Opinion
No. 40393.
February 18, 1957.
1. Evidence — admissions against interest of party to suit — general rule.
As a general rule, when a party testifies to positive and definite facts, which, if true, would defeat his right to recover, or conclusively show his liability, and such statements are not subsequently modified or explained by him to show that he was mistaken although testifying in good faith, he is conclusively bound by his own testimony, and cannot successfully complain if court directs a verdict against him.
2. Motor vehicles — intersectional collision — in guest passenger's action against host and driver of other vehicle involved, for personal injuries — wherein judgment on verdict was entered for both defendants, guest appealed and host cross-appealed — under guest's own testimony host entitled to peremptory instruction.
In guest passenger's action against her host and against driver of vehicle which collided with host's automobile while negotiating right turn into highway at intersection wherein judgment on jury verdict was rendered for both defendants, plaintiff appealed and defendant host cross-appealed, contending that she had been entitled to a peremptory instruction, Supreme Court held that in view of guest's positive testimony that host was on her right side of the road and did nothing to cause the accident, guest should not have been allowed to go to the jury on a theory of fact that impeached her own positive testimony but host should have been granted her requested peremptory instruction.
3. Motor vehicles — same — same — issue of negligence on conflicting evidence — properly resolved by jury in favor of driver of other vehicle.
In such case, Supreme Court further held that issue of negligence on conflicting evidence was properly resolved by jury in favor of other driver, and the verdict of the jury was not against the overwhelming weight of the evidence.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Morse Morse, Gulfport, for appellant.
I. The verdict was against the overwhelming weight of the evidence. Mitchell-Davis Distributing Co. v. McDonald, 223 Miss. 573, 78 So.2d 597; Alexander's Miss. Jury Instructions, Sec. 75 p. 46.
II. Instruction Number Four given on behalf of Mae Wood requiring the plaintiff to prove each and every allegation of her declaration by the preponderance of the evidence is clearly erroneous. Alexander's Miss. Jury Instructions, Sec. 82 p. 51.
Bidwell Adam, Gulfport; Dan M. Russell, Jr., Bay St. Louis; Jackson Ross, Jackson, for appellee, R.H. Stieffel.
I. The verdict of the jury and the judgment of the Court on such verdict together with the Trial Judge's overruling a motion for a new trial are supported by believable and sufficient credible evidence. Alexander's Miss. Jury Instructions, Sec. 51 p. 20.
II. There is a presumption that the Trial Judge acted upon his own honest judgment in overruling a motion for new trial. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Gillespie v. Doty, 160 Miss. 684, 135 So. 211; Mitchell-Davis Distributing Co. v. McDonald, 223 Miss. 573, 78 So.2d 597; Redmond v. Self (Ala.), 90 So.2d 238; Stovall v. Farmers Merchants Bank, 8 Sm. M. 305, 47 Am. Dec. 85; Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Ward v. Hopkins (Fla.), 81 So.2d 493; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 191 So. 105, 192 So. 312; Y. M.V. Railroad Co. v. Lee, 148 Miss. 809, 114 So. 866.
Rae Bryant, Gulfport, for appellee and cross-appellant, Mrs. J.F. (Mae) Wood.
I. The evidence in this case was sufficient to warrant the jury in returning a verdict in favor of the appellee, Mrs. J.F. (Mae) Wood.
II. The appellant complains of instruction Number Four granted in favor of the appellee, Mrs. J.F. (Mae) Wood, which said instruction reads as follows: "The Court instructs the jury for the defendant, Mrs. J.F. (Mae) Wood that before you can return a verdict in this case against the defendant, Mrs. J.F. (Mae) Wood, that the plaintiff must prove by a preponderance of the evidence in this case each and every allegation in her Declaration and you are further instructed that the allegation in the Declaration that the defendant, Mrs. J.F. (Mae) Wood was driving her automobile at said time in a negligent manner and at a dangerous and reckless rate of speed, is a material allegation, and such an allegation as the plaintiff must prove by a preponderance of the evidence before you can return a verdict against the defendant, Mrs. J.F. (Mae) Wood." This Court had repeatedly held that an instruction similar to the one given on behalf of the appellee, Mrs. J.F. (Mae) Wood is a good instruction. This instruction did not refer the jury to the Declaration but the instruction itself specifically designated that part of the Declaration referred to and it was not necessary for the jury to look to the Declaration to determine what was referred to. The instruction told the jury specifically the allegations regarding Mrs. J.F. (Mae) Wood that the plaintiff would have to prove by a preponderance of the evidence. Evans v. Jackson City Lines, Inc., 212 Miss. 895, 56 So.2d 80; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Jessup v. Reynolds, 208 Miss. 50, 43 So.2d 753; Meridian Taxicab Co., Inc. v. Ward, 212 Miss. 895, 186 So. 636; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495.
