Brown-Miller Co. v. Howell

• Decision Date: 02 May 1955
• Docket Number: BROWN-MILLER,No. 39638,39638
• Citation: 79 So.2d 818,224 Miss. 136
• Parties: COMPANY, a Corporation, v. G. C. HOWELL, Sr., et al.
• Court: Mississippi Supreme Court

Page 818

79 So.2d 818

224 Miss. 136

BROWN-MILLER COMPANY, a Corporation, v. G. C. HOWELL, Sr., et al.

No. 39638.

Supreme Court of Mississippi.

May 2, 1955.

Dudley W. Conner, Hattiesburg, Watkins & Eager, Jackson, R. L. Calhoun, Hattiesburg, for appellant.

Dent & Dent, Collins, Barnett, Jones & Montgomery, Jackson, L. D. Pittman, Raleigh, for appellees.

LEE, Justice.

G. C. Howell, Sr., and others, the father, mother and brothers and sisters of Oree A. Howell, deceased, sued Brown-Miller Company, a Corporation, and Tom Walker to recover damages for the death of their son and brother. Simply stated, the declaration charged that the decedent, in a truck, was driving south on Highway 49 in the west lane of travel; that Walker, in another truck, ahead, was also driving in the same direction and endeavored suddenly to stop on the right shoulder of the highway; that Otis Kates, driving a truck of Brown-Miller Company, was traveling north and was out of his proper lane of travel; that because the Kates truck was out of its proper lane of travel, the Howell truck was caught between it and the Walker truck and was struck with such great violence by the Kates truck that Howell was killed; and that the sudden negligent stopping of the Walker truck, and the negligent driving of the Kates truck in the west lane of travel proximately and concurrently caused and contributed to the injury and death of the decedent.

On petition of Brown-Miller Company, the cause was removed to the federal court, but subsequently, on the motion of plaintiffs, the cause was remanded to the state court.

The defendants, in their separate answers, denied in detail the material allegations of the declaration as to them, and averred that they were guilty of no negligence proximately causing or contributing to the death.

Upon submission of the cause to the jury, it found for the plaintiffs, as against Brown-Miller Company, and assessed the damages at $30,000; and by a separate verdict, it found for the defendant Tom Walker. Brown-Miller Company appealed.

Howell and Walker lived at Mize, Mississippi. They were driving trucks for Deaton Truck Lines of Birmingham, Alabama. They had picked up loads at Birmingham and had come as far as Mize on their way to make deliveries in New Orleans, Louisiana. Walker's truck was loaded with angle iron, and Howell's with tin plate. The empty trucks each weighed about 18,000 pounds and their loads approximated 28,000 pounds. The trailers were open and 8 feet wide. The over-all length of the tractor and trailer, in each instance, was about 42 feet.

Brown-Miller Company operated a pickle plant at Wiggins, Mississippi. Otis Kates and Morris Williams drove tractor-trailer trucks for the Company in order to make deliveries of its products. The vehicles, empty, each weighed 19,600, and carried loads of about 32,000, pounds. They had 14 wheels. The over-all length was 42 or 43 feet; and the trailers were covered and 8 feet wide.

Early in the morning of April 26, 1954, the two Brown-Miller trucks operated by Williams and Kates, in that order, left Wiggins and were proceeding north on Highway 49 in order to make deliveries of pickles in Memphis, Tennessee. Likewise the two open trucks, operated by Walker and Howell, in that order, left Mize and were proceeding to their destination in New Orleans. From Mt. Olive, they traveled south on Highway 49. There was a dense fog. In Covington County, a short distance north of the Forrest County line, the Kates and Howell trucks collided and both of the drivers were killed. This occurred around 4 A. M.

The pavement, at the place of the collision, was 20 feet wide, with 7 foot shoulders on each side. The road was level and straight for a considerable distance in both directions. Following the collision, the Walker truck, headed south, was completely off the pavement on the west side. The Kates truck, headed north, was completely off the pavement on the east side. The Howell truck, headed south, was on the pavement and alongside the Walker truck, but about 10 feet farther south. The front end of the Kates truck was 12 to 15 feet farther north than the rear end of the Howell truck. There were no skid-marks on the pavement. There was no damage to the bumper, grill, or front end of the Howell truck. The impact upon it was about the door of the cab on the driver's side and backward. The Kates truck was smashed from about the center on the front and along the left side, with the bumper and fender somewhat rolled back and the cab demolished. The gas saddle tank of the Howell truck on the driver's side, between the cab and the trailer, was demolished. Gas, evidently from this tank, was the fuel for the fire which burned almost entirely in the west lane with additional damage to the Howell truck. The only damage to the Walker truck was from fire. Photographs verified the oral evidence of witnesses as to these physical facts, except the location of the Howell truck, which had been moved off the highway before the pictures were taken.

Six witnesses, W. C. Jones, Prentiss Walker, John Atwood, Mrs. Darlene Calhoun, Ray Howell and George Howell, Sr., testified that following the wreck, the Howell truck was entirely west of the center line; and Tom Walker was positive that the tractor part was west of the center line, but he was not sure as to the remaining part because he did not notice it.

J. C. Puckett, a patrolman, and Jake Edwards testified that the rear part of the Howell truck was barely over into the east lane about 1 foot, while J. F. Guthrie said that it extended about 18 inches, and W. G. Strahan, that the rear wheels on that side were in the east lane.

Tom Walker testified that, as he was driving south in the dense fog, he saw a couple of lights in his lane of travel, and that, as quicky as he could safely do so, he pulled off on the side of the road and onto the shoulder. Shortly after stopping, he heard a noise, then an explosion, and in a second's time saw fire to his left. At that juncture, Howell's truck stopped with the saddle tank on the right side about opposite the left front wheel of Walker's truck, and thus about 10 or 12 feet ahead. He did not know what became of the lights which he had seen in front of him, that is, whether they came on north, or stopped, or turned off. On cross-examination, he was asked if he did not tell Patrolmen Puckett and Rutland that his reason for turning off was that he had overtaken a bob truck, that is a three-quarter ton truck in the fog. He denied this, though stating that he saw something that looked like a bob truck, but that he saw only the lights and did not know what they were. By way of impeachment, Puckett testified that Walker said that he was overtaking a bob truck, going in the same direction; but Rutland, who heard the same statement, while agreeing that Walker was talking about overtaking a bob truck, testified that Walker did not say in which direction the bob truck was traveling. The patrolmen were never able to find this so-called bob truck. The only other evidence about a bob truck on this occasion was by Morris Williams, the driver of the other Brown-Miller truck, who testified that after he had driven about 5 miles from the place where he had last seen the Kates truck, he met and passed a bob truck and that a short time later he met and passed two trucks with 'Deaton' written on all sides. This statement, in view of the heavy fog, and the inability of the witness to say that he had passed any other vehicle between that point and the Town of Collins, when it was clear that he did actually pass other vehicles, no doubt taxed the jury's credulity. Of course, the credibility of the witnesses was for the jury.

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