Harris v. Illinois Central Railroad Co.

• Decision Date: 05 June 1916
• Docket Number: 18246
• Citation: 71 So. 878,111 Miss. 623
• Court: Mississippi Supreme Court
• Parties: HARRIS v. ILLINOIS CENTRAL RAILROAD COMPANY

71 So. 878

111 Miss. 623

HARRIS v. ILLINOIS CENTRAL RAILROAD COMPANY

No. 18246

Supreme Court of Mississippi

June 5, 1916

APPEAL from the circuit court of Madison county, HON. W. H. POTTER Judge.

Suit by Addie M. Harris against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

H. B Greaves, for appellant.

Mayes Wells, May & Sanders, for appellee.

OPINION

HOLDEN, J.

This case is appealed from the circuit court of Madison county where Mrs. Addie M. Harris, plaintiff below and appellant here, filed her suit against the appellee railroad company for damages for the death of her husband, under section 721, Code 1906. About one year prior to the filing of the present suit Mr. Harris, the deceased husband of appellant, while in the employ of appellee railroad company, was injured in the yards of the appellee, having his leg crushed and otherwise injured, for which injuries Mr. Harris filed suit against the appellee for damages, and during his lifetime prosecuted this suit to a final judgment in the circuit court, obtaining a verdict and judgment for five thousand dollars, which, on appeal to the supreme court, was affirmed. Pending this appeal in the supreme court, Mr. Harris died and his widow, the appellant here, appeared as administratrix of his estate and revived the case in the supreme court in her name as such. This case is reported in 108 Miss. 574, 67 So. 54. After the affirmance of the judgment in that case, the appellant here, Mrs. Addie M. Harris, widow of deceased, filed this suit in the circuit court of Madison county, asking only for such damages as she and her minor children had sustained by reason of the death of the husband and father. A special plea was interposed there by the defendant to this declaration, presenting the contention that Mr. Harris himself had recovered a final judgment in his lifetime on the same cause of action, and that this final judgment obtained during the lifetime of the injured party, Mr. Harris, was a settlement of, and an extinguishment of, the cause of action. A demurrer by the plaintiff to this special plea was overruled by the lower court, and from that judgment this appeal was taken.

The appellant very ably contends that the lower court erred in overruling the demurrer, and argues that:

"There are two elements of damages which are easily perceptible arising out of an injury causing death, where the death is not instantaneous, and the party injured has a wife and children dependent upon him for support; and they are, first, such injury as the deceased suffered, mental and physical, occasioned to him by the injury up to the time of his death; and, second, such injury as the widow and children have sustained independent of those suffered by the deceased, by being deprived of their means of support, which are within the contemplation of section 721, Code 1906."

Counsel further contends that:

"Section 721 can never apply until there is a death, because it is a suit for damages for the death, which is given to the next of kin of the deceased."

And the case of Hamel v. Southern Railway Co., 108 Miss. 172, 66 So. 426, 809, a recent decision of this court is cited and relied upon as authority to sustain the contention of appellant here. There is a marked difference in the Hamel Case and the case before us now. The distinguishing feature between the two cases is this: In the Hamel Case the deceased had not prosecuted his claim to final judgment in his lifetime. In the case before us now, the deceased husband had prosecuted his cause of action to final judgment in his lifetime. Therefore, at the time of the filing of the instant suit, the...