Chapman v. Powers

Decision Date16 April 1928
Docket Number27067
Citation116 So. 609,150 Miss. 687
CourtMississippi Supreme Court
PartiesCHAPMAN v. POWERS. [*]

Division B

1. NEW TRIAL. In passing on question whether verdict is result of passion or prejudice, court cannot substitute its judgment for that of jury.

In passing on question whether verdict of jury in given case is result of passion or prejudice, court is not authorized to substitute its judgment for that of jury, since amount of damages to be awarded is peculiarly within province of jury.

2. NEW TRIAL. Court should award new trial where, if excessive or inadequate verdict stands, there will be manifest miscarriage of justice.

Court should award new trial where, to let verdict of jury, which is either excessive or inadequate, stand, it is apparent to court that there will be manifest miscarriage of justice.

3. NEW TRIAL. Five hundred dollars for fractured rib, lacerated scalp, and bruises held not so inadequate as to justify a new trial.

Verdict for five hundred dollars to guest in automobile, injured when automobile ran into pile of gravel in street and sustaining lacerated scalp and bruises about her eyes and injured nose fractured rib, and other bruises, where there was evidence tending to show injuries were not permanent and where jury could have found from evidence that large part of negligence contributing to injuries was her own negligence in riding in car while driver was intoxicated, held not so inadequate as to manifest passion or prejudice on part of jury, so as to justify a new trial.

4. NEGLIGENCE. If plaintiff's husband was intoxicated and she, knowing it, rode in automobile driven by him husband's negligence became her negligence.

If plaintiff's husband because of drunkenness was unfit to drive car and plaintiff knew it and rode in automobile driven by him as guest, her husband's negligence became her negligence.

5. NEGLIGENCE. If jury found guest in automobile was chargeable with part of negligence contributing to injuries, they could reduce her damages proportionately.

If jury found guest in automobile driven by husband was chargeable with large part of negligence proximately contributing to her injuries in riding in automobile with her husband in intoxicated condition so that car was driven into gravel pile, jury were authorized to reduce her damages proportionately.

6 DAMAGES. Plaintiff could not recover sums expended for medical bills in personal injury case, where declaration did not set out maximum amount of such bills.

In action for personal injuries sustained when automobile in which plaintiff was riding ran into pile of gravel in street, plaintiff could not recover sums expended for medical bills, where declaration did not set out maximum amount of such bills and evidence as to her physician's bills paid on account of injuries was properly excluded, since medical expenses in such a case are special or consequential damages, and, if such damages are claimed, defendant must be informed of it in declaration.

HON. W. A. WHITE, Judge.

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

Action by Mrs. Jennie Chapman against Charles Powers, doing business as the Powers Construction Company. From a judgment for plaintiff for part of sum demanded, she appeals. Affirmed.

Affirmed.

Gex & Russell, for appellant.

The court will grant a new trial on the issue of the measure of damages alone, if, after considering the testimony in the case the court concludes that the award of damages fixed by the jury is inadequate. Murphy v. Town of Cleveland, 106 Miss. 269; Hicks v. Corso & Cefalu, 131 Miss. 659; Walker Bros. v. Nix, 115 Miss. 199; Scott v. Y. & M. V. R. R., 103 Miss. 522; Coccaro v. Light & Traction Co., 126 Miss. 713; also 141 Miss. 579. The best considered cases adhere to the more rational rule which permits proof of such damages as usually and ordinarily result from an alleged injury, without specifically setting forth every item of damages in detail, unless and until same is required in response to a demand for a bill of particulars. Evansville & T. H. R. Co. v. Holcomb, decided January 2, 1894 (Ind.), 36 N.E. 40. In Leonard v. Baltimore & O. R. Co. (Pa.), 102, A. 279, the supreme court of Pennsylvania, on June 30, 1917 stated: "Damages of a special nature and not the usual consequence of the wrong complained of, however must be specially averred, that defendant may be informed of the claim and given an opportunity to prepare his defense. 13 Cyc. 176; Hart v. Evans, 8 Pa. 12; Laing v. Colder, 8 Pa. 479. But where the action is for injuries to the person the jury may consider, without special averment, pain and suffering, expense incurred for medical treatment and loss of time for inability to work at the usual occupation of the injured person, inasmuch as these are the natural and usual results of an injury. Laing v. Colder, supra; Penns. & Ohio Canal Co. v. Graham, 63 Pa. 290, 3 Am. Rep. 549." Chicago & E. R. Co. v. Steele (Ind.), 118 N.E. 824, decided February 27, 1918; Southern Ry. Co. v. U. S. Casualty Co., decided on June 14, 1923, by the supreme court of Virginia, 118 S.E. 266; 8 R. C. L. 623; Biddle et al. v. Riley (Ark.), 176 S.W. 136; Hopkins v. Atlantic, etc., R. Co. (N. H.), 172 Am. Dec. 288; Anatokol v. Barber (Mass.), 143 N.E. 350. It cannot be seriously insisted by appellee that appellant was not seriously and apparently permanently injured, nor that in such cases the attention of a physician would not be required and engaged by any person suffering the injuries shown to have been sustained by appellant. Appellee cannot contend that he was surprised by the offer to prove a medical bill. On the contrary, he must have anticipated that such evidence would in the very nature of the case be offered.

