Opinion
No. 32897.
November 22, 1937. Suggestion of Error Overruled January 3, 1938.
1. AUTOMOBILES.
A motorist traveling on right of way street under city ordinances has no right of way at intersection, unless he arrives there at approximately same time as vehicle on cross street.
2. AUTOMOBILES.
City ordinances granting right of way on designated streets do not confer on motorists on favored streets right to proceed at full or unslackened speed so long as they have come within sight of intersection before motorists from cross streets enter intersection, but motorists on right of way streets on approaching intersections must bring their vehicles under control.
3. AUTOMOBILES.
Though city ordinance provided that automobile coming from right at intersection had right to proceed first across intersection, driver of delivery truck had right to proceed across intersection and was not negligent in so doing, where truck approached and entered intersection before automobile on truck's right arrived at intersection.
4. AUTOMOBILES.
That delivery truck had almost cleared intersection when struck in rear by automobile approaching from right rendered it incumbent on guest in truck, who sought to recover for injuries from owner of truck, to show at approximately what distance away automobile, which she maintained had right of way under ordinance providing that automobile coming from right had right to proceed first across intersection, was at time truck approached, entered, and attempted to cross intersection.
5. AUTOMOBILES.
Guest in delivery truck, to be entitled to recover from owner of truck for injuries sustained in collision at intersection allegedly because of negligence of truck driver in violating city ordinance establishing speed limit, was required to show that rate of speed was proximate cause of injury complained of.
6. APPEAL AND ERROR.
In action against truck owner by guest in truck for injuries sustained in collision at intersection, introduction of testimony that individual, who was not a witness at trial, but who had taken statements from plaintiff's witness shortly after collision, was a representative of an insurance company, was prejudicial error.
7. AUTOMOBILES.
In action against owner of truck by daughter of driver of truck for injuries sustained when truck, in which she was riding as guest, collided at intersection with automobile, defendant was entitled to peremptory instruction, where truck had almost cleared intersection when struck at rear end by automobile, and plaintiff failed to introduce evidence from which the jury could have assumed that automobile arrived at or near intersection first, or that automobile and truck came to intersection at approximately same time, so as to give automobile right of way under city ordinance giving automobile from right at intersection right to proceed first across intersection.
APPEAL from the circuit court of Warren county. HON. R.B. ANDERSON, Judge.
Dent, Robinson Ward and W.W. Ramsay, all of Vicksburg, for appellant.
The court should have sustained the defendant's motion for a mistrial.
We call the court's attention to the fact that the defendant did not ask the court to instruct the jury to disregard the remark concerning the insurance, as the defendant preferred to stand on his contention that the injection of this insurance question was highly prejudicial and erroneous, and that the court should have granted a mistrial.
Herrin, Lambert Co. v. Bailey, 80 Miss. 340, 92 Am. St. Rep. 605, 31 So. 790; Yazoo City v. Loggins, 110 So. 835, 145 Miss. 793; Galtney v. Wood, 115 So. 120, 149 Miss. 82; Pan-American Petroleum Corp. v. Pate, 126 So. 482, 157 Miss. 822; Miss. Ice Utilities Co. v. Pearce, 134 So. 166, 161 Miss. 422; Williams v. Larkin, 147 So. 339, 166 Miss. 837; James Stewart Co. v. Nebry, 266 Fed. 296; Jessup v. Davis, 211 N.W. 198; Horsford v. Carolina Glass Co., 75 S.E. 541; Curtis v. Ficken, 16 P.2d 978; Boten v. Sheffield Ice Co., 166 S.W. 888.
