Thornton v. Insurance Co. of North America

• Decision Date: 17 December 1973
• Docket Number: No. 47250,47250
• Citation: 287 So.2d 262
• Parties: Mrs. Ben J. THORNTON, Jr., et al. v. INSURANCE COMPANY OF NORTH AMERICA.
• Court: Mississippi Supreme Court

Page 262

287 So.2d 262

Mrs. Ben J. THORNTON, Jr., et al. v. INSURANCE COMPANY OF NORTH AMERICA.

No. 47250.

Supreme Court of Mississippi.

Dec. 17, 1973.

Charles C. 'Cliff' Finch, D. Briggs Smith, Jr., M. Collins Bailey, Batesville, for appellants.

Dunbar & Merkel, Clarksdale, for appellee.

SUGG, Justice:

This is an appeal from a decree of the Chancery Court of Coahoma County, Mississippi awarding complainant, Insurance Company of North America, a judgment for $2,989.45 against Mrs. Ben J. Thornton, Jr., defendant. The decree directed the defendant, Everett Youngblood and L. J. Youngblood, to pay the amount awarded complainant out of the indebtedness owed by them to the defendant.

On September 27, 1968 Ben J. Thornton, Jr. was killed in a collision between the 1966 Plymouth Valiant automobile owned and operated by decedent and a Farmall Tractor and cotton trailer operated by Harold Thacker for Everett Youngblood and L. J. Youngblood doing business as a partnership under the firm name of Youngblood Company.

Decedent was survived by his wife and minor daughter, Cynthia Renee Thornton, who filed a declaration under Section 1453 Miss.Code 1942 Annotated (Section 11-7-13 Mississippi Code 1972 Annotated) against Harold Thacker and the Youngbloods. Plaintiffs sued for the following damages: (1) physical pain and suffering of decedent; (2) loss of companionship and society; (3) loss of future earnings of husband and father; (4) funeral and medical expenses of decedent; (5) punitive damages; and, (6) 'for all other losses arising from the death of said Ben J. Thornton, Jr., deceased.'

A consent judgment in the amount of $90,000 was entered on July 21, 1970 in favor of Mrs. Thornton and her daughter.

On July 21, 1970 Mrs. Thornton, acting as general guardian of the person and estate of Cynthia Renee Thornton, executed a release to Thacker and the Youngbloods in consideration of $45,000 cash for:

(A)ny and all claims, demands, judgments, expenses, medical claims, causes of action and from any matter or thing whatsoever accrued or hereafter to actrue as a consequence of and arising out of the aforesaid accident in connection with the injuries to and that death of Ben J. Thornton, Jr. and resulting damages to Cynthia Renee Thornton, a minor.

The release further provided:

It is specifically understood that this release shall apply to all known and unknown and anticipated and unanticipated injuries and damages resulting to said minor from the accident aforesaid.

The release recited that it was executed under authority of a decree of the Chancery Court of the First Judicial District of Panola County, Mississippi in Cause No. 6138 dated July 21, 1970.

On the same date Mrs. Thornton, individually and as general guardian of the person and estate of Cynthia Renee Thornton, executed a partial releast of the judgment against Thacker and the Youngbloods. The partial release recited that Mrs. Thornton had been paid $45,000 as guardian of Cynthia Renee Thornton in full and complete satisfaction of that portion of the judgment distributable to said minor child; that Mrs. Thornton had been paid individually the sum of $30,000 in partial satisfaction of the portion of the judgment distributable to her; and, that Mrs. Thornton agreed to accept payment of the balance due her in three installments of $5,000 each, payable on December 15, 1971, 1972 and 1973, such deferred payments to be evidenced by promissory notes to be secured by a deed of trust to be executed by the Youngbloods.

At the time of the collision an automobile policy issued by INA (Insurance Company of North America) was in effect which insured decedent against liability for bodily injury and property damages within policy limits. The policy also afforded decedent medical payments, accidental death benefit and comprehensive coverage. Under the comprehensive coverage provided by the policy, INA paid Mrs. Thornton the sum of $1500 which represented the value of the 1966 Phymouth Valiant automobile less $50 deductible. For this payment Mrs. Thornton executed a subrogation agreement in favor of INA for $1500. INA later paid Mrs. Thornton $1,000 representing death benefits due her as beneficiary and $614.45 under the medical coverage provisions of the policy for hospital, doctor and funeral expenses. Mrs. Thornton did not execute a subrogation agreement for the latter payments, but INA claims that it is subrogated to those payments because of the following policy provisions:

SUBROGATION (Bodily Injury and Property Damage Liability, Comprehensive and Collision Coverages)

In the event of any payment under this policy, the Company shall be subrogated to all the Insured's rights of recovery therefor against any person or organization and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after loss to prejudice such rights.

