Summary
In Hoxie v. Hadad, 1943, 193 Miss. 896, 11 So.2d 693, the court disparaged the use of such an instruction, but said that when it is in general terms it is harmless and not reversible error.
Summary of this case from Evans v. Jackson City Lines, Inc.Opinion
No. 35222.
February 1, 1943. Suggestion of Error Overruled March 1, 1943.
1. NEGLIGENCE.
Where customer had filled grocery basket provided her by store and had taken basket to checking counter in pushcart likewise provided, whether there was negligence in act of clerk at checking counter in allowing bottle of cleaning agent to fall to floor and break, the fumes from which injured plaintiff's eyes, was for jury.
2. NEGLIGENCE.
In customer's action against store for injuries sustained when bottle of cleaning agent broke, the fumes from which injured customer's eyes, where testimony was conflicting, trial court properly refused customer a peremptory instruction.
3. APPEAL AND ERROR.
The error in giving instruction that jury in determining credit to be given a witness may consider interest of witness in result of suit whether as a party or otherwise for violation of statute forbidding "comment by trial court upon weight of evidence" was harmless although giving such instruction was not good practice (Code 1930, sec. 586).
4. TRIAL.
Code section 1527 removing disability of a party from testifying because of his interest does not justify an instruction to jury in violation of section 586 forbidding comment by trial court upon weight of evidence (Code 1930, secs. 586, 1527).
5. APPEAL AND ERROR.
Plaintiff could not complain on appeal of instruction requested by defendant which because of its inaptitude was disadvantageous to defendant and which authorized recovery by plaintiff for adequately proven injuries suffered as proximate result of the negligence of defendant.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Culkin, Laughlin Thames, of Vicksburg, for appellant.
The issue of defendant's liability to plaintiff should have been decided by the trial court as a matter of law as there was no conflict in the testimony as to the injury of plaintiff and its causation.
The court erred in granting defendant's instruction number three. This instruction is on the weight of the evidence and is in plain violation of, and contrary to, the expressed provisions of Section 586 of the Mississippi Code of 1930.
The only witness who testified for the plaintiff, on the issue of liability, was the plaintiff herself. This fact makes this instruction more palpably erroneous and clearly demonstrates that the only purpose that this instruction could possibly serve was to mislead the jury. Of course, Mrs. Hoxie was interested in the "result of this suit" for she was the plaintiff who brought this suit and who was to receive any award the trial jury should make. This fact did not warrant or justify the giving of this instruction, which singled out her testimony and gave it undue prominence. It directed the special attention of the jury to her testimony alone, and set up false standards by which her testimony should be weighed and considered.
Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. 545; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; M. A. Motor Freight Lines, Inc., v. Villere, 190 Miss. 848, 1 So.2d 788.
Brunini Brunini, of Vicksburg, for appellee.
Facts as found by the jury when supported by reasonable and substantial evidence must be accepted.
McLemore v. Rogers, 169 Miss. 650, 152 So. 883.
The accident was not foreseeable.
Shuptrine v. Herron, 182 Miss. 315, 180 So. 620; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
The appellant assigns as error that instruction number three for the appellee is erroneous. Appellant argues that this instruction singles out the testimony of Mrs. Hoxie and is therefore in violation of Section 586, Code of 1930, prohibiting instructions on the weight of the evidence.
Mrs. Hoxie was not the only witness who testified who might have had any interest in the result of the case.
The testimony in the case was not solely directed to liability. There were other issues, such as the nature and extent of the injury, and the effect of Clorox on the human body. The instruction therefore did not single out the testimony of Mrs. Hoxie because there were many other witnesses who testified concerning material issues which were sharply in conflict.
This instruction was requested and given upon the authority of the case of Yazoo Mississippi Valley Railroad Company v. Alexander, 182 Miss. 654, 179 So. 266.
Appellant was plaintiff in this suit. She alleges that she suffered injury to her eyes and vision when a bottle of liquid was negligently allowed or caused to fall from a package of groceries she had delivered to defendant's cash stand or counter to be checked out and paid for. It is sufficient to state that plaintiff was a customer of defendant and had selected certain merchandise from its shelves which she arranged in two baskets furnished to her and had brought these to the counter in a manually controlled pushcart likewise furnished. After removing one of the baskets and checking the contents, defendant's clerk reached over and raised the other basket to the counter. This act caused the bottle of a cleaning or bleaching agent to roll off and fall to the floor where it broke and its fumes or essences became diffused, causing plaintiff's injuries.