Among the decisions holding that it is error to permit the plaintiff in an action for personal injuries to offer evidence, or make argument to the jury, that the defendant in the action is protected by indemnity insurance are the following:
Standridge v. Martin, 203 Ala. 486, 84 So. 266; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281; Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103; Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 P. 147; Pierce v. United Gas E. Co., 161 Cal. 176, 118 P. 700; Wilson v. St. Joe Bloom Co., 34 Idaho 253, 200 P. 884; Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778; Ruwisch v. Knoebel, 233 Ill. App. 526; Martin v. Lilly, 188 Ind. 139, 121 N.E. 443; Ryan v. Trenkle, 199 Iowa 636, 200 N.W. 318; Danville Light, Power Tr. Co. v. Baldwin, 178 Ky. 184, 198 S.W. 713; Sawyer v. J.M. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Feins v. Ralby, 245 Mass. 228, 28 A.L.R. 511, 139 N.E. 530; Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191, 118 N.W. 925; Grubaugh v. Simon J. Murphy Co., 209 Mich. 551, 177 N.W. 217; Grace v. Anderson, 104 Minn. 476, 116 N.W. 1116; Gore v. Brockman, 138 Mo. App. 231, 119 S.W. 1082; Wilson v. Blair, 65 Mont. 155, 27 A.L.R. 1235, 211 P. 289; Herrin v. Daly, 80 Miss. 340, 92 Am. St. Rep. 605, 31 So. 790; Sutton v. Bell, 79 N.J.L. 507, 77 A. 42; Simpson v. Foundation Co., 201 N.Y. 479, 95 N.E. 10, Ann. Cas. 1912B 321, 2 N.C.C.A. 183; Akin v. Lee, 206 N.Y. 20, 99 N.E. 85, Ann. Cas. 1914A 947, 1 N.C.C.A. 694; Starr v. Southern Cotton Oil Co., 165 N.C. 587, 81 S.E. 776; Stoskoff v. Wicklund, 29 N.D. 708, 193 N.W. 312; Jones v. Sinsheheimer, 107 Or. 491, 214 P. 375; Curran v. Lorch, 243 Pa. 247, 90 A. 62; Duke v. Parker, 125 S.C. 442, 118 S.E. 802; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S.W. 623; Lone Star Co. v. Coates, 241 S.W. 1111; Levinski v. Cooper, 142 S.W. 959; Bianchi v. Millar, 94 Vt. 378, 111 A. 524; Westby v. Washington Brick, Lime Mfg. Co., 40 Wn. 289, 82 P. 271; Walters v. Appalachian Power Co., 75 W. Va. 676, 84 S.E. 617, 13 N.C.C.A. 99; Chybowski v. Bucyrus Co., 127 Wis. 332, 7 L.R.A. (N.S.) 257, 106 N.W. 633; Smith v. Yellow Cab Co., 173 Wis. 33, 180 N.W. 125; Remmel v. Czaja, 183 Wis. 503, 198 N.W. 266; James Stewart Co. v. Newby, 266 Fed. 287; Jessup v. Davis, 56 A.L.R. 1403.
The plaintiff did not prove her case under the law or evidence.
The jury's verdict must be based on facts, and cannot be based on mere speculation or surmise. Where the jury has not been given sufficient evidence to draw reasonable inferences and to get out of the field of speculation, then it is the duty of the court to direct a verdict for the defendant.
Moore v. Sykes, 167 Miss. 212, 149 So. 789; Love v. N.Y. Life Ins. Co., 64 F.2d 829; Prescott v. Francis, 4 Sm. M., 12 Miss. 633; Tyson v. Utterback, 122 So. 496, 154 Miss. 381, 63 A.L.R. 188; St. Louis S.F. Ry. v. Nichols, 138 So. 364, 161 Miss. 695; Hercules Powder Co. v. Callicot, 138 So. 583, 161 Miss. 860; Y. . M.V.R.R. Co. v. Green, 147 So. 333, 167 Miss. 137; N.O. N.E.R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 469; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Shell Petroleum Corp. v. Eagle Lbr. Supply Co., 158 So. 331, 71 Miss. 539; Col. G.R. Co. v. Coleman, 160 So. 277, 72 Miss. 514; Myers v. Tims, 138 So. 578, 161 Miss. 872; Gough v. Harrington, 141 So. 280, 163 Miss. 393.
The court erred in allowing this case to go to the jury.
18 A.L.R. 1433, annotations; 69 A.L.R. 633.
The verdict is against the weight of the evidence.
Fox v. Matthews, 33 Miss. 433.
The verdict is against the law of the case.
Thames Thames, of Vicksburg, for appellee.
There can be no question that Ed Boolas was guilty of negligence, and that this negligence was a proximate cause of the injury to Helen Boolas, and the jury, which was the trier of this fact, so found.
Even appellant admits that Mr. Boolas was driving at a rate of speed greater than that allowed by statute.
The law of Mississippi, applicable to this case, is that where the negligence of the defendant is the proximate cause of the injury, or where the defendant is guilty of any negligence which proximately contributes to the injury, the plaintiff is entitled to recover. This principal has become so imbedded in the substantive law of this state, and has been reaffirmed by the decisions of this Honorable Court so often that it would be presumptuous on our part to offer any authorities sustaining this proposition.
White v. Weitz, 169 Miss. 102, 152 So. 484.
All of the instructions given in the case must be read together as one instruction. When that is done, if they are found to embody the applicable principles of law, neither party has any ground of complaint. The fact that the instructions, taken separately, may be incomplete, is harmless to either party, provided, as a whole, they are complete.
Miss. Cent. R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Mutual Life Ins. Co. v. Vaughan, 125 Miss. 369, 88 So. 11; Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Gibson v. Wineman, 141 Miss. 573, 106 So. 826; Cox v. Dempsey, 171 So. 789.
