Davidson Benedict Co. v. Severson

Mr. Justice Neil

delivered the opinion of the Court.

This action was brought in the circuit court of Lewis county by the defendant in error, as the administrator of W. A. Hollister, deceased, to recover $20,000 as damages for the death of said Hollister, alleged to have been caused by the negligence of the plaintiff in error.

The declaration, among other things, not necessary to mention, alleged that on or about February 1, 1902, the plaintiffs in error owned and were operating a sawmill in Lewis county; that the said Hol-lister was employed by them in the capacity of sawyer, and while in the discharge of his duties as such, and without any negligence on his part, was killed by the explosion of the boiler attached to the engine, by means of which the sawmill was operated; that the boiler was old, defective and unsafe, and wholly unfit for the work to which it was put; and that its condition was unknown to Hollister; but was known to the plaintiffs in error, or could have been ascertained by the exercise of proper diligence and care. The suit was brought for the benefit of the widow and child of the deceased.

The plaintiffs in error, who were defendants below, entered a plea of not guilty.

There was evidence tending to sustain the allegations of the declaration, and the jnry rendered a verdict of $9,000 in favor of the plaintiff below, and judgment was rendered thereon by the court, after a motion for a new trial had been overruled. Prom this judgment the plaintiffs in error prayed and obtained an appeal, and have assigned errors.

The first error that claims our attention is the charge of his honor npon the measure of damages. After stating to the jury the substance of chapter, 186, p. 259, Acts 1883, he told them that there were two classes of damages assessable thereunder: First, such damages as the deceased himself could have recovered “had he been permanently disabled for life,” and he himself were prosecuting the suit, and that in estimating this class they should take into consideration the mental and physical suffering of-the deceased, his earning capacity, and the probability of his continuance in life; secondly, that, in addition to the foregoing damages, the plaintiff would he entitled to recover also such pecuniary damages as had been sustained by the widow and child, consequent upon the death of the husband and father, the said W. A. Hollister, and that in estimating this latter class of damages they should look to the ability of Hollister to furnish his wife and child a support, and the nature and extent of the support he did give them, and to the probability of the continuance of that support, and his ability to provide, and to the probability of a continuance of tlieir dependence upon him for support.

Error is assigned upon this portion of the charge, and the questions presented thereby were fully argued at the bar, and, in addition, we have been furnished with briefs upon both sides — not only briefs prepared in this case, but also in another case pending before the court, involving similar questions. All of these briefs we have read, and attentively considered.

The questions made, and argued with great ability, go to the foundation of the rules for measuring damages recognized in this State in the class of cases we have before us, and we have decided to undertake and present a review of the whole matter. We are the more moved to undertake such an inquiry, although the labor it imposes is very great, because of the frequent misapprehensions of these rules that appear in the charges of able and learned circuit judges, indicating some uncertainty, real or apparent, in our reported decisions, which are the source of authority to Avhich they must resort when instructing juries brought before them.

The provisions of the Code are:

“2291 (Shannon’s Code, 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 or omission of another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representative, for the benefit of his widow or next of kin, free from the claims of creditors.

“2292 (Shannon’s Code, sec. 4026). The action may he instituted by the personal representative of the deceased, but if he declines it, the widow and children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit, on 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.

“2293 (Shannon’s Code, 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.”

On December 14, 1871, p. 70, ch. 78, of the acts of that year, the following amendment was passed:

“Section 1. That section 2291 of the Code of Tennessee be so amended as to provide that 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 had 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 Ms children, or to his personal representative, for the benefit of his widow or next of kin, free from the claims of creditors.

“Sec. 2. That section 2292 be so amended as to allow the widow, or if there be no widow, the children, to prosecute suit, and that this remedy is provided in addition to that now allowed by law in the class of cases provided for by that section, and 2291 of the Code, which this act is intended to amend.”

Another statute was passed in 1888, page 259, ch. 186, of the acts of that year. This act will be stated later in connection with certain decisions of this court, so as to present it in its historical connection.

In order that we may properly understand the meaning of these sections in respect'of the measure of damages applicable thereunder, it is necessary that we should review their history after enactment, as they appear in our judicial decisions.

The first reported decision bearing upon the matter is Railway Co. v. Burke, 6 Cold., 45, decided at the December term, 1868. At that time there were in force only sections 2291 (Shannon’s Code, sec. 4025), 2292 (Shannon’s Code, sec. 4026) and 2293 (Shannon’s Code, sec. 4028). Burke was killed upon the line of the railway company, and the latter was sued for damages. The circuit judge charged the jury that the damages recoverable were those suffered by the widow and children by reason of the killing of Burke, the husband and father. In passing upon this point, and speaking through Jndge Smith, this court said: “The damages recoverable are those suffered by Burke, and which he could have recovered had he lived; and not those suffered by his widow and children in consequence óf his being killed. Such is the proper construction to be put on Code, secs. 2291, 2292 and 2293-. The cause of action is the injury done to Burke, and the right of action of the personal representative is for that cause of action and is that right of action Burke had and could have prosecuted had he lived, and the damages recoverable are for that cause of action.” Again: “The killing of a man is not of itself a cause of civil action. The damages recoverable are for what was incurred or suffered while the person lived. If the killing be absolutely instantaneous, damages are not recoverable, for that Avould be giving damages for the mere act of killing.”

The charge of the circuit judge was, therefore, held to be erroneous, and the judgment in favor of the administrator below was reversed, and the cause remanded for a new trial.

The next case was Railway v. Prince, 2 Heisk., 580, decided in January, 1871. In this case it appeared that the husband of the plaintiff below, Raney Prince, had been killed, as was stated in the opinion, instantaneously, upon the track of the railway company. The widow, having qualified as administratrix, sued the company, and in her declaration placed her right to recover upon “such damages as she and her children may have sustained by reason of defendant below having deprived of his life the husband of the plaintiff, Nancy, and the father of the children.” No other claim for damages was made in the declaration.

During the progress of the trial the railway company offered to prove by several witnesses that Prince was a drunken, worthless'man; that he provided nothing for his family, and consumed what his family supplied. This testimony was objected to, and the objection sustained, and the evidence rejected, and error was assigned upon the action of the court. This court, speaking through Chief Justice Nicholson, said that it was manifest that this evidence was erroneously rejected if the plaintiff below was entitled to recover for the injury which she and her children had sustained by the death of the husband and father. The circuit judge excluded the testimony on the ground that such damages could not be recovered, but this court said upon this point that it was obvious, if the plaintiff below could not recover damages for the loss of her husband, she could recover none whatever in the suit, because she claimed none other in her declaration. “This raises the important question,” the opinion proceeds, “whether damages sustained by a wife and children in consequence of the killing of the husband and father can be recovered in an action instituted under Code, sec. 2291.” Then, after quoting that section, it was observed that one object of the section was to prevent the abatement of the right of action, which one has Avho has received personal injuries, from which such person subsequently dies; that it was not material whether the person injured had commenced his action before his death or not; that in either case the section referred to would prevent the abatement of the right of action, and transmit it to his personal representative for the' benefit of his widow and nest of kin. “Looking to the obvious purpose of the legislature in this alteration of the common law,” continues the chief justice, “we are satisfied it was intended that the representative of a person who had died from-personal injuries should have the right to recover damages, not only for the mental and bodily sufferings, loss of time and necessary expenses resulting immediately to the deceased from the personal injuries, but also for the damages resulting to the parties, for whose benefit the right of action survives, from the death consequent upon the injuries received.” Then, after discussing the question whether the section of the .Code referred to preserved the right of action in case of instantaneous death, the final result of the court’s deliberations is thus stated: “It follows that the representative of the deceased has a right to recover damages sustained by his Avidow and children in consequence of his death, whether the death resulted instantaneously from the injuries or not. It would have been absurd to give the right of action for damages for the mental and bodily sufferings of a person whose death was instantaneous. Yet a right of action is given for the benefit of the widow or next of tin. It follows that the damages intended to be provided for was the loss of husband and father. Such, we are satisfied, was the intention of the legislature, and we think their intention is manifested Avith sufficient distinctness in the language employed. This court, in the case of Louisville & Nashville Railroad Company v. Burke, 6 Cold., 45, put a different construction on the section of the Code under consideration. But, as we can not concur in the construction placed, in that case, upon the section as to the point under examination, we are constrained to overrule so much of the decision as relates to the particular question here discussed.”

It was accordingly held in that case that the testimony offered by the company was competent to the effect that the husband and father, for whose death the suit was brought, was a drunken and worthless man, and made no provision for his family.

