Opinion
No. 32547.
February 15, 1937.
1. AUTOMOBILES.
In action for injuries sustained in automobile collision, evidence that defendant's employee who was driving defendant's automobile stopped at freight depot for bill of lading for defendant and then started toward rooming house where automobile was usually kept, and collision occurred two blocks from rooming house, held for jury as to whether employee was serving himself or defendant.
2. AUTOMOBILES.
In action for injuries sustained in automobile collision at street intersection, whether plaintiff's negligence in violating ordinance with respect to making left turn at intersection and with respect to speed proximately contributed to injury held for jury.
3. TRIAL.
In action for injuries sustained in automobile collision, instruction that driver of defendant's automobile was employee of defendant, and automobile he was driving was owned by defendant, and that it was duty of employee to get bills of lading for defendant, and that on night of collision he secured bill of lading for defendant but a few minutes before collision, held proper where such facts were undisputed.
ON SUGGESTION OF ERROR. (Division B. May 24, 1937.) [174 So. 550. No. 32547.]1. AUTOMOBILES.
In action arising out of automobile collision, whether automobile was owned and controlled by defendant corporation was for jury under evidence.
2. APPEAL AND ERROR.
An appellant must show error on original submission of appeal, and reviewing court will rarely consider new contention on suggestion of error, despite rule of court giving court option to consider plain errors overlooked by appellant (Rules of Supreme Court, rule 6, par. 2).
3. APPEAL AND ERROR.
Contention that trial court erred in charging jury that automobile belonged to defendant, whereas ownership of automobile was for jury, would not be considered when raised for first time on suggestion of error, in view of facts that case was originally submitted as if such contention were not in real issue and that appellant referred to "defendant's automobile" in requested charges.
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Watkins Eager, of Jackson, for appellant.
Appellant was entitled to a directed verdict because the evidence was insufficient to show the relationship of master and servant between the driver and appellant at the time of the accident.
Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Murphy v. Willingham, 160 Miss. 94, 133 So. 213; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Atwood v. Garcia, 167 Miss. 144, 147 So. 813.
It is certainly clear in this state, we submit, that proof of ownership is not sufficient to impose liability upon the owner when the owner is not present or driving the motor vehicle.
Woods v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. Prince Wilds, 133 Miss. 206, 97 So. 558; Sharples v. Watson, 157 Miss. 241, 127 So. 779; 2 R.C.L. 1201, par. 35.
The use of a motor vehicle by a chauffeur or driver in going to and from his home and place of employment in nowise imposes liability upon the master for an injury occasioned while it is being so used, either with or without the owner's permission.
42 C.J., 1108, par. 868; 1 Restatement of Law of Agency, page 513; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; 3 C.J.S. Agency, 187, par. 255; Hannis v. Driver, 68 Penn. 548.
Appellant requested the court for an instruction telling the jury that if they found for appellee they could not award him full compensation, but must diminish the amount of the verdict in proportion to appellee's own negligence.
Appellant also requested the court to instruct the jury that appellee was himself guilty of negligence proximately contributing to his own injuries, and if the jury believed from the evidence that such negligence "was the sole proximate cause of the collision" then their verdict must be for the defendant.
Both of these requested instructions were refused by the lower court.
We most earnestly submit that, assuming for the sake of the argument only, the court was correct in submitting the case to the jury, nevertheless, fatal error was committed in refusing these requested instructions because the evidence shows conclusively, and as a matter of law, that appellee's own conduct was unquestionably negligent, and it is inescapable that such conduct proximately contributed to his own injuries.
Section 511, Code of 1930; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Pounders v. Day, 118 So. 299; McDonald v. Collins, 144 Miss. 825, 110 So. 663; Billingsby v. I.C.R.R. Co., 100 Miss. 624, 56 So. 796; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 841; Ripley v. Wilson, 140 Miss. 845, 105 So. 446; Van v. Tankersby, 164 Miss. 748, 145 So. 642; 42 C.J. 890, sec. 592; Daniel v. Livingston, 168 Miss. 311, 150 So. 662; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Abel v. Gulf Refining Co., 143 So. 82.
The driver who intends to turn across the path of another vehicle must have sufficient time to cross in safety, or, otherwise, give the approaching car time to pass.
