Summary
awarding damages for loss of society and companionship to decedent's widower and adult children
Summary of this case from McGowan v. Estate of WrightOpinion
No. 37494.
May 22, 1950.
1. Carriers — death of passenger run over by bus after alighting — duty as to lookout.
Where, in an action for the death of a bus passenger, who after alighting was run over by the bus when it started out, the evidence substantially sustained the conclusions that in the situation present the threatening weather would cause passengers to pass as quickly as possible to shelter either in front or to the rear of the bus, and that the particular passenger was never out of range of the bus driver and that slight attention on his part would have disclosed her presence and danger as she passed in front of the bus and that it was negligence to start the bus quickly before making a proper lookout to ascertain where the passengers were, all such issues being properly for the jury, a verdict for the plaintiff would not be set aside on the facts as to liability.
2. Carriers — duty to passengers by bus — trial — instructions — hypercriticism.
In an action for the death of a bus passenger killed by the bus as it started out after the passengers had alighted, instructions which when taken and read together charged the jury that no liability attached unless and until the jury found from the evidence that the death was proximately caused by the driver's failure to keep a proper lookout for the passenger's safety were proper as correctly announcing the law applicable to the case, and in construing the instructions the placing a comma between two of the words would be regarded as too hypercritical to be noticed.
3. Damages — death.
An instruction which informed the jury in an action for wrongful death that in fixing the damages they may take into consideration the value of the services, if any, of the deceased to her husband and the value of her association, society and companionship to him as well as to her adult children, was proper, since the husband is entitled to the services and earning of his wife and the surviving husband and children are entitled to recover for the loss of society and companionship in the death of their wife and mother, excluding damages by way of solatium.
4. Damages — wrongful death — excessive verdict — case in point.
Although all the conditions which would support a large verdict were present, an award of $25,000 for the death of a wife seventy-two years of age in favor of a husband eighty-two years old, and of adult children living apart, but in the same neighborhood, is excessive to the amount of $7,500, and this after taking into consideration the inflationary condition of the country with the consequent decrease in the purchasing value of money.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, Judge.
Robert G. Gillespie and J. Knox Huff, Jr., for appellant.
The appellant was entitled to a new trial.
(a) The verdict was excessive and evinced passion and bias and prejudice on the part of the jury. 16 Am. Jur. 154, Sec. 228; Avery v. Collins, 117 Miss. 639, 157 So. 695, 171 Miss. 636, 158 So. 552; B. Kullman Company, et al v. Samuels, et al., 148 Miss. 871, 114 So. 807; Belzonie Hardware Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Gulf S.I.R.R. Co. v. Boone, et al., 120 Miss. 632, 82 So. 335; Moser v. Hand, et al. 81 F.2d 522; N.O. N.E.R.R. Co. v. Snellgrove, 148 Miss. 890, 115 So. 394; St. Louis San Francisco R.R. Co. v. Moore, 101 Miss. 768, 58 So. 471; Standard Coffee Company v. Crane, 199 Miss. 69, 23 So.2d 297; Stevenson, et al. v. Robinson, et al., 37 So.2d 568; Yazoo M.V.R.R. Company v. Mullins, 115 Miss. 343, 76 So. 147.
The court erred in granting plaintiff's instructions: —
(a) The granting of the following instruction to plaintiff is reversible error: "The court instructs the jury for the plaintiffs that it was the duty of the operator of the defendant company's passenger vehicle to always keep a careful lookout and to use every care and caution for the safety of Mrs. Allen that a reasonably prudent and careful person would use under like circumstances, and if you believe from a preponderance of the evidence that the driver of the passenger vehicle of the defendant company failed so to do and such failure was a proximate cause of the death of Mrs. Allen, then it would be your duty to find for the plaintiffs in this case." Baldwin v. McKay, 41 Miss. 358; Graham v. Brummett, 182 Miss. 580, 591, 181 So. 721; Hines v. McCullers, 121 Miss. 666, 676, 83 So. 734; McDonough Motor Express, Inc. v. Spiers, 180 Miss. 78, 176 So. 723, 725, 177 So. 655; Meridian City Lines, Inc. v. Baker, 206 Miss. 58, 39 So.2d 541; New Orleans N.E.R.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657, 658; L Reid's Brannon Instructions to Juries, p. 325, Sec. 117; Ross v. Louisville N.R. Co., 181 Miss. 795, 181 So. 133, 134; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Yazoo M.V.R. Co. v. Aultman, 179 Miss. 109, 120, 173 So. 280; Yazoo M.V.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Young v. Power, 41 Miss. 197.