The next casé was Railroad Company v. Stevens, 9 Heisk., 12, decided in December, 1871. This was an action to recover damages for the death of a fireman who was killed by the explosion of a boiler. Upon the subject of the recovery of damages the court, speaking through Judge McFarland, said: “Under this statute the damages which the deceased could have recovered had he lived, and his mental and bodily suffering, loss of time, expense, etc., are clearly embraced, and in fact it bas been supposed this was all. There is no express provision that the jury may consider tbe loss to the widow and children or next of kin; but in the case of the N. & C. R. R. Co. v. Prince, 2 Heisk., 580, this court held that under this statute it was intended the representative of a person who had died from personal injuries should have the right to recover damages, not only for the mental and bodily suffering, loss of time and necessary expenses immediately resulting to the deceased from the personal injuries, but also for damages resulting to the parties, for whose benefit the right of action survives, from the death consequent upon the injuries received. . . . The result of this decision was to make our statute embrace, in addition to the damages for the suffering of the deceased, his loss of time, etc., had he lived, also the pecuniary loss his death caused to his widow and children or -next of kin; and in this latter respect the subject-matter of damages is similar to the statutes of New York and Pennsylvania; and, as we have seen, they are confined to pecuniary damages, and do not allow damages for the grief of the widow or children. We think this is safest. In fact, as remarked by counsel, it is somewhat incongruous to undertake to give compensation to the widow for her grief. We do not see how Ave could extend our statutes further than the New York and Pennsylvania statutes. We do not doubt the construction given in the Prince case, but we can carry it no farther.”

The next case was Railroad v. Mitchell, 11 Heisk., 400, 407, decided at the September term, 1872. In this case the opinion in the Prince case was again referred to and reaffirmed.

The next case was Collins v. Railroad, 9 Heisk., 841, decided, as shown by the reporter’s note, at the September term, 1874. That suit was brought by a widow for the killing of her husband, under the act of December 14, 1871, p. 70, ch. 78 (which we have set out, supra), amending sections 2291 and 2292 of the Code. The plaintiff below obtained verdict and judgment, and the railroad company appealed. The first question was that, inasmuch as the killing of the plaintiff had not occurred prior to the passage of the act, the suit could not be maintained by tire widow, but should have been brought by the administrator.. This construction was held to be unsound. It was-next insisted that there was error in the charge of the court “to the effect that in this action the jury could award the damages of the children as well as the widow, rvhen the declaration is only on behalf of the widow.” Upon this point the court, speaking through Judge Sneed, said: “It will be seen from section 2293 of the Code that the law itself gives direction to the recovery in such cases. The widow and children are the beneficiaries of the action; and this section stands unrepealed and unaffected by any subsequent legislation. Tbe recovery in tbis case, there being several children, inures to the benefit of the widow and the children, to be distributed as personal property, in the language of the statute. The courts will see to the disposition of the recovery. We have held at the present term, in the case of Sample v. Smith [1 Tenn. Cas., 284], that, when the action is brought under the Code in the name of the administrator, by the widow, the children are not necessary parties to the action; and we can see no reason for varying the rule in a case like this. In any case when there are children, and the action is brought by the widow or the administrator, the law itself disposes of the recovery to the use and benefit of the widow and children. We see no error in the charge on this subject. We are asked to reconsider and revoke the doctrine announced in the case of Prince, 2 Heisk., 580, Avkich has been adhered to in several subsequent cases, that ‘damage may be awarded not only for the mental and bodily suffering, loss of time and necessary expenses resulting to the deceased from personal injuries, but also for the loss and deprivation resulting to the parties for whose benefit the right of action survives,’ . . . The word ‘damages,’ in legal parlance, means the indemnity recoverable by a person who has sustained an injury, either in his person, property or relative rights, through the act or default of another. To constitute a right to recover damages, the party claiming damages must have sustained a loss; the party against whom they are claimed must be chargeable with the loss. The loss must be the natural and proximate consequence of the wrong. 1 Bouv. L. D., 422. If the plaintiffs had a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they may recover for it; and, the greater the value of the' life to them, in a pecuniary point of view, the more' perfect the right of recovery. Sh. & Redf., Neg., 612. Now, it is argued that it is only the right of action which the deceased would have had, had he lived, that passes to the widow, and that this does not include the incidental injuries to his family occasioned by the wrong to himself, as well as his mental and bodily suffering, etc. If he had lived, and had been disabled for life or a series of years, or even seriously injured, he would have been entitled to compensatory damages. If he had a wife and children, whom he had supported by his industry, to whom he was now unable to render any assistance on account of his injuries, this privation of himself and family would necessarily constitute an element in the .computation of damages. And, if his life is lost to them, why may not the privation to them of the aid and mainten-anee he had given them still enter into the computation of actual damage sustained by them? The widow has lost a husband, the child a father, and both have lost the food and raiment which his industry provided. Had he lived, he could have indemnified the last privation by his action against the wrongdoer; and, having died, the same right of indemnity passes to them. This is the sense of the law as we understand it, and we see no reason to depart from the doctrine of onr adjudged cases upon the subject. N. & C. R. R. Co. v. Mary Stevens, 9 Heisk., 12.” The case of Collins v. Railroad Co., although appearing in 9 Heisk., 841, among the decisions of April term, 1872, was, as previously stated, not decided until the September term, 1874. The reporter states in the note previously referred to that he was directed by the court to publish it in 9 Heist. That volume was not published until August, 1877.

So the cases stood until January term, 1876, when the case of Fowlkes v. Railroad Co. was decided. This case is also reported in 9 Heisk., 829-841. As to date of decision, see reporter’s note on page 829. In this note it is stated that the case was decided at the January term, 1876, and was ordered by the court to be reported in 9 Heist.. The case is also reported in 5 Bast., on page 633 et seq.

In this case the question for determination was when the statute of limitations would begin to run. In order to determine this, the court found it necessary to consider the nature of the cause of action. In reaching a conclusion upon the point, the court, speaking through Judge McFarland, said: “The purpose [of Code, sec. 2291] seems simply to have been to repeal that rule of the common law that actions for personal injuries die with the person in those cases where the injured party dies of the injury; but, whether the action be brought by the party himself, or his representative after his death, the cause of action is the same, and is governed by the same laws. . •. . The argument against this view is that the action allowed by this statute is a new action, given to the personal representative; an action which the injured party could not have maintained; that the action is given to the personal representative on account of the death of the injured party; that his death is the cause of action, and this, of course, could not accrue to the injured party himself, but only accrue to his representative, and could not accrue to him until his appointment. This argument, though plausible, is not sound. As we have seen, the statute is equally applicable to cases where the injured party lives a time and to cases where death is instantaneous. When the injured lives a time after the injury, he has a cause of action without the statute. If an action be brought by the party himself, and he then dies of the injury, before judgment, the effect of the statute is to prevent an abatement, and to allow the cause to proceed notwithstanding the death, but not on account of the death. The cause of action was the injury. And in such cases the action after the death is prosecuted for the same cause for Avhich it was brought, and is the same action. In cases where no action is brought by the injured party himself, the statute .allows the action to be brought by the representative. This could not have been done at the common law, and it is, therefore, in this sense, a new and statutory action. But it is brought for the same cause as if the injured party had himself brought the action. . . . It is true that some of the cases seem to have introduced a new element of damages in cases where the action is brought by the representative; that is, damages for the loss of the society, etc., of the husband, father or relative to the widow or next of kin; that in such cases damages might be allowed beyond what would be proper when the action is brought by the party himself. Some of these cases stand upon doubtful grounds; but even Avhere the action is brought by the party himself, damages might, in a proper case, be given, to the same extent as if death had ensued, i. e., where the injury disables the party for life. In such a case the injury, in a pecuniary sense, would be the same as if death had ensued.”

It was accordingly held that the statute of limitations begins to run from the date of the injury to the deceased, and not from the date of the appointment of the personal representative. Two of the judges dissented.

Previously, at the April term, 1874, a decision had been rendered (Haley v. Mobile & Ohio R. R. Co., 7 Baxt., 239), in which the same views which are set forth in the Fowlkes case had been briefly and incidentally indicated in considering the question of punitive damages.

The next case after the Fowlkes case was Trafford v. Adams Express Co., 8 Lea, 96, decided at the December term, 1881. In this case the court, speaking-through Judge Cooper, said: “Upon a careful examination of the question, and a review of the authorities and the law bearing on the subject, I concur with the majority of the court in the opinion delivered in Fowlkes v. N. & D. R. R. Co., not only in the conclusion reached, but in the reasoning on which the conclusion is based. It seems to be clear that the legislature, by the statutory provisions under consideration, intended to abolish the rule of the common law touching the abatement of rights of action for personal torts producing death, and to provide that the right of action of the person injured, subject to his control during life, should survive to his widow and children, or personal representative, as the case may be; and that the only damages which can be recovered in any action under that statute are the damages which the deceased was entitled to recover if he had sued. In this view the statutory provisions are simply those of the abatement and revivor of the particular class of actions; the recovery, in the event of the death of the person injured, without a different valid disposition on his part, being distributable as other personal property of the deceased, free from the claims of creditors. The provisions dovetail exactly into our general system of laws regulating the right of action of deceased persons. There is no anomaly either in the character of the recovery or in its distribution.”

