TCA § 20-5-113 — Damages recoverable in wrongful death

Where a person's death is caused by the wrongful act, fault or omission of another and suit is brought for damages, as provided for by §§ 20-5-106 and 20-5-107 , the party suing shall, if entitled to damages, have the right to recover 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. Acts 1883, ch. 186, § 1; Shan., § 4029; Code 1932, § 8240; T.C.A. (orig. ed.), § 20-614. Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637. Law Reviews. “Jordan” Stew, 38 No. 5 Tenn. B.J. 26 (2002). Loss of filial consortium (John A. Day), 37 No. 5 Tenn. B.J. 26 (2001). Punitive Damages and Business Organizations: A Pathetic Fallacy, 67 Tenn. L. Rev. 971 (2000). Tort Law — Loss of Consortium Damages for Spouse and Children, 67 Tenn. L. Rev. 475 (2000). Torts — Hataway v. McKinley: Moving From Spacial Relationships to Significant Relationships, 23 Mem. St. U.L. Rev. 257 (1992). Torts — Taylor v. Beard: The Tennessee Supreme Court Declines Adoption of a Cause of Action for Loss of Parental Consortium in Personal Injury Cases, 34 U. Mem. L. Rev. 737 (2004). Cited: All v. John Gerber Co., 36 Tenn. App. 134, 252 S.W.2d 138, 1952 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1952); Management Servs., Inc. v. Hellman, 40 Tenn. App. 127, 289 S.W.2d 711, 1955 Tenn. App. LEXIS 123 (1955); Kindellan v. Arwood Material Co., 338 F. Supp. 1210, 1972 U.S. Dist. LEXIS 14899 (E.D. Tenn. 1972); Sharpe v. Lewisburg, 677 F. Supp. 1362, 1988 U.S. Dist. LEXIS 905 (M.D. Tenn. 1988); Wilkerson v. Altizer, 845 S.W.2d 744, 1992 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1992); Fye v. Kennedy, 991 S.W.2d 754, 1998 Tenn. App. LEXIS 411 (Tenn. Ct. App. 1998); Rains v. Bend of the River, 124 S.W.3d 580, 2003 Tenn. App. LEXIS 537 (Tenn. Ct. App. 2003); Necessary v. Life Care Ctrs. of Am., Inc., — S.W.3d —, 2007 Tenn. App. LEXIS 698 (Tenn. Ct. App. Nov. 16, 2007); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009); Bowman v. City of Memphis, 329 S.W.3d 766, 2010 Tenn. App. LEXIS 47 (Tenn. Ct. App. Jan. 27, 2010); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011). NOTES TO DECISIONS 1. General Principles. 2. Tests for Measuring Compensation. 3. Two Classes of Damages. 4. Mental and Physical Suffering of Deceased. 5. Instantaneous Death. 6. Natural and Proximate Cause. 7. Death of Infant. 8. Death From Other Causes. 9. Incidental Damages. 10. Exemplary Damages. 11. Deduction for Living Expenses. 12. Mitigation of Damages. 13. Excessive Damages. 14. Interest. 15. Proof. 16. Instructions. 17. Husband and Wife. 18. —Loss of Consortium. 19. —Divorced Spouses. 20. Children of Deceased. 21. Conflict of Law. 22. Hedonic Damages. 1. General Principles. The statute embraced in this section is almost a literal transcript of the rule for the measurement of damages laid down in the case of Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). The great fluctuation of judicial opinion as to what were the true elements of damage for the wrongful death of a person no doubt led to the passage of this section. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Chattanooga E. R. Co. v. Johnson, 97 Tenn. 667, 37 S.W. 558 (1896); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897). The statute created no new, additional, or independent cause of action, but enlarged and regulated the measure of damages. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908). Provisions of Worker's Compensation Law for benefits to dependents held inapplicable to action for wrongful death of one not an employee. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Despite allowance of certain damages to the beneficiaries, this statute creates no new right of action in the beneficiaries but preserves only the right of action of the deceased. Jones v. Black, 539 S.W.2d 123, 1976 Tenn. LEXIS 572 (Tenn. 1976). The amount of damages is primarily a question for the jury and their verdict is entitled to great weight on appeal when the trial court has approved it, if there is no claim that the verdict is corrupt or dishonest. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977). The Tennessee wrongful death statutes, § 20-5-106 and this section, are of the survival type, which simply preserve any action which the decedent would have had. Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 1985 U.S. Dist. LEXIS 16397 (W.D. Tenn. 1985). The language of this section does not in any way lead to the conclusion that a plaintiff's post-judgment death converts a personal injury action into a wrongful death action. Davis v. Jellico Community Hosp., Inc., 912 F.2d 129, 1990 U.S. App. LEXIS 14589 (6th Cir. Tenn. 1990). T.C.A. § 20-5-113 gives rise to a single cause of action vested in the representative of the decedent, under which two types of damages may be recovered: 1) Actual damages to the deceased, which include pain and suffering, medical expenses and funeral costs; and 2) Pecuniary value of the life of the deceased, based on life expectancy, age, condition of health and strength, capacity for labor and for earning money, and personal habits as to sobriety and industry. