holding that incredible testimony and the testimony of a plaintiff which was so clearly and manifestly improbable should be disregardedSummary of this case from Doe v. Stegall
March 21, 1938.
Testimony of general practitioner of medicine that "it is possible" for traumatic injury to eye to cause astigmatism without leaving scar was insufficient to rebut eye specialist's testimony that injury to eye by pieces of broken glass driven into it, as claimed by plaintiff, would invariably leave scar perceptible to examining instruments used by witness and that there were no scars on plaintiff's eye.
Medical testimony is not probative, unless in terms of probabilities, not possibilities.
The trial court did not err in ordering examination of plaintiff's eye by specialist and admitting latter's testimony as to result thereof after plaintiff pointed to his eye to illustrate his testimony in action for alleged injury thereto.
Evidence which is inherently unbelievable or incredible is in effect no evidence and insufficient to sustain verdict.
"Believable or credible evidence" in civil case is evidence reconcilable with probabilities of case, and bare possibilities are not sufficient.
Evidence so contrary to probabilities, when weighed in light of common knowledge, common experience, and common sense, that impartial, reasonable minds cannot accept it, except as clearly improbable, will not support verdict.
One on whom burden rests to establish right of controversy must produce credible evidence from which men of unbiased minds can reasonably decide in his favor.
An inherently incredible story is not made credible by being sworn to and cannot serve as foundation of verdict.
Courts are not required to believe that which is contrary to human experience and laws of nature or judicially known to be incredible, though there is evidence tending to support it.
A jury is not warranted in finding existence of fact on witness' positive testimony contrary to conceded facts, matters of common knowledge, or all reasonable probabilities.
11. APPEAL AND ERROR.
It is not essential to review by appellate court that improbability of fact found by jury from evidence shall amount to impossibility, but verdict may be set aside if such fact is so improbable according to ordinary operation of physical forces or so overwhelmingly disproved by credible witnesses as to compel conviction that jury failed to weigh evidence carefully, drew unwarranted inferences therefrom, or yielded to partisan bias.
Jury's verdicts must be founded upon probabilities according to common knowledge, common experience, and common sense, not possibilities.
A jury's verdict cannot convert a possibility or any number of possibilities into probability.
14. APPEAL AND ERROR.
Before appellate court can say that fact adjudged by jury as probability was only possibility insufficient to support verdict, it must be clear or manifest that only possibility, rather than probability, was shown by evidence.
15. APPEAL AND ERROR.
A jury's fact findings will be set aside only when clearly or manifestly against all reasonable probability.
16. APPEAL AND ERROR.
The driving of automobile six or seven miles after four pieces of glass were driven into one eye of driver was so clearly or manifestly improbable as to require reversal of judgment on jury's verdict for him in his action for injuries to such eye as to amount of damages, though testified to as fact by him.
The jury is not obliged to accept as fact a clearly or manifestly improbable occurrence testified to by plaintiff.
APPEAL from the circuit court of Hancock county; HON.W.A. WHITE, Judge.
White Morse, of Gulfport, and Porteous, Johnson Humphrey, of New Orleans, La., for appellant.
When we take the uncontradicted testimony of Dr. C.A. McWilliams, an eminent eye specialist of Gulfport, Mississippi, we find that there was no injury to the eye, that the only thing appellee was suffering with was astigmatism, a disease of which ninety per cent of the people in the country suffer. This court has repeatedly held that where the testimony of a witness is not contradicted the judge and jury are bound by it.
Stevens v. Stanley, 153 Miss. 809, 122 So. 755; Railroad Co. v. Harrison, 105 Miss. 18, 61 So. 655; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93.
The public must be protected in its rights fully, but the public service corporations must also be just as fully protected by the courts of the country in their just rights.
Railroad Co. v. Johnson, 92 Miss. 517, 46 So. 142.
What is the rule which should be adopted by the court in regard to looking to standard books on medical science or medical jurisprudence? A thorough search discloses only a few instances where this question has been before our court.
The latest case is Gholson v. Peters, 176 So. 605, a will case, where the question was capacity or incapacity to make a will. There the court looked to medical books and used the language "as the books on medical jurisprudence tell us," thereby adopting a medical authority as to a material trait of a monamaniac.
