Bryan Bros. Packing Co. v. Grubbs
| Decision Date | 26 October 1964 |
| Docket Number | No. 43152,43152 |
| Parties | BRYAN BROS. PACKING COMPANY and John Guyton v. Mrs. Earl (Grace) GRUBBS. |
| Court | Mississippi Supreme Court |
Cary E. Bufkin, Satterfield, Shell, Williams & Buford, Jackson, for appellants.
George B. Grubbs, George G. Williamson, Mendenhall, for appellee.
Mrs. Earl Grubbs, plaintiff below and appellee here, sued P. B. Barnett, John Guyton and his employer, Bryan Bros. Packing Company, a corporation (hereinafter referred to as Bryan Bros.), to recover damages for personal injuries sustained in an automobile collision. Four automobiles were traveling south on U. S. Highway 49, a two-lane highway, about a mile north of Florence, Mississippi. It had been raining, the pavement was wet, and traffic was heavy. The first vehicle, belonging to the State Game and Fish Commission, developed engine trouble and stopped in the highway. Plaintiff's Chevrolet was next in line and stopped to avoid hitting the Game and Fish Commission's station wagon. Barnett was third and stopped his vehicle to avoid hitting plaintiff's automobile. The Bryan Bros. vehicle, driven by defendant John Guyton, the last car in the line, ran into the rear of the Barnett car, forcing it for ward and causing it to strike the rear of plaintiff's car. The Game and Fish Commission's vehicle was not struck. The jury found in favor of plaintiff against defendants Guyton and Bryan Bros., who prosecuted this appeal. The jury found in favor of Barnett and this appeal does not concernhim.
The declaration charged Guyton was negligent in (1) driving his vehicle at an excessive speed, (2) failing to keep his vehicle under reasonable control, (3) failing to keep a proper lookout, and (4) driving too closely to the vehicle ahead. All these charges were denied on behalf of Guyton and Bryan Bros. The proof was in conflict, and whether Guyton was negligent was a question for the jury.
The granting at the request of plaintiff of instruction No. 5 is assigned as error. This instruction told the jury that the driver of a vehicle '* * * must so drive his vehicle that he can actually discover an object, perform the manual acts necessary to stop, and bring his vehicle to a complete halt, if necessary, to avoid a collision with others. * * *' This instruction placed upon Guyton an absolute duty to avoid a collision with others. The standard required by the law is ordinary, or reasonable, care.
Instruction No. 6 granted at the request of plaintiff was directed to the question of speed and told the jury '* * * the driver or operator of any vehicle must decrease speed when special hazards exist by reason of weather or highway conditions, and the speed shall be decreased as may be necessary to avoid collision with any person, vehicle or other conveyance on the highway.' This instruction likewise placed upon Guyton an absolute burden to avoid a collision, when the standard of the law is that of ordinary, or reasonable, care.
The two aforementioned instructions must be considered in the light of the facts. It was late afternoon on a rainy day and the pavement was wet. Traffic was heavy. The disabled vehicle caused traffic to stop. Guyton testified that he was traveling at a speed of about thirty or forty miles per hour at a distance of thirty or forty feet behind the Barnett vehicle. According to his testimony, Barnett stopped suddenly without giving any signal. It was for the jury to determine whether Guyton exercised ordinary care under the circumstances. Hankins v. Harvey, 160 So.2d 63 (Miss.1964). Both of the said instructions are peremptory in character and denied the jury the right to determine whether under all the circumstances Guyton exercised ordinary care, both as to the speed he was driving immediately before the collision and in attempting to stop his vehicle. The errors in these instructions were not cured by the other instructions.
Instruction No. 7 granted at the request of plaintiff below was directed to the relationship of master and servant existing at the time of the collision between Guyton any Bryan Bros. It told the jury that Bryan Bros. admitted that Guyton was acting within the scope of his employment, and concluded with the statement that '* * * in the event you should find for the plaintiff, then you are to return a verdict against both of said defendants, John Guyton and Bryan Brothers Packing Company.' This instruction fails to take into account the fact that Barnett was also a defendant. It instructed the jury to find against both said defendants in the event it found for plaintiff, whereas, under the pleadings and proof the jury could have found for the plaintiff against Barnett and in favor of Guyton and Bryan Bros. This error was no doubt an inadvertence and we do not indicate that the case would be reversed for this cause alone.
Instruction No. 9 concerning the measure of damages is confusing and should not be given on retrial. It purports to authorize the jury to fix the amount of damages at such sum as will fairly compensate the plaintiff for the following:
'(a) For the injuries, if any, sustained by Plaintiff directly and proximately caused by the act or omission of the defendants;
'(b) The pain, suffering and mental anguish, if any, sustained or to be sustained by plaintiff because of her said injuries;
'(c) Such damages, if any, as the jury may consider will compensate the plaintiff for her discomfort, if any, she has suffered, as a direct and proximate result of her said injuries; and
'(d) Such amounts as will fairly and reasonably compensate the Plaintiff for permanent injuries, if any, that she may have received, all of which must be shown by a preponderance of the credible evidence to be directly and proximately caused or contributed to by the negligence, if any, of the defendants, including past and future, medical, drug and hospital expenses, if any, which Plaintiff has incurred or if you believe from a preponderance of the evidence that she will incur in the future, if any.'
This type of instruction is objectionable because it indicates to the jury that each paragraph is a separate item or kind of damage when in fact some of the elements are duplicated. For instance, in paragraph (b) she may recover for pain, suffering and mental anguish and again in (c) she may recover for her discomfort suffered as a proximate result of her injuries. This allows pyramiding of damages and is erroneous. Copiah Dairies v. Addkison, 247 Miss. 327, 153 So.2d 689 (1963).
Error is assigned because of the granting, at the request of plaintiff below, of the following instruction:
'The Court instructs the Jury for the plaintiff, Mrs. Earl (Grace) Grubbs, that although there...
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