The next case was Railroad Co. v. Smith, 9 Lea, 470, decided at the September term, 1882. Thic case is in strict accord with Fowlkes v. Railroad Co. and with Trafford v. Adams Express Co., supra. The court said : “The damages to be recovered are those sustained by the injured party. The action is not for wrongs to the husband or next of kin. The damages are such as the injured party could have recovered if, instead of being killed, he had been disabled for life; if not the same amount, at least for the same element of damages.”

The next case is Railroad v. Toppins, 10 Lea, 58, decided at the same term of the court as the preceding case. Speaking to the same subject, the court said: “The charge contains one positive error; that is to say, the jury were instructed that, in addition to the damages which the deceased himself ought to have received if he had lived, damages might also be allowed for the deprivation resulting to the parties for whose use the suit is brought, that is, the widow and children. This charge was justified by several expressions in the published opinion of this court, but there has always been conflict of opinion upon the question, and we have more recently held the true rule to be that the action is the same in its character and as to the element of damages as if death had not resulted, and the action had been brought by the injured party himself; and hence damages to the widow or next of kin in their own right are not to be considered.”

The next case was Railroad v. Conley, 10 Lea, 531, 534, which was decided at the December term, 1882. In this case the court said: “In giving instructions as to the measure of damages, the court told the jury that they might estimate what the life of the deceased was worth to his widow and children in a pecuniary sense, and might also consider the loss of his assistance in maintaining the family, educating and taking care of the children, and allow such sum in their verdict. This charge is erroneous, as we held in two cases at the present term,” referring to preceding cases, which we have already mentioned.

Next in the order of time comes the act of March 26, 1883, being chapter 186, p. 259, of the acts of that year. The statute reads as follows:

“A bill, to be entitled an act to define the measure of damages recoverable in case of the death of a person caused by the wrongful act, fault or omissions of others.

“Section 1. Be it enacted by the general assembly of the State of Tennessee, that where a person’s death is caused by the wrongful act, fault or omission of another, and suit is brought for damages as provided for by sections 2291 and 2292 of the Code of Tennessee, and as provided for by tbe act approved December 14, 1871, cb. 78, entitled, ‘An act to amend sections 2291, 2292, of the Code of Tennessee,’ the party suing shall, if entitled to damages, have the right to recover damages for the mental and physical 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.

“Sec. 2. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.”

There were several cases decided by the court, and opinions published in them, after this act was passed, but- in which it appeared that the injuries were inflicted prior to this statute, and consequently the measure of damages applied, assuming them to be really different, -was that one which was established in Railroad v. Smith, 9 Lea, 685, and other cases on that line. These subsequent cases were Railroad v. Pounds, 11 Lea, 127; Railroad v. Gurley, 12 Lea, 46, and Railroad v. Gower, 85 Tenn., 465 (3 S. W., 824. Those cases need not be more particularly mentioned at this time.

The first reported case decided under the statute was Railroad Company v. Stacker, 86 Tenn., 343 (6 S. W., 737; 6 Am. St. Rep., 840), decided at the December term, 1887. It appeared that the deceased was injured on the 19th of April, 1883, from which injuries he subsequently died. It also appeared that he .was fifty-seven years old, and was a paralytic. The jury rendered a verdict for |12,000 damages, and the railway company appealed. The chief question discussed was whether the verdict was so large as to evince passion and prejudice, in view of the feeble condition and small earning capacity of the deceased at the time he was injured; and it was so held. In deciding this question, after stating that both the negligence of the railway company and of the deceased should be considered in estimating the amount, the court, speaking through Judge Snodgrass, said: “In the adjustment of these questions, of course, the value of the life must he, in reasonable aspects, estimated, and in that connection there are some practical rules to be applied, which are sometimes called ‘cold calculations,’ because they require a dispassionate estimate of the real condition and expectation of life at the time of the injury. By whatever term, however, they may be designated, they are just, and, so far as it is practicable to do so in so delicate and difficult a question, are intended to arrive at justice. The age, condition, capacity of earning money, and expectation of life, are all to be considered; and not only considered, but given due weight in arriving at what is a fair and just result.”

The next case was Railway Company v. Howard, 90 Tenn., 145 (19 S. W., 116), decided at the April term, 1891. This case, however, contains nothing concerning the special measure of damages provided by the act of 1883. It merely restates the rule that it is competent to show the ability and capacity to labor of the deceased, as well as his skill in any particular art or profession, in order to show his earning capacity, with the qualification that his earnings for any special year could not he shown.

The nest case was Loague v. Railroad, 91 Tenn., 458 (19 S. W., 430), decided at the April term, 1892. In the opinion in that case the court, speaking through Judge Lurton, said of the act of 1883: “This act in no way changes the mode of suing. The suit must still be prosecuted by the widow, or the children if there is no widow, or by the personal representative of the deceased. It does not confer upon the widow any independent right to sue exclusively for the damages resulting to herself or the children. One action is given. In it all the damages resulting either to the deceased or to those for whose benefit the action may be prosecuted are to be recovered. The only effect of the act is to enlarge the right of the person suing so as to permit the recovery of the damages peculiar to the widow and children, together Avith the damages which the deceased might have recovered for his own benefit, and on account of his own suffering and loss. . . . The right of action is still the right of the deceased, although the recovery may include as an element such damages as were sustained by the persons to whom the statute gives the recovery.” This was said in determining the question whether the widow’s right of action could be revived in the name of her personal representative when she died pending the suit which she had instituted to recover damages for the death of her husband.

The next case was Railroad v. Spence, 93 Tenn., 173 (23 S. W., 211; 42 Am. St. Rep., 907), decided at the April term, 1893. In that case it appeared that the deceased was killed in a collision on the line of the railway company. Upon the subject of the measure of damages the court, speaking through Judge McAlister, said: “The next assignment of error is based upon the charge in respect to the measure of damages, viz., That in estimating the damages the jury should look to the proof as to what was the expectancy of life of the deceased, and see what amount he was able to and was earning at and before his death, and from all the proof . . . decide what he would have earned during this expectancy of life from the time of his death, and then allow her such sum as would reasonably compensate her for the loss of whát he would have earned during that expectancy of life from the time of his death.’ This charge was erroneous. It was perfectly competent for the plaintiff to prove the expectancy of life of the deceased, his capacity for earning money, his habits, age and condition. But it was erroneous for the court to charge that- they must ‘decide what he [the deceased] would have earned during that expectancy of life from the time of his death, and then allow her such sum as would reasonably compensate her for the loss of what he would have earned during that expectancy of life from the time of his death.’ The assessment of damages in actions of this character does not admit of fixed rules and mathematical precision, but is a matter left to the sound discretion of the jury. The courts refuse to lay down any cast-iron rules or* mathematical formula; by which such damages are to he ciphered out by juries. It is the duty of the court to point out the different elements proper to be considered in the assessment of damages, but it is erroneous to give the jury a rule by which to figure out the damages as they would a mathematical problem in cases like this, where the future earnings of the deceased and his expectation of life are mere probabilities. . . . The amount the deceased would have earned during his expectation of life was purely a matter of speculation, and his expectation of life w¿s a mere probability. This instruction ignores the fact that plaintiff’s intestate was engaged in a most hazardous occupation, and that his expectation of life while it was exposed to the perils of railroad service was more precarious than if he had been engaged in some less dangerous employment. The wages he would have earned Avere contingent upon his enjoyment of this precarious expectation of life, upon the constancy of bis employment, and upon tbe performance of bis duties with regularity and satisfaction to bis employer. Tbe objection to tbe charge is that both tbe elements of damages are treated as assured facts, and tbe jury were invited to calculate tbe damages by this uncertain standard, instead of leaving tbe assessment of tbe damages to tbeir sound discretion, upon a consideration of all tbe elements of damages admitted as evidence.”

