DAN LEE, PRESIDING JUSTICE, CONCURRING IN PART, DISSENTING IN PART TO DENIAL OF PETITION FOR REHEARING:
While I agree with Justice Robertson that our wrongful death statute, Miss. Code Ann. 11-7-13 (Supp. 1987), provides a basis for taking into consideration more than mere lost earning capacity based on life expectancy when determining damages, in my opinion the jury in this case was instructed to and did consider "all damages of every kind to the decedent. . . ." That the jury found no other damages is a conclusion we normally do not disturb under our limited scope of review, and I find their verdict to be supported by the evidence.
GRIFFIN, J., JOINS THIS OPINION.
ROBERTSON, JUSTICE, DISSENTING FROM DENIAL OF PETITION FOR REHEARING:
At issue in this case is the measure of damages recoverable for the wrongful death of John L. McGOWAN. At the time of his death McGOWAN was 67 years old. He had a life expectancy of 13.6 years, a fact no one disputes. Immediately prior to his death McGOWAN had an income stream of $409.00 per month. The jury, however, found liability but in effect held that there was no compensable value to McGowan's remaining life expectancy. Notwithstanding that this result is contrary both to law and logic and as well to common experience, the majority affirms.
I begin with our wrongful death statute, Miss. Code Ann. 11-7-13 (Supp. 1987). In language which has long been a part of that statute, we find it declared that
In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all damages of every kind to the decedent and all damages of every kind of any and all parties interested in the suit. [Emphasis added]
In our early interpretations of this language, we considered as among the damages recoverable the "present value of the deceased's life expectancy." See Gulf and Ship Island Railroad Co. v. Boone, 120 Miss. 632, 659, 82 So. 335, 338 (1919); Mississippi Oil Co. v. Smith, 95 Miss. 528, 534, 48 So. 735, 736 (1909). In Boone, we posed the rhetorical question "What was this expectancy worth?" and answered that "Recovery must be based upon the evidence." 120 Miss. at 659, 82 So. at 338.
At this early time it was not clear that we were speaking exclusively of a present net pecuniary value of the deceased's life expectancy had he lived. Concededly, our early cases did suggest that present value damages were "rooted in the earnings of the deceased during his expectancy." Belzoni Hardware Co. v. Cinquimani, 137 Miss. 72, 95, 102 So. 470, 474 (1924); New Deemer Manufacturing Co. v. Alexander, 122 Miss. 859, 897, 85 So. 104, 107 (1920). Several decades later, however, the phrase "present net cash value of the life of the deceased" had crept into our cases. See Reed v. Eubanks, Admx., 232 Miss. 27, 40, 98 So. 2d 132, 138 (1957); Bush v. Watkins, 224 Miss. 238, 243-44, 80 So. 2d 19, 21-22 (1955); Gordon v. Lee, 208 Miss. 21, 34, 43 So. 2d 665, 667 (1949). More recently our cases repeat as if by rote the "present net cash value" language. See, e.g., Sheffield v. Sheffield, 405 So. 2d 1314, 1318 (Miss. 1981); United States Fidelity & Guaranty Co. v. Pearthree, 389 So. 2d 109, 112 (Miss. 1980); Wilson v. Slay, 259 So. 2d 126, 128 (Miss. 1972).
My concern is that we have come to ignore the unmistakeable breadth of the language of the statute. However legitimate may be inclusion of the elements of wrongful death damage as recited by the majority (see p.5, majority opinion), we have no authority to ignore the legislative directive that wrongful death damages include "all the damages of every kind to the deceased. . . ." However real and viable may be the concept of the economic value of the life expectancy of the deceased, i.e., the present net cash value, as an element of wrongful death damages, our statute does not limit damages to this. And for good reason, for earning power is not the only value that is destroyed by wrongful death.
Plaintiffs argue that there is an intrinsic value to life and that its loss should be compensated. Without engaging in such metaphysics, we think little reflective thought is required to recognize that there is at the very least a social and psychological (i.e., non-pecuniary) value to life over and above any pecuniary value. More to the point, we fail to understand how limitation of damages to the
decedent to "net cash value" fulfills the expansive statutory contemplation of "all the damages of every kind to the decedent." Present net cash value is just part of the utility to the deceased of his life expectancy, had he lived. Our too restrictive reading of the statute implicitly assumes that the average person derives no utility from living.
There are reasons grounded in principle why these Plaintiffs recovery ought include the non-pecuniary utility of John L. McGowan's 13.6 year life expectancy. The "all damages of every kind" phrase appears twice within our wrongful death statute. It defines damages "to the decedent" recoverable in the wrongful death action - the sort of damages at issue here. The phrase further appears in defining survivors' or beneficiaries' damages. By judicial construction "all damages of every kind of any and all parties interested in the suit" includes non-pecuniary loss. See Sandifer Oil Co. v. Dew, 220 Miss. 601, 71 So. 2d 752 (1954) (holding that the parents, brother and sister of decedent fourteen-year-old girl are all entitled to recover damages for loss of society and companionship); Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So. 2d 443 (1951) (awarding damages for non-pecuniary loss to decedent's widow); Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436 (1950) (awarding damages for loss of society and companionship to decedent's widower and adult children). On principle it follows that "all damages of every kind to the decedent" includes non-pecuniary loss to decedent.
Our law respects and protects the non-pecuniary value of life of the elderly on a dozen other fronts. Retired persons are vested with rights of speech, religion and association the same as others. They may sue for defamation and invasion of privacy. The wrongful taking of the life of a senior citizen is no less a homicide. Close in analogy, an elderly person tortiously injured may sue for pain and suffering and diminished capacity to enjoy life and other non-pecuniary losses. Indeeed, the more thought one gives the matter the more anomolous if not bizarre becomes the suggestion that wrongful death damages do not include the non-pecuniary utilty to the deceased of his life expectancy.
In sum, I would grant the petition for rehearing insofar as the Courts' decision affirms denial of any "damages to the decedent." Were I charting our course, I would reverse and render so much of the judgment below as denies any recovery for the utility to John L. McGOWAN of his 13.6 year life expectancy had he lived. I would ...