Opinion
November 22, 1948.
1. Trial — instructions.
Substantial accuracy rather than technical correctness is the requirement of an instruction and when not misleading and the inaccuracy could have no actual influence on the jury so as thereby to produce an improper verdict, the Court will not reverse.
2. Trial — instructions.
Technical inaccuracy in an instruction will not alone cause a reversal; but when the case on appeal is examined as a completed trial and a fair and just result has been reached, the judgment will be affirmed notwithstanding such an error in an instruction.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Tallahatchie County; JNO. M. KUYKENDALL, J.
Breland Whitten, and B.J. Dye, for appellants.
It is reversible error for the trial court to grant an instruction peremptorily instructing the jury of the existence of a material fact in issue not clearly established without any conflict by the whole proof; or where the facts assumed by the trial judge in the instruction are contradicted by the evidence or by reasonable inferences to be drawn therefrom.
We earnestly insist that the trial court committed a reversible error in giving to the appellee its instruction number seven. The lower court by the instruction, it will be noted, peremptory instructed the jury that, "the people living in the territory sought to be annexed are greatly in need of streets, although only a part of said land has been platted and laid off in lots;" and this instruction told the jury that these facts are sufficient to sustain reasonableness of the ordinance annexing said territory to the city.
We submit that there is no proof in the record on this question. That is to say there is no positive testimony in the record stating that the residents in the territory to be annexed needed streets in that territory. The jury at most could be justified in finding this fact by inferences from all of the facts and circumstances in evidence. And as already stated in this brief, and we think correctly so, the jury was not authorized to find this fact from all the proof in the record. Manifestly this was one of the facts in issue. On this point we cite: Reed v. New Orleans R. Co., 170 Miss. 296, 151 So. 553; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8.
If on this record the appellants were not entitled to a directed verdict, then manifestly because this case is a very close one on the facts as a whole as to whether or not the city had the power to annex the territory in question, the appellants were entitled to have submitted to the jury the question of the reasonableness of the extention of the city limits on fair and proper instructions. We earnestly insist that the giving of the above instruction for appellee was prejudicial to appellants. It was highly calculated to confuse and mislead the jury and no doubt did just that. The peremptory form of this instruction can only, we think, explain the verdict of the jury in this case. We submit, therefore, because of the giving of the seventh instruction this case should be reversed.
Caldwell Caldwell, for appellee.
The instruction that the appellants object to (7), is in no way a peremptory instruction although the way it is stated may be worded wrong at the start. However, the later part of the instruction removes any doubt as to the meaning of the instruction and tells the jury to find for the appellee if they believe from the evidence what is stated by the court. We cannot see how the jury was misled by the instruction.
In the argument of the appellants to quote "the court peremptory instructed the jury, that, `the people living in the territory sought to be annexed are greatly in need of streets, although only a part of said land has been platted and laid off in lots,' and this instruction told the jury that these facts are sufficient to sustain the reasonableness of the ordinance annexing said territory to the city." In other words that the court instructed the jury that the annexed territory was greatly in need of streets and that the fact was sufficient to sustain the reasonableness of the ordinance. We do not see how the appellants can give the instruction this meaning and know that the jury did not give it a meaning of this kind. The instruction after making the statement above quoted further adds these words "yet if there is a need, as shown by the evidence, of streets, sidewalks, . . ." The court did not tell the jury to find for the appellee unless they believed from the evidence that there was a need for streets. In other words the later part of the instruction left the matter of needing streets in the annexed territory a question to be settled by the jury from the evidence. The courts have held that one isolated word or one phrase or sentence in an instruction though not supported by facts is not enough to render the instruction bad when the instruction as a whole announces the correct statement of the law. The instructions are to be taken as a whole. Where the jury has heard the evidence in the case as in this one and the case submitted to them on the evidence and instructions, it could not be said that the jury could be misled by this instruction. This instruction at the worst construction to be given it would state a propositiontion like this: The court instructs the jury that the annexed territory is in need of streets but before they can find the ordinance of annexation reasonable they must believe from the evidence or it must be shown by the evidence that there is a need of streets, sidewalks and alleys and etc., and if they so believe from the evidence that these facts exist then these facts are sufficient to sustain the reasonableness of the ordinance of annexation.
