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As will appear from an examination of these authorities, the
better doctrine is that the negligence of the parent or custodian
is not imputable to the child, so as to bar its right of recoYery, and
our own court, in Whirley y. Whiteman, 1 Head, 610, adopts this
Yiew, and characterizes the leading case holding the contrary
(Hartfield y. Boper, 21 Wend. 615; 34 Am. Dec. 273) as no less
opposed to the current of authority than to CYcry principle of rea-
son and justice.

Mr. Bishop, in his work on Noncontract Law, section 582, says:
*^Thi8 new doctrine of imputed negligence, whereby the minor
loses his suit, not only when he is negligent himself, but when his
father, grandmother, or mother's maid is negligent, is as flatly
in conflict with the established system of the common law as any-
thing possible to be suggested. . The law ncYer took away a child's
property because his father was poor or shiftless or a scoundrel,
or because anybody who could be made to respond to a suit for
damages was a negligent custodian of it By the new doctrine,
after a child has suffered damages, which, confessedly, are as
much his own as an estate conferred upon him by gift, and which
he is entitled to obtain out of any of the scYcral defendants who
may haYe contributed to them, he cannot have them if his father.



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916 Bambbboeb v. Citizens' Stbext By. Ca [Tenii.

grandmotlier^ or mother's maid luippens to be the one liable tern
the ^ contribution (the idea, in sneh cases, being that the child
had its remedy against the father or other custodian).''

In this connection, also, the case of Walters v. Chicago etc.
E. E. Co., 41 Iowa, 71, is suggesthre, in which it is held that, when^
the parents have exercised reasonable and ordinary care, there is
no good reason why the negligence of the person in actual charge
of the child should be imputed to them and, through them, to the
child. In Kay v. Pennsylvania Ey. Co., 66 Pa. St. 269, 3 Am.
Eep. 628, the doctrine of Hartfield v. Eoper, 21 Wend. 615, 34
Am. Dec. 273, is said to be '^repulsive to our natural instincts and
repugnant to the condition of that class of persons who have to
maintain life by daily toil." Mr. Beach says that the doctrine is
an anomaly and in striking contrast with the ease of a donkey
exposed in the highway and negligently run down and injured, or
with oysters in the bed of a river, injured by the negligent opera-
tion of the vessel, in both of which cases actions have h&eai main-
tained; and, he adds, if the child were an aas or an oyster, he
would secure a protection denied him as a human being. He is
not the chattel of his father, but has a right of action for his own
benefit when the recovery is solely for his use.

While this is the general rule, and, we think, the correct one,
there is a broad distinction taken between cases in which the suit
is brought in the name of the child and for the use of the child,
and cases where the suit is brought by the father for damages
suffered by him in his own right, and he '^ is entitled to the re-
covery, and not the child. In the latter case, it is unif onnly held
that the negligence of the father will bar his right to recover:
4 Am. ft Eng. Ency. of Law, 88, and note; Orant v. Fitchburg,
160 Mass. 16; 39 Am. St. Eep. 450, and note; Wymove v. Mahaska
County, 78 Iowa, 396; 16 Am. St. Eep. 451, and note; 6 L. B. A«
546, and note; Westbrook v. Mobile B. B. Co., 66 Miss. 560; 14
Am. St Eep. 587; 14 L. E. A. 590, and note; Westerberg t.
Kinzua Creek E. E. Co., 142 Pa. St. 471; 24 Am. St Sep. 610, and
note; and many other cases too numerous to dte.

The case at bar is, however, different from these. In this oase
the plaintiff is the father of the deceased child, but brings the
suit, not in his right as father, but as administrator of his de-
ceased son. In case of recovery, he will, under the statute, be the
sole beneficiary, as next of kin, and the right of action is so stated
in the declaration, and necessarily so, for it has been held, under
our statute, that the recovery is personal to the next of kin, and
when there is no next of kin, there can be no recovery; and it the



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Maji 1895.] Bambsbgkb v. Citizbnb' Stbebt By. Ga 917

next of kin die after suit is instituted, the suit abates. Thk suit
being brought in the name of the father as administrator, and for
the use of the father as sole beneficiary, the question presented is,
Shall the action be defeated by contributory negligence on the
part of the father or his agent, the custodian of the child, or shall
he be allowed to recover, notwithstanding such negligence, as the
child might do?

