Opinion
No. 26990.
March 26, 1928.
1. AUTOMOBILES. Negligence of truck driver at intersection, striking boy after he fell from truck on which he was riding, held for jury.
In action for damages for the death of thirteen year-old boy, resulting when he was struck by truck at street intersection after having fallen from rear of truck on which he was riding, evidence as to negligence of truck driver held sufficient to require submission of such issue to jury.
2. AUTOMOBILES. Instruction authorizing recovery for death of boy struck by truck if driver failed to keep proper lookout and operate truck at reasonable speed held erroneous under evidence.
In action for damages for death of boy struck by truck at street intersection after having fallen from truck on which he was riding, instruction authorizing recovery if truck driver could have avoided accident by keeping proper lookout and operating truck at reasonable rate of speed held erroneous, under evidence indicating care of driver in such particulars would have been of no avail.
3. DEATH. Instruction authorizing recovery by mother and brother of deceased minor for present value of deceased's life expectancy held erroneous ( Hemingway's Code 1927, section 515).
In action by mother and brother of thirteen-year-old boy for damages for death, instruction authorizing recovery that deceased might have recovered as present value of life expectancy calculated from his majority held erroneous, under Hemingway's Code 1927, section 515 (Laws 1922, chapter 229), since recovery cannot be based on value of life expectancy, but on present value of any pecuniary advantage reasonably expected by plaintiffs.
4. DEATH. Value of decedent's life expectancy is not element of damages to decedent ( Hemingway's Code 1927, section 515).
Value of decedent's life expectancy is not an element of damages to decedent for consideration in determining damages, under Hemingway's Code 1927, section 515 (Laws 1922, chapter 229).
APPEAL from circuit court of Lauderdale county; HON. J.D. FATHEREE, Judge.
Action by Mrs. Mattie Miller and another against the Gulf Refining Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.
The instructions directed to be reported are as follows:
Instruction No. 3.The court charges the jury that while it is true that a person operating an automobile or truck has a right to use any part of a highway or street when he is not seeking to pass him from the rear, still he must use reasonable diligence and keep a lookout for approaching persons or vehicles, and if he fails to do so he is not in position to escape liability on the theory of impending necessity, and if you believe from a preponderance of the evidence that, had the defendant Van Reed approached the intersection of Eighth avenue and B street by slowing down, and had been on the proper side of the road, and had been operating the automobile truck in question at a reasonable rate of speed, and had he kept a proper lookout, he could have avoided the accident, then in that event, you should find for the plaintiffs.
Instruction No. 1.The court instructs the jury for the plaintiff that should you find for the plaintiffs in this case, and find further that the deceased was not guilty of contributory negligence, you should award them such an amount, if any, as the jury may believe from a preponderance of the evidence in this case as will be just, fair, and reasonable compensation for the value of the services of Vardaman Hall Miller to his parent, up to the time of his majority, which includes all moneys you are reasonably certain that he would have earned up to that time, if any, the son himself might have recovered as the present value of his own life expectancy, calculated from his majority, provided you believe from a preponderance of the evidence that he would have lived until said time.
Amis, Dunn Snow, for appellants.
For the purpose of this discussion we must accept the extreme most favorable to the plaintiffs; and in so doing it will be seen that the facts should be assumed to be that the oil truck was being driven at a rate of speed from fifteen to eighteen miles an hour, and that the deceased jumped or fell from the rear end of the Sharp truck in the direct path of the oil truck and from twelve to seventeen feet distant therefrom; that the truck was in good operating condition; that Reed was an experienced driver; and that he did all in his power to avoid the accident after the deceased fell or jumped into the street from the rear end of the Sharp truck. There was nothing to indicate to Reed that the boy was in the act of falling or that he intended to jump from the truck. In a single moment of time the position of the boy was changed from one of apparent safety to one of peril. Both trucks were being handled by the respective drivers in such manner that no collision or even near collision between them occurred. It was impossible for the oil truck to avoid running over the deceased even though the speed of the truck had not exceeded eight miles per hour at the time. Therefore after giving full faith and credit to the testimony most favorable to the plaintiffs, and after indulging every reasonable and legitimate inference to be drawn therefrom, it conclusively appears that the proximate cause of the injury to the deceased was not the negligence, if any, on the part of Van Reed in operating the truck, but that deceased was killed solely because he fell or jumped from the truck on which he was riding.
