Johnson v. Foster

• Decision Date: 12 June 1967
• Docket Number: No. 44365,44365
• Parties: Louella Jones JOHNSON, Individually, as Administratrix of the Estate of Betty Jean Jones Brown, Deceased, and as Guardian of Richard Jones, Jeffery Jones, Johnnie Jones, Debra Jones and James Jones, Minors, v. Frank P. FOSTER, Chancery Clerk of Coahoma County, Mississippi, as Administrator of the Estate of Alice Birdsong Mitchell, Deceased.
• Court: Mississippi Supreme Court

Page 520

202 So.2d 520

Louella Jones JOHNSON, Individually, as Administratrix of the Estate of Betty Jean Jones Brown, Deceased, and as Guardian of Richard Jones, Jeffery Jones, Johnnie Jones Debra Jones and James Jones, Minors, v. Frank P. FOSTER, Chancery Clerk of Coahoma County Mississippi, as Administrator of the Estate of Alice Birdsong Mitchell, Deceased.

No. 44365.

Supreme Court of Mississippi.

June 12, 1967.

Suggestion of Error Overruled Oct. 2, 1967.

Howard G. Woodward, Ross & Ross, Clarksdale, for appellant.

Semmes Luckett, Brewer, Brewer & Luckett, Clarksdale, for appellee.

ROBERTSON, Justice:

Plaintiff, Louella Jones Johnson, individually, as Administratrix of the Estate of Betty Jean Jones Brown, Deceased, and as Guardian of the five minor children of deceased, brought suit in the Circuit Court of Coahoma County against Defendant, Frank P. Foster, Chancery Clerk of Coahoma County, Mississippi, as Administrator of the Estate of Alice Birdsong Mitchell, Deceased, for damages for the wrongful death of Betty Jean Jones Brown. She was killed instantly when the automobile in which she was riding as a guest passenger and which was driven by Alice Birdsong Mitchell left the right side of the paved highway and struck a culvert and embankment on the left side of the highway. The jury returned a verdict for the defendant and the court entered a judgment thereon. It is from this verdict and judgment that the appellant appeals to this Court.

About 8:00 a.m. on April 23, 1965, Mrs. Alice Birdsong Mitchell, as was her custom, left her residence located about five miles south of Clarksdale, Mississippi, on County Road D-36 in the family car to take her three children to school in Clarksdale. She delivered the children at their school and, as also was her custom, picked up her maid About one and one-half miles from Clarksdale on a straight and level stretch of Highway 36, the automobile driven by Mrs. Mitchell with Betty Jean Jones Brown sitting on the front seat with her, left the right side of the highway, crossed over the left side of the highway, went down a rather steep embankment into a ditch, dragged along the ditch for approximately ten yards and then struck with great force a steel culvert embedded in a roadway to a field on the east side of the highway.

Betty Jean Jones Brown, and started back home driving southward on County Road D-36, also known as the New Africa Road. The asphalt pavement of this road is about thirty feet wide, and in good condition, with four foot shoulders on each side of the pavement. The weather was clear and dry and the sun was shining.

The left front of the automobile was completely demolished and the left front wheel was driven back almost under the dashboard by the force of the impact. Mrs. Mitchell, the driver, and Betty Jean Jones Brown, her maid and guest passenger, were killed instantly. Mrs. Mitchell's body was still behind the steering wheel and Betty Jean Jones Brown's body was on the floor between the front seat and the dashboard when removed from the car.

Mrs. Ada Estes, at the time of the impact, was looking at the flowers along the north side of her home which was situated about 100 yards east of the New Africa Road. There was a wire fence along the Road, but she had a good view of the Road, both north and south of the point of impact. The accident happened 75 feet north of her mailbox at the corner of her property. When she heard the noise, she turned around and described what she saw in these words: 'I saw the car settling in the ditch-the back end was still bumping.' She did not see any traffic going north or south on the Road, nor were there any pedestrians or farm machinery in the area. Mrs. Estes ran out to the car, tried to speak to Mrs. Mitchell, but getting no response rushed back to her home and asked the telephone operator to get an ambulance and police out to the scene right away.

Travis McGahey, owner and operator of the wrecker that pulled the car out of the ditch, testified that the wrecked automobile was nosed into the ditch at about a 45 angle to the road, that the rear of the car was up on the edge of the blacktop, that the ditch was about five feet deep at the point of impact, that there were no skid marks on the paved portion of the road, and that there were no signs that the brakes had been applied. He further testified that the engine was pushed back under the dashboard, the steering mechanism 'was all torn up and pushed back, and the steering wheel was broken or bent,' and that the 'tire on the driver's side was pushed all up under the fender.'

