Opinion
No. 42426.
December 10, 1962.
1. Negligence — proximate cause.
Where evidence showed that glass in show window had not been weakened by having been cracked and taped because of previous accident, store patron was not entitled to recover from store operator for injuries received when glass from show window fell when automobile, which driver was attempting to park, ran upon sidewalk and struck post connected with store building causing glass in show window to fall.
2. Trial — peremptory instruction — failure of plaintiff to meet burden of proof.
Peremptory instruction requested by defendant should have been granted upon failure of plaintiff to meet burden of proof.
Headnotes as revised by Jones, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
Suit by plaintiff, Mrs. O.D. McAlpin, against defendant, Tom McAlpin, to recover damages for personal injuries sustained when an automobile hurdled the curb in front of defendant's store and either by direct or indirect contact with the store front caused an allegedly properly maintained plate glass window therein to shatter and injure plaintiff. From a judgment for plaintiff, defendant appealed. Reversed and judgment for appellant.
Daniel, Coker Horton, Melvin B. Bishop, Jackson; Jack Walker, Mendenhall, for appellant.
I. The absence of conflict in the evidence relative to the act of the defendant alleged to have constituted negligence and failure of the plaintiff's proof to establish a breach of duty compelled the direction of a verdict for the defendant. Arnold v. Reece, 229 Miss. 862, 92 So.2d 237; Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Dry v. Ford, 238 Miss. 98; 117 So.2d 456; Independent Service Corp. v. Johnson, 34 N.E.2d 15; Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820; Larry v. Moody, 242 Miss. 267, 134 So.2d 462; Maguire v. Carmichael, 240 Miss. 732, 128 So.2d 581. Malone Freight Co. v. Tutton, 177 F.2d 901; Paramount-Richards Theatres, Inc. v. Price, 211 Miss. 879, 53 So.2d 21; Parkins v. Brown, 241 F.2d 367; Pittman v. Goudeloch, 237 Miss. 543, 115 So.2d 303; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117; Shannon v. High-Low Foods, Inc., 261 F.2d 48; Shumock v. Booker (Ala.), 134 So.2d 780; Simon v. Dixie Greyhound Lines, 179 Miss. 568, 176 So. 160; Stewart v. American Home Fire Ins. Co., 211 Miss. 523, 52 So.2d 30; Storen v. City of Chicago, 27 N.E.2d 53; Supreme Instruments Corporation v. Lehr, 190 Miss. 600, 1 So.2d 242; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Wallace v. J.C. Penney Co., 236 Miss. 367, 109 So.2d 876; F.W. Woolworth Co. v. Patrick, 175 Miss. 711, 167 So. 774; Wigmore, Evidence (3d ed.), Sec. 1017 et seq.
II. The accident and injuries upon which this action is based were by all of the evidence demonstrated to be neither caused nor contributed to by any negligence of the defendant but the product of supervening negligence of third parties, and the trial court accordingly erred in submitting the issues for jury determination. Bufkin v. Louisville N.R. Co., 161 Miss. 593, 137 So. 517; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Indiana Service Corp. v. Johnson, 34 N.E.2d 157; Jackson v. Swinney, 244 Miss. 117, 140 So.2d 555; Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625; LaPlant v. E.I. DuPont de Nemours Co., 346 S.W.2d 231; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388; Paramount-Richards Theatres, Inc. v. Price, supra; Reynolds v. Atlantic Coast R. Co., 196 F.2d 643; Sturdivant v. Crosby Lumber Mfg. Co., 218 Miss. 91, 65 So.2d 292; Vines v. Southwestern Mississippi Power Assn., 241 Miss. 120, 129 So.2d 396; Anno. 155 A.L.R. 157; XXIX Mississippi Law Journal, Foreseeability in the Law of Negligence, p. 158.
III. That plaintiff's proof failing to establish with reasonable certainty the efficient cause from which the recoverable damage proceeded, recovery as to the defendant was precluded. Blizzard v. Fitzsimmons, 196 Miss. 484, 10 So.2d 343; Bufkin v. Louisville N.R. Co., supra; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292; 38 Am. Jur., Negligence, Sec. 64 p. 717; Bailey, Personal Injuries (2d ed.), p. 148.
