68 L.R.A. 503, 6
Cates 344, 114 Tenn. 344, 84 S.W. 618 Supreme Court of
Tennessee. WHITLOW v.
NASHVILLE, C. & ST. L. R. CO. Dec. 24, 1904. HEADNOTE: 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. [*618] COUNSEL: Stewart & Stewart and Chas. C. Moore, for
appellant. Spears & Spears and Claude Waller, for appellee. OPINION BY: 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 Sup. 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 Sup. 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 [*619] 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
South. 800; Railroad Co. v. Shearer, 58 Ala. 672; Buckalew v. Ry. Co., 112 Ala.
146, 20 South. 606; Railroad v. Burgess, 116 Ala. 509, 22 South. 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
South. 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
Exr 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 South.
618; Bentley v. Railroad Co., 86 Ala. 484, 6 South. 37; Railroad Co.
v. Black, 89 Ala. 313, 8 South. 246; Leak v. Railroad Co., 90 Ala. 161, 8
South. 245; Railroad Co. v. Vaughan, 93 Ala. 209, 9 South. 468, 30 Am. St. Rep.
50; Railroad Co. v. Meadors, 95 Ala. 137, 10 South. 141; Railroad Co. v.
Dobbs,
101 Ala. 219, 12 South. 770; Railroad Co. v. Martin, 117 Ala. 367, 23
South. 231; Railroad Co. v. Bush, 122 Ala. 470, 26 South. 168; Armstrong v.
Street Railway Co., 123 Ala. 233, 26 South. 349; Shannon v. Jefferson County, 125 Ala. 384, 27
South. 977; Railroad Co. v. Foshee, 125 Ala. 199, 27 South. 1006; Railroad
Co. v. Bryan, 125 Ala. 297, 28 South. 445; Railroad Co. v. Mitchell, 134 Ala. 261, 32
South. 735; Railroad Co. v. Hamilton, 135 Ala. 343, 33 South. 157; Railroad Co.
v. Shelton, 136 Ala. 191, 34 South. 194; Railroad Co. v. Guest, 136 Ala. 348, 34
South. 968; Railroad Co. v. Crenshaw, 136 Ala. 573, 34 South. 913; Bryant v.
Railroad Co., 137 Ala. 488, 34 South. 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 inflictedas for example, for the death
of an employe (for cases of this character, see Railroad Co. v. Bridges, 86 Ala. 449, 5
South. 864, 11 Am. St. Rep. 58; Williams v. Railroad Co., 91 Ala. 635, 9
South. 77; Railroad Co. v. Orr, 91 Ala. 548, 8 South. 360; Railroad Co.
v. Mallette, 92 Ala. 209, 9 South. 363; James v. Railroad Co., 92 Ala. 231, 9
South. 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 large, with no more certain guide
than that they must consider all of the circumstances of the occurrence
eventuating in the death complained of, for the purpose of ascertaining and
determining the degree or extent of the negligence, if any, of the defendant,
[*620] and upon such
consideration they must assess damages to such amount or in such sum as to them
may seem a just retribution for the injury in such manner inflicted, ranging
from nominal damages upwards, according to or proportioned to the degree of
culpability; and, further, that the terms mulct, and
punishment, and fine, used in some of
the decisions referred to, do not, in these decisions, bear the meaning
attached to them in the domain of criminal law, and were not intended to be so
understood by the Supreme Court of Alabama. 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.) §§ 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 objection offered by the
defendant was that the action was penal in its nature, and that in such actions
the defendant is protected both by the rules applicable to discoveries and by
constitutional guaranty against any compulsory process to compel him to answer
any questions the answers to which would have a tendency to incriminate him, or
to expose him to a penalty or a forfeiture. After noting that the Supreme Court
of the United States (Counselman v. Hitchcock, 142
U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; Boyd v. United States, 116
U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746) had held that proceedings for
penalties and forfeitures were within the provisions of the fifth amendment to
the federal Constitution that no person shall be compelled in a criminal case
to be a witness against himself, and that this provision was a protection
against compulsory self-disclosure in any proceeding, civil or criminal, of
matters tending to incriminate the witness, or to expose him to a penalty or
forfeiture, the court proceeded: 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 be 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, or quasi criminal, within the meaning of the
constitutional provisions as above construed. The statute is remedial, and not
penal, and was designed as well to give a right of action where none existed
before as to prevent homicides, and the action given is
purely civil in its nature for the redress of private, and not public,
wrongs. The objection was accordingly overruled. 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
to what is known as Lord Campbells Act is to
provide the means for recovering the damages caused by that which is
essentially and in its nature a tort. Such statutes are not penal, but
remedial, for the benefit of the persons injured by the death. An action to
