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Brown-Miller Co. v. Howell

Supreme Court of Mississippi
May 2, 1955
79 So. 2d 818 (Miss. 1955)

Opinion

No. 39638.

May 2, 1955.

1. Trial — motor vehicles — negligence — credibility of witnesses — for jury.

In action for death of truck driver whose truck, which was following truck which had suddenly stopped on shoulder to avoid oncoming truck, was struck at 4 a.m. in dense fog by oncoming truck allegedly traveling in wrong traffic lane, the credibility of the witnesses was for jury.

2. Negligence — evidence — circumstantial evidence.

Direct evidence is not absolutely necessary to prove negligence, which may be shown by circumstantial evidence, if sufficient to place it within field of legitimate inference.

3. Trial — peremptory instruction — evidence.

In passing on defendant's requested peremptory instruction, Court is required to treat the evidence of plaintiffs as proving every fact favorable to their case, which was established either directly or by reasonable inference.

4. Motor vehicles — negligence — proximate cause — contributing cause — jury issues.

In such case, evidence raised question for jury as to whether position of oncoming truck on wrong side was negligence which proximately caused or contributed to death of driver.

5. Appeal — verdict — based on substantial evidence.

Verdict founded on substantial evidence was not subject to be set aside on ground that it was against the great weight of the evidence.

6. Motor vehicles — negligence — proximate cause — contributing cause — burden of proof.

In such case, plaintiffs had burden of proving from preponderance of evidence that oncoming truck was negligently operated on wrong side and that such negligence proximately caused or contributed to injury and death of driver.

7. Negligence — instructions — comparative negligence.

Plaintiffs' requested instruction on comparative negligence was proper and it was not misleading in view of various defense instructions which authorized jury to find that driver in several particulars was guilty of contributory negligence.

8. Continuance — absent witnesses — motion properly overruled.

Refusal to grant continuance for absence of witnesses was not error where no attachment was requested for witnesses and where one witness was alleged to have been nearby when motion was heard. Sec. 1520, Code 1942.

9. Appeal — continuance — motion failed to meet statutory requirements.

Defendant could not complain of any error in respect to overruling motion for continuance for absence of witnesses where on motion for new trial the witnesses did not testify and their affidavits were not produced. Sec. 1520, Code 1942.

10. Trial — death action — damages — utilization of charts.

In death action by father and mother and brothers and sisters of deceased truck driver, chart itemizing value of loss of decedent's companionship, funeral bill and decedent's contributions, with addition of one-third for decreased value of dollar, could be utilized by plaintiffs' counsel in closing argument as to compensatory amount to be awarded.

11. Trial — same — same — argument — self-evident facts — matters of common knowledge.

Counsel may properly argue and comment on self-evident facts and matters of common knowledge outside the record unless harm might fairly be inferred to follow therefrom.

12. Evidence — damages — decrease in value of dollar.

The decrease in the value of the dollar is a matter of common knowledge.

13. Trial — same — same — charts.

Plaintiffs' attorney in closing argument could emphasize contention regarding decrease in value of dollar by using chart which contained alleged prices for certain staple articles of merchandise as between 1935 and 1954, so that such decrease could be visualized by jury.

Headnotes as approved by Lee, J.

APPEAL from the Circuit Court of Covington County; HOMER CURRIE, Judge.

Dudley W. Conner, R.L. Calhoun, Hattiesburg; Watkins Eager, Jackson, for appellant.

