Illinois Central Railroad Co. v. Fuller

• Decision Date: 27 October 1913
• Docket Number: 16,079
• Citation: 106 Miss. 65,63 So. 265
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. E. L. FULLER et al

63 So. 265

106 Miss. 65

ILLINOIS CENTRAL RAILROAD CO. v. E. L. FULLER et al

No. 16,079

Supreme Court of Mississippi

October 27, 1913

APPEAL from the circuit court of Attala county, HON. G. A. MCLEAN Judge.

Suit by E. L. Fuller and others against the Illinois Central Railroad Company. From a judgment for plaintiff defendant appeals.

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

Reversed and remanded.

Mayes &amp Mayes, Blewett Lee and R. V. Fletcher, for appellant.

It would be profitless for us to undertake to discuss at length the cases in which punitive damages are allowed. The rule which our court has adopted and which is the universal rule on this subject is well stated in 13 Cyc. 108. I. C. R Co. v. Dodd, 53 So. 409; Y. & M. V. R. Co. v Harris, 55 So. 967; Godfrey v. Meridian Lt. Ry. Co., 58 So. 534; Ry. Co. v. McLeod, 78 Miss. 334. The court erred in giving an instruction authorizing recovery for pain and suffering.

The death of Mr. Fuller was instantaneous. Pain and suffering was not an element of damage to be considered by the jury, because there was no pain and suffering under the facts of this case. The law under which this right of action must exist is found in section 721, Code 1906, as amended by Laws of 1908, page 183. This is the law which gives the right of action for injury producing death. But for this statute no suit could be maintained and under the statute the suit can be maintained for only such damages as the statute authorizes to be recovered. This law provides that: "Whenever the death of any person shall be caused by any wrongful or negligent act, etc., as would, if death had not ensued, have entitled the party injured to damages, to maintain an action, the action shall survive to certain designated parties. When stating what character of damage may be recovered the statute limits it to 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 any and all parties interested in the suit."

The character of damages which may be recovered is particularly set out in this act. First, "all damage of every kind to the decedent;" and second, "all damage of every kind to any parties interested." The parties interested in the suit have not suffered any damage on account of pain and suffering of the deceased, and if they have the right to sue for this, they obtain it through the deceased as damage to him. But he was killed instantly and there was, therefore, no such damage suffered by him. R. R. Co. v. Pendergrast, 69 Miss. 425; McVey v. R. R. Co., 73 Miss. 487. It was error for the court to instruct for any punitive damage.

Our contention in this case is that under our statute no such damage can be received where the injury results in death. Under the common law there could be no suit for damage when the injury resulted in death. This rule is still in force in this state except to the extent it has been abolished by statute. Our statute gives a right of action for injuries resulting in death, even when the death is instantaneous, but the statute fixes the character of damage which may be recovered and nothing can be sued for other than what the statute allows. Crudup case, 63 Miss. 291; 13 Cyc. 106; Hardie v. Y. & M. V. R. Co., 55 S. R. 970.

Now, to the point. While our statute gives a right of action where death ensues from a negligent act, this right of action extends only so far as the statute expressly states, the common law is still in force except as it is expressly displaced by statute. The statute does not allow parties suing for death to recover that character of damage which finds its basis in what is considered to be for the public good. The statute confines those suing to such damage as happens "to the decedent" and such damages as happens "to the interested parties." But not such damage as is allowed for the public good. Ita lex scripta est. We feel that this case is bound to be reversed. Let counsel cite this court to one case where punitive damage has been allowed in a case of death like this. We have not found it.

Damage Excessive. We have already argued this to the court, and will not repeat the argument here. In this case the facts show a skimpy actual damage of one thousand eight hundred dollars, or two thousand dollars. The judgment is for ten thousand dollars. There is no basis to rest it on.

Luckett & Guyton, for appellees.

