Opinion
No. 42002.
November 6, 1961.
1. Motor vehicles — collision — damages — evidence — jury questions.
Evidence in automobile collision accident case presented jury question as to whether plaintiff sustained injuries of which he complained in collision with defendant's vehicle or as a result of plaintiff's truck sliding off into a ditch approximately 15 minutes prior to collision with defendant's vehicle.
2. Damages — personal injuries — award excessive — remittitur ordered.
Award of $25,000 to man who suffered a "minimal compression fracture body C-5", and also a fracture of the neural arch of such vertebrae, and who remained in the hospital for a period of 32 days, and in a plaster cast for approximately 18 days, and who was required to wear a brace or plastic collar, and was unable to work for approximately one year, and who at time of trial complained of pain in his neck and back, although sustaining no other permanent injuries, was excessive to the extent of $7,000.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Leflore County; ARTHUR B. CLARK, J.
Odom, Odom Pittman, Greenwood, for appellants.
I. The verdict of the jury and the judgment of the Court were contrary to the overwhelming weight of the credible evidence, and the lower court erred in refusing either to enter a judgment for the defendants notwithstanding the verdict or to grant defendants a new trial. Beard v. Williams, 172 Miss. 880, 161 So. 750; Brewer v. Anderson, 227 Miss. 330, 86 So.2d 365; Davis v. McDonald, 180 Miss. 780, 178 So. 467; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565, 190 So. 910; Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; 5A C.J.S., Appeal Error, Secs. 1647b, 1648b, 1649.
II. The lower court erred in refusing to grant defendants' request for a peremptory instruction, as there was no credible evidence upon which the jury could return a verdict for the plaintiff. Day v. State, 67 Miss. 356, 7 So. 326; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690; Teche Lines, Inc. v. Bounds, supra; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; 98 C.J.S., Witnesses, Sec. 468.
III. The verdict of the jury was so grossly excessive as to evince passion, prejudice, and favoritism. Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; Carver v. City of Jackson, 82 Miss. 583, 35 So. 157; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9; Peerless Supply Co. v. Jeter, 218 Miss. 61, 65 So.2d 240; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Teche Lines v. Bounds, supra.
IV. The lower court erred in granting plaintiff's Instructions Nos. 5, 6 and 7. The pertinent portions of said instructions are as follows: "The Court instructs the jury for the plaintiff that damages to be assessed by a jury for a personal injury cannot be assessed by any fixed rule, but that you are the sole judges as to the measure of damages in any case. If your verdict be for plaintiff in this case, it will be your duty to award him such damages as will fairly and reasonably compensate him for the injury he sustained as shown by the evidence. In determining the amount of damage to which he, the plaintiff, would be entitled, it is your duty to take into consideration his physical condition prior to the injuries and after them, the physical pain and suffering and mental anguish, if any, which he suffered; whether or not his earning capacity has been reduced by reason of the injuries; the question whether his injuries are temporary or permanent; loss of time, if any; hospital and other medical expenses; and in awarding him damages, if he is entitled to recover, you shall award him such amount as will reasonably and faily compensate him for the injuries and damages which he has shown by a preponderance of the evidence to have sustained as the proximate result of the accident complained of; . ." "The Court instructs the jury for plaintiff that a driver of a pickup must keep a reasonable and proper lookout, and anticipate the presence of others, and if you believe from a preponderance of the evidence in this case that defendant, E.D. Cooley, did not keep such a reasonable and proper lookout, then, and in that event, E.D. Cooley was negligent, and if you further believe from a preponderance of the evidence that such negligence, if any, proximately caused the plaintiff's injuries and damages, or proximately contributed to the happening of the accident, giving rise to the plaintiff's injuries and damages, you may render a verdict in an amount which, in your opinion, is fair and reasonable compensation for the injuries and damages which he has shown to have sustained, if any, as the proximate result of the accident complained of . . ." "The Court instructs the jury for the plaintiff that the failure of any person to perform a duty imposed upon him by statute is negligence in itself. Therefore, should you find, from a preponderance of the evidence in this case, that defendant, E.D. Cooley, in the pickup that he was driving, failed to stop at the entrance to U.S. Highway 49 of a gravel road leading from the warehouse of Quinn Drug and Chemical Company, Inc., and failed to yield the right-of-way to the truck operated by plaintiff which was approaching on said highway, and defendant entered said highway at a time when the truck driven by plaintiff had approached said intersection so closely as to constitute an immediate hazard; and such failure to stop and such entrance thereon was a proximate cause of the collision with the plaintiff's truck, or the truck operated by plaintiff, then his conduct in so doing constituted actionable negligence." Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Gulf, M. O.R. Co. v. Smith, 210 Miss. 768, 50 So.2d 898; Harris v. McMullan, 212 Miss. 382, 54 So.2d 544; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Rivers, a Minor v. Turner, 223 Miss. 673, 78 So.2d 903.
J.W. Kellum, Sumner, for appellee.
I. The verdict is supported by the law and the evidence. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Secs. 8197, 8198, Code 1942.
II. The trial judge held that this verdict was not excessive and in effect became a thirteenth juror. Thirteen people have already decided it was not excessive. Bennett v. Hardy, 108 Cal.App. 473, 291 P. 903; Duval v. T.W.A. (Cal.), 219 P.2d 463; Holmes v. Southern Cal. Edison Co., 177 P.2d 329; Mississippi Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Sandifer Oil Co., Inc. v. Dew, 220 Miss. 609, 71 So.2d 752; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; 15 Am. Jur. 625.
III. The trial court in this case refused to grant a motion for a new trial based, among other grounds, on the ground that the verdict was excessive. When the trial court refuses to grant a new trial because it does not think the verdict to be excessive, the favorable presumption attending the verdict of the jury is thereby strengthened. Gulf Coast Motor Express Co. v. Diggs, 174 Miss. 650, 165 So. 292; McDonald v. Moore, 159 Miss. 326, 131 So. 824.
