Opinion
No. 43385.
March 1, 1965.
1. Appeal — when Supreme Court exercises duty to set aside verdict.
Supreme Court exercises duty to set aside verdict whenever jury manifestly fails to respond to reason, or when verdict shows bias and prejudice.
2. Damages — award inadequate.
Award of eight hundred eighty-five dollars for medical bills and five hundred dollars for other bills to pedestrian struck by automobile, but denying recovery for pain and suffering and permanent disability, was inadequate and evinced bias and prejudice on part of jury.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Alcorn County; N.S. SWEAT, JR., J.
J.B. Mitchell, Smith Smith, Corinth, for appellant.
I. The lower court erred in refusing to place in evidence expressions, declarations, and exclamations of pain and suffering made by appellant to his wife subsequent to the injury. Metropolitan Life Insurance Co. v. Moss (Miss.), 192 So. 343; Mississippi Central R. Co. v. Turnage, 95 Miss. 854, 49 So. 840, 24 L.R.A. (NS) 253; 20 Am. Jur., Evidence, Sec. 588 p. 493; Anno. 90 A.L.R. 2d 1071; 31A C.J.S., Evidence, Sec. 244 p. 652.
II. The award in this case is so inadequate that it evidences bias and prejudice on the part of the jury. In such a case, it is the duty of the Court to set the verdict of the jury aside and to grant a new trial on the issue of damages. Beard v. Williams, 172 Miss. 880, 161 So. 750; Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; McLaughlin v. R.W. Fagan-Peel Co., 125 Miss. 116, 87 So. 471; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Murphy v. Town of Cleveland, 106 Miss. 269, 63 So. 572; Murray v. Murray, 239 Miss. 691, 125 So.2d 82; Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541; Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160; Whatley v. Delta Brokerage Warehouse Co., 248 Miss. 416, 159 So.2d 634; White v. McRee, 111 Miss. 502, 71 So. 804; Woodmansee v. Garrett, 247 Miss. 148, 153 So.2d 812.
III. In considering the amount of the verdict on an assignment of inadequacy, the Court will take judicial knowledge of the present period of inflation and the value of the dollar. Walters v. Gilbert, 248 Miss. 77, 158 So.2d 43.
Stovall Price, Corinth, for appellee.
I. The lower court did not commit reversible error in its ruling with respect to the testimony of appellant's wife.
A. The witness was permitted to testify without limitation by the Court about statements of pain made to her by appellant at various times. Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Bass v. Burnett, 151 Miss. 852, 119 So. 827; Hall v. Hall, 199 Miss. 478, 24 So.2d 347; Rhodes v. Roberts, 223 Miss. 580, 78 So.2d 614; Smith v. Gulf, M. N.R. Co., 158 Miss. 188, 129 So. 599.
B. The error, if any, in this ruling by the lower court was waived by the conduct of appellant's counsel at the time of examining this witness and by appellant's failure to include this alleged error in his motion for a new trial. Henry v. Collins, (Miss.), 158 So.2d 28; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Russell v. Mississippi Central R. Co., 239 Miss. 741, 125 So.2d 283; Sec. 1639, Code 1942; 3 Am. Jur., Appeal and Error, Sec. 876 p. 427; Rules 6(3), 11, Supreme Court Rules.
II. The verdict of the jury was not so inadequate as to evince bias, prejudice or passion. Austin Machinery Corp. v. Clark-Hunt Contracting Co., 140 Miss. 78, 103 So. 1; Beard v. Williams, 172 Miss. 880, 161 So. 750; Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; Blanton v. Tri-State Transit Co. of Louisiana, 194 Miss. 393, 12 So.2d 429; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Ellis v. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; Gibson v. A.P. Lindsey, Distributor, Inc., 233 Miss. 853, 103 So.2d 345, 104 So.2d 456; Mississippi Central R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Peerless Supply Co. v. Jeter, 218 Miss. 61, 65 So.2d 240; Pittman v. Mendenhall-Mims Mitchell Funeral Home, 242 Miss. 877, 137 So.2d 518; Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Spivey v. Mills-Morris Co. of Columbus, 241 Miss. 804, 133 So.2d 620; Stoner v. Colvin, 236 Miss. 736, 110 So.2d 920; Walker v. Ferris, 241 Miss. 63, 128 So.2d 865; 15 Am. Jur., Damages, Sec. 13 p. 402.
David Dunn, plaintiff below and appellant here, sued James Butler, Sr., defendant below and appellee here, for personal injuries he sustained, and medical bills incurred in the treatment of injuries sustained by him and his minor children, when appellee ran his automobile against them. Appellant appealed from a judgment in his favor in a sum which he contends is inadequate. The only question justifying consideration is the contention that the verdict is so inadequate that it evinces bias and prejudice on the part of the jury.
Appellant and his two daughters, ages nine and seven, were walking along a street and when he saw appellee's automobile approaching, he grabbed his children and ran into the ditch but was run down by appellee's vehicle. Appellee admitted that he was negligent and testified that he drank a half pint of 90-proof moonshine whiskey shortly before the accident and did not remember anything about it.
The jury returned the following verdict:
The jury agrees the amt of $885.00 should compensate Mr. Dunn for all bills Drs Hospital and Medicine and etc. An additional of $500.00 to cover various bills to be met. Total of $1385.00.
Appellant was struck on his back and hips. The physician who treated him described his injuries as large abrasions over his back and hips with hematoma, bluish discolorations, and swelling. His lower back, including the left hip, was involved but not as much as the right. He was in pain when admitted to the hospital, where he remained four days. The physician said the injury to his back was pretty severe with bleeding and swelling, although no bones were broken. Treatment consisted of supportive treatment and medicine to keep him easy. Diagnosis was lumbar sacral sprain with some damage to the sciatic nerve. The physician was of the opinion that appellant's back will be weakened but he could not say how much damage was done in that respect; that appellant would not be able to lift as he did before the accident, and that "he will have some weakness in his back as to doing the heavy work he was doing previously."
Appellant testified that he suffered a great deal and was not able to do the lifting he had formerly done and had to have help when lifting objects he formerly lifted without difficulty. He lost over two weeks from work.
(Hn 1) In order to insure the preservation, integrity and vitality of the right to trial by jury, this Court has throughout its history exercised its constitutionality ordained duty to set aside verdicts whenever the jury manifestly failed to respond to reason. This power must be exercised with conscious self restraint and caution, but it must be exercised in a proper case for trial by a jury that will not respond to reason is a denial of the right itself.
(Hn 2) In the present case, it is manifest that the jury did not respond to reason, which is the same as saying that the verdict evinces bias and prejudice against appellant. The jury expressly denied any recovery for pain and suffering past and future, and at least some permanent disability. Appellant is a working man whose means of earning a living is his labor. We hold that the verdict is so inadequate that it evinces bias and prejudice and should be and is reversed.
Reversed and remanded for a new trial on question of damages only.
Kyle, P.J., and Rodgers, Brady and Inzer, JJ., concur.