Opinion
No. 33900.
November 27, 1939. Suggestion of Error Overruled January 8, 1940.
1. AUTOMOBILES.
In action for personal injuries sustained in collision between plaintiff's automobile and defendant's passenger bus, conflicting evidence regarding whether accident was due to fault of plaintiff or to fault of bus driver sustained verdict for plaintiff.
2. DAMAGES.
In action for personal injuries, evidence regarding whether injuries sustained by plaintiff were permanent was for jury.
3. EVIDENCE.
Where defendant defended personal injury action on ground that on day of accident plaintiff signed statement declaring that he alone was at fault, but evidence disclosed that plaintiff declined to sign first statement on ground that it was incorrect, and testimony was conflicting whether he signed final statement on the assumption that errors pointed out in first statement had been corrected, the question was for jury.
APPEAL from the circuit court of Marion county; HON. J.C. SHIVERS, Judge.
Stevens Stevens, of Jackson, for appellant.
The court erred in refusing to grant the following instruction: "The court instructs the jury for the defendant that in no event can the jury award the plaintiff any damages for any alleged permanent injury or injuries."
There is no credible evidence that sustains any permanent injury. The declaration expressly charges that the "plaintiff's injuries are permanent", and undertook to have the plaintiff, as a lay witness, testify that his ribs were broken. The record of this case is a miserable attempt to exaggerate an old man's slight injury; that he was bruised and shocked to some extent is natural and admitted. He was able immediately to get up and walk around and converse, pull at the broken parts of his old car, flag an automobile and go into Columbia and negotiate for a wrecker; to come back out to scene and return and immediately repair to the office of Senator Dale and thereafter to the office of the chancery clerk, transacting the business incident to this unfortunate happening. If the plaintiff had received three broken ribs, as now contended, he would not have been able to go about transacting the business of the day in the way he did; he would have required medical attention then and there while in Columbia. He goes back home and has a country doctor to attend him. This doctor was honest enough on the witness stand to admit that he did not know for sure whether the plaintiff had any broken ribs or not; that he guessed he did, based on "subjective symptoms". He did not so much as strap up the man's back or side; he made no x-ray and recommended none while he says he made several visits, which were recorded in a book he did not produce his book or show how many visits were made as recorded, although brought from one county to another to testify in this case. He admits there was no visible displacement, only a contusion, and furthermore if there had been a fracture of the ribs with no mal-adjustment nature would knit them together.
The court was in error in overruling the motion for a new trial. This is particularly a case where the jury finds against the overwhelming weight of the testimony. The plaintiff had every advantage; but for the bold, bald, exaggerated statement of the plaintiff as a witness in his own behalf, that he was traveling on the right side of the highway and the bus was proceeding on the wrong side, the peremptory instruction asked for in this case, and refused, would have been granted. If, however, the plaintiff is to be permitted to repudiate his solemn sworn statement made on the day of the wreck, acknowledging that he was on the wrong side of the road and altogether at fault, and is to be welcomed into the front door of a court of justice and is permitted to repudiate such a sworn statement and make an issue for the jury thereby, then, of course, we were not entitled to the peremptory instruction. We have certainly fallen on evil days when a white man of advanced years can solemnly swear to a statement before the chancery clerk, recognized by all as a responsible and trustworthy officer, and then immediately repudiate it, and yet that is exactly what Mr. Skinner has done in this case.
The authorities, especially in Mississippi, are in accord in holding that in all cases where the verdict of the jury is contrary to the overwhelming testimony in the case, the trial judge not only has the right but it is his duty to set the verdict aside and grant a new trial. Under any view of this case, the overwhelming proof is with the defendant. The burden of proof was upon the plaintiff to sustain the allegations of the declaration by credible testimony.
Sec. 592, Code of 1930; Jolly v. State, 174 So. 244; Heflin v. State, 178 So. 594; Great A. P. Tea Co. v. Davis, 171 So. 550, 177 Miss. 562.
We confidently assert that this case falls within at least two of the three instances stated by the court in which the trial judge should exercise his constitutional right to set the verdict aside and this same duty rests upon this court. Hall Hall, of Columbia, and G.M. Milloy, of Prentiss, for appellee.
Appellant first complains at the action of the court in refusing to peremptorily charge the jury that they could award no damages for any alleged permanent injury, and counsel argue that if the plaintiff had received three broken ribs he would not have been able to get a wrecker, have his car picked up, be dragged around to the office of the bus line's attorney and the chancery clerk, and then go home. If such be the position of appellant, then appellant should have offered the testimony of some medical expert who would say that such activity on the part of the appellee, while suffering with three broken ribs, would be impossible, but the appellant offered no such testimony, and now asks this court to hold as a matter of law that such is the case.
