Dennis v. Prisock, No. 45287

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: RODGERS; ETHRIDGE
• Citation: 221 So.2d 706
• Decision Date: 24 March 1969
• Docket Number: No. 45287
• Parties: Frank L. DENNIS, d/b/a Dennis Brothers Contractors, and Jimmy Rhea v. Kay W. PRISOCK.

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.

Page 707

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.

Page 708

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

Page 709

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...