Summary
In Chapman v. Powers, 150 Miss. 687, 116 So. 609, the court sustained a judgment based on a jury verdict granting a nominal recovery to the wife, stating that where her husband was unfit to drive because of drunkenness and she knew it, her husband's negligence became her negligence. It may be doubted that this is a case involving imputed negligence.
Summary of this case from Woodard v. St. Louis-San Francisco Ry. Co.Opinion
No. 27067.
April 16, 1928.
1. NEW TRIAL. In passing on question whether verdict is result of passion or prejudice, court cannot substitute its judgment for that of jury.
In passing on question whether verdict of jury in given case is result of passion or prejudice, court is not authorized to substitute its judgment for that of jury, since amount of damages to be awarded is peculiarly within province of jury.
2. NEW TRIAL. Court should award new trial where, if excessive or inadequate verdict stands, there will be manifest miscarriage of justice.
Court should award new trial where, to let verdict of jury, which is either excessive or inadequate, stand, it is apparent to court that there will be manifest miscarriage of justice.
3. NEW TRIAL. Five hundred dollars for fractured rib, lacerated scalp, and bruises held not so inadequate as to justify a new trial.
Verdict for five hundred dollars to guest in automobile, injured when automobile ran into pile of gravel in street and sustaining lacerated scalp and bruises about her eyes and injured nose, fractured rib, and other bruises, where there was evidence tending to show injuries were not permanent and where jury could have found from evidence that large part of negligence contributing to injuries was her own negligence in riding in car while driver was intoxicated, held not so inadequate as to manifest passion or prejudice on part of jury, so as to justify a new trial.
4. NEGLIGENCE. If plaintiff's husband was intoxicated and she, knowing it, rode in automobile driven by him, husband's negligence became her negligence.
If plaintiff's husband because of drunkenness was unfit to drive car and plaintiff knew it and rode in automobile driven by him as guest, her husband's negligence became her negligence.
5. NEGLIGENCE. If jury found guest in automobile was chargeable with part of negligence contributing to injuries, they could reduce her damages proportionately.
If jury found guest in automobile driven by husband was chargeable with large part of negligence proximately contributing to her injuries in riding in automobile with her husband in intoxicated condition so that car was driven into gravel pile, jury were authorized to reduce her damages proportionately.
6. DAMAGES. Plaintiff could not recover sums expended for medical bills in personal injury case, where declaration did not set out maximum amount of such bills.
In action for personal injuries sustained when automobile in which plaintiff was riding ran into pile of gravel in street, plaintiff could not recover sums expended for medical bills, where declaration did not set out maximum amount of such bills and evidence as to her physician's bills paid on account of injuries was properly excluded, since medical expenses in such a case are special or consequential damages, and, if such damages are claimed, defendant must be informed of it in declaration.
APPEAL from circuit court of Harrison county; HON.W.A. WHITE, Judge.
Gex Russell, for appellant.
