Gulf Refining Co. v. Miller

• Decision Date: 08 April 1929
• Docket Number: 27726
• Citation: 153 Miss. 741,121 So. 482
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. v. MILLER et al. [*]

121 So. 482

153 Miss. 741

GULF REFINING CO. v. MILLER et al. ^[*]

No. 27726

Supreme Court of Mississippi

April 8, 1929

Division A

Suggestion of Error overruled May 13, 1929.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Action by Mrs. Mattie Miller and others against the Gulf Refining Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Affirmed.

Amis, Dunn & Snow, for appellant.

Williams & Clayton and Martin Miller, for appellees.

Argued orally by A. B. Amis, for appellant, and Martin Miller, for appellees.

OPINION

MCGOWEN, J.

On the second trial of this case the verdict of the jury and the judgment of the court awarded damages in the sum of eleven thousand dollars in favor of appellees; and from this judgment of the lower court the Gulf Refining Company prosecutes its second appeal to this court.

The former decision of this court is found in the case of Gulf Refining Co. v. Miller et al., 150 Miss. 68, 116 So. 295. This is a suit by the mother, brothers, and sisters for the pecuniary loss occasioned by the death of Vardaman Hall Miller, who was instantly killed in March, 1927, by an oil truck of the appellant, alleged to have been the result of negligence on the part of the driver. There is no material difference in the facts as stated in the instant case and as shown on the former hearing of this case, so we will not undertake to detail here the occurrences which led to the death of Vardaman Miller, as we do not think there is any serious contention as to whether, under the evidence and the former decision of this court, a reversal can be predicated upon the question of liability; the only errors assigned and argued being as to the instructions of the court and the amount of the verdict.

1. Appellant complains of, and assigns as reversible error, the giving of instruction No. 9 on behalf of the plaintiff, as follows:

"The court charges the jury that if you find for the plaintiff it will be your duty to return your verdict for that sum which will be fair and reasonable compensation for all of the damages sustained by the plaintiffs, if any, as shown by the testimony, as a direct and proximate result of the negligence, if any, of the defendants, in the injury and death of the decedent, Miller."

Appellant says this instruction did not inform the jury as to the elements or measure of the damages to be considered and awarded by it, but left it free to allow such damages as it might conclude to be right and proper; and cites Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287, as authority for a reversal. In this cause damages are recoverable under and by virtue of chapter 229, Laws of 1922 (section 515, Hemingway's Code of 1927), the applicable part of which is in this language:

"Such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to each and all parties interested."

The instruction complained of is to all intents and purposes in the language of the statute, and we do not think that appellant can complain here because of the giving of this instruction, on account of any announcement made by this court in the Decker case, supra, as the damages recoverable there were by virtue of the Federal Employers' Liability Act, and the language used in the condemned instruction permits the jury to estimate the loss sustained by the plaintiff.

There is no such vice in this instruction, and nothing therein contained prevented the appellant from securing instructions which would have further informed the jury as to the elements of damages which they had a right to consider in determining on their verdict.

Indeed, we do not think that appellant could complain had the appellees asked no instruction at all on the measure of damages or the elements of recovery permitted under the statute here considered.

As the court said in the Decker case, the loss sustained by a wife and children in the death of the husband and father frequently cannot be compensated by any amount of money. And the language used in the instruction in the instant case is not in conflict with the statute or the construction hitherto placed thereon by us.

2. Appellant assigns as error the refusal of instruction No. 5, which is as follows:

"The court instructs the jury for the defendants that even though the jury may find a verdict for the plaintiffs, yet the law does not authorize, nor should the jury award any damages in favor of the plaintiffs on account of their loss of society and companionship of Vardaman Miller."

Counsel insist that the former opinion in this case excludes this element of damage, in which opinion Chief Justice SMITH used this language:

"Under the clause of the statute permitting recovery for 'all damages of every kind to any and all parties interested in the suit,' the appellees have the right to recover, not the value of Miller's life expectancy, but the present value of any pecuniary advantage which the evidence might have disclosed they had a reasonable expectation of deriving from Miller, had he continued to live. No such expectation was here attempted to be shown."

Counsel misconceives and misinterprets this language of the court. This court is committed to the doctrine that under this statute the proper parties have a right to recover the pecuniary value, as estimated by the jury, of the loss of companionship and society. St. L. & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L. R. A. (N. S.) 978, Ann. Cas. 1914B 597; I. C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265; G. & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Jackson v. Port Gibson, 146 Miss. 696, 111 So. 828; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104; Moore v. Johnson, 148 Miss. 827, 114 So. 734.

Counsel for appellant cite us to the case of Mobile & O. R. Co. v. Watly, 69 Miss. 145, 13 So. 825, wherein the court held under the statute then under review that the loss of society and companionship was not an element of damage. In the Moore case, however, the difference in the statute was pointed out. Appellant asks us now to put the same interpretation on the statute quoted herein as was placed upon the statute there in force and considered in the decision in the Watly case. This we declined to do, for the reasons indicated in the cases cited herein; and we think the court correctly refused to grant the instruction excluding loss of society and companionship as an element of damage herein.

3. There is assigned as error refused instruction No. 2, requested by appellant, but it is conceded here that this instruction was defective as presented, and should not have been granted.

4. Appellant complains that the court refused instructions Nos. 3 and 4. These two instructions are to the same effect, and we set forth instruction No. 4 verbatim:

"The court instructs the jury for the defendants that even though they may find a verdict for the plaintiffs, yet there is no testimony in this case sufficient to authorize the jury to award any damages in favor of the plaintiffs, or either of them, on account of the loss of any pecuniary benefits to be derived from Vardaman Miller after reaching twenty-one years of age."

In the former opinion, this court said, with reference to this element of damage, that no such expectation was here attempted to be shown.

In Telegraph & Telephone Co. v. Anderson, 89 Miss. 732, 41 So. 263, this court held that:

In a proper case the parent was entitled to recover "such gratuities, if any, as the evidence may show the parent had a reasonable expectation of receiving from the child before or after its majority."

Appellees contend that the evidence offered on this trial warranted a recovery of this element of damage. The lad was thirteen and one-half years of age, in good health, had good habits, was in the sixth grade in the public school, was kind, attentive obedient to his parents, with whom he lived. He was helpful at...