Opinion
No. 41438.
April 4, 1960.
1. Damages — evidence on question of whether plaintiff actually sustained any injury growing out of automobile accident supported jury verdict for defendant.
2. Trial — under facts of case, trial court committed no error in refusing to delay trial of case for one day in order that plaintiff might obtain witness for purpose of producing testimony which clearly was not in rebuttal.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Lee V. Prisock, Jackson, for appellant.
I. The Court erred in refusing peremptory instructions requested by appellant. Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Gano v. Delmas, 140 Miss. 323, 105 So. 536; Illinois Cent. R. Co. v. Archer, 113 Miss. 158, 74 So. 135; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Wells v. Bennett, 229 Miss. 135, 90 So.2d 199; West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 776, 45 So.2d 585; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561.
II. The verdict of the jury was contrary to the law and the overwhelming weight of the testimony and evidence. Columbus Greenville R. Co. v. Buford, 150 Miss. 832, 116 So. 817; Flowers v. Stringer, 152 Miss. 897, 120 So. 198; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 659, 68 A.L.R. 167; Mississippi P. L. Co. v. Lembo, 202 Miss. 532, 32 So.2d 573; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.
III. The Court erred in refusing the appellant the right to present rebuttal witnesses and testimony. Fairly v. Fairly, 38 Miss. 280; Roney v. State, 167 Miss. 827, 150 So. 774; St. Louis-San Francisco R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
Watkins Eager, Jackson, for appellee.
I. Peremptory instructions requested by plaintiff were properly refused. Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Gano v. Delmas, 140 Miss. 323, 105 So. 536; Illinois Cent. R. Co. v. Archer, 113 Miss. 158, 74 So. 135; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Wells v. Bennett, 229 Miss. 135, 90 So.2d 199; West v. Aetna Ins. Co., 208 Miss. 776, 45 So.2d 585; Westerfield v. Shell, 161 Miss. 833, 138 So. 561; Secs. 8192, 8193, Code 1942; 52 Am. Jur. 366.
II. The verdict was in strict accord with the weight of the evidence.
III. No error was committed in limiting the plaintiff's rebuttal testimony.
The appellant in this suit contends that he sustained a most serious personal injury on January 26, 1958, when an automobile which he was driving in a northerly direction along North State Street in the City of Jackson, Mississippi, at about 12:15 P.M., was struck by an automobile driven by Miss Julia Piatt. In his testimony he depicted a horrible injury to his back, but after hearing all of the evidence the jury returned a verdict in favor of the defendant, from which comes this appeal.
(Hn 1) On this appeal he contends that the lower court erred in refusing a peremptory instruction in his favor, and he also contends that the verdict of the jury was contrary to the law and the overwhelming weight of the evidence.
It is sufficient for us to say that the issue presented in this case was strictly for the jury, and that by no stretch of the imagination was the appellant entitled to a peremptory instruction.
We have carefully read and considered tediously the lengthy record in this case and wo do not think that the verdict was contrary to the law, nor do we think that it was against the overwhelming weight of the testimony and evidence. On the contrary, we are of the opinion that the testimony shows rather conclusively that the appellant did not receive any injury and any verdict in his favor would have been against the overwhelming weight of the testimony and evidence. Consequently, we are of the opinion that the judgment appealed from should be affirmed.
(Hn 2) Complaint is also made that the lower court erred in refusing the appellant the right to present rebuttal witnesses and testimony. On his direct case the appellant denied that he had suffered any football or other sports injury, and he tried to give the jury the idea that his only injury was the one sued for. He also tried to give the jury the idea that he was discharged from the National Guard because of that injury, but according to the testimony of Captain R.W. McDonnah with the Adjutant General of the National Guard of Mississippi the appellant was discharged from the National Guard because of epileptic seizures, due to an old injury, which seizures, according to appellant's testimony, go back to 1955. Having repeatedly denied that he had received any injury from football or other athletics, at the very close of the case the appellant wanted the court to delay the case until he could get a football coach from Carthage, Mississippi, for the evident purpose of showing that he had received an injury playing football. This would not have been in rebuttal of anything, and we do not think that the trial court would have been justified in passing the case over for another day in order for the football coach from Carthage to arrive and give testimony.
Affirmed.
McGehee, C.J., and Holmes, Ethridge and Gillespie, JJ., concur.