Opinion
No. 32964.
January 24, 1938.
1. APPEAL AND ERROR.
While Supreme Court gives jury's verdict great consideration on appeal, duty rests on such court to supervise jury trials and scrutinize and consider verdicts to determine whether they are supported by evidence and amounts thereof are reasonable or greatly excessive.
2. APPEAL AND ERROR.
Where liability of defendant in personal injury suit is established and jury's verdict for plaintiff is deemed excessive, Supreme Court may grant new trial on whole case, or fix maximum amount which it will permit to stand, give plaintiff right to enter remittitur therefor, and affirm judgment.
3. DAMAGES.
A jury's verdict, awarding $12,500 damages to 75 year old brick layer, suffering from arthritis, for several broken ribs and lacerated and dislocated thumb, disabling him from using hand in his occupation, at which he earned about $150 a month, held excessive by $5,000.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Leathers, Wallace Greaves, of Gulfport, for appellants:
The evidence disclosed by the record shows that the appellee sustained a painful, but temporary, personal injury as the direct result of the collison, and that he suffered much pain and lost considerable time from the effects thereof. The record does not show that he incurred any expenses in effecting a cure of the injury.
The court erred in overruling the motion of the defendants for a new trial for the reasons set forth in the third ground stated in the motion, as follows: "The verdict of the jury is so grossly excessive as to clearly evince passion, prejudice and caprice on the part of the jury against the defendants."
We are conscious of the well settled principle of law which provides that, in a case of the nature of the one at bar, the amount of the award of damages rests largely within the discretion of the jury, and that a verdict of a jury in such cases is to be given great weight by the court in its consideration of the question of the excessiveness vel non of the award of damages; but we are also conscious of the fact that, throughout the entire history of jury trials, the courts have exercised a supervisory power over them, and have granted new trials whenever it reasonably appeared to them that the jury had been partial or prejudiced, or had not responded to reason upon the evidence produced. And, too, it is so well settled in American Jurisprudence that the duty of the court in supervising trials by jury is such a vital part of a jury trial that no court may refuse to exercise such power whenever it is convinced of its duty so to do.
Beard v. Williams, 172 Miss. 880, 161 So. 750.
It is well settled that, in a case of the nature of the one at bar, the measure of damages for a personal injury is an amount sufficient, so far as is susceptible of estimate in money, to justly compensate the plaintiff for all actual losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for pain and suffering, for loss of time, and for medical attendance and support during the period of disablement.
M. O.R.R. Co. v. Carpenter, 104 Miss. 706, 61 So. 693.
But the application of the foregoing principle of law in respect to the measure of compensatory damages is limited by the well settled doctrine of natural and proximate consequences, which provides that the plaintiff can recover only such damages as are shown by the evidence, with reasonable certainty, to have been the natural and proximate consequence of the wrongful act complained of.
Leek Milling Co. v. Langford, 81 Miss. 728, 33 So. 492; L. N.R.R. Co. v. McArthur, 137 Miss. 780, 102 So. 842; L. N.R.R. Co. v. Blair, 154 Miss. 680, 123 So. 859.
The application of the principle of law adverted to is further limited by the doctrine of certainty of proof, which provides that the damages recovered in any case must be shown by the evidence with reasonable certainty both as to their nature and in respect to the cause from which they proceed.
I.C.R.R. Co. v. Williams, 144 Miss. 804, 110 So. 510; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; State Highway Commission v. Brown, 168 So. 277.
While it must be conceded that the appellee is legally entitled to recover damages for the pain and suffering sustained by him as a natural and proximate result of the accident, and that, in ordinary cases of the nature of this one, the amount of the award of damages to the plaintiff generally rests largely within the discretion of the jury, all of the authorities on the subject concur in holding that the award must be just and reasonable, in view of all of the attending circumstances.
While this court, in its decisions dealing with the verdicts of juries in cases of the nature of this one, has not employed metaphysical niceties in making and stating distinctions between those verdicts which have met the requirements above stated and those verdicts which have not, its adjudications demonstrate beyond peradventure of doubt that the court is ever vigilant to correct the evils found in verdicts, where the evidence upon which they rest demonstrates that they are the result of passion, caprice and prejudice on the parts of the jurors rendering them, whether the evil operates in favor of the plaintiff or against him.
