Vick v. Cochran

Decision Date07 July 1975
Docket NumberNo. 48047,48047
Citation316 So.2d 242
PartiesW. T. VICK et al. v. John Daniel COCHRAN.
CourtMississippi Supreme Court

Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellants.

Smith, Downs, Coleman & Ross, Corinth, for appellee.

Before PATTERSON, SMITH and BROOM, JJ.

SMITH, Justice:

W. T. Vick and Alfred Vick, doing business as W. T. Vick Lumber Company, and A. C. George, Jr., appeal from a judgment in the amount of $40,000 entered against them in a suit for damages for personal injuries brought in the Circuit Court of Tishomingo County by appellee, John Daniel Cochran.

Cochran alleged that he had been injured when a Vick Lumber Company truck, being driven by its employee, George, overturned in Tishomingo County.

All of the parties to the litigation, plaintiff and defendants, and nine of the ten witnesses who testified, resided at Hamilton, Alabama. The tenth witness was a doctor who saw Cochran shortly after the accident. The suit did not involve the interests or rights of any resident of Mississippi.

In his declaration, Cochran charged Vick with negligence in (1) overloading the truck, (2) using chains of insufficient strength to secure the load, and (3) furnishing weak and defective chains to secure the load. It was also alleged that Vick was liable as principal or master for the negligence of its employee, George, in the operation of the truck.

Cochran charged in his declaration that George had been negligent in the operation of the truck in that he, George, (1) drove it in excess of the speed limit of 50 miles per hour, (2) failed to decrease speed while negotiating a curve, (3) drove too fast under the circumstances, (4) failed to keep a proper lookout and (5) failed to keep his vehicle under control.

The trial court, however, submitted the case to the jury upon the questions of the alleged negligence of George in failing to decrease speed at the curve, driving too fast under the circumstances and failing to keep the vehicle under control.

As to Vick, the court sent the case to the jury only upon the charges that Vick had overloaded the truck and that Vick was liable for any negligence on the part of its employee, George, under the doctrine of respondeat superior.

At the outset, an objection was interposed to the jurisdiction of the trial court to entertain the suit under the circumstances. It was contended by defendants-appellants appellants that the Mississippi nonresident motorist statute is limited in its application to those cases involving residents of Mississippi. In support of this position certain language of this Court is quoted from the opinion in Nationwide Mutual Insurance Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (Miss.1964). In that case this Court said:

The basic purpose of this act, as this Court has heretofore repeatedly stated, is to subject to the jurisdiction of the Mississippi courts nonresidents who are concerned or involved in this operation of automobiles within this state and within the terms of the statutes applying, in order that its citizens may assert as against such persons any proper claims in the courts of this State. (Emphasis supplied). (249 Miss. at 162, 161 So.2d at 612).

Appellants also quote from Tanksley v. Dodge, 181 F.2d 925 (5th Cir. 1950) wherein the Fifth Circuit Court of Appeals stated:

Statutes of general import similar to the Mississippi statute have been frequently before other Courts The precise language and context of the statutes vary from state to state. This has properly resulted in differing adjudications. We apply the Mississippi statute in light of the language of § 61, the statutory context of the selection and the manifest purpose of the statute to subject nonresident users of the highways of Mississippi to the jurisdiction of the local court for the trial and possible enforcement of claims for damages asserted by local citizens. (Emphasis supplied). (181 F.2d at 927).

However, in neither of these cases was the issue presented to the Court for decision or actually decided.

Nor has the doctrine of forum non conveniens been adopted in Mississippi, although a persuasive argument can be made that the Mississippi nonresident motorist statute should not be used as a vehicle for bringing in a Mississippi court a case when the circumstances are such as those in the present case. Here, all of the parties and nine of ten witnesses reside in the neighbor state of Alabama. But the result would be the same if all of the parties lived in California or Alaska and the injury had occurred in Mississippi. It may be that further legislation in this area is indicated but, in its present form, the jurisdiction of the court is not restricted by the statute to suits by Mississippi residents.

