Pigford v. Howse
| Decision Date | 27 February 1928 |
| Docket Number | 26856 |
| Citation | 149 Miss. 692,115 So. 774 |
| Court | Mississippi Supreme Court |
| Parties | PIGFORD v. HOWSE. [*] |
Suggestion of Error Overruled March 26, 1928.
(En Banc.)
1 DAMAGES. Allegation that injuries caused plaintiff "to be permanently impaired in strength and health and earning capacity" permitted evidence of injury causing permanent impairment of vision (Hemingway's Code 1927, sections 573, 574).
In action for personal injuries, allegations that injuries caused plaintiff "to be permanently impaired in his strength and health and earning capacity," were sufficient general allegations to permit evidence of injury causing permanent impairment of vision or of any injury of the eye which was direct and proximate result of alleged injury, and court did not err in permitting amendment to declaration by inserting words "including an injury to and permanent impairment of left eye" without entering order on minutes or granting continuance, in view of Hemingway's Code 1927, sections 573, 574, relating to variance.
2 DAMAGES. Plaintiff may show specific, direct effects of injury without specifically alleging them.
General rule in torts is that party who commits wrongful act is liable for direct injury resulting, although such injury could not have been contemplated as probable result of aocident, and plaintiff may show specific effects of injury without specifically alleging them.
3. DAMAGES. Where damaged truck was offered in evidence, with plaintiff's statement of value before injury, submitting question of damages to jury without basis for estimating damages held error.
In action for personal injuries and for damages to Ford truck sustained in collision at street intersection, where truck was offered in evidence, to be viewed by jury, together with siatement of plaintiff that truck before injury was worth two hundred and fifty dollars, submitting question of damages to truck without submitting basis by which jury could estimate how much damage had been done to car, or how much less car was worth after injury, held error.
APPEAL from circuit court of Lauderdale county. HON. J. D. FATHEREE Judge.
Action by R. S. Howse against Mrs. J. W. Pigford. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur.
Affirmed, with remittitur.
Jacobson & Cameron, for appellant.
It was never the purpose nor intendment of either statute, section 573 or 574, Hemingway's Code 1927, to change the cause of action, nor to create a new action, for so to do would deprive the other party of his right to an investigation of the merits of the new statement of facts, and to deprive him of his legal right to defend action, yet the action of the court below in permitting this alleged amendment over appellant's objection effectively caused at that time the institution of a new and different cause of action against the appellant. This court is bound to be impressed as was appellant that the claims of appellee were fully disclosed in his demands publicly filed and no criticism may be indulged against appellant in assuming that the appellee had made full revelation in his pleadings of his injuries. This amendment, requested subsequent to the introduction of the appellant by appellee as an adverse party, and subsequent to the introduction of other testimony for the appellee, completely changed and revolutionized this lawsuit; a complete change of front from mere trivial bruises and temporary wounds to a demand for permanent impairment and loss of vision.
Counsel for appellant, immediately after amendment, moved the court to enter a mistrial and grant a continuance on the ground that the amendment brought a new matter and different item of damage which the appellant had not prepared to defend; that the appellant was taken by surprise, and to allow the amendment and continuation of trial would result in an undue advantage to the plaintiff.
The statutes authorizing amendments as referred to previously take cognizance of the legal rights of one confronted and circumstanced as was the appellant, by providing: "All such amendments to be made on such terms, as to costs and delay, as may be proper to prevent surprise or undue advantage." Sec. 573, Hemingway's Code, 1927.
By objecting to testimony when offered after alleged amendment to declaration we gave rise to our fourth assignment. This testimony was objected to for the reason that appellant did not consider the same admissible under the terms of the declaration as amended for reasons set forth in the next assignment, to-wit: there has never been a legal amendment as required by law. There was no legal amendment of the declaration; consequently, there was error in admitting testimony relative to the condition of appellee's eye. No order allowing amendment was spread upon the minutes of the circuit court. See Oliver v. Miles, 114 Miss. 852, 110 So. 666; Lackey v. St. L. & S. F. R. R., 102 Miss. 339, 59 So. 97.
The general allegations will not support evidence of injury to specific part of anatomy wholly unmentioned or referred to by plaintiff. A. Coast Line R. R. Co. v. Watson (Ala.), 110 So. 316; A. Coast Line R. R. Co. v. Thomas (Ala.), 95 So. 53; Mobile L. & Ry. Co. v. Therrell (Ala.), 88 So. 677.
