Opinion
No. 39511.
March 16, 1955.
1. Venue — proper — statutes.
Where, in automobile accident case, collision occurred in one county, and where both defendants resided in another county, plaintiff, under applicable statute, had an option of selecting venue in either county, and such venue could not be changed upon application of either defendant, where it appeared that both defendants were material parties, that there was a valid cause of action against both, and that neither was fraudulently joined for purpose of fixing venue. Sec. 1433, Code 1942.
2. Continuance — absence of party — as grounds for.
Absence of a party is no cause for continuance when case is reached for trial, unless his presence be necessary for proper presentation of case, and such must be shown to the Court, not by way of conclusion, but by evidence justifying such conclusion.
3. Continuance — same — same — requirements.
To justify continuance on ground of absent party, it is necessary that application set forth with reasonable clearness material facts such party would testify to, if present.
4. Continuance — Trial Court's discretion.
Trial Judges are vested with wide discretion in matter of continuances.
5. Appeal — continuance — review — no abuse of Trial Court's discretion.
In such case, record as a whole failed to establish that injustices had resulted from Trial Court's refusal to grant continuance because of alleged absence due to sickness on part of one defendant.
6. Automobiles — collision — driver — agent narcotic addict — knowledge of by corporation — jury question.
In suit to recover for personal injuries sustained by plaintiff as result of collision between automobile which he was driving and a truck owned by corporate defendant and driven by another defendant, question whether president of defendant corporation knew or in exercise of due care should have known that defendant driver was addicted to habitual use of narcotics was question for jury.
7. Motor vehicles — owner's liability — incompetent driver.
When owner of automobile permits its use by person known to owner to be a reckless or incompetent driver, or where by exercise of reasonable care owner could or should have so known, owner is liable for all such injuries as are natural and probable consequences of recklessness or incompetency of such driver while using automobile so furnished.
8. Motor vehicles — same — drunken driver.
A drunken driver is an incompetent driver, and when owner furnishes automobile to another who owner knew or ought to have known was liable to be drunk while driving, owner is responsible for injury which results as proximate consequence thereof.
9. Motor vehicles — evidence — supported inference of permission — to drive truck.
Fact that president of defendant owner was company's highest officer and in charge of truck was sufficient to support inference that he was authorized to permit defendant driver to use such truck.
10. Evidence — hospital records — commitment proceedings — admissions against interest.
Evidence as to proceedings whereby defendant driver had previously been committed to Mississippi State Hospital for treatment for narcotics use, and wherein defendant had admitted in writing that he was habitual user of narcotics, was properly admitted as containing an admission against interest, regardless of regularity of such commitment proceedings.
11. Motor vehicles — negligence — proximate cause — jury questions.
In such case, questions whether plaintiff was negligent in failing to turn onto wrong side of road and into path of two oncoming automobiles in order to dodge truck driven by defendant and whether such negligence was proximate cause of collision, were for jury. Sec. 1455, Code 1942.
12. Damages — award — not excessive.
Under facts of case, award of $15,000 was not so excessive as to evince passion and prejudice on part of jury.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of George County; LESLIE B. GRANT, Judge.
H.W. Gautier, Pascagoula, for appellant F.B. Walker Sons, Inc.
I. The defendants were entitled to a continuance because of the illness of the defendant, Frank Brumfield, which prevented him from appearing in Court at this the first term at which the cause was triable, when he was the only witness for the defendants as to the collision and the question of negligence, and when injustice to both defendants resulted from the defendant Brumfield's inability to be present to aid counsel for the defendants in the cross-examination of plaintiff's witnesses. Beak v. Peard, 80 P.2d 614; Coleman v. Bowman, 135 Miss. 137, 99 So. 465; King v. McWhorter, 174 Miss. 187, 163 So. 679; Whittaker v. Godwin, 97 Miss. 663, 53 So. 413; Art. 3 Sec. 25, Constitution 1890; Secs. 1520, 1859, Code 1942. 12 Am. Jur., Secs. 5, 15 pp. 450-52, 457; 17 C.J.S., Sec. 29 p. 213.
