Philco Distributors, Inc. v. Herron

• Decision Date: 13 February 1967
• Docket Number: No. 44251,44251
• Citation: 195 So.2d 473
• Parties: PHILCO DISTRIBUTORS, INC. and Joe Martin Frost v. Mrs. Carol Ann HERRON.
• Court: Mississippi Supreme Court

Page 473

195 So.2d 473

PHILCO DISTRIBUTORS, INC. and Joe Martin Frost v. Mrs. Carol Ann HERRON.

No. 44251.

Supreme Court of Mississippi.

Feb. 13, 1967.

Suggestion of Error Overruled March 6, 1967.

Eaton, Cottrell, Galloway & Lang, David Cottrell, Jr., Gulfport, for appellant.

Walter L. Nixon, Jr., Biloxi, Cumbest, Cumbest, O'Barr & Shaddock, Pascagoula, for appellee.

BRADY, Justice.

This is an appeal from a judgment of the Circuit Court of Jackson County, Mississippi, wherein the appellee was awarded a verdict of $40,000 against appellants for personal injuries. The pertinent facts tersely stated are as follows:

On October 17, 1964, at approximately 9:30 a.m. on a clear, dry, sunny day the appellee was proceeding in an easterly direction in the south lane of U.S. Highway 90. This highway is a four-lane highway with two main travel lanes in each drive and two accessory lanes to the right of each drive. There is a left turn on each drive at the intersection of Highway 90 and Washington Avenue. When appellee reached the intersection of Highway 90 and Washington Avenue, she entered the same to make a left turn to the north. The record discloses that when she entered the intersection, she had the green arrow indicating that she could turn to the north from the south side of Highway 90 into Washington Avenue to proceed north. At the time, the other lanes of traffic on Highway 90 going west had a red light indicating that traffic should stop.

Appellee had entered the intersection in the north drive, had proceeded across the same, and had reached the extreme north lane of Highway 90 before appellant Frost entered the intersection. As appellee was proceeding northward onto Washington Avenue and as she was crossing the furthermost north driveway of Highway 90, her vehicle was struck broadside by the car being driven by appellant Frost. The position of the two cars is substantiated by the testimony of Eugene Duncan Nobles who was parked at the intersection waiting for the light to change at the time the accident occurred. The speed of the two vehicles was testified to by J. B. Marsh, who likewise witnessed the accident.

The testimony of these two witnesses clearly indicates that appellant Frost was traveling at a speed of approximately thirty miles per hour at the time he began to apply his brakes and that he swerved to the right in an effort to avoid striking appellee's car. Patrolman Adolph A. Ross, Sr. testified that the car being driven by Frost put down light skid marks measuring approximately thirty-five feet prior to the time he struck the right side of appellee's car. The skid marks laid down by Frost's car were in the northernmost lane of the north drive of U.S. Highway 90 and turned to the right. Patrolman Ross testified that he, along with another officer, immediately after the wreck checked the traffic light and found that it was properly synchronized so that at the time the light was green in the north drive of U.S. Highway 90, it was red in the south drive. He testified that the green arrow on the light remained on for a period of only twenty-five seconds to allow left turns from both drives of the highway at this intersection.

Appellant Frost admitted that when he approached the intersection, two vehicles were stopped on the north drive of the highway headed in a westerly direction. He testified that he drove around the right side of these vehicles into the extreme right or north lane, heading west into this intersection without slowing. He stated that since these two vehicles were stopped in the lane to the left and ahead of him, he could not see the intersection distinctly. When asked why he drove his vehicle into the intersection at this time he testified as follows:

'Q. Do you know why these vehicles hadn't started moving at the time you came into that intersection?

'A. They could see her pre-empty (sic) the intersection.

'Q. They could see her pre-empty (sic) the intersection. All right, and by pre-emptying (sic) you mean she was in there first?

'A. As far as I know.

'Q. She was in the intersection then before you entered?

'A. Right. Against the green light.'

Frost further testified, in substance, that it was his practice to try to make all lights as they turned red in order to avoid having to stop so as to save gasoline and time. He admitted that he made a statement to this effect after the collision and that this is what he tried to do in this particular case. Frost would not deny stating at the scene of the collision that he was running late for a meeting which had been arranged for him in Gulfport, Mississippi. He admitted that when he first saw appellee, both he and appellee were in the intersection and that he could not see her until he was out in the intersection. He concedes further that his vehicle struck her vehicle in the right side. Frost admitted that as he approached the intersection about 150 feet therefrom he was traveling at about thirty miles per hour and that he did not reduce his speed between the two points until he applied his brakes.