IV. The theory of damages. 25 C.J.S., Secs. 3, 17 pp. 461, 471.
V. There is no exact standard by which to determine the amount of damages for pain and suffering. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 769; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Yazoo M.V.R. Co. v. Grant, 86 Miss. 565, 38 So. 502.
VI. Decreased value of dollar and the increased cost of living are proper to be considered. Griffin v. Standley (Fla.), 123 So.2d 55; Hurst v. Chicago B. Q.R. Co., 280 Mo. 566, 219 S.W. 566; Laurel Light Railroad Co. v. Jones, 137 Miss. 143, 102 So. 1; McKinney v. George, 363 Pa. 368, 69 A.2d 83; Mississippi Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; St. Louis-San Francisco R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Steppacher v. Reneau, 25 Miss. 114; Anno. 12 A.L.R. 2d 645; The World Almanac and Book of Facts for 1961 pp. 651, 753.
VII. The Court properly granted appellee (plaintiff) Instructions 5, 6, and 7. Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Rule 11, Supreme Court Rules; 1 Alexander's Mississippi Jury Instructions, Secs. 224, 676, 1733 pp. 91, 190, 417.
APPELLANTS IN REPLY.
I. The verdict of the jury is not supported by the law and evidence. Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208.
II. The refusal of the trial judge to grant a new trial or to reduce the verdict is not binding on this Court. Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; Davis v. McDonald, 180 Miss. 780, 178 So. 467; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250; Tabb v. Davis, 202 Miss. 538, 32 So.2d 575; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50.
III. The verdict is excessive "when viewed in the light of the injury sustained", as disclosed by appellee's medical testimony. J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587.
IV. When viewed in relation to the evidence, rather than as abstract principles of law, appellee's Instructions Nos. 5, 6 and 7 were improperly granted. Cinderella Foods, Div. Stevens Industries v. Miller (Miss.), 52 So.2d 641; Planters Wholesale Co. v. Kincade, 210 Miss. 712, 50 So.2d 578; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844.
The appellee, A.B. Fillyaw, plaintiff below, sued E.D. Cooley and Quinn Drug Chemical Company, Inc., in the Circuit Court of Leflore County for damages as the result of personal injuries received in a collision between his truck and a pickup truck owned by the Drug Company and operated by Cooley. There was a verdict and judgment for appellee in the amount of $25,000, from which judgment the defendant appeals.
The evidence shows that on May 12, 1959, the appellee was driving his truck on U.S. Highway 49E, which runs in a northerly and southerly direction, and that while traveling on the highway in a northerly direction approximately two miles south of Greenwood, Mississippi, the appellant Cooley, operating the truck of the Drug Company, was driving said truck in an easterly direction on a gravel road which runs from the Drug Company easterly to the U.S. Highway; that Cooley approached and entered the said intersection without stopping and was struck by the truck being operated by appellee.
The appellant Cooley testified that he stopped his truck 64 feet before entering the intersection of the highway and looked both ways and did not see anyone approaching. As a result of the collision, the appellee suffered injuries as follows: "Minimal compression fracture body C-5 apparently also fracture neural arch of this vertebra — probably the Lamina on the left." On the following day he entered the hospital where he remained for a period of 32 days. His doctor placed him in a plaster of paris cast for approximately 18 days and gave him other treatment. The record disclosed that the appellant later entered the hospital for a period of five days. The record also shows that the plaintiff suffered intense pain and discomfort as a result of his injuries; that it was necessary for him to wear a brace or plastic collar; that although the doctors testified there would be no permanent injuries, the appellee testified that he now suffers pain in his neck and back, has headaches and blackout spells; that as a result of his injuries he was unable to work for a period of approximately one year, and has incurred hospital and medical expenses.
The appellant contends that the court erred in refusing to grant the appellants a peremptory instruction; that the verdict of the jury is contrary to the overwhelming weight of the evidence, and that the court erred in refusing to enter judgment for the appellants notwithstanding the verdict or to grant the defendant a new trial; that the court erred in granting the appellee certain instructions, and, lastly, that the verdict of the jury was so grossly excessive as to evince passion, prejudice and bias.
(Hn 1) We are of the opinion that the court correctly refused the requested peremptory instruction, and that the verdict of the jury is not contrary to the overwhelming weight of the evidence. The appellants' argument, in the main, is that the appellee received his injuries about fifteen minutes prior to the collision in the instant case when the truck he was operating slid off into a ditch at the garbage disposal plant. The evidence on this feature of the case was sharply conflicting. It is also contended that the testimony of the appellee was insufficient to support the verdict. As stated before, there were many contradictions and the evidence was sharply conflicting, however, this was a matter for the determination of the jury. Schumpert v. Watson (Miss.), 129 So.2d 627.
We have carefully examined the instructions objected to and find that when they are taken into consideration with the other instructions granted the appellant, the jury was furnished a correct guide and they are not erroneous. Stewart v. Madden, 233 Miss. 206, 101 So.2d 353.
(Hn 2) We are of the opinion that the appellants' assignment that the verdict in this case is so large as to evince passion and prejudice on the part of the jury is well taken. We are always reluctant to disturb a jury's finding of the amount of damages for personal injuries, however, in this case we have reached the conclusion that the verdict for $25,000 is excessive. If the appellee will enter a remittitur for $7,000, the judgment will be affirmed in the amount of $18,000, otherwise it will be reversed and remanded for a new trial on the issue of damages only.
Affirmed with remittitur.
Lee, P.J., and McElroy, Rodgers and Jones, JJ., concur.