*1 /
CASES AÉGÜED AND DETERMINED THE
IN SUPREME COURT OF MISSISSIPPI
AT THE TERM, MARCH 1925. Co. V. R. M. Barringer.* Yazoo & (In 2, 1925.) Banc. March [103 So. 86. No. 2385.] 1. Under Death. atives the declaration to cause of his death. th'e consideration all certain of the decedent’s relatives and his cedent left tives or any chapter damages provides surviving and all Declaration need not personal creditors, any parties as the relatives or creditors that an action for representative him, /Laws or that relatives allege damages jury may interested in the that or the evidence to disclose that allege (section of the decedent determine every suffered wrongful suffered decedent surviving; kind suit, any creditors, due the decedent and actual Hemingway’s it is left actual for the benefit of or, just, unnecessary surviving damage. if he left rel- and recover damage taking brought the de- Code), rela- into be- expectancy damages 2. Death. Value decedent’s not element decedent. action, appear In such an shall the decedeiit left no designated statute, only damage relatives of class decedent, which, can be is that sustained recovered event, present net value in that of the decedent’s ex- life pectancy is not element. damages, only prove On actual nominal Death. failure recoverable.
(296) & March., M. E.V. Co. v. Appellant.
138 Miss.] Brief for action, In such an when no actual to the decedent either designated proven, of his relatives been *2 nominal recovered the case is one can be unless punitive damages.' of infliction ^ dissenting Ethbidge, X, part. in X, 141; X, Death, Death, 1. 17 C. section 2. C. section *Headnotes Death, X,
197; 190. 17 C. section 3. county. Quitman circuit court of Appeal Judge. A. Alcorn, Hon. W. Jr., Barringer, es- C. Action C. against Mississippi the Yazoo & Dalton, tate of Charlie Company. Judgment Valley plaintiff, and. Railroad appeals. Reversed remanded. defendant ap- Lowrey Minor N. Burch, <& H. D. and G. Lamb, pellant. rights conferring ac- certain of 1922
I. The Act illegitimate applicable here. an is not death of for the tion passed April in- while here the death 1922, It was 8, February present ac- and the 1922, occurred volved February of 1922 1922. The Act instituted tion was given-a v. Van retroactive effect. Eastin will not 14 & M. 127; 214; S. Wilcox, Brown v. Dorn, Walker v. Lumber 379; Richards Beaumont, Miss. Garrett Miss. 691. Go., chapter section Act of
II. Under only right for the Hemingway’s action Code, illegitimate a child in favor of is of an death the death mother or the the mother death particu- eaypressiounius, the rule child. Under of the derogation common is in larly where the illegiti- right for the death exists no of action law, 77 Miss. Johnson, case. Railroad other mate 78 Miss. Williams, A. & R. R. Go. v. 732; V. so illegitimacy of decedent proof
ITT. as to overwhelming existed, no real conflict & M. B.V. Co. v. Appellant. Brief for [138 should have been so And instructed. this court should judgment enter now the circuit as court should by reversing dismissing. done— Notwithstanding preponderance great IY. against legitimacy evidence was the»' of the decedent, the question jury by instructing court took that from the illegitimacy them twice that the of decedent nowas bar recovery to a clearly this action. This was error, for, right there no under stated, of action Act of chapter illegitimate 1914,- for the death of an male except proof in his mother, here shows that de- years cedent’s mother in 1909—thirteen died or more be- fore the of decedent. right wrongful
V. No for a action death existed *3 right at common law. such a If is claimed a under stat- ute, it must be found within four corners of the statute Kirkpatrick Ferguson, itself. 116 Miss. v. 885. conferring right AVT. action for the wrongful illegitimate derogation death of an strictly. law must common and supra; construed Rail- Johnson, Williams, road supra. A. é V. R. R. v. Co. v. VII. The decedent in case left neither this consort, parent, nor brother. No debts were child, sister, shown, expenses being by county paid even his funeral charitable citizens. In any no whatever
VIII. event were sus- tained decedent remote collateral relatives of damages, should bé allowed, nominal. $ v. I. R. 369; Burke 125 Cal. G. R. Co. v. 8. Railroafl, p. 841-2; 120 Miss. 8 B. Boone, 659; L., sec, 117, C. Jack- Ry. v. Bordic, v. Co. Bowden, 461; sonville Co. 54 Fla. St. (111.), (C. A.), 40 C. 138 Fed. 942; N. E. v. Johnson Swift Mfg. 876; Miss. 896. Co. v. 122 Alexander, appellee. Lotterhos,
M. E. Denton and H. F. & R. 299 M. Y. Co. v. March., Bakringer. Appellee. Miss.] Brief 138 is final The verdict of settlement single pulls up by point argument the rest of the having it been roots, because established that Charlie earning capacity legitimate Dalton was was justify appellee the amount of verdict, sufficient peremptory to a instruction, have been entitled would having appellant admitted that his death was due to its negligence. though aside a verdict be-
The court will not set
contrary
weight
to the
lieve the verdict
F.