II. The evidence shows conclusively, there being no evidence whatever to the contrary, that the automobile-truck owned by the defendant corporation, F.B. Walker Sons, Inc., was loaned, on a Sunday, to the defendant Brumfield by John F. Walker, the president of the corporation, for Brumfield to use on his own personal mission, and that the corporation defendant neither consented to, had knowledge of, approved or ratified such lending; that John F. Walker was not acting, in the lending, for the corporation or within the scope of his authority as president of the corporation, or in the furtherance of the business or purposes of the corporation. His action was purely personal and was adverse to the interest of the corporation defendant. In fact, John F. Walker even sought to conceal the fact of the lending from the corporation. Boyle Gin Co. v. W.F. Moody Co., 188 Miss. 44, 193 So. 917; Howard v. Ware, 192 Miss. 36, 3 So.2d 830; Stegmann v. Sturtevant Haley Beef Supply Co. (Mass.), 137 N.E. 363; 13 Am. Jur., Secs. 1118, 1129 pp. 1043-45, 1055; 19 C.J.S., Sec. 1283 pp. 961-2.
III. The evidence does not show that the defendant Frank Brumfield was an habitual user of narcotics and shows without contradiction that he was a safe and careful driver and was not reckless, and never had been known to have had an accident with a motor vehicle until the accident of May 24, 1953. The overwhelming weight of the evidence shows that the defendant Brumfield had no general reputation in Pascagoula or Jackson County, Mississippi, as a user of narcotics, and there is no evidence that the corporation had any knowledge that the defendant Brumfield was a user of narcotics, prior to the date of the accident or even that John F. Walker had any such knowledge; that if it is contended that John F. Walker had knowledge that the defendant Brumfield was addicted to the use of narcotics or had such reputation, such knowledge, if any, of John F. Walker was acquired by him in his own private affairs and was not the knowledge of or notice to the corporation in the lending of the truck; that the knowledge of John F. Walker, if any, as to the alleged addiction or reputation of the defendant Brumfield was not imputable to the corporation. In fact, the said act of lending the truck to the defendant Brumfield was adverse to the interest of the corporation and the said John F. Walker even sought to conceal the fact of such lending from the corporation. Gooch v. Dillard, 187 Miss. 660, 193 So. 619; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 153 So. 818; Vanner v. Dalton, 172 Miss. 183, 159 So. 558; Sec. 8174, Code 1942; 19 C.J.S., Secs. 1082, 1084 pp. 620-21.
IV. The evidence and the physical facts show conclusively that the injuries suffered by plaintiff Rose resulted solely from his own negligence; that he was driving a light Ford car on a flat, level road on a bright day, with unobstructed view for over a quarter of a mile; that the road, including a grass shoulder on each side of the blacktop, was 34 to 40 feet in width, on which cars could travel; that the plaintiff Rose saw, or should have seen, the truck zigzag in the road in front of him, and create a danger, but he continued at a speed of at least 40 miles an hour, then put on his brakes and pulled toward the right and collided head-on with the truck that was off on the grass on the east side of the road, when he might have stopped or pulled to the left side of the road, and would have avoided the collision. It is the testimony of plaintiff and his witnesses, Buckhalter and Hudson, that the truck was heading back up toward the pavement at the point of collision. If this testimony were correct, the truck and car could not have collided, head-on, both with their right front. Further, if this were correct, the heavy truck would have knocked the front end of the light Ford around on the road, but the Ford stopped at the point of collision. Barryhill v. Nichols, 171 Miss. 769, 158 So. 470; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Fuller v. Illinois Cent. R.R. Co. 100 Miss. 705, 56 So. 783; Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625; Thompson v. Miss. Cent R.R. Co., 175 Miss. 547, 166 So. 353; Tombigbee Elec. Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567.
V. The evidence shows conclusively that the plaintiff suffered a serious and dangerous injury in the laceration or tearing of his liver; that death results in 88 per cent of such cases; and that the skilled, successful surgery performed on the young healthy man permitted him to return from the hospital after eleven days and then resume his regular work on the first week in August, 1953, at which employment he had worked steadily for more than six months before the date of the trial. At the trial he had almost regained his normal weight and had only incurred indebtedness of $1.80, in more than six months, for medication. That of the 12 per cent who do not die under the surgery or immediately thereafter, only 14 per cent, or ONE out of SEVEN, have any subsequent continuing disability, either slight or major, and SIX out of SEVEN make complete recovery. Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Mississippi Power Light Co. v. McCormack, 175 Miss. 337, 166 So. 534; Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572.
