Belzoni Hardwood Co. v. Cinquimani

• Decision Date: 24 November 1924
• Docket Number: 23569
• Court: Mississippi Supreme Court
• Parties: BELZONI HARDWOOD CO. v. CINQUIMANI. [*]

102 So. 470

137 Miss. 72

BELZONI HARDWOOD CO. v. CINQUIMANI. ^[*]

No. 23569

Supreme Court of Mississippi

November 24, 1924

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

(In Banc.)

1 DEATH. Two thousand dollars damages held grossly inadequate.

In action for death under Hemingway's Code, section 501, in which plaintiff claimed damages of every kind to decedent and to plaintiff as his widow, two thousand dollars verdict held grossly inadequate, where decedent was thirty-five years old, earning four dollars a day as log loader, and lived about six hours after accident.

2. VENUE. Granting change of venue for prejudice against plaintiff held not abuse of discretion.

Action of court in granting change of venue because of prejudice against plaintiff held not abuse of discretion, where testimony supported finding of court that because of such prejudice, plaintiff could not obtain a fair and impartial trial in county in which action had been brought.

3 DEATH. Ten thousand dollars for suffering of decedent held excessive.

In action for death under Hemingway's Code, section 501, in which recovery was limited to damages sustained by decedent, ten thousand dollars verdict for pain and suffering of decedent, who died about six hours after accident in which he sustained fractured skull, held grossly excessive and subject to remittitur of five thousand dollars.

4. DEATH. Value of decedent's expectancy not recoverable in action limited to damages to decedent.

Under Hemingway's Code, section 501, providing for recovery of all "damages of every kind" to all parties interested in action for wrongful death, the present net value of the life expectancy of the decedent is not recoverable where action is limited to damages to decedent.

ETHRIDGE and HOLDEN, JJ., dissenting.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Suit by Mrs. Nellie Cinquimani against the Belzoni Hardwood Company. Judgment for plaintiff, and defendant appeals, and plaintiff cross-appeals. Affirmed, with remittitur.

Judgment affirmed.

Mortimer & Sykes, for appellant.

The Humphreys County Trial. This case was before this court on appeal once before and is to be found reported in 89 So. 920. The style of the case there is Belzoni Hardwood Lumber Company v. Langford, and its present style, the same appellant v. Mrs. P. A. Cinquimani, is brought about by the fact that the appellee has since remarried. The court in the former opinion in this case said: "We do not say that the conduct of the wife, or the strained relations existing between a man and his wife ought not to affect the right to recover some of the elements of damages that are allowed by the statute in such cases." This holding is in line with all the authorities relative to the right of the unfaithful wife to recover her damages for the death of her husband. St. Louis & San Francisco Ry. Co. v. Moore, 101 Miss. 768; Stimpson v. Wood (England), 57 L. S. Q. B. (N. S.) 484; 59 L. T. (N. S.) 218; 36 Week. Rep. 734; 52 J. P. 822; Orendorf v. N.Y. Central Ry. Co. (N. Y.), 119 A.D. 638, 104 N.Y.S. 222; Ingersoll v. Detroit Ry. Co., 163 Mich. 268; Dallas etc. Ry. Co. v. Spicker, 61 Tex. 427; Baltimore etc. Ry. Co. v. State, 81 Md. 371; Gulf etc. Ry. Co. v. Delaney, 22 Tex. Civ. App. 427; De Garcia v. San Antonio etc. Ry. Co. (Tex.), 77 S.W. 275, 17 C. J. 1208; 8 R. C. L. 833, sec. 108; Exhaustive note, 1916-C L. R. A. 806.

