Boothe v. Teche Lines, Inc.

• Decision Date: 26 September 1932
• Docket Number: 30099
• Citation: 143 So. 418,165 Miss. 343
• Court: Mississippi Supreme Court
• Parties: BOOTHE v. TECHE LINES, INC.

143 So. 418

165 Miss. 343

BOOTHE v. TECHE LINES, INC.

No. 30099

Supreme Court of Mississippi

September 26, 1932

(Division B.)

1. APPEAL AND ERROR.

Decision on former appeal that defendant's liability was for jury held controlling in subsequent suits involving same facts.

2 NEGLIGENCE.

Contributory negligence is complete defense to action of tort under the law of Louisiana.

3 ACTION.

Substantive rights of parties are controlled by law of place, while adjective rights, pertaining to remedy, and including rules of evidence, are controlled by law of forum.

4 AUTOMOBILES. Instruction to find for defendant bus company if plaintiff's car had not stopped at right side of road, but was traveling near center of road at time of collision, held erroneous.

Such instruction was erroneous because it eliminated the question of negligence of the bus driver, since it in substance told the jury that, if the car had not stopped on the right-hand side of the road near the right edge thereof, but was proceeding near the center of the road, although on its right-hand side of the center, the bus driver was guilty of no negligence.

5. AUTOMOBILES.

If automobile carrying plaintiff was on wrong side of road, and bus on right side, and automobile skidded into bus as bus turned to right, bus company was not liable.

6. TRIAL. Instruction that, if both bus and automobile were operated in prudent manner, and, in passing, unavoidably collided, then plaintiff could not recover, held error as peremptory instruction for defendant.

Such instruction was error because it told the jury that both the bus and the automobile were being operated in a prudent manner, and by such language the question of negligence on the part of the bus driver was entirely excluded from consideration.

7. TRIAL. Instruction that, if jury were unable to state whether automobile carrying plaintiff ran into bus, or bus ran into automobile, they should find for defendant bus company, held error. Such Instruction was error, because it eliminated entirely the question of the negligence on the part of the drivers of both the automobile and the bus.

Division B

APPEAL from circuit court of Adams county.

HON. R. L. CORBAN, Judge.

Action by Mrs. Albert Boothe against the Teche Lines, Inc. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Engle & Laub, of Natchez, for appellant.

The following instruction is erroneous:

The Court further instructs the jury for the defendant: That if you believe from the evidence in this case that the car in which plaintiff was riding had not stopped on the right hand side of the road near the right edge thereof, at the time of the collision, but on the contrary that it was proceeding near the center of the road at the time of the collision between it and the bus, then it is your sworn duty under the law to find for the defendant and in such event your verdict should be "We the jury find for the defendant."

It undertakes to tell the jury that if they believe that the car had not stopped on the right hand side of the road at the time of the collision but it was proceeding near the center of the road at the time of the collision, then they had to find for the defendant. The law nowhere justified the giving of this instruction.

An instruction which assumes as a fact a matter in controversy is erroneous and should be refused, and that an instruction should not assume the truth of controverted facts, as this invades the province of the jury.

Godfrey v. Meridian Ry. & Lt. Co., 58 So. 534, 101 Miss. 565; McKee v. Munn, 5 So. 616; Beall v. Bullock, 11 So. 720.

While we call the attention of the court to the fact that this injury occurred in the State of Louisiana and there contributory negligence bars recovery under their law, and that this case, though tried in Mississippi courts, is triable under the Louisiana law, yet any negligence of the driver of the Buick car, in which the appellant was riding, cannot be imputed to the appellant, who was a mere passenger in that car.

Where occupants all set out to go to the picture show, but occupants did not have equal rights to control operation of automobile, there was no joint enterprise or joint adventure.

Lorance v. Smith, 138 So. 871; Grantham v. Smith, 132 So. 805, 132 So. 810.

The alleged negligence of a driver in proceeding at an excessive rate of speed held by the Louisiana courts as not imputable to guest because of failure to protest, where not shown that guest had sufficient time to realize danger.

