Weyen v. Weyen

• Decision Date: 29 February 1932
• Docket Number: 29811
• Court: Mississippi Supreme Court
• Parties: WEYEN et al. v. WEYEN

139 So. 608

139 So. 856, 165 Miss. 257

WEYEN et al. v. WEYEN

No. 29811

Supreme Court of Mississippi

February 29, 1932

Division B

February 15, 1932

Suggestion Of Error Overruled April 14, 1932.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Mrs. Kate Weyen against Charles Weyen and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

On suggestion of error. Suggestion sustained in part and overruled in part.

For original opinion, see 139 So. 608.

Reversed and remanded. Suggestion of error overruled.

Watkins Watkins & Eager, of Jackson, for appellants.

A minor or an unemancipated child cannot recover in court against the parent.

The wife cannot maintain an action in tort against the husband nor the husband against the wife.

Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388.

The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.

20 R C. L., page 631, par. 20; Wick v. Wick, 192 Wis. 260, 212 N.W. 787; Hewlett v. George, 68 Miss. 703, 9 So. 885.

The logic of the above case is just as applicable to appellants and appellee as it was the facts in the adjudicated case. The court has based its decision on public policy -- that is to say, upon the peace and harmony of the fireside. To hold otherwise, would utterly destroy the home, which is the foundation of our entire government. Would not the same result obtain between a son and his mother, irrespective of the son's age, where the facts show that at the very time of the alleged tort the mother was the recipient and beneficiary of the son's bounty and consideration.

That a judgment might be paid by an insurance company, however, in no wise changes the rule of law which creates the primary liability.

Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1106.

The ordinary position of parent and guardian of a minor, and that of plaintiff seeking to recover from the minor, are positions which cannot both be occupied by one person at one and the same time. Maintenance of the suit is inconsistent with the parent's status or office and the dependence of the minor upon her, and also with the dependence of the law upon her, for the fulfillment of necessary legal and social functions.

Schneider v. Schneider, 152 A. 498.

Where an invitee of an automobile continues to ride without objection at an excessive and unlawful rate of speed, and without protest, any such negligence with respect to such speed on the part of the driver becomes the negligence of the occupant.

1. Berry on Automobiles, 665; I. C. R. R. Co. v. McLeod, 78 Miss. 334; Cowart v. Lewis, 117 So. 531; Chapman v. Powers, 116 So. 609; Y. & M. V. R. R. Co. v. Lucken, 137 Miss. 591, 102 So. 393; McGeever v. O'Bryne, 203 Ala. 266, 82 So. 508; 42 C. J. 853, 527; Kolland v. Brainard, 141 Minn. 119, 169 N.W. 475.

Where the road becomes dangerous or the speed unlawful or excessive, it is the duty of a guest riding in an automobile to use ordinary care to protect himself from injury, and he should caution the driver of the danger, protest against it, and unless delivered from it he should quit the car, if that may be done with safety, or direct that the vehicle be stopped and, when stopped, get out of it.

Clark v. Traver, 200 N.Y.S. 52, 205 A.D. 206, 143 N.E. 736, 237 N.Y. 544; Sheehan v. Coffey, 200 N.Y.S. 55, 205 A.D. 388; Sharp v. Sproat, 111 Kan. 735, 208, P. 613, 26 A.L.R. 1421; State v. Phillinger, 142 Md. 365, 120 A. 878.

In any event the question of the negligence of the appellants was for the jury and the learned trial court erred in giving a peremptory instruction to find for appellee.

Rhodes v. Fullilove, 134 So. 840, 842.

The proof of the unlawful speed of the automobile only made out a prima-facie case and it was for the jury to say whether or not such speed constituted negligence proximately causing or contributing to the plaintiff's damage.

Lucedale Automobile Co. v. Daughdrill, 153 Miss. 707, 123 So. 871.

Appellee's acknowledged written statement that prior to the accident they were riding along "about as usual and about the usual gait," that she "didn't notice anything about my daughter-in-law's driving that was wrong or negligent" is a positive contradiction of her direct evidence and, as a result thereof, appellee was not entitled to a directed verdict on the question of liability.

The admitted statement is more than a mere impeachment of the witness for the reason that the statement having been admitted by the appellee it became of real probative value in a evidentiary manner as a statement against interest.