** This question was presented in the case of Wymore t. Ma-
haska County, 78 Iowa, 396, 16 Am. St. Bep. 451 (also reported
in 6 L. B. A. 545), and was there discussed and directly passed
upon.' In that case, the court held that the suit was brought in
the right of the child, and not of the father, and that, if the facts
were such that the child could have recoyered had its injuries not
been fatal, his administrator might recoyer the full damages sus-
tained by the child's estate, eyen though the parent was sole
beneficiary of the recovery. The question was also passed upon'
in the case of Norfolk etc. B. B. Co. v. Oroseclose, 88 Va. 267, 29
St. Bep. 718, in which the court said: ''Where a suit is by a par-
ent, for loss of services caused by an injury to a child, the con-
tributory negligence of the plaintiff is a good defense, but such
negligence is not imputable to the child, and is, consequently, not
to be considered when the suit is by the child or its personal repre-
sentative^': Citing Shearman and Bedfield on Negligence, par.
48 a; Glassey v. Hestonville etc. By. Co., 57 Pa. St 172. It con-
tinues: ''Hence, when the facts are such that the child could
have recovered had his injuries not been fatal, his administrator
may recover, without regard to the negligence or presence of par-
ents at the time the injuries were received, and although the es-
tate is inherited by the parents. The parents' negligence is no
defense, because it is regarded not as a proximate, but as a remote,
cause of the injury; and the reason lies in the irresponsibility **
of the child, who, itself being incapable of negligence, cannot au-
thorize it in another."

There is no principle, then, in our opinion, on which the fault
of the parent can be imputed to the child. To do so is to deny to
the child the protection of the law. Virtually, the question was
presented in the case of Cleveland etc. B. B. Co. v. Crawford, 24
Ohio St. 641; 15 Am. Bep. 633. The action in that case was
prosecuted, under the statute of Ohio, for the benefit of the next
of kin of Ihe intestate. The next of kin were children, three of
whom were with their parents in the wagon at the time of the
collision. On the trial, defendant requested the court to charge
the jury that, if the persons for whose benefit the actions were



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918 Bambebqbb v. Citubn'b Stbbet By. Co. [Tena.

brought were guilty of a want of ordinary care^ which contributed
to the injury, a recovery could not be had for their benefit Thia
request, the court said, was properly refused, becanae: 1. The
statute giyes the right of action to the personal repreaentatiyeB
upon the same oondition that would have entitled the pariy in-
jured to an action if death had not ensued.

In the case of Westerfield y. Levis, 43 La. Ann. 64, the court
held that the statutes of Louisiana allowed two elements of dam-
age: 1. The right of action for the damages suffered by the child,
and which passes to the surviving parents by inheritance; 2. The
action for damages suffered by the parent on account of the' loss
of the child. The parents inherit the first element of damages
from ^ the child, and it must be treated aa though the child
was alive and suing for an injury to himself; that the contributory
negligence of the parents would not be a bar to the first element
or cause of action; and that the second element of damage, being
personal to the parents and not inherited from the child, they
must be free from negligence contributory to the death of the
child.

On the other hand, in the cases of Chicago y. Major, 18 HL
349, 68 Am. Dec. 663, Chicago v. Starr, 42 Dl. 174, 89 Am. Dec,
422, Chicago v. Hesing, 83 111. 204, 26 Am. Bep. 378, it is held
that in such cases the negligence of the parents wiU bar a recovery
by the administrator, when such parent is the sole beneficiary. In
these cases the doctrine appears to be assumed aa correct, rather
than controverted and adjudicated, though necessarily involved.
So, likewise, are the cases of Grant v. Fitchburg, 160 Mass. 16;
39 Am. St. Rep. 449; Wiswell v. Doyle, 160 Mass. 42; 39 Am. St
Rep. 451.

The reasoning and inclination of several of the recent text-
writers is in the same direction: Booth on Street Railways, sec
391; Jones on Negligence of Municipal Corporations, 422; Beach
on Contributory Negligence, sec. 131.

There are many other cases bearing more or less directly upon
this question, but need not be cited, and cannot be considered aa
controlling.

Necessarily, the peculiar provisions of the statute must ezerdse
an important, if not controlling, influejioe •* in the decisions of
each state. Mr. Tiffany, in his work upon Death by Wrongful
Acts, sections 68-72, gives the statutes of several states, and dis-
cusses the rules announced by the court under them. His con-
clusions are, that in the Iowa, Virginia, and Louisiana cases, the
reasoning of the judges who delivered the opinions above referred



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Hay, 1895.] Bambbrgbb v. Citizshs* Stbest Bt. Oa 919


-to is defectiye; that in two of the cases no negligence was to be
imimted to the plaintiffs^ and in some the benefit of the recoTerj
is not confined to the single person guilty of the oontribntoiy
negligence, as, in Iowa and Louisiana, under their statutes, both
parents are entitled to recover, and a similar rule preyails in
Ohio. In Virginia, the recoyery is for the benefit of all parties
interested, to be distributed among the near relatives; and, if there
is no next of kin, the administrator may still recoyer for the es-
tate; and only when there is a widow, husband, parent, or child
is the reooyery free from creditors' claims.

