articles, though not at the time actually attached, are treated as still annexed and part of the realty, and the term has at all times been applied to deer in a park, fish in a pond, and doves in a dovecote, which passed to the heir, and not to the executor."

This class of cases was discussed in Williamson v. N. J. Southern R. Co., 29 N. J. Eq. 311, in which it was said:

"The illustrations of doves in a cote, deer in a park, and fish in a pond are entirely inapplicable to the present subject. They go with the inheritance, for special and peculiar reasons. In Amos. & Ferrard on Fixtures, they are classified under the head of heirlooms-a class of property entirely distinct from fixtures."

See, also, Hoyle v. Plattsburgh, etc., R. Co., 54 N. Y. 315, 13 Am. Rep. 595.

It remains to notice several cases decided by this court which are supposed to illustrate the policy of our laws upon this subject. They are cases in which furnishers of material for a building are allowed a lien on the lot upon which the building is to be erected, whether the material was ever actually used or not.

In Daniel & Co. v. W. H. Weaver et al., 5 Lea, 393, this court said it is not the actual use of lumber in repairs to a building by the owner that gives the furnisher a lien, but the furnishing under the contract for that use, and the lien exists whether the lumber was used or not. That case involved a construction of Shannon's Code, § 3531, establishing a mechanic's lien and furnisher's lien on any lot of ground or tract of land upon which a house has been erected, built, or repaired, or fixtures or machinery furnished or erected, or improvements made by special contract with the owner or his agent, in favor of the mechanic or undertaker, founder, or machinist who does the work, or any part of the work, or furnishes the materials, or any part of the materials, or puts therein any fixtures, machinery, or material, either of wood or metal, and in favor of all persons who did any portion of the work or furnished any portion of the material for the building contemplated in this section.

Section 3539 provides:

"The lien shall include the building, fixture, or improvement, as well as the lot or land, and continue for one year after the work is finished or materials are furnished."

The court, in dealing with these two sections, held that it is the furnishing of the lumber for repairs, etc., that creates the lien, and that it does not depend upon the use of it by the purchaser whether the seller shall have a lien. Otherwise, by not using it for a year, the owner could entirely defeat the lien of the purchaser. Such is not the proper construction of said acts, and this is made more clear by the provision in section 3539 that the lien shall continue for one year "after the work is finished," in favor of the workman, or "materials are furnished," as

to the furnisher. The furnisher may, therefore, within one year after he has delivered the materials contracted for, have his remedy by attachment to enforce his lien.

The case of R. H. Halley et al. v. L. E Alloway et al., 10 Lea, 523, was another case involving the furnisher's lien for repairing and furnishing the Grand Opera House in the city of Nashville. The question presented for determination in that case was whether the things claimed to have been furnished entitled the furnisher to a lien on the house and lot. The material furnished consisted of stage machinery, such as pulleys, rollers for cylinders, etc., used for fitting up the stage-some attached and some not-chairs furnished and fitted to the floor, and seats for the accommodation of the audience, painting the scenery, curtains, and the like. The court held the nature of the thing done and the character of the house repaired, and for which the materials were furnished, as well as the intent of the party building, served to guide to the correct conclusion as to whether the work done was work on the house, and became part of it. These elements are better guides than the old idea as to fixtures, which was whether the thing was permanently attached and fixed in or to the freehold In getting up a theater, the whole building. considered in reference to its use, makes the house contracted for. All that serves to complete and furnish such house for the purpose designed makes up the house, and is part of it when completed. Scenery, seats, pulleys, etc., and the like, make up a necessary part of a building designed for theatrical exhibitions, as much as do the counters on which goods are exposed for sale in a retail mercantile store. It is probable the scenery and other articles herein mentioned are as permanently attached to and were a part of the building as such counters.

In Stegar v. Arctic Co., 89 Tenn. 453, 14 S. W. 1087, 11 L. R. A. 580, it was held that statutes creating liens upon real estate in favor of those who, under contract with the owners, have furnished lumber or materials for erection of buildings, machinery, etc., thereon, are construed liberally in favor of lienholders, as regards the subject-matter to which the lien should attach. In that case it appears that the Arctic Refrigerator Company erected a factory on a lot in Nashvillle for the manufacture of vapor for cold stor age. By permission of the city this company laid subterranean pipes in the streets, con necting with its factory, to convey the vapor to its customers. P. supplied labor and materials in the erection of the factory, and also furnished and laid down the pipes in the streets. It was held that the plant, including lot, factory, pipes, etc., is an entirety, and P.'s lien for materials furnished or labor done upon any part of it attached to the whole.