The court was correct in overruling appellant's motion for a mistrial.
While the rule excluding any testimony or statement to the effect that the defendant in a personal injury action is insured should be strictly adhered to and rigidly enforced, and the court should not tolerate evasion or circumvention of it by indirection, still, in applying it, regard must be had to the undoubted right of the plaintiff to cross-examine witnesses to show interest or bias, it was always the right of the party against whom a witness is called to show by cross-examination that he has an interest, direct or collateral, in the result of the trial, or has such a relation to the party that bias would naturally arise, and this right is not to be abridged or denied because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other parties, for the other party takes a chance when he calls the witness.
Miss. Ice Utilities Co. v. Pearce, 154 So. 163.
When one undertakes to impeach a witness a foundation for said impeachment, or a predicate, as it is commonly called, must be laid. That is, the time, place, and persons to whom the contradicting statements were made must be given to the witness with reasonable certainty, before the examination of the witness might proceed.
Jones on Evidence, secs. 847, 852, 871.
Plaintiff still takes the position that in fairness and in justice to the witness on the stand, he had a right to bring out who Wilson was, what interest he had in the outcome of this case, under what circumstances these statements were obtained, whether or not the statements were colored by his interest, and to permit the witness to be allowed to "reaffirm or explain these statements, their meaning and design, and to give the circumstances and influences under which they were made."
Jones on Evidence, sec. 852.
But the trial court refused to permit the plaintiff to bring out or inquire into these questions, and certainly, by so doing, it committed no error insofar as this appellant is concerned.
This case was fairly and squarely tried in the circuit court of Warren County, Mississippi. A jury of twelve honest citizens of Warren County heard the testimony of the witnesses, saw them on the witness stand, received the law of the case from the trial court through the instructions, and after due deliberation, rendered their verdict in favor of this plaintiff in the sum of three thousand dollars. This was a fair verdict rendered by a fair and impartial jury and we most respectfully submit that there is nothing in this record to warrant this Honorable Court in disturbing this verdict of this jury, and this judgment of the circuit court of Warren County, Mississippi, bearing a second stamp of approval by the trial court by his order overruling appellant's motion for a new trial based upon the same grounds as are here assigned as error.
This is an appeal from a judgment rendered in favor of the appellee, Miss Helen Boolas, in the circuit court of Warren county, on account of damages sustained because of personal injuries received by her, due to the alleged negligence of her father, Ed Boolas, while he was driving a delivery truck belonging to the appellant in which the appellee was riding as the guest of her father, but without authority from the appellant, on Christmas Eve night between 11 and 12 o'clock, on the streets of the city of Vicksburg.
The testimony shows that the delivery truck was used in the business of the appellant, who was doing business under the name of the Hill City Cleaners, and that Ed Boolas was employed as driver thereof, with the privilege and authority to store it at night in his own garage at his home.
Ed Boolas, as a witness for the appellee, testified, in substance, that he was en route home from the place of business of his employer, after checking up the day's work at the office and paying over the moneys collected on his route, and that while traveling along South street in an easterly direction in the residential section of the city he was struck by a Plymouth sedan (alleged in the declaration to belong to Mrs. J.J. Ring, and driven by her son, J.J. Ring, Jr., whom the declaration alleges to be a dangerous, reckless, or incompetent driver, driving at a high, dangerous, reckless and unlawful rate of speed), going in a northerly direction on Cherry street; that, upon approaching Cherry street at the intersection thereof with South street, he "looked to his left and did not see anything, and then glanced sideways," and that he neither saw any other car, nor the lights of an approaching car on his right; that there was nobody there; that thereupon he placed his delivery truck in second gear and proceeded to cross Cherry street, traveling at about 20, 25, or 30 miles per hour, and had almost cleared the intersection of the two streets when the other car, meaning the Plymouth sedan, struck the right rear wheel and side of the back end of his delivery truck, knocking it entirely across South street and causing it to become turned completely around so as to face in a westerly direction instead of the direction in which it was traveling, it being shown by photographs of the delivery truck introduced in evidence without objection that the same had been hit in such manner, that the other car went up onto the sidewalk to the north of the place of the collision after striking the delivery truck as aforesaid; and that the appellee received the injuries complained of on the occasion in question.
