Shearron v. Shearron

• Decision Date: 23 November 1953
• Docket Number: No. 38872,38872
• Citation: 68 So.2d 71,219 Miss. 27
• Parties: SHEARRON v. SHEARRON.
• Court: Mississippi Supreme Court

Page 71

68 So.2d 71

219 Miss. 27

SHEARRON v. SHEARRON.

No. 38872.

Supreme Court of Mississippi.

Nov. 23, 1953.

On Suggestion of Error Jan. 25, 1954.

See 69 So.2d 801.

Gillespie, Huff & Williams, Meridian, Nichols & Huff, T. Marx Huff, Forest, for appellant.

Roy N. Lee, Forest, for appellee.

PER CURIAM.

The facts and the law of this case are set forth herein according to the view of a majority of the Justices on the question of defendant's liability in the opinion written by Justice HOLMES, and it is therefore unnecessary that they be set forth in this per curiam opinion. That opinion as to liability is concurred in by Justices ARRINGTON, KYLE, HALL and McGEHEE, and results in an affirmance of the case as to liability.

But the case is reversed by a vote of a majority of the Justices, namely, LOTTERHOS, ETHRIDGE, KYLE, ROBERDS and McGEHEE, for a new trial on the question of damages, for the reasons set forth in the opinion written by Justice ETHRIDGE herein, and in which the said majority of the Justices concur.

Three of the Justices, namely, ARRINGTON, HOLMES and HALL, are of the opinion that the case should be affirmed both as to liability and damages, for the reasons stated in their dissenting opinion as to the reversal on the question of damages; whereas three other Justices, namely, LOTTERHOS, ETHRIDGE and ROBERDS, are of the opinion that the case should be reversed and remanded both as to liability and damages, and for the reasons stated in their dissenting opinion as to the affirmance here of the case on the question of liability.

Therefore the result is that the case is affirmed on the question of liability by the votes of Justices ARRINGTON, HOLMES, KYLE, HALL and McGEHEE; and is reversed on the question of damages by the majority vote of Justices LOTTERHOS, ETHRIDGE, KYLE, ROBERDS and McGEHEE.

Affirmed on the issue of liability and reversed on the question of damages.

McGEHEE, C. J., and HALL, KYLE, HOLMES and ARRINGTON, JJ., concur in affirmance as to liability.

ROBERDS, ETHRIDGE, and LOTTERHOS, JJ., dissent as to affirmance on liability.

McGEHEE, C. J., and ROBERDS, KYLE, ETHRIDGE and LOTTERHOS, JJ., concur as to reversal for trial on question of damages.

HALL, HOLMES and ARRINGTON, JJ., concur in dissent as to reversal for trial on question of damages.

LEE, J., took no part.

HOLMES, Justice (dissenting in part).

It is my view of this case, concurred in by Justices HALL and ARRINGTON, that the judgment of the court below should be affirmed both as to liability and damages. I therefore concur in the affirmance of the case as to liability, but respectfully dissent as to its reversal for trial on the issue of damages alone. I shall accordingly set forth in this opinion the views in support of the decision of a majority of the justices in affirming the lower court's judgment as to liability and shall also set forth herein the dissenting views of Justices HALL, ARRINGTON and myself, who are of the opinion that the lower court's judgment should likewise be affirmed as to damages.

The case is one in which the appellee, Mrs. Emma Shearron, brought suit in the Circuit Court of Scott County against the appellant, Helen Burke Shearron, seeking the recovery of damages in the sum of $35,000 for personal injuries alleged to have been sustained while riding as a guest in a 1948 Chevrolet cab truck with dual rear wheels, owned and driven at the time by the appellant.

The unfortunate occurrence out of which the suit arose happened on Sunday morning, between 11 and 12 o'clock on May 18, 1952, about six miles southwest of the village of Stringer, Mississippi, on Mississippi Highway No. 533, which was a comparatively new black top pavement, having been completed in the preceding six or seven months.

The declaration charged that the vehicle involved was a large, heavy vehicle, difficult to drive and control; that the highway was wet and slippery from rain and had numerous curves, bends, and hills in it; that appellant was driving the vehicle at a dangerous, excessive, and unlawful rate of speed without having it under control and without regard for the condition of the highway and the safety of appellee and others using the same, and carelessly and negligently caused the same to run into an embankment, injuring the appellee.

