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Kramer Service, Inc., v. Wilkins

Supreme Court of Mississippi, Division A
Feb 20, 1939
184 Miss. 483 (Miss. 1939)


No. 33532.

February 20, 1939.


Where hotel guest's invitee leaving guest's room opened door in ordinary manner but broken piece of transom glass fell and injured invitee and unrepaired condition of transom had existed for a sufficient length of time to charge hotel with responsible notice thereof, and condition was such that reasonably prudent and careful operator should have foreseen likelihood of accident, hotel was liable for invitee's injuries.


Where skin cancer had developed at point of injury, and one physician testified that it was possible that a trauma could cause skin cancer at point of injury but that chances that such a result would ensue would be only one out of 100 cases, whereas other physician testified that there was no causal connection between trauma and cancer, defendant in personal injury action was entitled to instruction that cancer should not be considered by jury.


Where evidence did not support plaintiff's contention that cancer resulted from injury, jury returned $20,000 verdict, and but for such element verdict could not have been large, failure to give instruction that cancer or any prolongation of trouble on account thereof should not be considered by jury required reversal of judgment on issue of damages.


Post hoc ergo propter hoc is not sound as evidence or argument.


That negligence of one person and injury to another coexist is not sufficient to establish liability, but the injury must have been caused by the negligence, and it is not sufficient to show a possibility that the injury complained of was caused by the negligence.


Possibilities will not sustain a verdict.


Where issue is one which lies wholly beyond the range of experience or observation of laymen and of which they have no appreciable knowledge, undisputed testimony of reputable specialist, such as physician, is conclusive on both judge and jury.


In personal injury action, where plaintiff contended that cancer resulted from injury, and medical testimony was that as a possibility skin cancer could be caused by injury such as plaintiff sustained, but that there was no such a probability, jury could not consider cancer or any prolongation of trouble on account thereof in awarding damages.

APPEAL from the circuit court of Pike county; HON. J.F. GUYNES, Judge.

Price McLain and R.B. Reeves, all of McComb, and Green, Green Jackson and Watkins Eager, all of Jackson, for appellant.

The court committed reversible error in admitting the testimony of T.B. Wilkins and D.P. Clokey as to alleged statements made by Fred Allen after accident.

Crosby v. C. G.R. Co., 181 So. 139; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Tuccio v. Smith, 151 Miss. 393, 118 So. 195; V. M.R.R. Co. v. McGowan, 62 Miss. 682; Deposit Guaranty Bank Trust Co. v. Silver Saver Stores, Inc., 148 So. 367, 166 Miss. 882; Miss. Cent. R. Co. v. Pillows, 101 Miss. 527, 58 So. 483; G.M. N.R. Co. v. Hudson, 170 So. 369, 142 Miss. 542.

The court committed error in refusing the appellant's request for a peremptory instruction.

(a) No proof of notice upon the part of the appellant of the alleged defective transom.

Restatement of Law of Torts, 932, sec. 342; Hope v. R.R. Co., 98 Miss. 822, 54 So. 369; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283.

(b) Such condition as existed in Room 50 was obvious to the appellee.

Restatement of Law of Torts, page 927, sec. 340, and page 929, sec. 341; Miss. P. L. Co. v. Griffin, 81 F.2d 292; Wilbourn v. Charleston Cooperage Co., 90 So. 9, 127 Miss. 290; Bennett v. L. N.R.R. Co., 102 U.S. 577, 28 L.Ed. 235.

(c) The accident was one which the appellant was not required as a reasonably prudent person to anticipate.

Williams v. Lumpkin, 169 Miss. 146, 142 So. 842; D'Antoni v. Albritton, 126 So. 836, 156 Miss. 78; Burnside v. Gulf Ref. Co., 166 Miss. 460, 148 So. 219; I.C.R.R. Co. v. Bloodworth, 145 So. 333, 166 Miss. 602; Jabron v. State, 159 So. 406, 172 Miss. 135; C. G.R. Co. v. Coleman, 160 So. 271, 172 Miss. 514; Shuptrine v. Herron, 180 So. 620; N.O. N.E. Co. v. McEwen Murray, 49 La. Ann., 1184, 22 So. 675, 38 L.R.A. 134.

