Opinion
No. 29470.
December 7, 1931.
1. DAMAGES.
Instruction held not erroneous as permitting damages for mental suffering after physical suffering ceased.
2. APPEAL AND ERROR.
Supreme court is reluctant to reverse for arguments by attorney where trial judge refused new trial on account thereof.
3. APPEAL AND ERROR.
Verdict will not be reversed because some of jurors had not paid taxes on 1st of February (Constitution 1890, section 264).
4. APPEAL AND ERROR.
Supreme court will not reverse for trial court's refusal of new trial on ground one of attorneys consulted with bankers as to selection of jury, where bankers were not shown to have interest in res.
5. TRIAL.
Law does not forbid attorney from consulting friends in passing on jurors, and nothing prohibits bankers or others from attending trials and advising with attorneys respecting jurors' qualifications.
6. DAMAGES.
Twenty thousand dollars to child for injuries by explosion and severe burns, permanently affecting child's physical and mental condition, held not excessive.
7. DAMAGES.
In a suit for personal injuries, where liability had been established in a former opinion of the court and where the injury caused physical and mental suffering to the person injured, it is not error for the court to charge the jury that it is their duty under the law to bring in a verdict against the defendants for such sum as will from a preponderance of the evidence fully compensate the plaintiff for his injuries caused by explosion, including all physical and mental pain and suffering endured up to the present time and which he may reasonably be expected to suffer in the future as a proximate result of said injuries, and also for any and all loss of earning capacity which he may be reasonably expected to sustain on account of any physical or mental impairment during his life and after majority; where the proof tends to show that there was a continuance of physical suffering to the time of the trial, the probability is of a continuance thereof.
8. APPEAL AND ERROR.
This court is reluctant to reverse a case because of arguments made by attorneys in the cause, where the trial judge, who hears the complete argument, refuses a new trial on account thereof. Argument in this case examined and held insufficient to reverse the judgment.
9. APPEAL AND ERROR.
The court will not reverse a verdict rendered by a jury merely because some of the jurors had not paid their taxes on or by the 1st of February, as, under section 264 of the Constitution, it is provided that the failure of a juror to possess the qualifications named shall not vitiate any verdict or indictment.
10. APPEAL AND ERROR.
This court will not reverse a trial court for its refusal to grant a new trial on the ground that one of the attorneys consulted with bankers as to the selection of the jury, where it is not shown that the bank officers were interested in the res of the suit. There is nothing in the law that forbids an attorney from consulting his friends in passing upon jurors, and nothing to prohibit bankers, as well as others, from attending public trials and advising with attorneys as to qualifications of jurors.
11. DAMAGES.
A verdict for twenty thousand dollars to a child for injuries occasioned by explosion and severe burns, which permanently affected his physical and mental condition and probably rendered him incapable of being developed into a normal man, and with probability that he would never have any earning ability or capacity and would probably have to be attended by an attendant throughout life to prevent him injuring himself by reason of inability to control his muscular movements under excitement or emotion, will not be held to be so excessive as to indicate passion and prejudice.
APPEAL from circuit court of Prentiss county. HON. THOS. H. JOHNSTON, Judge.
Wells, Jones, Wells Lipscomb, of Jackson, Lloyd J. Cobb, of New Orleans, La., Friday Windham, of Booneville, and E.C. Sharp, of Jackson, for appellant.
The instruction given appellee charges the jury that it is their sworn duty to award the appellee damages for "any and all physical and mental pain and suffering endured up to the present time, or which he may reasonably be expected to suffer in the future as a proximate result of said injuries." This instruction does not inform the jury, as it should have, that they could award appellee damages for mental pain so long as, and only so long as, such mental pain and suffering should "be accompanied with and be a part of the physical suffering," and that, "whenever the latter ceases to be an element of damage, so does the former."
Bonelli v. Branciere, 127 Miss. 556, 90 So. 245.
No action lies for the recovery of damages for mere mental suffering disconnected from physical injury and not the result of the wilful wrong of the defendant.
Western Union Telegraph Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L.R.A. 859, 24 Am. St. Rep. 300; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Grenada Bank v. Lester, 89 So. 2; So. Pac. Co. v. Hetzer, 135 Fed. 272, 68 C.C.A. 26, 1 L.R.A. (N.S.) 288; J.J. Newman Lumber Company v. Norris, 130 Miss. 751, 94 So. 881; Western Union Tel. Co. v. Ragsdale, 111 Miss. 550, 71 So. 818; Western Union Tel. Co. v. Koonce, 112 Miss. 173, 72 So. 893; Dorroh v. Ill. Cent. R.R. Co., 65 Miss. 14, 3 So. 36, 36 Am. St. Rep. 629.
