Opinion
No. 39102.
February 22, 1954.
1. Negligence — peremptory instruction erroneous — jury question.
In suits by owners of mechanical cotton pickers against Chief of Police and surety on his official bond for damages to machines which were being transported by truck-trailer, when Chief of Police allegedly ordered driver to pull truck further off pavement and onto sloping road shoulder where truck-trailer overturned, trial court erred in granting peremptory instruction and in dismissing suits as questions whether Police Chief ordered driver to pull further onto shoulder, whether he was negligent in so doing, and whether the proximate contributing cause to overturning of trailer and consequent damage to machines resulted because of Chief of Police's alleged negligence was for the jury.
2. Negligence — different conclusions from evidence — case for jury.
In any case, where reasonable men might draw different conclusions from the evidence as to negligence, the question of such negligence is always for the jury.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Sunflower County; ARTHUR JORDAN, Judge.
Cooper Harper, Indianola; J. Robertshaw, Greenville, for appellants.
I. Compliance with the order of the arresting officer was the direct and proximate cause of the damages sustained by appellants.
II. The appellee, Will Love, was guilty of negligence in wrongfully arresting appellants' driver.
A. An officer arresting a misdemeanant is under a duty to use reasonable care not to injure the arrested person or property in his possession. Johnson v. Cunningham, 107 Miss. 140, 149, 65 So. 115, 117; U.S.F. G. Co. v. Samuels, 116 Ohio St. 586, 157 N.E. 325, 53 A.L.R. 36.
B. The action of the appellee, Will Love, was not only illegal and beyond his authority as a police officer, but was also entirely unnecessary to effect the arrest intended. Holland v. Martin, 214 Miss. 1, 9, 56 So.2d 398; State for use of Little v. U.S.F. G. Co. (Miss.), 64 So.2d 697; Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784; Secs. 2470, 8215, Code 1942.
III. If the peremptory instruction in favor of the appellee, Will Love, was improper, then the instruction in favor of the surety company was improper. Letow v. U.S.F. G. Co., 120 Miss. 763, 83 So. 81; Maryland Cas. Co. v. Eaves, 188 Miss. 872, 196 So. 513; Pierce v. Chapman, 165 Miss. 749, 143 So. 845; State for use of Little v. U.S.F. G. Co., supra; State for use of McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994.
Stanney Sanders, Neill, Clark Townsend, Indianola, for appellees.
I. In order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Columbus Greenville R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 837; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; Shuptrine v. Herron, 182 Miss. 315, 180 So. 620; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; 22 Am. Jur., Sec. 127 p. 443; Anno. 19 Ann. Cas. 971.
APPELLANTS IN REPLY.
I. When two reasonable inferences might be drawn from the evidence as a whole, one leading to one proximate cause of the accident and one leading to another, then an issue is made for the jury to decide even though the material facts might be undisputed. Alabama Great Southern Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 730; American Creosote Works of La. v. Harp, 215 Miss. 5, 60 So.2d 514; Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Collins Baking Co. v. Wicher, 166 Miss. 264, 142 So. 8; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Farmer v. Cumberland Tel. Tel. Co., 86 Miss. 55, 38 So. 775; Fatherree v. Griffin, 153 Miss. 570, 121 So. 119; Fore v. I.C.R.R. Co., 172 Miss. 451, 160 So. 903; Gibson v. W.C. Wood Lbr. Co., 91 Miss. 702, 45 So. 834; Graves v. Hamilton (Miss.), 177 So. 360; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; Jefferson v. Yazoo M.V.R.R. Co., 194 Miss. 729, 11 So.2d 442; King v. King, 161 Miss. 51, 134 So. 827; Loper v. Yazoo M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780; Miss. Central R.R. Co. v. Mason, 51 Miss. 234; Miss. Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Mobile, J. K.C.R.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Mohead v. Gilmer Grocer Co., 153 Miss. 467, 121 So. 143; Mutual Life Ins. Co. of N.Y. v. Savage, 31 F.2d 35; Nelson v. New Orleans N.R.R. Co., 100 Fed. 731, 40 C.C.A. 673; New Orleans G.N.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Phillups v. Montgomery, Ward Co., 125 F.2d 248; Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Strauss v. National Parlor Furniture Co., 76 Miss. 343, 24 So. 703; Sunflower Compress Co. v. Clark, 165 Miss. 219, 145 So. 617; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Watts v. United States, 24 F. Supp. 969; Yazoo M.R. Co. v. Pittman, 169 Miss. 667, 153 So. 382.
