Faulkner v. Middleton

• Decision Date: 11 September 1939
• Docket Number: 33688
• Court: Mississippi Supreme Court
• Parties: FAULKNER et al. v. MIDDLETON

188 So. 565

186 Miss. 355

FAULKNER et al. v. MIDDLETON

No. 33688

Supreme Court of Mississippi, Division A

September 11, 1939

May 15 1939

APPEAL from the circuit court of Warren county HON. R. B. ANDERSON Judge.

Action by Henry Middleton, Jr., a minor, against Marion Faulkner and others to recover damages for the loss of an eye as the result of an injury sustained while working for defendants. From a judgment for plaintiff, defendants appeal and plaintiff cross-appeals on the ground of inadequacy of damages allowed.

Affirmed on the question of liability, and reversed for another trial on the question of damages only.

On suggestion of error. Suggestion of error overruled.

Affirmed on liability, reversed on question of damages. Suggestion of Error Overruled.

R. R Norquist, of Yazoo City, and R. M. Kelly, of Vicksburg, for appellants.

It is admitted that the wedge involved in this case is "a simple tool." The said wedge being a "simple tool " the law in this state relative thereto is as stated in Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228, where it was held that the rule that a master must exercise reasonable care to furnish his servant with safe tools and appliances is not applicable to "simple tools, " where the servant possesses ordinary intelligence and knowledge.

Allen Gravel Co. v. Yarborough, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Bear Creek Milling Co. v. Fountain, 130 Miss. 436, 94 So. 230; Middleton v. Box Co., 38 F.2d 89.

Nor is the liability of the defendants in this case affected by the alleged minority and inexperience of the appellee. The testimony shows that appellee was of sufficient size and brawn to apply for a position as a common laborer in a log camp; therefore, the appellee stood and stands in the same position as an adult.

39 C. J. 383; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Airline Ry. Co. v. Hackney, 115 So. 869.

Under the testimony in this case, the assurance by Guion that said wedge could be safely used, even if such assurance were made, places appellee in no better position than he would have occupied had the testimony been simply that the wedge was unsafe and furnished to the plaintiff by the defendants.

Dobbins v. Lookout Oil & Refining Co., 97 So. 546; Ry. Co. v. Price, 72 Miss. 862, 18 So. 415.

Instruction No. 1 is copied from the opinion rendered in this case on its previous appearance before this court. Considering the fact that the wedge involved in this case is a "simple tool, " this instruction is misleading, and separated as it is from the other parts of the opinion of the court, is reversible error.

Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612; Graves v. Hamilton, 184 So. 56.

Instruction No. 2 wholly eliminates the question of whether or not the wedge was, in fact, unsafe and also the question of whether or not Guion knew, or should have known, that the same was unsafe. It, therefore, excludes from the jury material evidence, and is so misleading as to constitute reversible error, and other instructions granted in this case do not cure such error.

C. & G. R. Co. v. Coleman, 172. Miss. 514, 160 So. 277; Y. & M. V. R. R. v. Hawkins, 159 Miss. 775, 132 So. 742; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201.

The first part of Instruction No. 3 is wholly inapplicable to the case at bar for the reason that the wedge involved was "a simple tool, " and, therefore, such instruction does not correctly announce the law.

Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333; Bear Creek Milling Co. v. Fountain, 130 Miss. 436; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86.

Instruction No. 4 is seriously defective in two respects: first, it is manifestly on the weight of the evidence and is calculated to mislead the jury in that respect, and, second, the jury is told, in effect, that they must find for the plaintiff "if the plaintiff has proven the material allegations of the declaration." This court has repeatedly held that instructions of this nature are erroneous, and that "the jury is entitled to have the law of the case, as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in this case, to patch up and piece out the instructions, is calculated to confuse and mislead them."

Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197.

Instead of being properly guided as to the law in the case by the instructions given on behalf of the plaintiff, the jury was, as a matter of fact, seriously misguided.

Russell v. Williams, 168 Miss. 181, 150 So. 528.

The verdict is against the overwhelming weight of the testimony.

Under all of the declarations of this court, and other courts, we believe we were justified in assuming that if there was any fixed rule of law to which this court was wedded it was the rule, or law, that the verdict of a jury, in fixing amount of damages in case of tort, would not be disturbed by the court unless it was evident that the jury was influenced by passion, prejudice, corruption, improper influence or the like. This seems to be the rule, or law, everywhere.

15 Am. Juris., page 621, sec. 205; Jones v. I. C. R. R. Co., 25 So. 490; St. Louis-San Francisco R. R. Co. v. Bridges, 159 Miss. 268, 131 So. 99; 3 Am. Juris., page 452, sec. 893.

In actions of tort the jury are vested exclusively with the power to determine the amount of damages and they, in their discretion, are to weigh all the circumstances of the case; to consider the age, sex, degree, state, quality, trade or profession of the party injured, as of him who did the injury, and determine accordingly.

Southern R. R. Co. v. Kendrick, 40 Miss. 374; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Burrel v. Ran, 153 Miss. 437, 121 So. 418; Miss. Central R. R. Co. v. Caruth, 51 Miss. 77; Carver v. Eggerton, 157 Miss. 88, 127 So. 727.

In compensation for personal injuries where the damage is based principally upon suffering and pain, the jury is peculiarly the judge of the amount of damage sustained and unless the court reviewing the case on appeal can see that their judgment is manifestly influenced by prejudice or passion or other similar influence their judgment will be sustained. This is especially true where the trial judge approves the verdict.

McDonald v. Moore, 159 Miss. 326, 131 So. 824; J. C. Penney & Co. v. Evans, 160 So. 779, 172 Miss. 900; Miss. Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164.

We have been repeatedly advised by decisions of this court that a verdict rendered against the overwhelming weight of the evidence (as shown by this record) would, upon appeal, be reversed and judgment rendered. Then, too, we believe, for has not this court and other courts so said, that the verdict of a jury in fixing the amount of damages in case of tort would not be disturbed unless evident it was influenced by passion, prejudice or ill will. Of course, all of this law the court has thrashed over to a frazzle, but, we submit, it is law especially pertinent in its application to this particular cause. The trial judge, for whose opinion courts generally express a very high regard in cases of this kind, refused to disturb the verdict.

Can this court believe, and was the jury justified in believing, that the tools furnished plaintiff and furnished the other workmen on the morning of the alleged accident, were procured, not from the tool box kept in the manner and place as testified to by all witnesses, white and black, interested and disinterested, but "from under the house?" If a declaration can be filed and a verdict rendered upon the testimony of a plaintiff and a supporting pal regardless of all other facts and regardless of testimony of all other witnesses in the case, and witnesses in a position to know whereof they testify, then is a defendant absolutely helpless insofar as an appeal is concerned from such a verdict.

In conclusion, we respectfully submit in full for the consideration of the court, the opinion rendered by this court in the case of Pan American Life Ins. Co. v. Jennings, No. 31302 (not officially reported).

Vollor & Teller and J. D. Thames, all of Vicksburg, for appellee.

This is the second appearance of this case in this Honorable Court. Originally, the appellee here appealed from a decision of the learned judge below sustaining demurrers to the declaration filed on his behalf. Concluding that the facts as contained in the declaration disclosed a case of liability, this Honorable Court reversed and remanded the case for trial. Middleton v. Faulkner, 180 Miss. 737, 178 So. 583.

The appellants complain of each and every instruction given on behalf of the appellee. They censure the fact that the first instruction is couched in language similar to that contained in the former opinion of this Honorable Court.

It is true that this court has cautioned that the mere fact that an instruction is copied from an opinion does not insure its correctness and it is true that this court has cautioned against this practice. Nevertheless, regardless of the wording of an instruction, regardless whether it was original with counsel or whether it was an excerpt from an authority, the controlling consideration is: Was it a correct announcement of the law so phrased as to be capable of being understood by the jury?

Graves v. Hamilton, 184 So. 56.

Certainly this instruction was a correct prouncement of the law and considered in light of and together with the instruction granted unto the...