INA filed a non-resident attachment in chancery against Mrs. Thornton for recovery of $2,989.45 ¹ on the theory that it was subrogated to the extent of the payments made to her under the policy. The Youngbloods were joined as resident defendants because they were indebted to Mrs. Thornton in the amount of $15,000. INA alleged that Mrs. Thornton breached the subrogation agreement and the subrogation provisions of the policy when she consented to a judgment for $90,000 against the Youngbloods, thus precluding INA from collecting the subrogated claims.

The first question for decision is, what damages did the consent judgment for $90,000 include?

The consent judgment was based on a suit by a surviving widow and minor child for damages for the death of the husband and father. The damages recoverable under such a suit filed under Miss.Code Ann. § 11-7-13 (1972) are twofold; first, all damages of every kind to the decedent, and, second, all damages of every kind to the parties interested in the suit.

In a suit under the wrongful death act we have held that the damages to the decedent that may be recovered are punitive damages and damages for pain and suffering. See Illinois Central R. Co. v. Fuller, 106 Miss. 65, 63 So.2d 265 (1913) and New Deemer Manufacturing Co. v. Alexander, 122 Miss. 859, 85 So. 104 (1920).

We held in Scott v. K-B Photo Service, Inc., 260 So.2d 842 (Miss.1972) that the damages that might be recovered by the parties interested in the suit are damages 'that his heirs might have suffered because, of their personal relationship with the deceased, such as support and loss of companionship.' (260 So.2d at 844).

Scott also held that funeral expenses, cost of tombstone and costs of administration of the estate of a decedent are a charge on the estate of the decedent and funds other than those derived from a suit by a widow for the benefit of herself and surviving children under the wrongful death statute must be looked to for payment thereof.

We therefore hold that the items of damages recoverable by Mrs. Thornton and her daughter under their declaration were pain and suffering of decedent, punitive damages and loss of companionship and support, and were not subject to any debts or liabilities of the deceased.

The rule announced in Scott, supra, and followed herein, modifies the holding of this Court in four cases: Southern Pine Electric Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859, 59 So.2d 75 (1952); Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376 (1934); Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470 (1924) and J. J. Newman Lmbr. Co. v. Scipp, 128 Miss. 322, 91 So. 11 (1922).

In Hardwood Co., supra, the Court considered the amendment of our wrongful death statute by Chapter 214 of the Laws of 1914 which authorized a personal representative to maintain suit under the wrongful death statute. The Court noted that, before the amendment, two suits were necessary in order to recover all damages to the decedent and damages to all parties entitled to distribution, one by the personal representative for damages to the decedent, and one by the kindred who had sustained loss. In the other three cases the Court held that the first suit filed, either by the personal representative or one of the kindred, was the suit that should be tried because the rule 'first in time, first in right' applies. In Mississippi Power & Light Co. the Court noted that the distribution of the proceeds of the judgment was controlled by Miss.Code Ann. § 11-7-13 (1972).

The rights of parties in suits filed under our wrongful death statute are next considered.

1. If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by one of such persons, there can only be one suit for the benefits of all entitled to share in the distribution. The damages recoverable in such suit are punitive damages, pain and suffering of the deceased and damages 'that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship.' (260 So.2d at 844).

We are not unmindful of the provisions that only one suit may be filed under the statute. In its earlier form the personal representative was not authorized to maintain an action under the wrongful death statute. Originally, the provision for one suit under the statute was intended to prevent each person entitled to distribution from filing a separate suit, so that only one suit would be filed for all entitled to distribution. After the statute was amended authorizing the personal representative to maintain an action for the benefit of all entitled to recover, the language with reference to one suit was not changed.

We must consider it in pari materia with Miss.Code Ann. §§ 91-7-231 and 91-7-233 (1972) which...