97 So. 484 | Miss. | 1923
delivered the opinion of the court.
This is a suit by Jim Adams, Sr., the father of and as next friend of his minor son, Jim Adams, Jr., against the appellant to recover damages for an injury sustained by Adams, Jr., who will hereafter be called the appellee, while in the appellant’s employ, because of the appellant’s alleged negligence, and from a judgment in favor of the appellee for ten thousand dollars, the appellant has appealed to this court.
The appellant owns and operates a sawmill and employed the appellee to work therein at a trimmer table. Under this trimmer table and extending seven and one-half inches beyond it was a rapidly revolving shaft. On the extension of the .shaft beyond the table was an exposed set screw. Near this set screw was a lever which the appellee occasionally had to operate with his foot, and in so doing his leg would at times come in close proximity to the set screw, and on one occasion this screw became entangled in the appellee’s clothing while he was, according to the evidence, in the exercise of due care and caused him to revolve around the shaft resulting in his
A motion then made by the appellant to exclude the testimony of the physician introduced by the appellee was overruled. The appellee testified in his own behalf, and while on the stand was asked by counsel for the appellant if he was willing for the physician who treated him to testify as to his injury, but on objection by his counsel the court ruled that he need not answer the question. Over the objection of the appellant, the appellee was permitted to prove that after he was injured the appellant, cut off that part of the shaft which projected beyond the trimmer table and put the set screw on the shaft at a place where a person operating the lever would be in no danger therefrom.
The term of court at which the cause was tried convened regularly in the courthouse of the county, but thereafter removed therefrom to a building near by, in which the remainder of the session was held and in which this cause was tried. In a motion for a new trial filed after the judgment was rendered, the appellant alleges that the judgment is void for the reason that the court when rendering it was being held in a place not authorized by law. It appears from the evidence introduced on this motion that the courthouse was being repaired, and the board of supervisors, while the court was in session, made an order under section 325, Code of 1906; Hemingway’s Code, section 3698, designating another building for the holding of the courts of the county until the repairs on the regular courthouse should be completed, and it was in this building that the judgment here in question was ren
“It appearing to the court, that the regular courthouse of the county is at this time undergoing repairs and that the same is for that reason unfit at this time for the remainder of this term of this court; and it appearing to the court from the minutes of the board of supervisors of Forrest county that said board had provided and designated that building on Hemphill street in the city of Hattiesburg, and about four hundred feet from the regular courthouse and known as the Bed Circle, for the holding of the remainder of this term of the court; and the business of the court and the public interest requiring that the remainder of the court be held — it is ordered and adjudged that the remainder of this term of court be held in said building so provided and designated.”
The appellant introduced evidence to the effect, and we will assume for the purpose of the argument, that the order of the board of supervisors designating the’ building in which the court should be held is void, for the reason that it was made at a time when the board was without authority so to do.
The appellee lacked several months of being twenty-one years of age when his injury occurred, and the court beIoav instructed the jury, in effect, to include in their verdict, if for the appellee, damages for his reduced earning-capacity from the date of his injury. The appellee’s father and mother are both living. He has been working for the appellant for several years, but to whom his wages were paid does not appear. His father testified as a witness in his behalf.
The assignments of error argued,in the brief of counsel for the appellant are to the effect that the court below erred:
(1) In not holding that the judgment herein rendered is void for the reason that it was not rendered in a place at which the court was authorized to be held.
(3) In permitting the appellee to recover for reduced earning capacity during his minority.
(4) In not permitting the appellant to ask the appellee if he was willing for the physician who treated him to testify as a witness.
(5) In not permitting the physician offered by the appellant to testify.
(6) In not holding the verdict to be excessive.
1. The first duty of the judge of a court, when called on to hold a term of the court in a place other than the regular courthouse, is to decide whether or not such place has been lawfully designated as the place therefpr, and his decision that it has been so designated is final' and is not open to collateral attack by each litigant in cases thereafter there tried.
2. Whether the court erred or not in admitting the evidence of the removal of the set screw is wholly immaterial, for on the other evidence the negligence of the appellant in allowing the set screw to be where it was when the appellee was injured is clear.
3. Assuming for the sake of the argument that ordinarily the right to compensation for the appellee’s reduced earning capacity during his minority would be in his parents, that right was here necessarily waived, for his father, in whom the right primarily rests, brought this suit and obtained the judgment himself as the appellee’s next friend.
4. No harm was done the appellant by not permitting it to ask the appellee Avhether he Avould consent to the physician who treated him testifying as to his injuries. An affirmative answer Avould not have bound the appellee, and his consent could have been obtained from him as Avell when he was off, as Avhen he was on, the witness stand.
5. As ruled in U. S. F. & G. Co. v. Hood, 124 Miss, 548,
6. \ The verdict is not so excessive, if at all, as to justify our interfering Avith it.
Affirmed.
