Opinion
No. 32809.
October 4, 1937. Suggestion of Error Overruled November 1, 1937.
1. EVIDENCE.
Judicial notice is taken of standard mortality tables.
2. EVIDENCE.
Standard mortality tables are not conclusive upon question of life expectancy in any particular case but are admissible merely as aid to the jury.
3. EVIDENCE.
Standard mortality tables are admissible when the party whose life expectancy is a subject of inquiry is shown to have been in good health at time of wrongful death, and engaged in an occupation not extrahazardous nor such as likely to impair the health.
4. EVIDENCE.
In action for wrongful death of 27 year old farmer who was in good health at time of death, and engaged year by year in farming, out of which he made an annual income of approximately $1,000, the American Experience Table of Mortality was properly admitted.
APPEAL from circuit court of Union county. HON. T.H. McELROY, Judge.
Fred B. Smith, of Ripley, and L.A. Smith, Sr., of Holly Springs, for appellants.
The defendants objected to what purported to be the American Experience of Mortality, Table No. 28, offered by the plaintiffs to prove the expectancy of life remaining to Lloyd Gurley, not because such proof was incompetent, but because the method of its proof was improper. The purported table was offered in a premium book allegedly put out by a life insurance company, but was not identified by any employee or officer of such company, and was not shown by competent proof to have been made by a competent actuary, or whether it was accurate or not. It was not proven by the actuary who purportedly made it. The further objection was made that admitting a mere rate book of a life insurance company as evidence denied to defendants the right of cross-examination. This was not a certified document, but merely a rate book, containing also miscellaneous tables, not signed by anyone, and was incompetent, we believe, to be received in evidence in the manner in which it was introduced.
These tables are by no means conclusive, but are mere compilations of probability of the continuance of life for numbers of estimated years from given ages, and are admissible simply as evidence to which the jury may look in connection with other relevant facts.
Little Cahaba Coal Co. v. Arnold, 91 So. 586, 206 Ala. 598.
But the law in Mississippi is stricter as to the admissibility and as to the procedure on admission of these tables than it is in Alabama. The law in Mississippi clearly makes the action of the court below, in admitting this alleged table in the way it was admitted, reversible error.
Vicksburg R. Power Mfg. Co. v. White, 34 So. 331, 82 Miss. 468.
We say it was highly improper and prejudicial to defendants for the court below to let the plaintiffs say to the jury, here is some sort of a book containing some sort of a list showing how long Lloyd would have lived, if Overton and Tucker had not killed him. We say also that it did not cure the vice of the situation to introduce as a witness for plaintiffs one of their own attorneys in the case, and let him testify that two men, he thought to be agents of the insurance company, told him the table was a mortality table.
In giving instructions, the court should not assume as conclusions of law anything which should be submitted to the jury as a fact; nor should it assume as true any issuable fact. The law applicable to the facts should be given, leaving it to the jury to say whether the propositions of fact have been established.
Myrick v. Wells, 52 Miss. 149; Jernigan v. Fleming, 43 Miss. 710.
An instruction must not fail to negative the idea that defendant provoked the quarrel with the intention of overcoming deceased.
Schrader v. State, 36 So. 385, 84 Miss. 593.
Instructions that single out and emphasize parts of the testimony are erroneous, as being on the weight of the evidence.
Norfleet v. Sigman, 41 Miss. 631; Levy v. Halburg, 71 Miss. 66, 14 So. 537; Prine v. State, 73 Miss. 838, 19 So. 711.
An instruction assuming the existence of facts at issue is erroneous.
McKie v. Munn, 5 So. 616; Beal v. Bullock, 11 So. 720; Stigler v. Anderson, 12 So. 831; Smith v. Team, 10 So. 402.
The court erred in granting the instructions for the appellees. We are inclined to agree with counsel for appellees in his statement that the question of the instructions is closed by the law in this case, but we very strongly disagree with counsel in the statement that the appellants assigned and argued the same instructions now complained of and that the court did not notice the assignment and made no mention of the instructions complained of. It is our position that in the last hearing on this case in this court, that the court, in the case of Tucker v. Gurley, 170 So. 230, held that the instructions granted for the appellees were erroneous, and so held on one of the grounds assigned as error on this hearing. The appellants assign as error the granting of the instructions for the appellees on the ground that the second, third, fourth, fifth and sixth instructions deprive the appellants of the right of self defense unless they were justified in believing that they were in danger of death or great bodily harm at the hands of Lloyd Gurley, and entirely leave out of consideration the question of their apparent danger from concerted action of Lloyd and Glenn Gurley.
30 C.J. 75; Johnson v. State, 125 Tenn. 420, Ann. Cas. 1913C 263.
Lester G. Fant, Sr. Jr., of Holly Springs, for appellees.
There was no error in admitting in evidence the American Experience Mortality Table. The courts take judicial notice of standard mortality tables.
23 C.J. 163, sec. 1989.
The authenticity and general use of particular tables offered in evidence are facts judicially known to the court.
15 R.C.L. 1129, sec. 56; Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813.
Proof of authenticity is not required. With respect to the preliminary proof of the authenticity and standard quality of mortality tables, the court may or may not require such proof, depending on whether of its own knowledge it is satisfied, or whether it desires evidence to satisfy itself of the authenticity of the tables. This is founded on the theory that the courts take judicial notice of standard mortality tables. As in regard to many other matters of which judicial notice is taken, it is proper for a court to inform itself in the premises by reference to books and other sources of information; but legal proof of such genuineness and authoritativeness is not required. In a given case it is for the court to say, without such proof that they are or are not genuine and authoritative, and that they are or are not admissible accordingly.