The eighth assignment submits the error of trial judge in refusing to grant instruction number one: "You are charged by the court for the defendant in this case that the plaintiff is not entitled in this case to recover anything by or on account of the alleged value of the automobile in question." In the absence of testimony showing market value of car after accident or cost of repair of damage there was nothing to go to the jury on this question.
Appellant was entitled to a peremptory instruction. The overwhelming weight of convincing evidence was and is to the effect that the plaintiff drove his car at a high rate of speed up the avenue and into Twentieth street from behind the twelve-foot embankment and caused same to be driven into the car occupied by the appellant. Against the appellant's testimony, and the physical facts here submitted, we have only the statement of appellee to the contrary and, if permitted, we make the observation that his statement, when reviewed in the gleam of established facts and circumstances, is unreasonable and fails to accord with human experience and reason. "We are loath to disturb the finding of a jury upon an issue of fact, but in this case the testimony of appellee, when considered in light of attendant circumstances, is not sufficient to sustain the verdict." Royse v. Randall, 83 Miss. 168. "Where the finding of fact by a jury is contrary to the overwhelming weight of convincing evidence, a new trial will be awarded, though such reversals are rare and reluctant." M. & O. R. R. Co. v. Bennett, 127 Miss. 413; Thompson v. State, 129 Miss. 333; So. R. R. Co. v. Elder, 118 Miss. 856; Ford v. A. & V. R. R., 87 Miss. 211; G. M. & N. v. Turner, 97 So. 721; Davis v. Temple, 91 So. 687.
Reily & Parker, for appellee.
Appellee asked permission to amend the declaration by inserting by interlineation the phrase "including an injury and permanent impairment of the left eye." The court ruled that this amendment could be made and such interlineation was then made in the declaration, and the appellant assigns this as error. This amendment related to the same injury and a part of the results of the same collision and could not under any circumstances be classed as a departure or variance. 31 Cyc. 360; Johnson v. McKee, 27 Mich. 471; Williams v. Oregon Short Line Ry. Co., 72 A. S. R. 777; Shoninger Co. v. Mann, 3 L. R. A. (N. S.) 1097.
It is next argued that even though the court authorized the amendment, that under the authority of Oliver v. Miles, 114 Miss. 852, 110 So. 666, and Lackey et al. v. St. L. & S. F. R. R. Co., 102 Miss. 339, 59 So. 97, inasmuch as this motion to amend was not reduced to writing and an order procured permitting the same placed upon the minutes of the court that such amendment was not in fact made and the declaration remains as if no offer to amend had been made, and no interlineation had been inserted. In the case at bar the trial proceeded after this amendment in every respect as if the amendment had been properly shown of record and the relative rights of the parties were fully litigated on this basis and it cannot be seen what rights of the appellant would have been better preserved, having this amendment appear on the minutes of the court. 31 Cyc. 366. But if the failure to have the amendment shown in the minutes of the court operates as a failure to obtain the amendment, then the declaration in this case must stand as it was originally filed and the question as to the admissibility of the testimony offered will then be governed by the original allegations in the declaration. The general rule is laid down by 3 Sutherland on Damages (2 Ed.), 2661. See, also, Croco v. Oregon Short Line Ry. Co., 44 L. R. A. 285; Denver & Rio Grande Ry. Co. v. Harris, 30 L.Ed. 1143; Brooklyn Heights Co. v. McLaury, 107 F. 644; Montgomery v. Lansing City R. Co., 29 L. R. A. 287; Currie v. Storage Co., 74 N.W. 377; Maitland v. Gilbert Paper Co., 64 A. S. R. 137; Morgan v. Kendall, 9 L. R. A. 445.
In the Mississippi case of A. & V. R. R. Co. v. Haynes, 69 Miss. 160, 13 So. 246, the court, in discussing this question, cites a number of cases and places our court in line with the decisions above referred to from other states. The allegations of damages in the declaration in the Haynes case were as follows: "In consequence whereof, he was hurt, bruised and suffered great discomfort in body and mind and for a long time thereafter made sick and caused to suffer to his damage, five thousand dollars." Under the...
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