Opinion
No. 31341.
November 26, 1934. Suggestion of Error Overruled January 21, 1935.
1. AUTOMOBILES.
Motorist owes pedestrian duty of giving reasonable warning of approach and using reasonable precaution for pedestrian's safety even if pedestrian is on right side of road in violation of law of road.
2. TRIAL.
In action for wrongful death, decedent's minor children, plaintiffs in the case, had right to be in court in presence of jury.
3. DEATH.
In action for death of married woman, permitting deceased's husband and minor children to testify as to their relation to deceased, as to her character and fitness as wife and mother, and as to nature and character of services rendered in discharge of her marital and maternal duties, held not error, as against contention that only purpose thereof was to arouse sympathy by parading minor children before jury.
4. EVIDENCE.
In action for death of pedestrian struck by truck, exclamation of occupant of automobile some distance from scene of accident that occupant believed pedestrian was going to try to beat car across the road held properly excluded as hearsay and not part of res gestae.
5. TRIAL.
In action for death of pedestrian struck by truck, admission of rebuttal evidence to contradict defendants' witnesses as to distance they were from scene of accident and consequent opportunity to observe conditions held not error.
6. DEATH.
In wrongful death action by surviving husband and minor children, where evidence showed age, health, and habits of industry of deceased, including services rendered as wife and mother, jury had right to consider the present money value of loss of such services and companionship, though there was no opinion evidence as to such value.
7. APPEAL AND ERROR.
In wrongful death action by surviving husband and minor children, instruction that, in passing on damages, jury had right to consider present money value of any loss of services and companionship, conjugal "and otherwise," held not prejudicial because of use of words "and otherwise," since such words did not authorize verdict for damages other than allowed by law.
8. DEATH.
In wrongful death action by surviving husband and minor children, instruction that jury had right to consider present money value of loss of services and companionship that husband would likely have enjoyed and loss of care and moral training to children during their minority held not erroneous as making life expectancy of deceased the basis of recovery.
9. APPEAL AND ERROR.
In absence of errors in instructions or other rulings of trial court which might reasonably have resulted in award of improper damages, allegedly excessive verdict could not be availed of on appeal where there was no motion for new trial.
APPEAL from the Circuit Court of Choctaw County.
L. Barrett Jones, of Jackson, and Henican Carriere, of New Orleans, Louisiana, for appellant.
In this state, by force of section 5574 of the Code of 1930, pedestrians on a public highway are required to walk facing approaching traffic.
Appellant's theory of the case is that Mrs. Carr was on the east, or right hand, side of the road in front of north-bound traffic, a place where by statute she had no right to be, and let us observe that the pedestrian is under as much duty to obey statutory regulations as is the automobilist.
Priestley v. Hayes, 147 Miss. 843.
The second instruction is erroneous in that it makes the life expectancy of Mrs. Carr the basis for the recovery. Her life expectancy was not recoverable.
Gulf Refining Co. v. Miller, 116 So. 295; Natchez Coca Cola Co. v. Watson, 160 Miss. 173; Railroad Co. v. Decker, 150 Miss. 621.
The whole truth is that this record is utterly deficient of any testimony on which a jury could have figured the present money value of any benefits which appellees might have expected to receive from the decedent.
The verdict is grossly excessive.
Coccora v. Light Traction Co., 126 Miss. 713, 89 So. 257; Deposit Guaranty Bank v. Silver Savers Stores, 166 Miss. 882; Weyen v. Weyen, 165 Miss. 257; Brush v. Lorendine, 150 So. 818; Nicholson v. Bankers Shippers Ins. Co., 164 Miss. 523; Tonkle v. Y. M.V.R.R. Co., 154 So. 351.
The law is laid down that it is not competent to prove specific acts of kindness or expressions of good will or that the decedent was closely attached to the children.
Roth v. Bien, 87 Ohio St. 483, 102 N.E. 1119; Quin v. Power (N.Y.), 29 Hun. 183; Boos v. Minneapolis, etc., Railroad Co., 127 Minn. 381, 149 N.W. 660; Vawter v. Hultz, 112 Mo. 633, 27 S.W. 689.
We submit that the correct rule where there is no challenge by the defendant of a normal family relationship is the proof of the number of surviving children and their ages plus the fact that the spouse also survives.
