Belzoni Hardwood Lumber Co. v. Langford

Decision Date05 December 1921
Docket Number22108
Citation89 So. 919,127 Miss. 234
CourtMississippi Supreme Court
PartiesBELZONI HARDWOOD LUMBER CO. v. LANGFORD

1. MASTER AND SERVANT. Injury to employer held actionable though not employed for work done.

The employer is liable for negligent injury to an invitee or to an employee of another department who is negligently injured while at a place where he had a right to be, or where he habitually served with sanction of employer, though not employed for that particular work.

2 DEATH. Damages for husband's death allowable regardless of wife's conduct.

In a suit by the wife for death of her husband it is error to instruct the jury that the marital relations, or misconduct of the wife at the time and prior to husband's death should be considered by the jury in estimating the amount of damages, because her conduct could not affect amount due her as "damages to the decedent" expressly allowed by statute.

3 DEATH. One thousand five hundred dollars damages inadequate.

A judgment for one thousand five hundred dollars as damages for the wrongful death of a person thirty-five years of age earning four dollars per day, is grossly inadequate.

HON. S. F. DAVIS, Judge.

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

Action by Mrs. Nellie Langford against the Belzoni Hardwood Lumber Company. From the judgment defendant appeals directly, and plaintiff cross-appeals. Affirmed on direct appeal; reversed and remanded on cross-appeal.

Affirmed on direct appeal; reversed and remanded on cross-appeal.

J. W. Cashin, for appellant.

I confidently assert that the judgment in this case should be reversed and judgment rendered in this court in favor of the appellant, because at the time Langford received the injuries which resulted in his death, he was not acting within the scope of his employment, and was a mere volunteer. See 18 R. C. L. 580; 26 Cyc, 1088; 20 Am. & Eng. Enc. of L. 149; Gulfport Traction Co. v. Faulk, 118 Miss. 894. By an instruction shown on page 24, given for the plaintiff, the jury were instructed that if it was proven to the satisfaction of the jury that Ernest Langford, when he received the injuries producing his death, was engaged in an employment, other than that for which he was specifically employed by the defendant, still if the negligence of the defendant in any measure contributed to the death of Ernest Langford, the plaintiff was entitled to recover.

An examination of the record in this case, which I am going to take the liberty of asking the court to read, will show that the cause of action declared on was for injuries produced by the negligent running and operation of a locomotive and train of cars. The case upon which plaintiff was permitted to recover was that the flat car from which the timber fell and struck and killed Langford was not a proper car to be used in such services, and that the furnishing of such a car constituted negligence in not furnishing Langford a safe place in which to work. In other words, the appellee was permitted to declare upon one cause of action, and recover upon another, which is contrary to the law, as I understand it.

Now, as to the amount of damages, the appellee complained that the damages awarded by the jury are inadequate. No motion was made for a new trial by appellee on this account, and consequently under the decision of this court in Coccora v. Vicksburg Light & Traction Co., 89 So. 257, this objection cannot be availed of by appellee unless some error or misdirection of the court to the jury probably resulted in appellee being awarded less damages than she would have been awarded but for said error. Complaint is made in the brief of cross-appellee, of the admission of the testimony of Mr. and Mrs. Toney in reference to the facts of the appellee having introduced to them in Memphis, a short time before the death of Langford, another man as her husband.

The jury were fully and adequately instructed as to the measure of damages to which the plaintiff below was entitled, if any. Of course, she was not entitled to recover any damages, whatever, if she were not the wife of Langford at the time of his death. The defendant gave notice under its plea of general issue that it would prove that plaintiff below was not the wife of Langford at the time of his death. In this view the testimony of Mr. and Mrs. Toney about which complaint is made in the brief of appellee, was entirely competent: First, to impeach the testimony of plaintiff below to the effect that about a month or so before the death of Langford, they were in correspondence looking to a reconciliation, when in truth, and in fact, at that time, she was running around the streets of Memphis, on excursions boats and on the midway with another man whom she was introducing as her husband. It may have been that this man was in fact her husband at the time of the death of Langford. There are forty-eight states and about two thousand counties in the United States in which a divorce could have been secured by the appellee, and it was impossible for the appellant to show by the records of all these courts that appellee and her husband Langford, had or had not been divorced or that she had or had not married this Italian musician, Pasaquimini, whom she was introducing as her husband.

