Opinion
No. 38551.
December 15, 1952.
1. Motor vehicles — collision — damages — when issues for jury.
In an action for damages resulting from a collision of automobiles, where the testimony was in violent conflict on the issues of negligence, it was for the jury to decide under all the testimony and the circumstances shown, and the jury was not required to accept in its entirety the version of either party.
2. Negligence — comparative negligence, absence of instruction on.
When under all the testimony and circumstances thereby shown the jury was warranted in finding that a large part of the negligence contributing to plaintiff's loss and injuries was attributable to his own negligence, the jury has a right to apply the comparative negligence statute, notwithstanding the fact that no instruction to this effect was given by the court for either party. Sec. 1454, Code 1942.
3. Negligence — comparative negligence — damages — trial — verdict.
In an action by a motorist for damages both to his automobile and for personal injuries, the fact that the jury returned a verdict for the exact amount claimed for the repairs of the automobile would not warrant the Court on appeal in concluding that the jury considered only the damages to the automobile when the evidence was such as to support the jury in a finding that the part of the negligence chargeable to the plaintiff himself which proximately contributed to the damage and injury was comparatively sufficient to absorb the personal injuries portion of the damages.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Lowndes County; JOHN D. GREENE, JR., Judge.
Sims Sims, for appellant.
I. The court erred in granting the instruction on page 186 of the trial transcript for the defendants. Lucedale Auto Co. v. Saughdrill, 154 Miss. 707, 123 So. 871; White v. Philadelphia, 197 Miss. 166, 19 So.2d 493.
II. The verdict is against the overwhelming weight of the evidence in that it did not allow the plaintiff anything for his personal injuries in the case; thus, the case should be affirmed as to liability and reversed and remanded for a new trial as to the personal damages sustained by the plaintiff. 15 Am. Jur., Sec. 65, p. 469, Sec. 68, p. 474; Christina Mourison, Appt. v. John A. Hansen, et al., 128 Conn. 62, 20 A.2d 84, 136 A.L.R. 413; C.F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694.
III. The verdict and judgment are contrary to the law in the case in that the jury found that there was liability on the part of the defendants for they allowed the entire amount sued for for property damage, and although several witnesses were introduced as to the plaintiff's personal injuries and it was proven by a preponderance of the testimony that the plaintiff sustained serious injuries as a result of the negligence of the defendants, the jury allowed nothing for plaintiff's personal injuries. 15 Am. Jur., Sec. 70, p. 477.
IV. The verdict of the jury is contrary to the overwhelming weight of the evidence produced as to the personal injuries sustained by the plaintiff. Chicago City Ry. Co. v. Saxby, 213 Ill. 274, 72 N.W. 755, 104 Am. St. Rep. 218; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 123 Am. St. Rep. 415; Brown v. Hannibal, etc., R.R., 66 Mo. 588; Ownes v. Kansas City, etc., R.R. Co., 95 Mo. 169, 8 S.W. 350, 6 Am. St. Rep. 39; West v. St. Louis S.R.R. Co., 187 Mo. 351, 86 S.W. 140; Delaplain v. Kansas City, 109 Mo. App. 107, 83 S.W. 71; Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617; Louisville N.R. Co. v. Daugherty, 32 Ky. L. Rep. 1392, 108 S.W. 336, 15 L.R.A. (NS) 740; Murphy v. Southern P. Co., 31 Neb. 120, 101 P. 322, 21 Ann. Cas. 502; 15 Am. Jur., Secs. 80, 81, pp. 488, 490.
V. The verdict of the jury which read as follows, "We, the jury, find for the plaintiff in the amount of $648.29," shows that the defendant, Jessie Lee Howard, was negligent in the operation of the automobile, and yet they assessed no damages for the personal injuries sustained by the plaintiff and it is shown by a preponderance of the evidence that he did sustain serious personal injuries as a result of the negligence of the defendant, Jessie Lee Howard. The sum of $648.29, being the exact amount of the property damage to the plaintiff's automobile.
