Collins v. Dixie Transport, Inc.

• Decision Date: 05 April 1989
• Docket Number: No. 58420,58420
• Citation: 543 So.2d 160
• Parties: Curtis Lee COLLINS v. DIXIE TRANSPORT, INC. and Michael Weldon White.
• Court: Mississippi Supreme Court

Page 160

543 So.2d 160

Curtis Lee COLLINS v. DIXIE TRANSPORT, INC. and Michael Weldon White.

No. 58420.

Supreme Court of Mississippi.

April 5, 1989.

Rehearing Denied May 24, 1989.

Edward Blackmon, Jr., Canton, for appellant.

Dorrance Aultman, Patricia L. Trantham, Aultman, Tyner, McNeese & Ruffin, Hattiesburg, for appellee.

Before HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal arises from an order enforcing against the plaintiff an oral settlement agreement allegedly reached regarding an automobile accident personal injury claim. The outcome determinative issue is one of fact, whether plaintiff verbally authorized his attorney to accept a settlement offer. Crucial to the just determination of that issue is the credibility of the witnesses plaintiff presented at the hearing on defendant's motion to enforce settlement, a group that includes the plaintiff himself.

Here matters run aground as the trial judge assumed the role of a fact witness--on the critical credibility issue. When this situation arose, the trial judge had no alternative but to recuse himself from further participation in the case. Because he failed to do so, the order enforcing the settlement must be vacated and the case remanded for a new hearing.

II.

Curtis Lee Collins was born on June 12, 1925. He lives in Scooba, Mississippi, and has no more than a first grade education. On September 1, 1982, Collins was involved in an automobile accident near Scooba with a vehicle driven by Michael Weldon White, an employee of Dixie Transport, Inc. Collins employed John W. Capers, Esq., of Meridian, Mississippi, and Dixon Pyles, Esq., of Jackson, Mississippi, to prosecute his personal injury claim against Dixie Transport.

On April 9, 1984, Collins, acting through his above-named attorneys, commenced this civil action by filing his complaint in the Circuit Court of Forrest County, Mississippi. Alleging common law negligence and statutory violations, Collins demanded compensatory damages of $435,800.00 and punitive damages of $871,600.00. In their answer, Dixie and White denied the essential allegations of the complaint and pleaded affirmatively Collins' negligence.

On the morning of trial, Capers received from the attorneys for Dixie Transport and White a settlement offer of $125,000.00. Capers recommended to Collins that the offer be accepted. Capers, Collins and Collins' two sons, Chris and Timothy, conferred about the matter. Here the facts scatter in as many places as participants there are to tell them. Important today is the hotly disputed testimony that the trial judge was also in the conference room. Collins says the judge was present, the judge insists he was not, Chris Collins says he was, but Timothy Collins says the judge excused himself at the meeting's outset. Capers later described this meeting as a ten to fifteen minute conversation from which "I was authorized to accept by my client, Mr. Collins, the $125,000.00 settlement." No one else in the room now sees it that way.

Capers testified he left the room, approached defense counsel, Dorrance Aultman, Esq., in the hallway and said "The case is settled; we accept the $125,000.00." Aultman replied "Okay, good ... but it's gonna take me about four weeks to get this money." Capers proceeded to discharge his witnesses. Aultman told the judge and the judge dismissed the jury. Capers says at this point he walked back into the hallway to tell Collins it would take four weeks for the money. The younger son said "Well, we don't take it then" to which Collins himself nodded in agreement. Capers testified he did not know what to do at this point.

Collins and his two sons remember everything from the conference room on differently. Collins is the least articulate of the witnesses. While he was on direct examination, the following colloquy occurred:

Q. Do you recall meeting them in this room during that day after he made the initial statement to you that an offer of $125,000.00 had been made to settle your case?

A. Well, he was talking in this room--Mr. Pyles and Capers--and conversation come up, one of my boys said, "Both of y'all are fired." Mr. Pyles said, "I don't know you." He said, "Well, I know you."

BY THE COURT: Who told 'em that? Who are you saying told that to 'em?

A. Me and my boys, three boys--two boys sitting right over there.

BY THE COURT: Which one told them that?

A. Chris. And you said, "I am going to get out of here." I think it was you, somebody sitting over there said, "I'm gonna get out of here, I don't want to be in that conversation. I will see y'all when y'all get settled." And you went on out.