Dietrich Wiltz v. H.T. Cottam Co., 9 La. App. 740, 120 So. 262.
A driver intending to turn off right-of-way street on left necessitating crossing street, and interfering with two lines of through traffic, must use utmost care.
Payne v. Prestridge, 16 La. App. 479, 133 So. 512.
Where automobiles traveling in opposite directions reach intersection at approximately same time, driver intending to make left turn should let other car pass before turning.
Michels v. Oser, 19 La. App. 24, 139 So. 497; Lucas v. Andress, 17 La. App. 329, 136 So. 207; Thoman v. Deliberto, 17 La. App. 574, 136 So. 904; Driefus v. Levy, 140 So. 259; Thibodeaux v. Star Checker Cab Co., 143 So. 101; Scaife v. Clifton, 160 So. 142; Reid v. McDevitt, 163 Miss. 226, 140 So. 722.
In an instruction the jury was told peremptorily that Trammell was an employee of appellant; that the automobile "was owned and controlled by the defendant, Cotton Oil Company;" that one of Trammell's duties was to take bills of lading to the freight office, and "at times (Trammell) used defendant's automobile in question in performing that service for the defendant;" and that on the night of the collision "Trammell did secure a bill of lading for defendant, Cotton Oil Company, only a few minutes before said collision."
Based on this peremptory charge of facts the court then told the jury that if they believed from the evidence "that at the time of the collision Trammell was returning from the depot where he secured the bill of lading to his room, if you further believe from a preponderance of the testimony that the car was kept at Trammell's residence to be used in the company's business, then Trammell was the agent and servant of the defendant, Cotton Oil Company, at the time of the collision," and appellant would be liable "for any negligence of Trammell."
We submit that the greatest deference, but with the utmost sincerity, that the mere reading of this instruction is sufficient to stamp it as highly improper, wholly unjustified by the evidence, misleading and prejudicial.
Y. M.V.R.R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742.
Watkins Eager, of Jackson, for appellant on Suggestion of Error.
With the evidence absolutely silent as to whose car it was that was involved in the collision, the court peremptorily told the jury that the car was owned by the appellant Oil Company; and not only owned but controlled by said Oil Company. Unless the proof was sufficient to show ownership of the automobile in the Oil Company, then under no possible logical theory can it be said that any inference could be drawn that the car was at the time controlled by the appellant Oil Company.
It is our humble opinion that in the state of the record, appellant is entitled to a reversal and dismissal; if not, certainly to a reversal and new trial under appropriate instructions, not an instruction peremptorily telling the jury that the automobile was both owned and controlled by the appellant Oil Company when there is not one word of evidence to justify such conclusion.
In Merchants Co. v. Tracy, 175 Miss. 49, this court said that while the majority rule in this country is that proof of ownership of an automobile is prima facie evidence that it was being driven by the agent of the owner and in the course and furtherance of the owner's business, further said, "this court does not follow that rule. We have held that the plaintiff must show the relation of master and servant existing at the time of injury directly and not by presumption."
Woods v. Clements, 113 Miss. 720; Woods v. Franklin, 151 Miss. 635; Bourgeois v. Miss. School Supply, 170 Miss. 310.
This court has never gone as far as to say that a prima facie case can be made out without at least showing the ownership of the car in the defendant.
In the case at bar the essential and fundamental proof of ownership is wholly lacking, and, therefore, cannot be supplied by conjecture and presumption where the proof affirmatively shows that Trammell owned a car himself and customarily used it in going to and from his room, and to and from his meals, and to the mill, and that so far as Mr. Jenkins knew he had never driven the Terraplane automobile for any purpose whatsoever, and when the Terraplane left the mill in the afternoon it was not in Trammell's custody, but driven by Mr. Hendry, the assistant manager, for his own personal convenience.
Appellee would justify the action of the learned trial court by stacking one presumption on top of another, all resting on no other foundation than the grossest speculation and conjecture. Admittedly, if Trammell was driving his own automobile and returning to his room to spend the night, then your Honors' statement in the original opinion that Trammell was returning the company's car to Hendry' place of residence "where it belonged at night" is wholly unsupported by the evidence, and your Honors' further statement that in so doing Trammell was then engaged about the master's business is likewise a legal conclusion unsupported by the evidence.