III. The Court erred in its refusal to exclude the testimony on behalf of the plaintiff, at the conclusion of the plaintiff's testimony, and grant a directed verdict in favor of the defendant, Mrs. J.F. (Mae) Wood in compliance with a motion duly made for said directed verdict. Columbia Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 167 So. 454; Humes v. Young, 219 Miss. 417, 69 So.2d 245; Railway Express Agency, Inc. v. Mallory, 168 Fed. Rep.2d 426; Wright v. Gordon's Transport Inc., 162 Fed. Rep.2d 590.
IV. The Trial Court erred in its refusal to grant instruction Number One requested by the defendant, Mrs. J.F. (Mae) Wood which read as follows: "The Court instructs the jury to find for the defendant, Mrs. J.F. (Mae) Wood." Fox v. Matthews, 33 Miss. 433.
V. The Trial Court erred in questioning the plaintiff in the absence of the jury, regarding the allegation of negligence in the Declaration against the defendant, Mrs. J.F. (Mae) Wood. Griffin v. State, 171 Miss. 70, 156 So. 592; Moore v. Syke's Estate, 167 Miss. 212, 149 So. 789.
Appellant, Miss Maud Bradshaw, plaintiff in the court below, filed her suit against appellees, R.H. Stieffel and Mrs. J.F. Wood. It was charged that appellant was a guest in the car being driven by Mrs. Wood in an easterly direction on U.S. Highway 90 in Hancock County, Mississippi; that the automobile being driven by Stieffel came into the highway from the Kiln Road and the two cars collided, resulting in injuries to appellant. The specific charge of negligence against Stieffel was that he "did not stop at the intersection of Kiln Road and U.S. Highway 90, but negligently, carelessly and recklessly drove his automobile out into U.S. Highway 90 and into the traffic lane in which the automobile in which plaintiff was riding, at a highly negligent, dangerous and reckless rate of speed." The specific charge of negligence against Mrs. Wood was that she was "driving her automobile at said time in a negligent manner and at a dangerous and reckless rate of speed without due regard to traffic conditions on said road . . ." The declaration then charged that the proximate cause of the collision and resulting injuries to appellant was the negligence of both defendants.
The jury returned a verdict in favor of both defendants.
Appellant makes two assignments of errors: (1) That the evidence was against the overwhelming weight of the evidence, and (2) that the lower court erred in granting an instruction to appellee, Mrs. Wood. The appellee, Mrs. Wood, filed a cross-appeal and assigned as error, among others, that she was entitled to a peremptory instruction.
Called as an adverse witness, appellee Stieffel testified that he was driving south on the Kiln Road and reached the intersection with U.S. Highway 90 and that he came to a dead stop before entering into the highway, and turned to his right headed west; that when he entered the highway he saw the headlights of a vehicle coming from the west a considerable distance from the intersection, and this vehicle seemed to be coming at a fast rate of speed; that he turned into his right lane and proceeded about thirty or forty feet when the other vehicle coming from the west crossed over into his lane and the two automobiles struck; that the vehicles came to rest in the south lane of the highway headed in a northerly direction and about six or seven feet apart with the front ends of the vehicles about the center of the highway. Appellee, Mrs. Woods, also called as an adverse witness, testified that she was traveling east on her side of the highway at a speed not exceeding 55 miles per hour and the Stieffel automobile came into the highway and cut over onto her side of the highway; that she was unable to get out of the way and the vehicles collided. Appellant testified that she was a passenger in the automobile being driven by Mrs. Wood; that Mrs. Wood was driving on the right hand side of the road and she saw the glaring light of the other automobile coming at them from the left and she did not know any more as she was knocked unconscious. Appellant repeatedly stated that Mrs. Wood was on her right side of the road, that Mrs. Wood did not speed up or twist the car in any way, and that Mrs. Wood did not commit any negligent act before they hit. The physical evidence did not reveal where in the highway the impact took place.
