514 So.2d 1249 (Ala. 1986), 84-1222, Black Belt Wood Co., Inc. v. Sessions

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM.
Citation514 So.2d 1249
PartiesBLACK BELT WOOD COMPANY, INC. v. Leonard Earl SESSIONS, as Administrator of the Estate of James Karl Sessions, deceased.
Docket Number84-1222.

Page 1249

514 So.2d 1249 (Ala. 1986)

BLACK BELT WOOD COMPANY, INC.

v.

Leonard Earl SESSIONS, as Administrator of the Estate of James Karl Sessions, deceased.

84-1222.

Supreme Court of Alabama.

October 3, 1986

On Return After Remand June 30, 1987.

Rehearing Denied Oct. 2, 1987.

Page 1250

Jack B. Porterfield, Jr. and William T. Mills II, Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellant.

Alex W. Newton of Hare, Wynn, Newell & Newton, and R. Gordon Pate of Pate, Lewis & Lloyd, Birmingham, for appellee.

PER CURIAM.

This action involves an accident which occurred on February 7, 1980. On that day, James Karl Sessions, a young man 19 years of age, was driving his automobile on a street in York, Alabama. A log truck traveling in the opposite direction met the car Sessions was driving. Just as the vehicles were in the process of meeting each other, a log, which weighed between 300 and 500 pounds, came off the truck and crushed the automobile which young Sessions was driving, killing him instantly. S and T Trucking Company (S & T) owned the truck and Robert T. Poole, an employee of S & T, was driving the truck. Black

Page 1251

Belt Wood Company, Inc. (Black Belt) loaded the pulpwood trailer.

This is the second time that this case (and the issue of Black Belt's negligence in loading the truck) has been before this Court. See, Black Belt Wood Co. v. Sessions, 455 So.2d 802 (Ala.1984). Leonard Earl Sessions, plaintiff/appellee, originally filed suit against American Can Company, Black Belt, S & T, Robert Poole, and John Tidmore, principal owner of S & T, a corporation. At the conclusion of the first trial, the court granted Tidmore's motion for directed verdict and the jury returned a verdict in favor of Black Belt, American Can Company, and Robert Poole. A verdict was returned against S & T and in favor of Sessions in the amount of $250,000.

Sessions filed a motion for judgment notwithstanding the verdict, as to American Can Company, Black Belt, and Robert Poole, or, in the alternative, for a new trial against all defendants. The trial court granted a new trial in favor of Sessions and against Robert Poole, S & T, and Black Belt, but not against American Can Company.

Black Belt appealed the trial court's order. This Court originally held that the trial court erred as a matter of law and reinstated the jury verdict in favor of Black Belt. On Sessions's application for rehearing, this Court reversed its holding and affirmed the trial court's order granting a new trial. Black Belt's application for rehearing was denied.

The case was tried a second time. Black Belt filed a motion for a directed verdict, which was denied. The jury returned a verdict against Robert Poole, S & T, and Black Belt in the amount of $3,500,000. Black Belt filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, which was denied. This appeal followed.

Black Belt presents seven issues on appeal. We will first address Black Belt's contention that the trial court erred when it failed to grant Black Belt's motion for directed verdict, or, in the alternative, its motion for judgment notwithstanding the verdict.

The law of Alabama is clear as to the standards for testing a motion for directed verdict and a motion for judgment notwithstanding the verdict (JNOV). The standard for testing a motion for directed verdict is identical to that for testing a motion for JNOV. Casey v. Jones, 410 So.2d 5 (Ala.1981). Both motions test the sufficiency of the evidence. Wright v. Fountain, 454 So.2d 520 (Ala.1984). These motions should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such conflict is to be determined by the scintilla rule. Hanson v. Couch, 360 So.2d 942 (Ala.1978).

We are of the opinion that a scintilla of evidence was presented by the appellee to support his position that Black Belt negligently loaded the logs. The evidence reveals that the logs belonged to Black Belt and that Black Belt employees loaded the logs. Black Belt knew that the logs were going to be transported a distance of approximately 60 miles. There was also testimony presented that logs loaded in the same manner by Black Belt had fallen off trucks on previous occasions. After examining the pictures of the particular load in this case, Mr. Tidmore, one of the owners of S & T, testified that the logs were improperly loaded. He also testified that complaints had previously been made to Black Belt that some of its trucks had been improperly loaded.

Black Belt also argues that negligence in the loading of the logs in an improper manner could not have been the proximate cause of the accident because it was the duty of the driver to keep the logs properly secured by chains. Black Belt relies on Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). In Vines this Court stated:

"Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between

Page 1252

the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 (1954)."

Vines, at 1339 (emphasis added.)

In this case, Black Belt should have reasonably foreseen an injury occurring. The evidence in this case is that these big logs frequently fall off trucks and that complaints had previously been made to Black Belt that some of the trucks had been improperly loaded. Black Belt did nothing to change its practices before this accident occurred and, by the time of the trial, had made no changes in its method of operation.

We are of the opinion that the trial court did not err when it denied Black Belt's motion for a directed verdict, or, in the alternative, JNOV.

Black Belt's second contention on appeal is that the trial court erred when it failed to grant its motion for a new trial. Black Belt argues that the great preponderance of the evidence was that the loading was proper.

The decision of whether to grant or deny a motion for a new trial rests within the sound discretion of the trial court. Hill v. Cherry, 379 So.2d 590 (Ala.1980). A denial of a motion for new trial strengthens the presumption of correctness afforded a jury verdict, Osborne v. Cobb, 410 So.2d 396 (Ala.1982), and the decision of the trial court will not be disturbed unless the verdict is against the preponderance of the evidence, or is clearly wrong or unjust. Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980).

