                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 93-CA-01337-SCT
JEANETTE WILKS, DAUGHTER OF ANDERSON SMITH, DECEASED, INDIVIDUALLY,
AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES AND THE ESTATE
OF ANDERSON SMITH, DECEASED AND JESSIE WILLIE BELL
v.
THE AMERICAN TOBACCO COMPANY AND NEW DEAL TOBACCO AND CANDY, INC.

DATE OF JUDGMENT:                            06/23/93
TRIAL JUDGE:                                 HON. EUGENE M. BOGEN
COURT FROM WHICH APPEALED:                   WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                    RICHARD F. SCRUGGS
                                             CYNTHIA LANGSTON MILLER
                                             DON BARRETT
                                             FREDERICK B. CLARK
                                             CHARLES VICTOR MCTEER
ATTORNEYS FOR APPELLEES:                     JAMES E. UPSHAW
                                             THOMAS E. BEZANSON
                                             LONNIE D. BAILEY
                                             J. MURRAY AKERS
                                             MARY T. YELENICK
NATURE OF THE CASE:                          CIVIL - WRONGFUL DEATH
DISPOSITION:                                 AFFIRMED - 9/12/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                              10/3/96




     BEFORE SULLIVAN, P.J., McRAE AND MILLS, JJ.


     McRAE, JUSTICE, FOR THE COURT:




¶1. This is an appeal from a judgment in favor of the American Tobacco Company in the Circuit
Court of Washington County on a claim for wrongful death after the jury determined that cigarette
smoking was not the proximate cause of the decedent's death. The heirs of Anderson Smith
maintained on appeal that they were at least entitled to Smith's lifetime damages which were
overwhelmingly proven to be caused by smoking defendant's Pall Mall brand of cigarettes. Because
the heirs brought this cause of action solely under Miss. Code Ann. § 11-7-13, Mississippi's wrongful
death statute, we must affirm the jury verdict and judgment below finding no damages where the jury
concluded defendant's product was not the proximate cause of death. We also affirm the court's grant
of partial summary judgment striking assumption of the risk as a viable defense.

                                                  I.

¶2. On May 5, 1988, the heirs of Anderson Smith filed a complaint, pursuant to Miss. Code Ann. §
11-7-13, asserting that Pall Mall cigarettes, manufactured and distributed by the American Tobacco
Company [hereinafter "ATC"], New Deal Tobacco and Candy Company, Inc., were unreasonably
dangerous, resulting in the wrongful death of Smith, who smoked Pall Malls for approximately forty-
five years. The Circuit Court of Washington County granted partial summary judgment, declaring
cigarettes unreasonably dangerous as a matter of law and striking assumption of the risk as an
affirmative defense.(1) However, on June 17, 1993, following a two week trial, the jury found that
Smith's death was not proximately caused by his lung cancer or chronic obstructive pulmonary
disease, conditions which had been attributed to cigarette smoking. Judgment was therefore entered
for ATC. Plaintiffs filed their notice of appeal on November 17, 1993, and the defense cross-appealed
the court's grant of partial summary judgment.

                                                  II.

¶3. Anderson Smith smoked about one and one half packs of Pall Mall cigarettes per day for
approximately forty-five years. Pall Mall cigarettes had been discovered in tests to contain more tar
or harmful compounds than most cigarettes manufactured in the United States. Dr. David M. Burns,
M.D., testified that Smith died on February 7, 1986 of squamous cell carcinoma on the upper right
lobe of the lung, and chronic obstructive lung disease caused by smoking Pall Mall cigarettes.

¶4. Burns admitted that the death certificate failed to list lung cancer as the cause of death, but he
maintained that medical records revealed no hope for Smith's recovery from lung cancer. The death
certificate stated the immediate cause of death as a "rupture of the myocardium as a consequence of a
myocardial infarction"; his heart ruptured and filled the myocardium with blood causing the heart to
eventually quit beating. This was caused by a pulmonary embolism, or blood clot, which traveled
through the veins to the vena cava and into the pulmonary artery where it lodged. Without an
autopsy, however, there was no evidence completely resolving all doubt as to cause of death.

¶5. Smith's lung cancer was actually discovered in a routine chest x-ray after he was admitted to the
hospital with urinary tract complaints. Smith was scheduled for a cystoscopic examination due to
complaints of burning during urination, but local anesthesia was not sufficient to numb the pain
during the first attempt as Smith thrashed about on the operating table, and forcefully removed the
cystoscope from his urethra. As a result, Smith was placed under general anesthesia for a second
cystoscopic examination on February 4, 1986. During this surgery, there was a large amount of
trauma to his urinary tract which caused bleeding, a drop in blood pressure and cardiac arrhythmia.
Due to these complications, the doctors ended the second cystoscopy prematurely and performed
three transfusions upon Smith's recovery from the anaesthesia.

