Standard Coffee Co. v. Carr

• Decision Date: 26 November 1934
• Docket Number: 31341
• Citation: 157 So. 685,171 Miss. 714
• Court: Mississippi Supreme Court
• Parties: STANDARD COFFEE CO. et al. v. CARR et al

157 So. 685

171 Miss. 714

STANDARD COFFEE CO. et al. v. CARR et al

No. 31341

Supreme Court of Mississippi

November 26, 1934

Division A

Suggestion Of Error Overruled January 21, 1935.

APPEAL from the circuit court of Choctaw county HON. JNO. F. ALLEN Judge.

Suit by E. B. Carr and others against the Standard Coffee Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Affirmed.

L. Barrett Jones, of Jackson, and Henican & Carriere, of New Orleans, Louisiana, for appellant.

In this state, by force of section 5574 of the Code of 1930, pedestrians on a public highway are required to walk facing approaching traffic.

Appellant's theory of the case is that Mrs. Carr was on the east, or right hand, side of the road in front of northbound traffic, a place where by statute she had no right to be, and let us observe that the pedestrian is under as much duty to obey statutory regulations as is the automobilist.

Priestley v. Hayes, 147 Miss. 843.

The second instruction is erroneous in that it makes the life expectancy of Mrs. Carr the basis for the recovery. Her life expectancy was not recoverable.

Gulf Refining Co. v. Miller, 116 So. 295; Natchez Coca Cola Co. v. Watson, 160 Miss. 173; Railroad Co. v. Decker, 150 Miss. 621.

The whole truth is that this record is utterly deficient of any testimony on which a jury could have figured the present money value of any benefits which appellees might have expected to receive from the decedent.

The verdict is grossly excessive.

Coccora v. Light & Traction Co., 126 Miss. 713, 89 So. 257; Deposit Guaranty Bank v. Silver Savers Stores, 166 Miss. 882; Weyen v. Weyen, 165 Miss. 257; Brush v. Lorendine, 150 So. 818; Nicholson v. Bankers & Shippers Ins. Co., 164 Miss. 523; Tonkle v. Y. & M. V. R. R. Co., 154 So. 351.

The law is laid down that it is not competent to prove specific acts of kindness or expressions of good will or that the decedent was closely attached to the children.

Roth v. Bien, 87 Ohio St. 483, 102 N.E. 1119; Quin v. Power (N. Y.), 29 Hun. 183; Boos v. Minneapolis, etc., Railroad Co., 127 Minn. 381, 149 N.W. 660; Vawter v. Hultz, 112 Mo. 633, 27 S.W. 689.

We submit that the correct rule where there is no challenge by the defendant of a normal family relationship is the proof of the number of surviving children and their ages plus the fact that the spouse also survives.

Conover v. Harrisburg Coal Co., 161 Ill.App. 74; Irvin v. Southern Railroad Co., 164 N.C. 5, 80 S.E. 78.

The court erred in excluding the testimony of Miss Jones with reference to the exclamation of Bud Moss because that exclamation was a "verbal act," as said by Judge CAMPBELL in one case, and was clearly competent and admissible as a part of the res gestae.

3 Wigmore on Evidence, sections 1746 and 1747; Alabama Great Southern Railroad Co. v. Shannon, 109 Miss. 230.

Stone & Stone, of Coffeeville, for appellants.

All our decisions are in favor of introduction of an exclamation even of a by-stander at the time of the happening of an accident.

3 Wigmore on Evidence, sections 1746 and 1747; Alabama Great Southern Ry. Co. v. Shannon, 109 Miss. 230, 68 So. 165.

When it comes to estimating the loss of companionship and society to a mother and brothers and sisters, we realize that there must not be any yielding to sentimental feelings, but the verdict must be viewed in the light of compensation in dollars.

Gulf Refining Co. v. Miller, 116 So. 121 So.; Natchez Coca Cola Co. v. Watson, 160 Miss. 173, 133 So. 677; Y. & M. V. Railroad Co. v. Decker, 150 Miss. 621, 116 So. 287.

If there are errors in the instruction or other rulings of the trial court, which may have misled the jury as to the proper element or measure of damages and which may have reasonably resulted in an award of improper damages, such erroneous rulings and the improper award of damages resulting therefrom may, on appeal, be assigned as error without making a motion for a new trial in the trial court.

Deposit Guaranty Bank v. Silver Savers Stores, 148 So. 367, 166 Miss. 882; Weyen v. Weyen, 165 Miss. 257, 139 So. 608, 856; Brush v. Lorendine, 150 So. 818; Nicholson v. Bankers & Shippers Ins. Co., 164 Miss. 523, 145 So. 349; Tonkle v. Y. & M. V., 154 So. 351; Coccora v. Light & Traction Co., 126 Miss. 713, 89 So. 257.

