Opinion
No. 29977.
April 25, 1932. Suggestion of Error overruled May 23, 1932.
1. TRIAL.
It is error to grant instruction which has no substantial support in evidence.
2. APPEAL AND ERROR.
Where evidence was sufficient to have supported contrary verdict, error in giving instruction not warranted by evidence required reversal.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
M.D. Brown and Mize Mize Thompson, all of Gulfport, for appellant.
It is well settled that if a verdict of a jury is contrary to the law and the evidence, this court will reverse for it.
Powers v. Chapman, 116 So. 609; C. G. Ry. Co. v. Buford, 116 So. 817; City of Jackson v. Lewis, 108 So. 156; City of Albany v. Black, 108 So. 49; Morgan Hill Paving Co. v. Fonville, 119 So. 610; Senatobia v. Dean, 127 So. 773; Birdsong v. Town of Mendenhall, 97 Miss. 544; Saxon v. Houlka, 107 Miss. 161; Jordan v. Lexington, 97 So. 758.
The court erred in giving the following instruction for the appellee:
The court instructs the jury for the defendant that if they believe from the evidence that the negligence of the driver of plaintiff's car, if they believe there was such negligence, was the sole proximate cause of the accident complained of, then they should find for the defendant.
This instruction is erroneous and misleading, because there was no evidence whatever upon which to base the instruction.
Neal v. Dukate, 93 Miss. 201; Y. M.V. Ry. Co. v. Lucken, 102 So. 393; Moore v. Johnson, 114 So. 734; C. G. Ry. Co. v. Lee, 115 So. 782; Seaboard Air Line Co. v. Watson, 113 So. 716; Coleman v. Adair, 75 Miss. 660.
Heiss Heiss, of Gulfport, and W.L. Guice, of Biloxi, for appellee.
It is to be borne in mind that the appellant did not request a peremptory instruction on the question of liability, but took the position that this question of negligence was one of fact and law and secured instruction submitting this question to the jury, thereby waiving this right, if it was a right, and, we submit, is estopped from asserting it now.
3 C.J., page 860, Sec. 760, note 9.
The third assignment of error of appellant is the granting of the certain instruction therein given the defendant which charges, in the usual accepted language, that if the jury believed from the evidence that the negligence of the driver of plaintiff's car, if they believe there was such negligence, was the sole proximate cause of the accident complained of, then the jury should find for the defendant.
The sole objection to this instruction was that there was no evidence upon which to base any negligence of the plaintiff's driver. To this it is only needed to answer that the jury had the right to believe from the testimony of the plaintiff's witnesses, Mrs. Strong, that the sudden stopping of the car was due to the sudden application of the brakes by the driver when the defendant was not guilty of negligence. In this instruction we are speaking of sole proximate negligence. In addition to this we submit counsel are in error in saying that the plaintiff would not be chargeable in any event with the negligence of her driver, for according to her own admission, the car in question was her property and her husband was at her request driving her to the place she desired to go.
Except for the giving of the instruction which we shall copy herein, the verdict and judgment would be affirmed; no other substantial error appearing in the record.
At the request of appellee, the court granted the following instruction: "The court instructs the jury for the defendant that if they believe from the evidence that the negligence of the driver of plaintiff's car, if they believe that there was such negligence, was the sole proximate cause of the accident complained of, then they shall find for the defendant." We have carefully searched this record and find no evidence upon which the quoted instruction can be substantially based. It is error to grant an instruction which has no substantial support in the evidence. Kneale v. Lopez Dukate, 93 Miss. 201, 46 So. 715; Interstate Life Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267.
It is not enough, however, that an instruction is erroneous because not based on evidence; for, if the verdict is manifestly right, or if the evidence is fairly conclusive in favor of the verdict, the error will be regarded as harmless. Storm v. Green, 51 Miss. 103; Duff v. Snider, 54 Miss. 245; Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Vance v. State, 62 Miss. 137. But where, as in this case, the evidence is sufficient to have supported a contrary verdict, and it is not clear that the erroneous instruction did not influence the result, the error will require a reversal. Solomon v. City Compress Co., 69 Miss. 319, 327, 10 So. 446, 12 So. 339.
Reversed and remanded.