Haggerty v. Foster, No. 2001-CA-00551-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before SMITH, P.J., COBB and DIAZ, JJ.
• Citation: 838 So.2d 948
• Docket Number: No. 2001-CA-00551-SCT.
• Decision Date: 05 December 2002
• Parties: Bonnie HAGGERTY v. Steven FOSTER and Foster Construction Company.

838 So.2d 948

Bonnie HAGGERTY
v.
Steven FOSTER and Foster Construction Company

No. 2001-CA-00551-SCT.

Supreme Court of Mississippi.

December 5, 2002.

Rehearing Denied March 13, 2003.

838 So.2d 951

Austin R. Nimocks, Gulfport, attorney for appellant

838 So.2d 952

William E. Whitfield, III, Gulfport, Samuel Trent Favre, attorneys for appellees

Before SMITH, P.J., COBB and DIAZ, JJ.

DIAZ, J., for the Court:

¶ 1. Bonnie Haggerty (Haggerty) filed her Complaint in the Circuit Court of Harrison County, First Judicial District, against Steven Foster and Foster Construction Company (collectively hereinafter "Foster"), seeking to recover damages she sustained in a car accident on U.S. Highway 49 in Harrison County, Mississippi, on September 27, 1996. After trial on the matter, the jury returned a verdict in favor of Foster, and judgment was entered accordingly. The trial court denied Haggerty's Motion for Judgment Notwithstanding the Verdict, or Alternatively, for a New Trial. Aggrieved by the judgment and the trial court's denial of her motions, Haggerty appeals, presenting the Court with the following five issues:

I. WHETHER THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-6A AND NOT GIVING JURY INSTRUCTION P-8A.

II. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING HAGGERTY'S CHALLENGES FOR CAUSE DURING VOIR DIRE.

III. WHETHER THE CIRCUIT COURT ERRED IN NOT ALLOWING HAGGERTY TO TESTIFY, UTILIZE DEMONSTRATIVE ITEMS, AND INTRODUCE EVIDENCE REGARDING HER DAMAGES DURING THE COURSE OF THE TRIAL.

IV. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING HAGGERTY'S OBJECTION TO THE APPELLEE'S CLOSING ARGUMENT ON ACCIDENT RECONSTRUCTION.

V. WHETHER THE CIRCUIT COURT ERRED IN DENYING HAGGERTY'S MOTION FOR A NEW TRIAL, OR ALTERNATIVELY, JUDGMENT NOTWITHSTANDING THE VERDICT.

FACTS

¶ 2. On September 27, 1996, Haggerty was traveling north on U.S. Highway 49 in Gulfport, Mississippi, intent on turning east at the upcoming intersection of Highway 49 and Creosote Road. Steven Foster was proceeding south on Highway 49, traveling to McDonald's restaurant to eat lunch. McDonald's is located just south of the intersection of Highway 49 and Creosote Road. Northbound traffic was stopped for a traffic signal at that intersection. Motorists who were stopped at the signal made a corridor for Foster to pass between them and enter McDonald's parking lot. Foster crossed three lanes of northbound traffic. Foster and his employee, Vince Wolfson (Wolfson), both testified that they looked up the turn lane and saw no vehicles approaching. Wolfson testified that he could only see 20 or 30 feet down the turn lane. As Foster crossed the turn lane, his vehicle was struck by Haggerty's. Wolfson testified that he saw Haggerty's vehicle immediately before impact and judged her speed at approximately 20 to 30 miles per hour. He testified that he had looked down the turn lane and seen no one coming, looked away as Foster started across, then looked back and saw Haggerty's vehicle immediately before impact. He estimated that Foster was in the process of crossing the turn lane for approximately 3 or 4 seconds. Foster testified that he never saw Haggerty prior to impact.

838 So.2d 953

He further testified that his vehicle had nearly entered McDonald's parking lot at the time of the accident and that he had crossed 8-10 feet of the 11 feet turn lane

¶ 3. Haggerty testified that she did not see Foster's vehicle until the impact occurred. She testified that she was in the turn lane, she slowed her vehicle to allow another car in front of her to make a right turn into a car dealership immediately south of McDonald's, then she proceeded in the turn lane. She testified that she continued driving in the turn lane and then Foster's vehicle pulled out in front of her and she hit him without having time to react. She estimated that she was going approximately 15 miles per hour at the time of the collision. She also testified that Foster's truck continued moving after the accident and dragged her and her vehicle into the McDonald's parking lot.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-6A AND NOT GIVING JURY INSTRUCTION P-8A.