In Mullins v. Cottrell, 41 Miss. 291, at page 314, another case dealing with mental conditions, the court cited and relied on, and cited as establishing the fact in issue, two medical authorities.
Tucker v. Donald, 60 Miss. 460; W.O.W. v. Sloan, 136 Miss. 549; Rodgers v. Kline, 56 Miss. 808; Witherspoon v. State, 138 Miss. 310; Puckett v. State, 71 Miss. 192; Briscoe v. Buxbee, 163 Miss. 574; Vicksburg Waterworks v. Guffy, 86 Miss. 60; Adams v. Standard Oil Co., 97 Miss. 879; Masonite Corp. v. Hill, 170 Miss. 158; 22 C.J. 739; 23 C.J. 146-149; Shapleigh v. Mier, 81 L.Ed. 355; Ohio Bell Tel. Co. v. Public Utilities Co., 81 L.Ed. 1093; Watkins v. Potts, 65 A.L.R. 1097; 3 Wigmore, Learned Treatises, pages 2169-2172; 3 Wigmore (2 Ed.), page 651; Summers v. Bendelari, 262 P. 648; Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468; Lewis v. Gasenburg, 157 Tenn. 187, 7 S.W.2d 808; Smith v. Standard Sanitary Mfg. Co., 277 S.W. 806; Kelly v. Maryland Casualty Co., 45 F.2d 782; Dehn v. Kitchen, 209 N.W. 364; People v. McKernan, 210 N.W. 219; Caldwell v. State Compensation Comr., 144 S.E. 568; Sutton v. New Orleans Public Service, 130 So. 859, 44 Sup. Ct. 628, 25 Sup. Ct. 358.
If a doctor can testify to what he gathers from books, and that, with experience, is where he gets his knowledge, why then cannot the court consult the source of the doctor's knowledge?
It is clear to us that our court has adopted the rule that the court, in the first instance, can consult such standard treatises.
A close examination of standard medical books relating to injuries to the eye fails to aid us for the reason the books deal with generalities and not concrete cases. In other words, the books do not deal with the question of whether appellee could drive six miles with this glass in his eye for the reason this would depend on the size of the glass, the amount of penetration, exactly what point in the eye the glass entered, etc. We refer the court, however, to: Hygiene of the Eye, Posey, page 1, par. 1; Diseases of the Eye, May, page 142; Diseases of the Eye, Berens.
Gex Gex, of Bay St. Louis, and G.B. Keaton, of Picayune, for appellee.
The pronouncement of this court in the case of Railroad Co. v. Johnson, 92 Miss. 517, 46 So. 142, is in our opinion a fair statement of the principles of justice by which the courts of all states should be governed; both individuals and corporations, when before the courts, should receive equal and unbiased consideration. But it will not be presumed by any court that simply because a verdict has been rendered against either the one or the other that an injustice has been done; and where as in this case, the overwhelming weight of the evidence amply supports the jury's verdict, this court cannot and will not set it aside on any such bare presumption.
The sole authority presented by appellant to the lower court for the introduction of Dr. McWilliams and his examination of the plaintiff was the case of Dixie Greyhound Lines v. Matthews, 170 So. 686, 177 Miss. 103. Appellant claimed that by merely pointing to the eye, the plaintiff waived the inviolability of his person which he was guaranteed under the decision in the case of Yazoo M.V.R. Co. v. Robinson, 107 Miss. 192.
The decision in the Dixie Greyhound case specifically limits such examination to cases wherein the plaintiff's right to refuse such an examination has been waived, and certainly this case does not fall within the rule pronounced in that case.
The spirit of the law as evidenced by former decisions and the rules of the court in this state has always been that the Supreme Court will not review facts, and will notice only errors raised and passed upon in the court below, or which appear on the face of the record.
Williams Lbr. Co. v. Henley, 155 Miss. 893; Anderson v. Leland, 48 Miss. 253; George Co. v. L. N.R.R. Co., 88 Miss. 306; Adams v. Clarksdale, 95 Miss. 88; Miss. Valley Trust Co. v. Brewer, 157 Miss. 890; State v. Woodruff, 170 Miss. 744.