Boxoles,
Louis & S. B. B. Co. v.
107 Miss.
evidence. St.
968.
will not be
64
A verdict
disturbed unless
So.
97,
on which to
it.
there is
evidence”
base
I. C. B. B.
“no
80 So. ready yet that the ad- admit, however, am I not proven even if it had been recover, ministrator could illegitimate. the com- Dalton was Under that Charlie causing remedy for no there law, course, mon beginning Camp- person, with but Lord the death rapidly away from that unrea- drifted Act, bell’s we.have judges under It was said some doctrine. sonable *4 cheaper to kill man than that it was law, the common damages might merely be ob- because to him, wound gotten away rapidly have for the latter. We tained says except if the dead man that counsel that, cheaper illegitimate, kill him than to is still an it is you if he can dam- lives, sue because him, wound Campbell’s My Act was ages. that Lord is, recollection years, many but thereafter came in this the law state 1914, Laws of then Aéts of 1904, the Acts of 1898, rights extended the have the Laws of 1922, they bring illegitimates chose. their own-name suit 300 & M. E.Y. Co. v. Appellee.
Brief for [138 Miss. discussing’ question as to Without whether the Act of illegitimates might 1922 think retroactive, was I 1914, sued under the Act of not in their own name, be- right only given cause that mothers and children, right through given but the to sue administrator persons, including illegitimates. to all very a statute similar to Under it has ours, been held proven that even it where there are no heirs, the is entitled to recover in full and that the per- be amount recovered shall administered as other property. personal says, repre- sonal court “the wrong- is entitled to recover sentative taking away life itself; ful it and, therefore, makes injured party whether the no difference was killed in- stantly it or not. does matter Nor, that the re- assets of estate covered become administered personal upon property as other of the deceased, and designated persons go provided to certain do not Campbell’s Act.” Lord Perham v. Portland Gen. Elec- Eep. 53 Pac. Co., 451, 14, 33 Ore. 72 Am. St. tric 40 779; E. Anderson 103 Wetter, A. L. v. Me. L. E. 257,15 A. (N. S.) McCarty 1003; Lbr. Co., v. Wood 219 Mass.-566, N. E. 439. 107 upon depending are not survival
Such statutes statutes of the cause action, inheritance but create independent right recognized of action, new and at Ohnesorge Chicago City law. v. the common B. Co., B. Chicago Brown & N. 819; 102 N. E. B. Co., W. B. 152 Light $ 347; 129 Minn. Peers N. v. Nevada W. Fed. 119 400. Co., Water legitimacy
I is admitted that the counsel, believe competently proved could Dalton of Charlie mem- family family were familiar with who bers history. any At rate, authorities clear on the Chamberlayne Champion point. 4 2932; on sec. Evidence, McCarthy, (N. 228 111. 81 N. E. L. E. A. Ency. S.) E. 10 C. L. 1052; etc.; Evidence 743; p. L., sec. Note E. C. *5 & R. Co. M. Y. March., Barringer. Yazoo Appellee. for Brief 138 Miss.] argument appellant for of counsel on their think the I damages merely that should has nominal, contention argument They fully on my the facts. show, been met Mr. friend the deceased, that Geo. Turner, however, voluntarily put up pay for fifteen dollars to the burial George expenses. was a would friend Charlie’s although he had known that Charlie had have done this proof money bank. But there is that Charlie against provable it is still at least that much and owed probate no notice to their because creditors his estate published; and must he admitted that has been claims collect at this administrator should least amount as may yet proved against which amounts be well as other possibly cannot error and that there the estate, complained of, in the instructions informed prevented finding jury not a verdict were might notwithstanding for.appellee, the fact that he illegitimate. been argued that because the death was instan- also,
It is, appellee pain entitled recover taneous, argue suffering, were, etc. We did not that we but appellee say that is entitled “to such does the statute just, taking damages determine to as the damage every kind the dece- consideration the into parties every to all inter- kind all dent and ’ ’ in the suit. ested Argued orally by appellant, H. Minor for and M. E. D. appellee. Denton, opinion delivered the the court. J., C.