Proximate cause may be defined generally as "that which, in a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred. The proximate cause is that which is the nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation." Bouvier, and authorities cited. Billingsley v. R.R. Co., 100 Miss. 612, is directly in point on the proposition we are contending for in this case. The court there said: "What is or what is not the proximate cause of an injury seems to be incapable of any strict definition which will suit every case. Proximate cause is said to be a vexed metaphysical question; but it can be safely said that, in order to constitute a proximate cause, there must be causal connection between the injury and the negligence complained of." R.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Howell v. Railroad Company, 75 Miss. 242; Freeman's notes to Gibson v. Delaware Canal Company, 36 Am. St. Rep. 802; Green, "Rationale of Proximate Cause;" Eastburn v. United States Express Co., 225 Pa. 33, 73 A. 977; Gordon v. Phila. Rapid Transit Co., 107 A. 811; Carlson v. Leonard, 200 P. 40; Bishord v. Engelbeck, 164 N.W. 203; Burlie v. Stephens, 193 P. 684; Whalen v. Dunbar, 115 A. 718; Kalinoski v. Viermann, 211 S.W. 723.
The instruction granted the plaintiff, the predicate of which is that it is the duty of the driver of an automobile to keep a lookout for persons and vehicles in the street, proceeds to tell the jury that a person failing to discharge this duty is in no position to escape liability on the theory of impending necessity. This cannot be the law. The facts here were that a truck was passing the intersection of the street through which appellant's truck was being driven. There was no other object or thing in the street at that time. Manifestly it was the duty of the driver of the oil truck to so handle it as that it would not collide with the other truck. This he did. What more could be required of him under the circumstances? Certainly it was not his duty to see a boy in the street and handle his truck in reference to such boy, when there was no boy there. The instruction requires, in effect, that the driver of the truck must anticipate the sudden falling of the boy from the truck and thereby, creating an emergency against which he must have beforehand guarded, failing in which he cannot escape liability on the ground that the unexpected happened and an unforeseen emergency arose. The vice of the instruction seems to us to be apparent, and under the peculiar facts of this case it was highly prejudicial.
The instructions granted for the plaintiffs on the measure of damages is erroneous. The instruction should have told the jury to award as fair and reasonable compensation the present value of the services of the decedent to his mother (including all moneys he would have earned) during his majority, after deducting the reasonable cost of his maintenance during that time, as shown by the testimony. The instruction as given omits these necessary qualifications and directs the jury to award the whole or gross value of the services and also all money he would have earned. R.R. Co. v. Watley, 69 Miss. 145; Ry. Co. v. Freeman, 36 Ark. 41; Ry. Co. v. Delaney, 82 Ill. 198, 25 Am. Rep. 308; Penn. Ry. Co. v. Lilly, 73 Ind. 352; Benton v. Ry. Co., 55 Ia. 496, 8 N.W. 330; Hopkinson v. Knapp Spalding Co., 92 Ia. 328, 60 N.W. 653; Carnego v. Crescent Coal Co., 164 Iowa 552, 146 N.W. 38; Beach v. St. Joseph, 158 N.W. 1045; Garton v. Harmon, 152 Mich. 473, 116 N.W. 443; Borough of Birmingham v. Dorer, 3 Brewst. 69; Penn. Ry. v. Vandiver, 36 Penn. St. 298; Caldwell v. Brown, 53 Penn. St. 453; Ry. Co. v. Southwick (Tex. Civ. App.), 30 S.W. 592.
Damages for value of life expectancy. The instruction was further erroneous in directing the jury to also award as damages "whatever sum, if any, the deceased himself might have recovered as the present value of his own life expectancy calculated from his majority." Because, as was held in Belzoni Hardwood Co. v. Cincuimani, 137 Miss. 72, and Y. M.V.R.R. Co. v. Barringer, 138 Miss. 296, the deceased could not, either through his legal representative or in any other way, have recovered anything as the present value of his own life expectancy. Adopting the most favorable view of the language used and regarding the instruction simply as a direction to the jury to award as damages the present value of the life expectancy of the decedent calculated from his majority, it still violated the rule laid down in L. N.R.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, which limits the recovery to the present net value of the life expectancy of the deceased, after deducting the cost of his own maintenance.
