HENDRIX v. GRIFFIN, ET AL

Adams, Long Adams, Tupelo, for appellant. I. The Court erred in allowing defendant's counsel, over the objection of plaintiff's counsel, to repeatedly and persistently question the plaintiff as to his occupation, which said questioning on said subject was done for the apparent purpose of prejudicing the jury because of the occupation of the plaintiff. Liencoff v. Brinker, 62 Miss. 255; Quinn v. Louisville Nashville Ry. Co., 144 Miss. 155, 110 So. 436; Pounders v. Day, 151 Miss. 436, 118 So. 298; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782. II. The Lower Court erred in allowing defendant Griffin and his negro witnesses to testify, over the objection of the plaintiff, to the position of defendant's truck and other physical facts two hours and a half after the collision and after the normal traffic of the road would of necessity have changed such matters. Wallace v. Billips, 203 Miss. 853, 33 So.2d 809; Byram v. Snowden, 224 Miss. 74, 79 So.2d 541. III. The Court erred in admitting, over the objection of plaintiff below, pictures of the truck of defendant's, which were admitted taken one year or more after the accident and after the truck had been used in farm work for an entire year after the accident. Said pictures being too remote to have an evidentiary value as to the condition of the truck immediately after the accident. Orr v. Greene Ry. Co., 210 Miss. 63, 48 So.2d 630; 5-A Am. Jur. 866; 22 C.J., Sec. 1124 p. 919. IV. The Court erred in refusing plaintiff's instructions, which embodied plaintiff's theory of the agency of defendant, Lockett Betts, and plaintiff's theory that at the time of the accident that Lockett Betts was engaged in the employment of his master, defendant Griffin. West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 776, 45 So.2d 585; Loper v. Yazoo M.V. RR. Co., 166 Miss. 79, 145 So. 743; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370. V. The Court erred in giving Instruction No. 2 for defendant. This instruction assumes to be true the highly controversial facts which were at issue before the jury. Vol. I, Alexander's Miss. Jury Instructions, Sec. 55 p. 23. Claude F. Clayton, Tupelo, for appellees. I. The evidence as to plaintiff's occupation was properly admitted in evidence. Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472. II. The evidence with reference to the position of truck after the collision was properly admitted in evidence. Byram v. Snowden, 224 Miss. 74, 79 So.2d 541. III. The pictures of the truck were properly admitted in evidence. Orr v. Columbus Greenville Ry. Co., 210 Miss. 63, 48 So.2d 630. IV. Instructions given and refused on the scope of employment of Lockett Betts. American Ry. Express Co. v. Wright, 128 Miss. 593, 91 So. 342, 23 L.R.A. 127; Natchez, C. M. RR. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Southern Ry. Co. v. Garrett, 136 Miss. 219, 101 So. 348; Tarver v. J.W. Sanders Cotton Mill, Inc., 187 Miss. 111, 192 So. 17; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 175 Miss. 767, 168 So. 287. V. Defendant's Instruction No. 2. Orr v. Columbus Greenville Ry. Co., supra; Pannell v. Glidewell, 146 Miss. 565, 111 So. 571; Yazoo M.V. RR. Co. v. Mullen, 158 Miss. 774, 131 So. 101. VI. Defendants' Instruction No. 9. Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318.