This court has erroneously assumed that the evidence did, in fact, show that the car driven by Trammell was not his private automobile, but the Terraplane owned by the appellant. It is for this reason that we said in our suggestion of error that on the face of the opinion the conclusion arrived at is sound, but that the facts stated in the opinion being unsupported by the evidence, and, in fact, expressly negatived by the evidence, then the legal conclusion based on such erroneous fact must likewise fall.
We submit with the utmost deference to the court that the conclusion is inescapable that where the proof is absolutely silent as to the ownership of the car in the appellant under the circumstances stated, that, therefore, there are no facts to justify the conclusion that any duty was imposed upon Trammell to return the car involved in the collision to the master's custody, or to the place where the master had directed it to be kept at night. And, in the absence of this essential evidence, appellee has utterly failed to make out even a prima facie case against appellant, and clearly, we submit, appellant was entitled to a directed verdict.
Bourgeois v. Miss. School Supply, 170 Miss. 310; Woods v. Franklin, 151 Miss. 635; Atwood v. Garcia, 167 Miss. 144, 147 So. 813.
This court has said on numerous occasions that one party to a lawsuit cannot in effect trap the other by requesting and having given fatally erroneous instructions, and then when the other party is forced to make the best he can of the situation that such party adversely effected is not thereby deprived of the right to insist on the error thus initiated.
Home Life Ins. Co. v. Dahmer, 167 Miss. 893, 150 So. 650; Foster v. City of Meridian, 150 Miss. 715, 116 So. 820; L. N.R.R. Co. v. Blair, 154 Miss. 680, 123 So. 859; Shell Petroleum Corp. v. Yandell, 172 Miss. 55, 158 So. 787.
Barbour Henry, of Yazoo City, May Byrd and J.O.S. Sanders, all of Jackson, for appellee.
Notwithstanding appellant's labored argument, the only question presented on this appeal is whether or not the relation of master and servant exists when the servant is returning the instrument of the master to the place where it was kept, by a direct route, as soon as the work which the master employed the servant to do is completed. This especially, as in this case, when there is no suggestion that the servant, in any degree was about his personal affairs. This court has held, as will be later shown, that in the circumstances shown by this record there is a rebuttable presumption that Trammell was engaged in the scope of his employment at the time. Certainly Trammell's service to appellant had not ceased until he returned his master's car to the place the master required it to be kept.
Where the general relationship of master and servant is shown, a rebuttable presumption is raised that the servant at the time of the accident was engaged in the scope of his employment, and in the furtherance of the business of the master.
Merchants Co. v. Tracy, 166 So. 340; Robinson v. Haydel, 171 So. 7; Barmore v. U.S. P.R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594; Slaughter v. Holsomback, 166 Miss. 643; Southern Bell Tel. Co. v. Quick, 167 Miss. 438.
We conclude that appellant's position would be more tenable if it had called Trammell who was in the employ of one of its affiliated mills at Gilmore, Texas, and who was in attendance at the trial, than to rely upon the spacious arguments of its counsel. The "rebuttable presumption" that Trammell was engaged about appellant's business at the time of the conclusion, has not been met nor overcome.
Life Casualty Co. v. Curtis, 174 Miss. 768.
Trammell was as much a servant of appellant and acting about its business in returning the car to its place of repose, until used the next day, as he would have been if he was returning it to the mill during the day.
Barmore v. R.R. Co., 85 Miss. 426; Slaughter v. Holsomback, 166 Miss. 643; Southern Bell Tel. Co. v. Quick, 167 Miss. 438; Merchants Co. v. Tracy, 166 So. 340; McLaurin v. McLaurin Furniture Co., 166 Miss. 180.
Absolutely conclusive that Trammell was still about the appellant's business, is the fact that he still had the lading in his possession, and until he delivered it to the office of appellant his service relative thereto had not been concluded.
It was clearly a jury question, as to whether this conduct of appellee was the sole proximate cause of the collision. The instructions left to the jury the question whether this act of appellee did directly and proximately contribute to the collision, and if so the jury was told to reduce the damages. The jury was also instructed that, if this conduct of appellee was the sole cause thereof, the verdict should be for defendant. This, under the facts of this case is all appellant was entitled to get, and, as already argued, the jury evidently applied this doctrine of comparative negligence.