Waters v. Merriwether Transfer Co., 137 So. 578.

The following instruction is erroneous:

The Court instructs the jury for the defendant, that the burden of proof is on the plaintiff to prove by a preponderance of the credible testimony, that the defendant negligently ran its bus into the car in which plaintiff was riding and after you have carefully considered all the evidence in the case, both for the plaintiff and the defendant, you are unable to say whether the car in which plaintiff was riding ran into the bus, or whether the bus ran into the car, then and in that event, the plaintiff has not met the burden of proof and your verdict should be "We, the jury, find for the defendant."

It is error to charge that plaintiff's evidence must be accepted as true and that unless disproved he should have a verdict for the full amount testified by him to be due and unpaid, and that if the evidence left it doubtful whether plaintiff's testimony had been successfully opposed the law was for him.

Daniel v. Daniel, 4 So. 95.

Hugh V. Wall, of Brookhaven, for appellee.

The only question complained of in the present suit is the refusing of certain instructions asked by the appellant and the giving of certain instructions on the part of the appellee. We think that the lower court was very liberal with the appellant in giving the instructions as shown by the record and taking all the instructions together, those which were given for the plaintiff and those which were given for the defendant, certainly the issue was fairly presented to the jury in behalf of the plaintiff.

L. A. Whittington, of Natchez, for appellee.

It is contended by the appellant that the giving of the instruction to the defendant to the effect that if the jury believed from the evidence that the car in which plaintiff was riding had not stopped "on the right hand side of the road near the right edge thereof at the time of the collision, but on the contrary that it was proceeding near the center of the road at the time of the collision between it and the bus, then the jury should find for the defendant," was highly prejudicial to the appellant and was error in this case.

We submit to the court that under the facts in this case the giving of this instruction was perfectly proper and without prejudice to the appellant.

Another instruction complained of tells the jury that if they believe from the evidence that at the time of the collision the bus was on its right-hand side of the road going south and running in a careful manner and further tells the jury that if they believe that the car in which plaintiff was riding approached the scene of the collision on the left-hand side of the center of the road going north and that in order to avoid a head-on collision between the car and the bus the bus further turned to the right-hand side of the road and that the car, being on the left-hand side of the road, turned suddenly to the right and skidded into the rear end of the bus knocking the car into the ditch on the right-hand side of the road, looking north, then your verdict should be for the defendant.

Appellant overlooks the fact that under this instruction before finding for the defendant the jury would have to believe that the plaintiff's car turned suddenly to the right and skidded into the bus. Appellant also overlooks the fact that this instruction was given under the facts in this case. This instruction presents to the jury the facts and the case made by the defendant's witnesses; if the jury believes these facts they should find for the defendant.

Under the Louisiana law, if the jury believes these facts, the plaintiff was guilty of negligence contributing to the injury and could not recover.

Appellant recognizes this law, but says that the negligence of the driver of the car could not be imputed to plaintiff, the owner of the car--wife of the owner rather.

The evidence in this case shows that plaintiff and her sisters and cousin were engaged in a joint enterprise; throughout the trial of all these cases that has been conceded; the question was not controverted in the lower court.

It is complained that the giving of the instruction to the effect that if the jury were unable to determine from the evidence just how the collision occurred, then they should find for the defendant, was prejudicial error. We say that this instruction is applicable to the facts in this case. There was and is a hopeless and irreconcilable conflict in the evidence presented by plaintiff and defendant; the jury at the conclusion would be hard put to it to say which theory was correct, for plainly they had to believe one side and disbelieve the other. The burden of proof was on the plaintiff to satisfy the jury, reasonably from the evidence that defendant was negligent; if the jury could not say how the collision happened, they were in duty bound to find for defendant.

Argued orally by S. B. Laub, for appellant, and by Hugh V. Wall, for appellee.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Adams county against appellee to recover damages for a personal injury suffered by her and injury to, and loss of, certain personal...