77 So. 2d 276 | Miss. | 1955
This is an appeal from a verdict and judgment in favor of the defendant in a personal injury suit for damages. The grounds of error assigned for a reversal of the case are (1) That the trial court permitted unlimited latitude to the attorney for the defendant in the cross-examination of the plaintiff with reference to his previous convictions for the sale or manufacture of intoxicating liquor on which the revenue to the federal government had not been paid; (2) that the trial court erred in permitting the attorney for the defendant to argue that the plaintiff had purposely thrown himself out of the taxicab so as to get hurt in order that he would be able to avoid appearing in the federal court to answer charges of selling whiskey on which the federal revenue tax had not been paid, and that the plaintiff being a bootlegger had no right to recover damages against the defendant; (3) that the trial court erred in instructing the jury that the plaintiff’s failure to introduce a Dr. Melvin (who had treated the plaintiff in the hospital at the instance and expense of the defendant) as a witness on his behalf would create a presumption that if he had been introduced as a witness his testimony would have been unfavorable to the plaintiff; and (4) that the trial court erred in overruling the plaintiff’s motion for a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence, and disclosed bias prejudice and ill will on the part of the jury against the plaintiff.
Section 1693, Code of 1942, provides among other things that: “Any witness may be examined touching * * * his conviction of any crime, and his answers may be contradicted, and his interest on his conviction of a crime established by other evidence; and a witness shall not be excused from answering any question, material and relevant; unless the answer would expose him to criminal prosecution or penalty. ’ ’
The attorney for the appellee in his brief takes the position that the plaintiff was trying to be facetious with him, and the record of the testimony shows that he proceeded to further question the plaintiff as follows: “ Q. And you have been convicted of the violations of the Internal Revenue Laws of the United States of America some twenty-eight times in the Federal Court — the District Court of the United States in Biloxi, Mississippi, since the year 1931, haven’t you? A. Well, just like I told you a minute ago, I don’t know how many times I have been convicted. Q. All right, at the time of the accident you complain of, were you not then under indictments and on bond on bail for —.” The trial court sustained the objection to this question as to whether he was under indictment, and limited the issue to convictions. No motion was made here for a mistrial. The plaintiff was then asked specifically about certain convictions, which he admitted. There was no error in the foregoing procedure, since the inquiry was expressly permitted by the statute hereinbefore mentioned, and no motion was made for a mistrial as to mere indictments.
However, before concluding his cross-examination of the plaintiff the attorney for the defendant was asking the plaintiff about what jobs of work he had been engaged in beginning with “the first day of January, 1951, and come to the last day of December 1951. What job did you have? A. What job did you explain to this jury
On the second assignment of error mentioned in paragraph one of this opinion in regard to the attorney for the defendant having told the jury in his argument that the plaintiff had purposely thrown himself out of the taxicab so as to get hurt in order that he would be able to avoid appearing at the next term of the federal court to be held in Biloxi to answer charges of selling-whiskey on which the federal revenue tax had not been paid, and should not therefore be permitted to recover damages from the plaintiff on account thereof, we find that a bill of exceptions was offered by the plaintiff, embodying this complaint, and that the purported bill of exceptions signed in the name of the plaintiff by his attorney, was followed by a notation signed by the trial judge which reads: ‘ ‘ The argument of the attorneys to the jury having been recorded in this case by the court reporter, the said argument shall be a part of this bill of exception.” However, the arguments of the attorneys to the jury are not contained in the record before us so as to enable this Court to determine exactly what was said, and the context thereof. However, the notation following
It is true that the plaintiff had admitted, in effect, that he was a bootlegger, but there is no proof in the record that he “had thrown himself head first out of the taxicab on the day he was hurt, so as to avoid meeting the Federal Court where several indictments were pending against him for not having paid the revenue to the United States Government on whiskey that he had in his possession at that time.” Assuming that the attorney thought it to be a reasonable inference from the facts to be hereinafter stated that the plaintiff, a man weighing at least 200 pounds, had purposely unlatched the taxicab door and fallen out on the ground on his neck and shoulders, so as to injure his neck and back, there wras no proof that he had done so for the purpose of avoiding going to the Federal Court to answer several indictments then pending against him for not having paid the revenue to the. United States Government on whiskey that he had- in his possession at that time, or had
The pendency of such indictments would not have been competent proof even if such proof had been made. It is only competent to prove prior convictions of crime as going to the credibility of a witness.
