Mathews v. Thompson (State Report Title: Matthews v. Thompson)

• Decision Date: 20 May 1957
• Docket Number: No. 40459,40459
• Citation: 231 Miss. 258,95 So.2d 438
• Court: Mississippi Supreme Court
• Parties: W. C. MATHEWS and H. M. Whitfield, d/b/a M & W Construction Co., et al. v. D. M. THOMPSON, Administrator of Estate of Wilbur Y. Kerr, Deceased, et al. *

Page 438

95 So.2d 438

231 Miss. 258

W. C. MATHEWS and H. M. Whitfield, d/b/a M & W Construction Co., et al. v. D. M. THOMPSON, Administrator of Estate of Wilbur Y. Kerr Deceased, et al. ^*

No. 40459.

Supreme Court of Mississippi.

May 20, 1957.

G. J. Thornton, Kosciusko, Vardaman S. Dunn, Jackson, C. R. Bolton, Claude F. Clayton, Tupelo, for appellant.

David E. Crawley, Jr., and William R. Ford, Kosciusko, for D. M. Thompson, Administrator of the Estate of Wilbur Y. Kerr, Deceased, K. B. Fowler, Jr., Administrator of the Estate of Jan Davis Fowler, Deceased, Mrs. Lillie D. Thompson Kerr, Mrs. Mary Lucy Fowler and K. B. Fowler, Jr., Appellees.

Crawley and Brooks, John D. Guyton, Kosciusko, for Mrs. Lila Maude Leslie, Administratrix of the Estate of William H. Leslie, Sr., Deceased, Appellee.

LEE, Justice.

This litigation grew out of the collision of two automobiles on State Highway No. 12 in the corporate limits of the City of Kosciusko, in Attala County, in the early evening of March 19, 1955. William H. Leslie, Sr., with one guest, his brother-in-law S. E. Brunt, was driving east in a Plymouth. Wilbur Y. Kerr, with his wife, Mrs. Lillie D. Thompson Kerr, and two children, and K. B. Fowler, Jr., and his wife, Mrs. Mary Lucy Fowler, and his son, Jan Davis Fowler, and another child, in a Chevrolet sedan, was driving west. Both occupants of the Plymouth were killed. In the other car, Wilbur Y. Kerr and Jan Davis Fowler were killed, and Mrs. Kerr, Mrs. Fowler and K. B. Fowler, Jr., were seriously injured.

All of these people lived in Attala County, and thereafter letters of administration on the Estate of Leslie, Kerr, and Jan Davis Fowler were issued by the chancery court of that county.

Five separate suits, numbered 10,799, 10,800, 10,801, 10,865 and 10,866, with D. M. Thompson, Administrator of the Estate of Wilbur Y. Kerr, Deceased, K. B. Fowler, Jr., Administrator of the Estate of Jan Davis Fowler, Deceased, Mrs. Lillie D. Thompson Kerr, Mrs. Mary Lucy Fowler, and K. B. Fowler, Jr., as complainants, were filed in the Chancery Court of Attala County to recover damages for these deaths and personal injuries. The named defendants were Mrs. Lila Maude Leslie, Administratrix of the Estate of William H. Leslie, Sr., Deceased, W. C. Matthews and H. M. Whitfield, partners, doing business as M & W Construction Company, residents of Lee County, and Walter S. Ables, their foreman, a resident of Attala County, Colonial Life and Accident Insurance Company, a foreign corporation domiciled in Columbia, S. C., but doing business in this State, and Homer A. Moore, a resident of Attala County.

The pleadings were elaborate. Briefly stated, the bill of complaint in No. 10,799 charged that M & W Construction Company, through its agent Walter S. Ables, and other servants, for sometime prior to March 19, 1955, in performing a contract with the City of Kosciusko for the construction of certain sanitary sewerage improvements, had been working along the south shoulder of Highway No. 12 at or near the place where the collision of these automobiles occurred; that they had erected a large mound or mounds of dirt adjacent to the pavement, which obstructed the view of a driver as he would be proceeding east around the curve on the highway; that, without any right or authority, they negligently obstructed a part of the paved portion by setting on the south edge of the pavement a mechanical pump with which they pumped water from a sandpit or excavation in order that it might drain east down the highway; that they permitted dirt, sand and slush to cover the south portion of the traveled highway; that this condition had existed for several days; that warning flares were insufficient in number and irregularly placed; that the partial blocking of the highway, under these conditions and especially in the nighttime, made the highway at and near the scene of the collision hazardous and dangerous, which condition they well knew, or in the exercise of reasonable care, ought to have known; that a driver, approaching from the west, because of the obstruction of his view from the mound of dirt, the location of the pump, the flares and the sand and slush, would think the south lane was blocked or the traveled portion was farther to the north and would turn to his left in order to pass such obstructions; that such action on the part of a driver was reasonably foreseeable; that these defendants continued to maintain the hazardous and dangerous condition for several days; that, on the occasion in question, William H. Leslie, Sr., approached from the west at an excessive rate of speed, and, on account of the obstructions, as stated, and in an effort to avoid them, he turned his automobile to the left, lost control thereof, and collided head-on with the automobile, which was driven with reasonable care by Wilbur Y. Kerr in his proper lane; and that the concurrent negligence of M & W Construction Company, and its foreman Ables, and Leslie proximately caused and contributed to the collision of the automobiles, with the consequent fatal injuries to the decedent.

