219 Miss. 493 | Miss. | 1954
Lead Opinion
This suit was instituted in the circuit court against Southern Beverage Co., Inc., and T. J. Huddleston, d/b/a
Four vehicles were involved in the collision. Huddleston’s hearse was returning to his funeral home with a dead body which had been picked up at Tunica, which is several miles north of Clarksdale; the hearse was traveling south and its gasoline supply became exhausted at the point of the collision with the result that it stopped on the paved portion of the highway with the right wheels resting on the shoulder of the highway some ten to eighteen inches off the pavement. The highway was straight and level for several miles in both directions. Appellee was traveling south in a Chevrolet automobile and approached the stalled hearse. A Packard automobile was traveling north in the east traffic lane, being operated at the time by R. Barry Sample. - A truck with trailer attached, owned by Southern Beverage Co., Inc., was traveling south and was following appellee’s Chevrolet car. It was the only vehicle behind appellee’s car. According to appellee’s evidence, he saw the Packard automobile approaching and slowed his car down almost to a complete stop in the west lane of traffic and gave an arm signal by holding out his arm at an angle of about forty-five degrees to the ground; he says that he was moving so slowly that he could have stopped instantly when something crashed into his automobile from behind with such force that he was knocked unconscious. His Chevrolet car was knocked into the east traffic lane at an angle of approximately ninety degrees and was struck broadside
1. After appellant’s witness, the truck driver, had made the foregoing denials under cross-examination, appellee in rebuttal offered the highway patrolman as a witness and he testified over the objection of appellant that the truck driver looked at the blue paint on the side of the trailer and said that he must have sideswiped the Chevrolet car because the paint and the scratches were there to substantiate it. Appellant devotes the greater portion of his brief to an argument that it was error to admit this rebuttal testimony, relying on Williams v. State, 73 Miss. 820, and a number of other cases which have followed that decision. In the Williams case the Court stated the true rule to be: “Whilst the unsworn statement out of court may be used to contradict the sworn statement in court, whether the statement sought to be contradicted is made by the witness on his direct examination or on his cross-examination, in either case the statement in court must be one embodying a fact s%do-star&tive in its nature and relevant to the issue made in the case.” (Emphasis supplied.) We are of the opinion that the question whether there was blue paint on appellant’s trailer and whether the trailer struck the Chevrolet car was a fact substantive in its nature and relevant to the issue in the case. Indeed, if the trailer did not strike the Chevrolet, then appellee has no case against appellant; it was quite relevant and material to show the facts bearing on that question. This was not an attempt to contradict a witness on an immaterial and collateral matter as argued by appellant; the evidence went to the very heart of the issue in the case. Appellant’s authorities to the effect that agency cannot be established against a principal by unsworn statements of the alleged
The general rule with reference to the admission of inconsistent or contradictory statements is laid down in 58 Am. Jur., Witnesses, Section 767, as follows: “After a proper foundation has been laid a witness may be impeached by evidence of his declarations or statements inconsistent with or contradictory of his testimony at the trial, even though such variant statements are made after the testimony. Impeachment in this manner is everyday practice. It is the method most frequently resorted to to discredit witnesses, and is in some jurisdictions expressly authorized by statute. This rule as to showing the inconsistent statements of a witness rests upon the obvious propriety and necessity of informing the jury of circumstances so directly bearing upon the credibility of the witness and the value of his testimony as do contradictory statements- By him of the controverted facts concerning which he testifies, and which the jury must determine. The fact that he has stated the facts differently shows either a failure of memory, that he has forgotten what he once knew, or else it shows a want of integrity, and either way it impairs the value of his testimony. ’ ’
The quoted rule has been followed by this Court in numerous cases. For instance, in Wilkinson v. State, 143 Miss. 324, 336-337, 108 So. 711, 46 A. L. R. 895, it was said: “While Mr. Barfield was on the stand as a witness for the State, appellant sought by cross-examination to discredit his testimony in the following manner: He had testified to facts tending to show that appellant shot the deceased not in necessary self-defense, but when appellant was in no danger either real or apparent of the loss of his life or being clone great bodily harm at the hands
In Kolb v. State, 129 Miss. 834, 851, 93 So. 358, this Court said: “If a witness testifies to a thing on the witness stand, being a material issue, the credibility of such witness may always be impeached by showing that such witness made contrary statements in reference to such fact at other times and places.”
In Lee v. State, 137 Miss. 329, 352, 102 So. 296, the Court said: “The sworn statement of these witnesses was that the appellant was at his home at the time the homicide was committed, and that he received the wound in his foot from a pistol accidentally discharged by him while at or in his home. The unsworn statement of the witnesses, as testified to by the officers, was that he did not reach his home on this night until four or five o ’clock a. m., and that when he came home he was wounded in the foot, and we think this was a material matter about which it was clearly competent to contradict the witnesses.” The Court then quoted, as supporting its position, the same sentence which we have already herein-above quoted from the Williams case. To the same effect, see also George v. State, 39 Miss. 570; Head v. State, 44 Miss. 731; Harris v. Sledge, 21 So. 783; Bowles v.