It seems to be the idea of opposing counsel that if the operator of a bus line can have its lawyer get hold of an ignorant citizen who can neither read nor write, and take advantage of his ignorance by getting him to touch the pen on a statement which has not even been read to him, and which has been prepared in advance by the attorney for the bus line, then such a citizen should have no standing in court, regardless of the facts surrounding his injury, and regardless of the fact that a host of disinterested witnesses are ready to swear that the bus was on the wrong side of the road. There is a vast difference between the execution of a warranty deed and the obtaining of a statement from an injured party by the attorney for a bus line. The plaintiff swore that the attorney for the bus line had already prepared a statement ready for his signature before he was carried to the attorney's office, and when he went into the office a statement was already typed for his signature. Roy Hodges, the bus driver, admitted that he went around to the place where the plaintiff's car was being patched up and got the plaintiff and took him to the office of the lawyer for the bus line, and that when they got there, the lawyer had already fixed up a statement just like he wanted it.
According to the testimony of Hodges, the so-called statement was obtained about 10:00 A.M., or one hour and forty minutes after the wreck, at a time when the illiterate victim was so severely suffering from his injuries that it necessitated two visits from the doctor and the administration of opiates on two occasions that very day to relieve him from his suffering. The court will bear in mind that we are dealing now with a mere statement, obtained from an ignorant and illiterate man, without any consideration whatsoever. Even in the cases of releases, taken for a valuable consideration, so shortly after an injury to a party, this court has repeatedly held that claim agents and attorneys have acted with such indecent haste that a release thus obtained is an absolute nullity.
Jones v. A. V.R.R. Co., 72 Miss. 22; K.C.M. B.R.R. Co. v. Childs, 86 Miss. 361; St. Louis S.F.R.R. Co. v. Ault, 58 So. 102, 101 Miss. 341; Hackler v. N. S.R.R. Co., 128 So. 325, 157 Miss. 432; Thomas v. Rounds, 137 So. 894, 161 Miss. 713; Hamilton Bros. Co. v. Narciese, 158 So. 467, 172 Miss. 24.
We have no quarrel with the rules as to setting aside a verdict when it is against the overwhelming weight of the evidence, but certainly in a civil case, where the plaintiff is required to prove his case only by a preponderance of the evidence the plaintiff is not held to the strict rule prevailing in criminal cases where the state must prove guilt beyond every reasonable doubt, as in two of the cases cited by appellant, but in the case at bar we submit that the overwhelming weight of the evidence is on the plaintiff's side and supports the verdict of the jury.
Argued orally by J. Morgan Stevens, for appellant, and by Lee D. Hall, for appellee.
The appellee recovered a judgment in the circuit court of Marion County against the appellant, in the sum of $1500, on account of personal injuries sustained in a collision between his automobile and a passenger bus owned and operated by the appellant. On appeal here it is urged that the court below erred (1) in refusing the peremptory instruction requested by the appellant, (2) in refusing to instruct the jury that the plaintiff in no event was entitled to recover for an alleged permanent injury or injuries, and (3) in overruling the motion for a new trial on the ground (a) that the verdict was contrary to the overwhelming weight of the evidence, and on the ground (b) that the verdict was excessive.
The evidence was in conflict as to whether the accident was due in whole or in part to the fault of the appellee or to the fault of the driver of the bus, and we deem it unnecessary to review the testimony at length in this opinion. It is sufficient to say that we think there is ample evidence to support the verdict of the jury on the issue of fact in that behalf. We are also of the opinion that the testimony of the appellee and his physician made an issue for jury as to whether or not the injuries sustained by the appellee were permanent. We are also unable to say that the verdict was contrary to the overwhelming weight of the evidence, or that the amount thereof is excessive to such an extent as to evince bias, passion or prejudice on the part of the jury.
It is further urged, in support of the contention that the appellant was entitled to the peremptory instruction requested, that on the day of the accident the appellee signed a statement declaring that he alone was at fault and assuming the full responsibility for the accident complained of. The testimony discloses, however, that the appellee declined to sign the first statement presented to him in that behalf, on the ground that it was incorrect, and the testimony is in conflict as to whether he signed the final statement offered in evidence without it being read to him, on the assumption that the errors which he pointed out in the first statement had been corrected. That issue of fact was resolved by the jury in favor of the appellee.
The judgment must therefore be affirmed.
Affirmed.