Teche Lines, Inc. v. Bounds

Decision Date21 March 1938
Docket Number32869
Citation182 Miss. 638,179 So. 747
CourtMississippi Supreme Court
PartiesTECHE LINES, INC., v. BOUNDS

Division B

1 EVIDENCE.

Testimony of general practitioner of medicine that "it is possible" for traumatic injury to eye to cause astigmatism without leaving scar was insufficient to rebut eye specialist's testimony that injury to eye by pieces of broken glass driven into it, as claimed by plaintiff would invariably leave scar perceptible to examining instruments used by witness and that there were no scars on plaintiff's eye.

2 EVIDENCE.

Medical testimony is not probative, unless in terms of probabilities not possibilities.

3. DAMAGES.

The trial court did not err in ordering examination of plaintiff's eye by specialist and admitting latter's testimony as to result thereof after plaintiff pointed to his eye to illustrate his testimony in action for alleged injury thereto.

4. EVIDENCE.

Evidence which is inherently unbelievable or incredible is in effect no evidence and insufficient to sustain verdict.

5. EVIDENCE.

"Believable or credible evidence" in civil case is evidence reconcilable with probabilities of case, and bare possibilities are not sufficient.

6. EVIDENCE.

Evidence so contrary to probabilities, when weighed in light of common knowledge, common experience, and common sense, that impartial, reasonable minds cannot accept it, except as clearly improbable, will not support verdict.

7. EVIDENCE.

One on whom burden rests to establish right of controuersy must produce credible evidence from which men of unbiased minds can reasonably decide in his favor.

8. EVIDENCE.

An inherently incredible story is not made credible by being sworn to and cannot serve as foundation of verdict.

9. EVIDENCE.

Courts are not required to believe that which is contrary to human experience and laws of nature or judicially known to be incredible, though there is evidence tending to support it.

10. EVIDENCE.

A jury is not warranted in finding existence of fact on witness' positive testimony contrary to conceded facts, matters of common knowledge, or all reasonable probabilities.

11. APPEAL AND ERROR.

It is not essential to review by appellate court that improbability of fact found by jury from evidence shall amount to impossibility, but verdict may be set aside if such fact is so improbable according to ordinary operation of physical forces or so overwhelmingly disproved by credible witnesses as to compel conviction that jury failed to weigh evidence carefully, drew unwarranted inferences therefrom, or yielded to partisan bias.

12. EVIDENCE.

Jury's verdicts must be founded upon probabilities according to common knowledge, common experience, and common sense, not possibilities.

13. EVIDENCE.

A jury's verdict cannot convert a possibility or any number of possibilities into probability.

14. APPEAL AND ERROR.

Before appellate court can say that fact adjudged by jury as probability was only possibility insufficient to support verdict, it must be clear or manifest that only possibility, rather than probability, was shown by evidence.

15. APPEAL AND ERROR.

A jury's fact findings will be set aside only when clearly or manifestly against all reasonable probability.

16. APPEAL AND ERROR.

The driving of automobile six or seven miles after four pieces of glass were driven into one eye of driver was so clearly or manifestly improbable as to require reversal of judgment on jury's verdict for him in his action for injuries to such eye as to amount of damages, though testified to as fact by him.

17. EVIDENCE.

The jury is not obliged to accept as fact a clearly or manifestly improbable occurrence testified to by plaintiff.

HON. W. A. WHITE, Judge.

APPEAL from the circuit court of Hancock county, HON.W. A. WHITE, Judge.

Action by Dewey Bounds against the Teche Lines, Incorporated, for injuries caused by gravel thrown from the wheels of defendant's bus as it passed an automobile driven by plaintiff. Judgment for plaintiff, and defendant appeals. Affirmed as to liability and reversed and remanded as to amount of damages.

Affirmed as to liability; reversed and remanded as to amount of damages.

White & Morse, of Gulfport, and Porteous, Johnson & Humphrey, of New Orleans, La., for appellant.

When we false the uncontradicted testimony of Dr. C. A. McWilliams, an eminent eye specialist of Gulfport, Mississippi, we find that there was no injury to the eye, that the only thing appellee was suffering with was astigmatism, a disease of which ninety per cent of the people in the country suffer. This court has repeatedly held that where the testimony of a witness is not contradicted the judge and jury are bound by it.

Stevens v. Stanley, 153 Miss. 809, 122 So. 755; Railroad Co. v. Harrison, 105 Miss. 18, 61 So. 655; Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93.

The public must be protected in its rights fully, but the public service corporations must also be just as fully protected by the courts of the country in their just rights.

Railroad Co. v. Johnson, 92 Miss. 517, 46 So. 142.