Of course, a proof of previous convictions of crime is always prejudicial to a plaintiff, even though such proof is admissible on the issue of the credibility of him as a witness. It is impossible to impeach the credibility of the plaintiff as a witness without such proof being prejudicial to his interest in the case. But the statute authorizes such proof to be made.
On the third assignment of error mentioned in paragraph one of this opinion, it appears that the plaintiff did not employ Dr. Melvin, but that this doctor treated him while he was in the hospital, and had done so at the instance of the defendant. Nevertheless, the relation of physician and patient had existed, and the doctor was shown to have had an office in the City of Gulfport during the trial and that he was not subpoenaed as a witness by the plaintiff; and of course, he was not available to the defendant as a witness without the plaintiff’s consent. He was not offered as a witness and was not therefore prevented from testifying by any objection of the plaintiff. However, his testimony would have only related to the extent of the damages, and none were allowed.
We next come to the fourth and final assignment of error made by the plaintiff on this appeal and the claim that the trial court was in error in overruling the plaintiff’s motion for a ne,w trial on the ground that the verdict was not supported by the evidence, and that the jury was motivated by bias, prejudice, and ill will against the plaintiff by reason of having been cross-examined with reference to his previous convictions of crime.
According to the testimony on behalf of the defendant, the taxicab driver reached over from where he was sitting behind the steering wheel to ascertain that the door was locked, and that he found the door was fastened, after the plaintiff’s small son had gotten on the front seat by the driver and his father had gotten in the taxicab next to the front side door thereof; and that it was impossible for the door to become unlatched and to open without the lever being lifted up by the hand of the passenger sitting next to the door. It is therefore the theory and contention of the defendant that the plaintiff- had raised the lever, unlatched the door and had fallen on the ground as the door opened. In fact, the defendant contends that the testimony on its behalf shows that the plaintiff did put his hand on the latch, then unlatched the door before it came open, and that he then fell out. With deference, we do not so interpret the testimony on that issue as given by the driver of the taxicab, the only witness for the defendant who testified as to how the accident occurred. The taxicab driver was asked: ‘ ‘ What did you do when you got immediately in front of his filling station? A. Well, when I got right close to the filling station, I looked to my left and there was a bunch of cars traveling from the rear, so I just pulled over to my right and let the cars go by. When the road got clear, I just cut the car over— * * * Q. Well, what directions did he give you, if any, where to drive to? A. Well, he told me to pull around — , he said, ‘Pull up and go around between the tanks and the store.’ ’’ The witness further testified: “I just turned to my left across the highway and went to pull — started to pull right in between the tanks, and just as — when my front wheels went off the highway, I heard a door click, and suddenly I stepped on the brakes and Mr. Gar-raga was falling out * * ■ * Q. Did you see his
An automobile mechanic, when testifying as a witness for the defendant, said that he found the doors on the ear to be in good shape, having particular reference to the latches, but admitted that an impact would cause a door to flare open from the bending of a frame; that a bad twist of the car would cause the door to open.
In the case of Williams v. Lumpkin, 169 Miss. 146, 152 So. 842, the court said among other things that: “We therefore take judicial notice of the fact that the sedan type of the modern automobile has a latch on each door which will prevent the door coming open, and that such a door will come open only when unlatched. * * * Moreover, these automobile bodies of the sedan type and the doors and latches are so designed and constructed that speed and swerves do not unlatch the doors, as is demonstrated day after day everywhere, provided the equipment is in good repair; and there is no suggestion that any part of the automobile here was in any respect out of order or not in good repair. * * * If the door had not come open, the child would not have been injured. The door would not have come open unless it was unlatched. The defendant did not unlatch it or have any reason to anticipate that it was or would be unlatched.
The case above referred to would be controlling in the instant case except for the fact that it is undisputed that a front wheel of this taxicab dropped into a drain or hole, and that the plaintiff thereupon either unlatched the lock of the door or that his weight when he was
We have concluded that the verdict of the jury is against the great weight of the evidence and that the case should be reversed and remanded for a new trial. As to the instruction in regard to the failure of the plaintiff to call Dr. Melvin as a witness, it was only shown that he had an office in Gulfport but the record does not affirmatively show that he was available as a witness at the time of the trial, but this is a matter that would be developed on a new trial and the basis for the giving of such an instruction may be supplied at that time.
Reversed and remanded.