The burden of proof rested upon the appellee, plaintiff in the court below, to prove as a reasonably certain probability by a preponderance of the evidence that the skin cancer from which he suffered at the time of the trial was proximately caused by the wound on his temple of January 15, 1935.

Molyneux v. Canal Co., 35 P.2d 651, 94 A.L.R. 1264; Winn v. John Hancock Mutual Life Ins. Co., 250 N.W. 459, 216 Iowa, 1249; Florman v. Patzer, 24 P.2d 228; Pitre v. Guidry, 147 So. 767; Symington v. Graham, 169 A. 316; Refrigerating Equipment Co. v. Finch, 242 N.W. 217; Sajatovich v. Traction Bus Co., 172 A. 148; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Y. M.V.R.R. Co. v. Boone, 111 Miss. 881, 72 So. 777; Grant v. N.O.R.R. Light Co., 56 So. 897; Teche Lines, Inc. v. Bounds, 179 So. 747; Y. M.V.R.R. Co. v. Lamensdorff, 178 So. 80; C. G. Ry. v. Coleman, 117 Miss. 514, 160 So. 277; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Tyson v. Utterback, 122 So. 496, 154 Miss. 381; N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; I.C.R.R. Co. v. Cathey, 70 Miss. 332; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769; Schapiro v. Wannamaker, 189 N.Y. Supp. 343; Ortner v. Carburetor Co., 175 N.W. 122; Bates v. Carroll, 122 A. 562.

Even if liability existed on the part of the appellant in this case, a verdict of twenty thousand dollars was so excessive and out of all reason as to indicate such passion and prejudice, especially in view of other errors committed in the case, as should require a new trial.

Y. M.V.R.R. Co. v. Lane, 46 So. 959; Y. M.V.R. Co. v. Mothershed, 85 So. 98, 122 Miss. 835; Miss. Cent. R.R. Co. v. Smith, 154 So. 533, 159 So. 562, 173 Miss. 507; Sivley v. Sivley, 51 So. 457, 96 Miss. 137; Scott-Burr Stores v. Edgar, 165 So. 623; Kimmie v. Terminal, etc., Assn., 66 S.W.2d 561.

The court committed error in failing and refusing to grant the appellant Instruction No. 7, marked refused by the court, because the appellee did not establish by a preponderance of the evidence that the injuries complained of resulted in producing the skin cancer on appellee's temple.

Under the authority of Teche Lines, Inc. v. Bounds, 179 So. 747; Masonite Corp. v. Hill, 154 So. 295, 170 Miss. 158, 95 A.L.R. 157; Sovereign Camp Woodmen of the World v. Sloan, 101 So. 195, 136 Miss. 549; Tolfree v. Wetzler, 25 F.2d 553, 73 L.Ed. 747; Cudahy v. Baskin, 155 So. 217, 170 Miss. 834; U.S.F. G. Co. v. Rochester, 281 S.W. 306, 283 S.W. 135; Tucker v. Gurley, 175 So. 279, 179 Miss. 412; Gully v. Lumberman's Mutual Casualty Co., 168 So. 609, we now submit that furthermore, all that has been said in all of the briefs in this case and all that can be said in arguing this record lead to the inescapable conclusion that the plaintiff-appellee has been permitted to go to the jury with instructions as to the law, resulting in the jury returning a verdict based upon at most testimony that is contrary to present known medical fact and law.

Gurley v. Missouri Pacific Ry. Co., 104 Mo. 211, 168 S.W. 11; Hunter v. Railway Co., 23 N.E. 9; Davidson v. St. Louis, etc., R.R., 148 S.W. 406, 164 Mo. 701; Sexton v. Metropolitan Ry. Co., 149 S.W. 21, 245 Mo. 254; St. L. S.W. Ry. Co. v. Eldenwood, 123 Ark. 428, 185 S.W. 768; Radziemenski v. B. O.R.R. Co., 283 Pa. 182, 128 A. 735; Szpyrka v. International Ry. Co., 210 N.Y.S. 553, 213 App. Div. 390; B. O.R.R. Co. v. O'Neill, 186 Fed. 13, 108 C.C.A. 115; Y. M.V.R.R. Co. v. Lamensdorff, 180 Miss. 426, 178 So. 80; Y. M.V.R.R. Co. v. Skaggs, 179 So. 274.

