82 Miss. 468 | Miss. | 1903
delivered the opinion of the court.
This case was before this court once before (31 South., 109),
This instruction was written upon the theory that the deceased or his wife had been shown by the proof to belong to the class of persons upon whom the mortality tables are based. In vol. 15 Am. & Eng. Enc. Law, p. 881, it is said that “the Carlisle, Northampton, or other mortality tables, together with the age and general health of the person, are admitted in evidence by courts for the purpose of showing what is the probable duration of life under peculiar conditions.” These tables are compiled in connection with proof of the health, constitution, habits, etc., of the parties. These tables only show the probable age which a sound and healthy person belonging to the class may expect to reach, whose age is given. In Railroad Co. v. Crudup, 63 Miss., 303, this court, speaking through Justice Cooper, said: “In all cases of this character it must be the expectation of that one who would soonest die which should control.” Who would soonest die in this ease ? The age is shown, but no evidence of the health, physical condition, and habits of the parties are given, placing them in the class of persons or selected risks, which is the foundation of the tables. The instruction assumes that Ike White would have lived until the children were of age. It also assumes that Ike and Flora White were of the class of persons contemplated by the tables. Roose v. Perkins (Neb.), 2 N. W., 715, 31 Am. Rep., 409; City of Lincoln, v. Smith
The third instruction is erroneous in basing the two children’s damages upon the net earnings of the father and during their minority, as the proof shows that he might reasonably be expected to live, and, of course, assumes they will live, during such minority, or that Ike White would have lived during such minority. The instruction is erroneous in basing the damage of Flora White upon a reasonable amount per year for the support and maintenance for the number of years a woman of her age might be expected to live, as shown by the proof; erroneous because there is no proof in the record supporting the instruction that she had any life expectancy; erroneous in assuming that Ike White, the husband, had any life expectancy. It would have been sufficient to show the ages of the plaintiffs and the deceased, their condition of health and constitution, and left the jury to say how long they, or either of them, would likely live; but when one relies upon the mortality tables to show life expectancy it then becomes necessary to show that the party belongs to the class. The mortality tables are made from arbitrary rules, and the class is an arbitrary one, out of the general run of mankind, and one relying upon them must show that the parties come within the class of persons contemplated.
Beversed and remanded.