319 F. Supp. 1364 | N.D. Miss. | 1970
MEMORANDUM OPINION
In this Mississippi-based diversity action, Albert N. Wright and wife, Grace Wright, citizens of Indiana, sue three defendants, Standard Oil Company, Inc., a Kentucky Corporation, D. L. Collums, Standard Oil’s local agent in Lee County, Mississippi, and Dennis E. Tutor, company truck driver, for doctors’, hospital, nursing and other medical expenses, and also for loss of services during minority, arising from bodily injuries sustained by their minor child, Douglas Wright. After a three-day nonjury trial and submission of briefs, the matter is now ripe for decision, the court having carried with the case motions for summary judgment filed by each side.
The accident in question occurred in Lee County, Mississippi, on July 5, 1963, at about 9:45 a. m. when Tutor, acting in the course of his employment for the other defendants, was operating a gasoline truck north on U. S. Highway 45 at or near the south edge of the city limits of Tupelo. Traveling at a speed of not more than 32 m. p. h. in an area having a posted 45 m. p. h. speed limit, Tutor was in the east lane for northbound traffic, at a point opposite Herring’s Grocery Store located west of the highway, when plaintiffs’ five-year old child, Douglas Wright, crossed the highway on foot going easterly and was struck by the truck as he crossed the centerline of the highway and was about to enter upon the east lane. U. S. Highway 45 is a two-lane concrete surface highway 20 feet in width with a graveled shoulder of varying widths on each side. It was a clear, bright day and the gasoline truck was carrying a load of 6300 gallons. Tutor was familiar with the vicinity, having made almost daily business trips on this highway, and was aware that from Verona north to Tupelo there was almost continuous residential and commercial development fronting the highway.
On this occasion Tutor, whose position in the cab placed him 7 feet above ground level, first noticed several small children on the east side of the highway almost directly opposite Herring’s Grocery Store; he momentarily took his foot off the gas but as these children moved back from the highway, he did not
The evidence discloses that Douglas Wright had accompanied his parents on a trip from Gary, Indiana, and had arrived the night before at the home of relatives who resided on the east side of U. S. Highway 45 directly opposite Herring’s Grocery Store. The following morning, when Douglas wanted milk for his breakfast, his mother gave him money and told him to get his father, who was then at the north end of his brother’s front yard assisting in cleaning a truck, to take him across the highway to purchase milk at the grocery store. The boy, clad only in swimming trunks and barefooted, relayed this information to Albert N. Wright, who took Douglas in his arms and walked westerly across the highway to the store which fronted upon the highway about 60 feet west of the westerly edge of the concrete surface. Wright put his son on the ground near the store’s entrance, and the child went at once into the store. Without waiting for his son, Wright then recrossed the highway, proceeding somewhat northeasterly to rejoin his brother in cleaning the truck. Wright did not see his son when he came out of the store and was oblivious not only to his son’s actions but also to existing highway traffic conditions, despite the fact that he knew it was generally a heavily traveled highway. Approximately 10 minutes after he had left his son in front of the store, Wright’s attention was attracted by noise caused by the truck which, having struck Douglas, was braking and stopping. Both Wright and his wife knew that it was dangerous for their young son to attempt to cross the highway unattended. Wright testified that he told Douglas not to recross the highway alone but either get Gary Wright, a kinsman who worked inside Herring’s Grocery Store, to assist him or call him. However, Wright did not propose to wait for his son to buy the milk and come out of the store, and left almost immediately.
Plaintiffs contend that defendants’ truck driver failed to keep a proper lookout as, in the exercise of ordinary care, he should have seen Douglas Wright in time to sound his horn and slow, swerve or stop his truck, and these negligent omissions were the proximate cause of the accident; that neither plaintiff was guilty of negligence which contributed to the accident, either to bar recovery or to reduce allowable damages under Mississippi’s comparative negligence statute;
I.
