New Orleans N.E.R. Co. v. Jackson , 145 Miss. 702 ( 1926 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 674, n. 51 New; p. 675, n. 58 New; Damages, 17CJ, p. 1107, n. 63; Witnesses; 40Cyc, p. 2381, n. 27; p. 2389, n. 87 New. On excessiveness of verdicts in actions for personal injuries other than death, see annotation in L.R.A. 1915F, 30; 8 R.C.L. 674; 2 R.C.L. Supp. 638; 4 R.C.L. Supp. 567; 5 R.C.L. Supp. 480; 6 R.C.L. Supp. 521. Appellee, Grant Jackson, brought this action in the circuit court of Lauderdale county against appellant, New Orleans Northeastern Railroad Company, for damages for a personal injury received by him through the alleged negligence of appellant while engaged in his duties as a switchman in its yards at Meridian, and recovered a judgment in the sum of nineteen thousand dollars. From that judgment, appellant prosecutes this appeal. This is the second appearance of this case in this court. The case on the first appeal is reported in 140 Miss. 375, 105 So. 770. This action was brought under the federal Employers' Liability Act (U.S. Comp. St., sections 8657-8665) for an alleged violation by appellant of the Federal Safety Appliance Act (U.S. Comp. St. section 8605 et seq.), resulting in appellee's injury. At the time of appellee's injury, both appellant and appellee were engaged in interstate commerce. Appellee recovered a judgment in the sum of ten thousand dollars. The judgment was reversed, and the cause remanded for another trial on the question of damages alone. On the second trial, appellee recovered a judgment for nine thousand dollars more than he did on the first trial.

Appellant assigns and argues several alleged errors of the trial court, but we deem only two of them of sufficient importance to call for a discussion by the court. The action of the court in applying the privileged communications statute of this state is assigned and argued as error. And the refusal of the court to set aside the verdict of the jury because excessive is assigned and argued as error.

On the last trial, the only question to be determined by the jury was the extent of appellee's injuries and the amount of damages he was entitled to for such injuries. Three physicians examined appellee to ascertain the extent of his injuries. Two of them were introduced as witnesses on behalf of appellee. The other physician was offered by appellant as a witness, but, on objection of appellee, was not permitted by the court to testify. His testimony was material. If allowed by the court, it would have tended strongly to show that appellee was not injured to the extent claimed by him and to the extent testified to by the two physicians who were permitted by the court to testify in his behalf. The privileged communications statute (section 3695, Code of 1906 [Hemingway's Code, section 6380]) provides, in substance, that all communications made to a physician or surgeon by a patient under his charge, or by one seeking professional advice, shall be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient. It is true, as contended by appellant, that the extent of appellee's injuries was in this case peculiarly within the knowledge of the physicians who examined and treated him. It is also true that the action of the court in refusing to permit the physician offered by appellant as a witness to testify was highly prejudicial to appellant's cause. Appellant's contention is that the privileged communications statute, as applied in this case, had the effect of being more than a mere rule of evidence; that it affected the substantial rights of appellant; that it denied appellant a hearing of its cause on its merits; that, so applied, appellant was denied a right which it was entitled to under the federal Employers Liability Act and the applicable principles of the common law as interpreted by the federal courts. Appellant recognizes that this court has often held that the privileged communications statute is a mere rule of evidence, and also that the supreme court of the United States, in Railroad v. Turnipseed, 119 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann. Cas. 1912A, 463, recognized the statute as a rule of evidence, but appellant contends that the statute is more than a rule of evidence; that it goes to the extent in the present case of affecting the substantial rights of the parties, and to sustain its position relies especially onRailroad Company v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252; Railroad Company v.Ferebee, 238 U.S. 269, 35 S.Ct. 781, 59 L.Ed. 1303; RailroadCompany v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167. Appellant urges that the Harris case is strongly in point in its favor. In that case the court had under consideration theprima-facie statute of this state (section 1985, Code of 1906 [Hemingway's Code, section 1645]), making proof of injuries caused by the running of trains on railroads prima-facie evidence of negligence in the infliction of such injuries. The court held that in actions under the federal Employers' Liability Act the rights and obligations of the parties depended upon that act and the applicable principles of the common law as interpreted and applied in the federal courts, and that, under the act and the common law, negligence on the part of the railroad company was an essential element of recovery; that the federal courts had long held that, where suit was brought against a railroad company for injuries to an employee resulting from its negligence, such negligence was an affirmative fact, which the plaintiff was required to establish by evidence; that the prima-facie statute changed this rule of the common law, and the change affected the substantive rights of the railroad company, and therefore the statute had no application in the administration of the federal Employers' Liability Act.