W.S. Murphy, Lucedale; Karl Wiesenburg, Pascagoula, for appellant Frank Brumfield.
I. Regarding error of the Lower Court in overruling Frank Brumfield's motion for change of venue. Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Howard v. Ware, 192 Miss. 36, 3 So.2d 830; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Morrimac Veneer Co. v. McCalip, 129 Miss. 671, 92 So. 817; Myers v. Vinson, 212 Miss. 85, 54 So.2d 168; Nicholson v. Gulf Mobile Northern R.R. Co., 177 Miss. 844, 172 So. 306; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 128 So. 870; Plummer Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907; Tucker v. Gurley, 176 Miss. 708, 170 So. 230; Sec. 495, Code 1930; Secs. 1433, 1886, Code 1942; 67 C.J., Venue, Sec. 180 pp. 114-5.
II. Regarding error of the Lower Court in overruling Frank Brumfield's motions for continuance. Solomon v. State Use of Curtis, 71 Miss. 95, 14 So. 460; Southern Beverage Co. v. Barbarin, 219 Miss. 493, 69 So.2d 395; Whittaker v. Godwin, 97 Miss. 663, 53 So. 413; Sec. 1520, Code 1942; 13 C.J., Continuances, p. 142 Note 61; 17 C.J.S., Continuances, Sec. 29 p. 215.
III. Regarding error of Lower Court in granting plaintiff's Instruction No. Two. Coca-Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674; Gulf Mobile Ohio R.R. Co. v. Smith, 210 Miss. 768, 59 So.2d 898; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Stewart v. Kroger Groc. Co., 198 Miss. 371, 21 So.2d 912; Vol. I, Alexander's Miss. Jury Instructions, Sec. 53 pp. 22, 186.
IV. Regarding error of Lower Court in permitting introduction over objection in evidence of papers from Jackson County Chancery Court, Cause No. 11,592 and permitting reference to matters made confidential and privileged by Federal and State statutes in trial of this cause. Sec. 260 (d), F.C.A., Title 42, (Act July 1, 1944, Chap. 373, Title III, Sec. 344, 58 Statute 701); Sec. 436-09, Code 1942.
V. Regarding error of Lower Court in refusing peremptory instruction at close of plaintiff's case and refusing peremptory instruction at close of entire case. Goudy v. State, 203 Miss. 366, 35 So.2d 308; Louisville Nashville R.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
VI. Regarding error of Lower Court in overruling motion for new trial. Shelton v. Underwood, 174 Miss. 169, 163 So. 828.
J. Boyce Holleman, Wiggins; O.F. J.O. Moss, Lucedale, for appellee.
I. The appellant Frank Brumfield was not entitled to a change of venue. Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 752; Mississippi Power Light Co. v. Lowe, 179 Miss. 377, 175 So. 196; Myers v. Vinson, 212 Miss. 85, 54 So.2d 168; Sec. 1443, Code 1942.
II. The Trial Court committed no error in granting to appellee Instruction No. Two shown at pages 89 and 90 of the record. Dixie Drive-It-Yourself System Jackson Co., Inc. v. Matthews, 212 Miss. 190, 54 So.2d 263; Alexander's Miss. Jury Instructions, Secs. 705, 2047 pp. 203, 473.
III. The admission in evidence of all of the proceedings in Cause No. 11,592 of the Chancery Court of Jackson County, Mississippi, for the purpose of showing that the appellant Frank Brumfield admitted in August, 1951, under oath, that he was a narcotic addict did not constitute error. Viator v. Stone, 201 Miss. 487, 29 So.2d 274.
IV. The Trial Court's refusal to grant appellants a continuance did not constitute an abuse of discretion; and, therefore, was not error. Coleman v. Bowman, 135 Miss. 137, 99 So. 465; Gibson v. Carr, 91 Miss. 773, 45 So. 864; King v. McWhorter, 174 Miss. 187, 163 So. 679; Magee v. State, 200 Miss. 861, 27 So.2d 767; Parker v. State, 201 Miss. 579, 29 So.2d 910; Sistrunk v. State, 200 Miss. 437, 27 So.2d 606; Thigpen v. State, 206 Miss. 87, 39 So.2d 768; Ware v. State, 133 Miss. 837, 98 So. 229; Sec. 576, Code 1930; Sec. 1520, Code 1942.
