Hankins Lumber Co. v. Moore, No. 1999-CA-00322-COA.

• Decision Date: 18 July 2000
• Docket Number: No. 1999-CA-00322-COA.
• Citation: 774 So.2d 459
• Parties: HANKINS LUMBER COMPANY, Appellant, v. Charles MOORE, Appellee.
• Court: Mississippi Court of Appeals

774 So.2d 459

HANKINS LUMBER COMPANY, Appellant, v. Charles MOORE, Appellee.

No. 1999-CA-00322-COA.

Court of Appeals of Mississippi.

July 18, 2000.

Rehearing Denied October 3, 2000.

Certiorari Denied December 29, 2000.

Thomas Henry Freeland IV, Oxford, Attorney for Appellant.

Robert J. Dambrino III, Grenada, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

LEE, J., for the Court:

¶ 1. The appellant, Hankins Lumber Company, appeals from the Circuit Court of Grenada County an $80,000 jury verdict which apportioned 70% of the damages to it for injuries sustained by the appellee, Charles Moore, when part of a load of lumber being transported for Hankins Lumber by Carl Morris fell from Morris's truck. The jury apportioned 30% of the damages to Morris. Finding no reversible error, we affirm the judgment of the lower court.

FACTS

¶ 2. On Friday, October 1, 1993 Carl Morris was traveling on a Grenada County highway in his flatbed truck which was loaded with thirteen bundles of lumber, each bundle containing 96 boards measuring 2 × 8 × 14 feet long. A board from Morris's load hit the hood of Charles Moore's pickup truck as he passed it headed in the opposite direction and shattered the windshield. Though the board itself did not hit Moore, he sustained cuts to his face and neck and later complained of back pain. Moore claimed $7,156.03 in medical expenses and $1,600 in damage to his truck as a result of the accident.

¶ 3. At the time of the accident Morris was a partner in Black Magic Trucking Company and had contracted with Hankins Lumber to haul a load of lumber from its sawmill in Sturgis to Ashburn, Georgia. It was the responsibility of Hankins Lumber to secure the bundles of lumber together and load them on to Morris's truck. In so doing it utilized a manual bander and placed two steel bands on every bundle, one band on each end of each bundle, and loaded the bundles to the truck with a forklift. It was Morris's responsibility to then secure the banded bundles to his truck utilizing nylon straps. After so doing, Morris then left the lumberyard and, after pulling over just outside the Sturgis city limits for the customary rechecking of his load, proceeded for his destination. Morris chose a circuitous route via his hometown of Holcomb, where he intended to spend the night prior to the delivery of his load on Monday in Ashburn, Georgia.

¶ 4. Morris testified that when he was just outside of Winona he stopped for a school bus and lumber shifted and came out of the top bundle. He stopped and picked it up with the help of two people that he hired. As he continued on to Elliott he noticed that the boards were "walking" back out of the bundle, and he decided to stop at nearby Morgan's Grocery to call the Elliott facility of Hankins Lumber which was less than a half mile away. By this time it was almost 5:00 p.m. on Friday afternoon. Morris said that he wanted the load rebanded, that he told James Jones at the Elliott facility that the bands were loose and that "one had slid off." Morris said that Jones told him to tie the load down and ease on. Jones, on the other hand, testified he told Morris to restack and restrap the lumber and then to move on. Jones said he told Morris that if he wanted his load rebanded that he needed to go back to Sturgis, which was 40-50 miles away, since that is where he loaded. Jones acknowledged that the Elliott facility had the necessary banding apparatus for rebanding Morris's load. Morris said that when Jones would not reband the load, he pushed the boards back and tightened his straps prior to continuing his journey. Two miles down the road 20-25 boards came out of the middle of the top bundle, one of which hit Moore's truck.

¶ 5. Jones testified that he was aware of bundles having come apart or "telescoping" from the middle of a bundle when the truck transporting the lumber had come to a quick stop or "broke fast". He said the bundle would shift and lumber from the middle would slide out. On those occasions Jones had in the past gone out to help the truck driver pick up the lumber and restack it, but the lumber was not rebanded. The testimony of Bill Peden, safety director for Hankins, disclosed that Hankins Lumber had in the past rebanded off-site where bands had come off of lumber on a railroad car. He said that Hankins could not have rebanded Morris's load because Hankins's insurance policy did not provide coverage for employees injured while physically working on another's truck.

