New Orleans & N. E. R. Co. v. Jackson

• Decision Date: 06 December 1926
• Docket Number: 25963
• Citation: New Orleans & N. E. R. Co. v. Jackson, 145 Miss. 702, 110 So. 586 (Miss. 1926)
• Parties: NEW ORLEANS & N. E. R. CO. v. JACKSON. [*]
• Court: Mississippi Supreme Court

110 So. 586

145 Miss. 702

NEW ORLEANS & N. E. R. CO. v. JACKSON. ^[*]

No. 25963

Supreme Court of Mississippi

December 6, 1926

Division B

. (Division B.)

1. MASTER AND SERVANT. State privileged communications statute held mere rule of evidence, applicable in action under federal Employers' Liability Act (U. S. Comp. St sections 8657-8665; Hemingway's Code, section 6380).

Code 1906, section 3695 (Hemingway's Code, section 6380) making patient's communication to physician privileged is a mere rule of evidence, and does not affect the substantial rights and obligations of the parties, and so is applicable in action under federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665).

2. APPEAL AND ERROR. Court's knowledge from experience and observation, and prior verdict in case, are among things considered on verdict being from passion and prejudice.

Determination of whether verdict is result of passion and prejudice depends on various circumstances, among which, in addition to the evidence, is the knowledge the court has acquired of such matters based on experience and observation; and, where there has been a prior verdict in the case, it should be taken into consideration.

3. DAMAGES. Verdict for nineteen thousand dollars for breaking leg of switchman held excessive, and to be reduced to twelve thousand six hundred dollars.

Under the facts and circumstances, held, verdict of nineteen thousand dollars for breaking of leg of switchman and resulting troubles was excessive, and should be reduced to twelve thousand and six hundred dollars.

HON. R. M. BOURDEAUX, Judge.

APPEAL from circuit court of Lauderdale county, HON. R. M. BOURDEAUX, Judge.

Action by Grant Jackson against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Judgment affirmed with remittitur; otherwise reversed and remanded.

Bozeman & Cameron, for appellant.

I. (a) Privileged communication statute, section 6380, Hemingway's Code, does not apply to cases under the federal Employers' Liability Act. We are, of course, familiar with the rule announced by the federal courts that mere matters of procedure and evidence are governed by the law of the forum. R. R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433. But we are also familiar with the principle, likewise adhered to by the federal courts, that matters of substance are to be governed by the federal act and the common law as interpreted by the supreme court of the United States. R. R. Co. v. Ferebee, 238 U.S. 269, 59 L.Ed. 1303; 1 Roberts, Federal Liabilities of Carriers, pages 948 et seq; 12 A. L. R. 693, note; 36 A. L. R. 917, note.

Congress in enacting the federal Employers' Liability Act intended to establish uniformity in all matters of substance touching the liability of interstate carriers for damages to interstate employees. R. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045; Second Employers' Liability Cases: Mondou v. R. R. Co., 223 U.S. 57, 56 L.Ed. 327, 38 L. R. A. 44; R. R. Co. v. Tonsellito, 244 U.S. 360, 61 L.Ed. 1194.

It will be argued, of course, that our privileged communications statute is merely a rule of evidence, and it has been held to be such under a great many decisions of our court. This does not, however, entitle a plaintiff to invoke it in a case under the federal act.

It will be recalled that our prima-facie statute was passed as a rule of evidence and has been uniformly held to be merely a rule of evidence under the decisions of this court, and it was recognized as a rule of evidence by the supreme court of the United States in the case of R. R. Co. v. Turnipseed, 219 U.S. 35, 55 L.Ed. 78, 32 L. R. A. (N. S.) 226. Notwithstanding that statute was conceded to be a rule of evidence, the supreme court of the United States promptly declared that it could have no application to cases arising under the federal Employers' Liability Act, because it affected the substantial rights of the parties. See N. O. & N. E. R. R. Co. v. Harris, 247 U.S. 367, 62 L.Ed. 1167. By the same reasoning we submit that our privileged communications statute affects a matter of substance, even though it be classified as a mere rule of evidence. Certainly, if this statute is to be applied in this state, the uniformity which Congress sought to establish will be entirely thwarted.

(b) But even if our statute should be held to apply, the court below went too far in excluding the testimony of Dr. Gully. The legislature never intended that this statute should serve both as a "shield and a sword," and that this court should hold that under circumstances like this a doctor can certainly deny material statements attributed to him, and also deny such claims of lack of attention as were made by the insinuations in this case.

