Summary
In McDonough Motor Express, Inc., v. Spiers, 180 Miss. 78, 176 So. 723, 725, 177 So. 655, this Court said: `It will be observed that nowhere in the given instructions for either party were the grounds relied on in the declaration for recovery referred to. For appellee the jury were informed, in substance, that any negligence whatsoever in the manner in which appellant's truck was being driven which proximately contributed to appellee's injury would authorize a recovery.
Summary of this case from Merchants Company v. HutchinsonOpinion
No. 32870.
November 1, 1937.
1. AUTOMOBILES.
In action for injuries sustained in collision alleged to have resulted from defendant's negligence in driving truck in excess of 30 miles per hour on left side of highway through municipality, in absence of showing city ordinance limiting speed of motor vehicles within its limits, statutes limiting maximum speed of 30 miles per hour would apply (Code 1930, sections 5569, 5574).
2. TRIAL.
It is the duty of plaintiff to have court inform jury what is necessary to make out the case stated in the declaration.
3. APPEAL AND ERROR.
In action for injuries sustained in collision alleged to have resulted from defendant's negligence in driving truck in excess of 30 miles per hour on left side of highway through municipality, instructions that any negligence in manner in which truck was being driven which contributed to plaintiff's injury would authorize recovery, which in no way referred to the grounds relied upon for recovery, and which were not augmented by instructions obtained by defendant were reversible error, as insufficient as a guide for jury in arriving at verdict.
4. TRIAL.
Jury are not required to go to the declaration or beyond instructions given by the court, to ascertain grounds relied upon by plaintiff as basis of recovery.
ON SUGGESTION OF ERROR. (Division B. Dec. 13, 1937.) [177 So. 655. No. 32870.]AUTOMOBILES.
In action for injuries sustained in collision between trucks in municipality, instructions which did not refer to regulatory statutes which were allegedly violated by defendant's truck driver, or declare that violation of statutes must contribute proximately to the collision, but which left jury to guess at what constituted negligence, were insufficient (Code 1930, section 5569; Laws 1932, chapter 332, section 9).
APPEAL from the circuit court of Hancock county. HON.W.A. WHITE, Judge.
Ford Ford, of Pascagoula, for appellant.
The first error assigned is the giving of the instruction by which the jury were told in effect that a verdict should be returned for the plaintiff, if defendant had been guilty of any sort of negligence.
No one would contend that plaintiff could state one case and recover under another. The recovery must be confined to the negligence complained of in the declaration. If the plaintiff intended to base recovery on the alleged fact that appellant's truck was being run at an unlawful rate of speed, the declaration should have shown that clearly, and the instruction should have told the jury what the law was on the subject.
Section 568, Code of 1930; Scott v. Peebles, 2 S. M. 546; Gulf Research Development Co. v. Linder, 177 Miss. 133.
Assuming that it was based on the statute, or assuming that the recovery was to rest on a charge of unlawful driving, that would be a question of law which should have been clarified in the instruction.
Baldwin v. McKay, 41 Miss. 363; Young v. Powers, 41 Miss. 197; Y. M.V.R. Co. v. Cornelius, 131 Miss. 37; Southern R.R. v. Ganong, 99 Miss. 540.
We cannot assume that the jury was familiar with all the allegations of the declaration and knew what it contained. The court said in the Cornelius case that an instruction should be complete in itself. This charge to the jury leaves one entirely in the dark. The jury had a wide range of speed limits within which to choose and how can any one say that they believed this witness or that witness in preference to others?
The truth of the matter is that this is a roving instruction, which authorized the jury to bring in a verdict against appellant if it were guilty of any sort of negligence, whether the case is based on it or not.
Gulf Research Development Co. v. Linder, 177 Miss. 123; D'Antoni v. Teche Lines, 143 So. 415, 163 Miss. 668; Hilton v. Hamilton, 23 Miss. 496.
