Opinion
No. 38066.
October 22, 1951.
1. Damages — inadequate award — new trial — case in point.
A taxicab passenger through the negligence of the driver was thrown into the windshield and suffered numerous cuts, lacerations and abrasions on the face and head, these injuries being so extensive as to require sixty-five sutures in closing the wounds, besides which her hip, side and back were injured, so that she was confined in a hospital for eight days with an additional loss of six weeks from her work in which she had earned $35.00 to $45.00 a week, but was awarded only $200.00 as damages: Held that there being no contributory negligence, the verdict was so grossly inadequate as to require a reversal for a new trial.
2. Damages — scars or disfigurement — instructions.
An instruction that damages may not be awarded for physical pain and suffering and mental pain and anguish for any scars or disfigurement after plaintiff's physical suffering has ceased was erroneous, and the cases sustaining the instruction are in that respect overruled; namely, Boneli v. Branciere, 127 Miss. 556, 564, 90 So. 245, 248; Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 128 So. 870; Koestler v. Burton, 207 Miss. 40, 41 So.2d 362.
3. Damages — disfigurement or mutilation.
An appropriate award of damages for permanent disfigurement and mutilation of the body may be made within the bounds of reason, taking into consideration the nature and character and location of the mutilation, and such permanent disfigurement need not be shown to a reasonable certainty but only by a preponderance of the evidence.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, Judge.
Vollor, Teller Biedenharn, for appellant.
With the facts as to the extent and nature of the excruciating injuries which befell appellant in mind and that appellant actually lost in her earnings an amount virtually equal to the sum of the jury's award, surely it cannot in logic be maintained that the award made was not wholly and flagrantly inadequate.
Because of the fact that the jury, in fixing the damages, did not respond to the evidence, a new trial should have been awarded below on the issue of damages alone. The court below, having erroneously declined to grant such a new trial, it is now incumbent, in the interest of justice and according to the past precedents of this Court, that such a new trial be awarded. The jurisprudence of this State as enunciated by this honorable Court clearly calls for the relief sought through this appeal: Scott v. Y. M.V.R.R. Co., 103 Miss. 522, 60 So. 215; White v. McRee, 111 Miss. 502, 71 So. 804; Walk Bros. v. Nix, 115 Miss. 199, 76 So. 143; McLaughlin v. R.W. Fagan-Peel Co., 125 Miss. 116, 87 So. 471; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Hicks v. Corso Cefalu, 131 Miss. 659, 95 So. 636; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Barr v. Gulf M. N.R. Co., 168 Miss. 863, 152 So. 294; Faulkner, et al. v. Middleton, 186 Miss. 355, 188 So. 565; Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; Gordon v. Lee, 43 So.2d 665.
It is generally conceived to be the present law of this State that facial disfigurement is not a proper element of damages. At least the learned court below was of that conviction.
The jury below was in effect told that for some mysterious reason evidence as to disfigurement — change of appearance — due to an accident was not for their consideration. Reference to appellant's scars was deemed taboo and ruled out.
These rulings, believed to be erroneous, flowed undoubtedly from the appraisal by the court below of the law announced in the cases of Bonelli v. Branciere, 127 Miss. 556, 90 So. 245, and Koestler v. Burton, 207 Miss. 40, 41 So.2d 362.
The learned Chief Justice of this honorable Court in the Koestler case, supra, expressed personal disagreement with any such rule. It was also there stated that "other members of the Court" shared the Chief Justice's opinion, and were "unable to see why such a rule should have ever become announced", etc.
Our examination of the authorities leads us to submit to this honorable Court that the rule announced in the Bonelli case, if extended to facial or bodily disfigurement (apart from amputation cases) is truly unsound.
We know of no instance where (other than for the rule announced in the Bonelli case), liability existing, the recovery for all damages and losses flowing directly from the injuries received has not been authorized and upheld. See 15 Am. Jur., Sec. 65, p. 469, and Sec. 70, et seq., commencing at page 477 thereof. Note Mobile Ohio RR. Co. v. Carpenter, 104 Miss. 706, 61 So. 693, and especially the damage instruction there upheld; also, Hollingshed v. Y. M.V.R.R. Co., 99 Miss. 464, 55 So. 40.
Our own search has revealed no case from any other jurisdiction, anywhere, disallowing facial disfigurement as an element of damages. It seems to be universally accepted that facial disfigurement is a proper matter to be considered as an element for damages. And why not? We ask the Court to refer to the annotations on "Disfigurement of Face" appearing 46 A.L.R. 1287, and 102 A.L.R. 1269. From these cases, referred to in the annotations, the rule generally followed, and we believe universally followed (unless Mississippi be the sole exception), is to be noted.
We agree with the learned Chief Justice and "the other members of the Court" (by the Chief Justice referred to in the Koestler case) that the rule is not supported in reason; and we sincerely implore that this honorable Court, in fairness to this appellant and those of our citizens who in the future may have similar unfortunate facial injuries, should re-examine the subject and announce that rule most conformable to simple justice.
