would survive and pass to the personal representative; if it would survive it may be assigned. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 47-50, 143.

1 C.J.S. Abatement and Revival §§ 3, 4, 133; 25A C.J.S. Death § 16.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party. 65 A.L.R.2d 1211.

Constitutionality of statute allowing suit to be continued against foreign executor or administrator on death of defendant. 40 A.L.R. 796.

Modern status of rule denying a common-law recovery for wrongful death. 61 A.L.R.3d 906.

Mortgagee's death after sale of property but before confirmation of sale, abatement on. 150 A.L.R. 502.

Nunc pro tunc judgment after death of party in action which does not survive. 3 A.L.R. 1423, 68 A.L.R. 261, 104 A.L.R. 654, 158 A.L.R. 1205.

Partnership creditor's right to proceed against estate of deceased partner as affected by survival statutes. 61 A.L.R. 1423.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Relation between survivability of cause of action and abatability of pending action. 92 A.L.R. 956.

War as affecting pending litigation. 137 A.L.R. 1335, 147 A.L.R. 1298, 148 A.L.R. 1384, 149 A.L.R. 1452, 150 A.L.R. 1418, 154 A.L.R. 1447.

Widow's or family allowance, abatement of action or proceeding for, upon death of beneficiary. 144 A.L.R. 285.

Abatement and Revival 51-57.

NOTES TO DECISIONS

1. Revival of Actions in General.

Suits commenced, with a single exception (that of actions for wrongs affecting the plaintiff's character), shall not abate or discontinue upon the death of either party, but may be revived. Churchwell v. Bank of East Tennessee, 48 Tenn. 780, 1870 Tenn. LEXIS 147 (1870).

The tendency has been, by decision and by statute, to limit and circumscribe the effect of the rule that actions abate by the death of the parties thereto; and there is no case to be found within the last two centuries in which the scope of this rule has been extended or broadened. Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 1913 Tenn. LEXIS 72, 49 L.R.A. (n.s.) 897 (1914).

Whether there is survival depends upon the substance, not form, of the action. Bowman v. Hart, 161 Tenn. 402, 33 S.W.2d 58, 1930 Tenn. LEXIS 19 (1930).

In suit by conservator to have certain deeds of a decedent declared invalid, where plaintiff died prior to submission of case to jury it was error for the trial court to proceed with the submission of the case to the jury without revivor in the name of the proper party complainants and in withholding from the jury the information of the plaintiff's death, however such error was not reversible where no assignment of error was made to this action of the court. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action brought by conservator, court erred in submitting case to jury after receiving word that complainant had died, the action of the chancellor in reviving the cause in the name of the proper parties complainant after the verdict of the jury was received but before a decree was entered cured all defects resulting from the failure of the chancellor to require the cause to be revived before the submission of the case to the jury. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action by conservator of plaintiff to have deeds executed by a deceased declared invalid the plaintiff died prior to the submission of the case to the jury, defendant was not entitled to a mistrial, but only to have the proceedings suspended until the cause was revived in the name of the proper parties. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

The rule of abatement at death has never been favored in the courts of this state. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

The right of recovery in a wrongful death case is strictly a creation of statute. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

2. Commencement of Suit Required for Revival.

The statute in this section applies only where the suit for a wrong was commenced against the wrongdoer in his lifetime, and it warrants a revivor of such suit against his personal representative, except suits for wrongs affecting the character of the plaintiff. This statute does not authorize the institution of such suits against the personal representative of the wrongdoer. Winters v. McGhee, 35 Tenn. 128, 1855 Tenn. LEXIS 28 (1855); Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871); Baker v. Dansbee, 54 Tenn. 229, 1872 Tenn. LEXIS 40 (1872); Johnson v. Maury County Trust Co., 15 Tenn. App. 326, — S.W.2d —, 1932 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1932).

The fact that an action brought may be revived under this section does not make the cause of action survive. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

3. Cause of Action.

Whether a particular action survives or abates depends entirely upon whether the cause of action survives or continues. Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, 1904 Tenn. LEXIS 52 (1904).

This section creates no new and independent action but merely preserves the cause of action that belonged to the person injured. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

T.C.A. § 20-5-102 did not operate to save lawsuit from abatement at the death of the nursing home resident because the partition action was not based on a wrongful act; conservator's complaint for partition against the daughter acknowledged the existence of the joint tenancy, but did not make any reference to the way in which it was created. Rusnak v. Phebus, — S.W.3d —, 2008 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 29, 2008).

4. Damages.

The damages recoverable under this section are such as the deceased could have recovered if he had lived. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

5. Contribution Among Joint Tortfeasors.

A suit for contribution whether in equity or at law is not ex delicto in nature but is a separate and distinct action and survives the death of the holder of that right. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

Suit by administrator of estate of deceased commissioner of utility district against other commissioners for contribution on judgment recovered against deceased commissioner during his lifetime for alleged mishandling of funds was not ex delicto in nature but was a separate and distinct action which survived death of commissioner. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

6. Personal Injury Actions.

An action commenced for personal injuries may be revived in the name of the personal representative, and prosecuted for the benefit of his estate, after the plaintiff's death, even where he died from some cause other than the injury sued for, and without widow or next of kin. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

Where the plaintiff in personal injury case died before judgment on appeal, and there was nothing done to revive it, and the plaintiff did not die from injuries sustained which were the basis for the suit, a judgment for abatement was correctly entered. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

Where an injured party brings suit for personal injuries and thereafter dies from other supervening causes, such suit for personal injuries may be revived in the name of the plaintiff's personal representative but not in the name of the next of kin. Gipson v. Memphis S. R. Co., 51 Tenn. App. 31, 364 S.W.2d 110, 1962 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1962).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

7. Negligency by Laboratory.

An action on behalf of a deceased putative father against a laboratory based on negligence in the conduct of a paternity test could not be brought by the father's child as next friend, but could only be maintained by the surviving spouse of the deceased. Miller v. Niblack, 942 S.W.2d 533, 1996 Tenn. App. LEXIS 645 (Tenn. Ct. App. 1996).

8. Malpractice.

An action for malpractice did not abate upon the plaintiff's death from a cause other than the wrongful act of the defendant. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

9. Survival of Foreign Actions.

Widow of deceased killed in automobile accident in Florida was entitled to sue administrator of deceased driver in Tennessee where law in Florida provided that action survived in favor of widow even though law in Tennessee provided that action did not survive unless filed prior to death of tort-feasor. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

10. Survival in Federal Court.

The survivability of an action for misrepresentations being beyond the power of federal legislation, the federal courts will adopt the local laws in regard to the reviving suits abated by the death of the parties. Warren v. Furstenheim, 35 F. 691, 1888 U.S. App. LEXIS 2039, 1 L.R.A. 40 (C.C.D. Tenn. 1888).

11. Fraud.

According to the general rule the legal cause of action for fraud does not survive the death of the defrauded person or the wrongdoer. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

12. Pleadings.

Where complainant died after final decree in his favor and after the adjournment of the court, the defendant was entitled to a writ of error and scire facias to revive the cause of action against the heirs of the deceased. Tipton v. Tipton, 118 Tenn. 691, 104 S.W. 237, 1907 Tenn. LEXIS 71 (1907).

Plea of abatement by widow was properly sustained where allegations failed to show that widow was the executrix, administratrix or executor de son tort of deceased husband. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

13. “Wrongs Affecting Character of Plaintiff.”

“Wrongs affecting the character of the plaintiff” include, malicious prosecution, libel, false imprisonment, breach of promise to marry, alienation of wife's affections, and seduction. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874) (malicious prosecution); Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885) (libel); Weeks v. Mays, 87 Tenn. 442, 10 S.W. 771, 1888 Tenn. LEXIS 74, 3 L.R.A. 212 (1889) (breach of promise); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899) (breach of promise); Justice v. Clinard, 142 Tenn. 208, 217 S.W. 663, 1919 Tenn. LEXIS 49 (1919) (alienation); Witt v. Krichbaum, 5 Tenn. App. 48, 1927 Tenn. App. LEXIS 33 (1927) (false imprisonment); Bowman v. Hart, 161 Tenn. 402, 33 S.W.2d 58, 1930 Tenn. LEXIS 19 (1930) (seduction); Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939) (libel).

Where the plaintiff recovers a judgment against the defendant in an action for “wrongs affecting the character of the plaintiff,” from which judgment the defendant appeals, in the nature of a writ of error, and, pending the appeal, either dies, a revivor of the appeal may be had in favor of or against the personal representative of the deceased party, as the case may be. This is allowed on the principle that the recovery of a judgment merges the tort, which was the foundation of the action, into the judgment, and it thus becomes a debt, and that the appeal in the nature of a writ of error merely suspends, and does not vacate or annul, the judgment. Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899); Pickens v. Scarbrough, 164 Tenn. 75, 46 S.W.2d 58, 1931 Tenn. LEXIS 14 (1932). See Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871).

14. —Alienation of Affections.

Action for alienation of affections does not survive death of defendant. Brummett v. Evans, 148 F. Supp. 309, 1957 U.S. Dist. LEXIS 4020 (D. Tenn. 1957).

15. —Breach of Promise and Seduction.

An action for the breach of a marriage contract is one for a wrong “affecting the character of the plaintiff,” and abates upon the defendant's death, and cannot be revived against his personal representative or heirs. Weeks v. Mays, 87 Tenn. 442, 10 S.W. 771, 1888 Tenn. LEXIS 74, 3 L.R.A. 212 (1889); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899).

The defendant's death, pending his appeal from a judgment against him in an action for breach of promise to marry, operates to abate the action where the judgment is subsequently reversed, and the cause remanded. Upon reversal of the judgment, the action again becomes one for tort and is abatable. Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899).

Action by woman against estate for seduction and breach of promise of marriage by deceased survived against wrongdoer by virtue of provisions of § 20-5-103, since § 20-5-103 makes no exceptions or exclusions. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

16. —Libel or Slander.

If, in case of revived appeal, the judgment for libel is reversed, the demand is restored to its original character, and the death of the wrongdoer abates the suit as though no judgment had ever been rendered upon the demand. Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885).

The exception as to wrongs affecting the character of the plaintiff, made in this section, does not defeat an action based on a libel contained in a will first published after the testator's death, because this section relates only to actions commenced during the lifetime of the deceased party. Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 1913 Tenn. LEXIS 72, 49 L.R.A. (n.s.) 897 (1914).

A wife has no cause of action because of the libel of her deceased husband, as the proper party to sue as plaintiff in an action for libel is the person directly defamed. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 661, 130 S.W.2d 106, 1938 Tenn. LEXIS 136 (1939).

17. —Malicious Prosecution.

Where judgment is for defendant in suit for malicious prosecution and plaintiff appeals, and pending appeal one of the parties dies there can be no revivor. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874).

18. —Damages.

Where cause of action for libel abated with the death of the injured party, the consequences that followed such cause of action as elements of damage could not be made the basis of a new cause of action by the widow and next of kin. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 27, 48, 51-76, 109.

1 C.J.S. Abatement and Revival §§ 160-186; 25A C.J.S. Death § 16.

Reputation, what actions or causes of action involve injury to, within statute relating to survival of causes of action or abatement of action. 117 A.L.R. 574.

Usury, survival of claim for, against estate of usurer. 78 A.L.R. 451.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Abatement and revival 71-77.

NOTES TO DECISIONS

1. Cause of Action Preserved.

The enactment of this section in no way created any new and independent cause of action; it merely preserved the cause of action that belonged to the person before the one who caused the injury died. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

Right of action for damages for seduction and breach of promise of marriage against the heirs and administrator of the alleged seducer who died a few months before the action was begun is saved by this section notwithstanding the provisions of § 20-5-102 providing for abatement of actions already commenced, which affect the character of the plaintiff, upon the death of either party. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

Cause of action against insured for alleged intentional burning survived his death. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

Although the decedent died before appellants filed their complaint for injuries sustained in the car accident with decedent, the death of the decedent did not foreclose appellants' cause of action. Owens v. Muenzel, — S.W.3d —, 2018 Tenn. App. LEXIS 752 (Tenn. Ct. App. Dec. 21, 2018).

2. Dismissal Proper.

Negligent entrustment suit brought against an estate was properly dismissed, because the procedures in T.C.A. § 20-5-103 were not followed where, after the appointment of an administrator ad litem, a claim was filed against the estate and process was served on a decedent's mother, who was not a personal representative; the complaint named the estate, the body of the complaint did not make reference to a personal representative, and service was not timely or in compliance with Tenn. R. Civ. P. 4. Hembree v. Estate of Styles, — S.W.3d —, 2007 Tenn. App. LEXIS 768 (Tenn. Ct. App. Dec. 17, 2007).

In a personal injury action filed by plaintiff injured party against a deceased driver, a trial court properly denied plaintiff's Tenn. R. Civ. P. 15.03 motion to amend to add the personal representative as a defendant and dismissed the action because plaintiff failed to name the personal representative as a defendant before the expiration of the one-year statute of limitations, as required by T.C.A. § 20-5-103. Vaughn v. Morton, 371 S.W.3d 116, 2012 Tenn. App. LEXIS 201 (Tenn. Ct. App. Mar. 28, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 435 (Tenn. June 19, 2012).

Trial court did not err in refusing to enlarge the time period for substituting an administrator ad litem as the defendant or in dismissing his negligence claims against a deceased husband and his wife because the injured driver failed to have the administrator timely appointed, substituted, and served prior to the expiration of the statute of limitations, and the injured driver failed to follow the steps of the survival statute before the expiration of the statute of limitations. Ferrell v. Ivey, — S.W.3d —, 2013 Tenn. App. LEXIS 782 (Tenn. Ct. App. Nov. 27, 2013).

Failure of a driver and her husband to comply with the survival statute by appropriately commencing their personal injury case until after the expiration of the statute of limitations barred their recovery because no new cause of action arose on the date they discovered the decedent's death that extended the statutory period for filing their claim simply on the ground that they failed to realize the decedent died until that date. Putnam v. Leach, — S.W.3d —, 2018 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 23, 2018).

When a decedent died the survival statute paused the statute of limitations, and because no personal representative was appointed during the six month period following his death, the statute of limitations recommenced; because the statute of limitations period ran before a driver and her husband filed their action against the administrator ad litem, the statute of limitations barred their personal injury claims, and the administrator's motion to dismiss was properly granted. Putnam v. Leach, — S.W.3d —, 2018 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 23, 2018).

Trial court properly dismissed plaintiff's personal injury lawsuit and denied plaintiff's relief based on excusable neglect; plaintiff filed suit against the former personal representative of defendant, after the estate was opened, administered, and closed. The trial court found that the original lawsuit, while timely filed, was a nullity because the estate had been closed. The failure to strictly follow the statute by naming the personal representative was fatal to the survivability of the action. Algee v. Craig, — S.W.3d —, 2020 Tenn. App. LEXIS 137 (Tenn. Ct. App. Mar. 31, 2020).

3. Common Law Rule Changed.

This section providing for survival of action against deceased tort-feasor changes the common law, hence procedure designated must be strictly followed. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

4. Parties.

Suit under this section can only be instituted against personal representative of deceased wrongdoer. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953); Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988).

Suit cannot be maintained against executor de son tort of deceased. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

Circuit court is not authorized to appoint an administrator ad litem for deceased wrongdoer, since appointment can only be made by probate or chancery court. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

By the time plaintiffs served process upon a deceased tortfeasor's personal representative, more than a year had passed since the expiration of the statute of limitations. Having failed to follow the steps of the survival statute, T.C.A. § 20-5-103, before the expiration of the statute of limitations, plaintiffs'  action against the estate was time-barred. Bryant v. Estate of Klein, — S.W.3d —, 2009 Tenn. App. LEXIS 154 (Tenn. Ct. App. Apr. 20, 2009).

By the time plaintiffs served process upon a deceased tortfeasor's personal representative, more than a year had passed since the expiration of the statute of limitations. Having failed to follow the steps of the survival statute, T.C.A. § 20-5-103, before the expiration of the statute of limitations, plaintiffs'  action against the estate was time-barred. Bryant v. Estate of Klein, — S.W.3d —, 2009 Tenn. App. LEXIS 154 (Tenn. Ct. App. Apr. 20, 2009).

Trial court did not abuse its discretion in denying victims'  petition to intervene in an estate's wrongful death action against a city because filing of an intervening complaint was not a substitute for a properly filed tort action directly against the estate under the Survival Statute; because the victims did not follow the statute's procedure, they had no claim against the decedent's estate for the damages he allegedly caused prior to his death. White v. Johnson, 522 S.W.3d 417, 2016 Tenn. App. LEXIS 474 (Tenn. Ct. App. July 7, 2016).

5. Alienation of Affections.

Action for alienation of affections does not survive death of defendant. Brummett v. Evans, 148 F. Supp. 309, 1957 U.S. Dist. LEXIS 4020 (D. Tenn. 1957).

