Vicksburg Railroad, Power & Manufacturing Co. v. White
82 Miss. 468
Miss.
1903
Check Treatment
Price, J.,

delivered the opinion of the court.

This case was before this court once before (31 South., 109), *470upon an appeal from a peremptory instruction given for the defendant below, and the case was reversed and remanded because this court was of the opinion that the question of negligence, on the facts shown, was one for the jury. The facts, as now presented by this record, do not change our former opinion on that subject. On the trial of this ease in the court below, the plaintiffs, after showing the death of Ike White, showеd that Flora White, his wife, and their children, aged twelve and fourteen, were his only heirs, and introduced, over defendаnt’s objection, mortality tables showing the life expectancy of persons from thirty to fifty years of age; but therе was no evidence of the life expectancy of the two children. It is further shown, and not disputed, in the evidenсe that these mortuary tables are made up by actuaries from a list of selected risks, persons belonging tо an arbitrary class. It is further shown by the expert, Flannigan, that the tables are made up of persons of sound body and mind, having no physical defects ‍​​​​‌‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‍or constitutional troubles, and of correct habits. The plaintiffs introduced no еvidence to show that the deceased or any of the plaintiffs belonged to the class from which such tables are made; in fact, introduced no evidence of the physical, constitutional, and mental soundness of аny of the parties. This being true, the appellant insists that the giving of the following instructions for the plaintiffs below was error, and furnished no guide for the measure of damages: “The court instructs the jury for the plaintiffs that, if they should believe from thе evidence that the plaintiffs are entitled to recover, then, in estimating the actual damages sustained by рlaintiffs by the reason of the death of Ike White, they may, as to the right of recovery on the part of the childrеn of.Flora-White, take into consideration what would be the net earnings of Ike White during their minority, as they may believе the proof shows the said children might reasonably be expected to live, as they may believe is shown by the рroof; *471and. that as to the plaintiff, Flora White, they may, if they believe from the evidence that the plaintiff is entitled to recover, take into consideration in estimating the actual damages resulting from the death of Ike White, what would be the reasonable amount per year for the support and maintenance of the said Flora White for the numbеr of years ‍​​​​‌‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‍which a woman of her age, as shown by the proof, might reasonably be expected to live, аs shown by the proof, unless they believe from the evidence that she would outlive the said Ike White. But if they believed from the evidence that he would die before her, then her damage should be calculated on the basis of his lifе.”

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, Northаmpton, 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, etс., 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, sаid: “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 fоundation of the tables. The instruction assumes that Ike White would have lived until the children were of age. It also assumеs 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 *472(Neb.), 45 N. W., 41; Hunn v. Mich. Cent. R. Co. (Mich.), 44 N. W., 502, 7 L. R. A., 500. In Roose v. Perkins (Neb.), 2 N. W., 715, 31 Am. Rep., 409, it was held that the foundation was properly laid for the introduction of the mortality tables, as. the party was shown to be strong, heаlthy, and robust.

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 а reasonable amount per year for the support and maintenance for the number of years a wоman 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 thаt 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 nеcessary 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.