Fowler Butane Gas Co. v. Varner

• Citation: 141 So.2d 226,244 Miss. 130
• Decision Date: 21 May 1962
• Docket Number: No. 42199,42199
• Parties: FOWLER BUTANE GAS COMPANY and Jimmy Luper v. Pamela Ellen VARNER, a Minor, by Charles Ray Varner, as Next Friend.
• Court: United States State Supreme Court of Mississippi

Page 226

141 So.2d 226

244 Miss. 130

FOWLER BUTANE GAS COMPANY and Jimmy Luper v. Pamela Ellen VARNER, a Minor, by Charles Ray Varner, as Next Friend.

No. 42199.

Supreme Court of Mississippi.

May 21, 1962.

Dudley W. Conner, Hattiesburg, for appellants.

Pierce & Waller, Jackson, Walker & Sullivan, Mendenhall, for appellee.

RODGERS, Justice.

This is a personal injury damage suit growing out of an accident caused by the backing of a dual wheel butane gas truck over the body of Pamela Ellen Varner, a little thirty-three months old girl. The suit filed by Pamela Ellen Varner, a minor, against Fowler Butane Gas Company, and Jimmy Luper, the truck driver, was originally filed in the Circuit Court of Simpson County, Mississippi. The Father, Charles Ray Varner, and Mother, Barbara M. Varner, of Pamela Ellen also filed a suit in the Circuit Court to recover expenses by way of doctors, hospital and nurses care, and minor expenditures to restore Pamela Ellen to good health. These two suits were consolidated on motion of defendant and tried jointly. The jury returned separate verdicts in the two cases and the court entered two judgments.

It appears from the record that on August 1, 1959, the defendant Jimmy Luper, the driver of the butane gas truck for the Fowler Butane Gas Company, drove a truck weighing approximately 14,000 pounds with a 1,200 gallon capacity tank, into the yard of Walter Varner. His home is located on the west side of a public road running in a northerly and southerly direction and fronts east. Charles Ray Varner, son of Walter Varner, and father of the minor-plaintiff, Pamela Ellen Varner lives directly in front of his father's home and across the public road. Jimmy Luper drove his truck into the driveway, going in a westerly direction, and turned behind the home of Mr. Walter Varner, turning in a southerly direction to a tank where butane gas was stored. He pumped one hundred gallons of gas into Mr. Varner's gas tank. After the delivery had been made, the driver sat upon the back porch and talked to Mr. Walter Varner and his son, Charles Ray Varner, for a period of about fifteen minutes. Mr. Luper then got into his truck and backed it in a northerly direction until he had cleared the corner of the house, and then turned his truck ninety degrees due east and backed along the driveway for a distance of approximately forty feet. The truck had backed slightly off the driveway in a southeasterly direction for a distance of approximately two feet, when it ran across a sand bed where Pamela Ellen Varner was then playing. The left rear dual wheel passed over the plaintiff's body, and as the truck proceeded to back, the child came into the driver's view under the running board. The driver immediately stopped the truck and picked the child up from the ground. The child was in a serious condition, appeared to be lifeless, was limp and rapidly turning blue for the lack of oxygen. Mr. Luper gave an alarm and Charles Ray Varner ran out to the truck and took the child. Mr. Walter Varner, Charles Ray Varner, Mrs. Barbara Varner, and Mr. Luper went to the Magee General Hospital which was approximately four and one-half miles from where the child was injured, in the automobile of Charles Ray Varner. Dr. Charles Pruitt, M.D., chief of staff of the hospital, took the child in charge, and later testified that the child was in a state of shock, had trouble getting her breath, was a little bluish, had skinned places, and some bloody scratches around over various parts of her body. There were tire marks on the back of her body and on the upper part of her chest. Skin had been scraped off of her left foot, and on the lateral side of her left ankle. The doctor testified that the child's left lung had collapsed and the left first and second ribs were broken, and the left lung showed evidence of bleeding, and the right lung also showed evidence of bruises and hemorrhage. It was later discovered that the pelvis bone was fractured in two places, one in front and the other in back where the pelvic bone joins the backbone. The testimony shows without question that this child is permanently injured, that she drags her right foot as she walks, she has a limp which is due to paralysis of the anterior perineal group of muscles so that the muscles will not lift the foot. It is also shown that Pamela Ellen Varner may have trouble giving birth to children.

