In Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550, 552, this Court said: "The request for a view may be made orally in the absence of the jury, and transcribed into the court reporter's record; but the request must state the facts which bring the application within the rule heretofore and hereinabove laid down, and if the other party object or challenge the facts, the court must hear evidence or sworn statements touching those facts which must be reported in the transcript; otherwise no order for a view can be validly made."Summary of this case from Poteete v. City of Water Valley
January 4, 1937. Suggestion of Error Overruled, February 1, 1937.
1. APPEAL AND ERROR.
View by jury, when taken together with substantial testimony delivered by sworn witnesses, will generally preclude review of verdict as being contrary to overwhelming weight of evidence.
2. APPEAL AND ERROR.
Courts have power and duty to set aside verdicts, where verdict is without support of any competent evidence, where verdict is without support of any reasonably believable proof, and where verdict is against overwhelming weight of evidence.
3. APPEAL AND ERROR.
Statute providing that no more than two trials may be awarded on review of evidence held reasonable regulation of court's constitutional power and duty to review verdicts (Code 1930, sec. 592).
4. CONSTITUTIONAL LAW.
Legislature may not directly or indirectly abridge constitutional judicial powers and duties to review verdicts on facts.
Statute providing for view of premises must be interpreted so that view is allowable only when the necessity therefor in order to reach ends of justice bears some fair relation by way of equivalency, in that interest, to the right which otherwise would be unhampered and unimpaired to have verdict reviewed on record evidence (Code 1930, sec. 2066).
In action for personal injuries allegedly resulting from defective store floor, permitting jury to view premises without inquiry into facts which would disclose necessity therefor held error (Code 1930, sec. 2066).
Request for view of premises may be made orally, in absence of jury, and transcribed into court reporter's record, but request must state facts which show that view would be of essential aid, and, if other party objects or challenges facts, court must hear evidence or sworn statements touching those facts which must be reported in transcript (Code 1930, sec. 2066).
8. APPEAL AND ERROR.
Where order permitting jury to view premises was erroneously made and it improperly hampered appealing defendant in respect to valuable constitutional right to have verdict reviewed on assignment that it was contrary to overwhelming weight of evidence, error held reversible where such assignment, when reviewed aside from evidence taken at scene, presented serious question (Code 1930, sec. 2066).
APPEAL from the circuit court of Marion county. HON. HARVEY McGEHEE, Judge.
Rawls Hathorn, of Columbia, and Heidelberg Roberts, of Hattiesburg, for appellant.
The trial court was in error in permitting the jury to view and inspect the place where appellee alleged that she received her injuries.
No order was entered and until an order had been entered the court and jury had no right to proceed to the premises where appellee claims she was injured, and this move on the part of the court was contrary to law and not supported by the code section.
There was no provision in the common law for the viewing of premises in the trial of a case, and except for section 2066 of the Mississippi Code of 1930 there would be no authority for viewing the premises under any circumstances. In other words, the statute is in derogation of the common law and must therefore be strictly followed.
Jones v. State, 141 Miss. 894, 107 So. 8; National Box Co. v. Bradley, 157 So. 91, 171 Miss. 15.
The court was in error in overruling motion of the defendant at the conclusion of plaintiff's testimony, to exclude the testimony and direct a verdict in favor of the defendant.
In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or occupant, or have existed for such time that it was the duty of the owner or occupant to know it.
45 C.J. 837, pars. 245, 427; 20 R.C.L., pages 56 and 57; 2 Restatement of Law on Torts, pages 938 and 939, par. 343; 33 A.L.R. page 198.
In a case of this kind the mercantile establishment is not required to do more than exercise reasonable care to furnish to the invitee a reasonably safe place. The testimony offered by the plaintiff, which was challenged by the motion for a directed verdict, did not meet the burden cast upon her to make out a case as against appellant.
Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9.
The trial court was in error in refusing to grant a peremptory instruction to the jury to find for the appellant.
