Dement v. Summer, 32072

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Griffith, J.
• Citation: 175 Miss. 290,165 So. 791
• Parties: DEMENT et al. v. SUMMER
• Docket Number: 32072
• Decision Date: 10 February 1936

165 So. 791

175 Miss. 290

DEMENT et al.
v.
SUMMER

No. 32072

Supreme Court of Mississippi

February 10, 1936

Division B

APPEAL from circuit court of Lauderdale county [175 Miss. 291] HON. ARTHUR G. BUSBY, Judge.

Action, by A. L. Summer against Sarah Dement and others. From the judgment, defendants appeal. Reversed and remanded.

Reversed and remanded.

[175 Miss. 292] Jacobson & Snow, of Meridian, for appellants.

The court below erred in refusing to grant instruction No. 1 and instruction No. 2 to charge the jury to find for the defendants.

While it is the duty of the driver of an automobile to be on the lookout, at the same time, a pedestrian crossing the street also has the duty to be on the lookout for the approach of automobiles or vehicles.

Coca-Cola Co. v. Watson, 161 Miss. 108, 120, 134 So. 824; Hall et al. v. Caughran, 160 Miss. 571, 134 So. 576; Monroe v. Eager, 131 So. 719; West v. N. Y. Transp. Co., 94 N.Y.S. 426.

Where the evidence does not tend to prove the plaintiff's cause of action the court may instruct the jury to return a verdict for the defendant.

I. C. R. R. Co. v. Fowler, 123 Miss. 826, 86 So, 460; Boggs v. Jewett, 127 Miss. 308, 90 So. 13.

Appellants contend that the court below erred in not granting its motion for a new trial because the overwhelming weight of the testimony of the case as to liability vel non was with defendants, and being of such character that the verdict of the jury and the judgment of the court rendered therein should not be permitted to stand.

Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Y. & M. V. R. Co. v. Pittman, 169 Miss. 667, 153 So. 382; Justice v. State, 170 Miss. 96, 154 So 265; Universal Truck Loading Co. v. Taylor, 164 So. 3.

The court below erred in refusing to grant to the defendants their motion for a new trial of the case because [175 Miss. 293] of newly discovered evidence relative to the testimony of witness D. T. Rogers.

Southern Railroad Co. v. Elder, 110 Miss. 461, 71 So. 549; 46 C. J., page 280, sec. 242, and page 416, sec. 472.

The court erred in refusing to grant the defendants' request that a mistrial be entered in this case, which motion was made and directed to the argument of counsel for plaintiff to the jury, and which argument and exceptions and motion is set out in the special bill of exceptions taken thereto and proceedings thereon.

N. O. & N. E. R. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; J. J. Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; White's Market & Grocery Co. v. John, 153 Miss. 60, 121 So. 825; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356.

The verdict of the jury in the sum of nine thousand five hundred dollars is grossly excessive and evinces biased passion, prejudice and unfair attitude on the part of the jury against the defendants. The verdict of the jury and the judgment rendered thereon by the court clearly and positively shows that the jury unfairly and unlawfully failed to consider the negligence of the plaintiff in arriving at the amount of the verdict as is clearly shown by the grossly excessive amount of the verdict rendered.

J. J. Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; N. O. & N. E. Ry. v. Jackson, 140 Miss. 375, 105 So. 770; White's Market & Grocery Co. v. John, 153 Miss. 860, 121 So. 825; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Brush v. Laurendine, 168 Miss. 7, 150 So. 818.

The testimony clearly shows that there was no relation of master and servant existing between Miss Sarah Dement, the adult daughter of Mr. J. V. Dement, and Mr. Dement at the time of the accident. [175 Miss. 294]

Woods v. Franklin, 151 Miss. 642, 118 So. 450.

The relation of master and servant has to be proven directly and not by presumption.

Woods v. Clements, 113 Miss. 720, 74 So. 422, 114 Miss. 301, 75 So. 119; Harrington v. Gough, 164 Miss. 802, 145. So. 621; Smith v. Dauber, 155 Miss. 694, 125 So 102; Culpeper v. Holmes, 170 Miss. 235, 154 So. 726; Hobson v. McLeod, 165 Miss. 853, 147 So. 778.

The court below erred in submitting the case to the jury without requiring the plaintiff to request written instructions to the jury on the plaintiff's theory of the case and permitting counsel for plaintiff to argue orally to the jury what he considered the law of the case, and without any written instructions submitted to the jury as to the plaintiff's theory of the case; and also, the court below erred in permitting the jury to pass upon the case and render a verdict for the plaintiff without having any written instructions submitted to the jury to find for the plaintiff in any event of the case.

J. C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; G. & S. I. v. Simmons, 153 Miss. 338, 121 So. 144; 2 Thompson on Trials (2 Ed.), sec. 238.

The general rule of common law was that a new trial would be granted where an injustice had been done.

The purpose of courts is to mete out justice between litigants. This purpose fails where a verdict is permitted to rest upon mistaken testimony.