6. Service Upon Personal Representative.

Trial court did not err in granting an uninsured motorist carrier summary judgment because an insured's claim against it was barred; because a driver, the alleged tortfeasor, died prior to the filing of the complaint, in order to comply with the Survival Statute, T.C.A. § 20-5-103(a), the insured was required to serve the driver's personal representative with process prior to the expiration of the statute of limitations, T.C.A. § 28-3-104(a)(1), but the insured failed to submit any evidence showing that an estate was ever established for the grinder. Liput v. Grinder, 405 S.W.3d 664, 2013 Tenn. App. LEXIS 136 (Tenn. Ct. App. Feb. 27, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 615 (Tenn. July 11, 2013).

Decisions Under Prior Law

1. Death of Wrongdoer.

A right of action ex delicto is extinguished by the death of the wrongdoer where suit has not been commenced prior to his death. Brown v. Stephens, 165 Tenn. 85, 52 S.W.2d 146, 1931 Tenn. LEXIS 174 (1932), superseded by statute as stated in, Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988) citing cases.

2. Conversion of Property.

An action in tort for the conversion of property does not lie, and cannot be commenced, against the personal representative of the wrongdoer, though the tort may be waived, and an action ex contractu maintained. Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871).

Collateral References. 1 Am. Jur. 2d Abatement, Survival, and Revival §§ 61, 65, 66, 69-72.

1 C.J.S. Abatement and Revival §§ 137, 138; 25A C.J.S. Death §§ 16, 42.

Claim for negligently damaging or destroying personal property as surviving tort-feasor's death. 40 A.L.R.2d 533.

Contract, survivability of cause of action in tort against third person for procuring breach of. 93 A.L.R. 1133.

Dividends wrongfully paid, survival of directors' liability for. 55 A.L.R. 129, 76 A.L.R. 885, 109 A.L.R. 1381.

Husband and wife, survival against community of right of action for tort of deceased member of community. 67 A.L.R. 1159.

Medical malpractice action as abating upon death of either party. 50 A.L.R.2d 1445.

Privacy, survival of action for invasion of right of. 138 A.L.R. 22, 168 A.L.R. 466, 11 A.L.R.3d 1296, 57 A.L.R.3d 16.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Abatement and revival 62-64.

NOTES TO DECISIONS

1. Legislative Purpose.

The sole object of this section is to prevent the abatement or discontinuance of a suit on account of the death of either party, where no person will administer on the estate of a deceased plaintiff or defendant. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872).

There is no exception in the statute as to the character of suits that may be revived by or against the heirs of a deceased plaintiff or defendant, and the courts can make none. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

2. Compliance with Statutory Requirements.

The heirs can be proceeded against alone by a revivor of a suit pending against their ancestor only by strict compliance with the statute. There must be a suggestion or assumption of record and proof or admission that no one can be procured to administer, and motion for scire facias to revive against the heirs on this ground. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

3. Showing That No One Will Administer.

A revivor against an heir, even a minor, is not subject to be declared void in a collateral attack, because it fails to show that no one would administer. At most, this is only an error that might be corrected upon a direct review. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879); Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

Where the suit is by the vendee for the rescission of a contract for the sale and purchase of land, and for the recovery of the purchase money paid and the heirs answer without objection for want of revivor against the personal representative of the deceased defendant vendor, the heirs do not thereby waive the want of suggestion that no one could be procured to administer. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

The suggestion and assumption of record that no one could be procured to administer, as prerequisite to the issuance of a scire facias to revive against the heirs in order to obtain a judgment against them on account of lands descended or personalty received from their ancestor, cannot be waived by a minor heir, nor by his guardian ad litem. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

A suit for damages for personal injuries, brought by the injured party, cannot be revived in the name of his heirs at law or next of kin, unless it is shown that no person will administer on the estate of deceased plaintiff. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

4. Teste of Execution Before Death.

Plaintiff's death after teste of execution renders revivor unnecessary, though he died before its actual issuance. Neil v. Gaut, 41 Tenn. 396, 1860 Tenn. LEXIS 81 (1860); Harvey v. Berry, Demobille & Co., 60 Tenn. 252, 1872 Tenn. LEXIS 483 (1873); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880).

5. Revivor Against Executor De Son Tort.

A suit pending against the deceased may be revived against an executor of his own wrong (executor de son tort), but he may plead, as a defense, fully administered, payment to the creditors or rightful administrator, or any other defense accruing to him after the wrongful taking, or any other defense that he could plead to an original action. Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818).

6. Revivor Against Nonresident Heirs.

The statute applies where the deceased party's heirs or devisees, by or against whom the revivor is sought, are nonresidents of the state. Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS 148 (1870); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

The nonresident heirs of the deceased appellate in an action of replevin, who was the defendant below, and who died pending the appeal in the supreme court, may revive the suit in their names if no person will administer on the estate in this state, although an administration was granted in the state of the appellant's domicile. Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

7. Revivor Against Minors.

If the heirs or any of them, against whom the suit is revived, are minors, the court shall appoint a guardian ad litem for them. Bandy v. Walker, 40 Tenn. 568, 1859 Tenn. LEXIS 169 (1859).

8. Revivor in Replevin.

The rule applies in replevin suits, and the defendant may have a revivor against the heirs of the plaintiff, and judgment and execution against the lands descended, for the value of goods improperly taken by the ancestor (the deceased plaintiff) in replevin, as well as for ordinary debts; and the heirs of a deceased defendant in replevin may likewise have a revivor in their name against the plaintiff where no one can be procured to administer upon the estate of the deceased defendant. Bandy v. Walker, 40 Tenn. 568, 1859 Tenn. LEXIS 169 (1859); Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872); Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

9. Effect of Scire Facias.

Ordering a scire facias, at the same time the suit is revived in favor of the heirs of the deceased plaintiff, will not vitiate the order of revivor. Boyd v. Titzer, 46 Tenn. 568, 1869 Tenn. LEXIS 101 (1869).

A revivor may be made against nonresidents by bill of revivor stating the matters required to be stated in the scire facies, when that remedy is used, and by publication. Publication of a certified copy of such order must be made by the clerk. Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS 148 (1870).

10. Defenses to Motion to Revive.

Where persons claiming to be the proper representatives of deceased parties present themselves and move to revive, in favor of themselves, a pending cause, even in the supreme court, the opposing litigant may resist the revivor upon any sufficient ground, such as that they are not the heirs or all the heirs; and so, where it is sought to revive a pending suit against the heirs of a deceased party, such heirs may resist the revivor upon any sufficient ground, and the court must, in acting on the motion to revive, pass upon and decide these questions. Upon issue joined on the plea as to heirship, the proof may be made in open court, or by depositions taken upon notice, or before the clerk upon a reference to him for the purpose; and the latter, being the most convenient mode, has been adopted in practice. Mayfield v. Stephenson, 65 Tenn. 397, 1873 Tenn. LEXIS 372 (1873); Berrigan v. Fleming, 70 Tenn. 271, 1879 Tenn. LEXIS 174 (1879); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

It is not a good plea to the motion to revive a suit in the name of the heirs of a deceased plaintiff (all nonresidents) that the deceased had made a will in the state of his domicile, which had been probated under the laws of that state. Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

11. Judgment Against Heirs.

After the revivor, the judgment cannot be rendered for or against the heirs personally, but must be in their representative character. The execution on the judgment will issue against them, to be levied of the goods and chattels of the deceased in their possession, subject to execution. If there be no such goods and chattels, then to be levied on the lands and tenements of the deceased descended to the heirs. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872); Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

12. Omission of Heir in Order.

Where the order awarding the issuance of the writ of scire facias against the administrator and heirs of a deceased defendant names all of them, except one heir, and the writ issued was actually served upon the administrator and all the heirs, naming them, the revivor was held to be valid, although the true given name of the heir whose name was entirely omitted in the court's minute order was not stated in the return, but another given name was stated. McCracken v. Nelson, 83 Tenn. 312, 1885 Tenn. LEXIS 53 (1885).

13. Effect of Subsequent Appointment of Administrator.

After a revivor against the heirs of a decedent, a subsequently appointed administrator cannot come into the suit to set aside or review proceedings had previous to his appointment. Anderson v. McRoberts, 1 Cooper's Tenn. Ch. 279 (1873).

14. Appeal.

Where the plaintiff dies after judgment, but before the end of the term, the defendant may appeal without revivor. Stone v. Ringer, 51 Tenn. 265, 1871 Tenn. LEXIS 159 (1871).

If a party die pending the suit in the appellate court, and no one will administer on his estate, it may be revived by scire facias against his heirs and judgment entered for or against them in their representative capacity. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872).

In a chancery case, an appeal, when perfected, vacates the decree of the chancery court, and if a party dies pending the appeal, the suit, not the decree, may be revived in the appellate court. Ransom v. Carlisle, 8 Tenn. App. 448, — S.W.2d —, 1928 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1928).

15. Substitution of Proper Party.

Trial court erred in denying appellants'  motion for enlargement of time to file a motion to substitute the original plaintiff's personal representative as appellants showed excusable neglect sufficient to justify an enlargement of time because there was nothing suggesting that appellants'  failure to timely substitute the proper party was willful or egregious as it appeared that the issue in the current case simply resulted from a misunderstanding regarding who the proper party was to be substituted; and there had been no suggestion that allowing substitution of the original plaintiff's personal representative would prejudice appellee, who had notice from the beginning of the suit regarding the claim against her. Dubis v. Loyd, — S.W.3d —, 2016 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 15, 2016).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival § 120 et seq.

1 C.J.S. Abatement and Revival § 164; 25A C.J.S. Death, §§ 16, 39-42.

Abatement and revival 72(7).

NOTES TO DECISIONS

1. Assignee in Bankruptcy.

Suits instituted by or against one subsequently becoming a bankrupt must be prosecuted and defended by the assignee in bankruptcy, and upon the death of the bankrupt, such suit must be revived in the name of such assignee. Moffitt v. Cruise, 47 Tenn. 137, 1869 Tenn. LEXIS 20 (1869).

2. Successor to Public Office.

Where a mandamus suit is prosecuted by a public officer, in his official capacity, for the public benefit and not as an individual, such suit does not abate by his death or the expiration of his term of office, before the determination of the suit, but it inures to the benefit of the office, and shall be continued by the successor or successors. Felts v. Memphis, 39 Tenn. 650, 1859 Tenn. LEXIS 296 (1859); State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881).

3. Successor of Municipal Corporation.

Revivor against successor of a municipal corporation. Devereaux v. Brownsville, 29 F. 742, 1887 U.S. App. LEXIS 2392 (C.C.D. Tenn. 1887).

Collateral References. 1 C.J.S. Abatement and Revival § 112; 25A C.J.S. Death §§ 16, 39.

Abatement and revival 47.

NOTES TO DECISIONS

1. In General.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

The right of recovery in a wrongful death case is strictly a creation of statute. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

In order to give meaning to T.C.A. § 20-5-106(c)(1) and (c)(2), the Court of Appeals must interpret § 20-5-106(c)(1) in accordance with the last antecedent rule, i.e., the two-year period applies only to willful withdrawal. Baugh v. UPS, — S.W.3d —, 2015 Tenn. App. LEXIS 186 (Tenn. Ct. App. Mar. 31, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 656 (Tenn. Aug. 12, 2015).

2. History of Act.

This statute is largely a counterpart of the first and second sections of what is familiarly known as Lord Campbell's Act, passed by the British Parliament in the year 1846 (Stat. 9 and 10 Vic., ch. 93, §§ 1, 2), and is very similar to statutes subsequently enacted by many of the American states. Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891).

This statute does not copy the English act, but gives larger damages in that it gives damages for the injuries suffered by the deceased, in addition to the pecuniary loss of the persons entitled to the recovery, which latter alone is recoverable under the English act. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902).

This section is declaratory of what is known as the “Lord Campbell's Act” and is in no sense a part of the common law. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958).

This section is in the nature of the statutes of descent and distribution. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

3. Scope of Act.

The question of the liability of a railroad company for the negligent acts of a conductor of one of its freight trains, resulting in the injury and death of a brakeman of the same train, is a question of general law, in no way involved in the interpretation of this section. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902).

This section relates alone to the manner of bringing suit, and not to the disposition of recovery. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Walkup v. Covington, 18 Tenn. App. 117, 73 S.W.2d 718, 1933 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1933).

The statute is primarily a survival statute. If decedent could not have sued, no right survives. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

This section is in the nature of descent and distribution statutes and the character of the beneficiaries under such statutes is not material. Johnson v. Morgan, 184 Tenn. 254, 198 S.W.2d 549, 1947 Tenn. LEXIS 372 (1947).

An unborn viable child is not a person within the meaning of this section and therefore action cannot be maintained under this section for the death of such child. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958); Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433, 1963 Tenn. LEXIS 451 (1963); Hamby v. McDaniel, 559 S.W.2d 774, 1977 Tenn. LEXIS 652 (Tenn. 1977) (decided prior to amendment).

Where death of plaintiff's husband resulted from a maritime tort committed on navigable waters within state, court could entertain a libel in personam against defendant alleged to have proximately caused such death under this section, giving a right of action on account of death by wrongful act. Byrd v. Belcher, 203 F. Supp. 645, 1962 U.S. Dist. LEXIS 3206 (E.D. Tenn. 1962).

The word “person” as used in the beginning of this section is comprehensive and embraces every human being, male and female, married and single, and the words “his widow and next of kin” may include persons of either sex under § 1-3-104. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

The wrongful death statutes do not create any new right but merely keep alive the deceased's right of action for benefit of those named. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

A viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor and when the child dies from such injuries the parent of the child may prosecute an action for such injuries and death. Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471, 1962 Tenn. LEXIS 448 (1962).

An illegitimate child may maintain an action for the wrongful death of his mother. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

This section applies equally whether the deceased injured party be male or female. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

Finding of probate judge that proceeds recovered by personal representative under medical payment clause of insurance policy were free from claims of creditors was correct but such exemption was under §§ 26-2-109, 26-2-110 rather than under this section. In re Estate of Jennings, 212 Tenn. 107, 368 S.W.2d 289, 1963 Tenn. LEXIS 402 (1963).

The Tennessee wrongful death statutes, this section and § 20-5-113, are of the survival type, which simply preserve any action which the decedent would have had. Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 1985 U.S. Dist. LEXIS 16397 (W.D. Tenn. 1985).

This statute is primarily a survival statute and no right of action exists independently of that which the deceased would have had, had the deceased survived. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

In a wrongful death action by the father who survived the deceased mother, and the mother's unborn child, it was clear that a viable fetus “resided wherever its mother resided,” and therefore, the family exclusion provision in the policy was applicable, the insurer was not required to provide coverage for bodily injury to fetus, and the trial court's grant of partial summary judgment in favor of father, was reversed. Hollis v. Doerflinger, 137 S.W.3d 625, 2003 Tenn. App. LEXIS 416 (Tenn. Ct. App. 2003).

4. Cause of Action.

This section does not create a new cause of action, but simply preserves the defendant's right of action, which would otherwise be extinguished by his death. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902); Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

The right of action of the deceased for personal injuries wrongfully inflicted causing his death is kept alive and preserved by statute, for the benefit of his widow, children or next of kin, and a suit commenced by decedent while in life may be prosecuted to judgment for the same purpose; but no new or independent cause of action is created in favor of such parties. Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926).

Where death resulted other than from the acts of the defendant, and where no action was instituted before death, a cause of action for pain and suffering did not survive the death of the victim. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

Amended declaration in death action based on law of foreign state did not change cause of action merely because amended complaint cited particular foreign statutes upon which plaintiff relied to sustain cause of action which original declaration did not cite. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

This section creates no new cause of action, but merely preserves from abatement or extinguishment the right of action which a person dying from the wrongful act of another would have had against the wrongdoer, had death not ensued. Wilson v. Massengill, 124 F.2d 666, 1942 U.S. App. LEXIS 4550 (6th Cir. Tenn. 1942), cert. denied, 316 U.S. 686, 62 S. Ct. 1274, 86 L. Ed. 1758, 1942 U.S. LEXIS 572 (1942).

This section only applies where death resulted from the acts of the defendant out of which the suit is brought, and where no action is instituted before the death the cause of action for pain and suffering does not survive the death of the victim. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

Where death resulted from brain tumor and testimony of family physician that tumor may have been aggravated by electric shock received on defendant's car was purely speculative and testimony by experts in the field of neurosurgery testified that the cause of the particular tumor was unknown, it was proper for the court to direct a verdict in favor of the defendant on the ground that death of deceased was not caused by the electric shock. Gipson v. Memphis S. R. Co., 51 Tenn. App. 31, 364 S.W.2d 110, 1962 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1962).

