                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    June 26, 2001 Session

          JOHN T. BELL, ET AL. v. RICHARD GENE NOLAN, ET AL.

                       Appeal from the Circuit Court for Coffee County
                            No. 27731    John W. Rollins, Judge



                 No. M2000-02684-COA-R3-CV - Filed September 14, 2001


The parents of a woman who died after being assaulted by her husband on the premises of an
American Legion post filed a wrongful death claim, which named the husband and the American
Legion post as defendants. The parents alleged that the Legion’s employees had failed to render
assistance to the injured woman. The trial court dismissed the complaint against the American
Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the
wrongful death of the other spouse. We reverse.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Peter V. Hall and Robert O. Bragdon, Murfreesboro, Tennessee, for the appellants, John T. Bell and
Myra A. Bell.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Memorial 39, Post #43, American
Legion.

Richard Gene Nolan, Pro Se.

                                            OPINION

                                      I. An Untimely Death

        This case arose from the tragic death of thirty-four year old Beverly Jean Nolan. On July 8,
1995, Ms. Nolan and her husband, Richard Gene Nolan, were at the American Legion Hall in
Tullahoma. The Legion operates a restaurant and provides meeting rooms and social activities on
its premises.

       According to the Complaint later filed by Ms. Nolan’s parents (and given the posture of this
case, we must accept their account as true) Mr. and Ms. Nolan had an argument at about 8:00 p.m.,
which prompted Ms. Nolan to leave the building and walk out to the parking lot. Mr. Nolan
immediately followed her, and struck her in the head with enough force to knock her to the ground.
Ms. Nolan’s visible injuries were a contusion and laceration on her face. She got up in a dazed
condition, and although unsteady on her feet, re-entered the restaurant.

        Employees of the restaurant, including a security guard named Don Cruse, allegedly asked
Beverly Nolan what happened to her, and asked Richard Nolan if he had struck his wife. Mr. Nolan
acted unconcerned, and stated that he would get his wife’s car and take her away. When Mr. Nolan
left, Mr. Cruse held Ms. Nolan to keep her from falling. A nurse who was nearby suggested that Ms.
Nolan was seriously injured, and that Mr. Cruse should call an ambulance to take her to the hospital.

       Ms. Nolan’s parents allege that as Mr. Nolan was driving the automobile up to the restaurant,
Ms. Nolan began to collapse, and that as she did so, she whispered to Mr. Cruse that her husband
did indeed strike her, and that this was not the first time he did so. She also allegedly asked Mr.
Cruse if she had to leave with her husband, and he said she did not. Ms. Nolan then collapsed, and
never regained consciousness.

        When Mr. Nolan arrived with the automobile, he did not get out of the vehicle. Instead, as
Mr. Cruse placed the unconscious woman into the passenger seat, Mr. Nolan grabbed his wife by
her clothes, and pulled her into the car. He then drove her home. After arriving home, Mr. Nolan
called his wife’s parents, John and Myra Bell, and without revealing his assault, told them that their
daughter had fallen while drunk.

        Mr. Bell went to the Nolan home to retrieve his daughter and bring her to his own home. At
about 5:00 p.m. the following day, Ms. Nolan’s condition was noticeably worse, and the Bells had
her transported to a Tullahoma hospital. From there, she was carried by helicopter to Erlanger
Hospital in Chattanooga, where she was pronounced dead of a traumatic subdural hematoma with
massive brain infarction.

                                       II. Legal Proceedings

         On May 17, 1996, John and Myra Bell filed a Wrongful Death Complaint as Beverly Nolan’s
surviving parents and next of kin. After Mr. Bell qualified as the administrator of his daughter’s
estate, the court granted his motion to be substituted in that capacity as the party plaintiff.

         The Complaint named Richard Nolan as a party responsible for the death of Ms. Nolan. The
Complaint also named “Memorial 39, Post #43, the American Legion, Tullahoma, Tennessee, a
Tennessee Corporation,” (hereafter, the American Legion), and its security guard Don Cruse, for
failing to provide her protection or assistance. As the following discussion indicates, the case
proceeded on two separate tracks. The claim against Richard Nolan resulted in a default judgment
for the plaintiffs and assessment of damages. The claim against the American Legion was dismissed
for failure to state a claim.



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                                          a. Richard Nolan

       Richard Nolan never answered the Bells’ Complaint, and never responded to any of the
pleadings or motions in the trial court in any way. On July 31, 1996, the trial court granted the Bells
a default judgment against Mr. Nolan, and declared that the damages sustained by the plaintiffs
would be determined at a hearing to be scheduled at a later date.

