Summary
In Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627, testimony of a highway patrolman was rejected, but in that case there were witnesses testifying as to the facts, and there was no necessity for explanation of the facts by an expert.
Summary of this case from Hagan Storm Fence Co. v. EdwardsOpinion
No. 41852.
May 8, 1961.
1. Juries — disputed questions of fact for jury to consider.
All disputed questions of fact must be left for jury to consider. Sec. 1455, Code 1942.
2. Appeal — verdict based on conflicting evidence — not to be disturbed on appeal.
Jury verdict based on conflicting evidence will not be disturbed on appeal. Sec. 1455, Code 1942.
3. Appeal — verdict as against evidence — not to be disturbed unless.
Verdict or finding of jury will not be disturbed as against evidence because of mere preponderance of evidence against it, but will be set aside only when it is palpably against weight of evidence, or clearly shows that jury was mistaken, or was influenced by passion, prejudice, or corruption. Sec. 1455, Code 1942.
4. Motor vehicles — intersectional collision — conflicting evidence — question of liability for jury.
Testimony in consolidated actions by motorist and his wife, who was passenger, for injuries and property damage sustained in collision with pickup truck at or near highway intersection against driver of pickup was conflicting, and question of liability was for jury. Sec. 1455, Code 1942.
5. New trial — evidence — opinion evidence — conclusions of police officer, who arrived at scene of accident after collision but before automobiles were moved, inadmissible.
Testimony of police officer, who arrived at scene of accident after automobiles had collided but before they were moved, that both automobiles came into intersection at the same time, if offered, would have been inadmissible as hearsay, conclusion or opinion evidence, and such testimony would not constitute basis for new trial.
6. Evidence — witness restricted to facts within his personal knowledge.
Police officer, who arrived at scene of accident after collision but before vehicles had been moved, could have testified to facts and to what he saw, but could not have told what he believed to be true from what he saw.
7. Witnesses — defendant owed no duty to hold his witnesses for plaintiffs.
Defendant owed no duty to plaintiff in civil suit to hold witnesses for plaintiffs when defendant no longer needed them.
8. Witnesses — subpoena required to hold witness.
If party wants to hold a witness to testify for him, he must have subpoena issued for the witness.
9. New trial — instructions — defendant's instructions requiring jury to believe that plaintiff driver was "sole cause of the accident" in order to find for defendant not reversible error.
Instruction granted to defendant requiring jury to believe by preponderance of evidence that one of plaintiffs was sole cause of accident in order to find for defendant was more favorable to plaintiffs than that to which they were entitled, and did not entitle plaintiffs to new trial.
10. Appeal — instructions — more favorable than due — appellant cannot complain.
Appellant cannot complain of instruction more favorable to him than that to which he is entitled.
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, J.
Karl Wiesenberg, Pascagoula, for appellee.
I. The verdict of the jury was against the overwhelming weight of the evidence. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461.
II. In view of the affidavit of the county patrolman, made a part of the motion for a new trial on the ground of surprise, the affirmative defense pled in the appellee's answer, and the testimony of the appellee that the collision took place 210 feet east of the intersection, the court below in the interest of justice, should have sustained the motion for a new trial. DeAngelo v. State, 187 Miss. 84, 192 So. 444; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Warren v. Frank Gardner Hardware Supply Co., 96 Miss. 284, 51 So. 129; Sec. 1536, Code 1942.
III. The instruction granted the appellee on his affirmative defense omitted any requirement on the part of the appellee to exercise reasonable or ordinary care, and under the facts of the case amounted to a peremptory instruction in favor of the appellee. Cothern v. Brewer, 234 Miss. 676, 107 So.2d 361; 5A Am. Jur., Automobiles Highway Traffic, Secs. 201, 202.
Merle F. Palmer, Pascagoula, for appellee.
