Oliver v. Miles

• Decision Date: 22 November 1926
• Docket Number: 25964
• Citation: 144 Miss. 852,110 So. 666
• Court: Mississippi Supreme Court
• Parties: OLIVER v. MILES. [*]

110 So. 666

144 Miss. 852

OLIVER v. MILES. ^[*]

No. 25964

Supreme Court of Mississippi

November 22, 1926

Division B

Suggestion of Error Overruled Jan. 3, 1927.

APPEAL from circuit court of Lauderdale county, HON. R. M BOURDEAUX, Judge.

Action by Lee Miles against L. S. Oliver and another, begun in a justice court. From a judgment for plaintiff, defendants appealed to circuit court. Plaintiff took a nonsuit as to defendant Gordon Shamburger. From a judgment for plaintiff defendant Oliver appeals. Affirmed.

Judgment affirmed.

Chas. B. Cameron, for appellant.

A peremptory instruction should have been granted to the appellant because the testimony on the part of the appellee wholly fails to show that his son was injured through the negligence of the appellant, Oliver.

The appellant and the man Shamburger were in the field hunting and they both fired according to the testimony for the appellee and a shot struck the son of appellee in the eye. The court will see that the record contains the statement of the injured party to the effect that he did not know who shot him, nor which one of the two shots struck him and, of course, did not know whether he was injured by the appellant or by the other man, Shamburger.

We have, in this instance an accident which may have resulted from any one of a number of different causes and in any of a number of different ways, some one of which may have rendered the appellant liable and others may not have rendered him liable.

It was, therefore, incumbent upon the appellee to establish the negligence of this appellant by affirmative proof. The inability of the injured party to identify the appellant as the man guilty of negligence simply left this question to the conjecture and guess work of the jury. Surmise, conjecture and guess work cannot be made the basis of a recovery where the law demands proof of negligence affirmatively. On this question I call the court's attention to the following authorities: Bennett v. Washington Terminal Co., 2 F.2d 913; Patton v. R. R. Co., 179 U.S. 658, 45 L.Ed. 361; American Cast Iron Pipe Co. v. Landrum, 62 So. (Ala.), 757; Norfolk & Portsmouth Belt Line Ry. Co. v. White, 129 S.E. 339; Smith v. Philadelphia Ry. Co., 3 F.2d 604; and Bean v. Independent Torpedo Co., 4 F.2d 504; Hinds, Director General, v. Walls, Kentucky Court of Appeals, 239 S.W. 451 and 458.

This cause should be reversed and judgment entered.

Williamson & Gipson, for appellee.

Appellant contends that the testimony was wholly insufficient to show legal liability on the part of the appellant and contends that "the burden of proof was upon the appellee to show that the injury was occasioned by the negligence of the appellant, Oliver, to the exclusion of the negligence of all other parties."

The suit, however, was brought against Oliver and Shamburger by reason of their joint and several liability growing out of their negligence, and in Mississippi in such cases the injured party may sue and recover against any one or more joint tortfeasors without showing the negligence of one to the exclusion of all others. 26 R. C. L., pp. 764-65 and authorities cited; Nelson v. I. C. R. R. Co., 53 So. 619

We maintain that the appellant, Oliver, and his companion, Shamburger, owed the boy whose eye was shot a common duty to prevent, if reasonably possible, their guns or either of them from being fired in the direction of and across the public highway at a time when they both knew or by the exercise of reasonable care and diligence should have seen or known that the minor son of appellee was then and there walking in said public highway at a place where the shot from said gun or guns would likely strike him and injure him

In the case at bar Oliver and Shamburger drove from Meridian to the Collinsville community in the same car for the express purpose of hunting and shooting partridges and they carried bird dogs along to aid them in carrying out their common design, their community of purpose. They were acting in concert at the time and place; and they were both then and there under a common duty to exercise reasonable care and diligence to prevent personal injury to anyone rightfully using or walking in said public highway. They participated in their common program, aided and abetted in the wrong that was committed. Neither of them by word or deed put forth any effort to prevent injury to appellee's son as per their common duty under the circumstances that then and there existed. 38 Cyc., page 483, section 2, and authorities there cited.

Argued orally by Chas B. Cameron, for appellant, and Nate S. Williamson, for appellee.

OPINION

ETHRIDGE, J.

Lee Miles, the appellee, was plaintiff in the court below and filed suit against the appellant, L. S. Oliver, and Gordon Shamburger, for one hundred ninety-nine dollars, his damage for an injury inflicted upon his son, Lavell Miles. The suit originated in a justice of the peace court, and judgment was rendered there in favor of Lee Miles for the amount sued for, from which judgment both Shamburger and Oliver appealed to the circuit court, where the case was tried anew.

It appears from the evidence that Shamburger and Oliver had gone out into the country near Collinsville, northwest of Meridian, to hunt birds. They were traveling in a car and passed the boy, Lavell Miles, a short distance from where they stopped the car and got out and went in a westerly direction from the highway, to a point where their dogs had located a covey of partridges. When they approached this place, the partridges, instead of flying in the opposite direction, flew over their heads and across the public highway, and Oliver and Shamburger fired back towards the highway in shooting at the birds and struck Lavell Miles, who was traveling along the edge of the highway in a footpath running along the outer ditches, but between the right of way of the highway. One of the shot fired struck the boy in the eye, resulting in its loss and the necessity of its removal; and the expense of the father in having this done, and the loss of time of the boy from his work during the period he was disabled, and the cost of an artificial eye, and the inconvenience and loss of time caused Miles, the father, constitute the subject-matter of this suit.

Lavell Miles testified that he was traveling along, as above stated, when the guns fired; that he saw the smoke coming from the guns in his direction, and was struck by the shot, one in the eye and some in the leg, but that he was unable to say from which gun the shot that struck him came. At the conclusion of the plaintiff's evidence, the defendants moved for a directed verdict on the ground that the proof did not show which one did the damage, and it devolved upon the plaintiff to show this, as a condition for recovery. The special judge who tried the case below announced that, unless he would elect one or the other, he would grant this peremptory instruction. Thereupon the plaintiff elected a nonsuit as to Shamburger and to proceed against Oliver, but no order was entered upon the minutes of the court in reference thereto. The suit instituted against Oliver resulted in a verdict in favor of the plaintiff for the amount sued for, and, upon this judgment, this appeal is prosecuted.

It is contended by the appellant that the recovery cannot be upheld, first, because this amendment or order was not entered upon the minutes showing nonsuit, and that the declaration stands as though no amendment had been made thereto, under the holdings of this court in Lackey v. Railroad Co., 102 Miss. 339, 59 So. 97, and that the rule is that no recovery can be had, where the suit is a suit for a joint tort and not for a several tort; and, having brought suit for a joint tort, plaintiff cannot recover from one alone, and that the action of the defendants below was not joint, but was...