Summary
finding that while the evidence supported a finding that the defendant driver was indeed negligent by driving at an excessive rate of speed, failing to keep his car under control, and failing to keep a proper lookout, the conduct of the defendant driver "did not indicate any willful or wanton disregard for the safety or property of others, but simply negligence in failing to exercise due care in the operation of his car"
Summary of this case from Rice v. A&S Transp., Inc.Opinion
No. 43524.
May 10, 1965.
1. Motor vehicles — sideswiping parked vehicle — contributing proximate cause — excessive speed — lookout ahead — lack of proper control.
Evidence sustained findings that defendant motorist, who, while attempting to pass automobile, hit side of plaintiff's parked automobile, had been negligent in driving at excessive rate of speed, and in failing to keep his automobile under proper control or to keep proper lookout, and that such negligence was a contributing proximate cause of damage to plaintiff's automobile; and that any negligence of driver of passed automobile was not the sole proximate cause of damage to parked automobile.
2. Damages — punitive damages — allowable when.
Ordinarily, punitive damages are recoverable only in cases where negligence is so gross as to indicate reckless or wanton disregard of safety of others.
3. Motor vehicles — collision — punitive damages — facts as not warranting.
Conduct of driver in traveling at excessive rate of speed and in failing to keep his automobile under reasonable control or to keep proper lookout, resulting in his automobile striking parked automobile, did not indicate any willful or wanton disregard for safety or property of others, and did not warrant punitive damages.
4. Appearance — personam jurisdiction — waiver.
Where defendant made no special appearance to question in personam jurisdiction and appeared at trial and testified, he waived jurisdictional question. Sec. 9352-61, Code 1942.
5. Appearance — limited — general.
If defendant enters appearance in proceeding in personam without limiting purposes for which he appears, it is a general appearance.
Headnotes as approved by Ethridge, P.J.
APPEAL from the Circuit Court of Warren County; BEN GUIDER, J.
Dabney Dabney, Vicksburg, for appellant.
I. The appellee filed no responsive pleading to affirmative matter alleged in the appellant's (defendant in the county court) answer as required by statute, and this is an admission of the matter alleged by the appellant.
II. The appellee proved only six days loss of use, and yet he was awarded twelve days loss of use by the jury.
III. The plaintiff did not prove the negligence of the defendant (appellee here) as the cause of his damages.
IV. The evidence presented did not justify the giving of the punitive damage instruction.
V. The County Court was without jurisdiction to hear this cause, and jurisdiction still does not exist.
Collation of authorities: Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Gregory v. Williams, 203 Miss. 455, 35 So.2d 448; Howarth v. Adams Express Co., 269 Pa. 280, 112 A. 536; Page v. Northern Insurance Co. of New York (La.), 117 So.2d 279; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Secs. 1428, 1475.5, 8183, 9352-61, Code 1942.
Prewitt, Bullard Braddock, Vicksburg, for appellee.
I. Cited and discussed the following authorities: American Insurance Co. v. Prine, 244 Miss. 69, 140 So.2d 284; Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Burns v. Clarksdale Production Credit Corp., 189 Miss. 34, 195 So. 588; Bush v. Watkins, 224 Miss. 238, 80 So.2d 19; Cooper v. Lake Wood Co., 199 Ala. 633, 75 So. 307; Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752; Gravat v. Gonsoulin, 10 La. App. 513, 120 So. 643; Gregory v. Williams, 203 Miss. 455, 35 So.2d 448; Hadad v. Lockeby, 176 Miss. 660, 169 So. 691; King v. Ainsworth, 225 Miss. 248, 83 So.2d 97; Motors Insurance Corp. v. Lenoir, 218 Miss. 348, 67 So.2d 381; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Page v. Northern Insurance Co. of New York (La.), 117 So.2d 279; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 167 So.2d 924; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572; Teche Lines v. Pope, 175 Miss. 393, 166 So. 539; Zeller v. Louisiana Cypress Lumber Co., 9 La. App. 609, 121 So. 670; Secs. 1455, 1475.5, 9352-61, Code 1942; 41 Am. Jur., Pleading, Secs. 155, 156 pp. 400-402; 21 C.J.S., Sec. 109 p. 165.