The instruction was erroneous for it charges the jury that they may award him damages "for any and all loss of earning capacity which he may reasonably be expected to sustain on account of any physical and mental impairment during his life from and after his majority," regardless of whether such loss of earning capacity is occasioned by physical or mental impairment which is proximately caused or contributed to by the explosion complained of.
Mississippi Central R.R. Co. v. Lott, 80 So. 277, 118 Miss. 816, 249 U.S. 616.
The court erred in the adverse rulings made upon appellant's objection to the argument of counsel for appellee, and erred in overruling the motion of appellants for the discharge of the jury and the entry of a mistrial on account of said highly prejudicial and improper argument of counsel for appellee.
Yazoo M.V.R. Co. v. M. Levy Sons, 112 So. 786; Haines v. Haines, 54 So. 433; Illinois Central R.R. Co. v. Weinstein, 99 Miss. 515, 55 So. 48; New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; J.J. Newman Lumber Co. v. Norris, 130 Miss. 751, 94 So. 881; White's Market and Grocery Co. v. John, 153 Miss. 860, 121 So. 825; Pickwick Greyhound Lines, Inc. v. Silver, 155 Miss. 765, 125 So. 340; Morse v. Phillips, 157 Miss. 452, 128 So. 336; Morrell Packing Co. v. Branning, 124 So. 356.
Excessive verdicts are within the control of the judges of the trial courts, and they are charged with the duty of awarding relief therefrom.
Gulf M. N.R. Co. v. Jones, 125 So. 114.
The court must see that the trial is a fair one, and that the damages awarded are not beyond the bounds of reason or beyond the pale where reasonable minds might differ as to the amount.
New Orleans Great Northern R. Co. v. Frazer, 130 So. 493.
The verdict for twenty thousand dollars was so excessive as to evince passion, prejudice and undue influence on the jury.
Knight v. Vicksburg, S. P. Ry. Co., 76 So. 799; Carver v. City of Jackson, 82 Miss. 583; Yazoo M.V.R. Co. v. Cobb, 48 So. 522; Illinois Cent. R. Co. v. Williams, 144 Miss. 804, 110 So. 510; Sanders v. Quercus Lumber Co., 187 Mo. App. 408, 173 S.W. 740; Hayes v. Smith, 15 Ohio, C.C. 300, 8 Ohio, C.D. 92; Knight v. Vicksburg, S. P.R. Co., 142 La. 357, 76 So. 799; International G.N.R. Co. v. Underwood, 64 Tex. 463; Young v. Gravenhurst, 22 Ont. L. Rep. 291, 17 Ont. Week. Rep. 491, 2 Ont. Week. N. 262, 24 Ont. L. Rep. 467; 19 Ont. Week. Rep. 925, 3 Ont. Week. N. 10; Lapleine v. Morgan's L. T.R. S.S. Co., 40 La. Ann. 661, 1 L.R.A. 378, 4 So. 875; Sherwood v. Crescent Creamery Co., 130 Minn. 263, 153 N.W. 525; Rock v. J.E. Tilt Shoe Co., 168 Ill. App.? 467; Payne v. McNeeley, 123 Miss. 248, 85 So. 197; Yazoo M. Valley R. Co. v. Mothershed, 122 Miss. 835, 85 So. 98; Austin v. Browning, 150 S.W. 961; Gibbon v. Pennsylvania R. Co., 8 Kulp, 492; South Omaha v. Sutliffe, 72 Neb. 746, 101 N.W. 997; Elgin J. E.R. Co. v. Raymond, 47 Ill. App. 242, 148 Ill. 241, 35 N.E. 729; Kelmer v. Reckitt, 75 App. Div. 180, 77 N.Y.S. 395.
No citation of authority is necessary to convince the court that jurors under financial obligations to a person or corporation having pecuniary interest in the outcome of the litigation are subject to challenge for cause. It is admitted that at least two of the jurors gave false answers and thus lulled appellants into a sense of security and into accepting them which they would not have done had they known of the relationship of debtor and creditor. J.A. Cunningham, Floyd W. Cunningham, Lacey Lacey and J.E. Cunningham, all of Booneville, for appellee.
