Jones v. Shaffer, 07-CA-59255
| Decision Date | 19 December 1990 |
| Docket Number | No. 07-CA-59255,07-CA-59255 |
| Citation | 573 So.2d 740 |
| Parties | Gilbert Hunter JONES, as Administrator of the Estate of Marvin Earl Jones, Deceased, and as Personal Representative v. Kim Allen SHAFFER and Arthur F. Cain. |
| Court | Mississippi Supreme Court |
J. Niles McNeel, McNeel & Ballard, Louisville, for appellant.
David L. Sanders, Mitchell McNutt Threadgill Smith & Sams, Columbus, Peter W. Cleveland, Biloxi, David T. Wilson, Jr., Thomas Y. Minniece, Singley Minniece Hamill, Wilson & Mitts, Louisville, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.
Gilbert Hunter Jones, administrator of the estate of Marvin Earl Jones, deceased, filed suit in the Circuit Court of Choctaw County against Kim Allen Shaffer, Hugh Shaffer, R.L. Jefferies Trucking Co. and Arthur F. Cain, for the wrongful death of Marvin Earl Jones (Jones) as a result of a truck collision. The jury returned a verdict against Kim Shaffer and Arthur Cain in the amount of $4,568.78, the funeral expenses of Jones. 1 The administrator has appealed the judgment of the lower court to this Court and presents four issues for decision. Arthur F. Cain has cross-appealed and raises two issues in his behalf.
The facts favorable to the appellant follow. On October 28, 1983, Kim Shaffer, hereinafter referred to as Shaffer, was driving an "18-wheeler" truck for his father, Hugh Shaffer, d/b/a K & R Trucking. Riding in the truck with Shaffer was a passenger, his friend, Jones. Shaffer was driving in a northerly direction on Highway 9 with Jones asleep in the cab of the truck. The truck was traveling at 55 miles per hour as it went over a hill just south of the Natchez Trace Parkway.
According to Shaffer, he saw a pick-up truck drive out of Swindle's Grocery approximately seven or eight hundred feet in front of him and turn north on Highway 9. Upon seeing the pick-up truck, Shaffer did not slow his truck down, intending to pass the pick-up on the left. As Shaffer approached the truck, he became aware that it was sitting still in the road, and he also saw another vehicle. It was approaching in the south bound lane in which Shaffer was attempting to pass the pick-up truck. Being unable to stop, and, in an effort to avoid hitting the pick-up truck in the rear, Shaffer drove the "18-wheeler" truck off the road and into a ditch where it struck a tree. In the crash that resulted, Shaffer was thrown free from the wrecked truck, but Jones was pinned inside the cab. Soon afterwards, the cab of the "18-wheeler" truck was engulfed in flames. Jones' body was burned and charred beyond recognition.
The pick-up truck, which pulled out from Swindle's Grocery and proceeded north on Highway 9 in front of the Shaffer's "18-wheeler" truck, was driven by Arthur F. Cain. He testified that he had driven off the Natchez Trace Parkway, and, discovering that he turned at the wrong exit, had stopped his truck in the north bound lane of Highway 9, waiting for an approaching car to pass so he could make a left turn back on to the Natchez Trace. He heard the screeching tires of an "18-wheeler" coming up behind him. Cain testified that his brake lights were not working at the time of the accident but that his left directional signal was operating and had been turned on. The weather was clear, the sun was shining and the accident occurred at approximately 1:00 p.m.
Jones was twenty-two years of age, unmarried and without children or dependents. His parents predeceased him and
there survived Jones five brothers and three sisters.
LAW
I. FAILURE OF THE JURY TO RETURN ANY DAMAGES FOR THE NET CASH VALUE OF THE DECEDENT'S LIFE EXPECTANCY.
II. FAILURE OF THE JURY TO RETURN ANY DAMAGES FOR PAIN AND SUFFERING FOR THE DECEDENT.
III. FAILURE OF THE JURY TO RETURN ANY DAMAGES FOR LOSS OF COMPANIONSHIP AND SOCIETY.
IV. FAILURE OF THE JURY TO RETURN ADEQUATE DAMAGES AS A MATTER OF LAW.
The court submitted elements of damages, i.e., (1) funeral expenses of Marvin Earl Jones; (2) the net cash value, life expectancy of Marvin Earl Jones; (3) pain, suffering and mental anguish; (4) loss of companionship of Marvin Earl Jones to his brothers and sisters. The jury returned a verdict for the plaintiff in the amount of $4,568.78, the exact amount of the funeral expenses of Jones. The verdict of the jury is affirmed on the issue of funeral expenses.
