Hawkins v. Rye

• Decision Date: 24 March 1958
• Docket Number: No. 40665,40665
• Citation: 233 Miss. 132,101 So.2d 516
• Parties: , 77 A.L.R.2d 663 William T. HAWKINS, Administrator of the Estate of Roger Twain Hawkins, Deceased, v. William H. RYE.
• Court: Mississippi Supreme Court

Page 516

101 So.2d 516

233 Miss. 132, 77 A.L.R.2d 663

William T. HAWKINS, Administrator of the Estate of Roger

Twain Hawkins, Deceased, v. William H. RYE.

No. 40665.

Supreme Court of Mississippi.

March 24, 1958.

Cason Rankin, Tupelo, Brown & Elledge, Fulton, for appellant.

Mitchell & McNutt, Tupelo, W. Herman Camp, Fulton, for appellee.

HOLMES, Justice.

On the morning of June 14, 1956, at about 9:15 o'clock, the appellee, William H. Rye, accompanied by his wife, was driving his automobile south along the highway from his home in Fulton, Mississippi, to Nettleton, Mississippi. His automobile struck and ran over Roger Twain Hawkins, a child four and a half years of age, rendering him unconscious and injuring him to the extent that he died before he could be gotten to a doctor. William Thomas Hawkins, the father of the child, qualified as the administrator of his estate and brought this suit in the Circuit Court of Itawamba County against William H. Rye for damages for the alleged wrongful injury and death of the child. The suit was brought under Section 1453 of the Code of 1942, commonly known as the 'wrongful death statute.' The claimed right of recovery was predicated upon the alleged negligence of William H. Rye in the operation of his automobile on the occasion in question.

The trial of the case resulted in a jury verdict for the defendant and judgment was entered accordingly, and from that judgment this appeal is prosecuted.

The appellant contends on this appeal (1) that the court erred in denying his request for a peremptory instruction; (2) that the court erred in overruling a motion for a new trial upon the ground that the verdict of the jury is contrary to the overwhelming weight of the evidence; (3) that the court erred in permitting the defendant, William H. Rye, to testify over the objection of the plaintiff upon the ground that he was an incompetent witness under Section 1690 of the Code of 1942, commonly known as the 'dead man's statute', and (4) that the court erred in granting defendant's instruction No. 2.

The appellant's first two contentions direct our attention to a consideration of the evidence. The physical surroundings and general situation existing at the scene at the time of the tragic accident appear from the evidence without dispute. The highway was a black topped pavement, 18 feet wide, with graveled shoulders on each side four feet in width. The highway ran generally in a north and south direction. The home of Mrs. W. E. Hawkins, the grandmother of the child, was located on the west side of the highway, and on the north side of the home was the Hawkins' private garage from which a driveway led down to the highway. Opposite this driveway and on the east side of the highway was a mailbox which was located off the east shoulder of the highway and at a point 22 feet east of the center of the highway. The highway curved at a point 513 feet north of the mailbox, and from this point a motorist rounding this curve and traveling south could see the mailbox. The child was staying with his grandmother during the week while his parents were at work. On the morning in question the child and his grandmother were proceeding to the mailbox. They came from the direction of the Hawkins' garage and crossed the highway from the west to the east side thereof, and went to the mailbox and looked in it. The grandmother and the child, the grandmother holding the child by the hand, then started to walk south along the east shoulder of the highway. It was shortly thereafter that the accident occurred. After the impact the body of the child was lying with his feet on the edge of the west side of the black top and his body was crosswise of the road. There were only three eyewitnesses to the actual occurrence, namely, the appellee, his wife, and the child's grandmother. The grandmother was not called as a witness by the appellant and no explanation was offered as to the failure of the appellant to present her as a witness.

The appellee, William H. Rye, testified, over the objection of the appellant, that on the morning in question he and his wife were traveling in his 1948 Chevrolet automobile along the highway from his home in Fulton, Mississippi to Nettleton, Mississippi; that he was driving and proceeding south; that as he emerged from the curve of the highway he saw the grandmother and the child cross the road; that the grandmother looked at him and saw him as they started across; that he slowed his car down to about 20 miles per hour; that they crossed from the west side to the east side of the highway and went to the mailbox; that they looked in the mailbox and that then the grandmother took the child by the hand and they started walking south along the east shoulder of the highway; that as he arrived at a point about opposite them, the child jerked loose from his grandmother and darted suddenly in front of the car, and that he cut his car to the right and applied his brakes but was unable to avoid striking the child; that his brakes had been recently relined and were in good condition.