All that the law required of appellant herein was to exercise reasonable care to prevent injury to its business visitors.
Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982, 33 A.L.R. 176; Burnley v. Mullins, 38 So. 635; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
The law does not require floors in a store building to be so constructed as to secure absolute immunity from danger in using such a floor, nor is it bound to employ the utmost care and exertion to that end. Even if we admit for the sake of argument that there could have been a splinter on the floor in question on the Saturday prior to the time that Mrs. Davis fell and was injured on the following Tuesday, still, if the splinter was as small as the little finger on a man's hand, as testified by the two witnesses mentioned and only five or six inches in length, under the law this would not constitute such an obstruction on the floor as to make appellant herein liable. The same duty as the law imposes upon a storekeeper is likewise the measure of duty on the part of a city with reference to its highways, and that duty in so far as a municipality is concerned is to exercise ordinary care in keeping its streets in a reasonably safe condition for use by persons exercising ordinary care and prudence in passing over them.
Vicksburg v. Hennessy, 54 Miss. 391; Nesbitt v. Greenville, 69 Miss. 22; Butler v. Oxford, 69 Miss. 618; Walker v. Vicksburg, 71 Miss. 899; City of Meridian v. Crook, 69 So. 182, 109 Miss. 700; City of Indianapolis v. Cook, 99 Ind. 10.
The trial court was in error in granting conflicting instructions.
The trial court was in error in overruling the motion of the appellant to set aside the verdict and to grant unto it a new trial.
J.C. Penney Co. v. Evans, 160 So. 779.
We are confident that this court will conclude that the testimony on the part of appellee is contrary to the overwhelming weight of the evidence, and that if we are mistaken in every other proposition presented, we will be granted an order reversing this case and remanding same for a new trial.
F.W. Woolworth Co. v. Patrick, 167 So. 774. T.B. Davis and Hall Hall, all of Columbia, for appellee.
Counsel for appellant say that the right to have a jury view the premises was unauthorized by common law and that it rests solely upon statute. The author of Ruling Case Law does not agree with that statement, but, in any event, we have a statute which authorizes a view of the premises. Section 2066, Code of 1930. And, the granting or refusing of a view by the jury, according to all the authorities, rests in the discretion of the trial judge.
26 R.C.L., pages 1016-1017; 1 Thompson on Trials (2 Ed.), secs. 882-883.
As we understand the rule, the overruling of a motion for a directed verdict will not be considered by the Supreme Court in this state where the appellant thereafterwards proceeds to offer evidence in the case, but the matter will have to be presented by the defendant in a request for a peremptory instruction at the close of the evidence.
Nebhan v. Mansour, 139 So. 166, 162 Miss. 418; A. V. Ry. v. Kelly, 88 So. 707, 126 Miss. 276; Hairston v. Montgomery, 59 So. 793, 102 Miss. 364.
The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils.
20 R.C.L. 55; 2 A.L.I. Restatement, Torts, pages 939, 940, 942-943.
A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons.
2 A.L.I. Restatement, Torts, page 944.
It is the duty of the proprietor of a store to which the public are impliedly or expressly invited to use reasonable care and diligence to keep the premises therein reasonably safe for persons visiting the store upon this invitation, express or implied.
Kress v. Markline, 77 So. 858, 117 Miss. 37; Western Union Tel. Co. v. Blakely, 140 So. 336, 162 Miss. 859; Allen v. Y. M.V.R.R., 71 So. 386, 111 Miss. 267; N.O. N.E.R.R. Co. v. Brooks, 165 So. 804; Theodore v. J.G. McCrory Co., 137 So. 352; Russell v. Stewart Dry Goods Co., 22 Ky. L. Rep. 121, 56 S.W. 707; Huber v. American Drug Stores, 140 So. 120; Grigsby v. Morgan Lindsey, 148 So. 506; F.W. Woolworth Co. v. Erickson, 127 So. 534.
