Summary
In Ross Co., Inc. v. McWhirter, 216 Miss. 568, 63 So.2d 38 (1953), the jury returned a verdict for three thousand dollars ($3,000), which was affirmed for twenty-two hundred fifty dollars ($2,250).
Summary of this case from Cobb v. CobbOpinion
No. 38681.
February 23, 1953.
1. Negligence, contributory — motor vehicles — collision.
In an action for damages resulting from a collision when defendant's truck was backed into the highway and struck the automobile of the plaintiff, the latter was not chargeable with contributory negligence where the evidence was such that the jury was justified in finding that the accident happened so suddenly after the plaintiff first observed the situation with which he was confronted, that there was nothing that he could have done to avoid the accident.
2. Damages — appeal — excessive award — remittitur.
Where in the action aforestated the damages to plaintiff's automobile was $280.15, and there was no physical injury to plaintiff beyond an extreme nervousness of a probable duration of a few months an award of $3,000.00 damages, punitive damages having been properly eliminated by an instruction, was excessive to the extent of $750.00, and a remittitur of that amount was ordered, as a condition to affirmance.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Oktibeha County; JOHN D. GREENE, JR., Judge.
John S. Beach and Daniel, McKee McDowell, for appellant.
I and II. It was error to grant plaintiff certain instructions which did not take into consideration the question of contributory negligence of the plaintiff and the effect thereof. Illinois Central R. Co. v. Humphries, 174 Miss. 459, 164 So. 22; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844.
III and IV. It was error to refuse to grant defendant certain instructions relative to the question of contributory negligence of the plaintiff and the effect thereof. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Graves v. Hamilton, (Miss.), 177 So. 360; Tendall v. Davis, 129 Miss. 30, 91 So. 701; Sec. 1454 Code 1942; Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502.
V. It was error to refuse to grant defendant a certain instruction relative to the burden of proof. Gregory, et al. v. Williams, 203 Miss. 455, 35 So.2d 451, cited therein: 53 Am. Jur. 555, Sec. 744.
VI. Jury's verdict was not supported by the evidence and evinced bias, prejudice and passion on the part of the jury. Wilson v. Rich, 163 Miss. 403, 141 So. 287; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 915; Beard v. Williams, 172 Miss. 880, 161 So. 750; Pullman Co. v. Anderson, 119 Miss. 791, 81 So. 276; Ala. V.R. Co. v. Dennis, 128 Miss. 298, 91 So. 4; F.W. Woolworth Co. v. Volking, 135 Miss. 410, 100 So. 3; I.C.R. Co. v. Williams, 144 Miss. 804, 110 So. 510; City of Greenwood v. Pentecost, 148 Miss. 60, 114 So. 259; S.H. Kress Co. v. Sharp, 159 Miss. 283, 131 So. 412; Gulf Mtr. Exp. Co. v. Diggs, 174 Miss. 650, 165 So. 292; Sanders Cotton Mill Co. v. Bryan, 181 Miss. 573, 179 So. 741; Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; Kincade Lofton v. Stephens, 210 Miss. 712, 50 So.2d 587; 16 A.L.R. 2d 3 at 303 et seq., Sec. 116; Audette v. New England Transp. Co., 71 R.I. 420, 46 A.2d 570, cited therein: Perry v. New England Transp. Co., 71 R.I. 352, 45 A.2d 481; Longo v. Monast, 70 R.I. 460, 40 A.2d 433; 25 C.J.S. 911, Sec. 196; 5 C.J.S. 640, Sec. 1650; Dickson v. Yellow Cab Co. of Shreveport, (La. App.), 61 So.2d 230.
VII. The amount of the verdict was contrary to the instructions and to the law involved.
VIII. It was error to refuse to grant defendant's timely motion for a new trial.
IX. The amount of the judgment was not supported by the evidence and was contrary to the law involved.
From a study of the cases in point and authorities already cited, the logical conclusion is that each case wherein it is argued that the verdict rendered is excessive must be decided on its own merits. This is fair enough. Accepting the testimony of appellee at full face value and with the authorities cited in view and taking into consideration all of the facts and circumstances shown in this record, we submit that the verdict for $3,000.00 is palpably without support in the evidence presented and is so grossly excessive that it clearly and convincingly evinces bias, prejudice and passion by the jury. In contrasting the showing of damages with the amount of the verdict, the conscience is shocked. The verdict and the judgment rendered thereon in this case of $3,000.00 to the appellee, who suffered $291.00 damage to his car, was temporarily made nervous, went to one doctor one time, lost no time from his ordinary school activities, was not confined, testified to no medical expense whatever, are grossly excessive and this case should either be reversed and remanded on the question of damages or a drastically substantial remittitur ordered.
