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JOHN WILEY CLARK AND WIFE4/15/1987
ould not have necessarily rebutted that testimony. The testimony on Bosarge's intoxication was cumulative, as the defendants and their agents had already admitted that Bosarge was in Silver's Lounge, intoxicated, on the night of January 9 and the morning of January 10, 1980. There is no merit to this assignment of error.
IV. JURY INSTRUCTIONS.
The defendants were each granted an instruction on superseding/intervening cause, which stated that the negligent entrustment of a vehicle to Bosarge, or his negligent operation of a vehicle, could relieve the defendants of liability, if they were" substantial factors in causing the Plaintiffs' injuries and/or damages. "The issue here is two-fold: 1) whether the jury was entitled to be instructed on the theory of intervening, or superseding, cause; and 2) if so, was it properly instructed?
The accident between Bosarge and Clark did not occur immediately after Bosarge left Silver's Lounge, or even immediately after he left the Pascagoula City Jail. Instead, Bosarge was arrested, released to go home, went to bed, awoke an hour or two later, had an argument with his father, and left his home later for work. With each succeeding occurrence, the thread between Bosarge and the defendants weakened. In light of these circumstances, we believe that an intervening cause instruction was proper.
As to the propriety of the instructions themselves, we believe that Instructions 4D1, 4D2, and 4D3 do not properly state the law. Specifically, we condemn an instruction which would tell the jury that they may find that a defendant negligently sold alcohol to an intoxicated minor, but find that the minor's negligent operation of a vehicle was the intervening cause of a resulting accident. The minor's negligent operation of a vehicle is a foreseeable occurrence following his purchase of alcohol. As stated in Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732 (1935):
here an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act.
172 Miss. at 393, 160 So. at 733 [emphasis added].
If these instructions were viewed in a vacuum, we would find reversible error in this case. However, the court also instructed the jury, in Instructions P-6 and P-7, that it could find for the plaintiffs if the defendants failed to use ordinary care in selling alcoholic beverages to Bosarge, and the sale proximately caused Clark's injuries. The jury was also told in Instruction P-9A that the City of Pascagoula could be found negligent if it breached the duty of a reasonable police department and caused Clark to suffer foreseeable injuries. Finally, Instruction P-15A told the jury that the defendants could be liable if they contributed to the cause of the accident. After viewing the jury instructions in their entirety, we are of the opinion that no reversible error occurred.
V. SETTING ASIDE THE DEFAULT JUDGMENT AGAINST SILVER'S AND THE VELARDO'S.
The motions filed with the trial court to set aside the default judgment taken against Silver's and Nick Velardo alleged that the court was without jurisdiction, and that the defendant had a meritorious defense. The court made no specific findings on either of these assertions in its order, but merely set aside the default judgments.
In Bryant, Inc. v. Walters, 493 So. 2d 933 (Miss. 1986), this C
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