Smith, ap- Dalton was and killed one of the Charlie struck employees pellant’s charge thereof its trains while violating Hemingway’s section Code were 6671, and suit Code, section recovery therefor. parent, child, brother, Dalton left neither nor wife, brought surviving being for the bene- him; the suit sister payment fit of other collateral relatives & M. Y. R. Co. . *6 Opinion the Court. [138 any might debts be have owed. The declaration does not allege any and the evidence not does disclose that he owed cripple, debts. He a was addition was able to hear very and talk to a limited because of- extent, earning capacity practically nothing his largely was and he lived charity. vicinity
on He did live or with not any any his relatives is not shown to had social intercourse with them. prior death occurred to
Dalton’s the enactment of chapter appellant Laws the introduced illegitimate evidence that Dalton an was child on the theory illegitimate if that he left no relatives for whose damages benefit can be recovered; but, as will herein- appear, legitimacy illegitimacy after the or of Dalton’s birth be cannot here material. jury plaintiff:
The court below for instructed the the although may they “That believe from the evidence illegitimate Charlie Dalton was child, that ’’ finding plaintiff. a bar to their a for verdict the they although may “That believe from the evidence legitimate surviving Dalton left no Charlie relatives yet they or if him, by wrongful believe that he was killed creditors, the act or omission of the defendant as com- plained jury of in the the then declaration, should re- plaintiff, notwithstanding jury the turn a verdict for the ’ ’ may surviving he left no or find that heirs creditors him. plaintiff, “That a for find verdict then the damages jury jury may at sum should fix the as the taking just, to determine the evidence into con- damages every all of the to sideration kind Charlie damages every kind and all to Dalton, himself, ’ ’ parties suit. and all interested jury to instruct The court refused defendant (1) (2) general return a or it, verdict allow only; plaintiff jury but instructed the nominal plaintiff punitive for the defendant not to dam- allow physical ages “anything or on account of mental suffering Dalton at time he endured Charlie was killed.” E. & M. Y. Co. v.
March., Opinion of the Court. Miss.] plaintiff jury returned verdict five judgment accordingly. there thousand dollars, (section Hemingway’s Chapter Laws wrong- Code), provides an action for personal brought “may in the name of the ful death person, representative for the benefit of the deceased persons under the law to and “in recover,” entitled all parties suing party or shall recover such such action damages just, taking determine in- every damages of ail the kind to consideration de- *7 any par- damages every kind to and all all cedent and providing After the in the suit.” order interested ties damages among distributed the shall be next in which the the continues: statute kin, have neither or husband, “If the or wife, deceased or or father, mother, sister, brother, or go then children, legal representative, damages sub- shall to the the general ject the distribution, fact that debts to instantly killed not affect shall the the deceased was representative legal right to recover.” of the provision with the it The then concludes that statute illegitimate apply children on of the “shall account on to the mother account of the of the mother and illegitimate etc. children,” child or death of personal representative of an the Under this statute legitimate illegitimate decedent as well as of has damages right fo'r the recover decedent’s to sue charged duty wrongful with the death, and dis- tributing in when recovered accordance with provisions If the left of the statute. decedent no participate entitled relatives under the who persons only who can share then in distribution, any he had. his if creditors, therein are only such as the here recovered are decedent that can be the evidence discloses his rela- suffered, himself only no assistance or other financial tives not received expectation had no him but whatever, benefits doing Dalton’s death instantaneous, ever so. any appears not have earned sub- he could & M. Y. R. Co. v.
