Pullin v. Nabors

• Decision Date: 20 March 1961
• Docket Number: No. 41737,41737
• Parties: James Robert PULLIN, a Minor, etc. v. Frank R. NABORS.
• Court: Mississippi Supreme Court

Page 117

128 So.2d 117

240 Miss. 864

James Robert PULLIN, a Minor, etc. v. Frank R. NABORS.

No. 41737.

Supreme Court of Mississippi.

March 20, 1961.

Coleman & Dobbs, Ackerman, Crawley & Ford, Kosciusko, for appellant.

Jack B. Carlisle, Ackerman, for appellee.

McELROY, Justice.

James Robert Pullin, a minor 15 years of age, by J. C. Pullin, his father and next friend, appellants here, filed this suit in the Circuit Court of Choctaw County, Mississippi, against Frank R. Nabors, appellee here, for personal injuries sustained by the minor when the appellee, in a drunken condition, on the 2nd day of August, 1958, struck an automobile parked on the shoulder of Miss. State Highway No. 12 and struck the automobile formerly operated by appellant's mother and which was in the eastbound traffic lane of said highway. The jury rendered a verdict for the appellee, hence this appeal by the appellant.

The facts offered by appellant in evidence were to the effect that immediately prior to 8 o'clock P.M. on August 2, 1958, J. G. Johnson drove a 1952 Chevrolet automobile in a westerly direction on Miss. State Highway 12 in the south lane, which was his wrong lane of the highway, and collided with a 1949 Chevrolet sedan which was being operated by Mrs. Jewel Pullin in an easterly direction on said highway in the south lane, or eastbound traffic lane; after the collision aforesaid the 1949 Chevrolet sedan that had been driven by Mrs. Pullin was facing in a northeasterly direction with the front end of the car being about 2 feet south of the center line of said highway; that the collision was being investigated by Mississippi Highway patrolmen and deputy sheriffs of the City of Kosciusko in Attala County, who were on the west side of the wrecked 1949 Chevrolet sedan waving and flashing lights to warn motorists approaching from the west in the eastbound traffic lane of said highway which was obstructed by the aforesaid wrecked automobiles, and a member of the police department was waving a flashlight at the scene of the collision in order to warn motorists approaching from the west; and that the highway was so obstructed that the police car of the City of Kosciusko and the highway patrolman's car were parked on the south side of the highway and were giving warning to the motorists by means of flashing red lights; that J. C. Pullin had come to the scene of the collision to ascertain if his wife, Mrs. Jewel Pullin, was injured, and had driven a 1948 Ford 2-door sedan to the scene of the collision and parked the Ford car off the paved portion of the highway and on the south shoulder of the highway; the automobile having been parked on the should approximately 20 feet west of the location of the wreck on the highway.

At approximately 8:00 P.M., while the condition prevailed on the highway as outlined above, the appellee drove a 1954 Ford automobile in an easterly direction on the said highway within the city limits of Kosciusko and within a 30 miles per hour speed zone at a speed of approximately 60 miles per hour while the appellee was drinking Vodka or intoxicating liquor, and for which he paid a fine at a later date for said operation in a state of intoxication.

The appellee drove his automobile at a reckless rate of speed while he was in such state of intoxication and collided with the 1948 Ford 2-door sedan which had been parked on the south shoulder of Highway 12 by J. C. Pullin, and then collided with the 1949 Chevrolet sedan which was in the eastbound traffic lane of the highway as a result of the prior collision referred to. At the time appellee struck the 1949 Chevrolet sedan the appellant was on the east side of the sedan and was reaching inside the automobile for the purpose of removing some shoes and other personal belongings; that the automobile driven by the appellee struck the 1949 Chevrolet automobile with such force and violence that the 1949 Chevrolet was hurled or catapulted into the appellant, knocking him unconscious and resulting in serious and permanent back and spinal injuries to the appellant.