2. Appellant next contends that the trial court committed error in overruling an objection to the following-question, which after repeated objections and a statement of the court that the highway patrolman could give the facts, elicited the answer given:
“Q. Just state one at a time, very carefully and slowly, each of the physical marks which you noted on that particular occasion, and what conclusion you drew from each of those marks as to how the accident in question occurred. * * #
“A. Well, the physical facts at hand showed that the Chevrolet and likewise the ambulance had been struck by the trailer of the truck that was involved. ’ ’
Prior to this the patrolman had already testified to the tire markings on the pavement and the tracks of the truck-trailer made on the ground as it ran off the pavement. Immediately after the above quoted answer he testified in detail as to the physical facts upon which his statement was based, i. e., the blue paint marks and scratches and the damaged clearance light on the side of the trailer near its center, the black paint marks and scratches on the side of the trailer near its rear end, and that the blue paint marks on the trailer compared in texture and color with the paint on the Chevrolet. He further testified as to the marks, indentations, etc., on the back end of the Chevrolet and also on the back end of the hearse, which is referred to by some of the witnesses as the ambulance. It is undisputed that there was no vehicle behind the Chevrolet except the truck-trailer. Some of us are of the opinion that it was improper to permit the patrolman to give his opinion or conclusion about the matter, but eight of us are of the further opinion that the error, if any, was harmless or at least was not so prejudicial as to justify our reversal of the case. Others of us are of the opinion that the quoted statement of the patrol
“Much effort is expended during the trial of causes to confine the testimony of witnesses to statements of what they saw, heard, or otherwise observed, as distinguished from inferences or opinions formed as a result of such observation. The distinction is, however, one which it is in many cases impossible to draw, for the reason that the most simple statement of fact involves an element of coordination, induction, or inference, the fact and the inference being frequently so blended that they cannot be separated. The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are in many cases impracticable, and a witness is permitted to state a fact known to or observed by him, even though his statement involves a certain element of inference.”
We reiterate that in the opinion of eight of the judges the error, if any, was not so prejudicial as to justify us in reversing the judgment of the trial court. In so holding we are not to be understood as setting a precedent for all cases in the future, nor are we to be understood as holding that a highway patrolman, or any other person investigating an accident, should be permitted to give his opinion as to how an accident occurred. We specifically limit our holding to the facts of the case now under consideration.
3. Appellant next contends that the trial court erred in overruling its application for a continuance because of the absence of R. Barry Sample, the driver of the Packard automobile. At the time of the accident Sample was a resident of Memphis, Tennessee, but at the time of the trial he was a resident of Fort Worth, Texas. According
Section 1520, Code of 1942, specifically provides that ‘ ‘ The court may grant or deny a continuance, in its discretion. * * * A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom. ” We have repeatedly held that the granting or refusal of a continuance are matters within the sound discretion of the trial court and that we will not reverse because of the refusal of a continuance unless it appears that the discretion of the trial court has been abused. Continental Insurance Co. v. Brown, 142 Miss. 199, 106 So. 633; Ellis v. State, 198 Miss. 804, 23 So. 2d 688, and numerous authorities therein cited; Newell v. State, 209 Miss. 653, 48 So. 2d 332; Wingo’s Mississippi Criminal Law and Procedure, Section 138.
In this case we do not think that the trial court abused its discretion in denying a continuance because of the absence of the nonresident witness, nor, in view of the comments which we have made concerning Sample’s
4. It is next contended that the verdict of the jury was against the overwhelming weight of the evidence and was so excessive as to evince passion, prejudice and bias on the part of the jury. We have already set out a great deal of the evidence on the question whether the trailer struck the Chevrolet car, and from what we have said we are of the opinion that there was a clear-cut issue for submission to the jury and that its verdict on the facts is amply supported by the evidence.
