We cannot agree with appellee on rehearing that interest before judgment is recoverable on the amount of the damages fixed by the jury. We think the Federal Employers' Liability Act (45 USCA §§ 51-59) precludes us from so agreeing, assuming that one element of the claim may not sound in damages merely. Such act is paramount and exclusive, and the defendant's liability cannot be extended by any state statute or rule of construction. St. Louis, S. F. T. R. Co. v. Seale,229 U.S. 156, 33 S. Ct. 651, 57 L. Ed. 1129; Mondou v. N.Y., N.H. . H. R. Co., 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L.R.A. (N.S.) 44; Taylor v. Taylor, 232 U.S. 363, 34 S. Ct. 350,58 L. Ed. 638; Laughlin v. Kansas City Southern R. Co., 275 Mo. 459,205 S.W. 3; Norton v. Erie Ry. Co., 163 A.D. 468,148 N.Y. S. 771; Id., 83 Misc. Rep. 159, 144 N.Y. S. 656. There is no provision for interest in the federal act, nor otherwise provided by federal law or federal court construction. But, if we should admit that state statutes and judicial construction allowing interest on certain unliquidated demands have effect here, the result would not be different.
The Supreme Court of Iowa, in the case of Bennett v. Atchison Ry. Co., 187 Iowa, 897, 174 N.W. 805, heretofore referred to, has stated its conclusion that interest before judgment should not be added to the compensation awarded dependents of decedents in such cases, using the following language: *Page 248
"In no event is the plaintiff entitled to recover interest on her unliquidated demands before judgment is entered on those demands. If there is such a thing as an unliquidated demand, the claim made under this statute is essentially so. The amount plaintiff, as widow, is entitled to recover is such sum as the Jury finds, when it comes to consider the whole case, is fair compensation to the plaintiff for the pecuniary loss which she sustains by the death of her husband, and that is measured by a review of the whole field of probabilities, involving the expectancy of the husband, the expectancy of the wife, the husband's earning capacity and ability to contribute, the probable amount he would contribute, the times when such contributions would be made, the amount and such other facts as tended to show the probable pecuniary loss to the wife as a proximate result of the husband's death. It will be noted that the Federal Employers' Liability Act makes no provision for interest. The authorities on the question here submitted are but few. It was directly held that interest is not allowable in Norton v. Erie Ry. Co., reported in 163 A.D. 468,148 N.Y. S. 771. In that case it was said, in substance, that the federal statute is paramount and exclusive, and the defendant's liability may not be extended by the provisions of the state statute. No provision is made in the federal act for adding such interest to the verdict. The order disallowing interest was affirmed. See Grow v. Oregon Short Line, first reported in44 Utah, 160, 138 P. 398, Ann. Cas. 1915B, 481, and again in47 Utah, 26, 150 P. 970. In the last case the question of allowing interest on a verdict was considered, and the right denied. The time between the death and the rendition of the verdict was 4 1/2 years."
Where damages for the destruction or injury to property have an ascertainable money value it is proper to add to the damages interest from the date when the injury was done. Atlanta B. Air Line Ry. v. Brown, 158 Ala. 607, 48 So. 73; Fuller v. Fair,202 Ala. 430, 80 So. 814; Birmingham Mineral R. Co. v. Tennessee Coal, Iron Railroad Co., 127 Ala. 138, 147,28 So. 679; Sharpe v. Barney, 114 Ala. 361, 362, 363, 21 So. 490; Brooks v. Rogers, 101 Ala. 112, 126, 13 So. 386. It is often stated that interest is not allowed on unliquidated demands. Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789. But this is not in all cases an accurate statement, for upon unliquidated demands interest is allowed before judgment when (a) the amount is capable of ascertainment by mere computation (17 C. J. 817; Stoudenmeier v. Williamson, 29 Ala. 558; Demotte v. Whybrow [C.C.A.] 263 P. 366; Hart v. Am. Concrete Steel Co. [D.C.] 278 F. 541, and the Alabama cases last above cited); and (b) "whenever it appears that the damage was complete at a particular time and is to be determined as of such time in accordance with fixed rules of evidence and known standards of value" (17 C. J. 820; Atlanta B. Air Line Ry. v. Brown, supra, and authorities cited above). The term "sounding in damages merely," in the statutory law of set-off by section 10173, is where the law does not furnish an accurate pecuniary standard of measuring them, when the facts are established. This applies to damages for mental and physical pain. Alabama Great Southern A. Co. v. Flinn, 199 Ala. 177 (18), 74 So. 246; Montgomery E. Ry. Co. v. Mallette, 92 Ala. 209, 9 So. 363; 17 C. J. 925.
Another principle is that interest is not allowed on damages arbitrarily fixed by statute in the nature of a penalty, and not intended accurately to measure the compensation or punishment for which it is awarded. Jean v. Sandiford, 39 Ala. 317. The rule for measuring the damages under the federal statute is, as we have pointed out, quite similar in the respect with which we are now concerned to that under the Alabama Employers" Liability Act (section 7598, Code). In the case of Nevers Lumber Co. v. Fields, 151 Ala. 367, 44 So. 81, this court stated that "the action sounds in damages for negligently causing the death of plaintiff's intestate; the complaint being based on the first subdivision of the Employers' Liability Act." We have found no case in Alabama where interest was allowed on such a claim. (We cited the leading cases in our former opinion.)
Under the Alabama law, physical and mental pain and suffering are not recoverable; whereas under the federal act they are recoverable in the same action with damages for financial loss by dependents, if there was conscious suffering by deceased before his death on account of the injury inflicted by defendant. Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285,110 So. 312; Great Northern R. Co. v. Capital Trust Co.,242 U.S. 144, 37 S. Ct. 41, 61 L. Ed. 208; 45 USCA. pp. 372, 541. In the case of instantaneous death, the beneficiaries are entitled to their pecuniary loss, and nothing more. 45 USCA p. 544.
There could be no contention, we think, but that the claim sounds in damages merely, and interest is not recoverable when physical and mental pain is an element. 17 C. J. 820. In the instant case there is no claim for such pain. In view of the many cases in Alabama under the state Employers' Liability Act, and that in none of them was the subject of interest referred to or recovered, so far as we know, and the statement of the nature of such claim in Nevers Lumber Co. V. Fields, supra, and what appears to have been the uniform application of the act in this respect, we feel that this court should not apply to the federal act a different construction, when no other court has done so, though we fully recognize the force of the argument that, in cases where there is no claim for pain, the law furnishes the formula for ascertaining the damages, and fixes the amount when the *Page 249 jury finds the facts upon which the formula may operate, and the computation made. The authorities on this subject, as applied to damages in the federal act, are very few, and we cited all we could find in the first opinion, and no others have been referred to in briefs.
But we feel, in line with those cases, as we stated before, that, as there is no provision for interest by the federal statute or court decision, and that federal law and federal court decisions are paramount and controlling in this cause of action, and as interest is a creature of statute or judicial construction, or contract (Atlanta B. Air Line Ry. v. Brown, supra, page 619 of 158 Ala. [48 So. 73]), liability for interest before judgment may not be extended to damages under the federal act, by state statute or judicial construction by state courts.
For the foregoing reasons, we are constrained to overrule the application of appellee for rehearing. We also, without further discussion, decline to modify the opinion in the respect for which appellant has applied.
Application for rehearing overruled.