I. The jury verdict in the case is not against the overwhelming weight of the evidence and the issues of fact as to which the evidence was conflicting were foreclosed by the jury's verdict. Faulkner v. Middleton, 186 Miss. 355, 188 So. 565, 190 So. 910; Lynch v. American Slicing Mach. Co., 202 Miss. 515, 32 So.2d 546; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 176 So. 756; Sec. 1454, Code 1942.
II. A variance between the cause of action stated and that sought to be proved can only be availed of by objection to the testimony, otherwise it will not be considered on appeal. Illinois Cent. R. Co. v. Cathey, 70 Miss. 332, 12 So. 253; Illinois Cent. R. Co. v. Price, 72 Miss. 862, 18 So. 415; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Louisiana Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792; Rawson v. Blanton, 204 Miss. 851, 35 So.2d 65; True-Hixon Lumber Co. v. McDonough, 154 Miss. 720, 123 So. 855; Westbrook v. Cornell, 199 Miss. 118, 23 So.2d 753.
III. Patrolman Thornton's affidavit attached to appellants' motion for a new trial is nothing more than mere conclusions of what he saw at the scene of the accident way after the same occurred, and is not newly discovered evidence. Patrolman Thornton was available to be subpoenaed by either party. He was a county patrolman.
IV. There is a necessity for diligence on the part of a litigant and his counsel in the trial of a lawsuit. Roberts v. International Harvester Co., 181 Miss. 440, 179 So. 745, 180 So. 747.
V. Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for new trial. Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237.
VI. A party asking for a new trial on ground of newly discovered evidence must satisfy Court that evidence has come to his knowledge since trial, that it was not owing to want of diligence on his part that it was not discovered sooner, and that new evidence would probably produce a different result if new trial was granted. Hutto v. Kremer, 222 Miss. 374, 76 So.2d 204.
VII. The instruction complained of and the other instructions in this case properly covered the law as applicable to the situation at bar when it was tried in the court below. General Benevolent Assn., Inc. v. Fowler, 210 Miss. 578, 50 So.2d 137; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Spencer v. Landrum (Miss.), 186 So. 320; Alexander's Mississippi Jury Instructions p. 221.
Mrs. Ora Schumpert and John W. Schumpert filed their separate suits against George Watson in the Circuit Court of Jackson County, Mississippi, and by agreement the cases were consolidated and tried as one suit. The jury returned a verdict for the defendant, and from the judgment entered in the lower court, the plaintiffs there appealed to this Court.
On the 20th day of June 1959, Mr. John W. Schumpert was driving his Cadillac automobile in an easterly direction on Highway 90 about one and one-half miles east of Pascagoula, Mississippi. He had his wife, Mrs. Ora Schumpert, and two children in the car with him. He approached the intersection of the Chico Road at about 11:30 A.M. on a clear day. When the appellants had reached a point about 75 feet from the intersection, the defendant George Watson, a 63 year old colored citizen of Jackson County, drove a pickup truck from a point just west of the Chico Road, turning east, and then southeast across the Chico Road intersection. He had reached the right-hand lane on Highway 90, either before or after he had crossed the intersection (the testimony is in conflict on this point), the Cadillac struck the back right-hand side of the pickup truck driven by George Watson. The Cadillac turned over, and the appellants were injured. Mrs. Schumpert had to be hospitalized for about 9 days, and Mr. Schumpert was slightly injured. The Cadillac was a total loss. The testimony was conflicting as to the speed of appellant's automobile, how far his car skidded, the length of his tire marks, and as to how and when the defendant Watson crossed into the right lane of Highway 90. It is obvious that this is a highway accident at an intersection and is a question of fact to be determined by a jury. The jury returned a verdict for the defendant.
The appellants complain that their motion for a new trial should have been sustained, because (1) the verdict of the jury is contrary to the overwhelming weight of the evidence, (2) that the county patrolman O.F. Thornton was summoned as a witness for the defendant and released, and that the plaintiffs did not have an opportunity to talk to him, and (3) the court granted two erroneous instructions for the defendant.
