Nelms & Blum Co. v. Fink

• Citation: 131 So. 817,159 Miss. 372
• Decision Date: 12 January 1930
• Docket Number: 29117
• Parties: NELMS & BLUM CO. v. FINK
• Court: United States State Supreme Court of Mississippi

131 So. 817

159 Miss. 372

NELMS & BLUM CO. v. FINK

No. 29117

Supreme Court of Mississippi

January 12, 1930

Division B

1. MASTER AND SERVANT. Mercantile company, which maintained vertical wrapping paper machine with small base without having appliance securely fastened to counter, held negligent in action for injuries to clerk.

It is negligence for a mercantile company to place upon the counter a vertical machine containing wrapping paper which is thirty-six inches in height with only a base of nine by twelve inches, and to which is attached a roll of wrapping paper, without having the appliance securely fastened to the counter, and where a person is injured thereby while in the performance of duties around such machine at the direction of the employers such person injured may recover for such injuries.

2. APPEAL AND ERROR. Counsel's incorrect statement, on redirect examination, as to suggestions of opposing counsel did not constitute reversible error when form of question was changed before ruling was made.

In the trial of a case where a medical witness was being examined as to tests made by such witness from spinal fluid of a person injured and was asked by defendant on cross-examination if the Wasserman test was made and what the result of the test shows, it is error on redirect examination for counsel to state "he suggested that this lady was suffering from sinus trouble, said she was a neurotic and a syphilitic and suggested that she was malingering;" but it is not reversible error where a ruling was not made and the form of the question changed and after such change objection thereto overruled.

3. APPEAL AND ERROR. Jury are supposed to be men of intelligence. sound judgment, and good character.

The jury in the trial court are supposed to be men of intelligence, sound judgment, and good character, and they usually know how to evaluate questions and answers propounded by attorneys in the trial of a lawsuit.

4. APPEAL AND ERROR. Where instructions fairly give law as applied to facts, Supreme Court will not reverse for technical errors or imperfect phraseology.

Instructions to juries are practical things and do not require verbal refinement or rhetorical precision. They are given to practical men as practical guides in lawsuits, and if the substance of the law is fairly given as applied to the facts the Supreme Court will not reverse, even though there may be technical errors or imperfect phraseology.

5. APPEAL AND ERROR. Supreme Court will not reverse on account of argument of counsel, unless it is palpably evident that there has been prejudice injected or misstatement of facts.

On questions of objections to argument of counsel in a cause a trial judge has a peculiar and a distinct advantage of the judges of this court in judging of the effect and character of the argument, and unless it is palpably evident that there has been prejudice harmful to the cause injected or a misstatement of the facts by counsel, we will not reverse.

6 TRIAL. Counsel may comment upon evidence or any fact of which court will take judicial knowledge, and may draw conclusions therefrom; court will not undertake to control counsel's argument so long as he does not become abusive, or go outside record as to facts or inject prejudice.

Counsel necessarily have large discretion as to their arguments, they may comment upon any fact introduced in evidence or any fact of which the court will take judicial knowledge, and may draw any conclusion therefrom that they desire. Counsel is not required to have a perfect argument or to draw sound conclusions, but so long as he does not become abusive or go outside the record as to the facts or inject prejudices into the case, the court will not undertake to control his argument.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by Eula Faucel Fink against the Nelms & Blum Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Humphreys & Anderson, of Greenville, for appellant.

The case of Seafood Co. v. Alves, 77 So. 857, should be overruled because the true rule is as follows:

It is the general rule that, where a dangerous, defective, or improper place, method, or appliance is alleged to have resulted in an injury for which damages are sought to be recovered, evidence that, subsequent to the accident or injury complained of, changes or repairs thereof or thereto were made by the person charged or precautions to prevent recurrence of injury were taken by him, is inadmissible to show antecedent negligence or as an admission of negligence on the particular occasion in question.

3 Jones Commentaries on Evidence (2 Ed.), 3, par. 1041; Hart v. Lancashier & Yorkshire Railway Co., 21 L. T. (N. S.) 261-263; Morse v. Minneapolis & St. L. Railway Co., 16 N.W. 358; Columbia & Puget Sound Railway Co. v. Hawthorne, 144 U.S. 202.

