Dennis v. Prisock, 45287

• Decision Date: 24 March 1969
• Docket Number: No. 45287,45287
• Citation: 221 So.2d 706
• Parties: Frank L. DENNIS, d/b/a Dennis Brothers Contractors, and Jimmy Rhea v. Kay W. PRISOCK.
• Court: Mississippi Supreme Court

Page 706

221 So.2d 706

Frank L. DENNIS, d/b/a Dennis Brothers Contractors, and Jimmy Rhea v. Kay W. PRISOCK.

No. 45287.

Supreme Court of Mississippi.

March 24, 1969.

Rehearing Denied May 5, 1969.

Cary E. Bufkin, Satterfield, Shell, Williams & Buford, Jackson, for appellants.

James S. Gore, Armis E. Hawkins, Houston, Walter M. O'Barr, Okolona, for appellee.

RODGERS, Justice:

This is an appeal from the judgment of the Circuit Court of the First Circuit Court District of Chickasaw County, Mississippi, in favor of appellee, Kay W. Prisock, for damages accruing to her as a result of an alleged personal injury in an automobile collision.

Mrs. Kay W. Prisock filed suit against Frank L. Dennis, a road contractor, and Jimmy Rhea, the driver of a water truck belonging to Frank L. Dennis. The accident occurred on Highway 389 on July 6, 1959.

The facts shown on behalf of Kay W. Prisock, hereafter called the plaintiff, on which the judgment was based, may be summarized as follows.

The plaintiff was driving her automobile north on Highway 389 about 8:30 in the morning at about 20 miles per hour. Jimmy Rhea drove the water truck into the road in front of the plaintiff, and she followed him. The gravel road on which they were traveling was dusty. It was said that Rhea drove the truck over to the right side of the road and stopped. She then attempted to pass the truck, but just at that instant Rhea 'shot back in reverse across the highway at a 45 degree angle, hitting my (her) car.' The truck 'knocked the car backwards' from a 'hard lick.' The truck bent the hood and bumper and fender of the automobile. The front seat was knocked loose in the plaintiff's car and she was thrown forward under the steering wheel. The plaintiff testified that 'it was a terrific jolt.' She said: 'I felt shock and numb all over. When I had my feet braced on the clutch, I felt immediately this place in my spine.' She said she became sick and got a cousin to drive the automobile to find Mr. Dennis. They found Mr. Dennis and he agreed to have her automobile repaired.

On the other hand, appellants contend that the appellee ran into the water truck at a time when it was stopped. It is said that Rhea went with Mrs. Prisock to find Harvey Dennis, and that although he did agree to fix the appellee's automobile, there was very little damage to the car Mrs. Prisock was driving, and at the time she told Mr. Dennis that no one was hurt. There were witnesses to corroborate the testimony of both sides.

The appellee testified that she was sore all over, and was hurting and crimping and 'spotting,' and her breast was hurt. The appellee went to see Dr. Dyer the next day and he treated her for back strain to the lumbar region of her back. When she returned to her home in Jackson, Mississippi, she was treated by Dr. William Davis, who also treated her back trouble. Dr. Davis called Dr. Charles Neill, a neuro-surgeon, into the case in August 1959. Dr. Charles Neill noted appellee's lower back problem at L-5, S-1, but up to that time neither Dr. Dyer nor Dr. Neill had diagnosed appellee's problem as a ruptured disc.

The testimony shows that Mrs. Prisock suffered injuries from an earlier accident when on March 19, 1959, she fell down a flight of stairs and injured her kidneys. The appellants claim that she injured her back at this time and received treatment for the accident until August 10, 1959. On August 20, her back hurt her while she was working in her yard. On September 1, 1959, she had an automobile accident in which her ear was practically torn from her head. Thereafter, she was in another automobile accident on January 31, 1962, and was hospitalized on February 2, 1962; and while she was in the hospital on that occasion it was discovered that she had a ruptured disc. She underwent surgery for this back condition in 1962. She testified that after the surgery her back did not pain her any more.

The appellants have assigned nine alleged reversible errors in the trial of the case in the Circuit Court, some of which have been argued fully, while others have not been pursued in depth. We will discuss those that we find determinative of the issues here involved.

The appellants assert that the trial court did not follow the law of the case established in the prior appeal to this Court.