       The record indicates that in addition to this civil action, Mr. Nolan had to face a Grand Jury
a few months after the death of his wife, to determine if he should be held criminally responsible for
her death. On January 5, 1996, the Grand Jury returned a No True Bill.

        A hearing on damages was conducted in the presence of a jury in September of 2000. The
jury found the damages sustained by the plaintiffs to total $250,400. Aside from medical and funeral
expenses, The verdict form indicated damages of $32,000 for Ms. Nolan’s pain and suffering,
$100,000 for the loss of consortium of John and Myra Bell, and $100,000 in punitive damages. The
jury found the pecuniary value of the life of Beverly Joan Bell Nolan to be zero.

       On September 14, 2000, the trial court entered a Judgment on the Verdict, reading in
pertinent part as follows:

                    IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED as follows:

                      1. Plaintiff, John T. Bell as Administrator of the Estate of
               Beverly Joan Bell Nolan, deceased, have and recover of the
               Defendant Richard Gene Nolan the sum of $150,000.00.
                      2. Plaintiffs John T. Bell and Myra Bell, individually, have
               and recover of the Defendant, Richard Gene Nolan the sum of
               $100,000.00
                      3. Costs are adjudged against Defendant Richard Gene Nolan
               for which execution shall issue, if necessary.

        The Plaintiffs subsequently filed a Motion to Alter or Amend Judgment and Motion for New
Trial. They noted that a professor of economics had testified at trial that the pecuniary value of their
daughter’s life was $508,100, and they argued that the finding of the jury that her life had no
pecuniary value was contrary to the undisputed proof. The trial court granted their motion on
October 13, 2000, increasing the amount of the judgment in favor of John T. Bell, Administrator
by $508,100, for a total judgment of $658,100.

                                      b. The American Legion

        The American Legion and Don Cruse answered the Bell’s Complaint on July 8, 1996,
disputing several factual details, and denying that they breached any duty owed to the decedent.
They also asserted several affirmative defenses, including comparative fault, and they moved to

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dismiss the Complaint on the ground that the Bells had not stated a claim upon which relief could
be granted. See Tenn. R. Civ. P. 12.02(6). Specifically, they challenged the Bells’ right to maintain
an action for wrongful death under Tennessee’s wrongful death statute, Tenn. Code. Ann. § 20-5-
106. The Bells subsequently dismissed Don Cruse voluntarily under Rule 41.01 of the Tennessee
Rules of Civil Procedure, and amended their Claim for Damages by adding a claim for loss of
consortium.

        The defendant’s argument about the Wrongful Death Statute apparently had an impact, for
on August 16, 1999, the plaintiffs filed a Motion for Substitution asking that Mr. Bell be substituted
as the party plaintiff in his capacity as Administrator of his daughter’s estate, with regard to all
claims except the loss of consortium.

       The American Legion filed a Response to the Motion to Substitute, arguing that the Motion
was not timely, and that the proper beneficiary of the wrongful death suit should be the decedent’s
husband, rather than her parents. The defendant followed its Response by filing a Motion to Dismiss
and/or for Judgment on the Pleadings.

         The trial court granted the Motion for Substitution, but on October 4, 1999, it granted the
American Legion’s Motion for Judgment on the Pleadings, and dismissed the Complaint, stating that
“the Complaint fails to state a claim for which the relief prayed for can be granted.” The trial court
granted the Bells’ request for an interlocutory appeal of the order of dismissal, but we declined to
grant the interlocutory appeal. After the trial court entered its final order in the proceedings against
Mr. Nolan, the Bells filed a Notice of Appeal, signaling their intention to pursue an appeal as of right
in this court.

                                   III. The Question of Finality

         As a threshold matter, the American Legion contends that the judgment appealed from is not
a final judgment under Rule 3 Tenn. R. App. P., because it does not conclude all the “claims, rights
and liabilities of all parties” to the suit.

        They argue that the Plaintiff’s Motion to Alter or Amend the Judgment against Mr. Nolan
or in the Alternative for a New Trial was in substance a Motion for an Additur. The additur statute,
Tenn. Code. Ann. § 20-10-101, allows a trial court to suggest an additur “in such amount or amounts
as he deems proper to the compensatory or punitive damages awarded by the jury, or both classes
of damages.” However, the additur statute requires that the suggestion of an additur be accepted by
the defendant. If it is not accepted, “the trial judge shall grant the plaintiff’s motion for new trial
because of the inadequacy of the verdict upon proper motion being made by the plaintiff.”

        The appellee contends that the trial court exceeded its powers by ordering an additur without
the assent of Mr. Nolan, and that in the absence of such assent, the court’s action must be construed
as the grant of the Motion for New Trial. See Evans v. Wilson, 776 S.W.2d 939 (Tenn. 1989). The
conclusion the appellee wishes us to draw, of course, is that the pendency of a new trial clearly
indicates that the final judgment in this case has not yet been entered, rendering it unripe for appeal.

