Avent v. Tucker

• Decision Date: 18 March 1940
• Docket Number: 33948
• Citation: 188 Miss. 207,194 So. 596
• Court: Mississippi Supreme Court
• Parties: AVENT et al. v. TUCKER et al

194 So. 596

188 Miss. 207

AVENT et al. v. TUCKER et al

No. 33948

Supreme Court of Mississippi, Division B

March 18, 1940

Suggestion Of Error Overruled April 15, 1940.

APPEAL from circuit court of Leflore county HON. S. F. DAVIS, Judge.

Action by Mrs. E. O. Tucker and others against Fisher Avent and another for death of named plaintiff's husband in an automobile collision. From a judgment on a verdict for plaintiffs, defendants appeal. Affirmed.

Affirmed.

Alfred Stoner, Braxton B. Provine, Jr., W. H. Montjoy and H. Talbot Odom, all of Greenwood, for appellants.

The verdict of the jury is contrary to the law and the evidence.

Myers v. Tims, 161 Miss. 872, 138 So. 578; Whatley v Boolas, 180 Miss. 372, 177 So. 1; Ulmer v Pistole, 115 Miss. 485, 76 So. 522; Coca Cola Bottling Works of Greenwood, Mississippi, v. Hand, 191 So. 674; Bryan v. Magnolia Gas Co. (La.), 127 So. 124.

The verdict of the jury was contrary to the law and the evidence insofar as Mrs. Avent was concerned, not only because the evidence shows that the deceased was responsible for the accident but also because the proof shows that Mrs. Avent was merely the guest of Mr. Avent.

C. &amp G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; Sharples v. Watson, 157 Miss. 236, 127 So. 779; Atwood v. Garcia, 167 Miss. 144, 147 So. 813; Meridian Light and Ry. Co. v. Dennis, 136 Miss. 100, 100 So. 581; Owen v. I. C. R. R. Co., 77 Miss. 142, 24 So. 899; Allman v. G. & S. I. R. R., 149 Miss. 489, 115 So. 594; M. & O. R. R. v. Robinson, 132 Miss. 841, 96 So. 749; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Coccora v. Vicksburg Light and Traction Co., 126 Miss. 713, 89 So. 257; Y. & M. V. Ry. v. Lucken, 137 Miss. 572, 102 So. 393; Moore v. Johnson, 148 Miss. 827, 114 So. 734; C. & G. Ry. v. Fondren, 154 Miss. 40, 121 So. 838; Y. & M. V. Ry. v. Beasley, 158 Miss. 370, 130 So. 499; Weyen v. Weyen, 165 Miss. 257, 139 So. 608; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Thomas v. Lexington, 168 Miss. 107, 150 So. 816; Miss. Cent. Ry. v. Roberds, 173 Miss. 487, 160 So. 604; Flynn v. Kurn, 184 So. 160; Gower v. Strain, 169 Miss. 344, 145 So. 244.

The verdict is excessive.

G. & S. I. R. R. v. Boone, 120 Miss. 632, 82 So. 335; Y. & M. V. R. R. Co. v. Lee, 148. Miss. 809, 114 So. 866; Natchez Coca Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677.

The court erred in refusing to grant peremptory instructions in favor of these appellants.

The court erred in refusing to allow Mrs. Avent, under the peculiar circumstances then existing, to testify that she did not carry liability insurance.

We submit that our court has recognized, time after time, that plaintiffs will not be allowed to prove that defendants carry liability insurance. It necessarily follows that the series of questions asked by plaintiffs which led the jury to believe that defendants carried liability insurance were prejudicial. The jury having been so led to believe that any verdict would be against an insurance company, we submit that defendants should have been allowed to prove by Mrs. Avent that they did not carry liability insurance, and that the failure of the court to permit such proof was prejudicial error.

The court should not have charged the jury upon abstract principles of law, not applicable to the evidence.

Jarnigan v. Fleming, 43 Miss. 710; Evans v. State, 44 Miss. 762; Powell v. Mills, 37 Miss. 691.

Even where the evidence for the two sides approximates an equipoise and is conflicting, court should expound the applicable rules of law with utmost caution.

Norfleet v. Sigman, 41 Miss. 631.

An instruction which assumes as proven an element of the case concerning which there is no evidence is erroneous.

Brown v. Walker, 11 So. 724; Kneale v. Lopez, 93 Miss. 201, 46 So. 715; Harvey v. Corel, 12 So. 462; Griffin v. Griffin, 93 Miss. 651, 46 So. 945; Reid v. Y. & M. V. R. R., 94 Miss. 639, 47 So. 670.

An instruction making the rights of the parties determinable upon issues not presented by the pleadings is erroneous. Of course, instructions which submit issues not presented by the evidence would be worse.

Solomon v. City Compress, 69 Miss. 319, 10 So. 446; Stadder v. Jacobs, 12 So. 444.

The paved highway was not a right-of-way thoroughfare in relation to the gravel highway.

