Catholic Diocese of Natchez-Jackson v. Jaquith

• Decision Date: 09 June 1969
• Docket Number: No. 45349,NATCHEZ-JACKSON,45349
• Citation: 224 So.2d 216
• Parties: The CATHOLIC DIOCESE OF, operating as St. Joseph School, Defendant/Appellant, v. Cecil J. JAQUITH, Mrs. Betty B. Jaquith, Cecil J. Jaquith, Jr., Ann Jaquith Wilson, Margaret Lynn Jaquith, a minor, appearing by Cecil J. Jaquith, Father and Next Friend, Plaintiffs/Appellees.
• Court: Mississippi Supreme Court

Page 216

224 So.2d 216

The CATHOLIC DIOCESE OF NATCHEZ-JACKSON, operating as St.

Joseph School, Defendant/Appellant, v. Cecil J. JAQUITH, Mrs. Betty B. Jaquith, Cecil J. Jaquith,

Jr., Ann Jaquith Wilson, Margaret Lynn Jaquith, a

minor, appearing by Cecil J. Jaquith,

Father and Next Friend,

Plaintiffs/Appellees.

No. 45349.

Supreme Court of Mississippi.

June 9, 1969.

Rehearing Denied July 3, 1969.

Satterfield, Shell, Williams & Buford, Carey E. Bufkin, James P. Cothren, Jackson, for defendant-appellant.

Bowling & Coleman, Jackson, for plaintiffs-appellees.

PATTERSON, Justice:

This cause began in the Circuit Court, First Judicial District of Hinds County, when the plaintiffs, Cecil J. Jaquith and family, brought suit against the defendant, the Catholic Diocese of Natchez-Jackson, for the wrongful death of Robert Earl Jaquith, their son and brother, respectively. The case was tried before a jury which returned a verdict of $50,000 for the plaintiffs. From that verdict and judgment the defendant appeals to this Court.

On September 13, 1967, Robert Earl Jaquith sustained a fatal head injury while playing basketball during a physical education class in the gymnasium of St. Joseph High School in Jackson, Mississippi. The injury occurred when young Jaquith lost his balance while attempting to score a goal. He had 'dribbled' the ball for some distance and without interference from other players jumped into the air in an attempt to make a 'layup' shot. As he descended, he lost his balance and his forward momentum carried him out of bounds and into the concrete wall behind the goal. His head struck the wall and then the floor. There were no protective mats on the gymnasium wall at the time of the accident.

Jaquith was stunned by the fall, but was revived shortly thereafter by the physical education instructor. He was semi-conscious at this time and complained that his head hurt. When it was concluded that his condition was serious, the instructor transported the youth to St. Dominic's Hospital by automobile. During this interval he continued to complain of pain in his head and became nauseated. He was admitted to the hospital and remained in a semi-conscious state the remainder of that day and the following night. He was unable to recognize his parents during this time and when the pain did not subside, it was determined that he should undergo surgery. The surgery revealed a blood clot in the right temporal area of the brain accompanied by swelling and a certain amount of dead tissue. He died on September 15, 1967, without regaining consciousness following the surgery.

Suit was filed by the surviving members of his family for damages. They alleged that the defendant was negligent and liable in failing to provide protective padding behind the goal in its gymnasium so as to prevent injuries to athletes utilizing the facility, and that this negligence was the proximate cause of the injury resulting in the death of young Jaquith; that the defendant was negligent in failing to instruct the deceased as to the danger of the concrete wall; and further, that defendant was negligent in constructing the wall from concrete blocks. The trial centered upon the theory of negligence due to the defendant's failure to provide protective padding upon the wall to the rear of the goal.

During the trial the defendant made numerous objections to the introduction of evidence. The introduction of such evidence, or the attempts to do so and the argument of appellees' counsel to the jury, are now the primary subjects of this appeal. The appellant assigns as error the following:

1. The introduction of two books or pamphlets concerning custom or practice of other gymnasiums in using safety mats.

2. The introduction of evidence to show custom, usage and practice without the proper predicate having been laid.

3. The court should have declared a mistrial because of the nature of statements made by appellees' attorney during voir dire examination, the course of the trial, and closing arguments.