Damages for loss of net present value of life expectancy not recoverable. The net present value of the life expectancy of the decedent is the present value of his probable future earnings during the period of his reasonable life expectancy, after deducting the reasonable cost of his own maintenance during that time. L. N.R.R. Co. v. Garnett, 129 Miss. 795. No part of the present net value of the life expectancy is an element of recoverable damages, in a death injury case, in the absence of proof showing loss by the plaintiff of some pecuniary benefit flowing out of or rooted in the future earnings of deceased. In other words, where the injury causes instant death the measure of damages is compensation for the pecuniary loss sustained by the persons interested in the suit, and in no case can they recover the present net value of the life expectancy, as such; but only the present value of such loss as the proof may show they have reasonably sustained, and which would have been paid to them out of the future net earnings of the deceased if he had lived.
The Statute authorizing recovery in this case (Sec. 501, Hem. Code 1917; Sec. 515, Hem. Code 1927) provides that the parties suing shall recover such damages as the jury may determine to be just, "taking into consideration all the damages of every kind to the decedent, and all the damages of every kind to any and all parties interested in the suit." In Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, it was held that the present net value of the life expectancy of deceased was not an element of recoverable damages embraced in the words, "all the damages of every kind to the decedent." See, also, Y. M.V.R.R. Co. v. Barringer, 138 Miss. 296. It therefore follows that unless the present net value of the life expectancy of the deceased is an element of recoverable damages embraced in the words "all the damages of every kind to any and all parties interested in the suit" then it is not an element of recoverable damages at all.
The Mississippi decisions. In Railroad Co. v. Crudup, 63 Miss. 291, this court had under consideration the provisions of a statute of Tennessee, which authorized a recovery for "the damages resulting to the parties for whose use and benefit the right of action survives." The court held that only compensatory damages were recoverable, that is, compensation for the loss or injury suffered by the "parties for whose use and benefit the right of action survives;" that the recoverable damages should not be measured by the standard of total disablement of the deceased (that is, the present value of his life expectancy) but only by the present value of the reasonable pecuniary expectancy of future benefit from the decedent, of the party for whose use and benefit the cause of action survives. In Ry. Co. v. Watley, 69 Miss. 145, a father sued for the negligent killing of his child, under section 1510, Code of 1880, which provided that "the jury may give such damages as shall be fair and just with reference to the injury resulting from such death to the person suing." The case holds that "compensation for the injury is to be measured by the value of the pecuniary interest of the father in his child. He is to be compensated for the pecuniary loss sustained and not otherwise. It is a question of dollars enough to pay for the loss the father has sustained by the death of his child, on the theory of his right to his services during minority." Telephone Co. v. Anderson, 89 Miss. 732, arose under the provisions of chapter 65, Laws of 1898, which provided that "In such action the party or parties suing shall recover such damages as the jury may, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties to the suit." In that case a mother sued for the negligent killing of her minor son, and the court reversed the case because the instruction did not limit her recovery of prospective gratuities to those which she has a reasonable expectation of receiving from her son after reaching his majority. Oil Company v. Smith, 95 Miss. 529, arose under section 721, Code of 1906, which is a rescript of chapter 65, Laws of 1898. In that case a mother and her children sued for the negligent killing of their son and brother, and on appeal three questions were presented and decided, namely: First, whether the plaintiffs, who had enumerated in their declaration, certain specified damages claimed, were precluded from claiming damages for the value of the life expectancy of the decedent because not specifically claimed in the declaration. The first question was decided in favor of appellee because appellants did not object to the testimony as to the life expectancy of deceased on that ground, but only on the ground that he was an asthmatic. In R.R. Co. v. Boone, 120 Miss. 632, the point made, argued and decided was merely that the verdict was excessive. In Deemer Mfg. Co. v. Alexander, 122 Miss. 859, the point now made was not argued, considered or decided by the court. Hines v. Moore, 124 Miss. 500, was a case where the mother sued for the negligent death of her minor son and the instruction on damages authorized the jury to award as damages the net value of the life expectancy of the deceased and also the value of his services to his mother during minority. The sole point made by the appellant and decided by the court was that the instruction authorized the imposition of double damages. In Ry. Co. v. Garnett, 129 Miss. 795, the father, mother, brothers and sisters of deceased brought suit for the negligent killing of their son and brother. The court instructed the jury