The answer of the appellant denied the charges of negligence in the declaration, and in an amended answer, averred that the accident resulted solely from latent mechanical defects in the truck, of which the appellant, without fault on her part, was unaware, and which was one of the ordinary risks of travel which the appellee assumed.

Upon the submission of the case to the jury at the conclusion of the introduction of evidence, the jury returned a verdict for the appellee in the sum of $17,500, and judgment was entered accordingly, and from this judgment appellant appeals.

It is urged by the appellant that the trial court erred in refusing her request for a peremptory instruction for the reasons, first, that the proof shows that the wreck resulted from a mechanical defect in the truck of which appellant was unaware, and not from any negligence on the part of the appellant, and that, therefore, the verdict is contrary to the evidence; and, second, that appellee's own testimony contradicts the allegations of her declaration and is binding upon her and defeats recovery.

The proof for the appellee showed substantially the following: The appellant was the owner of a large heavy Chevrolet cab truck with dual rear wheels, which on the occasion in question was being driven by her between 11 and 12 o'clock in the morning on Mississippi State Highway No. 533 about six miles southwest of the Village of Stringer, Mississippi; that she was accompanied by the appellee, who was her mother and who was riding as a guest in the truck; that it was raining and the comparatively new black top pavement on which she was traveling was wet; that the highway had curves, hills and bends in it; that the curve which she was approaching and at which the wreck occurred could be seen by her for a distance of 250 or 300 yards; that said curve was a 90-degree curve, and that in approaching it, she descended one incline and ascended another, approaching the inclines and curves at a rate of speed of 45 to 50 miles per hour without diminishing her speed; that when she reached the curve, she was unable to control the truck and negotiate the curve and ran off the highway into an embankment, badly damaging the truck and injuring the appellee; that the right front fender of the truck was badly bent and the right door practically torn off, and the rear right dual wheels driven back.

The testimony for the appellant was given by two mechanics who did not see the wreck but examined the truck afterwards, and expressed the opinion that the truck was caused to go out of the driver's control by reason of a tie-bolt breaking or coming out, causing the drive-shaft to drop and the rear dual wheels to lock. They would not say that the tie-bolt was not broken and the other damage done to the truck by the heavy blow resulting from the heavy truck's impact with the bank. In rebuttal of this testimony of the appellant, the appellee introduced a mechanic who examined the truck and testified that in his opinion the damaged condition of the truck resulted from its impact with the bank.

According to the testimony of the appellee, which the jury accepted, the appellant at the time of the accident was violating Section 8176 of the Miss. Code of 1942, which makes it unlawful for any person to operate a truck at a speed greater than 45 miles an hour and provides that when approaching and going around a curve or approaching a hill crest, the speed must be diminished and that when special hazards exist with respect to certain highway conditions by reason of the weather, the speed must be reduced.

We think that the overwhelming weight of the evidence clearly establishes the negligence of the appellant, and that such negligence resulted directly and proximately in appellee's injuries. To state the case most favorably to the appellant, however, we think that in view of the fact that the evidence was conflicting to some extent, it is manifest that the trial court committed no prejudicial error in submitting the issue of negligence for the determination of the jury. The jury resolved this issue in favor of the appellee and the verdict of the jury is, in our opinion, supported not only by ample evidence but by the great weight of the evidence.

It is further contended by the appellant, however, that the trial court erred in declining to grant her request for a peremptory instruction upon the ground that the appellee's testimony contradicts the allegations of her declaration and that she is bound by such testimony and precluded thereby from recovery. The appellee testified that she is the mother of the appellant and that the appellant has lived with her all of her life except while she was away in school; that on the occasion in question, she accepted the appellant's invitation to ride with her in the truck; that she had frequently ridden with her on previous occasions; that it had been raining but she was unable to say whether it was raining at the time of the accident or not, but the windshield wipers were running; that the appellant had been and was running at the time of the wreck at about 45 miles per hour; that she knew nothing about the mechanism of an automobile. In response to interrogatories propounded to her on cross-examination, she testified that her daughter was driving in a careful manner at the time of the wreck and was not driving at an excessive rate of speed. Asked if her daughter was driving in a negligent manner, she replied, 'I wouldn't think so.' Asked if she was driving in a negligent or careless manner, she replied, 'I didn't think so.' She further testified in response to interrogatories that she believed...