Rayner v. Lindsey

• Decision Date: 19 March 1962
• Docket Number: No. 42243,42243
• Citation: 138 So.2d 902,243 Miss. 824
• Parties: L. A. RAYNER v. English LINDSEY, Administrator Estate of Douglas S. Milo.
• Court: Mississippi Supreme Court

Page 902

138 So.2d 902

243 Miss. 824

L. A. RAYNER v. English LINDSEY, Administrator Estate of Douglas S. Milo.

No. 42243.

Supreme Court of Mississippi.

March 19, 1962.

Morse & Morse, Gulfport, for appellant.

P. D. Greaves, Gulfport, for appellee.

RODGERS, Justice.

This is a suit based upon personal injury and property damage resulting from an automobile accident.

This case came to this Court on appeal from the Circuit Court of Harrison County, where the plaintiff obtained a judgment in the sum of $60,000. The trial judge sustained a motion for a new trial on the amount of damages alone, on the condition that plaintiff would agree to remit the sum of $15,000. Plaintiff declined to agree to remit said sum and appealed to the Supreme Court. Defendants also appealed.

The facts in this case are as follows: On or about November 8, 1959, the plaintiff, appellant here, was operating his 1953 Ford dump truck in a southerly direction on Highway 55 near Biloxi, Mississippi. At the time and place, the deceased Douglas S. Milo was driving his 1956 Oldsmobile in a northerly direction. After Milo had passed one vehicle going in a northerly direction and was about to pass a second vehicle traveling in the same direction in a curve, his car went out of control and crossed over the center line so as to strike the oncoming truck, resulting in his death and the destruction of the two vehicles. The appellant L. A. Rayner brought suit for personal injuries to himself and for the loss of his truck. The trial court instructed the jury to find for plaintiff insofar as liability was concerned, and the jury returned a verdict in favor of plaintiff appellant here, in the sum of $60,000.

Appellant has submitted two assignments of error to this Court, on which a reversal is sought. (1) The court erred in reducing the verdict of the jury. (2) The court erred in refusing to permit the jurors to testify in support of the verdict on a motion for a new trial.

The testimony shows that the deceased Douglas S. Milo caused the accident involved in this case by trying to pass an automobile in a curve in the face of oncoming traffic. The testimony, however, shows that after the accident, appellant was never unconscious. He walked about at the scene of the accident, talking to people. He complained on two or three occasions that his back was hurting but refused to go to the hospital to determine his injuries. Six days after the accident, he went to see one Dr. Donald L. Cooper, advising him of the accident and seeking medical aid. Dr. Cooper discovered that he was bruised 'from on the left thoracic area', that 'it was hard for him to stoop and bend or turn his head', and one of his fingers was broken. The doctor also testified that he had parasthenia of his feet, legs and arms; that the cervical spine and dorsal spine had lost some of its contour, and palpitation of the muscles revealed that there was muscle spasm in the cervical area, and spasms were found in the sternocleidomatoido and trapezius muscle. Certain tests were given. A stretch test indicated a rupture or injury to the third, fourth and fifth lumbar nerves and also indicated damage to the mucleouspulposis of the third, fourth and fifth lumbar spine, from which, it is said, he would suffer the rest of his life. Dr. Cooper was asked whether or not he advised appellant to go to the hospital, and he answered 'We discussed that and came to the conclusion that he would do just as well at home, and a satisfied patient gets along better. I advised him to go home and he stayed in bed only with bathroom privileges and coming back and forth to my office.' The doctor was asked this question: 'Was there a difference in his appearance on December 14th as compared to what you had seen his appearance prior to December 8th?', and answered, 'Shockingly so, he walked in like a man about eighty or ninety years old, hurting and complaining.' The doctor also said '* * * I gave him something for his kidneys because on examination there we found blood coming from bruises of the left kidney. * * * I saw the kidneys had improved and used that medicine again. Then I used the medication to open the arteries. These conditions were edema and the sealing, and stasis, and slowing down of the flow of blood through the damaged area, and I used medicine, drugs, to open the arteries to get a better drain and repair in the damaged area.' He was asked: 'Could you tell us whether or not Mr. Rayner complained of pain?', and answered 'Yes, he hurt continuously. I had to renew his prescription. He hadn't limbered up, hadn't walked.' He gave dates that appellant visited his office. The doctor testified that appellant was permanently disabled, and said: 'The tests were all positive, the stretch test, the parastesia, all was positive, shows permanent injury and he cannot improve any further. The only comfort he will have is if the bones of the lower back grow together, or whether he will have his spine operated on and bones placed on either side of the body, of the vertebra to make it stationary, or ankylosis, which he does not want, and it is his back.' He also said 'I don't think he has been completely free of pain a single moment.' In answer to whether or not Mr. Rayner would ever be able to return to his occupation as a truck driver, he said 'No, he can't. I would like to say that this way: We have two arms and two thumbs, and if they are damaged or completely destroyed, then that is forever, that is a complete disability.' On cross-examination, the doctor stated that appellant had never been in a hospital, and that it wouldn't have done him any good. He stated that he had no fractures, or broken bones with the exception of a finger, as revealed by X-ray. He said he would not hire Mr. Rayner 'even for my yard man.'

