Summary
requiring that there be "substantial proof" of consciousness after a collision before the recovery of pain and suffering damages is allowed
Summary of this case from Bridges v. Enterprise Products Company, Inc.Opinion
No. 35895.
September 24, 1945.
1. AUTOMOBILES.
In action for death of driver of automobile colliding with defendant's truck as result of one of vehicles striking a cow crossing highway, conflict in evidence as to which vehicle struck the cow was for jury.
2. TRIAL.
Ordinarily, interpretation of physical circumstances is jury's function.
3. EVIDENCE.
In action for death of driver of automobile colliding with defendant's truck as result of one of vehicles striking a cow crossing highway, exclusion of state highway patrolman's testimony as to whether he determined place on highway where cow was struck and whether it was struck with great or slight violence was not error as jury was not thereby deprived of any helpful aid to its own powers of deduction.
4. TRIAL.
In death action, instruction that, if jury found for plaintiff, they must return verdict for sum which would be fair and reasonable compensation for all damages sustained by plaintiff as direct and proximate result of defendant's negligence, was not erroneous as implying that defendants were negligent, in view of other instructions fully stating applicable tests on issue of defendant's negligence, which jury was required to adjudge before finding for plaintiff.
5. DEATH.
In death action, instruction authorizing jury, if they found for plaintiff, to return verdict for sum which would be fair and reasonable compensation for all damages sustained by plaintiff, was not reversible error, in absence of evidence that both decedent and defendants were guilty of negligence causing death.
6. APPEAL AND ERROR.
In death action, jury's verdict of defendant's guilt of negligence, thereby impliedly acquitting plaintiff of negligence, precluded Supreme Court from charging plaintiff with contributory negligence on appeal from judgment on such verdict.
7. TRIAL.
Where instructions as a whole limited elements of damage recoverable in death action to those claimed in declaration and allowable by law, instruction that, if jury found for plaintiff, they should return verdict for sum which would be fair and reasonable compensation for all damages sustained by plaintiff, was not erroneous as failing to confine applicable negligence to that set forth in declaration.
8. DEATH.
In death action, plaintiff, claiming damages for physical pain and mental anguish suffered by deceased between time of accident and his death, had burden of proving that deceased retained consciousness after accident.
9. DEATH.
In action for death of motorist as result of collision with defendant's truck, testimony of witnesses, arriving at scene of accident shortly afterward, that deceased was found clutching a pencil in his hand, was insufficient to establish his consciousness after collision, as required to entitle plaintiff to recover damages for physical pain and mental anguish suffered by deceased.
10. TRIAL.
In death action, court erred in refusing defendant's requested instruction excluding physical pain and mental anguish suffered by deceased as elements of damages and in granting plaintiff's instruction including such elements, in absence of substantial evidence that deceased retained consciousness after accident.
11. DEATH.
The value of husband's support of wife and his association, society, and companionship are proper elements of damage recoverable by her for his wrongful death.
12. ESTOPPEL.
A court has right to hold a litigant to position which he takes in seeking its aid, and, after assuming his utter good faith in first instance, to reproduce such assumption later, even to his hurt, in absence of special circumstances or explanation.
13. DEATH.
A jury's verdict, awarding widow $15,000 damages for death of her husband, earning $45 per week as employee of husband of woman, with whom widow alleged in her previous bill for separate maintenance that husband spent most of his time, was excessive by $10,000, in view of allegations in such bill that husband assaulted, deserted, and failed to support complainant.
SMITH, C.J., and ROBERDS, J., dissenting in part.
APPEAL from circuit court of Stone county, HON. L.C. CORBAN, Judge.
Wallace Greaves, of Gulfport, for appellants.
In an action for death under wrongful death statute (Sec. 510, Code of 1930, Sec. 1453, Code of 1942) by the surviving wife of a motorist killed when his automobile collided with a motor truck belonging to one defendant and driven by the other, traveling in the opposite direction on a public highway, grounded upon the charge that the death was the proximate result of specified acts of negligence in the operation of the truck, where issue was properly joined, the plaintiff had the burden of proof and was required to prove, as a reasonable probability (1) that such negligence was the proximate cause or at least a directly contributing cause of the death, and (2) that the deceased or the plaintiff or both sustained damages recoverable under the statute.
