Flight Line, Inc. v. Tanksley

• Decision Date: 29 July 1992
• Docket Number: No. 89-CA-0307,89-CA-0307
• Citation: 608 So.2d 1149
• Parties: FLIGHT LINE, INC. v. Howard TANKSLEY and the Estate of Ann Tanksley, By and Through its Administrator, Howard Tanksley and National Union Fire Insurance Company.
• Court: Mississippi Supreme Court

Page 1149

608 So.2d 1149

FLIGHT LINE, INC. v. Howard TANKSLEY and the Estate of Ann Tanksley, By and Through its Administrator, Howard Tanksley and National Union Fire Insurance Company.

No. 89-CA-0307.

Supreme Court of Mississippi.

July 29, 1992.

Rehearing Dismissed Dec. 3, 1992.

Michael S. Allred, Stephen M. Maloney, Allred & Donaldson, Jackson, for appellant.

Paul Kelly Loyacono, Vicksburg, James F. Mixson, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellees.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appeal and cross-appeal arise from a less than commonplace occurrence. A Vicksburg-based towing company chartered the aircraft of a commuter service to fly men and equipment to Chicago. During unloading, the craft suddenly sat down on its tail, shifting a heavy pump back onto Plaintiff, who was injured and sued the charter service in tort.

Thrice the Circuit Court has convened to try the case. Six days into the first such, the Court declared a mistrial. A two-week second trial saw a verdict for Plaintiff, but the Court ordered a substantial additur the Defendant refused. On the third trial on damages only, the jury returned a much larger verdict, and Defendant appeals.

The action has been hotly contested throughout. The issues by their nature, factual and otherwise, resist mightily our knowing the whole truth. We seek justice in the fairness of the process, accepting pragmatically its powers be limited.

II.

A.

Magnolia Marine Transportation Company is a Mississippi corporation operating out of Vicksburg. Magnolia Marine is in the river transportation business and is engaged primarily in moving cargoes of asphalt on the inland waterways system, principally the Mississippi River.

In October of 1984, Howard Tanksley, then thirty-five years of age, was employed by Magnolia Marine as a senior tankerman. Tanksley was the Plaintiff below and is Appellee/Cross-Appellant here. The tankerman's task is largely a manual labor job, requiring from time to time considerable physical strength. He is particularly responsible at the time of receiving and discharging cargo. Prior to October 8, 1984, Tankerman Tanksley was earning approximately $32,000.00 a year, plus fringe benefits. Magnolia Marine personnel say, had Tanksley not been injured, he likely would have been a career employee.

On October 8, 1984, Magnolia Marine's Vicksburg office received word two of its barges had become disabled in the Chicago area. Magnolia Marine determined to fly the needed personnel and equipment to Chicago and do the repair work itself. Flight Line, Inc., is a Mississippi corporation operating a commuter passenger and cargo air service out of the Jackson Municipal Airport in Rankin County, Mississippi. Flight Line was the Defendant below and is Appellant/Cross-Appellee here. Magnolia Marine's port captain, Gene Neal, called Flight Line to charter an airplane to transport two workers, their luggage, and the necessary equipment and tools from Vicksburg to Chicago. Capt. Neal requested an airplane adequate for a 1500 pound load. Flight Line, acting through its dispatcher, Cougar Easley, accepted the engagement and provided the aircraft, a Cessna 402B, and its pilot, Robert Avery. On land the craft rests and runs on three wheels, one under each armpit and a third under the nose, but no tail struts, a point whose import will presently appear.

Avery flew the aircraft to Vicksburg in Warren County and there supervised the loading of Magnolia Marine's equipment--three pumps and one motor--weighing in the aggregate some 1,079 pounds, together with a case of work tools weighing about 20 pounds. The two employees Magnolia Marine provided were Billy Chandler, an engineer, and Tankerman Tanksley. Chandler questioned pilot Avery about weight distribution in the plane and expressed concern of the possibility of the plane tipping over. Avery assured Chandler that the fuel and "stuff" in the wings would balance the plane. Under Avery's directions, the loading was completed.

The plane then took off from the Vicksburg Airport and flew to Chicago without incident. Upon arrival, Avery taxied to a terminal for light aircraft. Pilot Avery, together with Chandler and Tanksley, exited the plane and walked to the terminal where they met Frank Connor and other men who were to fly back to Mississippi. Avery mentioned filing flight plans for the return trip and told the men to arrange a truck--a full half-ton pickup truck--to be driven out to the plane to receive the equipment. The truck was backed up almost flush with the airplane door, its tailgate down. Chandler, Tanksley and Connor waited a while. Avery did not return, and they decided they had best get on with the unloading process.

