Elizabeth HAVER, a Minor, By and Through Her Parents as Next Friend, Jon R. Haver and Deborah P. Haver v. Elizabeth HINSON (Now Mrs. Elizabeth Hinson Ainsworth).
No. 51942.
Supreme Court of Mississippi.
May 28, 1980.
Rehearing Denied July 23, 1980.
385 So. 2d 605
Steen, Reynolds, Dalehite & Currie, William M. Dalehite, Jr., Jackson, for appellee.
Before PATTERSON, C.J., and SMITH and SUGG, JJ.
PATTERSON, Chief Justice, for the Court.
At approximately 6:00 p.m., on March 30, 1977, Elizabeth Hinson, driving a 1972 automobile, accomрanied by Garth Haver, the plaintiff‘s brother, approached the Haver home from the west, pulled from the right to the left, or “wrong” side of the street where she parked, partially blocking the Haver driveway, and let Garth out оf the car. Mr. Haver stood in his driveway getting his newspaper, and Mrs. Haver, with her child Julie in her arms, walked down to the car to chat. Mr. Haver followed his wife to the car and at this time Elizabeth Hinson noticed Elizabeth Haver standing between her parents.
We reject Haver‘s argument that she was entitled to a peremptory instruction on liability.
Haver, however, relies upon two cases holding drivers as a matter of law had failed to discharge thе duty imposed by
In Cole we reversed a verdict for the defendant, a hit and run driver who killed a man standing in open view on the shoulder of a highway. A witness had “noticed a man lying on or near the road and watchеd [the defendant‘s] van as it sped through a red light and passed from view.” 355 So. 2d at 293. In the present case, however, we cannot say, as we did in Cole, “[t]he only explanation that we can fathom for the accident is that [the defendant] was not maintaining a proper lookout for pedestrians and this negligence was the proximate cause of [the injury].” 355 So. 2d at 294. Here, there is no evidence the child was in open view of the driver. Indeed, the evidence is to the contrary, leaving the strong probability the child unexpectedly crawled beneath Hinson‘s car before it pulled away from the curb, resulting in injury notwithstanding Hinson‘s vigilance in looking in all directions before moving.
McGee, supra, involved a defendant driver traveling on a highway at a high rate of speed. He observed several children on both sides lurking perilously close to the traveled portions of the roadway, and heard the prudent warning of a passenger to take great care. He reduced his speed only to twenty-five miles аn hour and injured a darting child. This Court held tort liability attached as a matter of law.
Unlike McGee, this case does not involve a driver who indisputably observed a number of unsupervised children in precarious positions when he failed to reduce his speed within reasonable limits to provide for the likelihood that sudden braking might be necessary to protect human life. We need no expert on probability and statistics to observe that the more children present, thе greater is the chance of darting, and — correspondingly — the greater is the need for caution on the part of the driver. In sum, we think this case more closely resembles
Haver also argues Hinson was negligent per se in driving and parking on the wrong side of the street in contravention of
We think it clear that the class sought to be protected by
Haver nеxt complains that the trial court erred in failing to grant her motion in limine, by which she urged the court to instruct the attorneys before trial to refrain from alluding in any fashion “to the supervision of or responsibility for the plaintiff, Elizabeth Haver, by her parents as their said acts or lack of action may relate to this cause of action.” We decline to put the trial court in error for refusing to grant this motion. In McCay v. Jones, 354 So. 2d 1095 (Miss. 1978), we suggested a preference for overruling brоadly-drafted pretrial motions aimed at excluding whole blocks of evidence when more specific objections could be efficiently dealt with at trial. Haver‘s motion asked too much. Had it been granted in toto, it wоuld have prevented Hinson‘s attorney from developing the whole story necessary to the jury‘s understanding of the circumstances of the injury, particularly the likelihood that Hinson relied upon the parents’ presence аs an added safety factor that could be taken into account by her when she started her car and scanned the scene for pedestrians before departing.
Haver‘s next assignment of error concerns the аdmissibility of her mother‘s out-of-court statement that the accident was not Hinson‘s fault. It appears in the following segment of the record:
Q. Would you state to us what Deborah Haver stated to you upon your visit during the second hosрitalization of Elizabeth?