The court will take judicial knowledge of the limits of maneuverability inherent in the motor transportation truck involved in the accident.
Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Teche Lines, Inc., v. Danforth, 195 Miss. 226, 12 So.2d 784.
The appellee, plaintiff in the court below, had the burden of proving, as a reasonable probability, that the negligent operation of the truck proximately caused, or directly contributed to, the death of the decedent and she failed to do so.
Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Williams v. Lumpkin, supra; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Dr. Pepper Bottling Co. v. Gordy, supra; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Teche Lines, Inc., v. Danforth, supra; Code of 1930, Sec. 510, Code of 1942, Sec. 1453.
Where death is instantaneous or the decedent does not regain consciousness after the infliction of the injury resulting in his death, a decedent sustains no recoverable damages under the wrongful death statute.
Beckman v. Georgia Pacific R. Co. (Miss.), 12 So. 956; Yazoo M.V.R. Co. v. Lee, 148 Miss. 809, 114 So. 866; Avery v. Collins, 171 Miss. 636, 157 So. 695; Code of 1930, Sec. 510, Code of 1942, Sec. 1453.
No damages are recoverable under wrongful death statute by the surviving wife of a decedent, in an action by her under that statute for the death of her decedent, without proof, as a reasonable probability, that she sustained such damages.
Belzoni Hardwood Lumber Co. v. Langford, 127 Miss. 234, 89 So. 919; Belzoni Hardwood Lumber Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295; Avery v. Collins, supra; Goodyear Yellow Pine Co. v. Anderson, 171 Miss. 530, 157 So. 700; Yazoo M.V.R. Co. v. Barringer, 138 Miss. 296, 103 So. 86; Young v. Columbus G.R. Co., 165 Miss. 287, 147 So. 342; Gulf S.I.R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; Pope v. Allis, 115 U.S. 363, 29 L.Ed. 593; White, U.S. Treasurer, v. Mechanics Securities Corporation, 269 U.S. 283, 70 L.Ed. 275; Krajewski v. Western S.L. Ins. Co., 241 Mich. 396, 217 N.W. 2; Navarette v. Joseph Laughlin, Inc., and Richards v. Joseph Laughlin, Inc. (La.), 20 So.2d 313; Code of 1930, Sec. 510, Code of 1942, Sec. 1453; 31 C.J.S. 1078, Sec. 303.
Upon the record of the testimony and the authorities cited in support of the principles of law presented above, the learned trial court erred in refusing to grant the peremptory instruction requested by the appellants, and the judgment appealed from should be reversed and the cause dismissed.
The trial court erred in sustaining objections to and in excluding non-expert opinion evidence offered by appellats on questions (1) as to the position of the cow in the highway before the collision of the vehicles involved, (2) as to which one of the vehicles actually struck the cow, and (3) as to the place in the highway where the two vehicles collided.
O'Kelly v. Yazoo M.V.R. Co., 94 Miss. 635, 47 So. 660; Barnes v. Mobile O.R. Co., 132 Miss. 313, 96 So. 513; Luckett v. Louisiana Oil Corporation, 171 Miss. 570, 158 So. 199; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361; Jackson County v. Meaut, 181 Miss. 282, 179 So. 343; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Harris v. Pounds, 185 Miss. 688, 187 So. 891; Watkins v. State (Ala.), 8 So. 134; Yorkshire Ins. Co. v. Bunch-Morrow Motor Co. (Ala.), 103 So. 670; Weber v. Chicago R.I. P.R. Co. (Iowa), 151 N.W. 852; New Mexico v. Pruett (N.M.), 160 P. 362, L.R.A. 1918A, 656, and cases cited in annotation commencing on p. 663; Graham v. State (Tex. Cr. App.), 13 S.W. 1010; Hopt v. Territory of Utah, 120 U.S. 430, 30 L.Ed. 708; 32 C.J.S. 94, Sec. 456.