Assuming that an issue of negligence is presented as to the act of the clerk in allowing or causing the bottle to roll off the package, such issue was presented to the jury and its action thereon, unfavorable to her, may not be disturbed. In no event, in view of the conflict in the testimony, should the trial court have granted to plaintiff a peremptory instruction.
We shall discuss further only the alleged error in the granting to the defendant the following instruction: "The Court instructs the jury for the defendant that if you believe from the evidence that any witness who has testified in this case is interested in the result of this suit as a party or otherwise, then, in determining the credit to be given such witness, the jury may take into consideration such interest as the evidence shows such witness has, together with all the other facts and circumstances disclosed by the evidence, if any, which will aid the jury in arriving at and determining the credit to which the testimony of such witness is entitled." Defendant is correct in his contention that this instruction is an exact counterpart of that allowed in Yazoo M.V.R. Co. v. Alexander, 182 Miss. 654, 179 So. 266. Yet plaintiff argues that, since she was the only witness toward whom the import of the instruction could reasonably be aimed, it falls under the condemnation of Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. 545, and other cases. Plaintiff was not her only witness; she had called defendant as an adverse witness but nevertheless as her own witness. The testimony of her physician was also taken. The instruction was two-edged; both parties were presumably "interested." There were several witnesses for the defendant, some of whom were employees of defendant.
We do not however defend this instruction but rather disparage its use. The failure of the court in Yazoo M.V.R. Co. v. Alexander, supra, to disapprove same was sought to be justified by Allen v. Lyles, 35 Miss. 513; Callas v. State, 151 Miss. 617, 118 So. 447. In the former case the defect revealed was that the jury were required to accept as true the uncontradicted testimony of an interested witness; in the latter, the giving of an instruction similar to the one here attacked was held not error because similar instructions were given to the appellant. A substantially similar instruction was condemned in D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 145. Instructions of like import have been deplored in Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. 545; M. A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d 788. The vice in the instruction is that it violates Code 1930, Section 586, which forbids comment by the trial court upon the weight of the evidence. While its use was saved from error in Vails v. State, 94 Miss. 365, 48 So. 725, and in Murphy v. State, 119 Miss. 220, 80 So. 636, 637, because cured by other instructions or because it was not ostensibly directed to the testimony of a particular witness, the court in the latter case in discussing the instruction stated "we cannot say that it is good practice."
Although Code 1930, Section 1527, removes the disability of a party from testifying because of his interest, it does not justify an instruction to the jury in violation of Section 586. We see no duty here to reconcile or revise the decisions above referred to but take this occasion to say that the instruction, while declaring self-evident generalizations, makes no contribution to the power and prerogatives of the jurors whose experience and common sense make of it a truism. See Miss. Law Journal, Vol. XII, No. 3, pp. 265, 286. If it be conceded as error to give it, it was harmless and not reversible. On the other hand, its refusal by a trial court is to be commended as a clearer interpretation of Section 586.
The giving of the following instruction for the defendant is also assigned as error:
"The Court instructs the jury that the burden of proof is upon the plaintiff to prove by the greater weight of the credible evidence in this case that she received her injuries, if any, as the proximate result of the negligence of the defendant, and that unless she has done so, it is your sworn duty to find for the defendant.
"That you have no right to compromise in your verdict between the question of liability and the amount of damages; that if you shall find that according to the law as given to you in the instructions of this Court, under the evidence in the case, that the defendant is not liable, then the plaintiff is not entitled to recover any sum whatsoever, and it is your sworn duty to so find by your verdict.
"That you must not arrive at your verdict by lot or chance; that not one of you should consent to a verdict which does not meet with the approval of his own judgment and conscience after due deliberation with his fellow jurors and fairly considering all of the evidence admitted by the Court and the law as given in the instructions of the Court.
"That the mere fact — if you should so find — that an accident happened to Mrs. Hoxie, by which she received injuries, does not raise a presumption that it was due to any negligence of the defendant."
We are unable to find any error here. We think that despite the inaptitude, disadvantageous to the defendant itself, that the plaintiff may recover for adequately proven injuries suffered as the proximate result of "the negligence" of the defendant, it truly instructs the jury in respects in which experience has indicated a need exists.
Affirmed.