II. The verdict was excessive. The principal injury complained of and shown by the evidence is a fracture of the thigh bone about four inches below the hip joint, which was promptly set and reunited, but with a shortening of the leg from one and a half to two inches at the maximum, caused by the broken ends of the bones slipping by in the process of healing. As an incident thereto the plaintiff testifies to suffering much pain during the process of healing and up to the present time; and a soreness in his leg and in his back which interferes with the free use of his body or leg; and the inability to continue his vocation of switching cars.

On the first trial a verdict of ten thousand dollars was rendered and the testimony on the second trial involved in this appeal will show that the injuries complained of and shown by the testimony are the same. The case was reversed by this court on the first appeal because the verdict of ten thousand dollars was excessive.

The second verdict for nineteen thousand is so grossly excessive as to evidence passion and prejudice on the part of the jury. The question is whether this court will approve a verdict for nineteen thousand dollars for such an injury to a negro switchman who was about forty-five years old.

Martin Miller and Reily & Parker, for appellee.

I. Unless our statute making physicians incompetent witnesses concerning information obtained from their patients is not applicable to cases arising under the federal act, the ruling of the trial court in sustaining an objection to Dr. Gully's testimony is clearly right. It is immaterial that the information solicited was in the form of a statement from the physician to the patient rather than a statement from the patient to the physician. Bryant v. Modern Woodmen of America, 27 L. R. A. (N. S.) 326.

This rule is not based on the materiality of the testimony, but goes to the disqualification of the witness concerning all things coming within the condemnation. And it is stated that the rule applicable in state courts while enforcing federal statutes is the rule of the state court as to rules of evidence, unless the federal act prescribes a different rule. 22 C. J. ; K. C. So. Ry. Co. v. Leslie, 167 S.W. 83.

The general rule as to privileged communications is that the law of the forum controls. 40 Cyc. 2353; Doll v. E. L. Asso. S. of U.S. 138 F. 705. If there are any difficulties, real or imaginary, in making a defense as concerns the extent of the injury suffered in violation of the federal safety appliance act on account of the incompetency of physician's testimony, it would be assumed that Congress was not without information concerning such difficulty, but permitted the act to become a part of our law to be applied in connection with the other statute that makes the competency of witnesses determined by the law of the state where the trial is being held.

II. Appellant's contention that the verdict is excessive is unwarranted from the evidence. McMahon v. K. C. Ry. Co., 233 S.W. 60. The courts have no right to substitute their judgment of what is fair and reasonable compensation for the judgment of the jury. R. R. Co. v. Hurst, 36 Miss. 660; R. R. Co. v. Caruth, 51 Miss. 77; Mich. C. R. R. Co. v. Reeland, 227 U.S. 58, 57 L.Ed. 419.

The Mississippi court is in line with the courts of other states as to the size of verdicts permitted to stand. See: Louisville, N. O. & T. R. R. Co. v. P. C. Thompson (1887), 64 Miss. 584; Fifteen thousand dollars awarded by the jury, where pelvic bone was crushed, thigh broken in two places, leg broken, and plaintiff was confined to his bed for ten weeks, suffering much of the time with intense pain. His leg on recovery was found to be two inches shorter and he was otherwise seriously and permanently injured.

Y. & M. V. R. R. Co. v. John L. Scott (1909), 48 So. 239, 95 Miss. 43: Fourteen thousand dollars awarded where plaintiff had his leg broken in three places, making him a cripple for life, and suffered other grave injuries, permanent in character or remediable only by a serious surgical operation.

Miss. Cent. R. R. Co. v. Lott (1918), 80 So. 277: Twenty thousand dollars awarded where plaintiff was injured similarly to the plaintiff in the case at bar, so that as a result of his injury he was required to stay in bed five weeks, partially paralyzed, and constantly under the care of physicians; after partial recovery the paralysis returned, necessitating confinement in bed for nine weeks at home and his removal to a hospital for a week; and ever afterward he remained a constant sufferer from pain, partial paralysis and tuberculosis. At the time of the trial he was a hopeless and permanent cripple, unable to perform any physical labor.

Homochitto Lumber Co. v. Albritton, 96 So. 403: Fifteen thousand dollars awarded to plaintiff, a locomotive engineer, when three fingers on his left hand were crushed, thus incapacitating him for his work.

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