The trial court erred in instructing the jury that appellee could recover all damages resulting from decedent's death where decedent was guilty of contributory negligence and the jury was instructed that amount of damages should be diminished in the proportion to the negligence attributable to decedent.
Graves v. Johnson, 179 Miss. 465, 176 So. 256; Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502; Marx v. Berry, 176 Miss. 1, 168 So. 61; Code of 1930, Sec. 511, Code of 1942, Sec. 1454.
The trial court erred in giving instructions to the jury for the appellee assuming the appellants were guilty of negligence, because there was evidence which showed them to be free of negligence, and authorizing the jury to return a verdict in favor of appellee on account of appellants' negligence, whether such negligence was charged in the declaration or not.
Griffin v. Griffin, 93 Miss. 651, 46 So. 945; Jackson Light Tractimon Co. v. Taylor, 112 Miss. 60, 72 So. 856; Priestley v. Hays, 147 Miss. 843, 112 So. 788; Chadwick v. Bush, 174 Miss. 75, 163 So. 823; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; New Orleans N.E.R. Co. et al. v. Miles et al., 197 Miss. 846, 20 So.2d 657.
The trial court erred in instructing the jury to allow damages for physical pain and mental anguish suffered by decedent, because the evidence showed death was instantaneous, and in instructing the jury to find that decedent suffered such physical pain and mental anguish without resorting to the evidence.
It was error for the court to instruct the jury to award damages when there is no evidence to support such an award.
Yazoo M.V.R. Co. v. Lee, supra; Alabama V.R. Co. v. Overstreet, 85 Miss. 78, 37 So. 819; Kneale v. Lopez Dukate, 93 Miss. 201, 46 So. 715; Baker v. First Nat. Bank of Jackson, 147 Miss. 530, 113 So. 205; Interstate Life Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; New Orleans Great Northern R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Avery v. Collins, supra.
Verdicts must be based upon competent evidence and the jury may not find an essential fact without resort to the evidence.
Yazoo M.V.R. Co. v. Smith, 82 Miss. 656, 35 So. 168; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245.
The trial court erred in instructing the jury to allow appellee damages for loss of decedent's association, society and companionship, because of the lack of evidence to sustain such damages.
Alabama V.R. Co. v. Overstreet, supra; Moore v. Johnson, 148 Miss. 827, 114 So. 734; Avery v. Collins, supra; Pope v. Allis, supra; White, U.S. Treasurer, v. Mechanics Securities Corporation, supra; Krajewski v. Western S.L. Ins. Co., supra; 31 C.J.S. 1078, Sec. 303.
The trial court erred in instructing the jury that the law imposed upon appellants the absolute duty to operate the truck involved in the accident at such a rate of speed and to keep such a lookout ahead and to keep it under such control that it would not, in any event, be run into or upon anything that would cause it to collide with another automobile and so as to enable the driver to avoid injury to others, because the law only required the appellants to exercise reasonable care.
The duty of a motorist to avoid injury to others using the highway is not absolute; the law only requires the exercise of reasonable care.
Priestley v. Hays, supra; Gardner v. Comer, 151 Miss. 443, 118 So. 300; Duke v. Mitchell, 153 Miss. 880, 122 So. 189; Robinson v. Haydel, 177 Miss. 233, 171 So. 7.
It was error for the court to give instructions to the jury for the plaintiff which ignore the defendants' defense.
Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82; Priestley v. Hays, supra; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Russell v. Williams, 168 Miss. 181, 150 So. 528; Graves v. Johnson, supra; Coca-Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674; Johnson v. Columbus G.R. Co., 192 Miss. 627, 7 So.2d 517; Nowell v. Henry, 194 Miss. 310, 12 So.2d 540; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426.
It was error for the court to give instructions to the jury for the plaintiff that are in conflict with instructions given for the defendants.
Marx v. Berry, supra; May v. Culpepper, 177 Miss. 811, 172 So. 336; Jackson v. Leggett, 186 Miss. 123, 189 So. 180.