The court will grant a new trial on the issue of the measure of damages alone, if, after considering the testimony in the case the court concludes that the award of damages fixed by the jury is inadequate. Murphy v. Town of Cleveland, 106 Miss. 269; Hicks v. Corso Cefalu, 131 Miss. 659; Walker Bros. v. Nix, 115 Miss. 199; Scott v. Y. M.V.R.R., 103 Miss. 522; Coccaro v. Light Traction Co., 126 Miss. 713; also 141 Miss. 579. The best considered cases adhere to the more rational rule which permits proof of such damages as usually and ordinarily result from an alleged injury, without specifically setting forth every item of damages in detail, unless and until same is required in response to a demand for a bill of particulars. Evansville T.H.R. Co. v. Holcomb, decided January 2, 1894 (Ind.), 36 N.E. 40. In Leonard v. Baltimore O.R. Co. (Pa.), 102 A. 279, the supreme court of Pennsylvania, on June 30, 1917 stated: "Damages of a special nature and not the usual consequence of the wrong complained of, however must be specially averred, that defendant may be informed of the claim and given an opportunity to prepare his defense. 13 Cyc. 176; Hart v. Evans, 8 Pa. 12; Laing v. Colder, 8 Pa. 479. But where the action is for injuries to the person the jury may consider, without special averment, pain and suffering, expense incurred for medical treatment and loss of time for inability to work at the usual occupation of the injured person, inasmuch as these are the natural and usual results of an injury. Laing v. Colder, supra; Penns. Ohio Canal Co. v. Graham, 63 Pa. 290, 3 Am. Rep. 549." Chicago E.R. Co. v. Steele (Ind.), 118 N.E. 824, decided February 27, 1918; Southern Ry. Co. v. U.S. Casualty Co., decided on June 14, 1923, by the supreme court of Virginia, 118 S.E. 266; 8 R.C.L. 623; Biddle et al. v. Riley (Ark.), 176 S.W. 136; Hopkins v. Atlantic, etc., R. Co. (N.H.), 72 Am. Dec. 288; Anatokol v. Barber (Mass.), 143 N.E. 350. It cannot be seriously insisted by appellee that appellant was not seriously and apparently permanently injured, nor that in such cases the attention of a physician would not be required and engaged by any person suffering the injuries shown to have been sustained by appellant. Appellee cannot contend that he was surprised by the offer to prove a medical bill. On the contrary, he must have anticipated that such evidence would in the very nature of the case be offered.
Rushing Guice and John L. Heiss, for appellee.
It will be seen, that outside of slight bruises, the only clear injuries caused by the accident were the scalp wound and the fractured seventh rib. The jury not only heard the testimony as to the scalp wound, but saw the scar and were certainly competent to judge of the gravity of this injury. They were likewise the best judges of this testimony of the internal injuries to the nose and side; they saw a case where the attendant physician had never heard of these complaints until a year after he discharged the case, when, on the eve of a jury trial, he was again called in to listen to the patient's statement of these things of which he could only judge by what she told him. The jury had a right to disbelieve this nose and side trouble were real or to believe it was not shown to be due to the accident complained of.
We therefore submit to the court that under the case of Hicks v. Corso Cefalu, 131 Miss. 659, 95 So. 636, and the remaining three cases cited by the appellant, that before reversing a case as to damages alone, this court will not only have to believe that the damages were grossly inadequate, but it will further have to satisfy itself from the nature and type of injury as well as all of the circumstances shown in the record before it, and while, in the instant case, a jury could have assessed damages in excess of five hundred dollars, still there is nothing to positively show to the court that these damages were from the standpoint of the jury, which are the sole judges of the damages grossly inadequate.
We understand the law to be that the court will not put themselves in the position of a jury to determine what the jury should have done, unless the action of the jury in assessing damages is such as to show such a lack of appreciation of the extent of the injuries that it was tantamount to passion or prejudice against the plaintiff and in this case the appellant can rely on no such fact. We further submit to the court that in considering the amount of the verdict to be given to the appellant that the jury were entitled to consider the facts that this appellant had driven late at night through a dark part of Pass Christian with her husband, who at the time she entered the car with him was known by her to be intoxicated, or by the use of reasonable diligence on her part she could have ascertained this fact, and if she was charged by the jury with such knowledge, and we submit that the jury could have charged her with this knowledge, then the jury had a right to diminish the amount of her award, by the negligence of which she had been guilty in riding late at night, on Christmas eve night, with a man who was at the time violating the laws of the state of Mississippi by driving an automobile while intoxicated.
In support of their contention counsel cite several courts, which hold that when a serious injury is complained of it is not necessary that medical services should be pleaded in order that evidence may be introduced and such damages proved. The reason stated in these cases is that the natural consequence of an injury is the expense of a physician, especially where the injury is of a serious nature. Counsel have therein cited all the authorities given by 17 C.J. 1018, on what that authority states to be a minority holding on this point. In note 95, 17 C.J. 1018, there are cited the decisions of twelve states holding that medical bills must be specifically pleaded in order that proof may be introduced thereon. Atlantic Coast Line R. Co. v. Watson, 110 So. 316; Williams v. Haynes (Ala.), 77 So. 915; Hanchey v. Brunson (Ala.), 56 So. 971.
