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).

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).

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 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).

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).

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).

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).

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 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).

Current version ofthe rule for amending a complaintdispenses with two of the requirements outlined inthe case law: (1) the filing of a motion to amend and (2) an order granting the motion to amend. Under the current version ofthe rule for amending a complaint and the case law, a plaintiff relying onthe statute for joinder of third party defendants based on comparative faultmust satisfy two requirements within 90days: (1) file an amended complaint and (2) cause process to be issued to the party named in the amended complaint. Bidwell ex rel. Bidwell v. Strait, — S.W.3d —, 2021 Tenn. LEXIS 9 (Tenn. Jan. 28, 2021).

In a health care liability action, although the physicians sufficiently asserted comparative fault, triggering this statute's savings provision, plaintiff did not actually amend his complaint with 90 days of the first physician's answer naming the physicians'  actual employer as a defendant, and the physicians were entitled to summary judgment. Bidwell ex rel. Bidwell v. Strait, — S.W.3d —, 2021 Tenn. LEXIS 9 (Tenn. Jan. 28, 2021).

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).

Mother's son died before ever commencing an action, and thus the second part of T.C.A. § 20-5-102 was applicable. Jones v. Martin, — S.W.3d —, 2020 Tenn. App. LEXIS 525 (Tenn. Ct. App. Nov. 20, 2020).

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).

19. Persons Authorized to Sue.

Mother clearly had authority, as her son's next of kin, to bring the action pursuant to the statutes, which plainly allows the tort survival action to pass to the surviving spouse or next of kin and for that person to commence and control the action. Jones v. Martin, — S.W.3d —, 2020 Tenn. App. LEXIS 525 (Tenn. Ct. App. Nov. 20, 2020).

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).

2. Dismissal Proper.

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 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 329 (Tenn. July 23, 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).

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.

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).

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).

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).

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).

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).

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).

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).

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. 172N, 2018 U.S. App. LEXIS 8376, 728 Fed. Appx. 554 (6th Cir. Apr. 3, 2018), cert. denied, 203 L. Ed. 2d 276, 139 S. Ct. 1259, — U.S. —, 2019 U.S. LEXIS 1560 (U.S. Feb. 25, 2019).

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.

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).

Mother clearly had authority, as her son's next of kin, to bring the action pursuant to the statutes, which plainly allows the tort survival action to pass to the surviving spouse or next of kin and for that person to commence and control the action. Jones v. Martin, — S.W.3d —, 2020 Tenn. App. LEXIS 525 (Tenn. Ct. App. Nov. 20, 2020).

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).

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 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).

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).

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).

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).

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).

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).

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).

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 $6,500 in the death of a five and a half year old child who suffered for two hours before death. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934).

In actions against railroad, verdict of $22,500 for death of 11-year-old child, and verdict for death of 13-year-old child was not excessive under this statute. Southern R. Co. v. Miller, 285 F.2d 202, 1960 U.S. App. LEXIS 3074, 85 A.L.R.2d 842 (6th Cir. Tenn. 1960).

Allowance of $5,000 for wrongful death of 84 year old woman in moderately good health who suffered fractures of leg and thumb in fall and died three days later from an embolism was not excessive. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965).

Verdict of $76,105, remitted by $26,105 to $50,000, was not excessive for wrongful death of 9-year-old boy who was industrious in nature with good personal habits and life expectancy of 60.8 years. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

Award of $103,923 was not excessive for wrongful death of 41-year-old female school teacher who was in good health, sober in habits, very industrious with a life expectancy of 36.4 years and estimated future earnings of $133,199, the present value of which was $88,520 using six percent discount factor. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

For the death of a soya company employee, killed by the falling upon him of the door of a box car from which he and a fellow employee were attempting to unload soybeans, who was 45 years old, lived 18 days in intense and excruciating pain, had an income of $5,000 per year, and left surviving him a widow and three minor children, a verdict of $140,000 was not so excessive as to require remittitur. Smith v. Illinois C. R. Co., 394 F.2d 254, 1968 U.S. App. LEXIS 6843 (6th Cir. Tenn. 1968).

A jury award of $75,000 for the death of an 11-year-old boy whom the jury had found guilty of remote contributory negligence and who never regained consciousness before his death was not excessive. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

Child's award of $260,000 for the deaths of the child's 70 and 79 year-old parents was reduced to $150,000 where no proof was offered as to the pecuniary value of the domestic services the parents had provided for their child. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997).

14. Interest.

Interest will be allowed from the date of the rendition of a judgment by the circuit court in an action for personal injuries or wrongful death, upon its affirmance in the Supreme Court. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, 1887 Tenn. LEXIS 3 (1887); Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891).

Interest cannot be allowed, as part of the verdict, and it is reversible error for the trial judge to instruct the jury that they may, in their discretion, allow interest upon the amount of damages awarded. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Louisville & N. R. Co. v. Fort, 112 Tenn. 432, 80 S.W. 429, 1903 Tenn. LEXIS 114 (1903).

Remittitur of the interest as a separate item in the verdict, made in the Supreme Court in a case where interest was allowed as part of the verdict, cures the error in the verdict. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Alabama G. S. R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314, 1904 Tenn. LEXIS 39, 67 L.R.A. 495, 3 Ann. Cas. 937 (1904).

15. Proof.

In an action for wrongful death, it is competent to show the deceased person's ability and capacity for labor, as well as his skill in any particular art or profession, and that his habits were good, regular, and temperate, in order to show what he was capable of earning; but what money in fact he made the year previous is not pertinent, and is not strictly competent. E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Bridge Co. v. Barnes, 98 Tenn. 401, 39 S.W. 714, 1896 Tenn. LEXIS 234 (Tenn. Dec. 1896).

Evidence of the minimum value of the crops raised by the deceased for the past years and the value of the same crops raised by others is incompetent and inadmissible. Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891).

Under a declaration based on this section, it is competent to show the circumstances relating to the condition and treatment of the deceased from the time of the injury until his death. Wabash Screen Door Co. v. Black, 126 F. 721, 1903 U.S. App. LEXIS 4358 (6th Cir. Tenn. 1903).

So far as the right of action is that of the deceased, his personal representative and next of kin are bound by his admissions made while yet alive. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

In an action by a husband to recover damages for the wrongful death of his wife, the burden of proof on the issue of the contributory negligence of the husband is upon the defendant. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

Proof that a deceased daughter aided in the support of the plaintiff mother is not competent, but the error in its admission is not reversible where the charge to the jury did not refer to that proof as an element of damages, showing same allowable. Johnson v. Maury County Trust Co., 15 Tenn. App. 326, — S.W.2d —, 1932 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1932).

Proof of life expectancy, state of health, and earning capacity are necessary in fixing damages for wrongful death. An instruction to the jury that age, earning capacity, and character of citizenship of the deceased should be looked to in fixing damages was erroneous in the absence of proof on the subject. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Where error in jury instructions results in damages being awarded on behalf of decedent without evidence being adduced as to pecuniary value of that life, the award will not be overturned where there is ample evidence at trial of other grounds for jury's verdict. Scott v. Jones Bros. Constr., 960 S.W.2d 589, 1997 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1997).

16. Instructions.

In an action for the wrongful death of a wife, an instruction, “If you find in favor of the plaintiff, it will be your duty to fix the amount of his recovery. The measure of the recovery would be reasonable compensation for the life of the deceased. In determining that, take into consideration her age, the state of her health, her expectancy of life, of a person of her state of health and age, and let your verdict be for reasonable compensation,” was held not to be prejudicially erroneous against the defendant, although the trial court should have charged the jury that the measure of damages was the pecuniary value of the life of the deceased, and not any sentimental value which the jury might place on the deceased's life, and, further, in arriving at the value of the life, it should be taken into consideration that at best the duration of life is uncertain. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

In death action it was error to charge the jury that it might look to the age of deceased and his earning capacity where there was no evidence as to his earning capacity, state of health, life expectancy, or amount of wages earned. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Alleged error of trial court in action for death of 5½ year old boy in charging that loss of services during the child's minority was an element to consider in arriving at damages was not prejudicial where the amount of the award was $5,000 and the child was physically and mentally normal as the value of the life of such child was not less than that amount regardless of the alleged erroneous charge. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956).

Instructions in wrongful death action that jury could consider circumstances and condition of decedent's wife, the services he would have performed for his wife, the portion of his earnings he would have in the future applied to care and support of his wife and the life expectancy of his wife constituted reversible error. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

17. Husband and Wife.

Wife's administrator may not maintain action for wrongful death of wife as result of unlawful assault of her husband. There is no new cause of action created, and deceased had none. Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926); 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).

If there are no children or descendants of children, the surviving husband alone, to the exclusion of the wife' next of kin, is entitled to the recovery, although the action must be by an administrator. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

It is not material that the deceased wife and her husband had been estranged and lived apart, since it does not affect the pecuniary value of the wife's life. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

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. 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).

18. —Loss of Consortium.

Wrongful Death Act does not provide for recovery for grief or loss of consortium by the decedent's children. Still v. Baptist Hospital, Inc., 755 S.W.2d 807, 1988 Tenn. App. LEXIS 315 (Tenn. Ct. App. 1988), questioned, Taylor v. Beard, 104 S.W.3d 507, 2003 Tenn. LEXIS 165 (2003).

Depending on the facts of the relationship, a parent may recover loss of consortium damages as an element of the pecuniary value of the child's life. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life. 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).

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).

Trial court erred in refusing to instruct the jury on a decedent's parents' claim for loss of filial consortium in a wrongful death action; a new trial was necessary only as to consortium damages as it was clear that the jury's damages award was limited to the decedent's pain and suffering. Rothstein v. Orange Grove Ctr., 60 S.W.3d 807, 2001 Tenn. LEXIS 808 (Tenn. 2001).

Because the term “pecuniary value” includes consortium-like damages, children of the deceased were not limited in their recovery to medical and funeral expenses and loss of earning capacity; their award could include incidental damages, including loss of consortium, and therefore, the court's award of $300,000 to the decedent's children was not excessive. Knowles v. State, 49 S.W.3d 330, 2001 Tenn. App. LEXIS 120 (Tenn. Ct. App. 2001), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 549 (Tenn. July 2, 2001).

19. —Divorced Spouses.

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).

20. Children of Deceased.

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 age of the child does not, in and of itself, preclude consideration of parental consortium damages, and the adult child inquiry shall take into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.). 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).

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, absent death, against the wrongdoer; therefore, 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).

21. Conflict of Law.

The “most significant relationship” approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971) was adopted by the state supreme court in place of the doctrine of lex loci delecti to resolve conflict of law questions in tort cases. Hataway v. McKinley, 830 S.W.2d 53, 1992 Tenn. LEXIS 313 (Tenn. 1992).

22. Hedonic Damages.

T.C.A. § 20-5-113 does not allow claims for hedonic damages; thus, it was proper for the trial court to refuse plaintiff's requested instruction on that issue. Spencer v. A-1 Crane Serv., 880 S.W.2d 938, 1994 Tenn. LEXIS 174 (Tenn. 1994).

Collateral References. 22 Am. Jur. 2d Death §§ 115-145, 234, 236, 272.

1 C.J.S. Abatement and Revival § 186; 25A C.J.S. Death §§ 95-129.

Admissibility and sufficiency of proof of value of housewife's services, in wrongful death action. 77 A.L.R.3d 1175.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in an action for personal injury or death. 81 A.L.R.2d 733.

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.

Admissibility of evidence of plaintiff's or decedent's drawings from partnership or other business as evidence of earning capacity, in action for personal injury or death. 82 A.L.R.2d 679.

Adult child's right of action for loss of parental consortium. 12 A.L.R.6th 241.

Counsel's use, in trial of personal injury or wrongful death case, of blackboard, chart, diagram, or placard, not introduced in evidence, relating to damages. 86 A.L.R.2d 239.

Damages for wrongful death of husband or father as affected by receipt of social security benefits. 84 A.L.R.2d 764.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery from wrongful death of child. 53 A.L.R.3d 566.

Pension, retirement income, social security payments, and the like, of deceased, as affecting recovery in wrongful death action. 81 A.L.R.2d 949.

Propriety and prejudicial effect of reference by plaintiff's counsel, in trial of personal injuries or death action, to amount of damages claimed or expected by his client. 14 A.L.R.3d 541.

Recovery for mental or emotional distress resulting from injury to, or death of, member of plaintiff's family arising from physician's or hospital's wrongful conduct. 77 A.L.R.3d 447.

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.

Recovery of nominal damages in wrongful death action. 69 A.L.R.2d 628.

Recovery of prejudgment interest on wrongful death damages. 96 A.L.R.2d 1104.

Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse. 87 A.L.R.2d 252, 88 A.L.R.3d 926.

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.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. 49 A.L.R.5th 685.

Who, other than parent, may recover for loss of consortium on death of minor child. 84 A.L.R.5th 687.

Death 78-101.

NOTES TO DECISIONS

1. Scire Facias.

The scire facias is the statutory mode of reviving suits, in the inferior and Supreme Courts, against the heir, representative, assign, or “other successor” of a deceased party, or against a new municipal corporation succeeding the old one. O'Connor v. Memphis, 74 Tenn. 730, 1881 Tenn. LEXIS 204 (1881).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 120-123.

1 C.J.S. Abatement and Revival §§ 120, 168; 25A C.J.S. Death §§ 41, 57, 58.

Executors and administrators 440.

NOTES TO DECISIONS

1. Administrator's Right.

Where the administrator may sue for an act done in the intestate's lifetime, he may revive an action commenced by his intestate for the same act. Douglass v. Morford, 15 Tenn. 78, 15 Tenn. 79, 1834 Tenn. LEXIS 15 (1834).

The revivor of a case in the name of the plaintiff's personal representatives was justified where case was in judgment before the death of the plaintiff. Lenoir Car Works v. Trinkle, 228 F. 634, 1915 U.S. App. LEXIS 2050, 3 A.L.R. 1394 (6th Cir. Tenn. 1915).

2. Scire Facias Without Formal Order.

Scire facias to revive, without a formal order to revive, does not render the judgment invalid, where the parties appeared, demurred, and pleaded. Rhinehart, Ballard & Co. v. Murray, 83 Tenn. 469, 1885 Tenn. LEXIS 68 (1885).

3. Decree Without Revivor.

A decree without a revivor will not be reversed, where all the parties succeeding to the interest of the decedent were already parties to the suit. Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Rhodes v. Crutchfield, 75 Tenn. 518, 1881 Tenn. LEXIS 150 (1881); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

4. Death of Defendant.

As to death of principal obligor on a note, see Reams v. McNail, 28 Tenn. 542, 1848 Tenn. LEXIS 119 (1848).

5. Personal Representative.

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).

6. Submission to Jury Without Revivor.

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).

Collateral References. 1 C.J.S. Abatement and Revival § 161; 25A C.J.S. Death §§ 16, 65.

Abatement and revival 72.

NOTES TO DECISIONS

1. General Rule.

A revivor is unnecessary where the nominal plaintiff dies pending the suit. Wolfe v. Tyler, 48 Tenn. 313, 1870 Tenn. LEXIS 55 (1870); Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

2. Rule Applied to Defunct Corporation.

The beneficiaries of a fund assigned by a corporation, afterwards becoming dissolved by expiration of its charter, may in chancery enforce their rights, on the principle that the death of the nominal plaintiff suing for the use of another will not abate the latter's suit. Ingraham v. Terry, 30 Tenn. 572, 1851 Tenn. LEXIS 107 (1851); State v. Bank of Tennessee, 62 Tenn. 395, 1874 Tenn. LEXIS 67 (1874); Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

By the express provision of the statute, upon the death of the nominal plaintiff, the suit may be prosecuted without revivor, as if death had not happened; and there could be no good reason why the same rule should not apply where the nominal plaintiff is a corporation, and becomes defunct pending the action. Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

Even though corporation ceased to exist before action was brought the unnecessary use of the name of the defunct corporation may be rejected as surplusage. Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

3. Suits in Chancery.

This statute does not apply to courts of equity, and such suits must be revived in the name of the personal representative of the nominal plaintiff, when he dies pending the suit. Morrison v. Deaderick, 29 Tenn. 342, 1849 Tenn. LEXIS 80 (1849); East Tenn., G. & V.R.R. v. Henderson ex rel. Mathis, 69 Tenn. 1, 1878 Tenn. LEXIS 30 (1878).

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

1 C.J.S. Abatement and Revival § 166.

20-6-101. Scope of chapter.

The pleadings described in this chapter apply to all actions at law and to all legal proceedings for the redress of civil injuries in which pleadings are necessary and not otherwise expressly prescribed.

Code 1858, § 2880; Shan., § 4601; Code 1932, § 8725; T.C.A. (orig. ed.), § 20-701.

Cross-References. Clerk's fees, § 8-21-401.

Effect of failure to deny instrument under oath, § 24-5-105.

Signing of pleadings, Tenn. R. Civ. P. 11.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pleading, § 2.

Law Reviews.

Procedure — Counterclaim Statute Amended to Apply in Chancery, 6 Vand. L. Rev. 797.

Cited: Jack Strader Tire Co. v. Manufacturers Acceptance Corp., 221 Tenn. 631, 429 S.W.2d 428, 1968 Tenn. LEXIS 491 (1968).

20-6-102. Use of identifying information in electronic or paper filing.

1. Unless otherwise required by statute, court rule, or court order, in an electronic or paper filing with the court that contains an individual's social security number, taxpayer identification number, or birth date; the name of an individual known to be a minor; or a financial account number, a party or nonparty making the filing shall include only:
   1. The last four (4) digits of the social security number and taxpayer identification number;
   2. The year of the individual's birth;
   3. The minor's initials; and
   4. The last four (4) digits of the financial account number.
2. This section does not apply to filings in juvenile court.

Acts 2019, ch. 151, § 1.

Compiler's Notes. Former § 20-6-102 (Code 1932, §§ 10337, 10338; T.C.A. (orig. ed.), § 20-703), concerning verified pleadings, was repealed by Acts 1991, ch. 273, § 3.

Effective Dates. Acts 2019, ch. 151, § 2. April 17,  2019.

20-6-103. Use of recycled paper.

1. The general assembly finds and declares that there is a need to expand upon existing laws that foster the effective and efficient management of solid waste by requiring that certain documents submitted by attorneys to courts of record be submitted on recycled paper. The general assembly further finds that the expanded use of recycled paper will protect and enhance the environment and the health and safety of the citizens of this state.
2. As used in this section, unless the context otherwise requires:
   1. “Document” means a pleading or other paper submitted as an appendix to a pleading by an attorney, if the document is required or permitted to be filed with a clerk of a court of record concerning an action to be commenced or that is pending before a court of record;
   2. “Post-consumer waste” includes a product generated by a business or consumer that has served its intended end use and that has been separated from solid waste for the purpose of collection, recycling and disposition; and
   3. “Recycled paper” means paper with not less than fifty percent (50%) of its total weight consisting of secondary and post-consumer waste and with no less than ten percent (10%) of the total weight consisting of post-consumer waste.
3. An attorney may not submit a document to a court of record after January 1, 1995, unless the document is submitted on recycled paper. This section applies to all papers appended to each document.
4. The procedures adopted to implement this section shall not impede the conduct of court business or create grounds for an additional cause of action or sanction.
5. A court of record may not refuse a document solely because of a failure to use recycled paper.
6. Nothing in this section may be construed to apply to:
   1. Photographs;
   2. An original document that was prepared or printed prior to January 1, 1995;
   3. A document that was not created at the direction or under the control of the submitting attorney; or
   4. A facsimile copy otherwise permitted to be filed with a court of record instead of an original document; provided, that if the original is also required to be filed, the original shall be submitted in compliance with this section.
7. This section is not applicable if recycled paper is not readily available.

