[4, 5] But a phase of the decisions in the last-cited case is relied on by complainants

equity will award to a resident stockholder, even in a foreign corporation, relief of winding up its affairs, so far as assets within the state are concerned, in a proper case. Code, Shannon's, provides (as did the Code of 1858, in sections 3431, 4294, and 4295) as follows: "Sec. 5187. A corporation is not dissolved by the nonuse or assignment to others, in

that, while a foreign corporation in one sense, that company, in view of its corporate acts, was to be deemed a domestic corporation in support of their contention that a court of so far forth as to give situs, for attachment of its shares of stock, in this state. There the "acts within the territorial jurisdiction" went to the extent of drawing even corporate situs, for the indicated purpose, into this jurisdiction as the place of the true home office of the corporation. Fact was allowed to overrule legal fiction. But it was not meant to be there ruled that every corpora- whole or in part of its powers, franchises, tion which complies with our acts acquired, by virtue of that fact, situs for stock attachment purposes.

and privileges, unless all the corporate property has been appropriated to the payment of its debts, and any creditor, for himself [2, 3] On the basis, therefore, of the defend- and other creditors, whether he has recovant company being treated as a corporation | ered judgment or not, or any stockholder, for domesticated only for purposes of jurisdic- himself and other stockholders may file a bill tion in respect of property and transactions under the provisions of this chapter, to atin this state, we have next for consideration whether a court of equity in this state will assume jurisdiction in a case where, as here, the corporation is not insolvent, at the instance of stockholders, to wind up the corporation on any ground stated in the bill of complaint.

Under the familiar rule that the court should make every reasonable presumption in favor of the bill of complaint when as sailed by a demurrer, we are of opinion that the complainants must be taken to allege that the undistributed assets of the defendant company are in this state.

Counsel of defendant company insist that the bill shows otherwise, and in accord with the truth, that the assets sought to be impounded are in Great Britain. If this appeared, or were made to appear, then we would have for further consideration whether

tach the corporate property, and have such property applied to the payment of the debts of the corporation, and any surplus divided among the stockholders."

"Sec. 6103. The creditors of a corporation may also, without first having obtained a judgment at law, file a bill in the court of chancery, to attach the property of the corporation, and subject the same, by sale or otherwise, to the satisfaction of their debts, when the corporate franchises are not used, or have been granted to others in whole or in part.

"Sec. 6104. In such cases the court may appoint a receiver, take an account of the affairs of the corporation, and apply the property and effects to the payment of debts pro rata, and divide the surplus, if any, among the stockholders."

In the case last cited the statute was con

a court of equity in this state, regardless of strued to apply to creditors of a foreign corany question of potential jurisdiction over poration as well as a domestic corporation, the defendant as a domestic corporation, would decline to assume or exercise jurisdic- and this, whether the effort of the creditors tion. This, on the ground that, the govern- was to base their remedy on insolvency of ing officers and the property to be affected the corporation or on its having ceased to being out of the state, the court could render do business and to use its franchise. no effective decree, and would leave the claimants to seek their remedy in the jurisdiction where the corporation was created. Edwards v. Schillinger, 245 Ill. 231, 91 N. E. 1048, 33 L. R. A. (N. S.) 895, 137 Am. St. Rep. 308; Clark v. Mutual, etc., Ass'n, 14 App. D. C. 154, 43 L. R. A. 390; State v. North American, etc., Co., 106 La. 632, 31 South. 172, 87 Am. St. Rep. 309; Williston v. Mich., etc., R. Co., 13 Allen (Mass.) 400; Smith v. Mutual, etc., Co., 14 Allen (Mass.) 336; 19 Cyc. 1238, 1345.

Manifestly, as to the phase of insolvency, our cases which relate to the winding up, at the instance of Tennessee claimants, of insolvent foreign corporations (Smith v. St. Louis, etc., Ins. Co., 3 Tenn. Ch. 502; Id., 6 Lea, 564, and cases in accord) are aside. We have here no such case, whether the principal defendant be deemed a domestic or a foreign corporation for that assumed purpose.

