Opinion
No. 41841.
May 8, 1961.
1. Damages — motor vehicles — negligence — backing automobile against plaintiff who was standing on edge of curb — question of punitive damages erroneously submitted to jury.
Statement by motorist, when informed that he was in a noparking zone, that he would park where he damned pleased was no indication of malice or wantonness when he later returned and after looking to his rear backed up automobile and struck plaintiff, who was standing on curb with his back to the street, with rear fender or tail fin of automobile, and his carelessness was not such gross negligence as to indicate willfulness or wanton disregard for safety for others, and plaintiff was not entitled to punitive damages.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, J.
P.D. Greaves, Gulfport, for appellant.
I. It is an elementary principle of our law, and the cases so holding are too numerous to list, that damages recoverable by a plaintiff are to be diminished because of contributory negligence of the plaintiff, and the refusal of the court below to grant the defendant an instruction on contributory negligence was error. Sec. 1454, Code 1942.
II. Was there such a preponderance of evidence that the lower court was justified in taking away from the jury the question of negligence? Again it is an elementary principle of law supported by a myriad of cases that questions of negligence and contributory negligence are for the jury. Irwin v. Bedford, 224 F.2d 452; Kirkpatrick v. Love, 220 Miss. 174, 70 So.2d 321; Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562.
III. The plaintiff was not entitled to an instruction to the effect that the jury could in its discretion award exemplary or punitive damages to the plaintiff. Belk v. Rosamond, 213 Miss. 633, 47 So.2d 461; 15 Am. Jur., Secs. 266, 268, 279 pp. 700, 704, 716.
IV. Injection of insurance into the case by plaintiff's witness was error.
V. Amount of verdict is so excessive as to indicate bias, prejudice or passion on the part of the jury in favor of plaintiff and against defendant. Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578.
VI. The Court erred in refusing to grant the defendant an instruction to the effect that the plaintiff could not recover any punitive damages.
Richardson Faggard, Pascagoula, for appellee.
I. Cited and discussed the following authorities: Dame v. Estes, 233 Miss. 315, 101 So.2d 644; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So. 578; Reed v. Eubanks, 232 Miss. 27, 98 So.2d 132; Yazoo M.V.R. Co. v. Williams, 87 Miss. 344, 39 So. 489; 15 Am. Jur., Sec. 365 p. 803; 38 Am. Jur., Sec. 2 p. 643.
Jenkins, plaintiff below and appellee here, sued Duvigneaud, defendant below and appellant here, for personal injuries. The court gave plaintiff a peremptory instruction on liability for compensatory damages, denied defendant an instruction submitting the question of contributory negligence of plaintiff, and submitted to the jury the question of punitive damages. A verdict was returned in favor of plaintiff for $3,300 actual and $5,000 punitive damages. Judgment was entered accordingly and defendant appeals.
Stated in the light most favorable to appellee, the material facts are as follows. Appellant parked a borrowed automobile in a no parking zone on a Pascagoula street. Someone called his attention to the fact that it was a no parking zone and appellant stated that he would park where he damned pleased. Some time later, after appellant had gone to a nearby store, he returned to the automobile, started the engine, looked to his rear and saw nothing and backed up rapidly a distance estimated variously from six feet to two car lengths. In backing up appellant turned his front wheels so that the rear fender or tail fin of the automobile extended over the curb and struck appellee who was standing on the edge of the curb with his back to the street. One witness who did not see the actual collision but who saw the car when it started backward said it shot back like a bullet. This witness was in a show window inside a store. Another witness for appellee who was standing facing appellee testified that appellant backed up "pretty fast". Appellee stated that appellant backed up at a high rate of speed but he judged it not from seeing the automobile but from the lick he sustained. It is shown that appellant immediately stopped the car when someone called to him, and the wheels did not hit or jump the curb.
(Hn 1) We are of the opinion that the question of punitive damages should not have been submitted to the jury. The statement appellant is said to have made when he parked the car is no indication of malice or wantonness when he later returned to the car and backed up to leave the curb. Undoubtedly appellant was guilty of negligence as a matter of law, but we think that he was guilty only of simple negligence. It is undisputed that he looked to his rear before he backed up and saw no one. Appellant's carelessness was not such gross negligence as to indicate wilfulness or a wanton disregard for the safety of others. Cf. Morris v. Huff, 238 Miss. 111, 117 So.2d 800.
Appellant argues four other questions which, in our opinion, are not so serious as to require comment.
The judgment is reversed as to the allowance of punitive damages and judgment is rendered here on that issue. The case is affirmed for $3,300 compensatory damages.
Affirmed in part and reversed in part.
McGehee, C.J., and Kyle, McElroy and Jones, JJ., concur.