IV. Erroneous evidentiary rulings of the trial court singularly and cumulatively so prejudiced the defendant in the presentation of his case that on this basis alone, reversal of this case is compelled. Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Faught v. Washam, 329 S.W.2d 588; Gulf, M. O.R. Co. v. Golden, 221 Miss. 253, 72 So.2d 44; Knox v. Granite Falls, 245 Minn. 11, 72 N.W.2d 67; Malone Freight Co. v. Tutton, supra; Simon v. Dixie Greyhound Lines, supra; Annos. 53 A.L.R. 2d 1091, 163 A.L.R. 122; Wigmore, Evidence (3d ed.), Sec. 1013.
George B. Grubbs, Mendenhall; Barnett, Montgomery, McClintock Cunningham, Jackson, for appellant.
I. Duty of store owner to exercise reasonable care to invitee customer. Dry v. Ford, 238 Miss. 98, 117 So.2d 456; Nowell v. Harris, 219 Miss. 363, 68 So.2d 464; Paramount-Richards Theatres, Inc. v. Price, 211 Miss. 879, 53 So.2d 21; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Wallace v. J.C. Penney Co., 236 Miss. 367, 109 So.2d 876; Williamson v. F.W. Woolworth Co., 237 Miss. 141, 112 So.2d 529.
II. This was a proper jury case. Arnold v. Reece, 229 Miss. 862, 92 So.2d 237; Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So.2d 493.
III. Plaintiff had a right to sue one or all. Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; Oliver v. Miles, 144 Miss. 852, 110 So. 666; Thomas v. Rounds, 161 Miss. 713, 137 So. 894.
IV. A jury verdict based upon conflicting evidence will not be disturbed upon appeal — it is binding. Lynch v. American Slicing Machine Co., 202 Miss. 515, 32 So.2d 546; Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So. 26; Mann v. Manning, 12 Sm. M. (20 Miss.) 615; Mississippi Power Light Co. v. Tripp, 183 Miss. 225, 183 So. 514; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Yazoo M.V.R. Co. v. Smith, 188 Miss. 856, 196 So. 230.
V. A jury verdict based upon any reasonable evidence should be upheld. Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Roberts v. Interstate Life Accident Ins. Co., 232 Miss. 134, 98 So.2d 632.
VI. Trial Judge, a thirteenth juror. McDonald v. Moore, 159 Miss. 326, 131 So. 824.
VII. Defendant's negligence was a proximate cause of the injury. Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Sec. 1455, Code 1942.
VIII. If reasonable minds differ as to what is the proximate cause, it is a question for the jury. American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 60 So.2d 514.
IX. There may be more than one proximate cause of an injury. American Creosote Works of Louisiana v. Harp, supra; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; Vines v. Southwestern Mississippi Electric Power Assn., 241 Miss. 120, 129 So.2d 396.
X. Defendant's negligence does not have to be sole cause. Brewer v. Town of Lucedale, supra.
XI. Defendant's negligence does not have to be the sole cause of injury to render him liable. Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Continental Southern Lines v. Klaas, supra; Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; Mathews v. Thompson, 231 Miss. 258, 95 So.2d 438; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; United Gas Pipe Line Co. v. Jones, 236 Miss. 471, 111 So.2d 240.
XII. Answer to appellant's Point IV. Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 378; Gulf Research Co. v. Linder, 177 Miss. 123, 170 So. 646; Hancock v. State (Miss.), 47 So.2d 833; Horowitz v. Bokron (Mass.), 161 N.E.2d 480; Keseleff v. Sunset Highway Motor Freight Co., 60 P.2d 720; Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67; Packard v. Moore, 71 P.2d 922; Scott, Photographic Evidence, Sec. 453 p. 393.
XIII. Answer to defendant's Point III. Louisville N.R. Co. v. Sullivan, 244 Ala. 485, 13 So.2d 877; Simon v. Dixie Greyhound Lines, Inc., 179 Miss. 568, 176 So. 160; 22 C.J.S., Evidence, Sec. 843 p. 755.
XIV. The instructions for plaintiff and defendant correctly set out the law of the case. American Creosote Works of Louisiana v. Harp, supra; Brewer v. Town of Lucedale, supra; Continental Southern Lines, Inc. v. Klaas, supra; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Mathews v. Thompson, supra; Planters Wholesale Grocery v. Kincade, supra; United Gas Pipe Line Co. v. Jones, supra.
XV. With reference to a jury assessing damages for personal injuries, the question arises as to the standards they can use to determine what is a fair award. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Brown Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 257; Canale v. Jones, 228 Miss. 317, 87 So.2d 694; Grenada Dam Constructors v. Patterson (Miss.), 48 So.2d 480; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Memphis C.R. Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699; Stoner v. Colvin, 236 Miss. 736, 110 So.2d 920; 25 C.J.S. Sec. 17 pp. 461, 471.
