Opinion
No. 40974.
January 12, 1959.
1. Motor vehicles — collision — negligence — evidence — sustained finding that driver of bus negligently turned bus to left as automobile was about to pass.
In action for damage to automobile occurring when automobile left pavement while automobile driver attempted to pass bus, evidence sustained finding that driver of bus negligently turned his vehicle to left as automobile was about to pass bus thereby forcing automobile off of pavement and resulting in extensive damages to automobile.
2. Damages — cost of repairs as measure of — proof of necessity and reasonableness of required — repair bills insufficient to establish.
Where cost of repairs is relied upon as the measure of damages, proof must establish that the repairs were necessary as the result of the wrongful act and that the cost was reasonable, and repair bills are not sufficient to establish the necessity for the repairs.
3. Damages — punitive damages — awarded when.
Punitive damages may be awarded in a proper case in an action for wrongful injury to property but such ward will be allowed only where injury is attended by circumstances of willful fraud, malice, or gross negligence.
4. Motor vehicles — collision — negligence — evidence — did not justify award of punitive damages — instructions — refusal of defendant's instruction — granting of plaintiff's instruction — error.
Where jury found that driver of bus negligently turned his vehicle into left lane of highway resulting in damage to automobile when automobile driver attempted to pass bus but bus driver testified that he at no time saw automobile and driver of truck ahead of bus testified that the time he motioned bus driver to pass, he did not see automobile and did not see it until after bus had passed on ahead of him, negligence did not justify an award of punitive damages, and bus company was entitled to its requested instruction that jury in no event could find punitive damages against it and instructions that jury could award punitive damages should have been refused.
ON SUGGESTION OF ERRORFebruary 16, 1958 108 So.2d 853
5. Trial — damages — cost of repairs as measure of — proof of necessity of and reasonableness of repairs — waived — repair bills proper for consideration of jury.
Where automobile owner brought action to recover damages to automobile and introduced in evidence without objection copy of bill showing certain amount for actual repairs to vehicle, defendant by failing to object waived right to demand proof as to necessity and reasonableness of repairs, and such evidence was proper for the consideration of the jury.
6. Appeal — instructions — damages — instruction authorizing award of punitive damages — erroneous — affirmed as to liability — remanded for new trial on issue of damages only.
In action for damage to automobile occurring when automobile left pavement as it was attempting to pass bus wherein evidence sustained finding of jury that driver of bus negligently turned his vehicle to left as automobile was about to pass bus, under facts of case, giving of instruction authorizing award of punitive damages was clearly erroneous and where Supreme Court was unable to say that such instruction did not affect amount of verdict, cause would be affirmed as to liability and remand for a new trial on the issue of damages only.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, J.
Lowell W. Tew, Welch, Gibbes Graves, Laurel, for appellant.
I. The verdict was against the overwhelming weight of the evidence, and was not supported by the evidence in the case. Government St. Lbr. Co. v. Ollinger, 18 Ala. App. 518, 94 So. 177; Cooper v. Garrett (La.), 6 So.2d 209; Gehlbach v. McCann, 216 Iowa 296, 249 N.W. 144, 33 N.C.C.A. 476; Meese v. Goodman, 167 Md. 658, 176 A. 621, 98 A.L.R. 480; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Mississippi Power Light Co. v. Bradley, 220 Miss. 304, 70 So.2d 611; Secs. 8183, 8188, Code 1942; Vol. II, Blashfield's Cyclopedia of Automobile Law Practice, Sec. 937 p. 124.
II. The Court erred in refusing to grant a peremptory instruction to the defendant. Illinois Cent. RR. Co. v. Fowler, 123 Miss. 826, 86 So. 460.
III. The measure of actual damages was not contemplated by the pleadings, established by the proof or properly outlined by the instructions granted to the appellee, resulting in an excessive jury verdict. National Fire Ins. Co. of Hartford v. Slayden (Miss.), 85 So.2d 916; Brown Root, Inc. v. Continental Southern Lines (Miss.), 87 So.2d 257; Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Gulf, M. O. RR. Co. v. Hawthone, 225 Miss. 1, 82 So.2d 454; 15 Am. Jur., Sec. 124 p. 532.
IV. The Court erred in submitting the question of punitive damages to the jury. Yazoo M.V. RR. Co. v. Hardie, 100 Miss. 132, 55 So. 42; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Simonton v. Moore, 204 Miss. 760, 38 So.2d 94; 15 Am. Jur., Secs. 268, 281 pp. 704, 720.
V. The jury should have been instructed that the plaintiff and his driver were guilty of contributory negligence.
Scott Scott, Laurel, for appellee.