Courts will not take judicial notice of facts which are not matters of common and general knowledge. They do not take judicial notice of facts merely because they may be ascertained by reference to dictionaries, encyclopedias, or other publications, nor of facts which the court cannot know without resort to expert testimony or other proof.
23 C.J., page 58, sec. 1807, and page 60, sec. 1810.
We agree with counsel in their statement that no book that we have found answers the court's question as to whether a man can drive six miles with glass in his eye; we feel therefore that the court is bound to accept the testimony of the witnesses that he did do it, as true on that point.
While Mr. Wigmore takes the position that in his opinion, medical treatises, etc., should be permitted in evidence, he frankly admits that forty-six out of the forty-eight states in the Union have denied this. Iowa by special statute permits their use, and Alabama by virtue of a decision of its court has held that their use was permissible. Mr. Wigmore points out that although at times the courts of other states have referred in their opinions to medical works, they have even in those states unhesitatingly held that such treatises and medical works could not be used as evidence, and were not entitled to weight as such.
In his work, dealing with the question of evidence, Wigmore points out that the use of medical works and treatises would be forbidden as hearsay evidence unless it falls within an exception to that rule.
3 Wigmore, secs. 1421, 1423; Ware v. Ware, 8 Me. 56; Ashworth v. Kittredge, 12 Cush. 194; Melvin v. Easly, 1 Jones L. 388; Brown v. Sheppard, 13 U.C.Q.B. 179; State v. Baldwin, 36 Kan. 17, 12 P. 318.
The conclusion of Mr. Wigmore in support of which he argues at length in his work is that since references to medical treatises appear in the opinions of the courts, although expressly repudiated by those courts as having evidentiary value, in order to avoid a seeming contradiction, the courts should adopt the rule that such medical works are competent evidence. We respectfully urge that contrary to Mr. Wigmore's opinion, the better rule is the one now in existence; that such works are not admissible in evidence and that the courts, consistent with the rule, should refrain from making reference thereto in their opinions.
The rule has definitely been laid down in this state as pointed out by counsel for appellant, that no such medical works, or treatises, may be introduced in evidence except for the purpose of contradicting a witness who has asserted that his opinion is based on the text referred to (See Tucker v. Donald, 60 Miss. 460), and yet counsel has also cited several cases from our own court, wherein references to medical authorities were made. However, in none of those cases did the final decision of the court turn upon the contents of medical books referred to, as the court will recognize by a reading of the decisions. In each of those cases there was direct testimony on each point sufficient for the court to have based its decision thereon, and whatever the court may have said in reference to medical authorities was merely obiter dictum so far as the controlling principles decided might have been based thereon.
One of the leading cases, and one which has been referred to as setting out the controlling rule by practically every court in the United States, is the case of Union Pacific Ry. Co. v. Yates, 79 Fed. 584.
U.S. v. Perkins, 221 Fed. 109; 22 C.J. 728, sec. 823.
Since practically all the courts have unanimously held to the rule that medical treatises cannot be accorded weight as evidence, including this court in the case of Tucker v. Donald, which is extensively cited on this point, we feel that the further quotation from decisions would be a burden on the court. The holding in Union Pacific Ry. v. Yates, 79 Fed. 584, 25 C.C.A. 103, 40 L.R.A. 553, has also been very extensively cited by the various courts in announcing and adhering to the rule, and is one of the leading cases on the subject.
Another principle of law which is controlling in the decision of this case is this: That even if the court should resort to medical treatises to ascertain the facts, the opinions laid down by the writers can be given no higher effect or greater weight than expert testimony. Expert testimony, being opinion evidence, gives way to facts testified to by witnesses.
22 C.J. 738, sec. 828; Payne v. Whatcom County Ry. Light Co., 91 P. 1084; James v. Robertson, 117 P. 1068; Producers Oil Co. v. Eaton, 143 P. 9; Southern Ry. Co. v. Tankersley, 60 S.E. 297; Southern Ry. v. Ward, 61 S.E. 913; Louisville H. St. L. Ry. v. Jolly's Admx., 90 S.W. 977; Fields v. Metropolitan St. Ry. Co., 155 S.W. 845.