XVI. Disfigurement from injuries is an element to be considered in a personal injury suit, and also the mental pain in contemplation of a permanent disfigurement of the person. Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541.
XVII. Loss of income and impairment of earning capacity are proper elements of damages in a personal injury suit. Brown Root, Inc. v. Continental Southern Lines, Inc., supra; Buford v. O'Neal, 240 Miss. 883, 128 So.2d 553; City of Laurel v. Hutto, 220 Miss. 253, 70 So.2d 605; Dent v. Luckett, 242 Miss. 559, 135 So.2d 840; Elliott v. Massey, 242 Miss. 159, 134 So.2d 478; Hollinshed v. Yazoo M.V.R. Co., 99 Miss. 464, 55 So. 40; Mississippi Central R. Co. v. Smith, 176 Miss. 306, 168 So. 604; Southern R. Co. v. Kendrick, 40 Miss. 374; Stoner v. Colvin, supra.
XVIII. Pain and suffering. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Naylor, Admr. v. Isthmian Steamship Co., 94 F. Supp. 422, 187 F.2d 538; St. Louis I.M.R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. Rep. 704.
XIX. It is now well settled in assessing damages, a jury is entitled to consider the decreased purchasing power of the dollar and the Court has taken judicial notice of this fact. Cotton Mills Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436.
Mrs. McAlpin was grievously injured in an accident hereinafter described, sued the appellant, secured a judgment, and hence this appeal. There is no question as to the amount of the judgment. The only question involved here is as to liability.
The appellant operated a general mercantile establishment in the Town of Magee. On December 24, 1960, the appellee was present in the store doing Christmas shopping. She was looking for a man's wallet, and not being satisfied with any wallets inside the store, went with her son, who was an employee of the store, to the outside front part of the store to see some wallets that were in the show window. While near the show window, a car undertaking to park, ran upon the sidewalk, struck the post connected with the store and hit the show window itself. We say this because the pictures introduced in evidence made soon after the accident and before the car was moved conclusively show same. There was some intimation that the car did not strike the show window, but regardless of whether it did hit the show window there is no question but that it hit the post which was a part of the building. When it did this, glass from the show windows fell and the plaintiff was struck and injured.
It is the contention of the appellee that the glass fell and did the cutting. The appellant claims that the lady was crushed between the car and the show window. The evidence shows that flesh and blood were found in the show window and there is evidence that the lady, after the accident, was picked up while lying partly in the show window. The car either stopped or bounced back to a distance of some eight or ten inches or a foot from the show window. (Hn 1) It was the theory of the appellee that the glass in the show window was weak and wobbley because in August previous to the accident it had been hit by another car and the glass broken. At that time parts of the glass were replaced, but there was a curved glass that was broken, and since it had to be specially made it was taped with some reinforcement by bars to hold it together. The glass in the curved window had not been replaced at the time of the accident because of some misunderstanding between the appellee and the glass people. However, the only evidence in the record as to the condition of this glass was that this tape was customarily used by glass people and the window was just as strong, if not stronger, than it was before. There was no evidence in the record that the window was wobbley, or weak, or shaky, and to find this it was necessary to draw such an inference solely from the fact that it had been cracked and taped. However, as stated, the only witnesses that testified on that feature — one a man experienced in the glass business and connected with a glass company, and the other the appellee himself — was that the window was just as strong as a new glass. This proof as made by appellee was not contradicted.
The young lady who was driving the car in question testified that she intended to park in front of the store and as she undertook to do so, her foot slipped off the brake and rammed the accelerator so that the car raced forward, hit some part of the building, and she says "it bounced back." She does not remember any more about it except that she saw the glass falling and she did see Mrs. McAlpin and her son just before the accident. Also, it is shown without dispute that not only the taped window but other untaped and undamaged windows around it fell. There was no complaint as to those other windows and no explanation of their falling, except the collision of the car. From the record, the automobile was the sole cause of the accident.
(Hn 2) It is evident that the appellee failed to meet the burden of proof. The peremptory instruction requested by appellant should have been granted. Illinois Central R.R. Co. v. Fowler, 123 Miss. 826, 86 So. 460; Boggs v. Jewett, 127 Miss. 308, 90 So. 13.
Reversed and judgment here for appellant.
Lee, P.J., and Ethridge, Gillespie and Rodgers, JJ., concur.