Opinion
No. 32665.
March 29, 1937. Suggestion of Error Overruled April 26, 1937.
1. AUTOMOBILES.
In action by driver of school truck for injuries sustained in collision between school truck and log truck in Louisiana, laws of Louisiana governed.
2. AUTOMOBILES.
As regards right of driver of school truck to recover from log truck owner for injuries sustained in collision in Louisiana between school truck and log truck, driver of log truck could assume that if school truck was more than seventy inches in width, it would have clearance lights which would enable him to judge its width, as required by Louisiana law (Gen. St. La. [Dart] sec. 5239, subsecs. 5, 7).
3. NEGLIGENCE.
Under law of Louisiana, contributory negligence is a complete defense to an action of tort.
4. AUTOMOBILES.
Under Louisiana law, violation of statute requiring clearance lights on vehicles exceeding a certain width, which is intended for safety of people using highways, constitutes negligence per se (Gen. St. La. [Dart] sec. 5239, subsecs. 5, 7).
5. AUTOMOBILES.
Under Louisiana law, where both parties are negligent in automobile collision, neither can recover.
6. AUTOMOBILES.
Under Louisiana law, unless there is a causal connection between failure to observe regulations with respect to lights on motor vehicles and the ultimate damage, the negligence does not constitute the proximate cause thereof and a recovery will not be allowed (Gen. St. La. [Dart] sec. 5239).
7. AUTOMOBILES.
Evidence held to show that collision between school truck which had no clearance lights and log truck in nighttime occurring in Louisiana was proximately caused by absence of clearance lights precluding recovery by driver of school truck from owner of log truck notwithstanding log truck was not equipped with clearance lights (Gen. St. La. [Dart] sec. 5239, subsecs. 5, 7).
APPEAL from circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Hugh Gillespie, Sr., of Raymond, and W.W. Ramsey and Brunini Hirsch, all of Vicksburg, for appellant and cross-appellee.
The Supreme Court has power to reverse and remand for reassessment of damages alone.
Scott v. Y. M.V.R.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Co., 105 Miss. 711, 63 So. 219; Murphy v. Town of Cleveland, 106 Miss. 269, 63 So. 572; White v. McRee, 111 Miss. 502, 71 So. 804; McLaughlin v. Fagan-Peel Co., 125 Miss. 116, 87 So. 471; Cocora v. Vicksburg Light Co., 126 Miss. 713, 89 So. 257; Hicks v. Corso, 131 Miss. 659, 95 So. 636; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Barr v. G.M. N. Ry., 168 Miss. 863, 152 So. 294.
We assume it will not be denied under the laws of Louisiana, the state in which the tort took place, contributory negligence constitutes a bar to recovery. The jury in this case was so instructed and, therefore, the judgment returned by them in favor of plaintiff is a finding, valid and binding that the plaintiff was not guilty of contributory negligence. Consequently it must be taken for granted that the defendant H.M. Reid was liable to the plaintiff for the injuries suffered, and that the same should not and could not be diminished by the jury.
The verdict is grossly inadequate.
Moseley v. Jamison, 68 Miss. 336, 8 So. 744; Thompson v. Cloud, 150 Miss. 697, 116 So. 814; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Thompson v. Commercial National Bank, 100 So. 688.
In the case of Hulett v. Hulett, 152 Miss. 476, 119 So. 581, this Honorable Court said that a number of facts, each insufficient in itself to sustain the charge, may when taken together be sufficient.
This Honorable Court has, also, in the case of R.E. Brister Co. v. I.C.R.R. Co., 88 Miss. 431, 40 So. 325, definitely held that an instruction to a jury in a civil case making circumstantial evidence insufficient unless it excludes every other hypothesis is error.
Again in the case of Banks v. Banks, 118 Miss. 783, 79 So. 841, this Honorable Court held that acts may be established by circumstances as long as the circumstances are within the personal knowledge of the witnesses.
Covington County v. Fite, 120 Miss. 421, 82 So. 308.
This case, of course, is governed by the laws of Louisiana; that is, the substantive law. There is no dispute but that contributory negligence under the law of Louisiana constitutes a bar to the recovery. However, it is just as much true in the state of Louisiana as it is in Mississippi that the contributory negligence complained of must have directly contributed to the accident. We will concede, for the purpose of argument, that the plaintiff was guilty of negligence per se in not having the proper side lights, but the question then remains as to whether or not this negligence was a part of the proximate causation.