In wrongful death action complaint which alleged that deceased, the alleged paramour of defendant, had been under domination and control of defendant and that he had sadistically treated her to the extent that she committed suicide was not sufficient to state a cause of action since complaint alleged an efficient, intervening and unforeseen cause. Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217, 1965 Tenn. LEXIS 558 (1965).

Neither common law nor Married Woman's Emancipation Statute gives wife cause of action for tort against husband so the next of kin of wife has no cause of action against husband for wrongful death of wife. Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

Child or next of kin of deceased has cause of action only if deceased would have had cause of action against wrongdoer if he had lived. Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

The language of the Tennessee Wrongful Death Statute is sufficiently broad to embrace an action where death has resulted from breach of an implied statutory warranty under the Uniform Commercial Code. Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979).

If none of the statutorily prescribed beneficiaries exist, then the cause of action cannot be brought because the existence of one of such beneficiaries is a prerequisite to bringing an action for wrongful death. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Court declined to add claims under 42 U.S.C.S. § 1981 to the list of actions which affected character and were abated at the claimant's death under T.C.A. § 20-5-106; therefore, the general contractor's motion to dismiss the administratrix's discrimination claim on behalf of the deceased under 42 U.S.C.S. § 1981 was denied. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

5. Right of Action.

Right of action for a wrongful death is that which the deceased would have possessed if he had lived, and the recovery is in the right of the deceased. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915); Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931); Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

The right of action is governed by the law of the state where the wrongful injury occurred. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

The right of action for a wrongful killing is statutory so that both the action and the procedure for the distribution of the proceeds of any recovery must rest on the statute. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

A wrongful death must be treated as if the injured party had brought it. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

The right of action for wrongful death is statutory and both the action and procedure for distribution of the proceeds of any recovery rests on the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Where a right of action is dependent upon the provisions of this section the court is not privileged to create such a right of action under the guise of a liberal interpretation of it. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958).

Where divorced father killed mother of children, personal representative of mother could bring action under this section for the benefit of such children since such action is brought upon the right of the deceased person and the benefit of the children being through the deceased, it not in fact being an action by the children against the father. Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166, 1960 Tenn. LEXIS 344 (1960).

The right of action for wrongful death passes to the personal representative of the deceased and any recovery had in the case passes to the beneficiaries named in the statute not of their own right but in the right of the deceased. Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574, 1960 Tenn. LEXIS 489 (1960).

If there was contributory negligence of plaintiff motorist in a collision which injured him and his wife who owned the automobile and was riding as a passenger therein, such would bar recovery, both for his own injuries and for the wrongful death of his wife, whose right of action passed to him at her death. Cline v. United States, 214 F. Supp. 66, 1962 U.S. Dist. LEXIS 3269 (E.D. Tenn. 1962).

The statute must be strictly construed against the maintenance of any right of action not expressly provided for. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

In the absence of an award of custody in a divorce decree, the right of action under this section vests equally in both parents regardless of questions of support or physical care. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Despite ambiguity in statutory language, state wrongful death statutes are of survival type, and no right of action exists independently of that which the deceased would have had, had he survived. Jones v. Black, 539 S.W.2d 123, 1976 Tenn. LEXIS 572 (Tenn. 1976).

The moral worth of the nominal plaintiff and ultimate beneficiary is totally unrelated to a wrongful death action as it is the right of action which the deceased would have had, had he survived. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The plaintiff in a wrongful death action acquires only those rights that the decedent would have had, had she survived. Stokes v. Smoky Mountain Aero, Inc., 457 F. Supp. 677, 1978 U.S. Dist. LEXIS 15841 (E.D. Tenn. 1978).

Right of action under wrongful death statute for the defendants' alleged tortious conduct arose at the time deceased suffered the injuries that led to her death and not at the time of her death which was two days after receiving the injuries. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

The divorced noncustodial parent of a child had a right of action for the wrongful death of that child and, thus, was entitled to share in the proceeds from an action filed by the custodial parent. Mangrum v. Owens, 917 S.W.2d 244, 1995 Tenn. App. LEXIS 649 (Tenn. Ct. App. 1995).

Where a hospital employee was terminated for insubordination and the employee alleged that the termination was for complaining about medical mistreatment of patients, the employee could not bring suit under the Tennessee Wrongful Death Statute regarding the deaths of patients. Caruso v. St. Jude Children's Research Hosp., Inc., 215 F. Supp. 2d 930, 2002 U.S. Dist. LEXIS 18989 (W.D. Tenn. 2002), dismissed, Caruso v. St. Jude Children's Research Hosp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 18988 (W.D. Tenn. Sept. 19, 2002).

Administrator's motion to intervene pursuant to Fed. R. Civ. P. 24(a) was denied because, under T.C.A. § 20-5-106(a) and T.C.A. § 20-5-107(a), the administrator had no interest in the action because he had no interest in the recovery; the administrator was only a medium for enforcement of the rights of the beneficiaries of the deceased son, who had already initiated the wrongful death action. Martin v. Corr. Corp. of Am., 231 F.R.D. 532, 2005 U.S. Dist. LEXIS 29566 (W.D. Tenn. 2005).

Surviving spouse never had an individual claim to assert because the wrongful death claims he asserted against a hospital were brought in a representative capacity on behalf of the decedent; the decedent's children did not have a separate claim but one indivisible cause of action existed, the cause of action the decedent would have had against the wrongdoer, and thus, the decedent's survivors were only permitted to assert the cause of action in a representative capacity on the decedent's behalf. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Court of appeals erred in reversing the denial of a hospital's motion for summary judgment in a surviving spouse's wrongful death action because the surviving spouse did not file the initial pro se complaint as the legal representative of either the decedent or the decedent's estate where, under the plain language of the wrongful death statute statutes, the decedent's right of action passed to the surviving spouse upon the decedent's death, the surviving spouse was asserting his own right of action, and even if the interests of the passive beneficiaries might be implicated, the initial pro se complaint was not a nullity and it was curable by amendment to add counsel. Beard v. Branson, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017), rev'd, 545 S.W.3d 428, 2018 Tenn. LEXIS 134 (Tenn. Mar. 5, 2018).

Court of Appeals erred in reversing the trial court's dismissal of a daughter's wrongful death complaint and in finding that the surviving spouse was disqualified from filing the wrongful death action because the statute did not include an exception to the spousal priority rule for circumstances where the surviving spouse's alleged negligence caused the decedent's death, and holding that he waived his right to file the wrongful death action despite actually filing a complaint would be an unwarranted expansion of the doctrine of waiver. Nelson v. Myres, 545 S.W.3d 428, 2018 Tenn. LEXIS 134 (Tenn. Mar. 5, 2018).

6. —Waiver.

While the widow's right of action is prior and superior, she may waive her right by permitting administrator to sue without her objection; but the widow is not guilty of unreasonable delay where she sued five months before expiration of limitation period. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Since a mother's right of action was superior to that of the personal representative of the decedent and since the mother refused to waive her right of action, suit by the representative was dismissed. Troutman v. Johnson City, 392 F. Supp. 556, 1973 U.S. Dist. LEXIS 13855 (E.D. Tenn. 1973).

Mother could not execute a valid release as to the rights of her daughter to sue for injuries suffered from the alleged negligent acts of the defendants, and release signed by mother did not bar wrongful death action brought by mother on daughter's behalf. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

Doctrine of promissory estoppel did not serve to expand the legal effect of release signed by mother of decedent to cover the action decedent would have had for the injuries that resulted in her death. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

Release signed by mother was effective to waive any claim mother would have had in her own right, not arising under the wrongful death statute, for the injuries to her daughter. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

A surviving spouse, who knows that he has a right of action for wrongful death, waives his right when he fails to maintain control over it by either effecting a compromise or bringing the action to trial. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Where surviving spouse knowingly waived his right of action for wrongful death, he also waived his right to collect any proceeds from the wrongful death action. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

In a case where the surviving spouse has knowingly waived his right to bring a wrongful death action and there are no surviving children of the deceased, the right of action as well as the right to collect the proceeds therefrom pass to the next of kin. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Summary judgment was not appropriate to dismiss child's challenge to the parent's release relieving the parent's sibling of any liability for the parent's spouse's death where the extent of the parent's investigation into the facts of the shooting was unclear and material evidence existed to dispute the parent's sibling's account of how the shooting occurred. Estate of Baker v. Maples, 995 S.W.2d 114, 1999 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1999).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (c)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

7. Form of Action.

The substantive rights conferred by this section upon the widow and children are not affected by the form of action which they may elect to bring. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

Where the widow of a truck driver brought action in the federal court in Tennessee for the death of her husband allegedly from the negligent mounting of a truck tire by employees of defendant, this being a diversity of citizenship case, the substantive law of Tennessee was applicable. Price v. Firestone Tire & Rubber Co., 321 F.2d 725, 1963 U.S. App. LEXIS 4298 (6th Cir. Tenn. 1963).

Wrongful death beneficiaries'  claims against a nursing home arising from the death of a resident were subject to an arbitration agreement between the resident and the home; the wrongful death claim belonged to the resident's estate and not to the beneficiaries, so the beneficiaries were required to seek their damages in the arbitral forum agreed to by the estate. Wood v. Greenfield Assisted Living of Memphis, LLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 179186 (W.D. Tenn. June 22, 2015).

8. Service.

Where deceased, a resident of Tennessee, was killed in an automobile accident on a highway in Tennessee, the mother of deceased, a resident of Florida, appointed as administratrix by Tennessee court was entitled to sue tort-feasor, a resident of Illinois in federal court in Tennessee, and was entitled to privilege of having her summons accepted by secretary of state just as if she had been an actual resident of Tennessee. Hunt v. Noll, 112 F.2d 288, 1940 U.S. App. LEXIS 4284 (6th Cir. Tenn. 1940), cert. denied, 311 U.S. 690, 61 S. Ct. 71, 85 L. Ed. 446, 1940 U.S. LEXIS 196 (Oct. 28, 1940).

9. Declaration.

Where the declaration stated a cause of action at common law, an amendment thereof, by adding count specially declaring liability under the statute, did not constitute a departure from the original declaration nor introduce a new cause of action. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

In action to recover for the wrongful death of a three year old boy alleged to have been negligently struck by defendant's automobile, the declaration held sufficient, although it alleged that the decedent left surviving him as his heirs at law, his father and mother without further allegations as to his heirs. Walkup v. Covington, 18 Tenn. App. 117, 73 S.W.2d 718, 1933 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1933).

10. —Place of Death.

In an action for wrongful death in another state the declaration must aver and the proof must show a survival statute in such state, the presumption being that the common law which did not provide for survival was in force in such other state. Nashville & C. R. Co. v. Eakin, 46 Tenn. 582, 1869 Tenn. LEXIS 103 (1869); Chumley v. Louisville & N.R.R., 5 Tenn. Civ. App. (5 Higgins) 73 (1914).

Place of killing, when sufficiently pleaded. Hobbs v. Memphis & C. R. Co., 56 Tenn. 873, 1872 Tenn. LEXIS 216 (1872).

Declaration in death action based on construction of foreign statutes does not have to plead cases construing statutes but it is sufficient to plead the statutes. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

Widow of deceased killed in automobile accident in Florida was entitled to sue administrator of deceased driver in Tennessee where law in Florida provided that action survived in favor of widow even though law in Tennessee provided that action did not survive unless filed prior to death of tort-feasor. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

11. —Proximate Cause.

Where a person has received injuries, and many months thereafter dies of a germ disease, in no wise connected with such injury, a cause of action does not arise on the theory that by reason of such injuries the victim's constitution became weakened and thereby rendered him an easy prey to such disease. Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917).

Widow could not bring an action to recover for the negligent injury of her deceased husband where it appeared that such injuries were not a contributing cause of his death. Willis v. Heath, 21 Tenn. App. 179, 107 S.W.2d 228, 1937 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1937).

12. Defenses.

13. —Statute of Limitations.

The rights of the infant children or other infant next of kin, as beneficiaries, are barred within one year. Bledsoe v. Stokes, 60 Tenn. 312, 1872 Tenn. LEXIS 497 (1873); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901).

Actions for personal injuries shall be commenced within one year after the cause of action has accrued, and the suit is barred, if the action is not commenced within one year after the right accrues. Bledsoe v. Stokes, 60 Tenn. 312, 1872 Tenn. LEXIS 497 (1873); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Wiley v. State, 64 Tenn. 662, 1875 Tenn. LEXIS 152 (1875); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899).

An action for personal injuries resulting in death is barred by the statute of limitations, unless brought within one year after the injury was done, notwithstanding the disabilities of the beneficiaries. Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The statute of limitations of one year and the statute authorizing renewal of an action after dismissal on grounds not concluding the right are applicable to the rights extended to widows and next of kin under this section. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Summons issued within one year period tolled statute of limitations although declaration was not filed until after one year period even though Private Acts 1917, ch. 30 stated that in counties with population of more than 150,000 the declaration should be filed upon suing out of summons, since private act could not suspend the general law of the state. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

An action for wrongful death of a minor must be brought within one year of the accrual of the cause of action. Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 1983 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1983).

14. — —Commencement of Period.

The statute of limitations of one year begins to run from the moment of the injury, when the right of action accrued, and is not suspended by the death of the injured party, nor during the time that intervenes between such death and the appointment and qualification of the personal representative. Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Wiley v. State, 64 Tenn. 662, 1875 Tenn. LEXIS 152 (1875); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

15. — —Running of Period.

Action brought by administrator, whose letters are subsequently revoked because issued in the wrong county, interrupts the running of the statute. Jacobs v. Pope, 8 Tenn. Civ. App. 452 (1915).

16. — —Foreign Laws.

Where, by statute, a state creates a cause of action for death by wrongful act and prescribes in the same statute a limitation period for action, such limitation will be applied in the forum of a sister state, even though the period of limitation for like actions in the latter state is shorter. Wilson v. Massengill, 124 F.2d 666, 1942 U.S. App. LEXIS 4550 (6th Cir. Tenn. 1942), cert. denied, 316 U.S. 686, 62 S. Ct. 1274, 86 L. Ed. 1758, 1942 U.S. LEXIS 572 (1942).

Wrongful death action filed in Tennessee against former resident of Mississippi to recover damages for death of decedent occurring in automobile accident in Mississippi was governed by one year limitation period of Tennessee instead of six year limitation period prevailing in Mississippi. McDaniel v. Mulvihill, 196 Tenn. 41, 263 S.W.2d 759, 1953 Tenn. LEXIS 404 (1953).

17. — —Amendments.

A suit, commenced in the name of the administrator of the deceased, without mention of the statutory beneficiaries of the recovery sought, is effectively commenced so as to prevent the running of the statute of limitations, because the action is that of the administrator, and not that of such beneficiaries, though prosecuted for their benefit, and because the decedent's right of action was merely preserved for them; and while such omission is a fatal defect, it may be cured by amendment, which will relate back to the commencement of the suit so as to prevent the running of the one year statute of limitations after the commencement of the suit. Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901).

Where father, sole beneficiary, brought suit as such for death of his daughter, and, more than one year after such death, amended the summons so as to show suit by him as administrator, the amendment related to the issuance of the writ and saved action from the bar. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

In an action by an administrator under this section, where the summons was silent as to beneficiaries, and the declaration stated that the action was for the benefit of the brothers of deceased, and a plea in abatement questioned the right of the brothers to be beneficiaries, and plaintiff asked leave to amend the declaration by striking out the words concerning beneficiaries and by stating that the action was for the benefit of the parents of deceased, and this application for leave to amend was made after the expiration of the statute of limitations, and the court refused to permit the amendment and dismissed the action, it was held that the issuance of the summons was the commencement of the action and the proposed amendment was not inconsistent with the summons and would not have been the commencement of a new cause of action after the expiration of the statute of limitations, and that the court erred in refusing to permit the amendment and in dismissing the action. Townsend v. Nashville, C. & S. L. Ry., 170 Tenn. 239, 94 S.W.2d 384, 1936 Tenn. LEXIS 8 (1936).

In action by father as next of kin for wrongful death of minor son father could amend complaint so as to include mother of deceased as party plaintiff and amendment would relate back to time of filing original action, since cause of action would not be changed by adding party plaintiff; and this was so even though suit by mother would have been barred by statute of limitations. Mosier v. Lucas, 30 Tenn. App. 498, 207 S.W.2d 1021, 1947 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1947).

One year statute of limitations in § 28-3-104 does not bar decedent's parents as next of kin from amending summons where action for wrongful death of decedent was originally brought by the father as an administrator. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

18. — —Renewal of Suit After Dismissal.

The statute, § 28-1-105, authorizing the renewal of suit within one year after dismissal of first is applicable to the right and remedy for wrongful death. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

19. —Proper Parties.