At the trial a nonsuit was granted on motion of attorneys for the appellee as against the codefendant, Mrs. J.J. Ring, and there was no evidence offered as to the whereabouts, the rate of speed, or the reckless manner in which her Plymouth sedan may have been driven at the time the delivery truck approached, entered, and crossed the street intersection, so as to enable the jury to determine whose negligence was a proximate cause of the injuries complained of, or as to which car had the right of way under the circumstances. In other words, the driver of the Plymouth sedan became the "forgotten man" in the lawsuit after nonsuit taken as to its owner, and the testimony of Ed Boolas, hereinabove mentioned, as to the manner in which he was driving, what he saw or failed to see when he looked upon entering the street intersection, how and at what point of the intersection the Plymouth sedan hit his truck, and the distance the truck was thrown by the force and impact of this other car against it, was all left wholly uncontradicted by any witness in the case. Thus it would have been purely a matter of conjecture and speculation for the jury to have assumed that the Plymouth sedan arrived at or near the intersection first, or that the two cars came to the intersection at approximately the same time, so as to give the sedan the right of way under the city ordinance introduced in evidence, which provides that a car coming from the right at an intersection has the right to proceed first across the intersection.
Moreover, it was held in the case of Myers v. Tims, 161 Miss. 872, 138 So. 578, 579, that: "It is beyond the power of any municipal council to grant in their so-called right of way ordinances any such privileges as are today being asserted by the average of the drivers along right-of-way streets. The only right that these ordinances give, or validly can give, is this: When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection, then the vehicle on the right of way street has the privilege to proceed, and this is the extent of the rule."
So, again, in the case of Gough v. Harrington, 163 Miss. 393, 141 So. 280, 282, the foregoing rule was reaffirmed when the court said that: "Ordinances granting a right of way on designated streets do not confer on those on the favored streets the right to proceed at full or unslackened speed so long as they have come within sight of the crossing before another enters the intersection, but a motorist on a right of way street who is approaching the intersection of a cross street must bring his vehicle under control, having due regard for the rights and safety of those having the first right to enter the intersection. The applicable rule for determining the respective rights conferred by such ordinances is stated in Myers v. Tims, supra," as set forth above.
All the facts and circumstances in evidence, and particularly the testimony of the appellee and her father, clearly show that the delivery truck in which she was riding had approached and entered the intersection of South and Cherry streets on the occasion complained of before the Plymouth sedan arrived, which is to say that the delivery truck had the right to proceed and was not negligent in so doing. The only facts relied on to show negligence on the part of the driver of the delivery truck were that he was driving in excess of twelve miles per hour in violation of a city ordinance, and was looking at the appellee in the direction of the other car, and having an argument with her at the time in question, but neither of such facts was shown to constitute a proximate cause of the injuries complained of.
The fact that the delivery truck had almost cleared the intersection when struck by the Plymouth sedan rendered it incumbent upon the appellee to show at approximately what distance away the sedan was at the time the delivery truck approached, entered, and tried to cross the intersection. The proof only showed that the speed of the delivery truck was so timed as to constitute a causa sine qua non, and this was not sufficient.
The rule announced in all of the decisions where accidents have occurred at a time when trains were being operated at a rate of speed in excess of the statutory limit, and which required that the rate of speed must have been the proximate cause of the injuries complained of, applies in the decision of the question of liability in the case at bar.
It is the contention of appellant (1) that he was entitled to the peremptory instruction asked for; and (2) that, if not entitled to the peremptory instruction, he is entitled to have the case reversed because of certain errors committed during the progress of the trial, among which was the refusal of the court below to sustain a motion, seasonably made, for a mistrial to be entered, for the reason that the fact was developed in the presence and hearing of the jury that W.M. Wilson, Jr., who took statements from the appellee's witnesses shortly after the accident, was the representative of an insurance company. This information was furnished the jury by the father of the appellee while he was being examined by her counsel, and was not brought out on a cross-examination of Mr. Wilson as a witness in the case to show his interest or bias, as authorized under the rule announced in the case of Mississippi Ice Utilities Company v. Pearce, 161 Miss. 252, 134 So. 164; 56 A.L.R. 1439, and other cases where the fairness and correctness of statements given to a representative of an insurance company, or the truthfulness of the testimony of such representative, is in issue. Mr. Wilson did not testify at all as a witness in the case, and the statements taken by him were admitted to have been as written, and that there was no occasion for the witness, Ed Boolas, the father of the appellee, to inform the jury that Wilson was a representative of an insurance company. However, it is not necessary to a decision of this case that we pass on the question as to whether the error committed in placing before the jury this highly prejudicial testimony was later cured by the action of the trial court in offering to direct the jury to disregard it, since the decision must necessarily rest on the question as to whether or not the motion of the appellant for a peremptory instruction should have been sustained.
Under the facts set forth in this opinion, and on account of the failure of the appellee to make certain proof to show the relative rights of the drivers of the two automobiles involved in the collision, and which proof was available, so far as the record shows, by introducing some of the occupants of the Plymouth sedan, we are of the opinion that the appellant was entitled to the peremptory instruction asked for.
Reversed, and judgment here for appellant.