Under all of these authorities the principle is definitely established that even though a cloud of witnesses may testify to a thing as being a fact, yet if such testimony is contrary to known natural, physical or medical law, and fact, the court will disregard entirely all of said testimony, and the testimony will not be sufficient to support a verdict, even though a jury may return the same, based upon said false testimony. W. Calvin Wells, of Jackson, A.A. Cohn and J.W. Cassedy, both of Brookhaven, and Mounger Watts and Gordon Roach, all of McComb, for appellee.

We submit that the court did not commit reversible error in admitting the testimony of T.B. Wilkins and D.P. Clokey as to the statement made by Fred Allen after the accident.

Y. M.V.R.R. Co. v. Jones, 73 Miss. 229; M. O.R.R. Co. v. Stinson, 74 Miss. 453; I.C.R.R. Co. v. Tronstine, 64 Miss. 834; Mayes v. State, 64 Miss. 329; Ward v. Y. M.V.R.R. Co., 79 Miss. 145.

We submit that the fact of the defective condition of the glass in the transom, which afterward fell on the plaintiff, was established by the undisputed testimony of Clokey, and that, too, a defective condition sufficiently long before the injury to render it absolute negligence for the defendant not to have corrected said dangerous condition before the injury to plaintiff occurred. That being established by the undisputed testimony of Clokey we submit that evidence of the knowledge of said defective condition by the manager of the hotel, Allen, could be proved by the admissions of Allen himself. In other words, even though the court might hold that the liability of the defendant could not be established as to the defective condition of the transom, by the admissions of Allen, and even though it might be held that such admissions were not a part of the res gestae, such admissions would be admissible to prove knowledge on behalf of Allen.

Scott-Burr Stores Corp. v. Edgar, 177 So. 766; Yazoo City, v. Loggins, 110 So. 833.

The existence or absence of knowledge may be shown by declarations of the person whose knowledge is of importance, even though such declarations were made a considerable time before or after the time involved in the inquiry, provided there is not such an element of remoteness as destroyed materiality.

22 C.J., sec. 302 (9); Philadelphia, etc., R. Co. v. Stimpson, 14 Pet. 448, 10 L.Ed. 535; Weiss v. Haight, etc., Co., 148 Fed. 399; McKnight v. U.S., 130 Fed. 659, 65 C.C.A. 37; Salvens v. Northern Pac. R. Co., 97 Fed. 255, 38 C.C.A. 151; Gibbs v. Johnson, 10 Fed. Cas. No. 5384; Tobin v. Walkinshaw, 23 Fed. Cas. No. 14070, McAll. 186; Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Jones v. State, 103 Ala. 1, 15 So. 891; Louisville, etc., R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714; Bell v. Troy, 35 Ala. 184; Elledge v. National City, etc., R. Co., 100 Cal. 282, 34 P. 720, 38 A.S.R. 290; Jordan v. Patterson, 67 Conn. 473, 35 A. 521; Sanders v. State, 113 Ga. 267, 38 S.E. 841; Jones v. State, 63 Ga. 395; Tumlin v. Crawford, 61 Ga. 128; McLeod v. Ginther, 80 Ky. 399; Robinson v. Sweet, 3 Me. 316; Roberts v. Spencer, 123 Mass. 397; Com. v. Roberts, 108 Mass. 296; Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756; Swift v. Mass. Mutual Life Ins. Co., 63 N.Y. 186, 20 Am. Rep. 522; Chapman v. Erie R. Co., 55 N.Y. 579; Merrill v. Grinnell, 30 N.Y. 594; Lake Shore, etc., Southern R. Co. v. Erie County, 2 N.Y. St. 317; Baird v. Howard, 51 Ohio St. 57, 36 N.E. 732, 46 Am. St. Rep. 550, 22 L.R.A. 846; Corbett v. State, 5 Ohio Cir. Ct. 155, 3 Ohio Cir. Dec. 79; Kreiter v. Bomberger, 82 Pa. 59, 22 Am. Rep. 750; Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253; Memphis Cotton Oil Co. v. Goode, 171 S.W. 284; Rodriguez v. Espinosa, 25 S.W. 669; Cortez v. State, 43 Tex. Cr. 375, 66 S.W. 453; Clay v. State, 40 Tex. Cr. 556, 51 S.W. 212; State v. Marsh, 70 Vt. 288, 40 A. 836; Foster v. Dickerson, 64 Vt. 223, 24 A. 253; Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421, 64 Am. St. Rep. 715, 36 L.R.A. 271; Olson v. Seldovia Salmon Co., 88 Wn. 225, 152 P. 1033; McGowan v. Supreme Ct. I.O.O.F., 104 Wis. 173, 80 N.W. 603.

