City of Indianola for Use of Kirkpatrick v. Love, 39961
| Decision Date | 12 March 1956 |
| Docket Number | No. 39961,39961 |
| Parties | The CITY OF INDIANOLA, for Use of T. F. KIRKPATRICK and George Stock v. Will LOVE and United States Fidelity and Guaranty Company. |
| Court | Mississippi Supreme Court |
Cooper & Harper, Indianola, J. Robertshaw, Greenville, for appellants.
Neill, Clark & Townsend, Indianola, for appellees.
This is the second appearance of this case before the Court. The facts are fully stated in the former decision, Kirkpatrick v. Love, 220 Miss. 174, 70 So.2d 321. Upon remand, there was a second trial on the merits and the plaintiffs recovered judgment for $1,331.99, which was approximately one-half of the amount of the damages to the two cotton picking machines and the truck. From this judgment, the appellants appeal and the appellees cross-appeal. We will not detail the evidence, since both parties agree that the facts are substantially the same as in the first trial.
The appellants contend that the trial court erred in not entering judgment for the full amount of damages claimed. We are of the opinion that this assignment is well taken as to the actual damages. The evidence is undisputed that the repairs were necessary to the cotton picking machines and truck in the amount of $2,480.52. Carroll County v. Shook, 216 Miss. 232, 62 So.2d 311. The appellants also contend that they are entitled to recover $2,000 special damages for loss on a cotton picking contract. Under the pleadings and proof in this case, we are of the opinion that there is no merit in this contention.
The appellees contend that the judgment should be affirmed for the reason that the jury had to consider the contributory negligence of the appellants' driver, Maddox, and also the improper loading of the truck. The appellees did not plead contributory negligence and no instruction was given on that issue. However, the jury has a right to diminish damages because of contributory negligence even though it is not pleaded and no instruction is given authorizing them to so diminish the damages because of contributory negligence. Pounders v. Day, 151 Miss. 436, 118 So. 298; Vaughn v. Bollis, 221 Miss. 589, 73 So.2d 160. We are of the opinion that there was not sufficient proof of contributory negligence on the part of Maddox, the driver of the truck, for the jury to find that his negligence contributed to the accident; further, that the overwhelming weight of the...
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