McDonough Motor Express, Inc. v. Spiers

• Decision Date: 13 December 1937
• Docket Number: 32870
• Court: Mississippi Supreme Court
• Parties: MCDONOUGH MOTOR EXPRESS, INC., v. SPIERS

176 So. 723

177 So. 655, 180 Miss. 78

MCDONOUGH MOTOR EXPRESS, INC., v. SPIERS

No. 32870

Supreme Court of Mississippi

December 13, 1937

(Division B.)

1 AUTOMOBILES.

In action for injuries sustained in collision alleged to have resulted from defendant's negligence in driving truck in excess of 30 miles per hour on left side of highway through municipality in absence of showing city ordinance limiting speed of motor vehicles within its limits, statutes limiting maximum speed of 30 miles per hour would apply (Code 1930, sections 5569, 5574).

2 TRIAL.

It is the duty of plaintiff to have court inform jury what is necessary to make out the case stated in the declaration.

3. APPEAL AND ERROR.

In action for injuries sustained in collision alleged to have resulted from defendant's negligence in driving truck in excess of 30 miles per hour on left side of highway through municipality, instructions that any negligence in manner in which truck was being driven which contributed to plaintiff's injury would authorize recovery, which in no way referred to the grounds relied upon for recovery, and which were not augmented by instructions obtained by defendant were reversible error, as insufficient as a guide for jury in arriving at verdict.

4 TRIAL.

Jury are not required to go to the declaration or beyond instructions given by the court, to ascertain grounds relied upon by plaintiff as basis of recovery.

ON SUGGESTION OF ERROR. (Division B. Dec. 13, 1937.) [177 So. 655. No. 32870.]

AUTOMOBILES. In action for injuries sustained in collision between trucks in municipality, instructions which did not refer to regulatory statutes which were allegedly violated by defendant's truck driver, or declare that violation of statutes must contribute proximately to the collision, but which left jury to guess at what constituted negligence, were insufficient (Code 1930, section 5569; Laws 1932, chapter 332, section 9).

Division B

November 1, 1937

APPEAL from the Circuit court of Hancock county HON. W. A. WHITE, Judge.

Action by Ellis V. Spiers against the McDonough Motor Express, Inc. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded. Suggestion of error overruled.

Ford & Ford, of Pascagoula, for appellant.

The first error assigned is the giving of the instruction by which the jury were told in effect that a verdict should be returned for the plaintiff, if defendant had been guilty of any sort of negligence.

No one would contend that plaintiff could state one case and recovery over under another. The recovery must be confined to the negligence complained of in the declaration. If the plaintiff intended to base recovery on the alleged fact that appellant's truck was being run at an unlawful rate of speed, the declaration should have shown that clearly, and the instruction should have told the jury what the law was on the subject.

Section 568, Code of 1930; Scott v. Peebles, 2 S. & M. 546; Gulf Research & Development Co. v. Linder, 177 Miss. 133.

Assuming that it was based on the statute, or assuming that the recovery was to rest on a charge of unlawful driving, that would be a question of law which should have been clarified in the instruction.

Baldwin v. McKay, 41 Miss. 363; Young v. Powers, 41 Miss. 197; Y. & M. V. R. Co. v. Cornelius, 131 Miss. 37; Southern R. R. v. Ganong, 99 Miss. 540.

We cannot assume that the jury was familiar with all the allegations of the declaration and knew what it contained. The court said in the Cornelius case that an instruction should be complete in itself. This charge to the jury leaves one entirely in the dark. The jury had a wide range of speed limits within which to choose and how can any one say that they believed this witness or that witness in preference to others?

The truth of the matter is that this is a roving instruction, which authorized the jury to bring in a verdict against appellant if it were guilty of any sort of negligence, whether the case is based on it or not.

Gulf Research & Development Co. v. Linder, 177 Miss. 123; D'Antoni v. Teche Lines, 143 So. 415, 163 Miss. 668; Hilton v. Hamilton, 23 Miss. 496.

The instruction is further erroneous because it seems to authorize recovery for any sort of carelessness or negligence, whether complained of or not. Suppose the jury did not believe that the truck was driven to the left of the center, and did not believe that it was running at an unlawful rate of speed, but thought that the driver was not keeping a proper lookout, or failed to blow his horn. Certainly that might have been negligence. The jury would have been entitled under the instruction to bring in a verdict if it believed that, although there is no such charge in the declaration. This court has expressly condemned instructions of this sort.

