Goodyear Yellow Pine Co. v. Anderson

• Decision Date: 19 November 1934
• Docket Number: 31422
• Citation: 171 Miss. 530,157 So. 700
• Court: Mississippi Supreme Court
• Parties: GOODYEAR YELLOW PINE CO. et al. v. ANDERSON

157 So. 700

171 Miss. 530

GOODYEAR YELLOW PINE CO. et al. v. ANDERSON

No. 31422

Supreme Court of Mississippi

November 19, 1934

Division B

Suggestion Of Error Overruled, January 14, 1935.

APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by Nancy Anderson against the Goodyear Yellow Pine Company and others. Judgment for plaintiff, and defendants appeal. Affirmed as to liability, and reversed and remanded as to damages.

Affirmed as to liability, and reversed and remanded as to damages.

Parker & Shivers, of Poplarville, and Heidleberg &amp Roberts, of Hattiesburg, for appellants.

Juries almost universally, and even lawyers, too frequently are unable to distinguish between the pecuniary value of companionship and the sentimental value thereof. It is only the pecuniary value which is recoverable. Damages by way of sorrow or grief, or mental suffering on the part of the plaintiff, are never recoverable.

17 C. J., pages 1333 and 1334, sec. 207; St. Louis & S. F. Railroad Co. v. Moore, 101 Miss. 768, 58 So. 471; Brahan v. M. L. & Ry. Co., 121 Miss. 269, 83 So. 467.

Recoverable damages which a decedent may suffer and for which recovery may be had, are: first, conscious physical and mental pain and suffering, if any, and, second, pecuniary loss to the decedent. However, the undisputed proof in this case shows that there was no conscious pain or suffering, either physical or mental, and, therefore, there can be no recovery for this element of damages which exists in some cases.

Moore v. Johnson, 114 So. 734, 148 Miss. 827; Y. & M. V. Railroad Co. v. Lee, 114 So. 866, 148 Miss. 809.

There is no evidence in this case that Gus Anderson himself suffered any pecuniary loss. At one time it was generally thought to be the law of Mississippi that in actions of this kind one of the recoverable elements of damages was the present value of the decedent's life expectancy, but that is no longer a question of doubt in Mississippi.

New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104; Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Y. & M. V. R. R. Co. v. Barringer, 138 Miss. 296, 103 So. 86; Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295; Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677.

The testimony is silent as to how much of his wages he contributed toward the support of his wife.

We submit, first, that this case should be reversed and remanded for another trial because of the error of the court in refusing to set aside the verdict as being against the overwhelming weight of the testimony, and, second, if wrong as to the first, then it should be reversed and remanded on account of the amount of the damages unless remittitur is entered.

Grayson B. Keaton, of Picayune, and Hall & Hall, of Columbia, for appellee.

This court is always reluctant to reverse on a finding of fact by a jury, and it is indeed a rare case where it is done.

M. & O. R. R. Co. v. Bennett, 90 So. 113; Y. & M. V. R. R. Co. v. Pittman, 153 So. 382.

Certainly the clash in the testimony of the opposing parties is equally balanced and cannot under any possible construction be said to so completely overwhelm in favor of appellants that the witnesses for appellee are unworthy of belief and that consequently a new trial should have been granted. The question of negligence was properly submitted to the jury.

We do not understand the rule to be that the value of a human life, even though it be only an humble negro, can be calculated down to the very penny as appellants are contending, but our conception of the rule is that it is a question for the jury to fix the amount to be awarded, based, in the bounds of reason, upon the earning capacity, as well as the other damages sustained. In their voluminous calculations, counsel for appellant have entirely ignored the damages for loss of society and companionship, although they admit that these are proper elements for consideration.

G. & S. I. R. R. Co. v. Boone, 82 So. 335; Belzoni Hardwood Lumber Co. v. Cinquimani, 102 So. 471; Y. & M. V. R. R. v. Beasley, 130 So. 499; Gulf Refining Co. v. Miller, 121 So. 482; Hampton v. State, 88 Miss. 257; Hardaway v. State, 99 Miss. 223.

If the appellants had desired that the jury be instructed on the elements of damages, they should have requested appropriate instructions thereon, and, since they failed to do this, they cannot now complain.

W. & A. R. R. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; G. & S. I. R. R. v. Saucier, 104 So. 180; 17 C. J., pp. 1344-1347.

Argued orally by Rowland W. Heidleberg, for appellant, and by Lee D. Hall, for appellee.

OPINION

Ethridge, P. J.

This is an appeal from a judgment in favor of appellee, Nancy Anderson, against the appellants, for the death of her husband, Gus Anderson, who was killed by a log in the operation of unloading logs from a car for the appellant Goodyear Yellow Pine Company. Gus Anderson was an employee of the appellant, and had been for many years, and was under the control of Willie Furr, who, at the time Gus Anderson was killed, was operating a crane or machine for the unloading of logs.

It appears that the logs which were being unloaded were loaded on a log car in the following manner: The first tier of logs was loaded on the log car, and then chained by a toggle chain to the truck or sills of the logging car, and on top of this a layer of logs was loaded above said toggle chain, and it was necessary, before unloading, to unfasten the toggle chain. According to the appellee's testimony, Willie Furr sent Gus Anderson under the car to unfasten this toggle chain, and some logs which were being hoisted by the crane rolled or struck against another log on the car, knocked it off, and it killed Gus Anderson.

There was dispute in the testimony as to whether Gus Anderson was directed by Willie Furr to go under the car and unfasten the toggle chain. It was admitted, however, that for a number of years Gus Anderson was under Furr and subject to his orders, and Furr was engaged in unloading this car of logs, and had the right to direct Gus Anderson. It also appears that, prior to the unloading of these logs, Furr had told Gus Anderson that, when the logs were unloaded, he would have no further need of his services, and sent him to the superintendent, Stevens, to see if he could obtain other employment, but also told him he would be paid for that day. This conversation, of course, occurred prior to the killing of Gus Anderson. Stevens had given Gus Anderson employment in another department, to begin the following day, and it is admitted that the employment and the pay therefor were for the day, but it is insisted that Gus Anderson was not, at the time of his killing, engaged in the services and under the control of the company. However, there was proof by the company that Gus Anderson was not directed to go under the car to unfasten the toggle chain.

A number of witnesses testified in support of the appellee's claim, and to the fact that Gus Anderson was directed to go under the car and unfasten the toggle chain, and to the unloading operations, and that the moving of the logs off the car, was done before Gus Anderson had come from under the car and reached a zone of safety.

There was a verdict of seven thousand five hundred dollars...