The primary issue, which is a fact question, is whether defendants’ truck driver was negligent in his failure to observe Douglas Wright’s presence upon the highway in time to take action to avoid the accident. Defendants contend that Tutor was not negligent in this regard because the child ran directly from behind a Tupelo city bus parked on the west shoulder, into the roadway and against the side of the truck’s left front fender, so as to afford the driver no fair opportunity either to see the danger or take any evasive action.
Resolving the conflicts arising from the evidence, the court finds that as Douglas Wright came from the store, he was carrying a carton of milk under his arm, and ran at a 45° angle northeasterly across the graveled driveway and other open area in front of Herring’s store toward the L. E. Wright truck shop. No bus or other vehicle was parked on the west side of the highway obscuring the presence of the child as he continued to run onto the west graveled shoulder looking at his father *who was east of the highway; and without halting the child continued his running across the 10-foot west traffic lane directly into the path of defendants’ northbound truck.
A northbound motorist traveling not more than 75 feet behind defendants’ truck saw Douglas Wright when he was approximately 20 feet west of the pavement, observing that, as the child ran, he was not looking for northbound traffic. From Herring’s Grocery there was then an unobstructed view to the south for a distance of several hundred yards with no vehicles parked directly in the line of sight, nor other objects blocking clear view except a fairly large tree and a mail box (38" in height) in front of the grocery store; the tree was 20 feet and the mail box was 17 feet from the western edge of the pavement. There is an evidentiary basis for concluding, as we do, that the child’s presence was observable by one in the position of Tutor for at least 5 seconds. During that time interval, Douglas Wright ran a distance of not less than 27 feet in open view of the truck driver before reaching the center of the highway; and one-half of the distance so traveled was definitely within the highway right of way; and for that same interval the truck, moving at 32 m. p. h., traveled approximately 230 feet. Yet Tutor was wholly unaware that the child was running toward his lane, and he did not, prior to the impact, blow his horn, apply brakes, or slow his truck in any manner. Had he seen the danger, Tutor stated he could have stopped the truck at its rate of speed within a distance of 45 feet; and when brakes were actually applied the truck traveled 65 to 70 feet beyond the point of impact.
The physical facts clearly demonstrate that, contrary to defendants’ contention, the child did not run into the side of the truck but was struck by the truck’s front end, at a point beneath the left headlight. The overwhelming evidence compels the inference that Douglas ran into the high
The court further finds that a few minutes after the accident occurred and before the gasoline truck was moved, a southbound Tupelo city bus stopped on the west shoulder of the highway at a motel north of Herring’s Grocery to pick up passengers, and a few minutes later left on its journey. This was the bus parked in front of the motel which was seen by certain witnesses following the accident.
Because of the foregoing we must conclude that, even though Tutor was driving at a reasonable rate of speed and otherwise obeying the rules of the road, defendants may not escape liability since Douglas Wright, while crossing the highway, came within the range of the driver’s vision in sufficient time for him, in the exercise of ordinary care, to have seen and avoided striking him, and this omission proximately contributed to .the accident. Failure of a driver to keep a reasonable lookout constitutes negligence, and he must continue on the alert for pedestrians and others using the highway.
We regard as inapposite to the present facts the Mississippi cases cited by defendants which deny recovery where the child darts from a parked vehicle or other place obscuring his presence, so suddenly as to make it impossible for the motorist to avoid hitting the child.
More analogous to the lookout issue is the twice-tried case of Gray v. Felts, 241 Miss. 599, 131 So.2d 454 (1961), and Gray v. Turner, 245 Miss. 65, 145 So.2d 470 (1962). On both occasions, the Mississippi Supreme Court set aside, as contrary to the clear weight of the evidence, jury verdict in favor of a motorist who, at about dusk dark, struck a child who was crossing a city street which had an open, unobstructed width of 24-26 feet and when the child had gotten almost across. The defendant testified she was looking ahead but saw nothing until the moment before striking the child. While the physical facts regarding lookout in Gray are somewhat more condemning than here, the Court’s following holding is especially applicable:
*1371 “It is incredible that defendant would not have seen [the child] running almost all the way across the street, if [defendant] had been keeping a lookout, had her car under control, and was exercising reasonable care.”6
Finally, we are unpersuaded by the argument that the presence of other children near the east side of the highway at the time of Douglas’ emergence upon the pavement distracted the truck driver and that he should be cleared of any finding of fault for not seeing plaintiffs’ child. This plea has a hollow ring because Tutor admittedly gave only momentary concern to the children he observed, deeming it unnecessary to blow his horn or slow his truck, and he continued on his journey. The mere circumstance that other children were also on or near the highway is simply not sufficient to exonerate the truck driver in light of the weight of the evidence which clearly points to a careless lookout.