All the courts hold that reciprocal rights and duties exist at intersections. Ordinarily, but not always, the car first entering has the right of way, provided due consideration is given the duty to exercise the doctrine of the last clear chance. Now when appellee entered the intersection, after making his observation, no car was nearer than Pinehurst Street, the first intersection south — a city block away. Therefore it is manifest there was nothing improper in entering the intersection. Whether, after so entering, the act of appellee in turning left, slightly south and west of the center of the intersection, proximately contributed to his injury, was a question for the jury.
Gough v. Harrington, 163 Miss. 393.
Barbour Henry, of Yazoo City, May Byrd and J.O.S. Sanders, all of Jackson, for appellee on Suggestion of Error.
There was never any suggestion during the trial that Trammell was driving a car of his own, nor that he was upon a private mission. The only thing contended for each way during the trial was whether Trammell at the time was engaged about appellant's business, in returning from the freight office where he secured the bill of lading, as was his duty, under the testimony of Jenkins.
The declaration did not even charge that the car was owned by appellant, and it is wholly immaterial who owned it, if Trammell, an agent of appellant, and then about his master's business, was guilty of negligence causing plaintiff's injury. Liability did not in any sense depend on such ownership, and it would be wholly immaterial here, under the authorities cited in appellee's brief on the argument, except for the language in the instruction, which is immaterial in view of the conclusion reached by your Honors, as expressed in Judge Anderson's opinion.
There is no where in the record any testimony, or even suggestion, that any car except the Terraplane, owned by appellant, was the one involved. Repeatedly the trial judge in his ruling showed this was his understanding of the proof. If there had been any other proof, then a question for the jury to decide would have arisen. But in the absence of any controversy, it stood undisputed, as the trial court viewed it, and as every attorney engaged in the trial understood it.
We respectfully submit that the opinion rendered herein is sound, and the affirmance of the judgment proper, on the entire record herein, and that there is no merit whatever in the suggestion of error.
Argued orally by Pat Eager, for appellant, and by J.F. Barbour, for appellee.
Appellee, Elliott, brought this action in the circuit court of Hinds county against appellant, Delta Cotton Oil Company, to recover damages for an injury received by him as the result of a collision between his automobile, driven by himself, and an automobile belonging to the oil company, driven by its servant Trammell, and alleged to have been caused by the negligence of the latter. There was a verdict and judgment for Elliott in the sum of $8,500; from which the oil company appeals.
The questions are whether the court erred in refusing to direct a verdict in favor of the oil company, and in giving certain instructions for Elliott and refusing certain instructions requested by the oil company. Whether the court erred in refusing to direct a verdict for the oil company turns on whether or not Trammell, at the time of the collision and injury, was engaged in its service.
The collision and injury occurred in the city of Jackson at or near the intersection of Belhaven and North State streets between 10:30 and 11 at night. North State street runs north and south and Belhaven street enters North State street from the east, North State street being its western terminus. Trammell was driving the oil company's car north on North State street, while Elliott was attempting to enter North State street and turn south. The Illinois Central Railroad Company's freight depot is on the west of the principal business section of the city of Jackson; the oil company's plant is located about three miles southwest of the depot. Trammell was the oil company's bookkeeper. Hendry was assistant manager and field man of the oil company. He and Trammell were both unmarried and roomed at Mrs. Morrison's, near the corner of Euclid and North State streets, about two blocks from where the collision and injury occurred. The house where they roomed was about two miles from the Illinois Central freight depot, and therefore about five miles from the oil company's plant. Trammell owned an automobile; Hendry did not, but as the oil company's assistant manager and field man he required the use of one. Under his contract with the oil company, the latter agreed to and did furnish him an automobile (the one in the collision), which he used in and about the oil company's business, including the trips about over the country in the purchase of cotton seed. The understanding between them was that at night the automobile should be kept at his place of residence, and when the day's work was over he should have the right to use it for his own personal business and pleasure. During working hours, when Hendry was not out of town engaged in his field work, the automobile was kept at the plant and, when not in use by Hendry, Trammell, as well as other employees of the plant, was authorized to use it about the company's business and did so at times. Neither Trammell nor Hendry testified in the case.