Acts 1994, ch. 900, §§ 2, 3.

Cross-References. Use of alkaline paper in state records and documents, title 12. ch. 7, part 2.

Attorney General Opinions. Constitutionality, OAG 94-016 (2/15/94).

Part 2
Declarations

NOTES TO DECISIONS

1. Judicial Discretion.

Given the length of time the proceeding had been pending, the fact that trial had already been continued once, the fact that Husband was aware of the consequences of not retaining counsel (i.e., that he would represent himself), the fact that the husband was not guaranteed the assistance of counsel in the instant civil proceeding, and the lack of any attestations to the court of the husband's diligence in attempting to locate new counsel, no abuse of discretion was discerned in the trial court's decision to proceed with trial despite the withdrawal of the husband's counsel, especially when no motion or request for a continuance was actually made. Sekik v. Abdelnabi, — S.W.3d —, 2021 Tenn. App. LEXIS 10 (Tenn. Ct. App. Jan. 13, 2021).

Request Properly Denied.

Plaintiff's third motion for a continuance under Conn. Gen. Stat. § 20-7-101 was properly denied as: (1) Plaintiff's inaction had delayed the trial; (2) Continuances were not required for medical excuses; (3) The note from a physician's assistant was insufficient as it was not signed by plaintiff's physician, and did not explain the type of testing plaintiff was undergoing, how invasive that testing was, or when he would be able to attend the trial; and (4) Plaintiff had not diligently prosecuted the case. Howell v. Ryerkerk, 372 S.W.3d 576, 2012 Tenn. App. LEXIS 156 (Tenn. Ct. App. Mar. 9, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 430 (Tenn. June 19, 2012).

Given the length of time the proceeding had been pending, the fact that trial had been continued once, the fact that a husband was aware of the consequences of not retaining counsel, the fact that he was not guaranteed the assistance of counsel in the civil proceeding, and the lack of attestations to the court of his diligence in attempting to locate new counsel, there was no abuse of discretion in the trial court's decision to proceed with trial despite the withdrawal of the husband's counsel. Sekik v. Abdelnabi, — S.W.3d —, 2020 Tenn. App. LEXIS 516 (Tenn. Ct. App. Nov. 18, 2020), vacated, — S.W.3d —, 2021 Tenn. App. LEXIS 11 (Tenn. Ct. App. Jan. 12, 2021), substituted opinion, — S.W.3d —, 2021 Tenn. App. LEXIS 10 (Tenn. Ct. App. Jan. 13, 2021).

Collateral References. 17 Am. Jur. 2d Continuances §§ 1-46.

17 C.J.S. Continuances §§ 46-55.

Admissions to prevent continuance sought to secure testimony of absent witness in civil case. 15 A.L.R.3d 1272.

Admissions to prevent continuance sought to secure testimony of absent witness in criminal case. 9 A.L.R.3d 1180.

Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance. 56 A.L.R.2d 650.

Amendment of pleading with respect to parties or their capacity as ground for continuance. 67 A.L.R.2d 477.

Appearance to make application for continuance, or order in that regard, as waiver of objection to jurisdiction for lack of personal service. 81 A.L.R. 166.

Continuance of Case Because of Illness of Expert Witness. 18 A.L.R.6th 509.

Continuance of civil case because of illness or death of counsel. 67 A.L.R.2d 497.

Continuance of civil case because of illness or death of party. 68 A.L.R.2d 470.

Continuance of criminal case because of illness of accused. 66 A.L.R.2d 232.

Continuance of criminal case because of illness or death of counsel. 66 A.L.R.2d 267.

Counsel's absence because of attendance on legislature, as ground for continuance. 49 A.L.R.2d 1073.

Federal control of public utilities as ground for postponement of trial. 4 A.L.R. 1684, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Hostile sentiment or prejudice as ground for continuance in civil case. 68 A.L.R.2d 540.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated. 123 A.L.R. 1453.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated — State cases. 37 A.L.R.6th 511.

Physical condition or conduct of party, his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance. 131 A.L.R. 323.

Prejudicial effect, in civil case, of denial of continuance to call nonappearing witness whom adversary had been expected to call. 39 A.L.R.2d 1314.

Time during or after civil trial at which court may entertain or properly grant or deny motion for continuance of trial. 112 A.L.R. 395.

Typewriting, evidence on question of continuity of. 106 A.L.R. 733.

Waiver of right to dismissal because of plaintiff's failure to furnish security for costs by application for continuance. 8 A.L.R. 1528.

War conditions as ground for continuance of pending litigation. 137 A.L.R. 1343, 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.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Withdrawal or discharge of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Pretrial procedure 714-721.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Discretion of Trial Court.

The granting or refusing of continuances, both in criminal and civil cases, and in the chancery and circuit courts, rests largely in the sound discretion of the trial court, a discretion which the appellate or Supreme Court will not readily revise or interfere with, except in a clear case of great abuse of the discretion. Hammonds v. Kemer, 4 Tenn. 145, 1816 Tenn. LEXIS 42 (1816); Cornwell v. State, 8 Tenn. 147, 1827 Tenn. LEXIS 26 (1827); Rhea v. State, 18 Tenn. 258, 1837 Tenn. LEXIS 16 (1837); Goodman v. State, 19 Tenn. 195, 1838 Tenn. LEXIS 47 (1838); Todd v. Wiley, 22 Tenn. 576, 1842 Tenn. LEXIS 149 (1842); Jarnagin v. Atkinson, 23 Tenn. 470, 1844 Tenn. LEXIS 140 (1844); Knight v. State, 24 Tenn. 599, 1845 Tenn. LEXIS 143 (1845); Nelson v. State, 32 Tenn. 482, 1852 Tenn. LEXIS 100 (1852); Pitts v. Gilliam, 38 Tenn. 549, 1858 Tenn. LEXIS 224 (Tenn. Dec. 1858); Garber v. State, 44 Tenn. 161, 1867 Tenn. LEXIS 25 (1867); Cheek v. Merchants Nat'l Bank, 56 Tenn. 489, 1872 Tenn. LEXIS 165 (1872); Walt v. Walsh, 57 Tenn. 314, 1872 Tenn. LEXIS 427 (1872); Douglass v. Blakemore, 59 Tenn. 564, 1873 Tenn. LEXIS 112 (1873); Rexford v. Pulley, 63 Tenn. 364, 1874 Tenn. LEXIS 264 (1874); Porter v. State, 71 Tenn. 496, 1879 Tenn. LEXIS 105 (1879); Womack v. State, 74 Tenn. 146, 1880 Tenn. LEXIS 221 (1880); State v. Rigsby, 74 Tenn. 554, 1880 Tenn. LEXIS 291 (1880); State v. Poe, 76 Tenn. 647, 1881 Tenn. LEXIS 57 (1881); Jones v. State, 78 Tenn. 585, 1882 Tenn. LEXIS 228 (1882); Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Shoun v. State, 111 Tenn. 166, 78 S.W. 91, 1903 Tenn. LEXIS 16 (1903); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907).

Under the practice existing prior to the adoption of this section, the reception of an answer, after a bill had been taken pro confesso, and the giving of further delay for the hearing, were discretionary and allowable upon good cause shown, and the court could allow the one and refuse the other. Scales v. Nichols, 4 Tenn. 228, 4 Tenn. 229, 1817 Tenn. LEXIS 16 (1817).

The Supreme Court will interfere with the exercise of judicial discretion by the inferior court, when it is not properly employed, and when, without interference, injustice will be done. Cheek v. Merchants Nat'l Bank, 56 Tenn. 489, 1872 Tenn. LEXIS 165 (1872).

Continuances rest in the sound discretion of the trial judge, and that discretion should always be exercised so as to secure as speedy a settlement of the litigation as may be consistent with the orderly and correct disposition of business and administration of justice; and no continuance ought to be allowed unless it be made clearly to appear to the court that it is necessary for the attainment of justice. Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907).

2. Sufficient Cause by Affidavits.

3. —Affidavit — Necessity.

Application for a continuance on behalf of the state must be supported by an affidavit showing cause. State v. Markham, 1 Tenn. 66, 1884 Tenn. LEXIS 1 (1884).

A continuance will not be granted, except upon affidavit showing good cause, and then only upon terms. Hart v. Scruggs, 1 Cooper's Tenn. Ch. 1 (1872).

There is no error in refusing to continue the hearing or argument on a motion for a new trial, upon the application of the defendants in a capital case, without affidavit showing cause, and there is no error in refusing an hour's time to prepare such affidavit, unless some good ground is stated for so long a time. Barnard v. State, 88 Tenn. 183, 12 S.W. 431, 1889 Tenn. LEXIS 41 (1889).

An application for a continuance by the defendant in a criminal case is properly disallowed, when not supported by an affidavit. Mitchell v. State, 92 Tenn. 668, 23 S.W. 68, 1893 Tenn. LEXIS 22 (1893).

Where the defendant, when the cause was called for trial, asked for a continuance because no issue had been taken on his plea of the statute of limitations, it was not error for the court to direct a formal joinder of issue upon the plea, which was done, and to refuse a continuance without affidavit showing cause, especially where it does not appear, either by affidavit for a continuance or for a new trial, that any injury resulted from the court's action. Morgan v. Duffy, 94 Tenn. 686, 30 S.W. 735, 1895 Tenn. LEXIS 53 (1895).

4. —Contents of Affidavits.

The absence of the defendant in a civil suit, on account of sickness, is a ground for a continuance, where it appears from the affidavit of his attorney that he is a material witness for his own defense, and it is not necessary that he be subpoenaed as a witness. Douglass v. Blakemore, 59 Tenn. 564, 1873 Tenn. LEXIS 112 (1873).

There is no error in refusing the defendant, in a felony case, a continuance upon affidavit for the absence of witnesses whose testimony he desired, when he does not deny his guilt or indicate any defense to the charge, either in his affidavit or upon the trial. Crane v. State, 94 Tenn. 86, 28 S.W. 317, 1894 Tenn. LEXIS 28 (1894); Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903).

An application for continuance of a murder case is properly denied, although at a special term, where the affidavit fails to disclose the facts that the absent witness is expected to prove. Leach v. State, 99 Tenn. 584, 42 S.W. 195, 1897 Tenn. LEXIS 69 (1897).

An affidavit in support of an application for a continuance on account of absent witnesses, whether offered at the first or a subsequent trial term, should be special and state the names and residences of the witnesses, and the facts expected to be proved by each of them, in addition to the usual requisites of such affidavits, so that the court may judge whether the evidence desired is relevant, competent, and material. Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Shoun v. State, 111 Tenn. 166, 78 S.W. 91, 1903 Tenn. LEXIS 16 (1903).

Where a continuance was sought on the ground of absence of a witness, but according to the affidavit his testimony would only have been cumulative, the court was justified in refusing the continuance. Franer v. English, 8 Tenn. App. 121, — S.W.2d —, 1928 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1928).

5. —Affidavit by Whom.

Affidavit for continuance may be made by any one, without stating that he is the agent of the applicant, so that the court is satisfied. Guyer v. Cox, 1 Tenn. 184, 1805 Tenn. LEXIS 24 (1805).

6. —Popular Prejudice.

Rules as to continuance on ground of popular excitement or prejudice. Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1931 Tenn. LEXIS 37 (1932); Reagan v. McBroom, 164 Tenn. 476, 51 S.W.2d 995, 1931 Tenn. LEXIS 46 (1931).

7. —False Affidavit.

If a continuance is refused upon an affidavit alleging sufficient grounds for a continuance, but upon the trial it is made to appear that the affidavit was false and fabricated, the appellate court will not reverse the case. Porter v. State, 71 Tenn. 496, 1879 Tenn. LEXIS 105 (1879); Womack v. State, 74 Tenn. 146, 1880 Tenn. LEXIS 221 (1880).

8. Continuance Denied — Applicant Withdrawing.

Where the court properly refused to grant a second continuance, on account of the absence of a certain witness, neither the party applying therefor, nor his counsel, could prevent a trial of the case by withdrawing from the courtroom and refusing to introduce any testimony. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

Where attorney in criminal case for defendant asked continuance, and, same being refused, withdrew from the case and the court appointed another who proceeded to trial without asking for continuance, there was no error in not granting a continuance. Smith v. State, 159 Tenn. 674, 21 S.W.2d 400, 1929 Tenn. LEXIS 29 (1929), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

Collateral References. 17 Am. Jur. 2d Continuances § 1.

17 C.J.S. Continuances § 11.

NOTES TO DECISIONS

1. Continuances by Consent.

Continuances, whether by consent or otherwise, are subject to such terms in regard to the payment of costs. Where causes are continued by consent, a much greater latitude will be allowed than where either party is pressing for trial. Berger v. Harrison, 1 Tenn. 483, 1809 Tenn. LEXIS 38 (1809); Hart v. Scruggs, 1 Cooper's Tenn. Ch. 1 (1872).

Collateral References. 17 Am. Jur. 2d Continuances § 50.

17 C.J.S. Continuances § 104.

Pretrial procedure 725.

NOTES TO DECISIONS

1. Nature of Judgment for Costs.

The incidental judgment rendered for the costs, as the terms of a continuance, when once rendered, is necessarily final and distinct from the main judgment. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842).

Collateral References. 17 C.J.S. Continuances § 105.

Costs 156.

NOTES TO DECISIONS

1. Judicial Discretion.

Where general assembly member as counsel for defendant in suit for specific performance did appear and did argue his motion for post-trial relief despite the filing of a motion to stay all proceedings in the action, and where counsel took no steps to seek appellate review of the trial court's order overruling the motion for a new trial, the trial court did not abuse its discretion in refusing to grant a stay or continuance of a hearing on the post-trial motion. McGhee v. Moore, 537 S.W.2d 697, 1976 Tenn. LEXIS 495 (Tenn. 1976).

2. Invocation of Privilege.

The statutory privilege set forth in this section is not self-effectuating. It must be properly raised by the one who relies upon it, who must establish that he qualifies under the terms and conditions that are set forth in the statute itself. Ecoff v. Murphy, 652 S.W.2d 901, 1982 Tenn. App. LEXIS 456 (Tenn. Ct. App. 1982).

3. Motion Insufficient.

Defendant's statement in written motion, to the effect that he was a member of the legislature, was unable to try case in one day, and that he needed a continuance, fell short of the statutory minimum which would be necessary to bring defendant within the terms of this section. Ecoff v. Murphy, 652 S.W.2d 901, 1982 Tenn. App. LEXIS 456 (Tenn. Ct. App. 1982).

Collateral References. Pretrial Procedure 717, 718.

NOTES TO DECISIONS

1. Unlitigated Cases.

The court may call the docket on the first day of the term for the disposal of unlitigated and undefended causes, and the exercise of such discretion and practice cannot be assigned as error in the supreme court. Chrisman v. Curle, 18 Tenn. 488, 1837 Tenn. LEXIS 63 (1837); Lynn v. Polk, 76 Tenn. 328, 1881 Tenn. LEXIS 17 (1881).

2. Time Until Next Term to File Declaration — Effect.

Where, at the instance of the plaintiff, time to file declaration was granted until the second term, such term is the return term, and not the trial term, as to defendant, and there cannot be a trial at that term, without his consent. Elliot v. Solzkotter, 36 Tenn. 581, 1857 Tenn. LEXIS 60 (1857).

3. Special Term.

4. —Writ of Inquiry as to Damages.

Where judgment was taken by default, and a writ of inquiry of damages ordered to be executed at the next term, without more, it may be properly executed at an intervening special term. Hall v. Mount, Hall & Co., 43 Tenn. 73, 1860 Tenn. LEXIS 1 (1866); Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

5. —Jurisdiction.

A special term of the circuit court, held between the appearance term of a cause and the next regular term, is not the trial term thereof; and a verdict and judgment rendered at such special term, without consent, is reversible error, for which a new trial will be granted. McKinley v. Beasley, 37 Tenn. 170, 1857 Tenn. LEXIS 100 (1857).

6. Appearance Term by Agreement.

Where, by the agreement of the parties, a certain term was made the appearance term, the cause did not stand for trial until the next regular term thereafter. McKinley v. Beasley, 37 Tenn. 170, 1857 Tenn. LEXIS 100 (1857).

7. Special Term After General Continuance.

A general continuance, or a continuance to the next term, makes the cause triable at an intervening special term; but this result may be obviated by a special continuance to the regular term. Hall v. Mount, Hall & Co., 43 Tenn. 73, 1860 Tenn. LEXIS 1 (1866).

Collateral References. 75 Am. Jur. 2d Trial § 25.

21 C.J.S. Courts § 172; 88 C.J.S. Trial § 31.

Trial 13.1-13.5.

NOTES TO DECISIONS

1. Provisions Directory.

The provision that the causes should be tried and disposed of in their order on the docket is not imperative, but directory. Van Brocklin v. Wolcott, Smith & Co., 52 Tenn. 743, 1871 Tenn. LEXIS 306 (1871).

While this provision is not imperative, but leaves the judge to exercise a proper discretion, yet it is so far obligatory that an arbitrary departure from it resulting in the defeat of justice is error. Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

2. Consolidation of Cases — Discretion.

Question as to whether two actions arising from same collision should be tried together was matter within sound discretion of circuit court. Herstein v. Kemker, 19 Tenn. App. 681, 94 S.W.2d 76, 1936 Tenn. App. LEXIS 64 (Tenn. Ct. App. 1936).

Collateral References. 75 Am. Jur. 2d Trial § 25.

88 C.J.S. Trial § 31.

Trial 15.

NOTES TO DECISIONS

1. Disposing of Case Out of Order — Effect.

Where, by an established practice, the causes on the trial docket are apportioned, and set for certain days or weeks, and, contrary to such apportionment, a cause is called up out of its order, and a writ of inquiry executed, against the protest of the defendant, who was taken by surprise, and in consequence failed to have his witnesses present, the supreme court will reverse for this error. Fanning v. Fly, 42 Tenn. 486, 1865 Tenn. LEXIS 91 (1865); Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

Collateral References. 88 C.J.S. Trial § 32.

NOTES TO DECISIONS

1. Nature and Scope of Section.

This section is mandatory, and makes that a duty of the court, which was before but a matter of discretion in the class of cases provided for; but it does not affect the inherent power of the court to regulate its business and to advance on its dockets causes of public interest not named in it. This section applies to the supreme court as well as to the lower court. Lynn v. Polk, 76 Tenn. 328, 1881 Tenn. LEXIS 17 (1881).

20-9-101. Appointment of court reporter.

Upon the trial of any cause or proceeding in any court of record, upon the request of either party, the judge of such court shall appoint a competent court reporter, who shall first be duly sworn to make a true, impartial and complete stenographic report of all the oral testimony given in trial of the cause or proceeding, as well as the rulings of the judge.

Acts 1887, ch. 217, § 1; Shan., § 4695; Code 1932, § 8825; T.C.A. (orig. ed.), § 20-1304; Acts 1994, ch. 897, § 1.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 32; 11 Tenn. Juris., Equity, § 71.

Cited: Burns v. Nashville, 142 Tenn. 541, 221 S.W. 828, 1919 Tenn. LEXIS 80 (1920); Slaughter v. Slaughter, 922 S.W.2d 115, 1995 Tenn. App. LEXIS 806 (Tenn. Ct. App. 1995); Joelton Planning & Zoning Comm. v. Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2009 Tenn. App. LEXIS 867 (Tenn. Ct. App. Dec. 21, 2009).

Collateral References.

Right to have reporter's notes read to jury. 50 A.L.R.2d 176.

Trial 23.

20-9-102. [Repealed.]