Rushing & Guice and John L. Heiss, for appellee.

It will be seen, that outside of slight bruises, the only clear injuries caused by the accident were the scalp wound and the fractured seventh rib. The jury not only heard the testimony as to the scalp wound, but saw the scar and were certainly competent to judge of the gravity of this injury. They were likewise the best judges of this testimony of the internal injuries to the nose and side; they saw a case where the attendant physician had never heard of these complaints until a year after he discharged the case, when, on the eve of a jury trial, he was again called in to listen to the patient's statement of these things of which he could only judge by what she told him. The jury had a right to disbelieve this nose and side trouble were real or to believe it was not shown to be due to the accident complained of.

We therefore submit to the court that under the case of Hicks v. Corso & Cefalu, 131 Miss. 659, 95 So. 636, and the remaining three cases cited by the appellant, that before reversing a case as to damages alone, this court will not only have to believe that the damages were grossly inadequate, but it will further have to satisfy itself from the nature and type of injury as well as all of the circumstances shown in the record before it, and while, in the instant case, a jury could have assessed damages in excess of five hundred dollars, still there is nothing to positively show to the court that these damages were from the standpoint of the jury, which are the sole judges of the damages grossly inadequate.

We understand the law to be that the court will not put themselves in the position of a jury to determine what the jury should have done, unless the action of the jury in assessing damages is such as to show such a lack of appreciation of the extent of the injuries that it was tantamount to passion or prejudice against the plaintiff and in this case the appellant can rely on no such fact. We further submit to the court that in considering the amount of the verdict to be given to the appellant that the jury were entitled to consider the facts that this appellant had driven late at night through a dark part of Pass Christian with her husband, who at the time she entered the car with him was known by her to be intoxicated, or by the use of reasonable diligence on her part she could have ascertained this fact, and if she was charged by the jury with such knowledge, and we submit that the jury could have charged her with this knowledge, then the jury had a right to diminish the amount of her award, by the negligence of which she had been guilty in riding late at night, on Christmas eve night, with a man who was at the time violating the laws of the state of Mississippi by driving an automobile while intoxicated.

In support of their contention counsel cite several courts, which hold that when a serious injury is complained of it is not necessary that medical services should be pleaded in order that evidence may be introduced and such damages proved. The reason stated in these cases is that the natural consequence of an injury is the expense of a physician, especially where the injury is of a serious nature. Counsel have therein cited all the authorities given by 17 C. J. 1018, on what that authority states to be a minority holding on this point. In note 95, 17 C. J. 1018, there are cited the decisions of twelve states holding that medical bills must be specifically pleaded in order that proof may be introduced thereon. Atlantic Coast Line R. Co. v. Watson, 110 So. 316; Williams v. Haynes (Ala.), 77 So. 915; Hanchey v. Brunson (Ala.), 56 So. 971.

Argued orally by Bryan Russell, for appellant.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Harrison county against appellee to recover damages for a personal injury received by her, alleged to have been caused by the negligence of the appellee in leaving an unguarded and unlighted pile of gravel, in Second...

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