In response to the court's request, we have examined numerous medical books on this question, and cite the following:
Maloy, Legal Anatomy and Surgery, pages 416, 435; Chapter 1, Volume 4, page 103, The Eye, by Alan C. Woods, A.M.M.D., of Johns Hopkins, Baltimore, Md.; May, Diseases of The Eye, page 350.
Argued orally by Stanford E. Morse, for appellant, and by W.J. Gex, Jr., for appellee.
Appellee alleged in his declaration and by his testimony that he was severely and permanently injured in his left eye by a piece of loose gravel thrown from the wheels of one of appellant's busses, as a proximate consequence of the excessive and unlawful rate of speed at which the bus was traveling on a public highway, and as it passed appellee, who was traveling in an automobile in the opposite direction. On the facts, the case in many respects is similar to Teche Lines, Inc., v. Bateman, 162 Miss. 404, 139 So. 159.
Appellee averred that a piece of gravel, so thrown, struck the left lens of his spectacles, shattered the lens, and drove four pieces of the glass thereof into his left eye, causing a serious and permanent injury thereto, as aforesaid. During his testimony he pointed to his left eye in illustration of his evidence, whereupon appellant moved that his eye be examined by a competent eye specialist, which motion was sustained, and an examination was made by a specialist of more than twenty years' practice, who testified that there was and had been no traumatic injury to the eye; that such an injury by pieces of broken glass driven against and into the eye would invariably leave a scar perceptible to the instruments of examination used by specialists, and as was used by him on this examination; and that there was no scar or scars. His testimony was that appellee's trouble was a congenital astigmatism and not a traumatism.
To rebut the said testimony of the specialist, appellee introduced a general practitioner of medicine who testified as follows:
"Q. From your experience in the practice of medicine, would you say it would be possible for injury to have occurred to the eye by traumatism that would cause astigmatism and leave no scar? A. It is possible."
This was the only question to and answer by this physician in respect to scar or scars and presents no answer to the testimony of the specialist; for the answer was only that it was possible. We have distinctly heretofore held that medical testimony that a certain thing is possible is no substantial testimony at all. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470. Unless such testimony is in terms of probabilities, it is not probative. The physician, who is alleged to have taken the pieces of glass out of the eye on the day of the alleged injury, reported that he was sick and did not attend the trial.
Appellee says, however, that the court was in error in ordering the examination and that the testimony of the specialist should, therefore, be disregarded; that the order is not sustained by the holding of this court in Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686. In that case, at page 115 of 177 Miss., 170 So. 686, 688, the court quoted, with approval, as follows: "An examination of the cases will show that the courts have uniformly held that, where a plaintiff in a personal injury suit voluntarily exhibits the injured part of his body to the jury for inspection, the portion of his body so exhibited becomes an exhibit in the case, like any other object or thing introduced in evidence, and the opposite party has the right to make such inspection of it as will enable him to explain, criticize, or impeach its value as evidence, and to that end have it examined by experts." The other approved quotations in the opinion are to the same effect. That opinion was prepared after a long and most thorough consideration by the entire court, and we will not take it to pieces by technical refinement of argument in subsequent cases.
Appellee testified that the force of the piece of gravel, breaking the lens of his spectacles, was sufficient to shatter the lens, and to drive four pieces of the shattered glass into his left eye, these pieces being so large that they were capable of being put, and were put, into a glass vial after being taken out of the eye, and appellee exhibited to the jury a vial said to contain the four pieces of shattered glass; and yet he testified further that with these four pieces of glass sticking in his eye he drove his automobile some six or seven miles to a physician, who removed the pieces of glass. In view of the testimony of the specialist that there had been no such wound to the eye, and in view of the further fact that appellee had asserted injuries of some sort to his eyes, on two previous occasions, we addressed to counsel a request for additional briefs upon the question "whether it was reasonably probable, according to the course of common or natural experience and observation, that a person with four pieces of shattered glass in his eye, large enough when taken therefrom to be preserved and exhibited in a vial, could have driven an automobile some six or seven miles, immediately following the alleged injury with these pieces of glass imbedded or sticking in his eye, and before he received any treatment therefor."
