Brookhaven Lumber & Mfg. Co. v. Adams

• Decision Date: 02 July 1923
• Docket Number: 23299
• Citation: 97 So. 484,132 Miss. 689
• Parties: BROOKHAVEN LUMBER & MFG. CO. v. ADAMS
• Court: Mississippi Supreme Court

97 So. 484

132 Miss. 689

BROOKHAVEN LUMBER & MFG. CO. v. ADAMS

No. 23299

Supreme Court of Mississippi

July 2, 1923

Division A. January 1, 1920

1 COURTS. Decision of judge as to legality of place designated for holding court other than the regular courthouse not open to collateral attack.

The first duty of a judge of a court when called on to hold a term of the court in a place other than the regular courthouse is to decide whether or not such place has been lawfully designated as the place therefor in accordance with section 325, Code 1906, Hemingway's Code, section 3698 and his decision that it has been so designated is final and is not open to collateral attack by litigants in cases thereafter there tried.

2. APPEAL AND ERROR. Judgment not reversed because of admission of incompetent evidence unless complaining party prejudiced.

A judgment will not be reversed because of the admission of incompetent evidence when the complaining party was not prejudiced thereby.

3. PARENT AND CHILD. Right of parent to compensation for minor child's injury waived where father as next friend obtains damages therefor.

The right of the parents of a minor injured by the negligence of 132 Miss.---44 another for compensation for the minor's reduced earning capacity during his minority is waived, where the father as next friend of the minor and for his benefit sues for and obtains damages therefor from the person causing the injury.

4. APPEAL AND ERROR. Refusal to permit defendant to ask plaintiff. when testifying in own behalf in personal injury suit, if he would agree to examination by physician who treated him, held not prejudicial.

No harm can result to the defendant in a personal injury suit by the refusal of the court to permit him to ask the plaintiff, when testifying in his own behalf, whether he would agree that a physician who treated him might be introduced as a witness and testify as to his injuries.

5. CONSTITUTIONAL LAW. Witnesses. Plaintiff's witness offered by defendant in personal injury suit incompetent although another physician had testified for plaintiff; application of statute as to privileged communications not denial of equal protection or due process.

Under section 3695, Code 1906, Hemingway's Code, section 6380, a physician is incompetent to testify to facts which come to his knowledge by virtue of his being employed by a patient as a physician, and the patient does not waive the privilege because he introduced as a witness in a personal injury suit another physician who testified for the patient as to the same facts. And to so apply the statute does not deprive the defendant of either due process, or equal protection, of the law.

Division A

Suggestion of Error Overruled July 19, 1923,

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by Jim Adams, Sr., against the Brookhaven Lumber & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Stevens & Heidelberg, for appellant.

The judgment appealed from and all proceedings had on the trial of this cause, were utterly null and void because the pretended court was not sitting at the place designated by law for the holding of circuit court in Forrest county, Mississippi.

Section 325 of the Mississippi Code of 1906 provides the method of designating some building other than the courthouse as a place for the holding of court at a time when the courthouse is undergoing repairs or becomes unfit for use. Did the board of supervisors of Forrest county ever legally designate the Red Circle building as the place for holding court in that county? Section 298 of the Code of 1906 provides the method for holding both special and adjourned meetings of the board of supervisors.

Smith v. Nelson, 57 Miss. 138, held that prior to the enactment of section 298 of the Code of 1906, the law did not authorize the board of supervisors to adjourn until a later date, and their attempted adjournment amounted to nothing and all proceedings had by the board of supervisors at the adjourned meeting were utterly null and void. See also Jones v. Burford, 26 Miss. 194; Wolfe v. Murphy, 60 Miss. 1; Johnson v. Futch, 57 Miss. 73; Crump v. Board of Supervisors Colfax County, 52 Miss. 107.

The mere fact that the solemn records of this county are made to state that that has been done which in fact has not been done, constitutes in law a fraud. Richardson v. Brooks, 52 Miss. 118; Christian v. O'Neal, 46 Miss. 669; Plummer v. Plummer, 37 Miss. 185; McCraney v. New Orleans & North Eastern Railroad Company, 128 Miss. 248. Patton v. State, 49 So. 809, (Ala.) held that a conviction before a court held at an unauthorized place, is void. See also Kidd v. Burke, 38 So. 241; Arbour v. Yazoo & Mississippi Valley Railroad Co., 98 Miss. 714; McLeod Lumber Company v. Steverson, 81 So. 788; Eichoff v. Caldwell, 151 P. 860, L. R. A. (N. S.) 1917 E, (Okla.).

