820
92 FEDERAL Ri;]PORTER.
such is notthl'! case. 'They are not complaining, or seeking to set aside the judgment for want of notice to them. Tile only person assailing the judgment is the complainant, who, by a petition drawn and preseI1tedby himself, invoked the jurisdiction of the probate court which rendered the judgment, and whose duty it was to give necessary notice in the case. His solicitude for the rights of others is very commendable as an abstract ethical question; but I know of no principle of law or equity which will permit the complainant to take advantage of his own wrong, even in the exercise of such praiseworthy solicitude. From the foregoing it appears that there are no unyielding rules of law which demand an unconscionable solution of this case, and complainant's bill must therefore be dismissed. The decree of the circuit court is affirmed.
ATLAi\'l'A, K.
&;
N. RY. CO. v. HOOPER. March 7, 1800.) No. 626.
(Circuit Court of Appeals, Sixth Circuit.
ACTION FOR WRONGFUL DEATH CHANGING
LIMITATION.- A)lEND)lENT OF DECLARATION
Under the statute of Tennessee relating to actions for w"ongful death & V. Code, §§ 3130-3134i, by which a right of action is given to the personal representative of the deceased for the benefit of his widow or next of kin, as construed by the supreme court of the state, it is necessary to the maintenance of the action that there shall be in existence persons for whose benefit the right of recovery is given, and that they shall be named in the declaration; and, as the direct personal injury to such persons is made by the statute an element of the damages recoverable, a suit in behalf of one beneficiary is a different suit from one in behalf of another, and an amendment of a declaration changing the beneficiary is in effect the beginning of a new suit, and \S subjPct to a plea of limitation as
'linn.
SUCh.
In Errol' to the Circuit Court of the lTnited States for the Eastern District of Tennessee. This is a writ of error to a judgment rendered by the circuit court in favor of the plaintiff, administrator of J. W. Lebow, deceased. against the Atlanta, Knoxville & Northern Railway Company. The declaration was filed in the cit'cuit court of Knox county, Tenn., November 15, 1897. In the declaration the plaintiff averred: "Plaintiff, H. :\1. Hooper, administrator of the estate of J, IV. I,elJow. deceased, lJrings this action as such administrator, and for the benefit of Mariah Lebow, the rnotlwr of the deceased, against the defendant, the Atlanta, Knoxville &; Northern Railway Company." The declaration states that the injury was received by the deceased,on' the 25th of January, 1897. The ad damnum clause concludes: "To the great damage of plaintiff, as administrator as aforesaid, to Wit, twenty thousand dollars, for which sum, for the benefit a.Ild use of said Mariah Lebow, the mother of the deceased, and for the benefitof' the estate of the deceased, plaintiff sues, and demands a jury to try the issues that may be herein joined." . On March 24, 1898, the plaintiff applied to the court for leave, and was granted leave, to amend its declaration upon its fa ce, "so a s to state that the suit is bi'ought by plaintiff, as administrator of the estate of .T. W. Lebow, deceased, for the use arid· benefit of James :\fadison'Lebow, tIl{) father
ATLA:'\TA, K. & N. RY. CO. V. HOOPER.
821
of said .J. W. Lebow; he. the s:lid .J. W. Lebo,", haYing (liec] without bodily iBsue." Thereupon the defendant amended his plpa therptofore filed in tllP ('ase. and as a spedal plea set up the statute of limirations. amI averred that 1ll000e than one year had elajlspl! sinte said tausp of adioIl arose and before said amendnlPnt was made. By sc'dion B4GH, & V. Code, snit for injurips to person must be brought within one year after the cause' of acUon arises. On motion of the plaintiff the court struck the defendant's plea of the statutp of limitations from the fill'S, on the gTound that said plea was insuttitipllt, in tlIat it relied soldy upon tlw faet that more than one year hall elapsed from the date of the accident till the amendment of plaintiff's deelaration was allowed, wlIerein the father of deceased was namecl as the henpficiary instead of the mother and hrothers and sisters. when in law the suit was begun, in meaning of the stature, at the isslUmce of the summons, and the amendment aforesaid did not changc' the parries to or nature of the action then hrOl.ght, or modify plaintiff's right of I'ptDyery, but only assigned a different reason why said right existed. 'Ill(' cause then went to triaL rpsulting in a verdict for the plaintiff of $2.500. from which the plaintiff subsequently remitted $1,250, and judgment was entered against tlIe defendant for the remainder.