Compiler's Notes. Former § 20-9-102 (Acts 1887, ch. 217, §§ 1, 3; Shan., § 4696; Code 1932, § 8826; T.C.A. (orig. ed.), § 20-1305), concerning stenographer's report as bill of exceptions, was repealed by Acts 1986, ch. 538, § 1. See T.R.A.P. 24.

20-9-103. Compensation of court reporter.

The party alone at whose instance the court reporter was employed shall be responsible for the court reporter's compensation for the work done by the court reporter.

Acts 1887, ch. 217, § 2; Shan., § 4697; Code 1932, § 8827; T.C.A. (orig. ed.), § 20-1306; Acts 1994, ch. 897, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.33.

Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 32.

Cited: State v. Hurley, 712 S.W.2d 493, 1986 Tenn. Crim. App. LEXIS 2601 (Tenn. Crim. App. 1986); Slaughter v. Slaughter, 922 S.W.2d 115, 1995 Tenn. App. LEXIS 806 (Tenn. Ct. App. 1995).

20-9-104. Tape recording of proceedings.

It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings.

Acts 1972, ch. 684, § 1; T.C.A., § 20-1331.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.11, 7.15, 24.33.

Law Reviews.

Criminal Law in Tennessee in 1972 — A Critical Survey — IV. Procedure (Joseph G. Cook), 40 Tenn. L. Rev. 583.

Cited: Houston v. Scott, — S.W.3d —, 2012 Tenn. App. LEXIS 33 (Tenn. Ct. App. Jan. 17, 2012).

Collateral References.

Use in state court by counsel or party of tape recorder or other electronic device to make transcript of criminal trial proceedings. 67 A.L.R.3d 1013.

Part 2
Jurors

NOTES TO DECISIONS

1. Constitutionality.

Where the trial judge was allowed to increase the amount of damages awarded to the plaintiff by the jury, the defendant's constitutional rights to a trial by jury were not violated because an additur was conditioned on the consent of the defendant. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

The additur statute as applied to a nonconsenting plaintiff does not violate the right to trial by jury unless the jury verdict is so low as to evince prejudice, passion, or caprice, since the plaintiff is entitled to only one fair trial not two; accordingly, where the evidence was such as could reasonably have led the jury to disbelieve plaintiff's special damages, denial of new trial conditioned upon additur did not violate plaintiff's rights. Kaiser v. Cannon, 529 S.W.2d 235, 1975 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1975). See case note under § 20-10-102.

2. Failure to Suggest Additur.

In suit for damages to hoisting equipment by railroad switch engine where jury awarded owner of hoisting equipment less than the undisputed amount of damages to equipment, trial court did not err in failing to suggest additur where under the facts of the case jury could have considered remote contributory negligence as mitigating damages. Gardner's Masonry Contractors, Inc. v. St. Louis S. F. R. Co., 63 Tenn. App. 288, 470 S.W.2d 945, 1971 Tenn. App. LEXIS 221 (Tenn. Ct. App. 1971), criticized, Street v. Calvert, 541 S.W.2d 576, 1976 Tenn. LEXIS 552 (1976), questioned, Woodruff v. Tomlin, 616 F.2d 924, 1980 U.S. App. LEXIS 20316 (1980).

Where the trial judge declined to suggest an additur, the Court of Appeals was not authorized to initiate an additur for the first time on appeal. Loftis v. Finch, 491 S.W.2d 370, 1972 Tenn. App. LEXIS 279 (Tenn. Ct. App. 1972).

In eminent domain case where parties stipulated there were no incidental expenses, it was error as a matter of law for court to suggest an additur for moving expenses which are incidental expenses. State ex rel. Smith v. Huffaker, 503 S.W.2d 106, 1973 Tenn. LEXIS 435 (Tenn. 1973).

Where the jury's verdict in wrongful death action was not within the “range of reasonableness,” the trial court should have suggested an additur or granted a new trial. Wilkerson v. Altizer, 845 S.W.2d 744, 1992 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. App. LEXIS 613 (Tenn. Ct. App. July 20, 1992), appeal denied, 845 S.W.2d 744, 1992 Tenn. LEXIS 580 (Tenn. 1992); Buchanan v. Harris, 902 S.W.2d 941, 1995 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1995).

In accord with Loftis v. Finch.Buchanan v. Harris, 902 S.W.2d 941, 1995 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1995).

3. Prerequisites.

Where the trial judge was allowed to add such amounts as he deemed proper to the compensatory or punitive damages awarded by the jury, there must first have been a verdict in favor of the plaintiff. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

4. Remedy Substantive.

Federal court sitting in Tennessee may apply the Tennessee additur statute, the latter having previously been determined to be substantive, not merely procedural, in nature. McCoy v. Wean United, Inc., 67 F.R.D. 495, 1975 U.S. Dist. LEXIS 13502 (D. Tenn. 1975).

5. Purpose.

The remittitur and additur statutes were enacted for the purpose of giving the plaintiff, in the case of remittiturs, and the defendant, in the case of additurs, the right to accept, under protest, and appeal, a right that had been denied those respective classes of litigants by case law prior to the enactment of such statutes. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

6. Scope of Review.

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court of appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Even though the court of appeals is not satisfied with the amount of a verdict, it has no authority to suggest an additur to correct the failure of the trial judge to do so. State ex rel. Shaw v. Shofner, 573 S.W.2d 169, 1978 Tenn. App. LEXIS 312 (Tenn. Ct. App. 1978).

Cortazzo v. Blackburn, 912 S.W.2d 735, 1995 Tenn. App. LEXIS 527 (Tenn. Ct. App. 1995).

In accord with Shaw v. Shofner. See Cortazzo v. Blackburn, 912 S.W.2d 735, 1995 Tenn. App. LEXIS 527 (Tenn. Ct. App. 1995).

7. —Standard.

This section imposes no standard of review upon an appellate court reviewing the grant of an additur. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

Henceforth the standard of appellate review where an additur or remittitur has been used in the trial court will be to ascertain whether the trial judge's actions in increasing or decreasing a verdict were justified, giving due credit to the jury's decision on the credibility of the witnesses and that of the trial judge in his capacity as thirteenth juror. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990); Burlison v. Rose, 701 S.W.2d 609, 1985 Tenn. LEXIS 579 (Tenn. 1985).

The standard of review pertaining to questions of additur or remittitur in the court of appeals is covered by T.R.A.P. 13(d). Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

8. Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range or reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Trial judges may suggest adjustments when the jury verdict is within the range of reasonableness, as an alternative to the practice of granting a new trial, if they are of the opinion that the jury verdict is not adequate. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

When the trial court grants a motion for an additur, it is acting in its capacity as “thirteenth juror,” and the right to jury trial clauses of the federal and state constitutions — which require that the jury be allowed to determine all disputed issues of fact — mandate that the trial court obtain the consent of the party against whom the additur is to be entered. And if that party does not accept the additur, the trial court must order a new trial. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

9. —Guidelines.

This section sets out no guidelines for the trial judge to follow in granting an additur. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

A trial judge, in suggesting additur, must set a reasonable time in which defendant may accept the suggestion, to be determined at the discretion of the trial judge, but not to exceed 30 days. The 30 day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

10. Authority of Appellate Court.

The Tennessee Court of Appeals does not have the authority to grant an additur under T.C.A. § 20-10-101. Kinnard v. Taylor, 39 S.W.3d 120, 2000 Tenn. App. LEXIS 331 (Tenn. Ct. App. 2000).

Collateral References. New Trial 161.

NOTES TO DECISIONS

1. Decisions Prior to 1949 Amendment.

2. —Passion, Prejudice or Caprice.

Passion may be defined as a violent agitation of mind or a strong and deep feeling or excitement and jury verdict which is product of sympathy falls within this statute. Sutherland v. Keen, 29 Tenn. App. 303, 203 S.W.2d 917, 1947 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1947).

Suggested remittitur by trial court was error where there was nothing to indicate that verdict was due to passion, prejudice or unaccountable caprice. Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

The rule that if the amount of a verdict is at variance with the decided weight of evidence, prejudice may be inferred is no way affected by this section. Board of Mayor & Aldermen v. Moore, 33 Tenn. App. 561, 232 S.W.2d 410, 1950 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1950).

3. —Application.

The action of the trial judge in a federal court in requiring remittitur as a condition of denying a motion for a new trial is not reviewable under this section, since it would require a trial judge, sitting in a federal court, to decide on motion for new trial the question of fact whether the size of the verdict was such as to indicate passion, prejudice, or corruption, and it would also require a federal court of review to determine for itself such questions of fact, all of which is contrary to the settled practice in federal courts. The section does not apply to the personal conduct of the judge in discharge of his separate functions. Bristol Gas & Electric Co. v. Boy, 261 F. 297, 1919 U.S. App. LEXIS 1767 (6th Cir. Tenn. 1919).

Application of statute prior to 1949 amendment was limited to cases where judgment was so excessive as to indicate passion, prejudice, or caprice. Southern R. Co. v. Black Diamond Collieries, Inc., 9 Tenn. App. 225, — S.W.2d —, 1928 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1928); Yarbrough v. Louisville & N. R. Co., 11 Tenn. App. 456, 1930 Tenn. App. LEXIS 28 (1930); Ezell v. Post Sign Co., 30 Tenn. App. 256, 205 S.W.2d 13, 1947 Tenn. App. LEXIS 83 (1947).

4. —Requirement for Appeal.

Prior to 1949 amendment the record had to affirmatively show that a suggestion of remittitur by the court was based on the ground that the court thought the verdict was so excessive as to indicate passion, prejudice, corruption, partiality or unaccountable caprice. Rice-Stix Dry Goods Co. v. Self, 20 Tenn. App. 498, 101 S.W.2d 132, 1935 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1935); Chumley v. Anderton, 20 Tenn. App. 621, 103 S.W.2d 331, 1936 Tenn. App. LEXIS 54 (Tenn. Ct. App. Oct. 10, 1936); Harrison v. Graham, 21 Tenn. App. 189, 107 S.W.2d 517, 1937 Tenn. App. LEXIS 19 (1937); Sweeney v. Carter, 24 Tenn. App. 6, 137 S.W.2d 892, 1939 Tenn. App. LEXIS 4 (1939); Rea Const. Co. v. Lane, 25 Tenn. App. 125, 152 S.W.2d 1033, 1941 Tenn. App. LEXIS 83 (1941); Ezell v. Post Sign Co., 30 Tenn. App. 256, 205 S.W.2d 13, 1947 Tenn. App. LEXIS 83 (1947).

Plaintiff was entitled to review of suggested remittitur by trial court where minute entry showed suggested remittitur was based on ground that verdict indicated passion, prejudice or unaccountable caprice on part of jury though trial court in previously passing on suggested remittitur in his comment indicated it was based on distrust of medical opinion as to permanency of injuries of plaintiff. Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

5. —Appeal.

Under this section a party accepting a remittitur under protest may appeal from such action of the trial judge to the court of appeals and have reviewed the propriety of the trial judge in suggesting the remittitur without having moved for a new trial. Jones v. Knoxville, 172 Tenn. 1, 108 S.W.2d 882, 1937 Tenn. LEXIS 42 (1937).

When trial judge overruled motion for new trial and suggested a remittitur which plaintiff accepted under protest he had authority to grant plaintiff an appeal and allow 30 days for perfecting the appeal and settling bill of exceptions. Waller v. Skeleton, 31 Tenn. App. 103, 212 S.W.2d 690, 1948 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1948), cert. denied, Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

Party in whose favor adjustment is made has right to appeal adequacy of remittitur, but not right to reject it and receive new trial. City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

Trial court erred in granting new trial when party in whose favor verdict was rendered accepted remittitur but other party did not. City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

6. Decisions Since 1949 Amendment.

Statement of court disapproving the amount of damages and suggesting a remittitur did not indicate that the trial court disapproved the verdict of the jury or the finding of negligence as to the other party. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954).

7. —Constitutionality.

The practice of curing an excessive verdict by remittitur even when the excess is so shocking as to evince passion, prejudice, or caprice does not deprive a defendant of his constitutional rights to a jury trial, because in such cases the jury has decided the issue of liability and the court has merely adjusted the amount of the award to conform the verdict to the proof beyond which there is no evidence to support the verdict. Pitts v. Exxon Corp., 596 S.W.2d 830, 1980 Tenn. LEXIS 435 (Tenn. 1980), overruled, City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

8. —Reduction of Verdict.

It is not necessary for the court to find that a verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury, since the court only considers whether or not the verdict should be reduced. Streetman v. Richardson, 37 Tenn. App. 524, 266 S.W.2d 838, 1953 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1953).

Where evidence showed that plaintiff's only expense for false arrest and prosecution was $300 though he did suffer humiliation and embarrassment a verdict for $7,500 was excessive and was reduced to $3,000. Streetman v. Richardson, 37 Tenn. App. 524, 266 S.W.2d 838, 1953 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1953).

It is not necessary for the court to find that a verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury since the court only considers whether or not the verdict should be reduced. Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

Motion for remittitur could not be used to show advance payment on judgment arising out of automobile accident, since defendant did not disagree with amount of verdict but rather claimed partial satisfaction and proper procedure would have been post-judgment motion to show proof of advance payment, but supreme court would not hold that judgment debtor was deprived of relief by suit in equity to enjoin collection of amount of advance payment a second time. Byrd v. Stuart, 224 Tenn. 46, 450 S.W.2d 11, 1969 Tenn. LEXIS 378 (1969).

Trial court did not err in determining that the amount of damages the jury awarded a married couple for injuries to one of the spouse's back and neck and for loss of consortium was excessive and in remitting the amount of damages. Miller v. Choo Choo Ptnrs., L.P., 73 S.W.3d 897, 2001 Tenn. App. LEXIS 821 (Tenn. Ct. App. 2001).

In a driver's personal injury action wherein the jury's award of damages totaled $ 116,493.22, a trial court erred in its suggestion of an overall $ 45,000 remittitur, T.C.A. § 20-10-102, because the evidence preponderated in favor of the jury's assessment of the driver's economic and non-economic damages; the evidence showed the driver sustained significant injuries and would continue to have pain and a loss of physical vigor as a result of the accident. Johnson v. Beverly Nunis & Farmer's Ins. Exch., 383 S.W.3d 122, 2012 Tenn. App. LEXIS 277 (Tenn. Ct. App. Apr. 27, 2012).

Trial court erred in suggesting a remittitur of a truck driver's loss of earning capacity award from $ 1.45 million to $ 1.1 million because a vocational economic analyst's assessment that the truck driver was unemployable was based upon the truck driver's limited credentials essentially leaving him unable to compete for the jobs which he could physically perform and not upon any medical determination the truck driver was physically unable to return to any job. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of a pain and suffering and mental anguish damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 500,000 was not against the preponderance of the evidence because the truck driver was unable to return to work, a fact that led to both depression and anxiety, and the truck driver's physical limitations brought him a sense of shame. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of permanent injury damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 100,000 was not against the preponderance of the evidence because the permanent injury award represented the permanent damage to the truck driver's spinal disc and the accompanying inconvenience and loss of physical vigor; the trial court may have suggested a remittitur in order to avoid a double recovery. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of loss of enjoyment of life damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 400,000 was against the preponderance of the evidence because the truck driver was able to partake in some activities; the appellate court exercised its statutory authority and reduced the award to $ 50,000. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Evidence preponderated against the jury's award of $1,455,000 because there was no evidence to support any loss of earning capacity; the award was $120,353 greater than the amount calculated by the vocational analyst; thus, the jury's award for loss of earning capacity was remitted to $1,334,647. Borne v. Celadon Trucking Servs., — S.W.3d —, 2020 Tenn. App. LEXIS 48 (Tenn. Ct. App. Feb. 4, 2020).

Evidence preponderated against the trial court's remittitur of loss of earning capacity to $1,100,000 because the vocational analyst, in view of plaintiff's low level of reading comprehension, opined that plaintiff would be able to perform only about 2% of the jobs in the labor market, that employers would be reluctant to hire someone like plaintiff who had been out of work for several years, and that there were very few occupations open to plaintiff; and the trial court's finding that plaintiff desired to work and had a strong work ethic did not overcome that testimony. Borne v. Celadon Trucking Servs., — S.W.3d —, 2020 Tenn. App. LEXIS 48 (Tenn. Ct. App. Feb. 4, 2020).

9. Guidelines.

A trial judge, in suggesting remittitur, must set a reasonable time in which the party in whose favor the verdict was rendered may accept the suggestion, to be determined at the discretion of the trial judge but not to exceed 30 days. The 30 day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

10. —Effect of Erroneous Reduction.

Where action of trial court in suggesting remittitur and reducing judgment was erroneous the supreme court reversed the trial court and reinstated judgment to full amount awarded by jury. Garner v. State, 37 Tenn. App. 510, 266 S.W.2d 358, 1953 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1953).

Where jury's verdict was not excessive for the nature of plaintiff's injuries, it was the duty of the court of appeals to reverse the action of the trial court in suggesting a remittitur and to restore the full amount. Harber v. Smith, 40 Tenn. App. 648, 292 S.W.2d 468, 1956 Tenn. App. LEXIS 158 (Tenn. Ct. App. 1956).

Where, in action against insurance company to recover on policy, jury returned verdict for plaintiff for amount of policy and also for statutory penalty for failure to pay, and trial judge set aside verdict as to penalty, court of appeals, instead of remanding case for new trial, restored the penalty found by the jury. Palatine Ins. Co. v. E. K. Hardison Seed Co., 42 Tenn. App. 388, 303 S.W.2d 742, 1957 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1957).

Where there was ample evidence in the record to support finding a jury as to amount of compensatory damages in ejectment proceeding and complainant accepted remittitur under protest, court of appeals had authority to reverse order of chancellor suggesting remittitur and restore full amount of award. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

Court of appeals is authorized to require remittiturs commensurate with its judgment where it cannot conscientiously approve verdict but it cannot do so where it does not find verdict is excessive and there is nothing to indicate that jury was influenced by sympathy, passion or caprice. Williams v. Daniels, 48 Tenn. App. 112, 344 S.W.2d 555, 1960 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1960).

Although this court will give great weight to the action of the trial court in ordering a remittitur, award of $25,000 for wrongful death of a 46 year old man with life expectancy of 23 years and annual earning capacity of $4,500 was not excessive, and trial court should not have suggested a remittitur. Templeton v. Quarles, 52 Tenn. App. 419, 374 S.W.2d 654, 1963 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1963).

11. —Consideration by Court of Appeals.

The court of appeals will give great weight and consideration to the action of the trial court in ordering a remittitur and will not disturb the same unless there has been some abuse of the statutory discretionary authority. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954); Wilson v. Cook Mfg. Co., 56 Tenn. App. 129, 405 S.W.2d 584, 1966 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1966).

Where verdict was a general verdict, court of appeals could not say that trial court applied remittitur to any particular item of damages or that the verdict was excessive as to that item of damages after remittitur, where substantial evidence supported the amount of the general verdict after remittitur. Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

This section authorizes the court of appeals to restore entire verdict and judgment or such portion thereof as it may think should be restored. Wilson v. Cook Mfg. Co., 56 Tenn. App. 129, 405 S.W.2d 584, 1966 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1966).

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court or appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate courts customarily conduct a three-step review of a trial court's adjustment of a jury's damage award: (1) the court will examine the reasons for the trial court's action since adjustments are proper only when the court disagrees with the amount of the verdict; (2) the court will examine the amount of the suggested adjustment since adjustments that “totally destroy” the jury's verdict are impermissible; (3) the court will review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment. Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990).

When a trial judge has approved a jury award, review by appellate court is subject to the rule that if there is any material evidence to support the award it should not be disturbed. Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 1993 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1993).

