Opinion
No. 43216.
November 23, 1964.
1. Motor vehicles — instructions — repetition — refusal of defendants' instructions, prejudicial error.
Although repetition of the same principle in numerous instructions might properly be limited, refusal of all instructions requested by certain defendants in an action for personal injuries sustained in automobile accident was prejudicial error, where such refusal wiped out defenses which defendants offered by their evidence.
2. Evidence — hospital and medical expenses — reasonableness — proof.
If there is objection to reasonableness of hospital and medical expenses as items of damage in a personal injury action, a doctor or hospital staff member is entitled to testify to necessity and reasonableness of the charges.
3. Evidence — same — same — same.
It is not intended that proof of hospital and medical expenses be unreasonably exacting, although it must consist of a bona fide effort to show the reasonable value of the services performed.
4. Evidence — res gestae — admissibility.
Outcry on part of host driver shortly before she collided with a preceding truck, which allegedly stopped on a bridge, to the effect of "what in the world are you going to do" was not inadmissible hearsay but, under the circumstances, was admissible as a part of the res gestae, in action by guest passenger for personal injuries sustained in the accident.
Headnotes as approved by Lee, C.J.
APPEAL from the Circuit Court of Leake County; O.H. BARNETT, J.
Satterfield, Shell, Williams Buford, Cary E. Bufkin, Jackson, for appellants.
I. The lower court erred in refusing to grant appellants a mistrial. Avent v. Tucker, 188 Miss. 207, 194 So. 596; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; Herrin v. Daly, 80 Miss. 340, 194 So. 790; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; M. A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d 788; Odom v. Walker, 193 Miss. 862, 11 So.2d 452; Anno. 4 A.L.R. 761.
II. The lower court erred in refusing to grant a directed verdict, peremptory instruction for the appellants and a judgment notwithstanding the verdict.
III. The lower court erred in instructing the jury to find for Mrs. Dean C. Moore and David L. Smith, co-defendants. Gulf S.I.R. Co. v. Carlson, 137 Miss. 613, 102 So. 168.
IV. The lower court erred in refusing to grant appellants' instructions twelve through twenty-four. Jones v. Dees, 241 Miss. 540, 131 So.2d 436; Hadad v. Lockeby, 176 Miss. 660, 169 So. 691; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Sec. 8188(a), Code 1942.
V. The lower court committed error over objection, by allowing the appellee to introduce hearsay evidence. 31A C.J.S., Evidence, Secs. 192, 193, 200, 519, 520, 568.
VI. The lower court erred in admitting the life expectancy tables into evidence. Mississippi Central R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Tucker v. Gurley, 179 Miss. 412, 176 So. 279; 32 C.J.S., Evidence, Sec. 719.
VII. The lower court erred in admitting, over objection, testimony and invoices concerning doctors' bills, hospital bills and other bills allegedly resulting from the accident. Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A.2d 96, 89 A.L.R. 2d 1166; 25 C.J.S., Damages, Sec. 156; Anno. 82 A.L.R. 1325.
VIII. The lower court erred in admitting, over objection, the testimony of the doctor who stated he relied on the opinion of the radiologist.
IX. The lower court erred in instructing the jury for the plaintiff. Rex Nitrogen Gas Co. v. Hill, 213 Miss. 698, 57 So.2d 173; Sinclair Refining Co. v. Tompkins, 117 F.2d 596.
X. The verdict of the jury and the judgment of the trial court are so excessive as to evince passion, bias and prejudice on the part of the jury. Berres v. Fidelity Casualty Co. of New York (La.), 152 So.2d 74; Billups Petroleum Co. v. Entriken, 209 Miss. 302, 46 So.2d 781; Five-Two Taxi Service v. Simmons, 241 Miss. 182, 129 So.2d 401; Garafalla v. North River Insurance Co. (La.), 153 So.2d 445; Henderson v. Austin (La.), 153 So.2d 175; Johnson v. Richardson, 234 Miss. 49, 108 So.2d 194; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Payne v. McNeeley, 123 Miss. 248, 85 So. 197; Reed v. Middleton, 241 Miss. 324, 130 So.2d 554; Shearron v. Shearron, 219 Miss. 227, 77 So.2d 922; Walker v. Polles, 248 Miss. 887, 162 So.2d 631; West v. The American Insurance Co. (La.), 155 So.2d 261; White v. Robbins (La.), 153 So.2d 165.