I. The verdict was not against the overwhelming weight of the evidence, and was supported by the evidence in the case. Government St. Lbr. Co. v. Ollinger, 18 Ala. App. 518, 94 So. 177; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Sec. 1455, Code 1942.
II. The Court did not err in refusing to grant a peremptory instruction to appellant. Government St. Lbr. Co. v. Ollinger, supra; Snowden v. Webb, 217 Miss. 664, 64 So.2d 745; Sec. 1455, Code 1942.
III. The measure of damages was contemplated by pleadings, established by proof and was properly outlined by instructions granted appellee, and did not result in excessive verdict of jury. Dyer v. Hobert, 150 Miss. 857, 117 So. 244.
IV. The Court did not err in submitting the question of punitive damages to the jury. Ellis v. Pellegrini, 163 Miss. 385, 141 So. 273; Dame v. Estes, 233 Miss. 315, 101 So.2d 644; St. Louis S.F. RR. Co. v. Moore, 101 Miss. 768, 58 So. 471; Planters Wholesale Co. v. Kincade, 210 Miss. 166, 50 So.2d 578; American Creosote Works, Inc. v. Smith, 233 Miss. 892, 103 So.2d 861.
The Greyhound Corporation appealed form a verdict and judgment of the Circuit Court of Jones County by which James Townsend was awarded the sum of $1,500 as damages to his automobile on account of the alleged negligence of the corporation.
The pleadings and evidence made a simple issue as to whether the driver of one of the defendant's buses negligently turned his vehicle to the left as the plaintiff's car was about to pass the bus, thereby forcing the car off of the pavement and resulting in extensive damages to it.
The plaintiff and his brother-in-law, Wendel Gavin, testified that, on July 29, 1957, they were returning on Highway 11 from Harvey, Louisiana, to their home near Bay Springs in Townsend's month-old Ford car, with Gavin driving and Townsend sitting on the right side. Immediately in front of the car was a Greyhound bus, and immediately in front of the bus was a truck of the Dickey Clay Manufacturing Company. Behind the Ford was another Greyhound bus, and immediately behind it there was another Dickey Clay Manufacturing Company truck. The vehicles proceeded in that order at a speed of 40 to 50 miles an hour for a distance of 2 or 3 miles and came to level country where the visibility was good for approximately a mile. Gavin, desiring to pass, pulled to the left, sounded his horn, increased his speed to 50 or 55 miles an hour, and started around the bus. When the car got alongside the bus and about the middle of the same, the driver of the bus, without giving any signal, suddenly pulled to the left into the lane in which the Ford was trying to pass. Gavin blew his horn again, but, as the bus did not change its course, he had to drive onto the shoulder or be struck by the bus. Before he could bring the car to a stop, it struck a piling and was turned back in the direction from which it had come. The bus passed the truck and proceeded without stopping. Townsend testified positively that the driver of the bus did not give a signal, and Gavin testified that, if the driver sounded his horn, he did not hear it.
The plaintiff testified that the rear panel on the left side was crushed in, the drive shaft was torn out, the frame was bent, and two tires were burst. He offered in evidence a copy of the bill for repairs from Horn Motor Company in the amount of $447.48 as the "actual repairs"; and testified that he was required to rent a car at $10 per day for about 30 days. Benton H. Matthews, a mechanic with 21 years of experience, testified that the frame was pretty badly bent, and he estimated that the car, by reason of the accident, was depreciated about $1,000 in value. It was his opinion also that the car, before the wreck, was worth between $2,500 and $2,600.
The evidence for the defendant was directly contradictory of the plaintiff's version. S.O. Williamson, the driver of the first Dickey truck, testified that he saw the Greyhound bus behind him, and when the road became open, he motioned the driver "to come on by"; and that, as the driver was doing so, he heard tires "squalling". When the witness got to where he could see in his mirror, the Ford was in a spin. He had not seen the car until that time. Volney B. Langston, the driver of the particular bus, testified that he checked his rearview mirror, pulled over on the left side of the road, sounded his horn, and passed the truck. At no time did he see the Ford, and he did not know that it had been damaged. Albert Henson, the driver of the second Greyhound bus, and J.W. Williams, driving the second Dickey truck, both of which vehicles were behind the Ford, testified that the car passed them at a high rate of speed, and, when it reached the place where the accident occurred, the Greyhound bus was passing the truck, and the Ford had no place to go. As the result the driver applied his brakes, slid onto the shoulder, and, in a swinging motion, hit the post.
Thus it appears that the evidence, pro and con, was in sharp conflict; and obviously it was necessary that the issue should be determined by the jury. Consequently, the court properly refused the appellant's requested peremptory instruction. American Creosote Works, Inc. v. Smith, (Miss.) 103 So.2d 861, is very similar factually, except that the damage in that case was for personal injuries. See also Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361.
