Yazoo & M. V. R. Co. v. Barringer

• Decision Date: 02 March 1925
• Docket Number: 2385
• Citation: Yazoo & M. V. R. Co. v. Barringer, 103 So. 86, 138 Miss. 296 (Miss. 1925)
• Parties: YAZOO & M. V. R. CO. v. BARRINGER. [*]
• Court: Mississippi Supreme Court

103 So. 86

138 Miss. 296

YAZOO & M. V. R. CO. v. BARRINGER. ^[*]

No. 2385

Supreme Court of Mississippi

March 2, 1925

(In Banc.)

1 DEATH. Declaration need not allege decedent left surviving relatives or creditors, or that relatives suffered actual damage.

Under chapter 214, Laws 1914 (section 501, Hemingway's Code) which provides that an action for wrongful death may be brought by the personal representative of the decedent for the benefit of certain of the decedent's relatives and his creditors, and recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind due the decedent and to any and all parties interested in the suit, it is unnecessary for the declaration to allege or the evidence to disclose that the decedent left any relatives or creditors surviving; or, if he left relatives surviving him, that they suffered any actual damage because of his death.

2 DEATH. Value of decedent's expectancy not element of damages to decedent.

In such an action, if it shall appear that the decedent left no relatives of the class designated in the statute, the only damage that can be recovered is that sustained by the decedent, of which, in that event, the present net value of the decedent's life expectancy is not an element.

3. DEATH. On failure to prove actual damages, only nominal damages recoverable.

In such an action, when no actual damages either to the decedent or any of his relatives designated in the statute have been proven, only nominal damages can be recovered unless the case is one for the infliction of punitive damages.

ETHRIDGE J., dissenting in part.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Action by C. C. Barringer, administrator of the estate of Charlie Dalton, against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Lowrey & Lamb, H. D. Minor and C. N. Burch, for appellant.

I. The Act of 1922 conferring certain rights of action for the death of an illegitimate is not applicable here. It was passed April 8, 1922, while the death here involved occurred February 3, 1922, and the present action was instituted February 22, 1922. The Act of 1922 will not be given a retroactive effect. Eastin v. Van Dorn, Walker 214; Brown v. Wilcox, 14 S. & M. 127; Garrett v. Beaumont, 24 Miss. 379; Richards v. Lumber Co., 101 Miss. 691.

II. Under the Act of 1914, chapter 214, section 501, Hemingway's Code, the only right of action for the death of an illegitimate is in favor of a child for the death of the mother or the mother for the death of the child. Under the rule of expressio unius, particularly where the statute is in derogation of the common law, no right of action exists for the death of an illegitimate in any other case. Railroad v. Johnson, 77 Miss. 732; A. & V. R. R. Co. v. Williams, 78 Miss. 214.

III. The proof as to the illegitimacy of decedent is so overwhelming that no real conflict existed, and the jury should have been so instructed. And this court should now enter such judgment as the circuit court should have done--by reversing and dismissing.

IV. Notwithstanding the great preponderance of the evidence was against the legitimacy of the decedent, the court took that question from the jury by instructing them twice that the illegitimacy of decedent was no bar to a recovery in this action. This was clearly error, for, as stated, there is no right of action under the Act of 1914, chapter 214, for the death of an illegitimate male except in his mother, and the proof here shows that decedent's mother died in 1909--thirteen years or more before the death of decedent.

V. No right of action for a wrongful death existed at common law. If such a right is claimed under a statute, it must be found within the four corners of the statute itself. Kirkpatrick v. Ferguson, 116 Miss. 885.

VI. A statute conferring a right of action for the wrongful death of an illegitimate is in derogation of the common law and must be construed strictly. Railroad v. Johnson, supra; A. & V. R. R. Co. v. Williams, supra.

VII. The decedent in this case left neither consort, child, parent, sister, nor brother. No debts were shown, even his funeral expenses being paid by the county and charitable citizens.

VIII. In any event no damages whatever were sustained by the remote collateral relatives of decedent and the damages, if any are allowed, should be nominal. Burke v. Railroad, 125 Cal. 369; G. & S. I. R. R. Co. v. Boone, 120 Miss. 659; 8 R. C. L., sec. 117, p. 841-2; Jacksonville Co. v. Bowden, 54 Fla. 461; St. Ry. Co. v. Bordic, (Ill.), 40 N.E. 942; Swift v. Johnson (C. C. A.), 138 F. 876; Mfg. Co. v. Alexander, 122 Miss. 896.

