Davidson Benedict Co. v. Severson

• Decision Date: 14 March 1903
• Citation: 72 S.W. 967
• Parties: DAVIDSON BENEDICT CO. v. SEVERSON.
• Court: Tennessee Supreme Court

72 S.W. 967

DAVIDSON BENEDICT CO. v. SEVERSON.

Supreme Court of Tennessee.

March 14, 1903.

Error to Circuit Court, Lewis County; Sam Holding, Judge.

Action by J. S. Severson, as administrator of W. A. Hollister, deceased, against the Davidson Benedict Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. H. Williamson, Jas. W. Byrus, and J. A. Bates, for plaintiff in error. H. P. Figures, Salmon & Turner, and J. S. Severson, for defendant in error.

NEIL, J.

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 Hollister 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 jury 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. From 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 upon 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 be 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 their 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 which they must resort when instructing juries brought before them.

The provisions of the Code are:

"2291 (Shannon's Code, § 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 claim of creditors.

"2292 (Shannon's Code, § 4026). The action may be 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, § 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 claim of the creditors of the deceased, to be distributed as personal property."

On December 14, 1871, p. 70, c. 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 his 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 1883 — page 259, c. 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, § 4025), 2292 (Shannon's Code, § 4026), and 2293 (Shannon's Code, § 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 Smith, J., 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 of his being killed. Such is the proper construction to be put on Code, §§ 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 would 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, Nancy 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 pleaded 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 Nicholson, C. J., 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...