The next case was Bamberger v. Citizens’ Street Railway, 95 Tenn., 18, 35, 36 (31 S. W., 163; 28 L. R. A., 486; 49 Am. St. Rep., 909), decided at tbe April term, 1895. In that case tbe court said, speaking through Judge Wilkes: “In tbe unreported case of Andrews v. L. & N. R. R. Co. (decided by tbe court at tbe December term, 1893, at Nashville) it was held that tbe elements of damages recoverable under section 3134 [Act 1883] embraced not only all that the administrator might be entitled to recover, but also all that might be recovered by tbe father in bis own right; and, a recovery having been bad as administrator, it was a bar to any further action by tbe father in his own right for loss of bis son’s services. It is said tbe right to recover by tbe administrator is tbe same right that tbe deceased bad if be bad lived; but this is not (construing tbe statutes together) strictly accurate, for tbe right is not only as administrator, but as father, and the damages are given in view of both aspects of tbe case, and embrace both rights. The right is not strict] y descendible or heritable right, but one arising out of the special statute, and as to its scope is governed by the statute.” That suit was an action for personal injuries resulting in the death of Samuel Bamberger, a child about three years of age. The suit was brought by the father of the child or next of kin of the deceased. There was a verdict, also judgment, in the court below in favor of the defendant company. There was evidence tending to show that the father had been negligent in the care of the child, and that the injury had been occasioned thereby. Speaking to this phase of the case, the court said: “The underlying principle of the whole matter is that no one shall profit by his own negligence, and to allow the father, who has been guilty of negligence, to recover, notwithstanding that negligence, when he brings the suit as administrator, although he could not do so in his own right, would be to defeat this underlying principle by a mere change of form, when the entire recovery in either event goes to him alone. Upon principle 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 negligence when he is sole beneficiary.”

The next case was Holston v. Coal & Iron Co., 95 Tenn., 521 (32 S. W., 486), decided at the September term, 1895. This case, however, merely decided a point of practice in. connection with the class of cases we have before us, and we need not note it further.

The next case was Railroad v. Johnson, 97 Tenn., 667 (37 S. W., 557; 34 L. R. A., 442), decided at the September term, 1896. That was a suit instituted by the administrator of Mrs. Johnson to recover damages for the alleged wrongful killing of the intestate by the railway company. The point decided was that the right of action which the husband and wife had at common law for an injury to the wife survived, under Code, sec. 2291, to the husband, and that he took the recovery juri mariti, to the exclusion of the next of kin, and that, therefore, the child of the deceased wife and mother took no part of the judgment. Speaking of the measure of damages under the act of 1883, the present chief justice said: “It is evident that the passage of this act was not to create a new class of beneficiaries, but to extend the scope of recovery by allowing not only damages which the deceased might have recovered for his or her own benefit, but also such as resulted from the death to the parties ‘for whose use and benefit the right of action survived.’ With this single modification, it left the law of this State, so far as the rights of. the surviving husband in such cases are concerned, as was announced in Trafford v. Adams Express Co.”

The next case was Railroad v. Wyrick, 99 Tenn., 500 (42 S. W., 434), decided at the September term, 1897. That was an action brought by a widow for the negligent killing of her hnsband. In that case it appeared that the circuit judge had charged the jury “that they could look to the mental and physical suffering of the plaintiff [widow] in connection with the loss of her husband.” After quoting the act of 1883, and noting that the statute expressly authorized a recovery for the mental and physical suffering endured by the deceased, and that, without enumerating any special elements, it allowed a recovery for the damages resulting to the parties for whose use and benefit the right of action survives, the court, speaking through Judge McAlister, said: “The question then presented for adjudication is whether the word ‘damages,’ used in this statute, was intended to embrace the mental and physical suffering resulting to the widow or next of kin. The act óf 1.888 is almost a literal transcript of the rule for the admeas-urement of damages laid down in the case of Nashville & Chattanooga Railroad Co. v. Nancy Prince, 2 Heisk., 586. . . .

“In the case of Nashville & Chattanooga Railroad Co. v. Mary Stevens, Adm., 9 Heisk., 12, decided in 1871, it appeared that the trial judge had instructed the jury that they might allow damages ‘for the shock to the feelings of the wife and children resulting from the sudden death of the deceased.’ Judge McFarland, in reviewing the Prince case, said, viz.: ‘The result of the decision was to make our statute (Shannon’s Code, sec. 4025) involve, in addition to the damages for the suffering of deceased, his loss of time, etc., had he lived; also the pecuniary loss his . death caused to his widow and children or next of kin; and in this latter respect the subject-matter of damages is similar to the statutes of New York and Pennsylvania, and, as we have seen, they are confined to pecuniary damages, and do not allow damages for the grief of the widow and children. We think this is safest. In fact, as remarked by counsel, it is somewhat incongruous to undertake to give compensation to the widow for her grief. We do not see how we could extend opr statutes further than the New York and Pennsylvania statutes. We do not doubt the construction given in the Prince case, but we can carry it no farther.’ We are of opinion, therefore, that when the rule for the assessment of damages recovered in the Prince case was re-enacted by the act of 1883, it was adopted as it was understood and interpreted by the courts, and was not intended further to enlarg’d the elements of damages. The damages allowed to the widow and next of kin, resulting to them, laid down in the Prince case, was construed by this court in the Stevens case to mean pecuniary loss, and not damages on account of grief and mental suffering of the widow and next of kin. This construction, we think, is in accord with the great weight of authority on the subject. . . . Under our act of 1883 damages for the mental and physical suffering, loss of time, etc., of the deceased are also recoverable, and are superadded to tibe pecuniary damages sustained by tbe widow or nest of kin.”

Tbe next case was Whaley v. Catlett, 108 Tenn., 347 (53 S. W., 131), decided at tbe September term, 1899. In tbat case tbe question for determination was when tbe statute of limitations would begin to run. In deciding tbis question tbe court took into consideration all of tbe sections of tbe Code wbicb we bave above referred to, and also tbe act of 1883, and, speaking through. Judge 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 tbe continued existence and passing of tbe right of action of tbe deceased, and not for any new and independent cause of action in bis widow, children, or next of kin. . . . It is alone by virtue of these statutes tbat a right of action exists in tbe widow, children, or next of kin at all for tbe unlawful killing of tbe deceased, and tbis right exists under tbe statute, not because it arises directly to them in their own right, but because it passes to them in right of the deceased.” Referring to a former case (Railroad v. Pounds, 11 Lea, 129, 130), in wbicb the act of 1883 bad been spoken of as giving a new cause of action, Judge Wilkes proceeds: “Tbe learned judge used an inapt expression in speaking of it as a new cause of action, and tbe real bolding was tbat tbe parties suing were not entitled to tbe new and enlarged measure of damages provided by that act for a cause which arose before the act.” It was accordingly held that the statute of limitations under the act of 1883, as well as under the former acts, began to run from the date of the infliction of the injury upon the person for whose death the suit was brought.

The next case was Railway v. Davis, 104 Tenn., 442 (58 S. W., 296), decided at the April term, 1900. This was an action brought by a widow for the killing of her husband. The suit was brought by the widow for her own use, and the children were not mentioned in the declaration as beneficiaries. The court below, notwithstanding the form of the declaration, charged the jury that plaintiff had a right to recover such pecuniary damages as resulted to her or the children, for whose use and benefit the action was brought. Upon objection to this portion of the charge, the court, speaking through Judge McAlister, said: “It is insisted that, as the declaration makes no'mention of the children, and the suit was brought solely for the widow, evidence of the number of children was improperly admitted, and that the court erred in instructing the jury that the plaintiff could recover such damages as resulted to her or the children. There was no error in this action of the court. In Collins v. East Tennessee, Virginia & Georgia Railway Co., 9 Heisk. 641, it was held, viz.: ‘In any case where there are children, when the action is brought under the Code, either by the widow or the administrator, the children are not necessary-parties. The recovery inures to the benefit of the widow and children, and will be distributed as personal property.’ The court in that case also said, viz.: It is further insisted that there is error in the charge of the court to the effect that in this action the jury could award the damages of the children as well as the widow when the declaration is only on behalf of the widow. It will be seen from the Code that the law itself gives direction to the recovery in such cases. The widow and children are the beneficiaries of the action.’ In Sample v. Smith, 1 Shannon’s Cases, 284, it was held, viz.: ‘It was not essential that the names of the children for whose use the action was brought should have been set forth. The law determines who are to be entitled to the benefit- of the recovery.’ In the case of Spiro v. Felton (C. C.) 78 Fed., 91, it was held, viz.: ‘In an action for damages for an injury causing death, brought for the benefit of the widow or nest of kin of the deceased, evidence of the number and ages of the children of the deceased is competent.’ These authorities are conclusive of this question, and it results that the judgment must be affirmed.”