The trial court erred in refusing an instruction to the jury requested by appellants that no damages could be awarded for any pain and suffering by the deceased, because the evidence showed death was instantaneous.
Avery v. Collins, supra.
The trial court erred in allowing appellee's counsel, in the closing argument to the jury, to argue that a chancery court would have given appellee a decree for one-half of decedent's earnings, over appellants' objections, because there was no evidence to support such argument.
New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Pickwick Greyhound Lines, Inc., v. Silver, 155 Miss. 765, 125 So. 340; Morse v. Phillips, 157 Miss. 452, 128 So. 336; Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Gulf, Mobile N.R. Co. v. Weldy, 195 Miss. 345, 14 So.2d 340; Gulf, Mobile N.R. Co. v. Wood, 164 Miss. 765, 146 So. 298; Belzoni Hardwood Lumber Co. v. Langford, supra; Belzoni Hardwood Co. v. Cinquimani, supra; Yazoo M.V.R. Co. v. Barringer, supra; Navarrette v. Joseph Laughlin, Inc., and Richards v. Joseph Laughlin, Inc. (La.), supra.
The trial court erred in overruling appellants' motion for a new trial upon the ground that the verdict of the jury is against the overwhelming weight, or clear preponderance, of the evidence.
Mobile O.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Fore v. Illinois Cent. R. Co., 172 Miss. 451, 160 So. 903; Beard v. Williams, 172 Miss. 880, 161 So. 750; Universal Truck Loading Co. v. Taylor, supra.
The trial court erred in overruling appellants' motion for a new trial based upon the ground that the amount of the verdict of the jury is so excessive as to show that it is the result of passion and prejudice on the part of the jury.
Belzoni Hardwood Lumber Co. v. Cinquimani, supra; Haynes-Walker Lumber Co. v. Hankins, 141 Miss. 55, 105 So. 858; Gulf, M. N.R. Co. v. Wood, supra; Avery v. Collins, supra; Belzoni Hardwood Lumber Co. v. Langford, supra; Yazoo M.V.R. Co. v. Barringer, supra; Jackson v. Board of Mayor and Aldermen of Town of Port Gibson, 146 Miss. 696, 111 So. 828; Navarrette v. Joseph Laughlin, Inc., and Richards v. Joseph Laughlin, Inc. (La.), supra.
Parker Busby, of Meridian, and U.B. Parker, of Wiggins, for appellee.
The testimony shows negligence on the part of the defendants which is ample to sustain a verdict in favor of the plaintiff as to liability, and a directed verdict would have been error even if no damages had been proven.
Yazoo M.V.R. Co. v. Barringer, 138 Miss. 296, 103 So. 86; Young v. Columbus G.R. Co., 165 Miss. 287, 147 So. 342.
It is insisted that the trial court committed error in not permitting three witnesses to express their ouinion or conclusion formed from observations made at the scene of the accident. All of these witnesses were permitted to fully explain all the things seen by them, and were only denied the right to express the conclusions based upon such stated observations. The trial court committed no error in not permitting these witnesses to state their conclusions based upon their observations; this was for the jury.
Opecello v. Meads, 135 A. 488, 50 A.L.R. 1385; Blalack v. Blacksher (Ala.), 66 So. 863; 32 C.J.S. 70.
Appellee's instructions on measure of damages were proper.
Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Gardner v. Comer, 151 Miss. 443, 118 So. 300; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Friedman v. Allen, 152 Miss. 377, 118 So. 828; Avery v. Collins, 171 Miss. 636, 157 So. 695; Reid v. Halpin (Miss.), 178 So. 88.
The testimony in this record fully justified the court in submitting the question of pain and suffering of the deceased to the jury, the instruction was proper, and there was no error in this regard.
St. Louis S.F.R. Co. v. Moore, 101 Miss. 768, 58 So. 471; St. Louis I. M.S.R. Co. v. Stamps, 104 S.W. 1114; Pierce v. Cunard S.S. Co., 26 N.E. 415; Beeler v. Butte London Copper Development Co., 110 P. 528.