II.
While an infant of 5 years is incapable of being negligent, the law imposes a duty upon the parent having his care and custody to exercise ordinary care for the child’s safety, and where a parent’s failure to do so contributes proximately with the negligence of third persons to cause injury to the child, the parent is guilty of contributory negligence.
However, before further considering the influence of the comparative negligence statute upon the present case, it is necessary to examine briefly certain contentions, advanced for varying reasons by both the plaintiffs and defendants, that the statute is not here applicable.
First, plaintiffs contend that Albert Wright, the child’s father, was not guilty of any negligence which proximately contributed to the accident. We summarily reject this argument because the undisputed facts show that Wright, who was cognizant of the danger to his son’s crossing the highway unattended, failed to exercise ordinary care under the circumstances. In going to the store the child was on merely a brief errand, yet Wright failed to remain with him, issuing vague instructions to the child on how he should recross the highway. Wright did not take any step to assure that his son might return in safety. On the contrary, Wright himself returned to the east side of the highway without maintaining any surveillance whatever for his son, and stayed in a position where he could be easily seen by the child upon his exit from the store and who would be attracted by the sight of his father and would naturally want to go to him. Wright was absolutely heedless to the rational thought that his young son might become endangered by acting impulsively or showing immature judgment expected of a 5-year old child. Under these circumstances, Wright’s conduct
To supersede Wright’s original negligence, the conduct of the intervenor (Tutor) would have to be “so extraordinary and dangerous to himself or to others” that Wright “could not ‘have realized that a third person might so act.'"
Second, defendants contend that their affirmative defense of the assumption of risk constitutes an absolute bar, which renders it unnecessary to consider the comparative negligence of the parties. Assumption of risk as a complete defense is a viable doctrine in Mississippi in cases other than master and servant relationships,
“(1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.”
Even more recently the state Supreme Court
Reverting to the comparative negligence statute, which we hold to be here applicable, our task becomes that of a trier of fact: viz, to compare the negligence of the truck driver with' the negligence of Wright, since we have determined the negligence of both concurred in proximately contributing to the accident. By the statute’s command, we are directed to assess “the amount of negligence” attributable to Wright, compare it with the “amount of negligence” attributable to Tutor, and reduce damages proportionately. Since there is no fixed rule for making such ascertainment, we, as a fact finder, must proceed upon practical judgment that finds support from the credible evidence. Our duty is “to consider all the facts and circumstances in evidence, meanwhile weighing preponderances, drawing inferences, balancing hypotheses, and comparing delinquencies in the light of * * * experiences as reasonable and honorable men.”
III.
Before considering damages, it is necessary that we examine Mrs. Wright’s contention that her claims in this parent’s suit are independent of those of Albert Wright and her recovery, therefore, should not be diminished on account of his contributory negligence. Prior to and at all times since the accident, Al- ' bert Wright and Grace Wright have resided at East Gary, Indiana, with Douglas and other children of their marriage. Albert Wright, who was 52 years of age when the accident occurred, has been gainfully employed as a steel mill worker, while Mrs. Wright, then 46 years old, was employed as a janitress in a public school. Their income from these services was pooled for the family’s support. After Douglas was injured, Mrs. Wright quit her job and has devoted practically her entire time to looking after Douglas who, because of his injuries, has required special care. While the evidence does not show Mrs. Wright has or has had any separate estate, she has agreed, jointly with her husband, to pay some of Douglas’ medical expenses.
