Belesky v. City of Biloxi

• Decision Date: 23 December 1981
• Docket Number: No. 52964,52964
• Citation: 412 So.2d 230
• Court: Mississippi Supreme Court
• Parties: Ted A. BELESKY & Jean Belesky v. CITY OF BILOXI, Mississippi and Sullivan, Long & Hagerty, An AlabamaCorporation.

Page 230

412 So.2d 230

Ted A. BELESKY & Jean Belesky v. CITY OF BILOXI, Mississippi and Sullivan, Long & Hagerty, An AlabamaCorporation.

No. 52964.

Supreme Court of Mississippi.

Dec. 23, 1981.

Rehearing Denied April 21, 1982.

Hopkins & Logan, Floyd J. Logan, Gulfport, for appellant.

Dukes, Carrubba & Dukes, William F. Dukes, Walter W. Dukes, Gulfport, Page, Mannino & Peresich, Paul J. Delcambre, Jr., Biloxi, for appellee.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

PATTERSON, Chief Justice, for the Court:

Mr. & Mrs. Ted A. Belesky brought suit against the City of Biloxi and Sullivan, Long & Hagerty, hereinafter S. L. H., in the Circuit Court of the Second Judicial District of Harrison County for damages to their residence allegedly caused by construction of a sewer line adjacent to their house and defective maintenance of a 30 inch storm drain.

From a jury verdict for the defendants, the Beleskys appeal, contending the trial court erred:

1. In refusing to excuse from the jury the seven employees of the City of Biloxi for cause;

2. In refusing to allow the Beleskys to cross-examine defendants' expert witness, Harry Simpkins, concerning a prior inconsistent statement in his written report as to the cause of the subsidence;

3. In allowing the defendants' expert witnesses to state an opinion as to the cause of the subsidence based upon reports prepared by independent third parties;

4. In allowing the witness Laier to express an expert opinion when he admitted the lack of data made his opinion speculative;

5. In refusing to allow the Beleskys to introduce the deposition of A. L. Turner for impeachment purposes; and

6. In overruling the Beleskys' motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

The Belesky residence was built by Metro Homes in 1966 or 1967. A. L. Turner, associated with Metro at that time, testified that he sold the house two or three years after its completion to Dr. Ferguson, owner before the Beleskys, at a 25% discount because of settlement and cracking of the bricks and floor.

The house was built directly upon the original soil. Turner testified that the common economic practice at the time was to lay the slab on the lot rather than use fill dirt underneath it. The cracking and settling of the property caused by subsidence began about a year after completion and was thought to have stabilized some six or eight months before the Beleskys purchased it in 1972. At that time Ted Belesky noticed slight cracking, but after the sewer construction project in May or June 1974 the cracks widened. He notified S. L. H. of the condition. He also testified the southern half of his lot was continually soggy with water during the sewer construction work. Belesky dated the damage as occurring in May 1974. Since the year 1974, Belesky did not notice any further cracking or subsidence.

The parties stipulated the City of Biloxi did sewer construction work in the area adjacent to the Belesky house, through S. L. H. who contracted with the city for the project. The parties further stipulated that Biloxi has been responsible for the maintenance and repair of a drainage culvert running east and west under Big Lake Road to Oak Ridge Circle from 1965 to the present. The Belesky home is situated approximately 18 feet north of the drainage culvert and approximately 87 feet west of the ditch for the sewer pipe that was excavated on the east side of Big Lake Road which ran generally north and south. Pursuant to the contract with Biloxi, S. L. H. excavated the ditch and collected the water that drained into it from "well-points" which were dug at intervals along the ditch line. The water thus collected was pumped onto the surface of Big Lake Road and drained toward the 30 foot storm drain located south of the Belesky residence. There was testimony that during the construction of the sewer line water accumulated and pooled in the street in front of the appellants' residence and in their yard. Evidence was also introduced that water from the sewer ditch did not accumulate in the appellants' yard. There was also testimony that the storm drain for the city, a part of the east-west drainage system, had been broken and filled with sand. It was also stipulated that test boring data, sieve analysis data, the site plan depicting the adjacent streets and drainage easements might be introduced into evidence.

The evidence leaves no doubt that the house has settled considerably since its construction. The present issue is limited to whether the construction of the sewer line and the maintenance of the east-west drainage culvert caused further subsidence.