Conover v. Harrisburg Coal Co., 161 Ill. App. 74; Irvin v. Southern Railroad Co., 164 N.C. 5, 80 S.E. 78.
The court erred in excluding the testimony of Miss Jones with reference to the exclamation of Bud Moss because that exclamation was a "verbal act," as said by Judge CAMPBELL in one case, and was clearly competent and admissible as a part of the res gestae.
3 Wigmore on Evidence, sections 1746 and 1747; Alabama Great Southern Railroad Co. v. Shannon, 109 Miss. 230.
Stone Stone, of Coffeeville, for appellants.
All our decisions are in favor of introduction of an exclamation even of a by-stander at the time of the happening of an accident.
3 Wigmore on Evidence, sections 1746 and 1747; Alabama Great Southern Ry. Co. v. Shannon, 109 Miss. 230, 68 So. 165.
When it comes to estimating the loss of companionship and society to a mother and brothers and sisters, we realize that there must not be any yielding to sentimental feelings, but the verdict must be viewed in the light of compensation in dollars.
Gulf Refining Co. v. Miller, 116 So. 121 So.; Natchez Coca Cola Co. v. Watson, 160 Miss. 173, 133 So. 677; Y. M.V. Railroad Co. v. Decker, 150 Miss. 621, 116 So. 287.
If there are errors in the instruction or other rulings of the trial court, which may have misled the jury as to the proper element or measure of damages and which may have reasonably resulted in an award of improper damages, such erroneous rulings and the improper award of damages resulting therefrom may, on appeal, be assigned as error without making a motion for a new trial in the trial court.
Deposit Guaranty Bank v. Silver Savers Stores, 148 So. 367, 166 Miss. 882; Weyen v. Weyen, 165 Miss. 257, 139 So. 608, 856; Brush v. Lorendine, 150 So. 818; Nicholson v. Bankers Shippers Ins. Co., 164 Miss. 523, 145 So. 349; Tonkle v. Y. M.V., 154 So. 351; Coccora v. Light Traction Co., 126 Miss. 713, 89 So. 257.
A.L. Ford, of Ackerman, Jas. L. Davis, of Louisville, and J.A. Cunningham, of Booneville, for appellees.
In getting before the jury the question of the present money value of the decedent's companionship to her husband and children, and also the present value of that care, attention, instruction, training, advice, guidance, and protection of which the minors have been deprived and thereby damaged by her death, and which they would likely have received had she lived, it is not only the plaintiffs' right, but it was altogether necessary on the part of plaintiffs to show, by competent proof, the kind of wife she was, her disposition, her habits of industry, her attitude as a companion and a mother, in order that the jury could form some idea of what that companionship was really worth, and so that they could place some intelligible estimate on the damage sustained on account of the loss of it.
Alabama Great Southern Ry. Co. v. Norrell, 143 So. 904; Alabama Great Southern Ry. Co. v. Cornett, 106 So. 242; Title 45, U.S.C.A., chap. 2, sec. 51; Section 510, Code of 1930; St. Louis San Francisco Railroad Co. v. Moore, 58 So. 471; 17 C.J., p. 1333, secs. 206-7-8-9-10.
Upon approaching a person walking in the roadway of a public highway, or a horse, or horses, or other draft animals being ridden, led or driven thereon, a person operating, or causing to be operated a motor vehicle, shall give or cause to be given reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, etc.
Section 5572, Code of 1930; Daniel v. Livingstone, 150 So. 662; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Rhoads v. Fullilove, 134 So. 840; Aycock v. Burnett, 128 So. 100; Frazier v. Hull, 127 So. 775; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Terry v. Smylie, 133 So. 662.
Instruction No. II, follows the statute exactly down to the language complained of, and the language complained of is more narrow in its construction than the statute, and is not in any wise broader, anywhere, than the statute under which the suit is brought.
Section 510, Code of 1930; San Francisco Railroad Co. v. Moore, 58 So. 474; Beeson v. Green M.G.M. Co., 57 Cal. 20; Yazoo Miss. Valley Railroad Co. v. Beasley, 130 So. 499; Gulf Ship Island Railroad Co. v. Boone et al., 82 So. 335.
The statement of Moss was not any outcry, it was not any description of what was coming to his vision, but it was this: "I believe that lady is going to try to beat that car across the road," and shows a mere judgment of his. The origin of this statement comes from Moss' mind and does not offer any intelligence whatever in the way of testimony, but merely gives an opinion in the mind of Moss without affording any facts or circumstances upon which such an opinion is based.