General Securities Co. v. City of Hammond, 123 So. 399.
The rule acording to the Louisiana law is that the contributory negligence must be a direct contributing cause of the accident. Bear in mind, however, that while the Mississippi courts will apply the substantive law of the State of Louisiana, the place of the tort, still the application of that substantive law, that is, the procedural methods of trying the case, are governed by the Mississippi laws. In other words, under the Louisiana law trial by jury is seldom had, but if the case is tried in Mississippi the form of the pleadings, the substance thereof, the form, that is, whether or not the circuit court or the chancery court has jurisdiction, the submission of the issues to the jury, the method of instructing the jury, etc., are all governed by the laws of the state of Mississippi.
Restatement of Conflict of Laws, sec. 592.
The authorities cited by the defendant below in his brief constitute good law, but have no application to the present case. The question was one for the jury and the jury passed upon it. This is in conformnity with the law of the state of Louisiana. M. Ney Williams, of Raymond, and Watkins Eager, of Jackson, for appellee, and cross-appellant.
The rule is without conflict that negative and speculative and conjectural evidence must yield to specific and positive facts. The uncontradicted and unimpeached testimony of disinterested witnesses cannot be ignored. The judgment in this case has been rendered upon the grossest speculation and conjecture and utterly without foundation in fact. The rule is so clear and so emphatic that we feel it amounts to a reflection upon the intelligence of this court to do more than briefly refer to the authorities.
Handy v. New Orleans Public Service Commission, 10 La. App. 72, 120 So. 271; Taylor v. Southern Engineering Construction Co., 13 La. App. 292, 125 So. 877; Natal v. L. A.R.R. Co., 18 La. App. 50, 137 So. 600; Hulett v. Hulett, 152 Miss. 476, 119 So. 581; Y. M.V.R.R. Co. v. Beasley, 158 Miss. 370, 130 So. 499; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; 1 Moore on Facts, sec. 415; 22 C.J. 738, 739; Williams v. Lumpkin, 169 Miss. 146; N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Ryson v. Utterback, 154 Miss. 381, 122 So. 496; St. Louis S.F. Ry. v. Nichols, 161 Miss. 795, 138 So. 364.
Judgments cannot be based on conjecture and speculation.
Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Y. M.V.R.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Shell Petroleum Corp. v. Eagle Lbr. Supply Co., 171 Miss. 539, 158 So. 331; C. G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Dr. Pepper Bottling Co. v. Bordy, 174 Miss. 392, 164 So. 236.
We earnestly submit that under the evidence in this case the testimony of the drivers and their helpers cannot be swept aside and destroyed and particularly where the physical facts and circumstances conclusively corroborate such evidence.
We submit that even aside from the contributory negligence of the plaintiff, which we will hereinafter discuss, the defendant was entitled to an outright directed verdict.
The Mississippi courts have held that where an accident occurs in the state of Louisiana, the Mississippi courts will apply the Louisiana law, and have further held that under the law of Louisiana, contributory negligence is a complete bar to the action even though the defendant was also negligent.
Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; Viator v. Talbert, 137 So. 84; Schmidt Zeigler, Ltd., v. Carroll, 161 So. 785.
If the alleged accident in the case at bar happened according to the way that the plaintiff claims it did, the plaintiff, by his own testimony, admits that he was negligent and that his own negligence contributed to the accident.
Guillory v. Shattuck, 158 So. 681; Aycock v. Burnett, 128 So. 100, 157 Miss. 510.
It is also the contention of the defendant that where the combined negligence of both plaintiff and defendant has caused an injury, the plaintiff cannot recover damages.
Watson v. Mundinger, 144 So. 620; Thompson v. Morgan, 119 So. 69, 167 La. 335; Lehon v. New Orleans Public Service, 123 So. 179, 10 La. App. 715.
After careful examination of the brief submitted by the appellant, or plaintiff, the defendant says that the cases cited therein are not in point and will not support plaintiff's theory that the verdict of the jury for the sum of $150.00 was so grossly inadequate as to evince passion and prejudice.
Lanier v. Hammond Lbr. Co., 75 So. 738; Burrill v. Rau, 153 Miss. 437, 121 So. 118; Beard v. Williams, 161 So. 750, 172 Miss. 880.
Argued orally by E.L. Brunini, for appellant, and by Pat Eager, for appellee.