I. The Trial Court erred in refusing appellant's requested instruction directing the jury to return a verdict for it. American Creosote Works, Inc. v. Rose Bros., Inc., 211 Miss. 173, 51 So.2d 220; Columbus G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; Danciger Oil Rfg. Co. v. Free, 204 Miss. 870, 35 So.2d 542; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Humble Oil Rfg. Co. v. Pittman, 210 Miss. 314, 49 So.2d 408; Jakup v. Lewis Grocer Co., 190 Miss. 444, 300 So. 597; Mutual Benefit Health Acc. Assn. v. Johnson (Miss.), 186 So. 297; New Orleans N.E.R.R. Co. v. Jackson, 140 Miss. 375, 386, 105 So. 770; St. Louis-San Francisco Ry. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Supreme Instrument Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; West v. Aetna Ins. Co., 208 Miss. 776, 45 So.2d 585; Yazoo M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Secs. 8183, 8185, 8188, Code 1942; 60 C.J.S., Sec. 300(b) pp. 708-09, 757.

II. The verdict of the jury and the judgment rendered thereon are contrary to the overwhelming weight of the evidence. Graves v. Hamilton, 184 Miss. 239, 184 So. 56.

III. The Trial Court erred in giving plaintiffs' requested instruction, as follows: "The Court instructs the jury for the plaintiffs that although you may believe that the deceased, Oree Howell, was guilty of negligence, which proximately contributed to the accident, injuries and death of Oree Howell, yet, if you further believe from all the evidence that the driver of the Brown-Miller truck was also guilty of negligence which proximately contributed to the accident, injuries, and death of Oree Howell, you should find for the plaintiffs, but in such event you would diminish the damages you would otherwise give in proportion to the negligence attributable to the deceased, Oree Howell." Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Graves v. Hamilton, supra; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820; Wallace v. Billups, 203 Miss. 853, 33 So.2d 819.

IV. The Trial Court erred in giving plaintiffs' requested instruction reading as follows: "That if you believe from a preponderance of the evidence that the driver of the Brown-Miller Company's truck was not keeping its truck on its proper side of the highway, that is, in its lane of travel, immediately before and at the time of the collision, and you further find that such failure to keep its truck on its proper side of the highway, if any, if shown by a preponderance of the evidence, amounted to negligence, and that said negligence, if any, if shown by a preponderance of the evidence, proximately contributed to the accident, injuries, and death of Oree Howell, then it will be your sworn duty to return a verdict for the plaintiffs." Belk v. Rosamond, supra.

V. Instruction submitting the issue of contributory negligence had no basis whatsoever in fact or in law.

VI. The Trial Court committed reversible error in overruling appellant's motion for a continuance. Allen v. Com., 134 Ky. 110, 119 S.W. 795, 20 Ann. Cas. 884; Clark v. State, 39 Tex. Cr. 179, 45 S.W. 576, 73 Am. St. 918; Continental Ins. Co. v. Brown, 142 Miss. 199, 106 So. 633; Ellis v. State, 198 Miss. 804, 23 So.2d 688; Knowles v. Blue, 209 Ala. 27, 95 So. 481; Newell v. State, 209 Miss. 653, 48 So.2d 332; Ryder v. State, 100 Ga. 528, 28 S.E. 246, 62 Am. St. 334, 38 L.R.A. 721; Southern Beverage Co. v. Barbarin, 219 Miss. 493, 69 So.2d 395; State v. Hesterly, 182 Mo. 16, 81 S.W. 624, 103 Am. St. 634; United States v. Caldwell, 1 L.Ed. 404; Vaught v. Rider, 83 Va. 669, 3 S.E. 293, 5 Am. St. 305; Sec. 1520, Code 1942; 12 Am. Jur. pp. 464-65, 467-68; Wingo's Miss. Criminal Law Procedure, Sec. 138.

VII. The Trial Court erred in overruling appellant's motion for a new trial. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Four-County Elec. Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Illinois Cent. R.R. Co. v. Weinstein, 99 Miss. 515, 55 So. 48; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373, 63 A.L.R. 1402; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; 53 Am. Jur. 386-87; 64 C.J. 261.

Dent Dent, Collins; Barnett, Jones Montgomery, Jackson; L.D. Pittman, Raleigh, for appellees.

