Pevey v. Alexander Pool Co., 42289

• Citation: 244 Miss. 25,139 So.2d 847
• Decision Date: 16 April 1962
• Docket Number: No. 42289,42289
• Parties: Eldon H. PEVEY v. ALEXANDER POOL COMPANY, Inc.
• Court: United States State Supreme Court of Mississippi

Page 847

139 So.2d 847

244 Miss. 25

Eldon H. PEVEY v. ALEXANDER POOL COMPANY, Inc.

No. 42289.

Supreme Court of Mississippi.

April 16, 1962.

Floyd & Holleman, Gulfport and Wiggins, Clyde O. Hurlbert, Gulfport, for appellant.

Morse & Morse, Gulfport, for appellee.

RODGERS, Justice.

This is a damage suit for personal injuries to the appellant, alleged to have been the result of escaping chlorine gas from a chlorinator, which had been installed by the appellee. The suit was filed in the Circuit Court of Harrison County, and from an adverse judgment appellant has appealed to this Court.

The appellant assigns three assignments of error as follows: (1) The trial court erred in admitting certain evidence for the defendant; (2) the verdict of the jury was against the overwhelming weight of the evidence, and indicated bias, passion, or prejudice on the part of the jury; and (3) the trial court erred in granting to the defendant certain instructions Nos. 5, 6, 7 and 8.

After a careful examination of the record, we have come to the conclusion that this case should be reversed for a new trial by another jury, and for that reason we refrain from discussing the weight and worth of the evidence, except that part necessary to point out the errors in the record requiring reversal. It is therefore not necessary to discuss the second assignment of error.

Appellant objected to the testimony of Mr. Alexander Schultz, President of the defendant-company, Alexander Pool Company, Inc., on the ground that his testimony was either hearsay or opinion evidence. Mr. Schultz was introduced as a witness for the defendant and several exhibits were made a part of his testimony. The first exhibit was a copy of the contract between the Alexander Pool Company and the owner of the Sun-n-Sand Hotel Court. The contractor, appellee here, agreed to install a Paddock Chlorinator, and warranted that its work would be free from defects in material and workmanship for one year from the completion. The manufacturer's installation instructions found in the package containing the chlorinator were then introduced as an exhibit to the testimony of Mr. Schultz. These instructions carried the following notice to the contractor: 'The water pressure required is a minimum of thirty pounds or three times the pressure against which the Injector must operate.' The witness was then called before the jury and explained from a picture introduced by the plaintiff the various pipes and valves shown in the picture. The witness was asked the question whether or not the instructions furnished by the Paddock Pool Company suggested alternate methods to install the chlorinator. He was then asked: 'What are you reading from?' and said 'Right from here. I have read this several times to be sure I would state it properly. And that is where the installation was made in the beginning. If I might elaborate further, on this point of application I would just like to state why we selected the suction side of the pumps instead of the return line of the pump, or the pressure side of the pump.' The witness then testified the connection was thus made because the pressure in the Sun-n-Sand Hotel Court sometimes dropped down to fifteen pounds. He said: 'As we observed on the gauge it was felt that we could operate better with the type of water situation by feeding it through the suction side of the pump.' He had testified that the chlorinator had been inspected by him subsequent to Mr. Pevey's accident after it was installed. The appellant objected to this testimony, and the court said: 'He would know when his men did any work on it. Overrule the objection.' The witness continued to give hearsay and opinion evidence until finally his attorney said 'I will offer him as qualified.' A manufacturer's advertisement of a safety value was then introduced as defendant's Ex. B, on which was shown the following notation: 'Shut off chlorine gas when water pressure is interrupted. Turns on when safe pressure is restored.' It also shows the operating range from eight pounds low to fifty pounds high. The witness was asked to demonstrate how the water pressure could affect the valve, and upon further objection of the attorney for the plaintiff, the court said in the presence of the jury: 'I thought he testified he constructed these things.' On cross-examination, this witness admitted that he was not an expert on the principles involved in this chlorinator system, and admitted that although he had installed chlorinators of different types, he had not installed one like the one at the Sun-n-Sand Hotel Court.

The written advertisement of a manufacturer with reference to how a safety valve will shut off under water pressure is hearsay evidence as being the unsworn statement of an unknown person. See Illinois C. R. R. Company v. Langdon, 71 Miss. 146, 14 So. 452. This written advertisement should have been excluded. See Metropolitan Life Ins. Company v. McSwain, 149 Miss. 455, 115 So. 555; Mississippi Power & Light Company v. Whitescarver, 5 Cir., 68 F.2d 928; Blount v. Houston Coca Cola Bottling Company, 184 Miss. 69, 185 So. 241; Tucker v. Donald, 60 Miss. 460.

The testimony of the witness that he knew no changes were made for 'the reason that my employees were not instructed to make any changes, and they reported back to me that they merely assembled the valves' and his testimony based upon the statement made by his employees that: 'We all have subordinates that work for us and we have to rely on their work', was hearsay evidence and should have been excluded by the court.

Our Court has said in the case of Citizens Bank of Coldwater v. Callicott et al., 178 Miss. 747, 174 So. 78, 'It is, of course, familiar learning that hearsay evidence is not admissible.'

The general rule for the exclusion of hearsay evidence is found in 20 Am.Jur. 400, Evidence, Sec. 452, as follows: 'Hearsay evidence is inadmissible according to the general rule. Various reasons have been assigned for requiring the exclusion of this kind of testimony. The real basis for the exclusion, however, appears to lie in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony. It is said that a statement by hearsay is one made without the sanction of an oath and without the declarant being under a responsibility to answer for the crime of perjury in making a wilful falsification.'

It is also pointed out in this text at p. 403, Sec. 455: 'The general rule which excludes hearsay as evidence applies to written, as well as oral, statements. In other words, documentary evidence may be hearsay and inadmissible as such unless an exception to the hearsay rule renders the document admissible.'

Mr. Schultz was offered as an expert witness and he gave his opinion with reference to the assembling of the chlorinator and how it should be applied to the fresh water pipe. He testified as to what the safety valve would do under certain circumstances, and although objection was made to his testimony, it was overruled by the court and the witness was offered as an expert. Admission of this testimony of this witness, who later admitted he was not an expert, was an error. See 20 Am.Jur., Evidence, Sec. 765, p. 634:

'It is a fundamental principle of the law of evidence as administered by our courts, both in civil and criminal cases, that the testimony of witnesses upon matters within the scope of the common knowledge and experience of mankind, given upon the trial of a cause, must be confined to statements of concrete facts within their own observation, knowledge, and recollection--that is, facts perceived by the use of their own senses--as distinguished from their opinions, inferences, impressions, and conclusions drawn from such facts. Generally speaking, the opinion or conclusion of a witness upon a fact or facts in issue is incompetent and inadmissible * * *.

'A witness must ordinarily confine his testimony to matters within his actual knowledge. He cannot, over...