The case last cited, it will be observed. does not even remotely touch the question

with which we are dealing in the present

case.

In the case of Grosvenor v. Bethell, 93 Tenn. 579, 26 S. W. 1096, one of the objects of the bill was to determine whether or not Bethel, the purchaser at first mortgage sale, thereby acquired title to all the theater furniture and fixtures; the same not having been specifically mentioned. It was held that a mortgage by an incorporated opera house company, made after the purchase of lot, and while the theater buildings are in course of erection thereon, conveying the lot and "all the buildings and improvements thereon or to be erected thereon," operates to pass all furniture, fixtures, and furnishings then or thereafter placed in the theater building, and essential to its successful operation. Citing Halley v. Alloway, 10 Lea, 523, as settling this question.

In Grewar v. Alloway et al., 3 Tenn. Ch. 584, it was held that the rollers, pulleys, etc., for shifting scenery, and other stage properties, were fixtures or machinery, within the meaning of the mechanics' and furnishers' lien act. It was further said that the movable machinery and flying stages of a theater, necessary for the purpose of theatrical exbibitions, are trade fixtures, and removable by the tenant, as between him and his landlord, but, as between the owner and mechanic, are subject to the mechanics' lien law. The question whether a thing is a fixture or not, as between owner and mechanic, depends little upon the mode of annexation. Its fitness for the particular place where it is annexed, its being connected with the general business conducted there, and other facts going to show the intent of the owner to make one thing of the land and chattels to carry out a general purpose, would have more effect upon the question than the mode or permanence of the annexation. It appeared in that case that the chairs had been fastened to the floor, and it is to be inferred that the other property was also in some way attached to the building.

It is unnecessary to pursue this line of cases any further, since we deem the question settled by the great weight of authority in favor of the contention that such materials are not fixtures, and are removable by the mortgagor.

It results from this that the judgment of the circuit court must be affirmed.

STUBER v. LOUISVILLE & N. R. CO. (Supreme Court of Tennessee. May 27, 1905.) MASTER AND SERVANT-FELLOW SERVANTS-ACTIONS ABATEMENT-INSTITUTION OF NEW SUIT-LIMITATIONS — ACTIONS FOR DEATH

DAMAGES.

1. Shannon's Code, § 4025, provides that the right of action for injuries shall not abate by the death of the person injured. Sections 4026 and 4027 provide for the institution of the action by the personal representatives, widow,

or children of the person injured. Section 4028 provides that, if deceased had commenced an action before his death, it shall proceed without a revivor, and the damages shall go to the widow and next of kin. Section 4029 defines the damages which may be recovered in such actions. Held, that the statutes do not create a new right of action, but merely preserve the right of action for the widow, children, and next of kin, with the same rights which the injured person would have had, including the right to dismiss a suit brought by the person injured before his death, and bring a new action within the year after a judgment not concluding the merits, allowed by Shannon's Code, § 4446, notwithstanding the lapse of the limitation period since the happening of the injuries.

2. A judgment abating the suit because of the death of plaintiff does not conclude the merits.

3. A foreman of the water supply of a division of a railroad, whose duties relate to the physical condition of the water tanks located along the line, is not a fellow servant with an engineer of a detached engine, upon which he is riding in the performance of his duties, but with the operation of which he has nothing to do, and does not assume the risk of the negligence of such engineer.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 493, 503.]

4. In an action for injuries resulting in death, it appeared that plaintiff's decedent was, when injured, 56 years of age, sober and industrious, with steady employment, and earning $75 per month. He suffered great physical and mental pain from his injuries for more than two years previous to his death, and was guilty of no contributory negligence. The damages claimed were $1,999.99. Held, that plaintiff, on recovering judgment, was entitled to the full amount sued for.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 372; vol. 15, Cent. Dig. Death, §§ 125, 129.]

Appeal from Circuit Court, Henry County; John R. Bond, Judge.

Action by Mrs. Lucy C. Stuber against the Louisville & Nashville Railroad Company. From the judgment rendered, both parties appeal. Reversed.

Fitzgerald Williams and J. P. Thomason, for plaintiff. W. W. Farraborgh, W. W. Lewis, and J. W. Judd, for defendant.

SHIELDS, J. This action was brought by Mrs. Lucy C. Stuber, widow of William Stuber, deceased, to recover damages for the death of her husband, caused by the wrongful act of the defendant.