XI. The verdict of the jury and the judgment of the trial court are contrary to the overwhelming weight of the evidence, and wrong as a matter of law.
XII. The trial court erred in not setting aside the verdict of the jury and granting a new trial.
Harold W. Davidson, J.E. Smith, Carthage, for appellee.
I. In order to obtain reversal, appellants must show both error in the judgment appealed from and that they were prejudiced thereby, in that they were deprived of a substantial right. Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Mississippi State Highway Department v. Meador, 184 Miss. 381, 186 So. 642.
II. Judgment of trial court is presumably correct and party complaining of it has burden to show that it is incorrect. Hill, Fontaine Co. v. Bloom, Goldsmith, Tachan Co., 1 Miss. Dec. 385.
III. The lower court was correct in refusing to grant appellants a mistrial on account of a voluntary, unsolicited, inadvertent and incidental answer to a question that called for proper evidence. Avent v. Tucker, 188 Miss. 207, 194 So. 596; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; Coker v. Moose, 180 Okla. 234, 68 P.2d 504; Anno. 4 A.L.R. 784.
IV. The lower court correctly refused to grant directed verdict, peremptory instruction for the appellants and a judgment notwithstanding the verdict. Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745; Johnson v. State, 154 Miss. 512, 122 So. 529.
V. Appellants cannot complain of the action of the lower court in instructing the jury to find for the co-defendants, Mrs. Dean C. Moore and David L. Smith. Dukes v. Sanders, 239 Miss. 543, 124 So.2d 122; Gulf S.I.R. Co. v. Carlson, 137 Miss. 613, 102 So. 168; Junkins v. Brown, 238 Miss. 142, 117 So.2d 712; Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705; Mississippi Central R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; 5 Am.Jur.2d, Appeal and Error, Sec. 814.
VI. Error, if any, in the giving or refusal of instructions, is not prejudicial, where on the whole case the verdict and judgment are right. City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, 830; Continental Southern Lines v. Klaas, supra; Johns-Manville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405; Lindsey v. Holly, 105 Miss. 740, 63 So. 222; Nichols v. Gulf S.I.R. Co., 83 Miss. 126, 36 So. 192; Walker v. Polles, 248 Miss. 887, 162 So.2d 631; Rule 11, Supreme Court Rules; Alexander, Mississippi Jury Instructions, Sec. 224 p. 90.
VII. No error was committed in allowing appellee to testify as to a statement made by the co-defendant Dean C. Moore.
VIII. Declarations that are spontaneous utterances of the mind while under the influence of the transaction are admissible as part of res gestae. 32 C.J.S., Evidence, Secs. 411, 417 pp. 30, 47.
IX. No error was committed in admitting the life expectancy tables into evidence as the proof shows that prior to her injuries, the appellee was in good health.
X. Appellants were not prejudiced by the lower court admitting testimony and bills concerning the doctors' bills and hospital and other bills resulting from the accident. Abbitt v. St. Louis Transit Co., 104 Mo. App. 534, 79 S.W. 496; Carangelo v. Nutmeg Farm, 115 Conn. 457, 162 A. 4, 82 A.L.R. 1320; Tompkins v. Bridgeport, 94 Conn. 683, 110 A. 183; 17 C.J. 916.
XI. No prejudicial error resulted in permitting the doctor to testify about the condition of appellee because he relied on a radiologist for reading his X-rays because the radiologist only confirmed his previous interpretation of the pictures. Goodyear Yellow Pine Co. v. Lumpkin, supra; Pan American Petroleum Corp. v. Pate, 162 Miss. 638, 138 So. 349.
XII. The instructions of plaintiff correctly described the law applicable to the cases and no prejudicial errors are therein contained. Dabareiner v. Weisflog, 253 Wis. 23, 33 N.W.2d 220, 12 A.L.R. 2d 605; Meridian Taxicab Co. v. Ward, 184 Miss. 499, 186 So. 636, 120 A.L.R. 1346; Secs. 8192(c), 8193, 8194-3, Code 1942; Anno. 12 A.L.R. 2d 611.
