79 Tenn. 127 | Tenn. | 1883
delivered the opinion of the court.
J. H. Pounds, the intestate of the defendant in
It is insisted here that there was no evidence to support the verdict, or at least the preponderance of testimony is so great against it as to shock the conscience of the court, and therefore a new trial should be granted.
We do not concur in this. There was an apparent conflict in the testimony, but the jury were the exclusive judges of the credibility of the witnesses and the weight to be given to the testimony. There was evidence upon which the verdict can rest, and we will not disturb it for this reason.
The charge of the court has been criticised, but there is only one objection which we deem it neces-ary to notice.
The deceased was a widower, with a family of several children. There was testimony tending to show that he was kind to them and provided well for them. In charging' the jury upon the measure of damages his Honor instructed them as follows: “ Actual. damages consist of the mental and bodily sufferings of the deceased, his loss of time, and necessary expenses immediately resulting to the deceased from the personal injuries, and also the pecuniary loss his death has caused his children, if any,” etc.
The action is predicated upon sec'. 2291 and following' sections of the Code. These sections have been several times construed by this court, but the decisions have not been uniform. The later and better construction is, that the actions given by these sections for the benefit of the widow and next of kin of a person whose death has been caused by the wrongful act, etc., of another, being the same action that accrued to, and could have been prosecuted by him in the event death had not ensued from the injury, no other element of damages cau enter into or constitute a part of the recovery than such as were sustained by the deceased himself, and for which he could have recovered had he lived and prosecuted the action. And hence loss or injuries to the children or next of kin occasioned by his death, can constitute no part of the cause of action or element of the plaintiff’s right of recovery. See Trafford v. Adams Express Co., 8 Lea, 96, where the cases are carefully reviewed and the principle here stated enunciated. And this decision has been steadily followed since it was-announced: N., C. & St. L. R. R. Co. v. Smith, 9 Lea, 470, and several unreported cases during the last term at Nashville. 'While a number of previous decisions had given apparent sanction to the rule announced by his Honor in the above instruction, and while upon the principle of stare decisis, it might have been better not
Our attention has been called to a recent act of the Legislature, passed March 26, 1883, which provides that these sections be so amended that damages resulting to the parties for whose use and benefit the right of action survives, from the death consequent upon the injui’ies received, shall be recoverable in such action, and which is the same provision in substance as was embraced in the former decisions referred to. And it is now insisted that inasmuch as the legislative will has thus been expressed in regard to the principle we should give to this act, a sort of persuasive force as to the proper construction to be placed upon the sections of the Code above referred to, and again return to the previous construction by conforming our decisions to this recent ast, or else give it a retroactive force by applying its provisions as well to cases that existed prior to its passage as those that occur under it. That this cannot be done, is> we think, too plain for argument.
By art. 1, sec. 20, of the Constitution of this State, “no retrospective law, or law impairing the obligation of contracts, shall be made.”
By the law governing the rights of the parties at the time the cause of action alleged in this case accrued, the loss or injury to his children by the death of the deceased, constitute no element o
For this error in the charge the judgment of the circuit court must be reversed and a new trial awarded.