Teche Lines, Inc. v. Kellar

• Decision Date: 20 January 1936
• Docket Number: 31995
• Citation: 174 Miss. 527,165 So. 303
• Court: Mississippi Supreme Court
• Parties: TECHE LINES, INC., v. KELLAR

165 So. 303

174 Miss. 527

TECHE LINES, INC., v. KELLAR

No. 31995

Supreme Court of Mississippi

January 20, 1936

Division A

1 CARRIERS.

Whether plaintiff suing for injuries allegedly sustained while passenger on bus was passenger on bus and suffered injury thereon held for jury.

2 TRIAL.

Instruction requiring jury to resort to pleading to determine issues to be decided is erroneous.

3 TRIAL.

Error in plaintiff's instruction requiring jury to resort to pleading to determine issues to be decided held cured by defendant's instruction specifically and fully setting forth facts necessary for jury to believe in order to render verdict for plaintiff.

4. TRIAL.

Where attorney for defendant motorbus carrier stated in argument that, if suits continued to be filed against defendant, it would be forced to change its route and go around county, error, if any, in argument of plaintiff's counsel that "we do not ask them to come down here and tax us to build roads for them," held cured by court's instruction to disregard statement.

5. TRIAL.

Error, if any, in argument of plaintiff suing for personal injuries, "you need not think if you give us a small verdict they won't appeal," held cured by court's instruction to disregard statement.

6. DAMAGES.

One thousand five hundred dollars damages for injury causing great pain and suffering and resulting in miscarriage held not excessive.

HON. HARVEY McGEHEE, Judge.

APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by Mrs. Lula Kellar against the Teche Lines, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Porteous, Johnson & Humphreys, of New Orleans, La., and Parker & Shivers, of Poplarville, for appellant.

The following instruction is erroneous: "The court instructs the jury for the plaintiff that if they believe from a preponderance of the evidence, that she was injured as alleged in the declaration, by the negligence of the defendant corporation, and this negligence, if any, was the proximate cause of the injury, if any, then it is the sworn duty of the jury to find for the plaintiff."

Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Lanham v. Wright, 164 Miss. 1, 142 So. 5; Rolands v. Mauffrey, 158 Miss. 662, 130 So. 906; Bounds v. Watts, 159 Miss. 307, 131 So. 804.

There is no punitive damage claimed, none could have been allowed, and one thousand five hundred dollars is far in excess of adequate compensation for the injury reflected by the whole evidence in the case.

There is no question but that the remarks made by counsel for appellee in his closing argument, as reflected by this bill of exceptions, were entirely without the realm of legitimate argument, and it is equally clear that this argument did have a harmful influence on the jury.

It is true that on objection being made by the appellant to the statements of appellee's attorney, said attorney stated that he would withdraw said language and the court instructed the jury that they should disregard the same. Nevertheless, the poison had been injected into the minds of the jury.

Greyhound Lines, Inc., v. Silver, 155 Miss. 765, 125 So. 340; Nelms & Blum Co. v. Fink, 159 Miss. 373, 131 So. 817; Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Morrell Packing Co. v. Branning, 155. Miss. 376, 124 So. 356; Whites Market v. John, 153 Miss. 860, 121 So. 825; Morse v. Phillips, 157 Miss. 452, 128 So. 336; N. O. & N. E. R. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770.

J. M. Morse, of Poplarville, for appellee.

This court has held in cases too numerous to be cited that the instructions of both appellant and appellee are to be taken together and that if one side securing erroneous instructions or instructions that are not full enough, as is the complaint here, then if other instructions are given by the court which cure this defect, the court will not disturb the verdict.

Y. & M. V. R. R. v. Williams, 87 Miss. 344, 39 So. 489; Miss. Central R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Y. & M. V. v. Kelly, 98 Miss. 367, 53 So. 779; American Ins. Co. v. Antrim, 88 Miss. 518, 41 So. 257; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Miss. Central R. Co. v. McGehee, 93 Miss. 196, 46 So. 716; Cumberland Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; A. & V. v. Groom, 97 Miss. 201, 51 So. 705.

When an improper argument is made, before you can take advantage of an improper argument the party objecting must then object to the argument in the presence of the jury and then ask that the court enter a mistrial in the cause.

Brush v. Laurendine, 150 So. 818.

Argued orally by H. H. Parker, for appellant, and by J. M. Morse, for appellee.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of Pearl River county against the Teche Lines, Inc., for damages alleged to have been sustained by the appellee, Mrs. Lula Kellar, while she was a passenger on a bus owned and operated by the appellant.

The declaration alleged that on July 18, 1934, appellee flagged the appellant's bus near Poplarville, boarded the same, and paid her fare to Poplarville; that before she could reach a seat the bus driver started the bus with a sudden, savage jerk, which threw her across a seat of the bus, striking her side and causing her great pain and suffering, as a result of which she suffered a miscarriage two days later.

While the testimony bearing upon the question as to whether or not the appellee was a passenger on the bus and suffered injury thereon is sharply conflicting, the appellee and her brother testified positively to the facts alleged in the declaration. This testimony was sufficient to require the submission of the issues to the jury, and we are unable to say that its verdict was against the overwhelming weight of the evidence.

The appellant assigns as error an instruction granted the appellee which reads as follows: "The court instructs the jury for the plaintiff, that if they believe from a preponderance of the evidence, that she was injured as alleged in the declaration by the negligence of the defendant corporation, and this negligence, if any, was the proximate cause of the injury, if any, then it is the sworn duty of the jury to find for the plaintiff."

In numerous decisions of this court it has been held that an instruction which requires the jury to resort to the pleadings to determine the issues to be decided is erroneous. Southern Railway Co. v. Ganong, 99 Miss. 540, 55 So 355; Yazoo & M. V. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Lanham v. Wright, 164 Miss. 1, 142 So. 5; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906. In the case at bar, however, we do not think this instruction requires or would...