that the measure of plaintiff's damages was the present value of the life expectancy of the deceased. Counsel for appellant admitted that the instruction would have been correct if it had been limited to the present value of the life expectancy less education for his own maintenance as held in New Deemer Mfg. Co. v. Alexander, 122 Miss. 874. And the court held the instruction bad for that reason alone and reversed the case. In Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, the wife sued for damages for the negligent killing of her husband, and specially limited her claim for damages to "all the damages of every kind to the decedent," disclaiming any right of recovery on account of any damages to herself. And the court held that the present net value of the life expectancy was not an element of recoverable damages embraced in the words "all the damages of every kind to the decedent," as contained in the statute authorizing recovery for negligent death. In Y. M.V. Ry. Co. v. Barringer, 138 Miss. 296, one Charlie Dalton who was negligently killed instantly, left neither wife, parent, child, brother nor sister surviving him, his nearest of kin being collateral kindred in no wise dependent on him, nor having any reasonable expectation of ever receiving any financial assistance from him; nor did he leave any creditors so far as shown by the testimony. The suit was brought by Barriger, as administrator, for damages for his negligent killing who recovered a verdict for five thousand dollars. In passing on this case the court held that because Dalton was killed instantly there was no recoverable damages to the decedent, and because he had no relatives having any claim on him, and no creditors having any claim on his estate that only nominal damages could be recovered. In Moore v. Johnson, 148 Miss. 827, 114 So. 734, the widow and children of the deceased sued for damages for his wrongful death, and on appeal by the defendant the point was made that the instruction on damages told the jury that they could assess damages in "an amount for physical and mental suffering, if any, that you may believe from the evidence the deceased underwent between the time of his injury and his death." The court said that this was error because the proof showed "that there was no suffering by the deceased because he was unconscious from the time of his injury until he died." But in passing on the question of whether the error was harmful or not, the court said: "Therefore it is our opinion that the erroneous instruction was harmless in this case." In Y. M.V.R.R. Co. v. Lee, 148 Miss. 809, 114 So. 866, a widow sued for damages for the death of her husband who was killed instantly, and the instruction on damages told the jury that "the law entitles the party suing to recover such damages as the jury may determine to be just, taking into consideration all of the damages of every kind to the deceased, Dr. Lee, and all damages of every kind to the party interested in the suit; and in this case if you find for the plaintiff, that she is entitled to recover for the death of her husband, you may take into consideration such damages." And this court, after reviewing the holding in the Cinquimani case, said: "In other words, the court in that case held that where death was instantaneous there was no damage to the decedent, and the only damages recoverable in a case of instant death is the damage to other parties. In the present case therefore, the widow was limited to recovering such damages as she suffered by the death of her husband, and it was error to instruct the jury that they could recover (award) damages of every kind to the deceased, Dr. Lee, and all damages of every kind to the party interested in the suit. It was important to have the instruction in this case limited to the damages which were recoverable under the law."
Williamson Clayton and M.V.B. Miller, for appellees.
Counsel's main contention expressed briefly is that conceding the fact that defendants' driver was violating the laws of Mississippi in driving at an unlawful rate of speed, that the evidence fails to show that this was the proximate cause of the injury. The violation of the fifteen-mile statute was just one of the several statutes that the defendant violated. See Sec. 5785, Hem. Code 1917. This section was construed in Flint v. Fondren, 84 So. 1. Under the holding of this case and the undisputed proof, the plaintiff made out a prima-facie case, and we submit that the defendants did not meet the burden imposed upon them and overcome the prima-facie case thus made out. "The facts of different cases are so variant, and so many different facts and conditions are integrated into the solution of the question of negligence, that it must be a rare case of negligence which should be taken from the jury." Mercantile Co. v. R.R. Co., 87 Miss. 277. The sufficiency of testimony is for the jury. It is only in those rare cases where there is no testimony to warrant a verdict that the judgment will be reversed on this ground; see Campbell v. R.R. Co., 126 Miss. 438, 89 So. 1; R.R. Co. v. Kelly, 126 Miss. 276, 88 So. 707; Hines v. Moore, 124 Miss. 500, 87 So. 1; R.R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Tanner v. R.R. Co., 73 So. 62; R.R. Co. v. Prine, 118 Miss. 90, 79 So. 62. We think that under the following authorities the trial court was clearly right in submitting the case to the jury. Armstrong v. R.R. Co., 115 Miss. 690, 76 So. 624; R.R. Co. v. Lowe, 73 Miss. 215; R.R. Co. v. Watly, 69 Miss. 146; R.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241.