M. E. Denton and F. H. Lotterhos, for appellee.

The verdict of the jury is final and the settlement of this single point pulls the rest of the argument up by the roots, because it having been established that Charlie Dalton was legitimate and that his earning capacity was sufficient to justify the amount of the verdict, appellee would have been entitled to a peremptory instruction, appellant having admitted that his death was due to its negligence.

The court will not set aside a verdict though it believe the verdict to be contrary to the weight of the evidence. St. Louis & S. F. R. R. Co. v. Bowles, 107 Miss. 97, 64 So. 968. A verdict will not be disturbed unless there is "no evidence" on which to base it. I. C. R. R. Co. v. Smith, 102 Miss. 276, 59 So. 87. A verdict based upon conflicting evidence is conclusive. M. & O. R. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; St. L. & S. F. R. R. Co. v. Moore, 101 Miss. 768, 58 So. 471; Thompson v. Poe, 104 Miss. 586, 61 So. 656; W. O. W. v. McDonald, 109 Miss. 67, 68 So. 74; Mardis v. Y. & M. V. R. R. Co., 115 Miss. 734, 76 So. 640; Estes v. Jones, 119 Miss. 142, 80 So. 576.

I am not yet ready to admit, however, that the administrator could not recover, even if it had been proven that Charlie Dalton was illegitimate. Under the common law, of course, there was no remedy for causing the death of a person, but beginning with Lord Campbell's Act, we have rapidly drifted away from that unreasonable doctrine. It was said by some of the judges under the common law, that it was cheaper to kill a man than merely to wound him, because damages might be obtained for the latter. We have rapidly gotten away from that, except that counsel says that if the dead man is an illegitimate, it is still cheaper to kill him than to wound him, because if he lives, he can sue you for damages. My recollection is, that Lord Campbell's Act was the law in this state for many years, but thereafter came the Acts of 1898, Acts of 1904, Laws of 1914, and then the Laws of 1922, which have extended the rights of illegitimates to bring suit in their own name if they chose. Without discussing the question as to whether the Act of 1922 was retroactive, I think illegitimates might have sued under the Act of 1914, not in their own name, because that right was only given to mothers and children, but the right to sue through an administrator is given to all persons, including illegitimates.

Under a statute very similar to ours, it has been held that even where it is proven that there are no heirs, the administrator is entitled to recover in full and that the amount recovered shall be administered as other personal property. The court says, "the personal representative is entitled to recover damages for the wrongful taking away of life itself; and, therefore, it makes no difference whether the injured party was killed instantly or not. Nor, does it matter that the damages recovered become assets of the estate to be administered upon as other personal property of the deceased, and do not go to certain designated persons as provided in Lord Campbell's Act." Perham v. Portland Gen. Electric Co., 33 Ore. 451, 53 P. 14, 72 Am. St. Rep. 730, 40 A. L. R. 779; Anderson v. Wetter, 103 Me. 257, 15 L. R. A. (N. S.) 1003; McCarty v. Wood Lbr. Co., 219 Mass. 566, 107 N.E. 439.

Such statutes are not survival statutes depending upon the inheritance of the cause of action, but they create a new and independent right of action, not recognized at the common law. Ohnesorge v. Chicago City R. R. Co., 102 N.E. 819; Brown v. Chicago & N.W. R. R. Co., 152 N.W. 729, 129 Minn. 347; Peers v. Nevada Light & Water Co., 119 F. 400.

I believe it is admitted by counsel, that the legitimacy of Charlie Dalton could competently be proved by members of the family who were familiar with the family history. At any rate, the authorities are clear on the point. 4 Chamberlayne on Evidence, sec. 2932; Champion v. McCarthy, 228 Ill. 87, 81 N.E. 808, 11 L. R. A. (N. S.) 1052; 10 R. C. L. 1064 etc.; 9 Ency. of Evidence 743; 10 R. C. L., sec. 141, p. 965, Note 13.

I think the argument of counsel for appellant on their contention that damages should be merely nominal, has been met fully in my argument on the facts. They show, however, that Mr. Geo Turner, a friend of the deceased, voluntarily put up fifteen dollars to pay for the burial expenses. George was a friend of Charlie's and would have done this although he had known that Charlie had money in the bank. But there is proof that Charlie owed at least that much and it is still provable against his estate because no notice to creditors to probate their claims has been published; and it must be admitted that the administrator should collect at least this amount as well as other amounts which may yet be proved against the estate, and that there cannot possibly be any error in the instructions complained of, which informed the jury that they were not prevented from...