Summary
In Nelson, 245 Miss. at 409-410, 146 So. 2d at 73, the supreme court held "each case must be reviewed on the basis of the particular facts involved, including the age of the deceased in a wrongful-death action, his life expectancy, his anticipated earnings, the intensity and duration of suffering, the relationship between the deceased and his survivors, and matters of dependency."
Summary of this case from Huber v. Eubanks (In re Estate of Eubanks)Opinion
No. 42395.
November 5, 1962.
1. Railroads — public crossing — speed of train — lookout — negligence — railroad liable in wrongful death action.
Evidence sustained finding that train's speed of 80 miles per hour over crossing where there was no watchman or other means of warning travelers was negligence which would render railroad liable for death of one who was fatally burned when train struck gasoline tank truck and ripped off tank which exploded.
2. Motor vehicles — negligence — railroad crossing — failure of driver to stop and look.
Gasoline tank truck driver, who did not stop and look at distance of not less than ten feet nor more than fifty feet from nearest track of railroad crossing in town as required by statute, and whose truck was struck by train causing tank to explode and fatally burn foreman of crew unloading grain from boxcar, was negligent. Secs. 7776, 8211(a), Code 1942.
3. Master and servant — driver of gasoline truck, tort of, liability of oil company and operator of bulk plant.
Negligent driver of gasoline tank truck, which was struck by train causing tank of gasoline to explode and fatally burn deceased working nearby, was employee of oil company as well as of operator of gasoline bulk plant, who owned truck, and therefore oil company was liable for death of deceased, where company owned bulk plant property, all petroleum products at plant, and tank on truck, and both company and operator of bulk plant had right to control truck driver, and at time of accident, truck driver was engaged in carrying out business of both company and operator of bulk plant.
4. Courts — damages — wrongful death actions — judicial review.
In matter of damages each action for wrongful death must be reviewed on basis of particular facts involved, including age of deceased, his life expectancy, his anticipated earnings, intensity and duration of suffering, relationship between deceased and his survivors, and matters of dependency.
5. Appeal — damages — measure of — jury verdict — award of Chancellor — appellate review.
Jury has right to measure damages in wrongful death action tried in Circuit Court, and Supreme Court may not rightfully substitute its judgment for that of jury, and Supreme Court will not disturb jury verdict unless it evidences passion, prejudice, or bias; and in wrongful death action tried in Chancery Court, rule is same except that test is whether amount of verdict is manifestly wrong.
6. Appeal — damages — award of Chancellor manifestly wrong — duty of Supreme Court to reverse or order remittitur.
When amount of verdict, when fairly and impartially reviewed, evidences passion, bias, or when award of Chancellor in wrongful death action is manifestly wrong, it is duty of Supreme Court to reverse or order remittitur.
7. Death — damages — award excessive — remittitur ordered.
Award of $150,000 for death of 50-year-old man who died 14 days after being fatally burned, who left widow and four-year-old son surviving him, and who earned $65 per week, was excessive and should be reduced to $115,000.
ON MOTIONJanuary 21, 1963 148 So.2d 712
8. Appeal — costs — appeal resulting in affirmance on condition of remittitur.
Costs on appeal resulting in affirmance on condition of remittitur would be assessed one-half to appellants and one-half to appellees. Sec. 1989, Code 1942.
9. Appeal — damages on affirmance — appeal resulting in affirmance on condition of remittitur.
Five percent penalty could be taxed against appellants only if judgment below was affirmed unconditionally, and could not be imposed on affirmance upon condition of remittitur. Sec. 1971, Code 1942.
10. Appeal — interest — when remittitur is ordered.
When judgment based on tort is reduced in Supreme Court by remittitur in lieu of reversal, judgment bears interest from its date in trial court at statutory rate of six per centum. Secs. 39, 1971, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Pike County; F.D. HEWITT, Chancellor.
Wrongful death action by complainant, Zelda M. Nelson, administratrix of the estate of Percy Nelson, deceased, against defendants, Illinois Central Railroad Company, Standard Oil Company and C.H. Weathersby. From a judgment for plaintiff, defendants appealed. Affirmed with remittitur. Motion to correct judgment sustained in part and overruled in part.
Wise, Smith Carter, Jackson; John W. Freels, W.F. Cerne, Joseph H. Wright, Chicago, Ill., for appellant, Illinois Central Railroad.