The nest case was Daniel v. Coal Co., 105 Tenn., 470 (58 S. W., 859), decided at the September term, 1900. In that case the question was, when a damage suit had been brought by the injured person, and he died pending the suit, whether it could be subsequently prosecuted without revivor. In disposing of this question the court, speaking through Judge Caldwell, said: “Death from wrongful act and existence of widow or next of kin are the two controlling facts; and they must co-exist in every instance. When either of them is lacking, no one of these statutory provisions is applicable. If the person wrongfully injured by another commences his suit for damages Avhile living, he does so under the general law; and, if he dies from the injury sued for before judgment, leaving a widow or next of kin, his suit survives, and may proceed to judgment under the last-quoted provision of the statute (Code 1858, sec. 2293; Mill. & Y. sec. 3133; Shannon’s Code, sec. 4028) without re-vivor. But if either of the essential elements — death from wrongful act and existence of designated beneficiary — be wanting, that provision does not authorize the prosecution of a deceased plaintiff’s suit without revivor ; nor, indeed, does it authorize the revivor of such a suit.”

The next case was Freeman v. Railroad, 107 Tenn., 340 (64 S. W., 1),decided at the April term, 1901. This was an action for damages for personal injury resulting in the immediate death of one B. T. Robertson. It was brought by the administrator for the benefit of the next of kin of the deceased, who were stated to be his mother, one brother, and sister. The declaration averred that the deceased left no widow or children or father surviving him, but left a mother, brother, and sister. The contention was made in the court below and in this court that the mother was the nest of kin to the defendant, and that it was error to allow the plaintiff to show that deceased had a brother and sister, as they could have no interest in the recovery, and that the fact that there was a brother and sister induced the jury to give greater damages than they otherwise would have given. Upon this subject the court, speaking through Judge Wilkes, said: “We think that the conclusion is hardly warranted upon any reasonable hypothesis, and we can not see that the fact would have at all increased the amount of damages awarded, and such assumption is not well grounded. The action in the case is based on the provisions of the statute (Shannon’s Code, secs. 4025-4029). These sections prescribe the persons for whose benefit the action may be brought, and, in substance, that the right of action vests primarily in the widow, next in the children, or in the personal representative for the benefit of the widow or next of kin. It has been held that, if no widow or children survive, then the right of action belongs to the father, or to the personal representative for the use and benefit of the father or next of kin. Railroad v. Bean, 94 Tenn., 395,396 (29 S. W., 370). The judge was of opinion these sections of the Code should be construed in connection with and in the light of the statutes relating to the distribution of estates. Subsection 5 of section 4172 provides that in the distribution of personal estates, ‘if there is no father, the property shall go to the mother and brothers and sisters, or the children of such brothers and sisters representing them, equally, the mother taking an equal share with each brother and sister.’ We think this is the proper view of the statutes. The recovery, when realized, becomes personal property, and follows the usual course of distribution of personalty. Loague v. Railroad, 91 Tenn., 461 (19 S. W., 430) ;Railroad v. Bean, 94 Tenn., 388 (29 S. W., 370). The parties who are entitled to take under the statutes of distribution are, in contemplation of the other statutes, the next of kin, and there wms no error in allowing evidence to show that there was a brother and sister of the deceased, as well as a mother. . . . It is said that the court-should have charged the jury that the mother and brother and. sister of the deceased were not entitled to the wages of deceased as a matter of law, and that they were not dependent upon him in a legal sense. It is only necessary to say that no such claim was made in the declaration, and damages were not sought upon this ground. Evidence w-as introduced to show the earning capacity of the deceased, and, without any objection, it was shown that he supported his mother, and the witnesses were cross-examined upon this point, and no exceptions were made to the evidence. The damages recoverable in such case are those which the deceased would have been entitled to had he survived, as well as those which the parties suing would have been entitled to in their own right. It does not appear that anything more was allowed than would have been recoverable in right of the deceased, and the recovery is small compared to the injury done, and the reckless manner in which it was done. We think the general charge sufficiently instructed the jury that they could give no damages for,the physical suffering, or mental anguish of the next of kin. It was not insisted that damages could be- awarded for this, and there is no evidence that it was taken into consideration by the jury.”

The next case was Railway v. Bentz, 108 Tenn., 670 (69 S. W., 317), decided at the April term, 1902. This action was brought by the widow of one Edward Bentz to recover damages for his death, alleged to have been caused by the negligence of the defendant company. An assignment of error was filed upon the following paragraph of the trial judge’s charge: “You also look to the loss of the aid — I don’t- mean pecuniary aid, but the aid of advice and counsel— that the plaintiff, Mrs. Bentz, has sustained by virtue of his death, and also look to the loss of comfort and enjoyment of his society. Now, these are the elements of damages to be considered by the jury in determining wbat amount of damages to allow her, if you find in favor of the plaintiff.” Reviewing this instruction, the court, speaking through the present chief justice, said: “We think this error is well assigned. In R. R. v. Wyrick, 99 Tenn., 509 (42 S. W., 434), it was said that under chapter 186, p. 259, of the Acts of 1883, which provided for a recovery of ‘damages resulting to the parties for whose use and benefit the right of action survived from the death consequent upon the injuries received,’ the widow could only recover her pecuniary loss on the death of her husband, and that case was reversed because the trial judge had said to the jury upon the measure of damages ‘that they could look to the mental and physical suffering of the surviving widow.’ The court then quoted approvingly from the opinion of Judge Sharswood, in Penn. R. R. Co. v. Butler, 57 Pa.,335, in which it is said that solatium for distress of mind is not a proper element in fixing the amount of the survivor’s personal loss. In the present case the learned trial judge — evidently by an inadvertence — excluded from the jury all consideration of the widow’s pecuniary loss, and told them ‘to look to the loss of comfort and enjoyment’ sustained by her from the negligent, fatal injury (if such it was) to her husband.” For this error the judgment was reversed.

The foregoing are all the decisions of this court upon the sections of the Code referred to, and upon chapter 186 of the acts of 1883, which in any wise throw light upon the measure of damages applicable to this class of cases. We have introduced into the inquiry some cases which, perhaps, have only a remote bearing, and so, it may be, we have extended our references beyond those which were really necessary to elucidate tbe subject. Still we think even these authorities will be found useful in presenting a full and complete view of the law upon the subject as administered in this court.

Regarding these cases all together in one comprehensive view, from the earliest to the latest, a striking fact appears, viz.: that in all of them only one right of action is recognized — that of the deceased— and that they all, so far as they speak to the subject at all, deny that any independent right of action exists in the widow, the children, or the next of kin. In no case is the point more strongly stated than in one of the latest — Whaley v. Catlett. In that case it is said: “The statute provides 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. . . . 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 right of the deceased.” 103 Tenn., 347 (53 S. W., 131). Again, in another late case occurs the following: “The right of action is still the right of the deceased, although the recovery may include as an element such damages as were sustained by the persons to whom the statute gives the recovery.” Loague v. Railroad, 91 Tenn., 458 (19 S. W., 430).

These and other authorities also recognize the fact that, although the action is a single one, two kinds or classes of damages are comprised in them. This point is aptly and briefly set forth by Judge Mc-Alister, in a recent case as follows: “Under our act of 1888, damages for the mental and physical suffering, loss of time, etc., of the deceased, are also recoverable, and are superadded to the pecuniary damages sustained by the widow or next of kin.” Railroad v. Wyrick, 99 Tenn., 500, 511 (42 S. W., 434).

It is thus apparent from the authorities that there are, under the sections of'the Code referred to and the act of 1883, two classes of damages recoverable in the same action: First, damages purely for the injury to the deceased himself; second, the incidental damages suffered by his widow and children, or next of kin, from his death. In the first class are embraced damages for the mental and physical suffering, loss of time between the injury and death, and necessary expenses resúlting to the deceased from the personal injuries. In the second class is embraced the pecuniary value of the life of the deceased (Railroad v. Wyrick, 99 Tenn., 500, 508, 511 (42 S. W., 434) ; Collins v. Railroad, 9 Heisk., 851; Railroad v. Stevens, Id., 12, 14, 15, 17, 18), to be determined upon a consideration of his expectancy of life, his age, condition of health and strength (Railroad v. Spence, 93 Tenn., 173, 188, 189, 23 S. W., 211, 42 Am. St. Rep., 907) ; Railroad v. Stacker, 86 Tenn., 343, 352, 353 (6 S. W., 737, 6 Am. St. Rep., 840), capacity for labor, and for earning money through skill in any art, trade, profession, occupation, or business (Railway Company v. Howard, 90 Tenn., 144 (19 S. W., 116); Bridge Co. v. Barnes, 98 Tenn., 601 (39 S. W., 714) ; Railroad v. White, 5 Lea, 540), and his personal habits as to sobriety and industry (Railroad v. Prince, 2 Heisk., 580); all modified, however, by the fact that the expectation of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform (Railroad v. Spence, 93 Tenn., 173, 188, 189, 23 S. W., 211, 42 Am. St. Rep., 907). All of these elements are to he taken into consideration by the jury, and, after weighing them all, they should assess such amount of damages as may be sufficient to compensate for the loss of the life whose value they are- attempting to estimate. In cases where there is contributory negligence they should make proper deductions for this, and in cases where the negligence of the person that inflicted the injury is gross or wanton they should make proper additions by way of adding-punitive damages. Railroad v. Stacker, 86 Tenn., 343, 352 (6 S. W., 737, 6 Am. St. Rep., 840); Railroad v. Wallace, 90 Tenn., 54 (15 S. W., 921); Railroad v. Fleming, 14 Lea, 137; Railroad v. Guinan, 11 Lea, 98 (47 Am. Rep., 279). No rules more exact than these can be formulated. At last it is a matter dependent most largely upon the judgment of the jury, and their sound discretion, after carefully, honestly, and fairly considering all of- the various elements that enter into the question.