Chancellor Cooper said: "The argument is that the provisions of our Code-sections 3431, 4294, 4295 (Shannon's, §§ 5187, 6103, 6104)-apply to domestic corporations, and the property of foreign corporations is left to be seized by the more diligent claimants under other provisions of the law. Both the statutes and the decisions speak of corporations, without drawing any distinction between domestic and foreign corporations, and the principle of the decisions, as shown by the authorities cited, is manifestly based on the nature of corporations and corporate funds generally. And it would be a curious departure from uniformity, so desirable in the administration of law, to hold that a different measure of justice should be meted out to creditors, dependent upon whether their debtor was a domestic or foreign corporation. Most clearly there is nothing in the language of the Code or the de

cisions to give countenance to the distinc- [ convert the bill into one for a construction tion contended for." 3 Tenn. Ch. 504, 505. By parity of reasoning, the quoted sections of the Code sustain an action of like character on the part of stockholders there named along with creditors.

* *

ing such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it." Kimball v. Kimball, 174 U. S. 158, 19 Sup. Ct. 639, 43 L. Ed. 932; Taylor v. Insurance Co., 97 Va. 60, 33 S. E. 385, 45 L R. A. 621, 627.

of the charter in relation to the rights of the preferred stockholders and the common stockholders, respectively, in a distribution of assets on dissolution; but, since there is a failure to show grounds for winding up, and Complainants insist that they have pre- the holders of preferred stock are not before sented a proper case for the winding up of the court, no such issue arises for solution on the company and a distribution of its assets; the record. As said by the Supreme Court of their prime contention being that the origi- the United States: "The duty of this court, nal scheme of the coventurers is now impossi- as of every judicial tribunal, is limited to ble of consummation, and has been definitely determining rights of persons or of property, abandoned. They urge that the object of which are actually controverted in the parthe corporation was to acquire and develop | ticular case before it. When, in determinland in Hamilton county; that practically no development had been made and no profits had been earned, in consequence of which the lands had been sold, and the scheme abandoned. This contention takes no note of the alternative provisions of the charter, stipulating that the company might "sell its undertaking, or any part thereof, for such consideration as the company may think fit, and, in particular, for shares * of any other company having objects altogether, or in part, similar to those of this company," or of the further provision that the company shall have power "to hold or otherwise deal with stock or shares." The bill of complaint shows that the governing body of the company is, in pursuance of this feature of the British franchise, proposing to hold the consideration stocks, thus carrying on the business. There is therefore no nonuse of that franchise. Complainants invested in the en-(Supreme Court of Tennessee. Nov. 22, 1913.) terprise by taking shares in the British entity under the British charter, and they cannot validly. urge that a discontinuance of the use of any feature of the franchise from this state touching the ownership and control of land here, acquired on or after domestication, gives them a right to treat, or have treated, the enterprise as abandoned, and the company wound up. The case of O'Connor v. Knoxville Hotel Co., 93 Tenn. 708, 28 S. W. 308, urged on us, manifestly is no authority for the contention that this enterprise is, on these facts, impossible of consummation.

The demurrer to the bill was properly sustained, and the decree of the Court of Civil Appeals is affirmed.

CAROLINA, C. & O. RY. v. SHEWALTER.

1. APPEAL AND ERROR (§ 1092*) — REVIEW — REDUCTION OF VERDICT.

The reduction of the verdict in an action for death, being upheld by the Court of Civil Appeals, will not be interfered with by the Supreme Court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4312-4321; Dec. Dig. § 1092.*]

2. DEATH (§ 10*) - CAUSE OF ACTION - STATUTES-INTERSTATE COMMERCE EMPLOYÉ.

Act April 22, 1908, known as the Employers' Liability Act, c. 149, § 1, 35 Stat. 65 (Ü. S. Comp. St. Supp. 1911, p. 1322), declares a carrier by railroad liable in damages to a "person suffering injury" while employed by it in interstate commerce, or, in case of his death, to his personal representative, for the benefit of certain relatives. Section 9, added to such Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325), chapter by Act April 5, 1910, c. 143, § 2, 36 provides that any right of action given by this act to a "person suffering injury" shall survive Held, that section 9 to his representative. creates no new cause of action, but merely preserves, by survival, the cause of action given the employé, and therefore has no application where there is an instantaneous killing, right of action for the killing in such case being given the personal representative.