Mrs. Donald L. Cooper, wife of the doctor, is a nurse, and she testified that she ran blood tests on appellant, that she took his blood count and urinalysis, and that these tests showed that he was 'running pus, he had pus and red blood cells and an occasional,--he had about three times albumen.'

Mrs. L. A. Rayner was introduced as a witness and testified that her husband made $13,900.07 with his truck in 1959, and it was deposited in the bank.

Under the facts in this case, a verdict of $60,000 is unquestionably large. In similar cases, as to awards allowed, see the following: Shell Petroleum Corporation, et al. v. Kennedy, 167 Miss. 305, 141 So. 335; Ward v. Iroquois, 233 App.Div. 127, 251 N.Y.S. 300; McNeil v. East & Bay Street R. Co., 220 Cal. 591, 32 P.2d 598; Mealy v. Ewen, 225 Ky. 117, 7 S.W.2d 823; St. Louis B. & M. Ry. Company v. Davis, 262 S.W. 923 (Tex.Civ.App.); 15 Am.Jur., Damages, Sec. 223, p. 694; 25 C.J.S. Damages § 198(2), p. 934.

In pointing out that the verdict in this case is large, we are not unmindful that this Court has often said '* * * that fixing the amount of money damage in personal injury cases is a difficult thing to do, and this this primarily is the province of the jury. We should not disturb the verdict unless the amount is so excessive or so small as to be against the great weight of the evidence and shows the verdict was the result of passion, prejudice or bias.' Brown & Root, Inc. v. Continental Southern Lines, 228 Miss. 15, 87 So.2d 257, 263, 926. See also Aponaug Mfg. Company v. Carroll, 183 Miss. 793, 184 So. 63; Meridian Taxicab Company v. Ward, 184 Miss. 499, 186 So. 636, 120 A.L.R. 1346.

In the case of Beard, et al. v. Williams, 172 Miss. 880, 161 So. 750, where Mrs. Williams, the plaintiff, did not produce the testimony of a doctor to prove her injury, the Court said: 'The fact that the party lived where there were many physicians, and claimed to have suffered injury, and still called no physician, nor had any treatment save as above stated, would raise the presumption that such testimony, if produced, would be against the claim of such party.' The Court also said: 'We are conscious of the fact that the verdict of a jury is to be given great weight, and is the best means, when fair, of settling disputed questions of fact. Nevertheless, throughout the entire history of jury trials, the courts have exercised a supervisory power over them, and have granted new trials whenever convinced, from the evidence, that the jury has been partial or prejudicial, or has not responded to reason upon the evidence produced. The duty of the court in supervising trials by jury in such a vital part thereof that no court may refuse to exercise such power whenever fully convinced of its duty so to do.' See also Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351.

The trial judge not only heard the testimony of the witnesses, including the medical evidence, but he saw the plaintiff in court, and in addition had an opportunity to hear the history of other similar cases read and discussed by eminent attorneys, to the end that when it became his duty to pass upon a motion for a new trial upon the question of excessiveness of the verdict, he could focus not only the facts but the law on the question of damages. It was his duty in the first instance to determine whether or not a new trial should be granted movant. Sec. 1536, Miss.Code 1942, Rec.

No appeal from an order granting a new trial was available to the parties in a damage suit on the question of excessiveness or inadequacy of damages until the above-mentioned Sec. 1536, supra, was amended by Chap. 230, Laws 1956. Since that time, this Court has followed the rule announced in Womble v. Miss. State Highway Commission, 239 Miss. 372, 123 So.2d 235, 236 (1960), as follows: 'The rule as universally announced in our decisions is that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal and supported unless manifest error appears or unless the action of the trial court in sustaining the motion shows a manifest abuse of his discretion, and the rule is particularly applicable...