It is clear that on the day of the accident Mrs. Wright was not personally negligent by merely consenting for Douglas to cross the highway with his father or by entrusting her son’s safety to her husband, since she could not reasonably foresee that Albert Wright would be careless in parental duty. Nor does the record disclose any facts which justify invoking legal principles of agency to impose upon Mrs. Wright vicarious responsibility for her husband’s acts. Defendants argue that since Mrs. Wright would be chargeable with the negligent acts of a third person to whom she might entrust temporary custody of a 5-year-old child,
Furthermore, we recognize that under Mississippi law, which we accept as here controlling on all substantive questions since that jurisdiction is the forum state, the situs of the accident, and has contacts with the parties more significant than has Indiana (whose law defendants argue should control as plaintiffs’ domiciliary state), the negligence of the husband is not to be imputed to his wife merely because of the marital relation.
Wholly apart from the question of imputing negligence to Mrs. Wright, the determinative issue on her claim is whether Albert Wright is the sole owner of the parent’s right of action for the consequential damages for loss of Douglas’ services during minority and expenses of his cure. Upon undisputed evidence, we conclude as a matter of law that he is so entitled arid Mrs. Wright has no independent cause of action against the defendants. It has been generally held throughout the nation that the father, rather than the mother, is the parent entitled to sue a tortfeasor for consequential damages for injury to his unemancipated child, especially where both parents and the child live together and the father furnishes or contributes to their support, and ordinarily the cause of action devolves upon the mother only upon the father’s death, desertion of the family or other cause.
Although no state decision appears to be exactly in point, Mississippi has often recognized and applied the underlying principles which have caused most jurisdictions to hold that ordinarily the parent’s suit belongs to the father. The state Supreme Court has held not only that the father is entitled to the services and earnings of his minor child,
We reject plaintiffs' contention that in Mississippi the mother, by statute, has been granted a right of action against the tortfeasor equal to the father’s. While Miss.Code Ann. § 399,
We also hold distinguishable the cases cited by plaintiffs which arise under the state’s wrongful death statute
While the reasonable value of nursing services which Mrs. Wright performed for Douglas is, without doubt, a proper element of damage, such services, where rendered to the injured child without actual compensation are a constituent part of the parent’s right of action held by Albert Wright, and they may not be considered as the basis for a divisible action which can be separately maintained by Mrs. Wright and not subject to the legal effect of her husband’s contributory negligence. Mississippi recognizes the general common law rule, which remains unaltered by any statute, that the services of the wife performed either while assisting the husband in his business,
IV.
Finally, we determine that the evidence establishes with reasonable certainty the parent’s total damages to be $187,104.92. Since this sum must be reduced by two-thirds on account of Albert Wright’s contributory negligence, plaintiffs’ recovery in this action is adjudged to be $62,368.31. Our computation of the elements of damage and re
Immediately following the accident on July 5, 1963, Douglas Wright, taken to a hospital at Memphis, Tennessee, was found to have a spinal fracture, with resulting paraplegia. On July 16, thoracic laminectomy was performed, revealing a completely transected cord. Several weeks later he was transferred to Methodist Hospital at Gary, Indiana, where additional surgery was done and he remained until October. The spinal injuries left Douglas without feeling in his body from his waist down and without control of bowel and urinary functions. An indwelling catheter and bag were first used for control of urine but after resulting complications a series of surgical operations took place over the next several years which ultimately bypassed the bladder and provided for urine discharge through a stoma, an opening made at the navel. This enabled Douglas to wear a special urine collecting device. Upon his discharge in October from Methodist Hospital, Douglas next entered the Rehabilitation Institute of Chicago
During the summer of 1964, however, Douglas regained an ability, with the aid of braces and crutches, to stand for short periods of time, climb small stairs and become, to a degree, independent in daily living. In the months which ensued Douglas, with the Institute’s expert instruction, gradually increased his independence, learned to put on and remove his braces, partially dress and undress himself, transfer about, and himself do most daily activities, except for toilet and getting in and out of the bathtub. Mrs. Wright ceased intervening to empty the urine bag (which was used before the stoma operation) while Douglas was at school, at home or elsewhere. Although he spent much time in a wheelchair, Douglas’ outlook was excellent and there were no great emotional problems occasioned by his disabilities. By November 1966 he had learned to walk very well, doing a swing-through gait. Although the excretory functions during the day became fairly manageable, at night he wore a diaper and had no bladder program. Because of complications which developed from a spastic, urogenic bladder, additional hospitalization for removal of bladder stones and urological surgeries at Children’s Memorial and Presbyterian-Luke’s Hospitals, in Chicago, became necessary during stated time intervals in the 1967-70 period. In July 1968 the stoma surgery heretofore mentioned was performed, and two revisions have since been made.