[Ed. Note. For other cases, see Death, Dec. Dig. § 10.*] 3. DEATH (§ 18*) RELATIVES.

ACTION FOR BENEFIT OF

To authorize recovery for the benefit of the father of an adult son instantly killed while employed by a railroad in interstate commerce, under Act April 22, 1908, c. 149. § 1.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), merely declaring the company liable in damages, it must be shown the father had reasonable expectation of pecuniary assistance or support from deceased.

[Ed. Note. For other cases, see Death, Cent. Dig. § 20; Dec. Dig. § 18.*]

Appeal from Law Court, Sullivan County; E. K. Bachman, Special Judge.

Action by W. N. Shewalter, administrator, against the Carolina, Clinchfield & Ohio Railway. Judgment for plaintiff. Defendant appeals. Reversed and dismissed. Phlegar, Powell, Price & Shelton, of Johnson City, for appellant. Harr & Burrow, of Bristol, for appellee.

GREEN, J. This suit was brought by W. N. Shewalter, the father and administrator of Robert Shewalter, deceased, to recover damages for the death of the latter, a railroad fireman, who was killed in an accident on the line of defendant company while in its employ.

[1] There was a verdict below for $15,000, remittitur of $5,000 directed, and judgment entered for $10,000. This judgment was affirmed by the Court of Civil Appeals. The case is before us on certiorari, both parties petitioning. The administrator complains of the reduction of the verdict. We will not interfere in a matter of this sort, where the Court of Civil Appeals has upheld the trial judge. We overrule all assignments of error on behalf of the railway company, except those raising the question of the measure of damages under the act of Congress known as the Employers' Liability Act, which we will now consider.

The suit was founded on the act of Congress, known as the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322], and the amendment of April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325).

The particular provisions of the act drawn in question upon this appeal are the following sections:

in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its care, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment."

Section 9: "That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, but in such cases there shall be only one recovery for the same injury."

Section 9 was an amendment to the original act. It will be observed that by the provisions of section 1 heretofore two rights of action are given; the first to the injured employé, and the second, in case of death, to his or her personal representative, for the benefit, etc.

In two cases arising in the circuit courts of the United States it was held that the first right of action, that given to the employé, would not survive to his personal representative in case of his death. Fulgham v. Midland Valley Railroad Co. (C. C.) 167 Fed. 660; Walsh v. N. Y., etc., R. R. Co. (C. C.) 173 Fed. 494.

As appears from the reports of the Judiciary Committees of the House and Senate, the amendment was enacted to meet the effect of these two decisions, and to cause the survival of the original right of action given to the employé for injuries to his personal representative.

It is conceded upon this record that the death of Robert Shewalter was instantaneous, or practically so. He was killed by the collision of the engine, upon which he was fireman, with a large boulder that had fallen from the mountain side, along which the train ran, to the track below. The engine overturned, and probably rolled over him. The witnesses say he was killed outright.

In his charge to the jury, the circuit judge instructed them as follows:

"The statute of the United States, known as the Employers' Liability Act, under which this suit is brought, provides that 'the right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow, husband, or children of such employé; and if none, then to such employé's parents.' This means that all the rights the employé would have had for the injury received will, in the case of his death, go to his personal representative, for the benefit of his widow and children, ir there be any; and if none, then for the benefit of his parents. In this case, if you shall find that plaintiff is entitled to re

Section 1: "That every common carrier by railroad while engaged in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death, of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then such employe's parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 161 S.W.-72

It therefore becomes necessary to examine the federal statute and determine the measure of damages properly allowable under it in a suit like this.