Jesse Bonner, Deputy Sheriff of Coahoma County, testified that the car hit a 10 or 12 inch steel culvert and the embankment over it. He stated that it was about ten steps from the back of the car to where it first started dragging along the top of the ditch bank.

James L. Whittington, the Service Manager of Owen Chevrolet Company for eighteen years, testified that the 1964 Chevrolet four-door Impala was sold new to the Mitchells in late 1964 and that it had about 15,000 to 17,000 miles on it. The tires were not original equipment tires, but were new tires purchased about a month before the accident. The front end was aligned, and the steering mechanism, brakes, and exhaust system checked at the same time the new tires were put on the car. Whittington examined the car after the accident and found the steering mechanism on the left front badly damaged, the brake lines on the left front severed and all the brake fluid leaked out. The left front tire was flat, but there was no hole in it, and the other three tires were standing up and in good condition. It was impossible to tell whether anything had happened to the steering mechanism, the brakes or the left front tire prior to the Dr. Frank T. Marascalco testified that he had examined Mrs. Mitchell regularly since June of 1950 and that her health was good. On her regular annual check-up in May, 1964, he found that she had some pelvic relaxation which was a chronic condition, but did not advise surgery at that time. He found nothing on his last examination to indicate that Mrs. Mitchell was not perfectly capable of operating an automobile carefully, prudently and without negligence.

accident because they were so badly damaged by the impact.

Mr. Harold Mitchell, husband of Mrs. Mitchell, testified that she was forty-two years of age at the time of her death, that her health was good and she had never fainted except on one occasion about two or three months before the accident. While watching television one night the phone rang and she got up to answer it. After hanging up the receiver she fainted and fell. He put her to bed and she felt all right the next morning and didn't think that she needed to see a doctor. He dismissed it from his mind as being nothing serious.

On the morning of April 23, 1965, she prepared breakfast for her husband and three children, they all ate breakfast together that morning, they talked and she appeared to be in good spirits and was not complaining about anything. After breakfast, as was her custom, she left in the family car to take the children to school and to pick up the maid and return home. The accident happened on the way home about 1 1/2 miles south of Clarksdale.

The appellant assigned as error:

'1. The failure of the trial judge to direct a verdict for the plaintiff inasmuch as the doctrine of res ipsa loquitur was applicable, the inference of negligence was clear and the defendant offered no explanation in rebuttal.

2. The granting of instructions numbered 3 and 4 for the defendant.

3. The granting of instruction number 5 for the defendant.

4. The granting of instruction number 6 for the defendant.

5. The failure of the court itself to determine the issue of liability in view of the fact that at the conclusion of all testimony both the plaintiff and defendant moved for a directed verdict.

The question of whether the doctrine of res ipsa loquitur is applicable lies at the very threshold of this case. This question must be answered before we can proceed to answer others.

The appellant contends that such doctrine was certainly applicable, that the inference of negligence was clear and that inasmuch as the appellee offered no explanation in rebuttal, that the trial judge should have directed a verdict for the plaintiff. On the other hand, the appellee contends that the doctrine of res ipsa loquitur was not applicable and that there was insufficient proof to make a jury issue on the question of negligence, and that, therefore, the trial judge should have directed a verdict for the defendant.

The declaration alleged that Alice Birdsong Mitchell had exclusive control and management of her automobile at the time it ran off the road and struck the culvert and embankment, and that it was her duty to use due care to operate the vehicle in a careful and prudent manner so as not to negligently injure her guest passenger, Betty Jean Jones Brown. It was also alleged that in the ordinary course of events an automobile driven in a careful and prudent manner would not be driven off the highway under the circumstances then prevailing, and that, for this reason, the doctrine of res ipsa loquitur was applicable.

The proof showed that the accident occurred about 8:30 a.m. on a paved and straight highway. The weather was clear and dry, and no other vehicle, person or object was involved.

In Alabama & Vicksburg Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703 (1910), this Court applied the doctrine of res ipsa loquitur in a case where an employee of a railroad sued his employer. It was there said that the doctrine applies where the circumstances are such that the accident presumably would not have occurred if due care had been exercised. The Court stated that the occurrence of the accident under the circumstances raised a presumption of negligence. The Court did not distinguish between a presumption and a...