Davis v. McCullers

• Decision Date: 11 July 1921
• Docket Number: 21635
• Citation: 89 So. 158,126 Miss. 521
• Court: Mississippi Supreme Court
• Parties: DAVIS, Director General of Railroads v. MCCULLERS

89 So. 158

126 Miss. 521

DAVIS, Director General of Railroads v. MCCULLERS

No. 21635

Supreme Court of Mississippi

July 11, 1921

APPEAL from circuit court of Coahoma county, Second District, HON W. A. ALCORN, JR., Judge.

1 DEATH. Recovery for services of child limited to minority.

In a suit for damages for the death of an infant daughter recovery for services due father is limited to years of minority only.

2 DEATH. Instruction on damages held too broad.

An ins ruction in such case, which tells the jury to find "for each and every character and kind of damages suffered by beneficiaries," is error because it is too broad and invites unwarranted elements of damages.

3 NEGLIGENCE. Instruction to find full compensation erroneous as preventing diminishment for contributory negligence.

In such case an instruction to find "full compensation" is error, where case justifies diminishmen of damages for contributory negligence.

4. NEGLIGENCE. Refusal to instruct on contributory negligence held erroneous.

In such case it was error to refuse an instruction that deceased was guilty of contributory negligence, where this is true as a matter of law; and where the jury failed to diminish in such case, resulting in an excessive verdict, the judgment will be reversed for new trial as to damages only.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, Second District, HON. W. A. ALCORN, JR., Judge.

Suit by John F. McCullers against James C. Davis, Director General of Railroads, and Agent of the United States. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Judgment reversed and case remanded.

Chas. N. Burch, H. D. Minor and A. W. Shands, for appellant.

Instruction No. 3 for the plaintiff on the measure of damages was erroneous.

Instruction No. 3 for the plaintiff, provides as follows: "The court instructs the jury that if they find for the plaintiff, in determining the damages and the amount of the damages which should be awarded to the plaintiffs, the jury should take into consideration all the damages of every kind to each of the deceased, and all damages shown by the evidence of every kind to each of the beneficiaries. to-wit: The father and the two daughters, Beatrice and Sydney McCullers. That in determining said damages, the plaintiff is not required to prove the damages so suffered in dollars and cents, but the jury should take into consideration each and all and every element of damage which the beneficiaries have suffered by reason of the same as shown by the evidence. That they should consider the loss of the society, companionship and enjoyment which the beneficiaries were deprived of in the death of their sister and daughter, and the expectation of her services in caring for one or more of the beneficiaries during the remainder of her life, and all such damages as they may believe from the evidence the beneficiaries have suffered, as they may believe any or all of such facts are shown by the evidence in the case, and they should return a verdict in favor of the plaintiff for such a sum as they may believe will make (full compensation) to all of the beneficiaries for each and every character and kind of damages which they may believe from the evidence the beneficiaries herein have suffered in the loss of the wife and mother, and daughter, and sister."

The above instruction is erroneous for several reasons. In the concluding part of the instruction it is said that the jury should give full compensation to the beneficiaries "for each and every character and kind of damage which they may believe from the evidence the beneficiaries have suffered."

The general form of this instruction would authorize even pecuniary compensation for grief, and on account of the horror and shock of the tragedy. As liberal as the rule in Mississippi is in regard to damages, there is no decision which allows a jury to return damages on every ground within the range of the conjecture or imagination of the jury. Damages are intended as pecuniary compensation. The rule as to damages in Mississippi has recently been stated in the following cases: St. Louis, etc., Railroad v. Moore, 107 Miss. 768; Gulf & Ship Island R. R. v. Boon, 82 So. 338; Hines, Director Gen. etc., v. Moore, 87 So. 1.

Furthermore, the instruction authorizes the recovery for loss of services of the infant daughter, not merely during her minority, but during the remainder of her life. This was clearly erroneous. Hines, Director Gen. etc., v. Moore, 87, So. 1.