4. The court's refusal to grant a directed verdict, peremptory instruction or judgment notwithstanding the verdict.

5. The verdict was against the weight of the evidence.

6. The verdict is grossly excessive.

7. The granting of certain instructions for the plaintiff and refusal to grant certain instructions for the defendant.

8. The refusal of the court to grant a new trial.

By the first assignment of error the appellant maintains that the lower court erred in permitting the introduction into evidence of the statement, 'Gym walls should be equipped with wall mat protection,' found on page 14 of a pamphlet entitled 'Youth Fitness for Mississippi,' as well as the statement, 'For safety reasons, padding should be installed on all walls in back of baskets,' found on page 99 of a book entitled 'Planning Areas and Facilities for Health, Physical Education and Recreation.' These publications were introduced as exhibits to the testimony of Kermit Davis, the Assistant Supervisor of Physical Education with School Health Services, a branch of the Mississippi State Board of Education. This agency serves in an advisory capacity to secondary schools within the state in regard to their physical education programs. The pamphlet, 'Youth Fitness for Mississippi,' was prepared by Russell Lyons in his capacity as State Superintendent of School Health Services and was used by the agency in carrying out it functions. The second publication was prepared by the American Association for Health and Physical Education which is the national counterpart of the state organization which employed Mr. Davis and Mr. Lyons. The appellant objected to the admissibility of the quoted portions of both documents, but such objections were overruled, the judge stating that they were admitted '* * * to show the custom of the community and so forth in reference to this particular question and for that reason I am admitting it and for no other reason.'

The appellant contends that the introduction of these books was erroneous because (1) the authors were not present for cross-examination, (2) they were not introduced to substantiate the opinion of the witness, and (3) the documents were not shown to be obligatory on the secondary schools of Mississippi nor upon the appellant particularly. The general rule in this state, as elsewhere, is that books, pamphlets and treatises are not admissible into evidence to prove facts contained therein since they are generally considered hearsay evidence dealing with subjects on which living witnesses could be called to testify. 29 Am.Jur.2d Evidence § 884 (1967). There are exceptions to this general exclusionary rule whereby some documents dealing with the more exact sciences may be admitted into evidence. This rule was stated as follows in the early case of Tucker v. Donald, 60 Miss. 460, 470 (1882):

There is a class of books which are admitted before the jury as primary evidence; but these are such as to relate to sciences deemed exact, or such as by long use in the practical affairs of life have come to be accepted as standard and unvarying authority in determining the action of those who used them.

Another exception to this general exclusionary rule is governmental safety codes and regulations. A majority of the states follow the rule that such codes are admissible only when they have been given compulsory force by the state legislatures. See 75 A.L.R.2d 778 (1961) and 30 Am.Jur.2d Evidence § 1003 (1967). The minority viewpoint that safety codes, rules, and regulations or standards which are issued by governmental bodies, but have no binding force, are admissible into evidence as an expert opinion, is followed in a few states and is expressed in such decisions as City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637 (1939); Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677 (1929). Mississippi has followed the majority rule for a number of years and we think properly so. See Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928 (1934). See also Crouch v. Mississippi Power & Light Co., 193 So.2d 144 (Miss.1966) and Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2, 160 So.2d 908 (1963).

In responding to this assignment of error we do not attempt to distinguish the present situation from those which exist in the cases cited by the appellant. However, the basis for a clear distinction exists since the books are not in the nature of scientific knowledge, expert treatise or safety code as is true in the cited cases. For the purpose of this decision we will assume, but not decide, that the introduction of the material in question was probably erroneous under our rules of evidence.

It is our opinion, however, that the admission of the statements in the books was harmless error under Mississippi Supreme Court Rule 11 (1967), and therefore, is not sufficient to require a reversal. Rule 11 states:

No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.

In 5 Am.Jur.2d Appeal and Error section 776 (1962) we find the following discussion in regard to harmless error:

To warrant reversal, two elements must be shown: error, and injury to the party appealing. Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case; it is prejudicial, and ground for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable, and will be...