On the question of whether or not an excessive rate of speed and failing to maintain a proper lookout or both was such negligence as was one of the proximate or contributory causes of the injuries is well illustrated in the following cases: R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; R.R. Co. v. McGee, 117 Miss. 370, 78 So. 296; Hines v. Moore, 124 Miss. 500, 87 So. 1; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; Wickman v. Lundy, 206 P. 842; Pisark v. Singer Talking Machine Co., 200 N.W. 675; Norris v. Anthony, 79 N.E. 258; Haake v. Davis, 148 S.W. 451; Hopfinger v. Young, 179 S.W. 746; Goodwin v. Eugas, 236 S.W. 50; Lauderback v. State, 132 Tenn. 603, 179 S.W. 130; Ulmer v. Pisto, 115 Miss. 485, 76 So. 522; Morrison v. Flowers, 308 Ill. 189, 139 N.E. 10; Hornbuckle v. McCarty, 243 S.W. 327; R.R. Co. v. Hicks, 91 Miss. 278; Payne v. Georgetown Lumber Co., 117 La. 983, 42 So. 475.
Counsel complains of instructions Reporter's Number 3 and 1. Under the authority of the Armstrong and Lowe cases, supra, Graves v. R.R., 110 So. 234, and Navailles v. Dielmann, 50 So. 449, instruction number 3 is correct and it was not error to give it. There were several different ways that the jury could infer that the violation of the fifteen-mile speed statute and the violation of the statute which prohibited the driving of the truck at any rate was dangerous, etc., and was the proximate cause of the injury to the deceased. In Simms v. State, 115 So. 217, where the facts were not nearly so strong as the facts in this case a conviction of manslaughter was upheld. The court said: "It is unquestionably true that the negligence must be of a higher degree, in order to convict of manslaughter, than would be required to hold a party liable in a civil action."
The third and last assignment of error of counsel is an attack on the instruction as to the damages. Counsel's argument is most ingenious, able, but unsound. (The instruction complained of is reporter's number 1). The instruction only permitted the jury to return a verdict for two elements, first, the value of young Miller's services during his minority, and second the value of his life expectancy. It is true that the instruction did advise the jury, that they could return a verdict for whatever sum, if any, the son might have recovered as the present value of his own life expectancy calculated from his majority, etc. The Cinquimani case, supra, suggested that the life expectancy was recoverable, not by the decedent, but by the relatives. The instruction may have been inaccurate to this extent but the defendant could not be prejudiced because the value of the decedent's life expectancy was the same whether recoverable by the decedent himself or by his relatives.
Remedial legislation abolishing the two rules of the common law forbidding recovery in a death case has been in existence in Mississippi over eighty years. The first statutes, passed in 1857, have been re-enacted and broadened and brought forward in various acts and codes, the last amendment of the act being found in the laws of 1922. The rule is that where a statute has been construed by the highest court of a state and later re-enacted by substantially the same terms, the legislature by such re-enaction adopts along with the statute such construction. Burks v. Moody, 141 Miss. 370, 107 So. 280; Weatherby v. Roots, 72 Miss. 355, 16 So. 902; Davis v. Holbert, 59 Miss. 362; Henry v. Henderson, 103 Miss. 48, 60 So. 33; White v. R.R. Co., 99 Miss. 651, 55 So. 593. The principal change in the death statute in Mississippi, first enacted as Art. 48, Code of 1857, and brought forward as Art. 676, Code of 1871, Art. 1510, Code of 1880, and Sec. 663, Code of 1892, was made by Chap. 66, Laws of 1896. The first death case decided by the Mississippi court under its death statute was the Phillips case, 64 Miss. 693, 2 So. 537, decided in 1887. The next case decided was that of Vicksburg v. McClain, 67 Miss. 4, decided in 1889. The Pendegrass case, 69 Miss. 430, 12 So. 954, decided some two years later followed. The McVey case, 73 Miss. 488, 19 So. 209, was decided in 1895. In R.R. Co. v. Watly, 69 Miss. 141, the court condemned an instruction that authorized the jury to consider the loss by the father of the society of his child and the comfort the father might take in rearing him and bringing him to manhood, as elements of damages that might be recovered. After condemning the instruction with the above provision the court intimated that it was a question of dollars enough to pay for the loss the father had sustained by the death of the child on the theory of his right to his services during minority. We submit that this statement of the court was mere dictum and was not necessary to the decision of the point before it, and is therefore no part of the decision. With the construction of the statutes by this court in the Phillips, McClain, Pendegrass, McVey, Beckman, and Watly cases before it, Chap. 66, Laws of 1896, which was amended by Chap. 65, Laws of 1898, were passed and all the statutes permitting recoveries for death in Mississippi since 1898 have been re-enacted in substantially the same form as Chap. 65 of the Laws of 1898. Persons who are entitled to recover have been enlarged, the time in which suit must be brought has been broadened; but we submit the scope which permitted all damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit could hardly have been broadened, even if the legislature had desired to do so. The first Mississippi case reported after the enactment of Chap. 66, Laws of 1896, as amended by Chap. 65, Laws of 1898, is Cumberland Telephone Company v. Anderson, 89 Miss. 732, 41 So. 263, which case announced that the rule in the Watly case, supra, in the Pendegrass case, supra, was abrogated by Chap. 65 of the Laws of 1898. We submit that an analysis of the Anderson case, supra, will show that this case lays down the following as the elements of damages that are permitted to be recovered for the death of the child under our statute: First, the value of the services of the child from the time of its death until its majority; damages for physical and mental suffering, if any such there was, occasioned by the injury; such sum as the child might have recovered as the present value of its expectancy; and fourth, such gratuities, if any, as the evidence may show that the parents could reasonably expect from the child before or after its majority.
