Payne v. McNeeley

• Decision Date: 12 July 1920
• Docket Number: 21101
• Citation: 123 Miss. 248,85 So. 197
• Court: Mississippi Supreme Court
• Parties: PAYNE v. MCNEELEY

85 So. 197

123 Miss. 248

PAYNE v. MCNEELEY

No. 21101

Supreme Court of Mississippi

July 12, 1920

March 1920

1. APPEAL AND ERROR. Question which should have been presented on first appeal cannot be considered on subsequent appeal.

When a question arises on the record on a first appeal, and could he used to prevent a judgment rendered on such appeal, but was not so used, it cannot be considered on a subsequent appeal and all questions which might have been presented on the first appeal will be considered adjudicated and settled.

2 PLEADING. Evidence in liar after judgment quod recuperet is inadmissible.

Where a defendant filed a plea in abatement upon which issue was taken and a verdict for the plaintiff followed by judgment quod recuperet, evidence in denial of liability is not admissible.

3 DAMAGES. $20, 000 for injury to knee reduced to $10, 000.

In an action for personal injury, where the injured person had an earning capacity of eighty dollars per month, and where he had earning power after such injury, and suffered some pain from the injured limb, and was twenty-three years of age, a judgment for twenty thousand dollars for his injuries was excessive.

HON. R. E. JACKSON, Judge.

APPEAL from the circuit court of Wilkinson county, HON. R. E. JACKSON, Judge.

Action by Clarence McNeeley against the Yazoo & Mississippi Valley Railroad, and Walker D. Hines, Director General of Railroads, in which on motion John Barton Payne was substituted as agent for the Director General. Verdict for plaintiff, and John Barton Payne, agent, appeals. Affirmed on condition of a remittitur, and otherwise reversed and remanded for a new trial.

See, also, 119 Miss. 897, 81 So. 641, 82 So. 338, 83 So. 815.

Judgment affirmed.

H. D. Minor, Chas. N. Burch and W. F. Tucker, for appellant.

D. C. Bramlett, Jr., for appellee.

OPINION

ETHRIDGE, J.

McNeely brought suit against the Yazoo & Mississippi Valley Railroad for personal injuries. On the former trial the defendant filed a plea in abatement, upon which issue was joined, and a verdict rendered on the plea in abatement for the plaintiff. The trial court refused to enter a judgment quod recuperet on the verdict on the plea in abatement, and there was a trial before the jury on the merits and a verdict for the defendant, and the case was appealed to this court. In McNeely v. Y. & M. V. R. Co., 119 Miss. 897, 81 So. 641, the case was reversed, judgment quod recuperet entered here, and the cause remanded, with directions for a writ of inquiry to ascertain the damages. There was a trial for the assessment of damages, and verdict returned for twenty thousand dollars for the plaintiff, from which judgment the defendant appeals and assigns numerous errors.

It is first assigned for error on this appeal that the court erred in peremptorily instructing the jury on the plea in abatement on the trial of that issue preceding the former appeal. Under the law of this state the defendant had the right to raise the question of the propriety of that instruction on the former appeal to prevent the judgment quod recuperet being entered, but failed to do so, and we think it is too late for that question now to be raised. Where a case is brought a second time upon appeal or writ of error the plaintiff or appellant cannot assign any error which occurred in the proceeding anterior to the taking of the first appeal. All errors and irregularities therein in the original record, and which might have been corrected by the first appeal, must, on the second appeal, be regarded as settled and adjudicated. Still v. Anderson, 63 Miss. 545; Caston v. Caston, 54 Miss. 512; Ogden v. Larrabee, 70 Ill. 510; Hook v. Richeson, 115 Ill. 431, 5 N.E. 98; Washburn, etc., Co. v. Chicago, etc., Co., 119 Ill. 30, 6 N.E. 191; Union Mutual Life Ins. Co. v. Kirchoff, 149 Ill. 536, 36 N.E. 1031; Meredith v. Clarke, 1 Sneed 189;Bushnell v. Brown, 8 Mart. (N. S.) 157; McWilliams v. Walthall, 77 Ga. 7; Mason v. Mason, 68 Ky. 187; Carter v. Hough, 89 Va. 503, 16 S.E. 665. It is important that lawsuits have an end, and that cases be tried not by piecemeal.

We therefore think, as plaintiff could have presented this assignment on the former appeal to prevent the judgment of quod recuperet being entered, that it is too late to present the question now, and the court will not look on the evidence on a former hearing to determine the propriety of the peremptory instruction.

It is also assigned for error that the court erred in excluding evidence of the witness Kerr after the judgment quod recuperet was entered by this court on the second trial to show nonliability of the defendant, and also to show the contributory negligence of the plaintiff. The question as to liability or the propriety of the judgment quod recuperet was fully considered in the former appeal, and on the authorities therein cited the law was well settled that the liability is established.

The United States supreme court is in line with the decisions of this court that the plaintiff cannot be heard on the merits after judgment in favor of the plaintiff on issue joined on plea in abatement. Grand Chute v....