Opinion of [138 tlie Court. money expec stautial amount of had lived out his life tancy, contrary, if the were but to the evidence no recov ery therefor. could had Belzoni Hardwood Co. v. Mrs. Cinquimani (Miss.), 102 Nellie So. 470. appellant’s expenses
One contentions that the necessarily incurred the burial of the decedent is an damage element of actual him an action to recover wrongful expenses, may death. his Such of course, be, paid by included in debts of the decedent and his duty administrator when it become under the statute pay expenses decedent’s debts. Whether such jury taken into consideration in award- ing damages pre- for the decedent’s death is not here sented record does not decision, disclose that expenses consequently incurred; were we will express opinion no thereon. damages having
No actual accrued to the decedent, appellee’s recovery must be limited to dam- nominal ages, Corpus unless the Juris, circumstances surrounding injury the infliction of the warrant the im- position damages. punitive
This'brings appellant’s us to the contention that find illegitimate, should that Dalton was an *8 damages punitive, then no actual or whatever, or, at most, damages only, nominal should for since allowed, Dal- any ton not shown to have left is there creditors would illegitimate, persons by he was an no to benefit be, the damages. provisions recovery of Under one of the of forth, the hereinbefore set where the decedent left specifically none of the named in relatives tlie the statute, legal damages go representative subject the to debt provision general distribution. When this of the operative, damages statute becomes the become all part practical purposes general a of the decedent’s es- tate to be distributed to and those creditors entitled the under statute thereto. recovery the administrator sues for the
Where by which, sustained his intestate when recov- part being of the become estate administered ered, & M. B. Co. v. 30'5 V. March., Opinion the Court. Miss.] necessary in him order not recover that is him, of creditors or existence distributees, he show the here. no different the rule is holding point court on this of the under similar Corpus page in at set forth Juris,
statutes follows: as authorizing the statutes action the bene
“Under persons, designated action the no lies unless time fit at decedent;s desig are or more of death there one the although in existence, beneficiaries there is some nated authority every in that the action to the effect case lies injured person could have maintained an ac where the injury if had not ensued. other tion for the Under recovery for the benefit es decedent’s statutes designated in in all default of cases, either bene tate, prior given right, and under ficiaries such statutes the although lie decedent left neither action will widow, nor next of nor even kin, creditors.” widower, child, foregoing appellee views that follows from It permitted to. have been recover should actual damages, limited but should been to nominal dam- ages punitive damages, one for the case is unless express opin- are not accord and we we no to which ion thereon.
Reversed and remanded. (dissenting part). I J. dissent from that Ethrídge, says: opinion part damages having accrued to the decedent, “No actual recovery appellee’s must limited to nominal dam- Corpus ages, unless circumstances Juris, 1322, sur- injury imposi- rounding warrant the infliction damages.” punitive tion expenses brought opinion my the funeral about
In killing wrongful of the decedent actual because the estate decedent is decedent, *9 expenses charged the funeral, and such ex- with the against penses preferred claim estate the the are Hemingway’s 1906; Code of 2113, under section decedent 138 Miss.—20. & M. Y. E. Co.
