Gladney v. Clarksdale Beverage Co., Inc., 91-CA-0106
| Decision Date | 30 September 1993 |
| Docket Number | No. 91-CA-0106,91-CA-0106 |
| Citation | 625 So.2d 407 |
| Parties | Dixie S. GLADNEY, Administratrix of the Estate of Charles H. Gladney and Dixie S. Gladney, Individually and On Behalf of the Beneficiaries Under the Mississippi Wrongful Death Statute, Charlayne Lamb, Individually, Robert H. Gladney, Individually, and Estate of Charles David Sossaman, Deceased, v. CLARKSDALE BEVERAGE COMPANY, INC. |
| Court | Mississippi Supreme Court |
Briggs Smith, Smith Phillips Mitchell & Wilroy, Batesville, Dana J. Swan, Chapman Lewis & Swan, Clarksdale, for appellant.
Marc A. Biggers, Lonnie D. Bailey, Upshaw Williams Biggers Page & Kruger, Greenwood, for appellee.
EN BANC.
On November 14, 1988, Charles Gladney and David Sossaman were killed when the automobile in which they were driving collided with a beer truck owned by Clarksdale Beverage Company, Inc. The accident occurred around 8:00 a.m. at the intersection of Highway 6 and Curtis-Locke Station Road in Panola County, Mississippi, when the truck collided with the Gladney Cadillac as it apparently attempted to cross Highway 6. The facts and testimony both indicate that the area was blanketed by fog.
On January 5, 1989, the Gladney Estate and the individual beneficiaries filed a wrongful death action pursuant to Miss.Code Ann. Sec. 11-7-13 (1972 & Supp.1992), in the Circuit Court of the Second Judicial District of Panola County. The suit named Clarksdale Beverage Company, Inc., Davey Lee Farris, who was the driver of the Clarksdale truck, and the Estate of Charles David Sossaman as defendants. The Sossaman Estate, in its answer, counterclaimed against the Gladney Estate, contending that Sossaman was a passenger and also cross-claimed against Clarksdale Beverages.
A jury trial began in October, 1990, and after three days of testimony, a verdict was returned in favor of Clarksdale Beverages on the issues of negligent driving by excessive speed and failure to keep a proper lookout. Thereafter, both the Sossaman and Gladney Estates filed motions for J.N.O.V. or in the alternative for new trial. Each charged that the jury had been improperly influenced by extraneous prejudicial evidence and argued that on the basis of Rule 606(b) of the Mississippi Rules of Evidence, evidence of such misconduct was admissible, in the form of juror affidavits accompanying the motions for J.N.O.V. or new trial, at the hearing on these motions.
Clarksdale had previously moved to strike the sworn statements of the jurors. The circuit court granted this motion and entered an order denying the plaintiffs' motions for J.N.O.V., or in the alternative, a new trial.
The Gladneys and Sossamans now appeal to this Court.
I.
A.
The controversy in this case surrounds the trial court's refusal to allow the sworn affidavits of Juror Duane Turnage and Juror Harry Sartin, concerning alleged juror misconduct, to be admitted in support of the Gladney and Sossaman motion for new trial. Following the jury verdict and as the participants were leaving the courtroom, a juror approached an attorney for the Gladney Estate and informed him that one of the jurors had visited the accident scene and another had "run an experiment."
Mississippi Rules of Evidence Rule 606(b), which is modeled after Fed.R.Evid. 606(b), provides the key rule of law for the disposition of this issue. This rule provides that:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. (Emphasis added).
Duane Turnage, an alternate juror, gave the following testimony after trial in his sworn statement at the plaintiffs' law firm:
Q. And there was some discussion made, of course, during the case about the bushes being there?
A. Right. I made the comment myself that I've been out at that intersection, and those trees along there was obstructing the view coming to the highway.
Q. Would that have been an obstruction of the view coming from the direction that the Gladney vehicle was coming from?
A. It would have been for both vehicles.
Q. Okay.
A. It--
Q. Excuse me. Go ahead.
A. Now, you can see once you get to the stop sign, you know, but if you was just approaching the highway--well, either way you wouldn't be able to see if both vehicles were moving, if they was in a certain place.