VI. The verdict of the jury is indefinite, uncertain and not in accordance with the overwhelming weight of the evidence and contrary to the instructions given by the court. Davis, et al. v. McDonald, 178 So. 467; Vascoe v. Ford, et al., 54 So.2d 541; Payne v. McNeeley, 85 So. 197; Grenada Dam Constructors, Inc. v. Patterson, 48 So.2d 480; Mobile O.R. Co. v. Carpenter, 104 Miss. 706, 61 So. 693; Memphis Charleston R.R. Co. v. F.E. Whitfield, 44 Miss. 466; Mississippi Cent. R. Co. v. Smith, 168 So. 604; Hollinshed v. Yazoo M.V.R. Co., 55 So. 40; 15 Am. Jur., Sec. 73, p. 483. Roger C. Landrum and Snow Covington, for appellees.
Appellant takes the position that the jury awarded damages only for the loss to appellant in connection with his automobile. In this he may or may not be correct. No one knows on what the jury based its judgment. It might have awarded the necessary expense in connection with repairs of the automobile as compensation for personal injuries, or, it might have allowed a portion of the award for personal injuries and a portion for property damage. What yardstick the jury used is known only to the jury. It is true that the amount of the verdict and of the judgment is the same as the amount of the repair bills in connection with the repairs to appellant's automobile. The jury did not have to award appellant anything, either for property damage or for personal injuries. The jury had for consideration a question of fact and the verdict was the result of deliberation.
The Mississippi Supreme Court has planted itself as regards the question of inadequacy of damages claimed where the pleadings and proof show that it was claimed on the trial, and through it, that the plaintiff himself was guilty of negligence and that his negligence contributed to the injuries.
In the case of Pounders v. Day, 151 Miss. 436, 118 So. 298, the Court used the following language: "It is urged by appellant that Day, the defendant in the court below, did not request an instruction seeking to have the damages diminished which flowed from the negligence of the plaintiff in leaping from the wagon. If the jury adopted defendant's theory of how the accident occurred, there was no instruction given by the court for either party announcing the law as set forth in the statute (Sec. 516, Hemingway's 1927 Code; Laws of 1920, c. 312), which statute diminishes damages proportionate to the amount of neglifence attributable to the person injured."
"We agree with counsel for appellant that $400 is not compensation for the injuries sustained by this boy and the suffering he endured; but the jury may have applied to this case Section 516, supra, and diminished the damages in proportion to what they conceived to be the lad's negligence in leaping in front of an automobile in motion and undertaking to cross the road in front thereof, notwithstanding no instruction had been given by the court to this effect for either party."
The appellant, as plaintiff below, brought this suit in the Circuit Court of Lowndes County against James Sykes and Evelyn Sykes as the alleged owners and operators of the Sykes Cabs, and against Jessie Lee Howard, to recover damages to his automobile and actual and punitive damages for personal injuries alleged to have been caused by the negligence of the defendants. The suit grows out of a collision of an automobile owned by the appellant, and driven at the time by the appellant, and a taxicab belonging to the Sykes Cabs, and driven at the time by Jessie Lee Howard as the servant, agent, and employee of the Sykes Cabs. Two separate suits were filed by the appellant, one for the recovery of damages to his automobile, and one for the recovery of actual and punitive damages for personal injuries, and both arising out of the same collision. By agreement of the parties, the two suits were consolidated and tried as one suit. A motion for a directed verdict as to the defendant, James Sykes, was sustained, since the evidence without dispute showed that Evelyn Sykes was the sole owner and operator of the Sykes Cabs and that the said James Sykes had no interest therein and no interest in, or control over, the taxicab involved, and no control of, or relationship with the driver thereof. At the conclusion of the evidence, the case was submitted to the jury under instructions which left to the jury the determination of the question of the negligence vel non of the respective parties and resulted in a verdict in favor of appellant for $648.29. Judgment was accordingly entered for the appellant and against the appellees, Evelyn Sykes and Jessie Lee Howard. From this judgment the appellant appeals. There is no direct or cross-appeal by the appellees.
The collision occurred about six miles west of Columbus on what is known as the old West Point public road, a county public road extending in an east and west direction, and hereinafter referred to as the main road. The road is a graveled road about 22 feet in width. At the place of collision the appellant owned farm land on either side of the road. A private or plantation road entered the main road from the south. On the occasion in question, the appellant was driving his automobile on the private road proceeding in a northerly direction, with a view of entering and turning east on the main road, and, according to the versions of the respective parties, had entered and turned east on his left hand side of the main road and was proceeding along his left hand side of said road, or had just entered and crossed to the north side of the center of said road, and was in the act of completing his turn east, when the collision occurred.
