Cumberland Tel. & Tel. Co. v. Anderson

Citation89 Miss. 732,41 So. 263
PartiesCUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. FRANCES E. ANDERSON
Decision Date18 June 1906
CourtUnited States State Supreme Court of Mississippi

FROM the circuit court of Madison county, HON. D. M. MILLER Judge.

Mrs Anderson, the appellee, was plaintiff, and the telephone company, the appellant, defendant in the court below. From a judgment in favor of plaintiff, defendant appealed to the supreme court.

This was a suit under Laws 1898, ch. 65, by plaintiff, mother of Edward Anderson, an infant, to recover damages because of his death. The case was formerly before the supreme court on appeal by the plaintiff from a judgment predicated of a peremptory instruction in defendant's favor. The former judgment was reversed, and the cause remanded. Anderson v. Telephone Company, 86 Miss. 341 (S.C., 38 So. 736). The facts are fully stated in the report. On a subsequent trial the jury rendered a verdict for plaintiff, awarding her $ 13,000. From a judgment based on the verdict defendant appealed to the supreme court.

Reversed and remanded.

Harris & Powell, for appellant.

The eighth instruction granted to the plaintiff is manifestly erroneous, especially in so far as it touches the vital point of the case. It is an instruction on the measure of damages. We direct the court's particular attention to that part of it reading as follows: "And in fixing upon the amount of such pecuniary damages, you will take into consideration the loss to the mother of the services of Edward until he would have arrived at the age of twenty-one years, and the loss of prospective gratuities from him to his mother after he became twenty-one years of age."

That part of the instruction which we have italicized cannot be supported by any of the authorities, although there are some cases to which we will call the court's attention hereinafter which hold, under peculiar statutes and under peculiar states of cases, that the measure of the parent's right in the case of a death of an infant child is not restricted to the loss of services during minority. Such, however, is not the rule in Mississippi.

In the case of Railroad Company v. Watly, 69 Miss. 145 (S.C., 13 So. 82), this court laid down the rule that in an action by the parent for the negligent killing of his infant child the measure of damages is "compensation limited to the actual pecuniary loss sustained on the theory of the parent's right to the services of the child during minority." In the case of Vicksburg v. McLain, 67 Miss. 4, the same rule seems to have been applied. In Cooley on Torts, 320, note 1, the rule is stated thus "The present value of the future earnings of the child during minority, less cost of its maintenance and expense of sickness and burial, is the measure of damage."

Sherman and Redfield on Negligence, sec. 763, state the rule thus "The damages recoverable by a parent for the negligent injury to the person of his child are not strictly confined to those which a master can recover for similar injury to a mere servant. But they are limited to an amount fully compensatory for the loss of services, deducting the expenses of bringing up for a period not exceeding the minority of the child." And in section 772, the same authors say: "The pecuniary injury resulting to a parent from the death of a child is usually the excess of the child's probable earnings during its minority over the cost of its support and education. But damages are not necessarily confined to this period. The jury may allow compensation for the loss of such contribution to the support of parents after the child obtains majority as the evidence shows reasonable grounds for believing that the child could have made. Affirmative evidence must be given of such contribution in the past as would afford reason to expect it in the future to justify a verdict on this ground, where the child was of full age at the time of its death." (The italics are ours.)

In Am. & Eng. Ency. Law, vol. 8, p. 919, we find the rule again laid down as follows: "In an action by a parent to recover for the wrongful killing of his child a measure of damages is the pecuniary value of the child's services during his minority, and the costs and expenses incurred by the parent on account of the injury. The value of such services is to be estimated on a basis of what children in the same condition and station of life and of like capabilities are ordinarily worth, without regard to any peculiar value which such parent might place upon such services. From this must be deducted the usual expense of caring for and rearing the child.