It appears from an abstract of record filed by appellants, which is unchallenged by appellee, that on the occasion in question, Vick had dispatched a shipment of lumber by truck from its place of business at Hamilton, Alabama, to a destination in Missouri. George, an experienced interstate truck driver, and an employee of Vick, drove the truck. After the truck had been loaded at Hamilton, George drove to his uncle's home where he invited plaintiff, Cochran, his brother-in-law, to ride along with him on the trip 'for company,' telling him that he, George, would pay him for any lost wages and for his meals. He also told Cochran that he might help him, George, with anything that came up on the trip. The Vicks had no knowledge of any of this.

George proceeded from Hamilton with his brother-in-law, Cochran, as a passenger, and was passing through a corner of Tishomingo County, Mississippi, when the truck overturned and Cochran sustained the injury complained of. George testified that he himself received a blow on his head and that he remembers nothing whatsoever about the occurrence.

George knew that it was the rule of Vick Lumber Company that no riders were to be permitted to ride on its trucks. He also knew that the rules of the Interstate Commerce Commission forbade allowing persons to ride in trucks engaged in interstate hauling. As stated, the Vicks were totally unaware that Cocran was being taken along on the trip by his brother-in-law, George.

It is the contention of Vick Lumber Company that Cochran's choice of a Mississippi forum was the result of 'forum shopping' and was for the purpose of avoiding the Alabama statute of limitations, under which Cochran's claim is barred, and to escape the effect of the Alabama 'guest statute' which also would have precluded recovery. It is further contended that, notwithstanding the choice of a Mississippi forum, Alabama law, including the Alabama 'guest statute,' should be applied. It is pointed out that the declaration does not charge, nor does the proof show, that either George or Vick was guilty of willful or wanton conduct which resulted in the injury of Cochran, but both allegations and proof relate to charges of simple negligence.

In Mitchell v. Craft, 211 So.2d 509 (Miss.1968), this Court expressly abandoned the old rule of the rigid application of the lex loci delicti and adopted a more flexible formula which comports more nearly with traditional notions of fair play and substantial practice. In Mitchell the Court dealt with a situation somewhat analogous to that reflected by the present record. The case involved choice of law and conflict of laws problems in an action for damages for wrongful death which had resulted from an automobile collision in the State of Louisiana. All of the parties to the collision were residents and citizens of Mississippi.

Under Mississippi law, the comparative negligence statute would permit recovery, but under Louisiana law, where the old common law rule law obtained, contributory negligence was a bar. In applying the Mississippi comparative negligence statute, this Court stated:

We modify the previously existing rule in this jurisdiction, which applied invariably the law of the place of injury, and hold that under the factual situation existing in this case, the most substantial relationships of the parties and the dominant interest of the forum require application of Mississippi law . . ..

(211 So.2d at 510).

The Court observed:

(U)nder the center-of-gravity or most substantial relationship rule, the substantive law of Mississippi is applicable, since the place of accident was purely fortuitous, and the interest of Mississippi in both decedents, their estates, and their expectations of their rights under Mississippi law, including its comparative negligence statute, is dominant.

(211 So.2d at 512).

And further:

Louisiana's sole relationship with the occurrence is the purely adventitious circumstance that the collision happened there.

(211 So.2d at 513).

In the case now before the Court, the 'center of gravity or of most substantial relationships' unquestionably is in Alabama, since the place of the accident was purely fortuitous and Mississippi's sole relation to the occurrence was, as was said in Mitchell, 'purely adventitious.' Not only do all of the parties, plaintiffs and defendant, and nine of the ten witnesses, reside at Hamilton, Alabama, but their status, and their relationships each with the other, were established under agreements, express or implied, arrived at in the State of Alabama. The interstate trip on which they were engaged began and was to end in the State of Alabama. The loading, securing and weighing of the shipment took place at Hamilton. We have concluded that Alabama law, including the Alabama 'guest statute,' should govern as to all aspects of the case excepting that (1) Mississippi rules of the road should apply to questions of alleged negligence in the actual driving of the truck and (2) the period of limitations, by ancient precedent, is governed by the law of the forum.

Mississippi Code Annotated section 15-1-65 (1972), provides that a cause of action arising in a foreign state or country, and...

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