Counsel may so abuse the privileges of advocacy as to put it beyond the power of the court to remedy the harm done the opposite party.

J. J. Newman Co. v. Norris, 94 So. 881; Moss v. Phillips, 128 So. 336.

Only impartial trials can pass the Red Sea of this court without drowning. Trials are to vindicate innocence or to ascertain guilt and are not to be vehicled for denunciation.

Hampton v. State, 40 So. 545; Birmingham Railway, Light & Power Co. v. Drennes, 57 So. 876.

W. A. Percy and Percy, Strauss & Kellner, all of Greenville, for appellee.

Of course, the fact that the master remedied the dangerous condition after the injury occurred is not an admission of negligence, but is to be considered only in determining whether or not the master was guilty of negligence in the first instance.

Seafood v. Alves, 117 Miss. 1.

Counsel must be allowed wide latitude in their arguments. They are employed to present one side of the cause to the jury and must be allowed wide discretion as to methods in presenting their arguments.

Valley Dry Goods Company v. Buford, 114 Miss. 414; Miss. R. R. v. Robinson, 106 Miss. 896, at page 908; N. & O. v. Carpenter, 104 Miss. 706.

Argued orally by W. Y. Humphreys, for appellant, and Will A. Percy and Ernest Kellner, for appellee.

OPINION

Ethridge, P. J.

The appellee was plaintiff in the court below, and the appellants were defendants there. The appellee brought suit for personal injuries sustained while employed by the defendants in their store at Greenville, Mississippi.

It appears that the defendants had a contrivance which held wrapping paper and which sat upon a counter or desk in a vertical position and was not attached to the counter by screws or nails or anything to hold it securely in position. The frame of this appliance was something like thirty-six inches high. At the desk or counter where this appliance was situated the defendants had a wrapping clerk who wrapped packages for the clerks making sales, and the salesmen were required to make out a ticket or memorandum of sale at the desk where the packages were wrapped. While Mrs. Fink was making a memorandum in a stooping position at the desk, the wrapping clerk undertook to tear from the appliance paper with which to wrap the package Mrs. Fink had sold. The roll of paper placed on the appliance, when full, weighed about thirty-six pounds, and the exact amount then upon the appliance was not known with precision, but was something more than half the full paper. The base of this appliance which sat upon the counter at its longest point was about twelve inches and its width about nine inches. When the wrapping clerk jerked the paper, the appliance toppled and fell against Mrs. Fink, striking her on the head.

The plaintiff's evidence, and other evidence in support of hers, tended to show that the injury inflicted resulted in much suffering and probably in permanent injury to some of the nerves and especially one to the eye. She went to a doctor after recovering from the temporary stunning, or as she testified "unconsciousness," and the doctor advised her not to return to work but to go to bed and remain in bed for some time. It appears that the doctor thought there was some brain injury, either concussion or contusion and in such case it was necessary to remain in bed or in a hospital for not less than four weeks to prevent permanent injury. It also appears that the plaintiff had a permanent dilation of the pupil of one eye, which the medical testimony on her behalf tended to show could only be caused by a permanent injury of one of the nerves leading to the eye. After a second examination some hours after the first examination, the doctor decided Mrs. Fink should go to a hospital for attention, and she did go and remain there for quite a time. While there it was discovered that she had a diseased appendix, and an operation was performed on her for that, but the relief from her suffering appears to have been only for a few hours. The physicians attending her, deeming that she might be suffering from an injury to the brain caused by the blow on the head, decided on a spinal puncture to relieve or drain some of the fluid that such a blow might have caused, and the first puncture giving a temporary relief, but not a permanent relief, the second and third were made, but they do not seem to have given very much relief. One of the physicians attending her then decided that possibly an air treatment might relieve her or benefit her, but, as he had never performed that operation and had never seen it performed, he was unwilling to do so unless Mrs. Fink and her husband would sign an instrument releasing him from any liability for the consequence of such operation, and he asked them to take time and think it over. Two of the members of the medical firm had advised Mrs. Fink against this...