At time of trial Douglas was 12 years old and in the sixth grade. Considering the gross nature of his disabilities, he has made an excellent overall adjustment. He regularly takes piano lessons, bowls, attends church and participates in outdoor activities. Each day for a period of two hours in the morning he needs assistance in bathing, with his toilet and massage; only limited assistance is needed in dressing. Weather permitting, he is then rolled in his wheelchair to school several blocks away; otherwise, he goes by car, which requires lifting him in and out of the automobile. Upon arrival at school Douglas attends to himself until the lunch period, when he usually goes home, or if not, until the end of the school day. After school he takes physical therapy three times a week, which requires additional transportation. At bedtime he is bathed, again massaged, and during the night he must be turned at regular time intervals.
The evidence reveals with reasonable certainty that a scoliosis, or an abnormal curving of the spine, has developed, becoming progressively worse, and this condition will very likely cause Douglas to undergo surgery for a spine fusion to restore stability. This operation will require hospitalization for two months, then followed by home convalescence for an additional six months, which would
The evidence also discloses that prosthetics needed for a “high-level paraplegic”, such as long-leg braces, special shoes, knee locks, hip locks with attached back brace, will have to be regularly releathered, reconditioned and replaced to allow for Douglas’ growth. Similarly from time to time his wheelchair will have to be reworked, reconditioned and replaced.
In our loss computation we have allowed all items of accrued cure expenses which are supported by bills or by reasonable estimate. In some respects we have reduced plaintiffs’ estimates relating to additional costs of maintenance and travel expenses, where they appear somewhat excessive. Principally, we have rejected as exorbitant plaintiffs’ demand that the damages should include standard charges for a licensed practical nurse 24 hours a day for home care for Douglas up to the date of trial. Licensed practical nurses were not at any time engaged by the family. The nursing service was actually performed by Mrs. Wright who quit her $850 monthly job to care for Douglas after obtaining instruction from the Rehabilitation Institute. Unquestionably, this home care provided by the mother exceeded the services ordinarily required of the parents or other family members; such care had, in our judgment, a reasonable worth of $20 per day, exclusive of the time spent by Douglas in hospitals. We conclude this is fair compensation when all circumstances are considered. During the past several years such nursing has been less demanding than in the early stages of the child’s rehabilitation. As a practical matter, Mrs. Wright, who has acted commendably, has largely performed these ministrations in the home, and was able to schedule them so as to carry on her . other household duties. Although Dr. Betts, the Medical Director of the Rehabilitation Institute, expressed an opinion that Douglas needed the services of practical nurses 24 hours a day, yet that conclusion is contradicted by his medical records which emphasized the desirability for Douglas to be on his own as much as possible and not impeded by over-protective assistance. Furthermore, the whole circumstances of the case clearly rebut that a necessity existed for licensed practical nurses. In our view, a reasonable worth has been assigned to the mother’s care rendered in the home without pay.