Chandler and Tanksley re-entered the aircraft, Chandler to the front and Tanksley to the rear, while Connor was standing in the back of the truck. Chandler and Tanksley began to slide a heavy motor back and had moved it but a foot or so when the plane suddenly shifted rearward, its tail striking the ground and sitting there, its nose in the air at a 45 degree angle. When this happened, Tanksley was on the downside of the plane and was on the receiving end of the heavy motor, as Chandler could not hold it and finally let go.

Stunned for a few moments, Tanksley felt "pressure" in his back. Chandler and Tanksley then exited the plane to assess the situation. They waited ten or fifteen minutes. The pumps and motor had to be unloaded and were unlikely to unload themselves. Chandler and Tanksley proceeded anew, and with Connor's assistance, managed to push and shove the several pieces of heavy equipment into the truck. When they unloaded the last piece, a 382 pound pump, the plane righted itself just as suddenly.

Soon thereafter, Tanksley's back began to bother him, a matter verbally reported to port captain Neal either that night or the next day through a phone call. There is evidence Tanksley took medicine for pain that evening. Eight days later, Tanksley, who is illiterate, had his wife, Ann, complete a written accident report which was delivered to Magnolia Marine in Vicksburg on November 16. In that report, Ann Tanksley said Howard had slipped on oil in the back of the pickup truck. All eyewitnesses agree there was no oil in the back of the truck nor did Tanksley slip there, and, in view of the verdict, we regard this an inadvertence of no consequence.

Tanksley was treated by Dr. George Abraham of Vicksburg. Dr. Abraham first found no evidence of a pinched nerve in Tanksley's back and after a period of hospitalization and conservative treatment, released Tanksley to return to light work. Ten days later, Tanksley returned to Dr. Abraham reporting he had re-injured his back lifting a heavy object. Dr. Abraham then referred Tanksley to Dr. Lynn Stringer, a neurosurgeon, who operated on Tanksley for a herniated disk in 1984. After a period of convalescence, Dr. Stringer released Tanksley for light work but readmitted him to the hospital in July of 1985 with renewed back pains. Dr. Stringer performed a second disk operation and subsequently, Dr. Daniel Dare, an orthopedic surgeon, performed a third.

B.

On September 6, 1985, Howard Tanksley commenced the present civil action by filing his complaint against Flight Line, Inc., claiming personal injuries said to have been proximately caused by the negligent arrangement and stowage of the cargo of heavy equipment prior to the flight to Chicago and thereafter by the failure to supervise the unloading of same in Chicago. Ann Tanksley, Howard's wife, joined as a plaintiff with a claim of loss of consortium. Ann Tanksley was killed in an accident on April 21, 1987, and her action was revived in the name of Howard Tanksley, administrator of her estate. National Union Fire Insurance Company, Magnolia Marine's workers' compensation insurance carrier, intervened as a plaintiff by reason of the compensation and medical benefits it had paid Tanksley.

Flight Line denied the essential allegation of the complaint and immediately challenged venue in Warren County. Flight Line's motion to transfer was denied. The Circuit Court first called the case for trial on July 27, 1987, but this accomplished little as matters ended in a mistrial. Eleven months later, the case was tried anew, and the jury returned a verdict for Tanksley in the amount of $100,000.00. Tanksley moved for an additur or, in the alternative, for a new trial on damages, and the Circuit Court granted the motion, ordering an additur of $400,000.00 and failing that, a new trial on damages only. Flight Line rejected the additur.

On January 23, 1989, the Circuit Court of Warren County convened a jury for a third time, this time to hear the issue of damages only. In response to interrogatories, the jury found Tanksley's total damages to be $4,120,400.00, but found further that Tanksley had knowingly entered a position of open and apparent danger and that this was thirty percent of the total negligence in the case and, further, the jury found twenty-five percent of Tanksley's damages were the proximate result of his failure to take care of himself, post-accident and ultimately post-surgery, a failure to mitigate his damages, if you will. The jury's net verdict was $1,854.180.00. The Circuit Court entered judgment in favor of Tanksley and against Flight Line in this amount. Meanwhile, the Circuit Court dismissed the claim for Ann Tanksley's loss of consortium.

Flight Line moved for judgment notwithstanding the verdict, or, in the alternative, for a trial or, in the alternative, for a new trial on damages only or a remittitur. The Circuit Court denied all motions. Flight Line now appeals, and Tanksley cross-appeals.

III.

Our first issue is venue. Flight Line complains that it was required to submit to trial in Warren County. Flight Line is a domestic corporation with its principal place of business in Rankin...