Argued orally by Bryan Russell, for appellant.
Appellant brought this action in the circuit court of Harrison county against appellee to recover damages for a personal injury received by her, alleged to have been caused by the negligence of the appellee in leaving an unguarded and unlighted pile of gravel, in Second street in the city of Pass Christian, which was run into by an automobile driven by appellant's husband with whom appellant was riding resulting in appellant being thrown out of the car and receiving the injuries for which she sued. There was a trial resulting in verdict and judgment in appellant's favor for five hundred dollars, and from that judgment she prosecutes this appeal.
Appellant assigns and argues only two grounds for reversal of the judgment: That the damages awarded by the jury were so grossly inadequate as to evince passion or prejudice on the part of the jury in arriving at their verdict, and, therefore, the court should have sustained appellant's motion for new trial based upon that ground; and that the court erred in excluding appellant's evidence offered for the purpose of showing the sums paid by her for physician's bills necessitated by the injuries for which she sued.
Appellant was injured on the evening of December 24, 1926, between eleven and twelve o'clock. Appellee had a paving contract with the city of Pass Christian to pave certain of its streets. During the progress of the paving, appellee left a pile of gravel on Second street. Appellant's evidence tended to show that, on the night of the injury, this pile of gravel was unguarded and unlighted; that appellant, with her husband, was driving in an automobile along Second street in the city of Pass Christian about eleven-thirty o'clock at night; that appellant's husband was driving the car which was being carefully driven, and while being so driven, ran into the pile of gravel, resulting in appellant being thrown out of the car and receiving the injuries for which she sued. Appellant and her husband testified that, at the time the car ran into the gravel pile, it was being driven at something like fifteen miles per hour. Appellant was severely injured, although there was evidence tending to show that her injuries were not permanent. Her scalp was lacerated to the skull, the wound being about five inches in length. It was sewed up by her physician, Dr. Raffety. There were some bruises about her eyes, and her nose was injured. A rib fractured, and there were bruises and skinned places on other parts of her body. The appellant testified that she still suffered from the injuries at the time this cause was being tried. Her physician, Dr. Raffety, was introduced, and testified as to the character and extent of appellant's wounds. On cross-examination, his testimony tended to show that appellant's injuries were not permanent. Appellant was confined to her bed about two weeks as a result of her injuries. When she was injured, she weighed about one hundred ten pounds. She testified that at the time of the trial she weighed only eighty-five pounds. Testimony was introduced on behalf of appellee tending to show that on the night appellant received her injuries, and a short time before, her husband was drunk.
The determination of the question whether the verdict of the jury in a given case is the result of passion or prejudice is fraught with much difficulty. The court in passing upon the question is not authorized to substitute its judgment for that of the jury, for the amount of damages to be awarded is peculiarly within the province of the jury. But where the award is so excessive, on the one hand, or so inadequate, on the other, as that it is manifest that the jury were unduly influenced in arriving at their verdict, it is the duty of the court to award a new trial upon that ground alone. Putting it differently, if, to let the verdict of the jury stand, it is apparent to the court that there will be a manifest miscarriage of justice, a new trial should be granted.