I. On the record herein, the trial court should have rendered judgment for defendant, Illinois Central Railroad.
A. The crossing was unobstructed. Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Russell v. Mississippi Central R. Co., 239 Miss. 741, 125 So.2d 283; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650.
B. Every duty imposed by law was performed by the defendant railroad.
1. The whistle was blown. Sec. 7777, Code 1942.
2. Mississippi Law stop sign was in place. Sec. 7775, Code 1942.
3. Railroad provided the public with a convenient crossing equipped with bell, flashing light signals and gates.
4. The emergency brake of the train was applied.
C. The defendant Illinois Central's train had the right of way at the crossing. Illinois Central R. Co. v. Smith, 243 Miss. 767, 140 So.2d 856; Roberts v. Powell (Fla.), 187 So. 766; Tucker v. Dunken, 9 Fed. 867; Willett v. Baltimore O.S.W.R. Co., 284 Ill. App.? 307, 1 N.E.2d 748; 44 Am. Jur., Railroads, Sec. 495 p. 773.
D. The truck driver was guilty of gross negligence in the operation of his vehicle. Carrell v. New York Central R. Co. (Ill.), 52 N.E.2d 201, affirming 47 N.E.2d 130; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Gray v. Felts, 241 Miss. 599, 131 So.2d 454; Illinois Central R. Co. v. Mann, 141 Miss. 778, 106 So. 7; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Louisville N.R. Co. v. Fisher (Ky.), 357 S.W.2d 683; Sec. 8211, Code 1942.
E. The crew of the train was exercising due care. Brookhaven Lumber Mfg. Co. v. Illinois Central R. Co., 68 Miss. 432, 10 So. 66; Brown v. Louisville N.R. Co., 234 F.2d 204; Illinois Central R. Co. v. Underwood, 235 F.2d 868; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; New Orleans N.E.R. Co. v. Keller, 162 Miss. 392, 138 So. 358; Vann v. Tankersley, 164 Miss. 748, 145 So. 642; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50.
F. The speed of the train was customary, normal and within the reasonable limits authorized by the Interstate Commerce Commission.
G. The defendant railroad having been guilty of no negligence proximately contributing to the occurrence, it was error to enter judgment against it. Ivey v. Geisler, 213 Miss. 212, 56 So.2d 501.
II. While on the record, railroad is entitled to judgment, a new trial should be granted if the Court should find there were procedural errors in the trial court that cannot be corrected by it.
A. The trial court erred in refusing to dismiss the case or transfer it to the Circuit Court as requested in motions filed by this appellant.
B. The judgment rendered herein is excessive. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Louisville N.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241; Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297.
C. The Chancellor erred in admitting improper evidence over the objections of the appellant railroad.
III. In the event of affirmance, the judgment of the trial court should reflect the contribution among the three defendants. Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880; Sec. 335.5, Code 1942.
Forrest B. Jackson, Jackson, for appellants, Standard Oil Company and C.H. Weathersby.
I. The cause should have been dismissed or transferred back to the Circuit Court for trial before a jury. Clark v. Louisville N.R. Co., 158 Miss. 287, 130 So. 302; Dunn v. Dent, 176 Miss. 786, 170 So. 299; Louis Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; Sec. 2729, Code 1942.
II. The Standard Oil Company and C.H. Weathersby were entitled to a dismissal for failure to prove negligence of A.M. Pigott, the truck driver, as a proximate contributing cause to the accident. E.I. DuPont de Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34, 145 A.L.R. 1199; Hosley v. Jones, 224 Miss. 725, 80 So.2d 819; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 20 So.2d 825; Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912.
III. The Standard Oil Company should have been dismissed on lack of a showing of agency of Pigott for said Standard Oil Company because he was not an employee and the Standard Oil Company had an independent merchant contract with C.H. Weathersby, the limited commission agent. American Oil Co. v. Fly, 135 F.2d 491; Florida Industrial Comm. v. Orange State Oil Co. (Fla.), 21 So.2d 599; Glenn, Revenue Agent v. Standard Oil Co., 148 F.2d 51; Gordy v. Pan American Petroleum Corp., 188 Miss. 313, 193 So. 29; Gulf Refining Co. v. Wilkinson (Fla.), 114 So. 503; Texas Co. v. Higgins, 118 Fed. 636.
