Summary
In Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (Miss. 1985), the plaintiff was involved in eight separate, successive accidents in nearly three years.
Summary of this case from Brake v. SpeedOpinion
No. 43709.
December 13, 1965.
1. Damages — efficient cause — verdict for plaintiff against overwhelming weight of evidence.
Verdict for plaintiff in automobile accident case was against overwhelming weight of evidence in that it failed to trace injuries to plaintiff's back with requisite certainty to an efficient cause for which defendants were responsible.
2. Damages — efficient cause — recoverable damages must be reasonably certain.
Recoverable damages must be reasonably certain in respect to efficient cause from which they proceed.
3. Damages — all or apportionable part — burden of proof.
Plaintiff in automobile accident case had burden to show by preponderance of evidence that persons charged were wrongful authors of all or apportionable part of her damages.
4. Damages — all or apportionable part — burden of proof — plaintiff failed to meet.
Plaintiff suing for personal injuries allegedly sustained in automobile accident failed to sustain burden of proving by preponderance of evidence that defendants were wrongful authors of all or apportionable part of her damages.
5. Damages — nonconcurrent wrong — apportionable part — traced with reasonable certainty.
Defendant chargeable with nonconcurrent wrong may be made liable for damages for his part when damages are such that they may be apportioned, and a portion thereof can be traced with reasonable certainty to wrong of defendant as to cause of that portion.
6. Damages — accident cases — rule of certainty — reasonable probability.
Rule of certainty with respect to damages should not be strictly applied, but evidence must support jury findings of reasonable probability.
7. Damages — accident cases — minimum standards of proof.
Some minimum standards of proof as to fact and extent of loss will be required.
8. Damages — doctor, nurse and other medical bills — admissibility — proof required.
Admitting doctor, hospital, nurse, and other medical bills, without proof that charges involved were reasonable and necessary and causally related to defendants' negligent acts, was reversible error.
9. Witnesses — physician-patient privilege — waiver.
Plaintiff, by exhibiting to jury surgical scar on her back, and by testifying in some detail as to her injuries and communications from and to physicians and treatments of her by them, waived physician-patient privilege. Sec. 1697, Code 1942.
10. Witnesses — physician-patient privilege — waiver.
Where patient voluntarily goes into detail regarding nature of her injuries and either testifies as to what particular physician did or said while in attendance, or relates what she communicated to physician, physician-patient privilege is waived, and adverse party may examine physician. Sec. 1697, Code 1942.
11. Witnesses — physician-patient privilege — not an effectual and timely waiver.
The fact that, on third and last day of trial, plaintiff's counsel attempted to waive physician-patient privilege as to physicians who treated plaintiff did not establish effectual and timely waiver by which testimony of such physicians was made reasonably and presently available to defendants. Sec. 1697, Code 1942.
Headnotes as approved by Ethridge, C.J.
APPEAL from the Circuit Court of Chickasaw County; WILL A. HICKMAN, Special J.
Satterfield, Shell, Williams Buford, Jackson; McCraine Fox, Houston, for appellant.
I. The Court erred in refusing to grant appellants a directed verdict or peremptory instruction. Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343.
II. The Court erred in admitting, over objection, testimony and bills for doctor, hospital, nurse and other expenses. Allison v. Chicago Transit Authority, 336 Ill. App. 224, 83 N.E.2d 386; Blizzard v. Fitzsimmons, supra; Bryan Brothers Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289; Houston Contracting Co. v. Atkinson, 251 Miss. 220, 168 So.2d 797; Jackson v. Swinney, 244 Miss. 117, 140 So.2d 555; Kuwawa v. Baltimore Transit Co., 224 Md. 195, 167 A.2d 96, 89 A.L.R. 2d 1166; Michalski v. Wagner, 9 Wis.2d 22, 100 N.W.2d 354; National Fire Insurance Co. v. Sladen, 227 Miss. 285, 85 So.2d 916; Anno. 82 A.L.R. 1326; 25 C.J.S., Damages, 804.
III. The Court erred in ruling upon the objections made during the trial, and erred as to admissibility of evidence. Blizzard v. Fitzsimmons, supra; In Re Petition for Disbarment of Prisock, 244 Miss. 417, 141 So.2d 715; Kellum v. Cooperative Creamery Assn., 238 Miss. 731, 120 So.2d 433; Phillips v. Delta Motor Lines, 235 Miss. 1, 108 So.2d 409; Prisock v. State, 244 Miss. 408, 141 So.2d 711.
