Williams v. Moran

• Decision Date: 16 March 1970
• Citation: 233 So.2d 110
• Parties: Herbert WILLIAMS and United States Fidelity & Guaranty Company v. James A. MORAN. No 45662.
• Court: Mississippi Supreme Court

Page 110

233 So.2d 110

Herbert WILLIAMS and United States Fidelity & Guaranty Company v. James A. MORAN.

No 45662.

Supreme Court of Mississippi.

March 16, 1970.

White & Morse, Gulfport, for appellant.

Norman Breland, Holleman & Necaise, Gulfport, for appellee.

David Cottrell, Jr., and Eaton, Cottrell, Galloway & Lang, Gulfport, for Illinois Cent. R. Co.

RODGERS, Justice.

Appellee, James A. Moran, brought suit in the Circuit Court of Harrison County, Mississippi, against the Illinois Central Railroad and Herbert Williams seeking damages for personal injury arising out of a motor vehicle collision. Appellee recovered a judgment against appellant, Williams, in the sum of $6,200, from which appellant, Williams, appealed without supersedeas to this Court. No recovery against the railroad was allowed by the jury verdict.

After rendition of the judgment above mentioned, appellee brought garnishment proceedings against appellant, United States Fidelity & Guaranty Company, hereafter referred to as U. S. F. & G. Co., alleging that it had issued a policy of insurance in favor of appellant, Herbert Williams, and that the judgment of the court at the trial was an indebtedness within in the contemplation of the garnishment statutes, and that, therefore, U. S. F. & G. Co. was indebted to appellant, Williams. U. S. F. & G. Co. answered, denied that it was indebted, but admitted that it had issued its liability policy of insurance to Herbert Williams with a $5,000 limit.

The circuit court ruled that the garnishee-defendant, U. S. F. & G. Co., was indebted to Herbert Williams, and that, therefore, it was subject to garnishment proceedings by appellee, which resulted in the court's judgment that U. S. F. & G. Co. was indebted to appellee, James A. Moran, in the sum of $5,000, plus interest and costs. U. S. F. & G. Co. then filed its supersedeas bond and has attempted to perfect its appeal in this proceeding.

The appellants, U. S. F. & G. Co. and Herbert Williams, did not appeal against Illinois Central Railroad. Appellee, Moran, did request issuance of summons to the railroad by the Clerk of this Court, which was subsequently issued. The Illinois Central Railroad then filed a motion to dismiss as to it in this Court. This motion was sustained on November 7, 1969.

This controversy results from an accident which occurred at approximately 9:20 p. m. on April 25, 1967, in the city of Gulfport, when an automobile driven by Herbert Williams was struck by an Illinois Central Railroad train, with the vehicle driven by Williams subsequently striking the automobile driven by appellee, Moran. The collision occurred at the intersection of the railroad tracks and 'Banana Terminal Road' between the east and west piers at the Port of Gulfport. Banana Terminal Road runs east and west and connects the extensions of 27th Avenue and 30th Avenue, north-south thoroughfares in Gulfport. The railroad track runs north and south through Banana Terminal Road. The Illinois Central Railroad train was proceeding northerly, backing up with its cars to the sough of it, approaching the Banana Terminal Road from the fouth prior to the collision.

After the accident, the evidence reflects that the train was positioned so that three-fourths (3/4) of the engine had crossed Banana Terminal Road. Appellee's automobile was found to be on the south side of the road headed in an easterly direction and appellant Williams' automobile was in a north-south direction with the front end of appellant's automobile imbedded in the left rear of appellee's automobile.

The record includes several photographs of the crossing taken in daylight. The appellee called numerous witnesses at the trial. Howard Leroy Hobbs, Chief of Police, picked up the appellee and took him home after the accident. Appellee was complaining of pain in his chest and requested nitroglycerin tablets when he arrived at his home.

Appellee gave his version of the accident. He testified that it was a clear night, that he was travelling down Banana Terminal Road to the east; that there were banana trucks parked along the road on the right-hand side. He stated that he was proceeding at about five to ten miles an hour; that as his car entered upon the track he happened to look up and see the engine approaching him. He backed his car and just as the front end of the car left the track the train struck the Williams car. The impact threw the Williams car against the appellee's car and the appellee immediately developed chest pain. Appellee testified that the bell on the train was not ringing, that the whistle was not blowing, and that there were no lights on the engine.

Herbert Williams, defendant, testified that on the night in question he was operating a 1961 Chevrolet station wagon. Appellant was familiar with Banana Terminal Road and knew that the railroad tracks crossed the road. The night was clear and the road was unlighted. Appellant testified that he had crossed the railroad tracks many times, but that there was no way to see the track until the vehicle was on it. Appellant testified that he was travelling at approximately fifteen (15) miles an hour, that he saw the lights of an oncoming car, and that they suddenly flashed dim and he noticed some sort of 'off-maneuvering' and that he focused his attention on this car. He was concerned that the car might cross to his side of the road. He was not aware when he approached the track and was not aware that he was on the track until he had actually gotten upon it. The first time that appellant was aware of the presence of the train was when his vehicle was corssing the track and he looked and saw it. He testified that the train whistle was not blowing, the bell was not ringing, and when his car was struck, the bell started ringing and lights flashed on. Appellant's car was struck by the engine on the left rear. The engine went off the track and the car was still in gear and it continued to run until it struck the Moran vehicle.

When the defendant Williams' motion for a directed verdict was overruled, the railroad offered its evidence. The engineer and switchman, agents of the railroad, were introudced as witnesses and they testified that the railroad engine was equipped with headlights in front and in the rear of the engine and that they were lighted. They testified that the engine was equipped with a legal whistle and a legal bell and that the whistle was blowing and the bell was ringing. They testified that all of the members of the train crew saw the Williams automobile and hollered at the driver. They said that although they were travelling slowly and the engineer put the engine in reverse, it could not be stopped before the collision.

After the railroad rested its defense, the appellant again renewed his motion for a directed verdict. The judge overruled the motion and submitted the case to the jury. The jury returned a verdict in favor of the plaintiff against Herbert Williams for $6,200, but not against the railroad. The defendant made a motion for a new trial and when this motion was overruled he appealed.

Herbert Williams and U. S. F. & G. Co., appellants, assign as errors the following: (1) That the court erred in overruling appellant's motion for a mistrial; (2) that the court erred in overruling appellant's motion for a directed verdict; (3) that the court erred in the garnishment proceeding in holding that U. S. F. & G. Co. was indebted to appellee.

Appellant contends that the statements made by police officer Ferguson, mentioning insurance, were highly prejudicial to appellant, and were grounds for mistrial, and that the trial court erred in overruling appellant's motion for a mistrial.

Appellant also contends that the appellee did not make a prima facie case against him, and therefore, the court erred in overruling appellant's motion for a directed verdict.

Appellant further contends that the court erred in holding that U. S. F. & G. Co. was indebted to appellant and that appellee could bring garnishment proceedings against U. S. F. & G. Co.

I.

Appellant seriously contends that the question of insurance was erroneously injected into the trial; that prejudice resulted; that the trial court should have sustained its motion for a mistrial.

This issue arose as follows: Officer Ferguson, a witness for appellee, who had investigated the scene of the accident, was asked on cross examination by counsel for co-defendant railroad:

'Q. Did you consider the accident of sufficient significance to make some photographs?

'Q. Yes, sir. I would say, that at the time the only thing we made it for was insurance, because it was not on city property, it was on state property, and Chief Hobbs told us to work it as an insurance accident and that was all, we couldn't make any charges.'

At this point a motion was made by counsel for the defendant Williams that the jury be retired from the courtroom. The jury was thereupon retired from the courtroom and the following proceedings were had in the absence of the jury:

'BY COUNSEL FOR THE APPELLANT:

'Now comes the defendant and moves the court for a mistrial and for grounds would show that the question of insurance has been injected in the trial of the case by the witness Ferguson.

'BY THE COURT:

'This was stated by the witness, really not in response to a question. The interrogator did not, I am sure, expect anything like that to come out. It was a voluntary statement by the witness. He said he was investigating it like an insurance case. He didn't exactly say that there was insurance involved in the case. * * * I don't think we should be so strict about that rule when there is no bad faith involved, either by the attorney or by the witness. Overrule the motion for a mistrial.'

This Court has passed upon this question in several cases with reference to inadvertent replies made by witnesses. The case of City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342 (1958), controls the case at bar. Reed held...