The judgment of the lower court should not be reversed for the admission of this evidence which was merely cumulative, even though this court should go to the extent of holding it incompetent, because, as shown by the statement of facts the judgment was supported amply and fully and conclusively by other and competent evidence.

O'Leary v. Burns, 53 Miss. 171; Rothschild v. Hatch, 54 Miss. 554; Fletcher v. State, 60 Miss. 675; Board of Levee Commissioners v. Lee, 85 Miss. 508; Union Planters Bank v. Rylee, 94 So. 796; Barringer v. Nesbit, 1 S. M. 22; Davis v. Clark, 5 S. M. 226; Lucas v. Waul, 12 S. M. 163; Fore v. Williams, 35 Miss. 533; Moore v. DeCell, 17 So. 681; Western Union Tel. Co. v. Littlejohn, 72 Miss. 1029; Fletcher v. W.O.W., 81 Miss. 256; J.J. Newman Lbr. Co. v. Dantzler, 107 So. 31; Y. M.V.R.R. Co. v. Mothershed, 122 Miss. 835; Gillespie v. Doty, 160 Miss. 684; Bonds v. Lipton, 85 Miss. 209; Mary Washington Female College v. McIntosh, 37 Miss. 671; Crosby v. C. G.R.R. Co., 181 So. 139; Woods v. Franklin, 118 So. 450; Tuccio v. Smith, 188 So. 195; Deposit Guaranty Bank Trust Co. v. Silver Saver Stores, 148 So. 369.

In 22 C.J., page 387, the following is laid down as the law: "Narrative statements of an agent of a private corporation are not admissible against the principal, but, as a corporation, like an individual, may make admissions after the event, and as a corporation can act only by its agents, the general officers or agents of a corporation may affect it by statements subsequent to the event.

"A private corporation will be affected by the relevant declarations of its proper officers of general or limited authority, if made in the line of the declarant's official duty, but not by admissions made when the declarant was not engaged in the discharge of his duties, or which are beyond the scope of his authority.

"The statements of the president in connection with his duties as such are competent against the corporation, and the same is true of admissions of the secretary or the treasurer."

