Hubbard v. Morris, 47041

• Citation: 275 So.2d 858
• Decision Date: 02 April 1973
• Docket Number: No. 47041,47041
• Court: United States State Supreme Court of Mississippi
• Parties: Mary Ellen HUBBARD, a minor by Mary Nell Hubbard, Individually and as mother & next friend v. Thurman R. MORRIS.

Page 858

275 So.2d 858

Mary Ellen HUBBARD, a minor by Mary Nell Hubbard, Individually and as mother & next friend v. Thurman R. MORRIS.

No. 47041.

Supreme Court of Mississippi.

April 2, 1973.

Caldwell, Caldwell & May, Jackson, for appellant.

Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Jackson, McLaurin & Nicols, Brandon, for appellee.

SMITH, Justice:

On September 21, 1967, a pickup truck being operated by appellee, Thurman R. Morris, collided with the rear of a Volkswagen in which appellant, Mary Ellen Hubbard, then a sixteen-year-old high school student, was riding as a passenger. On March 23, 1971, an action for damages for personal injuries alleged to have been sustained in the collision by Mary Ellen Hubbard was begun against Morris in the Circuit Court of Rankin County.

No question was presented by the evidence that the collision was the proximate result of negligence on the part of Morris in the operation of his truck. The trial court instructed the jury 'to find in favor of the plaintiff and to assess her damages in such amount as she is reasonably entitled to.' Following this instruction, the jury returned a verdict for the plaintiff but 'in the sum of $0.00 (no damages). . . .' From the judgment entered pursuant to that verdict, Mary Ellen Hubbard has appealed.

While the evidence presented no question as to the fact that negligence on the part of Morris caused him to strike the rear of the Volkswagen, it is contended by appellee that the evidence, at the very least, created a factual issue as to whether the appellant had been injured, and that this issue had been resolved by the jury's verdict in his favor. In support of that contention, appellee argues that the jury's verdict of 'no damages' was justified by the evidence, with such reasonable inferences as the jury was warranted in drawing from it. It is contended that the jury properly considered in arriving at its verdict that, (1) the damage to the rear of the Volkswagen was slight; (2) plaintiff consulted seven doctors following the incident and before filing suit and only produced as a witness the last one of the seven, who first saw her some two and one-half years after the date of the collision; (3) the evidence of injury was wholly subjective, or very nearly so, and plaintiff's statements of pain and discomfort were self-serving and contradicted by circumstances which showed that she had led a normal and active life in the more than three years which intervened between the date of the collision and the filing of suit; (4) the inference justified by failure to call them that the testimony of the six doctors, who had seen her earlier and who resided in the area, would have been unfavorable to her claim; and, (5) the jury had good opportunity to observe the plaintiff during the course of the trial.

In passing upon appellant's contention that the jury failed to respond to the evidence, or, in effect, that the verdict of 'no damages' was against the overwhelming weight of the evidence, it is necessary to examine in some detail the testimony of the one medical witness who testified. This witness, who saw plaintiff some two and one-half years after the accident, testified as to the history which she had given him and which was to the effect that, ever since the accident, she had experienced pain in the region of the cervical spine. The testimony of this witness indicates...