
    NATHAN HALL v. THE NASHVILLE & CHATTANOOGA RAILROAD COMPANY.
    (S. C., Thomp. Cas., 204-209.)
    Nashville,
    December Term, 1859.
    1. PARENT AND CHILD. Father cannot sue for death of child.
    A father cannot, in his own name and without qualifying as the personal representative of the deceased, maintain an action and recover damages for the wrongful death of his child. [Loague v. Railroad, 7 Pickle, 459; Ilolston v. Coal and Iron Co., 11 Pickle, 521; see note to syllabus 2.]
    Cited with approval: Eden v. Railroad, 14 Monroe (Ey.), 204: Carey Railroad, 1 Cushing (Mass.), 475; Skinner v.’ Railroad, II
    2. SAME. Personal representative may sue.
    The personal representative of the deceased child can maintain a suit and recover damages for his wrongful death for the benefit of his widow and next of kin. [For the present law, see Code, secs. 4025-4029, and notes; 1897, ch. 86.]
    Cited: Code of 1858, secs. 2291,- 2292 (Shannon’s Code, secs. 4025, 4026.)
    3. CIVIL REMEDY. Not merged in the felony.
    The doctrine that the civil remedy is merged in the felony has never prevailed in this state.
    Cited with approval: Ballew v. Alexander, 6 Hum., 433.
    
      Cited and discussed: Hig'gins v. Butcher, Yelv., 89, notes; Crosby v. Long', 12 East, 409; Baker v. Bolton, 1 Camp., 493; Ford v. Monroe, 20 Wend., 210; Pack v. JST. Y. City, 3 Com-stock, 489; Lucas v. Railroad, 21 Barb., 345.
   Wrigi-it, T.,

delivered the opinion of the court:

This was an action on the case to recover damages for the loss of the life of David Hall, he being under the age of twenty-one years, and the son and servant of the plaintiff, in consequence of the carelessness, negligence, unskillfulness and default of the defendant’s servants and agents, by means whereof, the plaintiff was deprived of the assistance, services, society and comfort of his sáid son and servant.

A'demurrer was'filed to the declaration and sustained by the criminal court, and the question is whether this judgment can be maintained.

Numerous instances are to be found in the common law books of actions by masters for personal injuries to> servants,, whether caused by actual battery, or by negligent driving, or by a ferocious dog; and in one case, a man recovered damages in an action against a person for negligently intrusting a loaded gun to a mulatto girl, who' discharged it against the plaintiff’s son and servant. These cases depend entirely upon the loss of service. .It is in this form of action that a parent usually proceeds to recover damages for injuries sustained by his children, through the wrongful acts of the defendant, for in such cases a parent cannot generally recover damages for his wounded feelings, but only for the loss of service he has sustained. Smith’s Master and Servant, 84, 85. But no case to which we have access, in the English books, seems to have gone so far as to afford the parent a remedy in the case of the instantaneous death of the child by the wong-doer. In Higgins v. Butcher, Yelv., 89, it is said, “If a man beat the servant of J. S., so that he dies of the battery, the master shall not have an action against the other for the battery and loss of the service, because the servant dying of'the extremity of the battery, it is now become an offense to the crown, being converted into a felony, and that drowns the particular offense •and private wrong offered to the master before, and his action is thereby lost.”

But this doctrine that the civil remedy is merged in the felony has never prevailed in this state (Ballew v. Alexander, 6 Hum., 433), and we apprehend, in,the English law, could never have been the true reason, or at least the only one, for refusing the action in such a case; since in many instances, and the case now under consideration is an example, the killing was not felonious, and there was, therefore, no felony in which the private injury could merge. Besides, at most, the redress by civil action was only postponed until after the conviction or acquittal of the defendant for the felony. Notes to Higgins v. Butcher, Yelv., 89; Crosby v. Long, 12 East, 409. Accordingly, we find it adjudged, in Baker v. Bolten and others, 1 Camp., 493, that the death of a human being is not the ground of an action for damages. In that case the plaintiff brought an action against the proprietor of a stage coach, which was overturned while he and his wife were traveling in it, whereby he was much bruised, and his wife so severely hurt that she died about a month after. The declaration alleged, beside other special damages, that by means of the premises, the plaintiff had wholly lost and been deprived of the comfort, fellowship and assistance of his said wife, and had from thence suffered and undergone great grief, vexation and anguish of mind. Lord Ellenborough held that the jury could take into consideration only the bruises which the plaintiff had sustained, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident to the time of her death. And he announced the principle of his decision in these words: “In a civil court the death of an individual cannot be complained of as an injury.”

The same principles are found in a great many other common law authorities. The cause of action for the injury to the person of the son in this case, unassisted by any statute, died with the person, and though the plaintiff did not by that event lose any separate and independent cause of action to which he was entitled for the loss of the services of his child, yet here the death being instantaneous, he had no claim to anything anterior thereto, and all further title to services ceased and determined with the death. And it seems to make no difference whether the death be the result of natural causes or the consequences of the injury which gives rise to the action.

We are not aware of any decision upon this question in our state. But in the case of Eden v. The Lexington and Franklin Railroad Company, determined by the court of appeals of Kentucky (14 Monroe, 204), it was held upon common law principles that a similar action could not be maintained. So, also, in Massachusetts, in two cases: Carey & Wife v. The Berkshire Railroad Company, and Skinner v. The Housatonic Railroad Corporation, 1 Cushing’s R., 475. In this latter case it was held that an action cannot be maintained by a father to recover damages for the loss of his child in consequence of the death of the child, occasioned by the carelessness or fault of the agents or servants of a railroad corporation. And it is worthy of remark, that in neither of these states does the -rule that the civil remedy is merged in the felony exist. It is true, that in New York, in an action on the case, for negligently running over and killing the plaintiff’s son, a lad of ten years of age, the judge charged that the plaintiff was entitled to recover such sum by way of damages as they should be of opinion the services of the child would have been worth until he become twenty-one years of age. The case was carried up, but no question seems to have been distinctly made as to the correctness of this direction. Ford v. Monroe, 20 Wend., 210.

But in a later case in the same state, where the plaintiff’s infant child died within an hour and a half after the injury, Bronson, Ch. J., in delivering the opinion of the. court of appeals, said, “I have a strong impression that the father could recover nothing’ on account of the injury to the child beyond the physican’s bill and funeral expenses,” but the point was not decided. Pack v. The Mayor, etc., of the City of New York, 3 Comstock, 489. And in a still later case, Lucas v. N. Y. Central Railway, 21 Barb., 345, an authority which I have not seen, but which is cited in a note to Redfield on Railways, 339, it would seem that the doctrine in Wendell had been entirely overthrown. There can then, as we think, be no question that upon common law_ principles this action must fail. The common law doctrine has in our state been recently changed by statute so that the right of action which a person who dies from injuries received from another whose death is caused by the wrongful act or omisison of another, would have had against the wrong-doer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representatives for the benefit of his widow and next of kin. Code secs. 2291 and 2292. These sections were taken from the act of 1851, ch. 17. A similar change has taken place in the English law by a late act of Parliament, 9 and 10 Vic., ch. 93.

But this alteration in our law can be of no service to the plaintiff, since he is not the personal representative of the deceased son, and does not sue in that character, but in a wholly different right and for a different purpose.

The judgment of the circuit court sustaining the demurrer, was, therefore, correct, and is affirmed.

Judgment affirmed.  