The standard of review pertaining to questions of additur or remittitur in the court of appeals is covered by T.R.A.P. 13(d). Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

When reviewing a trial court's suggestion of remittitur, the court of appeals must use the standard of review that applies to findings of a trial judge, and determine whether the evidence preponderates against the trial judge's adjustment. Grandstaff v. Hawks, 36 S.W.3d 482, 2000 Tenn. App. LEXIS 355 (Tenn. Ct. App. 2000).

12. —Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range of reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

The record established that a remittitur was justified in the trial judge's capacity as thirteenth juror. Bates v. Jackson, 639 S.W.2d 925, 1982 Tenn. LEXIS 352 (Tenn. 1982).

In a wrongful death and survivor action arising from care and treatment of a nursing home resident, upon review under T.R.A.P. 13 and T.C.A. § 20-10-102(b), a trial court's suggested remittitur of the compensatory damages awarded to plaintiff was supported by its reasons for disagreeing with the jury's compensatory damage award; the evidence did not preponderate against the trial court's decision. McLemore v. Elizabethton Med. Investors, Ltd. P'ship, 389 S.W.3d 764, 2012 Tenn. App. LEXIS 415 (Tenn. Ct. App. June 22, 2012), appeal denied, McLemore v. Elizabethton Med. Investors LP, — S.W.3d —, 2012 Tenn. LEXIS 892 (Tenn. Nov. 27, 2012).

13. —Excessive Verdict.

A trial court may suggest a remittitur in any case involving unliquidated damages where the amount of the verdict is excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The court of appeals had the power to reinstate part of the original judgment where the trial court was in error in suggesting a remittitur which was excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Where jury returned a verdict of $750 for damage to motorcycle when the undisputed evidence showed that such motorcycle had a value of $371 it was proper for the court to correct the matter by remittitur and it was not necessary that the entire verdict be set aside. Fitzsimmons v. Brock, 46 Tenn. App. 526, 330 S.W.2d 563, 1958 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1958).

Trial court did not err in only reducing a sixteen-million-dollar verdict to six million five hundred thousand dollars and, inter alia, the court had not erred in admitting testimony from a medical expert because the patient had had the burden of showing the necessity of a yearly cystoscopy examination as a preventative measure due to the increased risk of cancer in bladder augmentation patients, the testimony was elicited on cross-examination, and the jury charge rendered any prejudice which might have resulted from the doctor's testimony harmless. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Trial court did not err in reducing a sixteen-million-dollar verdict to six million five hundred thousand dollars because, inter alia, although the physical injuries included the negligent removal of ninety percent of the minor's bladder, two additional surgeries, chronic urinary tract infections, kidney reflux, extensive testing, and daily medication, it appeared that he would experience little ongoing physical pain as a result of the admitted negligence. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

In an uninsured motor vehicle claim, the jury awarded the insured more than $10,000 over and above what evidence established to be for his medical expenses; the reason the trial court opted to suggest a remittitur of $10,135.55 was to reflect the difference between the amount the jury awarded for past medical expenses and the actual past medical expenses that were proved at trial. The remittitur did not totally destroy the jury's verdict, and the evidence supported the trial court's suggestion of remittitur. Hindman v. Doe, 241 S.W.3d 464, 2007 Tenn. App. LEXIS 336 (Tenn. Ct. App. May 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 853 (Tenn. Sept. 17, 2007).

14. —Legislative Intent.

The clear legislative intent of this section and § 20-10-103 was to confer on the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958); Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

The clear legislative intent of this section and § 20-10-103 was to confer on appellate courts full power and authority to revise and correct all errors relating to remittiturs suggested or not suggested by the trial court consistent with recognized rules of appellate practice and procedure. Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

15. —Purpose of Act.

The purpose of the revisory authority granted the appellate courts by this section and § 20-10-103 is to avoid repeated trials of factual issues and at the same time to do equal justice to the parties. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The remittitur and additur statutes were enacted for the purpose of giving the plaintiff, in the case of remittiturs, and the defendant, in the case of additurs, the right to accept, under protest and appeal, a right that had been denied those respective classes of litigants by case law prior to the enactment of such statutes. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

16. —Authority to Suggest Remittitur.

In rejectment action brought in chancery court where issue as to compensatory damages was tried by jury as authorized by § 21-1-103, chancellor had authority to suggest remittitur as to verdict on such damages even though verdict was binding. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

In an uninsured motor vehicle claim, the verdict form sub-divided the total damage award into the various categories for which the insured was seeking and could recover for his injuries; the trial court was free to address an error by the jury with regard to one of the individual categories as its basis for suggesting remittitur, and thus the trial court did not err in suggesting remittitur with regards to the insured's past medical expenses. Hindman v. Doe, 241 S.W.3d 464, 2007 Tenn. App. LEXIS 336 (Tenn. Ct. App. May 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 853 (Tenn. Sept. 17, 2007).

17. —Federal Court Jurisdiction.

In action for personal injuries, in which jurisdiction was based upon diversity of citizenship, plaintiff was entitled to accept federal district judge's suggested remittitur, protest, and appeal the court's action under this statute. Mooney v. Henderson Portion Pack Co., 334 F.2d 7, 1964 U.S. App. LEXIS 4808 (6th Cir. Tenn. 1964).

Under Erie Railroad Co. v. Tompkins decision, this statute, permitting party receiving jury verdict to accept court-suggested remittitur under protest and then to appeal, will be applied in federal courts sitting in Tennessee. Mooney v. Henderson Portion Pack Co., 334 F.2d 7, 1964 U.S. App. LEXIS 4808 (6th Cir. Tenn. 1964).

18. —Reinstatement of Remittitur.

Court of appeals cannot reinstate remittitur if defendant is entitled to a new trial under its assignment of error. Cook & Nichols, Inc. v. Peat, Marwick, Mitchell & Co., 480 S.W.2d 542, 1971 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1971).

19. —Appeal in Nature of Writ of Error.

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance or a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

20. Interest on Judgment.

Where the original verdicts and judgments were reduced by plaintiffs' remittitur under protest in the trial court, and further reduced by plaintiffs' remittitur under protest in the appellate court, but the original judgment of the trial court remained in effect except to the extent waived or remitted by plaintiffs; having waived a part of the principal of their judgments, plaintiffs also waived interest on the waived part of the judgments, so that they were entitled to interest only upon the remaining, unwaived portion of their judgments. Plaintiffs were entitled to interest on their reduced judgments from the date of the jury verdict to the date of payment. Long v. Mattingly, 817 S.W.2d 325, 1991 Tenn. App. LEXIS 388 (Tenn. Ct. App. 1991).

21. Properly Denied.

Trial court did not err by failing to suggest a remittitur because the damage award of $200,000 to plaintiffs was not excessive, as the evidence showed that plaintiffs, a husband and wife, lived in fear due to defendant's actions of making unfounded accusations and threatening them. Their fear manifested itself in both physical and emotional changes and for years they were robbed of one of the normal pleasures of life, living peacefully in their home. Holt v. Kirk, — S.W.3d —, 2019 Tenn. App. LEXIS 205 (Tenn. Ct. App. Apr. 30, 2019).

Collateral References. 5 Am. Jur. 2d Appeal and Error §§ 939-945; 58 Am. Jur. 2d New Trial §§ 221, 225.

5, 5A C.J.S. Appeal and Error §§ 1498, 1653.

Appellate court's power to order remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages. 97 A.L.R.2d 1145.

Court's power or right, without defendant's consent, to deny new trial upon condition of remittitur by plaintiff. 53 A.L.R. 783, 95 A.L.R. 1163.

Curing excessiveness of damages by remittitur in action by person injured for personal injuries not resulting in death. 46 A.L.R. 1230, 102 A.L.R. 1125, 11 A.L.R.3d 9, 11 A.L.R.3d 370, 12 A.L.R.3d 117, 12 A.L.R.3d 475, 12 A.L.R.4th 96, 13 A.L.R.4th 212, 14 A.L.R.4th 539, 15 A.L.R.4th 294, 15 A.L.R.4th 519, 16 A.L.R.4th 238, 16 A.L.R.4th 1127.

Death or personal injury, remittitur as curing error in failure to instruct jury as to reduction to present worth of damages for future loss on account of. 77 A.L.R. 1464, 154 A.L.R. 796.

Entire judgment, necessity of setting aside or reversing, because of error in allowing certain items, where the verdict or judgment purports to specify the amounts allowed respectively for the proper and improper item. 135 A.L.R. 1186.

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.

Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations. 26 A.L.R.2d 956.

Remittitur of damages for personal injuries resulting in death of adult. 48 A.L.R. 817, 49 A.L.R.3d 934, 46 A.L.R.4th 220, 47 A.L.R.4th 100, 47 A.L.R.4th 134, 49 A.L.R.4th 1076, 50 A.L.R.4th 787.

Statute relating to excessiveness of damages as ground of reversal, constitutionality, construction and application of. 88 A.L.R. 943.

Verdict in excess of amount demanded as requiring new trial notwithstanding voluntary remittitur. 65 A.L.R.2d 1331.

NOTES TO DECISIONS

1. Successive Appeals Allowed.

When the trial judge suggests a remittitur upon the ground therein stated, the plaintiff may accept the remittitur under protest, and appeal to the court of appeals, and may take the case from that court to the supreme court; but the latter court will not ordinarily interfere with the concurrent finding of the trial court and of the court of appeals, as to the amount of damages. Grant v. Louisville & N. R. Co., 129 Tenn. 398, 165 S.W. 963, 1913 Tenn. LEXIS 107 (1914); J.T. Rather & Co. v. Nashville, C. & St. L. Ry., 131 Tenn. 289, 174 S.W. 1113, 1914 Tenn. LEXIS 107 (1914); Elrod v. Franklin, 140 Tenn. 228, 204 S.W. 298, 1917 Tenn. LEXIS 144 (1918) (Cases decided before 1949 amendment).

2. Recovery Limited to Allegations.

Where as a result of automobile accident in which his wife was involved husband sued for damages to his automobile, loss of services of his wife and expenses in connection therewith and specifically alleged the amount of expenses incurred but did not sue for loss of consortium, the amount of the husband's recovery was limited to the amount of the expenses alleged and court of appeals ordered a remittitur of the amount of the judgment in excess of that amount. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954).

3. Punitive Damages.

In an action for seduction where an award of $5,000 compensatory damages was made to plaintiff and an additional $5,000 awarded for punitive damages, the court of appeals was authorized under this section to suggest a remittitur of $2,500 as to the award for punitive damages. Caccamisi v. Thurmond, 39 Tenn. App. 245, 282 S.W.2d 633, 1954 Tenn. App. LEXIS 165 (Tenn. Ct. App. 1954).

4. Interest on Judgment.

Where the original verdicts and judgments were reduced by plaintiffs' remittitur under protest in the trial court, and further reduced by plaintiffs' remittitur under protest in the appellate court, but the original judgment of the trial court remained in effect except to the extent waived or remitted by plaintiffs; having waived a part of the principal of their judgments, plaintiffs also waived interest on the waived part of the judgments, so that they were entitled to interest only upon the remaining, unwaived portion of their judgments. Plaintiffs were entitled to interest on their reduced judgments from the date of the jury verdict to the date of payment. Long v. Mattingly, 817 S.W.2d 325, 1991 Tenn. App. LEXIS 388 (Tenn. Ct. App. 1991).

5. Jurisdiction of Supreme Court.

By this section the supreme court is given jurisdiction to restore the verdict of the jury, if in its opinion, the trial judge and the court of appeals was in error in reducing it, but is without jurisdiction to reduce the verdict further than reduced by the trial judge or the court of appeals. Lambert Bros., Inc. v. Larkins, 200 Tenn. 674, 296 S.W.2d 353, 1956 Tenn. LEXIS 453 (1956), overruled, Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978).

Where both the trial court and the court of appeals agreed that the verdict of the jury should have been reduced, the former in the amount of $12,500 while the latter held this to be excessive and suggested remitting $7,500 of this amount, the supreme court was bound by their respective opinions holding that the verdict should have been reduced. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The concurrent finding of a trial court and the court of appeals in approving the amount of a jury verdict will not be disturbed if supported by material evidence. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

6. Legislative Intent.

The clear legislative intent of § 20-10-102 and this section was to confer on the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The clear legislative intent of § 20-10-102 and this section was to confer on appellate courts full power and authority to revise and correct all errors relating to remittiturs suggested or not suggested by the trial court consistent with recognized rules of appellate practice and procedure. Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

7. Jurisdiction of Court of Appeals.

The court of appeals had the power to reinstate part of the original judgment where the trial court was in error in suggesting a remittitur which was excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Court of appeals had authority to deduct $7,500 from remittitur of $12,500 suggested by trial court in $25,000 verdict and to affirm major part of original judgment in amount of $20,000 and was not required to reinstate original judgment in its entirety. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Court of appeals has the prerogative and duty to suggest remittitur if it deems the verdict excessive even though the trial court may have approved the verdict as rendered by the jury and expressly refused a remittitur. Methodist Hospital v. Ball, 50 Tenn. App. 460, 362 S.W.2d 475, 1961 Tenn. App. LEXIS 146 (Tenn. Ct. App. 1961).

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court of appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

When the question of remittitur is raised, the court of appeals has the duty to review the proof of damages and the authority to reduce an excessive award. But when the trial judge has approved the verdict, the review in the court of appeals is subject to the rule that if there is any material evidence to support the award, it should not be disturbed. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980); Coyle v. Prieto, 822 S.W.2d 596, 1991 Tenn. App. LEXIS 225 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 518 (Tenn. Ct. App. July 2, 1991).

If the issue is remittitur, Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), requires a determination of the upper limit of reasonable verdicts only. If the issue is additur Shelton requires a determination of the lower limit only. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

If the analysis of the credible proof of damages results in the conclusion that the award is not excessive, there is no requirement that a figure be named beyond which the verdict would be considered excessive, but a determination has been made that the award is within the range of reasonableness. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

If, after reviewing the record when the question of remittitur is raised, the court determines that the adjusted damage award is still excessive, it has the prerogative to reduce the damages further. Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990).

8. Purpose of Act.

The purpose of the revisory authority granted the appellate courts by § 20-10-102 and this section is to avoid repeated trials of factual issues and at the same time to do equal justice to the parties. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

9. Weight of Trial Court's Action.

Although the court of appeals has the right to order remittiturs, adjust remittiturs, or accept the verdict of the jury or of the remittitur made by the trial court, it is proper for the court of appeals in most cases to approve either the verdict of the jury or the remittitur ordered by the trial court unless thoroughly satisfied that both are wrong. Stark v. Yost, 47 Tenn. App. 28, 334 S.W.2d 954, 1959 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1959).

The appellate courts must have great respect for the evaluation of damages fixed by the trial judge or approved by him as relates to the verdict. Stark v. Yost, 47 Tenn. App. 28, 334 S.W.2d 954, 1959 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1959).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Although not specifically statutorily authorized, T.C.A. § 20-10-103 implicitly recognizes the authority of an appellate court to grant a further remittitur when the award, even as remitted by the trial court, is deemed excessive. Holt v. Compton Sales Co., 900 S.W.2d 291, 1995 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 215 (Tenn. May 1, 1995).

The standard of review for the trial court's action in granting a remittitur is appropriate for use by an appellate court in determining whether the evidence preponderates against the determination of the trial court as to amount of remittitur. Holt v. Compton Sales Co., 900 S.W.2d 291, 1995 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 215 (Tenn. May 1, 1995).

10. Remittitur Not Required.

Where plaintiff sustained a severe scalp wound, fractures of the fifth, sixth, and seventh thoracic vertebrae and a mild concussion of the brain, spent 45 days in the hospital and still felt considerable pain after a hard day's work because of back injuries and special damages of over $3,000 were proven a verdict of $11,000 was not so excessive as to require a remittitur under the section. Vancleave v. Napier, 55 Tenn. App. 313, 399 S.W.2d 784, 1964 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1964).

In an action stemming from an automobile accident, the appellate court determined that the trial court suggested remittitur was proper and that the record contained material evidence to support the amount of the non-economic damages awarded in the judgment; accordingly, there was no basis under T.C.A. § 20-10-103(a) to suggest a further remittitur of economic damages in the case. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 2008 Tenn. App. LEXIS 79 (Tenn. Ct. App. Feb. 13, 2008), rehearing denied, 271 S.W.3d 178, 2008 Tenn. App. LEXIS 127 (Tenn. Ct. App. Feb. 27, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 632 (Tenn. Aug. 25, 2008).

Appellate court had the authority under this section to suggest a remittitur even though defendant did not request a remittitur, but the appellate court erred in remitting the jury's verdict from $43.8 million to $12.9 million. Although the amount of the verdict rested at the high end of the range of reasonableness, it was not excessive. Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 2013 Tenn. LEXIS 702 (Tenn. Aug. 30, 2013).

11. Remittitur Required.

In malicious prosecution case, where special damages shown consisted of cost of bail bonds, attorneys' fees and lost time from work amounting to approximately $250, and other injuries consisted of inconvenience and embarrassment incident to arrest, temporary detention for booking and bail, and approximately five hours in “drunk tank,” and no specific injury or loss was shown because of injury to reputation, $5,000 compensatory damages was regarded as excessive by court of appeals and was reduced to $2,500. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

Trial court's suggested remittitur of loss of enjoyment of life damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 400,000 was against the preponderance of the evidence because the truck driver was able to partake in some activities; the appellate court exercised its statutory authority and reduced the award to $ 50,000. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

12. Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range of reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

13. Guidelines.

A trial judge, in suggesting remittitur, must set a reasonable time in which the party in whose favor the verdict was rendered may accept the suggestion, to be determined at the discretion of the trial judge but not to exceed 30 days. The 30-day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

14. Appeal in Nature of Writ of Error.

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Collateral References.

Appellate Court's power to order remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages. 97 A.L.R.2d 1145.

NOTES TO DECISIONS

1. Court Amending Verdict.

The court has no power to amend a verdict after the jury has been discharged, except by adding a word or words so as to make the entry correspond with the court's clear impression of the finding. Berry v. Wallin, 1 Tenn. 240 (1807); Barnard v. Young, 24 Tenn. 100, 1844 Tenn. LEXIS 29 (1844).

2. General Verdict — Jury Right.

The privilege of the jury to decline finding any other than a general verdict is not restrained by statute, but on the contrary, the statutes seem to impliedly recognize this privilege of the jury. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

3. —Finding on Each Count Separately — Waiver.

Right to demand finding of jury on each count separately may be waived by failure to object to the form of the verdict after it is rendered by the jury and before judgment is entered. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where mother sued for both her own damages and the damages of minor son as the result of injuries to minor she could not object because jury returned a verdict of one amount covering the damages to both where by questions asked by the jury before returning a verdict it was indicated that they would return only one sum as damages and no objection was made before judgment was entered. State ex rel. Coffelt v. Hartford Acci. & Indem. Co., 44 Tenn. App. 405, 314 S.W.2d 161, 1958 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1958).

4. Matter of Form Cured by Verdict.

If one sues on note as bearer, where the note is not payable to bearer and is not assigned, the want of proper payee as nominal plaintiff, being a matter of form, is cured by the verdict. Wolfe v. Tyler, 48 Tenn. 313, 1870 Tenn. LEXIS 55 (1870).

5. Inconsistent Verdicts.

The objection was not waived where there were inconsistent verdicts. Helm v. Wells, 488 S.W.2d 733, 1972 Tenn. App. LEXIS 327 (Tenn. Ct. App. 1972).

6. “Defective Verdict” Defined.

Where jury returned an improper verdict pursuant to erroneous instructions given by judge, the verdict is not “defective” or inconsistent with instructions and hence section does not apply. Henry County Board of Education v. Burton, 538 S.W.2d 394, 1976 Tenn. LEXIS 490 (Tenn. 1976).