Another radical change brought about in the death statutes by Chap. 65, Law of 1898, was that only one suit should be brought for a death, thus consolidating the two actions formerly permitted under the statutes; Pickens v. R.R. Co., 92 Miss. 210, 45 So. 86; R.R. Co. v. Hicks, 91 Miss. 273, 46 So. 360. The construction put upon the act of 1898 in the Anderson case, the Pickens and Hicks cases, was adopted by the reenactment of this statute in Chap. 167, Laws of 1908. It is therefore inescapable that the value of one's life expectancy is an element to be recovered where the deceased is survived by kindred named in the statute. After the act of 1908 the first decision handed down by this court in a death case was R.R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L.R.A. (N.S.) 978, Ann. Cas. 1914B 597. The court said: ". . . In determining what damages are recoverable in actions like the one under consideration, we must look alone to the statute. This is the measure and the limit of the right; and after a full consideration of the question our conclusion is that, in a suit by a widow and children for the death of the husband and parent, the jury may take into consideration the loss to the wife and children of the companionship, protection, and society of the husband, and father, but not by way of solatium. In case of Telephone Company v. Anderson, 89 Miss. 732, 41 So. 263, the exact question now under consideration was not discussed, though the present statute was under review by the court." See Fuller v. R.R. Co., 100 Miss. 705, 63 So. 266, where the court said: "We believe that our statute, which authorizes the recovery of all damages of every kind to the deceased, and all damages of every kind to those who have a right to sue for his wrongful death, do not limit the recovery to pecuniary loss alone, but is broad enough to cover punitive damages. We therefore conclude that under our statute punitive damages may be recovered in actions for death by wrongful acts." See, also, R.R. Co. v. Causey, 106 Miss. 36, 63 So. 336. After the enactment of Chap. 167, Laws of 1908, and the decisions in the Anderson, Moore, Fuller and Causey cases, supra, it was not questioned by the bench and bar that the value of one's life expectancy was an element recoverable under these statutes. The epoch-making cases of R.R. Co. v. Moore and R.R. Co. v. Fuller, supra, had been decided in which decisions the Watly and Pendegrass cases were overruled and it was expressly held by these decisions that our death statutes were not merely for compensation only, but were broad enough to include as elements of damages loss of society of the deceased by the kindred and was broad enough to permit the recovery of punitive damages.
The Boone case, 120 Miss. 632, 82 So. 337, is one of the first death cases decided under the Mississippi statute after the enactment of Chap. 214, Laws of 1914. In the Boone case, the court having before it the construction of the former statutes by the Anderson, Moore, Fuller, and Causey cases, supra, and the case of the Miss. Cotton Oil Co. v. Smith, 95 Miss. 529, 48 So. 735, said: "Plaintiffs had a right to recover the present value of the deceased's own life expectancy." See Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306; Kress v. Markline, 117 Miss. 37, 77 So. 858, Ann. Cas. 1918E, 310; New Deemer Manufacturing Co. v. Alexander, 122 Miss. 859, 85 So. 104.