Pearson v. Hancock Son, 77 So. 935; Borden v. Croak, 131 Ill. 68; 4 C.J., Appeal and Error, pp. 815-16, secs. 2786-7; Matthews v. State, 66 So. 325.
It is not reversible error in any sense to allow testimony to be introduced out of order, or to allow testimony in rebuttal which should properly have been offered as original proof, all of which is left to the sound discretion of the trial court, and in the absence of a clear abuse will not be disturbed.
Illinois Central Railroad Co. v. Brown, 115 So. 115; White v. Weitz, 152 So. 484; Stevens v. Locke, 125 So. 529.
Argued orally by W.I. Stone and L. Barrett Jones, for appellant, and by J.A. Cunningham and A.L. Ford, for appellee.
Appellees, the husband and minor children of Mrs. Ora Carr, deceased, instituted this suit against the Standard Coffee Company and E.L. Sandidge, the driver of its delivery truck, for the alleged negligent killing of the deceased on a public highway. The negligence charge in the declaration, which was supported by the proof, was, first, the excessive speed of the truck, and, second, that it was being driven north on the left-hand side of the road, where the deceased was walking in the same direction, and, without warning, struck the deceased from behind. There was a verdict and judgment for twenty-seven thousand five hundred dollars in favor of the appellees, from which this appeal was prosecuted.
The testimony of several witnesses for the appellees, including a saleman for the appellant coffee company who was riding in the truck, was that the deceased was walking north on the west side of the highway; that the truck came over the crest of a hill about two hundred yards south of her; that from the crest of the hill to the point where the deceased was struck the highway is straight and a little down grade; that the truck was running at a rate of speed variously estimated at from forty-five to sixty miles per hour, and that it proceeded at this speed on the left or west side of the road without giving any alarm or sounding any warning until it struck and killed the deceased. Several witnesses testified that, at the time she was struck, Mrs. Carr was walking within three or four feet of the ditch or drain on the west side of the highway, while two young girls were walking on the eastern edge of the highway.
The appellant Sandidge, the driver of the truck, testified that, as he was approaching the point where Mrs. Carr was struck, she and the two girls were walking on the eastern edge of the highway; that he was driving on the east or right-hand side of the road, and that, when he was within about thirty feet of these pedestrians, Mrs. Carr started to cross the road in front of the truck; that, in an effort to avoid striking her, he swerved the truck slightly to the left; that, when he saw she was going on across the road, he cut the truck back to the right, but struck her with the left front fender. He estimated the speed at which he was driving at from thirty-five to forty miles per hour, and testified that he undertook to bring the truck under control only when he saw the deceased starting to cross the road.
Without expressing any opinion as to whether or not the appellees were entitled to the requested peremptory instruction on the question of liability, we will say that, upon the evidence in this record, any verdict other than one in favor of the appellees would have been surprising; and, upon the question of liability, we find no reversible error.
The appellants complain of an instruction for the appellees reading as follows: "The court charges the jury for the plaintiff, that under the laws of this commonwealth, out of regard for the safety of the public, the defendants were required to operate the motor vehicle at the time, and place, and on the occasion of the injury, at no greater speed than is reasonable and proper, having due regard to the traffic and use of the highway; they were required under the law to keep a lookout for all pedestrians in the open space ahead of them; and that in approaching and passing the deceased, Mrs. Ora Carr, wherever she was in the road, they were required to give all reasonable warnings of the truck's approach, and to use every reasonable precaution to insure the safety of plaintiff's decedent, and if you believe, from a preponderance of the evidence, that E.L. Sandidge, the driver of the truck, negligently failed to observe any, or all, of the said duties as required of them by the law, and that, as a proximate result thereof, plaintiff's decedent came to her injury and death, then you must find for plaintiff against both the defendant, E.L. Sandidge, and the defendant, Standard Coffee Company."
A vigorous attack is made on that clause of this instruction which informed the jury that, in approaching and passing the deceased "wherever she was in the road," the driver of the truck was to give all reasonable warning of its approach, and to use every reasonable precaution to insure the safety of the decedent. This instruction is but an expression of the statutory duty of motorists to pedestrians on highways. Wherever a pedestrian may be on a highway, the driver of an approaching motor vehicle owes him the duty of giving reasonable warning of its approach and of using reasonable precaution for his safety. If the deceased were on the left side of the road, as a number of witnesses testified, the driver of the truck owed her this duty, and, if she were on the right side, although in violation of the law of the road, she was in a position of increased danger, and certainly the driver's duty to her was not thereby lessened.