IV. The Court erred in overruling objections to appellee's final argument. Copiah Dairies v. Addkison, 247 Miss. 327, 153 So.2d 689; Danner v. Mid-State Paving Co., 252 Miss. 777, 173 So.2d 608.
V. The Court erred in allowing the appellee to invoke the so-called privilege. Ansner v. Loyal Protective Insurance Co., 276 N.W. 397; Blish v. Greer, 74 Ind. App. 469, 120 N.E. 606; Coca Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479; Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S.W. 699; Friesen v. Reimer, 124 Neb. 620, 247 N.W. 561; Hetheir v. Johns, 233 N.Y. 370, 135 N.E. 603; McPherson v. Harvey, 183 S.W. 653; Meshel v. Crotonia Park Sanitarium, 154 Misc. 221, 276 N YS. 989; Nolan v. Glynn, 163 Iowa 146, 142 N.W. 1029; Oliver v. Aylor, 173 Mo. App. 323, 158 S.W. 733; Reed v. Rex Fuel Co., 160 Iowa 510, 141 N.W. 1056; San Francisco Unified School District v. Superior Court, 55 Cal.2d 451, 359 P.2d 925; Treanor v. Manhatten R. Co., 28 Abb. N.C. 47, 16 N.Y.S. 536; 58 Am. Jur., Witnesses, Sec. 447 p. 253; 97 C.J.S., Witnesses, Sec. 310 p. 858.
VI. The Court erred in granting and refusing certain instructions to the jury. Bryan Brothers Packing Co. v. Grubbs, supra; Copiah Dairies v. Addkison, supra; Evans v. Greyhound Corp., 200 A.2d 194; Mintz v. Premier Cab Assn., 127 F.2d 744.
VII. The Court erred in not changing venue to more convenient forum. Clary v. Breyer, 194 Miss. 612, 13 So.2d 633; Gatlin v. Allen, 203 Miss. 135, 33 So.2d 304; Johns-Manville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405; Reid v. Middleton, 241 Miss. 224, 130 So.2d 554.
VIII. The Court erred in not conforming the first verdict.
IX. The Court erred in rejecting appellants' motion for judgment notwithstanding the verdict and motion for a new trial.
X. The verdict was so excessive as to evince passion, bias and prejudice.
XI. The verdict of the jury and the judgment of the Court are against the overwhelming weight of the evidence. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747.
Armis E. Hawkins, James S. Gore, Houston, for appellee.
I. Cited and discussed the following authorities: Boroughs v. Oliver, 226 Miss. 609, 85 So.2d 191; Bryan Brothers Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289; Illinois Central R. Co. v. Smith, 102 Miss. 276, 59 So. 87; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Marley Construction Co. v. Westbrook, 234 Miss. 710, 107 So.2d 104; Mississippi Central R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Montgomery Ward Co. v. Hutchinson, 173 Miss. 701, 159 So. 862; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; United States Fidelity Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Y.D. Lumber Co. v. Aycock (Miss.), 40 So.2d 551; Sec. 1455, Code 1942; 58 Am. Jur., Witnesses, Sec. 448.
This tort action for personal injuries was brought by Mrs. Kay W. Prisock (appellee) in the Circuit Court of Chickasaw County against Frank L. Dennis, doing business as Dennis Brothers Contractors, and Jimmy Rhea (appellants). The jury returned a verdict of $30,000.00 for Mrs. Prisock. We reverse and remand for a new trial. The judgment is against the great weight of the evidence, because it failed to trace the injuries to her back with requisite certainty to an efficient cause for which defendants are responsible. The trial court erred in allowing plaintiff to invoke the physician-patient privilege, since she effectively waived it; and in admitting doctor, hospital, nurse, and other medical bills, where they were not shown to be reasonable and necessary, and causally related to the defendants' negligent acts.
Between March 19, 1959 and January 31, 1962, Mrs. Prisock was involved in eight accidents. That on which this suit was based was the second in sequence. This action was filed on January 29, 1962, and was tried in October 1964.