IV. The decree awards excessive damages and is contrary to the overwhelming weight of the credible evidence as to liability and damages. Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; Capital Electric Power Assn. v. McGuffee, 226 Miss. 227, 83 So.2d 837, 56 A.L.R. 2d 403; Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So.2d 443; Gulf S.I.R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Gulf Transport Co. v. Allen, 209 Miss. 206, 146 So.2d 436; Illinois Central R. Co. v. Humphries, 174 Miss. 459, 164 So. 22, 102 A.L.R. 549; Illinois Central R. Co. v. Perkins, 223 Miss. 891, 79 So.2d 459; Illinois Central R. Co. v. Williams, 242 Miss. 586, 135 So.2d 831; Moore v. Johnson, 148 Miss. 827, 114 So. 734; New Orleans N.E.R. Co. v. Harris (Miss.), 71 So. 913, 247 U.S. 367, 62 L.Ed. 1167, 38 S.Ct. 535; New Orleans N.E.R. Co. v. Shows, 240 Miss. 604, 128 So.2d 381; Smith v. Illinois Central R. Co., 214 Miss. 293, 58 So.2d 812; Wilborn v. Balfour, 218 Miss. 791, 67 So.2d 857; Yazoo M.V.R. Co. v. Lee, 148 Miss. 809, 114 So. 866.
V. The Court, in admitting the gruesome and inflammatory photographs, abused its discretion, thereby justifying reversal of this case. Fore v. State, 75 Miss. 737, 23 So. 710; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Illinois Central R. Co. v. Sanders, 229 Miss. 139, 90 So.2d 366; Anno. 73 A.L.R. 2d 787, 789, 841.
B.D. Statham, Magnolia, for appellee.
I. The Chancery Court had jurisdiction of the parties and subject matter of the controversy.
A. An attachment proceeding was a proper proceeding to determine the rights of the parties. Clark v. Louisville N.R. Co., 158 Miss. 287, 130 So. 302; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; Sec. 2729, Code 1942.
B. Morgan Trust Company of New York was not a necessary party defendant. Secs. 849, 1937, Code 1942.
C. No procedural defect exists in the making of the levy and service of process. Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311.
D. The Chancellor was not in error in refusing to transfer the case to the Circuit Court. Matthews v. Thompson, supra; Talbot Higgins Lumber Co. v. McLeod Lumber Co., 147 Miss. 186, 113 So. 433; Sec. 2729, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 505.
II. Standard Oil Company is jointly liable for damages notwithstanding limited agency agreement with C.H. Weathersby. Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880.
III. Standard Oil Company and C.H. Weathersby were guilty of negligence which proximately caused the accident and are jointly liable for damages. Chicago B. Q.R. Co. v. Ruan Transit Corp., 171 F.2d 781; Gray v. Felts, 241 Miss. 599, 131 So.2d 455; Illinois Central R. Co. v. Mann, 141 Miss. 778, 106 So. 7; Illinois Central R. Co. v. Roberson, 186 Miss. 507, 191 So. 494; Peerless Supply Co. Inc. v. Jeter, 215 Miss. 61, 65 So.2d 240; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201; Secs. 7776, 8211(a), Code 1942; 75 C.J.S., Railroads, Secs. 774C(2), 775b.
IV. Illinois Central Railroad Company was guilty of negligence which proximately caused the accident and is jointly liable for damages.
A. The Magnolia Street crossing was unusually dangerous and railroad did not exercise reasonable care in the operation of its train over the crossing. Donald v. Gulf, M. O.R. Co., 220 Miss. 714, 71 So.2d 776; Gulf, M. O.R. Co. v. Golden, 221 Miss. 253, 72 So.2d 446; Gulf, M. O.R. Co. v. Scott, 216 Miss. 532, 62 So.2d 878; Heafner v. Columbus G.R. Co., 185 Miss. 773, 190 So. 1; Illinois Central R. Co. v. Sanders, 229 Miss. 139, 90 So.2d 366; Illinois Central R. Co. v. Williams, 242 Miss. 586, 135 So.2d 831; New Orleans N.E.R. Co. v. Anderson (Miss.), 293 F.2d 97; New Orleans N.E.R. Co. v. Lewis, 214 Miss. 263, 58 So.2d 486; New Orleans N.E.R. Co. v. Ready, 238 Miss. 199, 118 So.2d 185; Stratton v. Southern R. Co., 190 F.2d 917; Tanzi v. New York Central R. Co., 155 Ohio 149, 98 N.E.2d 39; 74 C.J.S., Railroads, Sec. 722.