(b) The granting to the plaintiffs the following instruction is reversible error: "The court instructs the jury for the plaintiffs that if the plaintiffs are entitled to recover in this case, they are entitled to recover such damages, if any, as the jury shall assess, if any, taking into consideration all damages, of any and all kinds, to any and all the plaintiffs, and it is your duty in fixing the damages, if any, to give such amount, if any, as may be fair and just with reference to the injury, if any, of the parties suing and in passing on this you may take into consideration the value of the services of Mrs. Allen, if any, to her husband, the value of her association, society and companionship to Mr. Allen also to Mrs. Carr, Otis Allen and Garland Allen, if any." Gulf Refining Company v. Miller, et al., 153 Miss. 741, 121 So. 482; Yazoo M.V.R. Company v. Decker, 150 Miss. 621, 116 So. 287.
The verdict was contrary to the overwhelming weight of the credible testimony. Berryhill v. Nichols, 171 Miss. 769, 773, 158 So. 470; 23 C.J. p. 37; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 522, 160 So. 277; 2 Moore on Facts p. 992 et seq.; 2 Moore on Verdicts, Sec. 899; New Orleans, etc. R. Co. v. Holsomback, 168 Miss. 493, 495, 151 So. 720; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; William v. Lumpkin, 152 So. 842, 169 Miss. 146, 153; Yazoo M.V.R. Co. v. Lamesdorf, 180 Miss. 426, 178 So. 80.
M.V.B. Miller and Gerald Adams, for appellees.
Jury case.
Appellant's evidence makes a jury case. Kullman v. Samuels, 148 Miss. 871, 114 So. 807; Ulmer v. Pistole, 115 Miss. 485, 75 So. 525; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 831.
Testimony of witnesses Culpepper and Molpus not unbelievable.
Is verdict excessive?
Every reasonable inference must be drawn favorable to size of verdict. Gaines v. Brannon, 139 Miss. 312, 104 So. 173; Kurn v. Fondren, 189 Miss. 739, 198 So. 726.
In Hertz v. McDonald, 203 S.W.2d 506, the Missouri Court upheld a verdict for $7,000 for the death of a son of a 90-year-old mother. In that case is found: "(2) In considering the question whether the verdict of the jury is excessive a reviewing court considers the evidence in its most favorable light to plaintiff. Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 S.W.2d 905, 907."
In Central of Georgia Railway Co. v. White, 56 So. 574, it is said: "If we can reasonably do so, we are bound to attribute the size of the verdict to the effect of the evidence rather than to passion, prejudice, or other improper mental attitudes of the jury."
Appellant's contention that present value of dollar cannot be considered in determining whether verdict is excessive. St. Louis S.F.R.R. Co. v. Dyson, 43 So.2d 95; Gordon v. Lee, 43 So.2d 667.
Counsel contends no monetary value of decedent's services. Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 688; Dallas Ry. Terminal Co. v. Bishop, 203 S.W.2d 651; Gordon v. Lee, 43 So.2d 667.
Appellant's case on damages. Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 554.
Motion for new trial. Vincent v. Barnhill, 203 Miss. 740, 34 So.2d 263; McDonald v. Moore, 151 Miss. 326, 131 So. 825.
Expectancy.
Services. Dallas Ry. Terminal Co. v. Bishop, 203 S.W.2d 651; Jenks v. Veeder Construction Co., 37 N.Y.S.2d 230.
Contributions.
Companionship. Y. M.V.R.R. Co. v. Beasley, 155 Miss. 378, 130 So. 502; Gordon v. Lee, 43 So.2d 667.
Comparison of case at bar and Watson case.
Value of sum awarded not estimated in numerical quantum of recompense.
Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 113; Laurel Light R.R. Co. v. Jones, 102 So. 3; St. Louis San Francisco R.R. Co. v. Dyson, 43 So.2d 95; Gillespie v. City of Los Angeles, 213 P.2d 90; City and County of San Francisco v. Sullivan, 214 P.2d 82; Butler v. Allen, 162 P.2d 490; Nusser v. United Parcel Service of New York, 65 A.2d 552; Holder v. Key System, 200 P.2d 106; Union Transfer Storage Co. v. Fryman's Adm'r., 200 S.W.2d 953; Lorilard v. Clay, 127 Va. 104, S.E. 384; Maskalinius v. Chicago W.I.R. Co., 235 Ill. App. 142, 149 N.E. 23; Paragon v. Higbea, 153 N.E. 862; Magic City Bottling Co. v. Talbott, 41 So.2d 621 (Ala.); Walker v. Skelton, 212 S.W.2d 290 (Tenn.); Weadock v. Eagle Indemnity Co., 15 So.2d 146 (La.); Caster v. Hicks, 25 S.W.2d 766.
Many jurisdictions other than the ones heretofore called to the Court's attention recognize that the purchasing power of a dollar is decidedly a factor in a decision of how many dollars it will take to compensate for losses occasioned by wrongful death or personal injuries. New York — Rosen v. Symphony Co., 84 N.Y.S.2d 755; Idaho — Garrett v. Taylor, 210 P.2d 368; Kansas — Hood v. Am. Refrig. Transit Co., 106 Kan. 76, 186 P. 977; Nebraska — Dailey v. Sovereign Camp. W.W., 184 N.W. 920; Vermont — Halloran v. New England Teleph. Teleg. Co.; Maine — Valley v. Scott, 138 A. 311; Iowa — Noyes v. Des Moines Club, 170 N.W. 461; West Virginia — Looney v. N. W.R. Co., 102 W. Va. 40, 48 A.L.R. 806; Oklahoma — Oklahoma Transit Co. v. Martin, 91 P.2d 76; Georgia — Western Atlantic R.R. Co. v. Burnett, 54 S.E.2d 367; Philadelphia N.R.R. Co. v. McKibbin, 170 C.C.A. 452, 259 F. 476; Utah — Bennett v. Denver Rio Grande Western R. Co., 213 P.2d 331; South Carolina — Jennings v. McCowan, 555 S.E.2d 525; Penn. — Hamel v. R.C. McCarty Trucking Co., 81 Erie 44; Texas — Younger Bros. v. Marino, 193 S.W.2d 109; Minn. C.C.A. — Giles v. Chicago v. Great Western Ry., 72 F. Supp. 493.
Courts again and again have reiterated the above pronouncements and more especially during the period of the very marked low purchasing power of the dollar and the very high cost of living and wages.
1948. Kentucky — Central Truck System v. Moore, 201 S.W.2d 725; C.C.A. Kentucky — Great Lakes Greyhound v. Hightower, 185 F.2d 1016; Calif. — Petterson v. Genopisil Co., 185 P.2d 56; Calif. — C.C.A. Southern Pacific v. Zehnle, 163 F.2d 453; D.C. Washington — Boboricken v. United States, 76 Fed. Sup. 2d 70; Missouri — Bedlen v. St. Louis Public Service Co., 205 S.W.2d 866; Wisconsin — Zeineman v. Gasser, 29 N.W.2d 49; New York — Liddle v. State, 75 N.Y.S.2d 75; Minn. — Heitman v. Lake City, 30 N.W.2d 18; Nedbe v. Hardy Continental Hotel System of Minn., 31 N.W.2d 332; Utah — Pauly v. McCarthy, 184 P. 123; Illinois — Peterson v. General Rug Carpet Cleaners, 77 N.E.2d 58; Missouri — Hampton v. Wabash R.R., 203 S.W.2d 708; Richberger v. Thompson, 202 S.W.2d 64; Texas — Erwin v. Welborne, 207 S.W.2d 724.
