I dissent from that part of the opinion which says:
"No actual damages having accrued to the decedent, the appellee's recovery must be limited to nominal damages, 17 Corpus Juris, 1322, unless the circumstances surrounding the infliction of the injury warrant the imposition of punitive damages."
In my opinion the funeral expenses brought about by the wrongful killing of the decedent are actual damages to the decedent, because the estate of the decedent is charged with the expenses of the funeral, and such expenses are a preferred claim against the estate of the decedent under section 2113, Code of 1906; Hemingway's *Page 306 Code, section 1761. It is not necessary for the declaration to show the actual payment of funeral expenses, nor that the administrator has incurred them before he may recover. He may sue before notice to creditors has been published, and any person may incur them, and may probate his claim therefor after the notice is published. It is not the amount actually expended that is recoverable, but a reasonable amount that may be sued for and recovered.
As I understand the authorities, funeral expenses are a part of the compensatory damages they may be recovered for the death of a party where the party entitled to sue is charged with the funeral expenses. It is the duty of the executor or administrator to pay the expenses of the last illness and the funeral expenses in preference to other claims.
In Murphy v. N.Y.C. H.R.R. Co., 88 N.Y. 445, the court held:
"The amount of the necessary funeral expenses is an item of the pecuniary damages suffered from the death by the party obliged to pay them, and here these expenses fell upon the plaintiff, the husband of the deceased. The action was brought for the benefit of himself and his children, and under section 11 of the act, chapter 782 of the Laws of 1867, he was entitled to receive one-third of the amount recovered, and the other two-thirds were to be divided equally among his children."
In the syllabus in the Murphy case, supra, it is said:
"In an action under the statute (chapter 450, Laws of 1847, as amended by chapter 78, Laws of 1870), to recover damages for negligence causing death, the necessary funeral expenses of the deceased are proper items of damages, where any of those for whose benefit the action is brought are legally bound to pay such expenses; and proof thereof is, therefore, competent."
In the case of Petrie v. Columbia G.R. Co., 29 S.C. 303, 7 S.E. 515, the court held to the same effect; this *Page 307 suit being also a suit by an administrator for death wrongfully inflicted.
In the case of Augusta Factory v. Davis, 87 Ga. 648, 13 S.E. 577, the court said:
"The plaintiff's daughter was fifteen years of age, and was injured on the 8th day of January, 1890. She survived until the 24th day of the same month, when she died of her injuries. The action is for the loss of her labor and services, and for expenses incurred in her last illness, death and burial. The negligence of the defendant which caused the injury and consequent death was in furnishing unsafe machinery for the child to work with, she being in the employment of the defendant as a laborer in its cotton mill. This negligence was a tort and the death resulted from it. The plaintiff, according to all the better authorities, would be entitled to recover the necessary expenses incurred by him in consequence of it, and also compensation for the loss of the labor and services of his minor daughter from the time she was disabled by the injury until she died. 2 Thompson on Negl., 1272 and notes; 3 Lawson, Rights, Rem. Pr., section 1016."
To the same effect, see Southern Railway Co. v. Covenia,100 Ga. 46, 29 S.E. 219, 40 L.R.A. 253, 62 Am. St. Rep. 312.
In the case of Owen v. Brockschmidt, 54 Mo. 285, the supreme court of that state held that the funeral expenses were recoverable. In that case the following instruction was given the jury, objected to, and assigned for error:
"The jury are instructed, that this suit is brought by the plaintiffs for their own benefit, to recover damages allowed to have occurred to Mrs. Owen in consequence of her child's death, and not for the injury done to the child itself, and that the jury, if they find for the plaintiffs, will award such sum as they think fair and just in view of the injury necessarily resulting to plaintiffs in consequence of the child's death; and that, in estimating *Page 308 these damages, they cannot allow anything to the plaintiffs on account of pain or suffering inflicted on said child, nor for the mental anguish or wounded feelings of the plaintiff, Mrs. Owen, nor anything on account of funeral expenses of the child," etc.
In that case the court in condemning this instruction said (54 Mo. at page 289):
"Again this instruction was erroneous in asserting that nothing was to be allowed for `funeral expenses;' such expenses must, if anything can, be one of the most obvious and necessary injuries resulting from death."
