Opinion
January 24, 1949.
1. Appeal — verdict, review of — conflicting evidence.
Where the testimony in behalf of plaintiff in an action for assault and battery is direct, substantial and reasonably believable and that for the defendant is of no greater weight than that of contradiction, a verdict for the plaintiff will not be disturbed on the issue of liability.
2. Damages — basis for assessment in personal injury case.
Damages for personal injury must have some basis, found in the record, and although the amount to be allowed for physical damage and suffering is not susceptible of exact measurement, the allowance must be connected in time and causation with the wrongful act.
3. Damages — proximate cause — not to be based upon assumption.
Post hoc ergo propter hoc is not a sufficient foundation to sustain a finding of proximate cause nor may a jury assume that the wrongful act created a condition that had not theretofore existed or aggravated one which did.
4. Excessive award — and substantial foundation.
An award of $5,700.00 for a superficial wound of the scalp when there is no substantial foundation in the record for a finding of any permanent injury is excessive and will be set aside.
5. Trial — instruction as to amount to be awarded in an excessive figure.
An instruction that the jury, if they find for the plaintiff, may award "not in excess of $15,000.00 as alleged in the declaration" is erroneous when under the testimony no such amount as that last mentioned would be justified, and such testimony is in sharp conflict.
6. Trial — instruction — permanent injury — when no substantial evidence of.
When there is no substantial evidence of any permanent injury, it is error to refuse an instruction requested by the defendant which denied to plaintiff the right to recover for any such alleged permanent injuries.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Smith County; HOMER CURRIE, J.
O.B. Triplett, Jr., T.J. Wills, and L.D. Pittman, for appellant.
Evidence of subsequent condition is not admissible where the previous conditions are not shown. The general rule is laid down in 25 C.J.S. Sec. 27, page 493.
Among the cases from other states which require proof of previous condition are Hoey v. Metropolitan Street Ry. Co., 74 N YS. 1113, 70 App. Div. 60; Kunstler v. Interurban St. R. Co., 96 N.Y.S. 296, 48 Misc. 655; Guggi v. McNamee, 213 N.W. 1, 51 S. Dak. 240; Runyan v. Bland, 264 Ill. Ap. 265; Nordman v. J. Hahn Bakery Co. (Mo. App.) 298 S.W. 1037, 1040.
In this case, there was absolutely no evidence that appellee was free from eyetrouble, headaches and nervousness before he was struck. And there is no expert medical testimony that the licks received did — or even could have — caused these results. We, therefore, submit that there was nothing in the record which established with any degree of certainty the nature of the damages or the cause from which they proceeded. The nature and extent of the eyetrouble is not shown. Nor the "old headache". Nor the "just nervous" condition. Only one thing is shown; and that is that appellee "came to himself good" within six or eight weeks and was thereafter able to do his regular work like he did before the injury, although in a general way he said "I hurt yet".
The nature and cause of damages must be shown with reasonable certainty. This rule is announced in S.H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693, 68 A.L.R. 167, the court using the following language: "The case is not one of external injuries, where the court and jury could see them and know the extent thereof. It is solely of internal injuries, and presents a case where the information given the jury should be full, as well as dependable and cogent, out of all fairness to the court as well as to the defendant, who is usually largely helpless and dependant in such cases."
"It is a statement of the rule generally found in the books that the damages recovered in any case must be shown with reasonable certainty both as to their nature and in respect to the cause from which they proceed. In a case like this, that general statement is qualified by the additional statement that the consequential damage and the extent thereof must be established as a reasonably certain probability."
The issue of probability, or reasonably certainty, must be shown by facts as facts, and not by the opinion of a non expert witness.
The only testimony as to the nature and extent of appellee's damages — other than skin cuts on the head and the short time he says he spent in bed — was pure, non-expert, opinion evidence — given by the appelle in the vague and confusing way.
"Q. What effect did it have on your eyes?
A. Since that time my eyes haven't been good.
Q. How does it effect you?
A. Well, my head hurts all the time — practically all the time, just an old headache, just nervous."
There is nothing in the record to support this opinion. Appellee did not show his condition of health before his injury. Neither did he show by expert testimony, that such complaints are the probable results of blows on the head. And since both of his doctors testified that his skull was not injured, and since all of the witnesses testified that he walked to Dr. Coursey's office and then home, it is obvious that he had no internal injury.