I. In reply to appellant's Point I. Allgood v. United Gas Corp., 204 Miss. 94, 37 So.2d 12; American Creosote Works of La. v. Harp, 215 Miss. 5, 60 So.2d 514; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Dufour v. Continental Southern Lines, 219 Miss. 296, 68 So.2d 489; Farish v. Canton Flying Services, 214 Miss. 370, 58 So.2d 915; Goodwin v. Misticos, 207 Miss. 361, 42 So.2d 397; Hemphill v. Mississippi Power Co., 84 F.2d 971; Hoxie v. Hadad, 193 Miss. 896, 11 So.2d 696; Johnston v. Canton Flying Services, 209 Miss. 226, 46 So.2d 533; Louisville N.R.R. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Pitts v. Mississippi Power Light Co., 177 Miss. 288,

170 So. 817; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; White's Lbr. Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; Yazoo M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50.

II. In reply to appellant's Point II. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So.2d 900; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Forbes v. City of Durant, 209 Miss. 246, 46 So.2d 551; General Benevolent Assn. v. Fowler, 210 Miss. 578, 50 So.2d 137; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244; Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So.2d 6; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Teche Lines, Inc. v. Bounds, supra.

III. In reply to appellant's Point III. Alabama V.R.R. Co. v. Fountain, 145 Miss. 515, 111 So. 153; Bass v. Burnett, 151 Miss. 852, 119 So. 827; Bonelli v. Flowers, 203 Miss. 843, 33 So.2d 455; Brown v. Watkins, 213 Miss. 365, 56 So.2d 888; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786; City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; Cochran v. Peeler, 209 Miss. 394, 47 So.2d 806; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; Cranford v. Maryland Casualty Co., 149 Miss. 345, 115 So. 586; Cumberland Tel. Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Evans v. Jackson City Lines, 212 Miss. 895, 56 So.2d 80; Friedman v. Allen, 152 Miss. 377, 118 So. 828; Grenada Dam Constrs. v. Patterson (Miss.), 48 So.2d 480; Gulfport Fert. Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Landrum v. Ellington, 152 Miss. 569, 120 So. 444; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916; Metropolitan Life Ins. Co. v. Moss (Miss.), 192 So. 343; Mississippi Cent. R.R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Mississippi Cent. R.R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Mutual Life Ins. Co. of N.Y. v. Vaughan, 125 Miss. 369, 88 So. 11; Orr v. Columbus G.R.R. Co., 210 Miss. 63, 48 So.2d 630; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201; Yazoo M.V.R.R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361.

IV. In reply to appellant's Points IV, V, and VI. Bone v. State, 207 Miss. 20, 41 So.2d 347; Sec. 1520, Code 1942.

V. In reply to appellant's Point VII. Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Four-County Elec. Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Laurel Light R. Co. v. Jones, 137 Miss. 143, 102 So. 1; Sandifer Oil Co., Inc. v. Dew, 220 Miss. 609, 71 So.2d 752; Annos. 12 A.L.R. 2d pp. 644-45; 88 C.J.S., Sec. 181(b).


G.C. Howell, Sr., and others, the father, mother and brothers and sisters of Oree A. Howell, deceased, sued Brown-Miller Company, a Corporation, and Tom Walker to recover damages for the death of their son and brother. Simply stated, the declaration charged that the decedent, in a truck, was driving south on Highway 49 in the west lane of travel; that Walker, in another truck, ahead, was also driving in the same direction and endeavored suddenly to stop on the right shoulder of the highway; that Otis Kates, driving a truck of Brown-Miller Company, was traveling north and was out of his proper lane of travel; that because the Kates truck was out of its proper lane of travel, the Howell truck was caught between it and the Walker truck and was struck with such great violence by the Kates truck that Howell was killed; and that the sudden negligent stopping of the Walker truck, and the negligent driving of the Kates truck in the west lane of travel proximately and concurrently caused and contributed to the injury and death of the decedent.

