Berryhill v. Nichols, 158 So. 470 (Miss. 1935). · Go Syfert
Berryhill v. Nichols, 158 So. 470 (Miss. 1935). Cases Citing This Book View Copy Cite
110 citation events (59 in the last 25 years) across 6 distinct courts.
Strongest positive: Torrie Campbell Knight, Administratrix of The Estate of Linda Campbell, On Behalf of All Wrongful Death Beneficiaries of Linda Fay Campbell, Torrie Campbell, Individually, Bridgett Gill Massey and Davie French v. Jeffery Glover, MD. (missctapp, 2026-04-07)
Treatment trajectory · 1937 → 2026 · click a year to view as-of
1937 1981 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
cited Cited as authority (rule) Torrie Campbell Knight, Administratrix of The Estate of Linda Campbell, On Behalf of All Wrongful Death Beneficiaries of Linda Fay Campbell, Torrie Campbell, Individually, Bridgett Gill Massey and Davie French v. Jeffery Glover, MD.
Miss. Ct. App. · 2026 · confidence medium
Wilks v. American Tobacco Co., 680 So. 2d 839, 843 (Miss. 1996); Berryhill v. Nichols, 171 Miss. 769, 774 , 158 So. 470, 471 (1935).
discussed Cited as authority (rule) Nathaniel Younger and Jackson Public School District v. Willie B. Southern, Jr. (2×)
Miss. Ct. App. · 2025 · confidence medium
“It is essential . . . 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.” Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935).
discussed Cited as authority (rule) Barbara Crawford and Gertrude White For and On Behalf of All Wrongful Death Beneficiaries of Luvenia Hodge v. East Mississippi State Hospital, Inc. d/b/a The Reginald P. White and James T. Champion Nursing Facilities
Miss. Ct. App. · 2024 · confidence medium
“It is essential . . . 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.” Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935).
discussed Cited as authority (rule) Jones v. Jones County, MS
S.D. Miss. · 2023 · confidence medium
Code Ann. § 11-7 - 13 (the “Statute”), the “plaintiff must prove that the wrongful conduct proximately caused the death.” In re Estate of England, 846 So. 2d at 1067 (citing Berryhill v. Nichols, 158 So. 470, 471 (1935)).
discussed Cited as authority (rule) Trevor Lee Watts, Individually and as Representative of the Heir at Law of Kimberly Watts v. Thomas Dale Watts
Miss. Ct. App. · 2022 · confidence medium
“It 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.” Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935). ¶35.
discussed Cited as authority (rule) Beal v. Merit Health Central
S.D. Miss. · 2020 · confidence medium
Ct. App. 2003) (citing Berryhill v. Nichols, 171 Miss. 769, 774 , 158 So. 470, 471 (1935) (where proof failed to show that the death was caused by the alleged negligence, “any pain and suffering endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under [the survival statute] at a suit by the personal representative, not by the next of kin or heirs at law.”)).
discussed Cited as authority (rule) Mississippi Valley Silica Company, Inc. v. Dorothy Barnett (2×)
Miss. Ct. App. · 2016 · confidence medium
“To be entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct proximately caused the death.” England, 846 So. 2d at 1068 (¶23) (citing Berryhill v. Nichols, 171 Miss. 769, 773 , 158 So. 470, 471 (1935)).
discussed Cited as authority (rule) Saul Ex Rel. Heirs of Cook v. South Central Regional Medical Center, Inc. (2×)
Miss. · 2010 · confidence medium
Id. at 843 (citing Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935)). ¶ 31.
cited Cited as authority (rule) Gail Saul v. South Central Regional Medical Center
Miss. · 2008 · confidence medium
Id. at 843 (citing Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935)). 16 ¶31.
cited Cited as authority (rule) Birrages v. Illinois Cent. RR Co.
Miss. Ct. App. · 2006 · confidence medium
"The negligence, and not something else, must have been the cause which produced or directly contributed to the death." Berryhill v. Nichols, 171 Miss. 769, 773 , 158 So. 470, 471 (1935).
cited Cited as authority (rule) White v. Yellow Freight System, Inc.
Miss. · 2004 · confidence medium
Berryhill v. Nichols, 171 Miss. 769, 773 , 158 So. 470, 471 (1935).
discussed Cited as authority (rule) In Re Estate of England (2×)
Miss. Ct. App. · 2003 · confidence medium
Berryhill v. Nichols, 171 Miss. 769, 773 , 158 So. 470, 471 (1935).
cited Cited as authority (rule) Billie K. White v. Yellow Freight System, Inc.
Miss. · 2000 · confidence medium
Berryhill v. Nichols, 171 Miss. 769, 773 , 158 So. 470, 471 (1935).
