124 So. 2d 122 | Miss. | 1960
This case is before us on appeal by Kelly Hammond Dukes and "Woodrow Dukes, defendants in the court below, from a judgment rendered by the Circuit Court of Warren County in favor of Mrs. Lena Sanders, plaintiff in the court below, for the sum of $37,500, as damages for personal injuries suffered by the plaintiff as a result of the collision between a 1955 Chevrolet automobile, which was being driven by Mrs. Jean Warren Simmons and in which the plaintiff was riding as a guest, and a 1957 Ford automobile which was owned and operated by Kelly Hammond Dukes at the time of the collision. The accident occurred on U. S. Highway No. 80 about four miles west of the Town of Brandon, in Rankin County, on April 17, 1958, about 9:30 P.M.
The declaration filed by the plaintiff charged that the Ford automobile, which was being driven by the defendant Kelly Hammond Dukes had been purchased by the defendant Woodrow Dukes, the father of Kelly Hammond Dukes, and placed in the hands of Kelly Hammond Dukes with full knowledge by Woodrow Dukes that his
The declaration further alleged that Mrs. Jean Warren Simmons was also negligent in failing to keep a proper lookout and in failing to slow down her automobile and bring the same under proper control as the two vehicles approached each other; that she negligently drove her vehicle excessively close to and within six inches of the center line of said highway, when the said Kelly Hammond Dukes was approaching on and partly across the center line of said highway; and that the direct proximate cause of the collision was the above mentioned gross negligence of the said Kelly Hammond Dukes and the above mentioned contributory negligence of the said Mrs. Jean Warren Simmons. The declaration further charged that, as a direct proximate result of the gross negligence of Kelly Hammond Dukes, act
After the filing of the defendants’ answers, and after a jury had been empanelled to try the case on its merits, the defendants Kelly Hammond Dukes and Woodrow Dukes, with the permission of the court, withdrew their answers and filed a motion for a change of venue to Smith County, the county of their residence. The court overruled the motion for a change of venue; the defendants refiled their answers, and the hearing of testimony was begun.
In view of the nature of the points assigned and argued by the appellants as grounds for reversal of the judgment of • the lower court, it is necessary that we give a brief summary of the testimony of the witnesses who were present at the scene of the accident or actually involved in the accident, and the evidence relating to the ownership of the Ford convertible automobile which was being driven by Kelly Hammond Dukes at the time of the accident.
The plaintiff, Mrs. Lena Sanders, testified that she lived in Vicksburg* and worked at the Mercy Hospital as a PBX telephone operator; that she made a trip with Mrs. Jean Warren Simmons and her fourteen year old daughter, Sharron, to Brandon on April 17,1958, in Mrs. Simmons’ 1956 Chevrolet sedan, for the purpose of attending the high school graduation exercises at the Shady G-rove school near Brandon, where Mrs. Simmons’ nephew was to graduate; that the graduation exercises were concluded about 8:30 P.M., and after a few minutes visit in the home of Mrs. Simmons ’ mother and father, who lived in the Shady Grove Community, Mrs. Simmons and her two companions left to return to
Kelly Hammond Dukes was called to testify as an adverse witness by the plaintiff. Kelly stated that he was 23 years of age, that he lived in the home of his grandfather, Sam H. Dukes, at White Oak in Smith
Kelly testified that his Ford automobile was a Fair-lane red and white convertible, which he had purchased in February 1957, from the Dukes Ford Agency at Raleigh. He had paid $2700 or $2800 for the car. Kelly was questioned at length about the source of the funds
Ray Williams, a state highway patrolman, testified that he was notified of the accident about 9:30 P.M., and that he arrived at the scene of the accident about ten minutes later. He found the Chevrolet sedan sitting upright on the north side of the highway headed
Three doctors testified concerning the nature and extent of the plaintiff’s injuries and the treatment administered to her while she was in the hospital. The only other witnesses who were called to testify on behalf of the plaintiff were Woodrow Dukes, who was called to testify as an adverse witness, and L. W. Blackwell, president of the Bank of Baleigh, who testified concerning the bank account upon which the check for $1703 was drawn by Kelly on February 18, 1957, in payment of the balance of the purchase price of the 1957 Ford convertible.
Woodrow Dukes testified that he was engaged in the mercantile business at White Oak in Smith County, and that he owned a 1957 Fairlane Ford Sedan automobile, which he had purchased sometime after Kelly purchased his 1957 Ford convertible; that he knew that Kelly had bought the Ford convertible in February 1957, but he knew nothing about the matter until Kelly drove the car up to his store after he had purchased it. He stated that Kelly did not help him about his business at the
At the conclusion of the evidence offered on behalf of the plaintiff the attorney for the defendant Robert J. Simmons, administrator, moved for a directed verdict in favor of said administrator. The motion was sustained, and the jury was instructed to return a verdict for the administrator. Similar motions were then made on behalf of each of the other defendants, Kelly Hammond Dukes and Woodrow Dukes, but the motions were overruled. A motion was then made on behalf of said defendants for a change of venue to Smith County, the county of their residence, and that motion was overruled.
