Copiah Dairies, Inc. v. Addkison, 42661
| Decision Date | 20 May 1963 |
| Docket Number | No. 42661,42661 |
| Citation | 153 So.2d 689,247 Miss. 327 |
| Parties | COPIAH DAIRIES, INC. and W. C. Jackson v. R. H. ADDKISON. |
| Court | Mississippi Supreme Court |
Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellants.
J. Hoy Hathorn, Louisville, for appellee.
R. H. Addkison was plaintiff below and sued Copiah Dairies, Inc., and its truck driver, W. C. Jackson, defendants below, for damages sustained when the truck operated by Jackson for Copiah Dairies, Inc., skidded off the road and ran into the combination service station, store and residence owned by Addkison. Damages were sought for the destruction of the building, damage to the stock of merchandise, household and kitchen furniture, dishes and other items. The jury returned a verdict for the plaintiff in the sum of $18,500 and defendants appeal.
Appellant contends that the trial court erred in granting a peremptory instruction in favor of appellee at the close of the evidence for both parties. We are of the opinion that no error was committed in this connection and that the facts conclusively showed that appellants were guilty of negligence which was the sole proximate cause of the damages sustained by appellee. In our opinion there is not sufficient merit in this assignment of error to require a detailed statement of the facts relating to liability.
The appellee's property consisted of about one acre of land located in the forks of the road near Louisville, Mississippi. On this plot of land appellee owned and operated a service station and store, and maintained his residence. The proof showed that the gas pumps were not damaged. The proof showed that appellee carried a stock of groceries totaling about $2500 to $3000. Some of the grocery items were knocked off the shelves and damaged but there is no proof as to any specific item being damaged. The living quarters consisted of two bedrooms, den, kitchen and bathroom. The building was 28 years old but some additions had been made after the original construction. The building rested on brick piers with a brick curtain wall. The outside walls were covered with imitation brick siding, the roof was old but had recently had protective material applied to it, and the trim on the outside of the building had recently been painted. Proof on behalf of plaintiff showed that the building was in good condition although there was other proof that some parts of it were decayed. Appellee testified that his store, lot and other facilities located on the property as a unit had a value before the accident of $40,000, and after the accident a value of $10,000. He estimated it would cost $21,000 to rebuild the building, $1500 to $1800 to clear the lot of the old house, and $1500 to fill in a cellar that had been caved in by the accident. He testified that he would lose $5,000 while his business was closed for rebuilding the property. He estimated his total damages at $30,000. He testified he made a profit of $450 to $500 per month in the grocery business. He testified that some of the furniture was damaged.
Other witnesses testified for appellee on the question of damages, some of whom were qualified and some of whom were not. There was no itemization of any damaged personal property. A wholesale grocer testified that he observed the condition of the stock of goods after the wreck and he was of the opinion it was damaged $800 to $900 but he made no list of the damaged items. In fact, no witness made any inventory or list of any of the personal property alleged to have been damaged. One witness testified that she thought there was a $500 or $600 damage done to dishes and antiques, and $700 to $800 to furniture, but she did not count anything or make a list, but only made a rough estimate.
Appellant offered proof of two expert witnesses who testified that the building had a value not exceeding $5,000, and that a new building, using new materials and the same floor plan, could be constructed for about $9,000.
A timely motion was made for a bill of particulars. The declaration charged that the plaintiff sustained property damages as follows:
Replacement cost of building ....................................... $21,000.00
Cost of clearing lot for rebuilding .................................. 1,000.00
Damage to stock of merchandise ......................................... 800.00
Damage to household & kitchen furniture .............................. 1,200.00
Cost of rental of temporary place of business and house to live
during reconstruction, four months $100 .............................. 400.00
Dishes, glasses, mirrors & antiques broken ............................. 600.00
Cost of moving, loss of business, inconvenience of rebuilding
supervision, personal time and incidental expense thereto .......... 5,000.00
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Total damages ...................................................... $30,000.00
The motion and affidavit for a bill of particulars averred that plaintiff should be required to give an itemization and description of the items of personal property alleged to have been damaged. This motion was overruled. We are of the opinion this was error and contributed to subsequent errors in the trial of this case.
The record does not show the specific items of household and kitchen furniture, merchandise, dishes, glasses, mirrors, or antiques which sustained damage in the wreck. There was proof in a general way estimating the total of such damages but specific items were not mentioned in the evidence. We are of the opinion that the plaintiff should be required to state what property was damaged and the extent of such damage. Sec. 1499, Miss. Code 1942. The declaration was vague and indefinite as to the personal property alleged to be damaged. Before a defendant is required to answer in damages for injury to or destruction of personal property he should be advised what property has been injured or destroyed, if a bill of particulars is requested. Ordinarily, the granting of a bill of particulars rests within the sound discretion of the trial judge, but where, as in the instant case, there is no description of the personal property alleged to be damaged the bill should be ordered as a matter of law. Otherwise, it would be impossible for the defendant to prepare for trial.
Appellant complains of the granting to appellee of the following instruction on damages:
'The Court instructs the jury for the plaintiff in this case that if you believe from a preponderance of the evidence in this case that the property of the plaintiff, store, house, and goods damaged, was in the collision here sued upon, damaged beyond repair and that plaintiff is entitled to recover as against defendants, then the determination of the value of the value of the damages for the building in dollars and cents would be determined by taking from what is shown to be the fair and reasonable value of said property as a unit, building, store and lot, prior to the collision, the amount that is shown to be the fair and reasonable value of said property as a unit, building, store and lot, after the collision, all as shown by the evidence in the case; that in addition thereto the plaintiff would be entitled to recover the actual value, cost or damage to his personal property destroyed, including damage to his stock of merchandise, household and kitchen furniture, dishes,...
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