Collateral References. 76 Am. Jur. 2d Trial §§ 1143—1153, 1156.

49 C.J.S. Judgments §§ 95, 452.

Trial 399.

NOTES TO DECISIONS

1. Warrant in Action for Penalty — Amendment.

A warrant, in an action for a penalty prescribed by a city ordinance, may be amended by inserting the words “a penalty of from ten to fifty dollars.” Childress v. Nashville, 35 Tenn. 347, 1855 Tenn. LEXIS 70 (1855).

2. Qui Tam Actions Covered.

Qui tam actions are included in the provision of this section, because they are actions for penalties given by statute, generally in part, but sometimes wholly, to any one that will sue for the same. McCreary v. First Nat'l Bank, 109 Tenn. 128, 70 S.W. 821, 1902 Tenn. LEXIS 63 (1902).

NOTES TO DECISIONS

1. In General.

A provision for de novo trial in the circuit court must be taken to mean a de novo trial as to the parties before that court by appeal. Braverman v. Roberts Constr. Co., 748 S.W.2d 433, 1987 Tenn. App. LEXIS 3114 (Tenn. Ct. App. 1987).

2. Construction with Other Acts.

This section and §§ 19-1-118 (now § 16-15-729), 20-11-101 (repealed) evince a clear intention on the part of the legislature to allow such amendments in the circuit court as will permit the appellant to have his case heard and determined in that court on its merits. Walker v. Aetna Casualty & Surety Co., 175 Tenn. 118, 132 S.W.2d 219, 1939 Tenn. LEXIS 19 (1939).

3. Correction of Proceedings.

4. —Grant of Appeal.

The record could be amended so as to make it appear that an appeal had been prayed and granted, by supplying omission of entry of appeal from justice's (now general sessions judge's) judgment, by means of recitals in the appeal bond. Cooley v. Julin, 13 Tenn. 438, 13 Tenn. 439, 1830 Tenn. LEXIS 49 (1830); Rogers v. Cochran, 11 Tenn. 310, 11 Tenn. 311, 1832 Tenn. LEXIS 49 (1832); Lawler v. Howard, 19 Tenn. 15, 1838 Tenn. LEXIS 4 (1838); Glass v. Stovall, 29 Tenn. 453, 1850 Tenn. LEXIS 12 (1850).

Where the appeal was made to the circuit court, there had to appear in the proceedings something showing that an appeal was prayed and granted from a justice's (now general sessions judge's) judgment. Hall v. Bewley, 30 Tenn. 106, 1850 Tenn. LEXIS 68 (1849); Teasdale v. Manchester Produce Co., 104 Tenn. 267, 56 S.W. 853, 1899 Tenn. LEXIS 34 (1900).

The circuit judge should allow the justice (now general sessions judge) to amend his judgment, so as to show that the appeal had been prayed for and granted, within the proper time. King v. Booker, 48 Tenn. 11, 1870 Tenn. LEXIS 4 (1870).

Where there was no recital that an appeal was prayed and granted from the judgment of a justice of the peace (now general sessions judge), he was allowed to amend so as to show that the appeal was prayed and granted within the proper time; and the refusal of the circuit court to allow such amendment was error. McCarver v. Jenkins, 49 Tenn. 629, 1871 Tenn. LEXIS 55 (1871); Campbell v. Illinois Cent. R.R., 84 Tenn. 270, 1886 Tenn. LEXIS 95 (1886).

5. —Parties.

Amendment by inserting given names of the plaintiffs in a justice's (now general sessions judge's) warrant after appeal to the circuit court, and even after trial and verdict, and after new trial granted. Irwin v. Sanders, 13 Tenn. 286, 13 Tenn. 287, 1833 Tenn. LEXIS 165 (1833); Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

Where a suit is commenced by a justice's (now general session judge's) warrant, and brought into the circuit court, the plaintiff may amend his warrant, by striking out his own name and inserting the name of a third person, but prosecution sureties are thereby released. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854); Smith v. Roby, 53 Tenn. 546, 1871 Tenn. LEXIS 393 (1871); Thomas v. Cole, 57 Tenn. 411, 1873 Tenn. LEXIS 224 (1873).

In a suit by the assignee of a note, brought into the circuit court by appeal from the judgment of a justice of the peace (now general sessions judge), the circuit judge may allow an amendment of the warrant, on motion of the plaintiff, the assignee of the note, so as to make the payee a nominal plaintiff for the use of the assignee, and to strike out the assignment on the note. Cannon v. Mathis, 57 Tenn. 575, 1873 Tenn. LEXIS 266 (1873).

In an action on an official bond the suit ought to have been brought in the name of the state for the use of the plaintiff, and the court should have permitted an amendment to that effect. Smith v. Thomas, 1 Shannon 655 (1876).

6. —Defective Appeal Bond.

Where appeal from justice's (now general sessions judge's) court to circuit court was defective only for want of sureties on the appeal bond, the appellants were entitled to make correction by amendment by way of new bond in circuit court, even after the appellee had taken further appeal to court of appeals. Frazier v. Biddle Auto Co., 6 Tenn. Civ. App. (6 Higgins) 489 (1916).

It was proper for the circuit judge to permit a defendant who had appealed from the judgment of a justice of the peace (now general sessions judge) to the circuit court to amend his appeal bond by adding a sufficient surety. Walker v. Aetna Casualty & Surety Co., 175 Tenn. 118, 132 S.W.2d 219, 1939 Tenn. LEXIS 19 (1939).

7. —Scire Facias.

Justice's (now general sessions judge's) scire facias to revive a judgment could be amended in the circuit court, so as to conform to the record, and to obviate the variance between the evidence and the scire facias. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

8. Appeal — Presumptions.

Where the record shows amendment in circuit court, without showing by whom made, the appellate court will presume that it was made by the justice (now general sessions judge). Hall v. Bewley, 30 Tenn. 106, 1850 Tenn. LEXIS 68 (1849).

Collateral References. 51 C.J.S. Justices of the Peace § 215.

Justices of the peace 160(6).

NOTES TO DECISIONS

1. Note Lost after Suit.

Where a note was lost after suit had been brought upon it before a justice of the peace (now general sessions judge), it may be supplied by a copy in the circuit court, like any other lost paper. Travis v. Laurace, 2 Shan. 109 (1876).

Collateral References. Lost Instruments 7, 22.

NOTES TO DECISIONS

1. Legislature's Power as to Costs.

Costs are essentially statutory; and there is no constitutional restriction on the power of the legislature, and that body may provide for the taxation of costs of litigation in such manner as it may deem proper. Mooneys v. State, 10 Tenn. 578, 1831 Tenn. LEXIS 19 (1831); Wilson v. Wilson, 134 Tenn. 697, 185 S.W. 718, 1916 Tenn. LEXIS 2 (1916).

2. Particular Actions Recoverable.

3. —Judgment on Judgment.

In a suit on a judgment of another state, the plaintiff is entitled to recover, for the benefit of the parties entitled thereto, the costs adjudged and taxed in the suit on the original judgment if properly evidenced; and the plaintiff is entitled to recover the costs of the suit in which a new judgment is recovered. Hunt v. Lyle, 14 Tenn. 412, 1834 Tenn. LEXIS 102 (1834); Gatewood v. Palmer, 29 Tenn. 466, 1850 Tenn. LEXIS 16 (1850); Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S.W. 889, 1901 Tenn. LEXIS 105 (1901).

In an action upon a judgment, the plaintiff recovering thereon is entitled to recover the costs taxed upon the original judgment, if unpaid, without interest, as costs bear no interest, and such costs of the original judgment should be taxed as costs in the second judgment; and he is also entitled to recover the costs in the second judgment to be taxed to the losing defendant. Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S.W. 889, 1901 Tenn. LEXIS 105 (1901).

4. —Mandamus Suit Against Judge.

Where a judge improperly excluded an attorney from practicing, and refused to put the order on record, or to allow him to appeal, he is a proper party defendant to a petition for a mandamus, and is liable for costs. Ingersoll v. Howard, 48 Tenn. 247, 1870 Tenn. LEXIS 45 (1870).

5. —Mortgage Securing Usurious Note.

There is error in not applying the statutory provision as to full costs against a complainant in a suit to foreclose a mortgage executed to secure a usurious note. Kelton v. Brown, 39 S.W. 541, 1897 Tenn. Ch. App. LEXIS 3 (1897).

6. —Will Contest.

Under facts recited, it is proper exercise of discretion of lower court to tax all costs of any will contest to executor individually. Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934).

In action to contest will in which validity of will was upheld costs were taxed against estate where testator had committed suicide two months after will was executed and contest action may result in some advantage to estate. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

Costs of will contest could be assessed against estate even though contest failed where testator had committed suicide within two months after execution of will and where contest could conceivably result in some advantage to executors and trustees particularly in administration of trust which would not terminate for 15 years. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

7. Separate Causes.

8. —Consolidated Cases.

Costs in consolidated cases may be left to abide the result of the suits, without requiring the plaintiff to pay the costs which had accrued previous to the consolidation. Dews v. Eastham, 13 Tenn. 296, 13 Tenn. 297, 1833 Tenn. LEXIS 171 (1833).

9. —Severance of Defendants — Effect.

Where the defendants sever in a libel or ejectment suit for the reason that different questions are involved between them and the plaintiff, upon the different titles arising in the suit, this has the effect of making several causes, and a separate taxation of costs in each case is proper. Den v. Huff, 1 Shan. 8 (1847); Sloan v. Parks, 32 Tenn. 62, 1852 Tenn. LEXIS 13 (1852).

10. Separate Defendants — Apportionment.

Where there are several joint defendants, one of whom succeeds in his defense, and the others do not, the defendant who succeeds may recover of the plaintiff such costs only as accrued separately and properly on account of his being a defendant in the suit; and the plaintiff is entitled to recover of the other defendants the costs of the suit incurred in the joint defense, or otherwise, except such as may be separated therefrom, as having exclusive reference to the defendant who succeeds. Sloan v. Parks, 32 Tenn. 62, 1852 Tenn. LEXIS 13 (1852).

11. Amount of Judgment.

12. —Amount Generally.

Under our practice, a judgment for costs generally is a judgment for the amount of all accrued costs, when legally taxed by the clerk. Gillet & Franklin v. Roadman, 24 Tenn. 44, 1844 Tenn. LEXIS 10 (1844); State ex rel. Hurt v. Alexander, 115 Tenn. 156, 90 S.W. 20, 1905 Tenn. LEXIS 52 (1905).

13. —Recovery on Part of Counts on Distinct Causes.

Where a plaintiff joins several separate and distinct causes of action, by means of several counts in his declaration (not several counts containing the same cause of action, only varying in the statement so as to avoid a variance in the proof and the like) and recovers as to some of the counts, but fails as to others, he can recover only such costs as are incident to that count of the declaration upon which he succeeds; while the defendant is entitled to recover such costs as have accrued in consequence of the counts upon which the plaintiff has failed. In such case, the proper practice is to render judgment, and award execution in behalf of the defendant, for such costs as he may be thus entitled to recover. Allison v. Thompson, 32 Tenn. 202, 1852 Tenn. LEXIS 50 (1852); Boothe v. Cowan, 37 Tenn. 354, 1858 Tenn. LEXIS 14 (1858); Lewis v. Watkins, 71 Tenn. 174, 1879 Tenn. LEXIS 54 (1879). See Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

Where the contestant in a contested election case bases his contest on two grounds, namely, (1) his own election and (2) the disqualification or ineligibility of the defendant, and is unsuccessful on the first ground, but is successful on the second ground, the contestant will be adjudged to pay the costs of the lower court, arising under the first count or ground of contest, and the defendant will be adjudged to pay the residue of the costs below, and the costs of the supreme court, though the court below had refused to tax the costs in accordance with the final judgment of the supreme court, and to that extent was reversed. Lewis v. Watkins, 71 Tenn. 174, 1879 Tenn. LEXIS 54 (1879).

14. —Tender — Effect as to Costs.

Tender of the amount due the plaintiff must be made by the defendant to prevent costs. Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

15. —Nominal Damages Recovered.

Where the plaintiff recovers only nominal damages for the violation of a contract, he is entitled to a judgment for costs. Seat & Robinson v. Moreland, 26 Tenn. 575, 1847 Tenn. LEXIS 24 (1847); Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864, 1888 Tenn. LEXIS 24 (1888). See Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

Trial court did not abuse its discretion in its allocation of court costs because plaintiffs were only partially successful in their claims against defendant, resulting in a judgment for the proceeds from the sale of the property and nominal damages of $50. Gibbons v. Bennett, — S.W.3d —, 2021 Tenn. App. LEXIS 49 (Tenn. Ct. App. Feb. 9, 2021).

16. —Supersedeas Proceedings.

Where, in a certiorari and supersedeas proceeding, the petitioner improperly superseded the whole execution, upon the alleged ground that the whole judgment had been paid and satisfied in full, or nearly so, whereas, only a part of the judgment had been paid, the petitioner is liable for the costs; but if he had superseded only so much of the execution as had been paid, pointing out truly the amount actually paid, he would have been the successful party, and entitled to recover costs. Littleton v. Yost, 71 Tenn. 267, 1879 Tenn. LEXIS 73 (1879).

17. Justice of Peace.

18. —Smaller Judgment in Circuit Court.

A plaintiff, upon the defendant's appeal, recovering a judgment in the circuit court for a smaller sum than he recovered before the justice (now general sessions judge), was the successful party and as such was entitled to full costs, especially where the defendant nowhere conceded his liability to the plaintiff, but defended against his liability, and resisted plaintiff's recovery in both courts. Section 20-12-118 providing that, in cases not embraced within the express provisions of the law, the court may make such disposition of the costs as, in its sound discretion, may seem right, was inapplicable. Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860); Cincinnati, N. O. & T. P. R. Co. v. Shelton, 123 Tenn. 513, 130 S.W. 843, 1910 Tenn. LEXIS 22 (1910). See § 20-12-119.

Plaintiff suing out a certiorari from the judgment of a justice of the peace (now general sessions judge), and failing to increase his judgment in the circuit court, was the unsuccessful party, and was taxed with the costs of the certiorari proceeding. Williams v. Cosby, 49 Tenn. 644, 1871 Tenn. LEXIS 57 (1871); Parham v. Gibbs, 84 Tenn. 296, 1886 Tenn. LEXIS 100 (1886); Garrison v. Trotter, 114 Tenn. 526, 86 S.W. 1078, 1904 Tenn. LEXIS 106 (1904).

19. —Void Certiorari from Justice's Void Judgment.

Where a justice's (now general sessions judge's) judgment, void for want of jurisdiction, was taken to the circuit court by a writ of certiorari, void because granted after the time limited by statute, and the case was there tried, after the refusal of the trial judge to dismiss the certiorari, on motion, and that court rendered judgment, the supreme court, on appeal, reversed the judgment, dismissed the certiorari, and charged the original defendant with the costs of the certiorari proceeding up to the trial in the circuit court, and the original plaintiff with subsequent costs in that court and the costs in the supreme court. Dixon v. Caruthers, 17 Tenn. 30, 1836 Tenn. LEXIS 9 (1836).

20. Surety's Liability.

21. —Prosecution Bond.

The surety on a prosecution bond does not engage to pay plaintiff's costs, adjudged against defendant, when such costs cannot be collected from defendant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

22. —Administrator's Bond.

Where administrator of insolvent estate sued under insurance policy payable to administrator but lost the case, the costs were payable by sureties of administrator even though administrator was sole beneficiary under policy. Volunteer State Life Ins. Co. v. Bennett, 5 Tenn. Civ. App. (5 Higgins) 715 (1914).

23. Judgment for Debt and Attachment Quashed.

The judgment rendered on the service of a warrant or summons may be good, although the attachment may be quashed for fatal defects, in which case the costs of the recovery and the costs of attachment will be severally borne by the respective unsuccessful parties. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872); Dougherty v. Kellum, 71 Tenn. 643, 1879 Tenn. LEXIS 126 (1879).

24. Continuance — Judgment for Costs.

Judgment for costs of continuance, once rendered, is necessarily final, and not contingent upon the result of the principal cause. Such costs should not be incorporated with those of the principal judgment, and they do not go up to the supreme court by virtue of the appeal. Remedy against erroneous taxation of such costs in the supreme court. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842). See Whitesides v. Rayle, 22 Tenn. 205, 1842 Tenn. LEXIS 68 (1842); State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881).

25. State — Liability for Costs.

No judgment for costs can be rendered against the state unless authorized by statute. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

26. —County Liability.

County in unsuccessful suit to establish road through lands of defendant was liable for all the costs. Senaker v. Justices of Sullivan, 36 Tenn. 116, 1856 Tenn. LEXIS 65 (1856).

27. Successful Party — Liability for Costs.

The successful party will be taxed with the costs of witnesses summoned without reasonable ground, and not examined by him. Lovitt v. Peterson's Adm'rs, 25 Tenn. 23, 1845 Tenn. LEXIS 4 (1845).

Where a party files an original bill, when a proceeding in a pending suit would have been sufficient, he will be taxed with one-half of the costs. Parker v. Britt, 51 Tenn. 243, 1871 Tenn. LEXIS 154 (1871).

The successful party may be taxed with the costs of cumulative witnesses rejected for that reason. Justices of Greene County v. Graham, 65 Tenn. 77, 1873 Tenn. LEXIS 305 (1873); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

Where a successful party was in part chargeable with an unnecessary amount of testimony taken, he was held liable for one-half of the entire costs. Lassater v. Garrett & Brown, 63 Tenn. 368, 1874 Tenn. LEXIS 265 (1874).

Where the successful complainant filed as evidence a record which had no relation to the issues involved, he was taxed with the cost of the same. Burks v. Burks, 66 Tenn. 353, 1874 Tenn. LEXIS 143 (1874). See §§ 20-12-119, 20-12-137.

28. —Compromise Pending Suit.

Where the case is compromised, and the defendant pays money in settlement of the claim sued on, he is the “unsuccessful party” and liable to a judgment for costs, especially where there was no agreement as to the costs. State v. Dail, 50 Tenn. 272, 1871 Tenn. LEXIS 95 (1871); Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873); Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

29. —Federal Court Rule.

Federal courts follow the state statutes on the subject of costs as rules of decision, where there are no federal statutes on the subject; and there being no federal statute defining a “successful party” in a civil action, or allowing him a judgment for costs therein, the federal court will follow this section and the state decisions thereon. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908). (Rule 54 of the federal rules of civil procedure now provides for costs in federal courts.).

30. Attorney Fees and Expenses.

Because the trial court did not use the proper standard in determining the award of attorney fees and expenses, the court remanded for a new determination of such fees. Ferguson Harbour Inc. v. Flash Mkt., Inc., 124 S.W.3d 541, 2003 Tenn. App. LEXIS 286 (Tenn. Ct. App. 2003), appeal denied, Ferguson Harbour, Inc. v. Flash Mkt., Inc., — S.W.3d —, 2003 Tenn. LEXIS 897 (Tenn. 2003).

Collateral References. 20 Am. Jur. 2d Costs §§ 4-6, 8, 14.

20 C.J.S. Costs §§ 8-18.

Accommodation party's right to recover costs as against accommodated party after payment of paper. 36 A.L.R. 596, 77 A.L.R. 668.

Against whom fees for guardian ad litem, appointed for infant defendant, are taxable as costs. 30 A.L.R.2d 1148.

Allowance of costs of litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

Allowances as costs, of such items as maps, models, wall charts, photographs, and the like. 97 A.L.R.2d 138.

Award of costs to defendant on causes of action where claims of some, but not all, of coplaintiffs were successful. 68 A.L.R.2d 1058.

Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorneys' fees. 68 A.L.R.3d 209.

Declaratory judgment, costs in proceeding to obtain. 87 A.L.R. 1249.

Director general of railroads, liability for costs. 8 A.L.R. 987, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as “prevailing party” or “successful party.” 66 A.L.R.3d 1087.

Divorce suit, effect of death of party to, before final decree, on liability for costs. 104 A.L.R. 667, 158 A.L.R. 1205.

Interlocutory order of one judge allowing or disallowing costs as binding on another judge in the same case. 132 A.L.R. 78.

Joint tort-feasor's liability for costs as affected by satisfaction of judgment by other tort-feasor. 27 A.L.R. 819.

Legacy charged upon land, costs of suit to enforce payment of. 116 A.L.R. 7, 134 A.L.R. 361.

Recovery of computer-assisted research costs as part of or in addition to attorney's fees under state law. 33 A.L.R.6th 305.

Soldiers' bounty laws, liability under, for costs and fees. 35 A.L.R. 813, 22 A.L.R.2d 1134.

Subrogation to mortgage lien, right of one entitled to, to recover costs and fees. 107 A.L.R. 792.

Taxation of costs and expenses in proceedings for discovery or inspection. 76 A.L.R.2d 953.

What constitutes “trial,” “final trial,” or “final hearing” under statute authorizing allowance of attorneys' fees as costs on such proceeding. 100 A.L.R.2d 397.

Who is the “successful party” or “prevailing party” for purposes of awarding costs where both parties prevail on affirmative claims. 66 A.L.R.3d 1115.

Costs 32.

NOTES TO DECISIONS

1. Constitutionality.

The tax on litigation to be paid by the unsuccessful party is constitutional. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871).

2. Cases Covered by Law.

A motion against a sheriff for an insufficient return of an execution is, in substance and legal effect, a suit or action, and therefore subject to the tax on litigation. But a motion of this character made for the first time in the supreme court as an incident to a pending appeal is held not subject to the tax on litigation, for the reason given that it is only a means of enforcing a judgment already rendered. Motion Against Curry, 59 Tenn. 51, 1873 Tenn. LEXIS 26 (1873); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880). See also State v. Allison, 32 Tenn. 373, 1852 Tenn. LEXIS 85 (1852).

A motion made to recover from a clerk, fees received by him for enrollments not made, is a suit subject to the tax on litigation. Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873).

This applies to criminal as well as civil cases, and county courts could assess the tax in both cases for the counties. State v. Howran, 55 Tenn. 824, 1875 Tenn. LEXIS 7 (1875).

Such tax is not costs in a misdemeanor case in such sense that the convict may be imprisoned for it, upon his failure to pay or secure it, though it is declared by statute a part of the costs. Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890).

3. Accrual Date of Tax.

Tax on litigation accrues when the suit is commenced. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

4. Successful Party — Liability.

The state is not entitled to recover as costs, against the successful party, the tax imposed upon the unsuccessful party, in case of the latter's insolvency. State v. Nance, 69 Tenn. 644, 1878 Tenn. LEXIS 148 (1878).

A person authorized to collect tax as costs of suit is liable to the state for the tax collected by him from the successful party, if not paid under protest, unless he shows that he has not repaid it to the party, or has been sued for it by him, or notified by him not to pay it over. Galbraith v. State, 78 Tenn. 568, 1882 Tenn. LEXIS 225 (1882).

5. “Unsuccessful Party” — Meaning.

The words “unsuccessful party” as used in this section mean the party adjudged to pay costs. State v. Cole, 74 Tenn. 492, 1880 Tenn. LEXIS 279 (1880).

Where a suit is compromised before the return day of the writ, and dismissed, the defendant agreeing to pay the costs, he is the unsuccessful party, and is liable for the tax. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

6. —Surety of Unsuccessful Party — Liability.

In a criminal case, a surety on a prosecution or appeal bond, against whom, with his principal as the unsuccessful party, the costs of the cause are adjudged, is not liable for the tax on litigation. State Tax Cases, 80 Tenn. 744, 1884 Tenn. LEXIS 159 (1884); Johnson v. State, 85 Tenn. 325, 2 S.W. 802, 1886 Tenn. LEXIS 48 (1886).

7. Partial Payment of Costs — Application.

If the clerk receives from the unsuccessful party a sum insufficient to pay all the costs, he should pay the state tax first, unless the party himself should make an application of the payment to a specific part of the costs. State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879).

8. State Tax — Liability of County.

Where the county leases the workhouse prisoners to others, and derives a revenue from their labor, it is liable for the state tax in such cases. State v. Sibley, 72 Tenn. 738, 1880 Tenn. LEXIS 86 (1880); State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

A county is not liable to the state where the misdemeanant, upon payment of the fine and costs to the clerk of the circuit or criminal court, is discharged without payment of the state tax on litigation, and such clerk has paid the fine into the county treasury, for the county cannot be held responsible for the state tax upon the ground that it has received the fine to which it was entitled. State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

9. Enforcement of Collection.

The tax upon cases tried in the municipal courts is to be paid by the parties convicted, and is not a tax imposed upon the city, or the exercise of one of its agencies or powers, nor is it costs in cases tried before these courts; and the convict cannot be imprisoned to secure the payment of this tax. The city is not liable for this tax unless it is collected. Eastman v. Nashville, 81 Tenn. 717, 1884 Tenn. LEXIS 91 (1884).

10. —Working Out Collection.

Under Acts 1919, ch. 134, which required litigation taxes to be included in the bill of costs, and which prohibited their remission, a misdemeanant cannot be required to work out state and county litigation taxes, but a motion to strike them from the bill of costs may properly be overruled, the remedies being by habeas corpus, if any effort to require him to work out such items should be made. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920).

The litigation tax is not a part of the fine or costs and a defendant in a criminal case cannot be made to work out such litigation taxes in jail. State ex rel. Dillehay v. White, 217 Tenn. 524, 398 S.W.2d 737, 1966 Tenn. LEXIS 656 (1966).

NOTES TO DECISIONS

1. Appeals Not Covered.

This section does not apply to appeals, so as to authorize the appellant to dismiss his appeal before the clerk of the court below, after the perfection of his appeal, and the adjournment of the court appealed from, and his entry of dismissal in the lower court at such time is a nullity. Freeman v. Henderson, 45 Tenn. 647, 1868 Tenn. LEXIS 58 (1868).

2. Power of Court After Dismissal.

A written dismissal of a suit in vacation puts an end to the suit, and terminates the control of the court over it, as fully as if made in term time, and the power and jurisdiction of the court over the cause ceases, except to render judgment for costs, or to make such orders as may be indispensable to give effect to the dismissal. Thompson v. Thompson, 40 Tenn. 527, 1859 Tenn. LEXIS 152 (1859); Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

3. Contesting Validity of Order.

Validity of order dismissing plaintiff's suit may be contested and determined; and, for this purpose, an issue may be made, to be tried by the court with or without a jury. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873).

4. —Fraudulently Procured.

Trial, verdict, and judgment in favor of plaintiff, if the order of dismissal was fraudulently obtained; and there was no error in practice in requiring an issue as to the validity of such order to be made by the pleadings of the parties. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873).

5. Dismissal Properly Allowed.

Dismissal of plaintiff's suit upon his written order, where no objection is made because of fraud. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873); Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

The fact that if dismissal of a suit to invalidate a tax title to certain real estate is allowed “without prejudice” other suits may be brought, thereby causing a cloud on the title to the property in question, is not a sufficient reason to prevent the court in its discretion allowing a voluntary dismissal. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

6. —Assignment of Reasons — Necessity.

Where defendant had notice of application by complainants to dismiss suit to invalidate tax title and defendants objected to dismissal the suit was properly dismissed without prejudice though complainants gave no reason for dismissal, since a reason for dismissal is not required. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

7. —Writing Directory.

Under this section it is not mandatory that a petition or application to dismiss be in writing. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

8. Litigation Tax.

Tax on litigation is not avoided by such dismissal upon compromise before the return day of the writ, because such tax accrues when the suit is commenced; and where the defendant agrees to pay the costs, he is the unsuccessful party, and liable for the tax. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

9. Operative Date of Order.

Dismissal, when established by proof, with or without contest, will relate back to, and be operative from, the day of its execution. Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883).

10. Attorney's Lien.

Dismissal of cause, by parties, in accordance with agreement between them, did not preclude attorney's right to file petition to have court investigate and declare attorney's lien on property obtained by client in the compromise. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

Where the case was dismissed by the parties and the attorneys then filed a petition on original case to have fees declared a lien upon the property and the parties were required by the court to answer but were not served with process, the court was without jurisdiction to determine amount of fees but only jurisdiction to declare a lien by decree or compromise and preserve record evidence of it. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

Collateral References. 20 Am. Jur. 2d Costs §§ 18, 19.

20 C.J.S. Costs §§ 66, 68.

Actual payment of costs as a condition to dismissal under rule or statute providing for voluntary dismissal without prejudice upon such terms and conditions as court deems proper. 21 A.L.R.2d 627, 34 A.L.R.4th 778.

Costs 48.

NOTES TO DECISIONS

1. Notice of Motion for Retaxation.

Where the defendant has paid the costs adjudged against him, before the motion for retaxation of costs is made, he is entitled, under this section, to five days' notice of the application. State v. Hill, 43 Tenn. 98, 1866 Tenn. LEXIS 21 (1866).

2. Judgment Against State for Boarding Jury — Invalidity.

A judgment against the state for costs of boarding jury, rendered at a term subsequent to the termination of the case, is void, and cannot be sustained as under a motion, under this section, to retax costs omitted in taxing the bills of costs. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

3. Appeal Dismissed Without Remand.

Where a chancery case was appealed to the appellate court which dismissed the appeal without remand, a petition filed by the receiver of an estate, in the chancery court, after dismissal of the appeal by the appellate court, cannot be treated as an application for the taxation of costs under this section and § 20-12-108, since the chancery court had lost jurisdiction of the case. James v. Williams, 20 Tenn. App. 420, 99 S.W.2d 831, 1936 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1936).

4. Plea in Abatement.

Costs upon overruling a plea in abatement, not adjudged at the time, could be adjudged when the cause was finally disposed of. Rose v. Bolinger, 25 Tenn. 26, 1845 Tenn. LEXIS 6 (1845).

Collateral References. 20 Am. Jur. 2d Costs § 93.

20 C.J.S. Costs § 288.

Costs 213.

NOTES TO DECISIONS

1. Jurisdiction.

2. —Appellate Court.

To enable the appellate court to correct the taxation of costs in the court below, the motion for such correction or retaxation must first be made in the lower court, its action had thereon, and the motion and judgment entered of record; and the taxation of costs by the inferior court for the attendance of witnesses therein cannot be corrected by the appellate court, without such motion and judgment of record. Sherman v. Brown, 12 Tenn. 560, 12 Tenn. 561, 1833 Tenn. LEXIS 93 (1833); State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881); Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); Troutt v. Alabama G. S. R. Co., 97 Tenn. 364, 37 S.W. 90 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

Appellate court's jurisdiction over the taxation of its own costs is plenary; and, where there is anything in the transcript to correct by, it may correct an erroneous taxation of costs in the inferior court, but not otherwise. State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881); Troutt v. Alabama G. S. R. Co., 97 Tenn. 364, 37 S.W. 90 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

A bill of exceptions is necessary in the appellate court. The refusal of the circuit judge to retax costs upon a motion made before judgment and taxation thereof, which fails to specify the items or grounds of objection thereto, will not be reviewed in the appellate court upon a record containing no bill of exceptions. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

3. —Chancery.

A bill will not lie in chancery to correct the erroneous taxation of costs in a suit in a court of law. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842); Whitesides v. Rayle, 22 Tenn. 205, 1842 Tenn. LEXIS 68 (1842); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

4. Procedure.

5. —Time for Retaxation.

The taxation of costs is at all times under the control of the court; and costs improperly taxed and paid may be retaxed and ordered to be refunded, even at a subsequent term of the court. Williams's Lessee v. Henderson, 1 Tenn. 424, 1809 Tenn. LEXIS 18 (1809); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

A motion to retax the costs before the taxation thereof is premature. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

6. —Allegations of Motion.

The objectionable items should be specified in motion to retax. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

7. —Chancery Court Costs.

An original bill will not lie in the chancery court for the correction of the taxation of costs, as to items wrongfully charged or taxed in the bill of costs by the clerk and master. The remedy is by petition to the chancellor for retaxation of the costs and supersedeas in the meantime as to the erroneous items. Clark v. Stull, 1 Shan. 660 (1876); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

8. —Supersedeas Operation.

Court could order a retaxation of costs and could if necessary award a supersedeas. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842); Clark v. Stull, 1 Shan. 660 (1876).

A rule to correct the taxation of costs is a mere collateral motion, and does not operate, per se, as a supersedeas, and, if not acted on, it will be considered as abandoned. Miller v. Netherland, 31 Tenn. 66, 1851 Tenn. LEXIS 18 (1851).

9. Required Evidence to Justify Retaxation.

Retaxation of costs, so as to embrace omitted fees, will not be allowed unless it shall be made to appear that the services for which the fees are claimed were performed. The statements of the petition for retaxation, and the recitals of the order made thereon setting out the items, do not, without more, afford evidence to justify retaxation. Johnson v. State, 94 Tenn. 499, 29 S.W. 963, 1894 Tenn. LEXIS 62 (1894).

10. Recovery from Incompetent Witness.

Retaxation of costs striking out the item of costs for the attendance of an incompetent witness of the successful party, which has been paid, does not entitle the unsuccessful party to recover it from such witness, for his right of action, if the correction be legally made, is against the successful party. This is based upon the rule that an incompetent witness is entitled to compensation for his attendance, if he be examined. Gray v. Alexander, 26 Tenn. 16, 1846 Tenn. LEXIS 37 (1846).

Collateral References. 20 Am. Jur. 2d Costs §§ 92, 93.

20 C.J.S. Costs § 268.

Costs 211-218.

NOTES TO DECISIONS

1. Construction of Statute.

This section is restricted to making real party liable for costs and does not constitute a rule in evidence. Anderson v. Administrators of Bradie, 15 Tenn. 296, 15 Tenn. 297, 1835 Tenn. LEXIS 1 (1835).

This statute does not multiply the cases in which a suit may be brought in the name of one person for the use of another, nor does it in any manner, except as to the costs, extend the powers of the court. Smith's Ex'rs v. Mabry, 17 Tenn. 313, 1836 Tenn. LEXIS 51 (1836).

Where an insured had assigned her right, title and interest in certain policies to an assignee, a suit on the policies could properly be brought in the name of the insured, as nominal plaintiff, for the use and benefit of the assignee, the real plaintiff, and the assignee since he was a Tennessee resident could properly 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).

2. —Consent of Nominal Plaintiff.

The statute requiring suit for breach and recovery on a contractor's bond to be brought in name of county as payee, for use, it is not necessary to obtain consent of nominal plaintiff. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

Collateral References. 20 Am. Jur. 2d Costs §§ 26, 29.

20 C.J.S. Costs § 113.

Costs 93.

NOTES TO DECISIONS

1. Dismissal Effect.

In action against individual and corporation, in which corporation's plea in abatement was sustained and plaintiff's motion for new trial was overruled, and in which plaintiff perfected an appeal and thereafter entered voluntary nonsuit as to individual defendant, corporate defendant's motion to dismiss appeal was properly sustained on ground that appeal was prematurely prayed, granted and perfected. Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

Where plaintiff perfected an appeal from judgment sustaining plea in abatement filed by corporate defendant and thereafter took voluntary nonsuit as to individual defendant in same action, whereupon corporate defendant moved to dismiss appeal and plaintiff then filed petition for writ of error, nonsuit was properly granted because there had been no valid appeal at time it was taken and judgment on plea in abatement was therefore a final judgment subject to review either by appeal in error or petition for writ of error. Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

2. Settlement After Reversal.

Where a case was settled after reversal of a judgment for defendant, and the cause was dismissed, it was within the court's discretion to award costs to plaintiff, even though he was not the successful party. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908).

Collateral References.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as “prevailing party” or “successful party.” 66 A.L.R.3d 1087.

Costs 48.

NOTES TO DECISIONS

1. Habeas Corpus.

Taxation of costs against the state in habeas corpus proceedings is permitted only when defendant in a criminal proceeding is discharged upon habeas corpus. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

Collateral References. 20 C.J.S. Costs §§ 313-318, 399.

Costs 232.

NOTES TO DECISIONS

1. Want of Jurisdiction.

2. —Generally.

To remedy the defect caused by the rule that where there was no jurisdiction the court could render no judgment for costs, this section was enacted; and, under it, the party whose suit or appeal is dismissed for want of jurisdiction shall be adjudged to pay full costs. Welsh v. Marshall, 14 Tenn. 455, 1834 Tenn. LEXIS 111 (1834); Cartmell v. McClaren, 59 Tenn. 41, 1873 Tenn. LEXIS 23 (1873); Jacobs v. Parker, 66 Tenn. 434, 1874 Tenn. LEXIS 161 (1874); Jackson v. Baxter, 73 Tenn. 344, 1880 Tenn. LEXIS 135 (1880); Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Douglass Bros. v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); Frazier v. Nashville Gas & Heating Co., 164 Tenn. 8, 46 S.W.2d 62, 1931 Tenn. LEXIS 2 (1932). But see State v. Logston, 50 Tenn. 276, 1871 Tenn. LEXIS 97 (1871), not citing the Code and holding that, where a change of venue is illegally ordered, and the court to which the change is ordered has, in consequence, no jurisdiction, it can render no judgment for the costs of a trial which has taken place there, nor can the court of the county from which the cause came; and neither court has any power of retaxation of the costs.

3. —Judgment Under Unconstitutional Statute.

Where a judgment is void and reversed because the judge who rendered the same was acting under an unconstitutional statute, the appellant is entitled to a judgment against the appellee for the costs. State v. Simpson, 13 Tenn. 364, 13 Tenn. 365, 1833 Tenn. LEXIS 188 (1833).

4. —Jurisdiction of Subject Matter.

The authorities holding that a court has no power to adjudge costs are limited to cases where there was no jurisdiction of the subject matter, as contradistinguished from jurisdiction over the person. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

If the court has jurisdiction of the subject matter, it has power to adjudge the costs though the cause is remanded by the appellate court and suit is ordered dismissed upon defendant's plea raising question of venue for action of divorce. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

5. —Suit in Wrong County.

Whenever a court has jurisdiction of the subject matter, there is jurisdiction to tax the expenses of receivership as costs within meaning of this section, although the cause is properly dismissed for improper venue. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

Where suit to wind up an insolvent corporation was brought in wrong county and receiver was appointed, the court had jurisdiction to allow such receiver a fee for the work done by him. Crosby Milling Co. v. Grant, 7 Tenn. App. 162, — S.W. —, 1927 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1927).

6. —Sureties on Prosecution Bond.

Where the court in which instituted had no jurisdiction of an action, the sureties on a prosecution bond should not be charged with the costs of an appeal. Reynolds v. Hamilton, 18 Tenn. App. 380, 77 S.W.2d 986, 1934 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1934).

7. Appeal.

8. —Appeal Bond Lacking.

Costs may be adjudged against appellant where case is dismissed for insufficiency of appeal bond. Markham v. Haddad, 2 Tenn. App. 370, — S.W. —, 1926 Tenn. App. LEXIS 31 (Tenn. Ct. App. 1926).

On dismissal of appeal from justice of the peace (now general sessions court) to the circuit court, for want of appeal bond, circuit court was justified in adjudging the costs against the appellant. Baxter v. State, 157 Tenn. 532, 11 S.W.2d 854, 1928 Tenn. LEXIS 216 (1928).

