Opinion
No. 33688.
May 15, 1939.
1. MASTER AND SERVANT.
Employer's liability to employee for loss of eye as result of its being hit by sliver of steel from defective wedge, struck by him with maul, was for jury.
2. APPEAL AND ERROR.
Where case was one peculiarly for jury as depending on witnesses' credibility and weight of conflicting evidence, Supreme Court was precluded from disturbing verdict for plaintiff on question of liability as against overwhelming weight of evidence.
3. APPEAL AND ERROR. Damages.
A jury's verdict, awarding injured minor employee $500 damages for pain and suffering and permanent loss of eye as result of employer's negligence, was so grossly inadequate as to require reversal of judgment thereon for another trial on question of damages.
4. APPEAL AND ERROR.
The Supreme Court may affirm judgment for plaintiff in personal injury suit on question of defendant's liability and reverse it for another trial on question of damages only.
ON SUGGESTION OF ERROR. (Division A. Sept. 11, 1939.) [190 So. 910. No. 33688.]1. JURY. New trial.
At common law, and under constitutional provision for right of jury trial, court must set aside verdict when manifestly against the overwhelming weight of the evidence (Const. 1890, sec. 31).
2. APPEAL AND ERROR. New trial.
Under the Constitution, the trial judge in determining whether to set aside verdict, and the appellate court upon review, must apply to the evidence, all parts of it considered together, a calm, deliberate, and impersonal judgment founded in the lessons of long experience and observation, and measure thence according to sound human standards of reasonable probabilities (Const. 1890, sec. 31).
3. NEW TRIAL.
In measuring the probabilities and determining whether to set aside verdict, the character, cogency, and reasonableness of the evidence, its harmony with undisputed facts, the facts of common knowledge or the laws of nature, the character, intelligence, and attitudes of the witnesses, and the like, must be among the tests, not the number of witnesses for the respective sides, though in some cases such number may have some bearing.
4. NEW TRIAL.
Unless the court can say with confidence that the verdict is manifestly against all reasonable probability, and manifestly has not responded to reason upon the evidence produced, the verdict must stand, and, if there is merely a conflict in the evidence and issues have been fairly submitted on proper instructions, the verdict is irreversible.
5. MASTER AND SERVANT.
Evidence held to authorize verdict for employee in suit against employer for loss of eye caused by being hit by sliver of steel from defective wedge, struck by employee with maul.
6. APPEAL AND ERROR.
Verdict awarding $500 to minor employee for pain, suffering, and permanent loss of eye caused by employer's negligence held so grosssly inadequate as to require reversal of judgment for another trial on question of damages only, where there was no contributory negligence.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
R.R. Norquist, of Yazoo City, and R.M. Kelly, of Vicksburg, for appellants.
It is admitted that the wedge involved in this case is "a simple tool." The said wedge being a "simple tool," the law in this state relative thereto is as stated in Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228, where it was held that the rule that a master must exercise reasonable care to furnish his servant with safe tools and appliances is not applicable to "simple tools," where the servant possesses ordinary intelligence and knowledge.
Allen Gravel Co. v. Yarborough, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Bear Creek Milling Co. v. Fountain, 130 Miss. 436, 94 So. 230; Middleton v. Box Co., 38 F.2d 89.
Nor is the liability of the defendants in this case affected by the alleged minority and inexperience of the appellee. The testimony shows that appellee was of sufficient size and brawn to apply for a position as a common laborer in a log camp; therefore, the appellee stood and stands in the same position as an adult.
39 C.J. 383; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Airline Ry. Co. v. Hackney, 115 So. 869.
Under the testimony in this case, the assurance by Guion that said wedge could be safely used, even if such assurance were made, places appellee in no better position than he would have occupied had the testimony been simply that the wedge was unsafe and furnished to the plaintiff by the defendants.
Dobbins v. Lookout Oil Refining Co., 97 So. 546; Ry. Co. v. Price, 72 Miss. 862, 18 So. 415.
Instruction No. 1 is copied from the opinion rendered in this case on its previous appearance before this court. Considering the fact that the wedge involved in this case is a "simple tool," this instruction is misleading, and separated as it is from the other parts of the opinion of the court, is reversible error.
Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612; Graves v. Hamilton, 184 So. 56.
Instruction No. 2 wholly eliminates the question of whether or not the wedge was, in fact, unsafe and also the question of whether or not Guion knew, or should have known, that the same was unsafe. It, therefore, excludes from the jury material evidence, and is so misleading as to constitute reversible error, and other instructions granted in this case do not cure such error.
C. G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Y. M.V.R.R. v. Hawkins, 159 Miss. 775, 132 So. 742; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201.
