The clarion., 1886-04-21
SUPREME court CASES.
Reported for The ciarion bv w. H Harper
Atternsy-st-Law, Jackson. Miss.
October Term-Iss5.
ILLINOIS CENTRAL r. R. Co. J


court.
George A Crudup, an unmarried son
# appellee, was fatally injured in col
IslOn between two trains of defendant
at point in the State of Tennessee, and
lied few days thereafter from the
effects of such injury. He was serving
upon one Of the collidiug trains as mail
1gent, and was in performance of his
duty al the time. The appellee, who as
father, Is by the laws of Tennessee sole
distributee and next of kin of the
deceased, secured letters of administra-
ton upon the estate of the son IN this
State, and brought this action to recover
the damages Which were sustained by
the son as well as those which have
resulted TO himself as next of kin by
reason of the death. The statutes of
Tennessee provide, first, that the right
of action for injnries which result IN
death shall not abate, but shall survive
20 the widow and children and next of
kin; secondly, that the action may be in
stituted by the personal representative of
the deceased land thirdly, the supplement
tai alaetof 1888 provides that such personal
representative may recover damages for
the mental and physical suffering, loss
0t time and necessary expenses resulting
to the deceased from personal injuries,
and also the damages resulting to the
parties for whose use and benefit the
right of action survives
Hetd-1hat an administrator appoint
ed in this State may sue for wront
committed in Tennes ssee within the above
statutes. Danl1ck Us r. r. Co, l03 L. S.
Whether by the act of 1883 a new right
# action was given, or whether two
suits may be brought, one by th'
administrator for the injury to the
decedent, and another for Il e dam
ages suffered by the next of kin, is un-
necessary to decide 1t is sufficient TO
say that we see no reason why the dam
ages of both classes may not he recovered
n one action. The rights of action
arise from the same facts; the right to
sue for either class is vested IN the same
person and the recovery had IS distribu
table to the same class. In any view
there seems to be no reason why sui
nay not be brought and full recovery
aad in one action; and a part of tht
lamages recoverable being for injuries
to TIE deceased and for diminution OF
>ary by the injury, the action would b,
maintaiuable even under the Ohio anC
Massachusetts, decisions.
The instructions are erroneous in 81
far as they inform the jury that exem
plary damages are recoverable in thl'
suit, and in SO far as they instruct the
jury that it could measure the damages
resulting from the death by q standard
Df total disablement of deceased II j.
well settled that under statutes giving
to the next of kin actions to recover
damages which they have sustained by
the death of deceased, punitive damage.
cannot be awarded unless expressly pro
vided for therein The plaintiff mus
recover exemplary damages, if at all
under that clause of the statute of 1873;
which provides for their benefit The
right of action which existed in tht
deceased The measure of damages j,
expressly set out therein to be damage,
for mental and physical suffering, los:
Of time, and necessary expenses" ano
the right to recover exemplary damage;
is not included in this enumeration
which includes all the damages which
can be recovered by the next of kin il
reason that exemplary damages are ex
cluded, the rule that the death of tn,
deceased might be treated as if he were
permanently disabled in order t
measure the damages, Is excluded undei
the above statute.
The court properly excluded the eyi
dence proposed by the defendant te
show that the deceased had accepted ;
free ticket by which be relieved tht
company from liability for the negli
gence of its servants. BY their contrac
with the government the company re
ceived compensation for transporting
both the mail and its custodians, anc
that would have been consideration fol
the obligation entered into by deceased
to waive damages, and in addition tt
this it may be added that such a con
tract is against public policy. The duty
which common carriers owe to all per
sons carried by it, viz: not to be guilty
of negligent injury. is one against The
breach of which they may not protec
themselves by private contract.
The evidence offered to show the pc
cuniary condition of plaintiff should
have been admitted. i is well settled
that the injury for which the next ol
kin may recover as suffered by them
selves must be a pecuniary injury alone
In those cases in which there is no legs
obligation owing from the deceased tC
the next of kin, and only an occasional
gratuity can reasonably be expected
the circumstances and pecuniary Gondi
ton both of the deceased and the mex
of kin are important as furnishing some
light for the explanation of what is al
best an uncertain aad hypothetical field
of investigation. It must in any event
be matter of conjecture to greater OIL
less extent what contributions a father
might reasonably expect to receive iron
an adult son. 1t seems to this court
that a satisfactory determination of The
reasonableness of an expectation of this
character can only be approximated b,
consideration of all the circumstance:
which would impel the one to give oil
withheld, and the other reasonably tC
expect the contributions contemplated
by the statute as the basis of damages
The expectation of life which is to bt
considered i'll a case of this character j.
the expectation of that one who would
soonest die. 1t has been held in som,
cases that when the right conferred b,
statutes of this class devolves on par
ent and she sues for the injury and die.
before final judgment, that her next o.
kin may recover in their own right
But there is no case presented in whicl
it has been held that one in whom the
right exists may recover for his own in
jury and also for one that would have
resulted to another person if he himself
were dead.
w. P and j. B. Harris for the appel
liant.
Woods & Mcintosh and Someryille
Mclean for the appellee.