Whitlow v. Nashville, C. & St. L. R. Co.

• Decision Date: 24 December 1904
• Parties: WHITLOW v. NASHVILLE, C. & ST. L. R. CO.
• Court: Tennessee Supreme Court

84 S.W. 618

114 Tenn. 344

WHITLOW v. NASHVILLE, C. & ST. L. R. CO.

Supreme Court of Tennessee.

December 24, 1904

Appeal from Circuit Court, Marion County; S.D. McReynolds, Judge.

Action for wrongful death by J. Y. Whitlow, administrator, against the Nashville, Chattanooga & St. Louis Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Stewart & Stewart and Chas. C. Moore, for appellant.

Spears & Spears and Claude Waller, for appellee.

NEIL J.

This action was brought in the circuit court of Marion county to recover damages for the wrongful death of one John Whitlow who it is alleged was killed on the line of the defendants' railway in the town of Bridgeport, in the state of Alabama. The action is based upon section 27 of the Code of 1896 of that state. It also appears as section 2589 of the Code of 1886. The original act on which these sections were based was passed on the 5th of February, 1872. The statutory provision above referred to reads as follows:

"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 action was dismissed. We need not state with particularity the method by which the points were raised. It need only be said that they were sufficiently presented.

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, being 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 granted 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, are those imposing punishment for an offense committed against the state. The test whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual. Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123. In that case it is said, quoting with approval from Wisconsin v. Pelican Insurance Company, 127 U.S. 265, 8 S.Ct. 1370, 32 L.Ed. 239:

"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 punish 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 So. 800; Railroad Co. v. Shearer, 58 Ala. 672; Buckalew v. Ry. Co., 112 Ala. 146, 20 So. 606; Railroad v. Burgess, 116 Ala. 509, 22 So. 913); and that evidence as to age, physical and mental condition, and earning capacity, and occupation of plaintiff's testator or intestate, and the amount of money contributed by him from his earnings to the support and maintenance of those dependent upon him, is immaterial and incompetent (Railroad Co. v. Tegner, 125 Ala. 593, 28 So. 510). It is also true that the court in several opinions (Railroad Co. v. Shearer, supra; Railroad Co. v. Sullivan, 59 Ala. 279; Railroad Co. v. Freeman, supra), has referred to the damages to be assessed under the statute as "a pecuniary mulct," "a punishment or fine," against the wrongdoer, to be distributed by the administrator as personal property. Yet no one can read the foregoing authorities, and other decisions of the Supreme Court of Alabama on cases arising under this statute (Tanner's Ex'r v. Railroad Co., 60 Ala. 621; Railroad v. Copeland, 61 Ala. 376; Cook v. Railroad Co., 67 Ala. 533; Railroad Co. v. Womack, 84 Ala. 149, 4 So. 618; Bentley v. Railroad Co., 86 Ala. 484, 6 So. 37; Railroad Co. v. Black, 89 Ala. 313, 8 So. 246; Leak v. Railroad Co., 90 Ala. 161, 8 So. 245; Railroad Co. v. Vaughan, 93 Ala. 209, 9 So. 468, 30 Am. St. Rep. 50; Railroad Co. v. Meadors, 95 Ala. 137, 10 So. 141; Railroad Co. v. Dobbs, 101 Ala. 219, 12 So. 770; Railroad Co. v. Martin, 117 Ala. 367, 23 So. 231; Railroad Co. v. Bush, 122 Ala. 470, 26 So. 168; Armstrong v. Street Railway Co., 123 Ala. 233, 26 So. 349; Shannon v. Jefferson County, 125 Ala. 384, 27 So. 977; Railroad Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Railroad Co. v. Bryan, 125 Ala. 297, 28 So. 445; Railroad Co. v. Mitchell, 134 Ala. 261, 32 So. 735; Railroad Co. v. Hamilton, 135 Ala. 343, 33 So. 157; Railroad Co. v. Shelton, 136 Ala. 191, 34 So. 194; Railroad Co. v. Guest, 136 Ala. 348, 34 So. 968; Railroad Co. v. Crenshaw, 136 Ala. 573, 34 So. 913; Bryant v. Railroad Co., 137 Ala. 488, 34 So. 562) as a series, and note the questions that were stated and discussed in them, without being convinced that these cases were ordinary damage suits, brought to recover for a wrongful death inflicted by the defendant upon the intestate or testator of the plaintiff, and for the benefit of the estate of the person so killed; that the only difference, in respect of damages, between these suits and others brought to recover for a wrongful death inflicted--as for example, for the death of an employé (for cases of this character, see Railroad Co. v. Bridges, 86 Ala. 449, 5 So. 864, 11 Am. St. Rep. 58; Williams v. Railroad Co., 91 Ala. 635, 9 So. 77; Railroad Co. v. Orr, 91 Ala. 548, 8 So. 360; Railroad Co. v. Mallette, 92 Ala. 209, 9 So. 363; James v. Railroad Co., 92 Ala. 231, 9 So. 335)--resides in the fact that, while in the class of cases last referred to the jury are furnished by the court with rules of approximate certainty for measuring the damages, in cases arising under the statute sued on in the present case they are left somewhat at...