About 10:30 o'clock on the night of the injury Trammell appeared at the Illinois Central freight depot and obtained from the night clerk of the railroad a bill of lading for a carload shipment by the oil company. Securing bills of lading for the company was a part of his duty. At this time the oil company's plant was not being operated at night; the entire plant, including the offices, was closed. Within a few minutes after Trammell obtained the bill of lading the collision occurred. As shown by the distances above stated, when he received the bill of lading he was about three miles from the oil company's plant, and when the collision occurred he was about five miles from the plant and two miles from the freight depot, and about two blocks from where he and Hendry roomed. The evidence is silent as to when and where Trammell obtained the automobile. Undoubtedly he was serving the oil company when he secured the bill of lading, and the reasonable inference from all the facts and surrounding circumstances is that he used the company's car in going for the bill of lading as well as in returning the car to his and Hendry's place of residence, where it belonged at night. In so doing was he about his master's business in the sense of the law? We think this question should be answered in the affirmative under the authority of Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Southern Bell Tel. Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107; and Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209.
In the Primos Case among the duties of the driver of the truck for the laundry company was the soliciting of dry cleaning. The company furnished the truck, and the driver, after the day's work was over, kept it at his home. On the night of the collision he and his wife were returning from a dance where he went to solicit business for the laundry company as well as for pleasure. The court held that it was a question for the jury as to whether or not he was engaged about his master's business. In the Tracy Case the court held that, where the general relationship of master and servant is shown, a rebuttable presumption is raised that the servant at the time of the injury was engaged within the scope of his employment and in the furtherance of the master's business. In the Quick Case the court held that, where the evidence showed without dispute that the automobile causing injury to a third person was owned by the master and used by the servant in the discharge of his duties, the burden was on the master to prove that the servant was acting on some purpose of his own, and any doubt on the question made it one for the jury. To the same effect is the Bourgeois Case.
When Trammell received the bill of lading, he was not through serving the oil company; it was his duty to the oil company, as well as to Hendry, to return the car to the place where it was to be stored for the night. Evidently he was so engaged, for he was only a short distance away from the place at the time of the collision. That is what the evidence, reasonably interpreted, tended to show. It was, therefore, a question for the jury as to whether Trammell was serving himself or serving the oil company.
The questions as to the propriety of the action of the court in granting and refusing certain instructions grow out of the facts and circumstances immediately surrounding the collision. Under the ordinances of the City of Jackson, automobiles are required to be driven on the driver's right-hand side of the street, except in passing from the rear, then on the driver's left-hand side of the street, and the maximum speed limit anywhere in the city is thirty miles an hour, and on entering a street intersection for the purpose of turning to the left on the street entered the center of such street must be passed before turning. The evidence showed that Elliott violated the ordinance, in that he began to turn to the left before he crossed the center of North State street. The collision took place somewhat south of the intersection of the two streets and near the center of North State street. The evidence also tended to show that Trammell was approaching at a high rate of speed, considerably more than thirty miles an hour, and in the center of the street instead of on his right-hand side; and except for the violation of the ordinances in that respect the collision probably would not have occurred. Elliott testified that Trammell tried to pass in front of his car on his (Trammell's) left-hand side of the street. The evidence is not conclusive that Elliott's negligence in making the crossing proximately contributed to the collision.
The court refused two instructions for the oil company, both of which were peremptory on the proposition that Elliott's negligence proximately contributed to the injury. There was no error in refusing these instructions. The effect of his negligence was a question for the jury.
The oil company assigns as error the giving of the following instruction: "The court instructs you that under the testimony in this case Trammell was an employe of the defendant Cotton Oil Company, and that the automobile that collided with plaintiff's car was owned and controlled by the defendant Cotton Oil Company, and that one of Trammell's duties was to go to the railroad office and secure bills of lading, and at times used defendant's automobile in question in performing that service for the defendant, and that on the night of the collision Trammell did secure bill of lading for defendant Cotton Oil Company only a few minutes before said collision; therefore you are instructed that if you believe by a preponderance of the testimony at the time of the collision Trammell was returning from the depot where he secured the bill of lading, to his room, if you further believe from a preponderance of the testimony that the car was kept at Trammell's residence to be used in the Company's business then Trammell was the agent and servant of the defendant, Cotton Oil Company, at the time of the collision, and the defendant Cotton Oil Company would be liable for any negligence of Trammell, if you believe from a preponderance of the testimony that Trammell was guilty of negligence at that time as defined in the other instructions given you."
