Opinion
No. 41054.
March 2, 1959.
1. Death — wrongful death — instructions — present net cash value of life of decedent at time of death — not erroneous.
In action for recovery of damages for wrongful death brought on behalf of decedent's six children, instruction that jury could consider present net cash value of life of decedent at time of her death was not erroneous. Sec. 1453, Code 1942.
2. Death — Wrongful death — award of $17,500 for death of 67 year old woman — not excessive.
Award of $17,500 damages for wrongful death of decedent who was 67 years of age and who kept house for her single son and who was frequently visited by her other married children, all of whom had a great affection for their mother, was not excessive. Sec. 1453, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Winston County; HENRY L. RODGERS, Judge.
Crawley Brooks, Kosciusko, for appellant.
I. The Court erred in granting the following instruction: "The Court instructs the jury for the plaintiffs that in this case it is your duty to return a verdict in favor of the plaintiffs. The Court further instructs the jury for the plaintiffs that you should fix the amount of your verdict at that sum which will be fair and reasonable compensation for the damages sustained by the plaintiffs as a proximate result of the defendant's negligence and in calculating the amount of your verdict you may take into consideration all of the testimony concerning the loss of companionship and society of the deceased mother sustained by the children of Mrs. Callie Eakes and you may consider the present net cash value of the life of the deceased at the time of her death as all of such items when established by a preponderance of the evidence are proper for the consideration of the jury in calculating the damages sustained and in fixing the amount of the verdict." Boroughs v. Oliver, 217 Miss. 20, 85 So.2d 191; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Soreide v. Vilas Co., 78 N.W.2d 41; Anno. 17 A.L.R. 2d 826.
II. The verdict of the jury is excessive. Louisville N.RR. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; 25 C.J.S. 1245; Vol. X, Blashfield's Cyclopedia of Automobile Law Practice, Sec. 6474 p. 139.
Helen McDade, DeKalb; Strong Smith, Louisville, for appellees.
I. In a wrongful death action, it is not error for the Trial Court to instruct the jury that in calculating the amount of their verdict they may consider the present net cash value of the life of the deceased at the time of her death. Reed v. Eubanks, 232 Miss. 27, 98 So.2d 132; Bush v. Watkins, 224 Miss. 238, 80 So.2d 19; Burroughs v. Oliver, 226 Miss. 609, 85 So.2d 191; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Southern Pine Elec. Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859; Green v. Hatcher, (Miss.), 105 So.2d 624.
II. A jury is composed of men of good intelligence, sound judgment, and fair character. Secs. 1762, 1766, 3235, Code 1942.
III. The words used in an instruction will be given their usual and customary meaning. Y.M.V.RR. Co. v. Williams, 87 Miss. 344, 39 So. 489; S.L. S.F.RR. Co. v. Ault, 101 Miss. 341, 58 So. 102; B. Kullman Co. v. Samules, 148 Miss. 871, 114 So. 807.
IV. The elements of damages recoverable in a wrongful death action are fixed by the statute creating the right. Due to the variation in the statutes in various jurisdictions, they have received different constructions. 16 Am. Jur., Secs. 176, 181 pp. 118, 122.
V. In an action for the wrongful death, the amount of the verdict is a question that should be left to the discretion of the jury and will not be disturbed unless the amount of the verdict is so excessive as to indicate that the jury was animated by passion, prejudice, and corruption. Bush v. Watkins, supra; Reed v. Eubanks, supra; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Laurel Light RR. Co. v. Jones, 137 Miss. 143, 102 So. 1; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; St. Louis S.F.RR. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Gordon v. Lee, supra; Sec. 1453, Code 1942.
VI. The acts or even the negligence of one of the beneficiaries to a wrongful death suit cannot be attributed to or affect the rights of the other beneficiaries to the suit. Gordon v. Lee, supra; Nosser v. Nosser, 161 Miss. 636, 137 So. 491; Hines v. McCullers, 121 Miss. 666, 83 So. 734.
