Opinion
No. 29811.
February 15, 1932. Suggestion of Error Overruled April 14, 1932.
1. TRIAL.
Written statement directly at variance with plaintiff's testimony on material points was admissible as original evidence, and court erred in restricting use of it to cross-examination.
2. AUTOMOBILES. Peremptory instruction that hosts were liable to guest for auto collision held error.
Guest had theretofore signed written statement directly at variance with testimony at trial. Statement was that she did not know how accident had happened, that automobile was being driven in ordinary way, and that she had noticed nothing unusual.
3. PARENT AND CHILD.
Mother who was guest of adult son may maintain action against him and daughter-in-law for injuries sustained in auto accident.
4. AUTOMOBILES.
Where guest injured in collision knew that auto was being driven in excess of speed limit, but made no protest, contributory negligence should have been submitted to jury.
5. DAMAGES.
Where hospital and medical expenses had been paid by defendant who had not been reimbursed by plaintiff, latter could not recover them in action for negligence.
ON SUGGESTION OF ERROR. (Division B. Feb. 29, 1932.) [139 So. 856. No. 29811.]APPEAL AND ERROR.
Motion for new trial, specifying exclusion of statement signed by plaintiff as ground therefor, held unnecessary to present such error on appeal (Code 1930, sec. 724; Supreme Court Rule 6, par. 3).
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, J.
Watkins, Watkins Eager, of Jackson, for appellants.
A minor or an unemancipated child cannot recover in court against the parent.
The wife cannot maintain an action in tort against the husband nor the husband against the wife.
Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388.
The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.
20 R.C.L., page 631, par. 20; Wick v. Wick, 192 Wis. 260, 212 N.W. 787; Hewlett v. George, 68 Miss. 703, 9 So. 885.
The logic of the above case is just as applicable to appellants and appellee as it was the facts in the adjudicated case. The court has based its decision on public policy — that is to say, upon the peace and harmony of the fireside. To hold otherwise, would utterly destroy the home, which is the foundation of our entire government. Would not the same result obtain between a son and his mother, irrespective of the son's age, where the facts show that at the very time of the alleged tort the mother was the recipient and beneficiary of the son's bounty and consideration.
That a judgment might be paid by an insurance company, however, in no wise changes the rule of law which creates the primary liability.
Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1106.
The ordinary position of parent and guardian of a minor, and that of plaintiff seeking to recover from the minor, are positions which cannot both be occupied by one person at one and the same time. Maintenance of the suit is inconsistent with the parent's status or office and the dependence of the minor upon her, and also with the dependence of the law upon her, for the fulfillment of necessary legal and social functions.
Schneider v. Schneider, 152 A. 498.
Where an invitee of an automobile continues to ride without objection at an excessive and unlawful rate of speed, and without protest, any such negligence with respect to such speed on the part of the driver becomes the negligence of the occupant.
1 Berry on Automobiles, 665; I.C.R.R. Co. v. McLeod, 78 Miss. 334; Cowart v. Lewis, 117 So. 531; Chapman v. Powers, 116 So. 609; Y. M.V.R.R. Co. v. Lucken, 137 Miss. 591, 102 So. 393; McGeever v. O'Bryne, 203 Ala. 266, 82 So. 508; 42 C.J. 853, 527; Kolland v. Brainard, 141 Minn. 119, 169 N.W. 475.
Where the road becomes dangerous or the speed unlawful or excessive, it is the duty of a guest riding in an automobile to use ordinary care to protect himself from injury, and he should caution the driver of the danger, protest against it, and unless delivered from it he should quit the car, if that may be done with safety, or direct that the vehicle be stopped and, when stopped, get out of it.
Clark v. Traver, 200 N.Y.S. 52, 205 App. Div. 206, 143 N.E. 736, 237 N.Y. 544; Sheehan v. Coffey, 200 N.Y. Supp. 55, 205 App. Div. 388; Sharp v. Sproat, 111 Kan. 735, 208 P. 613, 26 A.L.R. 1421; State v. Phillinger, 142 Md. 365, 120 A. 878.
In any event the question of the negligence of the appellants was for the jury and the learned trial court erred in giving a peremptory instruction to find for appellee.
Rhodes v. Fullilove, 134 So. 840, 842.
The proof of the unlawful speed of the automobile only made out a prima-facie case and it was for the jury to say whether or not such speed constituted negligence proximately causing or contributing to the plaintiff's damage.
Lucedale Automobile Co. v. Daughdrill, 153 Miss. 707, 123 So. 871.
