McDonald v. Moore

• Decision Date: 12 January 1931
• Docket Number: 28957
• Citation: McDonald v. Moore, 159 Miss. 326, 131 So. 824 (Miss. 1931)
• Court: Mississippi Supreme Court
• Parties: MCDONALD v. MOORE

131 So. 824

159 Miss. 326

MCDONALD v. MOORE

No. 28957

Supreme Court of Mississippi

January 12, 1931

Division B

(Division B. Suggestion of Error Overruled, January 26, 1931.)

1. APPEAL AND ERROR. Damages. Negligence must, be so gross as to evince recklessness to justify instruction for punitive damages; trial court's judgment as to allowance of punitive damages will be sustained, unless there is probability of injustice; evidence in automobile accident case held insufficient to show such excessive or reckless speed as to require trial court to submit issue of punitive damages.

In order to justify an Instruction for punitive damages in negligence cases, in the absence of evidence of willfulness or wantonness, the negligence must be so gross as to evince recklessness. The judgment of the trial Judge will be given some weight in passing upon such case, and while not controlling will be sustained, unless there is probability that injustice has been done.

2. APPEAL AND ERROR. Judgment as to damages will be sustained unless court can see that jury was manifestly influenced by prejudice, passion, or other similar influence. In compensation for personal injuries where the damage is based principally upon suffering and pain, the jury is peculiarly the judge of the amount of damage sustained and unless the court reviewing the case on appeal can see that their judgment is manifestly influenced by prejudice or passion or other similar influence their judgment will be sustained. This is especially true where the trial judge approves the verdict.

3. AUTOMOBILES. In action for injuries sustained, by child struck by automobile when crossing street, evidence made issue for jury. Where there is testimony from which the jury could infer that an automobile was driven in excess of the statutory limit of speed, and from the evidence the jury might conclude that a proper lookout was not kept, there is sufficient evidence upon which to base a verdict of liability for simple negligence.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

Action by Fannie May McDonald against Dr. C. A. Moore. There was a judgment for plaintiff, and plaintiff, deeming the amount insufficient, appeals, and defendant cross-appeals. Affirmed.

Affirmed.

J. G. Holmes, of Yazoo City, and P. P. Lindholm, of Lexington, for appellant.

To authorize the infliction of punitive damages the wrongful act complained of must either be intentional or result from such gross disregard of the rights of the complaining party as amounts to willfulness on the part of the wrongdoer.

Illinois Central Railroad Company v. Ramsey, 127 So. 725; Godfrey v. Meridian Railway & Light Company, 101 Miss. 565; Ulmer v. Pistole, 115 Miss. 485.

To operate an automobile at a rate of speed of at least thirty miles an hour approaching an intersection in the populous part of a city, and particularly an intersection that is indisputably shown to be at all times frequented by pedestrians and automobile traffic, is such gross negligence as to be tantamount to willfulness, and certainly under such circumstances, the jury should be permitted to say whether or not punitive damages in such case should be inflicted.

Galtney v. Wood, 149 Miss. 56.

This case is simply a question as to what would be adequate compensatory damages for the character of injury which the appellant sustained, taking into consideration the nature of the injury, the extent thereof, and the pain and suffering endured by the appellant. Therefore on the proof the verdict of five hundred dollars is wholly inadequate to compensate this little girl for her injuries.

This is not a case of the impeachment of a witness by the party offering him; it is a case where the evidence of a witness is susceptible of two interpretations, one favorable to the party offering him, and the other unfavorable. Under such circumstances the party offering the witness is not barred from the use of his evidence, even though unfavorable to such party; he has the right to have the evidence go to the jury,who will determine which of the witness' statements is true.

Walters v. Stonewall Cotton Mills, 136 Miss. 361.

Boothe & Pepper and Ruff, Johnson & White, all of Lexington, for appellee.

Punitive damages may be allowed only where there exists some element of intentional wrong, or, in the absence of such intention, there must be negligence so gross as to show a reckless disregard of consequences.

Illinois Central Railroad Company v. Dodds, 97 Miss. 865.

The verdict of a jury will be upheld unless the court can say that the jury was influenced by passion or prejudice.

Bufkin v. Grisham, 128 So. 563.

In view of the plaintiff's testimony, given by Mrs. Huntington, witness for plaintiff, supported by the physical facts and other witnesses in the case as it was, and in view of the contradictions contained in the testimony of Darnell, we say that, as a whole, there is not a preponderance of evidence in the case to show that the driver of the car was guilty of any negligence and certainly there is not a preponderance of evidence to show that any negligence of the defendant contributed in any manner to the injury complained of. The peremptory instruction requested by the defendant should have been given.

A violation of the speed statute is not actionable unless the excessive speed is the proximate cause of the accident.

Railroad v. Carter, 77 Miss. 511; Brown v. Railroad, 103 Miss. 315; Railroad v. Pace, 109 Miss. 667; Hines v. Moore, 124 Miss. 500; Railroad v. McGee, 117 Miss. 236; Bonelli v. Branciere, 127 Miss. 556; Rowland v. Morphis, 130 So. 906.

Argued orally by J. G. Holmes and P. P. Lindholm, for appellant, and by H. H. Johnson, for appellee.

OPINION

Ethridge, P. J.

The appellant was plaintiff in the court below and sued Dr. C. A. Moore for a personal injury inflicted upon her by the operation of an automobile belonging to the defendant by his minor son. The plaintiff is a child five years of age and at the time of the injury she was crossing a street in the city of Lexington, and the son of the appellee was driving the car which caused the injury. It appears that a lady working for Dr. Moore, in his office, was being taken to her home by the son of Dr. Moore at Dr. Moore's request or direction. The car was parked across the street from Dr. Moore's office, and the lady and Dr. Moore's son entered the car, and it was backed out into the street south of Tchula street, along which street the car was intended to be used.

The testimony shows that the car was backed in low, and after turning north into the intersection of the street, upon which the car was parked, with Tchula street, the car was shifted into second, and after turning on the intersection into Tchula street it...