A. Well, we were in the waiting room and she said “Well“, said, “I might as well tell you, Jon is going to sue you.” She said, “I‘ve been trying to talk him out of it but I haven‘t been able to.” Said, “I‘ve tried to tell him that it‘s not your fault, we were negligent parents and we should have been watching after our child.”
BY MR. MOORE:
Objection your Honor. We would like to approach the bench please.
Whereupon an off the record conference was held at the bench after which the jury left the courtroom and the following proceedings were had and done:
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BY THE COURT:
I‘m going to sustain I think the objection to that part of it which says “We were negligent parents.”
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The jury returned to the courtroom and the follоwing proceedings were had and done:
BY THE COURT:
Ladies and Gentlemen I have sustained the objection that was made just before you left the courtroom and you are to disregard that part of the answer concerning any parents negligence.
BY MR. DALEHITE, continuing:
Q. Mrs. Ainsworth, did you have occasion to talk with Mrs. Haver in your
home sometime around August or September 1977? A. Yes, sir.
Q. And would you relate what occurred at that time?
BY MR. MOORE:
We would object, your Honor, for the record.
BY THE COURT:
OVERRULE.
A. She came down to my house and she was very upset and she told me that Jon had been pressing her into signing this paper to sue me. In fact I think she hadn‘t signed it аt that time, but she was upset about it, and she told me it was not my fault, she had been trying to tell Jon it was not my fault....
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Offered for its truth, the statement plainly falls within the hearsay exclusionary rule unless it can be admitted pursuant to the party-oppоnent admissions exception. If within that exception, it should have been admitted although it was a conclusory opinion with doubtful foundation in the declarant‘s personal knowledge. Matthews v. Carpenter, 231 Miss. 677, 97 So. 2d 522, 524-26 (1957); Scott v. Fowler, 227 Miss. 643, 86 So. 2d 477 (1956); Hickey v. Anderson, 210 Miss. 455, 49 So. 2d 713 (1951).
In Mississippi Central Railroad Co. v. Pillows, 101 Miss. 527, 58 So. 483 (1912), we held the pre-litigation statements of nominal parties suing as next friend without beneficial interest in the suit do not come within the admissions exception to the hearsay rule. We presently must consider the fact that the parent, not the child, bears the ultimate legal liаbility for the medical expenses for which reimbursement was sought in the declaration in this case. See Lane v. Webb, 220 So. 2d 281 (Miss. 1969); St. Regis Paper Co. v. Seals, 211 So. 2d 547 (Miss. 1968). Thus, despite the established rule preventing imputation of negligence from parent to child, see Bunch v. Shaw, 355 So. 2d 1383 (Miss. 1978), the out-of-court statements of а parent suing as next friend for the medical expenses of a minor child may be offered by the defendant as the admissions of an adversary having an identifiable beneficial interest in the suit. In our opinion, it follows that the court properly sustained the objection concerning Mrs. Haver‘s statement suggesting that the Havers were “negligent parents,” and properly overruled the objection concerning Mrs. Haver‘s statement that the accident wаs “not [Mrs. Hinson‘s] fault.”
Haver next complains that the trial court instructed the jury to return a verdict for Hinson if it found Hinson maintained “a reasonable and proper lookout for other vehicles ... and for minor pedestrians ... in the vicinity ... and ... acted as a reasonable person would have acted in the operation of her automobile....” We see no defect in this instruction, particularly when we read it, as we must, with other related instructions which werе given. Shields v. State, 244 Miss. 543, 144 So. 2d 786 (1962). Haver‘s only basis for objecting to the instruction at trial, moreover, falls short of the specificity required by Mississippi Supreme Court Rule 42: She said only that the instruction was “not justified by law and evidence in the case.”
Haver‘s final assignment of error attacks the refusal of the trial court to grant a j.n.o.v. or a new trial. Our discussion of the propriety of denying a peremptory instruction applies as well to the propriety of denying a j.n.o.v. As for the motion for a new trial, it follows from our discussion of the evidentiary issues that it too was properly denied.
AFFIRMED.
SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.