The accident for which this suit was brought occurred on July 6, 1959. According to plaintiff's evidence, she was driving north in her father's automobile 80 to 100 feet behind a truck of Dennis Brothers Contractors, on which was located a water tank. The truck was being used to water fresh sod placed on the sides of a highway. The truck pulled right and stopped, Mrs. Prisock turned left to pass, but the truck shot back across the road at a 45 degree angle, striking the right front of her car with its right rear wheels. Her version was supported by testimony of a Dennis employee who said he saw the collision, and of her father, who told about an incriminating statement made to him later by Rhea, but denied by Rhea. On the other hand, defendants' version, according to Rhea, was that he stopped and waited to back the truck to a pond to get some water, when Mrs. Prisock ran into the rear of the vehicle. There is some dispute as to the extent of damage to the automobile, but the weight of the evidence indicates it was relatively slight. Repairs were made by plaintiff's father some time later. Mrs. Prisock remained in Chickasaw County for a month assisting her husband in his campaign for state treasurer. Dr. John D. Dyer of Houston saw Mrs. Prisock the day after the collision, and diagnosed her trouble as a back strain.
The great weight of the evidence indicates that the contribution of the accident of July 6, 1959 to Mrs. Prisock's previous and subsequent back condition was relatively slight.
About four months before the above accident, on March 19, 1959, while Mrs. Prisock worked in Jackson at Mr. Prisock's office, she fell down a flight of stairs and suffered a large bruise over her lower back. Dr. Albert L. Gore ordered a back brace with metal or bone ribs, and she wore it. She recalled talking with Lee, a claim representative of the Jitney Jungle store, where the steps were located, relative to her claim for this fall, and telling him that she fell down the steps and hurt herself. She may have advised him that she hurt her back, since it was bruised. Lee said she stated she fell from the top to the bottom of the stairs, about twenty steps; and that she injured her back and also her kidney, and Dr. Gore had told her to wear a back brace all of the time, except in bed.
On September 1, 1959, Mrs. Prisock was involved in a serious car wreck in Gulfport, when she was thrown from her car on the pavement, was hospitalized there three days, and was moved to a Jackson hospital where she remained seven days. She admitted she struck the pavement with her head and shoulders, since her left ear was almost torn off, and her face, neck, shoulders and back were injured, and her arms and legs were skinned. She could not recall how much she was paid by the owner of the other vehicle for that collision, but would not deny that it was $11,870.
In the summer of 1960 Mrs. Prisock fell at her home. She said she had a sprained wrist, although she admitted that she blacked out, hurt her arm, and had a cast on it. She stated it was not uncommon for her to faint frequently. On September 10, 1960, Mrs. Prisock ran upon a street curb, hit a fire hydrant, and was taken to the hospital, where she remained for three days.
On April 24, 1961, Mrs. Prisock had another fall in the Jitney Jungle building, when her shoe heel went through the floor and she fell, following which she was hospitalized. She injured her lower extremities, twisted her ankle, and fell on her knees. As a result of the fall she suffered a miscarriage, surgery being performed.
On November 21, 1961, Mrs. Prisock fell and injured her left elbow. Dr. Dyer x-rayed it and treated her.
On January 31, 1962, Mrs. Prisock was driving north on North State Street in Jackson when another lady pulled her car into traffic and there was a collision with a substantial impact. It jolted Mrs. Prisock quite severely and threw her around against objects in the car. She was injured in the chest, shoulder, neck and back, and, being unable to get the local doctor she sought, she went to her parents' home in Chickasaw County and was treated by Dr. Dyer. She was hospitalized for thirty-nine days. Dr. Dyer gave her a myelogram, from which he diagnosed a ruptured lumbar disc. He then sent her to Jackson, where on March 13, 1962, Dr. Walter Neill performed disc surgery.
Dr. Dyer, plaintiff's witness, was the only doctor who testified. Over objection, he stated as his opinion that Mrs. Prisock sustained the disc injury to her back in the collision involving appellant's truck on July 6, 1959. Yet he had no knowledge of plaintiff's fall down a flight of stairs on March 19, 1959, and the surrounding facts. He did not know she fell in the summer of 1960, of the automobile collision of September 10, 1960, and of a fall on April 24, 1961, or of the injuries resulting from them. She told him about the September 1, 1959 accident, but he did not treat her for it, although he prescribed some sedatives over a period of time. His reason for concluding that the July 6, 1959 collision caused the ruptured disc was "that the first time I saw this patient with a back injury was at that time." He thought he was thus justified in presuming that was her original injury. However, he did not know that she was wearing a back brace after March 19, 1959, and it would change his opinion considerably if the brace was for a back injury. The first time he x-rayed Mrs. Prisock's lower back was in February 1962.
