Southern Beverage Co. v. Barbarin

• Citation: 219 Miss. 493,69 So.2d 395
• Decision Date: 04 January 1954
• Docket Number: No. 39005,39005
• Parties: SOUTHERN BEVERAGE CO., Inc. v. BARBARIN.
• Court: United States State Supreme Court of Mississippi

Page 395

69 So.2d 395

219 Miss. 493

SOUTHERN BEVERAGE CO., Inc. v. BARBARIN.

No. 39005.

Supreme Court of Mississippi.

Jan. 4, 1954.

Brewer & Brewer, Clarksdale, Lipscomb & Ray, Jackson, William O. Luckett, Clarksdale, Jerome F. Leavell, Oxford, for appellant.

Maynard, Fitzgerald & Maynard, Clarksdale, for appellee.

HALL, Justice.

This suit was instituted in the circuit court against Southern Beverage Co., Inc., and T. J. Huddleston, d/b/a Century Burial Association, for the recovery of damages for personal injuries received by appellee in an automobile collision which occurred about 2:30 p. m. on January 9, 1952, on U. S. Highway No. 61 at a point about six or eight miles north of Clarksdale. At the conclusion of all the evidence the trial court granted a peremptory instruction in favor of Huddleston and submitted to the jury the issue of negligence on the part of Southern Beverage Co., Inc., which company appeals from a judgment against it entered upon the verdict of the jury.

Four vehicles were involved in the collision. Huddleston's hearse was returning to his funeral home with a dead body which had been picked up at Tunica, which is several miles North of Clarksdale; the hearse was traveling South and its gasoline supply became exhausted at the point of the collision with the result that it stopped on the paved portion of the highway with the right wheels resting on the shoulder of the highway some ten to eighteen inches off the pavement. The highway was straight and level for several miles in both directions. Appellee was traveling South in a Chevrolet automobile and approached the stalled hearse. A Packard automobile was traveling North in the East traffic lane, being operated at the time by R. Barry Sample. A truck with trailer attached, owned by Southern Beverage Co., Inc., was traveling South and was following appellee's Chevrolet car. It was the only vehicle behind appellee's car. According to appellee's evidence, he saw the Packard automobile approaching and slowed his car down almost to a complete stop in the West lane of traffic and gave an arm signal by holding out his arm at an angle of about forty-five degrees to the ground; he says that he was moving so slowly that he could have stopped instantly when something crashed into his automobile from behind with such force that he was knocked unconscious. His Chevrolet car was knocked into the East traffic lane at an angle of approximately ninety degrees and was struck broadside by the Packard car. A highway patrolman investigated the accident and all four vehicles were still on the scene at the time. The Chevrolet automobile was painted dark blue and he testified that he found paint markings on appellant's trailer, which was then in a shallow ditch on the West side of the highway, and that these markings corresponded in texture and color with the paint on the Chevrolet, and, in addition, that the body of the trailer bore scratch marks or indentations and that one of the side lights about midway the body of the trailer had been knocked out and that blue paint markings appeared on it. He also testified that near the rear of the trailer body there were indentations and paint marks of black color which corresponded with the paint on the hearse, and that skid marks on the pavement and wheel tracks on the shoulder of the highway showed that the truck and trailer had run off on the West side of the highway. The driver of appellant's truck testified that he positively did not strike the Chevrolet car but that he did strike the hearse; he further said that appellee gave no hand signal; that he had been following about 100 to 150 feet behind the Chevrolet; that it was drizzling rain; that he lit a cigarette and turned on his hearter and the windshield fogged up and he picked up a rag and wiped the windshield, and 'when I looked up I was close enough to the Chevrolet to start stopping. I put on the brakes and the motor went dead and the wheels slid. I hit the brakes again and it slid again, so I took to the right-hand side of the road. * * * I was too close to him.' He said that he did not see the Packard car until after the accident and did not see the hearse until he left the road. The weight of the truck, tractor, and load therein was 52,000 pounds. He denied that there were any blue paint marks on the trailer, denied that the patrolman pointed out such marks to him, denied that they compared these with the paint on the Chevrolet, denied that they agreed they were the same color, and denied that he stated to the patrolman that he must have hit the Chevrolet 'because there are the paint marks and the scratches'. Other pertinent facts will be given in discussing the appellant's several assignments of error, which will be taken up in the order in which they are raised in the brief.