V. As president of the appellant corporation, John F. Walker was vested with the authority and power of full and complete supervision, custody, management, and control of all vehicles owned by the corporation. In loaning the corporation's truck to the appellant Frank Brumfield, the said John F. Walker was negligently exercising this authority and power; and said corporation is liable for its president's negligently exercising said authority and power of supervision, management, and control. Barmore v. Vicksburg, S. P.R.R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594; Dixie Drive-It-Yourself System Jackson Co., Inc. v. Matthews, supra; D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770; Georgia Casualty Co. v. Waldman, 53 F.2d 24; Henry v. Miss. Power Light Co., 166 Miss. 827, 146 So. 857; Horton v. Jones, 208 Miss. 257, 44 So.2d 397; Howard v. Ware, 192 Miss. 36, 3 So.2d 830; Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165; Levy v. McMullen, 169 Miss. 659, 152 So. 899; Loper v. Yazoo M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Petermann v. Gary, 210 Miss. 438, 49 So.2d 828; Richton Tie Timber Co. v. Smith, 210 Miss. 148, 48 So.2d 618; Sears Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 191 So. 105; 60 C.J.S., Sec. 436 p. 1088; A.L.I., Restatement of the Law (Torts), Sec. 390.
VI. The evidence in this cause conclusively proved the following points; (1) that the appellant Frank Brumfield at the time of the accident on May 24, 1953, was under the influence of narcotics; and on said date was, and for a long period of time prior thereto had been, an habitual user of narcotics; (2) that the appellant corporation, F.B. Walker Sons, Inc., through and by its president had actual knowledge of the said Frank Brumfield's narcotic addiction; and (3) that the said Frank Brumfield, actually being a narcotic addict, had a general reputation as such in the City of Pascagoula and Jackson County, Mississippi. The actual knowledge by the corporate appellant's president of Frank Brumfield's narcotic addiction constituted knowledge by the corporation thereof. Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Richton Tie Timber Co. v. Smith, supra; Vanner v. Dalton, 172 Miss. 183, 159 So. 558; Sec. 8174, Code 1942; Chap. 262, Laws 1952.
VII. The issues of negligence and contributory negligence were submitted to the jury for determination under proper instructions given by the Court, and the jury's determination of these issues adverse to the appellants cannot be reversed.
VIII. Damages awarded appellee by the jury in the sum of $15,000 are not excessive; and, in fact, are inadequate. Southland Broadcasting Co. v. Tracy, supra.
Appellee, a resident citizen of George County, brought this suit in the Circuit Court of George County, against F.B. Walker Sons, Inc., a domestic corporation domiciled in Jackson County, and Frank Brumfield, a resident citizen of Jackson County, for the recovery of damages for personal injuries sustained when an automobile, driven by appellee, collided with a pick-up truck owned by the appellant corporation and driven by appellant Brumfield on a public highway in George County, and appellants complain of a judgment against them in that suit.
(Hn 1) It is contended that the lower court erred in overruling a motion for a change of venue to Jackson County, and in this connection it is not disputed that the cause of action occurred and accrued in George County. Section 1433, Code of 1942, provides that civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided. Several exceptions are given but this case does not fall within any of them. We think the plaintiff had the option of selecting the venue either in George County or in Jackson County and that the venue could not be changed upon the application of either defendant since it appears that both defendants were material parties, there was a valid cause of action against both, and neither was fraudulently joined for the purpose of fixing venue. Indianola Cotton Oil Company v. Crowley, 121 Miss. 262, 83 So. 409; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Mississippi Power Light Company v. Lowe, 179 Miss. 377, 175 So. 196; Myres v. Vinson, 212 Miss. 85, 54 So.2d 168.
