White v. Weitz

• Decision Date: 05 February 1934
• Docket Number: 31011
• Citation: 152 So. 484,169 Miss. 102
• Court: Mississippi Supreme Court
• Parties: WHITE v. WEITZ et al

152 So. 484

169 Miss. 102

WHITE v. WEITZ et al

No. 31011

Supreme Court of Mississippi

February 5, 1934

Division B

Suggestion Of Error Overruled March 19, 1934.

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

Action by G. B. White against N. Weitz and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Wells, Wells & Lipscomb, of Jackson, for appellant.

We submit that where there has been no plea filed of contributory negligence and contributory negligence is not shown by the plaintiff in the testimony offered by him, the defendants cannot avail themselves of any contributory negligence of the plaintiff.

The defense of contributory negligence is an affirmative defense and must be plead and proved by the defendant in order for the defendant to avail himself of it, unless the contributory negligence is shown by the testimony offered by the plaintiff.

5 Enc. of Pleading and Practice, page 10; 45 C. J. 1115, 1117; McMurtry v. Louisville, New Orleans & Texas Ry. Co., 67 Miss. 601; Morris v. Brookhaven & Pearl River Railroad Co., 88 Miss. 539; Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; Mobile & Ohio R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; Seaboard Air Line R. Co. v. Moore, 228 U.S. 433, 33 S.Ct. 580, 57 L.Ed. 907; Yazoo & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180; Simms v. Forbes, 86 Miss. 412; Miss. Central Railroad Co. v. Hardy, 88 Miss. 732; Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537; Saenger Amusement Co. v. Murray, 128 Miss. 782, 791.

The lower court erred in granting to defendant the instruction which appeared as instruction number five, which instruction is as follows: "The court instructs the jury for the defendants that if you believe from the evidence that G. B. White was driving his car at the time of the accident at a rate of speed in excess of forty (40) miles an hour then the said G. B. White is prima facie guilty of negligence."

New Orleans & G. N. R. Co. v. Walden, 133 So. 241; 1 Elliott on Evidence, par. 90; Gulf M. & N. R. Co. v. Brown, 138 Miss. 39, 102 So. 855; Columbus & G. R. Co. v. Fondren, 145 Miss. 679, 110 So. 365; Davis v. Temple, 129 Miss. 6, 91 So. 689; Columbus & G. R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Natchez Coca-Cola Bottling Co. v. Watson, 133 So. 677, 160 Miss. 173.

The plaintiff offered in rebuttal a witness by the name of Henry Riser, chief deputy sheriff of Hinds county, Mississippi, by which witness the plaintiff undertook to show that the defendant, N. Weitz, on the afternoon of the accident, in the office of Mr. Riser had made a statement as to how the accident happened, contradictory and different to that to which he testified. Upon objection of the defendant, this witness was not allowed to testify.

We do not know of any rule of law at any place that holds that the defendant is exempt from impeachment any more than any other witness; and all of the courts hold that the defendant may be impeached the same as to any other witness by showing that he had made statements different to that to which he has testified.

10 Ency. of Pleading & Practice, page 286; Nutter et al. v. O'Donnell et al., 6 Col. 253; Abram Kelsey v. Belle M. Layne, 28 Kan. 218; 1 Greenl. Ev. (13 Ed.), par. 462.

Powell, Harper & Jiggitts, of Jackson, for appellees.

The giving of defendant's instruction No. 1 on contributory negligence was not reversible error. Under our statute on contributory negligence it was proper.

Section 511, Code of 1930.

As a matter of law it is the duty of the jury to diminish the damages where there is contributory negligence. The statute specifically uses the word "shall."

Section 511, Code of 1930; G. & S. I. R. R. Co. v. Saucier, 139 Miss. 497; Goodman v. Lang, 159 Miss. 204, 130 So. 50; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356.

The court did not err in granting instruction No. 5 for the defendants.

We would call Your Honor's particular attention to the instruction complained of. It does not call into operation a statutory presumption as does the Walden case. The instruction in this case tells the jury that they must find certain facts and that if they then find certain facts, that the law is that on those facts the appellant was prima facie guilty of negligence. This is entirely different from the calling into operation of the statutory presumption condemned in the Walden case.

McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877.

Objection to testimony of Henry Riser was properly sustained.

28 R. C. L. 633, secs. 219, 221; Fulton v. Hughes, 63 Miss. 61; Bonelli v. Bowen, 70 Miss. 142; Miss. Utilities Co. v. Smith, 145 So. 896, 166 Miss. 105, 117; Miss. Central R. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Bradley v. Howell, 161. Miss. 346, 354.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of the First judicial district of Hinds county against appellees to recover the sum of ten thousand four hundred dollars for personal injuries received by him, and damage to his automobile, caused by a collision between appellant's automobile, driven by him, and the automobile of appellee Weitz, driven by him while in the employ and engaged about the business of his principal, appellee Edward J. Moore Sons, Inc. The collision was alleged to have been caused by the negligence of appellee Weitz in operating his car. There was a trial, resulting in a verdict and judgment in favor of appellees; from that judgment appellant prosecutes this appeal.

Appellant was driving his car north on the Pocahontas road, in the country about three miles north of the city of Jackson. Appellee Weitz was going south in his car. A car was parked on the west side of the paved highway. The cars driven by appellant and Weitz, in trying to pass this parked car, collided, resulting in the personal injuries and damages sued for. The evidence demonstrated that the collision of the cars could not have been an accident, but was the result of the sole negligence of one or the other of the drivers.

The evidence for appellant, if true, showed that the collision was caused by the sole negligence of appellee Weitz, while the evidence for appellees, if true, showed that it was the result of the sole negligence of appellant. The case was tried on that theory. That theory was embodied in appellant's instructions to the jury. In returning a verdict for appellees the jury necessarily found that the sole proximate cause of the collision was the negligence of appellant, and therefore appellee Weitz was not guilty of any negligence whatsoever proximately contributing to the collision.

Appellees plead the general issue alone. Appellant assigns and argues as error the giving of the following instruction for appellees: "The court instructs the jury for the defendant that if you believe from the preponderance of the evidence the negligence of the defendant, Weitz, was not the sole proximate cause of the accident but if you further believe from the evidence that any negligence of the plaintiff White contributed to the accident that then if your verdict is in favor of the plaintiff it shall be the duty of the jury to reduce the damages awarded the plaintiff in the same proportion that you believe from the evidence that any negligence of the said White contributed to the accident."

Appellant's argument is that it was error to give this instruction, because appellees did not specially plead contributory negligence. Sections 511 and 512 of the Code of 1930 provide that contributory negligence shall not bar a recovery, but shall diminish plaintiff's damages in proportion to his negligence, and that all questions of negligence and contributory negligence shall be for the jury. Appellant refers to numerous decisions of our court and the courts of other jurisdictions holding that contributory negligence must be specially pleaded when relied on as a defense to the action. It will be observed from the instruction that appellees were not invoking contributory negligence as a defense to the action, but in diminution of the damages, as authorized by our comparative negligence statute (section 511, Code 1930). Conceding, without deciding, that appellant's contention is sound, nevertheless the giving of the instruction was without any harm whatever to appellant, because in rendering their verdict for appellees the jury found that appellant's negligence was the sole proximate cause of the injury. The instruction, therefore, did not come into use at all; the jury never reached the point of using it; there were no damages to be mitigated according to the verdict of the jury.

Appellant assigns and argues as error the giving of another instruction for appellees, which reads as follows: "The court instructs the jury for the defendants that if you believe from the evidence that G. B. White was driving his car at the time of the accident at a rate of speed in excess of forty (40) miles an hour then the said G. B. White is prima facie guilty of negligence."

Section 5569, Code 1930, provides, among other things, that the maximum rate of speed of motor vehicles in the country shall be forty miles an hour. Section 5581, Code 1930, provides that a violation of section 5569 and other sections of the Code regulating the manner of operating motor vehicles shall constitute a misdemeanor punishable by fine or imprisonment or both. Section 5588, Code 1930, provides as follows: "Nothing in this...