Kouvarakis v. Hawver, 37447

• Decision Date: 27 March 1950
• Docket Number: No. 37447,37447
• Citation: 208 Miss. 697,45 So.2d 278
• Court: Mississippi Supreme Court
• Parties: KOUVARAKIS et al. v. HAWVER.

Page 278

45 So.2d 278

208 Miss. 697

KOUVARAKIS et al. v. HAWVER.

No. 37447.

Supreme Court of Mississippi, in Banc.

March 27, 1950.

Bidwell Adam, Gulfport, Howard McDonnell, Biloxi, for appellants.

R. B. Meadows, Jr., Gulfport, Jo Drake Arrington, Gulfport, for appellee.

HALL, Justice.

Appellee recovered a judgment for $2,000.00 for personal injuries sustained by her when an automobile in which she was riding, driven by her husband, collided with a motor truck owned by appellant Kouvarakis and being operated at the time by his employee Watson admittedly in furtherance of his master's business.

Appellants contend first that the trial court erred in refusing to continue the case to a subsequent term for the reason that the members of the regular jury panel for the week were all drawn from three districts of the county and no member of the panel was from either of the other two districts. The record shows that the jury box was exhausted as to two of the districts, leaving only three districts from which the jury could be drawn. If there by any merit in appellants' contention the point should have been raised by a motion to quash, whereupon if such motion were sustained the court could have provided another jury for the week in the manner authorized by law, and a continuance of the case would not have been necessary. We are not to be understood, however, as holding that a motion to quash would have been well taken under the circumstances here disclosed, for by Section 1798 of the Mississippi Code of 1942 it is provided that our jury laws are directory and not mandatory, and in Lott v. State, 204 Miss. 610, 37 So.2d 782, and in the numerous cases therein cited, it was held that a case will not be reversed unless there is a radical departure from the statutory scheme of summoning and impaneling juries.

The next assignment argued is that the court erred in refusing an instruction to appellants predicated upon the theory that the plaintiff's husband had no right to drive his car in the north lane of the south half of the highway, and the third assignment argued is that the trial court erred in granting an instruction to the appellee upon the facts of the case because appellants contend that appellee's husband was in the wrong lane of traffic at the time of the collision. For an understanding of these points it is necessary to briefly review the facts.

To the west of the light house in Biloxi, Miss., U. S. Highway 90 is a four lane thoroughfare running east and west. There is a neutral ground in the center of the highway. The north half of the highway is divided into two lanes for the accommodation of vehicles traveling to the west; the south half of the highway is also divided into two lanes for the accommodation of vehicles traveling to the east. At the east end of the four lane highway where it narrows down to a two lane highway continuing east, Preston Avenue, running north and south, intersects it. Plaintiff and her husband were traveling east. They desired to turn to the north, or to their left, into Preston Avenue and Mr. Hawver accordingly drove his car into the north lane of the south half of the highway before reaching the intersection and continued east at a speed of about 20 miles per hour. Watson, who was driving the truck, was also proceeding at about the same rate of speed to the east slightly...