The instruction granted at the request of the plaintiff authorizing the jury to consider the evidence concerning the loss of companionship, etc., in fixing the damages was proper.
Jackson v. Port Gibson, 146 Miss. 696, 111 So. 828.
It is a violation of the laws of this state for anyone to drive or operate a motor vehicle along any public highway at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person; that the driver of a motor vehicle does not have the right to a clear and unobstructed highway, but must anticipate the presence of other persons and vehicles thereon, and he must, at all times, drive his motor vehicle at such a rate of speed as to enable him to avoid injury to such persons, when they come, or, by the exercise of ordinary care, would come within his vision or under his observation.
Hadad v. Lockeby, 176 Miss. 660, 169 So. 691.
The testimony as shown in this record is sufficient to sustain a verdict against the defendant as to liability.
Burrill v. Rau, 153 Miss. 437, 121 So. 118; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312.
The verdict in this case is fully justified by the testimony and is in no way excessive.
Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; New Orleans N.E.R. Co. v. Snellgrove, 148 Miss. 890, 115 So. 394; Hines v. Green, 125 Miss. 476, 87 So. 649; Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; Illinois Cent. R. Co. v. Causey, 106 Miss. 36, 63 So. 336; Long-Bell Lumber Sales Corporation v. Perritt, 178 Miss. 194, 172 So. 747; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Mississippi Power Light Co. v. Merritt, 194 Miss. 794, 12 So.2d 527.
Argued orally by R.A. Wallace, for appellant, and by Arthur Busby, for appellee.
The appellee, as plaintiff, brought suit to recover damages arising out of the death of her husband in a collision between a car driven by him and a truck owned by the Standard Oil Company driven by its servant Davis, who is a joint defendant. From a verdict of $15,000 in plaintiff's favor, defendants appeal.
The first assignment of error relates to the refusal to grant a peremptory instruction to the defendants. We find no error here. The defendants' gasoline truck was proceeding north on a paved highway near the Town of McHenry. The accident happened early upon a foggy morning during the latter part of November 1941. Plaintiff's husband was driving a passenger car south and had as a passenger the wife of his employer. Both occupants of the car were instantly killed in a collision with the truck. According to all the eyewitnesses, the collision was caused by one of the vehicles striking a cow which was attempting to cross the highway from east to west, resulting in a sudden convergence of the two vehicles. There is sharp conflict whether the truck or the car struck the animal. There is evidence to support either theory. We need not elaborate this testimony. It was for the jury in its appraisal of the credibility of the witnesses in the light of the physical evidences to resolve this conflict.
Other assignments directed to the issue of liability involve the exclusions of certain evidence and the granting of certain instructions for the plaintiff. The following questions propounded to defendants' witness Hood are examples of those excluded by the court: "Did you determine the place on the highway where the animal was struck by the vehicle?" "Were you able to determine the place on the highway where the animal was standing or walking when it was struck?" "I will ask you, from what you saw, whether the animal was struck with great or slight violence?" We do not decide whether the witness, who was a member of the State Highway Patrol, was an expert in interpreting signs of collision. The questions standing alone would produce no helpful answers, and, unless followed by a request for an expert version, would be without point. Ordinarily the interpretation of physical circumstances is a function of the jury. The location of the cow when struck could be determined by one not an eyewitness only by the location and extent of the gory evidences of its dismemberment strewn along the highway. Exclusion of this testimony deprived the jury of no helpful aid to its own powers of deduction.
