Deaton, Inc. v. Burroughs

• Decision Date: 07 September 1984
• Citation: 456 So.2d 771
• Parties: DEATON, INC. v. Jean BURROUGHS, the Widow of James Julian Burroughs, etc. 82-1113.
• Court: Alabama Supreme Court

Page 771

456 So.2d 771

DEATON, INC. v. Jean BURROUGHS, the Widow of James Julian Burroughs, etc.

82-1113.

Supreme Court of Alabama.

Sept. 7, 1984.

William G. Somerville, Jr. and Stephen A. Rowe of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

Neal C. Newell, D. Leon Ashford, and Francis H. Hare, Jr. of Hare, Wynn, Newell & Newton, Birmingham, for appellee.

ALMON, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff in a wrongful death action which arose out of a collision between two flatbed tractor-trailer trucks.

David Tate drove a tractor-trailer truck as an employee of Deaton, Inc. (Deaton). At approximately 1:00 a.m. on November 17, 1980, Tate left Birmingham, Alabama, driving a Deaton flatbed tractor-trailer truck northbound on Interstate Highway 59 en route to Knoxville, Tennessee. The Deaton truck was loaded with 40,000 pounds of steel beams, some of which extended more than two feet beyond the forty-foot trailer bed. No warning lights or flags were attached to the protruding steel, and the entire load was secured with only four chains, although the trailer was designed for six chains to be used.

The decedent, James Burroughs, was also travelling north on I-59. Burroughs was driving a tractor-trailer truck for Schuler Industries (Schuler) en route to Greensboro, North Carolina, and was accompanied by another Schuler truck driven by James Gerald Barnett.

By coincidence, the Deaton and Schuler trucks followed the same northern route, taking I-59 north to I-24, through Chattanooga, and then taking I-75 north. At the intersection of I-24 and I-75, approximately 16 miles south of the scene of the collision, the two Schuler trucks joined with two Luck's Food Company trucks driven by Jimmie Howard Brewer and Austin Walker.

During this trip, Tate made three stops. Tate first stopped in Gadsden to tighten the chains securing the steel beams that he was transporting. Approximately 17 miles from Cleveland, Tennessee, Tate stopped again to tighten several loose chains and discovered that a right rear tire was losing air. Although Tate resumed travel on I-75 north, he again pulled off onto the emergency lane of the highway to check his directory for the location of a truck stop in Cleveland where he intended to have the tire repaired.

Although it is unclear whether the collision between the Deaton truck and Burrough's truck happened while Tate was pulling back onto the highway after his third stop, it is undisputed that the collision occurred right over the crest of a hill on I-75 north in the immediate area of mile marker 20, which is just south of the Cleveland Exit 20. In the collision, the cab of Burrough's truck was entangled in the steel beams protruding from the Deaton trailer. Burroughs was impaled by these beams, and died as a result. It is also undisputed that the collision occurred before dawn in driving conditions particularly hazardous due to the mountainous terrain, bumpy roads, rain, and darkness.

The circumstances surrounding the collisions are, however, the subject of much controversy. Tate contends that during his third stop he pulled onto the shoulder of I-75 near the intersection of highways 11 and 64, checked his directory for the location of the truck stop, and then resumed travel northbound on I-75 at an approximate speed of between 40 and 55 miles per hour for a distance of six to eight miles before the collision occurred.

Tate testified that as he topped the hill at mile marker 20, he checked his mirrors and saw traffic on the hilltop behind him two miles away but did not see any vehicles in the valley between these hills. According to Tate, he was in the right lane with his right turn signal on, travelling at a speed of 40 to 55 miles per hour and was slowing down to take Exit 20 to the Cleveland truck stop when he felt a bump from the rear of his truck. Tate, however, travelled 400 to 700 feet down the highway before stopping his vehicle, then stopped partially in the emergency lane. Tate then saw steam coming from the rear of his trailer and discovered that the cab of Burrough's truck was entangled in the steel beams which protruded from the Deaton truck.

The driver of the other Schuler truck and the driver of one of the Luck's trucks contradicted Tate's account of the circumstances surrounding the collision. Both of these drivers, who were travelling directly in front of Burroughs, stated that they saw the Deaton truck near the top of a hill between mile markers nineteen and twenty. According to these drivers, the Deaton truck was either stopped or moving no more than 15 miles per hour, positioned partially in the right lane and partially in the emergency lane. One of the drivers testified that as he passed the Deaton truck, the steel beams were protruding six to eight feet from the rear of the Deaton trailer.

On October 29, 1981, Jean Burroughs, the widow of James Burroughs, filed a wrongful death action on behalf of herself and her three minor children in Jefferson Circuit Court against Deaton, Inc.; Deaton, Inc., Truckloading Division; David Tate; and several fictitious defendants. The complaint alleged that the defendants negligently or wantonly caused the death of her husband in a collision between his tractor-trailer truck and a truck operated by the defendants.

Tate also brought suit against Schuler Industries for his own personal injuries arising out of the collision, and his case was consolidated with the wrongful death action.

In addition to the complaint, the plaintiff also filed on October 29, 1981, certain interrogatories, requesting that the defendants disclose the identity of any persons whom they expected to call as expert witnesses at trial. Deaton never answered these interrogatories, despite a court order requiring such disclosure. ¹ The defendants did, however, answer the complaint, denying each material allegation and asserting the defense of contributory negligence as to the negligence count.

Before trial, both Deaton, Inc., Truckloading Division, and Tate were dismissed as parties defendant. Although the case could have been tried under Tennessee law, the parties tried it under Alabama law by consent. At the close of all the evidence, Deaton moved for a directed verdict on both the negligence and wanton conduct counts. This motion was denied, and the jury returned a verdict against Deaton in the amount of $835,000.00. Deaton's motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, was denied.

The following issues are presented for review: 1) whether the trial court erred in denying Deaton's motions for directed verdict and for judgment notwithstanding the verdict; 2) whether the trial court erred in denying Deaton's motion for new trial on the grounds that a) the verdict was against the weight and preponderance of the evidence and b) the verdict was excessive; and 3) whether the trial court erred in partially excluding the testimony of Deaton's expert at trial.

I. Motion for Directed Verdict

Deaton contends that there was insufficient evidence to justify submitting the wantonness count to the jury, and that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. ²

It is axiomatic that a motion for directed verdict and its corollary motion for judgment notwithstanding the verdict objectively test the sufficiency of the evidence:

"[U]nder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered, which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought."

Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979). See also Rule 50, A.R.Civ.P., and Casey v. Jones, 410 So.2d 5, 7 (Ala.1981).

A directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ. See Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981).

In Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), this Court defined the elements of wanton conduct:

" 'Wantonness' is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. .... Wantonness may arise [when one has] knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on disaster. .... Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. .... Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference."

288 Ala. at 251-52, 259 So.2d 801-02.

The question of wantonness must be determined by the facts and circumstances of each case. Cooper v. Watts, 280 Ala. 236, 191 So.2d 519 (1966).

We believe that sufficient evidence was presented to justify submission of this count to the jury. Although the evidence was in conflict, a jury could have found that immediately prior to impact the following circumstances existed: 1) that the chains securing the steel beams on the Deaton trailer were so loose that the beams had shifted backwards so that six to eight feet of steel protruded from the rear of the trailer; 2) that Tate knew of this dangerous condition but failed to use the two other chains, which the trailer was designed to accomodate, to secure the beams as required by § 393.100(c)(4...