Sussman, Wormser & Co. v. Sea Food Co

• Decision Date: 15 January 1923
• Docket Number: 22948
• Parties: SUSSMAN, WORMSER & CO. v. SEA FOOD CO
• Court: Mississippi Supreme Court

94 So. 795

130 Miss. 632

SUSSMAN, WORMSER & CO. v. SEA FOOD CO

No. 22948

Supreme Court of Mississippi

January 15, 1923

September 1922

NEW TRIAL. May be granted on issue of damages alone.

A judgment for plaintiff on the issues of liability and damage is not an entirety and therefore indivisible; such judgment is founded on two separate and distinct issues---liability and the amount of recovery ---and a new trial should be granted in a proper case on the issue of damages alone, the judgment as to liability being permitted to stand; and the circuit courts, as well as the supreme court, have the power to grant such new trials, the power of the former in that respect being coextensive with the power of the latter.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by Sussman, Wormser & Co. against Sea Food Company. From the judgment rendered, plaintiffs appeal. Reversed and remanded for new trial on question of damages alone.

Reversed and remanded.

Rushing & Guice, for appellant.

The law of this case was decided by your honors on the former appeal and a very clear, concise and full opinion rendered. On the second trial a much stronger case was presented to the court below as in addition to the evidence introduced at the former trial the plaintiff introduced the secretary of the Oyster Commission, one W. J. Grant, who showed by the records of the Commission the large number of oysters packed by the defendant during the time the contract with the plaintiff should have been filed. Any error in this respect however was cured by the verdict of the jury.

The sole and only question presented by this appeal is the question of the amount of the damage the plaintiff should recover. Testimony of B. O. Gunn, a witness produced on behalf of defendant Gunn testified, five ounce oysters, one dollar and thirty cents per dozen; ten ounce oysters, two dollars and sixty cents per dozen, less five or ten cents per dozen.

So in computing the cost of the car according to specifications we find:

1100 cases, 4 doz., 5 oz. per doz., $ 1.30 cases, $ 5.20

$ 572.00

300 cases, 2 doz.; 10 oz. per doz., $ 2.50 case, $ 5.00

1500.00

75 cases, 4 doz., 4 oz. per doz., $ 1.20 cases, $ 4.80

360.00

25 cases, 2 doz., 8 oz. per doz., $ 2.40 case

60.00

$ 7640.00

(This witness did not give quotations on four ounce and eight ounce but all other witnesses give basis price of five ounce oysters for which any other size can be figured.)

The difference between this figure, viz: seven thousand six hundred forty dollars and the sum of four thousand four hundred fifteen dollars, the purchase price of the car of oysters under the contract is three thousand two hundred twenty-five dollars which is the amount the jury should have returned a verdict for if the defendant's testimony is to prevail.

We submit that from an examination of the record the court will observe that all of the witnesses for the plaintiff testified to the price being near the price testified to by the witness Herlitz, none of them less and some of them more. The witness Gunn who was defendant's witness being the only witness who testified that the basis price on five ounce oysters was one dollar and thirty cents per dozen.

The court gave the jury the following instruction: "The court instructs the jury for the plaintiff that if the jury find for the plaintiff, the plaintiff is entitled to recover such sum as damages as is the difference between the price as set out in the contract in evidence and the market price of oysters of the same quality, grade and size on March 1 1919." Which instruction is in accordance with the opinion of this honorable court on the former appeal.

We submit that any verdict the jury might find between the sum of three thousand two hundred twenty-five dollars which was the market price as testified to by Gunn, and the sum of about four thousand dollars, which was the highest price given, would be proper and correct but certainly the jury should not be permitted to arbitrarily fix any amount they saw fit. This verdict is evidently a "quotient verdict" as it is about twenty-five per cent of the damages proved by the plaintiffs witnesses. It appears to be either a verdict of that kind or a pro rata damage verdict. In any event it does not assess the damage according to the rule announced by your honors and the case should be submitted to another jury on the question of damages only or final judgment in this court. The overwhelming proof in this case is that the damages amount to at least the figures testified to by the witness Herlitz.

We respectfully submit that appellant is entitled to damages measured by the rule announced in your honor's former opinion and is entitled to have the damages assessed by another jury or to final judgment in this court.

J. L. Taylor, for appellee.

After a most careful investigation of the law books, we are unable to find any cases authorizing the trial court to set aside a part of the judgment and to submit the damages to another jury, and counsel does not cite any case in support of their contentions, and therefore we seem to be driven to the inescapable conclusion that this appeal is without merit.

No other error is...