The appellant, Mangum, while driving a school truck, was injured by a collision with a log truck in the state of Louisiana on highway 80 about 2 1/2 or 3 miles west of the bridge across the Mississippi river. The school truck was 86 inches wide with no clearance lights as required by the laws of Louisiana for motor vehicles exceeding 70 inches in width. Appellant had been to Rayville, La., moving a party there from Smith county, Miss., and was returning to Mississippi, and while upon the highway between Tallulah, La., and the bridge across the river, met two log trucks. The first one had clearance lights and he passed that in safety, but the second had no clearance lights. It is contended by the appellant, plaintiff in the court below, that one of the logs was protruding from the log truck, and that by collision with this log the side of the school truck was torn from its moorings or fastenings and he was struck by the debris so created and seriously injured and his steering wheel was broken. He was not able to identify the driver of either of the log trucks, and the school truck being put out of commission, some one picked appellant up, and carried him to the hospital in Vicksburg where he was treated for his injuries.
We do not deem it necessary to discuss at length the proof as to the failure of the appellant to identify the owners of the log trucks, because, in our view, a peremptory instruction should have been granted for the defendant, appellee here. This case is governed by the laws of Louisiana and not those of Mississippi. By subsection 7 of section 5239, Dart's Louisiana General Statutes, it is provided that, "All vehicles not heretofore in this section required to be equipped with specified lighted lamps, shall carry one or more lighted lamps or lanterns displaying a white light visible, under normal atmospheric conditions, from a distance of not less than five hundred (500) feet to the front of such vehicle and displaying a red light visible, under like conditions, from a distance of not less than five hundred (500) feet to the rear of such vehicle."
By subsection 5 of the same section it is provided that, "Every motor vehicle, other than any road-roller, road machinery or farm tractor, in excess of seventy (70) inches, and a length exceeding fifteen (15) feet, shall carry two clearance lamps on the left side of such vehicle, one located at the front and the other at the rear of the body of the vehicle and both displaying a white light visible, under normal atmospheric conditions, from a distance of five hundred (500) feet to the front of the vehicle, and both displaying a red light visible, under like conditions, from a distance of five hundred (500) feet to the rear of the vehicle."
By appellant's own testimony, he did not have these clearance lights upon the school truck, consequently, he was guilty of negligence in operating a motor vehicle without such lights, after dark upon the highways of Louisiana. Of course, the purpose of such lights is to inform an approaching vehicle driver of the size of the vehicle, so that a collision may be avoided. From the character of the injuries, and the admission of appellant, it is disclosed that he had no clearance lights as required by the laws of Louisiana. The driver of the log truck, under the laws of Louisiana, had a right to assume that if the approaching truck was more than 70 inches in width, it had such clearance lights which would enable him to judge of its width.
It is clear from the testimony that both vehicles, the school truck and the second log truck, were disregarding the law and were operating trucks without the requirements of the Louisiana statutes, supra.
In Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420, we said that, "Under the law of Louisiana, contributory negligence is a complete defense to an action of tort. The court recognized that the substantive rights of the parties were governed by the laws of Louisiana."
In Viator et ux. v. Talbot, 18 La. App. 124, 137 So. 84, the Louisiana court held that a violation of the statute regulating the width of vehicles and clearance lamps, intended for the safety of people using highways, constitutes negligence per se.
In the case of Watson v. Mundinger (La. App), 144 So. 620, the Louisiana court said that where both parties were negligent in a collision, neither can recover.
In Schmidt Zeigler, Ltd., v. Carroll (La. App.), 161 So. 785, the Louisiana court held that where there was a failure to have headlights as required by the law (Gen. St. La. [Dart] section 5239), and there was a collision, this was negligence, but unless it could be shown that there was causal connection between said negligence and the ultimate damage, the negligence cannot be said to have been the proximate cause thereof.
In the case at bar, it is clear from the record that the truck operated by appellant exceeded the statutory width allowed such vehicles, and that there was a causal connection between the absence of clearance lights and the injury. See, also, Guillory v. Shaddock et al. (La. App.), 158 So. 681; Aycock v. Burnett et al., 157 Miss. 510, 128 So. 100.
It follows from what we have said that the court below should have granted the peremptory instruction requested, and that the plaintiff, appellant here, was not entitled to a recovery.
Therefore, the case will be reversed on the cross-appeal and the suit dismissed.
Reversed and suit dismissed.