Jackson v. Board of Mayor of Port Gibson , 146 Miss. 696 ( 1927 )

^* Corpus Juris-Cyc References: Death, 17CJ, p. 1312, n. 56, 61; Juries, 35CJ, p. 320, n. 23; p. 322, n. 63. Loss of consortium as element of damages in action by husband for wrongful death of wife, see annotation in L.R.A. 1916D, 187; 13 R.C.L. 1421; 4 R.C.L. Supp. 861. In this cause the appellant, Joe Jackson, plaintiff in the court below, recovered judgment against the board of mayor and aldermen of the town of Port Gibson, Miss., for the sum of five hundred dollars for damages accruing to him as the husband of Rebecca Jackson, who was instantly killed on the 25th of September, 1925, by coming in contact with an electric wire charged with electricity, which had been borne to the ground by a decayed tree falling across it.

Joe Jackson was not satisfied with the judgment of the lower court. He avers the damage allowed him by the jury is wholly inadequate and unreasonable, and assigns one reason for a general reversal of the case, to-wit, that after he had exhausted his peremptory challenges, E.P. Guthrie was called and permitted to serve on the jury. In challenging him for cause it was agreed between counsel that he was a son of Mr. W.C. Guthrie, who was an alderman of the municipality of Port Gibson at the time of the death of Rebecca Jackson.

Unless it can be said that the board of mayor and aldermen are parties to the litigation, the challenge for cause was on the law properly overruled by the court.

The municipality was the real party to the lawsuit, and the declaration contained no statement upon which individual liability of the members of the city counsel could be bound, or could be held liable, or could be said to have an interest, except such as any other taxpayer of the municipality is presumed to have. An alderman would not be competent to serve as a juror, where the municipality was a party to the suit, because he is an employee of the municipality, and this court has held that employees of a corporation are not competent jurors. Hubbard v.Rutledge, 57 Miss. 7; Berbette v. State, 109 Miss. 94, 67 So. 853; R.R. Co. v. Mask, 64 Miss. 738, 2 So. 360; City ofBirmingham v. Gordon, 167 Ala. 334, 52 So. 430.

Guthrie, Sr., not being a party to the suit against the municipality of which he was an alderman, his son was not disqualified because of relationship to him. To hold that he would be disqualified would be to hold that all those persons who are related within the ninth degree, under the civil law, would, if members of a corporation, thereby become disqualified. Common-law rule is stated in Cooley's Blackstone, pages 362, 363, and 364, sections 1, 2, 3, and 4.

While the court might properly have excused the juror challenged in this case, he was not incompetent, and we cannot reverse the case because he was retained on the jury.

Second. Counsel for appellant earnestly insist that five hundred dollars is grossly inadequate as damages accruing to the husband for the loss of his wife.

According to the record in this case, the woman died instantly, and no attempt was made to prove any of the elements of damages which would accrue to the decedent, and the only element of damage was that which accrued to the husband for the loss of the "society and companionship of his wife."

The evidence of the plaintiff was to the effect that, for many months prior to the death of his wife, he had lived nine miles from Port Gibson; that she left him there where they had previously lived, and went to the town of Port Gibson, saying she preferred to live in town. When she went to Port Gibson she took up her abode in a two-room house, serving as cook for a man who paid her as a cook. He was an unmarried man. She was a woman of about eighteen years of age. They borrowed a bed for his use, and a cot for her use from a neighbor. He occupied one room, she the other. On occasions her husband visited her there. She had visited the country where her husband was on two or three different occasions. The character of the visits, in point of time, were of short duration. She contributed in no way to the support of her husband or to his comfort as a housewife. He had given her money on two or three occasions after she moved to town. Under these circumstances it was exclusively, as we see it, within the province of the jury to fix the amount of damages accruing to the husband for the loss of the "society and companionship" of his wife, and we are of the opinion that we are not warranted in disturbing the finding of the jury.

Affirmed.