Dr. Paul Oliver, an expert in the field of economics, testified for the plaintiff. He was the only such expert to testify in the case. According to Dr. Oliver, the average work life expectancy of a 22 year old male person is 41 years. In computing a person's lost net cash value, a personal consumption factor must be taken into account. In his direct testimony, he indicated that the decedent's personal maintenance consumption allowance would be twenty-six per cent, which is for a two person family and the highest percentage shown by the tables of the Department of Labor. Using that rate, Dr. Oliver testified for the last full year the decedent worked, he earned $9,900, which computed the present value of the decedent's lost income at $171,000.00. This did not take into account any taxes that might be paid during the decedent's life, had he lived.
On cross examination by Mr. Sanders, attorney for the defendant, Kim Shaffer, Dr. Oliver was asked to compute the decedent's lost income using 40% as the deceased personal consumption rate and Dr. Oliver arrived at the decedent's lost net income as $101,142.00. On further cross examination by the attorney for Jeffries' Trucking, Dr. Oliver was asked to assume that the decedent's personal consumption rate was 67% and Dr. Oliver arrived at the decedent's lost net income at $70,495.00. It is incredible that the verdict ignored and did not respond favorably to this element of damages.
Marvin Reed testified that he was inside Swindle's Grocery when the accident occurred; that he immediately ran to the wrecked truck and that while he was standing by the driver's side of such truck heard someone, whom Reid was of the opinion was in the cab of the truck, say "Help me". He did not see who made the statement nor did he walk around to the passenger side of the wrecked truck to be sure that the voice came from inside the cab, and shortly thereafter, the truck was engulfed in flames.
John Steadman testified that he was eating lunch on the porch of Swindle's Grocery and observed the accident; that he ran down to the wrecked truck and, while standing at the rear of the truck, heard someone say, "Somebody get me out of here." He was of the opinion that it came from inside the truck.
Herman Morris was eating lunch with Reid at Swindle's Grocery. He ran down to the wrecked truck when he heard it impact the tree and, while standing on the truck with his head in the window of the cab, Morris heard someone say, He was sure that the voice came from inside the truck. He tried to get to the person inside the truck but jumped off it as the truck began to tremble and the truck exploded into flames just as he got a few steps away.
Kim Shaffer, driver of the eighteen wheeler truck, in order to avoid hitting Cain in the rear, ran off the highway into a ditch and struck a tree. In the crash, Shaffer was thrown free from the wrecked truck and some distance away. It is undisputed that Marvin Earl Jones was the only individual inside the cab of the truck and the evidence is overwhelming that he was asking for help and was alive.
Gilbert Jones, brother of the decedent, testified that Marvin Earl Jones left surviving him five brothers and three sisters; that Jones' parents predeceased him and Jones was not married nor did he have any children; that the Jones family, brothers and sisters, was a close family; and that the decedent lived in and kept up the family home and place.
Norma Rae Ratcliff, sister of the deceased, testified on behalf of all members of the family as to the closeness of the Jones family.
Although each member of the family should have been available as a witness and could have, or should have, testified to the loss of companionship and society, this element of the damages is undisputed.
* * * * * *
It is elementary that when a jury's verdict for damages is against the overwhelming weight of the evidence or is the result of bias, passion and prejudice or the verdict does not respond to the uncontradicted evidence and is inadequate, the Court will reverse and remand for a new trial. Clark v. Columbus and Greenville Railway Company, 473 So.2d 947 (Miss.1985); Dickey v. Parham, 331 So.2d 917 (Miss.1976); Campbell v. Schmidt, 195 So.2d 87 (Miss.1967); Burlingame v. Southwest Drug Stores of Mississippi, 203 So.2d 74 (Miss.1967); Green v. Hatcher, 236 Miss. 830, 105 So.2d 624 (1958).
The case of McGowan v. Estate of Wright, 524 So.2d 308 (Miss.1988) is distinguished from the case at bar. There the evidence was uncontradicted and undisputed that there were no damages for loss of companionship, pain and suffering and net case value of the decedent's income.
We are of the opinion that the lower court erred in declining to grant the motion for new trial on the issue of damages alone, excepting the issue of funeral expenses, which is affirmed. 2
Appellee, Arthur F. Cain, cross appeals and asserts the following issues:
I. THE VERDICT OF JURY AS TO CAIN WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. SEVERAL INSTRUCTIONS AND RULINGS OF THE COURT WERE ERRONEOUS IN CALCULATING TO MISLEAD THE JURY AS TO THE NECESSITY OF CAUSAL CONNECTIONS.
We are of the opinion that the cross appeal is without merit and the judgment of the lower court is affirmed as to liability and funeral expenses on the cross appeal.
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