Appellee's acknowledged written statement that prior to the accident they were riding along "about as usual and about the usual gait," that she "didn't notice anything about my daughter-in-law's driving that was wrong or negligent" is a positive contradiction of her direct evidence and, as a result thereof, appellee was not entitled to a directed verdict on the question of liability.
The admitted statement is more than a mere impeachment of the witness for the reason that the statement having been admitted by the appellee it became of real probative value in a evidentiary manner as a statement against interest.
The learned trial court erred in instructing the jury on behalf of appellee that they should, in awarding her damages, include hospital, surgical, doctor's medical, nurses, X-ray, and other expenses that she incurred because the evidence conclusively shows that these items of expense were incurred by her son one of the appellants and no liability exists on her part therefor.
Chalmers Potter and G.Q. Whitfield, both of Jackson, for appellee.
The court should have excluded the whole statement, even the portions claimed to be contradictory, which it permitted the appellant to introduce, on the ground that the method by which it was procured was such an unconscionable method and took such an undue advantage of the plaintiff, in manufacturing a self serving statement from her, at the time and place and surrounded as she was, to be used thereafter for the purpose of impeaching her without giving her any notice whatsoever as to the purpose of the taking of the statement.
Jones v. A. V. Ry. Co., 16 So. 380; Thomas v. Rounds, 137 So. 894.
The family relationship other than that of husband and wife, does not prevent the plaintiff from maintaining a suit successfully against the other member of the family.
Thomas v. Carte, 117 So. 635, 218 Ala. 55; United States Casualty Co. v. Drew, 5 F.2d 498; Walsh v. Altoona L.V.E. Ry. Co., 232 Penn. State Rep. 484.
The better rule seems to be that a wife, riding with her husband, is entitled to rely upon him to look out to a great extent for her safety, and that by so doing she is not chargeable with his negligence. The wife is merely her husband's guest and has no control over her husband, nor his automobile in which she is riding, when he is driving.
Berry on Automobiles (6 Ed.), 502, section 626; Hennington v. Hennington, 221 Mich. 206; Huddy on Automobiles (5 Ed.), 678.
It has been held that where a wife was driving her husband's car and he was riding with her, her negligence was imputable to him.
1 Berry on Automobiles (6 Ed.), sec. 626, page 505.
The right of an infant to bring suit against his father for injuries has been denied; but a recovery by a daughter against her mother has been sustained, as well as an action by a mother against her daughter.
Huddy, Cyclopedia of Automobile Law (1931 Ed.), 2345.
The granting of a peremptory instruction on liability was correct.
Terry v. Smylie, 133 So. 662; Section 5588, Code of 1930; Lucedale Automobile Co. v. Daughdrill, 123 So. 871; Teche Lines v. Bateman, 162 Miss. 404.
The extra judicial statement attempted to be introduced by defendant was of no probative value as evidence, and would not have been, even if she had admitted the contradiction, which she emphatically denied, but only could be introduced for the purpose of impeaching the credibility of the plaintiff in regard to the particular matter stated in the alleged contradiction.
The exclusion of the statement obtained by claim agent Nelson was not mentioned in the motion for a new trial made by the defendants in the lower court, and could not be assigned as error in this court because of that omission.
Carpenter v. Savage, 46 So. 537.
If the sworn statement and the extra-judicial statement, or former statement, can posibly be reconciled the sworn testimony will not be considered to have been impeached.
Smith v. Dauber, 125 So. 102.
Appellant cannot complain of the refusal or modification of an instruction requested by it, if it thereafter requests and receives an instruction embodying an opposite principle of law, or a modified instruction, if it uses the opposite or the modified instruction.
5 Huddy's Cyclopedia of Automobile Law (9 Ed.), page 265.
The duty to remonstrate against excessive speed is not, however, absolute, but depends on the circumstances of the particular case, and usually presents a jury question. Before contributory negligence may be charged against a passenger or guest the reckless driving must have continued long enough to give the guest a reasonable opportunity to protest against it. Where the reckless driving has continued for but a short distance, and there has been but little time for the guest to take precautions for his safety his negligence may be question for the jury.
Sharp v. Sproat, 111 Kan. 735; Benjamin v. Noonan, 277 P. 1045; Brown v. Davis, 257 P. 877; Dowd v. Atlas T. A. Ser., 187 Calif. 523.
Appellee was clearly entitled to recover as a part of her damages whatever hospital and surgical and medical expenses had been incurred as a necessary result of her injuries, no matter who made the arrangements for said services, and no matter to whom they were charged, if the appellee intends as she swore, she does, to reimburse the party who had already paid the said expenses.
