Brown Oil Tools, Inc. v. Schmidt, 42506

• Decision Date: 14 January 1963
• Docket Number: No. 42506,42506
• Citation: 246 Miss. 238,148 So.2d 685
• Parties: BROWN OIL TOOLS, INC. et al. v. Robert W. SCHMIDT et al.
• Court: Mississippi Supreme Court

Page 685

148 So.2d 685

246 Miss. 238

BROWN OIL TOOLS, INC. et al. v. Robert W. SCHMIDT et al.

No. 42506.

Supreme Court of Mississippi.

Jan. 14, 1963.

Welch, Gibbes & Graves, Laurel, for appellants.

Gartin, Hester & Pickering, Laurel, for appellee.

RODGERS, Justice.

This is a damage suit brought by Robert W. Schmidt under the wrongful death statute of Mississippi, individually, and on behalf of his minor son, Robert W. Schmidt, Jr., against George Sokovich and his employer, Brown Oil Tools, Inc. The action arose out of an automobile accident in which Vivian Schmidt, wife and mother of appellees, is said to have lost her life because of the wrongful acts of appellants.

This case was tried in the Circuit Court, Second Judicial District of Jones County, Mississippi. The jury returned a verdict for appellees in the sum of $80,000. Appellants made a motion for a judgment, notwithstanding the verdict. The motion was overruled and a judgment was entered in favor of appellees. Appellants made a motion for a new trial, and when this motion was overruled, they appealed to this Court.

The record revealed that appellee, Robert W. Schmidt, Sr., was a Sergeant in the U. S. Army and was stationed in Japan, and that his wife and son were living in Laurel, Mississippi, with her parents. The testimony shows that for sometime before April 15, 1961, she had been having 'an affair' with Charles Sokovich, an employee of Brown Oil Tools, Inc. In fact, she spent the night with Sokovich the night before the accident and she drove him to work on the morning of April 15th. He next saw her at a filling station, and she asked him to permit her to go with him to Thompson Creek, an oil field where Sokovich was directed to do some work, as agent of Brown Oil Tools, Inc. He permitted her to ride with him to his work, and after he had finished work at Thompson Creek, Mrs. Schmidt and Mr. Sokovich took a drink of whiskey from a bottle which she had in her purse. They then drove to the County Line Inn, where they danced and drank intoxicants to such an extent that Charles Sokovich did not remember leaving. Mrs. Schmidt drove the company automobile used by Mr. Sokovich when they left the County Line Inn. A witness driving in a westerly direction towards Laurel stated that he saw the woman (Mrs. Schmidt) driving behind him and that she attempted to pass but that each time she would move back into the line of traffic, when other cars approached from the opposite direction. He stated that the man in the car tried to kiss the woman driver about three-quarters of a mile before the accident occurred. He stated that she finally passed him and had just driven out of sight a short time when he came upon the wrecked car.

Billy Fountain, an eye-witness to the accident, testified that he was standing at Dick Newman's Service Station at the time the automobile driven by Mrs. Schmidt passed the station; it was proceeding in a westerly direction; and the man in the car was 'close to the lady.' In answer to the question 'What happened?', he said 'She left the road--the car left the road on the right-hand side just a short distance, then veered back to the left side of the road several yards, she came back across the road, the car did, and run into some pine trees.' He also testified that the accident occurred about 150 to 200 yards from where he was standing, and that he ran immediately to the wrecked automobile. The testimony shows that Mrs. Schmidt died at the scene of the accident. Mr. Sokovich was taken to The Laurel General Hospital and was later moved to the Baptist Hospital in Jackson, Mississippi. The ambulance driver testified that he talked to Sokovich and that he said: 'I asked him what happened at the accident and he said he caught hold of the wheel to pull himself up, so far as he knew.'

In view of our holding in this case, we deem it necessary to discuss only the first assignment of error, viz: 'The trial court should have granted a peremptory instruction, because there is no evidence of negligence on the part of either appellant which proximately caused or contributed to the death of the appellees' decedent.'

A motion was made on behalf of each of the appellants for a directed verdict, at the time appellees rested their case, and a written instruction presented by each appellant directing the jury to find for defendants was refused by the trial judge. We are of the opinion that the court erred in refusing to grant a directed verdict in this case for reasons hereinafter set out.

In reaching a conclusion in this case, we have kept in mind the general rule that in determining whether or not a party is entitled to a directed verdict, the trial judge must look solely to the testimony in behalf of the party against whom the directed verdict is requested. If, after accepting that testimony as true, together with all reasonable, favorable inferences to such party, the testimony can then support a verdict for him, a directed verdict should not be granted. Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126; Thomas v. Williamson, 185 Miss. 83, 187 So. 220.

Assuming, for the purpose of argument, that Brown Oil Tools, Inc. was negligent in continuing to furnish Charles Sokovich, its employee, an automobile, still, it is not liable for the injury and death of Mrs. Schmidt unless there was some testimony introduced in the trial of the case showing that Charles Sokovich, its agent, did some negligent act which proximately contributed to the death of the deceased. Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; Martin v. Cazedessus, 15 La.App. 100, 130 So. 129 (1930).

In the case of Phillips v. Delta Motor Lines, Inc. et al., 235 Miss. 1, 108 So.2d 409-419, this Court quoted from 65 C.J.S. Negligence Sec. 6, p. 366, as follows: 'Injury or damage to the person complaining is an essential element of actionable negligence, since * * * even though an act or omission may be negligent in the colloquial sense because it involves a lack of due care, no cause of action arises therefrom unless the person complaining has been injured in consequence thereof. * * * If the negligent act or omission has resulted in no injury or loss to anyone, it is merely injuria sine damno, although it involved violation of a statute or ordinance * * *'.

It was pointed out in the case of Petermann et al. v. Gary, 210 Miss. 438, 49 So.2d 828, that it was the duty of this Court, not only to determine that the employer, Petermann Brothers, furnished the truck to Foster and permitted him to use the same, when they knew, or from facts known to them should have known, that he used intoxicating liquor to excess, and that he was likely to drive the truck while under its influence, but in addition thereto, the Court must determine that there was sufficient evidence to show that Foster was under the influence of intoxicating...