The first part of Instruction No. 3 is wholly inapplicable to the case at bar for the reason that the wedge involved was "a simple tool," and, therefore, such instruction does not correctly announce the law.
Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333; Bear Creek Milling Co. v. Fountain, 130 Miss. 436; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86.
Instruction No. 4 is seriously defective in two respects: first, it is manifestly on the weight of the evidence and is calculated to mislead the jury in that respect, and, second, the jury is told, in effect, that they must find for the plaintiff "if the plaintiff has proven the material allegations of the declaration." This court has repeatedly held that instructions of this nature are erroneous, and that "the jury is entitled to have the law of the case, as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in this case, to patch up and piece out the instructions, is calculated to confuse and mislead them."
Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. M.V.R.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197.
Instead of being properly guided as to the law in the case by the instructions given on behalf of the plaintiff, the jury was, as a matter of fact, seriously misguided.
Russell v. Williams, 168 Miss. 181, 150 So. 528.
The verdict is against the overwhelming weight of the testimony.
Under all of the declarations of this court, and other courts, we believe we were justified in assuming that if there was any fixed rule of law to which this court was wedded it was the rule, or law, that the verdict of a jury, in fixing amount of damages in case of tort, would not be disturbed by the court unless it was evident that the jury was influenced by passion, prejudice, corruption, improper influence or the like. This seems to be the rule, or law, everywhere.
15 Am. Juris., page 621, sec. 205; Jones v. I.C.R.R. Co., 25 So. 490; St. Louis-San Francisco R.R. Co. v. Bridges, 159 Miss. 268, 131 So. 99; 3 Am. Juris., page 452, sec. 893.
In actions of tort the jury are vested exclusively with the power to determine the amount of damages and they, in their discretion, are to weigh all the circumstances of the case; to consider the age, sex, degree, state, quality, trade or profession of the party injured, as of him who did the injury, and determine accordingly.
Southern R.R. Co. v. Kendrick, 40 Miss. 374; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Burrel v. Ran, 153 Miss. 437, 121 So. 418; Miss. Central R.R. Co. v. Caruth, 51 Miss. 77; Carver v. Eggerton, 157 Miss. 88, 127 So. 727.
In compensation for personal injuries where the damage is based principally upon suffering and pain, the jury is peculiarly the judge of the amount of damage sustained and unless the court reviewing the case on appeal can see that their judgment is manifestly influenced by prejudice or passion or other similar influence their judgment will be sustained. This is especially true where the trial judge approves the verdict.
McDonald v. Moore, 159 Miss. 326, 131 So. 824; J.C. Penney Co. v. Evans, 160 So. 779, 172 Miss. 900; Miss. Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164.
We have been repeatedly advised by decisions of this court that a verdict rendered against the overwhelming weight of the evidence (as shown by this record) would, upon appeal, be reversed and judgment rendered. Then, too, we believe, for has not this court and other courts so said, that the verdict of a jury in fixing the amount of damages in case of tort would not be disturbed unless evident it was influenced by passion, prejudice or ill will. Of course, all of this law the court has thrashed over to a frazzle, but, we submit, it is law especially pertinent in its application to this particular cause. The trial judge, for whose opinion courts generally express a very high regard in cases of this kind, refused to disturb the verdict.
Can this court believe, and was the jury justified in believing, that the tools furnished plaintiff and furnished the other workmen on the morning of the alleged accident, were procured, not from the tool box kept in the manner and place as testified to by all witnesses, white and black, interested and disinterested, but "from under the house?" If a declaration can be filed and a verdict rendered upon the testimony of a plaintiff and a supporting pal regardless of all other facts and regardless of testimony of all other witnesses in the case, and witnesses in a position to know whereof they testify, then is a defendant absolutely helpless insofar as an appeal is concerned from such a verdict.
In conclusion, we respectfully submit in full for the consideration of the court, the opinion rendered by this court in the case of Pan American Life Ins. Co. v. Jennings, No. 31302 (not officially reported).
Vollor Teller and J.D. Thames, all of Vicksburg, for appellee.
This is the second appearance of this case in this Honorable Court. Originally, the appellee here appealed from a decision of the learned judge below sustaining demurrers to the declaration filed on his behalf. Concluding that the facts as contained in the declaration disclosed a case of liability, this Honorable Court reversed and remanded the case for trial. Middleton v. Faulkner, 180 Miss. 737, 178 So. 583.
The appellants complain of each and every instruction given on behalf of the appellee. They censure the fact that the first instruction is couched in language similar to that contained in the former opinion of this Honorable Court.
It is true that this court has cautioned that the mere fact that an instruction is copied from an opinion does not insure its correctness and it is true that this court has cautioned against this practice. Nevertheless, regardless of the wording of an instruction, regardless whether it was original with counsel or whether it was an excerpt from an authority, the controlling consideration is: Was it a correct announcement of the law so phrased as to be capable of being understood by the jury?
