Mobile & Ohio Railroad Co. v. Carpenter

Decision Date21 April 1913
Docket Number15,840
Citation104 Miss. 706,61 So. 693
PartiesMOBILE & OHIO RAILROAD CO. v. JOSEPH H. CARPENTER
CourtMississippi Supreme Court

APPEAL from the circuit court of Prentiss county, HON. J. H MITCHELL, Judge.

Suit by Joseph H. Carpenter against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

This is an appeal from a judgment for the plaintiff for two thousand dollars for injuries received by him while in the employ of the defendant railroad company. The opinion states the facts.

In the concluding argument of counsel for plaintiff he used the following language, to which exceptions were at the time taken: "If a statement was made by a railroad man as to how and where an injury happened, every railroad man from Mobile to St. Louis would swear it to be exactly that way; if one of them would say a spike was driven in the third tie on a trestle, every railroad man would swear it was that way; if one of them should swear a man was hurt by a certain post every railroad man would swear it was that way."

The action of the court in granting the following instructions at the request of the plaintiff is also assigned as error:

"No 1. The court instructs the jury, for the plaintiff, that if they find for the plaintiff they shall award him damages sufficient to compensate him in full for the injuries, if any, as shown by the evidence to have been sustained by him also for the pain and suffering, if any, shown by the evidence to have been endured by him in consequence of the injury; also for the loss of time and loss of earning capacity, if any, shown by the evidence to have been sustained by him on account of the injury; and also to compensate the plaintiff in full for the permanent damage, if any, shown by the evidence to have been sustained by him in consequence of the injury: Provided, however, that if the jury believe from the evidence the plaintiff in his conduct at the time of the alleged injury was guilty of contributory negligence, then the sum total of the damages he would otherwise be entitled to shall be diminished in proportion to the amount of negligence attributed to him.

"No 2. The court instructs the jury, for the plaintiff, that if they believe from a preponderance of the evidence that the defendant company by its employees negligently backed its cars on the switch where plaintiff was engaged in the performance of his duties in loading logs on the cars as alleged, and that as a result of said negligence plaintiff sustained personal injuries, you will find for the plaintiff, and assess his damages in such amount as you may believe from the testimony he sustained, not to exceed the amount sued for."

Affirmed.

W. D. Anderson, for appellant.

Over the objection of appellant, W. A. Tims, appellee's kinsman, and in whose home appellee lived, was permitted to testify as follows:

Q. Mr. Tims, what has been the condition of Joe Carpenter since he got hurt, with reference to pains? Has he been in your home since then? A. Yes, sir, that has been his home since then.

Q. What do you know of his suffering with these injuries? A. In what way?

Q. Any way. A. I just know from the complaints he makes. (Objected to. Overruled as to complaints.)

Q. At what times have you heard him complain? A. I have heard him complain a number of times about it, at different periods.

Q. Well at what time has there ever been any complaints made to you or in your hearing at night? (Objected to these statements as being indefinite as to time.)

Q. Since the injury? (Overruled, to which the defendant then and there duly excepted at the time.) A. I have heard him through the night groaning and turning over and being restless.

Q. How often and to what extent do you hear that Mr. Tims? A. Well, I will have to make you a little explanation to tell you about that.

Q. All right. A. This summer my family were camping out there and we were out in the bend and this wagon had a platform under there that Joe slept on. I was at Rienzi about half the time, and about half the time out there. I had a cot on the side of the wagon and I slept there in a few feet of him, and at different times in the night he would disturb me and wake me up by his groaning.

Q. Mr. Boone (appellant's attorney), what month was that? A. That has been since the first of July. We have been out there until about two weeks ago. (Objected to. Objection overruled, to which the defendant then and there duly excepted at the time.)

Q. Mr. Tims, what complaints have you heard prior to that time? A. I have heard complaints of his head hurting him before that time.

Q. How often and when, Mr. Tims? A. Well, I couldn't say how often; but any time he seems to get warm, he would seem to complain about his head hurting. I have advised him not to get warm.

