Meridian Hatcheries, Inc. v. Troutman

• Decision Date: 11 March 1957
• Docket Number: No. 40425,40425
• Citation: 230 Miss. 493,93 So.2d 472
• Parties: MERIDIAN HATCHERIES, Inc. v. Mrs. Johnnie TROUTMAN.
• Court: Mississippi Supreme Court

Page 472

93 So.2d 472

230 Miss. 493

MERIDIAN HATCHERIES, Inc. v. Mrs. Johnnie TROUTMAN.

No. 40425.

Supreme Court of Mississippi.

March 11, 1957.

Snow & Covington, Meridian, for appellant.

Lavalle Smith, Dan Beard, Lester F. Williamson, Meridian, Morse & Morse, Poplarville, for appellee.

HALL, Justice.

Appellee brought suit against the appellant for the recovery of damages for personal injuries sustained by her when an automobile in which she was riding, and being driven by her daughter Mrs. C. N. But, collided with an automobile driven by C. V. Nolan in the intersection of 10th Street and 24th Avenue in the City of Meridian. The jury returned a verdict in her favor for $200,000 and Meridian Hatcheries, Inc., appeals.

The basis of liability asserted against the appellant is that Mrs. Burt was traveling east on 10th Street and Mr. Nolan was traveling south on 24th Avenue. Under an ordinance of the City of Meridian 24th Avenue at the point in question was a right of way street. It was adopted by the city pursuant to the authority of Section 8151, Code of 1942, which specifically provides that such ordinance shall not be effective until notice thereof is posted upon or at the entrance to the right of way street. At the southwest intersection of these two streets there was located a service station which was owned and operated by W. C. Moulds. At the southwest corner of this intersection there was no curb on either street. Both streets were paved and were both thirty-five feet in width. The curb was omitted on both streets near the corner so as to afford a driveway for vehicles on either street entering the service station. On the south side of 10th Street the city erected a stop sign. At the time of the collision a large bus of the school bus type, belonging to Meridian Hatcheries, Inc., was parked on 10th Street immediately adjacent to the south curb of 10th Street and the stop sign and the bus were both situated sixty feet from 24th Avenue. This bus had painted on it signs showing that it belonged to appellant. The bus was parked in such manner as to absolutely obstruct the view of the stop sign from persons traveling east on 10th Street.

Mr. Moulds, at the time of the accident, was vice president and director of appellant and had an arrangement with appellant whereby when not in use the bus could be left at his service station. The appellant was engaged in the business of operating a chicken hatchery and it made deliveries only on Tuesdays and Fridays. The other five days of the week the bus was not in use. It had been used on Tuesday, July 5, 1954, and had been brought back and parked on the street adjacent to the service station so as to obstruct the view of the stop sign, a above-stated. Section 8217, Code of 1942, provided that no vehicle should be parked within thirty feet of any stop sign and according to the undisputed evidence that provision was violated in this instance. After the bus had been used on July 5th for delivery of chickens to Newton, Mississippi, it was returned to Meridian and parked on the street, as above indicated. The general manager of appellant testified as an adverse witness that he had seen the bus parked in the same spot several different times, that he did not object to its being parked there, and did not tell the employees not to park it within thirty feet of the stop sign. It had been regularly parked in this same spot for over a year, and the general manager had seen it there numerous times. The appellant did not pay Moulds anything for storage, but he was to get all of the company's repair work and gasoline purchases for all of the vehicles owner by the appellant. The general manager testified that Sam Matthews was the driver of the bus on July 5th but that he did not know whether Sam Matthews parked it there. Mr. Moulds testified that the general manager told him that Sam Matthews parked the bus there when he returned from the trip to Newton, and that the bus was serviced according to his records on July 5th but that it was not serviced after it was parked on 10th Street prior to the accident in question. Mr. Moulds further testified that he considered himself responsible for the bus as long as it was on his premises but that he did not consider himself responsible for it while it was parked on the street.