Several experts offered their opinion about the cause of the subsidence. Witness Fairley testified the settlement was caused by the highly changeable organic strata beneath the house. Witness Polatty testified the subsidence was caused by the rapid draw-down of water from the pumping and dewatering operation as well as the movement of fine sands beneath the slab caused by the pumping process. Witness Simpkins testified the cause of subsidence was poor soil and improper preparation for construction of the house and that the sewer line did not in any way contribute to the settlement. Witness Laier also testified the installation of the sewer line did not cause the subsidence. However, this last opinion contradicts a previous letter in which he had stated the sewer construction project caused a part of the settling process. The evidence presented was therefore conflicting and as such presented an issue to be resolved by the jury.

The Beleskys first contend for reversal that several prospective jurors should have been excused for cause when they were challenged because either they or their spouses were employees of the City of Biloxi. Those challenged for cause included three jurors who were later removed by peremptory challenges. After the peremptory challenges were exhausted there remained four employees of the city who were impaneled and participated in the trial as well as a fifth who was selected as an alternate juror, but did not participate in reaching the verdict. We first consider the prospective jurors who were unsuccessfully challenged for cause but who became subject to the peremptory challenges. In Hubbard v. Rutledge, 57 Miss. 7 (1879), it is stated:

The juror, Berry, was not above all exception as a juror, and should have been rejected by the court. He was in the service of the defendant as a clerk and that made him incompetent. It is true he was peremptorily challenged by the plaintiffs, but this required one of their peremptory challenges, which were exhausted, as the record shows, before the panel was completed. Id. at 12.

The resolution of the issue as to these three jurors will also dispose of the issue as to the four jurors who actually participated in the trial because they are similarly situated in their relationship to the city.

In Jackson v. Board of Mayor and Aldermen of Town of Port Gibson, 146 Miss. 696, 111 So. 828 (1927), a civil suit against "the Board of Mayor and Aldermen" of the Town of Port Gibson, a judgment was entered for the plaintiff in the sum of $500 for damages in a death case. In that case, E. P. Guthrie, the son of an alderman was called and permitted to serve on the jury after the plaintiff had exhausted his peremptory challenges. The issue as to whether Guthrie should have been permitted to sit as a juror was resolved by this court on appeal. We held the municipality was the real party to the lawsuit and that the son of the alderman was not disqualified as a juror because his alderman father was not a party. It need be noted the challenge was one of kinship and not one of employment. However, the court went on to say, in dictum, that the alderman would not be competent to serve as a juror, where the municipality was a party to the suit, because he was an employee of the municipality. We are of the opinion that Jackson is not in point.

We think the right of the prospective jurors to be impaneled must be decided upon their employment relationship with the City of Biloxi and the likelihood of influence the employment would have upon the verdict. There can be little doubt had there existed a direct master-servant relationship, as in a corporation, then the prospective jurors would be disqualified for cause. See Hubbard v. Rutledge, 57 Miss. 7 (1879), and Louisville, N. O. & T. Railroad Company v. Mask, 64 Miss. 738, 2 So. 360 (1887). The rationale of these cases is "the law does not lead jurors into the temptations of a position where they may secure advantage to themselves by doing wrong, nor permit the possibility of the wavering balance being shaken by self-interest." Louisville, N. O. & T. Railroad Co. v. Mask, 64 Miss. at 744, 2 So. at 361.

Those challenged for cause and excused by peremptory challenges were Edward Galle, an auxiliary policeman of the City who served without pay; Patrick J. Smith, an employee of Biloxi Port Commission; and Rebecca Fields, whose husband was a lieutenant with the Biloxi Police Department.

It is contended that the "full paid" employees of the police department are protected by the civil service status as to their employment. It is also urged by the defendants that the jurors who are engaged in the teaching profession in the Biloxi Municipal Schools are also protected in their employment by statutory provisions and the CETA employee was paid with federal funds. From this the argument is advanced that prospective jurors in the categories mentioned, as well as their spouses, have status differing from the ordinary employer-employee relationship, and therefore the probability of influence from their remote employer, the City of Biloxi, is greatly diluted if not obviated, even though their remuneration is from the city.

There being no charge of fraud and no allegation of bias or prejudice other than that mentioned, we are of the opinion the...