Illinois Central Railroad v. Gwin

149 So. 2d 340, 246 Miss. 67, 1963 Miss. LEXIS 419

• Court: Mississippi Supreme Court
• Decided: January 28, 1963
• Docket: No. 42521
• Status: Published

Opinions

McGehee, C. J.

(Hn 1) This is a companion case to that of Illinois Central Railroad Co., et al v. Mrs. Zelda M. Nelson, Administratrix of Estate of Percy Nelson, Deceased, 146 So. 2d 69, decided by this Court November 5, 1962. In that case we settled all of the questions of negligence, liability, and inferentially the question of the jurisdiction of the chancery court, although we did not deal in the opinion specifically with the question of whether or not the suit could properly be brought as an attachment in chancery. We think that this question was thoroughly settled more than thirty years ago in the case of Clark v. Louisville & N. R. Co., et al, 158 Miss. 287, 130 So. 302, wherein the Court upheld the chancery jurisdiction in Wayne County in a suit for personal injuries to the plaintiff as an employee of the L. & N. R. Co. by an attachment in chancery against said defendant and Mobile & O. R. Co., Illinois C. R. Co., and N. O. & N. E. R. Co., as nonresident railroad corporations.

The factual situation insofar as jurisdiction was concerned, was similar to that in the instant case, and the right to attach in chancery under facts similar to those involved in the instant case has been recognized and followed since the rendition of that decision on October 13, 1930.

The remaining question in the instant case is whether or not the decree of the Chancellor was so grossly excessive as to require us to order that a remittitur be entered, or because its amount is manifestly wrong.

In the Nelson case, supra, we affirmed a judgment of $115,000 with a remittitur, reducing the amount of the judgment from $150,000, as rendered by another chancellor, to the sum of $115,000. In the Nelson case the deceased Percy Nelson, whose Administratrix was suing under the wrongful death statute of our State, was approximately 50 years of age, but he lived after the accident and endured physical pain and suffering fox a period of fourteen days prior to his death. The proof disclosed that approximately sixty-four percent of Nelson’s body was covered with severe burns. In the instant case the deceased Robert Sidney Gwin was thirty-two years of age and had a life expectancy of 36.01 years, and during the year 1958 he earned $3,347.50; in 1959 he earned $3,984.63; and in 1960 he earned $5,064.00. In other words, his annual income was steadily increasing from year to year, and his life expectancy, according to the proof of the complainant, was worth approximately $96,000.00 based on his earnings for 1960, and in the opinion rendered by the Chancellor he stated: “Mr. Gwin was a young man. He was just starting out in life, holding down three jobs. We should have every reason to believe that his earning capacity would increase every year,” and would continue to increase for a number of years.

In other words, the deceased in the instant case was able to hold three jobs, one with the Agricultural Stabilization and Conservation Service of the United States, one as a substitute mail carrier, and one as a picture show operater, in the last of which positions he made $65 per week.

(Hn 2) The appellant railroad company objected to the testimony of Dr. Harry C. Frye, who, when being questioned as to whether or not the deceased suffered any physical pain, since he was killed instantly and was found at the scene of the accident dead, “lying face down with his body burned to a crisp” immediately after the accident, stated: “***there was a period in all probability, although very short, *•* * when he felt the heat movement to a degree of discomfort.” Of course, everyone in the courtroom would have known that a person who had burned to death would have suffered as long as it took him to die, whether a doctor had so testified or not. At any rate, the Chancellor made no allowance for physical pain and suffering. Therefore, if Dr. Frye’s answer to the question was somewhat speculative, as contended, and objectionable for that reason, then the witness being permitted to give the answer above quoted would have been harmless error since the Chancellor did not take it into consideration as an element of damage.

(Hn 3) Finally, the appellant railroad company contends that the damages also should be equally contributed by the railroad company, Standard Oil Company, and Weathersby. The judgment appealed from was against the said three defendants jointly and severally. The appellants Standard Oil Company and Weathersby contend that, if there should be an affirmance, we should require the railroad company to pay one-half of the damage and those two defendants to pay the other half. No authority is cited which would justify our requiring any particular contribution by the defendants respectively in payment of the damages allowed. Since the judgment based on the verdict of the jury was against the said three defendants jointly and severally, we shall not undertake to change the liability thus imposed.

(Hn 4) Although some of the Judges think the remit-tur should be in a larger amount, and some think that the verdict of the jury should be affirmed as rendered, we have concluded that if the plaintiff will enter a re-mittitur so as to reduce the amount of the verdict from $105,000 to the sum of $90,000 the case shall be affirmed, and unless said remittitur is entered within 15 days from this date the cause will be reversed and remanded. It is so ordered. . .

Affirmed with remittitur.

All Justices concur, except Arrington and Jones, JJ., who took no part, and Lee and Rodgers, JJ., dissenting.