Cooper, C. J.,
delivered the opinion of the court.
George A. Crudup, an unmarried son of the appellee, was fatally injured in a collision between two trains of the appellant at a point in the State of Tennessee, and died a few days thereafter from the effect of such injury. He was serving upon one of the colliding trains as mail agent and was in the performance of his duty at 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 administration 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 which confer the right to maintain the suit are as follows : “ 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 and next of kin, free from the claims of his creditors.”
“ The action may be instituted by the personal representative of the deceased, but if he decline it the widow and children 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.” Code of Tenn., §§ 2291 and 2292.
By the laws of 1883 it was provided, “ "Where a person’s death is caused by-the wrongful act, fault, or omission of another, and suit is brought for damages, as provided by §§ 2291 and 2292 of the code, the party suing shall, if entitled to damages, have the right to recover damages for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.”
It is contended by the appellant that suit may not be brought [299]*299in this State by an administrator appointed here because, as is said, the statute of Tennessee cannot operate extra territorially, and cannot therefore confer a right upon an officer appointed by the courts of this State, and that our statutes giving actions under similar circumstances do not recognize the administrator as the proper party to sue.
The proposition contended for is sustained by the courts of Ohio (Woodward v. R. R. Co., 10 Ohio); Massachusetts (Richardson v. R. R. Co., 98 Mass.), and Kansas (McCarty v. R. R. Co., 18 Kansas). But the Supreme Courts of the United States, of Minnesota, New York, and Kentucky hold the contrary view, and, as we think, with better reason. Dennick v. R. R. Co., 103 U. S.; Leonard v. Navigation Co., 84 N. Y.; Herrick v. R. R. Co., 31 Minn.; Bruce’s Admr. v. R. R. Co., manuscript opinion of Supreme Court of Kentucky.
In a certain limited sense it may be said that the action which survives, survives as a part of the estate of the deceased, and that the recovery had is assets of the estate, for though it is freed from liabilities to creditors it is distributable to persons who take as distributees of the deceased, and prior to the act of 1883 the Supreme Court of Tennessee declared that the recovery was a part of the estate.
Whether by the act of 1883 a new right of action was given,, and whether two suits may be brought, one by the administrator for the injury to the deceased, and another for the damages suffered by the next of kin by his death, we do not find it necessary to decide, it being sufficient to say that we see no reason why the damages of both classes may not be recovered in one action. The rights of action if separable arise from the same facts, the negligent injury and death. The right to sue for either class, is vested in the same person, and the recovery had is distributable to the same class. Whether, then, the damages awarded by the statute to the next of kin for the injury sustained by them by the death be regarded as a new right, differént and distinct from their right to recover for themselves for the injury inflicted on the deceased and' conveying with it the right to a separate action, or whether it [300]*300be a mere graft upon and enlargement of tbe other, we can perceive no reason why the suit may not be brought and a full recovery had in one action. It then being true that a part of the damages recoverable are for injuries to the deceased and for a diminution of his estate by expenditures made necessary by the negligent injury, the action must be, as it seems to us, maintainable here, even under the decisions of Ohio, Massachusetts, and Kansas.
The instructions given and defined in the court below are exceedingly voluminous, and it is unnecessary to set them out in detail. The substantial propositions advanced by those given for the plaintiff were, that if the killing was by the negligence of the defendant’s servants, the plaintiff should recover, and that the jury should award damages for the loss of time of the deceased between the injury and his death, and the expenses resulting to the deceased from the injury, and for the mental and physical suffering of deceased, and for the pecuniary injury inflicted on the next of kin by the death of deceased, and in measuring such damages the jury was told that it might consider the injury to deceased as having resulted in his total disablement instead of death. And the jury was further instructed that it might, in its discretion, award exemplary damages if satisfied from the evidence that the collision occurred through the gross negligence of defendant’s employees.