William Stuber, foreman of the water supply of the defendant upon its Memphis Division, while going to Humboldt, September 19, 1898, upon a detached engine of the company, upon which he was authorized to ride, for the purpose of inspecting the water tank at that place, was seriously injured in a collision caused by the negligence of the engineer in charge of the locomotive, and brought his action against the company May 10, 1899, in the circuit court of Henry county, to recover the damages sustained by him. The case was removed to the Circuit Court of the United States for the Western Division of Tennessee, upon the petition of the defendant, where it was tried, and judgment had in the plaintiff's favor for $6,000, which

His

was reversed May 7, 1901, upon appeal, by the United States Circuit Court of Appeals for this circuit, and the case remanded to the Circuit Court for a new trial. After this, on March 2, 1902, William Stuber died. death was suggested and admitted at the April term, 1902, and at the succeeding term, on November 5, 1902, an order was entered abating and dismissing the case.

Mrs. Stuber, his widow, brought this suit February 28, 1903. In her declaration she alleges the negligence of the engineer of the defendant; the injuries sustained by her husband; the institution of his suit in the circuit court of Henry county, and its removal to the federal court; the death of her husband in consequence of the injuries inflicted upon him, and the abatement and dismissal of his suit; stating the facts fully and in proper form. The defendant pleaded in defense the general issue, not guilty, the statute of limitations of one year, and that the judgment of the federal court dismissing the suit of William Stuber was a former adjudication against her right of recovery upon the cause of action sued upon in this case.

The defense made by the last plea is not now insisted upon, and need not be further noticed.

The case was heard by Hon. John R. Bond without the intervention of a jury, and his findings of fact and conclusions thereon, by request of the parties, were reduced to writing, and appear in the record. His honor was of the opinion that the injuries sustained by William Stuber were caused by the negligence of the engineer of the defendant in charge of the colliding train upon which the deceased was riding, and that these injuries caused his death; that the deceased and the engineer were in the service of the same employer, but in different departments, and were not fellow servants, and so found. But he was of the opinion, and held, that the plaintiff's right of action was barred by the statute of limitations of one year, and dismissed her suit, with costs.

The plaintiff and the defendant both excepted to the action of the trial judge, and bring the case here by appeal in the nature of a writ of error.

The plaintiff assigns as error the action of his honor holding her case barred by the statute of limitations; and the defendant, his finding and holding that William Stuber and the locomotive engineer were not fellow servants.

These are the only questions before us for determination.

We will first dispose of the assignment of error of the plaintiff. From the statement of facts we have made, it appears that William Stuber received his injuries September 19, 1898, and brought his action to recover damages therefore May 10, 1899; that he died March 2, 1902, and his suit was abated November 5, 1902; and that this suit was brought February 28, 1903. The first action, then, was brought within one year after it

accrued; and this, within one year after that was abated and dismissed.

The contention of the plaintiff is that the cause of action in both cases is the same; that after the death of William Stuber, March 2, 1902, the first suit, under the statute, became her suit, to all intents and purposes, without revivor, and that it was her suit that was subsequently dismissed, and this action having been brought within one year after the dismissal of the first, upon a ground not concluding her right of action, the bar of the statute of limitation is saved by the provisions of Code 1858, § 2755 (Shannon's Code, § 4446).

While the defendant insists that the two actions (that brought by William Stuber and this one) are entirely different suits, having different parties, and beneficiaries, entitled, if successful, to recover different damages, and therefore the statute relied upon by the plaintiff to save the bar of the statute of limitation of one year is not applicable.

We are of opinion that the contention of the plaintiff is sound, and must be sustained. The statutes of Tennessee upon which this action is predicated, and which are controlling in this case, are to be found in sections 4025-4029 of Shannon's Edition of the Code, and are as follows:

"Sec. 4025. 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 wrongdoer in case death has 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 creditors.

"Sec. 4026. The action may be instituted by the personal representative of the deceased; but, if he decline it, the widow and children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit, or giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he sign his name to the prosecution bond.

"Sec. 4027. The action may also be instituted by the widow in her own name, or, if there be no widow, by the children.

"Sec. 4028. If the deceased had commenced an action before his death, it shall proceed without a revivor. The 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.

"Sec. 4029. Where a person's death is caused by the wrongful act, fault or omission of another, and suit is brought for damages, and provided for, by sections 4025 to 4027, inclusive, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time and necessary expense, 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."