Owing to the peculiar language of our acts relating to this subject, our decisions construing these acts unfortunately will be of little benefit to us in this investigation.

At the common law, as is well known, the right of action for damages for personal injuries perished with the death of the injured person. Such right did not survive in favor of any one.

cover, the elements of damage that would | N. Y., N. H. & H. R. R. Co., 223 U. S. 1, 32 have survived to Robert Shewalter, had Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. death not resulted from his injuries, will sur- S.) 44, to supersede all state legislation, and vive for the benefit of his father, he having to cover and control all matters arising thereleft no widow, child, or mother. I, there- under. fore instruct you that, in an action for personal injuries, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by defendant's negligence, and a reasonable sum for the pain and suffering, if any be shown, and also a fair recompense for the loss of what he would have otherwise earned at his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant, if such be shown. And this will be the measure of damages in this case, if you shall find for the plaintiff. In other Another rule of the common law was that words, the pecuniary value of the life of the the death of a human being was not a matdeceased, Robert Shewalter, is to be deter-ter that could be complained of as an injury mined, if you find for the plaintiff, upon a consideration of his expectancy of life, his age, condition of health and strength, capacity for labor, and for earning money through skill in any trade, occupation, or business, and his personal habits as to sobriety and industry, all modified, however, by the fact that the expectation of life is at most only a probability based upon ex-peal these harsh common-law rules. Some of perience, and also by the fact that the earnings of the same individual are not always uniform. All of these elements are to be taken into consideration by the jury, and, after weighing them all, they should assess such amount of damages as may be sufficient to compensate for the loss of the life whose value they are attempting to estimate."

The point of the criticism directed at this excerpt from the charge is that it permits the jury to assess damages in this suit not only for the loss sustained by the plaintiff, the beneficiary of the suit, but also the actual damages inflicted upon the person and the estate of the deceased-the pecuniary value of the life of deceased.

It is insisted that, inasmuch as the death of the deceased was instantaneous, he sustained no damage himself, and no cause of action accrued to him which might survive; that plaintiff's only right of action here is under those provisions of the act which provide a cause of action for certain beneficiaries in case of death of the party injured; and that the only damages to which the plaintiff is entitled are those actually sustained by him.

by any one, and no one was entitled to maintain an action for damages for the mere loss of life of another. Pollock Torts, 54; Baker v. Bolton, 1st Camp. 493; Osborne v. Gillette, L. R. A. Exch. 88.

The Parliament of Great Britain, and the Legislatures of nearly all the states of this Union have passed acts to obviate and re

these acts repeal the first rule, and provide that a decedent's cause of action against a wrongdoer shall survive. These are often called "survival acts." Other acts give substantially a new cause of action to certain relatives or persons dependent upon deceased for the loss they sustained by reason of the death. These acts are frequently spoken of as "death acts."

Quite often it appears that the states have passed both survival and death acts and they are sometimes contained in the same general statute. Such seems to have been the course taken by Congress in the act here under consideration, after it was amended. The act provides for the survival of the original cause of action, and also provides a new action for death of the injured person in favor of certain designated beneficiaries.

As has been said before, the statutes of Tennessee upon this subject are unique, and this court has been at much pains to explain these statutes and lay down rules for their interpretation. See review of our cases in Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S. W. 967.

Tennessee statutes as contained in Shan

The charge of the circuit judge was cor-non's Code are as follows: rect, under the statutes of Tennessee, and is in accord with the law as laid down in Davidson-Benedict Co. v. Severson, 109 Tenn. 572, 72 S. W. 967, and cases there reviewed. This suit, however, is not brought under the statutes of this state, but is founded on the act of Congress, and this act of Congress, in the field which it covers, has been expressly held by the Supreme Court, in Mondou v.

"Sec. 4025. 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 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 widow, and, in case there is no widow, to his children or to his personal

representative, for the benefit of his widow | doer, in case death had not ensued, shall not or next of kin, free from the claims of creditors."