Mrs. Rye corroborated her husband in all essential respects as to the actual occurrence of the accident. She said that the child was being held by the hand by his grandmother and that he suddenly jerked loose from his grandmother and ran in front of the car, and that her husband swerved to the right and reached for his brakes but was unable to avoid striking the child; that it all happened very quickly.

The appellant offered no witness to contradict the testimony of the appellee and his wife as to the actual occurrence of the accident. He relied largely upon testimony as to measurements and distances, from which he argued that the accident could not have happened in the manner in which the appellee said it happened. The grandmother, who by reason of her relationship to the child, should naturally be friendly to the appellant's cause, was not presented as a witness, and it is therefore presumed that her testimony would have been adverse to the appellant and favorable to the appellee. Anderson v. Cumberland Telephone & Telegraph Co., 86 Miss. 341, 38 So. 786, 788, Bunckley v. Jones, 79 Miss. 1, 29 So. 1000. In the case of Anderson v. Cumberland Telephone & Telegraph Co., supra, the Court said: 'The failure to present a witness who can be had, and who is presumed to be friendly to defendant, who knows exculpatory facts if anyone does, raises a strong presumption that such facts do not exist.'

In view of the testimony, we are clearly of the opinion that the trial court was correct in refusing the appellant's request for a peremptory instruction, and that the verdict of the jury is not contrary to the overwhelming weight of the evidence but is amply supported by the evidence.

It is next contended by the appellant that the court erred in permitting the appellee to testify over the objection of the appellant, based upon the ground that he was an incompetent witness under Section 1690 of the Code of 1942. The question of the competency of the appellee as a witness brings under review Section 1690 of the Code of 1942, and Section 1453 of the Code of 1942.

Section 1690 provides in its pertinent parts as follows: 'A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent. * * *' (Emphasis ours.)

It is not questioned that this statute applies not only to fixed debts but also to tort actions. Lamar v. Williams, 39 Miss 342. Neither can there be any doubt under the prior decisions of this Court as to the purpose, object and policy of this statute, as it has been re-enacted and brought forward in its present form.

In the case of Witherspoon v. Blewett, 47 Miss. 570, which was an action of trover to recover damages for the conversion of cattle, the Court declared the policy of the statute to be that 'A living party, plaintiff or defendant, in a suit in which the representative of a decedent is a party, is not competent to establish his right or demand against the estate, nor does it matter whether the claim be set up by the living plaintiff against the estate, or whether it be by way of defense to a claim preferred by the legal representative of a decedent.' (Emphasis ours.)

In the case of Jacks v. Bridewell, 51 Miss. 881, the Court, speaking of the object of the statute, said: 'The object is to prevent the assertion of rights to what a deceased person left, by virtue of some act of such deceased person, from being supported by the testimony of him who asserts the right. * * * When death has placed the evidence of one of the parties to the transaction, out of which the claim arises, beyond the pale of the court, the statute enacts that the other shall not be heard, for or against such claim. As to that transaction, both of the parties thereto are dead, one through natural causes, the other by legislative enactment.' The Court also in this case defined the term, 'estate of a deceased person' as used in the statute. The Court said: 'The term 'estate of a deceased person' is used, in its broad and popular sense, to signify all the property of every kind which one leaves at his death. Therefore, any 'right' asserted against real or personal property left by a deceased person, as accrued to the party by virtue of a dealing between him and such person since deceased, renders the person asserting it incompetent as a witness to maintain in his own behalf such assertion of right.'

It is to be specially noted that in the statute itself, Section 1690, Code of 1942, as well as in the prior decisions of this Court declaring the purpose and policy thereof, the disqualification of the witness arising under the statute is with reference to the establishment of the witness's claim or defense against the estate of a deceased person. If the...