It was further charged, on information and belief, that Leslie, at the time, was an agent of defendant Colonial Life and Accident Insurance Company, and was acting within the scope of his duties and employment and in furtherance of the business of his employer, and that Leslie's negligence was both his own and that of his employer; that defendant Homer A. Moore had in his hands money of the Insurance Company, and it was charged, on information and belief, that he had other moneys and effects of the Company, and was indebted to it. There was a prayer for an attachment, under Section 2729, Code of 1942, and for discovery from him as to the amount thereof and of other money and effects coming into his hands, and for discovery from Colonial Life & Accident Insurance Company as to the true relationship between it and Leslie, of which it had exclusive information, and which the complainant had requested, and which the Insurance Company had refused.

By separate motions all defendants, except Homer A. Moore, set up that there was no equity jurisdiction involved, but that the suit was grounded in tort, and they asked for transfer of the cause to the Circuit Court of Attala County, as they were entitled to a jury trial under Section 31 of the Constitution, where the questions of negligence and contributory negligence could be submitted to a jury. In addition, Colonial Life & Accident Insurance Company said that, although it is a nonresident, it has been domesticated; that Homer A. Moore was not its agent and had none of its moneys or effects; that it had furnished complainant all information which he sought; and that the suit in chancery was an effort to deprive it of the right of a jury trial. By his separate answer, Homer A. Moore denied that he had $10 of the Insurance Company's money, or any other property at the time of the service of the writ; but admitted that he had $23 which he had collected from W. C. Blackwelder, who had submitted an application for insurance to the company, but that the application was subsequently rejected.

Issue was taken on the motion of the Insurance Company and Moore's answer. The complainant offered evidence, and at the conclusion thereof, the same were overruled. The court also overruled all motions to transfer to the circuit court.

The answers of M & W Construction Company and Ables, while admitting that they had been working along the south side of the highway, denied all material allegations of the bill and especially that the mound of dirt obstructed the view, or that sand or slush or the pump was on the highway, or that their acts in any way contributed to the collision. They admitted that Leslie was driving at an excessive rate of speed, more than 60 miles an hour, in a restricted zone, and denied that he lost control of his car because of anything done or omitted by them. They charged that he was under the influence of intoxicating liquor and that the collision was the sole proximate result of his negligence.

Mrs. Lila Maude Leslie, Administratrix, filed her separate answer in which she denied in detail that Wilbur Y. Kerr was killed as a result of any negligence on the part of Leslie, or that Leslie was operating his automobile at a speed of 60 miles an hour. She admitted that, as Leslie drove around the curve, his view was obstructed by large piles of dirt, and that the pump on the pavement and the nearby flare could not then be seen; that as he came suddenly upon the pump and flare, he was confronted with an emergency, created by the negligence of M & W Construction Company and Ables, and that in the exercise of the best judgment of which he was capable, under the circumstances, he turned his car to the left to avoid the obstruction, and thereafter collided with the Kerr car. She made her answer a cross bill, and against D. M. Thompson, Administrator of the Estate of Wilbur Y. Kerr, W. C. Mathews and H. M. Whitfield, doing business as M & W Construction Company, and Walter S. Ables, as defendants, she adopted and alleged all of the affirmative matters set out in her answer. In effect, she alleged against M & W Construction Company and Ables all of the affirmative matters in her answer and the acts of negligence with which they were also charged in the bill of complaint of D. M. Thompson, Administrator. These matters and acts included the large piles of dirt, the obstruction of the view therefrom, the position of the pump on the highway, the negligent placing of the flares, the condition of the highway from dirt and slush; and the appearance to an east bound motorist that the paved portion of the highway was farther to the north than it actually was. She alleged that Leslie, having S. E. Brunt as a passenger, was driving in a careful manner at a speed of about 30 miles an hour; that the automobile of Kerr was heavily loaded, and, as it...