discussed Cited as authority (rule) Wilks v. American Tobacco Co.
Miss. · 1996 · confidence medium
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." 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 plaintif…
discussed Cited as authority (rule) Jeanette Wilks v. American Tobacco Co
Miss. · 1993 · confidence medium
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 .
discussed Cited "see" Phillips v. Monroe County (2×)
5th Cir. · 2002 · signal: see · confidence high
See Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935) (holding that recovery for pain and suffering of deceased allegedly caused by the negligence of doctor can only be had in suit by personal representative and not by next of kin or heirs at law).
examined Cited "see" Phillips v. Monroe County, MS (3×)
5th Cir. · 2002 · signal: see · confidence high
See Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470, 471 (1935) (holding that recovery for pain and suffering of deceased allegedly caused by the negligence of doctor can only be had in suit by personal representative. and not by next of kin or heirs at law).
discussed Cited "see" Munn v. Southern Health Plan, Inc. (2×)
N.D. Miss. · 1989 · signal: see · confidence high
See Berryhill v. Nichols, 171 Miss. 769 , 158 So. 470 (1935) (where death was not proximately caused by wrongful act of defendant, any recovery for decedent’s pain and suffering between commission of tort and death must be had, if at all, under survival statute).
Retrieving the full opinion text from the archive…
Berryhill Et Al.
v.
Nichols
No. 31490..
Mississippi Supreme Court.
Jan 14, 1935.
158 So. 470
1935 Miss. LEXIS 6
John T. Smith, of Cleveland, for appellants. We do not think that a physician can sit idly by and permit symptoms to develop that would put a physician on notice and take no active notice of such symptoms, and then come into court and say that he used his best judgment and be exonerated on these grounds when it is apparent that he did not so do. At all events this would be a question for the jury. Yazoo M.V.R. Co. v. Leflar, 150 So. 220 ; DuBois v. Decker, 130 N.Y. 325 , 27 A.S.R. 529; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107. It is only in cases where the proof for the plaintiff, when it tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as being true, that a peremptory instruction should be granted. This is rarely the case. Wherever reasonable men may differ about which party has testified to the truth, the judge must submit the cause to the jury. Newton v. Homochitto Lbr. Co., 138 So. 564 ; Carraway v. Graham, 118 So. 807 ; Anderson v. Cumberland Telephone Telegraph Co., 38 So. 786. There was causal connection. Prewett v. Philpot, 107 So. 880; Hester v. Ford, 130 So. 203 ; F.W. Woolworth, Inc. v. Volking, 100 So. 3. The proof offered in this case is sufficient to show that the damages complained of proximately resulted from the negligence of appellee. To make a properly skillful and careful diagnosis of the trouble of a patient is one of the fundamental duties of a physician, and if he fails to bring to that diagnosis the proper degree of skill or care he must answer to the patient for the damages thus caused just as readily as he must answer for the application of improper treatment. 21 R.C.L., pp. 387-8; Manser v. Collins, 69 Kan. 290 , 76 P. 851; Pike v. Honsinger, 155 N.Y. 201 , 49 N.E. 760 ; Burton v. Neill, 140 Iowa, 141, 118 N.W. 302; Bonnet v. Foote, 47 Colo. 282 , 107 P. 252; Lewis v. Dwinell, 84 Me. 497 , 24 A. 945; Rogers v. Kee, 171 Mich. 551 , 137 N.W. 260; Hoffman v. Watkins, 89 Wn. 661 , 155 P. 159; 93 Am. St. Rep. 659; Pepke v. Grace Hospital, 90 N.W. 278; Williams v. Poppleton, 3 Or. 139 ; Barker v. Lane, 23 R.I. 224 , 49 A. 963 ; DuBois v. Decker, 130 N.Y. 325 , 27 Am. St. Rep. 529, 29 N.E. 313; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107; Johnson v. Winston, 94 N.W. 607. Brewer Montgomery, of Clarksdale, for appellee. If a physician brings to his patient care, skill and knowledge, he is not liable to him for damages resulting from a bona fide error in judgment of which he may be guilty. 20 R.C.L. 391, sec. 35; Carpenter v. Walker, 54 So. 60-1; Barfield v. South Highlands Infirmary et al., 191 Ala. 553 , 68 So. 30, Ann. Cas. 1916C, 1097; Moore et al. v. Smith, 111 So. 918 -920; Carraway v. Graham, 118 So. 807 ; Sellers v. Noah, 95 So. 167 ; Gray v. McDermott, 64 S.W.2d 94 .
Griffith.
Cited by 39 opinions  |  Published
Griffith, J.,