The giving of the following instruction for the plaintiff is assigned as error: "The court charges the jury for the plaintiff that if you find for the plaintiff, it will be your duty to return your verdict for that sum which will be fair and reasonable compensation for all damages sustained by the plaintiff, if any, as shown by a preponderance of the testimony as a direct and proximate result of the negligence of the defendants in causing the injury and death of the decedent, A.B. Crane, Jr., and in calculating the amount of such damages you may take into consideration all of the evidence, if any, concerning the physical pain and mental anguish, if any, suffered by the deceased, A.B. Crane, Jr., between the time of the collision and the time of his death, if the jury should find that said A.B. Crane, Jr., was not killed instantly." The targets of appellants' attack are (1) authorization to fix compensation for "all damages sustained by the plaintiff"; (2) the implication that the defendants were negligent; and (3) an alleged failure to confine the applicable negligence to that set forth in the declaration. The instruction is predicated upon the condition that the jury first find for the plaintiff, a conclusion which could not be reached unless negligence was first adjudged, upon which issue other instructions fully set out the applicable tests. Nor do we find reversible error in the authorization to fix their verdict "for that sum which will be fair and reasonable compensation for all damages sustained by the plaintiff, if any . . ." Defendants procured an instruction invoking the doctrine of comparative negligence. This is not a case disclosing that both actors in the tragedy could be guilty of negligence causing the death of plaintiff's husband. We are without power here to charge plaintiff with contributory negligence in the face of the jury's implied acquittal of him by the only alternative verdict of guilt on part of defendants. Hence, the principle laid down in Graves v. Johnson, 179 Miss. 465, 176 So. 256, is not applicable. The instructions as a whole limited the elements of damage to those only which were claimed in the declaration and which were allowable by law. Some of the other instructions complained of would, if they stood alone, invite critical comment, but we find no reversible error in them. The verdict upon the issue of liability must therefore be affirmed.
Special attack, however, has been made upon the amount of the verdict, and upon certain instructions which authorized the jury to take into account allegedly improper elements of appraisement. The instruction quoted includes a warrant to "take into consideration all the evidence, if any, concerning the physical pain and mental anguish, if any, suffered by the deceased A.B. Crane, Jr., between the time of the collision and the time of his death, if the jury should find that the said A.B. Crane, Jr., was not killed instantly." An instruction requested by the defendants which would have excluded this element was refused. There was no substantial proof that the deceased retained consciousness after the collision. Such burden of proof remained upon the plaintiff. Witnesses who arrived at the scene shortly after the accident found plaintiff's decedent dead, with violent and crushing marks upon his head and one leg broken. The only testimony by which it is sought to meet the evidential burden is the circumstance that the deceased was found clutching a pencil in his hand. The argument of plaintiff's counsel, made a basis for a bill of exceptions, pressed the theory that deceased was trying to indite some final message. The testimony is at least equally consistent with a possession of the pencil prior to the wreck, and is otherwise insufficient to establish a persistent consciousness. It is true that in St. Louis S.F.R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 473, 39 L.R.A. (N.S.), 978, Ann. Cas. 1914B, 597, a similar instruction was considered but neither approved nor condemned by this Court. The Court said: "If it be error, it is therefore harmless; and looking through the entire record, and taking into consideration the amount of the verdict, we cannot say that the instruction is reversible error. The verdict was evidently right on the facts." The same considerations, however, lead to a more definite finding here. The amount of the verdict and the restricted bases upon which it may stand indicate that the matter of pain and suffering was unquestionably an influential factor. Counsel for plaintiff so considered it for in his argument to the jury the point was stoutly pressed. We hold, therefore, that it was error here to refuse defendants' instruction excluding, and to grant plaintiff's instruction including, deceased's pain and suffering as an element of damage. Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552.
Plaintiff's fifth instruction allowed the jury to compute and include as damages the value of the "support of the plaintiff and the association, society and comanionship of her deceased husband." These are of course proper elements of damage in such cases. The complaint here, however, is that since these are the only available bases for estimate, the verdict was excessive.
As a defense in mitigation, if not in bar of damages, defendants pleaded a bill theretofore filed by plaintiff against her husband seeking separate maintenance. The allegations of this bill which was admitted in evidence include the following:
"That complainant and defendant were lawfully married in Lauderdale County, Mississippi, on August 13, 1939, and lived together as man and wife in Lauderdale County, Mississippi, until July 1, 1941, on which date, the defendant committed an assault and battery upon complainant and packed his things and deserted the complainant, wholly without cause or excuse for doing so, and forced the complainant to deliver to him her wedding ring, and the defendant has never since said date lived with or offered to live with the complainant, and left the complainant wholly without support or means of livelihood.
