Dame v. Estes

• Citation: 101 So.2d 644,233 Miss. 315
• Decision Date: 07 April 1958
• Docket Number: No. 40730,40730
• Parties: W. J. B. DAME v. Mrs. J. F. ESTES.
• Court: Mississippi Supreme Court

Page 644

101 So.2d 644

233 Miss. 315

W. J. B. DAME v. Mrs. J. F. ESTES.

No. 40730.

Supreme Court of Mississippi.

April 7, 1958.

Owen T. Palmer, Jr., Gulfport, for appellant.

Eaton, Cottrell & Galloway, Gulfport, for appellee.

HALL, Justice.

Appellant prosecutes this appeal from a judgment in his favor in the sum of $900 for damages for personal injuries and property damage resulting from a collision on or about January 4, 1956, between a Ford pickup truck owned by and driven by him and an automobile driven by the appellee. The appellant was traveling in a westerly direction on 47th Street in the City of Gulfport and the appellee was driving in a southerly direction on Chamberlain Avenue. There is a regulation stop sign erected on Chamberlain Avenue immediately north of the intersection requiring southbound traffic thereon to stop prior to crossing the intersection made by these two streets.

It is undisputed that the appellee did not stop or even slow down at the intersection but ran past the stop sign and into the intersection and struck the appellant's pickup truck broadside, knocking it a distance of about forty-two feet and turning it completely around.

The appellant requested and was refused an instruction which would have authorized the jury to award him punitive damages and the court granted the appellee an instruction telling the jury that they could not award punitive damages in this case. That is the first point argued. In the case of Hadad v. Lockeby, 176 Miss. 660, 670, 169 So. 691, 693, we quoted with approval from the case of Neal v. Newburger Company, 154 Miss. 691, 123 So. 861, as follows: 'Punitive damages may be recovered, not only for a willful and intentional wrong, but for such gross and reckless neglect as is equivalent to such a wrong, since an act done in spirit of wantonness and recklessness is oftentimes just as harmful as if prompted by malice.'

Immediately following this quotation we cited several other cases which hold to the same effect.

In the case of Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 723, 50 So.2d 578, 584, we said: 'In Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539, 540, the Court said: 'It is the firmly established law in this state that punitive damages are recoverable not only for willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, the equivalent of willful wrong. Godfrey v. Meridian Light & R. Co., 101 Miss. 565, 568, 58 So. 534. There is no precise definition of gross negligence, but one of the approximate definitions may be thus expressed: Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them. The facts of this case, as the statement thereof reveals, bring it well within that definition and principle. Compare Wilson v. State, 173 Miss. 372, 161 So. 744, wherein we affirmed a manslaughter conviction, as for culpable negligence, upon a state of facts in which the negligence was no more culpable than in the case now before us."

In this case the appellee was driving south at what was estimated by several witnesses to be a speed of not less than fifty miles per hour. She estimated the speed at thirty to thirty-five miles per hour. The speed limit in the City of Gulfport is thirty miles per hour. It is undisputed that the appellee either ignored or wholly failed to see the stop sign which was staring her in the face and made no effort to stop at the intersection or to even check the speed of the automobile she was driving. It was broadopen daylight, there was nothing to obscure her vision, and she wholly failed to see the appellant's pickup truck until it was directly in front of her; and we think that under the whole record in this case the question of whether the plaintiff was entitled to recover punitive damages should have been submitted to the jury, and that consequently the lower court erred in refusing the plaintiff's requested instruction on punitive damages and in granting to the defendant the instruction telling the jury that they could not award any punitive damages to the plaintiff. For this error the judgment of the lower court will have to be reversed and the cause remanded. Since the jury on the first trial found in favor of the plaintiff on the question of liability, the new trial will be only as to the amount of the damages.

The trial court granted the appellee the following instruction: 'The Court instructs the jury for the defendant Mrs. Estes that the law does not countenance blind reliance that an operator of an automobile approaching a stop sign will observe it, and the jury is further instructed that even though you may believe from the preponderance of the evidence that plaintiff was driving his automobile on a through street protected by stop signs, plaintiff did not have an unqualified privilege in the right-of-way, and it was his duty notwithstanding his right-of-way, to observe due care in approaching and traversing the intersection and to take such action as an ordinary prudent person would take to avoid a collision when danger was discovered, or by the exercise of reasonable care could have been discovered in time; and if you believe from the evidence that plaintiff saw defendant's automobile approach the intersection at a speed and in a manner that it could not be brought to a stop, and if you further believe from the evidence that thereafter plaintiff negligently did not observe due care in approaching said intersection or negligently failed to take due care to avoid the collision, and that such negligence solely and proximately caused the accident, then you will find for the defendant Mrs. Estes.' And the appellant makes complaint at this action. The main trouble with this instruction is that it...