Randall v. Skinner
| Decision Date | 27 November 1939 |
| Docket Number | 33900 |
| Citation | 187 Miss. 602,192 So. 341 |
| Court | Mississippi Supreme Court |
| Parties | RANDALL v. SKINNER |
Suggestion Of Error Overruled January 8, 1940.
APPEAL from the circuit court of Marion county HON. J. C. SHIVERS Judge.
Personal injury action by J. M. Skinner against J. B. Randall. From an adverse judgment, defendant appeals. Affirmed.
Affirmed.
Stevens & Stevens, of Jackson, for appellant.
The court erred in refusing to grant the following instruction "The court instructs the jury for the defendant that in no event can the jury award the plaintiff any damages for any alleged permanent injury or injuries."
There is no credible evidence that sustains any permanent injury. The declaration expressly charges that the "plaintiff's injuries are permanent", and undertook to have the plaintiff, as a lay witness, testify that his ribs were broken. The record of this case is a miserable attempt to exaggerate an old man's slight injury; that he was bruised and shocked to some extent is natural and admitted. He was able immediately to get up and walk around and converse, pull at the broken parts of his old car, flag an automobile and go into Columbia and negotiate for a wrecker; to come back out to scene and return and immediately repair to the office of Senator Dale and thereafter to the office of the chancery clerk, transacting the business incident to this unfortunate happening. If the plaintiff had received three broken ribs, as now contended he would not have been able to go about transacting the business of the day in the way he did; he would have required medical attention then and there while in Columbia. He goes back home and has a country doctor to attend him. This doctor was honest enough on the witness stand to admit that he did not know for sure whether the plaintiff had any broken ribs or not; that he guessed he did, based on "subjective symptoms". He did not so much as strap up the man's back or side; he made no x-ray and recommended none while he says he made several visits, which were recorded in a book he did not produce his book or show how many visits were made as recorded, although brought from one county to another to testify in this case. He admits there was no visible displacement, only a contusion, and furthermore if there had been a fracture of the ribs with no mal-adjustment nature would knit them together.
The court was in error in overruling the motion for a new trial. This is particularly a case where the jury finds against the overwhelming weight of the testimony. The plaintiff had every advantage; but for the bold, bald, exaggerated statement of the plaintiff as a witness in his own behalf, that he was traveling on the right side of the highway and the bus was proceeding on the wrong side, the peremptory instruction asked for in this case, and refused, would have been granted. If, however, the plaintiff is to be permitted to repudiate his solemn sworn statement made on the day of the wreck, acknowledging that he was on the wrong side of the road and altogether at fault, and is to be welcomed into the front door of a court of justice and is permitted to repudiate such a sworn statement and make an issue for the jury thereby, then, of course, we were not entitled to the peremptory instruction. We have certainly fallen on evil days when a white man of advanced years can solemnly swear to a statement before the chancery clerk, recognized by all as a responsible and trustworthy officer, and then immediately repudiate it, and yet that is exactly what Mr. Skinner has done in this case.
The authorities, especially in Mississippi, are in accord in holding that in all cases where the verdict of the jury is contrary to the overwhelming testimony in the case, the trial judge not only has the right but it is his duty to set the verdict aside and grant a new trial. Under any view of this case, the overwhelming proof is with the defendant. The burden of proof was upon the plaintiff to sustain the allegations of the declaration by credible testimony.
Sec. 592, Code of 1930; Jolly v. State, 174 So. 244; Heflin v. State, 178 So. 594; Great A. & P. Tea Co. v. Davis, 171 So. 550, 177 Miss. 562.
We confidently assert that this case falls within at least two of the three instances stated by the court in which the trial judge should exercise his constitutional right to set the verdict aside and this same duty rests upon this court.
Hall & Hall, of Columbia, and G. M. Milloy, of Prentiss, for appellee.
Appellant first complains at the action of the court in refusing to peremptorily charge the jury that they could award no damages for any alleged permanent injury, and counsel argue that if the plaintiff had received three broken ribs he would not have been able to get a wrecker, have his car picked up, be dragged around to the office of the bus line's attorney and the chancery clerk, and then go home. If such be the position of appellant, then appellant should have offered the testimony of some...
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