Certainly all evidence as to injuries sustained should be admitted and considered. All of the ravaging effects, consequential upon the injuries (flowing from the fault of a negligent actor), should be weighed and included in the award. Are we, the courts and the attorneys serving as officers thereof, to be so lacking in understanding, much less chivalry, that we label facial impairment and disfigurement as inconsequential?
Jno. W. Prewitt, for appellee.
Appellant has cited numerous cases endeavoring to show wherein this honorable Court should upset the finding of the jury on the award of damages alone; however, upon reading the cases cited in appellant's brief we find that those cases were rightly reversed upon said point, for the simple reason, that the injuries suffered by the appellant in said cases were of serious and permanent nature.
(1) Scott v. Y. M.V.R.R. Co., 103 Miss. 522, 60 So. 215, wherein jury awarded $100.00 for loss of leg by amputation, made necessary by a fall sustained by a brakeman, received in performance of his duties, on the railroad; said brakeman was bedridden three months and his earning capacity greatly reduced, held inadequate.
(2) White v. McRee, 111 Miss. 502, 71 So. 804, wherein appellant was bitten by a dog and underwent physical suffering and mental terror during the attack, that the leg was permanently injured, only able to walk on one foot and there was fear of hydrophobia, an award of $100.00 was reversed as to damages.
(3) Walk Bros. v. Nix, 115 Miss. 199, 76 So. 143, wherein award of $300.00 was awarded a minor employee of a sawmill for the loss of three fingers, held damages inadequate.
(4) McLaughlin v. R.W. Fagan-Peel Co., 125 Miss. 116, 87 So. 471, an award of $300.00 for loss of arm and suffering by laborer, while performing task for employer, held inadequate.
(5) Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257, award of $175.00 for following injuries, held inadequate: appellant was unconscious when taken from wreck and did not regain consciousness until the next morning; hospitalized two weeks, hearing permanently impaired from blow on the head, suffered severe pains and paid out the sum of $135.25 in medical expenses.
(6) Hicks v. Corso Cefalu, 131 Miss. 659, 95 So. 636, plaintiff sustained eleven cuts upon her body from broken glass in an automobile in which she was riding, two hours of surgery necessary to repair the wounds sustained, permanent injuries and probability of pain for her entire life, hospitalized for 12 days, hospital bills in sum of $400.00, impairment in working ability, held $800.00 award inadequate.
(7) Ozen v. Speries, 150 Miss. 458, 117 So. 117. $500.00 damages for personal injury causing loss of approximately five (5) months earnings and time, with $208.00 doctor's bills and causing lameness so as to make it difficult for injured person to secure job as bricklayer, held grossly inadequate.
(8) Barr v. Gulf, M. N.R. Co., 168 Miss. 893, 152 So. 294, injuries sustained were as follows: broken nose, head, shoulders and knees injured, injury to one knee caused plaintiff to be permanently crippled; verdict of $200.00, held inadequate.
(9) Faulkner, et al. v. Middleton, 186 Miss. 355, 188 So. 565, permanent loss of eye to a minor employee, together with pain and suffering, jury's verdict of $500.00 held inadequate, and reversed on question of damages.
(10) Gordon v. Lee, 43 So.2d 665, wherein $2,000.00 for wrongful death of five year old child who endured much physical pain and suffering during several hours intervening between accident and its death, was inadequate.
From the cases above cited, which are the ones cited in appellant's brief, we do not question the justness of their respective decisions but direct this honorable Court's attention to the fact that said cases support our contention, that the appellant herein has not sustained injuries of similar nature and to a sufficient degree as to upset the jury's verdict on the amount of damages.
In Bonelli v. Branciere, 127 Miss. 556, 90 So. 245, Justice Anderson in setting up the principle that disfigurement of body alone is not an element of damages stated as follows: "that to allow a recovery for disfigurement of body would be tantamount to permitting a recovery for mental anguish or humiliation unaccompanied by physical suffering". See also Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823.
Our contention is also based upon the conclusion reached by the learned Chief Justice of this honorable Court in Koestler v. Burton, 207 Miss. 40, 41 So.2d 362, wherein he stated: "However, we are bound by the rule as long as it may continue to be supported by the prior decisions of this and other Courts, without regard to whether or not it be supported by any good reason".
To destroy this rule, which is founded upon the sound principle that for mental suffering to be considered an element of damage it must be accompanied by physical pain and suffering, would have the same effect as retroactive legislation.
The writer of the appellant's brief asks this honorable Court to refer to annotations on "Disfigurement of Face" appearing in 46 A.L.R. 1287, and 102 A.L.R. 1269, and upon our examination of said annotations it appears that disfigurement of face has been held an element of damage by some other state courts but usually in conjunction with other injuries which to this writer's mind bears out the proposition that for "disfigurement" to be an element of damage it must be in conjunction with physical pain and suffering.