Alexander M. Smith, for plaintiff in error. W, R. 'lurner, for defendant in error. Before TAFT and LlTRTOX, Circuit .Judges, and District Judge. TAF'l" Circuit .Judge (aftpr stating the fads as above). 'f'lle question presrented upon this )'ec'ord it" whether, when an administrator, under the present Code of 'l'ennessee, brings his suit to recovel' damages for the wrongful death of his intestatl', and avers in his petition that he brings the suit for the benefit of one pert"on as the intestate's next of kin, and subsequently substitutes in his declaration for that person the name of another as next of kin, this is a change of the cause of' adion, such that the statute of limitations runs to the date of tlw amendment. T'he seetions of the statutes of Tennessee prescribing the mode in which suits for wrongful death shall be brought are & V. Code, §§ :3130 to 3134, inclusive, and are as follows: "Sec. 3130. 'l'llP right of adion which a person who dies from injuries receiYed from anotlwl'. or whose dpath is caused by the wrongful aet, omission or killing by anotlH'r. would ha n, hacl against the wrong-doer in case death had not ensued, shall not abate or be E'xtinguishpd by his death, but shall pass to his widow, and in ease therp is no widow, to his children, or to his personal l'l'presentatil'e, for tht: benefit of his widow or next of kin, free from the claim of creditors. "Sec. 31Bl. The at,tion may be instituted by thp personal represent:ltive of the deceaspd, but if he dpdine it, the widow and children of the dpceaspd may. without the consent of the representative, usp his name in bringing' and prosec'llting the suit. on giving bond and s!'purity for costs. or in tilt' form jJl'espribpd for paupers. The versonal rPjJt'esputative shall nor in such case be rpsIllJllsible for costs, unless he sign his lJallle to the prosecution bond. "Sec. 3132.. The aetion may also be instituted by the widow in hpr own name, or if there lw no widow, by the childrpn. "8ec.3133, If the deceased had commenced an action ]wfore his death, it shall proeeed without a I'('YiYor, TlIP damages shall go to the widow and next of kin, free from the claims of the creditors of the deceased, to be distributed as personal property. "Spe.·>134, ,VIlerI' a vprson's death is caused by the wrongful act. fault or omission of another, and suit is brought for damages, thp party suing shalL if entitled to damages, ha"e thp right to recover for the mental and physical
822
92 FEDERAL. REPORTER.
suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received."
It is settled by the decisions of the supreme court of Tennessee that no action can be maintained by.an administrator of a deceased person under the foregoing sections unless there shall be in existence persons for whose benefit. the right of action is given, and that a declaration drawn under these sections, which does nM set forth the person for whose benefit the suit is brought, is fatally defective. Railway Co. v. Lilly, 90 Tenn. 563, 18 S. W. 243; Railroad Co. v. Pitt, 91 Tenn. 86, 18 S. W. 118. The next of kin for whose benefit the suit is brought are the real plaintiffs, and the administrator, though dominus litis, and a necessary party in all cases where there is no widow or child of the deceased, is, nevertheless, but a nominal party, and a mere trustee. Webb v. Railway Co., 88 Tenn. 128. 12 8. W. 428; Loague v. Railroad Co., 91 Tenn. 458, 19 S. W. 430; Railroad Co. v. Bean, 94 TenD. 388, 29 S. W. 370. Under section 3134. the recovery is not only for the mental and physical suffering of the deceased, his loss of time, and necessary expenses incident to the injury, but it is also for the direct pecuniary injury to the beneficiary on whose behalf the suit is brought, caused by the death complained of. The cause of action may, therefore, vary materially in the extent of the recovery, as it is brought for one or another beneficiary. The administrator, except where there is a widow or child, must bring the suit; but his suit for one beneficiary is a different suit from a suit by him for another. To change the beneficiary, under the statute, changes the suit, the amount of recovery, and states a new and dif· ferent cause of action. In the light of this conclusion, the plea of the statute was good against the amendment herein when filed, and should have been sustained. The judgment of the circuit court is reversed, with directions to set aside the verdict, to sustain the plea of the statute of limitations to the declaration as amended, and to enter judgment for defendant.
--------CONTINENTAL CONST. CO. v. CITY OF ALTOONA. (Circuit Court of Appeals, Third Circuit. January 25, 1899.)
No. 4i, September Term. 1. MUNICIPAL CORPORATIONB-CONTRACTB-AuTHORITY TO MAKE.
The board of commissioners of the water department of cities of the third class having no power, under Act Pa. May 23, 1889, to enter into a contract for the construction of a water reservoir without previous consent of the city councils, such power is not conferred by an ordinance authorizing the issue of water bonds, and resolutions authorizing the commissioners to have plans prepared fOl the reservoir, and to advertise for bids therefor. SAME-CoNTROLl,ER'S CERTIFICATE.
2.
The requirement o·f Act Pa. May 23, 1889, art. 9, § 5, that no contract by a city of the third class, requiring the appropriation of money, shall