46 C. J. 81, par. 29 (3), and 229, par. 185 (5); 20 R. C. L. 299, par. 80; Queen Ins. Co. v. Betbeze, 53 So. 592; Powell v. Commonwealth of Virginia, 133 Va. 741, 112 S.E. 657; Vanden Hoek v. Pierce, 230, Mich. 266, 202. N.W. 947; Wright v. Hines, 235 S.W. 831; Turner v. So. R. R. C., 121 S.C. 159, 113 S.E. 360; Scoffield Rolling Mills Co. v. State, 54 Ga. 635; Beverage v. Chellain, 1 Ill. A. 231; Picketing v. Kirkpatrick, 36 Iowa 163; Warren v. Hope, 6 Maine, 479; Randall v. Packard, 1 Misc. 347, 20 N.Y.S. 718, 142 N.Y. 47, 36 N.E. 823; [175 Miss. 295] Codington v. Hunt, 6 Hill 595; City Saving Fund v. Shoff, 17 Pa. Dist. 857; House v. Slayer, 3 Pa. Dist. 320; Richards v. Fisher, 1 Bing. 145, 8 E. C. L. 444, 130 Reprint, 59; Dudley v. Robbins, 3 C. & P. 26, 14 E. C. L. 432; Truebody v. Brain, 9 Price, 76, 147 Reprint, 26; Doe v. McGill, 5 W. C. Q. B. O. S. 56; Van Epps v. McKinney, 189 N.Y.S. 910; Pettibone v. New Mexico, 199 C. C. A. 581, 201 F. 489; Bussey v. State, 69 Ark. 545, 64 S.W. 286; Myers v. State, 111 Ark. 399, 163 S.W. 1177; Dennis v. State, 103 Ind. 142, 2 N.E. 399; State v. Washington, 108 La. 226, 32 So. 396; State v. Myers, 154 Minn. 242, 191 N.W. 597; State v. Moberly, 121 Mo. 604, 26 S.W. 364; People v. Fridy, 83 Hun. 240, 31 N.Y.S. 399; People v. Cohen, 117 Misc. 158, 191 N.Y.S. 831; Chapel v State, 6 Okla.Crim. 398, 119 P. 139; Com. v. Yatsin, 7 Sulp. 349; United States v. Dacir, 26 Philippine, 503; Mann v. State, 44 Tex. 643; Hines v. State, 37 Tex. Crim. 339, 39 S.W. 935; Carter v. State, 75 Tex. Crim. 110, 170 S.W. 739; McConnell v. State, 200 S.W. 842; Barker v. State, 223 S.W. 457; Atkins v. State, 247 S.W. 286; Green v. State, 252 S.W. 499; State v. Powell, 51 Wesl. 372, 98 P. 741; State v. Speritus, 90 S.W. 459.

There are many other cases where new trials have been granted where mistake has been discovered in the testimony after verdict rendered and we submit the ends of justice demand a new trial in a case of this kind.

M. V. B. Miller, of Meridian, for appellee.

We submit a jury could rightfully conclude from appellee's testimony, and the facts admitted by appellants, the driver of appellant's car was negligent in not keeping a lookout and not keeping the car under c control and in driving at a greater rate of speed than was reasonable and proper under the circumstances. [175 Miss. 296]

There are numerous Mississippi decisions in which facts are so similar as to make the holdings in these cases controlling in the case at bar. These decisions are numerous and clear.

Avery v. Collins, 157 So. 696; McDonald v. Moore, 131 So. 824; B. Kullman & Co. v. Samuels, 148 Miss. 871, 114 So. 807; Snyder v Campell, 145 Miss 287, 110 So. 678, 49 A. L. R. 1402; Reid v. McDevitt, 163 Miss. 326, 140 So. 722; Standard Coffee Co. v. Carr, 157 So. 686; Gulf Refining Co. v. Miller, 150 Miss. 168, 116 So. 296; Somerville v. Keeler, 145 So. 722; McLean v. Culpeper, 155 So. 345; Elmsley v. Georgia Pacific Ry. Co., 10 So. 41; Daniel v. Livingstone, 168 Miss. 311, 150 So. 663; Universal Truck Loading Co. v. Tavlor, 64 So. 3.

The pleadings and instructions clearly show that the family purpose doctrine is not involved in this case.

The trial court should have decided as a matter of law, if the question had been presented, that appellant Miss Dement was the agent, and servant of her father, J. V. Dement, at the time of appellee's injuries.

Winn v. Haliday, 69 So. 685, 109 Miss. 691; McCaffery v. Lukens, 67 Pa. S.Ct. 231; Kichefsky v. Wiatrzykowski, 210 N.W. 679; Donaghue v. Hayden, 208 P. 1007; Smith v. Jordan, 97 N.E. 761; Galtney v. Wood, 149 Miss. 56, 115 So. 117; Greene v. Greene, 110 So. 218; Runnels v. State, 122 So. 769, 154 Miss. 621.

As to newly discovered evidence applications on this ground are not favored by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice as a last resort to escape the consequence of an adverse verdict, such applications should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and that there has been a lack of due diligence.

20 R. C. L., pages 289, 290 and 300; Cooper v. State, [175 Miss. 297] 53 Miss. 398; Reid v. North Park & Dodd Trust Co., 159 A. 688; Tovery v. Public Service Ry. Co., 95 A. 265.

Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for a new trial; and evidence of the same kind as that already given, to the same point, is cumulative, and not merely corroborative.

Redmond v. Marshall, 137 So. 734; Wright v. Alexander, 11 S. & M. 418; Houston v....