Appellant was plaintiff in the lower court and recovered a judgment for $200 for damages on account of personal injuries sustained by her while a passenger for hire in one of the taxicabs of appellees as a result of negligence of the driver thereof. The lower court overruled her motion for a new trial which raised the question of the inadequacy of the vedict of the jury and she appeals, assigning this action as the first ground for reversal.
There is no substantial dispute as to the extent of appellant's injuries. (Hn 1) She was thrown into the windshield of the car and sustained numerous cuts, lacerations and abrasions on her face and head. The most severe cut was about four inches long, located just above her eyes, and extended into the lid of one eye; the skin and muscles were severed all the way to the bone; her whole forehead was cut, her nose was let down, her lip lacerated, and these injuries were so extensive that approximately sixty-five sutures were taken in closing the wounds, some of which were subcutaneous. In addition, her hip, side and back were injured. She was confined in a hospital for eight days and lost three full weeks from her work as a beautician and lost part time for six additional weeks. Her earnings averaged from $35 to $45 a week, and sometimes more. It will be readily observed that the amount of the award is barely sufficient to compensate appellant for the time actually lost from her work and the jury allowed nothing for her physical and mental pain and suffering. There was no contributory negligence which would authorize a diminution of damages. The jury found for appellant on the issue of liability and she was entitled to full compensation for her injuries. It is plain that the amount awarded is not full compensation and in our opinion the verdict is so grossly inadequate as to evince passion and prejudice on the part of the jury, for which reason the judgment must be reversed and the cause remanded for a new trial on the question of damages.
This brings us to the necessity of considering whether appellant would be entitled to have submitted to the jury the question whether damages might be awarded by them for disfigurement of appellant's face. At the trial she undertook to prove that her face had been disfigured by reason of the wounds which she received and the trial court sustained objections to such evidence. (Hn 2) The court also instructed the jury that "you cannot allow damages for physical pain and suffering and mental pain and anguish for any scars or disfigurement after plaintiff's physical suffering has ceased." In the case of Bonelli v. Branciere, 1921, 127 Miss. 556, 564, 90 So. 245, 248, this Court said: "We simply hold that when the physical suffering is at an end there can be no recovery for mental suffering or humiliation which may thereafter continue as the result of the physical disfigurement of body." The same rule was announced in J.J. Newman Lumber Company v. Norris, 1922, 130 Miss. 751, 94 So. 881, and in Pan-American Petroleum Corporation v. Pate, 1930, 157 Miss. 822, 126 So. 480, 128 So. 870, and it is evident that the trial court granted this instruction in reliance upon these cases. The question under discussion was raised in Koestler v. Burton, 1949, 207 Miss. 40, 41 So.2d 362, where we criticized the above rule but adhered to it because of the peculiar facts in the case and the manner in which the point arose, but the dissatisfaction of the Court with such a rule was plainly expressed and the attitude of the Court in the future was foreshadowed. We are of the opinion that the rule as to the recovery of damages for physical disfigurement as announced in the cited cases is not supported by any good reason or by any respectable number of authorities from other jurisdictions, and the said authorities insofar as they adhere to that rule, as well as any others which may adhere to it, are hereby overruled.
(Hn 3) In 25 C.J.S., Damages, Sec. 57, pages 546-547, it is said: "Disfigurement or mutilation of the body as a result of an injury to the person may be considered as a proper element of damage, although, as shown infra § 66, there is some difference of opinion as to the propriety of considering mental pain in contemplation thereof. Plaintiff cannot recover for permanent disfigurement and also for the expense of an operation to remove the disfigurement. Permanent disfigurement need not be shown to a reasonable certainty, but only by a preponderance of evidence, to authorize recovery therefor."
And in 25 C.J.S., Damages, Sec. 66, page 554, it is said: "According to the weight of authority, mental pain in contemplation of a permanent mutilation or disfigurement of the person may be considered as an element of damage. There are authorities, however, which take a contrary view, or which hold that, while there can be a recovery for disfigurement, injury growing out of the contemplation of disfigurement is too remote to be considered as an element of damage."
In McCormick on Damages, Hornbook Series, Section 88, p. 317, it is said: "Most courts permit an allowance for the sadness, humiliation, and embarrassment ensuing from any scars, mutilation, or disfigurement sustained by the injured person." In note 17 on page 317 of this work, the author criticizes the Mississippi rule as being a "curious conclusion" and a "refinement of subtlety" and wonders how far a jury would pay any regard to it. It is frequently said that our juries are prone to disregard the rule as heretofore established in this State and award damages for physical mutilation irrespective of the law; such an attitude is but proof of the fact that the sense of justice of the average man revolts against the rule. In this case the jury certainly did not disregard it, and we are of the opinion justice will be better promoted by allowing the jury to give due consideration and make an appropriate award of damages for permanent disfigurement and multilation of the person. Naturally such an award should be confined to the bounds of reason, taking into consideration the nature and character and location of the mutilation.
The judgment is accordingly reversed and the cause remanded for a new trial on the question of damages alone.
Reversed and remanded.