1. After appellant's witness, the truck driver, had made the foregoing denials under cross-examination, appellee in rebuttal offered the highway patrolman as a witness and he testified over the objection of appellant that the truck driver looked at the blue paint on the side of the trailer and said that he must have sideswiped the Chevrolet car because the paint and the scratches were there to substantiate it. Appellant devotes the greater portion of his brief to an argument that it was error to admit this rebuttal testimony, relying on Williams v. State, 73 Miss. 820, 19 So. 826, 827, and a number of other cases which have followed that decision. In the Williams case the Court stated the true rule to be: 'Whilst the unsworn statement out of court may be used to contradict the sworn statement in court, whether the statement sought to be contradicted is made by the witness on his direct examination or on his cross-examination, in either case the statement in court must be one embodying a fact substantive in its nature, and relevant to the issue made in the case.' (Emphasis supplied.) We are of the opinion that the question whether there was blue paint on appellant's trailer and whether the trailer struck the Chevrolet car was a fact substantive in its nature and relevant to the issue in the case. Indeed, if the trailer did not strike the Chevrolet, then appellee has no case against appellant; it was quite relevant and material to show the facts bearing on that question. This was not an attempt to contradict a witness on an immaterial and collateral matter as argued by appellant; the evidence went to the very heart of the issue in the case. Appellant's authorities to the effect that agency cannot be established against a principal by unsworn statements of the alleged agent made out of court are wholly inapplicable here; there is no question of agency in this case for appellant's answer specifically admits that the driver of its truck was at the time of the accident acting within the scope of his employment and in furtherance of appellant's business.

The general rule with reference to the admission of inconsistent or contradictory statements is laid down in 58 Am.Jur., Witnesses, Section 767, as follows: 'After a proper foundation has been laid a witness may be impeached by evidence of his declarations or statements inconsistent with or contradictory of his testimony at the trial, even though such variant statements are made after the testimony. Impeachment in this manner is everyday practice. It is the method most frequently resorted to to discredit witnesses, and is in some jurisdictions expressly authorized by statute. This rule as to showing the inconsistent statements of a witness rests upon the obvious propriety and necessity of informing the jury of circumstances so directly bearing upon the credibility of the witness and the value of his testimony as do contradictory statements by him of the controverted facts concerning which he testifies, and which the jury must determine. The fact that he has stated the facts differently shows either a failure of memory, that he has forgotten what he once knew, or else it shows a want of integrity, and either way it impairs the value of his testimony.'

The quoted rule has been followed by this Court in numerous cases. For instance, in Wilkinson v. State, 143 Miss. 324, 336-337, 108 So. 711, 713, 46 A.L.R. 895, it was said: 'While Mr. Barfield was on the stand as a witness for the state, appellant sought by cross-examination to discredit his testimony in the following manner: He had testified to facts tending to show that appellant shot the deceased not in necessary self-defense, but when appellant was in no danger either real or apparent of the loss of his life or being done great bodily harm at the hands of the deceased. The witness was asked if he did not state on the morning after the killing to certain persons that Cherry was so large and powerful that appellant and Willis could not handle him at all; that during the fight Cherry threw the officers 'right and left.' The court would not permit the predicate thus to be laid for the purpose of contradicting the witness. We think the court erred. If it is true that Cherry was a powerful man and threw the officers 'right and left,' this fact would tend to discredit the testimony of Mr. Barfield to the effect that when the fatal shot took place appellant and Cherry were 8 or 10 feet apart. The evident purpose of appellant in seeking to lay the predicate by the cross-examination of this witness was to discredit his testimony, which may always be done in the proper manner.'

In Kolb v. State, 129 Miss. 834, 851, 93 So. 358, 360, this Court said: 'If a witness testifies to a thing on the witness stand, being a material issue, the credibility of such witness may always be impeached by showing that such witness made contrary statements in reference to such fact at other times and places.'

In Lee v. State, 137 Miss. 329, 352, 102 So. 296, 301, the Court said: 'The sworn statement of these witnesses was that the appellant was at his home at the time the homicide was...