The testimony for plaintiff shows that the driver said to the occupants of the car on the way to the hospital that 'it was my fault. I didn't look.' The defendant Luper testified, however, that after they had finished talking, and before he started backing the truck, Charles Varner walked to the back end of his truck and said 'It's all right. Come on back.' Defendant Luper also testified that he walked to the back of the truck and looked and that he could see clearly down the driveway due east and that there was nothing on the driveway at the time he turned to back in an easterly direction. He testified that he could not see directly behind his truck after he had started backing in an easterly direction because of an apron extending along the tanks on his truck. He testified that he never saw Pamela until after the wheels had passed over her body. The jury returned a verdict in favor of the plaintiffs in both cases.

Defendants have appealed to this Court and have pointed out five assignments of error alleged to have been made in the trial of the case in the court below on which reversal is sought, namely: (1) The trial court erred in overruling defendants' motion for a bill of particulars; (2) erred in overruling defendants' motion for a directed verdict at the conclusion of the evidence in both cases; (3) committed error in granting instructions requested by the plaintiffs; (4) the trial court committed reversible error in refusing defendant instructions denying punitive damages; and (5) the verdict of the jury in both cases is excessive. The first assignment of error is based upon an alleged failure of the declaration to property charge negligence, and the motion of appellants for a bill of particulars. The declaration charged that defendant Luper backed the truck along the driveway in a grossly negligent manner, and that he negligently and carelessly failed to look and observe to see that there was no child behind the truck, and backed his truck without keeping a proper lookout, and negligently failed to give any warning, and negligently and carelessly backed the left wheel of the said truck out of the traveled portion of the driveway, and into the grassy part of the lawn where the plaintiff was playing, and across the body and person of Pamela Ellen Varner, etc. We are of the opinion that the declarations filed in the two cases sufficiently charge negligence, and that the learned trial judge did not commit reversible error in overruling the motion for a bill of particulars. See 38 Am.Jur., Negligence, Sec. 259, p. 949, Sec. 260, p. 950.

The second assignment of error alleged that the court should have sustained a motion for a directed verdict at the close of the evidence, and is based upon the testimony of the appellee Luper. He testified that he looked, and that he did not see the child. It is argued that: 'Can it be said that the defendant negligently failed to look and observe to see that there was no one behind the truck or in the area over which defendant intended the backward movement of said truck to traverse when the positive testimony of the truck operator, and who was the only witness to this operation of the truck, was that he looked and there was no child in the driveway?'

This Court has long held that in passing upon a motion for a directed verdict, the trial court must concede to be true all evidence supporting the view of the party against whom the motion is made, giving him the benefit of all legitimate inferences that may be drawn from the testimony introduced. New Orleans & N. E. Railroad Company v. Jackson, 140 Miss. 375, 105 So. 770; Lowe v. Mobile & O. Railroad Co., 149 Miss. 889, 116 So. 601; Gravette v. Golden Saw Mill Trust et al., 170 Miss. 15, 154 So. 274; Masonite Corporation v. Dennis, 175 Miss. 855, 168 So. 613; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Montgomery Ward & Co., Inc. et al. v. Skinner, 200 Miss. 44, 25 So.2d 572; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Richardson v. Liddell, d. b. a. Liddell's Garage, 222 Miss. 172, 75 So.2d 468; Cole v. Tullos, 228 Miss. 815, 90 So.2d 32; Priest v. Avent, 236 Miss. 202, 109 So.2d 643; Stoner v. Colvin et ux., 236 Miss. 736, 110 So.2d 920; Williamson v. F. W. Woolworth Co., 237 Miss. 141, 112 So.2d 529; Maguire v. Carmichael, Exec., Estate of D. E. R. Merchant et al., 240 Miss. 732, 128 So.2d 581; Williamson v. Inzer, 239 Miss. 707, 125 So.2d 77.

Negligence and the proximate cause of an injury may be established by circumstantial evidence in the same manner as any other fact may be established. The textwriter of 38 Am. Jur., Negligence, Sec. 333, p. 1032, puts this concept in the following language: 'Circumstantial Evidence.--The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eyewitnesses. Proof of the fact of negligence may rest entirely in circumstances; in other words, circumstantial evidence alone may authorize a finding of negligence. Hence, negligence may be inferred from all the facts and attendant circumstances in the case, and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, a prima facie case is made.'

There can be no question from the testimony in this case of the fact that the child was behind the truck, and was there at a time when the truck was being backed toward the sandpile where she was wont...