Allegation of declaration and proof in support thereof that after the accident the appellee removed the collar and made the place where the plaintiff was hurt safer, was inadmissible. Nashville C. & St. L. Railway v. Ragan (Ala.), 52 So. 522; Morse v. Minneapolis Railroad, 30 Minn. 465; Adams v. Crim. (Ala.), 58 So. 442; Dougan v. Champlain Transportation Company, 56 New York, 1; Sewell v. Cohoes, 11 Hun. 626; Baird v. Daly, 68 New York, 547; Payne v. Troy & Boston Railroad Company, 9 Hun. 526; Salters v. D. H. C. Company, 3 Hun. 338; Dale v. Delaware, Lackawanna & W. Railroad Co., 73 New York, 468.

Our investigation of this subject convinces us that the great and overwhelming weight of authority in this country excludes this character of testimony and holds it to be incompetent for any reason whatsoever.

Permitting the plaintiff to recover for loss of wages during his minority, was error. It is too well settled to admit of argument, in this state, that the parents of minor children are entitled to their services and their wages until they reach their majority. Hines v. Moore, 87 So. 1.

On the trial of this case Dr. Jackson, an alleged expert, was permitted to testify for the plaintiff as to certain conditions which he found from an examination of the plaintiff. The defendant offered the only doctor who treated the plaintiff, one Dr. Mounger, and he was not permitted to testify, even though his testimony was offered with the statement that if the plaintiff was permitted to introduce this character of testimony, and the same right was denied to the defendant, that the defendant would have been denied the equal protection of the laws and that this would be in violation of the due process clause of the Federal Constitution. Yazoo, etc., Railroad Co. v. Wallace, 90 Miss. 609; Mississippi Eastern Railway Company v. Wymond Cooperage Company, 46 So. 557, 93 Miss. 73.

Cephas Anderson and Tally & Mason, for appellee.

The place for holding the court was properly and legally selected and the court was a court de jure in every sense of the word. Since section 570 of Hemingway's Code has amplified the things which the circuit court may do in vacation, by consent of the parties, we contend that counsel for each side in the trial of a civil case has the power to waive both the time and place of the sitting of the court to try civil cases, and since the undisputed testimony in this record shows that counsel for appellant both knew where the court was being held and appeared there with their client and witnesses, and announced ready for trial, and entered no objection or protest, either written or oral, the point was waived.

With reference to the allegation in the declaration and proof taken thereon, as to the fact that the defendant immediately cut the end of the shaft off and removed the collar and set screw during the night following the injury of plaintiff, we have always understood that it is not objectionable to plead any fact that you are allowed under the law to prove, and we think the authority, as laid down by this court in the case of Sea-Food Company v. Alves, 117 Miss. 1, clearly authorized and justified the pleading and proof in this case.

Dr. Mounger was the appellee's attending physician, and the information sought to be elicited from him was gained by his being appellee's attending physician, and the trial court promptly informed counsel that he would permit him to introduce any physician as an expert if he so desired, but he would not permit him to introduce the testimony of appellee's attending physician over the objection of appellee. U. S. Fidelity and Guaranty Company v. Hood, 124 Miss. 548; Williams v. Newman Lumber Company, 92 So. 561.

The verdict of the jury was not excessive. The uncontradicted proof in the case shows that his injury was received as the result of gross negligence; that his left arm was broken in two places between the elbow and the shoulder; that his shoulder was either jerked out of place or the cap of the bone broken, so that at the time of the trial his left arm could not be raised any higher than the level of his shoulder; that he had been whirled around and around with a shaft revolving 375 revolutions to the minute, through a space between the shaft and the floor, not more than fifteen inches wide, that the blood was flowing from his ears, that the set-screw had, in winding his clothes off his body, torn a hole in his side, broken one rib, and in doubling him under the shaft had injured his spine and left him a cripple for life. Brooks v. Oil Company, 100 Miss. 849, clearly and righteously laid down the doctrine of this court with reference to set screw cases, following 4 Thompson on Negligence, sections 4021-3.

Argued orally by R. W. Heidelberg for appellant and John R. Tally and Cephas Anderson for appellee.

OPINION

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