L.W. Brown, for appellee.
I and II. The lower court committed no error in granting plaintiff two instructions complained of by appellee. Secs. 1454, 1455, 8197, 8198, Code 1942; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416; Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Mobile O.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; McClellan v. Ill. C.R. Co., 204 Miss. 432, 37 So.2d 738; Ill. C.R. Co. v. Humphries, 174 Miss. 459, 164 So. 22; Davidson v. McIntyre, et al., 202 Miss. 325, 32 So.2d 150; Gilliams v. Sykes, et al., (Miss.), 61 So.2d 672; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Johnson v. Howell, (Miss.), 56 So.2d 491; Yazoo M.V.R. Co. v. Lucken, 137 Miss. 572, 592, 102 So. 393.
III and IV. The lower court committed no error in refusing defendant certain instructions.
V. There was no error in refusing defendant certain other instructions. Brown v. Watkins, (Miss.), 56 So.2d 888; Bonelli, et al. v. Flowers, 203 Miss. 843, 33 So.2d 455; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821.
VI. The verdict is fully supported by the evidence. 15 Am. Jur., Damages, Sec. 366; Michener v. Hutton, 203 Cal. 604, 265 P. 238, 59 A.L.R. 480, 486; J.C. Penny Co. v. Evans, 172 Miss. 900, 160 So. 779; St. Louis-San Francisco Ry. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; General Benevolent Ass'n, Inc. v. Fowler, 210 Miss. 578, 50 So.2d 137, 142; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Gatlin v. Allen, 203 Miss. 136, 32 So.2d 304; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Miss. Power Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759; Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Southern Bell T. T. Co. v. Quick, 167 Miss. 438, 149 So. 107; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Laurel Light Railway Co. v. Jones, 137 Miss. 143, 102 So. 1; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665, 667; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774.
VII. The instructions granted and the law involved amply support the verdict.
VIII. The lower court committed no error in refusing the defendant a new trial.
IX. The evidence fully supported the judgment which was not contrary to the law involved.
Plaintiff, E.L. McWhirter, sued the defendant, F.H. Ross Company, Inc., a nonresident, for the sum of $3,000.00 as actual and punitive damages on account of the damage to his automobile and for personal injuries received by reason of a collision that occurred when the driver of the defendant's truck backed the same out into the highway and against the automobile. The court by an instruction eliminated from the consideration of the jury, and we think correctly so, the claim for punitive damages. Nevertheless, the jury returned a verdict in favor of the plaintiff for the full amount sued for.
On this appeal it is conceded that the verdict is not against the overwhelming weight of the evidence on the issue of liability, but it is claimed that the jury failed to mitigate the actual damages on account of the alleged contributory negligence of the plaintiff. (Hn 1) We have reached the conclusion that it was within the province of the jury to find that the plaintiff was not guilty of contributory negligence under the testimony on behalf of the plaintiff; that there was nothing that he could have done to have avoided the accident since it happened so suddenly after he first observed the situation with which he was confronted.
But the defendant further contends, as set forth in his motion for a new trial, that the verdict is grossly excessive as to actual damages to the automobile and to the person of the plaintiff. (Hn 2) The testimony disclosed a cost of $280.15 for the repair of the automobile, and further disclosed that the plaintiff did not receive any bruise, cut or other injury to his person than the resulting nervousness that was occasioned by reason of the collision. He was a graduate student at Mississippi State College, alongside the campus of which the highway ran on which the collision occurred. We are impressed that he endeavored to truthfully state the extent of his injuries, and without exaggeration. He did not lose a day from school on account of the accident, did not consult a physician until a few weeks thereafter, and incurred no medical or hospital expense. He does not claim that any lameness resulted to him on account of the accident, or that he had suffered any pain other than the discomfort of nervousness, but did claim that he had been unable to make as good grades as a student following the accident as he was able to make prior thereto.
The physician who examined him at the time above stated was of the opinion that he was extremely nervous and that from the history of the case this condition was the proximate result of the accident. He testified as a witness that the nervousness may last for several weeks longer after the trial, and it appears that a period of a few months had intervened between the date of the accident and the time of the trial.
We have given a careful consideration to the testimony, and assuming that the version of the plaintiff as to the extent of his injuries was a truthful statement in regard thereto, we are of the opinion that the entry of a remittitur to the extent of $750.00 would leave the plaintiff a liberal compensation for the actual damages sustained both to his automobile and to his person. If such remittitur is entered within a period of fifteen days after the decision is rendered here by this Court, the case will be affirmed with said remittitur; otherwise the same will be reversed and remanded for a new trial on the question of actual damages.
Affirmed with remittitur.
Lee, Kyle, Arrington, and Ethridge, JJ., concur.