In action against tort-feasor by the administrator, the defendant may raise the question of the widow's superior right to sue; and the burden is on the one claiming that the right was waived to prove it by a preponderance of evidence. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Where wrongful death action was brought by alleged widow as administratrix on behalf of herself and alleged minor children of decedent and trial court properly charged that measure of damages was the pecuniary value of the life of the decedent, trial court improperly granted motion for new trial on ground of newly discovered evidence that the widow and children were not decedent's since defendant had knowledge of the facts sufficient to put it on notice of the relationship and since existence of widow and children did not bear on the question of damages. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

In a wrongful death action, where married deceased's parents had brought the action but the complaint was dismissed on the ground that the right of action, if any, passed to deceased's husband rather than to her parents, it was proper to allow substitution of deceased's husband as plaintiff in the action under Tenn. R. Civ. P. 17.01, even though the statute of limitations of one year had run prior to the filing of the motion for substitution, since the husband was the real party in interest and he made his application for substitution within a reasonable time after objection was made by defendants to the status of the original plaintiffs as real parties in interest. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

Trial court erred in denying the motion for a hearing filed by the father of a decedent's children on the issue of whether the decedent's husband had abandoned the mother and, thus, lacked standing to prosecute the wrongful death action as the affidavits of the father and the decedent's friend established that the husband and the decedent had been separated for more than two years and that the husband had not supported the decedent or her children during the marriage. These statements provided evidence of abandonment within the meaning of T.C.A. § 36-4-101(a)(13), thus raising the presumption that the husband waived his right as surviving spouse to prosecute the wrongful death action. Baugh v. UPS, — S.W.3d —, 2012 Tenn. App. LEXIS 900 (Tenn. Ct. App. Dec. 21, 2012), rehearing denied, — S.W.3d —, 2013 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 9, 2013), appeal dismissed, — S.W.3d —, 2013 Tenn. LEXIS 469 (Tenn. May 9, 2013).

Decedent's grandmother had standing to file a wrongful death action on his behalf against the county because she was authorized to do so by statute and there was no indication that the decedent had other beneficiaries who held a superior right to bring the action and objected to the grandmother doing so. Haynes v. Wayne Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 249 (Tenn. Ct. App. Apr. 19, 2017).

20. —Parental Immunity.

This section required that the validity under the parental immunity doctrine of a tort action against an insured uncle who had stood in loco parentis to a deceased child had to be decided as if the death of the child had not ensued. Mathis v. Ammons, 453 F. Supp. 1033, 1978 U.S. Dist. LEXIS 17473 (E.D. Tenn. 1978).

21. —Contributory Negligence.

Where the plaintiff's decedent, killed in an automobile collision, was guilty of negligence proximately contributing to the accident, the plaintiff cannot recover for the death. Bejach v. Colby, 141 Tenn. 686, 214 S.W. 869, 1919 Tenn. LEXIS 20 (1919).

A mother who was negligent in driving her automobile resulting in a collision and her child's death cannot be allowed any benefit of administrator's recovery for such death, where her negligence was the proximate cause. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

In an action to recover damages for the wrongful death of a wife and mother, the contributory negligence of the husband cannot prejudice in any way the minor children who were not at fault. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

The contributory negligence of one parent of a child wrongfully killed is imputable to the other so as to preclude recovery by or for the benefit of the parents or either of them in an action for the death of the child. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694, 1949 Tenn. LEXIS 310 (1949); Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920);Keener v. Morgan, 647 F.2d 691, 1981 U.S. App. LEXIS 13755 (6th Cir. 1981).

A recovery will not be allowed when the negligence of the sole beneficiary thereof proximately contributed to the death for which recovery is sought. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694, 1949 Tenn. LEXIS 310 (1949).

Motorist, who skidded into the path of an oncoming truck in trying to avoid defendant's rural mail carrier who negligently drove onto the highway in his path, was subject to reduction in damages awarded, where his own negligence contributed remotely to the accident; and he was entitled to damages of $4,575.45 for his own injuries and $41,238.32 plus $600.00 property damage for death of his 24-year-old wife who had a weekly income of $76.00 and had suffered intense pain between accident and death. Cline v. United States, 214 F. Supp. 66, 1962 U.S. Dist. LEXIS 3269 (E.D. Tenn. 1962).

A recovery will not be permitted where the negligence of the sole beneficiary thereof proximately contributes to the death for which recovery of damages is sought. Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892, 1964 Tenn. LEXIS 505 (1964).

Contributory negligence of one parent of a child wrongfully killed is imputable to the other so as to preclude recovery by or for the benefit of the parents or either of them in an action for the death of the child. Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892, 1964 Tenn. LEXIS 505 (1964).

22. —Self-Defense.

A person starting an encounter who has no intention to inflict serious harm can rely upon plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

If deceased and defendant by mutual consent agree to meet for a fight with deadly weapons the defendant cannot rely on plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

If defendant arms himself with a deadly weapon and seeks a meeting with the deceased with the intention of so provoking the deceased that the deceased will commit an assault and give the defendant an opportunity to shoot him the defendant cannot rely upon plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

The law of self-defense is the same in civil cases as in criminal cases except that in civil cases the cause can be decided on a preponderance of the evidence, whereas in a criminal proceeding the defendant is entitled to the benefit of the reasonable doubt. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

In an action to recover damages for wrongful death the burden of proof is upon the plaintiff to establish his cause by sufficient proof, but if there is a plea of self-defense the burden is on defendant to sustain the plea. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

Where defendant pleaded self-defense when he shot deceased who was pursuing him and reaching for an object in his pocket the following charge was held error “But if the jury finds that (deceased) was not making an assault on (defendant) which led (defendant) necessarily and reasonably to believe that his life was imperiled or that he was in danger of having great bodily harm inflicted upon him, then he had no right to fire,” since the use of the word “necessarily” was erroneous as it conveyed to the minds of the jurors the thought that defendant was not warranted in shooting until the circumstances were such as to compel him to believe that his life was in peril. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

Where defendant, a foreman for a coal company shot an employee of electric light company after latter had threatened to kill foreman with a gun and reached for something in his pocket and pulled out a shiny object the following instruction was held error “Even if the jury should find that (defendant) was not in peril and that it was necessary for him to fire in order to protect himself, still, if the jury should find the facts to be that the situation or happenings were such as to lead a prudent and cautious man to believe that he was in danger, even though he was not, the law would not hold him liable for firing the shot,” since by not prefixing the words “prudent and cautious” with the word “reasonable” the defendant was prejudiced. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

23. —Interspousal Immunity.

Wrongful death plaintiff barred from recovery against airplane pilot here where the decedent, had she survived, would have been barred from recovery under the rule of interspousal immunity. Stokes v. Smoky Mountain Aero, Inc., 457 F. Supp. 677, 1978 U.S. Dist. LEXIS 15841 (E.D. Tenn. 1978).

Interspousal tort immunity is totally abolished in this state and all decisions to the contrary are overruled. Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

24. Admissions.

Inasmuch as the right of action for a wrongful death is that of the decedent, it necessarily follows that any admissions made by him would be competent against those who succeeded to the action, as his widow and administratrix suing. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

25. Damages.

The language of this statute necessarily implies that exemplary damages may be recovered upon a proper state of facts; otherwise the right of action would not be the same as the deceased person would have had against the wrongdoer had his death not ensued from the wrongful act. Pratt v. Duck, 28 Tenn. App. 502, 191 S.W.2d 562, 1945 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1945).

The recovery is not based on the existence of a widow, children or other next of kin but on the pecuniary value of the life of the decedent. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

When determining the amount of damages based upon life expectancy and earning capacity there should be a deduction of the deceased's probable living expenses had the deceased lived. Wallace v. Couch, 642 S.W.2d 141, 1982 Tenn. LEXIS 363 (Tenn. 1982).

Recovery is based upon the pecuniary value of the life of the deceased to be determined upon a consideration of the deceased's expectancy of life, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life, and such losses are not limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The holding in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999) that loss of consortium may be considered when calculating the pecuniary value of a deceased's life and that such claims may encompass a child's loss, applies retroactively to: (1) All cases tried or retried after the date of the Jordan decision; and (2) All cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill v. City of Germantown, 31 S.W.3d 234, 2000 Tenn. LEXIS 587 (Tenn. 2000).

Net recovery of fifty-one thousand dollars was not erroneous because the only basis for recovery was the decedent's daughter's claim for loss of parental consortium because, inter alia, the administrators offered no evidence pertaining to the loss of the decedent's future income and, although he was approved for disability payments shortly after his death, they failed to produce any values as to expected Social Security or disability payments; there was no evidence to support an award for damages sustained by the decedent himself because the administrators offered no evidence of medical expenses or burial expenses, nor could they have claimed lost wages or income, because the decedent died instantly. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death action filed by the decedent's mother, she was required to demonstrate damages with some material evidence; there was no material evidence that supported an economic damage award in excess of $651,231.72, and thus the appellate court remanded with a suggestion of remittitur in the amount of $598,768. Dunn v. Davis, — S.W.3d —, 2007 Tenn. App. LEXIS 120 (Tenn. Ct. App. Mar. 6, 2007).

26. Beneficiaries.

The right of action for a wrongful death, with all its incidents, passes to the widow and children or the personal representative, and the suit must be treated as if the injured party had brought it. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899). See Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138, 1911 Tenn. LEXIS 36 (1911).

The action will not lie for the benefit of the estate or creditors, nor for the benefit of the state. Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891); Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Louisville & N. R. Co. v. Beam, 94 Tenn. 388, 29 S.W. 370, 1894 Tenn. LEXIS 53 (1894); Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

Section 20-5-111 provides, in effect, that suits instituted for the benefit of those enumerated in this section shall not abate in the event of their death pending suit. The section was passed to meet the situation created by decisions construing this section to mean that suits abated where the beneficiary designated died while his suit was pending. Lones v. McFall, 152 Tenn. 239, 276 S.W. 866, 1925 Tenn. LEXIS 67 (1925). See also § 20-5-110 giving right of action to next of kin after the primary beneficiary, where latter dies before suit.

The right of recovery is dependent upon existence of beneficiaries designated by the statute. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

In suit under this section, the administrator and deceased's estate are without pecuniary interest, the recovery passing at once to the statutory beneficiary free from claims of creditors of the estate. The statutory beneficiary is the real party in interest and must be disclosed during the suit. His contributory negligence can defeat the suit. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

Neither the claim nor the recovery thereunder becomes a part of the estate of the deceased, and the personal representative as such has no interest in the recovery but is only a medium for enforcing the rights of others. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Fact that administratrix was not widow of decedent as alleged was immaterial since recovery is held for the real beneficiaries under the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

The proving of the existence of a widow, children or other next of kin is not for the purpose of increasing the damages but only to show the existence of the beneficiaries provided for in the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Neither the claim nor the recovery thereunder becomes a part of the estate of the deceased and the personal representative has no interest in recovery but is only a medium for enforcing the rights of others. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

In a suit brought under this section and §§ 20-5-107, 20-5-108 the administrator is without any pecuniary interest and the recovery, if any, passes to the statutory beneficiary. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Father who had abandoned minor child prior to death of child was entitled to share in proceeds of recovery for wrongful death of child. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Although minor decedent had been in the care and custody of the minor's grandparents for seven years at the time of death, since there had been no adoption proceedings, only decedent's natural parents could recover in wrongful death action. In re Estate of Dobbins, 987 S.W.2d 30, 1998 Tenn. App. LEXIS 616 (Tenn. Ct. App. 1998).

Abandonment of decedent child by parents is not material in determining distribution of wrongful death proceeds. In re Estate of Dobbins, 987 S.W.2d 30, 1998 Tenn. App. LEXIS 616 (Tenn. Ct. App. 1998).

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

According to decedent's mother, the statute created a conflict of interest between decedent's wife and daughter, who stood to inherit more wrongful death proceeds if the wife was disqualified from sharing in the estate, but it was unclear why a purported conflict would have any effect on this estate matter; no evidence was presented to support allegations of abandonment by the wife, and in absence of such proof, there was no conflict such that the appointment of the daughter's guardian was inappropriate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

27. —Common Disaster.

Where persons perish in the same disaster, there is no presumption of survivorship resting upon considerations of age, sex, strength, corpulency, or activity, and, in the absence of evidence from which survivorship can be determined, it will be presumed, for the purpose of settling rights and succession to property, and for determining who are entitled to the damages for the wrongful deaths of such persons, that all persons perishing in such disaster died at the same moment. Walton & Co. v. Burchel, 121 Tenn. 715, 121 S.W. 391, 1907 Tenn. LEXIS 34, 130 Am. St. Rep. 788 (1907).

Where a minor son perished at the same time with his father in a common disaster caused by the defendant's negligence, and left no widow and children, but left his mother, brothers, and sisters surviving him as his next of kin, the right of action for his wrongful death survived and passed to his personal representative for them. Walton & Co. v. Burchel, 121 Tenn. 715, 121 S.W. 391, 1907 Tenn. LEXIS 34, 130 Am. St. Rep. 788 (1907).

Where husband and wife were killed in plane crash and there was no evidence other than that they had died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived the husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

28. —Widow.

Recovery in favor of widow for wrongful death of her husband is not affected or defeated by her divorce bill, for the suit, though in the name of the administrator, is the action of the husband brought by his administrator to recover the pecuniary value of his life, although the widow is the beneficiary of the suit, her husband having no children. Driver v. Arn, 6 Tenn. Civ. App. (6 Higgins) 582 (1916).

That the widow had been indiscreet or committed a crime does not affect her prior right to sue. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Action by widow of deceased against bus company for wrongful death of husband could not be enjoined by father of deceased on ground that widow had been guilty of adulterous conduct prior to death of deceased. Johnson v. Morgan, 184 Tenn. 254, 198 S.W.2d 549, 1947 Tenn. LEXIS 372 (1947).

Employer's subrogation right under T.C.A. § 50-6-112(c) extended to the wrongful death recovery that a deceased employee's widow obtained in a products liability action filed by the employee in Georgia prior to his death; however, on remand, the trial court was to determine the portion of the recoveries attributable to the widow's loss of consortium claim to which the employer's subrogation right did not extend. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

29. —Spouse.

An action for wrongful death against one spouse may be maintained when it is predicated upon an intentional tort to the other spouse during marriage, such act resulting in the termination of the marriage by death. Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656 (Tenn. 1983).

Given the interpretation of T.C.A. § 20-5-106(c)(1) that the two-year period applied only to willful withdrawal, the trial court properly concluded that the two-year period of time included in that subsection did not apply to abandonment and that a surviving spouse lacked standing to bring the wrongful death suit. Baugh v. UPS, — S.W.3d —, 2015 Tenn. App. LEXIS 186 (Tenn. Ct. App. Mar. 31, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 656 (Tenn. Aug. 12, 2015).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

30. —Widower.

The right of action for wrongful death of a married woman survives for her surviving husband and descendants if any and, if none, to her next of kin, including a parent or collateral. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

31. —Minors.

An action for the wrongful killing of an infant may be maintained by his personal representative for the use of the statutory beneficiaries. Hall v. Nashville & C.R.R., 1 Shan. 141 (1859); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891).

A father or mother cannot, in his or her own name and without qualifying as the personal representative of the deceased, maintain an action and recover damages for the wrongful death of his or her infant child. Hall v. Nashville & C.R.R., 1 Shan. 141 (1859); Bamberger v. Citizens' S. R. Co., 95 Tenn. 18, 31 S.W. 163, 49 Am. St. Rep. 909, 1895 Tenn. LEXIS 61, 28 L.R.A. 486 (1895), criticized, Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 1895 Tenn. LEXIS 7 (1895); Holston v. Coal & Iron Co., 95 Tenn. 521, 32 S.W. 486, 1895 Tenn. LEXIS 125 (1895); Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931) (cases decided prior to 1932 Code).

Personal representative of infant may sue for wrongful killing of infant for benefit of the father, divorced from his wife, who had abandoned and failed to provide for the child. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

Mother and sister of a 13 year old child are beneficiaries of administrator's recovery. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

A father falsely representing age of son killed while employed illegally by defendant is precluded. International Agricultural Corp. v. Cobble, 146 Tenn. 120, 240 S.W. 295, 1921 Tenn. LEXIS 8 (1921); Highland Coal & Lumber Co. v. Cravens, 8 Tenn. App. 419, 1928 Tenn. App. LEXIS 155 (1928).

A parent has no right to sue individually for damages for injuries sustained by his minor daughter who has been wrongfully killed, though he is the sole beneficiary. But in suit erroneously begun by him, the summons is effective to bring defendant before the court; and, though administrator is not substituted until over a year after the injuries, the action is not barred. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931) (decided prior to 1932 Code).

Right of action for wrongful death of boy 14 years of age, without wife or children, survived to his personal representative for the benefit of his father and mother, who are his next of kin, free from the claims of creditors. Davis v. Freels, 15 Tenn. App. 152, — S.W.2d —, 1932 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1932).