The instructions are erroneous in so far as they inform the jury that exemplary damages are recoverable in this suit, and in so far as they instruct the jury that it could measure the damages resulting from the death by the standard of total disablement of deceased. It is well settled that, under statutes giving to the next of kin actions to recover the damages which they have sustained by the death of the deceased, punitive damages cannot be awarded unless expressly provided for.
The plaintiff, therefore, must recover such damages, if at all, under that clause of the statute which preserves, for their benefit, the right and cause of action which accrued to the deceased and for which he might have recovered if death had not ensued.
It becomes important here to notice the history of judicial deci[301]*301sion by tbe courts of Tennessee in construing the code provisions prior to the enactment of the act of 1883.
In L. & N. R. R. Co. v. Burk’s Admr., 6 Cold. 45, it was held that the statutory right promised to the next of kin was only that which had accrued to the deceased, and consequently that nothing could be recovered for the injury inflicted upon the next of kin, and since in that case the death was instantaneous, that there was no right of action in the deceased, and no recovery could be had. In N. & C. R. R. Co. v. Prince, 2 Heisk. 580, this decision was overruled, and it was ordered “That the representative of the deceased has a right to recover damáges sustained
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Cooper, C. J.,
delivered the opinion of the court.
George A. Crudup, an unmarried son of the appellee, was fatally injured in a collision between two trains of the appellant at a point in the State of Tennessee, and died a few days thereafter from the effect of such injury. He was serving upon one of the colliding trains as mail agent and was in the performance of his duty at 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 administration 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 which confer the right to maintain the suit are as follows : “ 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 and next of kin, free from the claims of his creditors.”
“ The action may be instituted by the personal representative of the deceased, but if he decline it the widow and children 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.” Code of Tenn., §§ 2291 and 2292.
By the laws of 1883 it was provided, “ "Where a person’s death is caused by-the wrongful act, fault, or omission of another, and suit is brought for damages, as provided by §§ 2291 and 2292 of the code, the party suing shall, if entitled to damages, have the right to recover damages for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.”
It is contended by the appellant that suit may not be brought [299]*299in this State by an administrator appointed here because, as is said, the statute of Tennessee cannot operate extra territorially, and cannot therefore confer a right upon an officer appointed by the courts of this State, and that our statutes giving actions under similar circumstances do not recognize the administrator as the proper party to sue.
The proposition contended for is sustained by the courts of Ohio (Woodward v. R. R. Co., 10 Ohio); Massachusetts (Richardson v. R. R. Co., 98 Mass.), and Kansas (McCarty v. R. R. Co., 18 Kansas). But the Supreme Courts of the United States, of Minnesota, New York, and Kentucky hold the contrary view, and, as we think, with better reason. Dennick v. R. R. Co., 103 U. S.; Leonard v. Navigation Co., 84 N. Y.; Herrick v. R. R. Co., 31 Minn.; Bruce’s Admr. v. R. R. Co., manuscript opinion of Supreme Court of Kentucky.
In a certain limited sense it may be said that the action which survives, survives as a part of the estate of the deceased, and that the recovery had is assets of the estate, for though it is freed from liabilities to creditors it is distributable to persons who take as distributees of the deceased, and prior to the act of 1883 the Supreme Court of Tennessee declared that the recovery was a part of the estate.
Whether by the act of 1883 a new right of action was given,, and whether two suits may be brought, one by the administrator for the injury to the deceased, and another for the damages suffered by the next of kin by his death, we do not find it necessary to decide, it being sufficient to say that we see no reason why the damages of both classes may not be recovered in one action. The rights of action if separable arise from the same facts, the negligent injury and death. The right to sue for either class, is vested in the same person, and the recovery had is distributable to the same class. Whether, then, the damages awarded by the statute to the next of kin for the injury sustained by them by the death be regarded as a new right, differént and distinct from their right to recover for themselves for the injury inflicted on the deceased and' conveying with it the right to a separate action, or whether it [300]*300be a mere graft upon and enlargement of tbe other, we can perceive no reason why the suit may not be brought and a full recovery had in one action. It then being true that a part of the damages recoverable are for injuries to the deceased and for a diminution of his estate by expenditures made necessary by the negligent injury, the action must be, as it seems to us, maintainable here, even under the decisions of Ohio, Massachusetts, and Kansas.