By our statutes (Milliken and Yentrees' Code, sec. 3130), it is
proyided that tlie right of action of the injured intestate shdl not
abate by his death, but shall pass to his widow, and, if no widow,
to the children or to the personal representatiyes, for the benefit
ef the widow or next of kin, free from the claims of creditors; and
by section 3133 it is furttier provided that if the deceased had
commenced an action before his death, it shall proceed without a
feyiror. By section 3134 of the act of 1883, the elements of
damage are fixed on the bams of mental and physical suffering,
** kwe of time^ and necessaiy expenses, and also the damages re-
sulting to the parties for whose use and benefit the right of action



Under this statute, in League t. Bailroad CSo., 91 Tenn. 461,
it was decided that the mother, as administratrix of her son, wis
entitied to recover whatever the deceased might have recovered,
and also any damages sustained by her, as mother, for the loss of
h^ son's servioes.

In the unreported case of Andrews t. Louisville etc. B. B. Co.,
decided by thiis court at its December term, 1893, at Nashville, it
was held that the elements of damage recoverable, under section
3134, embraced not only all that the administrator might be en-
titled to recover, but also all that might be recovered by the father
in his own right; and, recovery having been had as administrator,
it was a bar to any further action by the father, in his own right,
for loss of his son's services.

It is said the right to recover by the administrator is the same
right that the intestate had, if he had lived, but this is not (con-
struing the statutes together) strictiy accurate, for the right is
not only as administrator, but as father, and the damages are given
in view of both aspects of the case, and embrace both rights. The
right is not strictly a descendible or inheritable right, but one
arising out of the special statute, and, as to its scope, is governed
liy the statute.



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920 Bambbbosu v. Citizens' Strbst Ry. Co. [Teuiu

^ The underlying principle in the whole matter is, that no one-
shall profit by his own negligence^ and^ to allow the father, wha
has been guilty of negligence, to recover, notwithstanding thafc
negligence, when he brings the suit as administrator, althouglk
he could not do so in his own right, would be to defeat this under-
lying principle by a mere change of form, when the entire recov-
ery, in either event, goes to him alone. Upon principte, we think
that, no matter how the suit is brought, whether as administrator
or as father, it can be defeated by the father's contributory negli-
gence, when he is sole beneficiary. It follows there is no error in
the charge of the court on this point, nor in the record, and the
judgment of the court below is affirmed with costs. We are well
content with the result thus reached, upon the grounds alretdj
stated, and this decision is placed on these grounds.

Upon a careful examination of the whole testinumy^ we hare
not been able to find any evidence of negligence on the part of the
street-car company, and the verdict of the jury might very well
have been based upon this view of the case, and, at the same
time, the jury may have believed there was no contributory m^li-
gence on the part of the father or custodian of the child.

NEGLIGENOE— CONTRIBUTORY— BURDEN OF PROOF.— The
burden of proviog contributory negligence is in all cases on the defend*
ant: Georgia Pac. "Ry. Go. v. Davis, 92 Ala. 800: 26 Am. St. Rep. 47»
and note; Alabama etc. R. R. Co. v. Frasier» 08 Aia. 46; 80 Am. 8t»
Rep. 28, and especially the note.

NEGLIGENCE — CONTRIBUTORY OF PARENT— EFFECT OF
ON CHILD'S RIGHT TO RECOVER.-The negligenoe of a par-
ent or custodian of a child is no justification for others to injure it»
Hence, if a suit is brought by, or in behalf of, an infant in its own right
for an injury sustained through the act of another, contributory negli*
gence on the part of the parents, or others standins in loco parentis^
will not operate as a bar to recovery, or present any defense to the suit:
Atlanta etc. Ry. Co. v. Gravitt, 03 Ga. 869; 44 Am. St. Rep. 146, and
note; Bottoms v. Seaboard etc. R. R. Co., 114 N. C. 099; 41 Am. St.
Rep. 799, and note; Wiswell v. Boyle, 100 Mass. 42; 80 Am. St Rep.
451, and note.

