Beard v. Turritin

• Decision Date: 27 May 1935
• Docket Number: 31769
• Citation: 173 Miss. 206,161 So. 688
• Court: Mississippi Supreme Court
• Parties: BEARD et al. v. TURRITIN

161 So. 688

173 Miss. 206

BEARD et al. v. TURRITIN

No. 31769

Supreme Court of Mississippi

May 27, 1935

Division A

Suggestion Of Error Overruled June 10, 1935.

APPEAL from the circuit court of Harrison county, HON. J. L. TAYLOR Special Judge.

Suit by Mrs. Zora Turritin against Mrs. Mary A. Beard and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Affirmed.

Leathers & Greaves, of Gulfport, for appellants.

While we recognize the principle that error in the admission of evidence is harmless where it is shown that its admission did not affect the result of the trial, we submit that it is fundamental that where incompetent evidence is admitted the presumption of prejudice arises which, unless repelled by the evidence in the record, will necessitate a reversal. When incompetent evidence is allowed to go to a jury over a seasonable objection, injury is presumed, unless the whole record affirmatively rebuts such presumption.

First National Bank v. Chaffin, 24 So. 80, 118 Ala. 246; Miller v. Mayer, 26 So. 892, 124 Ala. 434; Florence Wagon Works v. Trinidad Asphalt Mfg. Co., 40 So. 49, 145 Ala. 677; Deal v. Houston County, 78 So. 809, 201 Ala. 431; Brown v. Grayson, 86 So. 121, 17 Ala.App. 463; Cent. of Ga. Ry. Co. v. Teasley, 65 So. 981, 187 Ala. 610; Birmingham Ry. L. & P. Co. v. Beck, 55 So. 428, 1 Ala.App. 291; Tallassee Falls Mfg. Co. v. Parks, 56 So. 588, 2 Ala.App. 278; Simmons v. Spratt, 8 So. 123, 26 Fla. 449; Brewer v. Mullins, 52 So. 257, 97 Miss. 353; Robinson v. City of Vicksburg, 54 So. 858, 99 Miss. 439.

While it is true that the form of hypothetical questions and the facts to be embraced therein are matters resting largely in the sound discretion of the trial court, counsel by whom such question is asked should not be permitted to frame an improper question and then cast the burden of supplying its deficiencies on opposing counsel.

22 C. J., page 708, par. 796; Edmonds v. State, 75 So. 873, 16 Ala.App. 157; Woolner v. Spalding, 3. So. 583, 65 Miss. 204.

It has been the law of this country since its courts were established that a suppression of the truth is a ground to rescind an agreement, and will justify a party to the agreement who has thus been imposed on to refuse to carry it out.

Mechanics Bank v. Lynn, 1 Pet. (U. S.) 383, 7 L.Ed. 185; 1 Story Eq. Jur. (13 Ed.), sec. 204.

The verdict is excessive.

Shell Petroleum Corp. v. Kennedy, 141 So. 335, 167 Miss. 305; City of Vicksburg v. Scott, 151 So. 914, 168 Miss. 572; Wilson v. Rich, 141 So. 287, 163 Miss. 403; Woolworth Co. v. Volking, 100 So. 3.

Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellee.

The court below committed no error in the admission of the X-ray picture.

"An Automobile Suit," by Anderson, par. 480, page 545.

We most respectfully submit that regardless of every other fact and circumstance in the case, that where every condition contained in the hypothetical question was shown by some evidence to have existed the court committed no error in allowing the doctor to reply thereto.

No affidavits or testimony was introduced or offered by either of the defendants or their counsel, and they did not know of this new evidence at the time of the trial.

Hilbun v. State, 167 Miss. 725, 148 So. 365; 64 C. J. 123; Browder v. Da. Costa, 109 So. 448, 91 Fla. 1; Noles v. Noles, 223 Ala. 555, 137 So. 19; Atlantic Coast Air Line R. R. Co. v. Shouse, 83 Fla. 156, 91 So. 90.

The verdict is not excessive.

Hopkins v. New Orleans Ry. & Light Co., 150 La. 61, 19 A.L.R. 1362, 90 So. 512; Wichita Falls State R. R. Co. v. Tucker, 261 S.W. 518; Bennett v. New York C. & H. Railroad Co., 16 N.Y.S. 675; 133 N.Y. 563; Hover v. Cushner, 125 Wash. 555, 216 P. 833; Seaboard Air Line Co. v. Maddox, 131 Ga. 799, 63 S.E. 344; Clark v. Chicago Railroad Co., 192 Ill.App. 258.

Argued orally by P. D. Greaves, for appellant, and by Chalmers Potter and Bidwell Adam, for appellee.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of Harrison county, Mississippi, for four thousand dollar damages for personal injuries alleged to have been sustained by the appellee as the result of a collision between an automobile in which she was riding as a guest, and an automobile belonging to the appellant Mrs. De Waters, and being driven by the appellant Mrs. Beard.

The collision occurred in the intersection of Thirty-First avenue and Eleventh street, in the city of Gulfport, in the afternoon of July 16, 1934, and while the evidence bearing upon the question of negligence of the respective parties is conflicting, the evidence offered by the appellee amply supports the finding of the jury on that issue. None of the assignments of error challenges the sufficiency of the evidence to warrant the submission of the cause to the jury on the question of liability of appellants, and, consequently, a statement of the evidence bearing on that issue would serve no useful purpose.

The appellants first assign as error the admission in evidence of a purported X-ray picture of the appellee's back and spine taken shortly after the collision; the contention on this point being that this picture was not sufficiently identified as being a picture of the appellee's body.

Immediately after the appellee was injured in the collision, she was carried to the Kings Daughters Hospital in Gulfport and placed under the care of Dr. McCall, and he caused an X-ray picture to be made of her back and spine. For the purpose of identifying this X-ray picture, the technician who was in charge of the X-ray and clinical laboratory of this hospital was offered as a witness, and she testified that on July 16, 1934, she made the picture in question; that it was the picture of the spine, ribs, and back of a woman who was brought into the hospital suffering from an injury and who was under the treatment of Dr. McCall, and gave her name as Mrs. Turritin; that after taking and developing this picture she (the witness) wrote thereon the following data in identification thereof, "Mrs. Turritin, 7/16/34, ribs and spine, Kings Daughters Hospital, 2189, right side, Gulfport;" that for the purpose of identification, she placed the same data on an envelope and then placed the picture in this envelope and filed it in the hospital files of X-ray pictures. By these marks of identification this witness positively...