recover damages for a tort is not local, but transitory, and can, as a general
rule, be maintained wherever the wrongdoer can be found. Dennick v. Central
Railroad Co., 103 U. S. 11, 26 L. Ed. 439. It
may be well that, where a purely statutory right is created, the special remedy
provided by the statute for the enforcement of that right must be pursued; but
where the statute simply takes away a common-law obstacle to a recovery for an
admitted tort it would seem not unreasonable to hold that an action for that
tort can be maintained in any state in which that common-law obstacle has been
removed. At least it has been held by this court in repeated cases that an
action for such a tort can be maintained where the statute of the state in
which the cause of action arose is not, in substance, inconsistent with the
statutes or public policy of the state in which the right of action is sought
to be enforcedciting Texas & Pac. Ry. Co. v. Cox, 145
U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; [*621] Dennick v.
Central Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Huntington
v. Attrill, supra; Northern Pac. Ry. Co. v. Babcock, 154
U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958. In the case last cited, the court, speaking through Mr. Justice
White, quoted with approval the following language from Herrick v.
Minneapolis, etc., St. L. R. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, which
we also adopt, viz.: But it by no means follows that, because the
statute of one state differs from the law of another state, therefore it would
be held contrary to the policy of the laws of the latter state. Every day our
courts are enforcing rights under foreign contracts where the lex loci
contractus and the lex fori are altogether different, and yet we construe these
contracts and enforce rights under them according to their force and effect
under the laws of the state where made. To justify a court in refusing to
enforce a right of action which accrued under the law of another state, because
against the policy of our laws, it must appear that it is against good morals
or natural justice, or that, for some other such reason, the enforcement of it
would be prejudicial to the general interests of our own citizens. 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 employ 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 respective parties,
which must be considered and disposed of in determining, in the first instance,
the existence of a cause of action, and, secondly, the degree of negligence or
culpability. The same, and even greater, diversity is discovered in the
operation of our own statute, since it prescribes a remedy for all cases of
wrongful death, without distinction in respect of the relations of the parties.
And even a greater diversity is experienced by all courts in administering
contracts, both domestic and foreign. But it is not on these grounds that the
able counsel of the defendant place their objection. The dissimilarity
complained of, other than that already considered and disposed of, is in
respect of the measure of damages. It is said that while, under our statute,
the mental and physical suffering of the deceased, his loss of time, and
expense on account of the injury, also evidence of age, physical condition,
earning capacity, and expectation of life, may all be considered. Under the
Alabama statute none of these are admissible, but the amount of damages is to
be assessed upon a general and particular view of all of the circumstances
attending the injury, and proportioned to the culpability disclosed upon a comparison
of such facts and circumstances with the measure of duty imposed by law upon
the defendant in the situation shown by the evidence, and the ascertainment of
the breach of such duty, and the extent of itin short, upon the
degree of negligence proven in the causeand that such sum is to be
assessed for this negligence as the jury may deem adequate punishment therefor. 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 of negligence. Moreover, the tribunals
of this state have long applied the substance of the Alabama rule in the
reverse aspect in measuring 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 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. 399, 19 South. 443, and see Railroad
Co. v. Burgess, 119 Ala. 555, 564, 565, 25 South. 251, 72 Am. St. Rep. 943; Railroad
Co. v. Mallette, 92 Ala. 209, 217, 218, 9 South. 363, 365, 366) that punitive
damages are in the discretion of the jury, but only within reasonable
limits. At all events, the constitution of our own courts is such,
and the relation between the court and the jury are of such a character, under
our laws, that the trial judge has always, and this court on appeal always, the
power to set aside verdicts on the ground above stated; and every cause of
action to which the hospitality of our tribunals is extended must be understood
as so qualified, inasmuch as we cannot alter the constitution of our courts for
their entertainment. 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. |