NEGLIGENCE-CONTRIBUTORY OF PARENT— WHEN BARS
HIS RECOVERY.— A parent's contributory negligence may bar his
right to recover for injuries to a minor child, but in an action bv the
child such negligence will not be imputed to it: Note to Western Union
Tel. Co. V. Hoffman, 26 Am. St. Rep. 762. That the parent of a child
of tender years was goilty of negligence contributing to an accident
may be shown in bar to an action brought by such parent as adminis-
trator of such child: Pekin v. McMahon, 164 111. 141; 46 Am. St. Rep.
114, and note.

NEGLIGENCE.-WHAT IS CONTRIBUTORY NEGLIGENCE IS
GENERALLY A QUESTION OF FACT for the jury to determine
from all the circnmstances of the case: McQuillan v. Seattle, 10 Wash.
464; 46 Am. St. Rep. 799, and note.



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Jane, 1885.] Cou MAMUFAcruAua Ckx v. Coluxb. 821



GoLB Manufaotubino Company v. Collibb.



[96TiminBB,116.]

BNTIRBTIBS. — A CONVEYANCE TO A HUSBAND AND
WIFE, providing that. In the event of ber surviving him, she shall
have the use of the property, and at her death an estate in remainder
Is to go to her children by such husband, vests the fee in the estate
by the entireties in the grantees, but tbe wife's fee is determinable
upon her outliving her husband and subsequent^r dying leaving
children by him.

BNTIRBTIBS— EXECUTION SALE.— Though a sale under an
execution against the husband of property held by him and his wife
by the entireties divests his interest, and vests it in the purchaser at
the sale, the rights of such purchaser are subordinate to those of the
wife, and If the statute declares that the interest of the husband In
the real estate of his wife shall not be sold or disposed of by virtue of
any Judgment, nor shall the husband and wife beejected from such real
estate by virtue of any Judgment, such purchaser is not, as against
the wife, entitled to be put in possession of any part of such property,
nor to receive any of the rents or profits thereof.

Thomas H. Jackson and D. £• Ifyers, for the manufacturing
company.

Smith ft Trezevant and Metcalf ft Walker, for Collier.

^^« BEABD, J. In 1886 a deed reciting a valuable considerar
tion was made and delivered to the defendants, W. A. and Alice
T. Collier, conveying to them, as husband and wife, the real
estate which is the subject of this suit. Some time thereafter,
the complainant corporation, being a judgment creditor of the
husband, caused an execution to be issued and levied on the
latter^s interest in this real estate, and, at the sale subsequently
made by virtue of this levy, became a purchaser of the same.
Having received a deed from the sheriff, this bill was filed seeking
the aid of the chancery court to eject Collier and wife from, and to
place complainant in possession of, the entire property.

The first question presented for our consideration is, What inter-
est did these defendants take under the deed of 1886? As it, by
express terms, conveyed this property to these two grantees, as
husband and wife, it is conceded that its legal effect is to create in
them an estate by the entirety, unless it be that a limitation im-
posed upon the tenure of Mrs. Collier, should she outlive her hus-
band, is sufficient to change the character of this estate. The
clause in the deed in which this limitation is found is in these
words, viz: '^n the event she shall survive the said William A.
Collier, she shall have the use and enjoyment of said lands and
improrementsy ^^^ and the rents, issues, and profits thereof, and at



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922 Cole Manufactubing Ca «. Colubr. [Teiuk

her death the estate in remainder is to go to her children by tho
eaid W. A. Comer/'

No limitation is imposed by the deed npon the right of snrviT-
orship of either the husband or the wife. The longest liver^ as
between them, will take the whole. The limitation is upon the
estate of the wife after she has taken by surviyorship, and is then
operative only in the event she should die leaving children of her-
self and W. A. Collier surviving. In other words, a fee in an
estate by entirety is granted to Collier and wife, but the wife's fee
is determinable alone upon the event indicated, she in the mean
time having outlived her husband. Such a limitation does not
alter or modify the estate which the granting words have created.

In Coke on Littleton, section 285,in speaking of joint tenancy,it
is said: *T1 lands be given to two, and to the heirs of one of them»
this is a good joynture, and the one hath a freehold and the other
a fee simple, and if he who hath the fee dieth, he which hath the
freehold shall have the entiretie by survivor for term of life.
They are joint tenants for life, and the fee simple is in one of
them.'' And the authorities agree that ^Hhe same words of con-
veyance which would make two other persons joint tenants will
make a husband and wife tenants of the entirety, so that neither
can sever the jointure, but the whole must accrue to the survivor":
Green v. King, 2 Wm. Black, 1213; Martin v. Jackson, *^® 27
Pa. St. 604; 67 Am. Dec. 489; Farmers' etc. Bank v. Gregory, 49
Barb. 155; Den v. Hardenburg, 10 N. J. L. 42; 18 AnL Dec. 371;

3 Jarman on Wills, 120.

The estate thus granted being an estate by entirety, what right
did complainant get by his purchase of the husband's interest?

