City of Indianola v. Love

Arrington, J. This is the second appearance of this case before the Court. The facts are fully stated in the former decision, Kirkpatrick, et al. v. Love, et al., 220 Miss. 174, 70 So. 2d 321. Upon remand, there was a second trial on the merits and the plaintiffs recovered judgment for $1,331.99, which was approximately one-half of the amount of the damages to the two cotton picking machines and the truck. Prom this judgment, the appellants appeal and the appellees cross-appeal. We will not detail the evidence, since both parties agree that the facts are substantially the same as in the first trial. The appellants contend that the trial court erred in not entering judgment for the full amount of damages claimed. We are of the opinion that this assignment is well taken as to the actual damages. The evidence is undisputed that the repairs were necessary to the cotton picking machines and truck in the amount of $2480.52. Carroll County v. Shook, 216 Miss. 232, 62 So. 2d 311. The appellants also contend that they are entitled to recover $2000.00 special damages for loss on a cotton picking contract. Under the pleadings and proof in this case, we are of the opinion that there is no merit in this contention. The appellees contend that the judgment should be affirmed for the reason that the jury had to consider the contributory negligence of the appellants’ driver, Maddox, and also the improper loading of the truck. The appellees did not plead contributory negligence and no instruction was given on that issue. However, the jury has a right to diminish damages because of contributory negligence even though it is not pleaded and no instruction is given authorizing them to so diminish the damages because of contributory negligence. Pounders v. Day, 151 Miss. 436, 118 So. 298; Vaughn v. Bollis, et al, 221 Miss. 589, 73 So. 2d 160. We are of the opinion that there was not sufficient proof of contributory negli [160] gence ón the part of Maddox, the driver of the truck, for the jury to find that his negligence contributed to the accident; further, that the overwhelming weight of the evidence shows that the cotton picking machines were properly loaded on the truck; and, therefore, the action of the jury in diminishing the damages was not justified under the evidence. We hold that the sole proximate cause of the accident and resulting damages was the acts of Love. The judgment should have been for the full amount of the loss sustained by appellants resulting from the damage to the cotton picking machines and truck in the, amount of $2480.52. Judgment is entered here against Love and the United States Fidelity and Guaranty Company jointly and severally in' the sum of $2,000, the amount of the bond, and against Love for the amount of $480.52, being the amount of the damages exceeding the penalty of the bond. Reversed and judgment here for appellant on direct appeal, and affirmed on cross-appeal. All justices concur, except Gillespie, J., who dissents in part.