Next, with respect to the parent’s future expenses reasonably and likely to be incurred until Douglas attains 21 years of age, we hold that the undisputed medical opinions, as well as the subsequent facts as to spinal surgery, justify the recognition of substantial additional charges for continuing care of Douglas’ urological and orthopedic problems. There will be further reasonable costs for Douglas’ maintenance and for necessary orthopedic appliances. The vicissitudes will also require the incurring of additional transportation costs. These items, which must rest upon projected estimate of plaintiffs, have been revised and reduced only where necessary. We reject, however, as exorbitant plaintiffs’ demand that the parent will reasonably incur licensed practical nursing expenses for the next 8 y2 years at a cost of $27.25 per 8-hour shift for 24 hours of each day. There is no credible evidence supporting such a claim or proof Douglas will necessarily have to have services of that character provided for him at home, except during the time that he may be convalescing from spinal surgery, the cost of which, including professional nursing care, has already been calculated in the future medical expenses. On the whole evidence, the court concludes that
Finally, we have allowed $6,000 as reasonable value for the parent’s loss of the child’s services during minority. Notwithstanding the impossibility of showing outside earnings, this figure appears reasonable in view of the assistance that the parent might well expect Douglas to render in the home during the last ten years of his minority.
In line with our computation, we direct the entry of judgment for plaintiffs for $62,368.31.
. Miss.Code Ann. § 1454:
“In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.”
. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952).
. Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487 (1941) ; Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66 (1946) ; Robertson v. Welch, 242 Miss. 110, 134 So.2d 491 (1961).
. McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603 (1952).
. Agregaard v. Duncan, 252 Miss. 454, 173 So.2d 416 (1965) ; Moseley v. Bailey, 193 So.2d 729 (Miss.1967). Cf. Tidwell v. Ray, N.D.Miss., 208 F.Supp. 952 (1962).
. Gray v. Turner, supra, at 472.
. 67 C.J.S. Parent and Child § 46, p. 749.
. Westbrook v. Mobile & Ohio RR Co., 66 Miss. 560, 6 So. 321 (1889).
. Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824 (1913). Cf. Tombigbee Mill & Lumber Co. v. Hollingsworth, 162 F.2d 763 (5 Cir. 1947).
. 67 C.J.S. Parent and Child § 41c, p. 743.
. Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850 (1935). See Sturdivant v. Crosby Lumber & Mfg. Co., 218 Miss. 91, 65 So.2d 291 (1953).
. Illinois Central R Co. v. Underwood, 235 F.2d 868 (5 Cir. 1956), cert. denied 352 U.S. 1001, 77 S.Ct. 557, 1 L.Ed.2d 546.
. McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350, 176 So. 395 (1937) ; Sax-ton v. Rose, 201 Miss. 814, 29 So.2d 646 (1947).
. Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558 (1962). Assumption of risk is “a jury question in all but the clearest cases”, Prosser, Law of Torts, 454 (3rd Ed.1964), a statement approved in Daves v. Reed, 222 So.2d 411 (Miss.1969).
. Daves v. Reed, supra.
. Circuit Judge Waller, speaking for the Fifth Circuit, in Tombigbee Mill & Lumber Co. v. Hollingsworth, supra.
. 89 Am.Jur., Parent and Child, § 84, p. 730:
“Although there are a few decisions to the contrary, it is established by the*1374 decided weight of authority that if the parents of a child intrust it to the temporary custody of another, and the negligence of the custodian contributes to an accident resulting in injury to the child, such negligence is, on principles of agency, imputed to the parents and has the same effect on their right to recover as if they themselves had been guilty of the negligent act.”
. Harper & James, The Law of Torts, Vol. II, § 26.18, p. 1414 et seq. Prosser on Torts, 3rd Ed. § 71, p. 490. See also Restatement of the Law, Torts 2d, §§ 487 and 491.
. McCorkle v. United Gas Pipeline Co., 253 Miss. 169, 175 So.2d 480 (1965); Marr v. Nichols, 208 So.2d 770 (Miss. 1968) ; Woodard v. St. Louis, San Francisco R Co., 418 F.2d 1305 (5 Cir. 1969).
. 67 C.J.S. Parent & Child § 41, pp. 742, 743; 39 Am.Jur. Parent & Child, § 87, p. 733. Many states have enacted statutes regulating the parent’s right of action, some of which are merely declaratory of the general common law while others modify it in varying degrees. Mississippi has no statute which expressly deals with this type of action.
. 39 Am.Jur., Parent & Child, § 38, p. 640.
. 39 Am.Jur., Parent & Child, § 74, p. 718.
. Ibid, § 74, pp. 718, 719.
