Callender v. Cockrell

217 So. 2d 643
CourtMississippi Supreme Court
DecidedJanuary 13, 1969
Docket45128
StatusPublished
Cited by7 cases

This text of 217 So. 2d 643 (Callender v. Cockrell) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Callender v. Cockrell, 217 So. 2d 643 (Mich. 1969).

Opinion

217 So.2d 643 (1969)

Bessle S. CALLENDER
v.
Sandra COCKRELL, a Minor by Willie B. Cockrell, Father and Next Friend.

No. 45128.

Supreme Court of Mississippi.

January 13, 1969.

Jerry Yeager, Raleigh, Watkins & Eager, Elizabeth Hulen, Jackson, for appellant.

L.D. Pittman, Crymes G. Pittman, Raleigh, George B. Grubbs, Mendenhall, for appellee.

SMITH, Justice:

Mrs. Bessie S. Callender has appealed from a judgment for $5,000 recovered against her by appellee, Sandra Cockrell, *644 a 15 year old minor, in the Circuit Court of Smith County.

Suing by her father as next friend, appellee began the action in the Smith County Circuit Court against her 18 year old cousin, Diane Cockrell, Diane's father, Homer Cockrell, and Mrs. Bessie S. Callender, the appellant here, for the recovery of damages for alleged personal injuries sustained in an automobile collision which had occurred on North Street in the City of Jackson.

The declaration laid venue in Smith County, alleging that Diane Cockrell and her father, Homer Cockrell, were residents of that county. Separate sworn applications for change of venue to Hinds County were filed by Diane Cockrell and Mrs. Bessie S. Callender upon the ground that each of them was a resident and householder of Hinds County and that Homer Cockrell had been joined fraudulently for the purpose of conferring venue jurisdiction upon the Smith County Circuit Court.

There was no question that Mrs. Callender resided in Hinds County and upon the hearing of Diane Cockrell's application, according to her own testimony, she was "living in Jackson" and employed by a life insurance company there. She had her own apartment in Jackson but "went home," meaning her father's home in Smith County, on weekends. Apparently no serious contention was made that a cause of action existed against Homer Cockrell and this was confirmed by the proof subsequently adduced at the trial. However, the court denied the application when Diane Cockrell stated, in response to a question put to her by the court, that although she lived and worked in Jackson, what she really thought of as "home" was Smith County.

After a jury had been empaneled, plaintiff's counsel announced that settlement had been made with the Cockrell defendants and that a nonsuit was being taken as to them. Whereupon, Mrs. Callender, as the only remaining defendant, renewed her application for a change of venue to the county of her household and residence. The court again denied the application, this time upon the ground that a jury had been empaneled before the announcement of the nonsuit as to the Cockrell defendants. The action of the trial court in denying a change of venue under these circumstances is assigned as error and might present a serious question but for the fact that we have concluded that the case must be reversed upon other grounds.

The declaration charged that plaintiff-appellee, Sandra Cockrell, had been riding as a passenger in an automobile driven by her cousin, Diane Cockrell, when it had run into the rear end of Mrs. Callender's automobile, as a result of which plaintiff had been injured. It was alleged that the collision and consequent injuries were proximately caused by the negligence of Diane Cockrell in driving at a high, excessive and unlawful rate of speed, not maintaining a "reasonable and proper lookout," and not having her automobile under "reasonable and proper control." Mrs. Callender was charged with having failed to give a signal of her intention to turn right from the street "which constituted negligence" and with not keeping a proper lookout to the rear and bringing her vehicle to a sudden stop without warning.

After nonsuits had been entered as to the Cockrells, the case proceeded to trial against Mrs. Callender. Two witnesses testified for plaintiff-appellee upon the issue of liability, the plaintiff-appellee herself and her cousin, Diane Cockrell. Medical evidence tended to indicate that, fortunately, appellee's injuries were not grave and were temporary in character.

The collision, out of which the suit arose, occurred a little before noon on July 13, 1966, on a clear day on North Street in the City of Jackson. An automobile, being driven by Mrs. Callender, was proceeding south on North Street, on *645 which the speed limit is 30 miles per hour, when she was overtaken and her car was run into from the rear by the automobile being driven by Diane Cockrell in which appellee, Sandra Cockrell, was a passenger. At the time, the two girls were on their way to lunch.

Appellee, testifying in her own behalf, said that she first saw the Callender vehicle when it was about a half block ahead, and that the automobile in which she was riding overtook it and approached it to within approximately 15 to 20 feet. She testified that Diane Cockrell maintained this interval between the two vehicles as they proceeded down the street. She said that Diane was driving at a speed of 30 to 35 miles per hour, (on cross-examination she said they were making 35), when she observed the stop lights on the Callender automobile go on. At that time the interval between the Callender car and the Cockrell car had been reduced to 12 to 15 feet. Diane Cockrell testified that she applied her brakes when she saw the stop signal, but was unable to stop and skidded into the back of the Callender car. Appellee said that at the moment of impact, they were still going 20 to 25 miles per hour. In her testimony, appellee specifically confirmed those allegations of her original declaration charging that Diane Cockrell did not have her automobile under control, was not keeping a proper lookout and was driving at an excessive rate of speed.

The testimony of Diane Cockrell was, in great part, of a negative character and consisted of many "I don't know" answers.

She testified that the Callender car was not moving when she hit it, (appellee said it was slowing down), that she had observed its stop lights go on but she could not state how fast either car was going or how far she was behind the Callender automobile and said that when she saw the stop light come on she put on her brakes but could not stop.

Diane Cockrell thought she had been following about two car lengths behind Mrs. Callender but she was "not sure of that." She admitted that she was driving 30 to 35 miles per hour, but said "I don't know how fast she (Mrs. Callender) was going." The proof was that Mrs. Callender had been traveling 15 to 20 miles per hour.

Diane Cockrell admitted that she was gaining on Mrs. Callender and when asked if she was going faster than Mrs. Callender she said "evidently so." She said "I saw her brake lights go on," but was unable to say how far back of Mrs. Callender she had been at the time or how fast either she or Mrs. Callender was going, or how far back she had been when she applied her brakes or what skid marks she had left.

The Cockrell car had come over a rise in the street at some 30 to 35 miles per hour and had overtaken Mrs. Callender, who was "not going very fast." For the few seconds it took to travel about half a block the Cockrells followed her, closing the distance between the two automobiles, according to appellee, to an interval of some 12 to 15 feet. Both girls saw the stop lights on the Callender car come on as she began slowing, preparatory to making a right turn off the street. Diane Cockrell testified that it was then that she had applied her brakes but could not stop and had skidded into the rear of the Callender automobile. At the moment of impact, according to appellee herself, the Cockrell car was still making 20 to 25 miles an hour.

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Bluebook (online)
217 So. 2d 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callender-v-cockrell-miss-1969.