1949. Miss. — St. L. S.F.R.R. Co. v. Dyson, 43 So.2d 95; Ala. — Magic City Bottling Co. v. Tolbert, 41 So.2d 619; Birmingham Coca Cola Bottling Co. v. Sellers, 706; Minnesota — Aasen v. Aasen, 36 N.W.2d 27; Benson v. Hoeming, 37 N.W.2d 422; Missouri — Henderson v. Dolas, 217 S.W.2d 554; McGarvey v. City of St. Louis, 218 S.W.2d 542; Staley v. Ray, 220 S.W.2d 75; Bolding v. S. Louis Pub. Service Co., 215 S.W.2d 506; Phlegly v. Graham, 215 S.W.2d 499; California — Holder v. Key System, 200 P.2d 98; Bushwell v. City and County of San Francisco, 200 P.2d 115; Potter v. Empress Theater, 204 P.2d 120; Gillespie v. City of L.A., 213 P.2d 90; Iowa — DeTrosky v. Ruan Trans. Co., 40 N.W.2d 4; Penn. — Hamel v. R.C. McCarty Trucking Co., 81 Erie 44; Kentucky — Bruner v. Gordon, 214 S.W.2d 997; New York — Rosen v. Sterling Symphony Co., 84 N.Y.S.2d 578; Iowa — Duncan v. Des Moines Ry. Co., 35 N.W.2d 578; City of Dallas v. Hutchins, 226 S.W.2d 161.
1950. South Carolina — Jennings v. McCowan, 55 S.E.2d 522, $70,000 actual damages, $15,000 punitive; New York — Neddo v. State, 90 N.Y.S.2d 650, upholding $125,000; Utah — Bennett v. Denver Rio Grande Western R.R. Co., 213 P. 331, $70,000 reduced to $50,000 because of contributory negligence; Montana v. Nenert, 226 S.W.2d 401; Sullivan v. City and County of San Francisco, 214 P.2d 82; Bethke v. Dewe, 41 N.W.2d 277.
Pertinent cases from jurisdictions other than Mississippi. Dallas Railway Terminal Co. v. Bishop, 203 S.W.2d 651; Younger Bros. v. Marino, Tex. Civ. App., 198 S.W.2d 109; Jenks v. Veeder Construction Co., 30 N.Y.S.2d 278, 37 N.Y.S.2d 230; Neddo v. State, 90 N.Y.S.2d 650; Rossen v. Sterling Symphony Co., 84 N.Y.S.2d 755; Bach v. C. Swanston Son, 286 P. 1097; Redfield v. Oakland C.S. Ry. Co., 110 Cal. 277, 42 P. 822, 823, 1063; Valente v. Sierra Railway Co., 158 Cal. 412, 111 P. 95, 98; Froeming v. Stockton Electric R.R. Co., 171 Cal. 401, 153 P. 712, Ann. Cas. 1918B, 408; Hines v. Rowan, 230 S.W. 1074; Schaff v. Young, 264 S.W. 585; Community Natural Gas Co. v. Lane, 133 S.W.2d 205; Setsuko Nitta v. Haslam, 33 P.2d 682.
Comparison of verdicts from cross-section of nation, New York, Mississippi, Texas. Potter v. Empress Theater Co., 204 P.2d 120; Clark v. Prime, 12 A.2d 637; Blue's Truck Lines v. Harwell, 200 S.E. 500; Jennings v. McCowan, 55 S.E.2d 523.
Did the court err in granting appellee's instructions?
Appellant's instruction on liability was a sufficient guide for jury as to particular negligence relied on for recovery. Three instructions of appellee also informed jury of particular element relied on for recovery.
When said four instructions are read together, there can be no serious contention that the jury were not required to find that a failure to keep lookout was cause of death.
Instruction on measure of damage has been often approved by this Court. St. Louis S.F.R. Co. v. Ault, 58 So. 104; Meridian City Lines v. Baker, 206 Miss. 508, 39 So.2d 241; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 870; Gulf Refining Co. v. Miller, 103 Miss. 741, 121 So. 482; Avery v. Collins, 171 Miss. 636, 157 So. 695; Mississippi Cent. R. Co. v. Smith, 159 So. 562; Kress v. Sharp, a saleslady's case for personal injuries reported in 176 Miss. 306, 168 So. 606; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 688; Sears, Roebuck Co. v. Burke, 44 So.2d 452.
The surviving husband and children of Mrs. Nettie Allen brought suit against the Gulf Transport Company to recover damages for her alleged wrongful death. From a jury verdict and judgment for $25,000, the Transport Company appealed.
One alleged error assigned is that the verdict was contrary to the overwhelming weight of the credible testimony. Thus, a recital of the substantial facts is necessary.
