48 So. 735 | Miss. | 1909
delivered the opinion of the court.
This, is an action brought by the plaintiffs, Mrs. Smith,
Going at once to the vital points in the case, we first take up the alleged error in the admission of the mortuary tables. It will be necessary to deal with this assignment of error in two aspects: First, as regards the pleadings; and, second, as regards the evidence.
First, then, as to the pleadings, the declaration has six counts.' Each of these counts closes with specifically enumerated elements of damage, all of which are practically alike, being substantially as follows: “For which pain, suffering, and anguish, mental and physical, and the loss to plaintiffs of his services, support, society, and protection, and the expenses of his last illness and burial,” etc., the said plaintiffs sued. It is manifest that there is no specific express claim, therefore, in the declaration, for the recovery of damages, for the present value of the life expectancy of the deceased. This was a perfectly proper element to have been specifically claimed in the declaration. Telephone Co. v. Anderson, 89 Miss. 743, 41 South. 263. It may be correct to say that if the declaration had not specifically enumerated the elements of damage, but had simply declared for damages generally in a certain amount, the plaintiffs could have recovered all the damages named in section 721, Code of 1906; that is to say, all damages of every kind to the decedent, and all damages of every kind to any and all parties interested in the suit. We think that is a correct proposition. ' Whether, when the plaintiffs choose specifically to enumerate the elements of damage in this suit, they are to be limited to those elements only, as a matter of pleáding alone, it is not in this case necessary to decide; for in this case the defendant made no objection
Turning, now, to the aspect of this assignment of error as regards the testimony, it is to' be observed that the court admitted the mortuary tables in evidence, although the testimony clearly showed the decedent to be an asthmatic, and Cameron, the plaintiff’s witness, expressly testified that, being an asthmatic, he was not in the class embraced by the mortuary tables. It was expressly held in the case of Railroad v. White, 82 Miss. 471, 34 South. 331, that these mortuary tables only show the probable age which a sound and healthy person belonging to the class may expect to reach whose age is given, and that it would be error to permit the introduction of mortuary tables to show the life expectancy of one not within the class of persons for whom such tables are prepared. The same doctrine is laid down in Telephone Company v. Anderson, 89 Miss. 745, 41 South. 263, and Railroad v. Grudup, 63 Miss. 303, and is well settled. It was, therefore, manifest error to allow the introduction of the mortuary tables.
Another manifest error was committed in allowing the plaintiffs to recover the supposed value of the services or earnings of the decedent for the six years between the time of his death, when he was in his fifteenth year, and majority, so far as his
We turn, now, to the only other inquiry, vital in the case, which we think we ought to notice on the present appeal. It is very earnestly argued that a peremptory instruction should have been given for the defendant. We cannot concur in this view, after a most careful and scrutinizing examination of the testimony. The fair deduction from all testimony makes out this case: That this decedent was in his fifteenth year when killed; that he was employed by Emerson under the specific contract that he should pick up the grabbolls and sweep and dust out the room where he was to stay in the mill, and sack up hulls; that he did not actually do this work alone, but, in ad
In respect to appellee’s fourth instruction, it would he safer to leave off the last clause, to the effect that the employer should see to it that the employe comprehends the instructions given. If there may be circumstances, as to which we do not now decide, in some peculiar ease, warranting this clause, we think it would be safer on the new trial to omit this clause from this instruction. The boy here, whilst only in his fifteenth year, was a boy of fully average brightness and intelligence, and there is no evidence in the record whatever that he did not fully comprehend all the instructions that actually were given to him. For these reasons this clause should be omitted from this instruction. The rest of the instruction is unobjectionable. Nor do we think there was any error in the third instruction for the appellees.
We will notice very briefly the peremptory charges asked with respect to each of the six counts. We dispose of them all by saying, for the purposes of the next trial, that this request for peremptory charges should have been overruled as to all the counts except the fifth, and as to that it should have been sustained ; or, what would have been better, that count should have been stricken from the declaration. But all this matter about the framing of a declaration can be attended to by proper amendment of the declaration on another trial.
There is no merit in the objection to the first instruction granted to the appellee. The necessity of the failure to warn, being the proximate cause of the injury, is fully set out in the charges elsewhere and the defendant’s rights fully protected by a number of charges, most skillfully framed.
It would protract this opinion to an unpardonable length to attempt even to treat seriatim the numerous assignments of error. We have dealt with wha.t we consider the vital points in the case, and we do not desire to be understood as having
Reversed and remanded.