The learned trial court erred in instructing the jury on behalf of appellee that they should, in awarding her damages, include hospital, surgical, doctor's medical, nurses, X-ray, and other expenses that she incurred because the evidence conclusively shows that these items of expense were incurred by her son one of the appellants and no liability exists on her part therefor.

Chalmers Potter and G. Q. Whitfield, both of Jackson, for appellee.

The court should have excluded the whole statement, even the portions claimed to be contradictory, which it permitted the appellant to introduce, on the ground that the method by which it was procured was such an unconscionable method and took such an undue advantage of the plaintiff, in manufacturing a self serving statement from her, at the time and place and surrounded as she was, to be used thereafter for the purpose of impeaching her without giving her any notice whatsoever as to the purpose of the taking of the statement.

Jones v. A. & V. Ry. Co., 16 So. 380; Thomas v. Rounds, 137 So. 894.

The family relationship other than that of husband and wife, does not prevent the plaintiff from maintaining a suit successfully against the other member of the family.

Thomas v. Carte, 117 So. 635, 218 Ala. 55; United States Casualty Co. v. Drew, 5 F.2d 498; Walsh v. Altoona & L. V. E. Ry. Co., 232 Penn. State Rep. 484.

The better rule seems to be that a wife, riding with her husband, is entitled to rely upon him to look out to a great extent for her safety, and that by so doing she is not chargeable with his negligence. The wife is merely her husband's guest and has no control over her husband, nor his automobile in which she is riding, when he is driving.

Berry on Automobiles (6 Ed.), 502, section 626; Hennington v. Hennington, 221 Mich. 206; Huddy on Automobiles (5 Ed.), 678.

It has been held that where a wife was driving her husband's car and he was riding with her, her negligence was imputable to him.

1. Berry on Automobiles (6 Ed.), sec. 626, page 505.

The right of an infant to bring suit against his father for injuries has been denied; but a recovery by a daughter against her mother has been sustained, as well as an action by a mother against her daughter.

Huddy, Cyclopedia of Automobile Law (1931 Ed.), 2345.

The granting of a peremptory instruction on liability was correct.

Terry v. Smylie, 133 So. 662; Section 5588, Code of 1930; Lucedale Automobile Co. v. Daughdrill, 123 So. 871; Teche Lines v. Bateman, 162 Miss. 404.

The extra judicial statement attempted to be introduced by defendant was of no probative value as evidence, and would not have been, even if she had admitted the contradiction, which she emphatically denied, but only could be introduced for the purpose of impeaching the credibility of the plaintiff in regard to the particular matter stated in the alleged contradiction.

The exclusion of the statement obtained by claim agent Nelson was not mentioned in the motion for a new trial made by the defendants in the lower court, and could not be assigned as error in this court because of that omission.

Carpenter v. Savage, 46 So. 537.

If the sworn statement and the extra-judicial statement, or former statement, can posibly be reconciled the sworn testimony will not be considered to have been impeached.

Smith v. Dauber, 125 So. 102.

Appellant cannot complain of the refusal or modification of an instruction requested by it, if it thereafter requests and receives an instruction embodying an opposite principle of law, or a modified instruction, if it uses the opposite or the modified instruction.

5 Huddy's Cyclopedia of Automobile Law (9 Ed.), page 265.

The duty to remonstrate against excessive speed is not, however, absolute, but depends on the circumstances of the particular case, and usually presents a jury question. Before contributory negligence may be charged against a passenger or guest the reckless driving must have continued long enough to give the guest a reasonable opportunity to protest against it. Where the reckless driving has continued for but a short distance, and there has been but little time for the guest to take precautions for his safety his negligence may be question for the jury.

Sharp v. Sproat, 111 Kan. 735; Benjamin v. Noonan, 277 P. 1045; Brown v. Davis, 257 P. 877; Dowd v. Atlas T. & A. Ser., 187 Cal. 523.

Appellee was clearly entitled to recover as a part of her damages whatever hospital and surgical and medical expenses had been incurred as a necessary result of her injuries, no matter who made the arrangements for said services, and no matter to whom they were charged, if the appellee intends as she swore, she does, to reimburse the party who had already paid the said expenses.

The office of a motion for a new trial also remains the same as before, viz., to specify particular errors...