Where an appeal bond is filed too late to be effective to bring case before the Court of Appeals, the surety on the appeal bond is not liable on same, though appellant is. Physicians Mut. Health & Acci. Ins. Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381, 1932 Tenn. LEXIS 29 (1932).

9. —Premature Appeal.

On dismissal of appeal as premature because no judgment had been entered in court below, costs of the attempted appeal should be against the appellant. Wind Rock Coal & Coke Co. v. Robbins, 1 Tenn. App. 734, — S.W. —, 1926 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1926).

10. —Appeal from Nonappealable Order.

The order of the chancery court refusing to set aside an appealable decree is not appealable, and an attempted appeal from such order will be dismissed with costs adjudged against appellant. McClister v. Milligan, 1 Tenn. App. 258, — S.W. —, 1925 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1925).

11. —Transcript Inadequate.

Costs may be adjudged against appellant where dismissal is because transcript does not show judgment below to be final. Cobble v. International Agricultural Corp., 2 Tenn. App. 356, — S.W. —, 1925 Tenn. App. LEXIS 112 (Tenn. Ct. App. 1925).

Costs may be adjudged against appellant where the case is dismissed for inadequate transcript. Smartt v. Woodlee, 5 Tenn. App. 59, — S.W. —, 1927 Tenn. App. LEXIS 35 (Tenn. Ct. App. 1927).

12. —Both Parties Attempting to Appeal Too Late.

Where plaintiff and defendant each attempted to appeal after it was too late to appeal, the costs of the attempted appeal were divided equally between them and taxed accordingly. Lee v. Sanders, 7 Tenn. App. 167, — S.W. —, 1927 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1927).

Decisions Under Prior Law

1. Rule Before Statute Enacted.

Before this statute, where there was no jurisdiction, the rule was that the court had no power to do more than to strike the cause from the docket, and could render no judgment for costs. Rogers v. Hill, 9 Tenn. 400, 1830 Tenn. LEXIS 34 (1830); Taul's Adm'r v. Collinsworth, 10 Tenn. 579, 1831 Tenn. LEXIS 20 (1831); Turner v. Farley, 11 Tenn. 299, 11 Tenn. 300, 1832 Tenn. LEXIS 46 (1832); Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Douglass v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); Coleman v. Coleman, 190 Tenn. 286, 229 S.W.2d 341, 1950 Tenn. LEXIS 480 (1950).

Collateral References. 20 C.J.S. Costs § 399.

Costs 155.

NOTES TO DECISIONS

1. Malicious Prosecution Action Abated.

Costs adjudged against plaintiff, upon abatement of action for malicious prosecution, by the death of the defendant pending the suit or the plaintiff's appeal from a verdict and judgment in favor of the defendant; and the costs of both the court below and of the appeal in the supreme court will be adjudged against the plaintiff and his sureties upon his respective prosecution and appeal bonds. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874).

Collateral References. 20 Am. Jur. 2d Costs § 17.

20 C.J.S. Costs § 65.

Costs 45.

NOTES TO DECISIONS

1. Trespass Quare Clausum Fregit Not Covered.

Trespass quare clausum fregit, an action of trespass for injury to land, is not included in this section. Winters v. McGhee, 35 Tenn. 128, 1855 Tenn. LEXIS 28 (1855).

2. Defendant's Recovery.

Where the plaintiff does not recover more than five dollars as damages, the defendant may recover judgment against the plaintiff for the balance of the costs. It is immaterial whether the case is tried by a jury or by the judge without the intervention of a jury. Steffner v. Burton, 87 Tenn. 135, 10 S.W. 358, 1888 Tenn. LEXIS 45 (1888).

3. Assault and Battery Cases.

This statute applies, in an action for assault and battery, regardless of whether the injury did or did not cause death. Jenkins v. Hankins, 98 Tenn. 545, 41 S.W. 1028, 1896 Tenn. LEXIS 247 (1897), superseded by statute as stated in, Gardner v. Steinforth, — S.W.2d —, 1994 Tenn. App. LEXIS 87 (Tenn. Ct. App. Feb. 25, 1994).

4. Charge as to Damages.

It is error for the trial judge to instruct the jury in a suit for a malicious prosecution of a felony that they might award nominal damages, such as one cent and such as would carry the costs, without further stating to the jury that a verdict not exceeding five dollars would not carry full costs. Mullins v. Hudson, 2 Tenn. Civ. App. (2 Higgins) 352 (1911).

5. Water Overflow.

In suit to recover damages for overflow of water the plaintiff was not limited to recovery of costs in amount awarded for damages where record did not affirmatively show that overflow was due to erection or construction of grist mill, but was entitled to recover full amount of costs. Gray v. Tate, 30 Tenn. 64, 1850 Tenn. LEXIS 54 (1850).

Collateral References. 20 Am. Jur. 2d Costs §§ 14, 15, 20, 61.

20 C.J.S. Costs § 23.

Attorneys' fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution. 21 A.L.R.3d 1068.

Damages 70-73.

NOTES TO DECISIONS

1. Costs Incident to Question of Usury Covered.

The entire costs of the litigation in which usury is discovered shall not be paid by the party receiving or reserving it, but only the costs incident to the litigation over the question of usury. Where the complainant succeeds in recovering on his debt purged of the usury, he is entitled to recover the costs of the cause, except the costs incident to the question of usury, with which he must be taxed. Ronner v. Welcker, 99 Tenn. 623, 42 S.W. 439, 1897 Tenn. LEXIS 73 (1897).

2. Cross Bill to Enforce Usurious Note.

The complainant in a cross bill to enforce a deed of trust securing a note, a sale under which was enjoined, is properly charged with all costs, except that of the sale, where his unfounded claim to retain all usurious payments made more than six years before the commencement of the suit, without applying them to the principal, was the cause of the litigation. Tyler v. Walker, 101 Tenn. 306, 47 S.W. 424, 1898 Tenn. LEXIS 65 (1898).

Where a cross bill, alleging usury, is dismissed, because the usurious transactions, though proved, have been settled, the cross defendant must be taxed with the cost of the cross bill, though he was successful in his defense. Security Bank & Trust Co. v. Goldfarb, 140 Tenn. 251, 204 S.W. 428, 1918 Tenn. LEXIS 37 (1918).

3. Mortgage Securing Usurious Note — Foreclosure.

It is error to decree costs against defendants in a suit to foreclose a mortgage executed to secure a usurious note. Kelton v. Brown, 39 S.W. 541, 1897 Tenn. Ch. App. LEXIS 3 (1897).

4. Attorney Fees — Instructions.

Where bill of exceptions and assignments of error did not contain appropriate portion of charge made to jury, no consideration was given complainant's assignment that trial court erred in charging the jury that when they found the amount of the note, they should add 10 percent thereto for attorney's fee, as this was violation of statute providing that persons taking usury shall pay all costs. Crabb v. Cole, 19 Tenn. App. 201, 84 S.W.2d 597, 1935 Tenn. App. LEXIS 34 (Tenn. Ct. App. 1935).

NOTES TO DECISIONS

1. Discretion.

2. —Division of Costs.

Where a large record was unnecessarily built up in a case where deep feeling was manifested, the costs as taxed by the chancellor were sustained as not based on an abuse of his discretion. Mathis v. Campbell, 22 Tenn. App. 40, 117 S.W.2d 764, 1938 Tenn. App. LEXIS 3 (Tenn. Ct. App. 1938).

3. —Equity Considered.

Where daughter as a poor person appealed proceeding to establish trust in favor of children on property of deceased mother the supreme court exercised its discretion and assessed costs against the estate of the successful party. Askew v. Mills, 196 Tenn. 527, 268 S.W.2d 569, 1954 Tenn. LEXIS 415 (1954).

4. Neither Party Successful.

Where neither party is successful within the meaning of § 20-12-101, costs should be taxed under this section. Garrison v. Trotter, 114 Tenn. 526, 86 S.W. 1078, 1904 Tenn. LEXIS 106 (1904).

Where the plaintiff may not be the “successful party” and the defendant was certainly not the “successful party,” because he had acknowledged his liability by paying a certain sum of money in settlement of the claim sued on, the case comes within the discretion of the court; and the court has authority to tax the costs to either party, or to divide them, as the equity of the case may demand; and the exercise of this discretion, in the absence of great abuse, will not be disturbed. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908). See Turley-Bullington Mtg. Co. v. Brown, 4 Tenn. App. 500, 1926 Tenn. App. LEXIS 201 (1926); Lewis v. Koehn, 5 Tenn. App. 530, — S.W. —, 1927 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1927).

5. Unnecessary Witnesses.

It is the exercise of the court's sound discretion to tax the successful party with the costs of his unnecessary and cumulative witnesses rejected for that reason. Justices of Greene County v. Graham, 65 Tenn. 77, 1873 Tenn. LEXIS 305 (1873); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

6. Unauthorized Costs Not Allowable.

This section confers no discretion upon the courts to allow costs which are not expressly authorized. It only authorizes the court to exercise its discretion in adjudging costs as between the parties, which have clearly accrued, if any case should occur where the law has not directed how they shall be adjudged. Perkins v. State, 68 Tenn. 1 (1876); Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117, 1900 Tenn. LEXIS 25 (1900).

7. Affirmance Because of Remittitur.

Where the appellee is forced to a remittitur, in order to obtain an affirmance of the judgment below, the costs will be divided, for, in such case, both parties are partly successful, and the costs are in the discretion of the court. Schoonover v. Stillman, 3 Shan. 574 (1875); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

8. Costs Assessed Against Successful Parties.

In declaratory judgment proceeding brought to determine the constitutionality of an act pursuant to which defendant city had leased a building to defendant corporation, where the record disclosed that both the city and the corporation wanted the constitutionality of the act tested and cooperated for the accomplishment of that end, the suit was clearly for their benefit, and equity within the law would permit the assessment of all costs in all courts against these two defendants, notwithstanding that a decree in their favor was sustained on appeal. Holly v. Elizabethton, 193 Tenn. 46, 241 S.W.2d 1001, 1951 Tenn. LEXIS 331 (1951).

9. Removal of Case to Federal Court.

This section does not authorize a judgment for costs against the applicant, upon the removal of a cause from the state court to the federal court. Williams v. Adkins, 46 Tenn. 615, 1869 Tenn. LEXIS 107 (1869).

NOTES TO DECISIONS

1. Construction with Other Acts.

This statute is given effect in § 20-12-101. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

It was not the legislative intent to curb the discretion afforded the trial court in awarding fees and costs under the provisions of this section and Tenn. R. Civ. P. 17.03 and 54.04 by the subsequent enactment of § 34-12-117. In re Webb, 675 S.W.2d 176, 1984 Tenn. App. LEXIS 2724 (Tenn. Ct. App. 1984).

“Proceedings” means all acts and events that occur as a result of the dismissed claim(s) from the date the dismissed claim(s) is filed; thus, when a trial court grants a motion to dismiss, the statute requires the trial court to award the party or parties against whom the dismissed claims were pending at the time the motion to dismiss was granted the costs and reasonable attorney fees incurred by the party due to the dismissed claims from the date those claims were filed. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

Taken together, T.C.A. § 20-12-119(c)(1) and (c)(3) clarify that when a motion for failure to state a claim is granted, the trial court shall find that attorney's fees are recoverable to the prevailing party; however, the trial court may not proceed past that point inasmuch as the award of attorney's fees is stayed. A trial court's order can be final despite the outstanding issue of recoverable attorney's fees when those fees are awarded by virtue of § 20-12-119(c). Irvin v. Green Wisehomes, LLC, — S.W.3d —, 2021 Tenn. App. LEXIS 63 (Tenn. Ct. App. Feb. 26, 2021).

2. Cases to Which Rule Applicable.

This statute is applicable to all civil suits in courts of law. It applies to appeals, appeals in error, and writs of error from all the inferior courts. State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 1918 Tenn. LEXIS 84 (1919).

In a conservatorship action in which an attorney ad litem was appointed to represent respondent, the trial court did not have discretion to charge any portion of the attorney ad litem's fees to any party but respondent because, although T.C.A. § 20-12-119 applied to all civil cases, it was a general statutory provision that was superseded by the specific statutory provision in T.C.A. § 34-1-125(b) mandating that the costs of the attorney ad litem were to be assessed against respondent. In re Allen, — S.W.3d —, 2020 Tenn. App. LEXIS 160 (Tenn. Ct. App. Apr. 15, 2020).

3. Persons Not Chargeable.

Where the record discloses that one of the defendants could not be held liable for anything, it was error to tax such defendant with costs. Ellett v. Embury & Maury, 142 Tenn. 444, 217 S.W. 818, 1919 Tenn. LEXIS 71 (1919).

4. Discretion of Court.

A trial judge has broad discretion in the adjudication of costs, according to his view of the equities of the case. His action is reviewable only for manifest abuse. Lewis v. Koehn, 5 Tenn. App. 530, — S.W. —, 1927 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1927); Conatser v. Reagan, 7 Tenn. App. 450, 1928 Tenn. App. LEXIS 64 (1928).

Costs of court are a discretionary matter for the court that tries the case to determine. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

In ejectment proceedings wherein purchasers of land at bankrupt sale sought to establish fee simple interest in such land but failed, court in its discretion could tax fee of guardian ad litem who represented minor children of bankrupt as part of costs assessed against such purchasers under decree holding that such children had a contingent interest in the property. Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 1956 Tenn. LEXIS 445 (1956).

Where certiorari was brought to review action of city clerk in refusing to certify recall petition to election commissioners and thereafter party whose recall was sought intervened in proceedings it was within the power of the trial judge to adjudge the costs primarily against the intervening petitioner and secondarily against the defendant. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

5. —Insurer Concedes Liability.

Where insurer conceded liability as insurer to such persons which court should determine were beneficiaries and court finally concluded following appeal that beneficiaries were widow of valid first marriage, legitimate child of first marriage, illegitimate child of widow of void second marriage, and child born of void second marriage following death of employee it was equitable that two thirds of the costs should be charged against benefits allowed children of second wife, and one third of the costs charged to first wife and her child. Winfield v. Cargill, Inc., 196 Tenn. 133, 264 S.W.2d 584, 1954 Tenn. LEXIS 352 (1954).

6. —Limitations Causing Dismissal.

Although an action for workers' compensation is dismissed, costs may be adjudged against the employer where the right is admitted except for the bar of the statutory limitation. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

7. —Executor's Failure to Submit Previous Will.

When an executor in two purported wills fails to produce both in a contest over the later one, he may be adjudged to pay all costs incurred in a contest over the earlier one not submitted. Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934).

8. —Condemnation Proceedings.

In a condemnation proceeding the property owners were properly adjudged to stand the cost of appeal, where the city, which was condemning the property for public use, presenting its appeal in the trial court in proper form, was erroneously denied the right to present rebuttal evidence as to the value of the property on trial de novo, and the case was reversed and remanded for a new trial by the supreme court. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

9. —Discretionary Costs.

Under the holding on appeal, the guardian ad litem was no longer the prevailing party and the award of discretionary costs against the insurer was reversed. Progressive Casualty Ins. Co. v. Chapin, 243 S.W.3d 553, 2007 Tenn. App. LEXIS 410 (Tenn. Ct. App. July 5, 2007).

10. —Will Contest.

See notes under heading “Particular Actions Recoverable — Will Contest,” § 20-12-101, Notes to Decisions, Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

Where the judge has reason to believe that the proponent of a codicil was guilty of fraud and undue influence in the execution of the codicil, it is not an abuse of discretion to assess costs against the proponent. Hager v. Hager, 17 Tenn. App. 143, 66 S.W.2d 250, 1933 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1933).

Costs of will contest could be assessed against estate even though contest failed where testator had committed suicide within two months after execution of will and where contest could conceivably result in some advantage to executors and trustees particularly in administration of trust which would not terminate for 15 years. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

On appeal in will contest where plaintiff-in-error rendered service to the estate by obtaining evidence from which jury could more intelligently reach a decision as to the true last will and testament of decedent, costs would be divided between plaintiff-in-error and defendant-in-error even though decision of lower court was affirmed. Donnelly v. Hendrix, 49 Tenn. App. 361, 355 S.W.2d 116, 1960 Tenn. App. LEXIS 136 (Tenn. Ct. App. 1960).

Where the language of the will reasonably required litigation for the mutual benefit of all beneficiaries, it was proper to apportion cost among all those party to the action. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

11. —Proceedings to Remove Comatose Patient from Respirator.

Where plaintiffs brought a successful action for a declaratory judgment granting them the authority to order that a comatose patient be removed from a life-sustaining respirator, and where patient's physician was joined as a necessary defendant, the court held that the equities of the case required that all costs, including the guardian ad litem's fee, be paid by the plaintiffs who initiated the action, rather than by the physician. Dockery v. Dockery, 559 S.W.2d 952, 1977 Tenn. App. LEXIS 309 (Tenn. Ct. App. 1977).

12. —Fees.

This section authorizes the apportionment of guardian ad litem fees between the litigants as the equities of the case demand. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

Compensation for legal services rendered by solicitors and guardians ad litem must not be out of proportion to the value of the property involved in the litigation and it is intolerable to allow the property that is subject to litigation to be devoured by fees. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

A fee award as special master is a fee within the discretion of the trial judge authorized by this section. In re Robby's Pancake House, Inc., 24 B.R. 989, 1982 Bankr. LEXIS 3000 (Bankr. E.D. Tenn. 1982).

The trial court did not abuse its discretion in commuting the widow's benefits, but erred in commuting the surviving children's benefits to a lump sum and in assessing the guardian ad litem's fees against the children's award. Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 1992 Tenn. LEXIS 489 (Tenn. 1992).

There is no bright line rule which limits discretionary costs for expert witnesses to those fees incurred from actual testimony. Stalsworth v. Grummons, 36 S.W.3d 832, 2000 Tenn. App. LEXIS 279 (Tenn. Ct. App. 2000).

13. —Declaratory Judgment.

In action under declaratory judgment law, where complainants are entitled to no more relief than a declaration of their rights and status for their own protection, the costs should be paid by the complainants. Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565, 1927 Tenn. LEXIS 114 (1927).

14. Apportionment in Various Courts.

While the plaintiff was successful in the justice court, circuit court, and court of appeals, and the defendant in the supreme court secured a reduction to the amount of liability admitted, the defendant should pay the justice court costs, and the plaintiff the costs of the circuit court, of the court of appeals, and the supreme court, although the question of legal tender by the defendant before the justice was doubtful. Southern R. Co. v. Williams, 141 Tenn. 46, 206 S.W. 186, 1918 Tenn. LEXIS 66 (1918).

15. Appeal.

16. —Review of Discretion Below.

Since the taxation of costs is discretionary now with the lower courts in all civil cases, the supreme court will not review their action nor entertain appeal for that purpose alone, except under very extraordinary circumstances. State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 1918 Tenn. LEXIS 84 (1919).

Taxation of costs is discretionary with the lower courts and the supreme court is unable to review their action except in very extraordinary circumstances where there is a manifest abuse of discretion. Lewis v. Bowers, 216 Tenn. 414, 392 S.W.2d 819, 1965 Tenn. LEXIS 587 (1965).

Mere fact that action was brought on pauper's oath did not render circumstances so extraordinary as to permit supreme court to review action of chancellor in assessing costs against complainant. Lewis v. Bowers, 216 Tenn. 414, 392 S.W.2d 819, 1965 Tenn. LEXIS 587 (1965).

17. —Costs on Appeal.

Where an appeal from a decree of the chancellor, entered on his own motion, was necessary for the complainant's benefit, but was not made necessary by the defendant's conduct, he could not be charged with appeal costs which must necessarily be paid by the appellant. Davis v. Andregg, 149 Tenn. 245, 259 S.W. 547, 1923 Tenn. LEXIS 97 (1924).

