Davis v. McDonald

• Decision Date: 24 January 1938
• Docket Number: 32964
• Citation: 180 Miss. 780,178 So. 467
• Court: Mississippi Supreme Court
• Parties: DAVIS et al. v. MCDONALD

178 So. 467

180 Miss. 780

DAVIS et al. v. MCDONALD

No. 32964

Supreme Court of Mississippi

January 24, 1938

Division B

1. APPEAL AND ERROR.

While Supreme Court gives jury's verdict great consideration on appeal, duty rests on such court to supervise jury trials and scrutinize and consider verdicts to determine whether they are supported toy evidence and amounts thereof are reasonable or greatly excessive.

2. APPEAL AND ERROR.

Where liability of defendant in personal injury suit is established and jury's verdict for plaintiff is deemed excessive Supreme Court may grant new trial on whole case, or fix maximum amount which it will permit to stand, give plaintiff right to enter remittitur therefor, and affirm judgment.

3 DAMAGES.

A jury's verdict, awarding $12,500 damages to 75 year old brick layer, suffering from arthritis, for several broken ribs and lacerated and dislocated thumb disabling him from using hand in his occupation, at which he earned about $150 a month, held excessive by $5,000.

HON. W A. WHITE, Judge.

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

Action by John T. McDonald against Cecil B. Davis and others for injuries sustained in an automobile collision. Judgment for plaintiff, and defendants appeal, Affirmed if plaintiff enters remittitur, and otherwise reversed and remanded.

Affirmed with remittitur.

Leathars, Wallace & Greeves, of Gulfport, for appellants:

The evidence disclosed by the record shows that the appellee sustained a painful, but temporary, personal injury as the direct result of the collison, and that he suffered much pain and lost considerable time from the effects thereof. The record does not show that he incurred any expenses in effecting a cure of the injury.

The court erred in overruling the motion of the defendants for a new trial for the reasons set forth in the third ground stated in the motion, as follows: "The verdict of the jury. is so grossly excessive as to clearly evince passion, prejudice and caprice on the part of the jury against the defendants."

We are conscious of the well settled principle of law which provides that, in a case of the nature of the one at bar, the amount of the award of damages rests largely within the discretion of the jury, and that a verdict of a jury in such cases is to be given great weight by the court in its consideration of the question of the excessiveness vel non of the award of damages; but we are also conscious of the fact that, throughout the entire history of jury trials the courts have exercised a supervisory power over them, and have granted new trials whenever it reasonably appeared to them that the jury had been partial or prejudiced, or had not responded to reason upon the evidence produced. And, too, it is so well settled in American Jurisprudence that the duty of the court in supervising trials by jury is such a vital part of a jury trial that no court may refuse to exercise such power whenever it is convinced of its duty so to do.

Beard v. Williams, 172 Miss. 880, 161 So. 750.

It is well settled that, in a case of the nature of the one at bar, the measure of damages for a personal injury is an amount sufficient, so far as is susceptible of estimate in money, to justly compensate the plaintiff for all actual losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for pain and suffering, for loss of time, and for medical attendance and support during the period of disablement.

M. & O. R. R. Co. v. Carpenter, 104 Miss. 706, 61 So. 693.

But the application of the foregoing principle of law in respect to the measure of compensatory damages is limited by the well settled doctrine of natural and proximate consequences, which provides that the plaintiff can recover only such damages as are shown by the evidence, with reasonable certainty, to have been the natural and proximate consequence of the wrongful act complained of.

Leek Milling Co. v. Langford, 81 Miss. 728, 33 So. 492; L. & N. R. R. Co. w, McArthur, 137 Miss. 780, 102 So. 842 L. & N. R. R. Co. v. Blair, 154 Miss. 680, 123 So. 859.

The application of the principle of law adverted to is further limited by the doctrine of certainty of proof, which provides that the damages recovered in any case must be shown by the evidence with reasonable certainty both as to their nature and in respect to the cause from which they proceed.

I. C. R. R. Co. v. Williams, 144 Miss. 804, 110 So. 510; S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650; State Highway Commission v. Brown, 168 So. 277.

While it must be conceded that the appellee is legally entitled to recover damages for the pain and suffering sustained by him as a natural and proximate result of the accident, and that, in ordinary cases of the nature of this one, the amount of the award of damages to the plaintiff generally rests largely within the discretion of the jury, all of the authorities on the subject concur in holding that the award must be just and reasonable, in view of all of the attending circumstances.

While this court, in its decisions dealing with the verdicts of juries in cases of the nature of this one, has not employed metaphysical niceties in making and stating distinctions between those verdicts which have met the requirements above stated and those verdicts which have not, its adjudications demonstrate beyond peradventure of doubt that the court is ever vigilant to correct the evils found in verdicts, where the evidence upon which they rest demonstrates that they are the result of passion, caprice and prejudice on the parts of the jurors rendering them, whether the evil operates in favor of the plaintiff or against him.

Y. & M. V. R. R. Co. v. Smith, 82 Miss. 656, 35 So. 168; Bonelli v. Branciere, 127 Miss. 565, 90 So. 245.

Apprehended consequences from an injury which are, in their nature, contingent, speculative or merely possible, cannot be legally considered in computing the damages to be awarded for such consequences.

S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769.

In respect of the testimony of Dr. Holbrook, an expert witness introduced by the appellee, we confidently assert that the court will see from the record of his testimony that his status, as a witness; is well within the observations made by Lord Campbell, in speaking of expert witnesses in judicial trials, wherein he observed: "They come with a bias on their minds to support the cause in which they are embarked, and hardly any weight should be given to their evidence."

10 Clark & Finneley's Reports, English House of Lords.

We are mindful of the fact that the excessiveness vel non of a verdict awarding damages in any given case must be decided by the court on the record of the evidence upon which such verdict rests, and that other adjudications in similar cases are not binding upon the court; but, since it is the general rule that appellate courts consider such adjudications as informative, we take the liberty of citing a few decisions in cases similar to the one at bar, for the information of the court.

City of Vicksburg v. Scott, 168 Miss. 562, 151 So. 914; City of Jackson v. Carver, 82 Miss. 583, 35 So. 157; Jay-Jay Chevrolet Co. v. Adcock, 172 So. 878; Burchfield v. West, 182 N.W. 954; Bratonja v. Wisconsin lee & Coal Co., 196 N.W. 244; Lloyd v. Breslin, 128 A. 883; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65.

In respect to the legal right of the appellee to recover any damages on account of expenses incurred by him in effecting a cure of his injury, it is respectfully submitted that he is not legally entitled to recover any such damages under the declaration and upon the evidence adduced.

McGehee v. Laurel Light & Ry. Co., 113 Miss. 603, 74 So. 434; Walker Co. v. Davis, 128 So. 145; Friede v. Toye Bros. Yellow Cab Co., 157 So. 48; Gaines v. Teche Lines, 176 So. 134.

We especially direct the court's attention to the well know fact that the work of a brick mason, and that of a concrete worker, is hard, heavy and laborious in character; and that a man who has attained the advanced age of seventy-five years has a very short life expectancy, as is shown by the American Experience Table of Mortality, even if he be a healthy...