114 Tenn. 344 | Tenn. | 1904
delivered the opinion of the Court.
This action was brought in the circuit court of Marion county to recover damages for the wrongful death of one
“A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death; such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for such wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.”
Two points were made by the defendant in the court below on this statute, and both were sustained, and as a result of sustaining these objections the plaintiff’s act
From the action of the court below the plaintiff appealed, and the matter is now before us for consideration.
The first point made is, in substance, that the statute of Alabama above referred to is a penal statute, and b'eing so, cannot be enforced in the courts of this State. The second is that the statute of Alabama under which this suit is instituted and the statute of Tennessee giving a right of action in case of wrongful death are so dissimilar in their purposes and enforcement that the courts of Tennessee will not undertake to enforce the Alabama statute.
1. The courts of this State have the power to enforce, and constantly do enforce, rights of action under foreign statutes. R. R. v. Sprayberry, 8 Baxt., 341, 35 Am. Rep., 705; Id., 9 Heisk., 852; Hobbs v. R. R., 9 Heisk., 873; R. R. v. Foster, 10 Lea, 351; R. R. Co. v. Lewis, 89 Tenn., 235,14 S. W., 603; R. R. v. Reagan, 96 Tenn., 128, 136, 137, 33 S. W., 1050. But in such cases, where the right of action is one unknown to the common law, the foreign statute must be pleaded, and the remedy prescribed by it must be pursued. 9 Heisk., 852, 854, 96 Tenn., 128, 136, 137, 33 S. W., 1050; 89 Tenn., 235, 14 S. W. 603; 10 Lea, 351, 359, 365.
2. But no State will enforce the penal laws of another State. Penal laws, however, strictly and properly
“The rule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.” Again: “For the purpose of extraterritorial jurisdiction it may well be that actions by a common informer, called, as Blackstone says, ‘popular actions, because they are given to the people in general,’ to recover a penalty imposed by statute for an offense against the law, and which may be barred by a pardon granted before action brought, may stand upon the same ground as suits brought for such a penalty in the name of the State or of its officers, because they are equally brought to enforce the criminal law of the State.” Again, it is said: “The question whether a statute of one State, which in some aspects may be called, penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to pun*350 ish an offense against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act.”
3. In determining the question, whether a statute of a foreign State is penal in the international sense, so as to deny jurisdiction to the tribunals of a foreign State in which an action thereon is brought, such tribunals are not absolutely bound by the construction placed upon such statutes by the courts of the State which enacted it. “The test,” said the court, in Huntington v. Attrill, supra, “is not by what name the statute is called by the legislature or the courts of the State in which it was passed, but whether it appears to the tribunal which is called upon to enforce it to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person. In this country the question of international law must be determined in the first instance by the court, State or national, in which the suit is brought.”
4. The right of action given by the Alabama statute sued on in this case is not a penal one in the international sense of the term.
It is true that in construing this statute, or a prior one of similar purport, the supreme court of Alabama has held that it is not necessary to aver that the intestate left a widow, children, or next of kin (Railway Co. v. Waller, 48 Ala., 459); and that evidence of loss of services, or mere pecuniary loss is immaterial and irrelevant (Railroad Co. v. Freeman, 97 Ala., 289, 11 South.,
Forcible confirmation of this conclusion is found in the language used by that court in Railroad Co. v. Bush supra, 122 Ala., 488, 489, 26 South., 173, 174.
In that case it appeared that the plaintiff below propounded to the defendant interrogatories for a discovery under the provisions of Code 1896 (Ala.) sections 1850-1858, answers to which were made by the engineer. When these answers were offered in evidence by the plaintiff, defendant objected to their introduction on the ground that defendant could not, in a proceeding of this character, be legally and constitutionally compelled to answer the interrogatories. The ground of ob-. jection offered by the defendant was that the action was
“If the damages recoverable in an action of this character were, strictly speaking, a penalty imposed by law, we would be inclined to give to our constitutional provision on the subject the same construction that has been placed on the similar provision of the federal constitution, and to hold that the defendant could not he compelled, even by statute, to give or furnish evidence in aid of a recovery against it. But while the damages recoverable are undoubtedly, under our former rulings, punitive in their nature, and not compensatory, they are not, in a strict sense, a penalty; nor is the action penal,
What is here said in the quotation just made is the logical result of all the preceding Alabama cases on the subject, when one goes to the very substance of them, disregarding mere formal expressions; and it is impossible, in the face of this decision, to hold that actions under the statute are penal in the international sense.
5. The action is not so repugnant to the public policy of our State as that we should, for that reason, decline to entertain it. The bringing and disposition of suits for damages caused by wrongful death is a matter of everyday occurrence in the courts of this State. And as said by Mr. Justice Brewer in Stewart v. Baltimore & Ohio Railroad Company, 168 U. S., 445, 448, 449, 18 Sup. Ct., 105, 106, 42 L. Ed., 537: “A negligent act causing death is in itself a tort, and, were it not for the rule founded on the maxim ‘Actio personalis moritur cum persona/ damages therefor could have been recovered in an action at common law. The case differs in this important feature from those in which a penalty is imposed for an act in itself not wrongful, in which a purely statutory delict is created. The purpose of the several statutes passed in the States in more or less conformity
In the case last cited, the court, speaking through ■Mr. Justice White, quoted with approval the following
6. Nor will the court decline to entertain the action because of dissimilarity between the provisions of the Alabama statute and those of our own upon the same subject.
As we understand the Alabama law, the statute sued on in this case covers all rights of action for damages on account of wrongful death except those wherein the representatives of an employee sue the employer who has caused his death; recovery for this latter class of damages falling under another statute. Of course, under a statute so broad many questions must arise, based upon the reciprocal relations, rights, and duties of the
We do not think that Tennessee courts and juries will find any more difficulty in administering this rule than is experienced by the tribunals of our sister State. It is quite as difficult (and more uncertain in results) to ascertain how much should be allowed in a given case for mental and physical suffering as to fix a sum that shall approximately measure in money the degree of culpability shown by a defendant guilty o'f negligence. Moreover, the tribunals of this State have long applied the substance of the Alabama rule in the reverse aspect in meásuring the degree of culpability of a plaintiff whose contributory negligence, in a certain well-known class of cases in this State, does not bar the action, but only mitigates the damages. In this class of cases the juries are, in substance, instructed to consider and estimate the the degree and extent of the plaintiff’s negligence, and to abate his recovery by such amount as they may deem just in view thereof.
7. We should add that we do not understand that under the Alabama statute the jury are left to unrestrained action in fixing the amount of the recovery, but that they are subject to the overruling discretion of the court, in case it should be of opinion that the amount found is so large as to evince passion, prejudice, or caprice; since it is laid down as a general principle (in Furniture Co. v. Little, 108 Ala., 339, 19 South., 443, and see Railroad Co. v. Burgess, 119 Ala., 555, 564, 565,
It results that there is error in the action of the court below in dismissing the plaintiff’s suit, and the cause is remanded for proper issue and further proceedings.
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