The instruction is further erroneous because it seems to authorize recovery for any sort of carelessness or negligence, whether complained of or not. Suppose the jury did not believe that the truck was driven to the left of the center, and did not believe that it was running at an unlawful rate of speed, but thought that the driver was not keeping a proper lookout, or failed to blow his horn. Certainly that might have been negligence. The jury would have been entitled under the instruction to bring in a verdict if it believed that, although there is no such charge in the declaration. This court has expressly condemned instructions of this sort.
Hines v. McCullers, 121 Miss. 667; Y. M.V.R.R. Co. v. Aultman, 173 So. 280.
The next point discussed for error is the giving of instruction where the jury were told that they should bring in a verdict for all damages and injury from which plaintiff was suffering, irrespective of whether the injuries were caused by the accident or not, and irrespective of whether such injuries were shown by the evidence or not. Certainly, it should require no citation of authority to demonstrate the utter impropriety of any such charge to the jury.
Gulf Research Development Co. v. Linder, 177 Miss. 123; R.R. Co. v. Magee, 93 Miss. 200; Y. M.V.R.R. Co. v. Smith, 82 Miss. 656.
Gex Gex, of Bay St. Louis, and J.E. Stockstill, of Picayune, for appellee.
The declaration alleges a reckless, careless, negligent violation of the statutes of the State of Mississippi setting out the rules of the road, and the speed at which vehicles may travel; and a violation of the speed limits within an incorporated municipality. The testimony for the plaintiff — which was believed by the jury — substantiates every allegation of the declaration; and the instruction limits the finding of the jury to such facts as they may ascertain to be true "from a preponderance of the evidence."
All the testimony for the plaintiff which the jury by its verdict found to be true, showed the operation of the appellant's truck in a careless and negligent manner; that it was on the left hand side of the highway when the accident occurred; that the truck was running through a thickly built up community within the City of Picayune; and that the rate of speed was forty-five or fifty miles per hour. These acts of negligence and violation of the law were charged as such in the declaration. The instruction was plain, and with no possibility of its misconstruction by the jury. It directed the jury to find for the plaintiff only if the appellant was guilty of negligence, carelessness and violation of the law, and further stated that they must believe from a preponderance of the evidence that these facts existed and were the sole proximate cause of the plaintiff's injury, before they could find for the plaintiff.
Nelms Blum Co. v. Fink, 159 Miss. 372; Gulf Research Development Co. v. Linder, 177 Miss. 135.
It will be noted further that the instruction complained of makes it necessary for the jury to have found from a preponderance of the evidence that the appellant must have been guilty of operating its truck in a careless and negligent and unlawful manner; that is to say unless all three concurred, the jury could not find for the plaintiff.
We call the court's attention also to the fact that the appellant had the benefit of most favorable instructions as to its liability, all of which must be taken into consideration in the determination of the case. It is well settled in Mississippi that all instructions must be read together, and if when so read, they fairly state the law as to the right of the parties, the case will be affirmed; this rule is so firmly established that we cite only a few of the decisions to that effect, without quoting therefrom.
Yazoo R. Co. v. Williams, 87 Miss. 344; Miss. R. Co. v. Hardy, 88 Miss. 732; Yazoo R. Co. v. Kelly, 98 Miss. 367.
We submit that the instruction definitely embraces the negligence alleged in the declaration, and supported by the evidence; furthermore it embraces all the charges of negligence alleged in the declaration, when as a matter of law it might have been based on either of those acts of negligence.
It is with apologies that we once more take up before this court the discussion of the instruction as to the measure of damages granted on behalf of the plaintiff. This instruction has appeared for consideration and has been assigned as error to this court so frequently, and so many times has this court held it to be a proper instruction, that we feel that about the only thing to do is to refer the court to those former cases and the previous briefs written therein.
The last case in which this court had this instruction under consideration was the case of L. N.R.R. Co. v. Burrus, 166 So. 768. Not only was the identical argument here presented, advanced in that case, but every conceivable argument which had ever been presented by any appellant attacking the instruction was raised in the Burrus case, and this court affirmed the Burrus case per curiam. The same instruction was argued from every standpoint in the following cases:
Jordan River Lbr. Co. v. LaFonatine, 86 So. 594; Gulfport Miss. Coast Traction Co. v. Keebler, 130 Miss. 631; G. M.C. Co. v. O'Bierne, 105 So. 506; Gulfport Creosote Co. v. Hoffman, 89 So. 922; Allen v. Friedman, 156 Miss. 77; Teche Lines v. Bateman, 162 Miss. 404; Schemper v. Speer, 161 So. 674.