(Hn 2) This case was continued at the return term of the lower court, and at the next succeeding term there was an application for continuance because of the absence of the defendant, Brumfield, allegedly due to his illness, which was overruled. The affidavit was made by one of Brumfield's attorneys and the unsworn certificate of a physician that he would be unable to attend court for about four days was attached. The situation is so nearly exactly that which confronted the Court in King v. McWhorter, 174 Miss. 187, 163 So. 679, that we merely quote from the opinion in that case. "The affidavit, although it stated that appellant's presence was necessary to advise her attorneys in the progress of the trial, failed to state the facts upon which the alleged necessity was based, and furthermore, failed to set out either particularly or in substance what appellant's testimony would be as a witness in her own behalf. The absence of a party is no cause for a continuance when the case is reached for trial, unless his presence be necessary for the proper presentation of the case, and this must be shown to the court, not by way of conclusion, but by evidence justifying such a conclusion. Coleman v. Bowman, 135 Miss. 137, 99 So. 465. Neither in the evidence nor otherwise was it shown that appellant would be a material witness in her own behalf. (Hn 3) To justify a continuance upon that ground it was necessary that the application set forth with reasonable clearness the material facts appellant would testify to, if present. Ware v. State, 133 Miss. 837, 98 So. 229.
"Section 576, Code 1930, (same as Section 1520, Code of 1942) provides, among other things, that the affidavit to support the application for a continuance should contain the facts expected to be proven by the absent witness that the court may judge of the materiality of such facts, and that the continuance is not sought for delay only, but that justice may be done, and that a denial of a continuance should not be ground for a reversal unless the Supreme Court should be satisfied with injustice resulted therefrom."
(Hn 4) The application in this case failed to comply with the rules laid down in the above cited cases. The record is voluminous, the trial having lasted about eight days. Plaintiff's proof, due to extended and double cross-examination, consumed more than four days, and Brumfield apparently made no effort to get to court before conclusion of the trial. Moreover, counsel for plaintiff stipulated by agreement with opposing counsel as to many of the facts to which Brumfield would testify if present. (Hn 5) Looking to the record as a whole, and bearing in mind our numerous decisions to the effect that trial judges are vested with a wide discretion in the matter of continuances, we are unable to say that injustice has resulted from the refusal to continue.
(Hn 6) We pass now to the principal contention of the appellant corporation that it was entitled to a peremptory instruction. It is a family corporation engaged in the repair and construction of ships and boats at Pascagoula in Jackson County where it owns and operates what is commonly known as a shipyard. John F. Walker is the president and under the corporate bylaws is the chief executive officer; as such he is vested with wide authority, having the general and active management of the business of the corporation. The facts supported by the evidence, direct and circumstantial, and evidently found by the jury to be true are substantially, in part, as follows: On Sunday morning, May 24, 1953, John F. Walker loaned to Frank Brumfield for his personal use a pick-up truck belonging to the company. John F. Walker and Brumfield had long been close personal friends. Brumfield was admittedly a narcotic addict and had been committed to the Mississippi State Hospital for treatment in August, 1951. The company's general offices are situated in a building within the shipyard. Adjacent to John F. Walker's private office in the company's general office building there was a private bedroom. Brumfield had spent as much as a week at a time in this bedroom without shaving or leaving the building. On at least one of these occasions he had a hypodermic syringe with him. John F. Walker was looking after him and permitting him to remain there and use this bedroom, at a time when Brumfield was unkempt and would go several days at a time without shaving. The general reputation of Brumfield in Pascagoula was that he was a narcotic addict. On the day of and at the time of the collision between the two vehicles Brumfield was under the influence of narcotics to such extent that he was wholly incapable of safely operating the truck. At the time of the collision he was traveling on a straight road, almost level, with black top hard surface eighteen feet in width with gradual sloping shoulders about eleven feet in width on each side of the hard surface. He was traveling south. Several times he got off the paving and onto the shoulder and even into a shallow ditch at the terminus of the shoulder. He would then pull back into the traveled portion of the road, cross over to the other side, and drive on the shoulder and into the shallow ditch on the opposite side. He was "zig-zagging" and weaving from one side of the highway to the other. While executing these maneuvers he ran into appellee's automobile, which appellee was operating on the highway on his own proper side, and inflicted injuries which proved to be almost fatal. After the collision Brumfield was arrested and charged with operating a motor vehicle while under the influence of narcotics. He entered a plea of guilty to this charge and paid a fine. Shortly thereafter he entered a hospital in Kentucky for treatment as a narcotic addict.