We disagree with the appellants that there is no proof in the record as to the need of streets. The appellants would have the court believe the lower court by this instruction told the jury that there was a need of streets in the annexed territory and that this fact alone made the ordinance reasonable. Take the instruction as a whole or in anyway it can be divided and it does not so state.
On April 1, 1947, the Board of Mayor and Commissioners of the City of Charleston passed an ordinance extending the boundaries of the city to embrace one tract containing approximately 51 acres northeast of the city and another tract, containing approximately 40 acres, immediately south of the city, so far as can be determine from this record.
Miss Mae Neely and others, feeling aggrieved by the passage of the ordinance, took an appeal to the Circuit Court of the first judicial district of Tallahatchie County, where the matter was heard upon the issue of whether the ordinance be or be not unreasonable. The jury found the ordinance to be reasonable and valid and a judgment annexing the area described in the ordinance was accordingly entered in the lower court. From that judgment, the case is brought here on appeal.
Four grounds of error are assigned by appellants in their assignment of error but there is only one of them that merits discussion. Under assignment No. 3 it is urged that the court below erred in granting instruction No. 7, which reads as follows: "The Court further instructs the jury that the land sought to be annexed to the city is contiguous thereto, and the people living in said territory are greatly in need of streets, although only a part of said land has been platted and laid off in lots, yet if there is a need, as shown by the evidence, of streets, sidewalks and alleys and that public convenience and health require that the lands be subject to the jurisdiction of the city for the protection of the property therein, these facts are sufficient to sustain the reasonableness of the ordinance annexing said territory to the city."
It is urged by appellants that by this instruction the court peremptorily instructed the jury that "the people living in the territory sought to be annexed are greatly in need of streets," while the need of streets, if any, was one of the matters to be considered by the jury in testing the reasonableness of the ordinance. But let us also observe that the court followed this objectionable language with "yet if there is a need, as shown by the evidence, of streets, sidewalks . . . and that public convenience and health require that the lands be subject to the jurisdiction of the city for the protection of the property therein, these facts are sufficient to sustain the reasonableness of the ordinance annexing said territory to the city." Consequently, a fair and reasonable interpretation of this instruction is that the court did not tell the jury to find the ordinance reasonable, unless it was shown by the evidence that there was a need for the streets, sidewalks, etc., and that public convenience and health required that the lands be subjected to the jurisdiction of the city for the protection of the property therein. The reasonableness of the ordinance was the issue to be determined and the need of streets, if any, was only one circumstance among many to be considered by the jury in arriving at its conclusion upon whether or not the ordinance is reasonable, and the jury was directed to look to the evidence for the basis for determining whether there was a need for the streets. The main fault with the instruction is that it does not state a hypothesis. The jury should have been instructed that if they believe from the evidence that there is a need of streets, etc., these facts would be sufficient to sustain the reasonableness of the ordinance, provided, of course, they also believed from the evidence the existence of the other elements set up therein. But in the present case the facts constituting the city's theory and appellants' theory are testified to clearly and directly and were no doubt argued to the jury and no prejudice could result to the appellants, under the facts of this case, by giving this instruction. (Hn 1) This court will not reverse a case because the instruction is not happily phrased, or because not exactly technically correct, so long as the instruction is not misleading, or where the inaccuracy complained of could have had no influence on the jury in reaching the verdict that could be said to be improper. Substantial accuracy is all that is required in an instruction, and unless the court can see that jury may have been misled, it will not reverse. Meridian Sanatorium v. Sruggs, 121 Miss. 330, 83 So. 532. (Hn 2) The fact that an instruction is technically inaccurate will not alone cause a reversal of a judgment; but when the case on appeal is examined as a completed trial, and substantial error has not been committed and a fair and a just result has been reached, the judgment will be affirmed, notwithstanding error in an instruction. City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817.
Viewed in the light of these established legal principles, this record convinces us that a fair and just result has been reached and that under the facts here the jury reached a proper verdict. Consequently, we cannot say that the inaccuracy in the instruction may have misled the jury in reaching an improper verdict, for here the verdict is proper, and we must find it improper before we can reverse.
Affirmed.