Appellants stopped their car at the stop sign on the gravel highway 49 feet from the paved highway and proceeded with due care and caution to cross the paved highway.

Mr. Tucker was driving his car at a high, dangerous, and excessive rate of speed, and did not have same under proper control as he approached the intersection.

The appellants arrived at and entered the intersection before Mr. Tucker and were entitled to cross the intersection ahead of Mr. Tucker.

Julian C. Wilson, of Memphis, Tenn., for appellants.

If it should be held that the failure to aver the controlling ground of recovery upon which recovery was had, but an averment in direct contradiction of it, is in any way cured by section 568 of the Code of 1930, and the decisions of this court requiring specific objections to a variance, then such holding and such permission of recovery in conflict with plaintiffs' declaration would constitute a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States and would not, therefore, be enforceable or effective. The requirement that recoveries of judgments must be based on pleadings is a fundamental rule of law of the land and its denial is a refusal to the person wronged of due process of law.

Brown v. State of Miss., 297 U.S. 278, 287, 80 L.Ed. 682; Ozen v. Sperier, 150 Miss. 458, 472.

When the collision occurred, Mr. Avent was driving the car for his own purposes and Mrs. Avent was accompanying him, no matter how the evidence is viewed. Any contradiction in their testimony is immaterial because they are agreed, and there is nothing to disprove it, that the trip to Minter City was for Mr. Avent. If she had not abandoned her original plan that she was to go to Greenwood, they did not turn south at the intersection but continued to Minter City and, therefore, under any view, the car was being driven by Mr. Avent on his own mission, for his own purpose, and Mrs. Avent was simply accompanying him. Therefore, the peremptory instruction for Mrs. Avent should have been given.

The proof is clear that the Avent car was first on the concrete and, therefore, had right-of-way.

The court instructed the jury, at the instance of the plaintiffs, that it was "a violation of the laws of the state for any person to drive a vehicle on a highway . . . so as to endanger the life or limb of any person" and that the driver of a motor vehicle "must, at all times, drive his motor vehicle at such a rate of speed as to enable him to avoid injury to such persons (meaning persons on the highway), when they come, or, by the exercise of ordinary care, would come within his vision or under his observation." (Instruction No. 3.)

This amounts to a peremptory instruction, unless it was so couched as to be misleading. It may have been intended to follow the language of Justice McGowen in Daniel v. Livingstone, 168 Miss. 316, where he says: "He (meaning a motorist) must drive at a rate of speed which will enable him to avoid injury to those who should come under his observation.

The language was extended so that the jury doubtless interpreted it to mean that the motorist was an insurer of the safety of persons upon the highway and must under no circumstances injure them. The jury might well have interpreted the language, as the writer interprets it, that the motorist must at all times drive his motor vehicle at such a rate of speed as to enable him to avoid injury to such person, no matter when they come or whenever they come, or should come, within his vision or under his observation. The word "when they come" evidently mean whenever they come or no matter when they come, and whether so intended by the trial judge or not, they must have misled the jury.

The burden of proof was on the plaintiffs to make out a case in accordance with the declaration, and those things not shown directly or by necessary inference in favor of the plaintiffs are concluded in favor of the defendants below.

Rowland v. Morphis, 158 Miss. 662, 666; Coca Cola Bottling Works v. Hand, 191 So. 674; Gough v. Harrington, 163 Miss. 393-400; Myers v. Tims (Miss.), 138 So. 578, 579; Whatley v. Boolas, 180 Miss. 372.

The peremptory instruction for both defendants should have been given.

Barnett, Jones & Barnett, of Jackson, for appellees.

The variance between the pleadings and the proof was not material and appellants cannot avail themselves of this point on appeal.

Stonewall Life Ins. Co. v. Cook, 165 Miss. 619, 144 So. 217; Pearl Realty Co. v. Wells, 164 Miss. 300, 145 So. 102; Gower v. Strain, 169 Miss. 344, 145 So. 244; La. Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792; Ware v. McQuillan, 54 Miss. 703; Ozen v. Sperier, 150 Miss. 458, 117 So. 117.

Fisher Avent was Mrs. Avent's agent in operating her car on the occasion in question.

Terry v. Smiley, 161 Miss. 31, 133 So. 662; Cowart v. Lewis, 151 Miss. 221, 117 So. 531; Atwood v. Garcia, 167 Miss. 144, 147 So. 813; 42 C. J. 1093; Allen v. Holler, 192 N.Y.S. 351; Venghis v. Nathanson, 127 A. 175; Willis v. Crays, 151 N.E. 13; Fuller v. Metcalf, 125 Me. 77, 130 A. 875; Carlson v. Johnson, 2 Pa. D. & C. 109; Crawford v. McIlhenny, 171 Iowa 606; Daggy v. Miller, 180 Iowa, 1146; Carero v. Breslin, 3 N.J.Misc. 507; High v. Hill, 65 Cal.App. 517; Roland v. Anderson, 282 S.W. 752; Johnson v. Newman, 168 Ark. 836.

The verdict is supported by...