It was shown by the testimony that Langford had contributed nothing to the support of his wife in four or five years, and that there was no probability of his contributing anything to her support had he lived. This being the case, it was certainly competent to show this fact, so that the jury might take it into consideration, in estimating the amount of damages to be awarded if any. By an instruction shown on page 26 of the record, the jury were instructed that if they should find for the plaintiff, it was their duty to award such damages as they might determine from the evidence to be just, taking into consideration all damages of any kind to the plaintiff, as shown by the evidence. The same instruction is again repeated on page 28 or 141 of the record, and by an instruction shown on page 29 or 142, the jury were authorized to inflict punitive damages, so, if there were any error in the instruction given for the appellant instructing the jury that they might consider the marital relations existing between the appellee and her deceased husband, that error was cured by the ample and complete instruction on the question of damages given for the plaintiff in the court below.

By an instruction shown on page 19 or 133 of the record, the jury were instructed that the wife can recover for all damages sustained as shown by the evidence for the injury and death of her husband, whether they be living together or not, at the time of said injury if such injury and death were caused by the negligent operation of a locomotive or engine of cars on tracks. By an instruction shown on page 20 or 134 of the transcript, the jury were instructed that the right of the wife to recover damages for the death of her husband is based on the legal duty resting on the husband to support his wife, and this duty is not divested by a separation or by living apart from each other, nor is it divested by his failure to contribute to his wife's support, and she is entitled to recover pecuniary damages for a negligent death based upon his legal obligation to support her.

In Clisby v. Railroad Company, 78 Miss. 937, it is said: "Although some of the instructions submitted, when taken separately, do not cover all the questions involved, error is not predicable of the giving of the same when, taken as a whole, they state the law on all the points in issue. In Y. & M. V. R. R. Co. v. Hardy, 88 Miss. 732: the instructions for plaintiff and defendant should always be construed together, and if, when considered as a whole, the law is fairly given, a verdict should not be vacated because one of them when considered alone, may be subject to criticism.

In Hitt v. Terry, 92 Miss. 671: the instructions on any point must be taken as a whole, and the law deduced from all instructions on the same point so construed, taken as a unit.

In Cumberland & T. Co., 95 Miss. 79: All the instructions given in any case must be construed together so as to harmonize them if reasonably it can be done.

I respectfully submit that the judgment below should be reversed on direct appeal and a judgment rendered in this court for the appellant under the authority of Gulfport Traction Co. v. Faulk, 118 Miss. 894.

T. F. Jones, Jesse D. Jones, Fulton Thompson and R. H. & J. H. Thompson, for cross-appellant.

The plaintiff's husband, Earnest D. Langford, was an employee and servant of the appellant at Belzoni in November, 1919 while in the service of that company he was injured and died in a sanitorium at Yazoo City, Mississippi, as a result of said injuries a few days afterwards. The plaintiff, now cross-appellant, being the widow and sole heir of the decedent, brought this suit in the circuit court of Humphreys county against the company for damages resulting from her husband's death and recovered judgment for one thousand five hundred dollars from which the defendant, the lumber company, has appealed to this court. Our client, Mrs. Langford, feeling aggrieved at the small amount of her recovery, has prosecuted a cross-appeal. She seeks an affirmance of the circuit court judgment adjudging the defendant in the court below liable to her but demands its reversal only as to the damages awarded her by the jury and the award of a new trial to determine alone the proper damages that should be awarded her. Cross-appellant failed to make a motion in the trial court for a new trial because the verdict of the jury was for an inadequate amount, and we recognize the full...

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