Whatley v. Boolas

• Decision Date: 22 November 1937
• Docket Number: 32897
• Citation: 180 Miss. 372,177 So. 1
• Court: Mississippi Supreme Court
• Parties: WHATLEY v. BOOLAS

177 So. 1

180 Miss. 372

WHATLEY v. BOOLAS

No. 32897

Supreme Court of Mississippi

November 22, 1937

Division A

Suggestion Of Error Overruled January 3, 1938.

APPEAL from the circuit court of Warren county HON. R. B. ANDERSON, Judge.

Action by Helen Boolas against John Whatley, doing business as the Hill City Cleaners. From a judgment in favor of plaintiff the defendant appeals. Reversed and judgment for defendant.

Judgment reversed.

Dent, Robinson & Ward and W. W. Ramsay, all of Vicksburg, for appellant.

The court should have sustained the defendant's motion for a mistrial.

We call the court's attention to the fact that the defendant did not ask the court to instruct the jury to disregard the remark concerning the insurance, as the defendant preferred to stand on his contention that the injection of this insurance question was highly prejudicial and erroneous, and that the court should have granted a mistrial.

Herrin, Lambert & Co. v. Bailey, 80 Miss. 340, 92 Am. St. Rep. 605, 31 So. 790; Yazoo City v. Loggins, 110 So. 835, 145 Miss. 793; Galtney v. Wood, 115 So. 120, 149 Miss. 82; Pan-American Petroleum Corp. v. Pate, 126 So. 482, 157 Miss. 822; Miss. Ice & Utilities Co. v. Pearce, 134 So. 166, 161 Miss. 422; Williams v. Larkin, 147 So. 339, 166 Miss. 837; James Stewart & Co. v. Nebry, 266 F. 296; Jessup v. Davis, 211 N.W. 198; Horsford v. Carolina Glass Co., 75 S.E. 541; Curtis v. Ficken, 16 P.2d 978; Boten v. Sheffield lee Co., 166 S.W. 888.

Among the decisions holding that it is error to permit the plaintiff in an action for personal injuries to offer evidence, or make argument to the jury, that the defendant in the action is protected by indemnity insurance are the following:

Standridge v. Martin, 203 Ala. 486, 84 So. 266; SteeleSmith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281; Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103; Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 P. 147; Pierce v. United Gas & E. Co., 161 Cal. 176, 118 P. 700; Wilson v. St. Joe Bloom Co., 34 Idaho 253, 200 P. 884; Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778; Ruwisch v. Knoebel, 233 Ill.App. 526; Martin v. Lilly, 188 Ind. 139, 121 N.E. 443; Ryan v. Trenkle, 199 Iowa 636, 200 N.W. 318; Danville Light, Power & Tr. Co. v. Baldwin, 178 Ky. 184, 198 S.W. 713; Sawyer v. J. M. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Feins v. Ralby, 245 Mass. 228, 28 A. L. R. 511, 139 N.E. 530; Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191, 118 N.W. 925; Grubaugh v. Simon J. Murphy Co., 209 Mich. 551, 177 N.W. 217; Grace v. Anderson, 104 Minn. 476, 116 N.W. 1116; Dore v. Brockman, 138 Mo.App. 231, 119 S.W. 1082; Wilson v. Blair, 65 Mont. 155, 27 A. L. R. 1235, 211 P. 289; Herrin v. Daly, 80 Miss. 340, 92 Am. St. Rep. 605, 31 So. 790; Sutton v. Bell, 79 N. J. L. 507, 77 A. 42; Simpson v. Foundation Co., 201 N.Y. 479, 95 N.E. 10, Ann. Cas. 1912B 321, 2 N. C. C. A. 183; Akin v. Lee, 206 N.Y. 20, 99 N.E. 85, Ann. Cas. 1914A 947, 1 N. C. C. A. 694; Starr v. Southern Cotton Oil Co., 165 N.C. 587, 81 S.E. 776; Stoskoff v. Wicklund, 29 N.D. 708, 193 N.W. 312; Jones v. Sinsheheimer, 107 Or. 491, 214 P. 375; Curran v. Lorch, 243 Pa. 247, 90 A. 62; Duke v. Parker, 125 S.C. 442, 118 S.E. 802; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S.W. 623; Lone Star Co. v. Coates, 241 S.W. 1111; Levinski v. Cooper, 142 S.W. 959; Bianchi v. Millar, 94 Vt. 378, 111 A. 524; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 P. 271; Walters v. Appalachian Power Co., 75 W.Va. 676, 84 S.E. 617, 13 N. C. C. A. 99; Chybowski v. Bucyrus Co., 127 Wis. 332, 7 L. R. A. (N. S.) 257, 106 N.W. 633; Smith v. Yellow Cab Co., 173 Wis. 33, 180 N.W. 125; Remmel v. Czaja, 183 Wis. 503, 198 N.W. 266; James Stewart & Co. v. Newby, 266 F. 287; Jessup v. Davis, 56 A. L. R. 1403.