The instruction granted appellee on the measure of damages was not erroneous.
Pan American Petroleum Corp. v. Pate, 126 So. 480-483; Western Union Telegraph Co. v. Rogers, 9 So. 823; Bonnelli v. Branciere, 90 So. 245; Illinois Central R.R. Co. v. Williams, 110 So. 510.
The trial court heard the arguments offered by counsel for defendant, and he could fairly judge whether the counsel for appellant was answering their arguments, and while he sustained the objection to illustrating from history he certainly was correct in overruling the defendant's motion for a non-suit on account of matters which were perfectly legitimate and one in good faith.
Nelms Blum Company v. Fink, 131 So. 817; Valley Dry Goods Co. v. Buford, 75 So. 282; Dobbs v. Richardson et al., 102 So. 769; Miss. Central R.R. Co. v. Robinson, 64 So. 838; Gray v. State, 43 So. 289.
The verdict was not excessive.
Illinois Central Railroad Company v. Williams, 110 So. 510; S.H. Kress Company v. Sharp, 131 So. 412; St. Louis San Francisco Railroad Company v. Bridges, 131 So. 99.
Argued orally by J.A. Cunningham, for appellee.
This is the second appeal in this case; a former appeal being reported in 157 Miss. 822, 126 So. 480; 128 So. 870, where a statement of the facts as they then existed is set forth, and no further statement of them will be made here. The case was remanded in the former opinion for assessment of damages only; the judgment of liability being affirmed.
In the former opinion we held that liability was sufficiently established, and when the case was remanded the evidence was limited to the question of the amount and character of the damages. The court gave the following instruction for the plaintiff: "The court charges the jury for the plaintiff that it has already been adjudicated that the defendants are liable to the plaintiff, Dexter Pate, for negligently bringing about this explosion which injured him; therefore the court now charges you that it is your sworn duty under the law to bring in a verdict against the defendants for such sum as will from a preponderance of the evidence fully compensate the plaintiff for his injuries caused by said explosion, including any and all physical and mental pain and suffering endured up to the present time, or which he may reasonably be expected to suffer in the future as a proximate result of said injuries, and also for any and all loss of earning capacity which he may be reasonably expected to sustain on account of any physical or mental impairment during his life from and after his majority. And any nine of you agreeing on the amount may bring the same in as the verdict of the jury."
It is earnestly insisted that this instruction is erroneous in that it authorizes the jury to allow damages for mental suffering after physical suffering had ceased. We do not think this instruction is susceptible to that construction. When the case was here before, practically the same instruction was asked and given, which also contained the additional statement, "and also for any humiliation or embarrassment that he has or may reasonably be expected from the proof to endure on account of his scars or deformed condition." This last matter was the part of the instruction condemned in the former opinion. The instruction as given in the present case does not contemplate allowing damages for mental suffering after physical suffering has ceased. It allows for physical and mental suffering endured to the present time or which he may reasonably be expected to suffer in the future as a proximate result, etc. There is testimony in the case that the plaintiff still suffers from his injuries, and from the testimony as a whole we think the jury could infer that he would continue so to suffer; at least it was for the jury on the evidence to decide whether there would be suffering in the future or not, and, if so, the extent of its duration, intensity, etc.
In Bonelli et al. v. Branciere, 127 Miss. 556, 90 So. 245, 248, the court, in closing the opinion, said: "This view does not militate against the principle, well established in the jurisprudence of this state, that there may be a recovery for mental pain and humiliation growing out of and accompanied with physical injury. We simply hold that when the physical suffering is at an end there can be no recovery for mental suffering or humiliation which may thereafter continue as the result of the physical disfigurement of body."
If the appellants desired to clear up and make certain that the jury would not consider mental pain or humiliation endured after the physical pain had ceased, they could have procured an instruction to that effect. We do not think, however, that the instruction as written would convey to the jurors' minds that the jury could allow for mental suffering unless accompanied by physical suffering. The two are grouped together in the usual and customary manner of getting instructions along this line.
It is true that there was much testimony for the appellants which tended to show that there would be no permanent physical suffering, but there was other evidence that would warrant the jury in believing that there would be, and it was for the jury to decide the issue of fact thus raised in the evidence.