Western Union Tel. Co. v. Yopst, 118 Ind. 248, 28 N.E. 222, 3 L.R.A. 224; Costigan v. Michael Transp. Co., 38 Mo. App. 219; Columbia-Knickerbocker Trust Co. v. Abbot, 247 Fed. 883, 160 C.C.A. 55; Weiss v. Haight, etc., Co., 148 Fed. 399; Gray Lbr. Co. v. Harris, 127 Ga. 693, 56 S.E. 252; Tifton, etc., R. Co v. Butler, 4 Ga. App. 191, 60 S.E. 1087; Mantle v. Jack Waite Min. Co., 24 Ida. 613, 135 P. 854, 136 P. 1130; Carterville Coal Co. v. Coney-Durham Coal Co., 186 Ill. App. 163; Seevers v. Cleveland Coal Co., 179 Iowa, 235, 159 N.W. 194; McGenness v. Adriatic Mills, 116 Mass. 177; Jacobs v. Hagenbeck-Wallace Shows, 198 Mich. 73, 164 N.W. 548, L.R.A. 1918A, 504; Keel v. Wilson Fruit Juice Co., 176 Mich. 345, 142 N.W. 346; Mealey v. Bemidji Lbr. Co., 118 Minn. 427, 136 N.W. 1090; McClave-Brooks Co. v. Belzoni Oil Works, 113 Miss. 500, 74 So. 332; Johnson v. Hartford Ins. Co., 271 Mo. 562, 197 S.W. 132; Polk Band v. Wood, 186 S.W. 1186; Morton v. Manchester Inv. Co., 181 Mo. App. 364, 168 S.W. 908; Hay v. American Fire Clay Co., 179 Mo. App. 567, 162 S.W. 666; Huse v. St. Louis Belting Co., 121 Mo. App. 89, 97 S.W. 990; Interboro Brewing Co. v. Independent Consumers' Ice Co., 93 Misc. 24, 156 N.Y..S. 410; Dunbar Box, etc., Co. v. Martin, 53 Misc. 312, 103 N.Y.S. 91; Milgrim v. Hastings, 167 N.Y.S. 292; Seward v. Seaboard Air Line R., 159 N.C. 241, 75 S.E. 34; Ives v. Atlantic, etc., R. Co., 142 N.C. 131, 55 S.E. 74, 115 A.S.R. 732, 9 Ann. Cas. 188; Gresham Bank v. Welch, 76 Or. 272, 147 P. 534; Theo. Hamm Brewing Co. v. Huber, 169 N.W. 551; Liter v. Ozokerite Min. Co., 7 Utah, 487, 27 P. 690; Welsbach Incandescent Gas Lighting Co. v. New Sunlight Incandescent Co., 2 Ch. 1; Davis v. Louisville Trust Co., 181 Fed. 10, 104 C.C.A. 24, 30 L.R.A. (N.S.) 1011; Home Ice Factory v. Howells Min. Co., 157 Ala. 603, 48 So. 117; Lowe v. Yolo County Cons. Water Co., 157 Cal. 503, 108 P. 297; Western, etc., Co. v. Rosenthal, 10 Ga. App. 416, 73 S.E. 428; Masonic Temple Safe Deposit Co. v. Langfelt, 117 Ill. App. 652; Seevers v. Cleveland Coal Co., 179 Iowa, 235, 159 N.W. 194; Garfield, etc., Coal Co. v. Pennsylvania Coal, etc., Co., 199 Mass. 22, 84 N.E. 1020; Neal v. Novelty Leather Works, 198 Mich. 598, 165 N.W. 681; Itaska Cedar, etc., Co. v. McKinley, 124 Minn. 183, 144 N.W. 768; Morton v. Manchester Inv. Co., 181 Mo. App. 364, 168 S.W. 666; Head, etc., Co. v New England Breeders' Club, 75 N.H. 449, 75 A. 982; Jones v. Mt. Holly Water Co., 87 N.J.L. 106, 93 A. 860; Quinn v. North Sand Co. 140 N.Y..S. 390; McEntyre v. Levi Cotton Mills Co., 132 N.C. 598, 44 S.E. 109; Marshall v. Columbia, etc., Electric St. R. Co., 73 S.C. 241, 53 S.E. 417; Austin Electric R. Co. v. Faust, 133 S.W. 449; Smith v. Sinbad Dev. Co., 11 Cal. A. 253, 104 P. 706; Cedar Rapids Auto Co. v. Jeffrey, 139 Iowa, 7, 116 N.W. 1054; Fowles v. Aetna Loan Co., 86 Mo. A. 103.

In 22 C.J., page 389, the rule is laid down as follows: "The rule admitting statements of agents of a corporation within the scope of their authority applies to general managers, financial managers, and other general agents, such as superintendents."

