Opinion
No. 43074.
October 5, 1964.
1. Motor vehicles — negligence — crossing over center line of highway.
Evidence was ample to sustain charges of negligence of southbound truck driver whose vehicle crossed center line and crashed into northbound automobile, with the result that automobile driver and his baby, a passenger, were killed.
2. Continuance — absent witness — refusal, not an abuse of discretion.
Refusal to grant continuance of automobile accident case on ground that a witness, who would testify for defendant as to sobriety of deceased truck driver, was ill was not an abuse of discretion where testimony showed that it was doubtful if witness' condition would be much better in future, his testimony was cumulative and jury verdict of negligence was consistent with overwhelming weight of evidence. Sec. 1520, Code 1942.
3. Evidence — accident report — admissible for impeachment purposes.
Report made by highway patrolman who had investigated accident and who had testified at trial that most of the debris was in the west lane of traffic was hearsay but was admissible for purpose of impeachment of officer's testimony indicating that accident happened in defendant's lane of travel. Sec. 8170, Code 1942.
4. Instructions — considered together — harmless error.
Deficiencies in certain instructions which could not have misled jury when all instructions were considered together were not harmful errors and did not require reversal of judgment. Rule 11, Supreme Court Rules.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Leake County; O.H. BARNETT, J.
W.W. Pierce, Jackson, for appellant.
I. The trial court committed prejudicial error in overruling the motion of the defendant in the trial court, appellant in this court, for a continuance on account of the absence of Jack Ellis because of illness, a material witness for defendant.
II. The trial court committed prejudicial error in admitting into evidence over the objections of the defendant, the accident report of H.A. Calhoun, Highway Patrolman.
III. The trial court committed prejudicial error in granting the plaintiff in the trial court, appellee in this court, the following instruction: "The Court instructs the jury for the plaintiff that the law is that when two people operating motor vehicles approach each other traveling upon the highway in opposite directions, that it is the duty of each to turn his motor vehicle reasonably to his right side; and if you believe from the preponderance of the evidence that John H. Oliphant on meeting Jerrel Donald in this case driving his automobile and that the said Oliphant failed to reasonably turn his automobile to his right side of the highway, and that thereby the automobile of said Oliphant struck and wrecked the automobile which the said Donald was driving, causing the death of Jerrel Donald and Jackie Lynn Donald and injuries to Linda Donald, then it is your sworn duty to find for the plaintiff."
IV. The trial court committed prejudicial error in granting to plaintiff in the trial court, appellee in this court, the following instruction: "The Court instructs the jury for the plaintiff, Linda Donald, that if the jury believes from a preponderance of the evidence that on the occasion when Jerrel Donald was killed, the defendant, John Oliphant, drove his automobile from his own right lane across the center line into his left lane in a reckless and negligent manner and caused it to collide with the automobile driven on said highway by the said Jerrel Donald (while the said Donald was driving his automobile in a careful and cautious manner and observing all the rules and regulations of the road, and while the said Donald had his car under control) thereby causing the death of Jerrel Donald and Jackie Lynn Donald and injuries to Linda Donald, the jury should find for the plaintiff against the defendant, and the form of your verdict should be: "We the jury find for the plaintiff, Linda Donald, against the defendant, and assess her damages in the sum of $ ____."
V. The trial court committed prejudicial error in granting the plaintiff in the trial court, appellee in this court, the following instruction: "The Court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that John H. Oliphant, while under the influence of intoxicating liquors, drove his automobile on the highway in a reckless, negligent and wanton manner, and caused said automobile to collide with the automobile driven on said highway by Jerrel Donald, while the said Donald was driving his automobile in a careful manner, thereby causing the death of Jerrel Donald and Jackie Lynn Donald and injuries to Linda Donald, the jury should find for the plaintiff."
Collation of authorities: Graham v. Brummet, 182 Miss. 580, 181 So. 721; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Ivy v. State, 229 Miss. 491, 91 So.2d 521; McDonough Motor Express v. Spiers, 180 Miss. 78, 76 So. 723, 117 So. 655; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Ross v. Louisville N.R. Co., 181 Miss. 795, 181 So. 133; State v. Vollm, 96 Miss. 651, 51 So. 275; Secs. 1690, 8166 et seq., Code 1942.
Nelson Cauthen, Canton, for appellee.
I. Cited and discussed the following authorities. Bolin v. State, 209 Miss. 866, 48 So.2d 581; Bone v. State, 207 Miss. 20, 41 So.2d 347; Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Dixie Drive It Yourself v. Matthews, 212 Miss. 190, 54 So.2d 263; Eslick v. State, 238 Miss. 666, 119 So.2d 355; Henry v. Collins (Miss.), 158 So.2d 28; Hines v. McCullers, 121 Miss. 666, 83 So. 734; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Secs. 1520, 8170, Code 1942; Alexander, Mississippi Jury Instructions, Secs. 705, 787.