The several appellees were offered to testify as to their relation to the deceased and as to her character and fitness as a wife and mother and as to the nature and character of the services rendered in the discharge of her marital and maternal duties. The appellants complain of the admission of this testimony, contending that its only purpose was to arouse sympathy by parading these minor children before the jury. These minor plaintiffs had a right to be in court, in the presence of the jury, and we do not think their mere presence on the witness stand would materially increase the natural sympathy of the jury for the children who had been deprived of the care and nurture of their mother. The testimony of these witnesses as to their relation to the deceased, her character, habits of industry, and attitude toward the children, and her fitness as a mother, was competent.
A witness for the appellants, who was in the car some distance from the scene of the accident, testified that, just before the deceased was struck, her companion, who was also a witness for the appellants, exclaimed, "I believe that lady is going to try to beat that car across the road." Upon objection, this exclamation was excluded, and the action of the court in so doing is assigned as error. Aside from the fact that the appellees afterwards withdrew the objection to the introduction of this exclamation, and the appellants declined to again offer it, it was no part of the res gestae, was pure hearsay, and was properly excluded. There was likewise no error in permitting evidence in rebuttal to contradict these witnesses as to the distance they were from the scene of the accident, and their consequent opportunity to observe the conditions about which they testified.
The appellees were granted an instruction on the element of damages recoverable which reads as follows: "If the jury finds for plaintiff, it is your solemn duty, under the law, to award plaintiff such sum of damages as you may determine from a preponderance of the proof to be just, taking into consideration all the damages of every kind to each and all the parties on whose behalf this suit is brought, which is to say, Mrs. Carr's husband and her children; and in passing on the amount of this said damage, you have a right to consider on the proof the present money value of any loss of any services and companionship, conjugal and otherwise, that the husband would likely have enjoyed and that he has been deprived of because of his wife's injury and death, and the loss of any care and moral training to the children during their minority as a result of their mother's injury and death, that they would otherwise likely have received during such minority."
The appellants offer three criticisms of this instruction, first, that there was no evidence upon which the jury could base a finding of the "present money value" of the loss of services and companionship; second, that, by the use of the words "and otherwise" in connection with conjugal services and companionship, the jury was authorized to return a verdict for damages other than those allowed by law; and, third, that it makes the life expectancy of the deceased the basis for recovery.
It is true that none of the witnesses undertook to place a money value on the services and the loss of the companionship of this wife and mother. There was evidence as to the age, health, and habits of industry of the deceased, including the services rendered in the home, garden, dairy, and field, which covered every activity that a healthy, industrious, and dutiful farm wife and mother could render in the home, and in the nurture and care of her minor children. It is difficult to value the services of such a wife and mother in terms of money, and, with all the facts in reference to the nature and character of these services before it, a jury is as competent to determine the money value thereof as any witness could be, and the determination of that question may be, and, in the very nature of things, must largely be, left to the sound judgment of the jury.
The use of the words "and otherwise" in connection with the word "conjugal" could have had no prejudicial effect. There was no evidence that any services rendered were other than those growing out of, or connected with, the marriage relation, and, so long as the relation of husband and wife continues, we are unable to conceive of any services that could be rendered by the wife to the husband that would not come under the designation of conjugal services. Furthermore, we find nothing in this instruction which makes the life expectancy of the deceased the basis of the recovery.
The appellants further argue that the verdict of the jury is grossly excessive, and in support thereof they submit the calculations of a life insurance actuary based upon various assumed earnings of the deceased. The verdict of the jury is large, and we would probably be inclined to look upon this assignment with favor if the appellants were in a position to present it. There was no motion for a new trial and no complaint as to the amount of the verdict in the court below. In the absence of errors in the instructions or other rulings of the trial court, which may have reasonably resulted in the award of improper damages, such improper award cannot be availed of on appeal, where there was no motion for a new trial in the court below. Coccora v. Light Traction Co., 126 Miss. 713, 89 So. 257.
The judgment of the court below will therefore be affirmed.
Affirmed.