In some of the cases referred to (notably the case which first made the suggestion — Oollins v. Railroad) it is said that damages belonging to what has just been denominated the “second class,” are to be estimated as if the deceased were himself still alive, but totally disabled, and in that condition suing for such injury. In the same connection, however, it is said that, if he were so alive, and so injured, he would be unable to give his family that attention and care which he could otherwise give to them, and that in this manner they would also suffer as well as he. But this is merely a method of showing how the injury to the husband and father has resulted in an incidental damage to the wife and children, or widow and children, or next of kin; illustrating the principle above referred to that there is only one cause of action, that of the person who was killed or injured, and that this cause of action is always viewed by the court as a single one. Or it may be said that, for convenience in estimating damages, and in order to separate in the mind the damages for the deceased’s pain and suffering, mental and physical, his loss of time, and necessary expenses attendant upon the injury (those damages peculiarly personal to him), from the incidental damages which the widow and children or next of kin are entitled to recover because of the incidental injury sustained by them, it is held that the latter damages are to be assessed as if the deceased were still alive, and totally disabled. For practical purposes, however, it is unnecessary that this supposition should be called to the attention of the jury, or considered by them as the starting point of the inquiry, or at any stage of it. It is sufficient that the pecuniary value of the life destroyed may be ascertained, as far as such a matter can be ascertained at all, in the manner and according to the rules already laid down. In two of the cases referred to above (Collins v. Railroad, 9 Heisk., 841; Railroad v. Davis, 104 Tenn., 442, 58 S. W., 296), the existence of children of the deceased was allowed to he proven, and in another (Freeman v. Railroad, 107 Tenn., 340, 64 S. W., 1), the existence of brothers and sisters; but not in either case, it seems, for the purpose of enhancing damages, hut only for the purpose of showing the existence of beneficiaries provided for by the sections of the Code and the act of 1883 — a matter always proper. Daniel v. Coal Co., 105 Tenn., 470 (58 S. W., 859).

The foregoing, we think, truly presents the result of all of our cases when brought together in one general view.

It is insisted, however, in the brief filed for defendant in error, that the elements of damages which we have assigned to what we have denominated the second class belong- really to the first class; that is, should be considered in estimating the damages which accrued to the deceased personally, as distinguished from those that should be assessed for the injury sustained by the next of kin or widow and children. This contention is based upon certain language appearing in Fowlkes v. Railroad Company, 9 Heisk., 831-833; Railroad v. Smith, 9 Lea, 474; Railroad v. Gurley, 12 Lea, 53.

The language referred to in Fowlkes v. Railroad is that the action “is brought for the same cause as if the injured party himself had brought it.” This is followed on the next page by the observation: “It is true that some of the cases [referring evidently to the Prince case, the Collins case, and the Stevens ease] seems to have introduced a new element of damages in cases Avhere the action is brought by the representative; that is, damages for the loss of the society, etc., of the husband, father, or relative, to the widow or next of kin; that in such cases damages might be allowed beyond what would be proper where the action is brought by the party himself. Some of these cases stand upon doubtful grounds; but even where the action is brought by the party himself, damages might, in a proper case, be given to the same extent as if death had ensued; i. e., where the injury disables the party for life. In such a case the injury, in a pecuniary sense, would be the same as if death had ensued.”

The language referred to in the Smith case is the following: “This is the statutory action given by section 2291 et seq. of the Code, and is the same action whether it he brought by the injured party in person or by his administrator after his death. Fowlkes v. Railroad, 9 Heisk., 829. Hence the damages to be recovered are those sustained by the injured party. The action is not for the wrongs to the husband or next of kin. The damages are such as the injured party could have recovered if, instead of being killed, she had been disabled for life; if not the same amount, at least for the same elements of damages.”

The language referred to in Railroad v. Gurley is the following: “The damages which were recoverable in this action were such as the injured party himself could have recovered if, instead of being killed, he had been disabled for life; if not the same amount, at least the same elements of damages. Railroad v. Smith. 9 Lea, 470, 474. It was competent to show the ability of the deceased to labor, and his capacity for labor, as well as skill in his art, business, or profession, iu order to show what he was capable of earning.”

It must be admitted that these statements cover the same elements of damages which we have assigned to the second class of damages, supra, and more. They cover every element of damages that are recognized by the Prince case, the Stevens case, and the Collins case, as those authorities are now interpreted and understood; because there can be no doubt that, if a person should be totally disabled by an injury, he could recover for mental and physical pain and suffering, loss of time, necessary expenses incurred by reason of the injury; and in estimating the value of the time lost by him, we should necessarily have to ascertain his probable expectancy of life, together with his capacity for labor and for earning money by his skill in any art, business, profession, or occupation. It results, therefore, that the rule for the measure of damages laid down in these cases (of Fowlkes, of Smith, and of Gurley) cover all of the elements of damage that could arise out of the deceased’s cause of action.

It is undeniable, however, that the earlier cases— the Prince case, the Stevens case, and the Collins case — were for a time understood as meaning more than this; that is, as warranting an independent right of action, and the recovery of independent damages, in behalf of the widow and children or next of kin. This is apparent from the remark of Judge McFarland in the Fowlkes case, 9 Heisk., 833, 834, that “some of the cases seem to have.introduced a new element of damages in cases where the action is brought by the representative, that is, damages for the loss of the society, etc., of the husband, father or relative, to the widow or next of kin; that in such cases damages might be allowed beyond what would be proper where the action is brought by the party himself. Some of these cases stand upon doubtful grounds,” etc. The same view is again indicated by Judge McFarland in the Smith case. He says (9 Lea, p. 474) : “The charge is also erroneous in instructing the jury that in estimating damages they might take into consideration the loss of social relation of husband and wife, parent and child, etc., and the advice and protection of the deceased as wife and mother. There are expressions in some of our opinions justifying this charge, to some extent at least. But,” etc. The deliverance in the Gurley case was taken directly from the Smith case without reference to the earlier cases, but in a case in the volume immediately preceding (Railroad v. Pounds, 11 Lea, 127, 130, 131), the same construction of the older cases appears. It was there said that the act of 1883 (which was in exact language, of that portion of the Prince case stating the measure of damages) constituted “a new or additional 'cause of action” in favor of the widow and children or next of kin. The same view of the older cases was entertained in Railroad v. Toppins, 10 Lea, 58, and Railroad v. Conley, 10 Lea, 531.

So, the indirect dissent in the Fowlkes case, and the cases depending on it, from the measure of dann ages established in the Prince case, and the cases based on it, was founded on the construction given to the latter cases, to the effect that they authorized the assessment of damages other than and in addition to such as arose out of the cause of action of the deceased himself, such as the loss of society, the comfort, counsel, and moral aid and support of the lost husband, father, mother, son, or brother.

It is true that the opinions in the Prince case and in the Stevens case, by reason of the generality of the language in which they were expressed, were open to that construction. But the Collins case, construing the other two, seems, in the discussion appearing in the last two pages of the opinion, to place the damages to be recovered as specially applicable to the widow and children or next of kin entirely upon the deceased’s right of action, working it out on the theory that, if the deceased had been wholly disabled by the injury for life, but still left alive, he would have been entitled to compensatory damages. “If,” continues the opinion, “he had a wife and children, whom he had supported by his industry, to whom he was now unable to render any assistance on account of his injuries, this privation of himself and family would necessarily constitute an element in the computation of damages. And if his life is lost to them, why may not the privation to them of the aid and maintenance he had given .them still enter into the computation of actual damages sustained by them? The widow has lost, a husband, the child a father, and both have lost the food and raiment which his industry provided. Had he lived, he could have indemnified the last privation by his action against the wrongdoer; and, having died, the same right of indemnity passes to them.” That is, the right of action which the widow and children or next of kin can en" force by suit after his death is his right of action, and the damages they claim grow out of that right of action, not an independent right of action in them.

