Morrison v. Frito-Lay, Inc.

• Decision Date: 31 January 1977
• Docket Number: INC,No. 75-1941,FRITO-LA,75-1941
• Citation: 546 F.2d 154
• Parties: David L. MORRISON et al., Plaintiffs-Appellees Cross-Appellants, v., and Marilyn L. Taggart, Defendants-Appellants Cross- Appellees. Margaret E. Tepper JOHNSON, Plaintiff-Appellee, v. Roseland M. BOSTWICK, Defendant-Appellant Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 154

546 F.2d 154

David L. MORRISON et al., Plaintiffs-Appellees Cross-Appellants, v. FRITO-LAY, INC., and Marilyn L. Taggart,

Defendants-Appellants Cross- Appellees.

Margaret E. Tepper JOHNSON, Plaintiff-Appellee, v. Roseland M. BOSTWICK, Defendant-Appellant Appellee.

No. 75-1941.

United States Court of Appeals,

Fifth Circuit.

Jan. 31, 1977.

Rehearing and Rehearing En Banc Denied March 16, 1977.

John W. Crowell, Hunter M. Gholson, Columbus, Miss., W. Scott Welch, III, Roger C. Landrum, Richard L. Forman, Jackson, Miss., for Frito-Lay, Inc., et al.

Gary L. Geeslin, J. Tyson Graham, Columbus, Miss., for R. M. Bostwick.

Michael D. Jonas, Ralph E. Pogue, Aberdeen, Miss., Gary B. Blasingame, Nickolas P. Chilivis, Athens, Ga., for David L. Morrison, et al.

Thomas J. Tubb, West Point, Miss., Shields Sims, Darrell Reeves, Columbus, Miss., for M. E. Johnson.

Appeals from the United States District Court for the Northern District of Mississippi.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

RIVES, Circuit Judge:

On the evening of January 18, 1971, at approximately 6:30 p. m., a van-type truck, owned by defendant Frito-Lay, Inc., and being driven by defendant M. L. Taggart, became disabled as it proceeded southward on the two-lane Mississippi Highway 373 near Columbus, Mississippi. After coasting in neutral for two or three minutes, Taggart brought the truck to a stop at the side of the road leaving "at least" two feet of the van's body protruding onto the paved portion of the highway. (App. 121, 585.) Taggart turned off the truck's headlights, engaged the emergency flasher, and remained inside the van attempting to locate the cause of the engine's failure. (App. 586.) Within a few minutes after the truck had come to a stop, an Opel automobile being driven southward by the defendant Roseland Bostwick collided with the rear end of the Frito-Lay van. (App. 163.) The impact knocked the van completely off the paved road and Taggart was forced to the rear of the van. (App. 86, 90.) Taggart therefore did not actually see the Bostwick car strike his van. Mrs. Bostwick was rendered unconscious by the impact and had no recollection of the subsequent events. (App. 172-73.) The exact location of the Bostwick Opel immediately after this collision is unknown, but it eventually came to rest facing south in the center of the highway. (App. 432-33.)

Within minutes of the Taggart-Bostwick collision another collision occurred nearby. ¹ A Chevrolet being driven by Dwight C. Laughlin, moving southward down Highway 373, collided with a Pontiac being driven by Max Tepper which was proceeding in Wrongful death actions ³ were brought by the family of David Morrison, deceased, and by the widow of Max Tepper and were consolidated for trial. The first crucial issue was whether there existed a causal relationship between the Taggart-Bostwick collision and the fatal Tepper-Laughlin collision. The Morrison plaintiffs' theory was that Tepper either struck the Bostwick Opel or swerved suddenly to avoid it, and that this alleged Tepper-Bostwick collision or near miss caused the fatal Tepper-Laughlin accident.

the opposite direction. Tepper and a passenger in his car were killed instantly. There were four occupants of the Laughlin car, two of whom survived. However, neither of the survivors was paying attention to the road at the time of the accident; consequently neither could shed light on how the accident occurred. Laughlin was killed instantly and the remaining passenger, David Morrison, died three hours later. ²

Evidence introduced at trial was derived from two independent investigations of the fatal collision. One of these was conducted by Mississippi Highway Patrolman Grady Prevost, who arrived shortly after the accident. He found that the Laughlin Chevrolet and the Tepper Pontiac were on opposite sides of the road with a gouge mark between them. (App. 427.) Patrolman Prevost estimated that this gouge mark was approximately 75 feet north of the spot where the Bostwick Opel had come to rest. (App. 427.) He found the Laughlin automobile facing northeastward, completely blocking the southbound lane of the highway, and the Tepper Pontiac pointing northeastward with the rear end of the car partially obstructing the northbound lane of the highway. (App. 408-09, 414, 422.) To the south of the Tepper and Laughlin vehicles, Prevost found the Bostwick Opel facing southward and straddling the centerline of the highway and the Frito-Lay van completely off the highway to the west. (App. 415, 432-33.) Prevost located a set of skid marks which began in the northbound lane near the east edge of the pavement and close to the rear of the Bostwick Opel and continued for some 75 feet gradually coming nearer the centerline, terminating at the gouge mark in the northbound lane. ⁴

