Opinion
No. 42366.
June 11, 1962.
1. Damages — personal injuries — award not excessive.
Award of $20,000 was not excessive where injuries to right hand caused permanent disability in hand to extent of 25 per cent and back injury aggravated preexisting condition and resulted in 10 per cent permanent partial disability.
Headnote as approved by McElroy, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, J.
Dudley W. Conner, Hattiesburg, for appellants.
I. Cited and discussed the following authorities: Baldwin v. McKay, 41 Miss. 358; Clark v. Gilmore, 213 Miss. 590, 57 So.2d 328; Coca Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 480; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Dixie Stock Yard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Fugitt v. State, 85 Miss. 86, 37 So. 557; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Harris v. McMullan, 212 Miss. 382, 54 So.2d 545; M. A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d 788; McDonough Motor Express, Inc. v. Spiers, 180 Miss. 78, 176 So. 723; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Parker v. Hoeffer, 118 Vt. 1, 100 A.2d 434, 38 A.L.R. 2d 1216; Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820; Reid v. Middleton (Miss.), 130 So.2d 554; Simonton v. Moore, 204 Miss. 760, 38 So.2d 94; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Sturdivant v. Crosby Lumber Mfg. Co., 218 Miss. 91, 65 So.2d 291; Teche Lines, Inc. v. Bounds, 182 Miss. 632, 179 So. 747; Tynes v. McClendon, 235 Miss. 336, 108 So.2d 716; Vaughan v. Lewis, 236 Miss. 792, 112 So.2d 247; Welch v. Morgan, 225 Miss. 154,
82 So.2d 820; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Yazoo M.V.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Young v. Power, 41 Miss. 197; 38 Am. Jur., Negligence, Sec. 2 p. 643; 53 Am. Jur., Sec. 911 p. 655; 58 Am. Jur., Sec. 373 p. 219; Annos. 12 A.L.R. 2d 288, 19 A.L.R. 2d 1261, 79 A.L.R. 2d 176, 109 A.L.R. 2d 82, 114 A.L.R. 2d 798-802; 65 C.J.S., Negligence, Sec. 1 a(2) p. 304; Jones on Evidence (4th Ed.), Sec. 6 p. 1381; Jones, Commentary on Evidence, p. 569.
William H. Stewart, Poplarville, for appellee.
I. Cited and discussed the following authorities: Buntyn v. Robinson, 233 Miss. 60, 102 So.2d 126; Caldwell v. Smith, 200 Miss. 711, 28 So. 657; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285; Lyle v. Johnson, 240 Miss. 154, 126 So.2d 266; Merchants Co. v. Tracey, 175 Miss. 49, 166 So. 340; Pittman v. Goudelock, 237 Miss. 543, 115 So.2d 303; Roberts v. Interstate Life Accident Ins. Co., 232 Miss. 134, 98 So.2d 632; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Teche Lines, Inc. v. Keller, 174 Miss. 527, 165 So. 303; Thomas v. Williamson, 185 Miss. 82, 187 So. 220; Triangle Amusement Co. v. Benigno (Miss.), 35 So.2d 454; Trinidad Asphalt Mfg. Co. v. McIntosh, 100 F.2d 310; Westbrook v. Corneil, 199 Miss. 118, 23 So.2d 753; Y.D. Lumber Co. v. Aycock (Miss.), 40 So.2d 551; Sec. 1697, Code 1942.
This appeal is before the Court for the second time. The first appeal was reversed and remanded in Reid v. Middleton, 241 Miss. 324, 130 So.2d 554. The facts in this case as to the collision are the same as in the previous trial.
This was the usual intersectional collision and the jury was justified in finding that the injuries were due to the negligence of the appellant.
Since this case was tried anew, there was no exhibit on the part of the appellee of his hands to the jury and the court so stated at the conclusion of the trial. The appellee had the right to withdraw his waiver of privilege which he did in this case. Thereupon the question of waiver of privilege was properly decided by the court. (Hn 1) We believe that the judgment is not excessive and that there was sufficient evidence to justify the verdict of $20,000 rendered by the jury.
Dr. E.C. Harris, Jr., attending physician for the appellee, testified that Middleton suffered a lot of pain and difficulty with his back. There was wasting of the small muscles of his hand and they were markedly reduced in size and strength; he had a great deal of trouble in the past with drug sensitivity; the injuries to the right hand and back were caused by the accident; he was definitely permanently disabled in his hand to the extent of 25 per cent and the disability due to aggravation of a pre-existing condition to his back was rated at 10 per cent permanent partial disability.
Dr. R.E.L. Stuart, Jr.'s evidence was that the plaintiff had ulcers and that there was a flare-up of the ulcers following the accident; that as a practicing physician he had occasion to transact business with the patient several times a day and prior to the accident he was physicially, mentally and emotionally able to conduct his business but after the accident he was not competent to fill prescriptions due to his emotional instability and he was sick most of the time; that the pain in the wrist and back was brought on directly by the accident and that he felt that the ulcerous condition was aggravated by the course of events that followed the accident.
The assignment in regard to the voir dire examination of the jury is without merit.
After careful examination of the record in this case we are unable to find error as to the law or the facts. The case is therefore affirmed.
Affirmed.
Lee, P.J., and Arrington, Rodgers, and Jones, JJ., concur.