Graves v. Hamilton, 184 So. 56.
Certainly this instruction was a correct prouncement of the law and, considered in light of and together with the instruction granted unto the defendants, could not possibly have had any misleading, controllingly prejudicial effect.
Instruction No. 2 of itself, properly construed and reasonably understood, contains a correct pronouncement of the law.
We are confident that when this Honorable Court reads all the instructions granted on behalf of the appellants and on behalf of the appellee, considers them together, that it will be found that they constitute a harmonious whole correctly embodying and furnishing as a guide for the jury the applicable principles of law as contained and stated in the Middleton v. Faulkner et al., case, supra. Certainly no harmful error was committed in the court below by the granting or refusing of any of the instructions.
Liability here exists as shown by the former reported case of Middleton v. Faulkner, supra, and the jury verdict at bar. We ask this court then, as it has done many times in the past, on this cross-appeal, to affirm this case as to liability and to remand the same for the gross inadequacy of the damages awarded.
We are asking for the same relief afforded by this Honorable Court in the following cited cases: Scott v. Y. M.V.R.R. Co., 60 So. 215, 103 Miss. 522; White v. McRee, 71 So. 804, 111 Miss. 502; Walk Bros. v. Nix, 76 So. 143, 115 Miss. 199; McLaughlin v. R.W. Fagan-Peel Co., 87 So. 471, 125 Miss. 116; Coccora v. Vicksburg Light Traction Co., 89 So. 257, 126 Miss. 713; Hicks v. Corso Cefalu, 95 So. 636, 131 Miss. 659; Ozen v. Sperier, 117 So. 117, 150 Miss. 458; Barr v. G.M. N.R. Co., 152 So. 294, 168 Miss. 863; Whitehead v. Newton Oil Mfg. Co., 63 So. 219, 105 Miss. 711.
Argued orally by R.R. Norquist, for appellant, and by Landman Teller, for appellee.
In the court below, Henry Middleton, Jr., appellee and cross-appellant, recovered a judgment against Marion Faulkner et al., for damages for the loss of his eye in the sum of $648.25. Faulkner et al., appealed from that judgment on the question of liability. Henry Middleton, Jr., filed a cross-appeal on the inadequacy of the damages allowed by the jury.
The law of this case is fully set forth in the case of Henry Middleton, Jr., (a minor) v. Marion Faulkner et al., 180 Miss. 737, 178 So. 583.
In the court below, the plaintiff and his witness, Hayden, testified to every material fact requisite to uphold the allegations of the declaration, which was reviewed in the former case.
It was admitted that Middleton was an inexperienced minor. It was not in dispute that the master knew of the youthfulness and inexperience of the servant Middleton.
Middleton was injured while striking a wedge, which his evidence showed was "burred," "mushroomed," and thereby defective so that it had slivers of steel about its top or head. After he had struck the wedge with a maul only a few blows, a sliver of steel flew therefrom, hit him in the eye, completely destroying his eyeball and resulting in the loss of his eye. The evidence of the plaintiff and his witness was sharply contradicted in all other particulars as to the defective condition of the wedge by a far greater number of witnesses. Likewise, the master sharply contradicted the statement of the plaintiff and his witness that Guion had instructed him to use that particular wedge on that day. The plaintiff had never been engaged in any work of that kind in the woods before. We do not think that we are warranted in disturbing the verdict on the ground that the verdict is against the overwhelming weight of the evidence. We think this case was peculiarly one for the jury — to determine the credibility of the witnesses and the weight of the evidence, and they found against the defendant on the question of liability.
Considering the instructions as a whole, we do not think there is reversible error therein.
On the question of liability on the direct appeal, the case must be affirmed.
On the cross-appeal of Middleton, we are of opinion that the verdict, $648.25, was wholly inadequate. The evidence shows that after the appellant had received the injury, he walked some miles from Glass to Vicksburg, and on that night sought treatment at a hospital, but because the master refused to or did not authorize the medical treatment necessary, treatment was delayed until pus had formed in the eye. The evidence is undisputed that he suffered intense pain. From Friday night until Sunday morning when physicians advised an immediate operation, the eye was infected and badly swollen. The operation could not be performed by administering a local anaesthetic. The surgeon cut off about two-thirds of the anterior surface of the soft part or portion of the eyeball and scraped it out with a curette. The condition of the eye was caused by a foreign substance entering and lodging in the soft part of the tissue. The physician gave it as his opinion that the sliver of steel was still lodged in that tissue. After the operation, it was necessary to insert drainage tubes within the eye. He remained in the hospital ten days. He incurred a liability for the service there of $148.25. This leaves $500 as a verdict of the jury for the pain and suffering, and the permanent loss of one eye.
