Summary
In F.W. Woolworth Co. v. Haynie, 176 Miss. 703, 170 So. 150 (1936), this Court held that the plaintiff could not testify that the substance in the water used by her caused the diseased condition of her hands.
Summary of this case from Dennis v. PrisockOpinion
No. 32316.
October 19, 1936.
1. EVIDENCE.
Testimony of soda fountain clerk, in suit against employer for injuries, that condition of clerk's hands and feet was caused by chemical in dish water, should have been excluded as unsupported opinion of nonexpert witness.
2. MASTER AND SERVANT.
Unsupported evidence of soda fountain clerk, suing employer for injuries, that condition of clerk's hands and feet was caused by chemical used in dish water, held insufficient for jury in view of undisputed testimony that product was extensively used for antiseptic and sterilization purposes and expert opinion that product containing same chemicals as one used would not be harmful.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Leathers, Wallace Greaves, of Gulfport, for appellant.
As shown by the record, the questions of appellee's counsel seeking information from appellee as to what effect the Pur-a-fac had on appellee's hands and feet, were objected to by appellant for the reason that the appellee, a lay-witness, was not qualified to testify relative to the effects of the chemical, and, in addition thereto, the appellant, at the conclusion of the testimony of the appellee, herself, moved the court to exclude all the testimony of the appellee relative to the harmful effects of Pur-a-fac or with reference to any injury to appellee's hands and feet from Pur-a-fac for the reason that appellee had not qualified to testify with reference to these matters, and for the further reason that there was no charge in the declaration that Pur-a-fac was harmful or injurious to the human skin. These objections and motion were all overruled by the trial court.
Jones on Evidence, secs. 359, 360.
The testimony of the appellee, the only witness in this case who attempted to say that the condition the appellee complained of was caused by the use of the chemical Pur-a-fac, as to the effect of appellee's using and standing in water treated with Pur-a-fac, could not possibly be more than a conjecture or haphazard guess on the part of the appellee.
It is fundamental that wherever opinion evidence is admitted, one of the first essentials is that the witness should be possessed of adequate knowledge regarding the subject matter to which his testimony relates, and, where the testimony is as to an inference, it must also appear that the witness is qualified to draw the correct inference.
22 C.J., page 516; I.C.R.R. Co. v. Short, 74 So. 123.
The appellee in this case did not attempt, as we have already stated, to qualify as an expert in order that she might testify what effect her using and standing in the chemical Pur-a-fac had upon her physical make-up; nor did she ever attempt to show that she possessed any knowledge whatever regarding the effect of her standing in and using the Pur-a-fac; nor did she attempt to qualify herself so as to be allowed to testify properly that her using and standing in the chemical had caused the physical condition she was complaining of.
F.W. Woolworth Co., Inc., v. Volking, 100 So. 3.
The lower court committed reversible error in refusing to grant the appellant a peremptory instruction.
There were no facts proved upon which a verdict might rest, and the verdict in this case rests solely upon surmise, speculation and conjecture.
23 C.J., sec. 1795; Y. M.V.R. Co. v. Boone, 72 So. 777; I.C.R. Co. v. Humphries, 155 So. 421; M. O.R.R. Co. v. Clay, 125 So. 819.
T.J. White and Bidwell Adam, both of Gulfport, for appellee.
It is our contention that appellant was not entitled to a directed verdict, for the reason, that, leaving out entirely the chemical composition of Pur-a-fac, the appellee was still entitled to go to the jury on the question of the negligence of the appellant.
Appellant contends that it was necessary for appellee to be an expert before she should be allowed to tell the physical condition of her hands and feet. We submit that there is no expert knowledge involved and no necessity for the same; that she had the same right to testify about her condition, that she would have had if she had been burned, to state that she was burned, although she could not have explained the chemical composition of the fire that burned her.
None of the physicians introduced by the appellant as witnesses in the case based their testimony, or one word thereof, on the chemical analysis, or contents, of Pur-a-fac, and the chemist did not know what it contained. The chemist's analysis of the liquid that he did analyze was much weaker (at least thirty-three and one-third percent) than that claimed on the large container of liquid exhibited as "Pur-a-fac."
The jury had a perfect right to infer and believe from the evidence that, although the analysis of the chemist about the small bottle of fluid was correct, the color of the fluid in the large container being entirely different from that in the bottle analyzed by the chemist, and the card on the large container showing a different analysis from that of the chemist with reference to the fluid that the chemist had analyzed, that the chemist's analysis was not in fact an analysis of the Pur-a-fac used in the water in which the appellee was required to wash dishes, and the overflow of which she was required to stand in to do her work.
F.W. Woolworth v. Volking, 100 So. 3.
Argued orally by P.D. Greaves, for appellant.
This is an appeal from a judgment awarding the appellee five hundred dollars damages for personal injuries alleged to have been sustained by her while she was employed by appellant at the soda fountain in its Gulfport store.
The declaration alleged, in substance, that, among appellee's other duties at the soda fountain, she was required to wash dishes in sinks or compartments, in water that had been treated with some kind of chemical, the exact nature of which was unknown to her, but called "Pur-a-fac;" that this chemically treated water overflowed onto the floor beneath the sinks and other compartments, thereby rendering her place to work unsafe; that in the performance of her duties she was required to stand and walk in this overflow water; and that, as a result of using her hands in this chemically treated water, and having to stand in this overflow water, her hands and feet became affected, and pus formed around the nails of her fingers and toes, causing some of them to become disfigured, and causing her great pain and suffering.
Appellee testified that she was treated by two physicians for the infection and the diseased condition of her hands and feet, but she did not introduce either of these physicians, or any other expert evidence to show a causal connection between the diseased condition of her hands and feet and the chemically treated water which she was required to use. Over specified objections of the appellant, the appellee was permitted to testify that the condition of her hands and feet was caused by the Pur-a-fac in the water which she was required to use in the performance of her duties, and the admission of this testimony is assigned as error. Appellee had no knowledge of the constituent elements of the product used in the water with which she performed her duties, and no knowledge or training which would qualify her to give expert testimony as to the effect of the use of Pur-a-fac for sterilization purposes. This testimony was merely the unsupported opinion or conclusion of a nonexpert witness, with no basis of facts upon which to found it, other than the mere fact that the diseased condition existed, and it should have been excluded. Woolworth Co., Inc., v. Volking, 135 Miss. 410, 100 So. 3; Yazoo M.V.R.R. Co. v. Boone, 111 Miss. 881, 72 So. 777.
But in view of the undisputed testimony that Pur-a-fac is a product extensively used for antiseptic and sterilization purposes, and the opinions of numerous experts who testified for the appellant that a product containing the same chemicals as Pur-a-fac, even in higher percentages than those shown by a chemical analysis of the particular product used by appellant, would not be harmful to the hands and feet when diluted in water as herein shown by the evidence, that is, one tablespoonful to three gallons of water, the unsupported testimony of the nonexpert witness as to the cause of the diseased condition of her hands and feet was not of sufficient probative value to furnish a basis upon which to rest liability; and upon the whole evidence we are of the opinion that the peremptory instruction requested by the appellant should have been granted.
The judgment of the court below therefore will be reversed, and judgment entered here for appellant.
Reversed and judgment for appellant.