On the contention that the verdict is so excessive as to evince passion, prejudice, or bias on the part of the jury, appellant devotes only about one-half of one page of its voluminous brief. In considering this question it is necessary to summarize the evidence as to the extent of appellee’s injuries. He was 55 years old at the time of the accident and had a life expectancy of 17.78.years. Prior to the accident he was active in his business and did strenuous work as a real estate appraiser and agent. His average earnings over the period of six years prior to the accident amounted to $5,770.00 per year. The flesh was torn from his heel, his leg cut, and the leg is still stiff. An old injury to his spine was aggravated. His neck was injured and is still stiff and he is unable to turn his head without pain. His right shoulder was fractured in the socket. The muscles and ligaments in his right arm were torn. He had a compound fracture of the right wrist on which two operations have been performed and another is necessary. His cheekbone was crushed in and the nerves of his face thereby affected. His tongue and the inside of his mouth and his lip and nose and throat were cut and scarred. Two or three of his ribs were fractured. He has since been in constant pain and is unable to rest without the use of sedatives. His business required the regular use of an automobile, which he drove himself, and he is no longer able to drive a car. As a con
5. Appellant complains, finally, at the granting of two instructions to the appellee, which are numbered 2 and 3.
Instruction No. 2 is as follows: “The Court instructs the jury for the plaintiff that it is a violation of Mississippi law to drive an automobile on a public highway of Mississippi at a greater rate of speed than is reasonable and proper having due regard to traffic and use of highway and that motorists must anticipate the presence of other persons and vehicles on said highway and drive at such a rate of speed as to enable them to avoid injury to such persons and vehicles. If you believe from a preponderance of the evidence in this case that defendant, Southern Beverage Co., Inc., violated this law on the occasion in question and that as a direct and proximate result of said violation plaintiff suffered the injuries for which suit is brought, then you shall return a verdict for plaintiff against defendant, Southern Beverage Co., Inc.”
The first sentence of this instruction is a substantial copy of one which was approved by this Court in Hadad v. Lockeby, 176 Miss. 660, 169 So. 691, with this omission which appellant contends is sufficient to render the instruction erroneous: “When they come, or, by the exercise of ordinary care, would come within his vision or under his observation. ’ ’ The plaintiff in Hadad v. Lockeby was a pedestrian who started across a public highway and was struck by defendant’s automobile, and it was quite proper that the jury be instructed that a driver
It is further argued that the second sentence of Instruction No. 2 is erroneous because it left out of view the question of the truck driver’s negligence. That sentence is substantially the same as an instruction which was approved in Myers v. Tims, 161 Miss. 872, 138 So. 578, which, while not appearing in the opinion, is quoted in Alexander’s Mississippi Jury Instructions, Section 819. That instruction made no mention of negligence but was planted squarely upon a violation of the law, and in his comment in Note 79 under said Section 819, Judge Alexander observed that if the speed is unlawful, the negligence is per se. In Cochran v. Peeler, 209 Miss. 394, 408, 47 So. 2d 806, we said that “the violation of a law which regulates human conduct in the operation of vehicles on the roads, becomes, by legislative fiat, negligence.
Instruction No. 3 is similar to No. 2 and appellant makes the same criticism of it. What we have already
Affirmed.
Dissenting Opinion
dissenting.
In my view the action of the learned trial court in permitting the patrolman to give the jury his opinion, or conclusion, as to what caused the wreck and injury was reversible error, for these, and other conceivable, reasons:
1. Aside from that action, the affirmance or reversal of this ease is a close questibn. The admission of other evidence over objection of defendant; denial of the application for continuance; the size of the verdict; the granting to plaintiff of certain doubtful instructions, all as disclosed in the able majority opinion, demonstrate, I think, the accuracy of the foregoing statement. That fact cautions care in holding the scales of justice balanced in the admission of this opinion evidence.
2. The testimony was admitted on the assumption the witness was an expert. He was asked this question by counsel for plaintiff: ‘ ‘ Just state one at a time, very carefully and slowly, each of the physical marks which you noted on that particular occasion, and what conclusion you drew from each of those marks as to how the accident in question occurred?” Counsel for appellant objected on the specific ground “That’s a conclusion. ’ ’ Counsel for plaintiff replied ‘ ‘ He’s an expert; that’s the only way.” Counsel for appellant then stated “You have not qualified him as an expert.” The court then said “I think they are admissible in evidence.” These quotations show conclusively the testimony was admitted on the theory this witness was an expert. Now, that was incorrect for two reasons: The first is there was not a line of testimony that this witness was, or claimed to be, an expert on the collision of vehicles, and the second is that this was not a subject for expert testimony even had the witness tried to qualify as such. “Such testimony cannot be received either to prove or disprove those things which are supposed to lie within the common knowledge, experience, and education of
3. This was not a complicated situation where difficulty existed in separating the facts from the conclusion. All that was needed was to confine the witness to a statement of what he saw. It was not necessary for him to invade the province of the jury.
4. Whether the trailer hit the Chevrolet was the determinative question in the case. As tersely stated in the majority opinion, “Indeed, if the trailer did not strike the Chevrolet, then appellee has no case against appellant.” That was the law suit. The truck driver swore the trailer did not hit the Chevrolet. The driver of the ambulance did not know. Mr. Barbarin said he did not know. He said something struck his car; he did not know what. Mr. Sample, driver of the Packard, was not at the trial. Prom his statement he did not know. So that, as stated, the crucial question was whether that did happen. It was natural that the in