VII. In reviewing a case, the Supreme Court will look to the whole record, and if in the light therefrom it is apparent the correct result was reached, the case will be affirmed. Planters Lbr. Co. v. Sibley, 130 Miss. 26, 93 So. 440; Metzger v. Sessions, 198 Miss. 892, 23 So.2d 746; Mississippi State Highway Dept. v. Meador, 184 Miss. 381, 186 So. 642; Mississippi Cent. RR. Co. v. Roberts, 173 Miss. 487, 160 So. 604.
This suit was brought on behalf of the six children of Mrs. Callie Eakes for the recovery of damages for her wrongful death alleged to have resulted from the negligence of the appelant when he drove his automobile past a stop sign on highway No. 397 at its intersection with highway No. 16. Highway No. 16 had the right of way over highway No. 397 and in driving past the stop sign and into highway No. 16 the appellant ran into a pickup truck in which Mrs. Eakes was riding on highway 16 and threw her from the truck, as a result of which she sustained fatal injuries.
The appellant filed a detailed answer to the declaration and denied every charge of negligence alleged therein.
When the case came on for trial, counsel for appellant made a lengthy oral statement to the jury in which he admitted that the appellant was guilty of negligence, but he undertook to explain the same to the jury, in his opening statement and in conclusion assured the jury that the appellant had nothing to conceal, admitting liability and admitting negligence and said that the only question in the world for the jury to consider is how much damages would be reasonable under the particular circumstances in this case, and counsel further exhibited fifty $100 bills amounting to the sum of $5,000 and tendered this to the plaintiff's in settlement of the claim and offered also to pay all accrued court costs. Counsel for the plaintiff declined to accept the $5,000 in settlement of the claim and stated to the court that since the defendant had admitted liability, he would not put on any proof except as to damages.
The proof showed that the children of Mrs. Eakes all lived in the same community and all were married except a son with whom she lived and for whom she kept house and did all the cooking. The daughters visited her regularly and there was a great affection between them. The deceased was 67 years of age and a mortality table introduced in evidence shows that she had a life expectancy of 16.5 years. In addition to keeping house and cooking for the single son she raised chickens, fed the hogs, did the milking and did all her housework. The daughters would gather with her frequently and they would work together, oftentimes quilting. (Hn 1) The jury returned a verdict in favor of the plaintiffs for $17,500, from which comes this appeal. Only two points are raised by appellant. The first is a complaint against an instruction on damages and only that part of the instruction which told the jury "you may consider the present net cash value of the life of the deceased at the time of her death."
Our wrongful death statute is Sec. 1453 of the Miss. Code of 1942 (Rec.) and amongst other things this section says: "In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all of the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit." (Emphasis ours.)
In the case of Bush v. Watkins, 224 Miss. 238, 80 So.2d 19, the Court in construing an instruction which authorized a recovery for "the present net cash value of the life of the deceased, Billy E. Watkins, at the time of his death" held that such an instruction does not constitute error. To the same effect is Southern Pine Electric Power Association v. Denson, 214 Miss. 397, 57 So.2d 859, 59 So.2d 75. See also the case of Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 which is to the same effect and also New Deemer Manufacturing Co. v. Alexander, 122 Miss. 859, 85 So. 104, and Cumberland Telephone and Telegraph Co. v. Anderson, 89 Miss. 732, 744, 41 So. 263.
In view of these authorities we think there is no merit whatever in appellant's first contention.
(Hn 2) Next and finally, the appellant argues that the court erred in overruling its motion for a new trial on the ground that the verdict is excessive. In view of the close family relationship between these parties, we do not think there is any merit in this contention and that the evidence fully sustains the amount of the award. In the case of Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436, there was an award of $25,000 for the death of a woman much older than the deceased in this case and a majority of the judges voted to reduce that judgment to $17,500. We think that the judgment appealed from in this case should be affirmed.
Affirmed.
Roberds, P.J., and Lee, Kyle, and Holmes, JJ., concur.