This was the view taken of the meaning of the old cases and of the act of 1883, immediately after the passage of that act, or in the earliest cases that came up which were controlled by that act. This is manifest from the direction given for the assessment of damages in the Stacker case, supra, the Howard case and the Spence case; and from the ruling in the Loague case, the Johnson case, and the case of Whaley v. Catlett, that the cause of action under which the widow and children or next of kin claim, and under which they maintain their suit for damages, is the right of action of the deceased, and not any independent right in them.

It is insisted, however, in the briefs, that a different view is expressed in the Bamberger case and the Freeman case, supra.

The Bamberger case is not out of harmony with the other cases mentioned. In that case it was held that the one suit by the administrator covered every claim for damages that could be brought forward on account of the death of the deceased. It was implied in the opinion that the statute preserved to the father the right of action which he would have had against one who had deprived him of the services of his son, past or prospective, without depriving the latter of life, and that this was embraced in the action brought by the administrator. Still, in strictness, this would not fall outside of the elements to be considered in assessing damages on the deceased’s own right of action; that is to say, the matter spoken of as the father’s right would fall within the elements spoken of as “loss of time” in fixing the damages recoverable for one killed Avho owed no service. There is, therefore, nothing in this case that in any wise impeaches the principle that the damages to be recovered are only those that arise out of the deceased’s right of action.

Nor is the Freeman case out of harmony with the prevailing doctrine, gome point was made in the argument at the bar on the following sentence occurring in that opinion: “The damages recoverable in such cases are those which the deceased would have been entitled to had he survived, as well as those which the parties suing would have been entitled to in their own right.” It was not intended by this to say that the widow and children or next of kin had the right to enforce any claim for damages that did not arise out of the deceased’s own right of action, but merely, in a general way, to mark the difference between those damages which were purely personal to the deceased (his mental and physical suffering, loss of time, and expenses) and those occurring more immediately to the wMoav and children or next of kin, arising out of the loss of the life of the deceased, and expressed by the pecuniary value of that life, to be ascertained in the manner already stated. Indeed, the entire substance and spirit of that opinion is to the effect that all of the damages recoverable belong to the estate of the deceased, and are distributable as the personal property thereof; and this excludes every idea of an independent right of action in the widow, children or next of kin.

But it is said by counsel for defendant in error that, if it he true the widow and children or next of kin have no right to recover except under the cause of action of the deceased, then there is no difference between the earlier and later cases, and there is no meaning in the expression used in several of the later opinions that the act of 1883 enlarged the right of the person suing so as to permit the recovery of damages peculiar to the widow and children, together with the damages which the deceased might have recovered for his own benefit, on account of his own suffering and loss.

With respect to this matter it is to be observed that the expression referred to occurs in only three of the cases: Railroad v. Loague, Railroad v. Johnson, and Whaley v. Catlett. In the first and third of these cases, the question before the court was as to Avhen the statute of limitations would begin to 'run in cases of this character; and in the second case the question was as to the status, under the sections of the Code and under tlie act of 1888, of a husband suing for the death of his wife. What was said in each of these cases covering the measure of damages was with a view to determining the status of the parties whose rights Avere under examination, as affected by the particular questions proposed for solution. In neither of these cases did the court have in mind, or attempt to determine with exactness, the several rules controlling the assessment of damages in cases of this character. The judges Avriting the opinions used the language referred to in a large and general sense, having in mind the construction which had been given in the Fowlkes case, the Smith case and the Traiford case, to the Prince case and the cases based upon it, Avithout stopping to make a critical examination of that construction.-

But, however this may be, the expression above referred to and commented upon can not change the fact that the principle runs through all of our cases, from the time the question Avas first mooted until now, that all of the damages recoverable in this class of cases are based upon and arise out of the cause of action of the deceased, and not out of any independent cause of action belonging to the widow, children or next of kin. We have pointed out that this principle was obscured and rendered open to misconception in the Prince case and the Stevens case by reason of the generality of the language used in the opinions in those cases, but that it clearly appeared in the Collins case, which referred to, construed, and applied the two former cases. It appeared with even greater clearness in the series of cases immediately following the Collins case, and in the very recent cases which we have already referred to, it is announced with unmistakable distinctness. It binds together in. one harmonious series all of our decisions upon the subject of the measure of damages in cases of personal injuries resulting in death since the Burke case; so that, in the light of it, we see that, whatever conflict or contrariety of opinion may appear in their several holdings, these are only superficial, not fundamental.

In the Burke case a distinction was taken between damages for the mere act of killing and damages for pain and suffering .and loss of time. It was held that the former were not allowable, but that the latter were, yet could not, in the nature of things, be allowed, when it appeared, as in that case, that the death was instantaneous, because it was said there could be neither pain nor suffering nor loss of time. It is manifest from a critical examination and comparison of this case and the Prince case that the point of conflict was as to whether there, could be allowed damages for the mere act of killing; the Burke case holding that such damages could not be allowed, and the Prince case, that they could be allowed.

When the Prince case is read from this point of view, it is apparent that when the following language was used, viz., “that the representative of a person who had died from personal injuries should have the right to recover not only for the mental and bodily suffering, loss of time, and necessary expenses resulting immediately to the deceased from the personal injuries,” the chief justice was referring to that class of damages which was sanctioned by the Burke case; and when he added the following words, viz., “but also for the damages resulting to the parties for whose benefit the right of action survives from the death consequent upon the injuries,” he was referring to damages arising from the mere act of killing — the class of damages which were denied in the Burke case; and it was upon this point the Burke case was overruled.

At first blush, it seems a solecism to speak of a man having a right of action for his own death. We can readily undertsand how he can have an action for mental and bodily suffering, and for loss of time, and for expenses incurred, all of these happening in his lifetime, and caused by the injury complained of. But when he dies, that is the end of him, personally, in this sphere of being; and the loss occasioned by the mere act of death itself can not, in any strictly logical sense, be said to be his loss, but rather the loss of those who come after him, and who were interested in his continuance in life. Yet it can not he doubted that the legislature could endow his estate with such a right of action, and vest the right to sue thereon in bis administrator for tbe benefit of bis widow, children or next of tin, and that this was tbe thing in fact done was held by this court in tbe Prince case, 2 Heisk., 585, 586. In the Fowlkes case, 9 Heisk., 831, it was held that tbe right of action was based not on tbe death, but rather on tbe injury that produced tbe death; but tbe difference is not material, except in view of tbe statute of limitations as to when tbe statute would begin to run. In this latter case it was said that in truth there was no such thing as instantaneous death, that there must always be an appreciable interval between the impact of the force producing the injury, and the dissolution of the person receiving the injury, and that during that interval, the right of action would vest, and afterwards, by operation of law, devolve upon the administrator. We repeat that the distinction is important only in view of the statute of limitations. It is to be noted that the Fowlkes case and the Prince case agree in deriving the right of action from the deceased, and that neither of them gives any warrant for the theory that there was any independent right of action in the widow, children or next of kin.

The case next following the Fowlkes caseowas the Trafford case. This case spoke to the subject of the measure of damages, but only in general terms. Then came the case of Railroad v. Smith, 9 Lea, 470, which laid down as the rule for measuring damages that they were “such as the injured party could have recovered if, instead of being killed, ste (or be) bad been disabled for life, if not for tbe same amount, at least for tbe same element, of damages.” It lias already been shown, supra, that this rule embraces every element of damages allowed in the Prince case. We shall add here only tbe observation that tbe clause “if not for tbe same amount” was intended to indicate that tbe damages would probably be greater when tbe mental and physical suffering continued through years of total disablement — a death in life — than in case of a death preceded by a less protracted period of suffering. So it is meant that while, in an action to recover damages for the death alone, the elements composing the measure of damages would be the same as if the man had not died, but was still alive, totally disabled, and bringing the suit in that condition, yet in the latter case the damages recoverable would probably be greater, owing to the greater suffering, mental and physical.

The other cases subsequent to Railroad v. Smith, 9 Lea, 470, adopted the same form of expression in enunciating the rule of damages down to Railroad v. Stacker, 86 Tenn., 343 (6 S. W., 737; 6 Am. St. Rep., 840); all of them being in line with Fowlkes v. Railroad, and following its lead.

The implied dissent in the Fowlkes case, and the cases depending on it, from the Prince case, and the cases depending on it, was based upon what is now known to have been an improper construction of those cases; that is, that they allowed damages for the loss of moral aid, comfort, counsel, etc., the class of damages that goes under the name of solatium. There never was any dissent from what is now recognized as the true meaning of those cases, and it is a notable fact that in none of the cases is anything said indicating a purpose to overrule the Prince case, or any of the cases depending on it; but always in'guarded language it is said merely that there are “expressions” in some of the former opinions that would justify or'seem to justify, the several charges of the circuit judges under examination, and it Avas only so far as those opinions Avere justly subject to that construction that they were criticised. It seems from the charges of the circuit judges, as preserved and reproduced in the opinions of the court, that the construction at the bar and by the circuit judges of the Prince case and the cases in that series Avas that they allowed the sola-tium, and they — the circuit judges, or some of them— seem to have construed the act of 1883 as restoring that form of measuring damages, and this course of construction on their part is by no means surprising, in view of the language used by Judge McFarland in the Fowlkes case; but, as Ave have seen, such was not the true construction of the Prince case and its con-geners, and it could not be the true construction of the act of 1883, because that is in the very language of the Prince case.