B. The doctrine of last clear chance is applicable; railroad's engineer and fireman did not exercise reasonable care when peril was noted. Gulf, M. N.R. Co. v. Arrington (Miss.), 107 So. 378; New Orleans N.E.R. Co. v. Dixie Highway Express, Inc., 230 Miss. 92, 92 So.2d 455; New Orleans N.E.R. Co. v. Ready, supra; Sec. 8211(a), Code 1942; 75 C.J.S., Railroads, Sec. 853.
V. The amount of the judgment of the court is not excessive and the same is supported by substantial evidence.
A. No error was committed in admitting photographs as evidence. Barham v. Nowell, 243 Miss. 441, 138 So.2d 493; Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67; Stokes v. State, 240 Miss. 453, 128 So.2d 341; West v. State, 218 Miss. 397, 67 So.2d 336; 9 Am. Jur., Proof of Facts, 183.
B. The amount of the award is supported by credible evidence and was not dictated by passion, bias and prejudice. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Conn v. Conn, 184 Miss. 863, 186 So. 646; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Gulf, M. O.R. Co. v. White, 219 Miss. 342, 68 So.2d 458; Gulf S.I.R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482; Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; Gulf Transport Co. v. Allen, 209 Miss. 208, 46 So.2d 436; Illinois Central R. Co. v. Sanders, supra; Illinois Central R. Co. v. Williams, supra; Laurel Light R. Co. v. Jones, 137 Miss. 143, 102 So. 1; Louisville N.R. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; Moore-McCormac Lines, Inc. v. Armco Steel Corp. (N.Y.), 273 F.2d 873; New Orleans, J. G.N.R. Co. v. Hurst, 36 Miss. 660; Peerless Supply Co. v. Jeter, supra; St. Louis S.F.R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Webber v. United Airlines, 122 N.Y.S.2d 221.
The heirs of Percy Nelson, deceased, brought a wrongful death action against the Illinois Central Railroad Company, herein called Railroad, Standard Oil Company, herein called Standard, and C.H. Weathersby. Chancery jurisdiction was acquired because of attachment features of the case. Judgment for $150,000 was rendered against all defendants, who appealed to this Court.
In view of the general finding of the lower court in favor of appellees, the facts are stated in the light most favorable to appellees, which means that all evidence favorable to appellees is taken as true, together with all reasonable inferences that may be drawn therefrom.
Percy Nelson died as the result of a collision between the northbound train of the Railroad known as the "City of New Orleans" and an eastbound tank truck driven by one Pigott. The truck was owned by C.H. Weathersby. The tank attached to the truck and the petroleum products therein were owned by Standard. The collision occurred at the intersection of the northbound main line track and Magnolia Street in the Town of Magnolia, Mississippi. Magnolia is the county seat of Pike County, with a population of about 2,000. There are two principal streets crossing the railroad inside of Magnolia, one of which is the Bay Street crossing, which is also a local highway. At Bay Street there are signals and gates to protect traffic from entering on the tracks when a train is coming. There are no such devices at the Magnolia Street crossing. The Magnolia Street crossing is one block north of Bay Street. Magnolia Street crossing is immediately north of the depot, which is situated on the east side of the northbound main line track. The depot bay window is about 17 1/2 feet east of the northbound main line track. The Magnolia Street crossing is heavily traveled and the depot agent customarily stood at the crossing to flag traffic when the northbound City of New Orleans passed through the town in the morning. This was not a part of the depot agent's duties. The regular depot agent was not on duty and the extra agent did not flag on the morning when the accident occurred in which Percy Nelson was killed.
On the west side of the railroad between Bay Street and Magnolia Street there are certain evergreen trees and one oak tree situated on railroad property. These trees are located in a parkway between West Railroad Street and the two main lines of the railroad. These trees, except the oak, were in foliage on the day Nelson was killed. The leaves of these trees reached to within about six feet of the ground and the trees extended toward the railroad tracks at varying distances. When a traveler approached the railroad going east on Magnolia Street, the view to the south was obstructed until the driver was within 29 feet of the southbound main line track. The stop sign is located 50 feet west of the southbound main line.
