Tyler v. Powell

262 So. 2d 645, 1972 Miss. LEXIS 1322
CourtMississippi Supreme Court
DecidedMay 22, 1972
DocketNo. 46672
StatusPublished
Cited by1 cases

This text of 262 So. 2d 645 (Tyler v. Powell) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tyler v. Powell, 262 So. 2d 645, 1972 Miss. LEXIS 1322 (Mich. 1972).

Opinion

PATTERSON, Justice.

This is an appeal from the Circuit Court of Montgomery County wherein the plaintiff, Frank Tyler, was awarded a judgment of $946.20. He appeals, contending the award was inadequate and James Henry Powell, the defendant, cross appeals, con[646]*646tending he was not liable and was prejudiced by the introduction of improper evidence. We reverse on direct appeal and affirm on cross appeal.

On December 17, 1969, Frank Tyler, and two other passengers, were enroute from Winona to Grenada in an automobile owned and driven by James Lee Sykes. They were returning from their place of employment to their homes. Their route was in a northerly direction on U. S. Highway 51. As they approached Fisher’s Crossing, a junction where Lodi Road intersects the highway from the east, they observed the defendant travelling south in his pickup truck. As the vehicles entered the intersection a collision occurred between them.

Powell, the driver of the southbound vehicle, who was 76 years of age at the time, testified that he had completely stopped his truck in the west lane of the highway with his turn signal activated when Sykes’ vehicle ran into him in his, the west, lane of traffic.

All other testimony and the physical evidence reflects that the accident occurred in the east traffic lane of the highway in which the Sykes automobile was travel-ling in a northerly direction.

A disinterested witness, travelling in a southerly direction and trailing Powell’s truck, testified that the truck turned from the west lane of traffic into the east lane directly in front of the Sykes automobile. This testimony was supported by that of Sykes and Tyler who each testified that Powell turned his truck, evidently to enter the road leading to the east, into the path of the Sykes automobile. The physical evidence, which included skid marks, and the location of debris, clearly indicates that Powell’s vehicle had crossed into the east, northbound, lane of traffic at the time of the collision.

The plaintiff was taken after the accident to Tyler Holmes Memorial Hospital for examination. Dr. Riddell testified that he complained of pain in his chest, but that X-rays thereof were negative. The medical diagnosis was multiple rib fractures on the left and contusions of the Upper abdomen. He was retained in the hospital for observation and treatment from December 17 through December 23, 1969. On December 29 he returned to the hospital for continuing pain. On this occasion fluid was discovered in his left chest resulting in his remaining in the hospital until January 7, 1970. On February 24, 1970, the plaintiff was diagnosed to be capable of returning to his employment although complaining of severe pain. The pain continued, the result of a nerve irritation, and Tyler being at the age of 65 when maximum retirement benefits were possible, discontinued his employment in December 1970.

This suit for damages resulting from the accident seeks compensation for pain and suffering, permanent bodily injury, loss of present and future wages; impairment of earning capacity and present and future medical bills.

Medical obligations totalling $948.20, which were reasonable and necessary for the treatment of Tyler’s injuries, were introduced during the trial. Testimony was also introduced, and not contradicted, that the plaintiff was unable to work for approximately two months after the collision and that pain and suffering accompanied his physical injuries.

The jury award was $946.20, an amount less than the uncontroverted medical bill. The plaintiff moved for a new trial on the basis of an inadequate award and the defendant, denying liability, moved for a new trial contending that he was prejudiced by the introduction of improper evidence. Both of these motions were overruled; hence these appeals.

It is our opinion that the damages were clearly inadequate and a new trial should have been granted the appellant. The jury award not only is inadequate for payment of the necessary medical expenses, but it also totally overlooks damages for [647]*647pain and suffering and for lost wages. This Court has repeatedly held that the failure of a jury to provide for damages admitted and proved by a plaintiff not guilty of contributory negligence evinces bias and prejudice on the part of the jury. In Gregory v. Patrick, 204 So.2d 466, 468 (Miss.1967), we stated:

The sum awarded is less than the medical and hospital expenses. The plaintiff’s injuries, though not grave, were doubtless accompanied by pain and suffering for which she is entitled to damages. It is clear that where there is no showing of contributory negligence the question of the existence of passion or prejudice must be resolved by contrasting the uncontradicted showing of the entire damage with the amount of the verdict. Dixon v. Breland, 192 Miss. 335, 6 So.2d 122 (1942). By indulging this contrast it is apparent that the verdict of the jury was less than the proven actual damages exclusive of pain and suffering.
We hold, therefore, that the verdict of the jury evinces bias, passion or prejudice and that the lower court erred in overruling the plaintiff’s motion for a new trial; and thus, the cause must be remanded for a new trial upon the question of damages alone.

See also Koock v. Fletcher Constr. Co., 235 So.2d 462 (Miss. 1970); Cruthird v. Allred, 236 So.2d 369 (Miss.1970); Jones v. Craft, 218 So.2d 727 (Miss.1969); Burlingame v. Southwest Drug Stores of Mississippi, Inc., 203 So.2d 74 (Miss.1967); Saucier v. Walker, 203 So.2d 299 (Miss.1967); Johnson v. Wilkinson, 254 Miss. 475, 182 So.2d 224 (1966); and Whatley v. Delta Brokerage & Warehouse Co., 248 Miss. 416, 159 So.2d 634 (1964).

We are of the opinion that the verdict of the jury evinced bias, passion or prejudice against the plaintiff and that the trial court erred in not sustaining his motion for a new trial based upon the inadequacy of the damages.

On cross appeal Powell contends that the court erred in allowing a highway patrolman to testify that Sykes, the driver of the northbound automobile, had told him that the pickup truck driven by Powell had made a left turn directly in front of him. Although this statement was made by Sykes some fifteen to thirty minutes subsequent to the collision, the trial court permitted it to be introduced into evidence under the res gestae exception to the hearsay rule. We conclude this to be error.

The rationale for allowing such statement into evidence through the res gestae exception is stated in Alabama Great Southern Railroad Company v. Shannon, 109 Miss. 230, 68 So. 165 (1915), wherein Chief Justice Smith quoted with approval from 3 Wigmore on Evidence, sections 1746, 1747, the following:

“A statement or exclamation by an injured person, immediately after the injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him,” is admissible in evidence. “This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and

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Bluebook (online)
262 So. 2d 645, 1972 Miss. LEXIS 1322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyler-v-powell-miss-1972.