Yazoo M.V.R. Co. v. Barringer

^* Headnotes 1. Death, 17 C.J., section 141; 2. Death, 17 C.J., section 197; 3. Death, 17 C.J., section 190. Charlie Dalton was struck and killed by one of the appellant's trains while its employees in charge thereof were violating section 4047, Code of 1906, Hemingway's Code, section 6671, and this is a suit by his administrator for the recovery of damages therefor.

Dalton left neither wife, parent, child, brother, nor sister surviving him; the suit being brought for the benefit of other collateral relatives and for the payment of any debts he might have owed. The declaration does not allege and the evidence does not disclose that he owed any debts. He was a cripple, and in addition was able to hear and talk only to a very limited extent, because of which his earning capacity was practically nothing and he lived largely on charity. He did not live with or in the vicinity of any of his relatives and is not shown to have had any social intercourse with them.

Dalton's death occurred prior to the enactment of chapter 229, Laws of 1922, and the appellant introduced evidence that Dalton was an illegitimate child on the theory that if illegitimate he left no relatives for whose benefit damages can be recovered; but, as will herein after appear, the legitimacy or illegitimacy of Dalton's birth cannot be here material.

The court below instructed the jury for the plaintiff:

"That although they may believe from the evidence that Charlie Dalton was an illegitimate child, this is not a bar to their finding a verdict for the plaintiff."

"That although they may believe from the evidence that Charlie Dalton left no legitimate relatives surviving him, or creditors, yet if they believe that he was killed by the wrongful act or omission of the defendant as complained of in the declaration, then the jury should return a verdict for the plaintiff, notwithstanding the jury may find that he left no heirs or creditors surviving him."

"That if they find a verdict for the plaintiff, then the jury should fix the damages at such sum as the jury may determine from the evidence to be just, taking into consideration all of the damages of every kind to Charlie Dalton, himself, and all damages of every kind to any and all parties interested in the suit."

The court refused to instruct the jury for the defendant (1) to return a general verdict for it, or (2) to allow the plaintiff nominal damages only; but instructed the jury for the defendant not to allow the plaintiff punitive damages or "anything on account of physical or mental suffering endured by Charlie Dalton at the time he was killed."

The jury returned a verdict for the plaintiff for five thousand dollars, and there was a judgment accordingly.

Chapter 214, Laws of 1914 (section 501, Hemingway's Code), provides that an action for damages for wrongful death "may be brought in the name of the personal representative of the deceased person, for the benefit of all persons entitled under the law to recover," and "in such 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." After providing the order in which the damages shall be distributed among the next of kin, the statute continues:

"If the deceased have neither husband, or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover."

The statute then concludes with the provision that it "shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children," etc.

Under this statute the personal representative of an illegitimate as well as of a legitimate decedent has the right to sue for and recover damages for the decedent's wrongful death, and is charged with the duty of distributing the damages when recovered in accordance with the provisions of the statute. If the decedent left no relatives who under the statute are entitled to participate in the distribution, then the only persons who can share therein are his creditors, if any he had. The damages that can be here recovered are only such as the decedent himself suffered, for the evidence discloses that his relatives not only received no financial assistance or other benefits from him whatever, but had no expectation of ever doing so. Dalton's death was instantaneous, and it not only appears that he could not have earned any substantial amount of money had he lived out his life expectancy, but if the evidence were to the contrary, no recovery could be had therefor.Belzoni Hardwood Co. v. Mrs. Nellie Cinquimani (Miss.), 102 So. 470.

One of the appellant's contentions is that the expenses necessarily incurred in the burial of the decedent is an element of actual damage to him in an action to recover for his wrongful death. Such expenses, of course, may be included in the debts of the decedent and paid by his administrator when it become his duty under the statute to pay the decedent's debts. Whether such expenses may be taken into consideration by the jury in awarding damages for the decedent's death is not here presented for decision, for the record does not disclose that any such expenses were incurred; consequently we will express no opinion thereon.

No actual damages having accrued to the decedent, the appellee's recovery must be limited to nominal damages, 17 Corpus Juris, 1322, unless the circumstances surrounding the infliction of the injury warrant the imposition of punitive damages.

This brings us to the appellant's contention that if the jury should find that Dalton was an illegitimate, then no damages whatever, actual or punitive, or, at most, nominal damages only, should be allowed, for since Dalton is not shown to have left any creditors there would be, if he was an illegitimate, no persons to benefit by the recovery of damages. Under one of the provisions of the statute hereinbefore set forth, where the decedent left none of the relatives specifically named in the statute, the damages go to the legal representative subject to debt and general distribution. When this provision of the statute becomes operative, the damages become for all practical purposes a part of the decedent's general estate to be distributed to creditors and those entitled under the statute thereto.

Where the administrator sues for the recovery of damages sustained by his intestate which, when recovered, become a part of the estate being administered by him, it is not necessary in order for him to recover that he show the existence of creditors or distributees, and the rule is no different here.

The holding of the court on this point under similar statutes is set forth in 17 Corpus Juris, at page 1211, as follows:

"Under statutes authorizing the action for the benefit of designated persons, no action lies unless at the time of decedent's death there are one or more of the designated beneficiaries in existence, although there is some authority to the effect that the action lies in every case where the person injured could have maintained an action for the injury if death had not ensued. Under other statutes the recovery is for the benefit of decedent's estate, either in all cases, or in default of designated beneficiaries given a prior right, and under such statutes the action will lie although decedent left neither widow, widower, child, nor next of kin, nor even creditors."

It follows from the foregoing views that the appellee should not have been permitted to recover any actual damages, but should have been limited to nominal damages only unless the case is one for punitive damages, as to which we are not in accord and we express no opinion thereon.

Reversed and remanded.