The doctors' testimony of the injury of the appellant was to the effect that the collision caused the appellant to sustain a ruptured disc between the last vertebra and the sacrum; that he sustained a 15% permanent disability to the body as a whole. At the time of this collision the appellant was 15 years of age with a life expectancy of 54.8 years; that the appellant was an athlete, playing football, baseball and basketball; that as a result of this injury, which was very painful to him, he was unable to perform with the same dexterity and agility as he formerly performed on the athletic field; that he on many occasions tried to perform the duties of an athlete with the same effort as before the accident, but that the accident caused him to be less efficient and one of the doctors testified that the condition would probably be permanent. This was the testimony offered by the appellant and his witnesses.

The appellee's testimony was to the effect that he had drunk intoxicating liquor, Vodka, while he was in Kosciusko and before driving his automobile in an easterly direction on Highway 12 in the city limits of Kosciusko; that he knew the speed limits in the city and at the place where the collision occurred were 30 miles per hour; that when he reached the hill crest which was 500 or 600 yards west of the Pullin sedan with which he subsequently collided in the eastbound traffic lane of said highway, he saw the flashing red light of the lighway patrolman's car; that he did not reduce the speed of his vehicle at all and that he recognized that the red flashing light indicated danger. He further testified that he struck one automobile which was sitting on the side of the highway and that he then struck the 1949 Chevrolet sedan owned by Mrs. Pullin which was in the highway. He testified that the officer searched him, took a bottle of Vodka off of his person, and took him to jail, and that he paid a fine for this offense. He stated that he recognized it would be extremely dangerous for a man to drink intoxicating liquor and drive on a highway.

The photographs introduced indicate that about 500 or 600 yards west of the accident there was a slight decline in Highway 12, but that the highway was straight. Other witnesses testifying in the case said that they could see the light, that is the red lights flashing from the highway patrolman's car and the police cars, from a distance of approximately one mile from the scene. Even the photographs show the location of the collision to be several hundred yards away, with a clear and unobstructed view down the highway, indicating that the appellee did see, or should have seen, the conditions on the highway at that time of the evening.

The appellant assigns as error that the court erred in refusing to grant him a peremptory instruction; in admitting testimony of his doctor--S. L. Bailey, over the objection of the appellant; in granting an instruction based on an emergency, and in refusing to grant appellant a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence and served to evince bias and prejudice on the part of the jury; thus showing manifest bias, passion, and prejudice, and does not respond to reason on the part of the jury.

The appellant strongly contends that he was entitled to a peremptory instruction. This issue is undoubtedly close upon this point. The established rule in this state is that when looking solely to the testimony in behalf of the party against whom the peremptory charge is requested, and taking that testimony as true, there are enough facts testified to, along with reasonable inferences which could be drawn therefrom, in favor of a certain party, to support a verdict for him, then the peremptory instruction is not allowable. Graves v. Johnson, 179 Miss. 465, 176 So. 256. Since this case is to be reversed on other grounds, and due to the fact that the appellee testified he was traveling at 25 to 30 miles per hour within the statutory regulations of the corporation of Kosciusko, Mississippi, and that he was suddenly blinded by the flashlight of one of the policemen, even though this is a close case, we believe there was testimony enough to go to the jury.

The contention that the court erred in permitting the testimony of Dr. S. L. Bailey because it was a privileged communication according to Section 1697, Code of 1942 Rec., we believe to be harmless error. It is always a dangerous thing to question a party's doctor when he claims that it is a privileged communication. There is evidence on behalf of the appellant as to what Dr. Bailey prescribed. In Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479, 481, 72 A.L.R. 143, the Court held that a party 'cannot waive the privilege partially--he cannot remove the seal of secrecy from so much of the privileged communications as make for his advantage, and insist that it shall not be removed by so much as makes to the advantage of his adversary. Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Estes v. McGehee, 133 Miss. 174, 97 So. 530.' Maybe this question will not arise on a new trial.

The appellant contends that the court erred in giving the instruction based on sudden emergency. This instruction is as follows: 'The court instructs the jury for the defendant that under the law when a person is suddenly...