Cumberland Telephone & Telegraph Co. v. Anderson
41 So. 263
Miss.
1906
Check Treatment
Whiteield, C. J.,

delivered tbe opinion of tbe court.

Tbе 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 considerаtion injuries which be received, and tbe. mental and physical suffering which be endured. You will fix tbe amount of such compensatory damagеs 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 tbе damages you may assess as having occurred to said Edward in bis lifetime, you will assess tbe pecuniary damages that the. plaintiff may havе sustained by tbe death of said Edward. And in fixing upon tbe amount of such pecuniary damages; you will take into consideration tbe *744loss to the mother of the services of Edward until he would have arrived at the age of twenty-one years, and ‍‌​‌‌​‌‌​​​​​​‌‌​‌​​‌​​​​‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌​‌​‍the loss of prospective gratuities from Edward to his mother after he became twenty-one years of age.”

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 expeсtation of receiving gratuities in the future must be based on evidence that gratuities have been received in the past. Further than this, ‍‌​‌‌​‌‌​​​​​​‌‌​‌​​‌​​​​‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌​‌​‍it is alsо 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 mentаl 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), lаid 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 *745(s.c., 12 South. Rep., 954), that there could be no recovery at all when death had been instantaneous, and then, in fixing the amount of damages, uses this language: “The party suing shall recover such damages as the jury shall assess, taking into consideration all damages of every kind to any and all parties.” Code 1892, § 663, reads: “Thе jury may give such damages as may be fair and just with reference to the injury of the parties suing.” The change is very marked, and we think the legislaturе intended, and by this act meant to authorize, a recovery, in a suit of this character, not only of the value of the services of the infant until majority, but such damages as the jury might reasonably award for the physical and mental suffering endured by a decedent between the injury аnd death, however short that time may be, and damages for the other two elements named above. And in' view of this construction of the statute we are not prepared to say that thé verdict in this case was excessive, without regard to the question whether punitive damages may be allowed or not in a suit of ‍‌​‌‌​‌‌​​​​​​‌‌​‌​​‌​​​​‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌​‌​‍this character, under Laws 1898, ch. 65, p. 82. That question need not necessarily be decided in this casе. But in view of the fact that there is no proof here of the age of the mother, no proof by mortuary tables or otherwise of her life expectancy, no proof of her habits of life, or any other circumstances from which the jury might judge what her life expectancy might be, and in view of the failure of plaintiff in his instruction No. 8 to use the words “such gratuities as the plaintiff might reasonably have, expected under the evidence she would receive,” it is clear that that clause of the instruction is fatally erroneous. The jury were'told by this instruсtion that they might allow any possible gratuities, not such gratuities as the mother, from evidence that she had received gratuities in the past, might reasonably have expected to receive in the future; -and, again, there is no proof of any gratuity received in the рast; and, again, whatever the mother would get from the child by way of services was what was hers by law, and not a gratuity. An *746infant with a fortune of its own, whо has been giving its parent from that fortune gratuities, may reasonably be expected to continue this in the future to a parent, rich or poor. In a case like this, therefore, where the proof shows nothing except that the minor received but $10 a month, and that there were only seven years between the date of the injury and his majority, and that there had never been any gratuity given by him to his mother, and in which the court below gave an instruction that no punitive damages should be allowed, the only elements of damage which the jury could legally have taken into consideration were the value of the services of the minor to majority and such damages as they might award as reasonable compensation- for the physical and mental suffering endured by the minor between the injury and his death, by damages fоr the other elements named. These four elements, however, are enough to support this verdict so far as the amount is conсerned, since it is for the jury, and not for the court, to fix the amount of damages to be awarded as compensation for mental and physical suffering. The court in a proper case might cut down such amount, but we are not prepared to say in this case that thе amount exceeds what would be proper for tlie four elements of damages stated.

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.