A second and independent investigation was conducted by Air Force Safety Technician Hawkins, ⁵ who arrived on the scene approximately thirty minutes after the accident. His findings differ in several respects from those of Prevost. Most importantly, Hawkins testified that the skid The district judge submitted the issues to the jury in the form of a special verdict with interrogatories as provided by Rule 49(a), F.R.Civ.P. The jury found that Taggart was negligent in failing to move the truck completely from the paved portion of the highway and that his negligence proximately caused the Tepper-Laughlin collision which resulted in the deaths of Tepper and David Morrison. As to Mrs. Bostwick, the jury found that she was negligent in operating her automobile at a rate of speed in excess of that which was reasonable and proper under the circumstances, in failing to keep a reasonable and proper lookout for other vehicles, and in failing to have her automobile under reasonable control. Her negligence was also found to be a proximate cause of the Tepper-Laughlin collision.

marks in question ran northward terminating at the Bostwick Opel, rather than commencing at that point. (App. 179-80.) Hawkins further stated that at the northern end the skid marks swerved off the highway to the east but that he found tire tracks which indicated that the car returned to the highway headed toward the "crash site." (App. 205-06, 226-27.) Hawkins found that the "crash site" was approximately 130 feet from the end of the skid marks. (App. 179.) Hawkins also located gouge marks in the pavement at the "crash site," however, unlike Highway Patrolman Prevost, Hawkins placed these marks in the southbound lane of the highway. (App. 221-22.)

The jury returned a verdict of one hundred twenty-five thousand dollars ($125,000) for the Estate of Max Tepper against the defendants Frito-Lay, Taggart and Bostwick. A verdict of three hundred twenty-five thousand dollars ($325,000) was returned in favor of the Morrisons against the defendants Frito-Lay, Taggart and Bostwick. The trial court granted a judgment n. o. v. reducing this latter sum by twenty-five thousand dollars ($25,000), which was the amount the jury had awarded the Morrisons for the pain and suffering of David Morrison. ⁶

On appeal the defendant-appellants Taggart, Frito-Lay and Bostwick urge that the trial court erred: (1) in failing to declare a new trial upon receipt of inconsistent answers to the special verdict interrogatories submitted to the jury pursuant to the provisions of Rule 49(a), F.R.Civ.P.; (2) by submitting to the jury an additional interrogatory after having received inconsistent answers to the interrogatories propounded to the jury; and (3) in failing to sustain their motions for directed verdict and for judgment n. o. v. by reason of the failure on the part of the plaintiffs to introduce substantial evidence that negligence by said defendants was a proximate or contributing cause of the death of either David Morrison or Max Tepper. The Morrisons on cross-appeal argue that the trial court was in error in sustaining defendant-appellants' motion for a judgment n. o. v. as to the jury's award of $25,000 to the Morrisons for the pain and suffering of David Morrison.

Rule 49(a), F.R.Civ.P.

This case was submitted to the jury on twenty-two written interrogatories, pursuant to Rule 49(a), F.R.Civ.P. ⁷ The answers made to these interrogatories created an ambiguity or uncertainty as to the jury's resolution of the question of whether Max Tepper was guilty of any negligence which proximately caused or contributed to the fatal collision. The ambiguity arises out of the following interrogatories and answers:

(R. Vol. II, pp. 377-381.)

The basis of the ambiguity lies in the jury's response to Interrogatory 10(c) when read in conjunction with the other above-quoted interrogatories and answers. The answers to Interrogatories 10(a), 10(b), 12 and 14 indicate that the jury did not intend to find Tepper guilty of negligence. In fact, in response to Interrogatory 14 the jury found that Tepper was guilty of no negligence which proximately contributed to the collision of the Tepper and Laughlin automobiles. However, in response to Interrogatory 10(c) the jury found that "the collision of the automobiles" was proximately caused by Tepper's failure to "keep and maintain reasonable control of his automobile." The apparent inconsistency of these answers was compounded by uncertainty as to which collision was the subject of Interrogatory 10. That interrogatory was to be answered only if the jury found that the Tepper automobile collided with the Bostwick automobile. It seems likely that the judge intended the phrase "the collision of the automobiles" to refer to the Bostwick-Tepper collision. However, it is not entirely clear to which collision the jury believed the interrogatory referred, particularly in light of the jury's resolution of Interrogatory No. 14. If the jury believed the Bostwick-Tepper collision was caused at least in part by the negligence of Tepper, then its answer to Interrogatory 14 was clearly inconsistent with its answer...