A. L. Ford, of Ackerman, Jas. L. Davis, of Louisville, and J. A. Cunningham, of Booneville, for appellees.

In getting before the jury the question of the present money value of the decedent's companionship to her husband and children, and also the present value of that care, attention, instruction, training, advice, guidance, and protection of which the minors have been deprived and thereby damaged by her death, and which they would likely have received had she lived, it is not only the plaintiffs' right, but it was altogether necessary on the part of plaintiffs to show, by competent proof, the kind of wife she was, her disposition, her habits of industry, her attitude as a companion and a mother, in order that the jury could form some idea of what that companionship was really worth, and so that they could place some intelligible estimate on the damage sustained on account of the loss of it.

Alabama Great Southern Ry. Co. v. Norrell, 143 So. 904; Alabama Great Southern Ry. Co. v. Cornett, 106 So. 242; Title 45, U.S.C. A., chap. 2, sec. 51; Section 510, Code of 1930; St. Louis & San Francisco Railroad Co. v. Moore, 58 So. 471; 17 C. J., p. 1333, secs. 206-7-8-9-10.

Upon approaching a person walking in the roadway of a public highway, or a horse, or horses, or other draft animals being ridden, led or driven thereon, a person operating, or causing to be operated a motor vehicle, shall give or cause to be given reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, etc.

Section 5572, Code of 1930; Daniel v. Livingstone, 150 So. 662; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Rhoads v. Fullilove, 134 So. 840; Aycock v. Burnett, 128 So. 100; Frazier v. Hull, 127 So. 775; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Terry v. Smylie, 133 So. 662.

Instruction No. II, follows the statute exactly down to the language complained of, and the language complained of is more narrow in its construction than the statute, and is not in any wise broader, anywhere, than the statute under which the suit is brought.

Section 510, Code of 1930; San Francisco Railroad Co. v. Moore, 58 So. 474; Beeson v. Green M. G. M. Co., 57 Cal. 20; Yazoo & Miss. Valley Railroad Co. v. Beasley, 130 So. 499; Gulf & Ship Island Railroad Co. v. Boone et al., 82 So. 335.

The statement of Moss was not any outcry, it was not any description of what was coming to his vision, but it was this: "I believe that lady is going to try to beat that car across the road," and shows a mere judgment of his. The origin of this statement comes from Moss' mind and does not offer any intelligence whatever in the way of testimony, but merely gives an opinion in the mind of Moss without affording any facts or circumstances upon which such an opinion is based.

Pearson v. Hancock & Son, 77 So. 935; Borden v. Croak, 131 Ill. 68; 4 C. J., Appeal and Error, pp. 815-16, secs. 2786-7; Matthews v. State, 66 So. 325.

It is not reversible error in any sense to allow testimony to be introduced out of order, or to allow testimony in rebuttal which should properly have been offered as original proof, all of which is left to the sound discretion of the trial court, and in the absence of a clear abuse will not be disturbed.

Illinois Central Railroad Co. v. Brown, 115 So. 115; White v. Weitz, 152 So. 484; Stevens v. Locke, 125 So. 529.

Argued orally by W. I. Stone and L. Barrett Jones, for appellant, and by J. A. Cunningham and A. L. Ford, for appellee.

OPINION

Cook, J.

Appellees, the husband and minor children of Mrs. Ora Carr, deceased, instituted this suit against the Standard Coffee Company and E. L. Sandidge, the driver of its delivery truck, for the alleged negligent killing of the deceased on a public highway. The negligence charge in the declaration, which was supported by the proof, was, first, the excessive speed of the truck, and, second, that it was being driven north on the left-hand side of the road, where the deceased was walking in the same direction, and, without warning, struck the deceased from behind. There was a verdict and judgment for twenty-seven thousand five hundred dollars in favor of the appellees, from which this appeal was prosecuted.

The testimony of several witnesses for the appellees, including a salesman for the appellant coffee company who was riding in the truck, was that the deceased was walking north on the west side of the highway; that the truck came over the crest of a hill about two hundred yards south of her; that from the crest of the hill to the point where the deceased was struck the highway is straight and a little down grade; that the truck was running at a rate of speed variously estimated at from forty-five to sixty miles per hour, and that it proceeded at this speed on the left or west side of the road without giving any alarm or sounding any warning until it struck and killed the deceased. Several witnesses testified that, at the time she was struck, Mrs. Carr was walking within three or four feet of the ditch or drain on the west side of the highway, while two young girls were walking on the eastern edge of the highway.

The appellant Sandidge, the driver of the truck, testified that as he was approaching the point where Mrs. Carr was struck, she and the two girls were walking on the eastern edge of the highway; that he was driving on the east or right-hand side of the road, and that, when he was...