Y. M.V.R.R. Co. v. Smith, 82 Miss. 656, 35 So. 168; Bonelli v. Branciere, 127 Miss. 565, 90 So. 245.
Apprehended consequences from an injury which are, in their nature, contingent, speculative or merely possible, cannot be legally considered in computing the damages to be awarded for such consequences.
S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769.
In respect of the testimony of Dr. Holbrook, an expert witness introduced by the appellee, we confidently assert that the court will see from the record of his testimony that his status, as a witness, is well within the observations made by Lord Campbell, in speaking of expert witnesses in judicial trials, wherein he observed: "They come with a bias on their minds to support the cause in which they are embarked, and hardly any weight should be given to their evidence."
10 Clark Finneley's Reports, English House of Lords.
We are mindful of the fact that the excessiveness vel non of a verdict awarding damages in any given case must be decided by the court on the record of the evidence upon which such verdict rests, and that other adjudications in similar cases are not binding upon the court; but, since it is the general rule that appellate courts consider such adjudications as informative, we take the liberty of citing a few decisions in cases similar to the one at bar, for the information of the court.
City of Vicksburg v. Scott, 168 Miss. 562, 151 So. 914; City of Jackson v. Carver, 82 Miss. 583, 35 So. 157; Jay-Jay Chevrolet Co. v. Adcock, 172 So. 878; Burchfield v. West, 182 N.W. 954; Bratonja v. Wisconsin Ice Coal Co., 196 N.W. 244; Lloyd v. Breslin, 128 A. 883; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65.
In respect to the legal right of the appellee to recover any damages on account of expenses incurred by him in effecting a cure of his injury, it is respectfully submitted that he is not legally entitled to recover any such damages under the declaration and upon the evidence adduced.
McGehee v. Laurel Light Ry. Co., 113 Miss. 603, 74 So. 434; Walker Co. v. Davis, 128 So. 145; Friede v. Toye Bros. Yellow Cab Co., 157 So. 48; Gaines v. Teche Lines, 176 So. 134.
We especially direct the court's attention to the well know fact that the work of a brick mason, and that of a concrete worker, is hard, heavy and laborious in character; and that a man, who has attained the advanced age of seventy-five years, has a very short life expectancy, as is shown by the American Experience Table of Mortality, even if he be a healthy person and within the class of persons who have attained that age, of which appellee is not one, by reason of his disease. The court will take judicial knowledge of the existence of these facts.
Tucker v. Gurley, 176 So. 279; 3 Sutherland on Damages (3 Ed.), page 2674, sec. 1251; 17 C.J., pages 758 and 759, sec. 90; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Miss. Power Light Co. v. McCormick, 166 So. 534.
Chalmers Potter, of Jackson, and Bidwell Adam, of Gulfport, for appellee:
We most respectfully submit that under the testimony there was sufficient evidence for the jury to find, first, that immediately prior to the injury the plaintiff was a man seventy-five years of age, in good physicial condition, with the exception of his arthritis, held himself erect, was able to do, and had been doing, a full day's work whenever he was able to get employment, was extremely active for a man of his years, and was at least above the average insofar as his health was concerned for a man of his years. The jury would have been further justified in finding from the evidence that as a direct and proximate result of his injury, he had been totally and permanently disabled.
Larger verdicts, that is, larger verdicts than the one in the case at bar, have been rendered and sustained not only by this court but by other courts for old people who suffered total and permanent disability as a result of the negligence of the defendant.
La. R.R. Nav. Co. of Tex. v. Taylor, 285 S.W. 925; Southern Ry. Co. v. Crowder, 130 Ala. 256; Freeman v. Grashel, 145 S.W. 695; West Chicago St. R.R. Co. v. Bode, 51 Ill. Ct. of App. 440; Central of Georgia v. White, 56 So. 574; N.O. N.E.R.R. Co. v. Jackson, 110 So. 586; Miss. Cent. R.R. v. Smith, 168 So. 604; Y. M.V.R.R. Co. v. Daily, 127 So. 575; Yazoo City v. Loggins, 110 So. 833.
Of course we do not contend that for pain and suffering alone the verdict and judgment given in this case should be sustained. Unless the court is of the opinion that the evidence authorized the jury to find that the Captain was totally and permanently disabled as a result of his injury, with resulting loss of earnings, we make no contention but that the case should be reversed. We are of the opinion that there was sufficient evidence to justify the jury in finding this issue in plaintiff's favor.