Western Inv. Co. v. Denver First Nat. Bank, 23 Colo. A. 143, 128 P. 476; Iron Clad Mfg. Co. v. Stanfield, 112 Md. 360, 76 A. 854; Pennsylvania R. Co. v. Orem Fruit Co., 111 Md. 356, 73 A. 571; Egner v. Curtis, etc., Co., 96 Neb. 18, 146 N.W. 1032, L.R.A. 1915A 153; Carey v. Wolff, 72 N.J.L. 510, 63 A. 270; Vaughan Mach. Co. v. Quintard, 37 App. Div. 368, 55 N.Y.S. 1114; Pacific Export Lbr. Co. v. North Pac. Lbr. Co., 46 Or. 194, 80 P. 105; Roren Drop Forging Co. v. Union Mfg., etc., Forging Co., 37 R.I. 396, 92 A. 1018; Gerlach Merc. Co. v. Hughes Bozarth-Anderson Co., 189 S.W. 784; Booker-Jones Oil Co. v. National Refining Co., 63 Tex. Civ. App. 142, 131 S.W. 623, 132 S.W. 815; Laredo Electric Light Co. v. U.S. Electric Lighting Co., 26 S.W. 310; Douglas Land Co. v. T.W. Thayer Co., 107 Va. 292, 58 S.E. 1101; Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S.E. 148; Chilcott v. Washington State Colonization Co., 45 Wn. 148, 88 P. 113; Pauly v. Pauly, 40 P. 29, 48 A.S.R. 98; Chanute Bank of Commerce v. Sams, 96 Kans. 437, 152 P. 28; Kansas City Breweries Co. v. Haffey, 193 Mo. A. 349, 186 S.W. 36; Oklahoma State Bank v. Airington, 172 P. 462; Webb v. Smith, 6 Colo. 365; Watertown Agr. Ins. Co. v. Potts, 55 N.J.L. 158, 26 A. 27, 39 A.S.R. 637; Northern Cent. Coal Co. v. Hughes, 224 Fed. 57, 139 C.C.A. 619; Roth v. Continental Wire Co., 94 Mo. A. 236, 68 S.W. 594; Rogers v. New York, etc., Bridge, 11 App. Div. 141, 42 N.Y.S. 1046.

While it is true that it is entirely unnecessary to invoke the doctrine of res ipsa loquitur because of the positive affirmative testimony independent of the accident itself, to show negligence, it appears to us that, even had there been no such positive evidence, the fact the injury was sustained from being cut on the head by old smutty glass with an old break therein would be sufficient to take this case to the jury for the plaintiff.

J.C. Penney Co. v. Evans, 160 So. 780; Jones v. Bland, 16 A.L.R. 1383; Allen v. Y. M.V.R. Co., 71 So. 386; Wilbourn v. Charleston Cooperage Co., 90 So. 11; Kress Co. v. Markline, 77 So. 859; Ness Creameries v. Barthes, 155 So. 224; Western Union Tel. Co. v. Blakely, 140 So. 336; City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283; Miss. Central R.R. Co. v. Bennett, 71 So. 310, 111 Miss. 163; Ten Mile Lbr. Co. v. Garner, 78 So. 776, 117 Miss. 814; Lampton v. Atkins, 92 So. 638, 129 Miss. 660; G.M. N.R. Co. v. Brown, 108 So. 503, 143 Miss. 890; A. V.R.R. Co. v. White, 63 So. 345, 106 Miss. 141.

Unquestionably under the facts in case at bar, as testified to both by witnesses for plaintiff and defendant, the plaintiff in this case was an invitee in the said hotel. If an invitee, then he was entitled to the protection as an invitee, and not as a licensee.

2 Restatement of the Law on Torts, page 939, section 343.

There is absolutely nothing on the face of the earth that is utterly improbable or ridiculous in the testimony that a man was injured on his head with the cut of glass and that the wound never healed, and that it grew into a cancer and is now a cancer, so pronounced by both expert witnesses in the case at bar. What is absurd or ridiculous or impossible about Dr. Tedder's testimony that in his opinion, as a result of his study, that a traumatic injury such as this could, and this case did, result in a cancer?