In response to that inquiry appellee has not attempted to submit any argument that the happening was probable, but has urged that it was possible, and that since the jury has found that it actually occurred, it is not within the province of the court to inquire into it. Certainly it was possible, as almost anything is possible. We recently said in Yazoo M.V. Railroad Co. v. Lamensdorf, 178 So. 80, "that to present a possibility, rather than a believable probability, is not a sufficient basis for a verdict and judgment." Because the argument continues to be made, as here, and so often, that a bare possibility is converted by a jury verdict into an actuality or into a probability, there is need to more fully recur to, and to review, original principles on that question.
If there be any one thing in the administration of law upon which the decisions, the texts, and the general opinion of bench and bar are in agreement, it is that evidence which is inherently unbelievable or incredible is in effect no evidence and is not sufficient to sustain a verdict. This is true even in those jurisdictions which still cling to the scintilla of evidence rule. And, except in the few jurisdictions wherein the latter rule prevails, the overwhelming weight of authority throughout the country is that believable or credible evidence in civil cases is that which is reconcilable with the probabilities of the case and that bare possibilities are not sufficient. Where evidence is so contrary to the probabilities when weighed in the light of common knowledge, common experience, and common sense that impartial, reasonable minds cannot accept it other than as clearly an improbability, it will not support a verdict.
"It has been commonly said: Verdicts must rest on probabilities, not on bare possibilities. There is not capacity in any number of the former to create the latter. So the person on whom the burden of proof rests to establish the right of a controversy, must produce credible evidence from which men of unbiased minds can reasonably decide in his favor." Samulski v. Menasha Paper Co., 147 Wis. 285, 133 N.W. 142, 145. "An inherently incredible story is not made credible by being sworn to. Nor can it be allowed to serve as the foundation of a verdict." McCarthy v. Bangor, etc., Co., 112 Me. 1, 90 A. 490, 492, L.R.A. 1915B, 140, 142. "Courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible, . . . although there may be evidence tending to support it." Lessig v. Reading, etc., Co., 270 Pa. 299, 304, 113 A. 381, 382, quoting from Norfolk W.R. Co. v. Strickler, 118 Va. 153, 86 S.E. 824. "The jury will not be warranted in finding the existence of a fact on the positive testimony of a witness, which is contrary to conceded facts or matters of common knowledge, or all reasonable probabilities." Lattar v. Fidelity etc. Co., 186 Wis. 116, 122, 202 N.W. 299, 302.
The above are a few quotations which could be supplemented by hundreds from nearly every common-law jurisdiction. Our own decisions, upon the precise point, are in accord therewith from the early history of this court down to our last expression in Yazoo M.V. Railroad Co. v. Skaggs, 179 So. 274, 278, wherein we held: "As this court has frequently said, verdicts and judgments in civil actions must be based on the probabilities of the case, not on possibilities; and a verdict, although it is treated with great respect, has no force to convert a possibility into a probability." See, also, Yazoo M.V. Railroad v. Lamensdorf, supra. Incredibility as measured in the scales of probability was acted upon in review as early as Wilson v. Horne, 37 Miss. 477. The Supreme Court of Missouri in Hook v. Ry. Co., 162 Mo. 569, 580, 63 S.W. 360, 362, has tersely stated the rule thus: "Though this court will not undertake to measure the probative force of the conflicting testimony of witnesses upon controverted issues of facts, but . . . must leave those matters . . . to the jury for determination, still [the court] is not so deaf to the voice of nature, or so blind to the law of physics, that every utterance of a witness in derogation of those laws will be treated as testimony of probative value for the consideration of the jury, simply because of its utterance."