According to the testimony of the appellant and his witnesses, he had entered the main road and turned east thereon and was proceeding at a slow rate of speed and had travelled about 25 feet when the appellee, Jessie Lee Howard, driving the taxicab, approached him from the east travelling west at a rate of speed of about 75 miles per hour and on the wrong side of the road, and collided with his car, knocking it a distance of about 75 feet west and badly damaging the front thereof and inflicting personal injuries upon the appellant.
According to the testimony of Jessie Lee Howard and other witnesses for the appellees, Howard was driving west on the right hand side of the main road at a rate of speed of 35 or 40 miles per hour, and as he approached the intersection of the main road and the private road, the appellant drove into the main road and to the north side thereof, and was in the act of turning east in the path of the approaching taxicab when the driver of the taxicab applied his brakes, but was unable to stop in time to avoid the collision.
The proof showed that the repair bill on appellant's automobile was $648.29. The appellant's proof as to his injuries showed that his knee, hip, and arm were injured and that he received a lick on his head and suffered several abrasions, and was hospitalized for four days and continued under the treatment of a doctor; that while he had previously suffered from arthritis, his condition was inactive, and the injuries received in the collision had activated his arthritic condition. The appellees offered proof to show that the appellant complained of no injuries immediately following the collision and that his arthritic condition had existed long prior to the collision.
No instruction was requested by either party seeking to authorize the jury to apply our comparative negligence statute (Sec. 1454, Code of 1942), which statute diminishes damages proportionate to the amount of negligence attributable to the person injured.
The sole contention of appellant is that the verdict is contrary to the evidence in that the jury's award was for the damages to appellant's automobile only and made no award to compensate the appellant for the personal injuries and medical expenses, and that as to these items the verdict is contrary to the evidence produced as to his personal injuries, and that the trial court erred in not sustaining his motion for a new trial, and that the cause should be reversed and a new trial granted on the issue of damages only.
(Hn 1) It is readily observable that the testimony as to who was at fault in the collision was in violent conflict. Each of the drivers testified that the collision was solely caused by the negligence of the other. This would not, however, have rendered erroneous an instruction based on our comparative negligence statute, supra, had it been asked, nor would it preclude the jury from applying our comparative negligence statute. The jury was not required to accept in its entirety the theory of either party, but it was the province of the jury to consider all of the testimony and the circumstances shown and to determine therefrom the negligence of the respective parties. Morrell Packing Company, et al. v. Branning, 155 Miss. 376, 124 So. 356. The jury would have been warranted in finding under the evidence that either driver was guilty of negligence solely causing the collision, or it was warranted in finding under the evidence that each was guilty of negligence proximately contributing to the collision. These were issues for the determination of the jury. (Hn 2) The jury may have found that a large part of the negligence contributing to appellant's loss and injuries was attributable to his own negligence, and it may have applied our comparative negligence statute, supra, as it had the right to do, notwithstanding no instruction to this effect had been given by the court for either party. Chapman v. Powers, 150 Miss. 687, 116 So. 609; Pounders v. Day, 151 Miss. 436, 118 So. 298. (Hn 3) It is true that the amount of the verdict corresponded exactly with the amount of the repair bill, but the jury's verdict was not designated as an award for damages to his automobile, but was a money award to compensate him for the damages he sustained. We must assume that the jury took into consideration all damages shown by the evidence to have been sustained by the appellant as a direct and proximate result of the collision, as it was authorized to do under the instructions of the court, but the jury could have found and may have found from the evidence that a large part of the negligence proximately contributing to appellant's loss and damages was his own negligence, and may have applied our comparative negligence statute, supra, in arriving at the amount of the verdict. We can not say from the verdict that the jury in arriving at the amount thereof did not take into consideration all damages shown by the evidence to have been sustained by the appellant, as well as the evidence as to the negligence of the respective parties, and then apply our comparative negligence statute in arriving at the amount of the verdict. We must conclude that the amount of the verdict, even though it corresponded with the amount of the repair bill, was found by the jury to be a proper award under all of the evidence.
We are of the opinion, therefore, that the judgment of the court below should be and it is affirmed.
Affirmed.
McGehee, C.J., and Alexander, Hall, and Kyle, JJ., concur.