In Hinds v. Moore, 124 Miss. 500, 87 So. 1, the following instruction was obtained: "The court instructs the jury for the plaintiff that they should find a lump sum which the jury may believe from the evidence will be a reasonable compensation for the life expectancy of Judge Moore, Jr., and in addition thereto will be a reasonable compensation for the value of any services which the jury may believe from the evidence, if any, that Judge Moore, Jr., would have rendered to his mother before he reached the age of twenty-one years." The sole criticism of the above instruction was that it pyramided the damages in that it permitted a recovery for the value of his life expectancy, not measured from the time of his majority, but from the time of his death and in addition thereto permitted the value of his services to this mother from the time of his death until he reached his majority, thus allowing the plaintiff double damages from the time of his injury until his majority. In Belzoni Hardwood Company v. Langford, 127 Miss. 234, 89 So. 919, 18 A.L.R. 1406, the evidence showed that at the time of Langford's death he had contributed nothing toward the support of his wife in four or five years, and that there was no probability of his contributing anything toward her support had he lived. The jury was instructed that the wife could recover for all damages sustained as shown by the evidence for the injuries and death of her husband whether they be living together at the time of his injuries or not, etc. It is inescapable that the question of whether the wife was entitled to recover the value of the deceased's life expectancy when he had contributed nothing toward her support and the evidence showed that he probably never would again, was clearly answered by this court in the affirmative.
After the Langford case was decided, Chap. 229, Laws of 1922, was enacted, this being the last expression by our legislature on the death act. R.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, is the first case involving the construction of the death statute after its re-enactment in Chapter 229 of the Laws of 1922. In that case it was held that the value of one's life expectancy was recoverable, In the Garnett case the contention was raised that the value of life expectancy was not recoverable, and counsel in the Garnett case cited as authorities to sustain this position the same authority that counsel now cites. Therefore counsel is in error in saying in his brief that it was admitted in the Garnett case that the value of one's life expectancy was recoverable.
Counsel cites Belzoni Hardwood Company v. Cinquimani, 137 Miss. 72, 102 So. 470, in support of his contention that the value of one's life expectancy is not recoverable. In that case it was expressly held that the value of one's life expectancy is recoverable, not by the deceased, by by the kindred of the deceased named in the statute. Instead of the Cinquimani case being an authority for appellant's contention this case absolutely destroys the position he had taken, and so does the case of Y. M.V.R.R. Co. v. Barringer, 138 Miss. 296, 103 So. 86. In Y. M.V.R.R. Co. v. Lee, cited by counsel, 114 So. 869, the following instruction was condemned: "The court instructs the jury for the plaintiff that if the jury should find for the plaintiff the law entitles the party suing to recover such damages as the jury may determine to be just, taking into consideration all damages of every kind to the deceased, Dr. Lee, and all damages of every kind to all parties interested in the suit and in this case if you find for the plaintiff that she is entitled to recover for the death of her husband, you may take into consideration such damages, if any, shown by the testimony." Dr. Lee, the decedent, had been instantly killed and the court in the above case, under the authority of the Cinquimani and Barringer cases, held that there was no damage to the decedent: "And the only damage recoverable in a case of instant death is the damage to the other parties. In the present case, therefore, the widow was limited to recover such damages as she suffered by the death of her husband, and it was error to instruct the jury that they could recover damages of every kind to the decedent, Dr. Lee, and all damages of every kind to the parties interested in the suit." It is easy to distinguish the instruction condemned in the Lee case from the instruction now complained of by counsel. The instruction in the Lee case clearly permitted a double recovery of the value of Dr. Lee's life expectancy. It permitted a recovery of damages of all kinds to Dr. Lee when his death was instantaneous, and damages of every kind to the parties interested in the suit. There was no double recovery permitted in the instruction at bar. Only two items of damages were permitted to be recovered. Instead of the instruction being too broad, it was not as broad as the law will permit. There was a third element of damage that the plaintiffs were entitled to that was not asked for, which is the damage for the loss of society, etc., of the deceased, which was clearly recoverable under the authority of the Boone, Moore, and Fuller cases, supra. Amis, Dunn Snow, in reply, for appellants.
Counsel cite the following additional authority on proximate cause; Farkuhar v. R.R. Co., 78 Miss. 193; Clisby v. R.R. Co., 78 Miss. 937; R.R. Co. v. Hardy, 137 Miss. 608; Chero Cola Co. v. Price, 141 Miss. 892; McDonald v. Collins (Miss.), 110 So. 663.