On petition of Brown-Miller Company, the cause was removed to the federal court, but subsequently, on the motion of plaintiffs, the cause was remanded to the state court.

The defendants, in their separate answers, denied in detail the material allegations of the declaration as to them, and averred that they were guilty of no negligence proximately causing or contributing to the death.

Upon submission of the cause to the jury, it found for the plaintiffs, as against Brown-Miller Company, and assessed the damages at $30,000; and by a separate verdict, it found for the defendant Tom Walker. Brown-Miller Company appealed.

Howell and Walker lived at Mize, Mississippi. They were driving trucks for Deaton Truck Lines of Birmingham, Alabama. They had picked up loads at Birmingham and had come as far as Mize on their way to make deliveries in New Orleans, Louisiana. Walker's truck was loaded with angle iron, and Howell's with tin plate. The empty trucks each weighed about 18,000 pounds and their loads approximated 28,000 pounds. The trailers were open and 8 feet wide. The over-all length of the tractor and trailer, in each instance, was about 42 feet.

Brown-Miller Company operated a pickle plant at Wiggins, Mississippi. Otis Kates and Morris Williams drove tractor-trailer trucks for the Company in order to make deliveries of its products. The vehicles, empty, each weighed 19,600, and carried loads of about 32,000 pounds. They had 14 wheels. The over-all length was 42 or 43 feet; and the trailers were covered and 8 feet wide.

Early in the morning of April 26, 1954, the two Brown-Miller trucks operated by Williams and Kates, in that order, left Wiggins and were proceeding north on highway 49 in order to make deliveries of pickles in Memphis, Tennessee. Likewise the two open trucks, operated by Walker and Howell, in that order, left Mize and were proceeding to their destination in New Orleans. From Mt. Olive, they traveled south on Highway 49. There was a dense fog. In Covington County, a short distance north of the Forrest County line, the Kates and Howell trucks collided and both of the drivers were killed. This occurred around 4 A.M.

The pavement, at the place of the collision, was 20 feet wide, with 7 foot shoulders on each side. The road was level and straight for a considerable distance in both directions. Following the collision, the Walker truck, headed south, was completely off of the pavement on the west side. The Kates truck, headed north, was completely off the pavement on the east side. The Howell truck, headed south, was on the pavement and alongside the Walker truck, but about 10 feet farther south. The front end of the Kates truck was 12 to 15 feet farther north than the rear end of the Howell truck. There were no skid-marks on the pavement. There was no damage to the bumper, grill, or front end of the Howell truck. The impact upon it was about the door of the cab on the driver's side and backward. The Kates truck was smashed from about the center on the front and along the left side, with the bumper and fender somewhat rolled back and the cab demolished. The gas saddle tank of the Howell truck on the driver's side, between the cab and the trailer, was demolished. Gas, evidently from this tank, was the fuel for the fire which burned almost entirely in the west lane with additional damage to the Howell truck. The only damage to the Walker truck was from fire. Photographs verified the oral evidence of witnesses as to these physical facts, except the location of the Howell truck, which had been moved off of the highway before the pictures were taken.

Six witnesses, W.C. Jones, Prentiss Walker, John Atwood, Mrs. Darlene Calhoun, Ray Howell and George Howell, Sr., testified that following the wreck, the Howell truck was entirely west of the center line; and Tom Walker was positive that the tractor part was west of the center line, but he was not sure as to the remaining part because he did not notice it.

J.C. Puckett, a patrolman, and Jake Edwards testified that the rear part of the Howell truck was barely over into the east lane about 1 foot, while J.F. Guthrie said that it extended about 18 inches, and W.G. Strahan, that the rear wheels on that side were in the east lane.