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999). Wrongful death beneficiaries' claims against a nursing home arising from the death of a resident were subject to an arbitration agreement between the resident and the home; the wrongful death claim belonged to the resident's estate and not to the beneficiaries, so the beneficiaries were required to seek their damages in the arbitral forum agreed to by the estate. Wood v. Greenfield Assisted Living of Memphis, LLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 179186 (W.D. Tenn. June 22, 2015). 2. Tests for Measuring Compensation. The measure of damages for the wrongful killing of a person is actual compensation in all cases where the nature of the case admits of the application of the rule; and in cases involving mental and physical suffering that do not admit of being brought to an actual standard of value, some reasonable proportion between the circumstances attending the injury and the damages allowed should be observed by the jury. Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128, 1884 Tenn. LEXIS 115 (1884). The pecuniary value of the life is its value to deceased's estate. The amount representing this value represents also the loss which the beneficiary has suffered, because he is entitled to the money as the substitute for the life of the deceased. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Damages embracing pecuniary value of life of deceased are to be determined upon consideration of life expectancy of deceased, his age, condition of health and strength, his capacity if any for labor and earning money through skill in any art, trade, profession, occupation or business and his personal habits as to sobriety and industry. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965); Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965); Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989); Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994). In wrongful death action trial court should have instructed jury that for purpose of determining pecuniary value of decedent's life they should take into consideration the life expectancy of decedent, his age, the condition of his health, his strength, his capacity for work and earning money, his personal habits for sobriety and industry, all of these things to be modified by the fact that expectancy of life is at most a probability based upon experience and also modified by the fact that earnings of the same individual are not always the same and uniform. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970). One of the elements of damage in wrongful death action is pecuniary value of life of decedent on the day he died. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970). The pecuniary value of decedent's life under this section is the same as its value to his estate. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970). The sexual conduct of the deceased's mother who brought the wrongful death action had nothing to do with the deceased's capacity for work and personal habits. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976). The fact that a party is in a weakened condition at the time of the injury is not a causal defense available to the defendant in a wrongful death action. Such condition may be material to the issue of life expectancy, but is not evidence as to the cause of the injury. Fuller v. Speight, 571 S.W.2d 840, 1978 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1978). Evidence of commission of a crime by decedent is competent on the question of pecuniary value of decedent's life, and the court erred in excluding such testimony in this case. Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989). 3. Two Classes of Damages. In an action for the wrongful death of a person, the damages, recoverable in the one and same action, consist of two classes: the first class consists of damages purely for the injury to the deceased himself, and embraces damages for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from personal injury; and the second class consists of the incidental damages suffered by the widow, children, or next of kin, from the death, and embraces the pecuniary value of the life of the deceased, to be determined upon the consideration of his expectancy of life, his age, condition of health and strength, his capacity of labor; and for earning money through skill in any art, trade, profession, occupation, or business, and his personal habits as to sobriety and industry; all modified, however, by the fact that the expectancy of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912); Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). There is but one cause of action embracing the first and second classes of damages contemplated by this section, namely, the action of the deceased, although the recovery may include damages sustained by persons to whom the statute gives the recovery. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Two doctors' post-2001 failure to diagnose the decedent's prostate cancer, which allegedly led to the decedent's increased pain and suffering, did not entitle the decedent's children to damages for pain and suffering irrespective of their success as T.C.A. § 20-5-113 set forth two classifications of damages available in successful wrongful death claims. Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 400 (Tenn. Apr. 14, 2011). 