January 17, 1961 was a cold, clear day. The fatal accident occurred at about 8:50 A.M. on that day. The City of New Orleans consisted of two diesel locomotives and nine cars. The train weighed 1,835,340 pounds. The train approached the Magnolia Street crossing it began giving the statutory signals about 3,000 feet south of the crossing and continued to give signals until it collided with the truck. The train was traveling about 80 miles an hour and the brakes of the train were not applied until after it collided with the truck. The truck, driven by Pigott, approached the crossing from the west, traveling on Magnolia Street. There was a pick-up truck stopped at the railroad stop sign 50 feet west of the southbound main line. The Standard Oil Company truck passed the other truck and continued onto the tracks at a speed of 15 to 25 miles per hour and entered onto the tracks without stopping as required by statute. The rear wheels of the truck cleared the northbound main line track a few inches and the train struck the rear end of the tank and frame of the truck. The tank was ripped off the truck and the gas therein and the tank was hurled in a northeasterly direction. There was an immediate explosion. A short time later, after the train had proceeded a distance of several hundred feet, there was another explosion on the engine of the train but the fuel tanks on the train did not explode. The deceased, Percy Nelson, was forman of a crew unloading grain from a box car which was located northeast of the point of impact. Gasoline was sprayed over the body of Nelson and he caught fire. He ran north with his clothes and his hair burning. Bystanders caught him and put out the flames and removed his clothing. Nelson was taken to a local hospital, and later was removed to the University Hospital in Jackson, where he died the 14th day following the accident.
The train's emergency brake system was applied by the engineer sometime immediately after the impact, and the train was stopped about a half mile north of the crossing. The engineer and fireman were killed. Eight people including Nelson died as result of the wreck.
Numerous questions are argued by the several parties, some of which do not warrant discussion.
(Hn 1) The Railroad contends it was not guilty of any negligence contributing to the fatal occurrence, and argues that as a matter of law the case should be reversed and judgment entered here in favor of the Railroad. The Railroad was charged with numerous acts of negligence. We consider only one. It was charged that the Railroad was operating its train at a dangerous, reckless, and negligent rate of speed. We are of the opinion that the trial court was fully justified in finding that the speed of the train under the circumstances was negligence proximately contributing to the collision and death of Percy Nelson, deceased. The fact that the depot agent usually flagged traffic when the City of New Orleans came through was competent to show that because of the high speed of the train under the circumstances it was peculiarly dangerous for people to cross when it was approaching. The driver of the Standard Oil truck had never been flagged and presumably did not rely on any such custom. The speed of the train, coupled with the obstructions on both east and west sides of the crossing, justified the finding of negligence. It was not speed alone nor the obstructions alone, but the speed under the circumstances that justified the finding of negligence on the part of the Railroad. The driver of the Standard truck was required by statute to stop and look at a distance of not less than ten nor more than fifty feet from the nearest track. This Court has said that this presupposes that the railroad company will not so obstruct the view at the crossing that the driver of a vehicle will not see the train if he complies with the statute. While it appears from the evidence that Pigott, driver of the Standard truck, did not stop as the law required, he could have looked and not seen the train because of the trees. Our cases have pointed out that under such circumstances the giving of statutory signals does not always exhaust the duty of the railroad. The Magnolia Street crossing may be a safe crossing if the train is operated at slower speed, but a finding was justified that it was negligent to operate the train across the Magnolia Street crossing at 80 miles per hour without a watchman or other means of warning travelers. G.M. O. Railroad Co. v. Golden, 221 Miss. 253, 72 So.2d 446; I.C. Railroad Co. v. Sanders, 229 Miss. 139, 90 So.2d 366; N.O. N.E. Railroad Co. v. Lewis, 214 Miss. 263, 58 So.2d 486.
(Hn 2) The negligence of Pigott, driver of the Standard truck, was overwhelmingly established. He violated Sections 7776 and 8211(a), Mississippi Code of 1942. He failed to keep a proper lookout. He was familiar with the crossing. The chancellor was fully justified in finding Pigott guilty of negligence. Any finding to the contrary would be manifestly wrong.