The plaintiff did not prove her case under the law or evidence.

The jury's verdict must be based on facts, and cannot be based on mere speculation or surmise. Where the jury has not been given sufficient evidence to draw reasonable inferences and to get out of the field of speculation, then it is the duty of the court to direct a verdict for the defendant.

Moore v. Sykes, 167 Miss. 212, 149 So. 789; Love v. N. Y. Life Ins. Co., 64 F.2d 829; Prescott v. Francis, 4 Sm. & M., 12 Miss. 633; Tyson v. Utterback, 122 So. 496, 154 Miss. 381, 63 A. L. R. 188; St. Louis & S. F. Ry. v. Nichols, 138 So. 364, 161 Miss. 695; Hercules Powder Co. v. Callicot, 138 So. 583, 161 Miss. 860; Y. &. M. V. R. R. Co. v. Green, 147 So. 333, 167 Miss. 137; N. O. & N. E. R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 469; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Shell Petroleum Corp. v. Eagle Lbr. & Supply Co., 158 So. 331, 71 Miss. 539; Col. & G. R. Co. v. Coleman, 160 So. 277, 72 Miss. 514; Myers v. Tims, 138 So. 578, 161 Miss. 872; Gough v. Harrington, 141 So. 280, 163 Miss. 393.

The court erred in allowing this case to go to the jury.

18 A. L. R. 1433, annotations; 69 A. L. R. 633.

The verdict is against the weight of the evidence.

Fox v. Matthews, 33 Miss. 433.

The verdict is against the law of the case.

Thames & Thames, of Vicksburg, for appellee.

There can be no question that Ed Boolas was guilty of negligence, and that tiffs negligence was a proximate cause of the injury to Helen Boolas, and the jury, which was the trier of this fact, so found.

Even appellant admits that Mr. Boolas was driving at a rate of speed greater than that allowed by statute.

The law of Mississippi, applicable to this case, is that where the negligence of the defendant is the proximate cause of the injury, or where the defendant is guilty of any negligence which proximately contributes to the injury, the plaintiff is entitled to recover. This principal has become so imbedded in the substantive law of this state, and has been reaffirmed by the decisions of this Honorable Court so often that it would be presumptuous on our part to offer any authorities sustaining this proposition.

White v. Weitz, 169 Miss. 102, 152 So. 484.

All of the instructions given in the case must be read together as one instruction. When that is done, if they are found to embody the applicable principles of law, neither party has any ground of complaint. The fact that the instructions, taken separately, may be incomplete, is harmless to either party, provided, as a whole, they are complete.

Miss. Cent. R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Mutual Life Ins. Co. v. Vaughan, 125 Miss. 369, 88 So. 11; Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Gibson v. Wineman, 141 Miss. 573, 106 So. 826; Cox v. Dempsey, 171 So. 789.

The court was correct in overruling appellant's motion for a mistrial.

While the rule excluding any testimony or statement to the effect that the defendant in a personal injury action is insured should be strictly adhered to and rigidly enforced, and the court should not tolerate evasion or circumvention of it by indirection, still, in applying it, regard must be had to the undoubted right of the plaintiff to cross-examine witnesses to show interest or bias, it was always the right of the party against whom a witness is called to show by cross-examination that he has an interest, direct or collateral, in the result of the trial, or has such a relation to the party that bias would naturally arise, and this right is not to be abridged or denied because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other parties, for the other party takes a chance when he calls the witness.

Miss. Ice & Utilities Co. v. Pearce, 154 So. 163.

When one undertakes to impeach a witness a foundation for said impeachment, or a predicate, as it is commonly called, must be laid. That is, the time, place, and persons to whom the contradicting statements were made must be given to the witness with reasonable certainty, before the examination of the witness might proceed.

Jones on Evidence, secs. 847, 852, 871.

Plaintiff still takes the position that in fairness and in justice to the witness on the stand, he had a right to bring out who Wilson was, what interest he had in the outcome of this case, under what circumstances these statements were obtained, whether or not the statements were colored by his interest, and to permit the witness to be allowed to "reaffirm or explain these statements, their meaning and design, and to give the circumstances and influences under which they were made."

Jones on Evidence, sec. 852.

But the trial court refused to permit the plaintiff to bring out or inquire into these questions, and certainly, by so doing, it committed no error insofar as this appellant is concerned.

This case was fairly and squarely tried in the circuit court of Warren County, Mississippi. A jury of twelve honest citizens of Warren County heard the testimony of the witnesses, saw them on the witness stand, received the law of the case from the trial court through the instructions, and after due deliberation, rendered their verdict in favor of this plaintiff in the sum of three thousand dollars. This was a fair verdict rendered by a fair and impartial jury and we most respectfully submit that there is nothing in this record to warrant this Honorable Court in disturbing this verdict of this jury, and this judgment of the circuit court of Warren County, Mississippi, bearing a second stamp of approval by the trial court by his order overruling appellant's motion for a new trial based upon the same grounds as are here assigned as error.

OPINION

McGehee, J.

This is an appeal from a...