These statutes have been frequently construed by this court, and their purpose, meaning, and effect are well settled, and not open for discussion. They do not create a new cause of action in favor of the widow, children, or next of kin of a decedent whose death is caused by the wrongful act of another. They merely alter the rule of the common law under which rights of action of this character, and suits brought thereon, abated upon the death of the injured party, so as to keep alive and preserve the right of action of the deceased for the benefit of his widow, children, or next of kin, and to authorize suit thereon to be brought to recover the damages sustained, in the name of the personal representative of the deceased, or that of the widow or children, and, where suit has been commenced by the decedent while yet in life, to allow it to be prosecuted to judgment for the same purpose.

In Whaley v. Catlett, 103 Tenn. 351, 53 S. W. 133, a case involving the construction of these statutes, this court, speaking through Mr. Justice Wilkes, said:

"We are of opinion that a careful reading of the statutes can lead to no other conclusion than that they provide alone for the continued existence and passing of the right of action of the deceased, and not for any new, independent cause of action in his widow, children, or next of kin. Section 4025, Shannon's Code, refers to it as the right of action which the deceased would have had in case death had not ensued, and provides that it shall not abate or be extinguished, but shall pass to his widow, etc. It does not provide for or refer to any new cause of action arising or coming into existence in their favor. It is alone by virtue of these statutes that a right of action exists in the widow, children, or next of kin, at all, for the unlawful killing of the deceased; and this right exists under the statute, not because it arises directly to them in their own right, but because it passes to them in the right of the deceased.

"At common law all personal actions for wrongs or injuries died with or abated by the death of the party injured, and no right of action survived or arose in favor of the widow or children or next of kin. They can therefore take only under and according to the provisions of the statutes. Citing Bream V. Brown, 5 Cold. 170; Chambers v. Porter, 5 Cold. 276; Flatley v. Railroad, 9 Heisk. 234; Fowlkes v. Railroad Co., 9 Heisk. 831, 846: Trafford v. The Ex. Co., 8 Lea, 97-108; Railroad Co. v. Lilly, 90 Tenn. 564, 18 S. W. 243; Railroad v. Pitt, Adm'r, 91 Tenn. 86-92, 18 S. W. 118; Loague v. Railroad Co., 91 Tenn. 459-462, 19 S. W. 430; Railroad v. Bean, 94 Tenn. 393, 394, 29 S. W. 370."

It is also held in the case of Loague v. Railroad Co., 91 Tenn. 462, 19 S. W. 430, approved in the case of Whaley v. Catlett, supra, that chapter 186, p. 259, Acts 1883 (Shannon's Code, § 4029), allowing the widow, children, or next of kin to recover the damages resulting to them in consequence of the injuries and death of the deceased, in addition to those which he could recover if living, does not create a new cause of action, but only enlarges the scope of the damages which may be recovered by the parties in suits brought and prosecuted upon the cause of action which accrued to the deceased.

These and other cases brought under these statutes were reviewed and approved in the able and exhaustive opinion of Mr. Justice Neil in the case of Davidson-Benedict Co. v. Severson, 109 Tenn. 573, 616, 639, 72 S. W. 967-the latest utterance of this court upon this question.

There is, then, no doubt but that the cause of action is the same in both suits. It is equally as certain that the parties and the beneficiary, in the first suit, when dismissed, and this, are the same.

When William Stuber died, Mrs. Stuber, his widow, had the right, under the statute (Shannon's Code, § 4028), to prosecute the action which he had brought, to judgment without revivor. That suit, upon the death of her husband, by operation of the statute, became and was, in law, her suit, with the power to control it, and to have and receive the benefits that might accrue from it, in as full and ample manner as if it had been instituted by her and in her name after the death of her husband. The statute gave her the right to prosecute it to judgment without revivor, but it did not make it obligatory upon her to do so. The object of the statute was to enlarge and facilitate her remedy upon the cause of action accruing to her husband, not to limit and hamper it. It vested in her all the rights in the suit which her husband had, or which she would have had in an action of this kind originally brought by her. She had the same right which William Stuber had to continue the prosecution of that suit, or to dismiss it and bring another upon the same cause of action. No one would insist that if William Stuber had dismissed the suit, or allowed it to be dismissed by judgment not concluding his right of action, and had brought another within one year, he would be barred by the statute of limitations. If he would not be barred, neither would the plaintiff, who succeeded to all his rights and remedies. The judgment of the federal court dismissing the action then pending, to which she had succeeded, was not a judgment upon the merits, and did not conclude her right of recovery against the defendant, and therefore this case comes clearly within the provisions of the statute (Shannon's Code, § 4446) allowing another suit upon the same cause of action within one year after a

judgment of this nature is entered. This court has repeatedly held that judgments abating suits because of death of plaintiffs, upon voluntary nonsuit or dismissal, do not conclude the merits, and that a new suit may be brought within one year. Norment v. Smith, 1 Humph. 46; Hooper v. Railroad Co., 107 Tenn. 712, 65 S. W. 405; Railroad Co. v. Bentz, 108 Tenn. 670, 69 S. W. 317, 58 L. R. A. 690, 91 Am. St. Rep. 763.