The second assignment of error argued in the brief is that the court erred in the adverse rulings made upon appellants' objection to the argument of counsel for appellee, as appears in the special bill of exceptions contained in the record, and in overruling appellants' motion for discharge of the jury, and the entry of a mistrial because of such argument. The argument, as contained in the record, does not appear to be a consecutive and continued argument, but appears to us to be a report of fragments of the argument; to certain parts of the argument the court sustained objections, and to other parts overruled objections. While it appears that the court reporter took down the argument of counsel for the appellee, it does not appear that the part complained of was a connected and consistent argument, but that it was fragmentary and disconnected, and it is difficult to say that it was improper, at least to the extent that would warrant this court in reversing a judgment because thereof. We are reluctant to reverse judgments because of arguments made by counsel; the jury being usually practical men of sound judgment and good character, is capable of understanding that attorneys presenting their arguments will argue favorably for their clients, and the statements of attorneys in argument are not usually given unusual weight by the jury in determining the issue; at least there is nothing in the record that would lead us to believe that the jury was influenced unduly by the argument. At all events, after a careful consideration of the portion of the argument set forth in the bill of exceptions, we are unable to hold that the trial court, who heard it and who was in a better position to fully understand the argument in connection with the case than we are, erred in overruling it.
After the trial there was a motion for a new trial, in which it was contended that certain jurors were not qualified electors because they had not paid their taxes on or before the first day of February of the year in which they were serving. The trial took place during the month of February, and it appeared that some of the jurors had not paid their taxes. Some of them had been listed with checks filed with the sheriff in blank to be filled in and collected by the sheriff, and these were left with the sheriff in the latter days of January, but he had not checked up and filled in and cashed the checks at the time of the trial. Under section 264 of the state Constitution it is expressly provided that the failure of a juror to possess the qualifications therein named, which are that he must be a qualified elector able to read and write, would not vitiate any verdict or indictment. We do not think there is any reason for reversal of the judgment under the facts contained in the record upon that proposition.
It was also contended in the motion for a new trial that certain of the jurors were indebted to a certain bank, and that the officers of the bank were in attendance on the court and conferring with counsel for the plaintiff during the selection of the jury, and that the leading counsel for the plaintiff was indebted to the bank; it being alleged that the interest of the said attorney in a recovery of the suit was a contingent fee of fifty per cent. of the recovery which had been assigned to the bank as security for debt. The evidence showed that there had been no assignment of the claim, and also showed that the bankers were not specially interested in the matter and were only in the courtroom during a portion of the period in which the jury was being impaneled. It did appear that some of the jurors were indebted to the bank. We know of no method by which bankers can be prohibited from appearing in court; court trials being public and bankers being free citizens as other men. Nor do we find any ground for holding that an attorney cannot confer with a banker with reference to the fairness and impartiality of prospective jurors. It is customary for attorneys, when in doubt as to the fairness, competency, and other matters affecting jurors, to confer with their friends. We cannot presume jurors would commit perjury or violate their duties as jurors to please a creditor, especially where there is no effort on the part of the creditor to induce them so to do. We find no reversible error in overruling the motion for a new trial.
It is insisted here and in the motion for a new trial that the verdict of twenty thousand dollars was excessive to the extent that it indicated passion and prejudice. The proof shows that the plaintiff, a child, was permanently injured, and that it would never develop into a normal man, and would probably never have any earning ability or capacity, and it would be necessary, probably, for him to have some person throughout his life to accompany and look after him wherever he might be, to prevent him injuring himself due to the impairment of his physical and mental faculties and with his inability under excitement to control his movements, because of which he was liable to run into anything. It is argued that, inasmuch as the child is only seven or eight years old, and is due to be supported by his parents until he is twenty-one, the recovery would have to be invested at interest and the interest compounded during this period of time, and, when so compounded, the award would be so excessive as to his actual needs as to leave the principal sum unimpaired at his death at the end of a normal expectancy. We do not think this argument is sound. The child is a child of poor parents, who may not be able to properly support and educate him or to give him proper medical attention during his minority, or who might die prior to his attaining his majority. Under the law the guardian of a minor may, with the permission of the chancery court, in proper cases, spend part of the corpus of an estate for the use and benefit of a minor. We cannot anticipate that there will be no necessity for so doing, or that the needs of the child in its physical and mental condition would not probably require a considerable expenditure during the minority. We would hesitate to hold that twenty thousand dollars was an excessive verdict under the facts produced by the plaintiff, assuming them to be true, as the jury found they were true. We therefore must affirm the judgment of the court below.
Affirmed.