4. Mental and Physical Suffering of Deceased. Damages for the mental and physical suffering of the deceased are recoverable by those in whose favor the right of action survives. Louisville & N. R. Co. v. Stacker, 86 Tenn. 343, 6 S.W. 737, 1887 Tenn. LEXIS 52, 6 Am. St. Rep. 840 (1887); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). Beneficiaries may recover for deceased's mental and physical suffering, though the declaration did not cover pain and suffering. Brown v. Ellison, 12 Tenn. App. 27, — S.W. —, 1926 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1926). Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102 ; under T.C.A. § 20-5-113 , the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005). 5. Instantaneous Death. The action for a wrongful death lies whether the death is instantaneous and simultaneous with the injuries, or occurs after an interval. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). Where the death is instantaneous, there can be no compensation for mental and physical suffering of the deceased. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Carolina, C. & O.R.R. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, 1913 Tenn. LEXIS 55, 1916C L.R.A. (n.s.) 964 (1913), aff'd, Shewater v Carolina, C. & O. R. Co., 239 U.S. 630 , 36 S. Ct. 166 , 60 L. Ed. 476 , 1915 U.S. LEXIS 1419 (1915); Louisville & N.R.R. v. Johnson, 7 Tenn. Civ. App. (7 Higgins) 458 (1917). The question whether the injured person suffered mental or physical pain, where death was instantaneous, is a question for the jury. Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894). Where deceased was rendered unconscious immediately and did not suffer and no medical or funeral expenses are proved, the award of damages can be for only those resulting from the death consequent upon the injuries received. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Where parties stipulated that one decedent in wrongful death action was killed instantly and that the other decedent died two hours later without regaining consciousness, the amount of damages recoverable would be the pecuniary value of the lives of the decedents together with any medical or burial expenses. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965). 6. Natural and Proximate Cause. An action cannot be maintained under these statutes for the death of a person, unless the death is the natural and proximate result or consequence of the injury complained of and proved. Wagner v. Woolsey, 48 Tenn. 235, 1870 Tenn. LEXIS 42 (1870); White v. Conly, 82 Tenn. 51, 1884 Tenn. LEXIS 104, 52 Am. Rep. 154, 52 Am. Rep. 154 (1884); Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917). 7. Death of Infant. Where death results, and the parent, as administrator of the child, sues, he is entitled to recover for the mental and physical suffering of the child, loss of the child's time, and the necessary expenses, if any, and also the damages for the wrongful death of the child. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Tennessee Coal, Iron & R.R. v. Watts, 1 Tenn. Civ. App. (1 Higgins) 347 (1909); Chess-Wymond Co. v. Davis, 4 Tenn. Civ. App. (4 Higgins) 197 (1913). Mental suffering is not an element of damages in action for the death of a child. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934). In a suit prosecuted by the administratrix of an infant for the wrongful death of such infant, the amount of damages recoverable was the pecuniary value of its life. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956). Sum of $14,000 was allowed for the death of a five and one-half year old boy. Pickens v. Southern R. Co., 177 F. Supp. 553, 1959 U.S. Dist. LEXIS 2680 (D. Tenn. 1959). Substantial damages may be recovered by the parents of a minor child notwithstanding the fact that such child had never been gainfully employed, such damage to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex, and physical and mental characteristics of the child. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977). T.C.A. § 20-5-110 allows recovery of filial consortium damages as part of the pecuniary value of the decedent's life. Hancock v. Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 2001 Tenn. LEXIS 628 (Tenn. 2001). In a wrongful death action by the father who survived the deceased mother, and the mother's unborn child, it was clear that a viable fetus “resided wherever its mother resided,” and therefore, the family exclusion provision in the policy was applicable, the insurer was not required to provide coverage for bodily injury to fetus, and the trial court's grant of partial summary judgment in favor of father, was reversed. Hollis v. Doerflinger, 137 S.W.3d 625, 2003 Tenn. App. LEXIS 416 (Tenn. Ct. App. 2003). 8. Death From Other Causes. Where the injured party brought suit for personal injuries, and thereafter died from other causes, and his personal representative revived the suit, there can be a recovery for the mental and physical suffering of the deceased up to the time of his death, but there can be no recovery for the suffering which the deceased would have undergone from the wrongs, for the time he would have lived in the ordinary course, had it not been for the other supervening causes of death. Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912). 9. Incidental Damages. If those entitled to the recovery, under the statute for a wrongful death, had a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they may recover for it; and, the greater the value of the life to them, from a pecuniary point of view, the more perfect is the right of recovery. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). There can be no recovery of damages for the injured feelings, grief, or mental and physical suffering and anguish of the widow, children, or next of kin, occasioned by the death of the deceased, nor for the loss of the companionship, advice, protection, assistance, comfort, moral aid, and counsel of the deceased, called solatium. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Nashville & C. R. Co. v. Smith, 77 Tenn. 470, 1882 Tenn. LEXIS 85 (1882); Louisville & N. R. Co. v. Conley, 78 Tenn. 531, 1882 Tenn. LEXIS 219 (1882); Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901); Railroad v. Bentz, 108 Tenn. 670, 69 S.W. 317, 1902 Tenn. LEXIS 14, 91 Am. St. Rep. 763, 58 L.R.A. 690 (1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). The incidental damages suffered by the next of kin are such as the deceased himself could have recovered had he been permanently disabled for life, and were himself prosecuting the suit. This measure of damages represents the pecuniary value of the life of the deceased, which the beneficiaries under the statute are entitled to recover as the pecuniary damages sustained by them. To allow them to recover both what the decedent might have recovered himself for permanent disability for life and what they have sustained as pecuniary damages consequent upon the death is to allow duplicate damages for the one life. There is no warrant for the allowance of duplicate damages. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). 10. Exemplary Damages. In actions for personal injuries resulting in death, the measure of damages is actual compensation where the nature of the case admits of the application of the rule; but in cases where the elements of malice, gross negligence, willfulness, wantonness, or cruelty enter into the wrong done, the interest of society and that of the aggrieved party are blended, and the jury in such cases may, in its discretion, award exemplary, vindictive, or punitive damages. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Louisville & N. R.R. Co. v. Garrett, 76 Tenn. 438, 1881 Tenn. LEXIS 30, 41 Am. Rep. 640 (1881); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 1899 Tenn. LEXIS 118, 46 L.R.A. 549 (1899); Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904); Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914). Vindictive or exemplary damages may be awarded though death be instantaneous to the person injured. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Kansas C., F. S. & M. R. Co. v. Daughtry, 88 Tenn. 721, 13 S.W. 698, 1890 Tenn. LEXIS 9 (1890), aff'd, 138 U.S. 298 , 11 S. Ct. 306 , 34 L. Ed. 963 , 1891 U.S. LEXIS 2085 (1891). The allowance of exemplary damages, when warranted by the pleadings and the proof, is left to the sound discretion of the jury; and an instruction in such case that such damages must or should be assessed, or that it is not only the jury's right, but its duty, to do so, is erroneous. Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904). Exemplary damages may be allowed for wrongful killing by special officer employed by the defendant, while attempting to arrest the decedent for the misdemeanor of stealing a ride on defendant's train, and a judgment for $2,000 was not disturbed as excessive. Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914). 11. Deduction for Living Expenses. In challenging amount of wrongful death award, defendant could not complain of the trial court's failure to make a deduction for the decedents' living expenses where the defendant failed to offer proof on the issue at trial. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997). 12. Mitigation of Damages. In estimating the damages sustained by those entitled to recover it is competent for the wrongdoer (the defendant) to show, in mitigation of the damages, that the deceased was a drunken and worthless man; that he provided nothing for his family, but consumed what his family supplied. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871). Funeral expenses are an element of damage. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930). In suit by administrator for benefit of widow and children of a deceased person to recover for wrongful death of deceased the trial court properly refused charge by defendant that no recovery could be had for loss by widow and children of the society and companionship of father since such was a proper element to consider under the rule of compensatory damages recoverable. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930). Damages are not mitigated by the neglect of a physician attending injured person. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914). The desertion of a child by the father and failure to provide will not mitigate the damages recoverable for the child's death where the father's act did not contribute to the death. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914). The fact that deceased was self-supporting and no one contributed to her support and that she did not contribute to the support of anyone else is immaterial as regards the question of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). The fact of estrangement of deceased and her husband is immaterial in determining the amount of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). 