19 R.C.L. 219, sec. 7; Ann. Cas. 1914C 685; 124 Am. St. Rep. 40, par. k, 41.
The tables are uniformly admitted in Mississippi.
I.C.R. Co. v. Humphries, 170 Miss. 840, 155 So. 421.
We submit that the argument that the actuary must identify the table and state that it is correct is devoid of weight.
In the case at bar the table was properly authenticated. The court judicially knew the authenticity of the table and admitted it. It is further authenticated by proof.
I.C.R. Co. v. Houchins, 121 Ky. 526, 89 S.W. 530, 123 A.S.R. 205, 1 L.R.A. (N.S.) 375; Donaldson v. Miss. R. Co., 18 Iowa 280, 87 Am. Dec. 391.
Such insurance manuals are uniformly received.
Pearl v. Omaha St. L.R.R. Co., 115 Iowa 535, 88 N.W. 1078; Kreuger v. Sylvester, 100 Iowa 647, 69 N.W. 1059; Missouri K. T. Co. v. Ransom, 15 Tex. Civ. App. 692, 41 S.W. 826; Gulf Co. v. Johnson, 10 Tex. Civ. App. 254, 31 S.W. 255; Miss. R. Co. v. Ayres, 16 Lea (Tenn.) 725.
The table in fact was accurate. It has been sent up by order of the lower court. Under the authorities cited, this court may take judicial notice that the table is authentic. It is not suggested by the appellants that it is not accurate.
The transcript shows that the expectancy at the age of 27 was listed as 37.43 years. This is correct according to the American Experience Table of Mortality.
41 C.J. 216, sec. 65a.
There was sufficient evidence for the introduction of the tables. Appellants, in their brief, argue that it was not shown that Lloyd Gurley came within a class for which such tables are admissible in evidence. This objection was not made in the court below, and we think it is therefore closed. But regardless of that fact, it is without merit. The transcript plainly shows that at the time of his death Lloyd Gurley was 27 years old, was in good health, that his occupation was farming, at which he earned $1,000.00 a year; that he supported with this his wife and child. This is sufficient for the introduction of the table.
Miss. C. Ry. v. Robinson, 106 Miss. 896, 64 So. 838; Murry Chev. Co. v. Cotton, 169 Miss. 521, 152 So. 657.
It is apparent that the evidence complained of was not prejudicial to appellants. The mortality table had no bearing on liability. The jury having found for the plaintiffs assessed their damages at only $7,500.00. The deceased was 27 years old and making $1,000 a year, by undisputed proof. One of the plaintiffs was his five year old child. It is clear, therefore, that the expectancy of life as proved by the mortality table had no effect adverse to appellants.
There was no error in the instructions given for the plaintiff. The instructions complained of were given for the plaintiff in the former trial. There was verdict for plaintiffs, and defendants appealed. On appeal, the defendants assigned and argued the same instruction now complained of. The court did not notice the assignment, and made no mention of the instructions complained of. Therefore, the propriety of the instructions cannot be questioned on this, a subsequent appeal. Nevertheless, the instructions were perfectly proper.
Tucker v. Gurley, 176 Miss. 708, 170 So. 230; Payne v. Neely, 123 Miss. 248, 85 So. 197; Still v. Anderson, 63 Miss. 545; Caston v. Caston, 54 Miss. 512; Ogden v. Larrabee, 70 Ill. 510; Hook v. Richeson, 115 Ill. 431, 5 N.E. 98; Washburn Co. v. Chicago Co., 119 Ill. 30, 6 N.E. 191.
Rulings on instructions on appeal will generally be regarded as conclusive in subsequent proceedings in the case where the issues are the same and the evidence is not materially different.
4 C.J. 1111, sec. 3092; Farmers, etc., Warehouse Co. v. Gibbons, 72 S.W. 12, 24 Ky. L. 1670; Snell v. Weldon, 243 Ill. 496, 90 N.E. 1061; 2 R.C.L. 225; Payne v. McNeeley, 123 Miss. 248.
Argued orally by Lester G. Fant, Sr., for appellee.
This is the third appearance of this case in this court, the two former appeals being reported in 170 Miss. 565, 155 So. 189, and 176 Miss. 708, 170 So. 230.
The principal assigned error argued by appellants is the admission in evidence of the American Experience Table of Mortality. It is the general rule, sustained by a wealth of authority, that courts take judicial notice of standard mortality tables and make repeated use and application of the information therein contained. 1 Jones' Com. on Evidence, p. 804. Such mortality tables are not conclusive upon the question of life expectancy in any particular case, but are admissible merely as an aid to the jury. 23 C.J. 163, sec. 1989. It has, therefore, been held in many cases in other jurisdictions that poor health, existing disease, or engagement in a hazardous occupation are circumstances which go to the weight of the mortality tables as evidence, but do not destroy their admissibility. 4 Jones' Ev., sec. 1743.
In some of our earlier cases in this state the rule was rather strict, see Vicksburg, etc., Railroad Co. v. White, 82 Miss. 468, 34 So. 331; Mississippi Oil Co. v. Smith, 95 Miss. 528, 534, 48 So. 735; but in the later case, Mississippi Cent. Railroad Co. v. Robinson, 106 Miss. 896, 903, 64 So. 838, the holding was in effect that such tables are admissible when the party, whose life expectancy is the subject of inquiry, is shown to have been in good health at the time of his wrongful death, and engaged in an occupation not extrahazardous nor such as likely to impair the health.
In the case now before us the deceased was shown to be 27 years of age at the time of his wrongful death, was in good health, and was engaged year by year in farming, out of which he made an annual income of approximately $1,000. The mortality tables were properly admitted in evidence.
The other assignments of error, so far as they have been argued by appellants, have been examined, and we are of the opinion that no reversible error has been shown.
Affirmed.