(Hn 1) We first consider the cross-appeal of appellee, Mrs. Wood. Appellant repeatedly stated that Mrs. Wood was on the south or right side of the highway and that Mrs. Wood did not commit any act of negligence contributing to the collision. If Mrs. Woods was negligent, it was in driving her automobile to the left and into the north lane of the highway. There was no proof that the speed of her automobile was a contributing cause of the accident. It should also be observed that it was not charged in the declaration that Mrs. Wood drove her automobile to the left and into the wrong traffic lane.
The general rule is that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him to show that he was mistaken although testifying in good faith, he is conclusively bound by his own testimony, and cannot successfully complain if the court directs a verdict against him. Of course a party is not conclusively bound by admissions made out of court, by statements of other witnesses on his behalf, when the testimony is in the nature of opinions and conclusions, where it appears that the party was honestly mistaken in his expressed opinions and conclusions, if his mental faculties are impaired, where the the testimony is immaterial to the real issue, if the party's testimony is equivocal, or if the testimony is subsequently reasonably modified or explained. Anno., 50 A.L.R. 979; Anno., 80 A.L.R. 624; De Lorme v. St. Louis Public Service Co., (Mo.) 61 S.W.2d 247; McCoy v. Home Oil Gas Company (Kan.), 60 S.W.2d 715; Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021; Stanolind Oil and Gas Company, et al v. State, et al (Tex.), 145 S.W.2d 569; Kimmell, et al v. Tipton, et al, (Tex.) 142 S.W. 421; Yellow Cab Company of Virginia, Inc., v. Gulley, 169 Va. 611, 194 S.E. 683; Madden v. Red Line Service, Inc., (Mo.), 76 S.W.2d 435; Vondrashek v. Dignan, 200 Minn. 530, 274 N.W. 609; Southern Surety Co. v. Inabnit, et al (Tex.), 1 S.W.2d 412; 31 C.J.S., Evidence, Sec. 381(d), p. 1173, et seq.; Cf. Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71.
(Hn 2) Appellant was positive and definite that Mrs. Wood was on her right side of the road and did nothing to cause the accident, and she should not have been allowed to go to the jury on a theory of fact that impeached her own positive testimony. Mrs. Wood was entitled to a peremptory instruction.
(Hn 3) It is contended by appellant that the verdict of the jury was against the overwhelming weight of the evidence. This is the only assignment of error as to appellee, Stieffel. No one testified that Stieffel did not stop before entering the highway intersection, and Stieffel testified that he did. The testimony was in conflict as to whether Stieffel drove his automobile into the south, or his left, traffic lane and thereby caused the collision with the Wood automobile. Stieffel testified that he cautiously entered the intersection and turned into his right lane and headed west and the Wood automobile came over into his lane and the two vehicles collided. Mrs. Wood and appellant testified to the contrary and said Stieffel drove his automobile into his left lane. The physical facts, testified to by an officer and a mechanic, were inconclusive as to the location of the point of the impact. The only issue properly before the jury was whether or not Stieffel was negligent. We are not able to say that the jury decided this issue contrary to the overwhelming weight of the evidence. There was a conflict and nothing more. We are of the opinion that Stieffel is entitled to an affirmance.
Appellant cites the case of Mitchell-Davis Distributing Co. v. McDonald, (Miss.) 78 So.2d 597. In that case, plaintiff was a passenger on the bus of the defendant, Laurel City Lines, Inc. There was a collision between the bus and the truck operated by one Speed for the defendant Mitchell-Davis Distributing Company. The plaintiff was granted a peremptory instruction to find for plaintiff, and the other instructions submitted for the determination of the jury the issue of fact as to whether one or the other, or both, of the defendants' drivers was guilty of negligence proximately causing plaintiff's injuries. We held that the granting of the peremptory instruction was proper. Appellant in the present case says that if the granting of a peremptory instruction was proper in the McDonald case it must be said that a verdict for both defendants in the present case was against the overwhelming weight of the evidence. But this argument is not valid here for the reason that Mrs. Wood was entitled to a peremptory, and the jury properly had before it only the issue of Stieffel's negligence.
Reversed in part on cross-appeal; affirmed on direct appeal.
McGehee, C.J., and Hall, Kyle and Arrington, JJ., concur.