XIII. The general rule prevailing in this state is that in personal injury cases, the verdict as to damages will not be disturbed unless it is so excessive as to evidence corruption, passion, prejudice or bias on the part of the jury. Aponaug Manufacturing Co. v. Carroll, 183 Miss. 793, 184 So. 63; Bell v. Morrison, 27 Miss. 68; Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Masonite Corp. v. Lockridge, 163 Miss. 364, 140 So. 223, 141 So. 758; Memphis C.R. Co. v. Whitfield, 44 Miss. 466; Mississippi Central R. Co. v. Caruth, 51 Miss. 77; Mississippi Central R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Mississippi Central R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Mississippi Central R. Co. v. Smith, 173 Miss. 507, 154 So. 533, 159 So. 562; Mississippi Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; Mississippi Power Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759, 40 So.2d 597; New Orleans, J. G.N.R. Co. v. Hurst, 36 Miss. 660 ; St. Louis-S.F.R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; St. Louis-S.F.R. Co. v. Hays, 136 Miss. 701, 101 So. 548; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Southern Bell Tel. Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107; Steppacher v. Reneau, 25 Miss. 114; Thurston v. Martin, 5 Mason 497; Yazoo M.V.R. Co. v. Grant, 86 Miss. 565, 38 So. 502.
XIV. The verdict of the jury and the judgment of the trial court are supported by substantial evidence and were not excessive, considering the present day value of the dollar. Boroughs v. Oliver, 226 Miss. 609, 85 So.2d 91; Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; J.C. Penney Co. v. Evans, supra; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Sec. 1455, Code 1942.
XV. The verdict was based on conflicting evidence and was resolved in favor of appellee and the verdict and judgment on motion for a new trial should not be disturbed as the verdict does not indicate passion, prejudice or corruption. Harris v. Halliday, 4 How. (5 Miss.) 338; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312.
Mrs. Inez Atkinson, a resident of Leake County Mississippi, sued Houston Contracting Company, a Delaware corporation, and its employee Otis J. Ford, a resident of Louisiana, Mrs. Dean C. Moore and David L. Smith, residents of Leake County Mississippi. The declaration, simply stated, charged that Mrs. Atkinson sustained serious and permanent personal injuries as a direct and proximate result of the joint and concurrent negligence of all defendants in the operation of their motor vehicles.
Otis J. Ford and Houston Contracting Company filed a joint answer, denying that they were guilty of any negligence therein, and alleged that the collision resulted from the negligence of the other defendants. The answer of Mrs. Moore denied any negligence on her part, admitted that the plaintiff sustained injuries, but attributed them to the negligence of the other defendants. Smith's answer also denied that he was guilty of any negligence, but also attributed the incident to the negligence of the corporate defendant and its employee.
The place of the occurrence was a concrete bridge, 90 to 100 feet long and 22 to 24 feet wide, over a creek on State Highway 35, approximately five miles south of Kosciusko in Attala County.
The time was a fair day, with the sun still shining, about 5:00 P.M., on October 11, 1961.
Three motor vehicles were involved in a collision near the middle of the bridge. Otis J. Ford, in a 1960 Ford pickup truck, the leading vehicle, was driving northward. Mrs. Dean C. Moore, driving a 1953 Chevrolet car, the second vehicle, was following. In that car, Mrs. Atkinson, a guest of Mrs. Moore, was sitting in the middle of the front seat, with another guest on her right. David L. Smith, in a 1953 Buick car, was the third vehicle.
According to Mrs. Atkinson, when the Chevrolet got within 9 or 10 steps of the bridge, her attention was attracted by the following exclamation from Mrs. Moore, "Man, what in the world are you going to do!" She looked up, saw the pickup going on the bridge, felt the application of the brakes, and the car slowing down. The pickup pulled partly to its left, over the white line in the middle of the pavement, and stopped in front of a man, sitting on the left banister, about half way across the bridge. The Chevrolet then hit the pickup on the left side. In a matter of seconds, the Chevrolet was hit from behind, and it then struck the pickup again. The pickup had no signal lights on and had given no hand signal. It then drove off the bridge and parked on the right side. The driver, Ford, came back to the car, and Mrs. Moore asked him, "What in the world are doing, man, stopping in the middle of the bridge?" He replied, "Well, I just stopped a minute to ask the fellow something." Mrs. Moore also told him that "you have just about killed us all." And Mrs. Atkinson said that she did not remember the further conversation because she was holding her neck, which had popped at the time like it was broken, and she thought it had been. She said that, when the pickup stopped, there was not sufficient room to pass — the Chevrolet would have either hit it or the banister of the bridge, depending on the way she might have turned. She said that she knew a vehicle should not follow so closely behind another that it cannot stop in time. She had charged Mrs. Moore with that kind of negligence, and Mrs. Moore was not far behind the pickup. She finally said, on cross-examination, that, if the pickup had not stopped suddenly without warning, the Chevrolet would not have hit it, and the Buick would not have hit the Chevrolet, and there would have been no accident. She also testified in detail concerning her injuries, and she was corroborated by her attending doctor and by several friends and acquaintances.