Since 1932 Code, father had right to institute suit in his own name as next of kin of the deceased child, or he could institute suit in the name of the administrator for his use and benefit. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Administrator of unemancipated minor could maintain suit against unemancipated minor brother of deceased for wrongful death arising out of automobile accident involving automobile in which surviving brother was driving even though both minors were living with parents and recovery would pass to parents as next of kin. Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574, 1960 Tenn. LEXIS 489 (1960).

Surviving children possess jointly any right-of-action for wrongful death of father and all are indispensable parties to such action. Williams v. Baxter, 536 F. Supp. 13, 1981 U.S. Dist. LEXIS 17409 (E.D. Tenn. 1981).

32. — —Illegitimate Children.

An illegitimate child may not bring an action for the wrongful death of his putative father even though the father has acknowledged the child. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

33. — —Loss of Services.

Recovery by father as administrator and beneficiary for wrongful death of his minor son bars subsequent action for loss of services and for expenses in a suit brought by him individually for loss of services, loss of time and expenses between the date of the injury and the death of the son, for it was incumbent upon him to bring forward, in his first suit, all the damages recoverable in such cases, because he was the sole beneficiary thereof. Tennessee Coal, Iron & R.R. v. Watts, 1 Tenn. Civ. App. (1 Higgins) 347 (1909); Chess-Wymond Co. v. Davis, 4 Tenn. Civ. App. (4 Higgins) 197 (1913).

Father is not entitled to separate action for loss of services, where child was instantly killed. Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 1924 Tenn. LEXIS 68, 41 A.L.R. 830 (1925).

34. —Parents.

Divorce decree committed custody of child to mother to the exclusion of father within the meaning of § 31-201(4) (repealed), so as to entitle mother to entirety of proceeds from recovery from wrongful death of such child where decree committed custody of such child to mother with visitation rights to father. Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476, 1963 Tenn. LEXIS 394 (1963).

The adoptive mother of a minor, whose adoptive father predeceased him, is a legal beneficiary of such minor in an action for his wrongful death. Harmon v. Wolfe, 253 F. Supp. 577, 1965 U.S. Dist. LEXIS 6906 (E.D. Tenn. 1965).

Natural mother of decedent qualified as “next of kin” pursuant to this section and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

Mother, in bringing suit for the wrongful death of the decedent, was in effect acting as the decedent's legal representative, so diversity jurisdiction was lacking where the decedent, at the time of death, was a citizen of Tennessee. Yeubanks v. Methodist Healthcare Memphis Hosps., 227 F. Supp. 2d 934, 2002 U.S. Dist. LEXIS 20836 (W.D. Tenn. 2002).

35. —Next of Kin.

The next of kin for whose benefit the right of action survives are the real plaintiffs, and the administrator, though made a party plaintiff by the statute, is nevertheless a mere trustee and a nominal party. Sanders v. Louisville & N. R. Co., 111 F. 708, 1901 U.S. App. LEXIS 4421 (6th Cir. Tenn. 1901).

Where the deceased leaves no widow and no children surviving him, the right of action will pass to his personal representative for the benefit of his next of kin. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Where the cause of action for decedent's death arose in Mississippi, the fact that suit was brought in Tennessee by decedent's mother, instead of by his administrator, was immaterial, since under the Tennessee law, an administrator's relation to the beneficiaries is that of trustee only. Strait v. Yazoo & M. Valley R. Co., 209 F. 157, 1913 U.S. App. LEXIS 1765, 49 L.R.A. (n.s.) 1068 (6th Cir. Tenn. 1913).

Action against sheriff and sureties may be prosecuted by widow; not necessarily by administrator. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

The evidence was sufficient to establish a valid marriage and the wife and children were the next of kin of the husband rather than the parents. Duggan v. Ogle, 25 Tenn. App. 467, 159 S.W.2d 834, 1941 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1941).

Where this section prior to 1932 provided that the right of action should pass to the widow or children, as charged in the 1932 Code, the reservation is extended to the next of kin in the same category as the children. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Decedent's next of kin are entitled to any recovery in suit for wrongful death of decedent and as next of kin can maintain such suit. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

The term “next of kin” properly denotes the persons nearest of kindred to the decedent by blood and follows the line of consanguinity. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

Where son, who was executor and only surviving child of a decedent, killed in a motor vehicle accident, settled claim for the alleged wrongful death of father, the plaintiffs who were surviving children of a deceased son, were barred from any further recovery, as the son of decedent had the prior right to file suit pursuant to this section, and having that right, he had the further right to settle claim. Whitley v. Georgia Western & Watkins Motor Lines, Inc., 299 F. Supp. 1238, 1969 U.S. Dist. LEXIS 8614 (E.D. Tenn. 1969).

In a wrongful death case, the Dead Man's Statue did not apply because the estate had no interest in the outcome; because a deceased patient had no surviving spouse, the interest in the litigation passed to his minor son. Although the action was brought in the name of the personal representative, it was brought on behalf of the next of kin. Choate ex rel. Clayton C. v. Vanderbilt Univ., — S.W.3d —, 2016 Tenn. App. LEXIS 39 (Tenn. Ct. App. Jan. 25, 2016).

36. —Nonresidents.

A nonresident widow whose husband was killed in this state may maintain action, although deceased husband was a nonresident. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, 1887 Tenn. LEXIS 3 (1887).

37. Settlement.

A bona fide compromise and receipt of the fund and settlement by the widow, who discharges the wrongdoer from further liability, binds the next of kin. Holder v. Nashville, C. & St. L.R.R., 92 Tenn. 141, 20 S.W. 537, 1892 Tenn. LEXIS 58, 36 Am. St. Rep. 77 (1892).

In administrator's suit, the wrongdoer's prior settlement with decedent's next of kin and sole distributee was a bar. Barksdale v. Mobile & O.R.R., 3 Tenn. Civ. App. (3 Higgins) 620 (1913).

Widow, after waiving her right to administer, so that another qualified as administrator, nevertheless has the superior right to compromise and settle or to bring suit and she alone can attack for fraud a settlement obtained from her. Spitzer v. Knoxville Iron Co., 133 Tenn. 217, 180 S.W. 163, 1915 Tenn. LEXIS 87 (1915).

The right of widow to prosecute action ordinarily authorizes her to make a bona fide settlement by way of compromise. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Settlement made by widow of deceased employee under the Workers' Compensation Act, on behalf of herself and dependent children, bars a suit at law on account of the wrongful death of the deceased employee for all purposes and as to all beneficiaries. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

A release executed by the sole beneficiary or the person having the exclusive right to the amount recovered bars an action by the personal representative to recover for wrongful death. Davis v. Freels, 15 Tenn. App. 152, — S.W.2d —, 1932 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1932).

The attempted compromise settlement for the wrongful death of minor child by the administrator of child's estate was inoperative against the child's legal father who resided outside the state, and the trial court properly permitted the father to intervene in the suit within 30 days from the entering of the consent decree and properly granted a new trial. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

An action by a father and son to recover for the death of their wife and mother was not barred by a compromise settlement made by the administrator of the wife's estate where it was shown that neither the father nor son received any part of the compromise settlement. Louisville & N. R. Co. v. Cantrell, 25 Tenn. App. 529, 160 S.W.2d 444, 1942 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1942).

Widow was empowered under this section to maintain suit on behalf of herself and minor child against third parties for tort causing workman's death and could compromise such claims without suit and such compromise did not have to be postponed until final determination of the employer's liability under the Workers' Compensation Law. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

An administratrix who sued for her husband's death and consented to judgment under this section could not obtain a new trial since no mutual mistake or fraud was shown in the promptings of an insurer while she was still distressed and its obtaining of a nominal attorney for her. Lee v. Drabkin, 197 Tenn. 376, 273 S.W.2d 473, 1954 Tenn. LEXIS 497 (1954).

Former § 34-3-113 (repealed), relating to the compromise of claims involving infants or insane persons, is applicable to wrongful death suits; the personal representative, when suing on behalf of an infant, in a wrongful death action, has the same responsibility and duties as those conferred upon the parent, guardian or next friend of the infant. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

An automobile insurer properly paid the limits of its liability under its policy's uninsured motorist coverage to the spouse of the insured who was killed in an automobile accident, without notifying any other potential beneficiary that settlement with the spouse had been effected. Spicer v. Hilliard, 879 S.W.2d 858, 1994 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1994).

Wrongful death settlement proceeds were subject to a hospital lien because it had been held that T.C.A. § 20-5-106(a), exempting such proceeds from creditors'  claims, did not bar such attachment. Blackburn v. McGee, — S.W.3d —, 2014 Tenn. App. LEXIS 154 (Tenn. Ct. App. Mar. 17, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 477 (Tenn. June 20, 2014).

38. —Accord and Satisfaction.

Accord and satisfaction defense by railroad in suit by second administrator of deceased was sustained where second administrator failed to tender to railroad consideration of $150 paid first administrator in satisfaction of death claim, since tender by second administrator of consideration was a condition precedent to maintaining suit for wrongful death. Doten v. Southern R. Co., 32 F. Supp. 901, 1940 U.S. Dist. LEXIS 3233 (D. Tenn. 1940).

39. Recovery.

Sureties of administrator on his bond are liable for amount received by him as recovery. Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981, 1919 Tenn. LEXIS 14 (1919).

Recovery in local court will pass according to the lex loci delictus. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

The recovery for the wrongful death of deceased should not be appropriated to the payment of his debts as it is not an asset of his estate. Cunningham v. Hutcherson, 14 Tenn. App. 173, — S.W.2d —, 1931 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1931).

Where joint tort-feasors are responsible for a wrongful death, the sum received by administrator from one under a covenant not to sue is not a satisfaction and does not reduce the amount recoverable against the other. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

The recovery is to be determined by a consideration of the life expectancy of the decedent, his age, condition of health, capacity for labor, and for earning money through skill in any art, trade, profession, occupation or business, and his personal habits as to sobriety and industry. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Proceeds of an action for wrongful death are personalty and the court will look to statutes on distribution of personalty as a guide. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

Recovery for wrongful death when realized becomes personal property and follows the distribution of such. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

The administrator of a decedent's estate is the real party in interest, as state statute authorizes him to prosecute an action for wrongful death in his own name and must be considered as such for determination of diversity of citizenship. Anderson v. Cecil, 407 F. Supp. 1354, 1975 U.S. Dist. LEXIS 14641 (E.D. Tenn. 1975).

40. —Investment of Proceeds.

Where a mother, receiving the proceeds of a claim invested same in land, takes title in her own name, which she afterwards mortgages to an innocent lender, the children may not assert rights therein. Smalling v. Kreech, 46 S.W. 1019, 1897 Tenn. Ch. App. LEXIS 120 (1897).

41. —Tax on Fund.

The right of action under this section and the fund derived therefrom are not subject to the inheritance tax imposed by § 30-1601 (now § 67-8-303). Commerce-Union Bank v. McCabe, 166 Tenn. 337, 61 S.W.2d 460, 1932 Tenn. LEXIS 137 (1933).

42. —Suit to Recover From Administrator.

An action by an alleged widow as sole heir of a decedent, to recover funds in the hands of the administrator received by him as damages for decedent's wrongful death, is subject to plea in abatement as premature, when brought within six months of the qualification of the administrator, notwithstanding this section, declaring that such recovery shall be for the benefit of the statutory beneficiaries of the suit. Bradford v. Graves, 167 Tenn. 125, 67 S.W.2d 138, 1933 Tenn. LEXIS 15 (1934).

43. Evidence.

The action of the administrator in a wrongful death case was not in his own right, but in the right of his decedent, and he had as much right to be protected against the erroneous admission of evidence as would the decedent if she had survived and brought the action herself. Winston v. Roe, 246 F. Supp. 246, 1965 U.S. Dist. LEXIS 7144 (E.D. Tenn. 1965).

There was material evidence that the injuries the decedent suffered did not ultimately cause the decedent's death, and thus the court affirmed the judgment for the nursing home on estate representatives' wrongful death claim under T.C.A. 20-5-106. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

Government was properly granted summary judgment in the plaintiff’s wrongful death action brought under Tennessee law, as authorized by the Federal Tort Claims Act, arising out of the shooting death of her husband because an objectively reasonable officer armed with the agent’s knowledge and in the agent's position would have had probable cause to believe that the decedent, who was in an enclosed space holding a gun and refusing to submit to the officers’ show of force but, instead, began withdrawing the gun from its holster, posed the threat of serious physical harm to officers, and because the agent’s actions were reasonable, the agent was not negligent under Tennessee law. Evans v. United States, — F.3d —, 2018 FED App. 0172N, 2018 FED App. 172N, 2018 U.S. App. LEXIS 8376 (6th Cir. Apr. 3, 2018).

44. Pleadings.

Where plaintiff brought an action for wrongful death, but did not rely on the violation of any statute as the basis of her cause of action, it was not necessary to include an express reference to the wrongful death statutes in her complaint. Adams v. Carter County Memorial Hospital, 548 S.W.2d 307, 1977 Tenn. LEXIS 544 (Tenn. 1977).

45. Substitution of Parties.

Trial court improperly struck motion to substitute parties and dismissed wrongful death suit against a doctor because, pursuant to T.C.A. § 20-5-112, as the wrongful death action was brought while the beneficiary, the surviving spouse, was alive, the death of the beneficiary did not cause the action to abate; the surviving spouse's next of kin was his minor daughter, and a motion to substitute the daughter as the “real party” plaintiff, in place of her deceased father, was timely filed within 90 days of the suggestion of death pursuant to Tenn. R. Civ. P. 25.01. The amended motions filed later merely sought to have a guardian ad litem appointed as next friend of the daughter, and, all along, the goal was to have the daughter substituted for her deceased father. Holley v. Blackett, — S.W.3d —, 2012 Tenn. App. LEXIS 712 (Tenn. Ct. App. Oct. 10, 2012).

Trial court erred by dismissing the decedent's surviving spouse as a plaintiff and substituting the decedent's child's adoptive father as an intervening plaintiff because, although T.C.A. § 20-5-107(b) operated to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations were paid, it did not operate to disqualify him from commencing and maintaining the wrongful death action. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

Collateral References. 22 Am. Jur. 2d Death §§ 2-21, 28, 70.

1 C.J.S. Abatement and Revival §§ 166, 167; 25A C.J.S. Death §§ 24, 39.

Abortion, right of action for death of woman who consents to. 21 A.L.R.2d 369, 36 A.L.R.2d 630.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

Action ex contractu for damages caused by death. 86 A.L.R.2d 316.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child. 94 A.L.R.2d 1237, 97 A.L.R.3d 347.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Admissibility, in wrongful death action brought for benefit of minor children, of evidence of decedent's desertion, nonsupport, abandonment, or the like of the children. 79 A.L.R.2d 819.

Admissibility, in wrongful death action for pecuniary loss suffered by next of kin, etc., of evidence as to decedent's personal qualities with respect to sobriety or morality. 99 A.L.R.2d 972.

Admissibility in wrongful death action of testimony of actuary or mathematician for purpose of establishing present worth of pecuniary loss. 79 A.L.R.2d 259.

Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse's remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926.

Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in tort action for personal injury, wrongful death, or property damage. 80 A.L.R.2d 1224.

Adopted child, natural parent's right to recover for death of. 56 A.L.R. 1349.

Assault, exemplary damages for, as affected by death of party assaulted or assailant. 16 A.L.R. 792, 123 A.L.R. 1115.

Attorney's compensation for services in death action, amount of. 143 A.L.R. 841, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Brothers and sisters of deceased as beneficiaries within state wrongful death statute. 31 A.L.R.3d 379.

Carrier's liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult. 74 A.L.R.3d 1171.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent. 67 A.L.R.2d 745.

Civil liability for death by suicide. 11 A.L.R.2d 751, 58 A.L.R.3d 828.

Compensation from other sources as precluding recovery for death. 18 A.L.R. 678, 95 A.L.R. 575.

Competency of witness in wrongful death action as affected by dead man statute. 77 A.L.R.2d 676.

Contractual relationship as affecting right of action for death. 80 A.L.R. 880, 115 A.L.R. 1026.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Contributory negligence of custodian of child as affecting right of parent to recover for its death or injury. 23 A.L.R. 655.

Contributory negligence of one or more of the beneficiaries in an action for death as affecting the rights of other beneficiaries who were not negligent. 30 A.L.R. 50, 88 A.L.R. 264, 2 A.L.R.2d 785.

Damages for wrongful death of husband as affected by prior abandonment. 18 A.L.R. 1409, 90 A.L.R. 920.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to head or brain. 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 48 A.L.R.5th 129.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

Husband and wife, personal relations of, or marital misconduct of either spouse, as affecting action for death of spouse. 18 A.L.R. 1409, 90 A.L.R. 920.

