ANDERSON, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Harrison County, First Judicial District.
Paul McGill, a farmer, owned a 35-acre man-made lake in rural Harrison County. He allowed the general public to fish in this lake at $2 per day. He owned several boats, and on request he would rent them out to fishermen for an additional $1. Although he owned life preservers, he did not give them out to boaters, except on request.
At about midday on February 21, 1981, Clarence Ira Boyd and two companions, Murray Alexander and Dennis Townley, appeared on McGill's premises, paid the fishing and boat rental fees and were assigned a 12-foot fiberglass skiff. This boat contained no life jackets,
paddles, or lights. At some time during the afternoon the three decided to set out "trot lines" in the lake, and left to get the appropriate equipment. While on this errand they obtained two six-packs of beer, some of which they consumed that afternoon. After returning to the lake and setting the trot lines, they left for a second time. This time they went to two local taverns where they played pool and consumed an undetermined amount of beer. After midnight, they returned to the lake and embarked in the boat to check the trot lines. After a few minutes the boat suddenly filled with water and sank. Alexander and Townley reached the shore safely, but Clarence Ira Byrd drowned. The two survivors went to McGill's house to summon help. County officials dragged the lake for two days before finding Byrd's body in an estimated 8 to 10 feet of water. The boat was never recovered.
Plaintiff Travis Byrd, father and executor of the decedent, filed an action for wrongful death. At the close of the trial, the jury returned a verdict for defendant McGill. Judgment was entered accordingly. From this judgment, Byrd appeals.
The only assignment of error that merits discussion is:
WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY CONCERNING THE DEFENDANT'S VIOLATION OF THE MISSISSIPPI BOATING SAFETY STATUTE.
Appellant's counsel submitted Instruction P-6, which would have charged the jury that McGill must be found negligent per se if the jury found that he had failed to furnish life jackets, paddles and lights on his boats. The trial judge refused this instruction and based his charge to the jury on general common law negligence principles. Plaintiff's Instruction P-6 stated:
The court instructs the jury that the owner or operator of a vessel capable of transportation upon water has a duty under the law of the State of Mississippi to provide such vessel with a Coast Guard approved life preserver for each person aboard, a paddle and during the hours of darkness, a light sufficient to make the vessel's
presence and location known within a reasonable distance.
The court instructs you that if you find from a preponderance of the evidence in this case that the defendant, as owner of the skiff in which Clarence Ira Byrd was a passenger immediately prior to his drowning, failed to provide a Coast Guard approved life preserver, paddle or light, then the court tells you that the defendant was guilty of negligence as a matter of law. If you further find that such negligence, if any, on the part of the defendant constituted the proximate cause or a contributing proximate cause of the accident and death of the decedent, then it is your sworn duty to return a verdict in favor of the plaintiff.
Counsel for appellee McGill objected to this instruction stating that the statute in question imposed the duty on both the owner and the operator, not just the owner. Clarence Ira Byrd, the deceased, he insisted, was an operator within the statute's terms. We agree that the instruction is flawed. The implicit finding that Byrd was a passenger was erroneous, because under these facts the jury could find that he was an operator. Nevertheless, we ...