The testimony in this case is in conflict not only as to how the accident happened, but also as to where it happened, and who was in the appellant's automobile. The testimony of appellants shows the accident happened west of the intersection of the Chico Road and Highway 90.
The affidavit of the highway patrolman and a map drawn by him show clearly the accident happened at the intersection of the Chico Road and the testimony of the defendant shows that it happened 210 feet east of the intersection, that the appellant John W. Schumpert began to skid west of the intersection, and skidded through the intersection and east of the intersection.
(Hn 1) It is the universal rule that all disputed questions of fact must be left for the jury to consider. McClure v. Wilson, 186 P. 302, 18 A.L.R. 1421. Mississippi statutory law requires that: "All questions of negligence and contributory negligence shall be for the jury to determine." Section 1455, Code of 1942, Rec.
(Hn 2) This Court has repeatedly held that a jury verdict based upon conflicting evidence will not be disturbed on appeal. See Key Number 1002, Appeal and Error, West's Mississippi Digest. (Hn 3) Moreover, a "verdict or finding of the jury will not be disturbed as against the evidence because of a mere preponderance of evidence against it, but will be set aside only when it is palpably against the weight of evidence, or clearly shows that the jury was mistaken, or was influenced by passion, prejudice, or corruption." See Key Number 1003, Appeal Error, West's Mississippi Digest. Where the evidence is conflicting and would have supported a verdict either way, it is peculiarly a case for the jury. Trotter, et al v. Staggers, et al, 201 Miss. 9, 28 So.2d 237.
In the case of St. Louis S.F.R. Co. v. Bowles, 107 Miss. 97, 64 So. 968, this Court said: "* * * we do not believe it to be the province of this Court to set aside the verdict of a jury, finding the facts of the case, merely because we should be of opinion that the verdict was contrary to what we deemed the weight of evidence."
(Hn 4) We are, therefore, of the opinion that the testimony was conflicting, and this was a case for the determination of the jury in the lower court.
(Hn 5) The point raised by the appellants in regard to the affidavit of the county patrolman, in which he alleges that he arrived at the scene of the accident after the automobiles had collided, but before the automobiles were moved, and that if he had been put upon the witness stand in the case he would have testified to certain facts. For example, he would have testified: "The Watson car had come into the Chico intersection at the same time as the Schumpert car." In fact all of his testimony was either "hearsay", "conclusion" or "opinion" evidence and would not have been admissible over the objection of the defendant. See Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297; Columbus G. Ry. Co. v. Robinson, 189 Miss. 675, 198 So. 749; Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So.2d 443. (Hn 6) He could have testified to facts, what he saw, but could not have told what he believed to be true from what he saw. 32 C.J.S., Evidence, Section 438, p. 70. (Hn 7) Moreover, the defendant owed no duty to the plaintiff in a civil suit to hold witnesses for them, when he no longer needed them. (Hn 8) On the other hand, if the plaintiff wants to hold a witness, he must have a subpoena issued for the witness.
(Hn 9) The two instructions granted to defendant and complained of by the appellants requiring the jury to believe by a preponderance of the evidence that John W. Schumpert "was the sole cause of the accident" in order to find for the defendant, although unartfully drawn was not a reversible error. See Spencer v. Landrum, (Miss.) 186 So. 320. (Hn 10) The appellant can not complain of an instruction more favorable to him than that to which he is entitled. See Independent Order of Sons Daughters of Jacob of America v. Wilkes, 98 Miss. 179, 53 So. 493; Hood v. Moffett, 109 Miss. 757, 69 So. 664; General Benevolent Ass'n. Inc. v. Fowler, 210 Miss. 578, 50 So.2d 137; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74.
The judgment of the lower court will therefore be affirmed.
Affirmed.
Lee, P.J., and Kyle, Arrington and Ethridge, JJ., concur.