Hadad v. Lockeby

• Decision Date: 28 September 1936
• Docket Number: 32304
• Citation: 169 So. 691,176 Miss. 660
• Court: Mississippi Supreme Court
• Parties: HADAD v. LOCKEBY

169 So. 691

176 Miss. 660

HADAD v. LOCKEBY

No. 32304

Supreme Court of Mississippi

September 28, 1936

Division B

1 AUTOMOBILES.

Instruction that it is violation of state law to drive automobile on public highway at greater speed than reasonable and proper having due regard to traffic and use of highway, and that motorist must anticipate presence of other persons and vehicles on highway and drive at such rate of speed as to enable him to avoid injury to such persons, held proper (Code 1930, sec. 5569).

2 NEGLIGENCE.

By common law, when a person owes another a duty and breaches that duty, and without fault of injured party an injury results from such breach, a right of action accrues.

3 NEGLIGENCE.

Motorist who, while traveling at unlawful rate of speed, struck pedestrian after seeing him on highway, held liable for injuries to pedestrian, even though pedestrian was contributorily negligent, since damages recoverable would be reduced in proportion to pedestrian's negligence (Code 1930, sec. 5569).

4. AUTOMOBILES.

In action for injuries sustained by pedestrian when struck by automobile, evidence of gross negligence of motorist held sufficient to warrant verdict for punitive damages.

5. DAMAGES.

Punitive damages may be recovered not only for willful and intentional wrong, but for such gross and reckless negligence as is equivalent to such a wrong.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by Ed Lockeby against John Hadad. From an adverse judgment, the defendant appeals. Affirmed.

Affirmed.

Dent & Robinson, of Vicksburg, for appellant.

The court erred in granting the following instruction on behalf of the appellee "The court instructs the jury for the plaintiff that it is a violation of the laws of this state for any one to drive or operate a motor vehicle along any public highway at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person; that the driver of a motor vehicle does not have the right to clear an unobstructed highway, but must anticipate the presence of other persons and vehicles thereon, and he must, at all times, drive his motor vehicle at such a rate of speed as to enable him to avoid injury to such persons, when they come, or by the exercise of ordinary care would come within his vision or under his observation."

This instruction as given makes the driver of an automobile an insurer of pedestrians' safety in crossing, walking along, standing in or near the highway. This is not the law. The first part of this instruction is taken verbatim from section 5569 of the Code of 1930. This is a penal or criminal section, and not one governing liability in a civil suit. Section 5581 of the Mississippi Code of 1930 provides that the violation of this section shall be deemed a misdemeanor and punishable by a fine and/or imprisonment. The last half of this instruction was evidently taken from the case of Ulmer v. Pistole, 76 So. 522, 115 Miss. 485. This instruction states correctly and abstract principle of the law, and the violation of the principles of law stated in this instruction would subject one to punishment in a criminal proceeding The mere fact that a person disobeys a law of itself does not render that person liable to some other party in a civil suit. If, however, in disobeying this law and as a direct and proximate result thereof the second party is injured, then, a civil action will lie for recovery of damages because of the injuries received in the negligence and reckless disregard of the laws and the rights of the second party. If the first party disobeys a law in reckless and negligent manner and injures someone, but would have injured the second party even though they had been obeying the law, then, the mere disobedience to a particular criminal statute or law will not be grounds for recovery.

Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295; Bufkin v. Louisville & Northern R. R. Co., 161 Miss. 594, 137 So. 517.

It was error to grant appellee the following instruction. "The court instructs the jury for the plaintiff that if you find for the plaintiff, and believe from a preponderance of all of the evidence that the automobile, at and immediately prior to the time it struck the plaintiff and injured him, was being willfully, wantonly and recklessly driven at an unreasonable and dangerous rate of speed, and that no horn was blown or signal of warning given, and that by reason thereof plaintiff was injured, you may, in your discretion, in addition to actual damages, award to the plaintiff punitive damages; that punitive damages, if and when awarded by the jury, are awarded by way of punishment of a wrongdoer, and to prevent him or others from committing a like offense in the future, and that such damages may be allowed by the jury when they believe from a preponderance of all of the evidence before them that the defendant, by reason of his wilful and reckless disregard of the rights of others, inflicts injury upon anyone."

