49 So. 840 | Miss. | 1909
delivered the opinion of the court.
Counsel for appellant very frankly concedes that the questions in this case were properly questions to be' submitted to the jury, and further concedes that the verdict of the jury must be affirmed, unless there was error committed by the trial court in the admission of certain testimony, which we shall notice in this opinion a little later, or unless the court should hold that the verdict was excessive, or that the case should be reversed on account of improper argument of counsel for appellee. Thus, by concession of counsel, the questions are narrowed down to three; the prime one being the assignment of error which asks for a reversal on account of the admission of improper evidence.
The testimony objected to is the testimony of McNeese, Holmes, and Turnage, witnesses introduced by plaintiff for the purpose of proving statements made by plaintiff as to present pain and suffering at the time these witnesses were talking to her.. We will give in full that part of the testimony to which objection is urged, and it will be noted that the plaintiff was not narrating past pain and suffering, or attempting to give a history of the cause of the accident, but is simply stating to them her present pain.
The first witness testifying on this subject was C. D. McNeese;
W. W. Holmes was the next witness, and his testimony was as follows: “Q. State whether or not you saw any indications of whether or not she was affected by that fall, and, if so; what they
All that these witnesses testify to happened soon after tbe injury complained of.
John Turnage was tbe next witness, and bis testimony was as follows, viz.: “Q. When did sbe return ? A. Sbe returned back here in January. Q. Some time tbe following January? A. Yes, sir. Q. They were gone four or five months? A. Yes, sir. Q. From tbe 29th of August until along in January ? A. Some time in January. Q. Did you see her immediately upon ber return? A. Yes, sir. Q. Did sbe go to your bouse? A. Sbe went to my bouse, and stopped tbe night witb me, tbe first night after returning back here. Q. Where did sbe go then? A. They knocked around among their kinfolks a few days. Q. They lived where ? A. At Mr. Toney’s, two and a half or three miles from me. Have you seen ber frequently around since her return? A. I bave seen ber something like once a month. Q. When you first met ber at your bouse that first night, state whether or not there was any change in ber condition. If so, wbat was it ? A. Sbe didn’t seem to be tbe same woman at all in ber speech and in tbe way sbe would carry herself. Sbe
The injury complained of was some time in August, and the matters testified about by John Turnage occurred the succeeding January; but it will be noted that the testimony of all these witnesses is as to present pain and suffering. Counsel for appellant relies on the following authorities as sustaining his contention: Louisville R. R. Co. v. Shires, 108 Ill. 617, 22 Cent. Law J. 512; Pilkinton v. Gulf, etc., R. R. Co., 70 Tex. 226, 7 S. W. 805; Kennedy v. Rochester, etc., R. R. Co., 130 N. Y. 654, 29 N. E. 141; Johnston v. Oregon, etc., R. R. Co., 23 Ore. 94, 31 Pac. 283; Roosa v. Boston Loan Co., 132 Mass. 439; Augusta, etc., R. R. Co. v. Randall, 79 Ga. 304, 4 S. E. 674; Jones v. Portland, 88 Mich. 598, 50 N. W. 731, 16 L. R. A. 437; Atlanta, etc., R. R. Co. v. Gardner, 122 Ga. 82, 49 S. E. 818;
We do not think the quotation made by counsel for appellant from page 512 of 22 Central Law Journal has any application, to this case. An examination of that part of the article referred to and quoted in the brief shows that the writer is there dealing with a different question from the question in this case. The quotation from counsel’s brief is from that part of the article in
In the case of Atlanta, etc., R. R. Co. v. Gardner, 122 Ga. 82, 49 S. E. 818, and Kennedy v. Rochester & B. R. Co., 130 N. Y. 654, 29 N. E. 141, the former being a Georgia case and the latter being a New York case, the court in both cases did hold such testimony inadmissible, and we will take up these two cases and discuss them. In the Georgia case, the court seems to be simply following earlier decisions of its own cited in 122 Ga. and 49 S. E., on this subject as a matter of settled law in that state, but recognizes the fact that it is out of harmony with the general rule on this subject, as will be seen by reading that portion of opinion to be found in the second column of page 824, 49 S. E., and on page 96, 122 Ga., where the court says: “While we feel some hesitancy in laying down a rule in this state which will run counter to the rule genex’ally, if not universally, accepted elsewhex'e, we have reached the conclusion that tlxex’e is no sound reason for making any exception in cases of this character to the rule which excludes hearsay testimony.” It is thus seen that the Georgia court recognizes that the general rule is otherwise than as declared by that court. A little further on this same court says: “'The distinction between statements of pain and suffexdng made to a physician and such statements made-to* any other person, so far as admissibility in evidence is concexnied, has been rejected by a number of courts, including the supreme •court of the United States, which court has held that The declarations of a party hixnself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present existing pain
Mr. Wigmore, in his treatise on the Law of Evidence, which in the judgment of the writer of this opinion is without an equal in its logical, accurate, and comprehensive statement of the rules governing the production of evidence, approves the rule adopted by the United States Supreme Court and almost all other courts, and says of the New York court the following, viz.: “In New York, and a few other jurisdictions following the New York «rulings, the doctrine has been established that all pain statements whatever are subject to the general limitation that they must have been made to a physician during consultation. The truth seems to be that the New York limitation is inconsistent alike with precedent, with principle, with good sense, and with itself. Unfortunately, however, its place as a local anomaly lias not always been perceived, and courts in several other jurisdictions have accepted the physician limitation of the modern New York eases as if they presented the orthodox rule.” 3 Wig-more on Evidence, pp. 2210, 2211, §§ 1718, 1719.
We do not deem it necessary to pursue the discussion of the cases cited by counsel any further, since it must be manifest that the authorities relied upon do not support the contention, or, if they do, they are opposed to the almost universal rule, and, if followed, would often result in an obstruction of justice. In truth, there are only three other cases cited by counsel; one of them being the case of Roche v. Brooklyn, 105 N. Y. 294, 11 N. E. 630, 59 Am. Rep. 506. We have already discussed the position of the New York court on this question, so will pass this case, merely calling attention to the fact that it is a New York case. The case of Keller v. Gilman, 93 Wis. 9, 66 N. W. 800, is a decision sustaining the contention of appellant, but, as we have seen, is in opposition to the almost universal rule; and the same may be said of the ease of Klingaman v. Fish & Hunter Co., 19 S. D. 139, 102 N. W. 601, being’ a South Da
The remaining two assignments of error seek a reversal because of language used by one of the counsel for appellee in his closing argument to the jury, and because it is claimed that the verdict is excessive. As to the first proposition, it does not appear that any exception was taken to the argument now claimed to be cause for reversal at the time the argument was made, and, this being the case, we cannot reverse, even if we were to concede that the argument was improper; and on the second proposition we cannot say that the verdict was excessive. The jury heard the whole case, and on the evidence it was their judgment that appellee should recover the amount found by them, and we cannot say they were wrong.
Affirmed.