Vise v. Vise, s. 50702

• Decision Date: 25 October 1978
• Docket Number: Nos. 50702,50858,s. 50702
• Citation: 363 So.2d 548
• Parties: Orin VISE, Jr., Administrator of the Estate of Paul N. Vise v. Rebecca Elizabeth VISE. Orin VISE, Jr. v. Leilani F. GUSTA, a minor, By and Through Mrs. Yvonne Harris, mother and nextfriend.
• Court: Mississippi Supreme Court

Page 548

363 So.2d 548

Orin VISE, Jr., Administrator of the Estate of Paul N. Vise v.Rebecca Elizabeth VISE.

Orin VISE, Jr. v.Leilani F. GUSTA, a minor, By and Through Mrs. Yvonne

Harris, mother and nextfriend.

Nos. 50702, 50858.

Supreme Court of Mississippi.

Oct. 25, 1978.

Bryan, Nelson, Allen & Schroeder, John W. Chapman, Pascagoula, for appellant.

Hurt & Dickerson, Gerald A. Dickerson, Lucedale, Guy C. Faggard, Pascagoula, Sidney A. Barnett, Lucedale, for appellee.

Before SMITH, LEE and COFER, JJ.

LEE, Justice, for the Court:

Rebecca Elizabeth Vise and Leilani F. Gusta filed separate suits against Orin Vise, Jr., Administrator of the Estate of Paul Vise, Deceased, and Jed Dixon in the Circuit Court of George County for personal injuries sustained in an automobile collision.The cases arose out of the same collision but were tried separately.Judgments were entered on jury verdicts in favor of Rebecca Elizabeth Vise in the amount of five thousand dollars ($5,000) and in favor of Leilani F. Gusta in the amount of ten thousand dollars ($10,000) and Vise appeals here.

The cases have been consolidated on appeal, and, although Dixon has not appealed and is not a party to this appeal, he filed a brief contending that the judgments should be affirmed against both defendants.That brief has been stricken on Motion of the appellant.

On July 4, 1976, appellees, Leilani (Lonnie) Gusta, age 13, and Rebecca Elizabeth Vise, age 12, along with two other children, were riding in the back seat of a Nova automobile driven by their friend and cousin, Paul Vise, along a rural road in George County.Paul Vise was the only occupant of the front seat.The vehicle proceeded in a southerly direction on the dirt road and entered a "blind curve" which turned to the right.He met a Chrysler automobile in the curve and a head-on collision occurred between the two vehicles.Paul Vise died as a result of injuries sustained and appellees received injuries.

I.

Did the trial court err in declining to grant a directed verdict in favor of appellant?

Appellant contends that the testimony of appellees exonerated Vise from any negligence and that the court should have sustained his motion for a directed verdict.He cites Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565(1957).Bradshaw held that where the plaintiff testified that a defendant was driving on her proper side of the road and did not speed up or twist in any way and did nothing to cause the accident, and where the physical evidence did not reveal the point of impact, the plaintiff was bound by such testimony and could not complain, if the court directed a verdict against her.

In Callender v. Cockrell, 217 So.2d 643(Miss.1969), quoting from Bradshaw, the Court stated:

"Ordinarily, a plaintiff is bound by his own testimony as to facts of which he professes direct knowledge, and May not recover upon the basis of evidence of another witness or other witnesses who give directly opposing evidence.Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565(1957)."(Emphasis added)217 So.2d at 647.

However, in the Callender case, this Court stated: "There is not a scintilla of evidence capable of supporting a finding that Mrs. Callender's negligence in failing to give a signal of her ultimate intention to turn right was a proximate contributing cause of the collision."217 So.2d at 647.The Cockrell car, in which appellee there was riding, had followed the Callender vehicle for quite a distance at speeds from twenty (20) to thirty-five (35) miles per hour and ran into its rear.The facts of Callender and Bradshaw distinguish those cases from the case at bar.

In the present case, appellant contends that appellees testified the Vise automobile never crossed the center of the dirt road, that it remained completely in the Vise part of the road, that the speed of the vehicle was from twenty (20) to twenty-five (25) miles per hour and from thirty (30) to thirty-five (35) miles per hour, and that such testimony completely exonerated Vise from negligence.

An investigating officer testified that tire marks from the Vise automobile crossed the center of the road approximately eighteen (18) inches into the lane traveled by the Dixon automobile.Dixon testified that the two vehicles collided in the middle of the road, and that the Vise vehicle suddenly appeared before him.On motion for directed verdict, all testimony and evidence favorable to the party against whom the directed verdict is requested, together with all reasonable inferences flowing therefrom, are taken as true, while evidence favorable to the party requesting the directed verdict is disregarded, if in conflict.Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652(Miss.1975).Applying the principle announced in Paymaster, we are of the opinion that the facts, together with all inferences, in both cases, presented a question of liability and damages for the jury.See alsoShearron v. Shearron, 219 Miss. 27, 68 So.2d 71(1953)andSmith v. Illinois Central R. R. Co., 214 Miss. 293, 58 So.2d 812(1952).

The appellant next contends under this assignment that appellees' proof did not conform to the pleadings in that the amended declarations did not charge appellant crossed the center of the dirt road and that the collision occurred in the Dixon lane of travel.No objection was made to such testimony and evidence when offered, and since appellees could have amended the declarations to conform with the proof had objection been made, we hold that the point was waived.Further...