The office of a motion for a new trial also remains the same as before, viz., to specify particular errors supposed to have been committed during the trial. Even in criminal cases, though capital, this court is forbidden to consider errors or omissions not assigned in the court below.
Alexander v. Flood, 77 Miss. 925.
An appellant may be confined in the Supreme Court to the same ground of objection made by him in the court below, the Supreme Court being a court of appellate jurisdiction only.
Sylvania Ins. Co. v. Simmons, 158 Miss. 596.
This court is without authority to put the lower court in error because of the exclusion by it of the statement as a whole, when offered as a whole, for the reason that said action of the lower court was not made a specified ground of objection in its motion for a new trial nor was it ever excepted to, at the time of its exclusion by the lower court in the record.
Appellee, Mrs. Kate Weyen, sued the appellants Charles Weyen, her son, and his wife, in damages for personal injuries inflicted upon the plaintiff in a collision of a motor car driven by Mrs. Charles Weyen in which Charles Weyen was also an occupant, and in which appellee, Mrs. Kate Weyen, was riding as the guest of her son, on the way from her home in the state of Illinois to the home of her son in Terry, Miss., where she intended to make her son a visit. The son had driven from Golden, Ill., to a point between Memphis, Tenn., and Grenada, Miss., when he suggested that Mrs. Charles Weyen, his wife, take the wheel, which she did, and was driving the car, when Charles Weyen suggested that she had better step on the gas or they would not reach Grenada in time for lunch. Mrs. Charles Weyen then speeded up the car, and while it was being so driven a collision occurred in which the plaintiff (the appellee here) was badly injured.
The testimony of the plaintiff on the trial was to the effect that she was riding as the guest of her son, and that her son told his wife to step on the gas and speed up the car so that they might reach Grenada in time for lunch, and that Mrs. Charles Weyen did speed up the car, and that they were running above forty miles an hour at the time of the collision; that just prior to the collision the car swerved, and in the collision the plaintiff was knocked unconscious, and the next she knew she was on the train on the way to Memphis, Tenn.
The next witness, a Mr. Nordin, testified that the car in which the plaintiff was riding passed his car (they were both traveling in the same direction), at the rate of thirty-five miles per hour, and that, in his opinion, the Weyen car was traveling at the rate of from forty-five to fifty miles per hour; that they passed him, and then went on at that rate and passed beyond a curve which obstructed his view and prevented his seeing the collision. That he was among the first to come to the scene of the accident, and that it appeared that the other car in the collision was knocked out of the road, and that the Weyen car was approximately in the center of the road with the engine pointing toward the left side of the road.
The plaintiff was carried to the hospital in Memphis, and the son, who accompanied her, provided for medical and hospital treatment at a cost of about two thousand, five hundred dollars, which he charged to himself, and which, at the time of the trial, the plaintiff had not paid.
On cross-examination of the plaintiff she admitted signing an instrument in writing in the following words and figures: "On the 29th day of December, 1930, I was riding on the front seat of Chrysler sedan belonging to my son, Charles Weyen, and which was being driven at the time by his wife, Mrs. Charles Weyen. We were on our way from Memphis, Tennessee, to my son's home at Terry, Mississippi, where I was going to make him a visit. We originally started from my home at Golden, Illinois. As to the accident with the Lewis car, I cannot relate what happened or any of the facts about it, as I don't know, having been rendered unconscious as a result of the collision. The first thing that I recall was asking my son what happened, after being taken from the car. Prior to the accident we were riding along about as usual, and about the usual gait, I didn't notice anything about my daughter-in-law's driving that was wrong or negligent, and she was driving about the same as my son. My injuries consisted of a fractured right hip, fractured right wrist, my finger torn loose, fractured ribs on the left side and tongue split and mangled, loss of three teeth and a number of teeth damaged, fractured right jaw bone, bruised over body, torn and injured right hand. I have been in St. Joseph's hospital and was in a plaster cast up until Feb. 27, 1931, and now have a steel brace or frame from both legs up over my body to my arms. Dr. Joseph I. Mitchell of Dr. Campbell's Clinic, has attended me. I am instructed by my doctor to stay in bed for four weeks and longer and then I may sit up some. My expenses up to the present time for medical and hospital treatment amounts to approximately one thousand, five hundred dollars. I have read the above and it is true and correct."
