Merchants Co. v. Hutchinson

• Decision Date: 23 May 1966
• Docket Number: No. 43982,43982
• Citation: 186 So.2d 760
• Parties: The MERCHANTS COMPANY and Milton T. Johnson v. Dewey L. HUTCHINSON.
• Court: Mississippi Supreme Court

Page 760

186 So.2d 760

The MERCHANTS COMPANY and Milton T. Johnson v. Dewey L. HUTCHINSON.

No. 43982.

Supreme Court of Mississippi May 23, 1966.

Dudley W. Conner, Hattiesburg, for appellants.

George B. Grubbs, Mendenhall, Kervin & McIntosh, Collins, for appellee.

INZER, Justice:

This is an appeal by The Merchants Company and Milton T. Johnson, appellants, defendants below, from a judgment of the Circuit Court of Covington County, wherein Dewey L. Hutchinson, appellee, plaintiff below, recovered a judgment in the amount of $100,000 as damages for personal injuries as a result of a collision between a Chevrolet pickup truck in which Hutchinson was riding and a Chevrolet truck owned by The Merchants Company and driven by Johnson. Hutchinson was paid workmen's compensation by his employer and its carrier, Great American Insurance Company, and the insurance company intervened in this cause under the provisions of Mississippi Code Annotated section 6998-36 (1952).

The accident at about 9:15 a.m. on December 10, 1962, at the intersection of U.S. Highway No. 49 and a graveled road known as Sunset Road. At the point of the intersection, Highway No. 49 runs generally in a north-south direction, and Sunset Road runs generally in a southeast-northwest direction. There is a crest of a hill about 315 feet north of the intersection. Southbound traffic cannot see the intersection before it reaches this point, and northbound traffic approaching the intersection cannot see the oncoming traffic until it reaches the crest of the hill. The weather was clear and cold, and the road was dry. Hutchinson was employed by Willmut Gas and Oil Company, and had been so employed for several years. He and two fellow employees were on their way from Magee to Collins to repair a gas meter. They were riding in a 1961 pickup truck owned by Willmut and driven by Haley Roberts. Hutchinson was seated in the middle and Hubbard Ainsworth was seated on the right side of the cab. They were traveling south on Highway No. 49 at a speed of about forty-five miles per hour as they approached the intersection. The truck owned by The Merchants Company and driven by Johnson was proceeding north on Highway No. 49, and when the truck reached the intersection, Johnson turned it to the left into the west lane of the highway to make a left turn into Sunset Road. He began his left turn before he reached the center of the intersection. When Johnson began his turn, the pickup truck was about fifty or sixty feet north of the intersection according to the testimony of Hutchinson and the other two occupants of the pickup truck. They said Johnson did not give any signal of his intention to make a left turn. Roberts immediately applied his brakes and locked the wheels of his truck. It skidded thirty feet or more, and the front of the pickup struck the left front fender of the truck driven by Johnson. The point of impact was near the west edge of the west lane of the highway at a point south of the center of the intersection. As a result of the collision, Hutchinson suffered serious, permanent injuries. Johnson testified that as he approached the intersection, he turned on his signal lights to make a left turn about 150 feet from the intersection. He slowed his truck almost to a stop to allow a car approaching from the north to clear the intersection. He looked up the highway and did not see any other traffic approaching; he then looked west on Sunset Road and saw that it was clear. He put his truck in low gear and started his turn, and when he was about four or five feet into the west lane of the highway, he saw the pickup truck which was then about 200 feet away and traveling at a speed which he estimated at sixty miles or more per hour. He tried to accelerate his truck to clear the intersection, but his truck 'coughed' and did not pick up. He said that the driver of the pickup did not apply his brakes until he was about sixty feet away and then skidded into the left front fender of his truck without turning the vehicle to avoid the collision. His testimony was corroborated to some extent by the testimony of William Carr.

Appellants assign many errors on the part of the trial court as cause for reversal of this case. Many of the errors assigned are admittedly not reversible errors, but appellants contend there is such an accumulation of errors that they were deprived of a fair trial. We do not deem it necessary to discuss all the errors for the reason that we are confronted in the outset with erroneous instructions to the jury that make it necessary to reverse this case. The testimony clearly created a jury issue as to whether Johnson, the driver of the truck, was guilty of any negligence that caused or contributed to the accident. The declaration charged that Johnson was guilty of negligence in three respects. They are: (1) In attempting to turn his vehicle from his lane of traffic into that lane of traffic reserved for traffic of the vehicle in which Hutchinson was riding at the time when the vehicle was in such close proximity to constitute an immediate hazard; (2) In failing to yield the right-of-way to other vehicles, particularly the vehicle in which Hutchinson was riding; (3) In not keeping a reasonable and proper lookout for other vehicles using the public highway. Hutchinson was granted six instructions, one was on the measure of damages; one on a nine man jury verdict; one on the form of a verdict; and the other three involved negligence. Instruction No. 1 instructed the jury that Johnson was acting in the scope of his employment for The Merchants Company and that The Merchants Company was liable for the negligence, if any, of Johnson, and that Johnson was liable for his own negligence, if any, at said time and place. The instruction then stated:

* * * (A)nd if you believe from a preponderance of the evidence in this case that the negligence of Milton T. Johnson, if any, at the time and place in question, proximately caused or contributed to the injuries, if any, of Dewey L. Hutchinson, then, it is your sworn duty to find and return a verdict for the Plaintiff against The Merchants Company and Milton T. Johnson.

This instruction simply told the jury that The Merchants Company was liable for any negligence on the part of Johnson, and if the jury found that Johnson was guilty of negligence, then they must return a verdict against both defendants. It did not furnish the jury with any guide as to what acts or omissions on the part of Johnson constituted negligence. Instruction No. 2 is in the following language:

The Court instructs the Jury for the Plaintiff that if you believe from a preponderance of the evidence in this case that the Defendant, Milton T. Johnson, was negligent in the operation of the truck owned by the Defendant, The Merchants Company, at the time and place testified about by the witnesses, and that said negligence, if any, proximately contributed to the injury of Dewey L. Hutchinson, then the doctrine of unavoidable accident does not apply, and it is your sworn duty to find and return a verdict for Dewey L. Hutchinson a against Milton T. Johnson and The Merchants Company.

This instruction informed the jury that if they found that Johnson was negligent in the operation of his truck, then the doctrine of unavoidable accident did not apply. It likewise did not attempt to inform the jury what acts or omissions on the part of Johnson constituted negligence. Instruction No....