Mrs. Allen lived near Whynot, a rural community in Lauderdale County, about eleven miles east of the City of Meridian. She had been to the City, and was a passenger on a bus of the Transport Company on her way back home. It was a rainy day. The bus stopped on the south side of the road, opposite Booker's Store, and off of the pavement. Mrs. Allen disembarked, and while trying to cross to the other side, was run over by the bus and killed.
The circumstances attendant upon, and the manner of, her death were in dispute. The length of the stop was estimated by the plaintiffs' witnesses at one minute, while those for the defendant put the time from one and one-half to five minutes. All agreed that three passengers disembarked; Mrs. Allen, Frank Welch and his wife, Lila, and in that order. Frank said that he was just behind her, and that she walked around the front of the bus; and in about half a minute, the bus started. Immediately his wife said: "Ain't that Miss Nettie?", and he saw her under the bus before the right wheel ran over her. He raised his hands, trying to flag or stop the bus. Level Molpus, across the road and watching another man fix a flat, saw Mrs. Allen get off and go right in front of the bus. It started off, and he hollered "Whoa, Whoa," and threw up his hands and waved to the driver because she was in front of the bus. Eris Culpepper, inside the store looking through a window, saw Mrs. Allen get off and walk four or five feet in front of the bus, going across the road to the store. She had traveled about one-half of the width of the bus, when it started. It was close on her, and she jumped backwards after it started.
The evidence of the defense witnesses as to the length of time of the stop, and Mrs. Allen's being the first to get off, were calculated to show that she had ample time to cross. They drew the inference that because of some blood on the right rear fender, she might have fainted or fallen into the side of the bus. But, this conjecture pales in the face of so much direct testimony to the contrary. The driver knew that she had left the bus, but admitted that he did not know where she was and that he never saw her again until she had been run over. He further admitted that, if she was as much as four feet in front of the bus, he would have seen her. He testified that he glanced in the rear mirror, looked forward and pulled away slowly. He felt the bus jar, and then looked in the mirror and saw her behind the bus. He stopped immediately, ran back and saw Mrs. Allen, and exclaimed: "Oh? my Lord, I ran over that lady."
The plaintiffs, by their evidence, maintained that, when Mrs. Allen left the bus, she was crossing over in front of it, and that the driver neglected to keep a lookout for her, and, on that account, negligently ran the bus over her and killed her. The defense, by its evidence, affirmed that the driver did not see her after she had disembarked; that he kept a reasonable lookout; and that her death resulted because she placed herself in a position where she could not be seen.
(Hn 1) Thus, on these disputed facts, the issue was one clearly for the jury. And, they were fully warranted in finding that (1) Mrs. Allen, after alighting from the bus, was never out of the range of the driver, before he struck her; (2) that slight attention on his part would have disclosed her presence and danger; (3) that the threatening weather would cause passengers to cross over to the store as quickly as possible, either in the front or the rear of the bus; and (4) that it was negligence to start the bus quickly before making a proper lookout to ascertain where the passengers were. B. Kullman Co. et al. v. Samuels et al., 148 Miss. 871, 114 So. 807; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; and Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840, 841.
(Hn 2) The second alleged error was the giving of the only instruction for the plaintiff on the merits. The appellees charged in their declaration that the Transport Company was under the duty to exercise a high degree of care for her safe discharge and to look out for her safety; that it failed to exercise such care and keep such lookout; and that her death was proximately caused by the failure to keep a proper lookout for her safety, and starting the bus before she had an opportunity to reach a place of safety where the bus would not strike her. A defense instruction eliminated "high degree", and imposed only "reasonable care." The instruction complained of announced that it was the duty of the driver "to always keep a careful lookout and to use every care and caution for the safety of Mrs. Allen that a reasonably prudent and careful person would use under like circumstances," and if they believed from a preponderance of the evidence that the driver "failed so to do, and such failure was a proximate cause of the death," then it was their duty to find for the plaintiffs. This instruction presented the sole issue in the case.
Besides, defendant's other instructions provided that if, in the exercise of reasonable care, the driver could not and did not see her, or, if he was unable to see her from the driver's seat, or, if he was unable to see that she was in a position where the bus would run over her, the jury should find for the defendant.