There are cases in which a parent is allowed to recover damages for the death of a child after the child has attained majority; these, however, are found mostly to be cases where the deceased was an adult at the time of its death, and was contributing to the support of the parent. As in the case of White v. Railroad Company, 72 Miss. 12 (S.C., 16 So. 248), in which case this court was particular in emphasizing the fact that the deceased was actually supporting his mother, who was plaintiff in the action. And the subject is somewhat touched upon in Railroad Company v. Crudup, 63 Miss. 219. Cooley on Torts on p. 320 states as follows: "A parent may recover for the death of a child who was of full age, and not residing with the parent, and upon whom the parent would have no legal claim to any assistance whatever. Here the accustomed donation of the child constitutes an element of damages." And to the same effect is the rule as stated in Segdwick on Measure of Damages, vol. 2, sec. 567, several authorities in support of the rule being cited. It will be found, however, that these authorities do not support the text if the author is to be understood as referring to suits by parents for the deaths of infant children. The author refers first to Fordyce v. McCants, 51 Ark. 509. The report shows that that was a suit to recover damages for the death of an adult.

The case of Railroad Company v. Wheeler, 35 Kan. 185, went off on entirely different ground, the question there being whether a parent who had emancipated his son or relinquished his right to his services could recover more than nominal damages. The court stated that the suit was not only for the father, but for the mother, who also had a right, and that parents could recover for the death of a child who had attained majority if there was proof that pecuniary damages resulted therefrom to the parents, such as the loss of support.

The case of Monroe v. Railroad Company, 84 Cal. 515, was a suit by an administrator and brought under a peculiar California statute providing for suits for the death of a person not a minor. The case of Schefler v. Railroad Company, 32 Minn. 212, was also under special state statute. The case of Railroad Company v. Cowser, 57 Tex. 293, was also a suit for the death of a child, an adult, who was contributing to the support of his parents, who brought the suit. Hence it is apparent that Mr. Sedgwick refers solely to the rule of children ministering to the support of parents, when he lays down the rule that a jury may take into account the reasonable expectation of pecuniary benefit from the continuance of life beyond minority, and that the general application of the rule pertinent to the case at bar, as stated by him, does not differ from other authorities.

We further call attention to the fact that, while Am. & Eng. Ency. Law, vol. 8, p. 20, seems to lay down the rule that a parent in suit for damages for death of a child is entitled to show a pecuniary interest in the life of the child beyond its maturity, and under proof of a reasonable expectation of pecuniary benefit from the continuance of the child's life may recover a fair value of expectation, yet the authorities cited in support of such allegation are practically all cases where the suits were to recover for the deaths of adults contributing support. In fact, on page 21 of said authority, it is stated: "Damages after majority are only recoverable upon affirmative proof by plaintiff that he had a right to expect pecuniary advantage from the child after the latter's maturity." For a clear statement of the true rule, we refer the court to the case of Cooper v. Lake Shore Railroad Company, 66 Mich. 261.

The eighth instruction granted to the appellee was fatally erroneous in that it assumed that the right to prospective gratuities had been established by proof. The language of the instruction is, "The loss of prospective gratuities to his mother after he became twenty-one years of age." An instruction in almost the same language was condemned by the court in the case of Ry. Company v. Hyatt, 12 Tex (Civil Appeal), p. 435. In that case the trial court instructed the jury that it might include as an element of damages "such pecuniary benefits as the child might confer on its parents after majority." The court held the instruction to be erroneous, because it allowed the jury to find all such pecuniary benefit as the parent might possibly have received, not confining it to such as might reasonably have been expected under the circumstances. All of the authorities confine the recovery to such prospective contribution as might reasonably be expected under the circumstances. The reasonableness of the expectations is to be based upon evidence, taking into consideration the age, health, earning capacity, expectation of life, present contribution, the character of the contributions and their frequency. The jury cannot be turned loose, as in this case, to award damages for prospective gratuities unsupported by proof. So the instruction as drawn is fatally defective in not confining the jury to such sums or sum as the plaintiff might reasonably expect. The proof in this case shows that no voluntary contributions...

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