New Orleans & Northeastern Railroad v. Thornton

191 So. 2d 547, 1966 Miss. LEXIS 1223
CourtMississippi Supreme Court
DecidedNovember 7, 1966
DocketNo. 44120
StatusPublished
Cited by3 cases

This text of 191 So. 2d 547 (New Orleans & Northeastern Railroad v. Thornton) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Orleans & Northeastern Railroad v. Thornton, 191 So. 2d 547, 1966 Miss. LEXIS 1223 (Mich. 1966).

Opinion

ETHRIDGE, Chief Justice:

This is an action under the wrongful death statute. Miss.Code Ann. § 1453 (1964 Supp.). The jury rendered a verdict of $150,000 for plaintiffs-appellees, and defendants-appellants seek review of the judgment by the Circuit Court of Jones County, Second District.

The issues are (1) whether a peremptory instruction “on liability,” in the light of all instructions adequately directed the jury to consider whether the death of Mrs. Jane Thornton was a proximate result of defendants’ negligence; (2) whether the jury was warranted in finding that the trauma to her left breast caused a dormant cancerous condition to be aggravated and scattered to other parts of her body and proximately contributed to her death; and (3) whether the verdict is grossly excessive and not supported by the evidence.

We hold that, considering all of the instructions together, the jury properly had submitted to it the issue of proximate cause; there are no reversible errors, except that the verdict is grossly excessive, and, unless appellees accept a remittitur of $35,000, the case will be reversed and remanded for a new trial on damages; that if accepted it will be affirmed for $115,000.

A survey of the history of this and related litigation arising out of this single automobile-truck collision is essential for an understanding of the present issues.

I.

Mrs. T. C. (Jane) Thornton was injured on December 8, 1960, when a truck owned by the New Orleans & Northeastern Railroad Company, driven by appellant Lias Thigpen, deviated from its right side of the road and collided with an automobile driven by Mrs. Jane Thornton, which was on its right going north. Sitting next to her was her daughter-in-law, Melba Thornton; on the right side of the front seat was her son Byron; in the back was her youngest son, Chester, nine years of age.

Mrs. Melba Thornton sued the railroad for injuries from this accident, and the circuit court gave her a peremptory instruction on liability. On appeal this Court held that the testimony of Thigpen, the truck driver, made a question of fact on the issue of liability, which should have been submitted to the jury. The case was reversed and remanded. New Orleans & Northeastern R. R. Co. v. Thornton, 247 Miss. 616, 156 So.2d 598 (1963).

[549]*549Mrs. Jane Thornton, the person for whose later death plaintiffs-appellees sued in the instant case, also brought a personal injury action against the railroad for this collision. The circuit court gave her a peremptory instruction on liability, the jury returned a verdict of $80,000, and plaintiff accepted the trial court’s requirement of a $20,000 remittitur to $60,000. On appeal, following the decision in the Melba Thornton case, this Court held that Thigpen’s testimony was sufficient to create an issue of fact on liability, which should have been submitted to the jury. Hence the case was reversed and remanded. New Orleans & N. E. R. R. Co. v. Thornton, 247 Miss. 794, 157 So.2d 129 (1963).

On remand, the Melba Thornton case was tried anew on November 21, 1963, and submitted to the jury, which rendered a verdict for plaintiff of $42,500. On appeal, it was held that the issue of liability was properly submitted to the jury, but that the damages of $42,500 were grossly excessive. Appellees accepted a $12,500 remitti-tur, and that judgment was affirmed for $30,000. New Orelans & N. E. R. R. Co. v. Thornton, 252 Miss. 49, 172 So.2d 560 (1965).

After the trial of the Melba Thornton case, but before its affirmance by this Court, Mrs. Jane Thornton died of cancer on March 15, 1964. Three months later her husband and children filed an amended declaration, converting this suit into a wrongful death action, and alleging that, in addition to other injuries which their intestate suffered, she received a blow on her left breast which caused the cancer. Before trial this was amended to charge that the blow to her breast aggravated and caused to be spread a pre-existing cancerous condition, and that this trauma from the accident proximately resulted in her death from cancer.

Stoner v. Colvin, 236 Miss. 736, 110 So.2d 920 (1959), held that a trial court in its sound discretion has the right to consolidate for trial separate actions by different plaintiffs against a common defendant or defendants, for damages arising out of the same accident. Mr. Colvin and Mrs. Col-vin filed separate suits seeking damages against Stoner. The court consolidated the two cases for trial, but there were separate instructions and separate verdicts and judgments in the two actions. Under those circumstances, the consolidation for trial was not an abuse of the circuit court’s discretion.

In the instant case the circuit court followed a somewhat different method of quasi-consolidation. When the court announced that the Melba Thornton case would be tried first, it stated that the other pending cases arising out of this accident would be continued to await a final decision by the Supreme Court, “which would be controlling as to liability in the other cases.” Thereafter the other cases were continued from term to term awaiting decision in the second Melba Thornton case. In this case, the circuit court held that the Melba Thornton decision settled the question of liability in the cases arising out of this collision. This procedure was announced to counsel for both sides before the second trial of the Melba Thornton case. Hence, at the beginning of the trial in the instant case, the court said: “This case is therefore tried solely on the question of damages, there being no issue of contributory negligence involved, * * ” Defendants made no objection to this procedure before or during the trial. None was made until the motion for a new trial. Thigpen, the truck driver, did not testify here.

The circuit court instructed the jury “to find for the plaintiffs against the defendants on the question of liability.” On behalf of plaintiffs, it submitted to the jury the issues of whether the injuries received by Mrs. Jane Thornton to her left breast “caused a dormant cancerous condition, if any, to be aggravated, accelerated, spread, disseminated, extruded or scattered to the extent that it was carried to the other parts of her body and proximately [550]*550contributed to her death * * * ” Defendants also tendered in three instructions those issues to the jury. The court instructed the jury for defendants that Mrs. Jane Thornton had cancer on December 8, 1960, and the collision of December 8, 1960, did not cause her to have cancer. Defendants also were granted an instruction that, if the jury believed that Mrs. Jane Thornton had cancer on December. 8, 1960, and the collision aggravated and increased its severity, nevertheless, plaintiffs were not entitled to recover from defendants “for all of the consequences of such disease, if any, but only for such consequences of it as was (sic) the natural and proximate result of the collision and aggravation, if any.”

Appellants argue that the instruction to find for plaintiffs against defendants “on the question of liability” was fatal error; that it precluded the jury from determining for itself whether it was the trauma which caused the fatal metastasis of the cancer in decedent’s breast. However, all of the instructions must be considered together.

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Cite This Page — Counsel Stack

Bluebook (online)
191 So. 2d 547, 1966 Miss. LEXIS 1223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-orleans-northeastern-railroad-v-thornton-miss-1966.