(Hn 3) Weathersby and Standard argue that Pigott was the agent and employee of Weathersby only, and that Standard was not responsible for Pigott's negligence. Weathersby operated under a "Limited Agency Agreement" with Standard and as such operated a bulk plant at McComb for the distribution of Standard products in Pike and Amite Counties. Standard owned the bulk plant property consisting of several buildings under a sign bearing the words "Standard Oil Company." Standard paid the taxes on the bulk plant property and owned all the petroleum products kept at the bulk plant and which were delivered in the truck involved in the wreck. Weathersby owned the truck but Standard owned the tank thereon. The petroleum products were invoiced in Standard's name. The accessories sold by Weathersby were his property. The truck was hauling property for both Standard and Weathersby at the time of the accident. The driver was on his way to deliver petroleum products owned by Standard. Standard promulgated the rules for the operation of the bulk plant and the conduct of the truck drivers. Weathersby hired and paid Pigott.
It is clear from the evidence that both Weathersby and Standard had the right to control Pigott and that he was the servant of both, and at the time of the accident was engaged in carrying out the business of both. It follows that the chancellor was justified in entering judgment against both Weathersby and Standard.
Finally, all of the defendants contend that the amount of the award is so excessive that a remittitur should be ordered. This is the most serious question presented. The deceased was guilty of no contributory negligence and the award of damages was for compensatory damages only. No exemplary damages are involved.
The deceased was 50 years old and had a life expectancy of 21.37 years. He was survived by three adult daughters who were not dependent upon him, his widow, age 43, who was partially dependent, and a four-year old son who was totally dependent. The record established that the family was close and bound by affection, respect and devotion. The deceased was an electrician by trade but was employed as a mill foreman at $65 per week. His total earnings for the year preceding his death was $2980 and the present value of his anticipated life income, commuted at 3%, is $28,800. Total medical and other outlay of money was $2,467.97. The deceased received burns over 64% of his body; 50% of his body sustained first degree burns. His hair and clothing were on fire when he fled from the scene of the accident. He was caught and the flames extinguished and he was sent to the local hospital. Shortly thereafter he was transferred to the University Hospital at Jackson, Mississippi, and was under the treatment of Dr. Artz, an expert in the treatment of burns. Some of his flesh sloughed away in the course of changing bandages. Deceased suffered for forty-eight hours from thirst and could be given no water during that time. Physicians could not give morphine, but he was given heavy doses of tranquilizers and barbiturates. Deceased suffered greatly, both physically and emotionally. He lived for fourteen days and was conscious most of the time, although there was part of the time in his latter days when he was unconscious.
It is obvious from the foregoing statement that approximately $120,000 of the award was for pain and suffering and loss of society and companionship. This Court recognizes that loss of human life can never be fully compensated, nor is there any yardstick by which to measure compensation for pain and suffering and loss of society and companionship.
(Hn 4) We have carefully reviewed the cases cited by the parties on the question of damages. The cases are helpful only as general guides, for in the matter of damages each case must be reviewed on the basis of the particular facts involved, including the age of the deceased in a wrongful death action, his life expectancy, his anticipated earnings, the intensity and duration of suffering, the relationship between the deceased and his survivors, and matters of dependency. (Hn 5) When this Court reviews the amount of damages it is important that two considerations be kept in mind. The law has placed in the hands of the jury the matter of measuring damages in cases tried in circuit court, and this Court may not rightfully substitute its judgment for that of the jury; and this Court will not disturb the jury verdict unless it evidences passion, prejudice, or bias. In cases tried in chancery court, the rule is the same except that the test is whether the amount of the verdict is manifestly wrong. (Hn 6) The second important consideration is that when the amount of the verdict, when fairly and impartially reviewed, evidences passion, prejudice, or bias, or when the award of the chancellor is manifestly wrong, it is the duty of this Court to reverse or order a remittitur. The duty and power of the court in this respect has been recognized and exercised throughout its history. (Hn 7) We have carefully considered the present case in the light of the foregoing considerations, and in view of the age of the deceased, his earning power, and the other elements of damage, and have concluded that the judgment is excessive by $35,000, and that an award by the chancellor of $150,000 is manifestly wrong. Accordingly, if appellees will remit $35,000 within fifteen days from this date the judgment will be affirmed for $115,000; otherwise the cause will be reversed and remanded for trial on the issue of damages only. While we concur on a remittitur of $35,000, some of the judges would prefer a lesser amount, while others would prefer a larger remittitur.
Affirmed with remittitur.
All Justices concur, except Arrington and Jones, JJ., who took no part.
ON MOTION TO CORRECT JUDGMENT
In this case the lower court rendered judgment for wrongful death in the amount of $150,000. This Court, in its original opinion, affirmed the case on liability and on the question of damages provided appellees entered a remittitur for $35,000. The remittitur was duly entered and the judgment was thereupon affirmed in the amount of $115,000.