The case came to this Court on appeal heretofore and we decided the issues before the Court at that time in Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965). In that case we pointed out that the plaintiff's evidence was sufficient to withstand a peremptory instruction and said:

'However, her evidence failed to connect or trace her back injuries with requisite certainty to an efficient cause for which the defendants are responsible. In fact, the great weight of the evidence indicates that there were at least five other accidents in which Mrs. Prisock was involved which were of a considerably more serious nature; and that at the most she received in this particular accident of July 6, 1959 only nominal damages.' 254 Miss. at 582, 181 So.2d at 127-128.

Appellants cite the following cases: Poole v. McCarty, 233 Miss. 724, 103 So.2d 922 (1958); Holcomb v. McClure, 217 Miss. 617, 64 So.2d 689 (1953); and Cochran v. Latimer, 111 Miss. 192, 71 So. 316 (1916); and they contend that these cases are authority for their contention that the trial court should not have permitted a judgment for substantial damages, inasmuch as the Court originally held that the evidence in the former case showed that Mrs. Prisock had only nominal damages in the accident of July 6, 1959.

These cases cited by the appellants are not applicable here, because the evidence shown in the record now before the Court is different from the evidence shown in the original trial. The evidence now before the Court explains the difference between the injuries shown to have occurred in other accidents suffered by the plaintiff and the injury of July 6, 1959, at the time when she contends that her back was injured. For example, it is shown that she did not hurt her back when she hurt her elbow or when she severely cut her ear. There was corroborated evidence in the form of hospital charts written by the doctor who attended the plaintiff after the automobile accident on September 12, 1960. These records show that the plaintiff suffered from 'chronic lumbar sacral sprain,' which she related to the accident of July 6, 1959, and not the accident for which she was then hospitalized. The record now also shows on the second trial that Dr. Charles Neill was called into consultation on August 25, 1959, and at that time he found she had pain in L-5, S-1 which radiated down the left hip and leg. His opinion was that she had 'a back pain problem,' although he did not feel that she had a 'neurosurgical condition at that time.' He also testified that plaintiff developed her back problem from July 6, 1959. The cases cited by the appellants as authority on the question of 'law of the case' on this point are not applicable; for example, in the Cochran v. Latimer case, supra, this Court held that there was no mental incapacity, undue influence, corruption or fraud shown in the original case, and the Court held that, on retrial the chancellor could not retry this issue. Moreover, the opinion in that case shows: 'The competent evidence in this case overwhelmingly refutes this idea * * *.'

We had an opportunity to examine the authorities on 'law of the case' issue in Continental Turpentine and Rosin Company v. Gulf Naval Stores Company, 244 Miss. 465, 142 So.2d 200 (1962). We quoted from 3 Am.Jur. Appeal and Error § 985 (1936), and then we had this to say:

'The opinion of this Court in the first case ws correct under facts shown and by the evidence introduced in that trial. Moreover, it was a separate and distinct action from the present case. If, however, the first case were a branch of the present action, as is contended by the appellants, the Supreme Court would not be bound by the opinion rendered on the first appeal, because, where the evidence on the second trial is materially different on essential elements, the decision on the first appeal will not be taken as the 'law of the case.' (citing many cases)' 244 Miss. at 481, 142 So.2d at 207.

We do not agree with the contention of the appellants that the opinion in the first appeal restricted the trial court to nominal damages mentioned in our opinion in that case under the facts related by the evidence in the second case. We pointed out in the original opinion that the evidence did not show with reasonable probability the connection between the accident in question and her back injury; however, we also pointed out that 'plaintiff's evidence was sufficient to withstand a peremptory instruction.' 254 Miss. at 582, 181 So.2d at 127.

The appellee, Mrs. Prisock, testified that she felt the injury to her spine when the accident occurred on July 6, 1959; that her back was stiff and hurt, and her legs hurt; she also testified that her back was not hurt at any time in any of her other accidents. The defendant argues that she should not have been permitted to tell that her back was not injured in the other accidents suffered by her. This contention is based upon the theory that the evidence was opinion evidence and was admissible only by a medical doctor, and not a layman.

We do not agree with this thesis. Any witness is competent to testify who has evidentiary facts within his personal knowledge, gained through any of his senses. A nonprofessional witness may describe personal injuries. Physical pain, weakness, exhaustion and the like are matters one may testify about. Whiddon v. Malone, 220 Ala. 220, 124 So. 516 (1929); Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657 (1922); Vincent-Wilday, Inc. v. Strait, 273 App.Div. 1054, 79 N.Y.S.2d 811 (1948).

The textwriter in 32 C.J.S. Evidence § 546(22) (1964) has this to say on this subject:

'While a nonexpert or lay...