(Hn 1) Tom Walker testified that, as he was driving south in the dense fog, he saw a couple of lights in his lane of travel, and that, as quickly as he could safely do so, he pulled off on the side of the road and onto the shoulder. Shortly after stopping, he heard a noise, then an explosion, and in a second's time saw fire to his left. At that juncture, Howell's truck stopped with the saddle tank on the right side about opposite the left front wheel of Walker's truck, and thus about 10 or 12 feet ahead. He did not know what became of the lights which he had seen in front of him, that is, whether they came on north, or stopped, or turned off. On cross-examination, he was asked if he did not tell Patrolmen Puckett and Rutland that his reason for turning off was that he had overtaken a bob truck, that is a three-quarter ton truck in the fog. He denied this, though stating that he saw something that looked like a bob truck, but that he saw only the lights and did not know what they were. By way of impeachment, Puckett testified that Walker said that he was overtaking a bob truck, going in the same direction; but Rutland, who heard the same statement, while agreeing that Walker was talking about overtaking a bob truck, testified that Walker did not say in which direction the bob truck was traveling. The patrolmen were never able to find this so-called bob truck. The only other evidence about a bob truck on this occasion was by Morris Williams, the driver of the other Brown-Miller truck, who testified that after he had driven about 5 miles from the place where he had last seen the Kates truck, he met and passed a bob truck and that a short time later he met and passed two trucks with "Deaton" written on all sides. This statement, in view of the heavy fog, and the inability of the witness to say that he had passed any other vehicle between that point and the Town of Collins, when it was clear that he did actually pass other vehicles, no doubt taxed the jury's credulity. Of course, the credibility of the witnesses was for the jury.

From the physical facts and circumstances, which have been heretofore detailed, in combination with the testimony of Walker, the jury was warranted in finding that Walker turned off of the road in order to avoid a motor vehicle, which, according to its lights, was traveling in the west lane of traffic; that this vehicle, after Walker got his truck out of the way, came on forward and collided with the Howell truck at a time when that truck was wholly west of the center line; and that the cause of the collision was that this vehicle which turned out to be the Kates truck, was partly in the west lane of the highway. According to Walker's version, these were the only lights which he saw at that time. As heavy as the fog was on that occasion, it seems unlikely that he would have observed the small tail lights of a bob truck, traveling in the same direction and which he was overtaking, and not see the strong headlights of the big truck, which was actually approaching him.

(Hn 2) Direct evidence is not absolutely essential to prove negligence. It may be shown by circumstantial evidence, if sufficient to "place it within the field of legitimate inference." 38 Am. Jur., Negligence, Section 333, page 1032; Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582; Johnston v. Canton Flying Service, 209 Miss. 226, 46 So.2d 533; Farish v. Canton Flying Service, 214 Miss. 370, 58 So.2d 915; So. Pine Electric Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859.

(Hn 3) Since the Court, in passing on the defendant's requested peremptory instruction, was required to treat the evidence of the plaintiffs as proving every fact favorable to their case, which was established either directly or by reasonable inference, (Hn 4) it is clear that the court was not in error in refusing the instruction. This principle is so elemental as to require no citation of authority.

(Hn 5) The verdict was founded on substantial evidence. Hence it was not subject to be set aside on the ground that it was against the great weight of the evidence.

(Hn 6) It was the plaintiffs' burden, and the instructions required them, to prove from a preponderance of the evidence that the defendant negligently operated its truck in the west lane of the highway, and that such negligence proximately caused or contributed to the injury and death of the decedent. (Hn 7) The plaintiffs' instruction on comparative negligence was proper, and was not misleading in view of the various defense instructions, which authorized the jury to find that the deceased, in several particulars, was guilty of contributory negligence.

(Hn 8) Appellant contends, too, that the Court erred in overruling its motion for a continuance.