Husband or his estate, action against, for causing death of wife, or vice versa. 28 A.L.R.2d 662.

Illegitimate child or children of decedent, right of recovery, under wrongful death statute, for benefit of. 72 A.L.R.2d 1235.

Judgment in wrongful death action as res judicata in subsequent action in same jurisdiction for same death under the same statute brought by or for the benefit of statutory beneficiary whose status as such was ignored in the former action. 148 A.L.R. 1346.

Liability for death of, or injury to, one seeking to rescue another. 19 A.L.R. 4, 158 A.L.R. 189, 166 A.L.R. 752, 73 A.L.R.4th 737.

Liability for injury or death of child in refrigerator. 86 A.L.R.2d 709.

Liability for prenatal injuries. 40 A.L.R.3d 1222.

Liability of consignee for personal injury or death of one other than his employee in connection with carrier unloading operations. 86 A.L.R.2d 1399.

Municipal corporation or other governmental unit as within the term “corporation,” “person,” or other term employed in death statute descriptive of party against whom action may be maintained. 115 A.L.R. 1287.

Participation in gambling activities as bar to action for personal injury or death. 77 A.L.R.2d 961.

Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death. 60 A.L.R.2d 873.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workmen's compensation benefits. 69 A.L.R.4th 131.

Propriety and prejudicial effect of reference by plaintiff's counsel, in jury trial of personal injuries or death action, to amount of damages claimed or expected by his client. 14 A.L.R.3d 541.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Release by, or judgment in favor of, person injured as barring action for his death. 39 A.L.R. 579.

Remarriage of surviving parent as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Retroactive effect of statute changing manner and method of distribution of recovery or settlement for wrongful death. 66 A.L.R.2d 1444.

Return or tender of consideration for release or compromise as condition of death action. 134 A.L.R. 17.

Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father. 78 A.L.R.3d 1230.

Right of parent who consents to or acquiesces in employment of child under statutory age to recover for latter's injury or death while in such employment. 23 A.L.R. 635.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage. 69 A.L.R.3d 1046.

Right to maintain action or to recover damages for death of unborn child. 84 A.L.R.3d 411.

Survival of action or cause of action for wrongful death against representative of wrongdoer. 61 A.L.R. 830, 171 A.L.R. 1392.

Survival of cause of action for death against tort-feasor killed in same accident. 70 A.L.R. 1319.

Surviving parent's remarriage as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Tort-feasor's death before death of injured person as precluding action for death. 112 A.L.R. 343.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Death 10.

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply where a child has died, the parents are separated or divorced, and one parent owes the other child support for the decedent child because they bar the obligor parent from benefitting from the wrongful death of a child whom he or she failed to financially support; legislative intent requires the obligor parent to satisfy his or her child support debt to the other parent before he or she is permitted to benefit from the death of that child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Prohibitions in T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent's child support arrearage is owed for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Court of appeals erred in ordering that a father's recovery from a wrongful death action be paid toward satisfaction of his child support arrearages for his children who were unrelated to the decedent spouse because the statute was inapplicable since the father was the surviving spouse of the decedent; the term “parent” as used in subsection (b) is limited to a parent of the decedent child who owes a child support arrearage for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only to a “parent” of the decedent child, and the child support arrearage must be owed for the support of that decedent child; reading “parent” as the parent of the decedent is consistent with other sections that describe a person's rights and remedies in terms of how they are related to the decedent, and given other relational terms always refer to relatives of the decedent, it is consistent to construe “parent” as the parent of the decedent. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

2. Widow's Right of Action.

The widow's right of action is superior to that of the administrator, and he cannot sue until the widow waives her right of action. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Despite surviving spouse's priority to assert a wrongful death action, the surviving spouse and the decedent's children stand on equal footing with respect to each other; therefore, the common fund doctrine is applicable and entitles a trial court to award the surviving spouse's attorney, but not the children's attorney, contingency fees from the settlement proceeds. Kline ex rel. Kline v. Eyrich, 69 S.W.3d 197, 2002 Tenn. LEXIS 87 (Tenn. 2002).

While the statute allows the surviving spouse or next of kin to “institute” the wrongful death action on behalf of the decedent, the statute does not authorize the individual to practice law while doing so. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Because a surviving spouse's pro se wrongful death complaint asserted claims on behalf of another individual and was not signed by a licensed attorney, the filing of that complaint was a nullity; the surviving spouse was not a licensed attorney and could not file a valid complaint that asserted claims on behalf of another individual without it being signed by a licensed attorney, and since the complaint was a nullity and had no legal effect, it did not operate to toll the statute of limitations. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

3. —Widow as Trustee.

The widow is not entitled to the whole fund received by her as administratrix, but it goes to her and the children in equal parts. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921).

Widow, recovering, is a trustee, and the trust is enforceable in action at law upon implied contract, which action is subject to the statute of limitations. Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

4. —Waiver by Widow.

Failure to bring suit until seven months after the decedent's death when § 28-3-104 allowed 12 months was not such delay as to constitute a waiver of her right of action by the widow. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

The alleged tort-feasor in a wrongful death action by the administrator is competent to raise the question of the widow's superior right of action. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

The widow may waive her right of action by allowing the administrator's suit to stand without objection. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

5. Administrator's Right of Action.

Fact that administratrix was not widow of decedent as alleged was immaterial since recovery is held for real beneficiaries. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Administrator's motion to intervene pursuant to Fed. R. Civ. P. 24(a) was denied because, under T.C.A. § 20-5-106(a) and T.C.A. § 20-5-107(a), the administrator had no interest in the action because he had no interest in the recovery; the administrator was only a medium for enforcement of the rights of the beneficiaries of the deceased son, who had already initiated the wrongful death action. Martin v. Corr. Corp. of Am., 231 F.R.D. 532, 2005 U.S. Dist. LEXIS 29566 (W.D. Tenn. 2005).

6. —Administrator as Trustee.

The father of a decedent leaving no widow or children, as administrator of his estate, is entitled to recover the damages for the wrongful death of his intestate, caused by the defendant's negligence, although there may be beneficiaries other than the father, for the administrator recovers as trustee for the real beneficiaries under the statute, and must account to them, whoever they may be, for the proceeds of the judgment. Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

The mother and sister of a 13 year old decedent are the beneficiaries of a judgment recovered, by his administrator, for his death. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

An administrator, recovering for wrongful death, is not the express trustee for a child. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

The attempted compromise settlement for the wrongful death of minor child by the administrator of child's estate was inoperative against the child's legal father who resided outside the state, and the trial court properly permitted the father to intervene in the suit within 30 days from the entering of the consent decree and properly granted a new trial. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

The one who sues as administrator and recovers damages for the wrongful death of the decedent holds the recovery as trustee for the real beneficiaries under the statute and must account to them, whoever they may be, for the proceeds of the judgment. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

7. —Settlement by Prior Administrator.

Accord and satisfaction defense by railroad in suit by second administrator of deceased was sustained where second administrator failed to tender to railroad consideration of $150 paid first administrator in satisfaction of death claim, since tender by second administrator of consideration was a condition precedent to maintaining suit for wrongful death. Doten v. Southern R. Co., 32 F. Supp. 901, 1940 U.S. Dist. LEXIS 3233 (D. Tenn. 1940).

8. —Liability for Proceeds.

The sureties on the administration bond are liable to the extent of the penalty of the bond for the money collected by the personal representative as damages resulting from the death of the decedent, although the administrator was permitted by the next of kin to retain the money until certain debts of the intestate, for which the fund was not legally liable, were paid out of it; but a credit will be allowed for the debts thus paid. Glass v. Howell, 70 Tenn. 50, 1878 Tenn. LEXIS 187 (1878); Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981, 1919 Tenn. LEXIS 14 (1919).

9. Beneficiaries.

Before there can be a recovery, there must be a legal beneficiary, and the suit must be brought for his or her benefit. Western & A. R. Co. v. Hughes, 8 F.2d 835, 1925 U.S. App. LEXIS 3378 (6th Cir. Tenn. 1925).

The right of recovery is dependent upon the existence of beneficiaries designated by the statute. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

10. —Allegation of Beneficiaries.

The declaration must aver that the deceased left a husband, widow, children, or next of kin to take the benefit of the recovery, otherwise it states no cause of action, and is fatally defective. Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Louisville & N. R. Co. v. Beam, 94 Tenn. 388, 29 S.W. 370, 1894 Tenn. LEXIS 53 (1894); Atlanta, K. & N. R. Co. v. Hooper, 92 F. 820, 1899 U.S. App. LEXIS 2193 (6th Cir. Tenn. 1899); Sanders v. Louisville & N. R. Co., 111 F. 708, 1901 U.S. App. LEXIS 4421 (6th Cir. Tenn. 1901); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904); Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911); Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949, 1918 Tenn. LEXIS 33 (1918), overruled in part, Bowers v. Chattanooga, 1991 Tenn. LEXIS 485 (1991), overruled, Bowers v. City of Chattanooga, 826 S.W.2d 427, 1992 Tenn. LEXIS 131 (1992), questioned, Harris v. Williamson County, 835 S.W.2d 588, 1992 Tenn. App. LEXIS 46 (1992).

The declaration must aver the existence of a beneficiary or beneficiaries of one of the classes for whose use the action is preserved, and must state their names, and that the action is brought for their use. In the absence of such averments, a demurrer to the declaration, or a motion in arrest of judgment, will be sustained, unless the omission be cured by proper and reasonable amendment. Atlanta, K. & N. R. Co. v. Hooper, 92 F. 820, 1899 U.S. App. LEXIS 2193 (6th Cir. Tenn. 1899); Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

11. —Allegation as to Pecuniary Loss.

There should be averment of the pecuniary losses which plaintiff expects to prove. Nashville, C. & S. L. R. Co. v. Anderson, 134 Tenn. 666, 185 S.W. 677, 1915 Tenn. LEXIS 187, L.R.A. (n.s.) 1918C1115 (1916).

12. —Amendments.

The declaration may be amended as to the beneficiaries after motion in arrest of judgment, or after the entry of judgment, where the ends of justice require it, as where the defect is supplied by the proof; and to prevent a failure of justice, the amendment may be allowed in the Supreme Court. If the matter of the amendment is controverted in a proper manner, a new trial may be granted. Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

In an action by the administrator the court could after verdict allow amendment of the complaint to show that the action was for the use and benefit of the surviving spouse and children of the decedent. Kingsport Utilities, Inc. v. Mort, 2 Tenn. App. 270, — S.W. —, 1925 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1925).

In action by father as next of kin for wrongful death of minor son father could amend complaint so as to include mother of deceased as party plaintiff and amendment would relate back to time of filing original action, since cause of action would not be changed by adding party plaintiff; and this was so even though suit by mother would have been barred by statute of limitations. Mosier v. Lucas, 30 Tenn. App. 498, 207 S.W.2d 1021, 1947 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1947).

13. —Proof.

It is necessary to prove the existence of a widow, children, or other next of kin of the deceased, not for the purpose of increasing the damages, but only to show the existence of the beneficiaries provided for in the statute. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891); Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900); Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949, 1918 Tenn. LEXIS 33 (1918), overruled in part, Bowers v. Chattanooga, 1991 Tenn. LEXIS 485 (1991), overruled, Bowers v. City of Chattanooga, 826 S.W.2d 427, 1992 Tenn. LEXIS 131 (1992), questioned, Harris v. Williamson County, 835 S.W.2d 588, 1992 Tenn. App. LEXIS 46 (1992).

The existence of a child or children may be proved where the declaration avers the existence of a widow only. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872).

In a widow's action for the wrongful killing of her husband, evidence of the number, ages, and sex of the children of the deceased is admissible, though the declaration is silent as to the children. Spiro v. Felton, 73 F. 91, 1896 U.S. App. LEXIS 2615 (C.C.D. Tenn. 1896), rev'd, 78 F. 576, 1897 U.S. App. LEXIS 1697 (6th Cir. Tenn. 1897); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

Where the declaration averred that there was no widow, no children, and no father, but that the mother, or brother, and a sister survived, there is no error in admitting evidence of the existence of the brother and sister. Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901).

14. — —Dependency.

There need be no testimony introduced for the purpose of showing that the widow, children, or next of kin were dependent for support or pecuniary aid upon the deceased in his lifetime. It is sufficient to prove the status of widow, child, or next of kin of the deceased as such. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904); Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912).

15. Settlement.

Former § 34-3-113, relating to the compromise of claims involving infants or insane persons, was applicable to wrongful death suits; the personal representative, when suing on behalf of an infant in a wrongful death action, has the same responsibility and duties as those conferred upon the parent, guardian or next friend of the infant. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

16. Parties.

Children are not necessary parties. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872).

In an action by a father for the death of his child, the divorced mother of the child was a necessary party plaintiff where the divorce decree contained no award of custody. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Surviving children possess jointly any right-of-action for wrongful death of father and all are indispensable parties to such action. Williams v. Baxter, 536 F. Supp. 13, 1981 U.S. Dist. LEXIS 17409 (E.D. Tenn. 1981).

Court erred in dismissing a medical malpractice action where the original lawsuit was “commenced” for purposes of the savings statute, T.C.A. § 28-1-105, because, although it was filed outside the one-year statute of limitations in T.C.A. §§ 28-3-104 and 29-26-116, it was filed within one year of the order of voluntary non-suit, and it was filed in the name of the proper party plaintiff under T.C.A. § 20-5-107. Howell v. Claiborne & Hughes Health Ctr., — S.W.3d —, 2010 Tenn. App. LEXIS 400 (Tenn. Ct. App. June 24, 2010), overruled in part, Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 2012 Tenn. LEXIS 735 (Tenn. Oct. 4, 2012).

Surviving spouse never had an individual claim to assert because the wrongful death claims he asserted against a hospital were brought in a representative capacity on behalf of the decedent; the decedent's children did not have a separate claim but one indivisible cause of action existed, the cause of action the decedent would have had against the wrongdoer, and thus, the decedent's survivors were only permitted to assert the cause of action in a representative capacity on the decedent's behalf. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Trial court did not err in denying relief, as the child failed to establish that the judgment in question was void; the trial court had jurisdiction to hear the grandmother's wrongful death complaint, and based on the pleadings, she appeared to have the right to file the wrongful death suit as next of kin and in the absence of a claim filed by the child under Tennessee's wrongful death statute. Hussey v. Woods, — S.W.3d —, 2017 Tenn. LEXIS 824 (Tenn. Dec. 18, 2017).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (e)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017), rev'd, 545 S.W.3d 428, 2018 Tenn. LEXIS 134 (Tenn. Mar. 5, 2018).

Decedent's grandmother had standing to file a wrongful death action on his behalf against the county because she was authorized to do so by statute and there was no indication that the decedent had other beneficiaries who held a superior right to bring the action and objected to the grandmother doing so Haynes v. Wayne Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 249 (Tenn. Ct. App. Apr. 19, 2017).

16.5 Surviving Spouse.

Trial court erred by dismissing the decedent's surviving spouse as a plaintiff and substituting the decedent's child's adoptive father as an intervening plaintiff because, although this section operated to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations were paid, it did not operate to disqualify him from commencing and maintaining the wrongful death action. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

17. Priority in Prosecutions.

An adult beneficiary has priority over an administrator in prosecuting his or her own suit. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

Absent a showing of bad faith, fraud, or other good cause, a suit commenced in good faith by the personal representative need not be subordinated to that of a guardian or next friend. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

A court-appointed general guardian or next friend may sue for minors as provided in Tenn. R. Civ. P. 17.03, since a minor cannot maintain a suit in his own name; however, a general guardian or next friend does not have priority over an administrator in the prosecution of wrongful death actions on behalf of persons under disability. The minor is the real plaintiff, not the fiduciary in whose name he sues. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

18. Pain and Suffering.

Cause of action against a physician for pain and suffering from his negligence does not survive in favor of the patient's widow or children, where such negligence did not result in the death of the one claimed to have been injured, and where there was no suit brought during his life therefor. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

19. Damages.

When determining the amount of damages based upon life expectancy and earning capacity there should be a deduction of the deceased's probable living expenses had the deceased lived. Wallace v. Couch, 642 S.W.2d 141, 1982 Tenn. LEXIS 363 (Tenn. 1982).

Recovery is based upon the pecuniary value of the life of the deceased to be determined upon a consideration of the deceased's expectancy of life, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

In a wrongful death action filed by the decedent's mother, she was required to demonstrate damages with some material evidence; there was no material evidence that supported an economic damage award in excess of $651,231.72, and thus the appellate court remanded with a suggestion of remittitur in the amount of $598,768. Dunn v. Davis, — S.W.3d —, 2007 Tenn. App. LEXIS 120 (Tenn. Ct. App. Mar. 6, 2007).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

20. Evidence.

In suit filed by widow in name of administrator, who refused to sue, against defendant for killing of deceased the widow was competent to testify concerning killing which she saw but in which she had no part though at the time she was married to deceased, as reason for public policy did not exist under facts of the case. Hale v. Kearly, 67 Tenn. 49, 1874 Tenn. LEXIS 326 (1874).

The moral worth of the nominal plaintiff and ultimate beneficiary is totally unrelated to a wrongful death action as it is the right of action which the deceased would have had, had he survived. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The credibility of the nominal plaintiff, who was not a witness to the action and did not testify about it, was not an issue in the wrongful death action. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

Collateral References. 22 Am. Jur. 2d Death §§ 2, 4, 7, 9, 55, 70, 194-202.

1 C.J.S. Abatement and Revival §§ 161, 162; 25A C.J.S. Death §§ 32, 57-62.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Alien, nonresident, right to maintain action for wrongful death for benefit of. 138 A.L.R. 684.

Apportionment among beneficiaries of amount awarded by jury or received in settlement on account of wrongful death, as affected by death of distributee after judgment. 14 A.L.R. 538.

Award of custody of child to another as affecting parent's right to recover for death of minor child. 147 A.L.R. 482.

Beneficiary's right to bring action under death statute where executor or administrator, who by statute is the proper party to bring it, fails to do so. 101 A.L.R. 840.

Capacity of foreign domiciliary, or of ancillary, personal representative to maintain action for death, under statute of forum providing for action by personal representative. 52 A.L.R.2d 1048.

Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative. 52 A.L.R.2d 1016.

Construction of application of provisions of death statute that makes the question whether action shall be brought by personal representative, or by beneficiary dependent upon existence or non-existence of cause of action in estate. 105 A.L.R. 834.

Death of beneficiary as affecting right of action under death statute. 13 A.L.R.4th 1060.

Disqualification of beneficiary of preferred class, effect of, upon right to sue in behalf of beneficiary of deferred class. 59 A.L.R. 747.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of remotely related but dependent member of same class. 162 A.L.R. 704.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

Judgment in favor of defendant in action by personal representative for damages to estate by injury resulting in death as bar to action in behalf of statutory beneficiaries. 64 A.L.R. 446.

Kind of verdict or judgment where administrator or executor, whose decedent was negligently killed, brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries. 124 A.L.R. 621.

Relationship of parent and child between tort-feasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute. 119 A.L.R. 1394.

Right of action for death where decedent left no next of kin or person within class of beneficiaries named in the statute creating the right of action. 117 A.L.R. 953.

Right of foreign domiciliary, or of ancillary, personal representative to maintain an action for death, under statute of forum which provides that action shall be brought by personal representative. 52 A.L.R.2d 1048.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage. 69 A.L.R.3d 1046.

Substitution by amendment of plaintiff in action for wrongful death. 135 A.L.R. 352.

Time of bringing action, provision of death statute as to, as condition of right of action or mere statute of limitations. 67 A.L.R. 1070.

Wife of defendant, right to maintain death action where recovery will be for sole benefit. 96 A.L.R. 479.

Abatement and revival 72.

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

2. Continuation of Suit Without Revivor.

An action for personal injuries commenced by the injured party does not abate by his death resulting from such injuries, but may be prosecuted to final judgment, in his name, without revivor, for the use of the widow and children or next of kin. Chambers v. Porter, 45 Tenn. 273, 1868 Tenn. LEXIS 9 (1868); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Webb v. East Tenn., V. & G.R.R., 88 Tenn. 119, 12 S.W. 428, 1889 Tenn. LEXIS 36 (1889); Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904).

3. —Death From Injury.

Where injured person's suit proceeds without revivor after death, to justify a recovery, it must be shown that plaintiff died of the injury for which his suit was brought, and that he left a widow or next of kin. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

4. Revivor of Suit.

Where the plaintiff dies from cause other than the injury sued for, and without widow or next of kin, the action cannot be prosecuted without revivor, and it seems that such action may be revived in the name of the personal representative, and prosecuted for the benefit of the plaintiff's estate, after his death. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904); Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

Revivor of deceased plaintiff's suit is not authorized where either of the elements of death from wrongful act or existence of designated beneficiary are wanting. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

5. —By Whom Filed.

The suit for personal injuries cannot be revived in the name of the heirs at law or next of kin of the deceased plaintiff, unless it is shown that no one will administer on the estate of the deceased. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

Where the injured party brought suit for personal injuries, and thereafter died from other supervening causes, the suit may be revived by the personal representative, during the trial and after a motion to dismiss the suit. Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

An action for malpractice does not abate upon the plaintiff's death resulting from a cause other than such malpractice of the defendant; and the action may be revived in the name of the plaintiff's personal representative, but not in the name of his widow or next of kin. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914); Burnett v. Layman, 133 Tenn. 323, 181 S.W. 157, 1915 Tenn. LEXIS 95 (1915).

6. Suit Filed After Death.

Where no suit was brought in decedent's lifetime, an action to recover damages for the use of the widow and minor children of decedent must be predicated upon the injuries sustained, which caused the death, and cannot be based upon physical pain and suffering of decedent caused by a trip to a hospital for the insane, in an ambulance, on being refused treatment at defendant's hospital. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

If deceased received injuries at the hands of a wrongdoer, but which injuries did not produce death, and for which suit was not brought while living, the action could not survive in favor of the personal representative or of the widow and minor children. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

7. Settlement by Injured Person.

Where the injured person in his lifetime compromised and settled his right of action, nothing will, upon his death, pass to his personal representative or beneficiaries under the statute, though his death results from such injuries. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Brown v. Chattanooga E. R. Co., 101 Tenn. 252, 47 S.W. 415, 1898 Tenn. LEXIS 58, 70 Am. St. Rep. 666 (1898).

8. Assignment by Injured Person.

Where the injured person in his lifetime assigned the expected recovery for his personal injuries, the recovery obtained will inure to the benefit of the assignee, and nothing will pass upon his death to his personal representative or the beneficiaries under the statute. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881) (dictum).

9. Abatement of Suit.

From a judgment abating an action for personal injuries on account of the plaintiff's death, and appeal or writ of error will lie, without revivor, in the name of the deceased plaintiff, upon a bond bearing his name, executed after his death. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

A suit brought by the injured party may be abated at the third or any subsequent term of the court after the suggestion and proof or admission of the death of the plaintiff, where it is not affirmatively shown that the plaintiff died of the injuries for which he sued. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

10. Dismissal of Suit.

The suit of a husband for personal injuries wrongfully inflicted, upon his death, becomes the suit of his widow to all intents and purposes, without revivor; and upon dismissal of such suit, upon a ground not concluding the right of action, a new suit may be commenced by her within one year thereafter. Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904).

11. Judgment.

In an action for personal injuries prosecuted after the plaintiff's death resulting from such injuries, a form of verdict and judgment thereon, naming the widow and children as the beneficiaries, and pronouncing judgment in their favor in the name of the deceased plaintiff, is stated as made in the lower court, and seems to be approved by the Supreme Court. Chambers v. Porter, 45 Tenn. 273, 1868 Tenn. LEXIS 9 (1868).

12. Recovery.

The expenses incurred by a widow in supporting her children cannot be charged against their interest in the recovery obtained by the widow for the wrongful death of her husband. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921).

Damages recovered for a husband's death are not assets of his estate, proper; nor are same subject to widow's yearly allowance, nor for funeral expenses. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930); Cunningham v. Hutcherson, 14 Tenn. App. 173, — S.W.2d —, 1931 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1931).

13. —Distribution.

The fund recoverable for a wrongful death does not occupy the same status as the proceeds of a life insurance policy payable to the assured, which he may dispose of while he lives; but it passes by operation of the statutes, and according to their provisions. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

The recovery for a wrongful death cannot pass under the will of the deceased. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Where the recovery of damages goes to the children of the decedent, the children of a deceased child of the decedent will take the share that their parent would have taken if alive. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Any recovery passes immediately to the statutory beneficiaries free from all claims of decedent's creditors. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

Where the father and mother of a child were divorced and the exclusive custody of such child awarded to the mother the mother was entitled to the proceeds of a recovery for the wrongful death of such child to the exclusion of the father since such proceeds follow the usual course for the distribution of personalty and under the provisions of § 31-201 (repealed) the mother is entitled to distribution of the personal estate of the child to the exclusion of the father under the above circumstances. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

The recovery from the wrongful death of a child while not an asset of her estate in the sense that it was liable for her debts or could pass under her will or in other respects be treated as a legal asset nevertheless is to be distributed as surplus personal property. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

Recovery for wrongful death when realized becomes personal property and follows the distribution as such. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Father who had abandoned minor child prior to death of child was entitled to share in proceeds of recovery for wrongful death of child. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Divorce decree committed custody of child to mother to the exclusion of father within the meaning of § 31-201(4) (since repealed) so as to entitle mother to entirety of proceeds from recovery for wrongful death of such child where decree committed custody of such child with visitation rights to father. Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476, 1963 Tenn. LEXIS 394 (1963).

The father and mother are the next of kin of their deceased child and share equally in the distribution of proceeds of a wrongful death action, and mother is a necessary party plaintiff. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Divorced father was entitled to share with his ex-wife in the proceeds of a judgment for the wrongful death of their minor daughter, subject to a lien on any funds recovered to satisfy any arrearage that may be owed as child support. Spurling v. Johnson, 747 S.W.2d 350, 1987 Tenn. App. LEXIS 3138 (Tenn. Ct. App. 1987).

14. — —Widow's Share.

A fund received by a widow, as administratrix for the wrongful death of her husband, is not subject to her year's support, for only the assets of a deceased husband going into the hands of his personal representative and subject to the payment of debts is subject to be appropriated to the year's support of the widow. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

The widow is not entitled to the whole of the fund received by her as administratrix for the wrongful death of her husband, but such fund goes to her and the children in equal parts. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

The widow's recovery is distributed as the personal estate of the deceased, free from the claims of creditors. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Action by a child for his distributable share brought against widow who received entire recovery must be brought within six years after he attains his majority, the widow not being an express trustee. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Widow, recovering judgment for wrongful death of husband, cannot rightfully appropriate children's portion to payment of husband's debts. Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

15. Applicability.

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

Collateral References. 22 Am. Jur. 2d Death §§ 90, 91.

1 C.J.S. Abatement and Revival §§ 138, 186; 25A C.J.S. Death § 40.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa. 94 A.L.R.3d 676.

Abatement and revival 71-77.

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

This section is a legislative designation of those permissibly enabled to maintain an action in their own name. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

2. Death From Husband's Assault.

Administrator of wife may not maintain action for her death by reason of unlawful assault of her husband, since deceased had no statutory right of action. Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926).

3. Contributory Negligence of Husband.

In action to recover for wrongful death of wife and mother, the burden of proving contributory negligence of husband is upon defendant. Husband's contributory negligence cannot prejudice rights of minor children not at fault. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

4. Measure of Damages.

The measure of damages was fully discussed, and it was ruled that the husband could recover nothing for loss of the moral aid, comfort, counsel and companionship of the wife. Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life, and such losses are not limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members, including attention, guidance, care, protection, training, companionship, cooperation, affection, love and in the case of a spouse, sexual relations. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Evidence did not preponderate against the award of $15,000 for a son's loss of consortium claim under T.C.A. § 20-5-113 as the evidence showed that the father had no earning capacity at the time of his death, that he likely would have died within two years due to his deteriorating mental and physical condition, that the father was not able to provide any financial help or parental advice, that the son was not dependent on the father in any way, and that the father was only able to visit his father once or twice every six months. In re Estate of Lehman, — S.W.3d —, 2012 Tenn. App. LEXIS 344 (Tenn. Ct. App. May 25, 2012).

Evidence preponderated against a trial court's award of only $20,000 for the pain and suffering of a son's father as the evidence showed that the father struggled to survive for nearly all of the 10 days of his hospitalization and that his dementia and other mental health problems made it difficult, if not impossible, for the father to comprehend why he was hospitalized, thereby exacerbating his confusion and agitation. In re Estate of Lehman, — S.W.3d —, 2012 Tenn. App. LEXIS 344 (Tenn. Ct. App. May 25, 2012).

5. Parties.

In action for wrongful death of wife and mother children were not necessary parties but were proper parties in suit by husband. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

While husband as administrator was neither a proper nor necessary party with husband individually in action for death of wife it was harmless error where same issues would have been made. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

Administrator of deceased married woman's estate has legal capacity to maintain wrongful death action on behalf of estate of decedent and may do so without joining with him the party for whose benefit the action is brought under Tennessee law and Federal Rules of Civil Procedure 12(b)(6), 17(a), and 21. Lamar v. Stowers, 52 F.R.D. 490, 1971 U.S. Dist. LEXIS 12339 (D. Tenn. 1971).

Surviving husband was a proper plaintiff in wrongful death action since the right of action is given first to the surviving spouse. Cline v. Richards, 455 F. Supp. 42, 1977 U.S. Dist. LEXIS 14404 (E.D. Tenn. 1977).

In a wrongful death action, where married deceased's parents had brought the action but the complaint was dismissed on the ground that the right of action, if any, passed to deceased's husband rather than to her parents, it was proper to allow substitution of deceased's husband as plaintiff in the action under Tenn. R. Civ. P. 17.01, even though the statute of limitations of one year had run prior to the filing of the motion for substitution, since the husband was the real party in interest and he made his application for substitution within a reasonable time after objection was made by defendants to the status of the original plaintiffs as real parties in interest. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

The right to bring an action for damages for the wrongful death of the deceased married woman belongs to her husband, and not her parents. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

Where two actions were filed for one death under this section they should have been consolidated and the proper plaintiff determined before proceeding to summary judgment which resulted from the confusion of the two actions. Matthews v. Mitchell, 705 S.W.2d 657, 1985 Tenn. App. LEXIS 3423 (Tenn. Ct. App. 1985).

The substitution of the administrator for an improper plaintiff was not error although the rightful party had a superior claim but did not object to the substitution. Matthews v. Mitchell, 705 S.W.2d 657, 1985 Tenn. App. LEXIS 3423 (Tenn. Ct. App. 1985).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (c)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017), rev'd, 545 S.W.3d 428, 2018 Tenn. LEXIS 134 (Tenn. Mar. 5, 2018).

6. Settlement.

Only person authorized to effect a settlement and give a valid release is the surviving husband and therefore release obtained by insurance company from husband as administrator was void. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

An automobile insurer properly paid the limits of its liability under its policy's uninsured motorist coverage to the spouse of the insured who was killed in an automobile accident, without notifying any other potential beneficiary that settlement with the spouse had been effected. Spicer v. Hilliard, 879 S.W.2d 858, 1994 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1994).

Postnuptial agreement, which included a waiver by both parties of their rights to the property of the other, was broad enough to encompass proceeds flowing from a wrongful death action filed on behalf of the decedent, such that the widow was not entitled to share in the wrongful death settlement. Rickman v. Rickman, — S.W.3d —, 2013 Tenn. App. LEXIS 683 (Tenn. Ct. App. Oct. 15, 2013).

7. Next of Kin.

The right of action for wrongful death of a married woman survives for her surviving husband and descendants if any and if none to her next of kin including a parent or collateral. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

Natural mother of decedent qualified as “next of kin” pursuant to § 20-5-106 and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

8. —Simultaneous Death.

Where husband and wife were killed in plane crash and there was no evidence other than that they had died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived the husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

9. Waiver of Right of Action.

A surviving spouse, who knows that he has a right of action for wrongful death, waives his right when he fails to maintain control over it by either effecting a compromise or bringing the action to trial. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Where surviving spouse knowingly waived his right of action for wrongful death, he also waived his right to collect any proceeds from the wrongful death action. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

In a case where the surviving spouse has knowingly waived his right to bring a wrongful death action and there are no surviving children of the deceased, the right of action as well as the right to collect the proceeds therefrom pass to the next of kin. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival § 94; 22 Am. Jur. 2d Death §§ 47-59, 101, 102.

1 C.J.S. Abatement and Revival §§ 161, 162; 25A C.J.S. Death § 33.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse's remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926.

Abatement and revival 54, 55.

NOTES TO DECISIONS

1. Construction.

This section is in effect an amendment to § 20-5-112 and upon the reading of the two sections together it becomes apparent that the legislature intended the right of recovery to survive to the next of kin of the deceased primary beneficiary and not the next of kin of the person wrongfully killed; the “decedent” referred to in the provisions for survival to the “next of kin of such decedent” refers to the primary beneficiary the word “beneficiary” being implied. Ridge v. Bright, 172 Tenn. 87, 110 S.W.2d 312, 1937 Tenn. LEXIS 54 (1937).