This is an appeal from a judgment for damages for the death of the son of one and brother of the other appellees, alleged to have been killed by the negligence of one of the appellant's employees.
Eighth avenue, in the city of Meridian, crosses B street at a right angle, the former running north and south, and the latter east and west.
On the occasion in question, the deceased, who will hereinafter be called "Miller," and who was thirteen and one-half years old, was in a Ford truck going south on Eighth avenue, sitting on some feedstuff in the rear of the truck, with his feet on the side of the truck, facing the west. While this Ford truck was crossing B street, an oil truck, belonging to the Gulf Refining Company, that was traveling west on B street, crossed Eighth avenue immediately behind it, and struck and instantly killed the deceased who had fallen from the Ford truck into the street.
According to the evidence for the appellees, the Ford truck reached the intersection of the streets just before it was reached by the oil truck, which latter truck was traveling at a rate of speed variously estimated at from fifteen to twenty miles per hour; when Miller fell from the Ford truck, the oil truck was twenty or twenty-five feet east of the intersection of B street with Eighth avenue (if this is true, the oil truck was at least thirty-five or forty feet from Miller when he fell); the speed of the oil truck was not decreased until it struck and killed Miller, when its speed was checked and it was brought to a stand in about eighteen feet from the place where Miller was struck. What caused Miller to fall from the Ford truck is not disclosed by the evidence, for he was in the act of falling when the attention of the witnesses was first attracted thereto.
According to the evidence of the driver of the oil truck, he approached and crossed Eighth avenue with due care, and Miller fell from the Ford truck immediately in front of, and about three feet from, the oil truck, and he, the driver of the oil truck, then did everything in his power to avoid striking Miller. Miller was struck by the left front wheel of the oil truck, and, probably, also by the left hind wheel thereof.
There were no vehicles then in the street other than these two trucks.
Three of the appellant's contentions are that the court below erred: (1) In not directing the jury to return a verdict for it; (2) in granting the appellee an instruction which we have numbered 3, and which the reporter will set out in full; and (3) in granting the appellee an instruction on the measure of damages which we have numbered 1, and which the reporter will also set out in full.
No error was committed by the court below in refusing to direct a verdict for the appellant. It appears from the evidence that the truck could have been and, in fact, was brought to a stop in a distance of eighteen feet, and that the accident could have been avoided by deflecting the oil truck slightly to the right; consequently, it was for the jury to say whether or not the driver of the oil truck saw, or, in the exercise of due case, should have seen, Miller when the truck was sufficiently distant to have enabled the driver to avoid striking him by the exercise of due care.
The appellee's instruction No. 3 should not have been given. According to the evidence of the driver of the oil truck, nothing occurred to indicate that Miller would fall from the Ford truck until the oil truck was practically in the act of passing the rear of the Ford truck, when Miller then fell immediately in front of the oil truck. If this is true, nothing the driver of the oil truck could then have done would have prevented the truck from striking Miller, and any previous negligence of the driver of the oil truck in approaching and crossing Eighth avenue could not be said to have contributed to Miller's death. A lookout by the driver of the oil truck prior to the time Miller fell into the street would have availed nothing because prior to that time there was nothing to see, and the speed of the automobile is immaterial because, had the automobile been going at a slower rate of speed, the accident nevertheless would have occurred. Any negligence on the part of the driver of the oil truck in failing to approach and cross B street with due care cannot be said to be a proximate cause of Miller's death if he fell from the Ford truck immediately in front of the oil truck without any previous indication that he would do so.
The second paragraph of the appellee's first instruction is erroneous.
The damages which the statute (chapter 229, Laws of 1922; section 515, Hemingway's Code 1927) permits to be here recovered are:
"Such damages as the jury may determine to be just, taking into consideration all damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit."
The value of a decedent's life expectancy is not an element of damages to the decedent. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Yazoo M.V.R. Co. v. Barringer, 138 Miss. 296, 103 So. 86; and Yazoo M.V.R. Co. v. Lee, 148 Miss. 809, 114 So. 866.
Under the clause of the statute permitting recovery for "all damages of every kind to any and all parties interested in the suit," the appellees have the right to recover, not the value of Miller's life expectancy, but the present value of any pecuniary advantage which the evidence might have disclosed they had a reasonable expectation of deriving from Miller, had he continued to live. No such expectation was here attempted to be shown.
Reversed and remanded.