¶ 6. Morris testified that neither band was on the top bundle when he got to Moore. Mr. Peden testified that as a general rule, bundles under 12 feet long are banded with two bands and bundles over twelve feet long are banded with three steel bands, one band on each end and one in the middle. Morris said that newly cut lumber is slick and must be banded tightly in order to be properly secured. He testified that the bands did not break but slid off because they were not banded tightly. He also said that the purpose of the bands is to hold the bundle together and that the purpose of the straps is to hold the load to the trailer. It was his absolute opinion that the problem was in the banding, not the strapping.

¶ 7. Peden said that the amount of tension on the bands depends on the amount of tension applied by the person banding, that there is no standard for tension. He also stated that the purpose of the banding is to facilitate the movement of the bundles around the yard, not to keep individual pieces of lumber from falling out of the bundle. According to Peden, there is no physical inspection for tightness; however, the bundles are visibly inspected by the forklift driver and if the bundles are not properly banded, they cannot be moved with a forklift without falling apart. On a typical bundle the steel bands are tight enough to prevent sliding up and down and may actually cause indentions into the lumber.'

ISSUE AND DISCUSSION

DID THE TRIAL COURT ERR IN FAILING TO GRANT HANKINS LUMBER A JNOV OR, IN THE ALTERNATIVE, A NEW TRIAL?

Standard of Review

¶ 8. The standard of review for determining whether a trial court should have granted a JNOV is enunciated in Jesco, Inc. v. Whitehead, 451 So.2d 706, 714 (Miss.1984) (Robertson, J., specially concurring):

The motion for j.n.o.v. tests the legal sufficiency of the evidence supporting the verdict. It asks the Court to hold, as a matter of law, that the verdict may not stand. Where a motion for j.n.o.v. has been made, the trial court must consider all of the evidence—not just evidence which supports the non-movant's case—in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury's verdict allowed to stand. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil [Mill] Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).

Jesco, Inc., 451 So.2d at 714. We are thus bound to review the evidence in the light most favorable to Moore, the non-moving party, who maintains that the evidence was sufficient to support the verdict which apportioned 70% for Moore's injury to Hankins Lumber.

¶ 9. A review of the record and trial transcript shows that there is substantial evidence of such quality and weight that reasonable men in the exercise of impartial judgment might reach different conclusions regarding the negligence of Hankins Lumber. In addition, Moore, the non-movant, must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. We do not find that these facts and inferences so considered point so overwhelmingly in favor of Hankins Lumber that reasonable men could not have arrived at a contrary verdict, thereby requiring that the motion must be granted, Jesco, Inc., 451 So.2d at 714, and therefore find that the motion was properly denied.

¶ 10. We recognize that a motion for a new trial may be proper in circumstances where a JNOV should not have been granted. Larkin v. Perry, 427 So.2d 138, 138-39 (Miss.1983). A trial judge should order a new trial only when he is convinced that the verdict is contrary to the substantial weight of the evidence. Adams v. Green, 474 So.2d 577, 582 (Miss. 1985). The standard for reviewing the action of a trial court in the granting or refusing of a new trial was set out in the case of Dorr v. Watson, 28 Miss. 383 (1854). That case states that though it is within the sound discretion of the court below whether to grant a new trial, if a new trial is refused it may be reversed when the denial of the motion is manifestly wrong. Id. at 395. In reviewing the evidence presented at the trial in this case, we cannot say that the verdict was against the substantial weight of the evidence and therefore cannot find that the denial of the motion for a new trial was manifest error.

Negligence & Questions of Fact

¶ 11. When reasonable minds might differ on the matter, questions of proximate cause and of negligence and of contributory negligence are generally for determination of jury. American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 12, 60 So.2d 514, 517 (1952). These questions are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Smith v. Walton, 271 So.2d 409, 413 (Miss. 1973). Foreseeability and breach of duty are also issues to...