Thus, it will be seen that under these instructions, no liability attached until the jury had found that Mrs. Allen's death was caused by the driver's failure to keep a reasonable lookout. Taken together, these instructions were in harmony, and correctly announced the Law. Lamar Hardwood Company v. Case, 143 Miss. 277, 107 So. 868. We do not notice the placing of a comma between "such" and "failure" as too hypercritical. St. Louis S.F.R. Co. v. Ault, 101 Miss. 341, 58 So. 102, 104.
Complaint is also made of an instruction granted the plaintiffs on the measure of damages. There were two instructions on this phase. The first was a rescript of an approved instruction. Gulf Refining Company v. Miller et al., 153 Miss. 741, 121 So. 482. (Hn 3) The instruction complained about announced the same general principle, and informed the jury that they "may take into consideration the value of the services of Mrs. Allen, if any, to her husband, the value of her association, society and companionship to Mr. Allen, also to Mrs. Carr, Otis Allen and Garland Allen, if any." This was in accord with Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552, and the many cases there cited.
The last error assigned is that the verdict is excessive.
In a description of Mrs. Allen, after death, some of the witnesses testified that her head was "mashed as flat as a pancake." This, of course, showed an instantaneous killing, which precluded any recovery for pain or suffering. The defendant obtained the usual instruction on contributory negligence. But owing to the size of the verdict, we assume that the jury found that she was free from negligence.
It is elemental that a husband is entitled to the services and earnings of his wife. 27 Am. Jur. 66; 41 C.J.S., Husband and Wife, Section 17, page 413. It is further beyond peradventure that the surviving husband and children are entitled to recover for the loss of society and companionship in the death of their wife and mother, excluding, of course, damages by way of solatium. Gulf Refining Company v. Miller, supra; Avery v. Collins, supra, and the cases there cited.
Mrs. Allen was seventy-two years old, in good health, vigorous, and able to do hard work. She was five feet in height, weighed only ninety pounds, and had no rheumatism, high blood pressure, or heart trouble. Her husband was eighty-two years old, and in good health. Under normal expectancy, she would live eight or nine years, and he, four or five years. Of course, the children, being under fifty years of age, and in good health, could reasonably be expected to survive both their mother and father.
She did the normal work of a farm wife: cooking, housekeeping, washing, ironing, raising chickens, gardening, canning, milking, and sold milk, butter and fresh vegetables. The services which she rendered to her husband, and her contributions to his support and maintenance were valuable indeed. They possessed a substantial monetary value, well known to average men, such as sat on the jury, without specific itemization in dollars and cents. It is common knowledge that even household services, if performed by a domestic servant, would have entailed a substantial weekly or monthly outlay of money. This Court, in former decisions, in passing on the size of verdicts in comparision with others, took note of inflationary conditions in the country, with the consequent decrease in the purchasing value of money. Laurel Light and Railway Company v. Jones, 137 Miss. 143, 102 So. 1; Cotton Mill Products Company v. Oliver, 153 Miss. 362, 363, 121 So. 111; St. Louis-San Francisco R. Co. v. Dyson, Miss., So.2d 95; and Gordon v. Lee, Miss., 43 So.2d 665.
Mrs. Allen was a model wife and mother. Her children lived near by; they sought her advice and it was helpful to them. She was a devout church woman, and kept the family ties close. She and her husband had lived happily together in peace and harmony for more than fifty-one years. At his advanced age, he would hardly form new relationships, — no one could take her place with him. The jury likely found that the loss of her services, society and companionship was so great as probably to mean a slow death sentence for him.
The factors which control the amount of the verdict strongly support one for a substantial amount. The record bespeaks that the case was well and fairly tried. Due regard must be given to the verdict of the jury and the judgment of the trial judge, on the motion for a new trial, that the verdict was not excessive.
(Hn 4) The whole Court agrees that the verdict in this case is a large one. But a majority of the Judges think that, under all of the circumstances, it is so large as to be excessive by $7,500. Cf. B. Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807.
Consequently, if the appellees within ten days shall enter a remittitur for $7,500, the judgment will be affirmed for $17,500; otherwise, the cause will be reversed and remanded for a new trial on the question of damages alone.
Affirmed with remittitur.