Property owner was liable for costs on successful appeal by city based on error of circuit court in refusing to allow city to introduce evidence in value on rebuttal after failing to do so in opening its case. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

Where suit for construction of will by grandchild was beneficial to grandmother since chancery court held in her favor the costs of appeal by grandchild to supreme court who affirmed was taxed to grandmother. Long v. Wood, 194 Tenn. 511, 253 S.W.2d 731, 1952 Tenn. LEXIS 414 (1952).

18. Requirements.

Trial court properly denied a motion by a company's owners for attorney's fees because their renewed motion did not qualify as the motion referenced in the statute pursuant to which fees could be awarded. Cored, LLC v. Hatcher, — S.W.3d —, 2020 Tenn. App. LEXIS 444 (Tenn. Ct. App. Oct. 6, 2020).

21. Attorney's Fees Precluded.

Mother and minor child were seeking to dismiss the father's petition for a lack of subject matter jurisdiction, in the case of the appeal in the nature of a writ of error, and for lack of personal jurisdiction, in the case of the petition to enroll a foreign judgment; they were not seeking to dismiss the petition for failure to state a claim upon which relief may be granted, and thus the statute was not an appropriate basis for awarding attorney fees. New v. Dumitrache, — S.W.3d —, 2019 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 12, 2019), rev'd, 604 S.W.3d 1, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

Appellant did not delineate for the trial court the amount of fees incurred for the hearing on the motion to dismiss and thus failed to meet her burden of proof; the trial court declined to value those fees absent the requisite proof, which was within its discretion to do, and no abuse of discretion was found. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

22. When Attorney Fees Permitted.

Statute requires that there be an unappealable final decision before a trial court can award attorney fees pursuant to the statute; in this case, the May 24, 2019 order resolved all claims and neither party appealed or filed a post-judgment motion. Thus, the order became final and unappealable on June 23, 2019, and because an award of fees was stayed until that time, appellant's motion for fees filed two weeks later was not too late to entitle her to an award of fees under the statute. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

Amended countercomplaint was the latest countercomplaint in which the breach of contract claim was made and appellant filed her motion to dismiss the amended countercomplaint within 60 days of the time she was served, and thus the exception set forth in T.C.A. § 20-12-119(c)(5)(B) regarding attorney fees did not apply. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

Because the trial court dismissed the breach of contract claim in the amended countercomplaint, appellant was entitled to an award of attorney fees she incurred as a result of the breach of contract claim from the date the amended countercomplaint was filed, and the trial court properly excluded the requested attorney fees that were incurred prior to that date. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

Trial court did not abuse its discretion in excluding duplicate fees; the court concluded that duplicate time entries for two attorneys to perform the same work on the motion to dismiss were to be excluded because they were unnecessary and unreasonable in light of the single, narrow legal issue presented and the relative dollar amount at issue on the dismissed breach of contract claim. Donovan v. Hastings, — S.W.3d —, 2020 Tenn. App. LEXIS 483 (Tenn. Ct. App. Oct. 30, 2020).

Collateral References. 20 Am. Jur. 2d Costs §§ 10-12, 94.

20 C.J.S. Costs § 13.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs taxable against decedent's estate. 30 A.L.R.2d 1148.

Apportionment of costs in litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

Apportionment of cost where judgment is against plaintiff on his complaint and against defendant on his counterclaim. 75 A.L.R. 1400.

Who is the “successful party” or “prevailing party” for purposes of awarding costs where both parties prevail on affirmative claims. 66 A.L.R.3d 1115.

Costs 11-15, 42(a).

NOTES TO DECISIONS

1. Construction with Other Acts.

2. —Libel.

Under § 20-12-127, “slanderous words” are comprehensive enough to embrace written defamation, and an action for libel may not be brought or an appeal taken on pauper's oath, but security for costs must be given. Eden v. Celsor, 172 Tenn. 598, 113 S.W.2d 745, 1937 Tenn. LEXIS 103 (1938).

3. —Scope of Bond.

Under § 20-12-126, a variance between the terms of a prosecution bond, in an equity case, as executed, and the terms of this section, is not material. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

4. Construction.

Trial court's order requiring that future pro se complaints filed by a litigant be referred to a Special Master for a determination of whether prior court costs had been satisfied and for the filing of a written report recommending whether the complaint should be allowed to proceed or be dismissed was a valid exercise of the trial court's authority. In re Green, — S.W.3d —, 2011 Tenn. App. LEXIS 543 (Tenn. Ct. App. Oct. 4, 2011).

5. —Strict Construction.

This section contravenes the common law and is not to be extended by construction. Kennedy v. Jack, 9 Tenn. 82, 1824 Tenn. LEXIS 3 (1824).

6. —Surety Liability.

Surety on bond for prosecution of suit at law is not liable for costs beyond the court in which the suit is instituted. Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883); Sullivan v. Tigert, 1 Tenn. App. 262, — S.W. —, 1925 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1925).

Where complainant was the successful party, obtaining decree against defendant for costs, and upon issuance of execution against defendant it was returned nulla bona, the surety on prosecution bond is not liable on motion by clerk and master in an equity case for costs accrued at complainant's instance. The terms of the bond are met, as to surety, when the court decreed in favor of complainant and awarded no costs against complainant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

The statute was always construed to mean that the surety was not liable for costs beyond the judgment of the court in which the suit was instituted. And therefore if the suit was successfully prosecuted to judgment in that court the liability of the surety ceased. So strictly was the liability of the surety construed, that if the suit was eventually prosecuted with success, the surety was not liable for the costs of a nonsuit suffered by his principal in the progress of the cause. Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

The surety's liability on the prosecution bond is limited to costs adjudged against his principal by the court in which the suit was instituted. When the probate judge adjudged the costs against the opposite party, not his principal, the surety was discharged. Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

7. —Next Friend Suit.

A person suing as next friend of a minor is required to secure costs before filing suit. Green v. Harrison, 35 Tenn. 131, 1855 Tenn. LEXIS 29 (1855).

8. Municipalities — Cost Bonds By.

Municipal corporations must give bonds for costs, and they cannot be exempted therefrom by a statute not exempting individuals. Memphis v. Fisher, 68 Tenn. 239, 1877 Tenn. LEXIS 29 (1877).

9. Omissions Not Invalidating Bond or Recognizance.

Prosecution bond is good without stating the nature of the action, where otherwise in proper form and properly conditioned. Broyles v. Blair, 15 Tenn. 278, 15 Tenn. 279, 1834 Tenn. LEXIS 41 (1834); Chanie v. Bull, 16 Tenn. 219, 1835 Tenn. LEXIS 81 (1835).

Recognizance or cost bond is good without naming the payee, if the parties to the suit are named, and the surety agrees to the defendant's security for costs, for this certainly means that the bond or recognizance is security for the adverse party. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859).

A recognizance not binding to “prosecute the suit with effect,” nor in terms made payable “to the opposite party,” is good, for these omissions may be supplied by intendment of law. Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

Omissions of penalty do not invalidate the recognizance, where the undertaking of the surety is that his principal shall pay and satisfy whatever judgment the court may render in the case, for this is a substantial compliance with the law. Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

10. —Recognizance in Penalty Larger than Prescribed by Law.

Recognizance in larger penalty than that prescribed by law is not thereby invalidated, as a bond for a larger sum than that required in a will contest is valid. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859).

11. —Recognizance as Substitute for Bond.

A recognizance acknowledged in open court, and entered of record, may well be substituted for a prosecution bond, for an undertaking by recognizance for costs is as good and binding as if by bond, because a recognizance is an obligation of record, entered into before the court, and is, for all practical purposes, of equal validity and effect as a formal bond. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859); Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

12. Bond Lost.

Plaintiff, who had previously given bond, was not required to give new bond where bond had been lost by clerk. Jones v. Kearns, 8 Tenn. 241, 8 Tenn. 242, 1827 Tenn. LEXIS 42 (1827).

13. Surety Liability.

Surety on plaintiff's bond in trial court where plaintiff won was not liable for costs of defendant on successful appeal. Hawkins v. Thornton, 9 Tenn. 146, 1829 Tenn. LEXIS 28 (1829).

Collateral References. 20 Am. Jur. 2d Costs §§ 37-46, 50.

20 C.J.S. Costs § 127.

Assignment of judgment as carrying rights of assignor as to cost bond. 63 A.L.R. 292.

Constitutionality, construction, and application of statutes requiring security for costs or expenses in case of stockholder's action in right of corporation. 159 A.L.R. 978.

Election contest or recount, security for costs or reimbursement for expenses incident to. 106 A.L.R. 936.

Habeas corpus, security for costs in. 81 A.L.R. 154.

Interlocutory order of one judge concerning security for costs as binding on another judge in same case. 132 A.L.R. 72.

Leave of court as prerequisite to action on bond for costs. Bowlin v. Citizens' Bank & Trust Co., 131 Ark. 97, 198 S.W. 288, 1917 Ark. LEXIS 116, 2 A.L.R. 575 (Ark. 1917).

Nonresident's duty to furnish security for costs as affected by joinder or addition of resident. 158 A.L.R. 737.

Statute regarding security for costs as mandatory or permitting exercise of discretion. 84 A.L.R. 252.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action. 90 A.L.R.2d 448.

Waiver of statute or court rule requiring nonresident plaintiff to give security for costs. 8 A.L.R. 1510.

What is an action within statute requiring security for costs. 131 A.L.R. 1476.

Costs 118.

NOTES TO DECISIONS

1. Failure to Take Proper Bond — Liability of Clerk.

The clerk is not liable for defective appeal bond taken in the presence of the court and parties, or in the presumed presence of the court. McAlister's Adm'rs v. Scrice, 15 Tenn. 276, 15 Tenn. 277, 1834 Tenn. LEXIS 40 (1834).

The clerk is liable to the persons aggrieved by his failure to take proper prosecution bond; and he may be sued without suing the sureties, and before suit against any third person to ascertain the damages sustained. Pass v. Dibrell, 16 Tenn. 470, 1835 Tenn. LEXIS 110 (1835); Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

2. Petition Against Clerk in Pending Suit.

Parties entitled to a fund in the hands of the clerk and master may, without giving security for costs, file a petition against him, or if he be dead, against his personal representative and the sureties on his official bond, praying process and appropriate relief. Ex parte Yowell, 54 Tenn. 561, 1872 Tenn. LEXIS 85 (1872).

3. Appellate Jurisdiction of Original Application.

It is not within the appellate jurisdiction to make rules upon parties to justify or give new security on process sued out in the court below, for this section only applies to the inferior courts in such cases. This is true where no action of the court below was evoked, but if such action was properly invoked, and improperly refused, the supreme court will revise the error. Stewart v. Wilcox, 69 Tenn. 81, 1878 Tenn. LEXIS 47 (1878).

NOTES TO DECISIONS

1. Division of Costs.

In proceeding to impose mechanic's and furnisher's lien upon building and lot and to sell such property to satisfy such lien, chancellor did not abuse his discretion in apportioning costs one-third to the original claimant, one-third to other claimants brought in under cross bill in nature of a general lienholder's bill and one-third to property owners. Bain-Nicodemus, Inc. v. Bethay, 40 Tenn. App. 487, 292 S.W.2d 234, 1953 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1953).

Collateral References. 20 Am. Jur. 2d Costs §§ 38, 39, 50.

20 C.J.S. Costs § 136.

Costs 153.

NOTES TO DECISIONS

1. “At Any Stage” — Phrase Construed.

Rule “at any stage of the cause” manifestly means at any time before the judgment in the court below. Stewart v. Wilcox, 69 Tenn. 81, 1878 Tenn. LEXIS 47 (1878); Tennessee Cent. Ry. v. Vance, 3 Tenn. App. 152, 1926 Tenn. App. LEXIS 81 (1926).

2. Failure to Comply with Rule.

The rule is in force only for the time limited, and on failure to comply, judgment of dismissal may be rendered at the term when the rule was to be complied with, but not afterwards. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

Though the rule is made imperative that the suit shall stand dismissed unless the additional bond is made by a day certain, still there must be a judgment of the court actually dismissing the suit for such failure, after the failure has occurred, and during the term of the court. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

3. Justification of Present Sureties.

While the usual form in such rule is to allow the party to justify his present sureties or give new sureties, the order or rule may be made in either form, under this section; and if the rule be to give new surety, the party cannot object that it does not allow him to justify his present sureties, unless he offers to do so. Creamer v. Ford, 48 Tenn. 307, 1870 Tenn. LEXIS 53 (1870).

4. Tender During Term.

It is error to refuse the security if tendered at the same term, although after the time limited, but before the final judgment of the court ordering the suit to be dismissed. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850); Sharp v. Miller, 35 Tenn. 42, 1855 Tenn. LEXIS 9 (1855).

5. Rule After Remand and Taking of Account.

The motion for a rule comes too late in a case where the bill was filed for a partnership account, after a final decree was rendered which was affirmed with modification by the supreme court, and the account retaken after the remand. Paul v. Hill, 3 Cooper's Tenn. Ch. 342 (1877).

6. Extension or Continuance of Rule.

The rule to justify or give other security may be extended by the court during the term at which the compliance was required. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850); Smith v. Roby, 53 Tenn. 546, 1871 Tenn. LEXIS 393 (1871) (the rule may be continued by the court).

7. Second Rule — Grounds.

After the plaintiff has once, under a rule, given bond with six sureties, it is error to make a second rule upon the plaintiff to justify or give other security, upon the ground merely that two of the former sureties were insolvent, when from the silence of the affidavit, it was impliedly conceded that the remaining four sureties were solvent and sufficient. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

After the circuit judge has once required the plaintiff to increase the penalty of his bond and to give new sureties, and has accepted such bond with such sureties, the judge cannot be required to entertain another motion for a rule of the plaintiff to again increase the penalty of the bond and to give additional sureties, upon affidavit stating no new facts or changed circumstances. Greer v. Whitfield, 72 Tenn. 85, 1879 Tenn. LEXIS 8 (1879).

Collateral References. 20 Am. Jur. 2d Costs § 45.

20 C.J.S. Costs §§ 125, 158.

Costs 134.

NOTES TO DECISIONS

1. Prosecution Surety — Extent of Liability.

Plaintiff's successful prosecution of his suit at law to judgment discharges the undertaking of the surety on his prosecution bond. Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865); Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883), overruling Clerk's Motions for Judgments for Costs, 59 Tenn. 152, 1873 Tenn. LEXIS 39 (1873).

Whenever, in the progress of the particular cause, costs are adjudged against the principal, the judgment shall also be against the surety. But the statute does not amend § 20-12-137, which contemplates a new proceeding, and, therefore, does not make the surety of the successful party liable for the costs of his principal. Deaton v. Mulvaney, 69 Tenn. 73, 1878 Tenn. LEXIS 44 (1878); Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883).

The surety on the prosecution bond of a plaintiff successful in the circuit court is not liable for costs of appeal, upon reversal of the case by the supreme court, but he is liable for the costs of the circuit court, for which the supreme court may render judgment. Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883).

A surety on the prosecution bond engages only to pay costs adjudged against the complainant. He does not engage to pay complainant's costs adjudged against the defendant which those entitled to costs cannot make out the defendant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

Where after appeal to circuit court from general sessions court on pauper's oath, defendant brought action by cross summons and filed cost bond for successful prosecution of the action, surety was not liable on cost bond for amount of judgment rendered against defendant in original action. McCalla v. Nelson, 44 Tenn. App. 164, 313 S.W.2d 462, 1956 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1956).

While the rule of stricti juri prevents the court from extending the liability of a surety beyond any express limitations in his obligation, the rule should not be used to refine away plain terms. Major v. General Motors Corp., 742 F. Supp. 1355, 1990 U.S. Dist. LEXIS 11062 (M.D. Tenn. 1990).

2. Successful Complainant in Chancery.

The costs in chancery may be adjudged against the successful party and his surety, in the sound discretion of the chancellor, and the surety for costs undertakes with reference to this discretionary power of the chancellor and subject to its exercise. Glaze v. Eason & Blair, 10 Tenn. 301, 1829 Tenn. LEXIS 14 (1829); Wray v. Williams, 10 Tenn. 302, 1829 Tenn. LEXIS 15 (1829); Allison v. Stephens, 39 Tenn. 251, 1858 Tenn. LEXIS 288 (Tenn. Dec. 1858); Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865); State v. Lewis, 78 Tenn. 168, 1882 Tenn. LEXIS 159 (1882).

The prosecution surety in a chancery suit may be held liable, upon appeal, for all the costs of the cause, although the case was successfully prosecuted to decree in favor of complainant in the chancery and supreme courts, and although the liability of the surety was expressly limited by the bond to the costs of the chancery court, for, the law in § 20-12-126 is a part of the contract in the bond for costs. Ogg v. Leinart, 48 Tenn. 40, 1870 Tenn. LEXIS 12 (1870).

3. Amendment of Bill — Effect.

The surety for costs on the original bill is liable to the extent of the penalty of his bond for costs which accrue on an amended bill filed in the same cause, and such surety is not released by the fact that the court, upon motion, ordered the complainant to execute a new bond with other sureties, which he failed to do, and he afterward took the pauper oath. Lovelace v. Smith, 67 Tenn. 263, 1874 Tenn. LEXIS 368 (1874).

4. Attorney's Fee in Creditor's Suit.

Attorney having recovered a fee on creditor's suit against defendants, sought judgment therefor on appeal against surety on appeal bond which covered only debt, interest, and costs involved in the appeal; court was without authority to render such judgment. Hyder v. Hyder, 16 Tenn. App. 64, 66 S.W.2d 235, 1932 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1932).

5. Bankruptcy of Principal.

Where the liability of the surety on an appeal bond is not fixed prior to the discharge in bankruptcy of the principal, and on appeal the claim against the principal is heard de novo, if a discharge in bankruptcy operates as a bar to the rendering of a judgment against him on the appeal, such surety is released. Nance v. Gatlin & Cannon, 2 Tenn. App. 73, — S.W. —, 1925 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1925).

Where the principal had not received a discharge in bankruptcy, the rendition of judgment against the surety should be stayed pending final step in bankruptcy. Nance v. Gatlin & Cannon, 2 Tenn. App. 73, — S.W. —, 1925 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1925).

6. Appeal.

7. —Appeal to Supreme Court.

A surety on an appeal bond for damages and costs, given, as required by law, upon an appeal to the supreme court, is only liable for the costs incident to the appeal, and not for the costs of the court below. Denton v. Woods' Adm'r, 79 Tenn. 505, 1883 Tenn. LEXIS 95 (1883).

As between the surety on a certiorari bond to bring a justice's (now general sessions judge's) judgment into the circuit court, and the surety of appeal from the circuit to the supreme court, the latter was primarily liable. Moore v. Lassiter, 84 Tenn. 630, 1886 Tenn. LEXIS 150 (1886). See Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872); Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); Murray v. Winham, 3 Cooper's Tenn. Ch. 336 (1877); Winham v. Crutcher, 78 Tenn. 610, 1882 Tenn. LEXIS 230 (1882).

In a law case the surety on the filing of the original suit cannot be held for costs incurred on writ of error. Sullivan v. Tigert, 1 Tenn. App. 262, — S.W. —, 1925 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1925).

8. —Appeal from Justice.

A surety on appeal bond in a case appealed from a justice of the peace (now general sessions judge) was bound for all the costs that may, at any time during the progress of the cause, be adjudged against his principal, to the extent of the penalty of the bond, but for no larger amount. Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

Collateral References. 20 Am. Jur. 2d Costs § 44.

20 C.J.S. Costs §§ 163, 179.