Louisville & N. R. Co. v. Garnett

• Decision Date: 25 September 1922
• Docket Number: 22488
• Citation: 129 Miss. 795,93 So. 241
• Parties: LOUISVILLE & N. R. CO. v. GARNETT et al
• Court: Mississippi Supreme Court

93 So. 241

129 Miss. 795

LOUISVILLE & N. R. CO. v. GARNETT et al

No. 22488

Supreme Court of Mississippi

September 25, 1922

1. REMOVAL OF CAUSES.

Action for more than three thousand dollars, brought in state where both parties nonresidents, not removable to federal District Court.

Under the provisions of section 24, 28, and 51 of the Federal Judicial Code (U. S. Comp. St., sections 991, 1010, 1033), a cause involving more than three thousand dollars between citizens of different states, brought in the court of a state of which both parties are nonresidents, is not removable to the federal district court for the district in which such state court is located.

2 RAILROADS.

Negligence as to person killed on track held for jury.

Where deceased for whose death suit is brought was run down and killed by defendant's locomotive within the corporate limits of a municipality while such locomotive was exceeding the speed limit prescribed by statute, it was not error in the trial court to refuse to direct a verdict for the defendant, although it was impossible to stop the train before striking the deceased when his danger appeared, where the evidence tended to show that the locomotive when it struck deceased was running at from fifteen to twenty-five miles an hour, and deceased when struck was not between the rails but on the outside near the ends of the cross-ties, and was struck by the pilot beam or cylinder of the engine because such facts might reasonably authorize the jury to infer that if the speed limit had not been exceeded the blow would have been less violent and not have caused the death of deceased.

3 DEATH.

Charge on measure of damages held erroneous.

In a suit for damages in a death case it is error for the court to instruct the jury for the plaintiffs that if they should return a verdict in their favor the measure of their damages is the present value of the life expectancy of the deceased because the present value of the life expectancy of the deceased is the discount value of such life expectancy at six per cent. per annum, the prevailing noncontract rate of interest, on such life expectancy for the period it has to run, not taking into account the living expenses of deceased which should be deducted.

4. APPEAL AND ERROR.

Charge as to measure of damages for wrongful death, where deceased contributed largely to cause, held prejudicial error.

In a case where the evidence shows that a very much larger part of the wrong which caused the death of the deceased was attributable to him and not to the railroad company, and under the other evidence in the case that the verdict returned by the jury is large, the giving of such an instruction is harmful and denied the defendant a substantial right, and is reversible error.

HOLDEN, J., dissenting.

HON. D. M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM, Judge.

Suit by N. J. Garnett, Sr., and others, against the Louisville & Nashville Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed and remanded for a new trial on question of damages alone.

Reversed and remanded.

Smith, Young, Leigh & Johnson, for appellant.

The fifth assignment of error is to the giving of the following charge: The court instructs the jury for the plaintiffs that, if you find for the plaintiffs, the measure of their damages is the present value of the life expectancy of the deceased. The amount, if you find for the plaintiffs, should be fair and reasonable as the evidence may show, if any, to compensate them for the death of said deceased, Garnett, not to exceed the sum of sixty thousand dollars ($ 60,000).

This charge contains two separate and distinct propositions, which are: (1) Not consistent, the one with the other; (2) Each is erroneous. Gulf & Ship Island R. R. Co. v. Boone, 120 Miss. 632, (82 So. 335); Mississippi Oil Company v. Smith, 95 Miss. 528 (48 So. 735) and Cumberland Telephone & Telegraph Co. v. Anderson, 89 Miss. 732, 41 So. 263. Plaintiffs had a right to recover the present value of the deceased's own life expectancy. Mississippi Oil Co. v. Smith, 95 Miss. 528, 48 So. 735; Telephone Co. v. Anderson, 89 Miss. 732, 41 So. 263; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104, states the measure of damages as it is stated in the case of Gulf & Ship Island R. R. Co. v. Boone, supra, but the headnote is not supported by the opinion.