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        It appears to us, however, that the trial judge did not suggest an additur. He simply entered
an order increasing the amount of the judgment against Mr. Nolan. While the procedure may have
been erroneous, the only person with the right to object to the judgment would have been Mr. Nolan
himself. The American Legion did not participate in the trial, is not bound by the judgment against
Mr. Nolan, and has no standing to object to it. If upon remand, the Legion is found liable to the
plaintiffs, then it will be entitled to a trial on damages, where it can put on its own proof as to the
pecuniary value of the life of the deceased. Mr. Nolan made no objection to the judgment; in fact,
he did not respond to it in any way. The trial court’s judgment has therefore become final, and the
case is ripe for appeal.

                                 IV. The Motion for Substitution

       Another issue raised in this appeal involved the Motion for Substitution filed by the
appellants. Apparently, the Bells were afraid that the American Legion would prevail on the question
of whether they had the right to sue under Tenn. Code. Ann. § 20-5-106, and they filed their Motion
to Substitute Mr. Bell as plaintiff, in his capacity as administrator of his daughter’s estate. Tenn.
Code. Ann. § 20-5-107 provides as follows:

               Prosecution of action by representative or surviving spouse or
               next of kin.-- (a) The action may be instituted by the personal
               representative of the deceased or by the surviving spouse in the
               surviving spouse's own name, or, if there is no surviving spouse, by
               the children of the deceased or by the next of kin...

        The American Legion argued that the Motion for Substitution was untimely, as it was filed
three years after the Complaint. It appears to us, however, that the decision to grant the Motion was
in the sound discretion of the trial court. See Merriman v. Smith, 599 S.W.2d 548 (Tenn. Ct. App.
1980). Both this court and the Supreme Court have held that substitution of plaintiffs is liberally
allowed in wrongful death cases, even after the statute of limitations has passed, because it does not
prejudice the defendant, who has had notice from the beginning of the suit of the nature of the action
being brought against him. See Matthews v. Mitchell, 705 S.W.2d 657 (Tenn. Ct. App. 1985),
Chapman v. King, 572 S.W.2d 925 (Tenn. 1978). We do not believe the trial court abused its
discretion in this case by granting the plaintiffs’ motion.

                                   V. A Wrongful Death Claim

         We arrive at the critical question on appeal: whether, in light of the provisions of the
Wrongful Death statutes and the cases interpreting those statutes, the plaintiffs are the proper parties
to bring this suit. The Wrongful Death statutes clearly contemplate that the right to bring an action
lies first with the spouse of the deceased. Tenn. Code. Ann. § 20-5-106 reads in pertinent part,

                      (a) 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

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               wrongdoer, in case death had not ensued, shall not abate or be
               extinguished by the person's death but shall pass to the person's
               surviving spouse and, in case there is no surviving spouse, to the
               person's children or next of kin ...

        The appellee argues that Richard Nolan, as the surviving spouse of Beverly Joan Bell Nolan
is the only party entitled to sue for her wrongful death. Since the appellee also contends that Mr.
Nolan is solely responsible for his wife’s death, it concedes that any suit he files would place him
in the position of both plaintiff and defendant, an absurdity on its face. The appellee thus endorses
the position that there can be no civil remedy for the acts that led to Ms. Nolan’s death.

         The appellants contend, however, that the statute has not eliminated the possibility of a
remedy, because the right to sue devolved upon them when Mr. Nolan waived his own right through
inaction. In Foster v. Jeffers, 813 S.W. 2d 449 (Tenn. App. 1991), a woman was shot to death by
her husband’s brother (who was also his business partner). The husband declined to sue his brother
for her death, and two nephews of the wife brought suit as next-of-kin. The trial court dismissed their
suit for lack of standing, but this court reversed, holding that by declining to sue, the husband had
impliedly waived his rights under Tenn. Code. Ann. § 20-5-106 (including the right to receive the
proceeds of a successful suit) thus conferring those rights upon the nephews.

        The appellee argues that the effect of this court’s holding in Foster v. Jeffers should be
confined to its own “bizarre facts” (as we characterized them). The appellee notes that no subsequent
case of this court or the Supreme Court has adopted the “implied waiver” theory, and cites two cases
decided after Jeffers, where despite a husband’s involvement in the death of his wife the court
declined to invoke the theory.

