Burrill v. Rau

• Decision Date: 18 March 1929
• Docket Number: 27792
• Citation: 121 So. 118,153 Miss. 437
• Court: Mississippi Supreme Court
• Parties: BURRILL v. RAU. [*]

121 So. 118

153 Miss. 437

BURRILL v. RAU. ^[*]

No. 27792

Supreme Court of Mississippi

March 18, 1929

Division B

1 DAMAGES. Verdict of one dollar for injury to back held not so inadequate as to evince passion or prejudice on part of jury.

Verdict in the sum of one dollar for injury to back held not so inadequate under evidence as to evince passion or prejudice on the part of jury in considering and rendering their verdict.

2 TRIAL. Credibility of witnesses is for jury.

It is within the exclusive province of the jury to pass on credibility of witnesses.

3 EVIDENCE. Character and weight of evidence should control rather than number of witnesses.

Character and weight of evidence should control jury in arriving at their verdict rather than the number of witnesses testifying to existence of an alleged fact.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Action by Miss Mabel Burrill against I. B. Rau. From the judgment, plaintiff appeals. Affirmed.

Affirmed.

Mize & Mize & Thompson, for appellant.

C. R. Hayden and J. L. Taylor, for appellee.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Harrison county against appellee, a merchant in the city of Gulfport, in said county, to recover damages for an injury received by appellant through the alleged negligence of one of appellee's employees, while appellant was a customer in appellee's store. There was a trial resulting in a verdict and judgment in appellant's favor in the sum of one dollar. From that judgment, appellant prosecutes this appeal.

Appellant's only assignment of error is the action of the court in overruling her motion for a new trial based upon the ground of the inadequacy of the damages awarded appellant by the verdict of the jury. Appellant's position is that the verdict of the jury was so grossly inadequate to compensate her for the injuries received as to evince passion or prejudice on their part in considering and rendering their verdict. To sustain that contention, appellant relies upon the cases of Scott v. R. R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Co., 105 Miss. 711, 63 So. 219; Murphy v. Cleveland, 106 Miss. 269, 63 So. 572, Ann. Cas. 1916B 454; White v. McRee, 111 Miss. 502, 71 So. 804. It was held in those cases that, where there is a verdict and judgment in favor of a plaintiff establishing liability on the part of a defendant for a tort done the former by the latter, and the verdict, under the evidence, is so inadequate to compensate the plaintiff for the alleged injury as to evince passion or prejudice on the part of the jury, the plaintiff is entitled to a new trial. Appellee does not take issue with appellant as to the soundness of that principle of law, but contends that, under the evidence, this case does not come within the principle.

The evidence on behalf of the appellant tended to show that while the appellant and her mother were in appellee's place of business, as customers, one of appellee's servants negligently threw a bolt of cloth on the counter in the store in such a manner as that it struck appellant on the back and injured her, and, as a result of appellant's injury, her health was impaired and she suffered much. On the other hand, Dr. Sheely, who treated appellant for the alleged injury about three weeks after it occurred, testified, in effect, that, if appellant received the blow on the back, there had been a complete recovery from it; that...