The above cited cases are only a partial list of cases in which the question has been squarely presented to the court. We could continue indefinitely to cite cases in which counsel for the appellee herein has used the same instruction, in many of which no other instruction was asked, but we feel that to do so would uselessly burden the court. The briefs of counsel in each of those cases fully cover every phase of the question as now presented by counsel for appellant, and in each of those cases this court has unhesitatingly affirmed the action of the trial court in granting the instruction.
Chesapeake Ohio Ry. Co. v. Carnahan, 241 U.S. 241, 60 L.Ed. 981.
This court has uniformly held that error in instructions is harmless where the verdict of the jury is clearly right.
Hale v. Hinkle Merc. Co., 132 So. 751; Sanitorium v. Scruggs, 121 Miss. 331; Davis v. Elzey, 126 Miss. 789.
Argued orally by E.J. Ford for appellant and by W.J. Gex, Jr., for appellee.
Appellee brought this action in the circuit court of Hancock county against appellant to recover damages for a personal injury caused by the collision of one of appellant's freight trucks and a small truck driven by one Whitfield and in which appellee was riding, alleged to have been brought about by the negligence of the driver of appellant's freight truck. The trial resulted in a verdict and judgment in the sum of $5,000. From that judgment, appellant prosecutes this appeal.
Highway No. 11 runs approximately northeast and southwest through the city of Picayune. The witnesses refer to it as the north and south road, and we shall so treat it. On the west side of the highway in the city of Picayune there are some wholesale houses, including warehouses. Appellee resides about six miles in the country from Picayune. One Whitfield agreed to haul some fertilizer for him and undertook the job; Whitfield driving and appellee riding in the truck with him. The fertilizer was loaded at the Thigpen-Whitfield warehouse in Picayune, one of the warehouses referred to above. In loading the fertilizer the rear of the truck was west of the highway, and after the loading was finished Whitfield undertook to back his truck so as to get on the highway. At that time one of appellant's large trucks with a trailer attached was traveling north on the highway, going to Meridian. There was a collision between the two trucks; the rear of the Whitfield truck striking appellant's truck at about the point where the trailer was attached.
Appellee was injured by the collision. According to Dr. Fountain's testimony, the injury consisted of the dislocation of the right sacroiliac joint in the back in the lumbar region, and a subdislocation of the subvertebrae in the neck. Dr. Fountain also testified that by these injuries appellee was permanently disabled.
The negligence charged in the declaration was that the appellant's truck was being driven in excess of 30 miles an hour, and on the left side of the center line of the highway, and running through the municipality in disregard of the rights of other persons. The testimony for appellee tended to show that the appellant's truck was traveling at a speed of from 40 to 45 miles an hour, and that for appellant that it was traveling at a speed of only 7 to 15 miles an hour. There was a conflict in the testimony as to whether appellant's truck at the time of the collision was traveling on the west or east side of the highway.
Appellee obtained the following two instructions, the giving of which is assigned and argued as reversible error:
"The court instructs the jury, for the plaintiff that if you believe from a preponderance of the evidence that the defendant is liable to the plaintiff in this action, then in assessing damages against the defendant you may take into consideration the pain and suffering of the plaintiff, his mental anguish, if any, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work, if any, and its effect upon his future."
"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this cause, that plaintiff was injured by reason of the negligent, careless and unlawful manner in which the motor vehicle of the defendant herein was being operated at the time of the collision between the two motor vehicles involved in said cause, if you further believe from a preponderance of the evidence herein that said defendant's motor vehicle was being operated in a negligent, careless and unlawful manner at the time of said collision; and if you further believe from a preponderance of the evidence herein that such negligent, careless, and unlawful manner in which said defendant's motor vehicle was being operated was the sole proximate cause of said injury, then you shall find for the plaintiff."
