Harper v. Louisville & Nashville Railroad

Fish, C. J. This is an action brought by the children of a decedent against a railroad company for his alleged wrongful homicide. The petition alleges, that the homicide occurred in the State of Tennessee in the year 1911; that the decedent left surviving him a widow, who died in 1912 without having instituted an action for the homicide of her husband; that the statute of Tennessee, governing the case, is as follows: “The right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrong-doer in case death had not ensued shall not abate or be extinguished by his death, but shall pass to’ his widow, and, in case there is no widow, to his children, or his personal representative for the benefit of his widow or next of kin, free from the claims of his creditors.” Held: ¡Following the construction placed upon this statute by the Supreme Court of Tennessee (Greenlee v. Railroad, 5 Lea, 418; Stephens v. Railroad, 78 Tenn. 448; Loague v. Railroad, 91 Tenn. 458 (19 S. W. 430) ; Tiffany on Death by Wrongful Act, § 107), to the effect that in such a case the widow alone, has the right to sue in the first instance and that the children have the right, only where there is no widow, the petition did not set forth a cause of action, and the general demurrer to it was properly sustained. [559] This court has construed a somewhat similar statute of this State in accordance with the construction placed upon the statute of Tennessee by the Supreme Court of that State. Frazier v. Ga. R. Co., 96 Ga. 785 (22 S. E. 936) ; King v. So. Ry. Co., 126 Ga. 794 (55 S. E. 965, 8 L. R. A. (N. S.) 544). April 23, 1914. Action for damages. Before Judge Patterson. Fannin superior court. May 28, 1913. George F. Gober and O. R. Dupree, for plaintiffs. D. W. Blair and William Butt, for defendant. Judgment affirmed,. All the Justices concur, except Atkinson, J., absent.