The appellant's attorneys in the above case strenuously and ably insisted that the first element of damages included in the court's charge was erroneous because it did not make any deductions for the support of the deceased and thereby made the deceased more valuable dead than alive. (See 122 Miss. 874 to 877). In this connection, the court said: "In other words, the jury were told they must find the present value of all that Alexander would have earned during his expectancy, and then, in addition to all he would have earned, such further amount as it would take to support his wife and children until the children should reach their majority and as long as the wife lived, thus making the momentary value of his life not only what he would have earned, without diminution for his own support, but also such additional amount as it would take to support his wife and children."

In view of the argument of the appellant's attorneys, and the words of the opinion which we have underscored, it is clear that the court intended to hold that the charge was erroneous for the reason, as well as others, that it made no diminution for the support of the deceased.

This is made still plainer by the fact that the appellee's attorneys in the New Deemer case insisted that the instructions were warranted by the case of Cumberland Telephone & Telegraph Co. v. Anderson, 89 Miss. 732, and the court after quoting from that case, said: "The language quoted is misleading because the opinion does not point out what was evidently in the minds of the court, that the son's expectancy should be measured and valued with reference to other elements of damages. He would not recover the earnings of that part of his life which belonged exclusively to his mother. All these elements named are proper to be considered by the jury, but, in the language of the statute, after the jury has considered these various elements, the jury find such amount as it may determine to be just, taking into consideration all of the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

The general rule is thus stated in 8 Ruling Case Law, sec. 104, p. 826: "The measure of damages under most of the statutes giving a right of recovery for the wrongful death of a person is the present value of the reasonable expectation of pecuniary advantages to those entitled to recover and which they have lost by his death, or as it is sometimes expressed, it is the amount of pecuniary assistance and support which they might reasonably have expected to receive from the deceased had he lived. Davis v. McCullough, 89 So. 158; Yazoo & M. V. R. Co. v. Williams, 114 Miss. 206, 74 So. 835; Gulf & Ship Island R. R. Co. v. Anderson, 117 Miss. 118, 77 So. 854.

The second sentence of the charge does not state a correct legal proposition. The second sentence of the charge is likewise an erroneous statement of the measure of recoverable damages, in that it charges the jury that the amount of damages should be fair and reasonable to compensate them for the death of the deceased. Compensation necessarily involves mental anguish and distress caused by the untimely death of a deceased by violence, as well as the pecuniary loss sustained by the plaintiff by reason of such death. The distinction between compensation for mental suffering and anguish and the pecuniary loss arising from the loss of protection and society of a husband and father is fully recognized by this court and it is held that compensation can be had for such pecuniary loss, but not for the mental suffering and anguish. Telephone Co. v. Anderson, 89 Miss. 732, 41 So. 663; 17 Corpus Juris, p. 1337.

Eighth assignment of error: The court erred in refusing to instruct the jury to find a verdict for the defendant. In other words, under the evidence in this case, the defendant was entitled to the peremptory instruction in its behalf. We fully realize that the evidence must be considered in its most favorable aspect to the plaintiffs in discussing this question, but, even then, it does not show any liability on the part of the defendant. The plaintiffs relied upon two acts of negligence, viz: excessive speed and failure to give the proper signals. Ala. & V. R. Co. v. McCoy, et al., 105 Miss. 737, 63 So. 221; Moorehead v. Yazoo & M. R. Co., 36 So. 151.

Ninth assignment of error: The court erred in refusing the following charge requested by the defendant: "The court instructs the jury that, even if you believe the train was going over six miles an hour after it entered the city limits of Biloxi, it cannot be relied upon to show negligence in this case, unless the train was going over six miles per hour at the time the deceased was seen in a place of danger."

This charge was requested to meet an argument by the plaintiffs' counsel that, had the train not been going over six miles an hour after it entered the city, the accident would never have happened, because the deceased, Garnett would not have been in that place. The charge is clearly in accord with the law as announced in the case of Louisville & Nashville R. R. Co. v. Dick, 95 Miss. 111, 48 So. 401. The petition for removal to the United States district court should have been granted.

The first four assignments of error raise the proposition that the lower court erred in...