Hines v. McCullers, 121 Miss. 667; Y. & M. V. R. R. Co. v. Aultman, 173 So. 280.

The next point discussed for error is the giving of instruction where the jury were told that they should bring in a verdict for all damages and injury from which plaintiff was suffering, irrespective of whether the injuries were caused by the accident or not, and irrespective of whether such injuries were shown by the evidence or not. Certainly, it should require no citation of authority to demonstrate the utter impropriety of any such charge to the jury.

Gulf Research & Development Co. v. Linder, 177 Miss. 123; R. R. Co. v. Magee, 93 Miss. 200; Y. & M. V. R. R. Co. v. Smith, 82 Miss. 656.

Gex & Gex, of Bay St. Louis, and J. E. Stockstill, of Picayune, for appellee.

The declaration alleges a reckless, careless, negligent violation of the statutes of the State of Mississippi setting out the rules of the road, and the speed at which vehicles may travel; and a violation of the speed limits within an incorporated municipality. The testimony for the plaintiff--which was believed by the jury--substantiates every allegation of the declaration; and the instruction limits the finding of the jury to such facts as they may ascertain to be true "from a preponderance of the evidence."

All the testimony for the plaintiff which the jury by its verdict found to be true, showed the operation of the appellant's truck in a careless and negligent manner; that it was on the left hand side of the highway when the accident occurred; that the truck was running through a thickly built up community within the City of Picayune; and that the rate of speed was forty-five or fifty miles per hour. These acts of negligence and violation of the law were charged as such in the declaration. The instruction was plain, and with no possibility of its misconstruction by the jury. It directed the jury to find for the plaintiff only if the appellant was guilty of negligence, carelessness and violation of the law, and further stated that they must believe from a preponderance of the evidence that these facts existed and were the sole proximate cause of the plaintiff's injury, before they could find for the plaintiff.

Nelms & Blum Co. v. Fink, 159 Miss. 372; Gulf Research & Development Co. v. Linder, 177 Miss. 135.

It will be noted further that the instruction complained of makes it necessary for the jury to have found from a preponderance of the evidence that the appellant must have been guilty of operating its truck in a careless and negligent and unlawful manner; that is to say unless all three concurred, the jury could not find for the plaintiff.

We call the court's attention also to the fact that the appellant had the benefit of most favorable instructions as to its liability, all of which must be taken into consideration in the determination of the case. It is well settled in Mississippi that all instructions must be read together, and if when so read, they fairly state the law as to the right of the parties, the case will be affirmed; this rule is so firmly established that we cite only a few of the decisions to that effect, without quoting therefrom.

Yazoo & R. Co. v. Williams, 87 Miss. 344; Miss. R. Co. v. Hardy, 88 Miss. 732; Yazoo R. Co. v. Kelly, 98 Miss. 367.

We submit that the instruction definitely embraces the negligence alleged in the declaration, and supported by the evidence; furthermore it embraces all the charges of negligence alleged in the declaration, when as a matter of law it might have been based on either of those acts of negligence.

It is with apologies that we once more take up before this court the discussion of the instruction as to the measure of damages granted on behalf of the plaintiff. This instruction has appeared for consideration and has been assigned as error to this court so frequently, and so many times has this court held it to be a proper instruction, that we feel that about the only thing to do is to refer the court to those former cases and the previous briefs written therein.

The last case in which this court had this instruction under consideration was the case of L. & N. R. R. Co. v. Burrus, 166 So. 768. Not only was the identical argument here presented, advanced in that case, but every conceivable argument which had ever been presented by any appellant attacking the instruction was raised in the Burrus case, and this court affirmed the Burrus case per curiam. The same instruction was argued from every standpoint in the following cases:

Jordan River Lbr. Co. v. LaFonatine, 86 So. 594; Gulfport & Miss. Coast Traction Co. v. Keebler, 130 Miss. 631; G. & M. C. Co. v. O'Bierne, 105 So. 506; Gulfport Creosote Co. v. Hoffman, 89 So. 922; Allen v. Friedman, 156 Miss. 77; Teche Lines v. Bateman, 162 Miss. 404; Schemper v. Speer, 161 So. 674.

The above cited cases are only a partial list of cases in which the question has been squarely presented to the court....