William D. Dennis, appellee, brought this suit in the Circuit Court of Warren County against Edgar R. Maupin, appellant, for property damages resulting from Maupin driving into Dennis's parked automobile. Judgment was rendered for Dennis, based upon a jury verdict of $750. We affirm on liability, hold that punitive damages were not allowable, and render judgment here for appellee for compensatory damages only.
South Street in Vicksburg runs east and west and is 30 feet wide. Dennis's car was parked next to the curb on the north side of the street headed west. On the south, a Rambler automobile was parked next to the curb facing east. Around 8:45 p.m. Maupin, age 16 years, was driving east on South Street behind a station wagon driven by a young man named Thorne. As Thorne approached the parked Rambler, on the south side, he pulled to his left to drive around it. At the same time Maupin was beginning to pass Thorne's vehicle, which was picking up speed. Maupin accelerated his car and continued to pass Thorne. He drove on his left side of the street, and accelerated to a speed of 45 to 50 miles an hour. Trying to get around Thorne in this way, Maupin's car hit the side of the parked Dennis vehicle, then struck Thorne's station wagon, and proceeded down the street for a block and a half before turning around and returning. Maupin admitted that he did not see the parked Rambler on the south side until Thorne pulled out to drive around it.
(Hn 1) The jury was warranted in finding that Maupin was negligent by driving at an excessive rate of speed, and failing to keep his car under reasonable control and a proper lookout, and that such negligence was a contributing proximate cause of the damages to plaintiff's automobile. Although Thorne may have been negligent also, the triers of fact were justified in concluding he was not the sole proximate cause of plaintiff's damages.
(Hns. 3, 4) However, the trial court erred in submitting to the jury punitive damages. They are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard of the safety of others. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); The Greyhound Corp. v. Townsend, 234 Miss. 839, 846, 108 So.2d 208 (1959). The conduct of Maupin did not indicate any willful or wanton disregard for the safety or property of others, but simply negligence in failing to exercise due care in the operation of his car.
The actual and necessary cost of repairing Dennis's vehicle was $206.67. Appellee was deprived of the use of his car for twelve days, and he rented a substitute for that period at a cost of $124.80. The evidence on loss of use supports this figure. Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 167 So.2d 924 (Miss. 1964). Hence total compensatory damages suffered by Dennis were $331.47, for which judgment will be rendered here for appellee.
Process by publication under the nonresident motorist statute was sought to be had upon Maupin. At the time of the accident he was a resident of Mississippi. When he filed his answer he was a nonresident of this state, living in Louisiana. Cf. Miss. Laws 1958, ch. 262, being Miss. Code Ann. § 9352-61 (1952); Miss. Laws 1964, ch. 376. It is argued that the 1958 statute, applicable to the present facts, did not extend to a motorist who was a resident of this state and subsequently moved elsewhere. However, we do not reach the question of jurisdiction, because appellant waived it. (Hn 4) He made no special appearance to question in personam jurisdiction, and he appeared at the trial and testified. Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (Miss. 1964). (Hn 5) If a defendant enters an appearance in a proceeding in personam without limiting the purposes for which he appears, it is a general appearance. Restatement, Judgments § 19 (1942); 21 C.J.S. Courts § 109 (1940).
In summary, the judgment of the circuit court is affirmed as to liability, reversed on the amount of damages, and judgment rendered here for appellee Dennis for his compensatory damages only, in the sum of $331.47.
Affirmed in part, reversed in part, and judgment rendered for appellee's compensatory damages only. Lee, C.J., and Gillespie, Patterson and Inzer, JJ., concur.