Woodrow Dukes was then recalled as a witness to testify in his own behalf. He stated that Kelly had been driving an automobile for a period of several years prior to February 18, 1957, and that his general reputation in the community as a driver of an automobile was good. He knew of no accident or traffic violation that Kelly had been involved in prior to the accident complained of in this suit. He admitted that he had heard that Kelly had a blowout in one of the tires of an automobile which he was driving, but he did not remember what car Kelly was driving at that time. Several other wit
The first point assigned and argued by the appellant’s attorneys as ground for reversal of the judgment against the appellant Kelly Hammond Dukes is that the trial court erred in granting a directed verdict in favor of the defendant, Robert J. Simmons, administrator of the Estate of Mrs. Jean Warren Simmons, deceased, which ruling of the court was prejudicial to the appellant. It is argued that the testimony of Kelly Hammond Dukes created an issue of fact as to the negligence of Mrs. Simmons, which the jury should have been permitted to decide, and that the granting of the peremptory instruction in favor of the administrator of her estate was equivalent to a charge to the jury that the trial judge did not consider the appellant’s testimony worthy of belief and that it should be entirely disregarded. The appellant’s attorneys also say that the giving of such instruction in a case of this kind has been condemned by this Court in Grulf & S. I. R. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168.
But we think the appellant Kelly Hammond Dukes cannot complain of the action of the trial court in granting the peremptory instruction in favor of the administrator of the estate of Mrs. Simmons. The facts in this case are entirely different from the facts shown by the record in the Carlson case. In that case, as stated by the Court in its opinion, the directed verdict “was in favor of one whose negligence proximately contributed to the injury as was overwhelmingly shown by the evidence.” In this case there was no such overwhelming
It is next argued on behalf of tbe appellant Kelly Hammond Dukes that tbe court erred in refusing to grant tbe appellants’ request for a change of venue, when there was no longer a local defendant in tbe case. And tbe appellant’s attorneys cite in support of that contention tbe cases of Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 140 A.L.R. 1284, and Long v. Patterson, 198 Miss. 554, 22 So. 2d 490.
But we think there was no error in tbe court’s refusal to grant tbe appellants’ motion for a change of venue after tbe court bad directed a verdict in favor of Mrs. Simmons’ administrator. It cannot be said in this case, as in Howard v. Ware, supra, that tbe appellee rested her case without attempting to prove liability on tbe part of tbe administrator’s intestate, who was charged in tbe plaintiff’s declaration with negligently failing to keep a proper lookout and with negligently driving her vehicle too close to tbe center line of tbe highway, “when Kelly Hammond Dukes was approaching on and partly across said center line.” Neither can
We come now to the consideration of the assignments of error made on behalf of the appellant Woodrow Dukes.
Two points are assigned and argued by the appellants’ attorneys as ground for reversal of the judgment against the appellant Woodrow Dukes: (1) That the court erred in refusing to grant the peremptory instruction requested by the appellant Woodrow Dukes for a directed verdict in his favor; and (2) that the court erred in overruling the motion of the appellant Woodrow Dukes for a judgment in his favor notwithstanding the verdict of the jury.
We think the court erred in refusing to grant the peremptory instruction requested by Woodrow Dukes for a directed verdict in his favor, and in overruling the motion of the said Woodrow Dukes for a judgment in his favor notwithstanding the verdict of the jury. There is no proof in the record to show that at the
This Court has held in numerous cases that, when the owner of an automobile permits its use by a person known to the owner to be a reckless or incompetent driver, or where by the exercise of reasonable care the owner could or should have so known, the owner is liable for all such injuries as are the natural and probable consequences of the recklessness or incompetency of said driver while using the automobile so furnished. Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Bichton Tire & Timber Co. v. Smith, 210 Miss. 148, 48 So. 2d 618; Petermann v. Gary, 210 Miss. 438, 49 So. 2d 828.
The plaintiff’s attorneys in this case made diligent effort to show by their cross-examination of Kelly and his father as adverse witnesses and by the testimony of the bank officers that the 1957 Ford convertible was purchased by Woodrow Dukes, or was paid for by funds belonging to Woodrow Dukes or given to Kelly by his father. But neither Kelly nor his father would admit that Woodrow Dukes had any part in the purchase of the automobile; and the testimony of the bank officers and the examination of the bank records shed no light on that aspect of the case. The plaintiff’s proof was insufficient to show that Woodrow Dukes supplied, either directly or through a third person, the 1957 Ford convertible for the use of Kelly, or that Woodrow Dukes furnished any of the money that Kelly used for the purchase of the automobile. Kelly was a man 22 years of age at the time he purchased the automobile. There
The peremptory instruction requested on behalf of the appellant Woodrow Dukes should have been granted; and for the court’s error in refusing to grant that instruction and in overruling the motion of said Woodrow Dukes for judgment notwithstanding the verdict, the judgment as to the appellant Woodrow Dukes is reversed and judgment will be entered here in his favor. The judgment as to the appellant Kelly Hammond Dukes is affirmed.
Affirmed as to the appellant Kelly Hammond Dukes, reversed and judgment rendered as to the appellant Woodrow Dukes.
ON SUGGESTION OF ERROR
In this Suggestion of Error we are requested to at least remand the case in order that the proof may be fully developed in regard to the automobile driven by Kelly Hammond Dukes having been included in a business insurance policy, along with other automobiles, belonging to appellant Woodrow Dukes. The trial court sustained objection to the introduction of the insurance policy and ruled that the testimony offered in regard to the automobile in question being included in the said policy was incompetent, irrelevant and immaterial. However, the Suggestion of Error is filed by the appellee, Mrs. Lena Sanders, in regard to, or decision on, the appeal taken by Kelly Hammond Dukes and Woodrow Dukes. The appellee did not file a cross assignment of
Suggestion of error overruled.