Hinton v. Delcher Bros. Moving & Storage Co., 42889

• Decision Date: 12 October 1964
• Docket Number: No. 42889,42889
• Court: Mississippi Supreme Court
• Parties: Annie Pearl HINTON, Mother and Next Friend of Vera Rose Hinton, v. DELCHER BROTHERS MOVING & STORAGE COMPANY, Richard Mease and Eddie B. Schaffer.

Page 813

167 So.2d 813

Annie Pearl HINTON, Mother and Next Friend of Vera Rose

Hinton, v. DELCHER BROTHERS MOVING & STORAGE COMPANY, Richard Mease and Eddie B. Schaffer.

No. 42889.

Supreme Court of Mississippi.

Oct. 12, 1964.

Appeal from Circuit Court, Oktibbeha County; John D. Greene, Jr., judge.

James E. Brown, Starkville, for appellant.

Mitchell, McNutt & Bush, Tupelo, for appellee.

KYLE, Presiding Justice:

This case is a suit for damages for the wrongful death of a seven-months-old illegitimate child. The death resulted from a collision between a truck owned by Delcher Brothers Moving & Storage Company driven by Richard Mease, and an automobile in which the child was riding, driven by Eddie B. Schaffer. The jury returned a verdict in favor of Delcher and Mease, and against Schaffer for $500, and a judgment was entered in favor of the plaintiff against Schaffer for that amount, and the case was dismissed as to Delcher and Mease. From that judgment the plaintiff has prosecuted this appeal.

The case was originally argued and submitted to the Court on January 27, 1964. A decision was rendered and a written opinion was filed on February 17, 1964, reversing the judgment of the lower court as to the appellee Delcher, because of errors in an instruction on sudden emergency granted by the trial judge to the appellees Delcher and Mease, and remanding the case for a new trial on all issues as to the appellee Delcher, and affirming the judgment of the lower court as to the appellee Schaffer on the issue of liability, but holding that the amount of $500 for the life of the child was grossly inadequate and remanding the case for a new trial on the question of damages alone as to Schaffer. See opinion rendered in Cause No. 42,889, February 17, 1964, 160 So.2d 694.

A suggestion of error was filed on behalf of the appellees Delcher and Mease on February 27, 1964, in which it was stated among other things, that the appellee Schaffer was not before the court on the appeal for the reason that as to him the process was void and the court had no jurisdiction, and the appeal should have been dismissed. The appellees, in their suggestion of error, also called the attention of the court to the fact that the opinion rendered by the Court on February 17, 1964, was entirely silent as to the appellee Mease.

The suggestion of error was duly considered by the Court. The process served on the defendant Schaffer was re-examined and found to be defective. The suggestion of error was therefore sustained; the opinion rendered on February 17, 1964, was withdrawn;...