Conceding that the jury could properly consider whether or not the negligence of the defendant had caused the injury and cancer, and that the jury had found as a fact on the substantial testimony of the plaintiff that such cancer was caused by such trauma so negligently inflicted by the defendant, we submit that it is idle to discuss whether or not $20,000 was an excessive verdict for such injury.

Argued orally by W.G. McLain and W.H. Watkins, for appellant, and by W. Calvin Wells, for appellee.

Appellant was and is the owner and operator of a large hotel. About 5:30 o'clock P.M. on January 15, 1935, one Clockey registered as a guest and was given a room, to which he was conducted by a bellboy. Mr. Clockey was the district sales representative of an oil company, and appellee was the local representative. The business which brought Clockey to the hotel was to have a conference with appellee. It was the long established custom of the hotel that a guest should have the privilege of inviting to his room any person whom the guest wished to see on business. It was the purpose of Clockey to telephone appellee of his arrival, and expected that a telephone would be in his room.

Soon after entering the room, Clockey discovered that there was no telephone therein, and that the windows could not be raised nor the transom lowered so as to give ventilation. The reason that the guest could not undertake to lower the transom was that there was a break in the glass thereof, the break being described by this witness as cone-shaped and about twenty inches in length at the base, the broken portion clinging nevertheless in the transom.

Clockey was obliged to go to the hotel office in order to telephone appellee, his business associate, which he did in about twenty minutes after he had registered. While on this mission Clockey informed the hotel clerk of the objectionable condition of the room, including a reference to the condition of the transom. The clerk explained that there was a convention in session at the hotel, and that the room assigned was the only one left, but that a better room could be given on the next day.

About two hours later appellee came to Clockey's room in response to the telephone message, and when the business conference was concluded appellee was in the act of leaving the room. When he opened the door, which was done in an ordinary manner, without any violence, the broken piece of the transom fell striking appellee upon the head. Three wounds were thus made upon appellee's head, one of which was a jagged abrasion on the temple.

The foregoing statement of the facts is supported by competent evidence which in the light of the verdict of the jury must be accepted as true. There is further competent evidence to the effect that the condition of unrepair which resulted in the fall of the broken transom glass had existed for a sufficient length of time to charge appellant with responsible notice thereof, and that the condition was such that a reasonably prudent and careful operator should have foreseen the fall of the broken glass and an injury thereby as a likelihood of appreciable weight and moment. See Gulf Refining Co. v. Williams, Miss., 185 So. 234. There is no reversible error in the record on the issue of liability, and as to that issue the judgment will be affirmed.

But there is plain and serious error in the matter of the amount of the damages. The wound on the temple did not heal, and some months after the injury appellee was advised by his local physician to visit a specialist in skin diseases, which he did in January, 1937, about two years after the injury, and it was then found that at the point where the injury occurred to appellee's temple, a skin cancer had developed, of which a cure had not been fully effected at the time of the trial, some three years after the injury first mentioned.

Appellee sued for a large sum in damages, averring and contending that the cancer resulted from the stated injury; and the jury evidently accepted that contention, since there was an award by the verdict in the sum of twenty thousand dollars. Appellant requested an instruction to the effect that the cancer or any prolongation of the trouble on account thereof should not be taken into consideration by the jury, but this instruction was refused.

Two physicians or medical experts, and only two, were introduced as witnesses, and both were specialists in skin diseases and dermal traumatisms. One testified that it was possible that a trauma such as appellee suffered upon his temple, could or would cause a skin cancer at the point of injury, but that the chances that such a result would ensue from such a cause would be only one out of one hundred cases. The other testified that there is no causal connection whatever between trauma and cancer, and went on to illustrate that if there were such a connection nearly every person of mature age would be suffering with cancer. Further reference to the medical testimony will be made later herein.

It seems therefore hardly to be debatable but that appellant was entitled to the requested instruction as regards the cancer; and since, except as to that element, the verdict could not have been large, the verdict and judgment must be reversed on the issue of the amount of the damages.