This appeal by the defendant below from judgment awarding plaintiff damages in an automobile collision raises several questions, the principal one being whether a written accident report made by an investigating officer, which is inconsistent with the officer's testimony at trial, is admissible for purposes of impeachment.
(Hn 1) Mrs. Linda Donald filed suit against the administrator of the estate of John H. Oliphant for the wrongful death of plaintiff's husband, Jerrel Donald. The accident occurred a mile south of Carthage on a paved highway. Oliphant was driving alone in a pickup truck, going south. Jerrel Donald was driving an automobile north with his wife and baby as passengers. Oliphant, Jerrel Donald and the baby were killed in the collision. It was alleged by the plaintiff that Oliphant was drunk and drove his truck across the center line of the highway into his left lane so as to collide headon with the Donald automobile when the Donald automobile was being driven on its proper side of the highway. Several witnesses testified that Oliphant had been drinking prior to the accident. Two eye witnesses testified that Oliphant drove his vehicle across the center line directly into the path of the Donald vehicle. The only testimony favorable to the defendant was the fact that the front ends of the two vehicles came to rest on the west side of the center line of the highway and most of the debris was on that side of the highway. This was explained by the eye witnesses who testified that when the two vehicles collided, the front ends rose into the air and fell across the center line and came to rest with the front ends in the west lane of the highway. The proof was ample to sustain the charges of negligence. In our view the evidence was overwhelming in favor of the plaintiff.
(Hn 2) Appellant's first assignment of error complains of the action of the trial court in overruling a motion for a continuance. The case was called on a Monday and set for trial the following Friday. When court convened Friday morning, the motion for a continuance was made on the ground that Jack Ellis, who was a witness for defendant, was present in court when the case was set, but was ill and in the hospital on Friday morning with a heart condition; that Jack Ellis would testify he saw Oliphant a few minutes before the accident occurred and Oliphant was sober. The testimony offered on the hearing of the motion tended to show that it was doubtful if Jack Ellis's condition would be much better in the future. We hold that the lower court did not abuse its discretion in overruling the motion for a continuance because: (1) the testimony of Jack Ellis would have been cumulative since other witnesses testified Oliphant was sober prior to the accident, Bolin v. State, 209 Miss. 866, 48 So.2d 581; and (2) the verdict of the jury was consistent with the overwhelming weight of the evidence and we cannot affirmatively say that overruling the motion resulted in injustice. Section 1520, Mississippi Code of 1942.
(Hn 3) Appellant contends the trial court committed prejudicial error in admitting over objection a report of the accident made by H.A. Calhoun, a highway patrolman who investigated the accident. Patrolman Calhoun testified that the front ends of the two vehicles and most of the debris was in the west lane of traffic. His testimony tended to prove that Oliphant was on his right side of the highway. On cross examination he was questioned concerning an accident report he made and filed with the Department of Public Safety. This report was admitted in evidence over defendant's objection. The report contained a diagram drawn by Patrolman Calhoun which showed that Oliphant left the west lane of traffic and drove across the center line into the northbound traffic lane and that the vehicles collided in the east lane and came to rest with the front ends in the west lane. Appellant contends that this accident report was not admissible under Section 8170, Mississippi Code of 1942. Said Section 8170 applies only to reports required to be filed by parties involved in accidents. The statute does not require the officer to make a report. We hold that even though a part of the accident report was hearsay on the part of Calhoun, it was admissible for the purpose of impeachment. The Supreme Court of Texas, considering a statute similar to ours with reference to accident reports, held that an officer's report, required under the statute of that state, was admissible for the purpose of impeaching the officer's testimony. Brown Root, Inc. v. Haddad, 142 Tex. 624; 180 S.W.2d 339. Also see Austin v. Portland Traction Co., 181 Or. 470, 182 P.2d 412. Compare Carruth v. Griffis, 220 Miss. 541, 71 So.2d 478, where it was held an officer's map based on what others told him was not admissible on examination of the officer in chief.
(Hn 4) Three of appellant's assignments of error are based on the granting of certain instructions on behalf of the appellee. There are deficiencies in the instructions complained of, but we cannot say that the jury was misled when all of the instructions are considered together. The issue presented to the jury on the question of liability was whether Oliphant crossed the center line and caused his vehicle to be operated on the wrong side of the highway so as to collide with the Donald vehicle. It is hardly possible that the jury could have been misled by the deficiencies in the aforesaid instructions. Therefore, we hold that the errors in the instructions were not harmful within the meaning of Rule 11, Revised Rules of the Supreme Court.
RULE 11. No Reversal for Harmless Error. No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.
Affirmed.
Kyle, P.J., and McElroy, Jones and Brady, JJ. concur.