In this situation, where there was no evidence of contributory negligence on the part of the servant, we think the amount of the verdict was wholly inadequate, and that the verdict was evidently induced by passion and prejudice on the part of the jury, which necessitates another trial on the question of damages.
The jury rendered a verdict in favor of Middleton and thereby decided that he lost his eye as a result of the negligence of the master. The sum of $500 for the pain and suffering which the record discloses the servant endured, together with a permanent loss of his eye for life, (he is not yet twenty-one years of age) is so grossly inadequate that we cannot in fairness affirm it.
Since the decision in the case of Scott v. Yazoo M.V.R. Co., 103 Miss. 522, 60 So. 215, this Court is committed to the practice of affirming the case on the question of liability, and reversing for another trial on the question of damages only.
On the question of the inadequacy of the damages in this case, and illuminative of our reason for reversing the case on damages only, see Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219.
The case is affirmed on liability, and reversed for another trial on the question of damages only.
Affirmed on liability, reversed on the question of damages.
ON SUGGESTION OF ERROR.
The argument is again earnestly made that the verdict is against the great or overwhelming weight of the evidence, and it is stressed that only two witnesses, one of them interested, testified in support of the verdict, while twelve other witnesses were called by appellant, and that most of these witnesses swore in positive contradiction of some of the material parts of appellee's version.
Many cases are cited by appellant which affirm the power and duty of the court to set aside verdicts when manifestly against the overwhelming weight of the evidence. That rule has prevailed ever since the establishment of the constitutional judicial system in this state, and existed at the common law. Universal, etc., Co. v. Taylor, 178 Miss. 143, 149, 172 So. 756. In fact, in one of the earlier cases, Sims v. McIntyre, 8 Smedes M., Miss., 324, 327, it was phrased so strongly as to say that if the jury has "found palpably against the preponderance of evidence" a new trial will be allowed. And when, in full view of the previously established rule, Section 31, Constitution 1890, providing the right of trial by jury was ordained in the precise language of previous constitutions, it carried with it the stated power and duty as a part of that section as fully as if therein written in so many words. Drummond v. State, Miss., 185 So. 207, 210.
The Court has never attempted to prescribe any elaborate formula, adequate to meet all cases, as to when a verdict will be considered against or contrary to the great or overwhelming weight of the evidence. Obviously it would be as nearly impossible to do so as to attempt to define a reasonable doubt — not to mention other familiar phrases in daily use in the law. The expressions on the point have usually been as, for instance, in Teche Lines, Inc., v. Bounds, 182 Miss. 638, 652, 179 So. 747, 751, that a verdict will be set aside "when, but only when, clearly or manifestly against all reasonable probability;" or as said in Beard v. Williams, 172 Miss. 880, 884, 161 So. 750, 751, when the Court is "convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced." Mindful that it is a duty not of choice but one imposed by the constitution itself, the trial judge, and upon review the appellate court, must apply to the evidence, all parts of it considered together, a calm, deliberate and impersonal judgment founded in the lessons of long experience and observation in the lives of men in all their various ranks, and measure thence according to sound human standards of reasonable probabilities.
But in measuring the probabilities, the character and cogency of the evidence, its reasonableness, its harmony or inharmony with the undisputed facts, or with the facts of common knowledge, or with the laws of nature, the character and intelligence of the witnesses, their several attitudes, and the like — not the number of witnesses for the respective sides — must be among the tests. The problem is not to be reduced to any such a simple process as counting the witnesses, although this in some cases, as for instance in Mobile O. Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113, may have some bearing. At last, the question is: Can the Court say with confidence that the verdict is manifestly against all reasonable probability; that manifestly it has not responded to reason upon the evidence produced? Unless the Court can so say, the verdict must stand, for otherwise there would be only a matter of conflict in the evidence, in which case, if the issues have been fairly submitted to the jury on proper instructions, the verdict is irreversible. Goodyear, etc., Co. v. Anderson, 171 Miss. 530, 536, 157 So. 700; Cox v. Tucker, 133 Miss. 378, 385, 97 So. 721; and see the long list of cases from this Court gathered under Note 16 in 5 C.J.S., Appeal and Error, p. 616, sec. 1648.
We have reexamined the record and we cannot confidently say that on the issue of liability the verdict is clearly against all reasonable probability. On the issue of the inadequacy of the amount allowed by the verdict, we add to our former opinion only the observation that on that issue the bald facts speak for themselves; manifestly on that issue, and in allowing only $500 for the complete loss of an eye, there being no contributory negligence, the jury did not respond to reason upon the evidence produced.
Suggestion of Error Overruled.