II. The jury had the right to decide whether or not the truck driver was correct in obeying the policeman.
Each of the appellants is the owner of a mechanical cotton picker. They live in the lower part of the delta section of Mississippi. Having completed the harvesting of the cotton crop in their area, which was below normal, they arranged to carry their machines to the upper delta section where the crop was bountiful so that they might use them in commercial picking there. The two machines were loaded on a Chevrolet truck-trailer at Hollandale and were securely chained to the platform or floor of the trailer. Their driver then proceeded North on Highway 61 to Leland, then East on Highway 82 to Indianola, at which point he turned North on Highway 49-W. In the city limits of Indianola the load came in contact with a traffic light hanging over the highway. The driver pulled to the side of the highway, stopped the truck-trailer, and got out of his cab and looked back at the traffic light. It appeared to be operating properly and he thereupon got back in the cab and proceeded on his journey. A witness who was standing nearby telephoned the chief of police who is the appellee, Love, and Love came to the scene and followed the truck-trailer to a point about eight-tenths of a mile up Highway 49-W where he overtook it and motioned to the driver to pull over and stop. The driver obeyed this command, pulling the truck-trailer onto the shoulder of the highway so that it was completely off the paved portion, twenty feet in width, except that the left rear wheel was still about six inches on the pavement. Love parked his car on the shoulder in front of the truck and came back to the cab of the truck, and while the driver was still in the cab, a conversation occurred between them. According to the driver and a Negro who was riding in the cab with him, Love told the driver that he would have to go back to town and take care of the damage he had done to city property; the driver started to get out of the cab and Love told him that the truck was not entirely off the pavement and ordered him to pull the truck off the pavement; this the driver undertook to do, and because of the slope of the shoulder of the highway and the further slope beyond the shoulder the truck turned over and the two pickers were badly damaged. Love testified that when he stopped the truck and went back to the cab he told the driver "You broke my red light uptown. I will have to carry you back to see about that." Love said then he then saw that the left rear wheel was about six inches on the pavement and told the driver "I will pull up a little so you can get your wheel off the concrete." He positively denied that he ordered the driver to pull over further.
Two suits were filed against the chief of police and the surety on his official bond, one by Kirkpatrick and one by Stock. By agreement in the lower court these two suits were consolidated for trial with the understanding that if the jury should find for the plaintiff in each case they would return separate verdicts. At the conclusion of all the evidence the trial judge granted to the defendants a peremptory instruction and dismissed the suits, from which action the plaintiffs appeal, contending that there was an issue for determination by the jury on the question whether the chief of police was negligent in ordering the driver to pull over further onto the sloping shoulder of the highway. (Hn 1) We think the contention of appellants is correct and that the trial court erred in peremptorily charging the jury to find for the defendants.
Whether Mr. Love should have foreseen in the exercise of reasonable care that the truck might turn over when pulled further onto the sloping shoulder of the highway, especially in view of the fact that Love was standing on the highway and in a position to see and appreciate the danger of such an occurrence while the driver was in the cab of the truck and not in a position to see, was purely a question for determination by a jury, and whether Love ordered the driver to pull further upon the shoulder of the highway and was negligent in so doing were likewise questions for the jury, and whether such negligence, if any, was a proximate contributing cause to the overturning of the truck and the consequent damage was also a jury question. These principles have been announced in so many of our decisions that the citation of authority to support them is wholly unnecessary. (Hn 2) In any case where reasonable men might draw different conclusions from the evidence as to negligence, the question is always for the jury.
Reversed and remanded.
McGehee, C.J., and Lee, Holmes and Ethridge, JJ., concur.