13. Excessive Damages. Judgment for $10,000 for death of woman, 34 years of age, in good health, earning from eight to ten dollars weekly, will not be disturbed on appeal on ground that it is excessive, her expectance being over 31 years. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Verdict of $10,000 was reduced to $6,500 in the death of a five and a half year old child who suffered for two hours before death. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934). In actions against railroad, verdict of $22,500 for death of 11-year-old child, and verdict for death of 13-year-old child was not excessive under this statute. Southern R. Co. v. Miller, 285 F.2d 202, 1960 U.S. App. LEXIS 3074, 85 A.L.R.2d 842 (6th Cir. Tenn. 1960). Allowance of $5,000 for wrongful death of 84 year old woman in moderately good health who suffered fractures of leg and thumb in fall and died three days later from an embolism was not excessive. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965). Verdict of $76,105, remitted by $26,105 to $50,000, was not excessive for wrongful death of 9-year-old boy who was industrious in nature with good personal habits and life expectancy of 60.8 years. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965). Award of $103,923 was not excessive for wrongful death of 41-year-old female school teacher who was in good health, sober in habits, very industrious with a life expectancy of 36.4 years and estimated future earnings of $133,199, the present value of which was $88,520 using six percent discount factor. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965). For the death of a soya company employee, killed by the falling upon him of the door of a box car from which he and a fellow employee were attempting to unload soybeans, who was 45 years old, lived 18 days in intense and excruciating pain, had an income of $5,000 per year, and left surviving him a widow and three minor children, a verdict of $140,000 was not so excessive as to require remittitur. Smith v. Illinois C. R. Co., 394 F.2d 254, 1968 U.S. App. LEXIS 6843 (6th Cir. Tenn. 1968). A jury award of $75,000 for the death of an 11-year-old boy whom the jury had found guilty of remote contributory negligence and who never regained consciousness before his death was not excessive. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977). Child's award of $260,000 for the deaths of the child's 70 and 79 year-old parents was reduced to $150,000 where no proof was offered as to the pecuniary value of the domestic services the parents had provided for their child. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997). 14. Interest. Interest will be allowed from the date of the rendition of a judgment by the circuit court in an action for personal injuries or wrongful death, upon its affirmance in the Supreme Court. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, 1887 Tenn. LEXIS 3 (1887); Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891). Interest cannot be allowed, as part of the verdict, and it is reversible error for the trial judge to instruct the jury that they may, in their discretion, allow interest upon the amount of damages awarded. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Louisville & N. R. Co. v. Fort, 112 Tenn. 432, 80 S.W. 429, 1903 Tenn. LEXIS 114 (1903). Remittitur of the interest as a separate item in the verdict, made in the Supreme Court in a case where interest was allowed as part of the verdict, cures the error in the verdict. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Alabama G. S. R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314, 1904 Tenn. LEXIS 39, 67 L.R.A. 495 , 3 Ann. Cas. 937 (1904). 15. Proof. In an action for wrongful death, it is competent to show the deceased person's ability and capacity for labor, as well as his skill in any particular art or profession, and that his habits were good, regular, and temperate, in order to show what he was capable of earning; but what money in fact he made the year previous is not pertinent, and is not strictly competent. E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Bridge Co. v. Barnes, 98 Tenn. 401, 39 S.W. 714, 1896 Tenn. LEXIS 234 (Tenn. Dec. 1896). Evidence of the minimum value of the crops raised by the deceased for the past years and the value of the same crops raised by others is incompetent and inadmissible. Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891). Under a declaration based on this section, it is competent to show the circumstances relating to the condition and treatment of the deceased from the time of the injury until his death. Wabash Screen Door Co. v. Black, 126 F. 721, 1903 U.S. App. LEXIS 4358 (6th Cir. Tenn. 1903). So far as the right of action is that of the deceased, his personal representative and next of kin are bound by his admissions made while yet alive. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916). In an action by a husband to recover damages for the wrongful death of his wife, the burden of proof on the issue of the contributory negligence of the husband is upon the defendant. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921). Proof that a deceased daughter aided in the support of the plaintiff mother is not competent, but the error in its admission is not reversible where the charge to the jury did not refer to that proof as an element of damages, showing same allowable. Johnson v. Maury County Trust Co., 15 Tenn. App. 326, — S.W.2d —, 1932 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1932). Proof of life expectancy, state of health, and earning capacity are necessary in fixing damages for wrongful death. An instruction to the jury that age, earning capacity, and character of citizenship of the deceased should be looked to in fixing damages was erroneous in the absence of proof on the subject. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933). Where error in jury instructions results in damages being awarded on behalf of decedent without evidence being adduced as to pecuniary value of that life, the award will not be overturned where there is ample evidence at trial of other grounds for jury's verdict. Scott v. Jones Bros. Constr., 960 S.W.2d 589, 1997 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1997). 16. Instructions. In an action for the wrongful death of a wife, an instruction, “If you find in favor of the plaintiff, it will be your duty to fix the amount of his recovery. The measure of the recovery would be reasonable compensation for the life of the deceased. In determining that, take into consideration her age, the state of her health, her expectancy of life, of a person of her state of health and age, and let your verdict be for reasonable compensation,” was held not to be prejudicially erroneous against the defendant, although the trial court should have charged the jury that the measure of damages was the pecuniary value of the life of the deceased, and not any sentimental value which the jury might place on the deceased's life, and, further, in arriving at the value of the life, it should be taken into consideration that at best the duration of life is uncertain. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921). In death action it was error to charge the jury that it might look to the age of deceased and his earning capacity where there was no evidence as to his earning capacity, state of health, life expectancy, or amount of wages earned. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933). Alleged error of trial court in action for death of 5½ year old boy in charging that loss of services during the child's minority was an element to consider in arriving at damages was not prejudicial where the amount of the award was $5,000 and the child was physically and mentally normal as the value of the life of such child was not less than that amount regardless of the alleged erroneous charge. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956). Instructions in wrongful death action that jury could consider circumstances and condition of decedent's wife, the services he would have performed for his wife, the portion of his earnings he would have in the future applied to care and support of his wife and the life expectancy of his wife constituted reversible error. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970). 17. Husband and Wife. Wife's administrator may not maintain action for wrongful death of wife as result of unlawful assault of her husband. There is no new cause of action created, and deceased had none. Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926); Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058, 1930 Tenn. LEXIS 67 (1931), overruled in part, Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983). If there are no children or descendants of children, the surviving husband alone, to the exclusion of the wife' next of kin, is entitled to the recovery, although the action must be by an administrator. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). It is not material that the deceased wife and her husband had been estranged and lived apart, since it does not affect the pecuniary value of the wife's life. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931). Surviving spouse never had an individual claim to assert because the wrongful death claims he asserted against a hospital were brought in a representative capacity on behalf of the decedent. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017). 18. —Loss of Consortium. Wrongful Death Act does not provide for recovery for grief or loss of consortium by the decedent's children. Still v. Baptist Hospital, Inc., 755 S.W.2d 807, 1988 Tenn. App. LEXIS 315 (Tenn. Ct. App. 1988), questioned, Taylor v. Beard, 104 S.W.3d 507, 2003 Tenn. LEXIS 165 (2003). Depending on the facts of the relationship, a parent may recover loss of consortium damages as an element of the pecuniary value of the child's life. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999). Loss of consortium may be considered when calculating the pecuniary value of a deceased's life. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). Loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members, including attention, guidance, care, protection, training, companionship, cooperation, affection, love and in the case of a spouse, sexual relations. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). The holding in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999) that loss of consortium may be considered when calculating the pecuniary value of a deceased's life and that such claims may encompass a child's loss, applies retroactively to: (1) All cases tried or retried after the date of the Jordan decision; and (2) All cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill v. City of Germantown, 31 S.W.3d 234, 2000 Tenn. LEXIS 587 (Tenn. 2000). Trial court erred in refusing to instruct the jury on a decedent's parents' claim for loss of filial consortium in a wrongful death action; a new trial was necessary only as to consortium damages as it was clear that the jury's damages award was limited to the decedent's pain and suffering. Rothstein v. Orange Grove Ctr., 60 S.W.3d 807, 2001 Tenn. LEXIS 808 (Tenn. 2001). Because the term “pecuniary value” includes consortium-like damages, children of the deceased were not limited in their recovery to medical and funeral expenses and loss of earning capacity; their award could include incidental damages, including loss of consortium, and therefore, the court's award of $300,000 to the decedent's children was not excessive. Knowles v. State, 49 S.W.3d 330, 2001 Tenn. App. LEXIS 120 (Tenn. Ct. App. 2001), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 549 (Tenn. July 2, 2001). 19. —Divorced Spouses. Divorced father was entitled to share with his ex-wife in the proceeds of a judgment for the wrongful death of their minor daughter, subject to a lien on any funds recovered to satisfy any arrearage that may be owed as child support. Spurling v. Johnson, 747 S.W.2d 350, 1987 Tenn. App. LEXIS 3138 (Tenn. Ct. App. 1987). 20. Children of Deceased. Loss of consortium may be considered when calculating the pecuniary value of a deceased's life, and such losses are not limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). The age of the child does not, in and of itself, preclude consideration of parental consortium damages, and the adult child inquiry shall take into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.). Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999). The holding in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999) that loss of consortium may be considered when calculating the pecuniary value of a deceased's life and that such claims may encompass a child's loss, applies retroactively to: (1) All cases tried or retried after the date of the Jordan decision; and (2) All cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill v. City of Germantown, 31 S.W.3d 234, 2000 Tenn. LEXIS 587 (Tenn. 2000). Decedent's children did not have a separate claim but one indivisible cause of action existed, the cause of action the decedent would have had, absent death, against the wrongdoer; therefore, the decedent's survivors were only permitted to assert the cause of action in a representative capacity on the decedent's behalf. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017). 21. Conflict of Law. The “most significant relationship” approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971) was adopted by the state supreme court in place of the doctrine of lex loci delecti to resolve conflict of law questions in tort cases. Hataway v. McKinley, 830 S.W.2d 53, 1992 Tenn. LEXIS 313 (Tenn. 1992). 22. Hedonic Damages. T.C.A. § 20-5-113 does not allow claims for hedonic damages; thus, it was proper for the trial court to refuse plaintiff's requested instruction on that issue. Spencer v. A-1 Crane Serv., 880 S.W.2d 938, 1994 Tenn. LEXIS 174 (Tenn. 1994). Collateral References. 22 Am. Jur. 2d Death §§ 115-145, 234, 236, 272. 1 C.J.S. Abatement and Revival § 186; 25A C.J.S. Death §§ 95-129. Admissibility and sufficiency of proof of value of housewife's services, in wrongful death action. 77 A.L.R.3d 1175. Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in an action for personal injury or death. 81 A.L.R.2d 733. Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse's remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926. Admissibility of evidence of plaintiff's or decedent's drawings from partnership or other business as evidence of earning capacity, in action for personal injury or death. 82 A.L.R.2d 679. Adult child's right of action for loss of parental consortium. 12 A.L.R.6th 241. Counsel's use, in trial of personal injury or wrongful death case, of blackboard, chart, diagram, or placard, not introduced in evidence, relating to damages. 86 A.L.R.2d 239. Damages for wrongful death of husband or father as affected by receipt of social security benefits. 84 A.L.R.2d 764. Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299. Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery from wrongful death of child. 53 A.L.R.3d 566. Pension, retirement income, social security payments, and the like, of deceased, as affecting recovery in wrongful death action. 81 A.L.R.2d 949. Propriety and prejudicial effect of reference by plaintiff's counsel, in trial of personal injuries or death action, to amount of damages claimed or expected by his client. 14 A.L.R.3d 541. Recovery for mental or emotional distress resulting from injury to, or death of, member of plaintiff's family arising from physician's or hospital's wrongful conduct. 77 A.L.R.3d 447. Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125. Recovery of nominal damages in wrongful death action. 69 A.L.R.2d 628. Recovery of prejudgment interest on wrongful death damages. 96 A.L.R.2d 1104. Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse. 87 A.L.R.2d 252, 88 A.L.R.3d 926. Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father. 78 A.L.R.3d 1230. Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. 49 A.L.R.5th 685. Who, other than parent, may recover for loss of consortium on death of minor child. 84 A.L.R.5th 687. Death 78-101.