The motion to correct judgment and the response thereto raise questions involving costs, statutory five percent penalty, and the matter of interest.
(Hn 8) On the question of costs, Sec. 1989, Code of 1942, provides that under these circumstances this Court may adjudge the costs as may seem proper. The costs below, of course, will be adjudged against appellants. We are of the opinion that it would be proper to assess the appeal costs one-half to appellants and one-half to appellees. Shipman v. Lovelace, 215 Miss. 141, 60 So.2d 559; Ford v. Commercial Securities Co., 220 Miss. 157, 70 So.2d 525.
(Hn 9) Appellants are not taxable with the five percent damages levied under Sec. 1971, Code of 1942. The five percent penalty is taxed only where the judgment of the court below is affirmed unconditionally. Ford v. Commercial Securities Co., supra; Shipman v. Lovelace, supra.
(Hn 10) Appellants contend that the judgment in this case should bear interest from the date of the judgment of this Court entered after the remittitur was filed by appellees. Appellees contend that the judgment should bear interest from its date in the lower court. Appellants rely on Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, but we are of the opinion that this case is not in point because as to interest the issue was resolved on the ground of waiver. Grice v. Central Electric Power Assn., 230 Miss. 437, 92 So.2d 837, is not controlling for the reason that judgment was never entered in the court below and the plaintiffs never obtained judgment until reversal of the lower court and the entry of the judgment here.
The case of Gulf S.I.R. Co. v. Bond, 181 Miss. 254, 179 So. 355, is directly in point. Judgment for wrongful death was entered for plaintiffs in the lower court for the sum of $10,000. This Court conditionally affirmed if plaintiffs would enter a remittitur of $2500. Remittitur was entered and this Court, on motion, held that the judgment should bear interest from the date of final judgment in this Court.
Appellees rely on Grillis v. Patrick, 214 Miss. 747, 59 So.2d 341, wherein personal injuries were awarded plaintiff by judgment of the lower court. Defendant appealed and this Court affirmed on liability and conditionally affirmed provided plaintiff would enter a remittitur of $250.00. And the opinion in that case stated: "If the remittitur is entered in this Court, the affirmance for $2700 will bear interest from July 24, 1951, the date of the original judgment." See also Miss. State Highway Com. v. Rogers, 242 Miss. 439, 136 So.2d 216.
Appellees also rely on I.C.R.R. Co. v. George, 241 Miss. 233, 130 So.2d 260. In that case damages were awarded for injuries to land in the sum of $1727.25. The lower court also entered an injunction. Defendant appealed to this Court and this Court affirmed the damages in full but reversed as to the injunction and provided that the decree for damages should bear interest from the date of the decree in the trial court. The George case is not in point because there was no conditional affirmance of the judgment for damages.
The cases of Grillis v. Patrick, supra, and Miss. State Highway Com. v. Rogers, supra, on the one hand, and Gulf S.I.R. Co. v. Bond, supra, on the other hand, are directly in conflict and cannot be reconciled.
Sec. 39, Miss. Code of 1942, is as follows: "All judgments and decrees founded on any contract, shall bear interest, after the rate of the debt on which the judgment or decree was rendered. All other judgments and decrees shall bear interest at the rate of six per centum per annum."
At common law judgments do not bear interest. Code Sec. 39 provides that all judgments shall bear interest, those founded on contract after the rate of the debt on which the judgment is rendered, and all others at six per centum. If the suit had been on a note instead of tort the judgment would have borne interest after the rate of the note, and upon reduction of the judgment in this Court by remittitur in lieu of reversal, the plaintiff would have been entitled to collect interest from date of the judgment in the trial court. The statute makes no distinction between a judgment founded on a contract and one based on a tort except as to the rate of interest. It follows that when a judgment based on a tort is reduced in this Court by remittitur in lieu of reversal, the judgment bears interest from its date in the trial court at the statutory rate of six per centum. The statute does not permit any other conclusion. Gulf S.I.R. Co. v. Bond, 181 Miss. 254, 179 So. 355, is hereby overruled insofar as it conflicts with this decision.
The judgment of this Court shall be corrected as herein indicated.
Motion to correct judgment sustained in part and overruled in part.
All Justices concur, except Arrington and Jones, JJ., who took no part.