¶6. The problems which led to the cystoscopy were related to improperly treated gonorrhea suffered
by Smith in 1938 and 1944. Because penicillin was not widely available until the late 1940's, sulphur
drugs and strong caustic acid were often used in an attempt to kill the gonorrhea, but this often led to
scarring of the urinary tract. The scarring destroyed the stretching ability of the bladder and caused
dilation and obstructions which led to infection of the bladder, prostate and kidneys. The numerous
procedures Smith underwent during his life to alleviate these problems caused additional scarring of
the urinary tract.

¶7. Defense experts maintained that the pulmonary embolism which killed Smith was the result of his
urinary tract problems, the urinary tract surgery and complications during the this surgery three days
before his death. It was also suggested that the blood clot could have formed and broken free when
Smith fell in his bathtub and fractured the shaft of his right femur. It was recognized, however, that
Smith was suffering lung problems too, and that the length of his stay at the hospital and prolonged
bed rest, was due to the discovery of cancer. Bed rest and surgery were major risk factors for
pulmonary embolism. Smith's medical records indicated his cancer had reduced his lung capacity to
30 percent of its normal capacity. His cancer was inoperable, and he had been scheduled for curative
radiation treatment. He was in a great deal of pain and suffering over his last several years due to
lung problems. His medical bill for his final stay in the VA hospital, forty-six days at $418 per day,
totaled $19,378.

¶8. Based on early scientific studies, Dr. Burns testified that ATC should have known of the ill effects
of cigarette smoking by the early 1950s. ATC made no attempts to warn consumers, and it even
formed the Tobacco Research Council, according to Burns, to conduct its own research and make
the issue appear unresolved. In 1964, the Surgeon General finally released a report based on
statistical correlations, as opposed to laboratory tests, concluding that cigarette smoking caused lung
cancer. Burns testified that statistics demonstrate today that cigarette smoking is the single most
hazardous product currently available in the United States, killing approximately 435,000 people per
year. Still, Robert K. Heimann, former President and Chief Executive Officer of ATC, maintained the
company's historical position that the Surgeon General was dead wrong in concluding that cigarettes
were harmful to health, and that warning labels were not justified.

¶9. Dr. Richard Pollay, a Ph.D in consumer behavior, testified that Pall Mall's 1950's advertising
campaign, "Guard against throat scratch," which increased sales by three hundred percent, was a
deliberate attempt to assure people that Pall Mall cigarettes actually protected against the possibility
of cancer. Pollay also researched the minutes from the Tobacco Industry Research Committee which,
in his opinion, revealed that its sole purpose was to create a campaign to communicate to the public
there was insufficient evidence to conclude that cigarette smoking was dangerous to one's health. III.

¶10. This trial boiled down to a dispute over the decedent's cause of death. Plaintiffs claimed that
Smith died from smoking related illnesses. The American Tobacco Company maintained that Smith
died as the result of a pulmonary embolism caused by a lifetime of complications suffered during
treatment for gonorrhea. On June 17, 1993, the twelve member jury returned a verdict finding that
the death of Anderson Smith was not proximately caused or contributed to by his lung cancer or
chronic obstructive pulmonary disease. Based on this verdict, the trial court entered judgment for
ATC on June 23, 1993. On appeal, the plaintiffs contend that even though the jury may have found
Smith's death unrelated to smoking, the heirs were entitled to recover damages associated with
Smith's lung cancer and other smoking related illnesses suffered during his lifetime.
¶11. The Plaintiffs pursued their cause of action exclusively under Mississippi's wrongful death
statute which provides as follows:

     Whenever the death of any person shall be caused by any real, wrongful or negligent act
     or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued,
     have entitled the party injured or damaged thereby to maintain an action and recover damages in
     respect thereof, or whenever the death of any person shall be caused by the breach of any
     warranty, express or implied, of the purity or fitness of any foods, drugs, medicines,
     beverages, tobacco or any and all other articles or commodities intended for human
     consumption, as would, had the death not ensued, have entitled the person injured or made ill or
     damaged thereby, to maintain an action and recover damages in respect thereof . . .

Miss. Code Ann. § 11-7-13 (1972)(emphasis added).

¶12. Based on the language of our wrongful death statute, in order to recover any damages for
wrongful death, the heirs were required to prove that the negligence or wrongful acts of ATC caused
the death of Smith. The jury returned a verdict and special interrogatory clearly indicating they found
Smith's death to have been unrelated to his lung cancer or chronic obstructive pulmonary disease.
Consequently, the jury verdict prohibits any recovery of wrongful death damages under the statute.
Had the jury found the cause of death attributable to the pulmonary disease or lung cancer, then the
plaintiffs would naturally have been entitled to redress for damages associated with these smoking
related illnesses suffered during his lifetime.