Sections 4026, 4029, 4466, and 4469 contained other provisions with reference to such suits which are not material to this discussion. Under section 4025, it was formerly held by this court that damages were not recoverable where the killing was instantaneous. The court said:

"The killing of a man is not, of itself, a cause of civil action. 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." Railroad v. Burk, Adm'x, 6 Cold. 45, 52.

This holding of the court was afterwards overruled in Railroad v. Prince, 2 Heisk. 585, in which case, construing the statute, this court said:

abate and be extinguished by his death,' necessarily means that the representative of the deceased person shall have a right of action, whether the deceased died after the injuries were received, or died simultaneously with the infliction of the injury which caused death; and this right of action is to be for the benefit of the widow or next of kin."

After some further discussion, the court overruled the case of Railroad v. Burk, supra, in so far as that case construed the act to contain no provision for recovery of damages in cases of instantaneous death.

Railroad v. Prince, supra, has been followed in Fowlkes v. Railroad, 5 Baxt. 663; Haley v. Railroad, 7 Baxt. 239; and Railroad v. Daughtry, 88 Tenn. 721, 13 S. W. 698, and other cases. It has been conceded since the decision in Railroad v. Prince that our statute covered cases where the killing was instantaneous, by reason of the peculiar provisions of this statute pointed out in that case.

The Connecticut statute of chapter 193 of the Public Acts of 1903, provides:

"In all actions surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally in fault for such injuries, just damages not exceeding $5,000."

Prior to the passage of the above-mentioned act, 1903, the statute of Connecticut provided that "actions for injury to the person, whether the same do or do not result in death shall survive."

*

The Connecticut court has been at pains to explain and point out the difference between the statutes of that state and those of other states to which we shall hereafter refer. Murphy v. New York & N. H. R. Co., 30 Conn. 184; Broughel v. Sou. New Eng. Telephone Co., 72 Conn. 617, 45 Atl. 435, 49 L. R. A. 404.

"But does the section of the Code under consideration include and provide for a case in which the injury produced instantaneous death? The answer to this question must depend upon the intention of the Legislature, as the same is to be ascertained from the language used. It will be observed that two classes of cases are provided for in the section connected together by the use of the disjunctive conjunction, 'the right of action which a person has who dies from injuries received from another.' This language describes one class of cases-those in which death results after the injuries received, but not instantaneously, as we understand the language. As to the second class, 'the right of action which a person, 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 be extinguished by his death.' This is the second class of cases. One class embraces right of action which the person has who dies from injury received; the other class, rights of action which the person 'would have had whose death is caused by the wrongful act or omission of another,' etc. The distinction between the two classes of cases is by no means clear. If there is any difference, it is this: That the language used in describing the second class more clearly includes cases of instantaneous death than that used in describing the first class; and we infer that the language was used in the alternative, with the view of more distinctly indicating the purpose of the Legislature to include cases of instantaneous death, as well as those of death ensuing from injuries previously received. But whether the Legislature used the two different forms of expression for the purpose suggested or not, it cannot be controverted that the language, 'whose death is caused by the wrongful act or omis- In Louisiana, likewise, the decisions consion of another,' includes cases of instantane- struing the survival act of that state seem ous death; and language which immediately to be somewhat out of harmony. In so far follows, 'would have had against the wrong- as these decisions authorize recovery of dam

The Iowa statute contains some peculiar clauses, and the decisions construing the same do not appear to be in harmony. In so far as a recovery has been permitted under a survival statute in cases of instantaneous killing, such recovery seems to have been justified by reason of an old statute of that state which provided: "When a wrongful act produces death, the perpetrator is civilly liable for the injury." See Conners v. Burlington C. R. & N. Y. Ry. Co., 71 Iowa, 490, 32 N. W. 465, 60 Am. Rep. 814; Worden v. Humeston & S. R. Co., 72 Iowa, 201, 33 N. W. 629. See, also, Tiffany's Death by Wrongful Act (2d Ed.) § 75. For a critical review of the Iowa cases, see Dillon v. Great Northern R. Co., 38 Mont. 485, 100 Pac. 960.