The instructions given and defined in the court below are exceedingly voluminous, and it is unnecessary to set them out in detail. The substantial propositions advanced by those given for the plaintiff were, that if the killing was by the negligence of the defendant’s servants, the plaintiff should recover, and that the jury should award damages for the loss of time of the deceased between the injury and his death, and the expenses resulting to the deceased from the injury, and for the mental and physical suffering of deceased, and for the pecuniary injury inflicted on the next of kin by the death of deceased, and in measuring such damages the jury was told that it might consider the injury to deceased as having resulted in his total disablement instead of death. And the jury was further instructed that it might, in its discretion, award exemplary damages if satisfied from the evidence that the collision occurred through the gross negligence of defendant’s employees.
The instructions are erroneous in so far as they inform the jury that exemplary damages are recoverable in this suit, and in so far as they instruct the jury that it could measure the damages resulting from the death by the standard of total disablement of deceased. It is well settled that, under statutes giving to the next of kin actions to recover the damages which they have sustained by the death of the deceased, punitive damages cannot be awarded unless expressly provided for.
The plaintiff, therefore, must recover such damages, if at all, under that clause of the statute which preserves, for their benefit, the right and cause of action which accrued to the deceased and for which he might have recovered if death had not ensued.
It becomes important here to notice the history of judicial deci[301]*301sion by tbe courts of Tennessee in construing the code provisions prior to the enactment of the act of 1883.
In L. & N. R. R. Co. v. Burk’s Admr., 6 Cold. 45, it was held that the statutory right promised to the next of kin was only that which had accrued to the deceased, and consequently that nothing could be recovered for the injury inflicted upon the next of kin, and since in that case the death was instantaneous, that there was no right of action in the deceased, and no recovery could be had. In N. & C. R. R. Co. v. Prince, 2 Heisk. 580, this decision was overruled, and it was ordered “That the representative of the deceased has a right to recover damáges sustained by his widow and children in consequence of his death, whether the death resulted instantaneously or not.” To the same effect are N. & C. R. R. Co. v. Smith, 6 Heisk. 174; R. R. Co. v. Straus, 9 Heisk. 12; Collins v. R. R. Co., 9 Heisk. 841.
These cases were in turn overruled, in so far as they decided that the injury to the next of kin could be considered, by Trafford v. Express Co., 8 Lea 96, so also R. R. Co. v. Smith, 9 Lea 470.
In Folkes v. R. R. Co., 9 Heisk. 829, in speaking of the measure of damages for the injury inflicted on the deceased, it was said: “ "When the action is brought by the party himself damages might in a proper case be given to the same extent as if death had ensued, i. e., when the injury disables the party for life; in such a case the injury, in a pecuniary sense, would vbe the same as if death had ensued.” Death and total and permanent disablement were thus suggested as equivalents, and in Smith v. R. R. Co., 5 Lea 470, and R. R. Co. v. Gurley, 12 Lea 46, it was said in effect that the next of kin, taking the right of action which pertained to the deceased, and that only, might recover for the death of the deceased by treating his death not as death but as its supposed equivalent— total disablement for life—thus, it seems, making the damages inflicted on the deceased by his own death a part of his estate, and recoverable as such in an action brought for the benefit of his next of kin under the statute.
The correctness of this result has been questioned by the supreme court of that State, and it seems to have been adhered to rather [302]*302in regard to the rule of stare deeisis than from approval of the principle.
