Pigford v. Howse

115 So. 774 | Miss. | 1928

^* Corpus Juris-Cyc. References: Damages, 17CJ, p. 1007, n. 20; p. 1022, n. 33; p. 1071, n. 70. Appellee, Howse, filed suit for damages for personal injuries against appellant, Mrs. J.W. Pigford. The injuries were charged to have been received from an automobile collision; the cars being driven by parties to the suit. The declaration also sues for damages to a Ford truck driven by appellee. In the circuit court there was a verdict and judgment in favor of appellee for four thousand dollars, from which judgment this appeal is prosecuted.

The collision between the two cars occurred at the intersection of Twentieth street and Twenty-Sixth avenue in Meridian, while appellee was driving north on Twenty-Sixth avenue and appellant was driving east on Twentieth street.

The main facts as to the collision were elicited from the parties to the suit, and the effect of the testimony was that each blamed the other for the collision.

There were physical facts strongly supporting the appellant, and physical facts supporting the appellee's statement.

The appellee's truck was overturned, pinning appellee thereunder, where he remained until friendly hands extricated him.

The injury sustained by appellee was that he was bruised and sore, and later on that day had to go to bed, where he was confined some days, and that, since that time, he has suffered with headache and pain, and a permanent impairment of vision in his left eye; that he had not been subject to headache, and there was no impairment of his vision prior to the injury.

Such facts as we deem necessary as to the damage to the Ford truck will be dealt with in our consideration of that subject.

The declaration charged that:

"This plaintiff was thereby bruised and mashed both internally and externally and severely jarred and jolted, and made sore and lame, and he was thereby caused to suffer great physical pain and mental anguish, and to lose time and wages from his work, and to be permanently impaired in his strength and health and earning capacity, and to lose the value of the said Ford truck, all of which pain and suffering, and loss of time, and the loss of the value of the said truck, and the impairment of health and strength and earning capacity, was due to, and caused by, the negligence of the defendant and was a proximate result thereof."

In the course of the trial, when the appellee offered to prove a permanent impairment of his vision, or circumstances tending to establish that fact, the appellant objected thereto on the ground that it was special damages not sued for in the declaration. Thereupon the appellee asked and obtained leave to amend his declaration by inserting therein the following words: "Including an injury to and a permanent impairment of the left eye." No order was entered on the minutes granting appellee the right to amend the declaration in this particular, and the defendant made application for a continuance because of said amendment, pleading surprise. The court declined to delay or continue the cause, and overruled objections duly and timely interposed as to evidence relative to injury to, and permanent impairment of vision of, appellee. The evidence tended to sustain the allegations contained in the amendment to the declaration.

There are numerous assignments of error, but we shall group them in accordance with what we conceive to be the points made in brief of counsel:

(1) It is urged that appellant was entitled to a peremptory instruction. Having carefully read the evidence in the transcript, we think there was sufficient evidence on behalf of appellee to warrant the court in submitting the case to a jury, and we do not feel that we are called upon, in this case, to disturb the finding of the jury on the facts.

(2) It is contended that the action of the court on permitting the amendment to be made during the progress of the trial was error.

(3) That the refusal of the court to grant a continuance after permitting the amendment was error; and

(4) That the case should be reversed because there was no order entered on the minutes permitting the amendment to be made.

Considering these propositions together, in the light of sections 573, 574, Hemingway's 1927 Code, the appellant would be entitled to have this case reversed, unless the declaration sufficiently charged this item of damages independent of the amendment. The case would be reversed under the authority ofOliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357, wherein the court said: "An amendment to a declaration, after issue joined, can only be legally made by an order entered on the minutes of the court; the court can only speak through its minutes," — unless the declaration, as originally filed, alleged facts sufficient to permit the evidence offered as to impairment of vision of the appellee. If the evidence was incompetent under the allegations quoted, supra, from the declaration, then the case will have to be reversed. If it was permissible to offer proof as to injuries, and permanent impairment of vision, under the language of the declaration, then there was no reversible error. Lackey v. Railroad Co., 102 Miss. 339, 59 So. 97.

