Hasson v. Hale, 07-58278
| Decision Date | 10 January 1990 |
| Docket Number | No. 07-58278,07-58278 |
| Citation | 555 So.2d 1014 |
| Parties | Jack HASSON, Mrs. Hilda Hasson and Kevin Hasson v. Lonnie Lee HALE. |
| Court | Mississippi Supreme Court |
Maurice Dantin, Forest M. Dantin, Dantin & Dantin, Columbia, for appellants.
Vicki R. Leggett, Zachary & Zachary, Hattiesburg, for appellee.
En Banc.
This is an appeal from the circuit court of Lamar County and involves a wrongful death action brought by Jack Hasson, Hilda Hasson and Kevin Hasson against Lonnie Lee Hale for the death of Athlyn Hasson. On September 19, 1986, a jury returned a verdict for the Hassons and awarded $75,000 in actual damages. The Hassons now appeal and assign the following errors:
I. THE TRIAL COURT ERRED IN FAILING TO RULE THAT THE APPELLEE'S GUILTY PLEA TO D.U.I. HOMICIDE WAS NEGLIGENCE PER SE.
II. THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANTS' REQUEST FOR A PEREMPTORY INSTRUCTION.
III. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE APPELLANTS' A NEW TRIAL ON THE ISSUE OF DAMAGES.
On August 10, 1985, Athlyn Hasson turned 29 years old. Around 6:15 p.m. on this day Athlyn, her brother Kevin, and her roommate Ola Pulley drove in Athlyn's 1977 Pontiac Firebird from Columbia, MS, to Hattiesburg, MS, to celebrate Athlyn's birthday. Athlyn drove with Kevin in the front passenger seat and Ola in the back passenger seat behind Kevin. Around 11:30 p.m., following dinner and a movie, the three proceeded back toward Columbia via Highway 42 West. However, about one and one-half miles to the west of the Lamar/Forrest County line Athlyn's car was struck by a 1982 Mack truck driven by Hale. Although Kevin and Ola escaped with only minor bruises and cuts, the collision killed Athlyn. At trial both Kevin and Ola testified that as their car came over a hill, they all, including Athlyn, noticed headlights traveling in their lane of traffic. Kevin told Athlyn to try to leave the highway; however, it was only a matter of seconds from the time the headlights became visible until the collision occurred, and, therefore, Athlyn was unable to get out of the way.
At trial Hale testified that it was Athlyn who drove into his lane of traffic and consequently he veered into her lane and slammed on his brakes in an attempt to avoid the collision, but, Athlyn moved back into her lane, thereby causing the collision. There was also evidence that Hale was intoxicated at the time of the accident, and he admitted to having pled guilty to the negligent killing of another while under the influence of intoxicating liquor, in violation of Miss.Code Ann. Sec. 63-11-30(4) (Supp.1988). It is unnecessary to relate the other evidence adduced at trial.
The circuit judge refused requested instructions to find for the plaintiffs, and also refused requested instructions that Hale's intoxication constituted negligence per se. The court, however, granted requested defense instructions embracing Hale's version of how the accident occurred. In addition to these instructions, the court granted a comparative negligence instruction to the defense authorizing a reduction in damages in event the jury found the decedent was negligent in any manner which proximately caused or contributed to the accident.
In view of Hale's testimony, there was no error for the circuit judge to refuse
a peremptory instruction on liability. The credibility of Hale's testimony was for the jury, which they obviously rejected.
Hale's intoxication was negligence per se, and we agree that the plaintiffs were entitled to an instruction that Hale was negligent as a matter of law due to intoxication. As to whether such negligence proximately caused the accident, a jury question remained. The error in refusing these instructions, however, was cured by the jury finding in favor of the plaintiffs. See, Glover v. Redditt, 255 So.2d 657 (Miss.1971); New Orleans M. & C.R.R. Co. v. Cole, 101 Miss. 173, 57 So. 556 (1911); see generally, 5A C.J.S. Appeal & Error, Sec. 1759, fn. 21 (1961).
As above noted, the circuit court granted defense instructions embracing Hale's defense, and instructing the jury that if they believed the decedent had driven her car over onto the wrong side of the highway and necessitating the action Hale took, then they should return a verdict for the defendant. The court also granted Hale a comparative negligence instruction stating abstractly that if the decedent was guilty of any negligence which proximately contributed to the accident, then the damages should be reduced proportionately.
The plaintiffs argue that the court erred in giving any of these defense instructions. In view of Hale's testimony he was entitled to instructions embracing his version of what caused the accident. The granting of the comparative negligence instruction is more problematic.
It is, of course, elementary that a jury may accept in whole or in part the testimony of any witnesses. Harmon v. State, 453 So.2d 710 (Miss.1984); Bullock v. State, 447 So.2d 1284 (Miss.1984); Taylor v. State, 426 So.2d 775 (Miss.1983); Shannon v. State, 321 So.2d 1 (Miss.1975).
And, we have held in motor vehicle accident cases where each side claimed the other's negligence solely caused the accident, that nevertheless the circuit judge committed no error in granting a contributory negligence instruction. See, Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279 (1960); Gilliam v. Sykes, 216 Miss. 54, 61 So.2d 672 (1952); Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356 (1929). As we read the decisions in those cases, however, despite the contentions of each side, there was evidence adduced from which the jury could have found both the plaintiff and the defendant guilty of some contributory negligence.
In this case, however, the only act of negligence claimed by Hale was that the decedent drove her car onto his side of the highway, and he was trying to avoid the accident in pulling over onto the wrong side of the highway. He did not testify that he saw her at some distance driving down the wrong side of the highway. Nor did the...
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