To this absence of dependable proof, the rule laid down in Columbus and Greenville R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277, applies.
Permitting the opinion of a witness to be substituted for the conclusion of the jury is denounced in Harris v. Pounds, 185 Miss. 688, 187 So. 891.
And again in Hebron Bank v. Gambrell, 116 Miss. 342, 77 So. 148, this court reversed, where decision rested only on opinion evidence.
The court erred in refusing to instruct the jury that appellee could not recover for the impaired eyesight and headaches "of which he now complains". There was absolutely nothing in the record to support appellee's opinion that his alleged bad eyes or headaches were caused by the blows received. The jury were simply called on to take his opinion about it; and this, as we have seen, they could not do.
Our court, in Y. M.V.R. Co. v. Boone, 111 Miss. 881, 72 So. 777, reversed a verdict and judgment for this very reason, and because of the refusal of an instruction almost exactly similar to the instruction here under consideration.
Evidence without probative value, though admitted without objection, will not sustain a verdict. This rule is announced by necessary implication in the Boone case, last cited, and in the other Mississippi cases heretofore cited. It is a general rule of law, to be found in 64 C.J. Sec. 240, pg. 227, from which we quote: "Failure to object to evidence does not give it any greater weight than it would have had if objection had been made, and evidence which is without probative value, even though admitted without objection, will not sustian a verdict." . . . "So it had been held that, although incompetent and irrelevant evidence has been introduced without objection, the court should upon request instruct the jury to disregard the same."
R.S. Tullos and O.O. Weathersby, for appellee.
The medical testimony, as reflected by the testimony of Dr. Coursey and Dr. Simmons, shows beyond a reasonable doubt that Mr. Stringer suffered and endured great pain as a result of these injuries; further that Mr. Stringer suffered the loss of considerable blood and that the doctors unequivocally stated that these blows inflicted by appellant upon the head of appellee were hard blows, and that Mr. Stringer suffered greatly as a result thereof. Therefore, we say that in the light of all the testimony in the case that the jury was warranted in returning the verdict that they did; to support our contention we cite the following cases: Memphis Charleston R.R. Co. v. F.E. Whitfield, 44 Miss. 456, and we quote item 15 on page 467 as follows: "Measure of damages a question for jury. Upon a mere matter of damages, where different minds might, and probably would arrive at different results, and nothing inconsistent with honest exercise of judgment appears, the verdict should be left as the jury found it." The court further held in the same case as above referred to in item 14, page 467, as follows: "Instructions — error is no ground for reversal if verdict good. Error in the instruction is not ground for reversal where it is manifest that the verdict was correct upon the facts appearing in the record." Mississippi Power and Light Company, et al. v. Tripp, 183 So. 514, quoting from syllabus, item 4, Appeal and error. "The reviewing court can set aside a verdict as the result of prejudice, passion, or corruption only where the facts found are contrary to the overwhelming weight of the evidence." In the same case on page 518 the court speaking through Judge Ethridge, states the following: (4) "The question of the force of a jury verdict on appeal is discussed, with reference to the power of this court to set it aside, in several cases, one of which is Shelton v. Underwood, 174 Miss. 169, 163 So. 828, where the power and duty of the trial judge in regard to the verdict of the jury is fully discussed, as well as the power of this court on appeal. Another case dealing with this question is Davis, Director General, etc., v. Temple, 129 Miss. 6, 91 So. 689. What is said there, and in other cases, need not be repeated here. St. Louis-San Francisco Ry. Co. v. Bridges, 131 So. 99, "Damages for personal injuries cannot be determined by any fixed rule." There can be no question as to the liability in this case. Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552; Stevenson et al. v. Robinson et al, December 23, 1948, Advance Sheets, page 568.
None of the cases cited by appellant in support of his contentions are applicable to the case at bar as the facts and circumstances are entirely different from the facts and circumstances of this case.
(Hn 1) Stringer sued Hawkins to recover damages resulting from a battery committed upon him by Hawkins. The testimony is that upon Sunday morning, Hawkins, then Sheriff of Smith County, had arrested a fleeing prisoner and was conducting him to jail, and in passing Stringer, who was standing on the sidewalk, struck the latter two or three times upon the head with a pistol. The jury was not impressed with the defense that Stringer had first attacked the officer, nor with any improbability that such officer would, without provocation, yield to some unaccountable urge to indulge a passion to test his personal strength and official powers upon a peaceable citizen, then and there suitably clothed and in a right mind to attend Sabbath worship. Since the testimony, if accepted by the jury, was sufficient to raise this issue, we cannot disturb their finding of liability.