What is the rule which should be adopted by the court in regard to looking to standard books on medical science or medical jurisprudence? A thorough search discloses only a few instances where this question has been before our court.

The latest case is Gholson v. Peters, 176 So. 605, a will case, where the question was capacity or incapacity to make a will. There the court looked to medical books and used the language "as the books on medical jurisprudence tell us," thereby adopting a medical authority as to a material trait of a monamaniac.

In Mullins v. Cottrell, 41 Miss. 291, at page 314, another case dealing with mental conditions, the court cited and relied on, and cited as establishing the fact in issue, two medical authorities.

Tucker v. Donald, 60 Miss. 460; W. O. W. v. Sloan, 136 Miss. 549; Rodgers v. Kline, 56 Miss. 808; Witherspoon v. State, 138 Miss. 310; Puckett v. State, 71 Miss. 192; Briscoe v. Buxbee, 162 Miss. 574; Vicksburg Waterworks v. Guffy, 86 Miss. 60; Adams v. Standard Oil Co., 97 Miss. 879; Masonite Corp. v. Hill, 170 Miss. 158; 22 C. J. 739; 23 C. J. 146-149: Shapleigh v. Mier, 81 L.Ed. 355; Ohio Bell Tel. Co. v. Public Utilities Co., 81 L.Ed. 1093; Watkins v. Ports, 65 A.L.R. 1097; 3 Wigmore, Learned Treatises, pages 2169-2172; 3 Wigmore (2 Ed.), page 651; Summers v. Bendelari, 262 P. 648; Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468; Lewis v. Gasenburg, 157 Tenn. 187, 7 S.W.2d 808; Smith v. Standard Sanitary Mfg. Co., 277 S.W. 806; Kelly v. Maryland Casualty Co., 45 F.2d 782; Dehn v. Kitchen, 209 N.W. 364; People v. McKernan, 210 N.W. 219; Caldwell v. State Compensation Comr., 144 S.E. 568; Sutton v. New Orleans Public Service, 130 So. 859, 44 S.Ct. 628, 25 S.Ct. 358.

If a doctor can testify to what he gathers from books, and that, with experience, is where he gets his knowledge, why then cannot the court consult the source of the doctor's knowledge?

It is clear to us that our court has adopted the rule that the court, in the first instance, can consult such standard treatises.

A close examination of standard medical books relating to injuries to the eye fails to aid us for the reason the books deal with generalities and not concrete cases. In other words, the books do not deal with the question of whether appellee could drive six miles with this glass in his eye for the reason this would depend on the size of the glass, the amount of penetration, exactly what point in the eye the glass entered, etc. We refer the court, however, to: Hygiene of the Eye, Posey, page 1, par. 1; Diseases of the Eye, May, page 142; Diseases of the Eye, Berens.

Gex & Gex, of Bay St. Louis, and G. B. Keaton, of Picayune, for appellee.

The pronouncement of this court in the case of Railroad Co. v. Johnson, 92 Miss. 517, 46 So. 142, is in our opinion a fair statement of the principles of justice by which the courts of all states should be governed; both individuals and corporations, when before the courts, should receive equal and unbiased consideration. But it will not be presumed by any court that simply because a verdict has been rendered against either the one or the other that an injustice has been done; and where as in this case, the overwhelming weight of the evidence amply supports the jury's verdict, this court cannot and will not set it aside on any such bare presumption.

The sole authority presented by appellant to the lower court for the introduction of Dr. McWilliams and his examination of the plaintiff was the case of Dixie Greyhound Lines v. Matthews, 170 So. 686, 177 Miss. 103. Appellant claimed that by merely pointing to the eye, the plaintiff waived the inviolability of his person which he was guaranteed under the decision in the case of Yazoo & M. V. R. Co. v. Robinson, 107 Miss. 192.

The decision in the Dixie Greyhound case specifically limits such examination to cases wherein the plaintiff's right to refuse such an examination has been waived, and certainly this case does not fall within the rule pronounced in that case.

The spirit of the law as evidenced by former decisions and the rules of the court in this state has always been that the Supreme Court will not review facts, and will notice only errors raised and passed upon in the court below, or which appear on the face of the record.

Williams Lbr. Co. v. Henley, 155 Miss. 893; Anderson v. Leland, 48 Miss. 253; George & Co. v. L. & N. R. R. Co., 88 Miss. 306; Adams v. Clarksdale, 95 Miss. 88; Miss. Valley Trust Co. v. Brewer, 157 Miss. 890; State v. Woodruff, 170 Miss. 744.

Courts will not take judicial notice of facts which are not...

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