Appellant corporation contends that the proof is insufficient to show that John F. Walker knew or in the exercise of the due care should have known that Brumfield was addicted to the habitual use of narcotics. With that contention we do not agree. We think the question was for the jury to decide.
(Hn 7) It is also contended that the corporation is not liable because Brumfield was not engaged in any business for the corporation at the time of the collision. Our cases on these questions are numerous, and we content ourselves by quoting from only one of them, viz., Levy, et al. v. McMullen, 169 Miss. 659, 152 So. 899, as follows: "In Anderson v. Daniel, 136 Miss. 456, 101 So. 498, Herrman v. Maley, 159 Miss. 538, 132 So. 541, and in subsequent cases, this Court has become definitely committed to the principle that when the owner of an automobile permits its use by a person known to the owner to be a reckless or incompetent driver, or where by the exercise of reasonable care the owner could or should have so known, the owner is liable for all such injuries as are the natural and probable consequences of the recklessness or incompetency of the said driver while using the automobile so furnished; (Hn 8) and in Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318, this Court further declared that a drunken driver is an incompetent driver, and that when an owner furnishes an automobile to another whom the owner knew or ought to have known was liable to be drunk while driving, the owner is responsible for an injury which results as a proximate consequence thereof." To the above we may add that a narcotic addict, especially one who gets in the condition that Brumfield did, is equally as dangerous and incompetent as any drunkard who ever got behind the steering wheel of an automobile.
(Hn 9) It seems also to be the contention of the appellant corporation that before it would be liable it would be necessary to call a meeting of the board of directors and have them specifically authorize the president, John F. Walker, to lend the truck to Brumfield. We have already mentioned and will not repeat the authority of the president. He was the alter ego of the company. The fact that he was the company's highest officer and in charge of the truck was sufficient to support an inference that he was authorized to permit Brumfield to use it. Georgia Casualty Company v. Waldman, (CCA 5) 53 F.2d 24.
(Hn 10) It is contended by appellants that the lower court erred in admitting in evidence the proceedings whereby Brumfield was committed to Mississippi State Hospital. They argue that the proceedings are void because not filed by the clerk in Pascagoula until the day after the chancellor signed the decree in vacation at Gulfport. We are not concerned with the question whether the commitment proceedings are void. They were admissible for the purpose of showing that Brumfield appeared in court by waiver of process and admitted in writing that he was in fact an habitual user of narcotics. That was an admission against interest and it was proper to admit it in evidence regardless of the regularity of the commitment proceedings.
(Hn 11) Appellants argue that the negligence of appellee was the sole, proximate cause of the collision. They contend that he should have turned to his left and onto the wrong side of the pavement and into the path of two oncoming automobiles driven by other parties in order to dodge the truck driven by Brumfield, and that his failure so to do was the sole, proximate cause of the injury. This contention was pressed throughout the trial in the examination of witnesses and was submitted to the jury by the instructions granted to appellants. There was also submitted to the jury the question of appellee's alleged contributory negligence in failing to turn his car to the wrong side of the highway. The peremptory charge requested by appellants was properly refused. All questions of negligence and contributory negligence are for the jury to determine. Section 1455, Code of 1942.
It is also contended that one of appellee's instructions was erroneous. It is substantially the same as one which we approved in Dixie Drive-It-Yourself System v. Matthews, 212 Miss. 190, 54 So.2d 263, and appearing in Alexander's Mississippi Jury Instructions, Sections 705 and 2047, and correctly stated the applicable law.
(Hn 12) It is contended, finally, that the verdict for $15,000.00 is so excessive as to evince passion and prejudice on the part of the jury. In addition to external lacerations and bruises about the body, appellee sustained such a severe laceration of the liver that the left lobe was almost completely separated from the remainder. This required a most serious surgical operation. According to statistics a laceration of the liver results in death in eighty-eight per cent of all cases. Appellee, fortunately and thanks to the care of a skillful surgeon, was one of the twelve per cent, who survived. He suffered the most intense pain, and, notwithstanding survival he is still having trouble, and, according to the medical testimony, will continue to have trouble. He is still partially disabled, and his loss of time and medical and hospital expenses amount to a total of over $1,500.00. We have no hesitation in holding that the damages awarded are not excessive.
Affirmed.
McGehee, C.J., and Lee, Kyle and Holmes, JJ., concur.