Bonelli v. Branciere

• Citation: 127 Miss. 556,90 So. 245
• Decision Date: 09 January 1922
• Docket Number: 22125
• Court: United States State Supreme Court of Mississippi
• Parties: BONELLI et al. v. BRANCIERE

90 So. 245

127 Miss. 556

BONELLI et al. v. BRANCIERE

No. 22125

Supreme Court of Mississippi

January 9, 1922

1 NEGLIGENCE. Truck driver's negligence held question for jury.

In a personal injury action where there is a verdict and judgment for the plaintiff and on appeal the defendants contend that the trial court erred in refusing to direct a verdict for the defendants because the evidence did not tend to establish liability, and it appears from the evidence in the record that there is much doubt and confusion on the issue of liability, but during the trial, as authorized by statute the trial judge, jury, the plaintiff who was on the witness stand at the time, and the attorneys for the respective parties, visited the locus in quo, and there the plaintiff testified in the presence of the court and jury as to just how the injury occurred, pointing out and demonstrating his position and conduct at the time of the injury as well as that of defendants' driver and truck which caused the injury, which demonstrations the court reporter did not and could not exactly translate into the record, such evidence considered in connection with the other evidence in the record, will be presumed to have cleared up such confusion and doubt in the minds of the jury; therefore in uch a case the question of liability is one for the jury.

2 NEGLIGENCE. Proximate cause of injury by truck striking gate held for jury.

Every negligent act does not carry with it liability of the guilty person for any and all injury to others. Liability follows only when such negligent act is the proximate cause of the injury complained of. The guilty person must have reasonably anticipated that some injury might result to another from his wrongful act. But the evidence in this case tended to show that the driver of the truck in question knew or should have reasonably anticipated, when the truck struck the gate while the plaintiff was in the act of closing it, some injury might result therefrom to the plaintiff; therefore it was a question for the jury as to the proximate cause of the injury.

3 TRIAIL. Refusal of requested instruction covered by charges given not error.

An instruction requested on behalf of the defendants and refused by the court, by which it was sought to tell the jury that, if the evidence showed the injury was caused solely by the negligence of the plaintiff, they should return a verdict for the defendants, embodied a correct principle of the law; but it was not error in the trial court to refuse such an instruction because the same principle was embodied in other instructions given for the defendants.

4. DAMAGES. Instruction to be governed by sense of justice and right in assessing damages held correct.

An instruction, which informed the jury that, if they should find a verdict for the plaintiff, in assessing his damages they should be governed by a sense of justice and right arising out of the facts shown by the evidence, contained a correct statement of the law.

5. DAMAGES. Not allowable for disfigurement apart from physical suffering.

An instruction given for the plaintiff, which told the jury that, if they should render a verdict for the plaintiff in assessing his damages, in addition to awarding damages for physical and mental suffering past and future, as well as any permanent disability and loss of earning capacity, they should go further and award damages for any disfigurement of body as shown by the evidence, was erroneous because it authorized a recovery for mental anguish or humiliation unaccompanied by physical injury, in that it authorized the awarding of damages for disfigurement of body after plaintiff's physical suffering had ceased; the law being that there can be no recovery for mental anguish or humiliation except as a part of and as growing out of physical suffering, and when the latter ceases to be an element of damages so does the former.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by David Branciere against E. Bonelli, Sr., and others, for personal injury. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Case reversed.

A. A. Armistead, Hirsh, Dent & Landau, and Brunini & Hirsch, for appellant.

Anderson, Vollor & Kelly and A. A. Chaney, for appellee.

OPINION

ANDERSON, J.

The appellee, David Branciere, sued appellants, E. Bonelli Company, in the circuit court of Warren county for an injury received by him in the loss of four fingers of his left hand alleged by him to have been caused by the negligence of appellants' driver of their auto delivery truck, and recovered a judgment in the sum of twelve thousand dollars, from which appellants prosecute this appeal.

Appellants assign several errors. Only those which were argued are considered of sufficient importance to notice. The action of the trial court in refusing appellants' request to direct a verdict in their favor is assigned as error. This assignment is based on the contention on behalf of appellants that the evidence did not tend to establish liability. In considering this question every fact favorable to appellee's case, either proven directly or reasonably inferable from the evidence should be treated as established. We find that the testimony either established or tended to establish the following facts: Appellants were merchants in the city of Vicksburg and made delivery of goods sold to their customers in the city and vicinity by means of an auto-delivery truck, which on the occasion in question was driven by one McGuire accompanied by a negro boy who carried the packages from the truck to the residences of the customers. Appellee was a pipe fitter, 31 years of age, with a wife and child. The rear of the premises where he resided bordered on the west side of an alley running north and south fourteen and one-half feet wide, from which there was an entrance into his back yard by means of two folding gates opening out east into the alley. The injury to appellee occurred about noon. Appellants' delivery truck was being driven by their employe McGuire through this alley from north to south making delivery of goods to their customers. It stopped at or near the back entrance to appellee's premises to make delivery of a package of goods to a customer on the east side of the alley. At this time appellee was at or near the folding gates entering his back yard on his way to the noon meal. His little child was present urging him to come in. His wife had seen and called him in to lunch. He opened the south wing of the folding gates which swung back to the south, and entered. This gate had a handhold through it for use in opening and closing, in which appellee had his hand attempting to close the gate; his child was pulling at him and urging him to come in. At this juncture appellant's truck continuing south passed the gate, and in doing so the front or rear fender came in contact with the gate and his hand, cutting off all the fingers of appellee's left hand, except the little finger. The exact position of appellee, the gate and the truck when the injury occurred is left in some confusion by appellee's own testimony as it appears in the record. He first conveys the impression that the gate was closed when his fingers were cut off, and therefore the driver must have negligently driven the truck too close to the fence and gate and later in his testimony he states that on account of his child pulling at him and urging him to come in, he lost control of the gate, by reason of which it opened into the alley and there his hand was caught by the fender of the truck--which would indicate that the truck was well away from the fence and gate at the time of the injury, and therefore the driver was without fault. If this were all the evidence before the jury on this question, the issue would be clouded and in much doubt, to say the least of it. However, there was other and most material evidence not in the record and which in its nature could not be gotten into the record exactly as it was given, and still it must be...