Gillis v. Sonnier, 44017

• Decision Date: 06 June 1966
• Docket Number: No. 44017,44017
• Parties: Elsie P. GILLIS et al. v. Clovis SONNIER, a minor, by H. C. Sonnier, Father and Next Friend.
• Court: Mississippi Supreme Court

Page 311

187 So.2d 311

Elsie P. GILLIS et al. v. Clovis SONNIER, a minor, by H. C. Sonnier, Father and Next Friend.

No. 44017.

Supreme Court of Mississippi.

June 6, 1966.

Rae Bryant, Thomas L. Stennis, II, Morse & Morse, Gulfport, for appellants.

Walter L. Nixon, Jr., Biloxi, for appellees.

JONES, Justice.

Appellee, a monor, by his father and next friend, sued appellants in the Circuit Court of Harrison County for damages because of personal injuries received in an automobile accident in the City of Biloxi, Mississippi, and on trial was awarded a judgment of $20,000, from which judgment appellants appeal. For the reasons hereinafter stated, we affirm the case.

On August 28, 1964, at approximately 1:30 or 2:00 p.m. at the intersection of Miramar Street and Wilkes Avenue, the truck in which appellee was riding, belonging to the appellant, Ivan Kovacevich, and driven by appellant, Tom J. Sonnier, collided in the intersection with a car driven by the appellant, Miss Elsie P. Gillis. Wilkes Avenue runs generally east and west; Miramar runs generally north and south. The truck in which appellee was riding was traveling south on Miramar Street; the car driven by Miss Gillis was traveling west on Wilkes Avenue. The evidence was conflicting as to what occurred at and in the intersection, and the court was fully justified in submitting the issue of negligence as to all appellants to the jury.

The appellant, Miss Gillis, by her attorney, assigns as error: The action of the circuit court in overruling the motion for a new trial, and in refusing appellant's request for a directed verdict; that the verdict of the jury was against the overwhelming weight of the evidence; and, that the court erred in granting instructions on bahalf of appellee and her co-appellants. She did not allege that the verdict was excessive.

The other appellants assign as error: That the court erred in granting appellee's instruction on damages; that the verdict is excessive; and, that the trial court should have granted a new trial.

We have examined the instructions on the question of negligence of the three defendants-appellants. These instructions fairly present the issues to the jury, submitting the different theories as to who entered the intersection first, as to whether they entered the intersection at the same time, and as to whether a proper lookout was kept. On the evidence and with the instructions given, the jury returned its verdict, and a judgment was entered against the three defendants-appellants jointly.

The only question which we think merits discussion is the instruction on damages. The verdict was not excessive and was fully justified by the proof.

The instruction begins:

'The Court instructs the jury for the plaintiff * * * in determining the measure of his damages, you may find for him in an amount which will fully and fairly compensate him for all his injuries, suffering and damages, if any, * * *

There is then stated seven different items

There is then stated sevendifferent items which the jury is authorized to consider.

Appellants challenge this instruction on the ground that it permits pyramiding of damages. Those things most vigorously argued are statements that the jury might consider, (1) wages which the plaintiff has lost and will probagly lost in the future, if any, as a direct result of his being disabled, or his being unable to perform the work which he was able to perform immediately before the collision, and (2) diminishment or impairment of wage earning capacity which plaintiff has suffered as a direct result of abovementioned injuries, if any.

Appellant argues that these two items permit a double recovery for the same items, or a pyramiding of damages. As to wages, the jury is restricted to those which plaintiff has lost or will probably lose in the future as a direct result of being disabled to perform the work which he was able to perform at the time of the injury. The plaintiff was a 15 year old boy, who, at the time of the injury, was employed in delivering newspapers, making his deliveries about 3:00 or 4:00 a.m. The item as to wages was confined to those which he had lost and would probably lose in connection with that work. The jury would have been justified in assuming that this fifteen year old boy, healthy, active, attending achool, would not remain a delivery boy of newspapers all of his life. They had a right to consider that as he grew older and more mature he would very probably engage in other vocations, and, in connection therewith, the jury had a right to consider the diminishment or impairment of his earning capacity. We do not think that the jury, as reasonable men, would have considered this wording to authorize recovery twice for the same item.

The difference between earnings and earning capacity has been recognized by this Court in Walters v. Gilbert, 248 Miss. 77, 158 So.2d 43 (1963). The diffenence has also been recognized by this Court in workmen's compensation cases. See, King v. Westinghouse Elec. Corp., 229 Miss. 830, 92 So.2d 209, 93 So.2d 183 (1959). See also cases listed at 14A Mississippi Digest, Workmen's Compensation, k1624.

Appellants also say the items authorizing the jury to consider (a) the nature and extent of the injuries which plaintiff had suffered as a direct result of the collision and (b) disability, if any, which plaintiff had suffered as a direct and proximate result of his injury, if any, was such as would authorize a doubling or pyramiding of damages. These two items are really one, in that they authorize the jury to consider the young man had received particularly a multiple fracture of the kneecap which required its removal and the disability, if any, which plaintiff suffered as a direct and proximate result of the removal of his kneecap.

Had he lost an entire leg, the jury, of course, would have considered the fact that he had lost a leg and would have considered the disabilities resulting from the loss of that leg.

In 25A C.J.S. Damages § 181, at 203-205 (1966), it is stated:

'The instructions must be so framed as not to mislead the jury into a duplication of the elements of recovery, or into an award of damages twice for the same loss, although instructions enumerating different items of recovery, even if redundant or repetitive in character, are not objectionable if so worded that no reasonable jury would construe them as permitting double or duplicate recovery for single items, as where the alleged duplicating language is used merely in apposition to, and in explanation of, what preceded,...