We submit that it was an issue of fact to be decided on conflicting evidence by the jury, and the jury having found in plaintiff's favor that that finding is binding upon this court.
The evidence in this case is undisputed that for five or six years immediately preceding his injury, the plaintiff had earned $10.00 a day as a brick mason and concrete man while at work; that he had averaged from this source a monthly income of $150.00. This evidence, of course, undisputedly shows that he had not been employed all of the time. It was only necessary for him to be employed on an average of fifteen days a month in order to earn this sum.
Miss. Central R.R. Co. v. Smith, 168 So. 604.
Argued orally by R.A. Wallace for appellant, and by Bidwell Adam and Chalmers Potter, for appellee.
This is an appeal from a judgment of the circuit court of Harrison county in favor of John T. McDonald, and against Cecil Davis, I.T. Rhea, and Mrs. I.T. Rhea for $12,500. Mr. and Mrs. Rhea were doing business under the firm name of "Inn By the Sea," and Davis was driving a truck operated in their business. This truck, driven by Davis, collided with the car in which John T. McDonald was riding, the car being the property of one Frank Englander. McDonald was thrown from the car in which he was riding, and suffered several broken ribs, and a lacerated and dislocated thumb, from which injuries he suffered for a considerable time. His thumb seems to have been seriously injured, and at the time of trial he could not use his hand for this reason, in his occupation as brick and concrete layer. An X-ray made of McDonald after the injury showed that he had arthritis in his hand, thumb, hips, and other parts of his body, and that some of his teeth were decayed, and his gums affected with pyorrhea. The proof shows that in his calling of bricklayer McDonald received $1.25 an hour, or $10 a day when working, and that his earnings from this employment would be about $150 a month. In addition, he had a position with the Oyster Union and the Fisherman's Association, which he had held for about 6 years prior to his injury, from which source he had averaged about $50 a month. After his injury the Oyster Union and Fisherman's Association, after an election of officers, selected another to fill McDonald's place, it being the custom of the association, at intervals, to elect its officers, there being several hundred members of the organization. One of the physicians who attended Mr. McDonald was of the opinion that his injuries were not permanent, and it was shown that there was a complete and perfect healing of the broken ribs. It is said that McDonald's expectancy is 6 and a fraction years.
We deem it unnecessary to set out in greater detail the evidence and proof, showing the nature and extent of the injuries; suffice it to say that we have examined the testimony with care. The only assignment of error or contention is that the verdict is excessive, and we think, from a full consideration of all the evidence, that this contention is well founded. The injuries, at least other than the thumb, were not permanent; the plaintiff was afflicted with arthritis, and, as stated, was 75 years of age; and while previous to his injury he had not had medical attention, or illness, for a long period of time, yet this condition existed, as is not unusual with persons of that age, who cannot be expected to continue vigorous and with unimpaired capacity to work for the full period of the expectancy. While we give the jury's verdict great consideration, and have a profound respect for their judgment, yet the duty is upon the court, and has been throughout the history of the state, to supervise jury trials, and scrutinize and consider jury verdicts, as to whether they are properly supported by evidence, and whether the amounts are reasonable or greatly excessive. Where the liability is established, and the verdict is deemed excessive according to legal standards for the guidance of the court, the court may grant a new trial on the whole case, or it may fix an amount as the maximum which the court would permit to stand, and give the plaintiff the right to enter remittitur for such amount, and affirm the judgment. When the court fixes the largest amount for which a verdict would be allowed to stand, it does not mean that this is the amount the court would itself fix if it were a trier of the facts; but it fixes the maximum amount which, in the opinion of the court, should reasonably be allowed, giving due weight to differences of opinion upon such subjects by reasonable and prudent men. In a case where the verdict of the jury is for an amount in excess of that which the court finds as the maximum which could reasonably be allowed, the verdict and judgment ceases to be compensation, and becomes spoliation, and in such case the court must afford an appropriate remedy. In this case, after consideration, the court finds that $7,500 is the maximum which could reasonably be allowed by a jury; and, if the plaintiff will enter remittitur within 10 days from the rendition of this opinion, the judgment will be affirmed. If not, the cause will be reversed and remanded.
Affirmed with remittitur.