Wild v. Bass, No. 43373

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: INZER
• Citation: 252 Miss. 615,173 So.2d 647
• Decision Date: 05 April 1965
• Docket Number: No. 43373
• Parties: Mrs. Archie E. WILD v. Gary Lynn BASS, a Minor.

Page 647

173 So.2d 647 252 Miss. 615 Mrs. Archie E. WILD
v.
Gary Lynn BASS, a Minor. No. 43373. Supreme Court of Mississippi. April 5, 1965.

[252 MISS 617]

Page 648

Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellant.

[252 MISS 619] Walter L. Nixon, Jr., Biloxi, Donald W. Cumbest, Pascagoula, for appellee.

INZER, Justice:

Appellee, Gary Lynn Bass, a minor, suing by and through his father, Fred R. Bass, as next friend, brought this suit in the Circuit Court of Jackson County against appellant, Mrs. Archie E. Wild, and Avon Products, Inc. Appellee alleged in his amended declaration that he was injured when appellant negligently allowed her automobile to be propelled or roll backwards onto and over appellee. The declaration further charged that appellant was the agent, servant or employee of Avon Products, Inc., and was acting in the scope of her employment. Appellant answered the declaration and denied that her automobile ran over the appellee and that he had been injured as a result of any negligence on her part. She further denied that she was the agent, employee or servant of Avon Products, Inc. Avon Products, Inc., also answered and denied that appellant was their agent, servant or employee, and that their relationship with her was one of vendor and vendee or independent contractor.

Trial was had upon the issues raised by the pleadings, and at the conclusion of appellee's case the trial court sustained a motion on behalf of Avon Products, Inc., for a peremptory instruction. There was no appeal from this ruling of the court, and Avon is no longer a party to this litigation.

The trial court overruled a similar motion on behalf of appellant and submitted the issue to the jury. The jury [252 MISS 622] returned a verdict in favor of appellee and assessed the damages in the amount of $25,000. Judgment was entered accordingly, and from this judgment Mrs. Wild has appealed to this Court.

Appellant contends the trial court was in error in overruling her motion for a directed verdict or peremptory instruction. We have determined that the evidence on behalf of appellee was sufficient to submit this cause to a jury.

Appellant and appellee were the only eyewitnesses to the accident. Appellee at that time was only three and a half years of age, and, of course, not old enough to testify. Appellant was called as an adverse witness, and according to her testimony she went to the home of appellee's father and mother about 11:00 A.M. on November 7, 1961, for the purpose of demonstrating Avon products. She drove her Chevrolet automobile into the driveway that led from

Page 649

the street to the house, and when she was about 300 feet from the house she saw appellee approaching from the left side of the driveway. He was at that time about three or four feet from her car. She stated that she stopped her car, left the motor running, put on the emergency brake, and then either got out or started to get out of the car. She then said that at the time she stopped the car appellee was near the back fender and was patting the fin of the car. The car started moving backward, and when it did she could not see the child, so she told him to run; that in her opinion the car moved only about one foot. She then put the car in parking gear, got out and went around the back of the car and found appellee lying on his stomach near the edge of the road. Her explanation of the reason he was on the ground was that he must have tripped on something and fallen. She said she was frightened, and she picked up the child and carried him in her arms into the house where she saw Mrs. Alene Bass, mother of appellee.

[252 MISS 623] Mrs. Bass testified that when appellant came to the house she had the child in her arms and told her that she backed over the little boy. Mrs. Bass said the child was sobbing, and appellant wanted to take the child to a doctor. After a short delay while Mrs. Bass dressed, appellant drove Mrs. Bass and the child to the Keesler Air Force Base Hospital, where appellee was examined by the doctor on duty. No X-rays were taken at this time. Appellant then drove Mrs. Bass, appellee, and Mr. Bass, whom they picked up at the base, back home. Mrs. Bass further testified that she saw marks upon the child's back which she described as tire marks, and that she and her husband carried him back to the hospital that afternoon and had X-rays made. These X-rays were not introduced in evidence in this case, and the doctor who examined the child did not testify.

In considering whether appellant was entitled to a peremptory instruction, the evidence must be treated as proving every fact favorable to appellee's case which is established either directly or by reasonable inference. Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820 (1954); Farish v. Canton Flying Services, Inc., 214 Miss. 370, 58 So.2d 915 (1952); Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175 (1925). We are of the opinion that the evidence on behalf of appellee was sufficient to submit the issue to the jury and that the court did not err in overruling appellant's motion for a peremptory instruction.

Appellant next contends that the trial court was in error in granting the several instructions requested by appellee. The instructions...