Vicksburg Railroad, Power and M. Co. v. White

• Decision Date: 11 May 1903
• Citation: Vicksburg Railroad, Power and M. Co. v. White, 34 So. 331, 82 Miss. 468 (Miss. 1903)
• Court: Mississippi Supreme Court
• Parties: VICKSBURG RAILROAD, POWER AND MANUFACTURING COMPANY v. FLORA WHITE ET AL

34 So. 331

82 Miss. 468

VICKSBURG RAILROAD, POWER AND MANUFACTURING COMPANY v. FLORA WHITE ET AL

Supreme Court of Mississippi

May 11, 1903

FROM the circuit court of Warren county. HON. GEORGE ANDERSON Judge.

Mrs White and others, appellees, were plaintiffs in the court below; the Vicksburg, etc., Company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts upon which the decision is based are stated in the opinion of the court.

Reversed and remanded.

Smith Hirsh & Landau, for appellant.

The court, notwithstanding the objection of appellant, permitted George T. Flannigan to testify concerning the expectancy of life.

The age of Flora White being forty-seven years, at the time of the death of Ike White, that was the proper age to be considered by the jury. Now the witness was directly asked, as shown, to give a man's expectancy of life. What should have been asked was the expectancy of life of the female, Flora White. Again, while the questions were confined to the expectancy of a man's life, commencing at the age of thirty years, there was no attempt made to show by any question asked, the expectancy of the two children of Flora White, to wit: Rosalie White, age fourteen, and Louis White, a male, age thirteen. If testimony of this sort is admissible at all, over the objection of appellant, certainly the expectancy of life of the parties to be benefited under the rule in the Crudup Case, should also be shown by proper and direct questions. The mere filing of tables of mortality, over the objection of appellant, will not cure the error. Illinois, etc., R. Co. v. Crudup, 63 Miss. 291.

Theodore McKnight, for appellee.

The mortality tables were clearly admissible in evidence. If there was a failure of proof to show any of the parties to be of the class from which the tables were made, this is not cause for reversal. The case stood as if the tables were never introduced, and of course it cannot be assumed that they misled the jury. Without the tables the jury, from the evidence as to age, etc., and from the appearance of the parties, could have rightfully determined their respective expectation of life.

Argued orally by J. Hirsh, for appellant.

OPINION

PRICE, J.

This case was before this court once before (31 South., 709), upon an appeal from a peremptory instruction given for the defendant below, and the case was reversed and remanded because this court was of the opinion that the question of negligence, on the facts shown, was one for the jury. The facts, as now presented by this record, do not change our former opinion on that subject. On the trial of this case in the court below, the plaintiffs, after showing the death of Ike White, showed that Flora White, his wife and their children, aged twelve and fourteen, were his only heirs, and introduced, over defendant's objection, mortality tables showing the life expectancy of persons from thirty to fifty years of age; but there was no evidence of the life expectancy of the two children. It is further shown, and not disputed, in the evidence that these mortuary tables are made up by actuaries from a list of selected risks, persons belonging to an arbitrary class. It is further shown by the expert, Flannigan, that the tables are made up of persons of sound body and mind, having no physical defects or constitutional troubles, and of correct habits. The plaintiffs introduced no evidence to show that the deceased or any of the plaintiffs belonged to the class from which such tables are made; in fact, introduced no evidence of the physical, constitutional, and mental soundness of any of the parties. This being true, the appellant insists that the giving of the following instructions for the plaintiffs below was error, and furnished no guide for the measure of damages: "The court instructs the jury for the plaintiffs that, if they should believe from the evidence that the plaintiffs are entitled to recover, then, in estimating the actual damages sustained by plaintiffs by the reason of the death of Ike White, they may, as to the right of recovery on the part of the children of Flora...