Dooley v. Byrd

• Decision Date: 16 June 2011
• Docket Number: No. 2009–CA–01830–SCT.,2009–CA–01830–SCT.
• Citation: 64 So.3d 951
• Parties: Leah Fulton DOOLEY; Kathryn Marie Fulton, a Minor, by and through her Mother and Next Friend, Leah Fulton Dooley; Peyton Dooley, a Minor, by and through his Mother and Next Friend, Leah Fulton Dooley; and All Heirs–at–Law of Jonathan Wayne Dooley, a Minor, Deceased; Dewey Dooley; and Kaitlyn Dooley, by and through her Mother and Next Friend, Keri Patrickv.Cedric BYRD and Independent Roofing Systems, Inc.
• Court: Mississippi Supreme Court

64 So.3d 951

Leah Fulton DOOLEY; Kathryn Marie Fulton, a Minor, by and through her Mother and Next Friend, Leah Fulton Dooley; Peyton Dooley, a Minor, by and through his Mother and Next Friend, Leah Fulton Dooley; and All Heirs–at–Law of Jonathan Wayne Dooley, a Minor, Deceased; Dewey Dooley; and Kaitlyn Dooley, by and through her Mother and Next Friend, Keri Patrick

v.Cedric BYRD and Independent Roofing Systems, Inc.

No. 2009–CA–01830–SCT.

Supreme Court of Mississippi.

June 16, 2011.

William W. Fulgham, Don H. Evans, James W. Smith, Jr., Erin S. Rodgers, Jackson, attorneys for appellants.James D. Holland, Jackson, Andrew J. Stubbs, George Martin Street, Jr., attorneys for appellees.Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.WALLER, Chief Justice, for the Court:

¶ 1. This case involves a wrongful-death action against Independent Roofing Systems, Inc., and Cedric Byrd for Jonathan Dooley's death. Byrd, an Independent Roofing employee, attempted to drive his truck and trailer into the driveway of a house located on Highway 468 in Rankin County, Mississippi. Byrd misjudged the turn. As a result, he left part of his trailer on the road for a short period of time. The Chevy Malibu in which Jonathan traveled with his mother collided with the trailer. Jonathan died instantly.

¶ 2. Leah Dooley, Jonathan's mother, filed this wrongful-death action against Byrd and Independent Roofing on behalf of Jonathan's wrongful-death heirs. The jury returned a unanimous defense verdict. The trial court denied the heirs' post-trial motions, and they appealed. Because the trial court denied two heirs the right to participate fully in the trial and improperly instructed the jury, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. Cedric Byrd worked for Independent Roofing under Ike McLain's supervision. During the early afternoon of September 29, 2003, McLain directed Byrd to pick up a piece of equipment from the home of Robert Smith, another Independent Roofing employee. Byrd left Independent Roofing's office in a flat-bed truck, pulling a twenty-nine-foot trailer, eventually traveling southwest on Highway 468 toward Smith's home. Not long after Byrd passed, Leah Dooley strapped two-year-old Jonathan into his car seat and began her trip, also southwest on Highway 468. En route, Jonathan climbed out of his car seat and into the front passenger seat. Around 2:35 p.m., as Byrd was attempting to turn into Smith's driveway, the passenger side of Leah's car collided with the left rear corner of his trailer, which was protruding approximately 5.5 feet into the southbound lane. Jonathan died instantly. Leah was not injured.

¶ 4. Leah hired Attorney Don H. Evans to file a wrongful-death suit on behalf of Jonathan's heirs against Byrd and Independent Roofing. Jonathan left five wrongful-death heirs: Leah (mother), Dewey (father), Kaitlyn (half-sister), Kathryn (half-sister), and Peyton (brother). Eventually, Attorney William W. Fulgham filed a Motion for Joinder and Separate Representation on behalf of Dewey and Kaitlyn. The court granted the motion. Afterward, Evans and co-counsel James W. Smith Jr. represented Leah, Kathryn, and Peyton (collectively “Leah”). Fulgham and co-counsel Erin S. Rogers represented Dewey and Kaitlyn (collectively “Dewey”).

Leah's version of the accident

¶ 5. The plaintiffs had alternative two theories of liability: (1) that Byrd had backed into Leah's car, or (2) that Byrd had left his trailer in the road without warning the southbound traffic.

¶ 6. Leah testified that, on the day of the accident, she had placed Jonathan's car seat on the left rear seat of her car, immediately behind the driver. Before leaving from her home, she had secured Jonathan in his car seat and had driven southwest on Highway 468 in Rankin County.

¶ 7. Leah estimated that she had been traveling from forty-five to fifty-five miles per hour, as she approached the scene. Her expert determined that her speed had been fifty-five miles per hour just before the accident. ¹ Halfway to the accident scene, Jonathan climbed out of his car seat and into the front passenger's seat. Leah never reduced her speed.