Q. All right. Is this the information you gave to the jury?
A. Well, we just discussed it, you know, that I had been through that intersection, and there was trees along there.
Q. Did you try to relay it to any specific time, or was that just--
A. No. I just mentioned that I had been through that intersection and knew that those trees was an obstruction for the highway.
Q. And since you were an alternate, this would have been discussed before the jury went back to consider the verdict?
A. Right.
Andy Shackleford, a Mississippi State Highway Patrolman who responded to the accident scene at Highway 6 and Locke Station Road, testified that he measured the visibility at the scene using a highway patrol technique of counting the yellow highway lane separation markers as he drove towards the accident scene. His testimony on the visibility test was alleged to have been checked by one of the juror's visibility experiment on Highway 6.
According to Patrolman Shackleford, this method was taught to him in his law enforcement and accident reconstruction classes and takes into consideration the fact that each yellow lane marker is ten (10) feet long and is separated from its successor by another thirty (30) feet. Patrolman Shackleford testified that at the time of the accident on Highway 6, the fog limited his vision to the distance of three yellow lines or an estimated one-hundred (100) feet. While Shackleford opined that his estimation was reasonably accurate, on cross-examination, he agreed that counting stripes at sixty-five (65) miles per hour was not the best way to accurately estimate visibility.
Juror Turnage also testified that Juror Mann made several comments about the method by which Patrolman Shackleford measured visibility on the date of the accident and also about Mann's experiment to verify the visibility test. The testimony in Turnage's sworn statement is as follows:
Q. Okay. When Mr. Shackleford, Andy Shackleford, testified about seeing the lines on the highway was it the next day that Mr. Mann came back to the jury and made this statement?
A. It was either the next day or the same day. It may have been the same day when we was--No, it had to be the next day because we didn't leave there until--so it had to be the next day.
Q. And did he say that he, in essence, tried to find out if that could be done by doing it himself? Tell me again exactly how he said it as you remember it.
A. He said he tried counting the lines going 65 miles per hour, and he said he didn't see how you could determine how far you could see.
Q. And this would have been after Mr. Shackleford testified?
A. Right.
Q. And was this statement made to the jury in the jury room?
A. Yeah, we was in the jury room.
Q. Okay. And it was while you were there?
A. Right.
In addition to the sworn affidavit of Juror Turnage, a sworn affidavit of Juror Sartin was also taken by the plaintiffs' attorneys. Juror Sartin provided the following relevant testimony:
Q. If you would, tell us about any of the discussions--or, first, were there discussions about the facts of the case before the night that you really went back to deliberate there?
A. Yes, sir. I'm believing, if I can recall accurately enough, it was approximately Thursday night a gentleman made a statement that he tried counting the lines in the highway as he was coming to town, and he found it very difficult or impossible to base distance on that theory.
Q. Now, would this have been after the highway patrol officer, Andy Shackleford, testified; is that right?
A. Right.
Q. But was this before the jury went back to deliberate?
A. That was approximately a day before the jury went back to deliberate.
Q. Now, what was he talking about when he was saying counting lines in the road? How did that come up in the trial?
A. Lord knows how it came up ... and I don't know what his intentions were.
Q. Now, he was, that is, the person telling about doing that experiment or whatever, counting lines, he was one of the jurors; is that correct?
A. That is correct.
Q. And the people he was telling that to were other jurors; is that correct?
A. That is correct.
Sartin also commented about the statements which Juror Turnage made relating to the intersection where the accident occurred. Sartin testified:
Q. Did you hear any other discussions by other members of the jury, whether they were regular jurors or the alternate jurors, about view of the scene?
A. I remember one gentleman (Juror Turnage) that lived close to the scene saying he never knew anything had happened there and that he had gone through the intersection. He did not state the reason he went through the intersection or whether it was for his own curiosity or whether...
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