Burt v. Duckworth, 44699

• Decision Date: 05 February 1968
• Docket Number: No. 44699,44699
• Citation: 206 So.2d 850
• Parties: Mrs. Peggy F. BURT v. Rice DUCKWORTH and Lillian C. Laird.
• Court: Mississippi Supreme Court

Page 850

206 So.2d 850

Mrs. Peggy F. BURT v. Rice DUCKWORTH and Lillian C. Laird.

No. 44699.

Supreme Court of Mississippi.

Feb. 5, 1968.

William E. Andrews, Jr., Purvis, J. Harold Graham, Jr., Crystal Springs, for appellant.

Dudley W. Conner, Hattiesburg, for appellee.

INZER, Justice:

This is an appeal by Mrs. Peggy F. Burt from a judgment of the Circuit Court of Lamar County wherein that court sustained separate motions of the defendants-appellees, Rice Duckworth and Mrs. Lillian C. Laird, to exclude the evidence offered by appellant and to direct the jury to find for appellees.

Appellant sought to recover damages for personal injuries sustained as a result of the car which she was driving being struck from the rear by a pulpwood truck driven by Rice Duckworth. The accident happened on December 11, 1963, at about 5 p.m. on U.S. Highway No. 11 about one and one-half miles north of Purvis, Mississippi. At the time in question Mrs. Laird was proceeding north in her car intending to make a left turn into a street which led to a subdivision on the west side of the highway and which intersected the highway. Mrs. Burt was following the Laird vehicle driving a 1963 Rambler that belonged to her husband who was riding in the car with her. The road into which Mrs. Laird intended to turn was at the bottom of a long hill and after Mrs. Laird went over the crest of the hill she gave a signal with her blinker light that she intended to make a left turn. Mrs. Burt admits that she saw this signal. When Mrs. Laird reached the point where she intended to make her turn, she was meeting on-coming traffic from the north and she applied the brakes of her car and stopped on the highway. Mrs. Burt saw the brake light come on and she stopped her car behind the Laird car. In a few seconds the vehicle of Mrs. Burt was struck from the rear by a Ford truck driven by Duckworth. As the truck approached, Mrs. Laird saw it and thought that the driver of the truck was not going to be able to stop. She drove her car forward, but Mrs. Burt was unable to move forward. As a result of the collision Mrs. Burt's car was knocked forward to the edge of the pavement. She suffered a whiplash injury. Thereafter Mrs. Burt brought suit against Mrs. Laird, Duckworth, W. R. Campbell, and International Paper Company seeking to recover damages for her injury. She alleged in that suit that Duckworth was the servant of Campbell and International Paper Company and that they were liable as his master for his negligence. Her husband, Billy Frank Burt, brought suit against Rice Duckworth and Wallace R. Campbell seeking to recover $206.73 for damage to his car as a result of the collision. When these cases came on for trial at the January 1966 term of the court, Mrs. Burt took a nonsuit as to all the defendants in her suit. The suit of Mr. Burt was dismissed with prejudice at the April term.

Mrs. Burt then filed the present suit against Mrs. Laird and Rice Duckworth. Mrs. Laird answered and denied that she was guilty of any negligence that caused or contributed to the accident. She incorporated into her answer an affirmative defense wherein she alleged that Mrs. Burt had filed the previous suit and that it was nonsuited as a result of Mrs. Burt's being paid $3,000 by W. R. Campbell and International Paper Company. It was also alleged that this payment fully and completely compensated Mrs. Burt for any and all injuries that she may have suffered as a result of the collision and that she was not entitled to recover anything from Mrs. Laird. Mrs. Burt answered this affirmative defense admitting that she had filed the former suit against the parties named and had taken a nonsuit as to all the parties but denying that the sum paid completely compensated her for the injuries she sustained in the accident.

Rice Duckworth did not answer but was present in court and participated in the trial of the cause representing himself. He did not file any answer but no default judgment was taken against him.

The principal error assigned is that the trial court was in error in sustaining the separate motions of appellees for a directed verdict.

We have carefully examined the evidence and we are of the opinion that the trial court was not in error in sustaining the motion of Mrs. Laird for directed verdict. It was the duty of the trial court when the motion for a directed verdict was made by Mrs. Laird to determine whether or not appellant had established negligence on her part. This the trial court did, the judge stating:

We come to the other motion-that of the defendant, Mrs. Laird, to exclude the testimony and direct a verdict for her.

Of course, those facts are before the Court and are in the record. There is the testimony of two people-in other words, two sets of testimony we will call it. The testimony of Mrs. Laird herself, as an adverse witness. That testimony is clear and she testified that she gave a signal for a left turn and...