Hattiesburg Chero Cola Bottling Co. v. Price

*18 Anderson, J., delivered the opinion of the court. Appellee brought this action against appellant in the circuit court of the Second district of Forrest county to recover damages for a personal injury alleged to have been received by him while in the performance of Ms duty as an employee of appellant. There was a trial and verdict and judgment for appellee, from which judgment appellant appealed. On January 25, 1926, in a memorandum opinion, Division B, reversed the judgment appealed from and rendered final judgment here for appellant. The judgment 'of the lower court was reversed upon the ground that under the evidence appellant was entitled to a directed verdict which had been requested and denied appellant. Thereupon appellee filed a suggestion of error. Appellee’s main contention in Ms suggestion of error, and the only one we think worthy of discussion, is that final judgment should not have been entered here for appellant, but the case should have been reversed and remanded for a new trial. This contention is based on, the ground that the lower court erred in ruling out appellee’s testimony as a witness in his own behalf to the effect that Anderson, the driver of the truck which caused appellee’s injury, exclaimed immediately after the accident that the injury was caused by the brake on the truck not taking hold; the ground of appellee’s recovery being that the brake was defective. It is argued also by appellee that the case ought to go back for a new trial so appellee may have another opportunity of procuring Anderson, the driver of the truck, as a witness in his behalf, by whom he would expect to prove that the brake on the truck was defective. Appellee contends that the *19 exclamation of Anderson, the driver of the truck, immediately after the injury, was part of the res gestae, and therefore could he testified to by appellee. Appellee’s testimony as to Anderson’s exclamation bearing on the cause of the injury was first admitted by the trial court over appellant’s objection. Thereafter at the conclusion of the evidence the court of its own motion ruled it out. Appellee not only failed to except to that ruling of the court, but the record shows expressly consented thereto. It therefore appears that the testimony in question was ruled out on appellant’s objection and with appellee’s express consent. .Appellee had process for Anderson as a witness in his behalf, but failed to procure his attendance. However, appellee made no application to the trial court either for a continuance or a delay of the trial for the purpose of procuring the attendance of Anderson. Should such a case go back for a new trial or should final judgment be entered here for the appellant? The question involves a construction of section 4919, Code of 1906 (Hemingway’s Code, section 3195), which reads as follows: “The supreme court shall hear and ¡determine all cases properly brought before it at the return term, unless cause be shown for a continuance; and in case the judgment, sentence, or decree of the court below be reversed, the supreme court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision; and when so remanded, shall be proceeded with in the court below according to the directions of the supreme court, or according to law in the absence of such directions. ’ ’ It will be observed that the statute provides that, when a case reaches the stage of this case, the supreme court *20 shall render snch judgment as the court below should have rendered— “unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain.” As we view the ease in order to sustain appellee’s contention, it will be necessary to overrule at least the following decisions of this court: Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Y. & M. V. R. Co. v. Pope, 104 Miss. 339, 61 So. 450; Hines v. Cole, 123 Miss. 254, 85 So. 199. Although not squarely deciding the question here involved, the same principle was recognized in Davis v. Dantzler Lumber Co., 126 Miss. 812, 89 So. 148. In the Hairston case the court held that on reversing an erroneous judgment the supreme court should render the proper judgment where the facts are undisputed. In the Pope case it was held that, where under the evidence the defendant was entitled to a peremptory instruction, and therefore the plaintiff was not entitled to recover, the supreme court, upon reversing’ the judgment for the plaintiff, should render a judgment for the defendant. In the Cole case the court held that, in a case where the trial court should have directed the verdict for appellant, the judgment will be reversed because of its failure to do so, and, where the record presents no question of fact to be ascertained by a jury, final judgment should be rendered for appellant in the supreme court. The authority of .the supreme court to grant new trials is no broader than the anthority of the trial courts. It is only when the trial court has erroneously refused to grant a new trial that the supreme court is authorized to grant one. We have held in this case that the trial court ought to have directed a verdict for appellant. If the trial court had done that instead of submitting the issues to the jury, would that court have been justified on a motion for a new trial by appellee in granting a *21 new trial upon the ground relied on now in this court for a new trial, namely, the ruling’ out of material evidence (conceding but not deciding’ that it was material) with the consent of-both parties in connection with the expectation of appellee of procuring at another trial the testimony of Anderson, the absent witness'? It seems that to ask the question is to answer it in the negative. Such a proceeding would open the door wide for litigants to experiment with the courts, although there is no indication in the record in this ease that appellee has any such purpose. It would be a license to litigants to try their causes by piecemeal with the hope of losing or improving them with each successive trial. There must be an end to litigation. The gist of appellee’s claim that he ought to be granted a new trial is his supposed mistake in agreeing that the trial court rule out his testimony as a witness in his own behalf as to the statement of the driver of the truck touching the cause of the injury. If that was a mistake, it cannot be corrected by this court. Suggestion of error overruled. Overruled.