. Marlar v. Smith, 134 Miss. 76, 98 So. 338 (1924).
. Boyett v. Boyett, 152 Miss. 201, 119 So. 299 (1928) ; Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960) ; Rasch v. Rasch, 250 Miss. 885, 168 So.2d 738 (1964) ; McInnis v. McInnis, 227 So.2d 116 (Miss.1969).
. Boyett v. Boyett, supra.
. Lane v. Webb, 220 So.2d 281 (Miss. 1969).
. Brookhaven Lbr. & Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484 (1923). In Adams, the Court said (p. 485) :
“Assuming for the sake of the argument that ordinarily the right to compensation for the appellee's reduced earning capacity during his minority would be in his parents, that right was here necessarily waived, for his father, in whom the right primarily rests, brought this suit and obtained the judgment himself as the appellee’s next friend.” (Emphasis added.)
. Miss.Code Ann. § 399, reads in part:
“The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor.”
. Rasch v. Rasch, supra, 168 So.2d at 744:
“We repeat again, however, what has been said by this Court in many cases, that the father is primarily charged with the duty to support his minor child.”
. Mississippi follows the general rule that the mother of an illegitimate child is vested with right of action against the tortfeasor. Illinois Central R Co. v. Sanders, 104 Miss. 257, 61 So. 309, 44 L.R.A.,N.S., 1137 (1913).
. Miss.Code Ann. § 1453. That statute provides in relevant part:
*1376 “In such [death] action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. * * * [I]f the deceased has no husband, nor wife, nor children, the damages shall he distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.” (Emphasis added.)
. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482 (1929) ; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 (1949). Cf. Standard Dredging Corp. v. Henderson, 150 F.2d 78 (5 Cir. 1945), construing death benefit section of Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 909(d).
. Cox v. Cox, 183 So.2d 921 (Miss.1966).
. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436 (1950).
. Cox v. Cox, 183 So.2d 921, quoting 26 Am.Jur., Husband and Wife, § 9, p. 637.
. See Ann. 90 A.L.R.2d 1337. A leading case on the subject is Johnson v. Rhuda, 156 Me. 370, 164 A.2d 675, 90 A.L.R.2d 1314 (1960), which discusses similar holdings from various jurisdictions.
. Accrued expenses of cure (7-5-63 to date of trial)
(a) Charges for hospitals, doctors, professional nursing, drugs and orthopedic appliances 27,344.92
(b) Extra cost of child’s maintenance due to injuries, including additional clothing, bed clothing and other personal essentials 3,006.00
(c) Transportation expenses reasonably and necessarily incurred by parents to get Douglas to hospitals, doctors, school and other places, including hotel and plane tickets 4,000.00
(d) Special care and nursing provided to. Douglas in the home (2038 days, exclusive of all days in hospital) at $20 per day 40,760.00
Total accrued expenses 75,104.92
Future expenses of cure (calculated for 8)4 years until Douglas attains his majority):
(a) Hospital, doctors, professional nursing and drugs necessary and reasonable to be incurred for continuing care of child’s urological and orthopedic problems, including necessary cost of spinal fusion surgery 16,000.00
(b) Repairing and replacing wheelchairs, braces and other orthopedic appliances 5.500.00
(c) Extra cost of child’s maintenance 7.500.00
(d) , Necessary travel to hospitals, doctors, school and other places 2,000.00
(e) Special care and attention in the home (exclusive of 6 months’ professional nursing during convalescence from spinal fusion surgery) at $25 per day 75,000.00
Total future expenses of cure 106,000.00
Loss of child’s services to parent during minority 6,000.00
Parent’s total damages 187,104.92
Less two-thirds for comparative negligence 124,736.61
Net Recovery Allowed $62,368.31
. All but $74,193.50 of plaintiffs’ demand is for nursing services, $123,313 as accrued expense and $253,588 as future costs.
. The court has reopened the proof to allow the submission of a stipulation that Douglas Wright on November 17, 1970, underwent a spine fusion operation at the University of Minnesota Hospital, and is now in the recuperative phase of such surgery,