Gower v. Strain, 30339

• Court: Mississippi Supreme Court
• Writing for the Court: Cook, J.
• Citation: 169 Miss. 344,145 So. 244
• Decision Date: 09 January 1933
• Docket Number: 30339
• Parties: GOWER v. STRAIN

145 So. 244

169 Miss. 344

GOWER
v.
STRAIN

No. 30339

Supreme Court of Mississippi

January 9, 1933

Division A

1. PLEADING.

Party could not avail himself of variance between pleading and proof where he did not object on that ground to evidence when offered.

2. TRIAL.

Objection of variance between pleading and proof cannot be raised by instruction not admonishing court or opposing party thereof.

3. PLEADING.

For party to avail himself of variance between pleading and proof, variance must be material (Code 1930, section 568).

4. AUTOMOBILES.

Motorist's testimony that he fell asleep just before driving over embankment, injuring guest, admitted without objection, held not variance from pleading alleging motorist's negligence in general terms and in failing to apply brakes (Code 1930, section 568).

[169 Miss. 345]

5. AUTOMOBILES.

Motorist's testimony regarding his drowsiness and consciousness of approaching sleep held sufficient from which to infer negligence in continuing driving while in such condition.

6. AUTOMOBILES.

Physician's guest who knew physician had only about three and one-half hourse sleep on preceding night did not assume risk of physician's drowsiness while driving.

7. EVIDENCE.

It is common knowledge that amount of sleep ordinarily required by different people varies greatly, and that, when occasion requires, people pursue vocations after loss of sleep without impairment of faculties.

8. AUTOMOBILES.

Motorist owed guest duty not to increase her danger or create new dangers, and to avoid injuring her.

9. AUTOMOBILES.

Whether physician falling asleep while driving, and driving over embankment, injuring his guest, was negligent, held for jury.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Suit by Miss Nellie Mae Gower against Dr. T. A. Strain. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Thos. L. Bailey and Aubert C. Dunn, both of Meridian, for appellant.

Our court has very clearly and with a fine degree of exactitude determined the rights of the parties in "automobile guest cases" and has steadfastly followed the majority rule of the states, viz.: That these cases are analogous to that of a person who is a licensee on another's property and that while there is little responsibility on the part of the owner for the condition of the premises, he is nevertheless responsible for what has been [169 Miss. 346] aptly called "superadded negligence" and that any act carelessly done, which harms the persons rightfully there renders the owner liable, for the resulting injury.

Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E 1190; 91 A. 547; 164 S.W. 319, 50 L. R. A. (N. S.) 1100; Huddy's Law of Automobile (2 Ed.), 117, sec. 18; Belzoni Hardware Co. v. Langsford, 89 So. 919, 137 Miss. 234; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55; Columbus & G. Ry. Co. v. Fondren, 154 Miss. 40; Y. & M. V. R. Co. v. Beasley, 158 Miss. 370; Pipes v. Gallman, 140 So. 40.

The facts in the case establish the liability of the appellee.

Where the guest did not realize the danger or have an opportunity to protest to reasonably avoid accident, there could be no contributory element.

Pipes v. Gallman, 140 So. 40.

Appellee owed to the appellant the duty of not going to sleep and operating his car while asleep.

Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785; Mulligan v. New Britain, 69 Conn. 96, 102, 36 A. 1005; Brown v. New Haven Taxicab Co., 93 Conn. 251, 257, 105 A. 706; Walters v. Hansen, 99 Conn. 680, 683, 122 A. 564; Tower v. Camp, 103 Conn. 41, 46, 130 A. 86; Carlson v. Connecticut Co., 95 Conn. 724, 112 A. 646; Sliwowoski v. New York, N. H. & H. R. Co., 94 Conn. 303, 309, 108 A. 805; 1 Shearman & Redf. Neg., 58a et seq.; Ezra Ripley Thayer, 29 Harvard L. Rev. 807; 5 Wigmore, Evidence (2d) 2491.

Dunn & Snow, of Meridian, for appellee.

It is common learning that it is not permissible to make one case in the pleading and another one by the proof; and the court can only grant such relief as the pleadings justify regardless of the evidence. [169 Miss. 347]

Powell v. Plant, 23 So. 399.

A variance between the nature and elements of plaintiff's cause of action, as alleged in his pleading and as proved at the trial, is fatal.

Chisolm v. Alcorn, 15, So. 73, 71. Miss. 506; Georgia Pacific R. R. Co. v. Baird, 24 So. 195; Wells v. A. G. S. Ry., 67 Miss. 24; 49 C. J. 791, par. 1167; Kennedy Bros. v. M. & G. R. R. Co., 74 Ala. 430.

The proof does not show actionable negligence.

The appellant assumed the risk incident to appellee's loss of sleep and consequent drowsiness.

Chapman v. Powers, 116 So. 609; Section 513, Code of 1930; G. M. & N. Ry. Co. v. Brown, 102 So. 855.

A person riding in an automobile with another should not close his eyes to manifest danger or fail to give warning of any danger that becomes apparent to him.

Y. & M. V. Ry. Co. v. Lucken, 102 So. 392; Cleary v. Eckart, 210 N.W. 267.

He who enters an automobile to take a ride with the owner also takes the automobile and the driver as he finds them.

Marple, Admr. v. Haddad, 138 S.E. 113, 61 A. L. R. 1248; Lewellyn v. Shott, 155 S.E. 115.

Guests who accept the hospitality of a driver of an automobile accept whatever risk attends the degree of proficiency of such driver and his usual and customary habits of driving with which they are familiar.

Olson v. Hermansen, 220 N.W. 203, 61 A. L. R. 1243; Munson v. Rupker, 148 N.E. 169; Mitchell v. Raynud, 195 N.W. 855; Carroll v. Yonkers, 184 N.Y.S. 847; Krueger v. Krueger, 222 N.W. 784; Armstrong v. Cook, 229 N.W. 433; Kelly v. Gagnon, 236, N.W. 161; Clese v. Prunty, 152 S.E. 201; Patrod v. Foote, 138 N.Y.S. 220; Higgins v. Mason, 243 N.Y.S. 630; Dickerson v. Connecticut Co., 118 A. 518; Ferrill v. Solski, 123 A. 493; O'Shea v. LaVoy, 185 N.W. 525; Lewellyn v. Shott, 155 S.E. 115; Kemp v. Stevenson, 247 N.Y.S. 651.

Argued orally by Aubert C. Dunn and Thomas L. Bailey, for appellant, and by E. L. Snow, for appellee.

OPINION [145 So. 245]

[169 Miss. 348] Cook, J.

The appellant instituted this suit in the circuit court of Lauderdale county against Dr. T. A. Strain, seeking to recover damages for personal injuries sustained by her as a result of the alleged negligent operation of an automobile in which she was riding as a guest. The appellee was called by the appellant as an adverse witness, and was fully cross-examined by his own counsel, and, at the conclusion of the testimony offered by the appellant, the court peremptorily instructed the jury to return a verdict for the appellee, and, from a verdict and judgment entered in pursuance of this instruction, this appeal was prosecuted.

The appellant was a niece of the appellee, and frequently visited in his home. On Saturday night preceding Sunday, August 30, 1931, she was a guest in the appellee's home, and, when he...