"That defendant is a habitual drunkard, and has been and is wasting his substance in riotous living, in associating with other women in an improper manner, and utterly ignores this complainant and her rights as his wife, and spends all of his social life with other women, most of the time with Mrs. Z.E. Roth, wife of the defendant's employer, and that the said Mrs. Roth has urged this complainant to divorce the defendant, which this complainant has no desire to do, for the accommodation of the said Mrs. Roth.
"That the defendant is a stout, able-bodied man, with regular employment, and earning $45.00 per week, and notwithstanding his ability to support the complainant, he has not contributed any sum whatsoever for her support since his desertion, and the complainant is left entirely without support, and is in immediate need of support from her husband."
The bill was sworn to and was made returnable to the day on which the husband was killed. Service of process was not had and was returned "not found." The third party mentioned in the bill was the companion of the deceased in the southbound car, and was killed in the same collision.
The sworn allegations of a bill by which a litigant seeks to move a court to its relief may not be lightly disavowed by affiant when, in another proceeding, its recitals rise to plague him in an inconsistent course. Indeed, in the absence of special circumstances or explanation, a court has the right, if not the duty, to hold a litigant to the position which he takes in seeking its aid and, by assuming in his behalf utter good faith in the first instance, to reproduce such assumption later, even to his hurt. Certainly, insincerity or bad faith may never be pleaded in a tribunal which demands the contrary.
It is urged that the sworn bill eliminates the elements of association, society and companionship as items of damage. The jury may well have so found, but they evidently did not, and we can not say that all sparks of hope for some measure of reconciliation had been completely and finally quenched. In this connection, plaintiff testified that she loved her husband in spite of his treatment of her; that she did not seek nor desire a divorce but that the other woman had requested her to divorce him; that the language of the bill was not her own but her solicitor's; that they had been married about two years before he was killed; that she was then living and working in Washington, D.C.; that during the period preceding his death her husband had contributed nothing to her support; and that her purpose in filing her bill was that she "felt maybe it would bring him to realize what he was doing and he would come back and everything would be all right." To say that at the time of his death the husband was furnishing neither support nor consortium is to accept undisputed facts. To assume that either or both may, under altered conditions, have been reasonably expected, is to build a structure of speculation with the frail figments of a quickened hope. Yet, a concession that the jury may weigh her oath against her explanation should not be enlarged to allow them to discard the weight of the former. The substantial amount of the verdict is more than a mere indication that they did so. Unless, therefore, the factor hereinafter mentioned would justify the verdict, it would be all out of proportion to the undisputed facts however much they may be mitigated by any reasonable counteracting probabilities. Belzoni Lumber Company v. Langford, 127 Miss. 234, 89 So. 919, 18 A.L.R. 1406; Avery v. Collins, supra; Cf. Jackson v. Town of Port Gibson, 146 Miss. 696, 111 So. 828.
As stated, the plaintiff's sworn bill and her own testimony showed that at and for a period preceding his death, her husband was refusing to contribute to her support. As to the reasonable probability that this situation would have later been altered, we need not reproduce our views from the preceding paragraph. Yet, the husband could be compelled by law to contribute to her support. There was no proof showing the life expectancy of either the husband or the wife. See Goodyear, etc., Co. v. Anderson, 171 Miss. 530, 157 So. 700. At the time of his death, he was earning $45 per week as an employee of the husband of the woman who was his traveling companion and shared his tragic fate. The jury had little to guide them even in the matter of compulsory contribution where a court would take into account many factors not here disclosed.
Under all the circumstances, and from any view of the case, an award of fifteen thousand dollars is grossly excessive. The cause will be affirmed as to liability but reversed for hearing upon the issue of damages only. If, however, the appellee will enter a remittitur of ten thousand dollars, the judgment will be affirmed for five thousand dollars.
Affirmed with remittitur.
Smith, C.J., is of the opinion that the judgment of the court below should be affirmed, but does not care to delay the decision of the case by holding it up until he has an opportunity to write a matured dissenting opinion, in which Roberds, J., concurs.