J.J. Newman Lumber Co. v. Norris

• Decision Date: 29 January 1923
• Docket Number: 22994
• Citation: 130 Miss. 751,94 So. 881
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. NORRIS

94 So. 881

130 Miss. 751

J. J. NEWMAN LUMBER CO. v. NORRIS

No. 22994

Supreme Court of Mississippi

January 29, 1923

1 DAMAGES. Instruction on disfigurement held erroneous as allowing for disfigurement apart from physical suffering.

In a suit for personal injuries, an instruction to the jury on the measure of damages, which authorized them in assessing damages to take into consideration, not only the plaintiff's physical and mental suffering and permanent injury, but in addition any disfigurement of his person, is erroneous in so far as it authorized the jury to consider any disfigurement of the plaintiff's person which might continue after the termination of his physical pain and suffering, because it thereby authorized the jury to award damages for mental anguish alone, unaccompanied with physical suffering. Bonelli v. Branciere, 127 Miss. 556, 90 So. 248.

2 TRIAL. Argument of plaintiff's counsel in action for personal injuries in inflammatory reference to corporation defendant held prejudicial.

It was an abuse of the privilege of advocacy in such case by plaintiff's attorney in his closing argument to use the following language, referring to the defendant: "Who is the J. J. Newman Luniber Company? It is a corporation. It has taken your land. It has taken your homes." Such language was calculated to influence the jury to enhance the amount of damages, notwithstanding on the objection of defendant's counsel the court admonished plaintiff's counsel to "stay in the record."

3 TRIAL. Admonition of court to counsel to "stay in record" in connection with inflammatory reference to defendant corporation held prejudicial.

The said instruction, taken in connection with the said abuse of the privilege of advocacy by plaintiff's attorney, in view of the fact that the judgment in this case is large, was harmful to defendant, and may have caused the jury to materially increase the amount of their verdict.

HON. G WOOD MAGEE, Special Judge.

APPEAL from circuit court of Lamar county, HON. G. WOOD MAGEE Special Judge.

Action by Leseray Norris, by next friend, against the J. J. Newman Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial on question of damages alone.

Reversed and remanded.

Tally & Mayson, for appellant.

Counsel says that the appellant first complains of error in one of the instructions, to-wit: that appearing on page 99, and stating that the first instruction, that one on page 97, is not claimed to be erroneous. It is true that the instruction appearing on page 97, or the first one, is not erroneous, when it is dis-associated with the other, but it is when taken in connection with the one on page 99; to illustrate: the one on page 97 tells the jury, that it should award damages for all physical pain and mental suffering, or what he will suffer in the future, and for any permanent injury. The one on page 99 tells the jury that, if it finds for the plaintiff, it should award him a lump sum, and in estimating the damages, the jury should then take into consideration the scars and disfigurations, and both temporary and permanent injury or injuries. It will be seen then, that the vice in the first instruction is that it is inoculated with the virus of the second. The instructions must be taken together, and the first one is erroneous by reason of the terminology of the second. There is no way to segregate the damages given for scars and disfigurations from the other damages.

The rule is general that all instructions must be construed together. Cumberland Telephone Company etc. v. Jackson, 95 Miss. 79, 48 So. 614; Hill v. Terry, 92 Miss. 671, 46 So. 829. The language used in a particular instruction must be read in connection with all the instructions given in the case. Mississippi Central R. R. Company v. Lott, 118 Miss. --, 80 So. 277. Instructions will be considered as a whole one as limiting as modifying or supplementing others. City of Hattiesburg v. Beverlay, 123 Miss. 759, 86 So. 590; Mutual Life Insurance Company v. Vaughn, 125 Miss. 369, 88 So. 11.

Learned counsel observes on page 10 of his brief: "But even granting for the purpose of argument that the instructions were erroneous, they were harmless and could not have had any possible effect upon the jurors. That this is true is fully evidenced by the nature and location of the injuries. The scars and disfigurations are not in view or constantly exposed to the public gaze, they were and are, secreted and hidden. No man can look upon these scars and disfigurations and cause humiliation to the appellee, unless he chooses voluntarily to expose them. Although the jury were told that they might consider these scars and disfigurations, it would be entirely unnatural that they did consider them. Jurors are human beings, with common knowledge. They knew that these scars and disfigurations could not cause the appellee any humiliation, and knowing this they did not place the amount of the verdict to any extent upon the scars and disfigurations." That in itself is the best argument that the instruction should not have been given.

The presumption attaches that the jury understood and followed the instructions of the court, and that they considered the charge as a whole, or in the instructions as an entirety. Fourth C. J. 771. The giving of erroneous instructions is presumed to be prejudicial, and the burden of proof rests upon the appellee to show affirmatively that no prejudice resulted. Fourth C. J. 914. Where a presumption of prejudice arises, it cannot be disregarded, unless the records affirmatively disclose that the error was not prejudicial, for when error is shown the law supplies and attaches the consequence of the prejudice. Fourth C. J. 911; Ross v. Mimms, 7 S. & M. 121; Jackson v. Jackson, 28 Miss. 674; Solomon v. City Compress Company, 69 Miss. 319, 10 So. 446.

It is to be observed that the appellee did not get an instruction telling the jury that by reason of the disfiguration and scars, that no damages should be given therefor, but on the contrary the instructions specifically directed the jury to assess damages for such scars and disfigurations. Counsel also contends that damages were not excessive and refers to many cases in which the verdict of the jury was not disturbed in reference to damages. In that connection, however, we wish to state that there is no way by which the damages assessed for scars and disfigurations can be segregated from the other damages, and for that reason the cases are not in point. Counsel also says that counsel for appellee in his address to the jury, already referred to in our brief in chief did no harm to appellant's interest. We withhold any observation here, as we did then, on that proposition, and content ourselves with saying that the language used is the best evidence as to whether it was harmful or not, and we submit it on the language alone. As to whether a new trial was properly refused or not, of course we disagree about that; we think that all the errors we have pointed out justify the conclusion that a new trial should have been awarded. We especially, however, commend the argument of learned counsel in trying to get around the palpably erroneous instructions, he is practically driven to the conclusion that they are erroneous. In the first place he says that the Bonelli case is not an authority for the instant case, but he takes a diametrically opposite view in undertaking to show that the jury awarded no damages for scars and disfigurations. One presumption or the other must be erroneous. In conclusion he states all that the court could do would be to reverse the case for a new trial for damages only. Certain it is that the case ought to be reversed, but if the court is of the opinion that it should be reversed for that purpose only, we bow with grace to the decision of the court.

Nat. I. Williamson and Currie & Currie, for appellee.

The main ground relied upon by the appellant for a reversal of this case is an instruction which was granted by the court to the appellee, which reads as follows: "The court charges the jury that should you find for the plaintiff, you should award him a lump sum and in estimating the damages the jury should take into consideration the scars, disfigurations and both temporary and permanent injury or injuries, if any, as shown by the evidence to have been suffered or sustained by the plaintiff; and in arriving at the amount of your verdict, you should not require that the plaintiff should have proven by direct testimony with mathematical certainty the exact amount of the losses, if any, that he suffered or sustained; but that the fixing of the amount is largely committed to the sound discretion of the jury, who should be governed by the testimony in the case and then award to the plaintiff such an amount as the jury may believe from the evidence will be reasonable compensation for all the damages sustained by the plaintiff, if any, not to exceed the amount sued for."

Counsel for the appellant do not quote all of this instruction. They quote the following: "The court charges the jury that should you find for the plaintiff, you should award him a lump sum, and in estimating the damages the jury should take into consideration the scars,...