(Hn 1) Neither can it be said judicially that the verdict was contrary to the overwhelming weight of the evidence.
The appellant also contends that the measure of actual damages was not contemplated by the pleadings, nor was it established by the proof, nor was it properly outlined by the instructions.
(Hn 2) While the plaintiff introduced a copy of the repair bill from Horn Motor Company, there was no proof of the necessity for the repairs or as to the reasonableness thereof either by the mechanic, or anyone else. Proof of such nature and kind is required by the principle in National Fire Ins. Co. of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916, and Brown Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 257.
There was proof of the loss of use of the car and that the appellee had to rent another vehicle for an approximate outlay of $300 in accordance with the rule in Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143. While the proof as to the expertness of the witness Matthews was somewhat scant, the witness in fact did fix the amount of the depreciation on account of the wreck at about $1,000.
The appellant requested and was refused an instruction which told the jury that in no event could it find punitive damages against it; and in three instructions given for the appellee, the jury was informed that it could award punitive damages.
(Hn 3) Of course, punitive damages may be awarded in a proper case in an action for wrongful injury to property. However, such award will be allowed "only where such injury is attended by circumstances of willful fraud, malice, or gross negligence." 25 C.J.S., Damages, Section 121c, page 718. "The mere fact that the act complained of is unlawful is not of itself ground for an award of exemplary damages." Ibid. Section 123c page 726.
In Yazoo Miss. Valley R. Co. v. Hardie, 100 Miss. 132, 55 So. 42, 967, it was held that a railroad company, for a violation of its duty, can be assessed with punitive damages "only where there has been some intentional wrong, insult, abuse, harshness, or where there has been such gross neglect of duty as to evince reckless indifference of the rights of others." See also Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461, where it was said: "Punitive damages are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard of the safety of others." (Hn 4) The jury, by its verdict, obviously found that Langston, the driver of the bus in question, negligently turned his vehicle into the left lane of the highway. But the driver testified that he at no time saw the Ford; and Williamson, the driver of the truck ahead, testified that, at the time he motioned Langston to pass, he did not see the Ford, nor did he see it until after the bus had passed on ahead of him. The negligence in this case is not deemed so gross as to justify the award of punitive damages. Consequently, the appellant's requested instruction thereon should have been given, and the appellee's given instructions thereon should have been refused.
For the failure to show the necessity and reasonableness of the repairs, and the error in submitting the question of punitive damages to the jury, the case must be reversed and remanded.
Reversed and Remanded.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.
ON SUGGESTION OF ERROR
(Hn 5) The appellee, under the rule in National Fire Insurance Company of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916, and Brown Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 257, had the burden of proving the necessity and reasonableness of the charges for repairs. To that end, he testified about four particular items, showing that the car was badly damaged, and offered in evidence, without objection, a copy of the bill from Horn Motor Company in the amount of $447.48 as the "actual repairs".
In the case of Dyer v. Hobert, 150 Miss. 857, 117 So. 244, the appellee therein offered in evidence, without objection, four repair bills, aggregating $72.25, which she had paid, as she said, for necessary repairs. It was urged here that the bills were not competent to prove such necessary repairs. The Court, in rejecting this contention said: "This account was introduced in evidence without objection, and the jury were entitled to take all the facts introduced, and apply their common judgment and experience to the situation, and, from all of that, deduce their own opinion as to the depreciation or loss of value."
Upon reconsideration, the Court has concluded that, if objection had been made to the admissibility of the Horn bill as improper to prove the necessity and reasonableness of the charges for repairs, the trial court, under National Fire Insurance Company of Hartford v. Slayden and Brown Root, Inc. v. Continental Southern Lines, Inc., supra, would have been required to sustain the objection; and the appellee would have been required to offer evidence in support of such necessity and reasonableness. But, since there was no objection, the appellant waived its right to demand such proof, and the evidence thereon was proper for the consideration of the jury.
The jury found for the appellee. There was ample evidence to justify their conclusion that he was entitled to recover some damages. Obviously there was some depreciation in the value of the car even though it had been repaired. Although a witness estimated such depreciation at the sum of $1,000, his knowledge of that subject appeared to be slight. (Hn 6) The giving to appellee of the instructions which authorized the award of punitive damages was clearly erroneous. The Court is unable to say that those instructions did not affect the amount of the verdict.
Consequently the suggestion of error is sustained in part, to the extent of affirming the judgment of the trial court on liability, but the cause is remanded for a new trial on the amount of damages only.
Suggestion of error sustained in part, and in part, overruled.
McGehee, C.J., and Hall, Kyle, and Holmes, JJ., concur.