M. & A. Motor Freight Lines v. Villere

• Decision Date: 28 April 1941
• Docket Number: 34486.
• Citation: 190 Miss. 848,1 So.2d 788
• Court: Mississippi Supreme Court
• Parties: M. & A. MOTOR FREIGHT LINES, Inc., v. VILLERE.

1 So.2d 788

190 Miss. 848

M. & A. MOTOR FREIGHT LINES, Inc., v. VILLERE.

No. 34486.

Supreme Court of Mississippi

April 28, 1941

Ford & Ford, of Pascagoula, for appellant.

Mrs E. H. Conner and Gex & Gex, all of Bay St. Louis, for appellee.

ALEXANDER Justice.

Plaintiff brought suit for personal injuries sustained when a collision occurred between an automobile which he was driving and a motor freight truck operated by the defendant. Defendant filed a plea to the jurisdiction of the court, to a discussion of which the following facts are relevant. The defendant is a Georgia corporation operating freight motor trucks along Highway 90 through the coastal counties of this state, including Hancock County, of which plaintiff is a resident, and into the State of Louisiana. The collision occurred in the latter state about thirteen miles east of the City of New Orleans. Summons was executed in Hancock County upon one John Kyte, a driver of one of the defendant's trucks. Defendant maintains an agency and warehouse at Gulfport on said route, solicits freight shipments and employs a small truck to facilitate handling of shipments from and delivery to such trucks which handle only interstate shipments. Under these facts, the suit was properly brought and maintained in Hancock County. Code 1930, § 496; Clark v Louisville & N. R. Co., 158 Miss. 287, 130 So. 302; see also Vicksburg S. & P. R. Co. v. Forcheimer, 113 Miss 531, 74 So. 418.

Defendant urges that since it is engaged wholly in interstate commerce, the maintenance of such action elsewhere than in Louisiana would create an undue burden on such commerce in violation of Article 1, Section 8, paragraph 3 of the U.S. Constitution. Such burden is sought to be related to the inconvenience caused to defendant by requiring the attendance of witnesses from great distances and at great expense. Among the authorities cited to sustain defendant's position are: Denver & Rio Grande W. R. Co. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295; Michigan Central R. Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470; Maxfield v. Canadian Pac. R. Co., 8 Cir., 70 F.2d 982; Davis, Director General v. Farmers' Co-op. Eq. Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996.

In these and other cases so cited, jurisdiction was denied either because the defendant had no transportation lines operating in the state where suit was brought or because the plaintiff was not a resident thereof. In Denver & Rio Grande W. R. Co. v. Terte, supra, a controlling distinction was brought to light by the fact that two interstate carriers were sued jointly. It was held that, while interstate commerce was unduly burdened in respect of the suit as against the carrier which operated no line in the state where plaintiff resided and where suit was brought, no such burden existed as against the other carrier which operated lines in such state.

It may well be doubted whether the inconvenience to defendant would have been less had the suit been brought in Louisiana (and as to this, the evidence developed a less degree than the allegations forecasted), yet this consideration would be relevant only if the issue of relative inconvenience were open. We can not recognize as here applicable any substantive rule of law which would create, from the circumstance that defendant's witnesses resided in a state or states other than that of plaintiff's residence, a conclusive presumption of an undue burden on interstate commerce. It was not error to overrule the plea of jurisdiction. Clark v. Louisville & N. R. Co., supra, citing and distinguishing cases above referred to; Vicksburg S. & P. R. Co. v. Forcheimer, supra.