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

2. Common Disaster.

Where husband, wife and children were involved in a common accident with husband and children being killed immediately and the wife dying 24 hours later the recovery for the wrongful death of the husband and children passed to the next of kin of the wife to the exclusion of the next of kin of the husband and children. Ridge v. Bright, 172 Tenn. 87, 110 S.W.2d 312, 1937 Tenn. LEXIS 54 (1937).

Collateral References. 22 Am. Jur. 2d Death §§ 70, 194-202.

1 C.J.S. Abatement and Revival § 119; 25A C.J.S. Death §§ 33, 34, 40.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

For whose benefit action for wrongful death may be maintained upon death of beneficiary. 43 A.L.R.2d 1291, 13 A.L.R.4th 1060, 73 A.L.R.4th 441.

NOTES TO DECISIONS

1. Legislative Purpose.

This act simply provides that suits instituted for the benefit of those enumerated in § 20-5-106 shall not abate in event of their death. It was evidently passed to meet the situation created by construction of § 20-5-106 that suit did abate where the beneficiary designated died while suit was pending. Lones v. McFall, 152 Tenn. 239, 276 S.W. 866, 1925 Tenn. LEXIS 67 (1925).

2. Construction.

See note under heading “Construction,” § 20-5-111, Notes to Decisions.

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

3. —Common Disaster.

See note under heading “Common Disaster,” § 20-5-111, Notes to Decisions.

4. Nature of Revived Right.

Action commenced by deceased and revived by and prosecuted in the name of the administrator is the same right of action which deceased would have had in case death had not ensued. Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058, 1930 Tenn. LEXIS 67 (1931), overruled in part, Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

5. Substitution of Parties.

Trial court improperly struck motion to substitute parties and dismissed wrongful death suit against a doctor because, pursuant to T.C.A. § 20-5-112, as the wrongful death action was brought while the beneficiary, the surviving spouse, was alive, the death of the beneficiary did not cause the action to abate; the surviving spouse's next of kin was his minor daughter, and a motion to substitute the daughter as the “real party” plaintiff, in place of her deceased father, was timely filed within 90 days of the suggestion of death pursuant to Tenn. R. Civ. P. 25.01. The amended motions filed later merely sought to have a guardian ad litem appointed as next friend of the daughter, and, all along, the goal was to have the daughter substituted for her deceased father. Holley v. Blackett, — S.W.3d —, 2012 Tenn. App. LEXIS 712 (Tenn. Ct. App. Oct. 10, 2012).

Decisions Under Prior Law

1. Death of Sole Beneficiary.

This statute was not applicable, where, under the previously existing law, it was adjudged, upon a plea in abatement, in a pending suit, before the enactment of such statute, that the right of action or suit had abated on account of the death of the sole statutory beneficiary, and could not be revived and prosecuted for the benefit of other next of kin of the first decedent, nor for the next of kin of the deceased beneficiary. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

NOTES TO DECISIONS

1. General Principles.

The statute embraced in this section is almost a literal transcript of the rule for the measurement of damages laid down in the case of Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The great fluctuation of judicial opinion as to what were the true elements of damage for the wrongful death of a person no doubt led to the passage of this section. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Chattanooga E. R. Co. v. Johnson, 97 Tenn. 667, 37 S.W. 558 (1896); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897).

The statute created no new, additional, or independent cause of action, but enlarged and regulated the measure of damages. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

Provisions of Worker's Compensation Law for benefits to dependents held inapplicable to action for wrongful death of one not an employee. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Despite allowance of certain damages to the beneficiaries, this statute creates no new right of action in the beneficiaries but preserves only the right of action of the deceased. Jones v. Black, 539 S.W.2d 123, 1976 Tenn. LEXIS 572 (Tenn. 1976).

The amount of damages is primarily a question for the jury and their verdict is entitled to great weight on appeal when the trial court has approved it, if there is no claim that the verdict is corrupt or dishonest. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

The Tennessee wrongful death statutes, § 20-5-106 and this section, are of the survival type, which simply preserve any action which the decedent would have had. Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 1985 U.S. Dist. LEXIS 16397 (W.D. Tenn. 1985).

The language of this section does not in any way lead to the conclusion that a plaintiff's post-judgment death converts a personal injury action into a wrongful death action. Davis v. Jellico Community Hosp., Inc., 912 F.2d 129, 1990 U.S. App. LEXIS 14589 (6th Cir. Tenn. 1990).

T.C.A. § 20-5-113 gives rise to a single cause of action vested in the representative of the decedent, under which two types of damages may be recovered: 1) Actual damages to the deceased, which include pain and suffering, medical expenses and funeral costs; and 2) Pecuniary value of the life of the deceased, based on life expectancy, age, condition of health and strength, capacity for labor and for earning money, and personal habits as to sobriety and industry. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Wrongful death beneficiaries'  claims against a nursing home arising from the death of a resident were subject to an arbitration agreement between the resident and the home; the wrongful death claim belonged to the resident's estate and not to the beneficiaries, so the beneficiaries were required to seek their damages in the arbitral forum agreed to by the estate. Wood v. Greenfield Assisted Living of Memphis, LLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 179186 (W.D. Tenn. June 22, 2015).

2. Tests for Measuring Compensation.

The measure of damages for the wrongful killing of a person is actual compensation in all cases where the nature of the case admits of the application of the rule; and in cases involving mental and physical suffering that do not admit of being brought to an actual standard of value, some reasonable proportion between the circumstances attending the injury and the damages allowed should be observed by the jury. Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128, 1884 Tenn. LEXIS 115 (1884).

The pecuniary value of the life is its value to deceased's estate. The amount representing this value represents also the loss which the beneficiary has suffered, because he is entitled to the money as the substitute for the life of the deceased. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Damages embracing pecuniary value of life of deceased are to be determined upon consideration of life expectancy of deceased, his age, condition of health and strength, his capacity if any for labor and earning money through skill in any art, trade, profession, occupation or business and his personal habits as to sobriety and industry. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965); Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965); Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989); Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

In wrongful death action trial court should have instructed jury that for purpose of determining pecuniary value of decedent's life they should take into consideration the life expectancy of decedent, his age, the condition of his health, his strength, his capacity for work and earning money, his personal habits for sobriety and industry, all of these things to be modified by the fact that expectancy of life is at most a probability based upon experience and also modified by the fact that earnings of the same individual are not always the same and uniform. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

One of the elements of damage in wrongful death action is pecuniary value of life of decedent on the day he died. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

The pecuniary value of decedent's life under this section is the same as its value to his estate. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

The sexual conduct of the deceased's mother who brought the wrongful death action had nothing to do with the deceased's capacity for work and personal habits. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The fact that a party is in a weakened condition at the time of the injury is not a causal defense available to the defendant in a wrongful death action. Such condition may be material to the issue of life expectancy, but is not evidence as to the cause of the injury. Fuller v. Speight, 571 S.W.2d 840, 1978 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1978).

Evidence of commission of a crime by decedent is competent on the question of pecuniary value of decedent's life, and the court erred in excluding such testimony in this case. Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989).

3. Two Classes of Damages.

In an action for the wrongful death of a person, the damages, recoverable in the one and same action, consist of two classes: the first class consists of damages purely for the injury to the deceased himself, and embraces damages for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from personal injury; and the second class consists of the incidental damages suffered by the widow, children, or next of kin, from the death, and embraces the pecuniary value of the life of the deceased, to be determined upon the consideration of his expectancy of life, his age, condition of health and strength, his capacity of labor; and for earning money through skill in any art, trade, profession, occupation, or business, and his personal habits as to sobriety and industry; all modified, however, by the fact that the expectancy of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912); Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

There is but one cause of action embracing the first and second classes of damages contemplated by this section, namely, the action of the deceased, although the recovery may include damages sustained by persons to whom the statute gives the recovery. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Two doctors'  post-2001 failure to diagnose the decedent's prostate cancer, which allegedly led to the decedent's increased pain and suffering, did not entitle the decedent's children to damages for pain and suffering irrespective of their success as T.C.A. § 20-5-113 set forth two classifications of damages available in successful wrongful death claims. Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 400 (Tenn. Apr. 14, 2011).

4. Mental and Physical Suffering of Deceased.

Damages for the mental and physical suffering of the deceased are recoverable by those in whose favor the right of action survives. Louisville & N. R. Co. v. Stacker, 86 Tenn. 343, 6 S.W. 737, 1887 Tenn. LEXIS 52, 6 Am. St. Rep. 840 (1887); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Beneficiaries may recover for deceased's mental and physical suffering, though the declaration did not cover pain and suffering. Brown v. Ellison, 12 Tenn. App. 27, — S.W. —, 1926 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1926).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

5. Instantaneous Death.

The action for a wrongful death lies whether the death is instantaneous and simultaneous with the injuries, or occurs after an interval. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Where the death is instantaneous, there can be no compensation for mental and physical suffering of the deceased. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Carolina, C. & O.R.R. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, 1913 Tenn. LEXIS 55, 1916C L.R.A. (n.s.) 964 (1913), aff'd, Shewater v Carolina, C. & O. R. Co., 239 U.S. 630, 36 S. Ct. 166, 60 L. Ed. 476, 1915 U.S. LEXIS 1419 (1915); Louisville & N.R.R. v. Johnson, 7 Tenn. Civ. App. (7 Higgins) 458 (1917).

The question whether the injured person suffered mental or physical pain, where death was instantaneous, is a question for the jury. Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894).

Where deceased was rendered unconscious immediately and did not suffer and no medical or funeral expenses are proved, the award of damages can be for only those resulting from the death consequent upon the injuries received. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Where parties stipulated that one decedent in wrongful death action was killed instantly and that the other decedent died two hours later without regaining consciousness, the amount of damages recoverable would be the pecuniary value of the lives of the decedents together with any medical or burial expenses. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

In a wrongful death action, recovery for pain and suffering was not available because conscious injury was not shown and could not have reasonably been inferred from the evidence presented where the personal representative presented no evidence to refute testimony that the decedent was killed upon impact. Wilburn v. City of Memphis, — S.W.3d —, 2010 Tenn. App. LEXIS 260 (Tenn. Ct. App. Apr. 9, 2010).

6. Natural and Proximate Cause.

An action cannot be maintained under these statutes for the death of a person, unless the death is the natural and proximate result or consequence of the injury complained of and proved. Wagner v. Woolsey, 48 Tenn. 235, 1870 Tenn. LEXIS 42 (1870); White v. Conly, 82 Tenn. 51, 1884 Tenn. LEXIS 104, 52 Am. Rep. 154, 52 Am. Rep. 154 (1884); Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917).

7. Death of Infant.

Where death results, and the parent, as administrator of the child, sues, he is entitled to recover for the mental and physical suffering of the child, loss of the child's time, and the necessary expenses, if any, and also the damages for the wrongful death of the child. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Tennessee Coal, Iron & R.R. v. Watts, 1 Tenn. Civ. App. (1 Higgins) 347 (1909); Chess-Wymond Co. v. Davis, 4 Tenn. Civ. App. (4 Higgins) 197 (1913).

Mental suffering is not an element of damages in action for the death of a child. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934).

In a suit prosecuted by the administratrix of an infant for the wrongful death of such infant, the amount of damages recoverable was the pecuniary value of its life. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956).

Sum of $14,000 was allowed for the death of a five and one-half year old boy. Pickens v. Southern R. Co., 177 F. Supp. 553, 1959 U.S. Dist. LEXIS 2680 (D. Tenn. 1959).

Substantial damages may be recovered by the parents of a minor child notwithstanding the fact that such child had never been gainfully employed, such damage to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex, and physical and mental characteristics of the child. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

T.C.A. § 20-5-110 allows recovery of filial consortium damages as part of the pecuniary value of the decedent's life. Hancock v. Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 2001 Tenn. LEXIS 628 (Tenn. 2001).

In a wrongful death action by the father who survived the deceased mother, and the mother's unborn child, it was clear that a viable fetus “resided wherever its mother resided,” and therefore, the family exclusion provision in the policy was applicable, the insurer was not required to provide coverage for bodily injury to fetus, and the trial court's grant of partial summary judgment in favor of father, was reversed. Hollis v. Doerflinger, 137 S.W.3d 625, 2003 Tenn. App. LEXIS 416 (Tenn. Ct. App. 2003).

8. Death From Other Causes.

Where the injured party brought suit for personal injuries, and thereafter died from other causes, and his personal representative revived the suit, there can be a recovery for the mental and physical suffering of the deceased up to the time of his death, but there can be no recovery for the suffering which the deceased would have undergone from the wrongs, for the time he would have lived in the ordinary course, had it not been for the other supervening causes of death. Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

9. Incidental Damages.

If those entitled to the recovery, under the statute for a wrongful death, had a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they may recover for it; and, the greater the value of the life to them, from a pecuniary point of view, the more perfect is the right of recovery. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

There can be no recovery of damages for the injured feelings, grief, or mental and physical suffering and anguish of the widow, children, or next of kin, occasioned by the death of the deceased, nor for the loss of the companionship, advice, protection, assistance, comfort, moral aid, and counsel of the deceased, called solatium. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Nashville & C. R. Co. v. Smith, 77 Tenn. 470, 1882 Tenn. LEXIS 85 (1882); Louisville & N. R. Co. v. Conley, 78 Tenn. 531, 1882 Tenn. LEXIS 219 (1882); Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901); Railroad v. Bentz, 108 Tenn. 670, 69 S.W. 317, 1902 Tenn. LEXIS 14, 91 Am. St. Rep. 763, 58 L.R.A. 690 (1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The incidental damages suffered by the next of kin are such as the deceased himself could have recovered had he been permanently disabled for life, and were himself prosecuting the suit. This measure of damages represents the pecuniary value of the life of the deceased, which the beneficiaries under the statute are entitled to recover as the pecuniary damages sustained by them. To allow them to recover both what the decedent might have recovered himself for permanent disability for life and what they have sustained as pecuniary damages consequent upon the death is to allow duplicate damages for the one life. There is no warrant for the allowance of duplicate damages. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

10. Exemplary Damages.

In actions for personal injuries resulting in death, the measure of damages is actual compensation where the nature of the case admits of the application of the rule; but in cases where the elements of malice, gross negligence, willfulness, wantonness, or cruelty enter into the wrong done, the interest of society and that of the aggrieved party are blended, and the jury in such cases may, in its discretion, award exemplary, vindictive, or punitive damages. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Louisville & N. R.R. Co. v. Garrett, 76 Tenn. 438, 1881 Tenn. LEXIS 30, 41 Am. Rep. 640 (1881); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 1899 Tenn. LEXIS 118, 46 L.R.A. 549 (1899); Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904); Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914).

Vindictive or exemplary damages may be awarded though death be instantaneous to the person injured. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Kansas C., F. S. & M. R. Co. v. Daughtry, 88 Tenn. 721, 13 S.W. 698, 1890 Tenn. LEXIS 9 (1890), aff'd, 138 U.S. 298, 11 S. Ct. 306, 34 L. Ed. 963, 1891 U.S. LEXIS 2085 (1891).

The allowance of exemplary damages, when warranted by the pleadings and the proof, is left to the sound discretion of the jury; and an instruction in such case that such damages must or should be assessed, or that it is not only the jury's right, but its duty, to do so, is erroneous. Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904).

Exemplary damages may be allowed for wrongful killing by special officer employed by the defendant, while attempting to arrest the decedent for the misdemeanor of stealing a ride on defendant's train, and a judgment for $2,000 was not disturbed as excessive. Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914).

11. Deduction for Living Expenses.

In challenging amount of wrongful death award, defendant could not complain of the trial court's failure to make a deduction for the decedents' living expenses where the defendant failed to offer proof on the issue at trial. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997).

12. Mitigation of Damages.

In estimating the damages sustained by those entitled to recover it is competent for the wrongdoer (the defendant) to show, in mitigation of the damages, that the deceased was a drunken and worthless man; that he provided nothing for his family, but consumed what his family supplied. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871).

Funeral expenses are an element of damage. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930).

In suit by administrator for benefit of widow and children of a deceased person to recover for wrongful death of deceased the trial court properly refused charge by defendant that no recovery could be had for loss by widow and children of the society and companionship of father since such was a proper element to consider under the rule of compensatory damages recoverable. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930).

Damages are not mitigated by the neglect of a physician attending injured person. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

The desertion of a child by the father and failure to provide will not mitigate the damages recoverable for the child's death where the father's act did not contribute to the death. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

The fact that deceased was self-supporting and no one contributed to her support and that she did not contribute to the support of anyone else is immaterial as regards the question of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

The fact of estrangement of deceased and her husband is immaterial in determining the amount of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

13. Excessive Damages.

Judgment for $10,000 for death of woman, 34 years of age, in good health, earning from eight to ten dollars weekly, will not be disturbed on appeal on ground that it is excessive, her expectance being over 31 years. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Verdict of $10,000 was reduced to