The appellant complains that their first instruction should have been given. The lower court in view of the conflict in the testimony as to whether the employees were guilty of simple negligence or gross negligence did right in refusing their first instruction. The question of negligence or no negligence was a matter for the jury. They were the judges of that, and it would have been error for the court to have invaded the province of the jury in this case. Under the statute the burden was upon the defendant to offer credible and reasonable testimony to exonerate the company in killing the deceased, and this testimony should be of such character and weight that the jury will believe it.

The doctrine of the last clear chance, announced by Judge MCLEAN, applies to this case in all of its force and effect. 100 Miss. 706. The case of N. O. M. & C. R. R. v. Harrison, reported in 61 So. 655 was not as strong a case as this, yet this court affirmed it.

As was well said in the case of C. I. Company v. Stead, 95 U.S. 161, 24 Law Ed. 403, the warning must be reasonable and timely. It cannot be such if the speed of the train is so great as to render it unavailing. Railroad Co. v. Hawkins, 82 Miss. 209; Fuller v. I. C. Railroad Co., 56 So. 783.

Counsel in his brief lays great stress on the table of mortality and the expectancy of life, but this court pays but little attention to those rules and those tables, and they cut very little figure in trying cases of this character. The life of a parent is not measured by actual dollars or actual earning capacity, but his daughters and his sons have a right to his society and the pleasure coming from that, and that is an element of damages, and no doubt went to enlarge the verdict that the jury gave us in this case.

It is contended again that these appellees cannot recover punitive damages, even if the facts would warrant it, because the statute does not provide for it. The mere reading of the Acts of 1908 on page 183, which gives the right of action for injuries producing death, would demonstrate that the appellees were entitled to sue for punitive damages. They were entitled to all the rights and remedies that the deceased was entitled to had he been living. If he had had a leg or arm cut off, and if the proof had warranted the infliction of punitive damages against the appellant, he would certainly be entitled to recover. That being admitted, then under the Acts of 1908, his next of kin have the same right and standing that he had. The statute says: "Taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit."

There is no proof here that the deceased was killed instantly. The proof is that he was caught on the cow-catcher and tossed up and up until he was finally thrown over the embankment and killed. It was evident from this testimony, that he was not instantly killed. He suffered pain during his horrible experience, even for a few moments and this would call for damage in this case.

In the Crudup case, 63 Miss. 291, the court announced the rule then existing under the statute. That statute was first incorporated into our law by the Code of 1880 and Judge CAMPBELL in ingrafting that statute in the Code, followed literally and substantially Lord Campbell's Act and all the states of the Union, nearly, in providing for this statute, use this Campbell act. In codifying the Code of 1892 the same act was brought forward and not until in 1898 was any change made. At that time the legislature made a marked change in the act so as to make it apply not only for damages suffered by persons who should bring the suit, but as well as to all damages suffered by the party who was killed. This marks a great change in the law. And that change has been carried on and adopted in the Code of 1906 and it has been further amended and enlarged by the act of 1908, page 183. So that the Crudup case relied on by counsel for the appellant, is not authority in this case, made so by reason of the changes above noted.

While punitive damages are not given by statute to any person suffering an injury, yet it flows as an incident to the main action in every case calling for or warranting the infliction of exemplary damages. For illustration, a right of action is created by section 4043 of the Code of 1906 and nothing is said about punitive damages. Yet this court has in many cases permitted punitive damages to be recovered where the act made unlawful was done wantonly or recklessly. Section 4045 makes it actionable negligence to fail to ring a bell and blow the whistle on approaching a highway or crossing; and 4046 makes it actionable to make a flying, running, walking, or kicking switch within the limits of a municipality. Yet in actions based upon these statutes punitive damages though not mentioned, are recoverable. In section 4043 and 4026 the damages defined by the statute are such as are suffered by persons or property, words no broader than those used in the death by wrongful act statute. In other words the court has had frequent occasion to construe statutes authorizing the recovery of damage to persons or property and to hold under such statutes that exemplary damages are recoverable. This observation may be considered in connection also with ...