41 So. 263 | Miss. | 1906
delivered tbe opinion of tbe court.
Tbe eigbtb instruction given for tbe plaintiff was as follows: “If under tbe foregoing instructions tbe jury should find for the plaintiff, they will, in computing tbe amount of tbe damages, assess as compensatory damages su,ch damages as tbe boy, Edward, sustained up to tbe time of bis death, taking into consideration injuries which be received, and tbe. mental and physical suffering which be endured. You will fix tbe amount of such compensatory damages at such sum as .in your judgment is fair and just, and as would be reasonable compensation to said Edward for bis injuries. Tbe amount of such damages cannot be proved by evidence, but tbe amount of same is largely in your discretion, governed by a sense of justice and right. In addition to tbe damages you may assess as having occurred to said Edward in bis lifetime, you will assess tbe pecuniary damages that the. plaintiff may have sustained by tbe death of said Edward. And in fixing upon tbe amount of such pecuniary damages; you will take into consideration tbe
The last clause of this instruction was,, under the facts of this case, manifest error. The instruction does not even say that the plaintiff should recover prospective gratuities which she had a reasonable expectation of receiving from her son, Edward, after he became twenty-one years of age. It is not all possible gratuities which can be recovered in a case, even where gratuities are properly recoverable, but only such gratuities as there is a reasonable expectation of receiving; and the reasonableness of the expectation of receiving gratuities in the future must be based on evidence that gratuities have been received in the past. Further than this, it is also true that in a suit of this sort by the mother, the extent of recovery, before majority of the child killed, is the value of the services of the child from the time of death up to majority, plus such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child killed between the injury and death, to which must also be added any such gratuities as the evidence may show the mother had a reasonable expectation of receiving before or after majority, and also whatever sum the son might have recovered as the present value of his own expectancy. These four elements of damage are all proper.
The case of Railroad Co. v. Watley, 69 Miss., 145 (s.c., 13 South. Rep., 182), laid down the rule that, in an action by the parent for the negligent'killing of his child, the measure of his damages was “compensation limited to the actual pecuniary loss sustained, on the theory of the parent’s right to the services of the child during minority.” But to this we think should now be added, under Laws of 1898, ch. 65, p. 82, the other three elements of damage named. This act changed the rule announced in Railroad Co. v. Pendergrass, 69 Miss., 425
In view of the fact that the court below charged the jury that they should not award punitive damages, we must accept the verdict as having excluded them. Aside from the errors indicated, we think this record free from errors, and but for them would unhesitatingly affirm the judgment.
Reversed and remanded.