Coming now to the assignment of error filed by the defendant: The trial judge found that while William Stuber and the engineer whose negligence caused his injuries were in the service of a common employer, the defendant railroad company, they were engaged in different departments of its service, and held that they were not fellow servants, and therefore that the plaintiff did not assume the risks incident to the negligence of the engineer, and that the defendant-other questions out of the way--was liable to his widow or next of kin in damages for the injuries sustained by him. There is no error either in the finding of facts, or the conclusions of law upon them.

The doctrine that the employés of railroad companies, engaged in different departments of the company's service, are not fellow servants, and do not assume the risks incident to the negligence of each other, while not recognized in the courts of the United States, is well established in Tennessee. We will only call attention to a few of our cases in which it was applied.

In the case of Railroad Company v. De Armond, 86 Tenn. 73, 5 S. W. 600, 6 Am. St. Rep. 816, it is said:

"Ordinarily fellow servants assume the risks incident to each other's negligence, but in Tennessee, where servants of the same master are engaged in different departments of a common service, or one is the superior of another in the same department, either temporarily or permanently, they are not fellow servants, within the meaning of this rule."

And in the case of Coal Creek Mining Co. v. Davis, 90 Tenn. 719, 18 S. W. 389, the reasons upon which this exception from the general rule of nonliability of employés to employers for negligence of their fellow servants is founded are stated in these words:

"The doctrine rests upon the theory that the vast extent of the business of railway companies has led to the division of their business into separate and distinct departments; that, by reason of this division, a servant in one branch or department has no sort of association or connection with one in another department; that this absence of association gives such servant no opportunity of observing the character of a servant in another department of labor, and no opportunity to guard against the negligence of such servant. The want of consociation is the idea underlying this limitation."

In the case of Railroad v. Carroll, 6 Heisk. 361-the parent case in this state upon this subject-it was held that a section boss was not a fellow servant with the conductor and crew of a passenger train, and could recover from the common employer damages for injuries sustained through the negligence of the crew of trains.

In Railroad v. De Armond, supra, it was held that the conductor of a freight train and a telegraph operator were not fellow servants, and that the former had a right to recover from the common employer damages sustained by reason of the negligence of the latter; the court saying: "It is well settled, whatever may be the rule in other states, that one servant does not assume the risk of the negligence of another servant where the latter is engaged in a different department of work or service. As, for instance, the train crew do not take the risk of the negligence of the track or section hands."

In the case of Taylor v. Railroad Co., 93 Tenn. 306, 27 S. W. 663, it was held that a car inspector was not the fellow servant of an engineer operating a switch engine, but that they were engaged in different and distinct departments of the company's service.

In the case of Railroad v. Jackson, 106 Tenn. 445, 61 S. W. 772, it was held that a conductor and a station agent were not fellow servants. It is here said:

"We are of the opinion that the conductor and station agent cannot be considered fellow servants. Their departments are entirely distinct and separate. The duty of one (the conductor) pertains to the physical moving of trains, and in this case, also, the coupling and the uncoupling of cars when necessary. The station agent's duties did not extend to this, but only to the care of the station buildings and grounds, and the transmission to the conductor of such orders as might be sent over the wires for the movement of trains. While, in a certain sense, both were concerned in the moving of trains, the duty of one was confined to the physical exertion and personal oversight necessary to move the train, while the other's duties pertained alone to the transmission of any orders or directions that may have been intended for the guidance of the conductor; but the agent was not to execute such orders, or aid in executing them. But in transmitting these orders he was really acting as telegraph operator, and this court has held that such operator is not a fellow servant with the conductor."

The case of Freeman v. Railroad Co., 107 Tenn. 346, 64 S. W. 1, is very much in point. The plaintiff, a member of a bridge crew whose duty it was to go up and down the road (of course, upon the trains of the railroad company) and repair bridges and trestles, was injured through the negligence of the conductor and engineer operating a train of the defendant; and it was held that the