delivered the opinion of the court.

.--Appellants are the next of kin of a decedent who was accidentally shot and who died eleven days thereafter. Appellee is the physician to whom the wounded person was immediately brought. The wound extended from the wrist to a point near the elbow, and it then appeared to the physician to be a mere surface wound without penetration, and was treated as such. The physician visited the patient daily, and four days after the wound the physician came to the conclusion that some trouble existed not theretofore discovered by him, and the patient was taken to a hospital. There an operation was performed, and it was found that gun wadding and some of the shot had been imbedded in the wound. These were removed, but the patient died seven days later. This suit was thereafter instituted against the physician who-first treated the patient; the allegations of the declaration being that the physician did not devote that skill and care required by law in such cases and that this negligence was the cause or a contributing cause of the death. The court upon the trial granted a peremptory instruction for the defendant therein.

It is admitted that the patient died of pulmonary em-[*773] holism. Two physicians, and only two, were introduced; and, as we read their testimony, and interpreting it as best we can, an embolus in cases of wounds is, in simple terms, a product of coagulation of the blood, a blood clot, which, generally having its origin in the injury which has severed small blood vessels, finds its way into a vein and proceeding thence in the blood stream towards and into the heart, gathering particles as it moves, is propelled by the heart into an artery leading to the lungs, and becoming large enough, blocks a main pulmonary artery, thus causing death, and this is called pulmonary embolism.

Both the physicians gave it as their opinion that as a probability the embolus in such a case comes into its primal existence within a very short time after the infliction of the wound, although it might be some time later before the results of it-would appear symptomatically. One of them stated that, as to this particular case, the infections or poisons that might or did become present on account of the wound or the treatment thereof would have little and nothing substantially to do either with the origin or the development or the final results of an embolus; while the other stated that infections or poisons might possibly be contributors to the mischief of the embolus, but a summary of his evidence seems to be that this was only a possibility, not a probability.

It is essential as an element of liability under our wrongful death statute (Code 1930, section 510) 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. The negligence, and not something else, must have been the cause which produced or directly contributed to the death. Hamel v. Southern Ry. Co., 113 Miss. 344, 358, 74 So. 276. And, as in other cases, this essential element must be proved as a reasonable probability. To prove no more than[*774] that it was a possibility is not a sufficient foundation for the support of a verdict or judgment.

The evidence therefore is not sufficient to authorize a judgment under our statute which gives an action ‘ ‘ whenever the death of any person shall be caused by any real wrongful or negligent act or omission;” for the reason, as stated, that the proof fails to show that the death here was proximately caused by the asserted negligence. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803. And as to any pain and suffering of the deceased endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under section 1712, Code 1930, at a suit by the personal representative; not by the next of kin or heirs at law. And finally as to any recovery for loss of services for the eleven days between the injury and death and for which recovery could.be had at common law without the aid of statute (Natchez, etc., R. Co. v. Cook, 63 Miss. 38), that loss is to be referred to the original gunshot wound, to which appellee was not a party, for under all the evidence the decedent would not so far have recovered within that short time as to have rendered any services, although the treatment of his wound had been beyond the possibility of criticism.

Affirmed.