The act of 1883 was passed in this condition of decisions, and its obvious purpose and effect is to settle by legislative declaration the measure of damages in this class of cases; it declared by enumeration exactly what damages the next of kin might recover in right of the deceased, and these are just what at common law the deceased might of right have recovered, to wit: ■ “damages for mental and physical suffering, loss of time, and necessary expenses.” The right of the deceased to recover exemplary damages, if that may be called a right which lies in the discretion of the jury to award or withhold, is not included in the enumeration, and with it must fall, in our opinion, all the damages which can be recovered by the next of kin in right of the deceased. As will be seen by the cases above cited, the rule that the death of the deceased might be treated as his permanent disablement was applied as one to measure the damages which he had sustained, and for the same reason that exemplary damages are excluded it must be, viz.: that it is not now applicable, since the statute itself declares expressly just what is the measure of damages.
The court properly excluded the evidence proposed by the defendant to show that the deceased had accepted a “ free ticket,” by which he relieved the company from liability for the negligence of its servants. By their contract with the government the company received compensation for transporting both the mail and its custodians, and there would have been no consideration for the obligation entered into by the deceased to waive damages, and in addition to this it may be added that such a contract is against public policy; the duty which common carriers owe to all persons carried by it, viz.: not to be guilty of negligent injury, is one' against the breach of which they may not protect themselves by private contract.
The evidence offered by the defendant to show the pecuniary condition of the plaintiff should have been admitted. It is well settled that the injury for which the next of kin may recover as suffered by themselves and not by the deceased must be pecuniary [303]*303injury alone, and though, as has been said, “ a dollar is a dollar, neither more nor less, whether going to a poor man or a rich one,” it is yet true that in these cases in which there is no legal obligation owing from the deceased to the next of kin, and only an occasional gratuity can reasonably be expected, the circumstances and pecuniary condition, both of the deceased and the next of kin, are important as furnishing some light for the explanation of what is at best an uncertain and hypothetical field of investigation. It must, in any event, be a matter of conjecture to a greater or less extent what contributions a father might reasonably expect to receive from an adult son if the circumstances of the son are such that he can without serious detriment to his own prospects in life contribute materially to the comfort of a needy parent; the common experience and observation of mankind would lead to the belief that more liberal contributions would be made than could be expected if the pecuniary condition of the parties was reversed. It seems to us that a satisfactory determination of the reasonableness of an expectation of this character can only be approximated by a consideration of all the circumstances which would impel the one to give or withhold, and the other reasonably to expect to receive, the contributions contemplated by the statute as the basis of damages.
The court erred in permitting the plaintiff to introduce the mortuary tables to show the expectation of life of the deceased, for it is only in reference to the injury which the next of kin have sustained by the death of the deceased that it becomes material to consider the expectation of either the deceased or the next of kin, and if it can be shown that the expectation of the next of kin is less than that of the deceased, it is their expectation which is to be made the basis of the award of damages. In all cases of this character it must be the expectation of that one who would soonest die which should control. If it be shown that the deceased in the course of nature would have died first, his expectation of life should control, for he could confer no benefit after his death ; on the other hand, if the next of kin would die first, his expectation should govern, for he could not receive a benefit from any one after his [304]*304death. Since the plaintiff, the father of the deceased, would by all known probabilities have died in the course of nature before his son, his expectancy and not that of the son should control. It has been held in some cases that where the right conferred by statutes of this class devolves on a parent and he sues for the injury and dies before final judgment, then the next succeeding kin of the deceased may sue, and in such cases recover in their own right as next of kin of the deceased and not as representatives of the first party suing. David v. R. R. Co., 41 Georgia 223 ; Taylor v. R. R. Co., 45 Cal. 323. But we are not aware of any case in which it has been held that one in whom the right exists may recover for his own injury and also for one that would have resulted to another person if he himself were dead. In Tennessee the father is next of kin to a son who dies unmarried and without children, and the brothers and sisters are excluded. Code of Tenn., § 2429.
Reversed and remanded.