Church v. Massey

• Decision Date: 26 June 1997
• Docket Number: No. 94-CA-01144-SCT,94-CA-01144-SCT
• Citation: 697 So.2d 407
• Parties: 120 Ed. Law Rep. 604 Gary W. CHURCH v. William R. MASSEY and Brewer State Junior College.
• Court: Mississippi Supreme Court

Page 407

697 So.2d 407

120 Ed. Law Rep. 604

Gary W. CHURCH v. William R. MASSEY and Brewer State Junior College.

No. 94-CA-01144-SCT.

Supreme Court of Mississippi.

June 26, 1997.

Don O. Rogers, III, Wilbourn Rogers & Scarborough, Meridian, for appellant.

W. Bennett Carter, Eppes & Carter, Meridian, J.R. Shannon, Watts Shannon & Mitts, Meridian, for appellee.

Before DAN LEE, C.J., and BANKS and MILLS, JJ.

MILLS, Justice, for the Court:

On July 12, 1991, Gary Church filed a personal injury action against Brewer State Junior College and William R. Massey. The Lauderdale County Circuit Court dismissed Brewer State, an Alabama public educational

                institution, finding that Article 1, § 14 of the Constitution of the State of Alabama (1901) "prohibits the State of Alabama being made a defendant in a court of law or equity."   Following a two day trial, the jury returned a verdict for the defendant.  The plaintiff perfected appeal to this Court, assigning as error the following issues
                

LAW

1. Whether the trial court erred in dismissing Defendant Brewer State Junior College by invoking the general rule of comity and applying Alabama Law of Sovereign Immunity.

2. Whether the trial court erred in refusing to instruct the jury on Defendant Massey's duty to keep a proper lookout.

3. Whether the trial court improperly instructed the jury on comparative negligence.

4. Whether the trial court erred in granting Massey's requested Instruction D-3.

5. Whether the trial court erred in refusing to excuse Juror Lula McDonald and substitute an alternate juror.

FACTS

On March 24, 1990, Gary Church was riding his motorcycle west in the far right hand lane of 8th Street in Meridian, Mississippi. William Massey, an employee of Brewer State Junior College, was driving east in the school's van. At the location of the accident, 8th Street is a five lane undivided highway with a center turning lane. Massey entered the center lane, stopped for traffic to pass, and turned across the westbound lanes. Church struck Massey's vehicle behind the back door of Massey's 15 passenger van.

The testimony of Massey and Church conflicted as to the speed of Church's motorcycle. Massey asserted that the motorcycle was going at least 45 miles per hour while Church claimed to be going only 30-35 miles per hour. The posted speed limit on 8th Street is 35 miles per hour. Sammie Jimerson, Church's mailman, testified that he was following Church at the time of the accident and that Church was only traveling 30-35 miles per hour.

Church presented the testimony of a chiropractor showing a sharp decrease in the amount of mobility and use of his back. Massey refuted this evidence by showing that Church continued to ride motorcycles for long distances after the accident and failed to mention back pain in two subsequent doctor visits.

In addition, at trial Church complained twice about a juror sleeping during the plaintiff's case in chief.

LAW

1. Whether the trial court erred in dismissing Defendant Brewer State Junior College by invoking the general rule of comity and applying Alabama Law of Sovereign Immunity.

Applying Alabama law, the trial court dismissed Brewer State Junior College from all proceedings stating that "the claim made by plaintiff against this defendant is prohibited, and thus, the defendant, Brewer State Junior College is dismissed from this action." In granting Brewer's motion for dismissal, the trial court failed to enunciate specifically the reasons for dismissal other than recapitulating the status of Alabama sovereign immunity law. However, both the plaintiff and defendant argued the issue of comity before the trial court.

Mississippi, in Windham v. Blakeney, 354 So.2d 786, 788 (Miss.1978), adopted the following definition of comity:

The principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect.