Dr. Googe, over the objection of appellant, was permitted to testify as to complaints made by the appellee, without fixing the time definite when such compaints were made.

The action of the court, in admitting this testimony, which must have great weight with the jury, is assigned as error.

Now we want the court to get clearly in mind the exact circumstances under which these complaints of suffering were made by the appellee, as testified to by the witness Tims.

The alleged injury occurred on the 13th of August, 1910. The declaration in this case was filed on the 22nd of August, 1910. The last trial took place at the October term, 1911. There had been a trial, resulting in a hung jury before. It will be seen, therefore, that the expressions of pain and suffering by the appellee, testified to by the witness Tims, took place after the bringing of this suit, and some of them, evidently after the first trial, and some (and those expressions must have been most potent with the jury) during July, 1911, while Mr. Tims' family, including the appellee, were camping near Jancito (when the political gathering was held there.)

We are aware of the case of Mississippi Central Railway Co. v. Turnage, 95 Miss. 854, 49 So. 840, in which it was held that in an action for personal injury, witnesses may testify to declarations and expressions of present pain and suffering by the person injured, even though such declarations and expressions, have occurred several months prior to the trial. We have no quarrel with the court on account of the principle therein announced. However, that case is not decisive of this question. In reviewing the authorities in the opinion in that case (p. 861), the court says:

"In the case of Jones v. Portland, 88 Mich. 598, all that was decided was, that when a physician had been employed for the express purpose of making that physician a witness in the suit, exclamations of pain made by the injured party during the examination cannot be testified to by the physician so employed for the express purpose. The holding in the case just cited is manifestly correct since the court held merely that one could not be employed for the purpose solely of making testimony, and thus make admissible declarations of pain and suffering made to the party so employed, etc."

To sustain the decision of the court of Mississippi Central Railway Co. v. Turnage, supra, 3 Wigmore on Evidence, pp. 2210 and 2211, sections 1718-1719, are cited. In that same chapter of Wigmore, page 2214, section 1721, will be found a discussion of the question here involved, and that is whether witnesses may testify to declarations of pain and suffering, post litem motam. The conclusion of the author is that:

"The fictitious and untrustworthy nature of a great deal of such evidence, in personal injury litigation, is a matter of common knowledge, and some power to exclude it ought to exist. Its exclusion ought to depend on the circumstances of each case, and to be left to the trial court's discretion. A flexible rule of this sort is indicated by some courts."

The arthor also says that if the analogies of other exceptions to the incompetency of hearsay evidence be followed: "All statements made post litem motam are to be rejected as untrustworthy."

We ask the court's consideration of the reasons given by Wigmore, for the admission of hearsay statements and declaration of pain and suffering. They are not admitted on the ground that they are a part of the res gestae, but out of necessity; such expressions and declarations are admitted as verbal acts; as spontaneous expressions of pain and suffering. 3 Wigmore, pp. 2228-2229, sections 1718 and 1719.

Our judgment is, our court has gone far enough in the Turnage case. The question here is, will the court go a step further and hold that declarations of pain and suffering made by the injured party, after the bringing of his suit, and even after there has been one trial of his case, may be testified to by witnesses who heard them? Certainly under such circumstances there is often a motive on the part of the party injured to make false declarations and expressions of pain and suffering. In other words, every incentive to make testimony for himself. If, as held in the Turnage case, the examining physician, who examines the injured party for the purpose of being a witness, will not be heard, why should other witnesses be heard to testify to such declarations and expressions made after the bringing of the suit, with every inducement on the part of the injured party to falsify? The court will find that the testimony of Mr. Tims, and Dr. Googe along this line, must have been very influential with the jury. Dr. Googe's testimony, as to the appearance of appellee's wounds immediately after he claimed to have received them, left it in doubt whether he had really been seriously wounded. However, his declarations of pain and suffering testified to, made after the bringing of his...

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