J. J. Newman Lumber Co. v. Norris , 130 Miss. 751 ( 1922 )

Anderson, J.,

delivered the opinion of the court.

Appellee, Leseray Norris, by next friend, sued appellant, J. J. Newman Lumber Company, for a personal injury received by him while an employee of appellant, alleged to have been caused by the fault of the latter, and recovered a judgment for seventeen thousand five hundred dollars, from which appellant prosecutes this appeal.

We find no error committed by the trial court in submitting the question of liability to the jury.

It is contended by appellant that, even though there be no ground for a new trial on the question of liability, the cause ought to be reversed and remanded for a new trial on the question, of damages because of an error committed by the court in instructing the jury on the measure of damages, and because of misconduct of counsel for appellee occurring during the argument of the case to the jury. As to the measure of damages the court instructed the jury that in assessing appellee’s damages they should take into consideration, not only the physical and mental pain suffered by him, as well as any permanent injury, but in addition should take into consideration scars and disfigurements of appellee’s person. This is substantially the same instruction as was involved in Bonelli v. Branciere, 127 Miss. 556, 90 So. 245. The court held in that case there could be no recovery for scars or disfigurement of the person unless accompanied with physical suffering; that such an instruction authorized a recovery for mental anguish or humiliation unaccompanied by physical suffering; that the effect of the instruction was to authorize the jury to award damages for disfigurement of body after plaintiff’s physical suffering had ceased, and that under the law there could be no recovery for humiliation or mental anguish except as a part of or growing out of physical suffering, and that when the latter ceased to be an element of damages so did the former. This is the same question but in another form which was involved in W. U. Telegraph Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300, in which, the court held there could he no recovery for mental suffering unless such mental suffering be a part of and accompanied with physical suffering. The trial court therefore erred in granting the instruction in question.

One of appellee’s counsel in the closing argument of the case to the jury as shown by the special bill of exceptions in the cause used the following language:

“Who is the J. J. Newman Lumber Company? It is a corporation. It has taken your land. It has taken your timber. It has taken your homes.”

To which language appellant promptly objected, and thereupon the Court simply admonished counsel “to stay in the record.” This language Of counsel under the circumstances may have been very influential with the jury in fixing the amount of damages. It was such grave misconduct in counsel as that it is doubtful whether its effect on the jury was obviated by the admonition of the court. Counsel may so abuse the privilege of advocacy as to put it beyond the power of the court to remedy the harm done the opposite party.

The verdict in this case is large, and may have been materially added to by the jury on account of the said instruction and the misconduct of counsel for the appellee. Both were calculated to bring about that result. We would not be understood as holding that the giving of such an instruction would be reversible error in any and all cases, nor tliat such misconduct of counsel in the argument would be reversible error in any and all cases, or that either one without the other would be sufficient to reverse this cáse. But we do hold that in view of the size of the verdict r this case, the giving of said instruction in conjunction with the misconduct of counsel for appellee referred to was harmful, and had a very material bearing on the amount of the verdict in this case.

Reversed and remanded for a new trial on the question of damages alone.

Reversed and remanded.