In the affidavit, it was alleged that Tom Walker, in the presence of Mr. and Mrs. L.W. Klarr, when he was removing the injured Howell from the burning truck, said that "the cause of said accident was that Oree Howell was trying to pass him, (Walker) and that he ought not to have done it." It was shown that Mrs. Klarr was in the hospital. Counsel for the defendant called M.M. Roberts, of counsel for Tom Walker, who testified that Klarr had told him and others that he, Klarr, did not say what was stated in the motion, and that he had never said that Walker had stated anything to indicate that the Howell truck was in any way to blame. (Hn 9) Besides, one of the attorneys for the plaintiffs, testifying in opposition to the motion, said that a young man in Klarr's yard, informed him that morning that Klarr was plowing in the field several hundred yards away. No attachment was requested for this witness. Besides, on the motion for a new trial, neither of the Klarrs testified, nor were their affidavits produced, nor was it shown that these requirements, or one of them, could not be complied with. Consequently the appellant is not in position to complain of error in this respect. Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Ogden v. State, 174 Miss. 119, 164 So. 6; Bone v. State, 207 Miss. 20, 41 So.2d 347. See also Section 1520, Code of 1942.

(Hn 10) The appellant also complains of error in the use, over its objection, of two charts by one of the attorneys for the plaintiffs in his closing argument to the jury. One of the charts undertook to itemize the value of the loss of companionship to the plaintiffs during the decedent's and their reasonable expectancies, respectively, the funeral bill, contributions to the father and mother during their reasonable expectancies, with the addition of one-third for the decreased value of the dollar. This chart was obviously utilized by counsel in an effort to convince the jury of a compensatory amount which it would be warranted in awarding, if it found for the plaintiffs. The case of 4-County Electric Power Assn. v. Clardy, (Miss.) 73 So.2d 144, has settled this point in part adversely to the appellant's contention. The other chart contained alleged prices for certain staple articles of merchandise as between 1935 and 1954, and obviously its purpose was to show the decreased value of the dollar.

In Laurel Light Ry. Co. v. Jones, 137 Miss. 143, 102 So. 1, (1924), it was recognized that the purchasing power of the dollar at the time of the injury is an element that may be considered in arriving at the number of such dollars necessary to compensate for the injury.

In Cotton Mills Products Co. v. Oliver, 153 Miss. 362, 121 So. 111, (1929), the Court said that it knew that the purchasing power of a dollar, since World War I, had been reduced about 50% of its prior value. As to the Court's observations in respect to the decrease of the value of the dollar in more recent years see St. Louis-San Francisco Ry. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436.

(Hn 11) In 88 C.J.S., Trial, Section 181b, pages 355-6, it is said: "Counsel may properly argue and comment on self-evident facts and matters of common knowledge outside the record unless harm might fairly be inferred to follow therefrom; * * *."

In Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817, it was recognized that counsel, in his argument, may refer to matters which are not in the record, if they are of such common knowledge that the court would take judicial notice of the same, for it was there said, as to such right of counsel, "He may give wing to his wit and play to his imagination so long as he does not imagine fact not in evidence, which the court does not take judicial knowledge of, * * *."

(Hn 12) If counsel had said to the jury that they knew, as a matter of common knowledge, the difference in the prices of the articles in question as between 1935 and 1954, just as was indicated on the chart, the argument would not have been improper. (Hn 13) The greater part of man's information and knowledge is acquired through the eye. Consequently it was not improper, about a matter of such common knowledge, namely, the decrease in the value of the dollar, for the attorney to emphasize this contention by putting his understanding of the comparative prices on the chart so that such decrease could be visualized by the jury.

No reversible error appears in the record, and the cause is therefore affirmed.

Affirmed.

Roberds, P.J., and Hall, Kyle and Holmes, JJ., concur.


Summaries of

Brown-Miller Co. v. Howell

Supreme Court of Mississippi
May 2, 1955
79 So. 2d 818 (Miss. 1955)
Case details for

Brown-Miller Co. v. Howell

Case Details

Full title:BROWN-MILLER COMPANY v. HOWELL, et al

Court:Supreme Court of Mississippi

Date published: May 2, 1955

Citations

79 So. 2d 818 (Miss. 1955)
79 So. 2d 818

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