In his declaration, plaintiff stated that he "is injured and has sustained damage to the amount of Fifteen Thousand Dollars," and in his third instruction, the jury were charged, in the event they found liability, "to bring in a verdict for the plaintiff in such sum that will reasonably compensate the said J. Hise Stringer for his injuries, not in excess of Fifteen Thousand Dollars, as alleged in the declaration." There was an award thereunder of $5,700.
Let us examine the evidence adduced to support such finding. The plaintiff testified on this issue as follows: "I stayed in bed ten or twelve days, and there was two or three weeks I couldn't sleep or work." In reply to the inquiry: "What effect did it have on your eyes?" he stated "Since that time my eyes haven't been good." Further examination followed: "State to the jury if you still feel the effects of that injury." "Yes, all the time" "How does it affect you?" "Well my head hurts all the time, practically all the time, just an old headache, just nervous."
He further stated that he had incurred some medical bills but the extent was not shown. He testified that "the doctor took twenty-three or twenty-four stitches" in the head wound. The doctor testified that it was a scalp wound only. This was corroborated by another physician who stated that the wound was closed with "between eight and twelve" surgical clips. The wound was three or three and a half inches long. There was no bone fracture. He conceded that such a wound "would cause a good bit of suffering." To complete plaintiff's summary of his physical damages, we quote his answer to a question upon the duration and extent of his injuries: "Six or eight weeks before I come to myself good. I stayed in bed part of the time. I hurt all the time. I hurt yet, but at first I hurt all the time, for six or eight weeks. After I tried to check my books, it would go to my head — I couldn't work on my books as good as I did."
(Hn 2) Despite the vague recitals of disability and suffering, the jury would be warranted in assuming that there would be no inconsiderable degree of both. However, the verdict is more than merely substantial, and appears to be a computation upon some basis which is not found in the record. Not a single figure is named as representing financial loss or expense. The physical damage and suffering, although not susceptible of exact admeasurement, must at all events be connected not only in time but in causation with the injury. (Hn 3) Post hoc ergo propter hoc is not a stout enough foundation to sustain a finding of proximate cause. Illinois Cent. R. Company v. Cathey, 70 Miss. 332, 12 So. 253; Kramer Service, Inc., v. Wilkins, 184 Miss. 483, 186 So. 625. Compare Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Yazoo M.V.R. Co. v. Boone, 111 Miss. 881, 72 So. 777; 38 Am. Jur., Negligence, Sec. 56. An assumption by the jury that the injury created a condition that had not theretofore existed, or aggravated one which did, has in it some logic but not enough law.
(Hn 4) Regardless, therefore, of what could have been, or may be, shown, we find no sufficient basis for so substantial an award for personal injury. Under the circumstances, and in view of the sharp conflict in the testimony, (Hn 5) we are of the opinion that the jury ought not to have been instructed to bring in a verdict, once liability is found, "not in excess of Fifteen Thousand Dollars, as alleged in the declaration." Belzoni Hardwood Company v. Cinquimani, 137 Miss. 72, 89. 102 So. 470. With the exception herein noted, the plaintiff's instructions were not objectionable.
(Hn 6) What we have stated is a sufficient comment upon the assignment that the trial court erred in refusing instructions for the defendant which denied to plaintiff any right to recover for "permanent injuries" and "impaired eyesight."
The cause will be affirmed upon the issue of liability, but reversed and remanded for hearing under proper instructions upon the issue of damages.
Affirmed on liability; reversed and remanded upon damage isssue.
I concur in the majority opinion holding that the actual damages sustained by appellee, as proven by the evidence, are not sufficient to uphold a verdict for $5,700.
The facts of the case would have warranted the infliction of punitive damages, and, in my opinion, if punitive damages had been sued for, and if the issue thereon had been submitted to the jury, the verdict would not be excessive. Since the appellee did not sue for punitive damages, and did not request an instruction to the jury thereon, he cannot recover the same. Gulf, Mobile Northern Railroad Co. v. Graham, 153 Miss. 72, 117 So. 881. Therefore, appellee's recovery on the first trial is limited to the actual damages sustained by him, and I concur with the majority of the Court in holding that the actual damages proven are not sufficient to uphold the jury's verdict.