McLeod v. Whitten, 53183

• Decision Date: 12 May 1982
• Docket Number: No. 53183,53183
• Citation: 413 So.2d 1020
• Parties: David D. McLEOD v. James W. WHITTEN, Jr.
• Court: Mississippi Supreme Court

Page 1020

413 So.2d 1020

David D. McLEOD v. James W. WHITTEN, Jr.

No. 53183.

Supreme Court of Mississippi.

May 12, 1982.

Ramsey, Bodron, Robinson, Andrews & Yoste, Dean Andrews, Jr., H. M. Yoste, Jr., Vicksburg, for appellant.

Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

ROY NOBLE LEE, Justice, for the Court:

David D. McLeod filed suit against James W. Whitten, Jr. in the Circuit Court of Issaquena County, Honorable John E. Ellis, presiding, for personal injuries sustained in a one-vehicle accident. The jury returned a verdict in favor of Whitten, judgment was entered in his behalf, and McLeod has appealed here. Whitten has cross-appealed and contends that the Court erred in declining to sustain his plea in bar raising the validity of a release executed by McLeod.

Appellant and appellee are brothers-in-law, and they and their families ate Christmas dinner together in Vicksburg at noon on December 25, 1976. Later that afternoon, appellant and appellee decided to drive into nearby Issaquena County and look for deer in soybean fields. Appellee was driving his four-wheel drive pickup truck and appellant was sitting on the passenger side. There was a drizzling rain and visibility was limited. The field was rough in places and the men were jostled about as the truck made its way over and around the fields. Appellee drove the vehicle approximately ten (10) to twelve (12) miles per hour as he looked to the front and to his left for deer, while appellant looked to the front and to his right for deer. Suddenly, without warning, the front wheels of the truck dropped into a natural washout or ditch, approximately three (3) feet deep and three (3) feet wide, running perpendicular to the truck. Appellant, whose seatbelt was not fastened, was thrown forward into the dashboard and windshield, causing his head to strike the windshield and, as a result, he sustained serious injuries. Three (3) friends were called on the CB radio, and they arrived in four-wheel Jeeps, pulled the Whitten truck out of the ditch and transported appellant to an awaiting ambulance on the highway. Subsequently, appellant was treated and operated for a ruptured disc and suffered a permanent disability from the accident.

Appellee, in his defense, contended appellant assumed the risk involved in riding over the soybean fields with appellee and hunting deer under the circumstances hereinabove stated.

Appellant contends (1) that the lower court erred in granting assumption of risk Instruction D-3 over his objection, and (2) the lower court erred in failing to grant him a peremptory instruction on the issue of liability.

The Instruction D-3 follows:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that the Plaintiff

(1) undertook to hunt for deer by riding in the Defendant's 4-Wheel-drive pickup truck over wet, muddy harvested bean fields in the late afternoon of Christmas Day when it was drizzling rain and visibility was poor and that the position in which the Plaintiff thereby placed himself was inconsistent with the Plaintiff's safety by reason of the danger that the Defendant's truck might encounter rough ground with resultant injury to either or both occupants of Defendant's pickup truck;

(2) that the plaintiff knew and appreciated the danger; and

(3) that the Plaintiff deliberately and voluntarily chose to expose himself to that danger in such a manner as to assent to the continuance of the dangerous situation or activity then the Plaintiff assumed the risk of injury and cannot recover from the Defendant, and your verdict must be for the Defendant.

Appellant's objection to the instruction included omission of the question whether or not appellee was exercising due care in the operation of his vehicle at the time of the accident.

As stated in Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558 (1952), there are three (3) essentials involved in assumption of risk:

(1) Knowledge on the part of the injured party of the condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition. [245 Miss. at 179, 146 So.2d at 561-562].

The facts of Hatcher v. Daniels, 228 Miss. 196, 87 So.2d 490 (1956) are similar to those in the present case. There, Hatcher and Daniels owned a fishing camp and late one evening they drove to the camp in Daniels' pickup truck. The road was an unimproved dirt road cut through the woods with ruts and stumps in the roadway, and grass and weeds growing up around the stumps. The parties had traveled the road often and both knew the hazards and dangers incident to travel over the road. As they returned the next day after a rain had caused ruts, mudholes and pools in the road, Hatcher told Daniels to watch out because the roads were bad. As Daniels started through a puddle of water, he accelerated the speed of the truck but it was stopped suddenly by a stump that was covered by water. Hatcher was injured and sued Daniels, charging negligence in the operation of the truck. Daniels denied negligence and asserted assumption of risk as a defense.

The Hatcher Court held that granting the instruction was error, stating the rule is well established that the owner or operator of an automobile owes the duty to an invited guest to exercise reasonable care in its operation and not to unreasonably expose him to danger and injury by increasing the hazard of travel. Further, the Court said the instruction eliminated from the jury's consideration the question of the defendant's negligence in the operation of the vehicle. The Court also stated:

An occupant of a motor vehicle, as an invited or permissive guest, assumes the risk, as between himself and his host, of injury from known or obvious dangers or hazards incident to the ordinary operation of the vehicle, and, therefore, cannot recover for injuries resulting therefrom. He assumes all the ordinary risks of injury incident to travel in a motor vehicle controlled by a reasonably prudent driver. He does not, however, assume the risk of a danger created by the negligent operation of a motor vehicle over which he has no control. [228 Miss. at 207, 87 So.2d at 493].

Herod v. Grant, 262 So.2d 781 (Miss.1972), involved facts similar to the present case, except that Herod and Grant were headlighting deer at 10:00 at night. Grant was driving a truck across a cultivated field at speeds up to twenty (20) miles per hour, while Herod sat on the toolbox in the rear of the truck. As they chased a deer, the truck swerved, and Herod was thrown out and injured. Under those facts, the Court held that Herod assumed the risk...