(Hn 1) Under all of the foregoing circumstances, the verdict of the jury is against the overwhelming weight of the evidence. Plaintiff's evidence was sufficient to withstand a peremptory instruction, since the jury could find that defendants were negligent and as a proximate cause thereof Mrs. Prisock suffered some nominal injuries at the most. However, her evidence failed to connect or trace her back injuries with requisite certainty to an efficient cause for which the defendants are responsible. In fact, the great weight of the evidence indicates that there were at least five other accidents in which Mrs. Prisock was involved which were of a considerably more serious nature; and that at the most she received in this particular accident of July 6, 1959 only nominal damages.
(Hn 2) Recoverable damages must be reasonably certain in respect to the efficient cause from which they proceed. (Hn 3) Plaintiff had the burden to show by a preponderance of the evidence that the persons charged, the appellants, were the wrongful authors of all or an apportionable part of her damages. (Hn 4) This she failed to do. As was said in Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343 (1942): (Hn 5) "A defendant chargeable with a nonconcurrent wrong may be made liable for damages for his part when the damages are such that they may be apportioned, and a portion thereof can be traced with reasonable certainty to the wrong of the defendant as the cause of that portion. . . ." 193 Miss. at 493, 10 So.2d at 345. This rule was followed and applied in Hardin's Bakeries, Inc. v. Mrs. Cecil (Helen) Kelly, 254 Miss. 126, 180 So.2d 605; Jackson v. Swinney, 244 Miss. 117, 140 So.2d 555 (1962); and Magnolia Petroleum Company v. Williams, 222 Miss. 538, 76 So.2d 365 (1954). (Hn 6) The rule of certainty should not be strictly applied, but the evidence must support jury findings of reasonable probability. (Hn 7) In short, some minimum standards of proof as to the fact and extent of the loss will always be required. Harper and James, The Law of Torts § 25.3 (1956). Here there were multiple occasions of injury to Mrs. Prisock's back, preceding and subsequent to the accident of July 6, 1959. Yet the evidence does not show with any reasonable probability the connection between the accident in question and her back injuries, when it is considered with reference to her other accidents. Harper and James, The Law of Torts § 20.3 (1956).
(Hn 8) This conclusion is further emphasized by the errors of the trial court in admitting, over objections, testimony by plaintiff concerning bills for doctors, hospitals, nurses and other expenses, covering a period from October 1959 through March 1962. Some of these bills can be identified with hospitalization of appellee resulting from other accidents. It was reversible error to admit them without plaintiff proving that the services represented thereby were necessary as a result of the particular accident, and the charges were reasonable. Hardin's Bakeries, Inc. v. Kelly, supra; Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289 (1964); Jackson v. Swinney, supra; and National Fire Ins. Co. v. Slayden, 227 Miss. 285, 85 So.2d 916 (1956).
(Hn 9) It was also error to permit plaintiff to invoke the physician-patient privilege when defendants offered as their witnesses two doctors who had treated Mrs. Prisock for her injuries. Miss. Code Ann. § 1697 (1956). Appellee waived the privilege by not only exhibiting to the jury the surgical scar on her back, but also by testifying in some detail about her injuries and communications from and to those physicians and treatments of her by them. (Hn 10) Where a patient voluntarily goes into detail regarding the nature of her injuries and either testifies as to what the particular physician did or said while in attendance, or relates what she communicated to the physician, the privilege is waived, and the adverse party may examine the physician. McCormick, Evidence § 106 (1954); 97 C.J.S. Witnesses § 310 (c) (1957); 58 Am. Jur. Witnesses § 447 (1948); Lipscomb, Privileged Communications Statute — Sword and Shield, 16 Miss. L.J. 181 (1944); cf. Dixie Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686 (1936).
(Hn 11) On the third and last day of trial, plaintiff's counsel attempted to waive the privilege as to five physicians who had treated Mrs. Prisock, other than the two previously tendered by defendants and excluded because of the claimed privilege. This was not an effectual and timely waiver by which the testimony of these physicians was made reasonably and presently available to defendants. Gatlin v. Allen, 203 Miss. 135, 33 So.2d 304 (1948). Since the jury arguments by appellee's counsel, assigned as error, will probably not reoccur, no ruling on them is necessary.
Reversed and remanded.
Gillespie, Rodgers, Brady and Smith, JJ., concur.