The proof in this case is sufficient to support a finding that appellant Frost was guilty of negligence which proximately caused the accident and the injjries occasioned thereby. Appellants charge that the appellee was negligent in failing to keep a proper lookout and in traveling through the intersection at a rate of speed which did not evidence due regard for existing traffic conditions. Appellants received an instruction advising the jury that they would reduce any amount which otherwise they could have awarded the appellee in proportion to the appellee's negligence. Under this instruction the comparative negligence of appellee was presented squarely to the jury for proper consideration.

Four assignments of error are urged by the appellants. The first is that the trial court erred in permitting the appellee, plaintiff below, after trial had begun, to amend her declaration so as to include a herniated disc as a part of her injuries and in not granting appellants a continuance at that time. We do not find any merit in this contention.

The amendment was occasioned by the fact that appellee's doctor, after having treated her for a prolonged period of time, concluded that she had sustained a herniated disc. As a result, the declaration was amended so as to conform to the proof which was to be offered. This is not an amendment setting up a new cause of action, and this Court has heretofore repeatedly held that amendments are not in error which permit the pleadings to conform to the proof so long as a new cause of action is not alleged. Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2 (1963). In the Walters case we said:

Section 1511, Code of 1942, Rec., expressly provides that the court shall have full power to allow amendments to be made in any pleading or proceeding at any time before the verdict, so as to bring the merits of the controversy between the parties fairly to trial. The above mentioned amendments in our opinion were properly allowed, and there is nothing in the record to indicate that the appellant was prejudiced in any way by the action of the court in allowing the amendments. (248 Miss. at 257, 158 So.2d at 23.)

In Carruth v. Easterling, 247 Miss. 364, 150 So.2d 852 (1963), in upholding the action of the lower court in allowing plaintiff to amend his declaration in a replevin suit, we said:

Amendments to pleadings are liberally allowed under our court procedure. Sec. 1511, Miss.Code 1942, Rec. Moreover, amendments may be made to the pleadings in replevin actions. * * *

In 46 Am.Jur., Replevin, Sec. 107, p. 60, the textwriter makes the following statement: 'Where facts have arisen since the commencement of the action and before judgment which would vary the relief to which the plaintiff or defendant would have been entitled at the commencement of the action, such facts may be alleged in an amended petition, answer, or cross petition.' (247 Miss. at 370, 150 So.2d at 855.)

It has been said that 'The right to amend is as liberally accorded in replevin actions as in other causes. The amendment of pleadings is largely a discretionary matter, and a decision on such an application will not be reversed unless it is shown that there has been a clear abuse of discretion by the trial court. * * * Practically the only limitation upon the power of the court to allow plaintiff to amend the complaint is that a new cause of action cannot be introduced * * *'. 34 Cyc., Replevin, IV, F, 1, a, p. 1489. See also 77 C.J.S. Replevin § 167, pp. 116-117; Kirch v. Davies, 55 Wisc. 287, 11 N.W. 689; Kelly v. Bliss, 54 Wisc. 187, 11 N.W. 488; Cain v. Cody, 3 Cal.Unrep. 489, 29 P. 778. (247 Miss. at 370-371, 150 So.2d at 855.)

We cannot say that the trial court abused its discretion in permitting the amendment in the present case since no new cause of action was alleged and the amendment was made prior to the beginning of the taking of testimony. For the same reasons, we do not feel that appellants were entitled to a continuance.

The second error assigned is that the circuit court erred in granting appellee's instructions 4, 5, 6, 7, 8 and 9. Appellants vigorously urge that the granting of these instructions constitutes reversible error. Each of these instructions has been meticulously studied and the authorities cited by appellants have been reviewed, and we cannot agree that the lower court erred in granting them. While they could be more properly phrased, nevertheless, when read together with all the instructions granted to both the appellants and the appellee, we cannot in good conscience say that the jury was misled thereby.

The fourth assignment of error urged by the appellants, namely, that the verdict of the jury is contrary to the overwhelming weight of the evidence, we are also forced to reject. The fact that the appellee was guilty of contributory negligence does not per se make the verdict of the jury...