Pollard v. Stansell

• Decision Date: 12 February 1934
• Docket Number: 31014
• Citation: 169 Miss. 136,152 So. 646
• Court: Mississippi Supreme Court
• Parties: POLLARD et al. v. STANSELL

152 So. 646

169 Miss. 136

POLLARD et al. v. STANSELL

No. 31014

Supreme Court of Mississippi

February 12, 1934

Division A

1 AUTOMOBILES.

Privilege tax statute defining trucks as motor vehicles used in business of transporting property not applying to statute restricting speed of trucks to thirty miles per hour plaintiff in personal injury action held not required to show that defendant's automobile exceeding speed limit for trucks was engaged in business of transporting property (Code Supp. 1933, section 5627-1, subsection 4; section 5627-2; Code 1930, section 5569).

2 AUTOMOBILES.

Ford coupe, equipped with pick-up body and capable of carrying half ton of freight, was "truck" within statute prohibiting driving of truck on highway at speed exceeding thirty miles per hour (Code 1930, section 5569; Code Supp. 1933, section 5627-1, subsection 4; section 5627-2).

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Action by John W. Stansell against J. T. Pollard and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Ed C. Brewer, of Clarksdale, and Fred H. Montgomery, of Chicago, Illinois, for appellants.

Instruction No. 4 for plaintiff is erroneous in characterizing the motor vehicle driven by plaintiff as a "truck;" and directing a recovery under count two on this assumption.

Chapter 138, sec. 5627-1, Code 1930; Hemlock 6400 Tire Co. v. McLemore, 151 Tenn. 99, 268 S.W. 116; Fidelity & Casualty Co. v. Martin (C. C. A.), 66 F.2d 438.

There was no evidence that defendant's motor vehicle was a truck, but on the contrary the evidence shows without contradiction it was not a truck.

It is quite clear that the statutory definition of the word "truck" does not comprehend a Ford pick-up.

Chapter 138, sec. 5627-1 (4), Code 1930; Hemlock 6400 Tire Co. v. McLemore, 151 Tenn. 99, 268 S.W. 116.

Maynard, FitzGerald & Venable, of Clarksdale, for appellee.

It is common learning that instructions are to be construed together as a whole and all that is required is that they shall, as a whole, fairly instruct the jury as to the law.

Yazoo, etc. R. R. Co. v. Williams, 87 Miss. 344; Miss., etc., R. R. v. Hardy, 88 Miss. 372; Yazoo, etc., R. R. v. Kelly, 98 Miss. 367; Warren County v. Rand, 88 Miss. 395; Miss., etc., R. R. v. Pillows, 101 Miss. 527; Ins. Co. v. Autrim, 88 Miss. 518; Hitt v. Terry, 92 Miss. 671; Friedman v. Allen, 152 Miss. 377.

Technical inaccuracy in instructions will not alone reverse.

City of Jackson v. Wright, 151 Miss. 559; Nelms & Blum Co. v. Fink, 159 Miss. 372.

Evidence shows that defendant, Pollard, was a contractor and he testified that he had a contract for levee work and had occasion to buy a Ford pick-up, as it was called. This is a Ford car built with a seat for the driver and a body behind in which to carry loads. It is known as a one-half ton truck or vehicle for carrying a load of one thousand pounds.

Section 5569 of the Code provides that no person shall operate a motor vehicle on a public highway, street, or alley, at a greater rate of speed than is reasonable and proper, etc., but trucks shall not in any event operate at a greater rate of speed than thirty miles per hour, etc.

If the speed regulation as contained in section 5569, Code of 1930, state of Mississippi, is to be made effective, which intent we must impute to the Legislature, it seems to us that the Legislature meant by truck what the word is ordinarily taken to mean by the ordinary man and that is a vehicle, large or small, which is intended and designed to hold goods, merchandise, freight, or loads of any kind.

Argued orally by Fred H. Montgomery, for appellant, and by W. W. Venable, for appellee.

OPINION

McGowen, J.

John T. Pollard and H. T. Harsey prosecuted an appeal from a judgment for personal injuries sustained by John W. Stansell on account of a collision between two motor vehicles on a public highway in Washington county.

The declaration of John W. Stansell, appellee, alleges that J. T. Pollard, appellant, was driving a truck, or causing it to be driven, at a very rapid rate of speed, and in a negligent manner, with the result that said truck was hurled or thrown against the side of appellee's car, knocking it into the ditch and injuring appellee. That appellant's truck was being driven negligently because it was being operated at a greater rate of speed than thirty miles per hour, in violation of section 5569, Code 1930.

It is conceded that there was sufficient evidence for the case to go to the jury, and the appellant's only point which we need consider here is whether or not the court below was in error in instructing the jury that the motor vehicle being driven by appellant was a truck within the meaning of section 5569, Code 1930.

The appellant contends that he was driving a Ford "pick up," and witnesses for the appellant describe the vehicle as a Ford "pick up." The truck was described as a motion vehicle with a seat in front for the driver, and extending from the seat to the rear there is a bed or body such as is generally found on small trucks for the carrying of light freight. It is not built upon a regular Ford truck chassis, but upon the same chassis as the car known as a Ford coupe. The evidence shows that the capacity of this particular vehicle was a half ton or one thousand pounds.

The appellant cites chapter 138, section 5627-1, subsec. 4, Supplementary Code of 1933, as follows: "The word 'truck' shall mean any motor vehicle designed and used principally for the transportation of any property and engaged in the business of transporting property."

Section 5627-2 of the same chapter, Code Supp. 1933, imposes privilege taxs upon commercial motor vehicles or trucks, and, in our opinion, the definition quoted supra was intended to apply to trucks for the purpose of...