Opinion tlie Court. [138 Miss. necessary It is section 1761. Code, declara- the payment expenses, tion to show the actual of funeral nor administrator has that the incurred them before he may may recover. He sue before notice to creditors has any person published, may and may been incur and them, published. claim therefor after the his notice is probate It expended actually not the amount is that is recover- may a reasonable able, but amount sued and recovered. expenses
IAs understand the funeral authorities, are part compensatory of the be recov- party party of a for the death the ered sue where entitled to expenses. charged duty with the funeral It is the pay expenses of the executor or the expenses preference funeral last illness other claims. Murphy & In v. N. Y. C. H. R. 88 N. Co., R. Y. 445, the court held: necessary expenses
“The amount of the funeral an pecuniary damages item of the suffered the dea^h obliged pay party them, here these ex- upon plaintiff, penses fell the husband of the de- brought action was benefit ceased. of him- and under section 11 children, self and his of the act, chapter he was Laws entitled to receive one-third of amount recovered, two- other among divided-equally were children.” thirds Murphy supra, syllabus In case, is said: (chapter under “In action Laws chapter 1870), Laws of as amended to re- causing negligence death, cover the neces- proper expenses sary are of the deceased funeral items damages, where of those whose benefit the ac- expenses; brought legally pay such bound to tion is competent.” proof therefore, thereof is, & R. G. Co., In the Petrie v. Columbia S. case C. effect; held to same E. the court 7 S. *10 & M. V. E. Co. v. Barbingeb. 3Ü7 March, Opinion of the Court. Miss.] 138 by a for death wrong- also suit suit being inflicted. fully Augusta Factory 87 Davis,
In of Ga. 13 the case court the said: S. E. was fifteen of daughter years age,
“The plaintiff’s the 8th injured on 1890. She day January, and was the day until the 24th same when she month, survived is for the action loss of her injuries. of her died in expenses and incurred her last services, labor and burial. The the negligence and defend- illness, and consequent the death was injury' caused ant which the machinery unsafe child work in furnishing of the defendant employment as she being with, mill. its This tort negligence laborer in cotton it. The plaintiff, from according resulted the death be entitled to would recover authorities, all the better him in by consequence incurred expenses the necessary of the for the loss labor and compensation also it, and minor was dis- daughter of his services time.she 2 on Thompson died. injury Negl., until she abled & Lawson, Eem. notes; Eights, Pr., section 1272 3 1016.” Railway Co. see Southern v. Co the same effect,
To venia, 40 L. R. A. 62 Am. S. E. Ga. Rep. St. Brockschmidt, Owen Mo.
In the case held that the funeral state ex court of that supreme that case in following In were recoverable. penses objected to, assigned jury, given struction was for error: this suit is brought
“The are instructed, benefit, own recover damages for their the plaintiffs in consequence Mrs. Owen occurred to allowed to have done to injury child’s and not death, of her find for the plain and that itself, jury, they child fair and in just think sum will award such tiffs, plaintiffs resulting necessarily view of the injury that, estimating death; child’s consequence & M. Y. R. Co. v. Opinion [138 Court. damages, they anything plain these cannot allow to the pain suffering on or tiffs account of inflicted on said child, anguish †1 nor feelings the mental wounded plaintiff, anything Mrs. nor Owen, on account of funeral expenses child,” etc. *11 condemning
In that case the court in this instruction (54 page 289) said atMo. :
“Again asserting this instruction was in erroneous nothing expenses;’ to be for ‘funeral allowed expenses anything be one must, can, of the most injuries necessary resulting obvious and ’from death.” L., See, Co., I. & also, Rains v. St. M. R.S. R. 71 Mo. Rep. 164, 36 Am. Pennsylvania
In
Lilly,
the case of
Co. v.
In the
in that
Co. v.
case,
page
Ind.
73
at
it is held:
254,
by parent
“It well
in an action
settled
that,
death of
entitled to recover
his
child,
pecuniary injury
proper
sustained,
he has
that the
value of the child’s
measure
is the
services
injury until
from the time of
he would have
attained
majority,
prospects
taken
connection with his
"in
support
and maintenance. To
ljfe, less his
expenses
proper
of care and
cases, the
attention
added,
necessary
injury,
by the
funeral
made
ex-
child,
penses
Thompson, Negligence,
and medical
2
services.