This Court stated in its original opinion in this case:

"[T]he evidence plainly and palpably supports a finding that Black Belt negligently loaded the truck. Indeed, in addition to the evidence relating to the allegedly negligent loading process, the evidence is without dispute that S & T's driver stopped the truck more than once before the accident in an effort to tighten the chains and better secure the load of logs, all of which evidence raised a reasonable inference of improper loading--the function of Black Belt, with knowledge that the truck would be operated upon a public highway."

After re-examining the record, and from the evidence set forth above, we conlcude that the evidence supports the verdict in favor of Sessions and against Black Belt.

Black Belt's third contention to this Court is that the trial judge erred in his instructions to the jury. Black Belt argues that Code 1975, § 32-5-76(a), was inapplicable and that the reading of it was inappropriate and constituted reversible error.

The trial court, in its instructions, stated:

"I am going to read to you from the next following section or a portion thereof that says this: [32-5-76(b) ] 'No vehicle shall be driven or moved on any highway unless and until such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway.'

"Now, that (b) part refers back to a portion of (a). And I am going to say to that part that you should consider as a total of section 76 says this, that anyone 'whoever willfully and knowingly operates, owns or causes to be operated on any public highway, road or street a motor vehicle so loaded with gravel, rocks [sic], slag, bricks, sawdust, chips, wood products or other like substances,' then that's the type of vehicle they are talking about in (b) when it says no vehicle, that's the one they are talking about. You may consider this section in arriving at a decision in this case but I say to you this, that I charge you that a violation of section 76 is not negligence per se or as a matter of law."

Code 1975, § 32-5-76, states:

"(a) Whoever willfully and knowingly operates, owns or causes to be operated

Page 1253

on any public highway, road or street a motor vehicle so loaded with gravel, rock, slag, bricks, sawdust, chips, wood products or other like substances, in such manner or in such condition that the contents of the vehicle spill out and endanger the safety of the persons or property of motorists and pedestrians, is guilty of a misdemeanor and upon conviction shall be fined not more than $100.00.

"(b) No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may...

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61 practice notes
  • 671 So.2d 1334 (Ala. 1995), 1930362, Smith v. Schulte
    • United States
    • Supreme Court of Alabama
    • August 18, 1995
    ...state in which" recovery for wrongful death has been judicially restricted to punitive damages. Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1262 (Ala.1986). The "punitive only" rule is an outgrowth of the strong public policy served by the right of this action in Alabama......
  • 72 The Alabama Lawyer 308 (2011). Settling the Claims of a Minor.
    • United States
    • Alabama Bar Lawyer Nbr. 2011, January 2011
    • January 1, 2011
    ...the deterrent value of the infliction of punitive damages." Steele, 623 So. 2d at 1141. See also Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1262 (Ala. 1986) (only punitive damages are recoverable for wrongful death). The right of action is vested solely in the personal represent......
  • 469 S.E.2d 114 (W.Va. 1996), 22956, Burgess v. Porterfield
    • United States
    • West Virginia United States State Supreme Court of Appeals of West Virginia
    • March 11, 1996
    ...punitive award against the other tortfeasor. Tatum v. Schering Corp., 523 So.2d 1042 (Ala.1988); Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986)." In a telling footnote, however, the court expressed its reluctance and disapproval: "Since punitive damages are meant to pu......
  • 607 So.2d 1241 (Ala. 1992), 1910620, King v. National Spa and Pool Institute, Inc.
    • United States
    • Supreme Court of Alabama
    • September 4, 1992
    ...Act, Ala.Code 1975, § 6-5-410, and that Act remains the sole right of action for death under our law. Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986); Mattison v. Kirk, 497 So.2d 120 In examining the basis of Parker and its application of the Homicide Act in the context of the su......
  • Request a trial to view additional results
60 cases
  • 671 So.2d 1334 (Ala. 1995), 1930362, Smith v. Schulte
    • United States
    • Supreme Court of Alabama
    • August 18, 1995
    ...state in which" recovery for wrongful death has been judicially restricted to punitive damages. Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1262 (Ala.1986). The "punitive only" rule is an outgrowth of the strong public policy served by the right of this action in Alabama......
  • 469 S.E.2d 114 (W.Va. 1996), 22956, Burgess v. Porterfield
    • United States
    • West Virginia United States State Supreme Court of Appeals of West Virginia
    • March 11, 1996
    ...punitive award against the other tortfeasor. Tatum v. Schering Corp., 523 So.2d 1042 (Ala.1988); Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986)." In a telling footnote, however, the court expressed its reluctance and disapproval: "Since punitive damages are meant to pu......
  • 607 So.2d 1241 (Ala. 1992), 1910620, King v. National Spa and Pool Institute, Inc.
    • United States
    • Supreme Court of Alabama
    • September 4, 1992
    ...Act, Ala.Code 1975, § 6-5-410, and that Act remains the sole right of action for death under our law. Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986); Mattison v. Kirk, 497 So.2d 120 In examining the basis of Parker and its application of the Homicide Act in the context of the su......
  • Bednarski v. Johnson, 093021 ALSC, 1200183
    • United States
    • Supreme Court of Alabama
    • September 30, 2021
    ...damages awarded and the defendant's financial position in Boudreaux was flawed. [12] See Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala. 1986); Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d 812 (Ala. 1989); Burlington N. R.R. v. Whitt, 575 So.......
  • Request a trial to view additional results
1 books & journal articles
  • 72 The Alabama Lawyer 308 (2011). Settling the Claims of a Minor.
    • United States
    • Alabama Bar Lawyer Nbr. 2011, January 2011
    • January 1, 2011
    ...value of the infliction of punitive damages." Steele, 623 So. 2d at 1141. See also Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1262 (Ala. 1986) (only punitive damages are recoverable for wrongful death). The right of action is vested solely in the personal rep......

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