That complainant could cause his execution to be levied on
this interest, and, purchasing at the sale under this levy, could
place itself so far in the room and stead of the execution debtor
that, if unredeemed, it would untimately come into possession of
the whole should the husband outlive the wife, is settled law in
this state: Ames v. Norman, 4 Sneed, 683; 70 Am. Dec. 269.

Complainant, however, insists that, having the sherifiPs deed, it
is entitled to immediate possession of the whole estate, though
the wife is still alive, and it is urged that this is equally settled by
our decisions.

This makes necessary an examination of the cases relied upon
by complainant as authority for this position. Ames ▼. Norman,

4 Sneed, 683, 70 Am. Dec. 269, is the leading case. The facts
there were that a deed made to a husband and wife created in
them an estate by entirety in certain realty. During marriage the



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June, 1895.] Cole Manufacturing Co. t. Collier. 923

husband's interest in this property was levied upon and sold.
Subsequently^ the wife filed her bill against her husband for
-divorce^ and joined with him, as a defendant, Norman, who, as
a judgment creditor, had redeemed from the execution purchaser.
This was ^^^ done for the purpose of obtaining a decree cancel-
ing or extinguishing Norman's title, and having the land settled
upon complainant The decree thus asked for was passed by the
chancellor, and Norman brought the case to this court for review.
A careful reading of the reporter's synopsis of the pleadings and
evidence, es well as of the briefs of the respective counsel, fails
to discover any intimation that Norman was in possession of the
land in controversy, or that complainant was out of possession.
It is certain that, so far as the redeeming creditor was concerned,
the suit was purely defensive, a defense on his part limited to the
title acquired by him as the result of the execution sale. He did
not by crossbill or otherwise, so far as the reporter's notes or
argument of counsel indicate, set up a claim to possession or to
rents and profits. The stress of his contention was that a hus-
band has a leviable interest in an estate by entirety, which passes
to the purchaser at an execution sale, and through him to the re-
deeming creditor, and that the interest thus acquired by the lat-
ter was not effected by the subsequent divorce of the husband
and wife.

These were the only points involved in that case, and this
court, upon abundant authority, resolved both of them in favor
of Norman, and reversed the chancellor in so far as he had held
otherwise. It is true, in the course of the opinion, that the learned
judge delivering it said: **The defendant, by his *•• pur-
chase, became invested with the right of the husband as it existed
at the time of the sale; that is, a right to occupy and to enjoy the
profits of the land as owner during the joint lives of husband and
wife." This statement, however, was not called for by any issue
in the case. It was therefore a dictum, and not controlling as
authority.

Jackson v. Shelton, 89 Tenn. 82, and Hopson v. Fowlkes, 93
Tenn. 697, 36 Am. St. Rep. 120, also relied on by complainants,
have no bearing on the question now being considered. The
first of these involved the right of a divorced wife to a homestead
in property held with her husband prior to the divorce as an es-
tate by entirety, while the second held that such an estate waa
converted into a tenancy in common by a divorce a vinculo.

Wc think it apparent that the farthest limit to which this court
has gone is in holding that the purchaser of the husband's inter-



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924 COU MANUFAGTUBIMe Co. «• COLLIBB. [T(

est in laeh an estate aiBnds in hia ahoes, ao far aa idtimate i
Tivorship ia concerned, bat that the question of the pnichaaar'a
right to the rents and profits of the property pending the wife'a
life ia yet an open one in this state.

It may be conceded that, at common law, the husband, dnxing
coverture, had the unlimited right to the usufruct of thia eatate,.
and that he could loan, mortgage, or otherwise make a ralid
transfer of the possession of the same: Fairchild y. Caatelleaz, 1
Pa. St. 181; 4A Am. Dec. 117; Barber y. Harris, 16 Wend. ***
617; Jacfson y. McGonnell, 19 Wend. 175; 32 Am. Dec 439;
BoUes y. State Trust Co., 27 N. J. Eq. 308.

This right necessarily resulted from the common-law yiew of
the effect of marriage upon the wife's property rights. Marriage
conferred upon the husband the dominion of the wife'a real es-



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 105 of 121)