Opinion
No. 42542.
February 4, 1963.
1. Instructions — damages — plaintiff's instructions proper.
Where defendant who had counterclaimed did not request instructions in accordance with counterclaim or contributory negligence statute, plaintiff was under no duty to do so, and trial court properly instructed jury that if it found for the plaintiff, it should take into consideration all damages sustained by plaintiff in intersectional automobile collision, including full and reasonable damages for physical pain and mental anguish. Secs. 1454, 1483.5, 1530, Code 1942.
2. Instructions — a defendant who desires instructions on his counterclaim must request them.
3. Instructions — a judge cannot instruct jury on his own motion.
4. Instructions — contributory negligence — duty of defendant to request in accordance with contributory negligence statute.
The defendant has a duty to request instructions in accordance with the contributory negligence statute which requires the jury to diminish plaintiff's damages in proportion to the amount of negligence attributable to the plaintiff. Sec. 1454, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Forrest County; STANTON HALL, Judge.
M.M. Roberts, Hattiesburg, for appellant.
I. The instructions given to the plaintiff erroneously presented this lawsuit to the jury. Dix v. Brown, 41 Miss. 131; Gulf, M. N.R. Co. v. Walters, 161 Miss. 313, 134 So. 831; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Moore v. Herman Guy Auto Parts Inc., 230 Miss. 189, 92 So.2d 373; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 819; St. Louis S.F.R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Sec. 1483-5, Code 1942.
II. The defendant was lawfully in the intersection first and had the right of way and was free from negligence. Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
Holmes Dukes, Heidelberg, Sutherland McKenzie, Hattiesburg, for appellee.
I. The verdict of the jury was supported by the evidence and is conclusive on appeal. Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102; Roberts v. Interstate Life Ins. Co., 232 Miss. 134, 98 So.2d 632.
A. Evidence showing that Mrs. Ouille failed to keep a proper lookout.
B. Evidence showing that Mrs. Ouille failed to yield the right of way as required by law and that Mrs. Saliba entered the intersection first. Jefferson v. Pinson, 219 Miss. 427, 69 So.2d 234.
II. The Court correctly instructed the jury as to the standards of care required of the party and as to the legal principles involved. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Basque v. Anticich, 177 Miss. 855, 172 So. 141; Co-Efficient Foundation v. Woods, 171 F.2d 691; Jefferson v. Pinson, supra; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Mason v. United Gas Corp., 222 Miss. 311, 75 So.2d 736; Morrell Packing Co. v. Branning, 115 Miss. 376, 124 So. 356; Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508; Pringle v. State, 108 Miss. 802, 67 So. 455; Thomas v. Weeks, 115 Miss. 602, 76 So. 559; Secs. 1454, 1530, Code 1942; 2 Alexander, Mississippi Jury Instructions, Secs. 3498, 3512 pp. 157, 163.
III. The evidence submitted to the jury was proper and correctly presented the facts of the case.
Appellee, plaintiff below, sued appellant, defendant below, for $30,000 damages for personal injuries sustained in an intersection automobile accident. Defendant below filed a counterclaim for $3,000 damages. Judgment was entered for appellee on jury verdict for $15,000. Defendant appealed.
The evidence justified the verdict in favor of appellee, and there was no reversible error in the admission of the testimony. It would serve no useful purpose to state the facts. In our view, the jury reached the correct result.
(Hn 1) The only assignment of error justifying discussion involves the instructions for appellee. These instructions told the jury that if it found for plaintiff it should take into consideration all damages sustained by plaintiff, including full and reasonable damages for physical pain and mental anguish. Appellant contends that it was error to instruct the jury to award full damages to appellee in view of the counterclaim filed by appellant.
The statute authorizing counterclaim is Sec. 1483.5, Miss. Code 1942, and the pertinent part is as follows:
"If it appears at the trial that the demand of the defendant is valid and equals the demand of the plaintiff, the judgment shall be that the plaintiff take nothing by his writ and pay the costs of court. If it appears that the plaintiff's demand is valid and exceeds that of the defendant, the plaintiff shall have judgment for only that portion of his demand which exceeds the valid demand of the defendants, with costs of court, but if it appears that the demand of the defendant is valid, and exceeds the demand of the plaintiff, the defendant shall have judgment for the amount by which his claim exceeds the claim of the plaintiff, with costs of court."
Appellant did not request any instructions in accordance with the counterclaim statute except one on the form of the verdict. It is argued, in effect, that when a defendant files a counterclaim the plaintiff must request instructions in accordance with the above quoted part of the counterclaim statute. This is not the law. (Hn 2) If appellant desired instructions on her counterclaim, she should have requested them. (Hn 3) The judge cannot instruct the jury on his own motion. Sec. 1530, Miss. Code 1942.
Sec. 1454, Miss. Code 1942, is the contributory negligence statute and requires the jury to diminish plaintiff's damages in proportion to the amount of negligence attributable to the plaintiff. This Court has consistently held that it is not error for the plaintiff to be given instructions without telling the jury that damages should be diminished in accordance with the contributory negligence statute. The Court has held that the judge cannot instruct the jury, and (Hn 4) it is the duty of the defendant to request instructions in accordance with the contributory negligence statute if defendant desires such information be given the jury. Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Vol. 2, Alexander, Miss. Jury Instructions, Sec. 3498.
The situation involving the comparative negligence statute is closely analogous to that involved in the counterclaim statute. Since appellant did not request an instruction in accordance with the quoted part of the counterclaim statute, she cannot complain that the jury was not properly instructed. There was no duty on the part of the appellee to request such instruction.
We find no reversible error and the case is affirmed.
Affirmed.
Lee, P.J., and Arrington, Ethridge and McElroy, JJ., concur.