So, the Fowlkes case and its associate cases did not antagonize the Prince case and its associate cases, but only the erroneous construction placed upon them, or rather those cases erroneously construed.

But, however this may he, the rule is now by a line of decisions fully settled; and the measure of damages in all of the cases since the Burke case is the same, although the forms of expression may differ; and this measure is no other than that which is contained in the act of 1883, and it is the same which we have spoken of, supra, as divided into two classes. This rule which we have above formulated is nothing more than a compendium of all the prior deliverances of the court upon the subject, exclusive of the Burke case. Moreover, this rule for the adjustment and determination of the amount of damages in any given case belonging to the class of cases we have before us seems wholly fair and just. By means of it, the widow and children are enabled to recover judgment for an amount of damages which fully compensates (as fully as it is possible to introduce certainty into such an inquiry) the injury done to the deceased in his own peculiar and personal relation, and, in addition, for a sum that will compensate (as far as such a matter can be rendered certain) the widow and children or next of kin for the pecuniary loss they have sustained by the death of the deceased; and at the same time the wrongdoer is thus made to respond in damages for the whole injury done, so far as money can compensate such an injury.

Another effect of the principle under which the rule is formulated is that the right of recovery is fitted into our general system of law, and we are enabled to clearly understand how the recovery falls under and is to he disposed of according to our statute of distributions, as other personal estate of the deceased; the only difference being that it is not liable to the claims of creditors.

The logical consequence of this legal status of the recovery, taken in connection with the rule for the measure of damages as formulated, is that there need be no testimony introduced for the purpose of showing that the widow, children or next of kin were dependent for support or pecuniary aid upon the deceased in his lifetime. It is sufficient, so far as this phase of the matter goes, to prove the status of widow, child or next of kin at the date of the death of the deceased from the wrongful act.

Further, upon the inherent justice and fairness of the rule for the measure of damages laid down, we desire to add that, after we pass the point that nothing can be allowed as solatium, that is, for the loss of the moral aid, comfort, counsel and companionship of the deceased, which was determined in several of the cases cited, supra, and which seems to be involved in the legal fact that the recovery ranks as personal estate of the deceased, distributable under the statute of distributions, and after we reach the point that the damages for the loss peculiar to the widow and children or next of kin are to be assessed upon the basis of the pecuniary loss sustained by the destruction of tbe life in question, which is held in substantially all of the cases that refer to the subject, it would seem that when the whole pecuniary value of that life, as far as such value can be ascertained by legal processes, is allowed in recovery for indemnification, all is done that can be done by law in the way of granting reparation for a wrong done, especially when to this is added a sum to compensate the estate of the deceased for mental and physical pain and suffering endured by the deceased, and loss of time and necessary expenses incident to the injury done, which sum so ascertained is added in the recovery of the said widow, children or next of kin.

With these principles before us, we shall now determine whether the charge given by his honor, the circuit judge, was correct. The charge upon the measure of damages was as follows:

“You will assess the damages at such amount, not exceeding twenty thousand dollars, as will be compensation for the injuries received.

“In the assessment of damages the statute provides as folloAVS; Where the person’s death is caused by the wrongful act, fault or omission of another, and suit is brought for damages, the party suing shall, if entitled to damages, have the right of recovery for mental and physical 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.’

“There are two classes of damages provided for in the statute: First. Such damages as the deceased himself could have recovered had he been permanently disabled for life and he himself were prosecuting the suit. In estimating this class of damages, yon will take into consideration the mental and physical suffering of the deceased, his earning capacity and the probability of his continuance of life. Inasmuch as it is in proof and undisputed that the death of Hollister occurred in less than one hour after the accident, the loss of time is not a material consideration, and no proof has been introduced as to the necessary expenses resulting to the deceased from the personal injuries.

“Second. In addition to such damages, the plaintiff would be entitled to recover also such pecuniary damages as have been sustained by the widow and child consequent upon the death of Hollister. In estimating such damages, you will look to the ability of Hollister to furnish his wife and child a support and maintenance, the nature and extent of the support he did give them, and to the probability of the continuance of that support, and his ability to provide, and to the probability of a continuance of their dependence upon him for support and maintenance.

“But tbe plaintiff would, not be entitled to recover any damages for tbe mental and physical suffering and grief of tbe widow and child, nor tbe loss of tbe society and affection of the husband and father, but, as before stated, only such pecuniary damages as were sustained by tbe wife and child consequent upon tbe injury.

“With these instructions to govern you, you would fix the amount of the damages at such an amount, not exceeding twenty thousand dollars, as will be compensation for the injuries received.”

We think the charge was erroneous, as will be clearly seen upon comparing it with the rule which we have above laid down. The error consists in the instruction as given to the jury in the paragraph beginning with the word “second.” In that paragraph the jury are, in effect, told to duplicate that portion of the damages which had already been provided for in the direction that they were to assess “such damages as the deceased himself could have recovered had he been permanently disabled for life, and he himself were prosecuting the suit,” and that they were to take into consideration “his earning capacity, and the probability of his continuance in life;” in other words, his life expectancy. These directions substantially covered the damages which the jury were told to allow again in the paragraph referred to in the language, “the plaintiff would be entitled to recover also such pecuniary damages as have been sustained by the widow and child, consequent upon the death of Hollister.” The “pecuniary damages” or loss of the widow and children or next of kin are the pecuniary value of the life of the deceased as shown by his expectancy of life and his earning capacity. As we have already shown, likewise, the expression in the charge taken from some of our decisions that the damages were to be “such as the deceased himself could have recovered had he been permanently disabled for life, and he himself were prosecuting the suit,” is merely another form of saying the same thing, viz., that the damages would he measured by the value of his life, which in turn would be measured by the life expectancy and earning capacity. Again, when the jury were told in the said paragraph that in estimating such damages, that is, the “pecuniary damages” sustained by the widow and child, consequent upon the death of the husband and father, Hollister, they were to “look to the ability of Hollis-ter to furnish his wife and child a support,” and “his ability to provide,” they were, in another form, told to again value his earning capactiy; and when they were told to “look to the probability of the continuance of that support” they were again instructed to look to the life expectancy of Hollister and to value it a second time.

It was insisted in argument at the bar that the right to duplicate damages had been recognized and approved by this court in the case of Railroad v. Wyrick, 99 Tenn., 500 (42 S. W., 434). Tbe expression referred to does appear in that opinion, wherein the judge who delivered the opinion of the court in that case spoke of “the rule for the assessment of duplicate damages laid down in the Prince case.” But in the three paragraphs that immediately follow that one in which the expression referred to occurs, the meaning that it bore in the mind of the writer of the opinion is shown. It was shown by a quotation made from the Stevens case that the doctrine of the Prince case was that the statute embraced, in addition to the damages for the suffering of the deceased, his loss of time, etc., “also the pecuniary loss his death caused to his widow and children or next of kin,” and that in this latter respect the subject-matter of damages is similar to the statutes of New York and Pennsylvania, and that they were confined to pecuniary damages; and in the next paragraph it was shown by a quotation from Penn. R. R. Co. v. Butler, 57 Pa., 335-338, that by “pecuniary loss” to the widow and children- — or, rather, children in that case — was meant “what the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability, and disposition to labor, and his habits of living and expenditures.”

Then continues Judge McAlister, after making the quotation from Judge Sharswood’s opinion: “It will be observed that Judge Sharswood is dealing with the damages resulting to the widow or next of kin, but, under our act of 1883, damages for the mental and physical suffering, loss of time, etc., of the deceased are also recoverable, and are superadded to the pecuniary damages sustained by the widow or next of kin.” It is observed that here is meant, not double damages, but merely the division of the whole damages allowable into two parts or classes in the manner which we have already set forth in a former portion of the opinion.

As the judgment must be reversed for the error indicated, it is unnecessary that we should pass upon the other errors assigned.

A judgment will be entered here reversing the judgment of the court below, and remanding the cause for a new trial.

Case Details

Case Name: Davidson Benedict Co. v. Severson

Court Name: Tennessee Supreme Court

Date Published: Dec 15, 1902

Citation: 109 Tenn. 572

Court Abbreviation: Tenn.