Rawlings v. Royals, 38311

Decision Date19 May 1952
Docket NumberNo. 38311,38311
PartiesRAWLINGS et al. v. ROYALS.
CourtMississippi Supreme Court

Robert G. Gillespie, Meridian, J. Knox Huff, Forest, Lester F. Williamson, Meridian, for appellant.

Snow & Covington, and James T. Singley, all of Meridian, for appellee.

HALL, Justice.

This suit was brought by Dr. T. E. Royals for the recovery of damages to his Chrysler automobile when it was struck broadside by a taxicab operated by Homer Jay. The defendants in the suit were Mrs. Alice B. Rawlings, engaged in business under the name of White Top Cab Co., and Homer Jay, the driver, and R. H. Thompson. The trial court gave a peremptory instruction in favor of R. H. Thompson and the jury returned a verdict against the other defendants for $625, from which they appeal.

Dr. Royals died while the appeal has been pending in this Court and by a written agreement of the parties Mrs. Elizabeth Royals Singley, as the sole and only heir at law of Dr. Royals, has been substituted as appellee and the cause revived in her name the same as if she were the personal representative of deceased duly appointed by the Chancery Court.

In the lower court the defendants filed a plea of res judicata in which they set up the fact to be that Homer Jay had filed a suit, No. 4938 on the docket of the Circuit Court, wherein he sought damages for personal injuries sustained by him in the same collision, and that this suit had resulted in a judgment in favor of Homer Jay and against Dr. Royals in the sum of $750. This judgment was rendered about a week before trial of the suit now before us and at the same term of court when the present case, No. 4939, was tried. The plaintiff filed a motion to strike said plea and this motion was sustained by the trial court. That action is the first ground of error assigned.

In the recent case of Palmer v. Clarksdale Hospital, Miss., 57 So.2d 476, 478, not yet reported in the State Reports, we said: 'The essentials necessary to constitute res judicata are well settled by the decisions of this Court. They are (1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; and (4) identity of quality in the persons for or against whom the claim is made. Brown v. Attala Drainage District No. 2, 185 Miss. 386, 187 So. 529; Jones v. George, 126 Miss. 576, 89 So. 231.'

It will readily be seen that three of the essentials necessary to constitute res judicata are lacking in this case. First, there is no identity in the thing sued for; Jay sued for the recovery of damages for personal injuries, while Dr. Royals sued for the recovery of damages to his automobile. Second, there is no identity in the cause of action for the reasons just stated. And, third, there is no identity of persons and parties to the action. In the prior judgment relied upon by appellants the parties were Jay as plaintiff and Royals as defendant; in the suit now before us the parties were Royals as plaintiff and Mrs. Rawlings, Jay and Thompson as defendants. We conclude, therefore, that the trial court committed no error in sustaining the motion to strike the plea of res judicata.

The next assignment is that the trial court erred in granting the following instruction to plaintiff: 'The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that the defendant Jay was guilty of any negligence whatever contributing to the accident, and to the damage to Dr. Royals' automobile, it will be your duty as jurors to return a verdict in favor of the plaintiff.' This instruction is clearly erroneous for the reason that it would allow the jury to find negligence without giving any guide as to what acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence. It simply turned the jury loose to grope in the darkness without any light to guide them as to what would or would not be negligence. Such an instruction has been condemned by this Court on so many different occasions that it is surprising that plaintiffs' attorneys will continue to request it and trial courts will continue to grant it. The following are some of the cases in which we have condemned it: Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541, 8 A.L.R.2d 854; McDonough Motor Express, Inc. v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655; Southern Railway Co. v. Ganong, 99 Miss. 540, 55 So. 355; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Yazoo & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; New Orleans & N. E. R. R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Hines v. McCullers, 21 Miss. 666, 83 So. 734; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Ross v. Louisville & N. R. R. Co., 181 Miss. 795, 181 So. 133; Yazoo & M. V. R. R. Co. v. Aultman, 179 Miss. 109, 173 So. 280.

A review of the foregoing authorities shows that in those cases where the other instructions did not correctly inform the jury as to the acts or omissions constituting negligence we have held the error to be prejudicial and have entered orders of reversal; on the other hand, in some of the cited authorities, where the instructions as a whole did correctly inform the jury as to what would constitute negligence, we have held that the granting of an instruction similar to that above quoted did not constitute such prejudicial error as to require a reversal. After a careful review of all the instructions granted in the case at bar we have reached the conclusion that the jury was correctly charged as to the applicable law on negligence and consequently we will not reverse this case, but again we drop a word of warning to the trial judges throughout the state against the granting of such an instruction. Instructions should be confined to the issues of fact and law applicable to the case and should not deal in such unrestrained generalities.

Appellants also assign as error the granting of three other...

To continue reading

Request your trial
19 cases
  • Rucker v. Hopkins
    • United States
    • Mississippi Supreme Court
    • December 3, 1986
    ...186 So.2d 760, 763-764 (Miss.1966). Also, see Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541 (1949); Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820 (1952); New Orleans & N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657 (1945); Town of Fulton v. Mize, 274 So.2d 129 The instruction......
  • Fidelity & Cas. Co. of N. Y. v. State Bldg. Commission
    • United States
    • Mississippi Supreme Court
    • May 7, 1956
    ...persons and parties to the action; and (4) identity of quality in the person for or against whom the claim is made.' Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820, 821; Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476; Brown v. Attala Drainage District No. 2, 185 Miss. 386, 187 ......
  • Magee v. Griffin, No. 48983
    • United States
    • Mississippi Supreme Court
    • April 27, 1977
    ...before the doctrine of res judicata is operative. According to Pate v. Evans, 232 Miss. 6, 97 So.2d 737 (1957), Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820 (1952), and Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476 (1952), and other numerous cases, these identities are: (1) ......
  • Gore v. Patrick, 42541
    • United States
    • Mississippi Supreme Court
    • February 25, 1963
    ...then as to what would or would not be negligence. Such instruction has been condemned by this Court in many cases. Rawlings et al. v. Royals, 214 Miss. 335, 58 So.2d 820; Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541, 8 A.L.R.2d 854; McDonough Motor Express, Inc. v. Spiers, 180 M......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT