Woods v. Nichols, 52684

• Decision Date: 30 June 1982
• Docket Number: No. 52684,52684
• Parties: Jerry A. WOODS, William C. Boteler, 1 Alfred E. Corey, 2 Executor of the Estate of Russell D. Corey and Charles T. Kyles, Nancy Anderson and Larry T. Brooks v. Ronald D. NICHOLS.
• Court: Mississippi Supreme Court

Page 659

416 So.2d 659

Jerry A. WOODS, William C. Boteler, ¹ Alfred E Corey, ² Executor of the Estate of Russell D. Corey and Charles T. Kyles Nancy Anderson and Larry T. Brooks v. Ronald D. NICHOLS.

No. 52684.

Supreme Court of Mississippi.

June 30, 1982.

Rehearing Denied July 28, 1982.

Wells, Downey & Wicker, John H. Downey, Watkins & Eager, Thomas M. Murphree, Jr., Heidelberg, Woodliff & Franks, Sam E. Scott, John B. MacNeill, Jackson, for appellants.

King & Spencer, Larry Spencer, Daniel, Coker, Horton & Bell, Terry R. Levy, Jackson, for appellee.

En Banc.

WALKER, Justice, for the Court on Parts I, II and III.

ROY NOBLE LEE, Justice, for the Court on Parts IV and V.

This is an appeal from the Circuit Court of the First Judicial District of Hinds County wherein appellee, Ronald D. Nichols, was awarded the sum of $550,000 as a result of an automobile accident. The suit grew out of an accident that occurred on January 31, 1979, on U. S. Highway 49 approximately two miles north of Flora. At that time Highway 49 was a two-lane highway.

The accident occurred on what is known as the Big Black River Bottom, a level stretch of highway with three bridges. The accident occurred between the first and the second bridge approximately one-fourth of a mile north of the first bridge. It is undisputed that this area is straight and flat and that there are no obstructions to a person's view for more than a mile.

Plaintiff Nichols was driving a United Parcel van in a northerly direction along Highway 49. Defendant, Larry Brooks As Nichols and the defendant, Brooks, approached the parked tractor-trailer from opposite directions--Nichols going north and Brooks coming south--Brooks suddenly veered from the southbound lane of traffic into Nichols' northbound lane and collided with the front end of Nichols' United Parcel Service van. The impact almost totally demolished the Nova, and the impact to the cab of Nichols' van was so severe that the van flew into the air and landed on the highway on its left side. The sausage truck driven by the defendant, Kyles, then struck the United Parcel Service van as Kyles veered to the left in an attempt to avoid colliding with the van.

was driving a Chevrolet Nova in a southerly direction meeting the plaintiff. The Nova was owned by the defendant, Nancy Anderson. The accident occurred in the northbound lane of the highway across from and approximately at the rear end of a disabled tractor-trailer parked facing south on the west side of the highway. The rear wheels of the tractor-trailer rig extended approximately eighteen inches onto the paved portion of the highway. The defendant, Charles Kyles, was following the plaintiff Nichols in a Boteler and Corey Sausage delivery truck.

As a result of the accident plaintiff Nichols sustained serious and permanent injuries. Plaintiff contended in his suit that the operator of the Nova automobile, the sausage delivery truck and the parked tractor-trailer were negligent, and, in combination, directly and proximately caused his injuries and that all drivers, and other defendants, were jointly and severally liable.

PART I.

LIABILITY OF LARRY BROOKS

The evidence and testimony in this case is undisputed that the Nova vehicle driven by Larry Brooks suddenly veered across the center line into the northbound lane of traffic and collided head on with the United Parcel van driven by the plaintiff Nichols.

Brooks does not question his liability in his brief, but does contend that the trial court erred in failing to grant him a mistrial following alleged prejudicial comments by the court while he was being cross-examined. The brief charges that every party in the case, with the exception of Anderson, sought to blame the accident entirely on him. The brief points out that Brooks was questioned and requestioned about incidental details, distances, times, places, etc. An objection was interposed by plaintiff's counsel to the questioning suggesting that such repetitious questioning had no probative value. Whereupon, the trial judge, referring to Brooks' testimony, stated that the court did not blame counsel for Brooks' response, "because the more we ask these questions, the different answers we are getting, and we're getting nowhere with them."

We have carefully considered this assignment of error and are of the opinion that when the statement is taken in the context of all of the preceding questioning and the fact that Brooks' negligence was proven overwhelmingly, that although it was unfortunate the comment was made, it does not constitute reversible error. With or without the trial court's comment, the plaintiff was entitled to a peremptory instruction against Brooks on the evidence in this record.

AFFIRMED AS TO THE LIABILITY OF LARRY BROOKS.

PATTERSON, C. J., SUGG and SMITH, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PART II.

LIABILITY OF NANCY ANDERSON

The appellee Nichols charged in his declaration that Nancy Anderson was the owner of the Nova and Larry Brooks was driving the automobile with the full permission and consent of Nancy Anderson and as her agent.

It is undisputed that Mrs. Anderson owned the Nova automobile which was being driven by Brooks on a trip to Jackson Mrs. Anderson was a resident of Chicago, Illinois, and had bought the Nova for her personal use while on visits to Mississippi. She had first left the vehicle with her mother who resided at a residence on Lynch Street in Jackson. After her mother's death, she left the Nova with her aunt, Mrs. Maybelle Johnson, who lived in Yazoo City. Nancy Anderson owned rental property in Yazoo City which Mrs. Johnson looked after and collected rents from the tenants. Mrs. Anderson also owned the mother's former home on Lynch Street in Jackson.

from Yazoo City. Brooks was accompanied by his aunt, Mrs. Maybelle Johnson. Mrs. Maybelle Johnson was also the aunt of Nancy Anderson. Nancy Anderson and Brooks were cousins.

It is undisputed that Mrs. Maybelle Johnson had two children and a grandchild living at the Lynch Street house. These family members did not pay rent to Mrs. Anderson.

There was also vague testimony from Brooks that there were several students from Jackson State University who lived on the property as renters.

Mrs. Anderson testified, by deposition, that Mrs. Johnson only collected rents on the Yazoo City properties and that she did not collect rents on the Lynch Street property. She further testified that Mrs. Johnson frequently went to Jackson to visit her children who lived at the Lynch Street address.

Mrs. Anderson described her arrangement with Mrs. Johnson's children as being one whereby the children did not pay rent on the property and that any rent that they collected from others was to be used by them for the upkeep of the house.

In any event, there is no evidence in the record to support a finding that Mrs. Johnson was on her way to the Lynch Street property in Jackson to collect rents for Mrs. Anderson on the day of the accident. The only testimony with regard to the collection of rents came from the defendant, Brooks, who testified that he and Mrs. Johnson went to the Lynch Street property on Wednesday or Thursday of the week before the wreck to collect rent. Brooks also testified that in addition to driving Mrs. Johnson to Jackson at her request, he was going to attempt to take care of some personal matters between 3:00 and 5:00 that afternoon. When asked what kind of work he planned to do at 504 Lynch Street, his reply was "Ordinarily, she was going to do some sweeping and do some washing, dishes, furniture, moving around the furniture, checking on lighting fixtures. My tasks were if I knew how to put in, hookup a light, put in a light, go out into the yard and pick up garbage. And in January I was going to be doing some yard cleaning, primarily, and doing some climbing up in the attic and sorting through old things and getting a lot of the old furniture or old papers out of the attic in different rooms."

If there is any liability on the part of Mrs. Anderson for the injuries sustained by the plaintiff Nichols, it must necessarily be predicated upon an agency relationship existing between Mrs. Anderson and Mrs. Johnson and the sub-agency relationship of Brooks as the driver of the Nova at the request of Mrs. Johnson, who could not drive. ³

Therefore, the underlying question with regard to the liability of Mrs. Anderson is whether, under the facts presented by this record, there was a jury issue made as to whether Mrs. Johnson was about the business of Mrs. Anderson, pursuant to Mrs. Anderson's authorization, either express or implied, or whether Mrs. Johnson was going to Jackson for her own personal reasons, such as visiting her children who lived at the Lynch Street address when the accident occurred and in which Mrs. Johnson was killed.

There is no evidence of any agreement between Mrs. Anderson and Mrs. Johnson with respect to the Lynch Street property. To the contrary, Mrs. Anderson testified that Mrs. Johnson did not collect rents from The burden of proving an agency relationship is upon the party asserting it, in this case the plaintiff Nichols. U. S. Fidelity & Guaranty Co. v. Arrington, 255 So.2d 652 (Miss.1971); Highlands Ins. Co. v. McLaughlin, 387 So.2d 118 (Miss.1980). It is an elementary principle of law in this State that a mere permissive user of a motor vehicle does not in and of itself create an agency relationship; and, there is no vicarious liability of the automobile owner for the permissive user's negligently caused injuries and damages to a third person. Atwood v. Garcia, 167 Miss. 144, 147 So. 813 (1933); Merchants Co. v. Tracey, 175 Miss. 49, 166 So. 340 (1936).

the Lynch Street property nor look after it. The testimony of Brooks that ordinarily she would "do some sweeping and do some washing, dishes, moving around the furniture, checking on light fixtures" and that he would pick up...