Appellant argues that the privileged communications statute as applied in this case had the same effect. We do not think appellant's position is sound. In the White case the supreme court said, in substance, that there was no doubt of the principle that as to matters respecting the remedy, such as the form of the action, sufficiency of the pleadings, and rules of evidence, the law of the forum governed. The prima-facie statute dispensed with the necessity of proof of negligence on the part of plaintiff. It permitted an inference of negligence on the part of the railroad company where the injury was caused by the running of its train. In doing so, the statute made it possible for the plaintiff to recover without proving negligence, an essential to recovery under the common law, as administered by the federal courts. As we view it, the privileged communications statute does not affect the substantive rights and obligations of the parties. It is a statute affecting alone the competency of certain witnesses. Under the common law, a wife was not a competent witness against her husband either in a criminal or civil cause; that is true now under the common law in this state. A case under the federal Employer's Liability Act can well be imagined where the wife of the injured employee would be the only material witness for the railroad company. In such a case, would the refusal of the court to permit the wife to testify over the objection of the plaintiff be a denial of a substantive right to the railroad? We think not. The supreme court of the United States has not gone that far. We see no difference in principle in the case imagined and the present case.

Is the verdict of the jury so excessive as to evince passion or prejudice on their part? On the first trial, the verdict was for ten thousand dollars; on the last trial, it was for nineteen thousand dollars. There was no substantial difference in the evidence on the two trials as to the extent and permanency of appellee's injuries. He had a broken leg between the hip and knee. There had not been a perfect union of the bones at the break. For that reason, one leg was shorter than the other. The physicians introduced by appellee testified that the injury was permanent. Appellee testified in his own behalf that he suffered a great deal, especially in his back. Of course, whether he so suffered or not depended largely on his own testimony. The physicians testifying said that, if he did so suffer, it would probably continue throughout his lifetime. Whether the verdict of a jury is the result of passion or prejudice is a very difficult question for the court to determine. The determination of such a question must depend upon various considerations, among which, in addition to the evidence, is the knowledge the court has acquired of such matters based on experience and observation. If there has been more than one verdict of the jury in the case, as there has been in this case, such verdicts should be taken into consideration. The judgment was reversed on the former appeal of this case on the ground of misconduct in argument of one of appellee's attorneys. It was reversed on that ground alone. As stated, the verdict was for ten thousand dollars. The court said (140 Miss. 396, 105 So. 774): "We cannot say, judging alone from the size of the verdict in this case, that it is so large as to evince passion or prejudice on the part of the jury, but it is large in our opinion for the injury done. And this argument by appellee's attorney which was permitted and thereby approved by the court probably had great influence with the jury in fixing the amount of their verdict."

On the last trial the verdict was for nineteen thousand dollars. We think under the facts and circumstances that the verdict was excessive; that it was brought about by undue sympathy for appellee. We are of the opinion that it ought to be reduced about one-third; that the sum of twelve thousand six hundred dollars would fully compensate appellee for all of his injuries. And, furthermore, a judgment for that sum is more in line with the judgments which have been approved by this court for like injuries. If appellee will enter a remittitur of the judgment down to the sum of twelve thousand six hundred dollars within ten days after this opinion is handed down, the judgment will be affirmed for that amount; otherwise it will be reversed, and the cause remanded for another trial on the question of damages alone.

Affirmed with remittitur; otherwise reversed and remanded.