¶13. Given the overwhelming proof that Smith's lung cancer was the result of smoking cigarettes
manufactured by ATC, the heirs maintain on appeal that they are at least entitled to recover damages
for injuries suffered by Smith during his lifetime which were related to smoking ATC's cigarettes such
as medical bills and the pain and suffering associated with his lung cancer. Although the wrongful
death statute provides for recovery of "all the damages of every kind," which would certainly include
lifetime damages, the entire claim under this statute must fail where the heirs failed to prove by a
preponderance of the evidence that Smith's death was caused by ATC's product.

¶14. The heirs suggest that the following portion of the wrongful death statute suggests they are
entitled to recover lifetime damages:

     In an action brought pursuant to the provisions of this section by the widow, husband, child,
     father, mother, sister or brother of the deceased, or by all interested parties, such party or
     parties may recover as damages property damages and funeral, medical or other related
     expenses incurred by or for the deceased as a result of such wrongful or negligent act or
     omission or breach of warranty, whether an estate has been opened or not.

§ 11-7-13 (1972)(emphasis added).

¶15. This language allows the heirs to bring a wrongful death suit without regard to administration of
the estate. However, this excerpt is irrelevant to the issue of the elements which must be proven in
order to recover for wrongful death. Certainly the closing of the estate did not preclude the heirs
from this action; however, it does not alter the fact that the heirs' cause of action was based on
Smith's "wrongful death."
¶16. In Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (1935), this Court stated, "[i]t is
essential as an element of liability under our wrongful death statute . . . that the negligence
complained of shall be the proximate cause, or at least a directly contributing cause, of the death
which is the subject of the suit." In the wrongful death action brought in Berryhill, this Court did not
allow the plaintiffs to recover for the decedent's pain and suffering because they were not successful
in proving that the defendant's negligence was the proximate cause of death. 158 So. at 471.
Recovery for those damages had to be brought in a suit by the personal representative. Id.; see Munn
v. Southern Health Plan, Inc., 719 F. Supp. 525, 530 (N.D. Miss. 1989) (concluding cause of
action for damages must be brought under survival statute where defendant found not liable for
decedent's death), aff'd, 924 F.2d 568 (5th Cir.), cert. denied, 112 S. Ct. 277 (1991).

¶17. Mississippi's survival statute, Miss. Code Ann. § 91-7-233 (1972), allows personal actions of a
decedent to be pursued after his death. It provides as follows:

     Executors, administrators, and temporary administrators may commence and prosecute any
     personal action whatever, at law or in equity, which the testator or intestate might have
     commenced and prosecuted. . . .

§ 91-7-233. The survival statute permitted a cause of action for personal injury suffered by Smith
during his lifetime. Again, the jury found in this case that the decedent's death was not related to the
cause of action as presented by the plaintiff. As contended by ATC, the heirs failed to alternatively
base their cause of action on the survival statute at any point in time during this litigation. The
complaint and trial proceeded exclusively under the wrongful death statute. ATC cannot be blamed
for the heirs' failure to alternatively pursue a cause of action for personal injury under Mississippi's
survival statute.

¶18. As to ATC's cross-appeal, we find that the trial court properly struck the defense of assumption
of the risk based on our recent pronouncements in Horton v. American Tobacco Co., 667 So. 2d
1289 (Miss. 1995). Even if it was a viable defense, it may not be employed unless the defendant
admits the existence of a risk. ATC firmly denied that smoking was hazardous to one's health. It
follows that there was no evidentiary support for ATC's use of this defense. All other arguments of
ATC's cross-appeal are rendered moot by the jury verdict and judgment in the court below.

¶19. Therefore, in light of the verdict at trial and the heirs' failure pursue their cause of action under
the survival statute, the heirs were not entitled to recover Smith's lifetime damages. The judgment
below for the American Tobacco Company is hereby affirmed. ATC's cross-appeal is denied.

¶20. ON DIRECT APPEAL: AFFIRMED. ON CROSS APPEAL: DENIED.

SULLIVAN, P.J., PITTMAN, ROBERTS AND SMITH, JJ., CONCUR. MILLS, J.,
CONCURS IN RESULT ONLY. BANKS, J., CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY LEE, C.J., AND PRATHER, P.J.




     BANKS, JUSTICE, CONCURRING:
¶21. I concur in the result reached by the majority and its reasoning with respect to the direct appeal.
I also concur in the result reached by the majority with respect to the cross-appeal and agree that a
majority of the Court voting in Horton v. American Tobacco Co., that assumption of the risk is
subsumed in comparative fault doctrine. I write separately to note that I do not join the
pronouncements immediately following the majority's reference to Horton.

LEE, C.J., AND PRATHER, P.J., JOIN THIS OPINION.


1. The court also denied the request to strike the defense of comparative fault, declaring that it might
still be a viable defense. Defendants unsuccessfully sought to have this ruling set aside by
interlocutory appeal.
