100 So. 3 | Miss. | 1924
delivered the opinion of the court.
This is an appeal by F. W. Woolworth Company from a judgment for two thousand dollars rendered against it in favor of Miss Cora Volking as damages for the willful pegligence of appellant in failing to furnish her a reasonably safe and comfortable place in which to work, resulting in her contracting a severe cold, which caused her to suffer physical pain, and injuries to her nose, throat, and eyes.
The facts of the case, as shown by testimony of appellee, necessary to an understanding of the decision, are, in short, as follows: On and before January 25, 1923, Miss Volking was employed as cashier and'bookkeeper for the Woolworth Company in Gulfport. On the date mentioned the weather was very cold, and after Miss Volking had started upon her duties that morning, Mr. Anderson, the manager of the Woolworth Company shut off the heating radiators in the store, opened the doors, and turned on the ceiling fans, causing the storeroom to become very cold and uncomfortable. The appellee complained to Mr. Anderson about turning off the heat and asked that it be turned on again because she was cold, and
Miss Vollring testified that she became chilly and sick on account of the cold temperature in the store and contracted a cold, had to leave at five o’clock in the afternoon, and was sick in bed for two days thereafter on account of the cold she had contracted. She came back to work, however, at noon on the second day and remained in the service of the appellant for several months, and after leaving the employment filed this suit to recover damages for the injury and suffering caused by the conduct of Mr. Anderson, the manager in charge of the Woolworth business. Miss Vollring testified she had an operation about two months before the 25th of January, in which the doctor had cut some bones out of her nose, and that this trouble had not healed, and she made continued visits to the doctor for further treatment of her nose up to the time of the alleged injury on the said 25th day of January, 1923. She claimed the cold she contracted at the store on the day mentioned caused her nose to become injured and stopped up, which gave her great pain and discomfort until she had a doctor to burn it out again about two weeks after the 25th of January. She also testified the cold she contracted caused her to have sore eyes and a sore throat. The testimony was objected to by the defendant below. The court instructed the jury that they might assess damages for the alleged injuries to the nose, eyes, and throat. The plaintiff below did not introduce her doctors to show by their expert testimony that the cold she contracted caused the injury to the nose, throat, and eyes, but she, merely gave it as her opinion alone that these troubles and injuries resulted from the cold that she had contracted on that day in the Woolworth store.
The appellant urges reversal on several grounds among them being that the court erred in., admitting in
We shall pass upon one point only, which will result in a reversal, and the other errors complained of may not arise on a new trial, and that is the question of whether or not the testimony in the case was sufficient to show a causal connection between the cold contracted by Miss Volking and the subsequent injury to her nose, eyes, and throat complained of by her.
The appellant urges that no recovery can be had for any amount because the negligence complained of is not shown to have proximately resulted in any injury or suffering to the appellee; but we disagree with this contention, because we think the testimony is competent and sufficient to show that she contracted a bad cold on account of having to remain in the cold building during the day in question — conceding for the purposes of this ease (though not deciding because the point is not raised) that appellant owed appellee the duty to furnish her a reasonably comfortable place in which to work. But it is our judgment the testimony of the appellee alone, in which she gave her opinion or conclusion'that the injury to her nose necessitating its being burnt out, and the trouble with her eyes and throat several weeks after the exposure, was caused by the cold, was not sufficient to establish a causal connection between the cold and the subsequent injuries complained of. She did not put the doctors on the stand who attended her, who doubtless could have furnished expert testimony of probative value as to whether or not the cold had caused the other troubles. Her opinion on the subject, without a basis of facts therefor, amounted to very little more than mere
Miss Yolking testified she had an operation in which a quantity of bone was taken out of her nose two months prior to the exposure in question, and that she was not entirely well from this operation at the time she took the cold. A bad cold from which a person is confined for a few days does not necessarily, of common knowledge, result in sore eyes, or the kind of an injury to her nose which she complained of and subsequently had burned out. It is possible that these injuries could have proximately resulted from the cold, still the proof offered, which was merely the unsupported opinion of a non-expert without a reasonable basis of facts upon which to found it, was not sufficient nor competent to establish this fact, and we think the court erred in admitting the testimony and permitting the jury to allow damages for the injuries to the nose, eyes, and throat. Y. & M. V. R. Co. v. Boone, 111 Miss. 881, 72 So. 777.
We note the appellant points out that the testimony for the plaintiff is weak and is overcome by the opposite proof in the case, and therefore no recovery should be allowed to stand. While we think the case has some circumstances in it which might lead to the belief that the claim for damages is not wholly well founded, yet we are not prepared to say the testimony of Miss Yolking is unbelievable or is so unreasonable as to be repulsive to the truth as conceived by the ordinary mind. It is true she continued in the employment for several months before leaving it and bringing this suit, and her conduct, as shown by the record, in the meantime was indicative that she did not think she had been substantially wronged warranting a suit for damages. And it is also in evidence that she was heavily dressed, -under and outer, with a sweater and an overcoat in the store on the day she claims she suffered the cold; and the heat could have been turned
The act of Mr. Anderson, as testified to by Miss Yolking, in turning off the heat, opening the doors, and turning on the fans on a freezing day, was certainly remarkable for a sane man to do who was intrusted with the management of such an important business. However, the story of the plaintiff is not an impossible one, and the jury had the right to believe it, and their finding of fact is not to be disturbed by this court where the evidence upon which the finding is based is competent and sufficient to support the finding.
Reversed and remanded.
ON SUGGESTION OE ERROR.
It is suggested by the appellee in this case that we erred in not remanding the case for a trial on the amount of damages only, since we had decided that the liability of the appellant was established. We think the suggestion of error is well taken on this point, and after a careful consideration of the competent proof in the record as to the amount of damages sustained by the appellee we are of opinion the amount allowed was excessive, and if the appellee will enter a remittitur here reducing the amount to five hundred dollars the case will be affirmed; otherwise, it will be reversed and remanded for trial on the question of damages alone.
Sustained and affirmed, with remittitur.