Although three members of the Court are of the opinion that the peremptory instruction requested by the defendant ought to have been granted, we shall not discuss the evidence, especially since the case must be reversed for the error hereinafter discussed. For the same reason, we shall not review any of the instructions except two given for the plaintiff. The first is as follows: "The court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff is entitled to recover herein, then in assessing damages you may take into consideration the pain and suffering of the plaintiff, his mental anguish, if any, the bodily injuries sustained by him, his pecuniary loss, if any, his loss of power and capacity for work, if any, and its effect upon his future, if any." In view of the necessity for a reversal of the case, it is not inappropriate to point out that the serious defects in this instruction include the failure to relate any pain and suffering causally to physical injury, which in turn must be causally and proximately related to the negligence which is the basis of liability, and to require that all findings both as to liability and as to injuries be based upon a preponderance of the evidence. Such instruction, even when so reformed, is not proper unless other instructions predicate liability upon such acts of negligence as have been set forth in the declaration and developed by the evidence. McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655; Graham v. Brummett, 182 Miss. 580, 181 So. 721. The other instruction is as follows: "The court charges the jury, for the defendant, that in passing on the credit to be given any witness's testimony, the jury should take into account the witness's interest in the cause, if any, his demeanor on the stand, his opportunity to see and know the matters testified about and any other facts or circumstances shown by the evidence, and affecting his credibility, and if the jury believe that any witness has wilfully and corruptly sworn falsely to any material fact in the case, the jury may disregard such witness's testimony." The granting of a substantially similar instruction at the request of the defendant precludes its assignment of any error in respect thereto. Yazoo & M. V. R. Co. v. Wade, 162 Miss. 699, 139 So. 403; Hitt v. Terry, 92 Miss. 671, 46 So. 829. However, neither instruction ought to have been given. A belated but complete recognition of the impropriety not only, but also the error, of the doctrine of falsus in uno as the basis for controlling the reasoning processes of the jury has been made in Metropolitan Life Ins. Co. v. Wright, Miss., 199 So. 289. See also Miss. Law Journal, Vol. XII, No. 3, at page 282, sqq., where the writer of this opinion hopefully presaged its judicial repudiation. In passing, it may be observed that the instruction, in suggesting bases for their deductions and in failing to require that all inferences be deduced from the evidence, was erroneous.

A serious question is presented by appellant's fifth assignment of error. There were certain photographs of the scene of collision which it was anticipated by both parties would be introduced in evidence. The authenticity of said photographs was attested by a written certificate of the photographer who was found not to be available as a witness. Such certificate attested that it was executed "in the presence of Mr. Fernandez of the New Amsterdam Insurance Company". In a conference between respective counsel, the prejudicial effect of this language was stressed by defendant's counsel, and counsel for plaintiff consented that the photographs be introduced with the quoted language deleted. Pursuant to such agreement, the photographer's certificate was read into the record without the quotation. However, during the cross-examination of a photographer who caused the pictures to be taken, the plaintiff's counsel interrogated the witness as follows:

"Q. Did you get a call to take these pictures? A. Yes sir.

Q. Who called you? A. I was called by the New Amsterdam Insurance Company."

A motion to exclude the statement and to grant a mistrial were thereupon made by defendant and overruled by the court, at which time the court stated to the jury that they "will pay no attention to the answer given by the witness and there will be no further comment on it." Nearly forty years ago the disclosure that the defendant's liability was insured against by an indemnity company was condemned. Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am.St.Rep. 605. In Yazoo City v. Loggins, 145 Miss 793, 110 So. 833, it was held that jurors may be asked upon voir dire examination whether they or any of them were interested in or represented any company writing indemnity insurance. The good faith of counsel, so found by the court, was seen by it as a controlling consideration. In the more recent case of Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552, emphasis was appropriately placed upon the prejudicial effect of the disclosure rather than upon the motive for its adduction. A method of examining prospective jurors was there approved by which counsel may acquire such information without imparting it. The impartiality without which no trial is fair must not be infected through exposure to influences which are at once irrelevant and prejudicial. Although assuming the prejudicial effect of any suggestion by comment or question implying the existence of liability insurance by a defendant, and conceding that in proper but rare cases such fact may become an inseparable incident of necessary and relevant proof, an unnecessary disclosure through witnesses has an aspect more serious than mere intimation. Whatley v. Boolas, 180 Miss. 372, 177 So. 1. Its prejudicial effect rises to the degree of reversible error here in view of the doubtful character of the evidence on the merits of the case and of the means and method by which it was adduced. This Court is free to acquit counsel of purposeful misconduct, yet where such a disclosure is provoked despite previous admonition, the...