We respectfully submit that there was abundant evidence to sustain the verdict of the jury, and that consequently the judgment of the lower court should be affirmed.
Appellee instituted an action against appellant for personal injuries alleged to have resulted from a defective floor in the store of appellant, and having recovered judgment in the trial court, this appeal has followed.
There are eight assignments of error, the first being that the court erred in sustaining the motion of appellee for a view of the premises by the jury, and the eighth is that the verdict is against the overwhelming weight of the evidence. There is an assignment, No. 2, that the court erred in not directing a verdict in favor of the defendant, which latter assignment is not well taken for the reason that there is some substantial testimony which would sustain a verdict for appellee. See the rule on this subject, Justice v. State, 170 Miss. 96, 98, 154 So. 265. There is substantial testimony, in support of the verdict, delivered by sworn witnesses, leaving aside the view of the premises by the jury, and in such case, as was held in Kress Co. v. Sharp, 156 Miss. 693, 702, 126 So. 650, 68 A.L.R. 167, the view by the jury when taken together with the substantial testimony delivered by sworn witnesses will, as a general rule, preclude a review of the verdict as being contrary to the overwhelming weight of the evidence. And since the allowance of a view by the jury so nearly deprives both the trial judge, and this court on appeal, of the power, from a practical standpoint, of reviewing the case upon an assignment that the verdict is contrary to the overwhelming weight of the evidence, there is again brought before us for consideration: (1) The nature and extent of the power and duty last mentioned; (2) in the light thereof, the meaning or interpretation which is allowable to the statute, section 2066, Code 1930, providing for a view of the premises by a jury; (3) the proper procedure for obtaining a view of the premises; and (4) the effect upon the verdict and judgment when an unauthorized view has been allowed, as was done in this case.
For more than seventy-five years this court, along with the great majority of the courts in this country, has been definitely committed to the rule that the courts have the power and the corresponding duty to review and set aside verdicts upon the facts in, but only in, the following three cases: (1) Where the verdict is without the support of any competent evidence; (2) where the verdict is without the support of any reasonably believable proof; and (3) where the verdict is against the overwhelming weight of the evidence.
In Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552, 554, this court, in a review of the subject after stating the three above-mentioned instances which place a duty upon both the trial and the appellate court to examine the verdicts of juries upon the facts, said: "The constitutional power of the court to act in the three instances stated comes out of a view of the Constitution as a whole, looking to its nature and to all its parts and provisions, from which it follows that the property or liberty of no man may be taken without legal facts upon which so to do, and thus the power in the first instance above stated. And we find further in the constitution and in its nature, that the jury contemplated by it is an impartial jury, and here arises the power of the court in the two instances last stated." Two Constitutions have been ordained in this state since this court became definitely committed to exercise of the stated powers as a constitutional duty, and neither of those Constitutions contained a word in derogation thereof — and any proposal to that effect would not have received a dozen votes in either of the conventions.
Since the power and duty to review verdicts upon the facts in the three stated instances are constitutional powers and duties, no act of the Legislature would be constitutionally valid which would attempt to abridge that power and duty. Such an act would be rejected by the court, as was the act of a somewhat similar nature which was declared unconstitutional in Yazoo M.V. Railroad Co. v. Wallace, 90 Miss. 609, 43 So. 469, 122 Am. St. Rep. 321, and it would not be at all necessary to suggest, as was suggested in that case, that the enforcement of such an act would be in contravention of due process of law. It is true that by section 592, Code 1930, no more than two new trials may be awarded upon a review of the evidence, but this is a regulation within the obvious and unanswerable reason that there must be an end of litigation somewhere and at some reasonable point and time.