We are of opinion that the allegations in the declaration that the injuries complained of caused the appellee "to be permanently impaired in his strength and health and earning capacity" were sufficient general allegations to permit the evidence of permanent impairment of vision, or of any injury to the eye which was the direct and proximate result of the alleged injury.

Counsel for appellant cites the following Alabama cases: Atl.Coast Line R.R. Co. v. Watson, 215 Ala. 254, 110 So. 316;Atl. Coast Line R.R. Co. v. Thomas, 19 Ala. App. 76,95 So. 53; Mobile, L. Ry. Co. v. Therrell, 205 Ala. 553,88 So. 677, to support appellant's position that under the declaration the evidence offered as to impairment of vision was incompetent; but the language here used is broad enough to contemplate any impairment of health. This court has frequently held that it was not necessary for the declaration to set out the evidence, for the pleadings are designed to succinctly state the cause of action.

When it was alleged in this declaration that there was a "permanent impairment of strength and health," that language certainly included as well any injury to his eye as to any other part of the human anatomy. On this subject this rule is aptly stated in 3 Sutherland on Damages (2 Ed.), 2661, as follows:

"The general rule in tort is that the party who commits a trespass or other wrongful act is liable for all the direct injury resulting, although such injury could not have been contemplated as the probable result of the act done. The plaintiff may show specific, direct effects of the injury without specifically alleging them; as that he was thereby made subject to fits. If they were a part of the result of the injury, the plaintiff may recover for such damage, without specifically alleging it, as well as the pain and disability which followed. The obviously probable effects of the injury may be given in evidence, though not laid in the declaration. Thus, where one of the direct consequences of a wound was the loss of the power to have offspring, evidence of that fact was admissible, though the declaration did not specifically designate that consequence."

In effect, our court adopted this rule in the case of A. V.R.R. Co. v. Hanes, 69 Miss. 60, 13 So. 246, in which case, under a general allegation of hurt and discomfort to the body and mind, the court permitted proof that the injured party contracted a severe cold, causing chorea, and inflammation of the throat, and injury to his vocal organs, affecting his power of speech, holding that to be competent under the general allegation. As sustaining us in our conclusion, we cite the authorities cited in the Hanes case, and Croco v. Oregon Short Line R.R. Co., 18 Utah, 311, 54 P. 985, 44 L.R.A. 285, and Denver R.G.R.R. Co. v. Harris, 122 U.S. 597, 7 S.Ct. 1286, 30 L.Ed. 1146.

In fact, the weight of authority in this country sustains the view that the allegation in this declaration was sufficient to admit proof of injury to the eye resulting in impairment of vision, as a result of the injuries received. An injury to the eye is a serious impairment of health, especially where the injury is alleged to be attended with pain.

(5) It is contended that the court erred in submitting the question of damages to the Ford truck on the evidence offered and instructions to the jury, and we think this contention correct. The Ford car was offered in evidence to be viewed by the jury, together with a statement of appellee that the car, before the injury, was worth two hundred fifty dollars. As we view this record, giving full weight to the fact that the jury viewed the car, no basis was submitted to the jury by which they could estimate how much damage had been done to the car, or how much less the car was worth after the injury. The jury could view the car and use their common sense and general knowledge; but they could not say by their verdict how much injury the car viewed in the courtyard received as a direct and proximate result of the collision. It is fair to assume that the jury allowed two hundred fifty dollars as the value of the car before the injury; that being the only testimony in the case on the subject.

We therefore conclude that, by the amount of two hundred fifty dollars only, this verdict is excessive, and, unless the appellee shall enter a remittitur in this court in the sum of two hundred fifty dollars, this case will be reversed and remanded, but, if the remittitur shall be entered, then this case is affirmed.

Affirmed, with remittitur.