The evidence in this case does not show that there were grounds for punitive damages.

Bounds v. Watts, 131 So. 804, 159 Miss. 307; Miss. Power Co. v. Byrd, 133 So. 193, 160 Miss. 71; Western Union v. Ragsdale, 111 Miss. 550, 71 So. 818; Grenada Bank v. Lester, 126 Miss. 442, 89 So. 2; Y. & M. V. R. R. Co. v. Mullen, 131 So. 101, 158 Miss. 774.

The verdict is excessive.

Brunini & Hirsh, of Vicksburg, for appellant.

The trial court should have directed the jury to find for the defendant, the appellant here.

It is submitted by the appellant that the law imposes a duty upon pedestrians as well as upon drivers of vehicles; and it is to be further noted that there can be no recovery where one precipitates himself in front of a moving vehicle, especially a motor vehicle, and in effect commits suicide.

The trial court should not have given the instruction to the jury, under the facts in this case, that it might award punitive damages.

Ellis v. Pellegrini, 163 Miss. 385, 141 So. 273.

If there is no evidence warranting punitive damages the court may charge that such damages are not recoverable.

17 C. J. 972; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456; Whitfield v. Whitfield, 40 Miss. 352.

It is error to submit the question of punitive damages to the determination of the jury, in the absence of evidence of any requisite element for the application of the rule.

17 C. J. 973; Western Union v. Jackson, 95 Miss. 471, 49 So. 737; Chicago, etc., R. Co. v. Jarrett, 59 Miss. 470; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456.

Where there is evidence which would justify assessment of exemplary damages, the question of whether they will be awarded is for the jury.

17 C. J. 973; Vicksburg Waterworks Co. v. Dutton, 98 Miss. 209; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456; Southern R. Co. v. Kendrick, 40 Miss. 374.

The question as to gross negligence or the wilfulness or wantonness of the act should be left to the jury.

17 C. J. 973; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456.

The court may inform the jury, as a matter of law, that if they find the existence of certain facts, such facts establish gross and wanton negligence.

17 C. J. 973; I. C. R. R. Co. v. Cole, 113 Miss. 896, 74 So. 766.

The general rule is that exemplary damages are never recoverable as of right, and the award or denial thereof rests in the discretion of the jury, under the proper instructions of the court, in cases where the necessary elements appear.

The trial court should have granted a new trial on the ground that the verdict was excessive, evincing passion and prejudice, and was against the overwhelming weight of the credible evidence.

Chaney & Culkin and R. M. Kelly, all of Vicksburg, for appellee.

Under section 5569, and section 5588, Code of 1930, we were, and are, of the opinion that the appellee was entitled to a directed verdict by the court. Certainly, the appellee made out a prima facie case, placing the burden of proof on the appellant, under the latter section of the code. Instead of meeting this burden, he went on the stand and admitted that he was driving his car at the rate of forty miles per hour. Why, then, was not the appellee, and not the appellant, entitled to a directed verdict?

Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Lucedale Auto. Co. v. Daughdrill, 154 Miss. 707, 123 So. 871; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Teche Lines, Inc., V. Bateman, 162 Miss. 404, 139 So. 159.

It cannot be reasonably contended that the appellee, as a matter of law, was guilty of contributory negligence. The instruction telling the jury that, as a matter of law, the appellee was guilty of contributory negligence, should not have been given. Had it not been given, the verdict, of course, would have been much larger, and more in accord with reason and justice. The amount awarded will very little more than pay him for his loss of time, allowing him nothing, or practically nothing, for the loss of his teeth, the injury to his shoulder, and other parts of the body, and the physical pain and mental anguish he suffered.

If the jury believed, as they had a right to believe, that, at the time of the accident, the automobile was being driven at the rate of forty miles per hour, and that no horn was blown, and no other signal of warning given, certainly the appellant was guilty of gross negligence and reckless disregard of those using the highway. Our court is thoroughly committed to the rule that punitive damages may be recovered where one is guilty of such gross negligence and reckless disregard of duty as is equivalent to a...