There is one heresy in the judicial forum which appears to be Hydra-headed, and although cut off again and again, has the characteristic of an endless removal. That heresy is that proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is sufficient in probative force to take the question to a jury. Such was never the law in this State, and we are in accord with almost all of the other common-law states. Nearly a half century ago, when our Court stood forth in point of ability never excelled, and when the principles of the jurisprudence of this State were being put into a more definite form than ever before, Chief Justice CAMPBELL said in Railroad v. Cathey, 70 Miss. 332, 337, 12 So. 253: "It is not enough that negligence of the employer and injury to the employe coexisted, but the injury must have been caused by the negligence. . . . `Post hoc ergo propter hoc' is not sound as evidence or argument. Nor is it sufficient for a plaintiff seeking recovery for alleged negligence by an employer towards an employee to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation."

This terse and expressive language had no such limited application as that it governed only in employer and employe cases, but is to be paraphrased as follows: It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. Post hoc ergo propter hoc is not sound as evidence or argument. Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by another toward the plaintiff, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation.

Over and over in language to the same effect since that day this rule has been repeated and reaffirmed; a page-to-page search in our Mississippi reports would probably disclose not less than one hundred cases in which, in one form or another, this has been held. Some of the recent cases cited in the briefs now before us are: Yazoo M.V. Railroad Co. v. Boone, 111 Miss. 881, 72 So. 777; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; New Orleans N.E. Railroad Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Yazoo M.V. Railroad Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80; Teche Lines v. Bounds (Miss.), 179 So. 747; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470. In the latter case it was held that medical testimony that from an alleged cause a certain result is possible, but not probable, is no substantial testimony at all; and this was repeated in Teche Lines v. Bounds, supra, and it was again so held in Mutual Benefit Health Accident Association v. Claudia May Johnson, No. 33,488, decided two weeks ago, and not yet reported.

Taking the medical testimony in this case in the strongest light in which it could be reasonably interpreted in behalf of the plaintiff, this testimony is that as a possibility a skin cancer could be caused by an injury such as here happened, but as a probability the physicians were in agreement that there was or is no such a probability.

And the medical testimony is conclusive on both judge and jury in this case. That testimony is undisputed that after long and anxious years of research the exact cause of cancer remains unknown — there is no dependably known origin to which it can be definitely traced or ascribed. If, then, the cause be unknown to all those who have devoted their lives to a study of the subject, it is wholly beyond the range of the common experience and observation of judges and jurors, and in such a case medical testimony when undisputed, as here, must be accepted and acted upon in the same manner as is other undisputed evidence; otherwise the jury would be allowed to resort to and act upon nothing else than the proposition post hoc ergo propter hoc, which, as already mentioned, this Court has long ago rejected as unsound, whether as evidence or as argument.

In all other than the exceptional cases now to be mentioned, the testimony of medical experts, or other experts, is advisory only; but we repeat that where the issue is one which lies wholly beyond the range of the experience or observation of laymen and of which they can have no appreciable knowledge, courts and juries must of necessity depend upon and accept the undisputed testimony of reputable specialists, else there would be no substantial foundation upon which to rest a conclusion. 22 C.J., pp. 730, 731; Moratzky v. Wirth, 74 Miss. 146, 148, 76 So. 1032; Ewing v. Goode, C.C., 78 F. 442. Thus in Berryhill v. Nichols, supra, which dealt with a case of pulmonary embolism, and of which a jury could have no knowledge whatever except as conveyed to them by medical experts, the action of the court in granting a peremptory instruction on the medical testimony was upheld as correct, and a like course was taken by this Court in Mutual, etc., Association v. Johnson, supra. See also, as somewhat in point, the cancer case, Schapiro v. Wanamaker, 197 App. Div. 810, 189 N.Y.S. 343.

Affirmed as to liability; reversed and remanded on the issue of the amount of the damages.

Summaries of

Kramer Service, Inc., v. Wilkins

Supreme Court of Mississippi, Division A
Feb 20, 1939
184 Miss. 483 (Miss. 1939)
Case details for

Kramer Service, Inc., v. Wilkins

Case Details


Court:Supreme Court of Mississippi, Division A

Date published: Feb 20, 1939


184 Miss. 483 (Miss. 1939)
186 So. 625

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