Scott v. K-B Photo Service, Inc., K-B

• Decision Date: 17 April 1972
• Docket Number: No. 46627,K-B,46627
• Citation: 260 So.2d 842
• Parties: Mrs. Teddie Lee SCOTT v.PHOTO SERVICE, INC., et al.
• Court: Mississippi Supreme Court

Page 842

260 So.2d 842

Mrs. Teddie Lee SCOTT v. K-B PHOTO SERVICE, INC., et al.

No. 46627.

Supreme Court of Mississippi.

April 17, 1972.

Garner, Whitten & Garner, Hernando, A. Cinclair May, Sardis, for appellant.

Walker, Franks, Rone & Bridgforth, Hernando, for appellees.

ROBERTSON, Justice.

Pursuant to the provisions of Section 1453, Mississippi Code of 1942 Annotated (Supp.1971) (wrongful death statute), Mrs. Teddie Lee Scott, widow of Hammon F. Scott and Executrix of his estate, brought suit against K-B Photo Service, Inc., and Robert L. Scruggs, in the Circuit Court of DeSoto County for the wrongful death of Hammon F. Scott. She brought this suit as personal representative of his estate, for herself as his widow, and for and on behalf of their four adult children who, along with the plaintiff, were the sole heirs at law of Hammon F. Scott.

Scott at the time of his death was 81 years of age. He was driving his pickup truck south on U.S. Highway 51, about 1 mile south of Hernando, Mississippi, and was going slowly down a slight hill. Scruggs, driving a Plymouth Valiant belonging to K-B Photo Service, Inc., south on U.S. Highway 51, testified that he topped the hill at about 60 miles an hour, saw Scott down the hill apparently stopped on the highway, but couldn't avoid running into the rear of Scott's pickup truck causing it to go off the west side of the highway and turn over on its side. Scott was dead when he was removed from his truck. The jury returned a verdict for $6,718 in favor of the plaintiff.

Appellant contends that the verdict is inadequate because the trial court did not allow her to present evidence of the funeral expenses in the sum of $1,101, the $100 cost of a headstone, and $250 attorney's fees for probating the will and administering the estate of Hammon F. Scott, Deceased. The trial court ruled that these were postmortem expenses and were not proper items of damage under the wrongful death statute.

Appellant contends that funeral expenses, the cost of a headstone, and attorney's fees for administering the estate are covered by this general language of the statute:

'In such action the party or parties suing shall recover 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 any and all parties interested in the suit.' § 1453, Miss.Code 1942 Annot.

§ 1453 opens with this language:

'Whenever the death of any person shall be caused by any real wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, . . .' (Emphasis added).

It seems to us that the intent and purport of the statute was to largely limit damages to those that the injured person could have recovered if he had not died. To these could be added damages that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship.

Section 1453 also provides:

'Damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, . . .'

The heirs could not be required to pay funeral expenses out of the damages recovered under Section 1453.

On the other hand, Section 539, Mississippi Code 1942 Annotated (1956), specifically provides that funeral expenses shall be paid out of the assets of the estate. Section 539 recites in part:

'The...