¶ 4. As her first assignment of error, Haggerty cites the trial court's error in allowing and denying certain jury instructions. When determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole to determine whether a jury has been incorrectly instructed. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Coleman v. State, 697 So.2d 777, 782 (Miss. 1997); Collins v. State, 691 So.2d 918, 922 (Miss.1997) (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)); Jackson v. Griffin, 390 So.2d 287, 290 (Miss.1980).

¶ 5. Haggerty's three challenges to the trial court's disposition of jury instructions are discussed in turn below.

(A) Whether Jury Instruction D-6A is Based Upon an Improper Legal Standard.

¶ 6. Haggerty cites as error the trial court's giving of instruction D-6A, claiming that it is based upon an improper legal standard. Instruction D-6A, states in pertinent part: "that if, based upon the instructions of this Court, you find that the Defendants ... were negligent ... you may reduce any verdict for damages by an amount or percentage which reflects the negligence, if any of the Plaintiff." (emphasis added). Haggerty argues this portion of the instruction required the jury to base its findings as to the negligence of the defendants upon the instructions of the court, rather than on the evidence presented at trial. Haggerty contends this error was compounded by a later portion of that same paragraph in the instruction, which instructed the jury to determine any negligence on the part of the plaintiff by what is demonstrated by the evidence. That portion reads: "The application and reduction of damages to the Plaintiff by her comparative negligence, if any, is left to your sole discretion if any negligence on her part is demonstrated by the evidence in this case by the Defendants, Steven Foster and Foster Construction Company." (emphasis added). The next paragraph of the instruction provides that "in the event you find that the Defendants were negligent as described in other instructions... If based upon the evidence, you find that the Plaintiff was comparatively negligent, then you must assign a percentage for her negligence ...." (emphasis added). Haggerty argues this instruction improperly charged the jury to utilize different standards as to the findings to be made regarding each party.

838 So.2d 954

¶ 7. The findings of the jury are to be based only on the evidence presented at trial. Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961). The statements of counsel are not evidence, Walker v. State, 671 So.2d 581, 618 (Miss.1995), and neither are the instructions of the court which should only serve to guide the jury as to the applicable law. See Carmichael v. Agur Realty Co., 574 So.2d 603, 612 (Miss.1990); Cintgran v. Board of Trustees of Shelby Hosp., 222 So.2d 677, 678 (Miss.1969). Cf. Rogers v. State, 796 So.2d 1022, 1027 (Miss.2001) ("The evidence which you are to consider consists of the testimony and statements of the witnesses and the exhibits offered and received."). Nonetheless, in keeping with the applicable standard of review on jury instructions discussed above, it is improper to consider excerpts from the jury instruction or to evaluate portions of the jury instruction out of context since the instruction must be considered with the other instructions given. Instruction D-6A instructs the jury to make its determination based on all of the instructions of the court. Instruction C-1 instructs the jury to "conscientiously consider and weigh the evidence... determine the facts and to determine them from the evidence produced in open court ... your verdict should be based on the evidence." We conclude that, when read as a whole, the jury instructions fairly announce the applicable law.

¶ 8. Moreover, at trial Haggerty objected to instruction D-6A only on the grounds that it addressed comparative fault. Haggerty's attorney did not object to the specific wording now complained of on appeal. In fact, during the instruction conference Haggerty's attorney agreed to the giving of Instruction D-6A, stating, "I have no objection to this wording, assuming the Court is going to allow a comparative fault instruction." In order to preserve an objection for appeal, an attorney must make a contemporaneous objection. Gatlin v. State, 724 So.2d 359, 369 (Miss. 1998); Mitchell v. Glimm, 819 So.2d 548, 2002 WL 454021 at *4 (Miss.Ct.App.2002). "Failure to make a contemporaneous objection and allow the trial court opportunity to cure the defect is a procedural bar and constitutes a waiver of the argument on appeal." Id. Because Haggerty's attorney failed to object to the language at trial, the trial judge did not have an opportunity to cure any possible defect. Haggerty's objection to the language was therefore not properly preserved and her argument on appeal is not properly before the Court and is denied.

¶ 9. This assignment is without merit.

(B) Whether Jury Instruction D-6A should not have been given because there existed no evidence to support Foster's theory or argument that Haggerty was negligent.

¶ 10. Haggerty also argues that since no factual basis was developed at trial that indicated that she contributed in any way to the accident, Instruction D-6A, a comparative fault instruction, was erroneously given. She cites the cases of Vines v. Windham, 606 So.2d 128 (Miss. 1992), and McKinzie v. Coon, 656 So.2d 134 (Miss.1995), in support of this argument.

¶ 11. In Vines, this Court held that a comparative negligence instruction was improper where the evidence was clearly insufficient to support a finding of...