David L. Smith, a defendant, called as an adverse witness, corroborated Mrs. Atkinson's version. He said that he came over the top of the hill, and cut down his speed. As he got near the bridge he saw the two cars ahead. He saw the pickup stop in the middle of the bridge, and the Chevrolet then strike it. He saw no signals of any kind from the pickup, and did not think Mrs. Moore had time to give any. He said that not over 10 seconds could have elapsed between the stopping of the pickup, its being hit by the Chevrolet, the Chevrolet, in turn, being hit by the Buick, and the Chevrolet's hitting the pickup again. The trouble in front of him happened so suddenly that he did not have time to stop. He admitted, in cross-examination by counsel for the appellants, that, with the suddenness of the stop ahead, he was not far enough behind to keep from striking the Chevrolet. He said that the pickup, when it got on the bridge, was "riding" the white line and it cut over at least 2 feet. At the time, it was going 10, 12, or 15 miles an hour when it suddenly stopped and the Chevrolet hit it.
The defendant, Otis J. Ford, called as an adverse witness for cross-examination, said that he was on his way to set out warning signals, if the digger, used in laying the pipeline, should get to the road by night. He saw a truck at the south end of the bridge, with a signal light flashing as if to give notice that it was about to turn left into the road from the shoulder. He did not notice any cars behind him. He saw another employee, sitting on the left banister, near the middle of the bridge. He at no time stopped on the bridge. He did ask that employee when the digger was coming through, but he kept driving. At no time did he turn to the left, but drove straight ahead on his side of the road, meeting nobody. As he drove along slowly, about 8 miles an hour, he was hit from behind and immediately thereafter, he was hit again. He said that he first heard a crash, then his pickup was struck, and, as his vehicle moved along, it was struck again from behind.
Mrs. Moore did not testify.
After the plaintiff rested, all of the defendants, by separate motions, asked for peremptory instructions in their behalf; but the court overruled all of the motions.
Ford and the corporate defendant then adduced their evidence. Again, Ford reiterated the events to show that he was blameless; that he did not stop; that he had his right tail light signalling that he was in the act of making a right turn as soon as he got off the bridge; that he was struck from behind at a time when he was guilty of no negligence; and that the blame was that of the other defendants. Several of his fellow employees gave corroboration of his version.
So, at the close of all of the evidence, the plaintiff had offered evidence to show the sudden stopping of the pickup, near the middle of the bridge, partly in the west lane of traffic, without notice of any kind; that this stopping so suddenly, together with the fact that the Chevrolet was following closely behind, caused Mrs. Moore to hit the pickup; and that the Buick was travelling at such speed that it then hit the Chevrolet. Smith, by his own admission, was following too closely for him to stop in the suddenness of this occurrence. In other words, the evidence warranted the submission of the issues to the jury as to the negligence of all of the defendants.
However, the learned trial judge gave peremptory instructions for both Mrs. Moore and David L. Smith. This left for the jury only the issue as to Ford and the corporate defendant. The jury found a verdict for Mrs. Atkinson and fixed her damages at the sum of $30,000.00; and from the judgment rendered, the appellants, Houston Contracting Company and Ford, appealed.
The appellants have assigned and argued a number of alleged reversible errors.
After thorough study of this record, the Court finds that the judgment of the trial court must be reversed because of fatal errors in the refusal of certain requested instructions for the appellants. The opinion will deal only with such errors as will be necessary for aid in the decision of the case on a new trial.
The foregoing statement of the disputed facts, showing the contradictory theories of the parties, must be kept in mind. The Court has pointed out wherein there was evidence that the jury could have found that all of the defendants were guilty of negligence, contributing to the collision. But, the court peremptorily exonerated Mrs. Moore and David Smith, from any negligence whatever. Also Smith himself admitted that, under the circumstances, he was not far enough behind to keep from striking the Chevrolet; and there was evidence that Mrs. Moore was following too closely. These two defendants, however, were discharged. There was no cross-appeal, and they are now exculpated from liability. This brings into view at the outset the question whether there was a correct statement in the instructions of the governing principles of law.
Appellants complain bitterly of the refusal of their instructions, numbered 22 to 24, both inclusive. Instruction under 24 was a peremptory, and was properly refused. Numbers 15 and 20 placed a greater burden on motorists than is required, and should not have been given. Numbers 12, 13, 14, 16, 18, 19, 21 and 23 undertook to set out correct principles, and they in fact do so, subject only to the fact that, in some instances, they are repetitious. They, or such number as would fully cover the defense, sought to be made, should have been given. Owing to the state of the case, and the necessity of a new trial, number 22 will have to be considered in the light of Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565 (1957).
The opinion will not be extended in order to set out these instructions. Sufficient reason has been given to the parties for their guidance in a new trial.
(Hn 1) As has already been pointed out, although repetition of the same principle in numerous instructions may be limited, the refusal of all of the stated instructions completely wiped out the defenses which the appellants offered by their evidence, and a judgment, under such circumstances, cannot be permitted to stand.
At one point, Dr. C.F. Lacey, when the cross-examiner stated that he understood the doctor to say that he relied on the radiologist's reading of the X-ray for the diagnosis, replied: "That is right." Immediately, the cross-examiner objected that the doctor's evidence was hearsay, asked that it be stricken, and that the jury be instructed to disregard the doctor's opinion. The jury was retired, and the doctor explained that he read the pictures, made his diagnosis, and placed the patient in traction; that the radiologist came to the hospital only twice each week; and that, when the radiologist later came, he also read the X-ray pictures and merely confirmed the diagnosis which the doctor had already made from his own reading. The assignment, based on the court's ruling to that objection was without merit.
(Hn 2) Appellants objected to the mode of proof as to the reasonableness of the hospital and medical expenses. Copies of these bills, in most instances, were offered. If there is objection the doctor is entitled to testify to the necessity and reasonableness of the charges. A proper member of the hospital, or a person cognizant of the reasonable charges for hospital services in the area where they were performed, should be able to qualify for the purpose of establishing fair and reasonable charges. (Hn 3) It is not intended that proof of this element of damages must be unreasonably exacting; but it must consist of a bona fide effort to show the reasonable value of the services which are performed. See Bryan Bros. Packing Company v. Mrs. Earl (Grace) Grubbs, decided October 26, 1964, but not yet officially reported; National Fire Insurance Company v. Slayden, 227 Miss. 285, 85 So.2d 916 (1956). This statement should suffice as aid in a retrial of the case.
In the course of the plaintiff's cross-examination, David L. Smith stated that he was not hurt; and counsel asked whether he filed any lawsuit, and his reply was: "No, sir, I did not have any kind of insurance, only collision." Counsel for appellants asked for the jury to be retired. An objection was made by the appellants, together with a motion for a mistrial. After hearing the matter, the court, at length, sustained the objection, and overruled the motion for a mistrial.
Our cases emphasize that reference to insurance should be eschewed. This opinion will take no further account of this incident on the theory that it will not recur during a new trial. There is no basis on which such an unresponsive reply should happen again. A recurrence of such would stem only from a deliberate intent to do so, and would be inexcusable.
(Hn 4) Mrs. Atkinson, in her direct testimony, explained that her attention was attracted by the exclamation of Mrs. Moore as follows: "Man, what in the world are you going to do!" She then looked, saw the pickup going on the bridge, pulling partly over the center line to the left, and immediately thereafter stop. There was objection on the part of the appellants to the admission of this statement on the ground that it was hearsay.
The Court is of the opinion that this outcry on the part of Mrs. Moore, under the circumstances stated, constituted a part of the res gestae and was admissible. See Starks v. State, 245 Miss. 238, 147 So.2d 503 (1962), and the authorities there cited; also Magee v. State, 145 Miss. 227, 110 So. 500 (1926). 22A Corpus Juris Secundum Criminal Law, section 662(1) (1961), deals with the topic Res Gestae in great clarity, and also explains that it is an exception to the hearsay rule. See also 31A Corpus Juris Secundum Evidence Section 403 (1) (1964) where res gestae is treated elaborrately. Note that at pages 982-3 thereof, it is said that "* * * the admissibility vel non of evidence as part of the res gestae is a matter resting very largely in the discretion of the trial court. * * *".
It follows therefore that the cause must be reversed and remanded for a new trial.
Reversed and remanded.
Gillespie, Rodgers, Jones and Brady, JJ., concur.