The above-mentioned testimony of Mr. Moulds to the effect that the general manager told him that Sam Matthews parked the bus there when he returned from the trip to Newton was admitted without objection. It may be that the statement could be considered as hearsay, but since it was not objected to it is of evidentiary value. In the case of Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 565-566, 11 So.2d 457, 459, we had this question before us and quoted with approval from 20 Am.Jur. 1036, as follows: "The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or more exclusionary rules of evidence does not destroy its probative effect, if it is admitted without objection. It is the generally prevailing rule that relevant evidence received without objection may properly be considered, although it would have been excluded if objection had been made. Such evidence, where admitted without objection, has the force and effect of proper evidence and is to be accorded its natural probative effect as though it were admissible under the established rules of practice. Applying these general principles, most courts hold that hearsay evidence, where admitted without objection, may properly be considered and given its natural and logical probative effect, as if it were in law competent evidence. The hearsay rule is merely an exclusionary principle limiting admissibility of testimony and involves no assertion that hearsay statements are without probative force or that they can furnish no logical basis for conclusions of fact, assuming, of course, they are logically relevant to some issue. Hearsay evidence admitted without objection may be regarded as sufficient to establish a fact in controversy.' And, in the case of Barlow v. Verrill, 88 N.H. 25, 183 A. 857, 104 A.L.R. 1126, it is held that hearsay testimony received without objection may properly be considered by the trier of facts although it would have been excluded if objection had been made. The elaborate annotation on page 1130 of 104 A.L.R. in support of the holding in the case above mentioned discloses that this rule is supported by the overwhelming weight of authority.'

The last mentioned case was cited with approval in the case of American National Insurance Co. v. Craft, 222 Miss 847, 77 So.2d 679. Under these authorities the jury was entitled to take into consideration the statement which the general manager made to Mr. Moulds to the effect that Sam Matthews, the employee of appellant who was driving the bus, parked it on the street at the place in question when he returned from the trip to Newton on July 5th.

The appellant first argues that the lower court erred in refusing to direct the jury to return a verdict in its favor, the main contention being that the evidence does not establish that the bus was parked at the point in question by an employee or servant of appellant. It is true that there were some conflicts in the testimony of appellant's general manager but these conflicts were for determination by a jury. As we said in the case of F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 839, 11 So.2d 447, 450: 'This conflict in her testimony would not have justified the court below in refusing to permit the jury to consider it, but simply presents a case for the jury's determination.' This case was cited with approval in Byrd v. Masonite Corporation, 218 Miss. 731, 67 So.2d 724.

In this connection it is significant to note that Sam Matthews, the driver of the bus on July 5th, was still in the employment of appellant, was not offered as a witness by the appellant but was available to it, and at the time of the trial had been sent by the appellant to deliver feed. In the case of Anderson v. Cumberland Telephone & Telegraph Co., 86 Miss. 341, 353, 38 So. 786, 788, we said: 'The failure to present a witness who can be had, and who is presumed to be friendly to defendant, who knows exculpatory facts if any one does, raises a strong presumption that such facts do not exist.'

The same thing was held and the above case cited in Southern Bell Telephone & Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107.

It is also argued that Moulds was an independent contractor in full charge of the bus from Tuesday, July 5th, until Friday, July 8th. As to this, we have already stated that Mr. Moulds testified that the bus was not serviced after it was parked on the street, and that under his arrangement with appellant, which was not in writting, he did not consider himself responsible for the bus except when it was on his premises and not in the street. Under his testimony, which the jury evidently believed, he was not an independent contractor. The defendant obtained an instruction specifically telling the jury that it would not be liable if the bus had been left with Moulds for the purpose of servicing and that it was parked at the particular spot in question by the said Moulds or his employees, and thus it is seen that the independent contractor theory was submitted to the jury for its determination.

The appellant also argues that there was no causal connection between the parking of the bus and the accident wherein appellee was injured, but that the negligence of Mr. Nolan and Mrs. Burt was the sole, proximate cause of the accident and constituted an intervening cause, it being contended that either Mrs. Burt or Mr. Nolan, or both of them, were guilty of negligence, which negligence was the sole, proximate cause of the collision. The appellant obtained nine instructions submitting this matter to the jury. It argues here that the recent case of ...