Opinion
No. 42149.
February 5, 1962.
1. Damages — personal injuries — award not grossly inadequate.
Award of $1,500 for injuries sustained by automobile guest was not so grossly inadequate as to show passion, prejudice, and bias.
2. Damages — available witness — objection to testimony of orthopedic surgeon available only to plaintiff.
Jury, in fixing amount of damages, was entitled to consider fact that plaintiff objected to testimony of an orthopedic surgeon whom she had consulted and who was present in courtroom and was offered as a witness by defendant.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, J.
George B. Grubbs, Mendenhall; John K. Keyes, Collins, for appellant.
I. The damages awarded to the appellant are so grossly inadequate under all the credible testimony to indicate passion and prejudice on the part of the jury. Murray v. Murray, 239 Miss. 691, 125 So.2d 83; Swartzfager v. Southern Bell Tel. Tel. Co., 236 Miss. 322, 110 So.2d 380.
Satterfield, Shell, Williams Buford, Jackson; J.W. Walker, Mendenhall, for appellee.
I. If the Court erred at all, it erred in refusing to direct a verdict for the appellees.
II. The judgment is not inadequate. Brown Root, Inc. v. Continental Southern Lines, 228 Miss. 15, 87 So.2d 257; Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; Peerless Supply Co., Inc. v. Jeter, 218 Miss. 61, 65 So.2d 240; Southern Beverage Co. v. Barbarin, 219 Miss. 493, 69 So.2d 395; Wilson v. Rich, 163 Miss. 403, 141 So. 287.
The appellant, Miss Peggy E. Pittman, was injured in an automobile accident when a pickup truck in which she was riding as a guest of B.J. Shows, Jr., the operator, was struck by an ambulance driven by one C.J. Box, an employee of the appellee, Mendenhall-Mims Mitchell Funeral Home, Inc. The case was submitted to a jury which rendered a verdict in favor of the plaintiff and agaist the said defendant for the sum of $1,500.
(Hn 1) On this appeal the sole assignment of error is that the verdict is so grossly inadequate as to show passion, prejudice and bias on the part of the jury. While the jury may have probably been warranted in rendering a verdict for as much as $2,500, we are unable to say, after a study of the entire record, that the verdict is so grossly inadequate as to show passion, prejudice and bias on the part of the jury. Then, too, the jury was entitled to take into consideration the circumstance that while no negligence, if any, on the part of the driver of the pickup truck was attributable to the plaintiff as his guest, (Hn 2) the plaintiff objected to the testimony of Dr. Attix, an orthopedic surgeon of Hattiesburg, Mississippi, whom she had consulted and who was present in the courtroom and was offered as a witness by the defendant. The trial court gave the usual instruction to the effect that where there is an objection to an available witness' testifying, the jury is entitled to presume that if the witness had been permitted to testify, his version of the matter would have been unfavorable to the objecting party.
The Court is unable to say that the verdict of $1,500 is so grossly inadequate as to show passion, prejudice and bias on the part of the jury and especially in view of the fact that there was other competent testimony minimizing the injuries to the plaintiff and which testimony may have influenced the jury.
The case must therefore be affirmed.
Affirmed.
Arrington, Ethridge, McElroy, and Rodgers, JJ., concur.