Instruction No. 3 for the plaintiff is also erroneous in that it undertakes to give a complete instruction to the jury as to the measure of damages recoverable. The first and greater part of it is taken up with a statement as to what the jury should take into consideration in determining the damages. After having told the jury what they should take into consideration the instruction then directs: "They should return a verdict in favor of the plaintiff for such a sum as they may believe will make full compensation to all the beneficiaries for each and every character and kind of damages which they may believe from the evidence the beneficiaries herein have suffered in the loss of the wife and mother, and daughter and sister."

This instruction is erroneous, not merely in that it omits any consideration of diminution because of contributory negligence, but also in that it affirmatively excludes any such consideration by directing the awarding of full compensation. As defined by most lexicographers, the word "full" means without abatement or diminution. The instruction, therefore, is a positive direction to the jury to give the plaintiff compensation for all damages without abatement or diminution.

The error in this respect will probably be conceded. But it will probably be claimed that the charge should be read as a whole, and that the charge, when so read, properly covers the matter of diminution on account of contributory negligence because several instructions granted to the defendant so direct.

This argument does not save instruction No. 3 for the plaintiff, or remove its harmful effect. It is true that the court's charge should be read as a whole. The proper rule, however, has been thus stated by Judge WHITFIELD, quoting from an earlier case: Where an abstract proposition of law is incorrectly announced by an instruction, and the same or similar propositions of law are thereafter correctly set forth in other instructions in the cause, then if, taking the instructions on both sides as a whole, the court can safely affirm that no harm has been done to either side and that the right result has been reached, the verdict of the jury will not, in such cases, be disturbed." Skates v. State, 64 Miss. 644; Godfrey v. Railroad Co., 101 Miss. 570; Harper v. State, 83 Miss. 402.

The error in instruction No. 3 for the plaintiff cannot be disregarded unless the court can safely affirm that no harm has been done to either side, and that the right result has been reached. The rule deducible from the cases is, that if the two instructions are explanatory of each other, or if one is the complement of the other, and when read together correctly state the law, then no error has resulted. But when the two instructions are contradictory, then the error is reversible. Godfrey v. Railroad Co., 101 Miss. 571.

In the case of Mahaffey v. Russell, 100 Miss. 122, it appeared that the Mahaffey Company, a corporation of Wisconsin, was indebted to the plaintiff Russell. Thereafter that the corporation was dissolved and discontinued business, but shortly afterwards another corporation, with exactly the same name was reorganized under the laws of Illinois, and succeeded to a part of the first company's property. By instruction No. 2 for the plaintiff, the jury was authorized to return a verdict in favor of the plaintiff for the amount of his claim. If the Illinois Company had received assets of the Wisconsin corporation in any amount whatever, by a subsequent instruction for the defendant, the jury was told that the Illinois Corporation was liable to the plaintiff only to the extent of the value of the assets, if any, received by it from the Wisconsin corporation, the original debtor. The court held that these two instructions were contradictory and that the error in the first instruction was a reversible error, notwithstanding the granting of the second.

It will be argued, however, that it was not the duty of the plaintiff to have the jury instructed as to the effect of contributory negligence, but that this duty rested on the defendant, and the case of Messina v. Railroad, 108 Miss. 149, will be relied on. Similar language was used in the case of Lindsey v. Nix, 108 Miss. 817. The exact instruction for plaintiff, given in the Messina case, does not appear from the report, but in the case of Lindsey v. Nix, 108 Miss. 817, the plaintiff's instruction was: "The court instructs the jury for the plaintiff, Nix, that if they find for the plaintiff, they should find a verdict for such an amount as in their judgment the evidence in the case warrants; and in fixing the amount the jury should take into consideration the physical pain and mental anguish which plaintiff suffered as a result of his injury, if they believe from the evidence he suffered such pain and anguish." Lindsey v. Nix, 108 Miss. 817.

The difference between the instruction just quoted and the instruction in the case at bar is manifest. The instruction in the Lindsey case when read in connection with the instruction for the defendant (if one had been given) that damages should be diminished on account of negligence of the plaintiff, would have presented a correct statement of the law. In the present...