Southland Broadcasting Co. v. Tracy

• Decision Date: 12 February 1951
• Docket Number: No. 37735,37735
• Citation: 210 Miss. 836,50 So.2d 572
• Parties: SOUTHLAND BROADCASTING CO. et al. v. TRACY.
• Court: Mississippi Supreme Court

Page 572

50 So.2d 572

210 Miss. 836

SOUTHLAND BROADCASTING CO. et al. v. TRACY.

No. 37735.

Supreme Court of Mississippi, Division B.

Feb. 12, 1951.

Deavours & Hilbun, Laurel, for appellants.

Melvin & Melvin, Laurel, for appellee.

HALL, Justice.

Appellee brought suit against appellants for the recovery of damages for personal injuries sustained by him in an automobile wreck. His declaration was in two counts. The first count charged that the relation of master and servant existed between the broadcasting company and Leggett, that at the time of the wreck the automobile was being operated by Leggett in the scope of his employment and in furtherance of the business of the company, and that the wreck was caused by the negligence of Leggett in operating the automobile at such a highly dangerous and excessive rate of speed that he was unable to control it. The second count contains substantially the same allegations as the first count and in addition thereto charges that Leggett on and prior to the date of the wreck was an habitual drunkard and would frequently drive the automobile while in an intoxicated condition, that he was a reckless and dangerous driver, that the company knew or should have known the same but nevertheless placed the automobile in his control with the privilege of operating it at his pleasure and of using his own discretion in its operation and control. In its answer the broadcasting company denied in detail the several acts of negligence alleged against it, denied that Leggett was an habitual drunkard or reckless driver, denied that it had any knowledge thereof, and then as a special defense alleged that on the occasion of the wreck the plaintiff and Leggett were both intoxicated, that the plaintiff voluntarily and knowingly rode in the automobile with Leggett at a time when he was intoxicated and thereby assumed all risk incident to the ride.

Nearly a month and a half after the filing of this answer in which it was specifically charged that Leggett was drunk at the time of the wreck, and just before the trial of the case, the company moved to strike from the declaration the allegations as to Leggett's drinking habits. The overruling of this motion and the admission of evidence to support this charge is assigned as error. The company had not only denied the charge and had made an issue on this point long before the filing of the motion but it had also affirmatively pleaded that Leggett was drunk on the occasion in question. Thereby it sought the benefit of Leggett's one occasion of alleged drunkenness and at the same time sought to cut off the plaintiff from proving that Leggett was an habitual drunkard. The plaintiff was clearly entitled to proceed upon the case charged by him in either of both counts of his declaration and in the light of the evidence offered at the trial we are of the opinion that the action of the trial judge was correct. In the case of McDowell v. Minor, 158 Miss. 788, 792, 131 So. 278, 279, this Court said: 'We notice that in some districts both in law and in chancery there is an occasional occurrence of this erroneous practice of attempting to substitute a motion to strike for the more appropriate method of a plenary pleading, whereas from the earliest times consistently down to this day that unauthorized procedure has been disapproved and discouraged in this jurisdiction. It is true that where a pleading has been filed out of time without just excuse, or where a pleading is so manifestly sham and frivolous as to be in substance no pleading at all, or where clearly the pleading thus attacked can have no legitimate place in the proceedings under any possible view that may be taken of the case, the motion to strike is available. But in the absence of statute, a motion is not a pleading and 'ought not to be permitted to usurp the place of regular formal pleading where they are approproate.' The rule in this state is that the stringent remedy of striking finally from the files will be allowed only when there is no other available method by plenary pleading and when the justice of the motion to strike is so clear as to be fairly indisputable. To state the rule in other words, it may be summarized in the language taken from page 671 in 19 Ruling Case Law: 'Motions are generally appropriate only in the absence of remedies by regular pleadings and cannot be made available to settle important questions or to dispose of the merits of the case.' See, also, Gridley v. Duncan, 8 Smedes & M. (16 Miss.) 456, 458, 459; Marshal v. Hamilton, 41 Miss. 229, 235; Tully v. Herrin, 44 Miss. 626, 629; McClave-Brooks Co. v. Oil Works, 113 Miss. 500, 509, 74 So. 332; Kehlor Flour Mills Co. v. Reeves Gro. Co., 113 Miss. 30, 35, 73 So. 866; Griffith Miss.Chan.Pr., Secs. 274, 367, 400, 402.'

Error is also assigned and argued in the action of the trial court in refusing requests of both defendants for directed verdicts in their favor for two reasons: (1) Because it is claimed that plaintiff rode in the automobile that Leggett at a time when he knew or should have known that Leggett was in an intoxicated condition and as a result of which he assumed the risk of such a venture and is precluded from recovering, and (2) because the verdict was against the overwhelming weight of the evidence in that it was conclusively shown not only that Leggett was drunk but also that Tracy and not Leggett was driving the car at the time of the wreck. These contentions necessitate a review of some of the evidence disclosed by the voluminous record before us.

Southland Broadcasting Company is a corporation and owns and operates radio station WLAU at Laurel, Mississippi. C. Hubert Leggett owns one-half of the corporate stock and is president and commercial manager of the corporation. His principal duty is to go out and solicit advertising for the station. The other stockholder is secretary of the corporation who owns one-half of the stock. The corporation purchased two automobiles and delivered one to each stockholder. The car used by Leggett was a Chrysler; he kept it twenty-four hours of each day and controlled it at all times, using it for both business and pleasure in any manner that he saw fit, and the company consented to such use. Tracy was employed by the company as a radio announcer and had been so employed only about three weeks at the time of the accident. On the night in question Tracy 'signed off' at 11 p.m. and closed the station a few minutes afterward and went to a nearby restaurant known as the Snack Shop to get a hamburger and coffee. At that place he met Leggett. Up to this point the facts are undisputed, but as to all events occurring thereafter there is a sharp dispute in the evidence. Leggett claims, with some corroboration, that he was so thoroughly drunk that he did not know what he was doing. Tracy claims, also with corroboration, that Leggett's actions and appearance were such that he had no cause to suspect and did not suspect that Leggett was under the influence of intoxicants. There was also testimony sufficient to justify the jury in finding that Leggett was a chonic alcoholic and an habitual drunkard, but that this fact was unknown to Tracy who had been associated with Leggett but very little during the brief period of his employment.

Tracy and Leggett left the Snack Shop together and rode in the company's automobile to a night club known as John's Place about three or four miles south of Laurel. Tracy claims that he went at the request of Leggett who desired to see the operator about a contract for broadcasting advertising; Leggett denies this and claims that the trip was made at the request of Tracy. As an adverse witness called for cross-examination at the beginning of the trial, Leggett testified that he was so intoxicated when they left John's Place that he didn't know what he was doing, that he looked up and saw that they were headed down the highway with Tracy driving, that he thinks he went to sleep, that he doesn't know what happened after they left John's Place and doesn't remember anything until the next day; later in the trial, after plaintiff had rested his case, Leggett testified positively that when they left John's Place they went south towards Hattiesburg, with Tracy driving, that they did not drive back to Laurel; that he told Tracy he was sleepy and dozed off, that he knew what was going on but was too drunk to drive, that he remembers when the car left the road and remembers that he instinctively 'flopped over' to protect himself. Tracy testified that when they left John's Place they drove back to Laurel, that in Laurel Leggett took over the driving, went to the broadcasting studio, came out and resumed driving and said that he had to make a trip to Dutch's Place, another night club, to see the owner about a broadcasting contract; that he, Tracy, protested and told Leggett that he had to open the station shortly after 5 a. m. and needed some sleep and requested...