The criticism of the instruction is that it informed the jury peremptorily that Trammell was an employee of the oil company; that the automobile was owned and controlled by the oil company; that one of Trammell's duties was to get bills of lading for shipments, and at times used the oil company's automobile in the performance of his duties; that on the night of the collision he secured a bill of lading for the oil company only a few minutes before the collision, and "based on this peremptory charge of facts the court then told the jury that if they believed from the evidence `that at the time of the collision Trammell was returning from the depot where he secured the bill of lading, to his room, if you further believe from a preponderance of the testimony that the car was kept at Trammell's residence to be used in the company's business, then Trammell was the agent and servant of the defendant, Cotton Oil Company, at the time of the collision' and the company would be liable for his negligence." There was no error in the giving of this instruction. It was undisputed that Trammell was an employee of the oil company; that the car he was driving was owned and controlled by the company, in connection with Hendry's rights therein; that one of Trammell's duties was to get bills of lading for the company's shipments, and at times used the automobile in serving the oil company, and that on the night of the collision he secured a bill of lading for the oil company only a few minutes before the collision. It was therefore not error to charge the jury peremptorily that those were the facts.
The governing principles of contributory negligence, and the effect thereof on fixing damages, were properly submitted to the jury by other instructions. We are unable to see any substantial error in the instructions.
Affirmed.
An examination of the original opinion in this case will disclose that the fact that appellant owned the automobile which collided with appellee was regarded as one of the controlling and essential features in the decision of the case. Appellant, in its suggestion of error, asserts that there is not a word of proof in the entire record which sustains the statement that the automobile involved in the collision was one owned and controlled by appellant. A re-examination of the record discloses that while there is perhaps enough proof therein to support an independent finding by the jury that the automobile was the Terraplane automobile owned by appellant, the evidence is not sufficient to authorize the direct charge which appears in appellee's second instruction "that the automobile which collided with plaintiff's car was owned and controlled by the defendant Cotton Oil Company."
But in instructions 3 and 4, granted at the request of defendant, appellant here, the language used was as follows: "If you believe from the evidence that the driver of defendant's automobile," etc., and "if you believe from the evidence that the plaintiff saw or could have seen by the exercise of reasonable care the approach of defendant's automobile," etc. And in page 64 of appellant's original brief the following statement is made: "The evidence is absolutely conclusive and without dispute that while the automobile was owned by appellant, that at night and after business hours it was under the personal control of Hendry as an individual;" etc., and on page 25 of its reply brief, appellant says: "The submission of the case to the jury, as a matter of fact, really amounted to nothing more than making the appellant the absolute insurer of the safety of any person injured by reason of the operation of an automobile which it happened to own." And nowhere in the original or reply briefs for appellant was there any such argument by appellant as to put the court on notice or on guard that there was any contention that the automobile which collided with appellee had not been shown to be, or was not, the Terraplane automobile owned by appellant and used in its business.
It is elemental that the duty rests upon an appellant to show error when he presents his appeal and he must do this on the original submission; for we have time and again held that "it is rarely the case that this court will notice, on a suggestion of error, a new contention, one not assigned or argued on the submission of the case. As a general rule it is no more permissible on appeal to present a case in halves or by piecemeal than it would be on the original trial." Eady v. State, 153 Miss. 696, 697, 122 So. 199, 200. By paragraph 2, rule 6 ( 161 Miss. 904), we reserve the right to notice a plain error not assigned or distinctly specified, but this is in the interest of justice, and is available when, on the review of a record, we find a plain error, although appellant has overlooked it. This rule does not alter the other rule, first above stated in this paragraph, that it is the duty of an appellant to show error, and not of this court to hunt for errors. See cases cited 3 Am. Jur. p. 288.
It follows, therefore, that it is too late to raise by suggestion of error the question which appellant has thus raised here, particularly in view of the fact that the case was originally submitted as if that question was not one in real issue between the parties.
Suggestion of error overruled.