We cannot say in this case, that the verdict of the jury is so inadequate as to manifest passion or prejudice on the part of the jury, and the following are the considerations which lead us to that conclusion: Notwithstanding appellant received serious injuries, there was sufficient evidence to warrant the jury in finding that her injuries were not permanent. And, furthermore, the jury could have found, and many have found, from the evidence, that a large part of the negligence proximately contributing to appellant's injuries was her own negligence in riding in a car, between eleven and twelve at night, driven by her husband, who was in such a drunken condition as to render him unfit to drive the car with reasonable care and skill. Although the general rule is that a guest in an automobile is not chargeable with the negligence of his host, it is also true that the facts and circumstances may be such that the negligence of the host may become the negligence of the guest. If it is manifest that the host, from drunkenness, or other cause, is unfit to drive the car, and that his driving will endanger the life and limbs of others, and the guest is aware of that condition of affairs, and voluntarily rides in the car with such a host, the negligence of the latter becomes the negligence of the guest. The appellant was the guest of her husband, but there was evidence tending to show that shortly before appellant and her husband went out together in the car, the latter was in such a drunken condition as rendered him unfit to drive the car, and thereby dangerous to the life and limb of appellant as such guest, as well as to the lives and limbs of others traveling the streets, in vehicles or on foot. And if the appellant's husband was in that condition and she knew it (and the jury might reasonably have found that she did know it), then her husband's negligence became appellant's negligence. The jury may have reasonably found from the evidence that if the appellant's husband had been sufficiently sober he would have seen the gravel pile and avoided it. And, if the jury found such a state of case, they may have charged appellant with a large part of the negligence proximately contributing to her injuries, and reduced her damages proportionately, as they were authorized to do under the law.
That paragraph of appellant's declarations in which she sets out the damages she suffered on account of her injuries is in this language:
"And by reason of the aforesaid negligence of defendant in depositing said mass of sand and gravel in said street and allowing same to remain there without even placing thereon or near thereto a light or other warning signal at night, as the direct and proximate case, plaintiff has suffered in consequence thereof the injuries hereinabove set out to her damage in the sum of ten thousand dollars, for which amount, and all costs, she brings this her action and prays judgment."
Dr. Raffety, who treated her wounds, was asked what his bill was for such treatment. Appellee objected on the ground that the appellee had not sued for such damages in her declaration, and the court sustained that objection.
This question is one of first impression in this state. As a general rule, expenses paid or incurred, resulting from the defendant's tort, are special damages which must be alleged in order that they may be proved. 17 C.J., section 315, p. 1017. In the same authority, pages 1018 and 1019, we find the following as to how the courts have held on this question:
"In perhaps the greater number of jurisdictions it is essential to the admissibility of proof of payment or incurrence of doctor's bills occasioned by personal injury that these facts be specially alleged; in some jurisdictions, however, particularly if the injury is a severe one, such expenses are considered as a reasonably necessary result of the injury, and may be proved under a general allegation of damages. The precise amount expended need not be alleged; an allegation of expense for medical attendance is sufficient, at least in the absence of a motion to make more specific, or a special demurrer, nor need the day or place at which the services were rendered be averred. In some jurisdictions, however, it is necessary that there be an allegation of the amount expended or of a sum sufficient to cover the amount expended and future expenditures. If the amount expended is alleged, the complaint need not in the absence of a special exception or demurrer allege that such expenditures were reasonable. It is not necessary to plead an expenditure for medical treatment and nursing as a distinct cause of action, nor is it necessary to allege an actual payment for such services. Where items of expense have been specifically alleged, plaintiff is confined to such items in his proof. Medicine used by a physician in giving medical attention may properly be recovered, under a claim in a petition for expenses incurred for `nursing and medical attention.' It has been held that under allegations of permanent injury there may be a recovery for future expenses of nurse hire, although there is no specific allegation as to pecuniary loss to accrue in the future by reason of such expenses."
Medical expenses in such a case as this are special or consequential damages. If such damages are claimed, the defendant must be informed of it in the declaration. We follow what appears to be the majority rule, and which we think is the sounder rule, that, in order to entitle plaintiff to recover sums expended for medical bills in a case of this character, the declaration must set out, at least, the maximum amount of such bills.
It follows from these views that the court did not err in ruling out appellant's evidence as to her physican's bills paid by her on account of her injuries.
Affirmed.