The only other instructions granted appellee was one on the form of the verdict, and the "nine juror verdict" instruction.
The appellant obtained only three instructions. In one the jury were told that appellee and Whitfield were engaged in a joint enterprise, and if they believed from the evidence that Whitfield negligently drove his truck into appellant's truck, and the latter was guilty of no negligence which contributed to the collision, it was their duty to find a verdict for appellant. In another, the jury were told that if they believed from the evidence that the sole cause of the collision was brought about by "the negligence, if any, on the part of the driver of the Whitfield truck in which plaintiff was riding, then it is your sworn duty to find a verdict for the defendant"; and the other instruction was on the form of the verdict.
It will be observed that nowhere in the given instructions for either party were the grounds relied on in the declaration for recovery referred to. For appellee the jury were informed, in substance, that any negligence whatsoever in the manner in which appellant's truck was being driven which proximately contributed to appellee's injury would authorize a recovery. There was no ordinance of the city of Picayune in evidence prescribing the maximum speed of motor vehicles within its limits. The statutes therefore apply; and in the absence of such an ordinance the maximum speed was 30 miles an hour, and, where closely built up, 20 miles an hour. Section 5569, Code of 1930. There is no statute requiring the driver of a motor vehicle to keep to the right of the center of the road, except in passing other vehicles. Section 5574, Code of 1930.
It was the duty of appellee to have the court inform the jury what was necessary to make out the case stated in the declaration. This was not done. There was no obligation on the part of appellant to do it. The jury were left entirely at sea as to what character of negligence was necessary to be proven in order to authorize appellee to recover; just any negligence was sufficient under appellee's instructions, provided it proximately contributed to the collision. This defect was not cured by any instructions obtained by appellant. The jury were not required to go to the declaration, nor elsewhere, except the instructions given by the court, in order to ascertain the grounds relied on by appellee as the basis of recovery. Southern R.R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Yazoo M.V.R.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.
We are not dealing with a case where no instructions were asked or given for the party suing, but a case where the plaintiff undertook to have the court inform the jury as to the governing legal principles, and fell short of doing so, to the extent that the jury were left without a guide.
Reversed and remanded.
It is true that the truck in which appellee was riding backed into the warehouse and therefore faced the highway, and the collision occurred when it was coming out, while the converse was stated in the opinion, and it is also true that the court was not aware of the existence of chapter 332, Laws of 1932, of which section 9 is a part. It is impossible for the members of the court to keep in mind all the statutory laws of the state. The briefs in this case made no reference whatever to the statute. In the suggestion of error appellee admits that his counsel was derelict in that respect.
Section 9 of chapter 332, Laws of 1932, provides, in substance, that all motorbusses and motortrucks shall be operated on the right-hand side of the middle line of the highway, except when passing motor vehicles proceeding in the same direction, or in avoiding obstructions, or washouts existing on the side of the road on which the bus or truck is traveling, or when in wet weather to so operate would be injurious to gravel roads, but such bus or truck shall allow full and unimpeded clearance of half the width of the roadway at all times whenever another vehicle, of whatever kind, desires to pass such bus or truck, either traveling in the same or opposite direction. However, the conclusion reached by the court would have been the same had it known of the existence of the statute, and of the fact that the truck faced the highway instead of the warehouse.
The trouble with appellee's position is that he undertook by his instructions to inform the jury of the law of his case, and fell short to the extent that the instructions were calculated to mislead the jury. The jury should have been informed as to what constituted excessive speed — more than twenty miles an hour in any municipality, section 5569, Code of 1930 — and that motor trucks were required to keep on the right-hand side of the center line of the highway, except under the conditions named in section 9 of chapter 332, Laws of 1932, and, if they believed from the preponderance of the evidence that appellant violated either of these statutes and that such violation proximately contributed to the collision and injury, they should find a verdict for the plaintiff. This was not done. The jury were left entirely to guess at what constituted negligence under the law.
Suggestion of error overruled.