Gold Kist, Inc. v. Tedder

• Citation: 580 So.2d 1321
• Parties: GOLD KIST, INC. v. Mary TEDDER. Mary TEDDER v. GOLD KIST, INC. 89-0579, 89-0940.
• Decision Date: 26 April 1991
• Court: Supreme Court of Alabama

Page 1321

580 So.2d 1321

GOLD KIST, INC. v. Mary TEDDER.

Mary TEDDER v. GOLD KIST, INC.

89-0579, 89-0940.

Supreme Court of Alabama.

April 26, 1991.

Rehearing Denied May 24, 1991.

John W. Clark, Jr., and Wade S. Anderson of Clark & Scott, Birmingham, for appellant/cross-appellee.

T.J. Carnes of Carnes & Carnes, Albertville, for appellee/cross-appellant.

KENNEDY, Justice.

Mary Tedder filed an action against Gold Kist, Inc., alleging negligence and/or wantonness in the operation of a motor vehicle. Tedder's automobile was struck by an automobile driven by Danny Williams, who Tedder alleged was attempting to avoid a collision with Gold Kist's truck as the truck entered the highway from a dirt road. The claims were submitted to a jury, which returned a verdict for Gold Kist. Tedder filed a motion for a new trial, based on several grounds. On November 15, 1989, the trial court granted the motion on the ground that the jury may have been unlawfully influenced by an unadmitted exhibit that was left in the courtroom while the jury deliberated there. Gold Kist appealed from the trial court's order of a new trial. Tedder cross-appealed from the trial court's failure to base its grant of a new trial on the grounds that it had improperly instructed the jury and on a determination that the verdict was against the weight and preponderance of the evidence.

The accident that is the basis of this appeal occurred in October 1987. Tedder underwent a hip replacement in September 1988. It is undisputed that the ultimate cause of the hip replacement was vascular necrosis, a process that decreases the blood supply to the bone. As a defense, Gold Kist attempted to prove that Tedder had injured her hip in a previous automobile accident; that the vascular necrosis had begun to affect Tedder's hip before the accident that is the basis of this appeal; and that Tedder's alcoholism, which is undisputed, also contributed to the condition.

During the trial, counsel for Gold Kist constructed a chronology of medical events from the time of the first automobile accident to the time of the hip replacement operation. The list was on a large paper tablet and was placed on an easel in the courtroom. On appeal, Gold Kist states that counsel for Tedder also made notations on the list. In any event, the list was referred to during trial but was never offered or admitted into evidence; however, it was left within sight of the jury during its deliberations. The list was as follows:

                "5/31/87          [Previous] Accident
                "9/18/87          Hospital, hip collapse
                "10/26/87         [Accident], Hospital, no hip treatment
                "11/3/87"11/6/87  Huntsville, Dr. removed screw [from hip]
                "4/5/88           [Hospital,] beer [and] whiskey [history for] 5 days
                "5/6/88           [Hospital,] alcohol withdrawal
                "5/16/88          [Hospital,] Intoxicated when admitted
                "6/24/88          [Hospital,] chest pain and alcohol
                "7/9/88           [Hospital, to remove pins from hip]
                "7/10/88          [Alcohol] DT's
                "8/8/88           [Hospital,] hip pain
                "9/13/88          Hip [replacement]"
                

In her motion for new trial, Tedder argued that the jury had been impermissibly influenced by the list. In its order granting a new trial, the trial court stated:

"Upon consideration of the plaintiff's motion for a new trial, the court finds as follows:

"That on August 14, 1989, this action came on to be heard to a Jury, and on August 18, 1989, the Jury returned a verdict finding the issues in favor of the defendant. That the court customarily allows the Jury to deliberate in the courtroom due to the size of the courtroom and Jury room; that the court instructed the parties to remove their materials from the courtroom after the case was submitted to the Jury. That the exhibit, designated as plaintiff's exhibit 'A,' although not offered nor admitted into evidence, remained in the courtroom in which the Jury was deliberating.

"Upon review of the exhibit, the court finds that the information thereon is prejudicial. Although stated in a criminal case, the following appears applicable:

" 'The test of vitiating influence is not that it did influence a member of the Jury to act without the evidence but that it might have unlawfully influenced [a juror and the verdict].' Dumas v. State, 491 So.2d 1083, [at 1086 (Ala.Cr.App.1986) ].

"It is therefore ADJUDGED that the judgment entered hereon on the 18th day of August, 1989, is hereby set aside, a new trial is hereby granted and this action is hereby returned to the active docket."

The granting or denial of a motion for new trial rests largely within the discretion of the trial court, and the exercise of that discretion carries with it a presumption of correctness that will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Moorman...