        Neither of these cases is on point, however, because they both turned on the proper
interpretation of the forfeiture statute, Tenn. Code. Ann. § 31-1-106, which is not part of the
appellant’s argument in the present case. That statute reads in pertinent part

                      Any person who shall kill, or conspire with another to kill, or
               procure to be killed, any other person from which the first named
               person would inherit the property, either real or personal, or any part
               thereof, belonging to such deceased person at the time of his death,
               or who would take the property, or any part thereof, by will, deed, or
               otherwise, at the death of the deceased, shall forfeit all right therein,
               and the same shall go as it would have gone under the provisions of
               § 31-2-104, or by will, deed or other conveyance, as the case may be,
               provided, that this section shall not apply to any such killing as may
               be done by accident or in self-defense.




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         We shall briefly discuss the two cases cited by appellee.1

        House v. Gibson, 827 S.W.2d 310 (Tenn. App. 1991) was a wrongful death case. The mother
of the decedent sued, alleging that the decedent’s husband intentionally killed her, while the husband
claimed that it was an accident. We ruled that the mother’s Complaint could survive the defendant’s
Motion for Summary Judgment, because its allegation of intent to kill satisfied the requirements of
Tenn. Code. Ann. § 31-1-106.

        Appellee notes that in the present case the appellants’ Complaint alleges only that Mr. Nolan
intentionally struck his wife, and that she died as a result of the blow. Appellee argues that since the
Bells’ Complaint does not specifically allege that Mr. Nolan intended to kill his wife, it does not
meet the threshold requirements of Tenn. Code. Ann. § 31-1-106. However, even if we agree with
the appellee that the forfeiture statute would not bar Mr. Nolan from bringing suit under the wrongful
death statute, this argument is beside the point, for as we stated above, that is not the question before
us; the question is whether his failure to sue clears the way for a suit by the parents of the deceased.
We believe that it does.

        Moore v. State Farm Insurance Company, 878 S.W.2d 946 (Tenn. 1994) did not even
involve a claim under the wrongful death statutes, but rather the question of who was the proper
beneficiary of an insurance policy. The Supreme Court ruled that the husband, whose reckless
driving caused the accident that led to his wife’s death, did not forfeit his right to receive the
insurance proceeds from the accident, even though he pleaded guilty to vehicular homicide. The
court reasoned that his plea did not satisfy the element of intent required to trigger the provisions of
Tenn. Code. Ann. § 31-1-106.

         Appellee reasons by analogy that if conviction of a felony did not deprive Mr. Moore of his
rights, the grand jury’s refusal to indict Mr. Nolan should place his rights in an unassailable position.
But unlike Mr. Moore, who was attempting to assert his rights, Mr. Nolan relinquished his, so their
situations are not really comparable.

        The American Legion also contends that from a public policy standpoint it would be unwise
to accept the implied waiver argument, except for cases involving intentional homicide. They argue
that “there might be innumerable good reasons why a partially at fault spouse would not want to
pursue a cause of action” and that “to open up this possibility to innumerable collateral kin is
irrational.” We do not agree with that analysis. By ruling that a spouse can waive his right of action
to the next of kin of the deceased, we do not thereby imply that by inaction, the next of kin can
devolve his right to a still more remote relative.




         1
           A third case cite d by ap pellee, Miller v. Niblack, 942 S.W.2d 533 (Tenn. App. 1996) contains some dicta that
arguab ly suppor t its position. H owev er, Miller does not involve a wrongful death, but rather the question of who has
the right to b ring a pate rnity action where th e putative f ather is dec eased.

                                                          -7-
        Further, in Foster v. Jeffers, supra, we observed that the wrongful death statutes provide
several ways whereby a surviving spouse can maintain control over his right of action if he wishes.

               “He could bring the wrongful death action himself, he could waive
               his right to the administrator who could bring the action on his behalf,
               or he could effect a bona fide compromise in the form of a release and
               simply not bring the action to trial. It is clearly the legislative intent
               that a surviving spouse ought to be able affirmatively to maintain
               control over his right of action regardless of whether he intends to
               bring the action to trial. Because the statutes provide several means
               by which a spouse may retain his right of action, we find that a
               spouse can waive his right by inaction.”

813 S.W.2d at 453

       While none of these options may have been practical or palatable for Mr. Nolan, they do
provide a measure of protection for the individual whose spouse has died under circumstances that
would support a wrongful death suit, but who has legitimate objections to the institution of such a
suit.

                                                  VI.

        The judgment of the trial court dismissing the American Legion is reversed. Remand this
cause to the Circuit Court of Coffee County for further proceedings consistent with this opinion. Tax
the costs on appeal to the Appellee, Memorial 39, Post #43, the American Legion.



                                                        ___________________________________
                                                        BEN H. CANTRELL,
                                                        PRESIDING JUDGE, M.S.




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