See, also, Rains v. St. L., I.M. S.R.R. Co., 71 Mo. 164, 36 Am. Rep. 459.
In the case of Pennsylvania Co. v. Lilly, 73 Ind. 252, in the first syllabus the following rule is announced:
"In an action by a parent against a railroad company, for negligently causing the death of his infant child, he is entitled to recover only for the pecuniary injury he has sustained. The proper measure of damages is the value of the child's services from the time of the injury until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance. To this may be added, in proper cases, the expense of care and attention to the child, made necessary by the injury, funeral expenses and medical services."
In the opinion in that case, Pennsylvania Co. v. Lilly, 73 Ind. at page 254, it is held:
"It is well settled that, in an action by a parent for the death of his child, he is entitled to recover only for the pecuniary injury he has sustained, and that the proper measure of damages is the value of the child's services from the time of the injury until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance. To this may be added, in proper cases, the expenses of care and attention to the child, made necessary by the injury, funeral expenses and medical services. 2 Thompson, Negligence, 1292; Shearman Redfield, Negligence, section 608; 2 *Page 309 Waits' Actions Defenses, 477; Cooley Torts, 270; 2 Addison Torts, par. 1273; Ohio, etc., R.R. Co. v. Tindall,13 Ind. 366."
To the same effect, see Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793; Louisville, etc., R.R. Co. v. Wright, 134 Ind. 609, 34 N.E. 314; Southern Indiana R.R. Co. v. Moore, (Ind. App. 1904) 71 N.E. 516; Le Blanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Houghkirk v. Delaware, etc., CanalCo., 92 N.Y. 219, 44 Am. Rep. 370; Roeder v. Ormsby, 22 How. Prac. (N.Y.) 270; Pennsylvania R.R. Co. v. Zebe, 33 Pa. 318;Pennsylvania R.R. Co. v. Bantom, 54 Pa. 495; Missouri, etc.,R.R. Co. v. Evans, 16 Tex. Civ. App. 68, 41 S.W. 80;Citizens' R.R. Co. v. Washington, 24 Tex. Civ. App. 422,58 S.W. 1042; Hedrick v. Ilwaco R., etc., Co., 4 Wn. 400, 30 P. 714; McCubbin v. Hastings, 27 La. Ann. 713; Meyer v.Hart, 23 App. Div. 131, 48 N.Y.S. 904; Gulf, etc., R.R. Co. v. Southwick (Tex. Civ. App.), 30 S.W. 592; Philby v.Northern Pacific Railway Co., 46 Wn. 173, 89 P. 468, 9 L.R.A. (N.S.) 1193, 123 Am. St. Rep. 926, 13 Ann. Cas. 742.
In the case of Philby v. N.P. Ry. Co., supra, the court departed from the earlier decisions in that state (Washington) and adopted the rule that the funeral expenses were recoverable as pecuniary damages. At page 743 of 13 Ann. Cas. the court said:
"The wife's death imposes upon the husband the financial burden of funeral expenses which he must pay. At common law he was bound to bury his deceased wife in a suitable manner, and defray the necessary expenses thereof if he possessed the means, 13 Cyc. 273. Such expenses can be exactly estimated, and while in one sense they may have ensued from the death of the wife, they are, more strictly speaking, a financial loss resulting directly from the negligent acts of another."
On the same page of this report (13 Ann. Cas. 743), in the second column, the court said: *Page 310
"In Murphy v. New York Cent. etc., R. Co., 88 N.Y. 445, such an act was construed, and the court not only held that funeral expenses could be recovered, but also recognized them to be an item of pecuniary damages which only one of the plaintiffs was obliged to pay, and which were different from the ordinary damages allowed by reason of the statute."
It seems to me that nothing could be clearer than the fact that the funeral expenses flow directly, logically, and necessarily from the death, and as under our law the decedent must pay his funeral expenses out of his estate, it is a pecuniary damage to him. Whatever damages a person's estate is a damage to himself. Our statute provides clearly that the suit may be maintained by the administrator where there are none of the classes named in the statute in existence, and this suit under the very express language of the statute exists although the death was instantaneous. It is certainly a reasonable proposition to hold that a person who wrongfully inflicts death upon another should pay the expenses of his funeral.