It is not essential to a review that the improbability shall amount to an impossibility. This precise question was recently considered and decided in Interstate Fidelity Building Loan Ass'n v. Hollis, 41 Ariz. 295, 17 P.2d 1101, 1102, wherein it was held that a verdict should be set aside if the testimony in support thereof is so incredible as to be beyond the ordinary experience of mankind, and that the rule would be too narrow which would hold that a reversal may be had only where the improbability amounts to an impossibility. The best and most succinct statement which we have found is that of the court in Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 262, 76 S.W. 684, 688, as follows: "Verdicts resting on evidence which looks contrary to the ordinary course of nature are not infrequently set aside and retrials directed, by appellate courts, as a proper precaution against an unjust outcome of litigation. While it is fundamental that juries must weigh evidence, and trial judges revise their findings, instances happen in which, from one cause or another, this practice so obviously failed to work out a right result that an imperative call is heard to supplement it by an exceptional procedure, in order that justice, the end of all procedure, may not be frustrated. This prerogative of courts of error is sparingly employed, but that it exists, as an emergency expedient, for the correction of verdicts palpably wrong, is certain. The appropriate use of it does not require a court to be convinced that the jury found an event to have occurred that was physically impossible or miraculous. It is enough if the event found was so improbable, according to ordinary operation of physical forces, or was so overwhelmingly disproved by credible witnesses, as to compel the conviction that the jury either failed to weigh the evidence carefully, or drew unwarranted inferences, or yielded to a partisan bias."
Upon a review of all the authorities, including, of course, our own cases, the rule must be declared by way of resume as follows: Verdicts are to be founded upon probabilities according to common knowledge, common experience, and common sense, and not upon possibilities; and a verdict cannot convert a possibility or any number of possibilities into a probability. But before an appellate court can say that what the jury has adjudged as if a probability is nevertheless only a possibility, it must be clear or manifest that only a possibility rather than a probability is shown by the evidence. Some of the cases say that a test is whether the alleged fact found by the jury is or is not extremely improbable or highly improbable. These terms are indefinite, and we prefer the terms which have so long been generally used in this jurisdiction in connection with the review of findings of fact, to-wit, that they will be set aside when, but only when, manifestly or clearly wrong, which is to say, when, but only when, clearly or manifestly against all reasonable probability.
The question before us, then, is this: Is it clearly or manifestly improbable that a man could have driven an automobile six or seven miles with four pieces of glass in his left eye, these pieces of glass being so large that they were capable of being taken out of the eye and placed in a vial for later exhibition, and when it is considered in connection therewith that the alleged presence of the pieces of glass in the eye was the result of a violent projection of a stone against the eyeglass breaking of the lens into fragments, four pieces of which were driven into the eye by the force aforesaid?
Thinking that perhaps some aid could be derived from standard medical books dealing with injuries to the eye and the consequent symptoms thereof, we requested that, in the additional briefs aforementioned, counsel would point out to us what is said by such treatises on the precise point here under discussion, and to cite to us the legal authorities whether we could consult the medical books on the subject in arriving at a conclusion. The response was such that we find that the medical books treat of the point under inquiry in such a general way, or so obscurely to the nonprofessional mind, that no aid would be derived from their use; hence it is not necessary to decide whether we would be authorized to look to medical books.
We must, therefore, resort to common sense, common experience, and common observation as regards the common facts of nature, and answer the stated question accordingly. There is no part of the human anatomy more sensitive to injury than the eye, or wherein the pain and distress resulting therefrom is more distracting — a fact known to all men. The eye involuntarily closes even to a gust of dust or sand, and an injury to one eye sets up an involuntary sympathetic response from the other. Had it been averred that these pieces of glass went into both eyes, we would, upon an instant, unhesitatingly say that to have driven an automobile six or seven miles in that condition would have been so nearly impossible as to be utterly unbelievable. Is it still clearly improbable, when the injury, severe as is claimed, was to one eye? We have concluded, after mature consideration, that "as a proper precaution against an unjust outcome of litigation" the answer to that question must be that it is clearly or manifestly improbable; that any other answer would put too great a strain on credulity; that the jury must have considered that, since the alleged occurrence was possible and was testified to by appellee as a fact, the jury was obliged to accept it as such, which is not the law either in this or in any other jurisdiction. The proof is sufficient that appellee was struck in the eye, but not that he suffered any such injury therefrom as claimed by him, and as was allowed in the verdict.
Affirmed as to liability; reversed and remanded as to amount of damages.