And since the Legislature may not directly abridge the constitutional judicial powers and duties herein discussed, it follows that this may not be done by indirection; and thus it may not be done by the device of a statute which would allow a jury to be taken to view the premises in any and every sort of case, and thereby practically cut off the power of the trial judge, and particularly of this court, to review an assigned ground for a new trial that the verdict is contrary to the overwhelming weight of the evidence. Therefore, whatever the language of the statute providing for a view of the premises, the interpretation thereof must be such that the view is allowable only when the necessity therefor "in order to reach the ends of justice" bears some fair relation by way of equivalency, in that interest, to the right which otherwise would be unhampered and unimpaired to have the verdict reviewed on the record evidence. There must be such an interpretation of, and administration under, the statute as will harmonize it with the constitutional principles of the procedural system of which it is a part.
In Jones v. State, 141 Miss. 894, 909, 107 So. 8, 11, it was held by this court that the statute "authorizing the view of the scene is in derogation of the common law, and the rule strictissimi juris must be applied." Counsel challenge the statement that the statute is in derogation of the common law. We need not pause now to examine into that statement, it being enough that the court held that the rule strictissimi juris must be applied. But the court did, in National Box Co. v. Bradley, 171 Miss. 15, 28, 154 So. 724, 157 So. 91, 93, 95 A.L.R. 1500, give the constitutional reason which we have herein more fully discussed, and said: "And because a view when taken very nearly divests the appellate court of its power to review the case on the evidence, a request for a view should never be granted unless it appears reasonably certain that it will be of essential aid, not merely of some aid, to the jury in reaching a correct verdict, and that it is distinctly impracticable and inefficient to present the material elements to the jury by photographs, diagrams, maps, measurements, and the like." It would seem hardly necessary to add anything to the last-quoted ruling by this court that a view must be of essential aid, not merely of some aid, and that this must be made to appear as reasonably certain. We add nothing except by way of emphasis when, as already above stated, we have now said that a view is allowable only when the alleged necessity therefor "in order to reach the ends of justice" bears some fair relation by way of equivalency, in that interest, to the right which otherwise would be unhampered and unimpaired to have the verdict reviewed on the record evidence.
The record in the case now before us shows that in the request made by appellee for a view by the jury, no reason was given therefor other than that it was proper in order to reach the ends of justice — which is nothing but the statement of a conclusion. The only statement of fact made in the application was that the store was within seventy-five yards of the courthouse; and so far as the record shows the court, over the objection of the appellant, made the order for the view without any inquiry into the facts which would disclose any such necessity as we have above set out as being requisite to an order for a view, the trial judge stating merely that he could see no harm in sustaining the request. The request for a view may be made orally, in the absence of the jury, and transcribed into the court reporter's record; but the request must state the facts which bring the application within the rule heretofore and hereinabove laid down, and if the other party object or challenge the facts, the court must hear evidence or sworn statements touching those facts which must be reported in the transcript; otherwise no order for a view can be validly made.
No such facts were here shown. The transcript before us fails to indicate that any such facts, as were necessary to authorize a view, could have been shown. The order for a view was therefore erroneously made; the view was unwarranted; and since it has improperly hampered appellant in respect to a valuable constitutional right, to wit, to have the verdict reviewed on the assigned ground that it is contrary to the overwhelming weight of the evidence, the judgment must be reversed and the cause remanded. It may be that in a case where, looking alone to the sworn testimony taken in the courthouse, leaving wholly aside the evidence taken at the scene, and leaving aside anything which the jury may have observed at the scene, it is manifest that the assignment that the verdict is against the overwhelming weight of the evidence is not well taken, an unauthorized view would not reverse; but there is no such manifest case here. On the contrary, the assignment, when reviewed aside from the evidence taken at the scene, and discarding anything that the jury may have observed there, presents a question of sufficient seriousness that appellant is entitled to have it examined free from the encumbrances which the view and its consequences have imported into this trial.
We decide no other question than those expressly herein mentioned, since, upon a new trial, the other alleged errors, if they be errors, may not again appear.
Reversed and remanded.