The defendants sought to introduce this statement in writing in evidence and the court excluded it, but permitted the plaintiff to be cross-examined in reference to certain parts of this statement, holding that it was only admissible for the purpose of impeaching statements testified to by the witnesses in chief.
We think the statement was admissible as original evidence, being against the plaintiff's interest, and was not to be limited to merely impeaching the testimony of the plaintiff on the trial. It was therefore error for the court to exclude the writing when it was offered in evidence. The defendant had a right to have the writing in evidence and considered by the jury, since it contained such statements as that the plaintiff did not notice anything wrong or negligent about Mrs. Charles Weyen's driving at the time.
The jury had the right to find, if they believed, that the statement in the writing was the truth of the matter, rather than the testimony of the plaintiff at the trial, or they may have found that the testimony at the trial was the truth, and that the statement in writing was not the truth. Therefore it was a question for the jury on the question of liability.
The court granted the plaintiff a peremptory instruction on liability, and it was error so to do on the record.
Conceding that the writing was in the record only to impeach or contradict the evidence, it was for the jury to say whether the plaintiff's evidence was true in the light of this contradiction or impeachment. The question of liability should, therefore, have been submitted to the jury.
The appellants contend there was no liability against them because of the relationship of mother and son, a family relationship, and being contrary to public policy for a mother to sue her son for personal injuries the result of negligence. We do not think there is any merit in this contention. The case of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, is not in point. In that case a minor was suing a parent for a tort. In this case both parties are adults and each may be sued by the other, there being no question of control or services between them, and each being a free and separate person having the right to sue and be sued.
The plaintiff's testimony shows that she did not remonstrate with her son and daughter-in-law about speeding up the car, although she knew it was being driven in excess of the speed permitted by law. She admitted that she was in the habit of noticing, and, on this occasion, noticed the speedometer, and knew that the speed was in excess of forty miles per hour.
Under the circumstances, we think that the question of contributory negligence should have been submitted to the jury, and that the court erred in refusing to so submit it. It was for the jury, under the facts in evidence, to say whether or not reasonable precaution for her own safety would have called upon the appellee to protest against the excessive speed, and whether or not she consented to and acquiesced in such speed.
The suit being against the son for negligence, and the son having provided hospital and medical treatment for the appellee at his own expense, and the appellee not having repaid such items, she was not, in this case, entitled to recover same. The suit could only be maintained on the theory of the son's negligence, and if that caused the injury, the son was liable for hospital and medical treatment.
For the errors indicated, the judgment will be reversed, and the cause remanded for a new trial.
Reversed and remanded.
ON SUGGESTION OF ERROR.
We were in error in the statement that the circuit judge erred in refusing to submit the question of contributory negligence. It was submitted to the jury in a proper instruction, and the error was probably caused by turning two pages instead of one at the time of writing the opinion.
However, this does not change the result of the decision. The case must be reversed for other grounds stated in the opinion.
As to the contention in the suggestion of error that this court is without authority to put the lower court in error because of the exclusion by it of the statement signed by the plaintiff, for the reason that the action of the lower court was not made a specific ground of objection in the motion for a new trial, we desire to say that it was not necessary to make a motion for a new trial, nor was the movant confined to the grounds specified. In paragraph 3, rule 6, of this court, it is provided that: "The right of an appellant to obtain a review in this court of any ruling made in the trial court shall not depend, in any wise, upon his having filed in such court a motion for a new trial, or if such motion has been filed, upon the grounds thereof being distinctly specified."
A motion for a new trial is only necessary to bring to the attention of the trial court matters not embraced in the rulings during the trial, as taken down by the stenographer; it being provided, among other things, in section 724, Code of 1930, as follows: "And in and by means of the court reporter's shorthand notes it shall be competent and effectual for the purposes of appeal and all otherwise, to make of the record every part of the proceedings arising and done during the trial, from the opening until the conclusion thereof, including motions so arising to amend the pleadings, except amendments to indictments, and the ruling of the court thereon and all other motions and steps that may occur in the trial, in addition to the oral testimony. And in such a trial, provided objections are duly made and noted, no exceptions need be taken either for the purposes of appeal or otherwise, or if taken shall not be noted, to any ruling or decision of the court, and this provision shall include the rulings of a court on objections to testimony. If any ruling or decision of the court as to any matter arising during the trial appear in the copy of the court reporter's notes, it shall not be necessary to take any exceptions or bill of exceptions."
We are of opinion that the suggestion of error, except as stated, is without merit, and same is overruled.
Suggestion of error overruled.