Negligence,
2
Shearman &
section
1292;
Redfield,
608;
1925] &M. R.
309
March,
V.
v.Co.
Barringer,.
-
Opinion
tlie
Court.
138
I
Cooley
2
270;
& Defenses, 477;
Torts,
Waits’ Actions
par.
Tin
1273; Ohio,
R.
v.
Torts,
Addison
R. Co.
etc.,
To the Wright, 134 Ind. R. v. 793; etc., 2 N. E. R. Co. Louisville, Moore, N. E. Indiana R. v. 314; 34 Southern R. Co. 609, (Ind. 1904) 516; App. La. E. 107 Sweet, 71 N. Le Blanc v. Rep. Houghkirk 31 Am. v. 303; So. 90 St. 355, 766, Rep. 44 Am. N. 370; Canal 92 Y. Delaware,etc., Co., (N. Pennsyl Y.) Ormsby, 270; Roeder v. 22 How. Prac. Pennslyvania 318; Pa. R. R. R. 33 Zebe, vania R. Co. v. v. 495; R. R. Co. Bantom, Missouri, etc., v. 54 Pa. Co. App. R. 16 R. 80; Tex. 41 S. W. Citizens’ Evans, Civ. App. Washington, 58 1042; S. W. 24 Tex. Civ. Co. v. P. Co., 714; 30 v. etc., Hedrick Ilwaco Wash. R., Meyer Hastings, 713; Hart, 27 La. Ann. McCubbin v. App. R. Y. R. Co.v. 904; Gulf, N. Div. S. etc. Philby App.), (Tex. 592; 30 S. W. Civ. Southwick Railway P. 173, 89 Co., Northern Wash. Pacific *12 (N. Rep. 13 Ann. S.) 123 Am. St. 9 L. R. A.
Cas. 742. supra, Ry. the court Co., v. N. Philby
In P. the case (Wash state departed that earlier decisions from the expenses adopted ington) funeral rule that and damages. page pecuniary At as were recoverable of 13 Ann. the court said: Cas. imposes upon the finan- the husband
“The wife’s pay. expenses At he must funeral which cial burden of bury inwife his deceased to he bound common law was expenses necessary defray a manner, suitable Cyc. 273. Such possessed means, thereof in one sense expenses while exactly estimated, can be they may wife, death of have ensued from the resulting di- strictly speaking, loss a financial more are, negligent rectly another.” acts of from the 743), (13 report Cas. page Ann. On the same said: second the court column, rel. ex Witherspoon State West.
Syllabus. [X38 Murphy "In New Cent. York R. etc., Co., N. Y. only an act construed, was and the court not expenses held that funeral could recovered, but also recognized pecuniary damages them be an item of plaintiffs obliged pay, one of the ordinary from the which were different allowed by reason of the statute.” nothing,
It seems to me that could clearer than the expenses directly, logically, fact that the funeral flow necessarily from the death, and under our law the de- pay expenses funeral cedent must out of his estate, pecuniary damage a to him. it is Whatever damage person’s pro- estate is a himself. Our statute clearly vides suit be maintained where there none of the classes named very in existence, and this suit under the express language although of the statute exists the death certainly propo- was instantaneous. It a reasonable person wrongfully sition to hold who inflicts death expenses upon pay the another should of his funeral. ex rel. v. State Witherspoon West.* 1925.) (In Banc. March [103 24544.] So. 134. No. excerpt copy journal deposited For Senate Evidence. secretary with state to be admissible in evidence must be by him. certified *13 secretary deposited journal has After Senate secretary state, required by with the Senate section (Hemingway’s Code, 5408), secretary of 1906 section Code legal thereof, copy excerpt is the custodian and for a state journal to be admitted evidence under from the section Code, 1628), (Hemingway’s section must be cer- Code secretary by the of state. tified to