Scott County Co-Op v. Brown

187 So. 2d 321
CourtMississippi Supreme Court
DecidedJune 6, 1966
Docket43980
StatusPublished
Cited by26 cases

This text of 187 So. 2d 321 (Scott County Co-Op v. Brown) 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
Scott County Co-Op v. Brown, 187 So. 2d 321 (Mich. 1966).

Opinion

187 So.2d 321 (1966)

SCOTT COUNTY CO-OP and Billy Mack Babb, Defendants-Appellants,
v.
Mrs. Morris BROWN, Plaintiff-Appellee.

No. 43980.

Supreme Court of Mississippi.

June 6, 1966.

*322 George F. Woodliff, W. Swan Yerger, Heidelberg, Woodliff & Franks, Jackson, for appellants.

Gordon & Henry, Union, O.B. Triplett, Jr., Forest, for appellee.

GILLESPIE, Presiding Justice.

Mrs. Morris Brown, plaintiff below and appellee here, recovered a judgment for personal injuries against Scott County Co-op, a corporation, and its employee, Billy Mack Babb, defendants below and appellants here.

The plaintiff charged in her declaration that she was a passenger in an automobile traveling in a westerly direction on the inside lane of a four-lane highway in the City of Forest, Mississippi, and when the automobile stopped for a traffic light at an intersection, she received serious personal injuries when it was struck from the rear by a truck owned by Scott County Co-op and driven by its employee, Billy Mack Babb. The declaration charged that appellant Babb was negligent in his operation of the truck because he failed to maintain a proper lookout for other vehicles upon said highway, and failed to maintain free and easy control of said truck. The answer of the defendants denied the charges of negligence, but admitted that the truck ran into the rear of the automobile in which the plaintiff was riding. Defendants alleged as an affirmative defense that the brakes on *323 one of the rear wheels of the truck failed as a result of a latent defect, resulting in a complete brake failure, thereby permitting the truck to run into the rear of said automobile.

The issues of fact on the question of liability were (1) whether defendant Babb maintained a proper lookout for other vehicles upon the highway, and (2) whether the defendants knew or, in the exercise of reasonable care, should have known that the brakes on the truck were defective. The second fact issue could be stated in terms of failure to maintain reasonable control of the truck.

On the issue as to whether Babb maintained a proper lookout, the evidence was in conflict. Babb testified that when he was about the length of his truck to the rear of the automobile in which the plaintiff was riding, the brakes suddenly failed, and he could not turn to the right because of automobiles in the outside lane, and he could not turn to the left because a vehicle coming from the west was starting to cross the intersection as the light changed to green. He testified that he had no alternative to running into the rear of the automobile directly in front of him. Witnesses for the plaintiff denied the presence of the automobile in the outside lane of the two westbound traffic lanes and denied the presence of the vehicle in the inside lane for eastbound traffic. We are of the opinion that this conflict in the testimony was for the jury to determine and that there was sufficient evidence to justify a finding by the jury that Babb negligently failed to maintain a proper lookout, and that such negligence was a proximate cause of the plaintiff's injuries.

On the issue as to whether Babb maintained free and easy control, or reasonable control, of the truck, the evidence is also conflicting. On behalf of the plaintiff, it was admitted that the truck ran into the rear of the automobile in which the plaintiff was riding. Several witnesses testified on behalf of plaintiff that immediately after the accident defendant Babb stated that he did not have any brakes on the truck and this fact was known to the people at the Scott County Co-op. Several mechanics testified concerning the condition of the brakes on one of the rear wheels of the truck. The brake springs were loose, and one spring and other parts, including the fluid line, had been broken. According to these witnesses, the broken spring had been worn by being loose in the wheel for a considerable amount of driving and that the loose spring would make a noise that could have been heard. The proof is somewhat inconclusive concerning the cause of the brake failure, but there is no question but that the truck had defective brakes. There was a sharp conflict in the testimony on the factual issue as to whether the condition of the brakes was known to defendants or, in the exercise of reasonable care, should have been known prior to the time the truck was operated on the day of the accident. The fact that the truck did have defective brakes and the conflict in the testimony concerning the statement made by defendant Babb immediately after the accident, together with the testimony of the mechanics, made a jury issue as to whether the defendants knew or, in the exercise of reasonable care, should have known that the truck had defective brakes.

The appellants argue that they were entitled to a directed verdict and also that the verdict of the jury in favor of the plaintiff was against the overwhelming weight of the evidence. We are of the opinion that there is no merit in either of these contentions. For the reasons already stated, the issues of fact were for the determination of the jury.

Defendants assign as error the action of the trial court in overruling their motion for a mistrial during the closing argument. The court reporter took notes of the arguments of plaintiff's counsel in the closing *324 argument. One of plaintiff's counsel made the following statement:

And Gentlemen, in all deference to Scott County, I believe you have confidence in us lawyers to know that we will collect a judgment in such a way as to not hurt the defendants, Junior Madden or the Scott County Co-op.

When counsel made this statement to the jury, defendants objected, and the court sustained the objection. Defendants then moved for a mistrial, and this was overruled. All of these proceedings were included in a bill of exceptions signed by the trial judge at the end of the trial, which was on July 1, 1965. The court recessed on July 1, 1965, until July 6, and upon the opening of court on July 6, counsel for both parties were in court for the purpose of arguing a motion for a new trial filed by defendants, and at that time, counsel for plaintiff filed a motion to amend the bill of exceptions so as to show statements attributed to two of defendants' counsel. Appellee contended in the trial court and contends here that the statement made by plaintiff's counsel and quoted above was not sufficient to inject the question of insurance into the case, and if it was, it was justified because it was in response to statements made by defendants' counsel. There was a sharp dispute as to the statements attributed by appellee to one of the attorneys for defendants, and a lengthy hearing was had as to what was actually said by defendants' counsel, and all of the lawyers involved in the case testified. The court allowed the amendment to the bill of exceptions, but generally held that the requested amendment was not correct. In ruling on the motion of plaintiff to amend the bill of exceptions, the court stated the following with reference to the statement made by two of defendants' counsel, and which plaintiff contends justified the remarks made by plaintiff's counsel:

* * * Mr. Woodliff referred to that a number of times in his argument and made the statements substantially as follows that:
`So don't you know that if there had been anything wrong with this truck, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
187 So. 2d 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-county-co-op-v-brown-miss-1966.