¶ 8. Leah described the part of Highway 468 leading to the scene as a “straight shot,” with a clear view for about one mile. She explained that the truck and trailer had not been in the road as she had approached the scene. Leah had noticed Byrd's trailer on the side of the road, but because of the shade along the highway, she could not see the trailer clearly. As she continued south, the trailer suddenly backed into the road, hooked into her car, and spun it into a ditch. According to Leah, the accident happened so quickly that she did not swerve or apply her brakes. She did not recall speaking with Byrd after the accident.

¶ 9. McLain, the Independent Roofing employee who supervised both Byrd and Keys, also testified for the plaintiffs.² After learning of the wreck, McLain traveled to the scene. When he arrived, McLain saw grass and gravel spent around the truck's front-pull axle, which indicated to him that the truck had been backing up. McLain pointed out the spent gravel to Independent Roofing safety director Russell Ramsey and offered his opinion of its significance. But, allegedly, Ramsey dismissed McLain's concerns. Ultimately, McLain found it “obvious” that the truck had been backing up, but said that “everyone” had wanted to “cover it up.”

¶ 10. The plaintiffs called Rankin County Sheriff's Department Deputy Don Bryant and Sergeant Dan Warren as witnesses. Officer Bryant had driven upon the scene right after the accident. Deputy Bryant testified that the rear tires of Byrd's truck looked like they had been spinning. Deputy Bryant believed that Byrd had attempted to back his truck up the incline in the driveway, but that the truck had gotten stuck.

¶ 11. Sergeant Warren testified that when he arrived at the scene, he could see the truck clearly. But because of the shadows, he could not see the trailer very well. Based on photographs from the accident scene, Sergeant Warren testified that the tires from Byrd's truck had been spinning from Byrd's attempts to back up or pull forward.

Byrd's version of the accident

¶ 12. The defendants contended that Leah had rear-ended Byrd while he was completing his turn.

¶ 13. According to Byrd, he had followed fellow employee Patrick Keys to Smith's home to pick up a piece of equipment. In turning into a driveway leading to Smith's home, Byrd did not turn widely enough to the left to complete the right turn. As he attempted the turn, he went partially off the left side of the driveway; consequently, his left front wheel went into a ditch. Byrd stalled in this position, which left the left rear part of his trailer protruding in the road approximately five and a half feet. According to Byrd, he tried unsuccessfully to drive the truck and trailer in reverse to avoid hitting Smith's mailbox.

¶ 14. Byrd explained that Keys already had parked and had walked toward Byrd's stalled truck and trailer. Byrd testified that he asked Keys to check Smith's mailbox to make sure that he would not hit it as he made the turn. According to Byrd, Keys walked toward the road, and in the process of checking the mailbox, he directed three cars to pass Byrd. Byrd testified that Keys returned to the front of Byrd's truck and was guiding him into the driveway to ensure that he did not hit the mailbox. The accident happened about thirty seconds after Byrd began moving forward. Byrd testified that, after the accident, Leah approached him and said that she had not seen the trailer because she had been picking up Jonathan from the passenger's side floorboard.

¶ 15. Keys provided a similar description of the events. According to Keys, Byrd had no reason to back up, and he did not recall whether Byrd attempted to back up. Keys did recall that two to three cars had passed before the accident, but he denied that he had directed the cars to pass around the trailer. According to Keys, he had watched the cars pass when he had walked to the truck's rear-passenger-side tires to check the mailbox. He denied that he had walked behind Byrd's trailer.

¶ 16. The jury unanimously found that Byrd and Independent Roofing were not liable. The trial court denied Leah's and Dewey's alternative motions for a judgment notwithstanding the verdict (JNOV) or a new trial, and they appealed.

ISSUES

¶ 17. Leah and Dewey assert the following issues, which we rephrase for clarity:

I. Whether the lower court abused its discretion by granting Dewey's joinder motion and in handling Dewey's request for separate representation.

II. Whether the lower court erred in refusing proposed jury instructions P–21, P–36, P–40, P–44A, and P–44B and in granting jury instruction numbers 7, 10, and 11.

III. Whether the verdict was against the overwhelming weight of the evidence.

IV. Whether the lower court erred in failing to grant Leah's and Dewey's Motions for Judgment Notwithstanding the Verdict.

We limit our review to the first two issues. See M.R.A.P. 17.

DISCUSSION

I. Motion for Joinder and Separate RepresentationA. Joinder

¶ 18. Leah contends that the trial court erred in granting Dewey's motion for joinder. Evans, who represented Leah (mother), Kathryn (half-sister), and Peyton (brother) (collectively “Leah”), filed this suit on behalf of all of Jonathan's wrongful-death heirs. Approximately one and a half years later, Fulgham filed a Motion for Joinder and Separate Representation on behalf of Dewey (father) and Kaitlyn (half-sister) (collectively “Dewey”), citing Long v. McKinney, 897 So.2d 160 (Miss.2004), as authority. In response, Leah urged the trial court to deny Dewey's request and argued the following points, which we rephrase:

• Dewey had repeatedly blamed Leah for the accident.

• Dewey's current wife, “the same person [whom] he left and abandoned Leah ... and their children for,” attempted to have Leah indicted.

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