Was the verdict grossly inadequate, this being the reason given the court below, for the sustaining of this motion for a new trial? The deceased had suffered from gallstones, bladder trouble and appendicitis and had been operated on for some of these troubles. 17 C. J. 1344, sec. 232, lays down the rule for the ascertainment of the value of a life. This is the rule in Mississippi. Manufacturing Company v. Alexander. 122 Miss. 896; 17 C. J., sec. 232. The evidence shows that his living expenses and personal expenditures consumed everything he made. It will be noted that the appellant has a logging railroad and that Langford was killed by a log falling off of one of its cars and crushing his skull. He is, therefore, among that class of employees covered by section 6684, Hemingway's Code, which statute applies in this case. Section 501, Hemingway's Code; Sec. 6684, Hemingway's Code. To warrant the lower court in setting this verdict aside for gross inadequacy, one of two things, or both, must be shown by this record, first either the verdict was not commensurate with the amount of damages shown to have been sustained by the wife and widow, who was the party suing, or, second, it was not commensurate with the damage shown to have been sustained by the decedent. We take the position that the only damages which can be recovered by the wife and widow as damages for the death of her husband are damages for loss of comfort, society and protection, but not by way of solatium and loss of support; or, in other words, the pecuniary value of the life to her. We most emphatically contend that she cannot recover as an element of her damages, as wife and widow, the value of the life of the deceased. It is well settled that damages for mental and physical pain are not recoverable unless the injured person is conscious. Railroad Company v. Fuller, 106 Miss. 65, 63 So. 625; Railroad Company v. Moore, 101 Miss. 780, 54 So. 741. We most emphatically contend here, also, that neither is the value of the life of the decedent recoverable as an element of damages to the decedent. By reference to section 501, it is noted that in determining the amount of damages, the jury is to take into consideration all damages of every kind to any and all parties interested. Section 6684, Hemingway's Code. Thus it is that our statutes on this subject expressly provide that the damages to the parties suing are a recoverable element of damage in these cases and that since this is so, that is exclusive of a recovery for the value of the life of the deceased either as an element of damages to the deceased or as an element of damages to the parties suing, the only damage with reference to the value of the life which is recoverable being the value of the life to the parties suing. On the proposition as to what is recoverable as damages to the decedent, we have taken the position that this is confined to the mental and physical pain and suffering between the time of the injury and the time of death, loss of time and expenses for medical services and the like, but that the value of the life cannot be recovered as a damage to the dead man. In order to arrive at a proper conclusion upon this question, it is necessary to consider our statutes upon the subject. We find a history of this legislation in the case of Bussey v. Railroad Co., 79 Miss. 607; Railroad Co. v. Crudup, 63 Miss. 298; Folkes v. Railroad Co., 9 Heisk. 829; Railroad Co. v. Phillips, 64 Miss. 693, 2 So. 538.

The court will notice that this case recognizes a distinction about which there has never been a controversy, viz: In cases of death resulting from wrongful injury, there are two elements of damages, the damage which the decedent sustained and the damage sustained by the next of kin, and expressly holds that the only damage which the administrator could recover would be such damages as the decedent could have recovered had death not intervened and at the same time recognizes that by virtue of section 1510, Code of 1880, the next of kin, who are set forth in that section, could bring suit and recover damages sustained by them on account of the death of the decedent. Railroad Co. v. Pendergrass, 69 Miss. 429. No language could be more emphatic that the value of the life of the deceased could never be recovered as an element of damages to the next of kin, or the value of the life to the next of kin, who, under section 1510, could alone sue. McVey v. Railroad Co., 73 Miss. 493; Kirkpatrick v. Ferguson Palmer Co., 77 So. 806; Hamel v. Southern Railroad Co., 108 Miss. 193, 66 So. 426-809.

Coming now to the proposition, may the value of the life of the deceased be recoverable as an element of damage to the parties suing, and if not, what is the measure of their damages along this line. We repeat our contention that their measure of damage is the damage they have sustained by virtue of the death of the deceased, or in other words, the pecuniary value of the life to them. Sections 501 and 6684, Hemingway's Code, sustain our contention. Railroad Co. v. Crudup, supra; Railroad Co. v. White, 82 Miss. 468; Mississippi Oil Co. v. Smith, 95 Miss. 528; Telephone Co. v. Anderson, 89 Miss. 732; Railroad Co. v. Robinson, 106 Miss. 903; Electric Co. v. Sanges (Ala.), 1917-B Ann. Cas. 466; Railroad Co. v. Orr, (Ala.) 8 So. 363; Railroad Co. v. Hicks, 46 So. 394; 7 A. L. R. 1320; Railroad Co. v. Phillips, supra; Kirkpatrick v. Ferguson Palmer Co., supra; Hines v. McCullers, 83 So. 736; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859; Hines v. Moore, 87 So. 3; Vicksburg v. McLean, 67 Miss. 4; Railroad Co. v. Watly, 69 Miss. 150.

Our statute is clear on this question, as have been all of our prior statutes; and our decisions have uniformly limited the recovery to the pecuniary value of the life to the parties suing up to the time of the confusing remarks of Judge WHITFIELD in the Anderson case, which, on their face, show that that eminent judge did not mean that all four of those elements could be recovered as damages, but could only be considered by the jury in making up their verdict, and which remarks were nothing but dictum as stated by Judge ETHRIDGE in the Alexander case, when he clears up this confusion. Therefore, we say that the value of a man's life is never recoverable as an item of damage in a...