Windham, 354 So.2d at 788 (quoting BLACK'S LAW DICTIONARY 267 (4th ed.1968)). However, as applied, this Court has generally considered the doctrine of comity in the enforcement and modification of foreign judgments rather than the application of substantive law. See Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss.1987)("the principle of comity is similar to full faith and credit except that it This case does not present a question dealing with the principle of comity. Instead we are faced with a classic choice of law problem. "Since Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 649 (Miss.1968) and Mitchell v. Craft, 211 So.2d 509 (Miss.1968), Mississippi has ascribed to the most significant relationship test embodied in the Restatement (Second) of Conflicts of Law." McDaniel v. Ritter, 556 So.2d 303, 310 (Miss.1989). ¹

is not governed by Federal statutes and that its application rests in the discretion of the trial judge"). See also, Kountouris v. Varvaris, 476 So.2d 599, 607 (Miss.1985); Cox v. Cox, 234 Miss. 885, 108 So.2d 422 (1959).

McDaniel adopts the Restatement language in determining choice of law. It provides:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and place of business of the parties,

(d) the place where the relationship, if any, between the parties is centered.

McDaniel, 556 So.2d at 310 (citing Restatement (Second) Conflicts of Laws § 145).

This court has stated that "the principles of Section 6 and 145 of the Restatement (Second) defy mechanical application--they are less "rules of law" than generally stated guideposts." McDaniel, 556 So.2d at 310. Choice of law, rather than looking at minimum contacts, looks to "where the contacts are maximized." Id.See also Savelle v. Savelle, 650 So.2d 476 (Miss.1995).

In accordance with the guidance of McDaniel, we analyze the relevant significant contacts upon which we base our decision. In favor of applying Mississippi law we find that the injured plaintiff was a Mississippi resident, the accident occurred in Mississippi, and all witnesses were located in Mississippi. In favor of applying Alabama law we find only that the defendant was a resident of Alabama.

Clearly, the most significant contacts are located in Mississippi. Therefore, the trial court erred in failing to apply Mississippi law to the question of the sovereign immunity of Brewer State Junior College. A foreign governmental entity enjoys no greater status under our tort law than any other similarly situated tort defendant. We find no compelling public policy considerations which would dictate that Brewer State Junior College should enjoy immunities above and beyond those provided to our citizens.

2. Whether the trial court erred in refusing to instruct the jury on Defendant Massey's duty to keep a proper lookout.

"With any granted jury instruction challenged on appeal, two questions are necessarily implicated: Does the instruction contain a correct statement of the law? and Is the instruction warranted by the evidence?" Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986).

This Court articulated the standard of review necessary when considering the grant or denial of jury instructions in Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986):

By analogy to our familiar test as to when any fact question may be taken from the jury, our rule is this: The refusal of a timely requested and correctly phrased jury instruction on a genuine issue of material fact is proper, only if the trial court--and this Court on appeal--can say Cf. Lee v. State, 469 So.2d 1225, 1230-31 (Miss.1985); Fairchild v. State, 459 So.2d 793, 801 (Miss.1984).

taking the evidence in the light most favorable to the party requesting the instruction, and considering all reasonable favorable inferences which may be drawn from the evidence in favor of the requesting party, that no hypothetical, reasonable jury could find the facts in accordance with the theory of the requested instruction.

In Turner v. Temple, 602 So.2d 817, 823 (Miss.1992), this Court stated the following guidelines:

To have an instruction granted, the proponent must show that (1) the instruction is supported by the evidence and that (2) the instruction is a correct statement of the law. Copeland v. City of Jackson, 548 So.2d 970, 973 (Miss.1989); Hill v. Dunaway, 487 So.2d 807 (Miss.1986); Lewis Grocer Co. v. Williamson, 436 So.2d 1378 (Miss.1983). However, if the other instructions granted adequately instruct the jury, a party may not complain of the refused instruction on appeal to this Court. Purina Mills, Inc. v. Moak, 575 So.2d 993, 996 (Miss.1990); Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989).

Turner, 602 So.2d at 823.

Church requested that the jury be instructed specifically on the "lookout" theory of negligence. Church's requested instruction was as follows:

The driver of a motor vehicle is charged by law with the duty of seeing what the evidence shows he plainly could have seen. If you find from a preponderance of the evidence that the motorcycle driven by Gary W. Church would have been visible to a reasonably careful driver in the position of William R. Massey at or immediately prior to beginning his turn across the west bound lane of 8th Street, then you must assume that William R. Massey did see Gary Church's motorcycle and on that basis determine whether or not his conduct was negligent.

The trial court refused this instruction stating that the "lookout" theory of negligence...