Q. Now after the Judge left--

BY THE COURT: Just a minute. We have arrived at another one of those points and [sic] time when I feel constrained to have to dictate something in this record. Again without putting the Court in a posture of testifying, I do not recall any such communication like that being said--

A. Mr. Pyles told you--said, you wait in here, you said, "No, I'm gettin' out of here, I'm goin' on out of here."

BY THE COURT: No, sir.

A. And that left me and my sons and him in here. You said, "Y'all can tell me what happened whenever you come out."

BY THE COURT: Well, we're just having to make a record here of everything and so the record will be replete of what everybody's memory was, I will tell you unequivocally on this record I have no recollection of that being said in my presence whatsoever.

BY HON. DIXON PYLES: Judge, I would like for the record, as a member of the bar to state as far as memory is concerned. That didn't happen with reference to me.

BY HON. EDWARD BLACKMON, JR.: Judge, for the record I don't know how--we're getting into some very, I guess, ticklish areas--

BY THE COURT: Very.

BY HON. EDWARD BLACKMON, JR.: Considering what the trier of the facts and the witness maybe [sic] saying. This is a very material part of my case into the record and I would like to continue for record purposes.

BY THE COURT: Sure, and I'm just gonna--and I hesitate to interrupt because I know it breaks continuity but I am not going to have something said on this record--inferences made on this record, particularly where it involves any involvement of the Court without at least, having an opportunity to dictate in this record what the Court's recollection of it was. I think we discussed this and for clarity in this record, it should be noted that we discussed all these things prior to beginning these proceedings this morning.

DIRECT EXAMINATION THEN RESUMED.

On cross-examination by the attorney for Dixie Transport, the following question was put to Collins:

Q. Who was present in this room when that conversation about settlement of the case for $125,000.00 took place?

A. My sons and that man sitting right there.

BY THE COURT: Let it be indicated in this record that he is pointing to me and once again let it be replete in this record, I was not, nor have I ever been present when any settlement negotiations of this case was being discussed whatsoever, nor would it be appropriate for me to do so.

Q. Mr. Collins, I know the Judge was outside.

BY HON. EDWARD BLACKMON, JR.: I would object to Mr. Aultman testifying.

BY THE COURT: Mr. Blackmon, once again he has indicated something that I was involved in and I stated my position in the record and Mr. Aultman is just stating in the record what he recalls. I just want it clear in the record that I was not a party to any plea bargain negotiations--settlement negotiations, excuse me.

Further in cross-examination, counsel for Dixie Transport asked Collins whether he or any member of his family had contacted the insurance company--the liability carrier for Dixie Transport--following the breakup of the putative settlement. In that setting, the following exchange took place:

Q. After we had the meeting in the courthouse, I assume it was settled because I was told that. Have you contacted or any member of your family--

A. I couldn't tell you.

Q. You just don't know? Who would know?

A. I wouldn't know. Only God.

BY THE COURT: Now, just a minute. Because previously you said you had here this morning. Which is true? When Mr. Aultman first asked you, you indicated that you had. You understand that you are under oath, don't you?

A. Yes.

BY THE COURT: So you told two different versions, which is it?

A. What do you mean?

BY THE COURT: Did you or someone at your instruction call directly to the insurance company?

A. I couldn't tell you who, I don't know.

BY THE COURT: You don't know if that were done?

A. I don't know that.

BY THE COURT: When he asked you if New York had been called and you answered that it had been I think we need to have it replete in this record about the lack of response from this witness. Each time this Court has asked him a question he has taken somewhere around thirty seconds to a minute to answer.

A. I can't understand what you are saying.

BY THE COURT: What I'm doing is very relevant to this hearing. My recollection is one time Mr. Aultman asked did either you or a member of your family at your instruction call to the insurance company and he indicated that he had. Was your answer some three or four questions later you gave another answer. Which one is it?

A. Well, I don't even know what he's talking about.

MR. AULTMAN CONTINUES:

Q. Mr. Collins, how would a member of your family know to call my client if you didn't know anything about the case being settled for $125,000.00? (No response)

BY HON. DORRANCE AULTMAN: Judge, again we would show for the record the long lapse.

BY HON. EDWARD BLACKMON, JR.: I would--I don't think anything has been shown about the long lapses.

BY THE COURT: Yes, counselor, it seems mighty strange to me that this witness can answer readily questions apparently to his side and I think very pertinent questions by this Court going to the credibility of his testimony, it takes like a minute to two minutes longer and that's why...