Harris v. Buxton T.V., Inc., 55250

• Decision Date: 28 November 1984
• Docket Number: No. 55250,55250
• Citation: 460 So.2d 828
• Parties: Nora Faye HARRIS, Jerry K. Todd and Margie H. Todd v. BUXTON T.V., INC.
• Court: Mississippi Supreme Court

Page 828

460 So.2d 828

Nora Faye HARRIS, Jerry K. Todd and Margie H. Todd v. BUXTON T.V., INC.

No. 55250.

Supreme Court of Mississippi.

Nov. 28, 1984.

Jon A. Swartzfager, Laurel, for appellants.

John Mark Weathers, George E. Dent, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellee.

Before PATTERSON, C.J. and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal follows a jury verdict in favor of Buxton T.V., Inc. whom Nora Faye Harris and others had sued seeking damages for injury to real property allegedly resulting from water drainage precipitated by improvements that Buxton had made to its adjoining upland property. On this appeal, we find two errors committed by the trial court: (1) his refusal of Harris' request to call as an adverse witness and ask leading questions of Buxton's building contractor who had made the improvements in Buxton's property; and (2) his failure correctly to instruct the jury regarding the standard of care by which Buxton's conduct should be judged. We reverse.

II.

In April or May of 1981, Buxton acquired certain real property in Laurel, Mississippi, and began improvements during June or July of that year. That property adjoined and was upland of certain developed real property owned by Nora Faye Harris, Jerry K. Todd and Margie H. Todd (hereinafter collectively "Harris"), Plaintiffs below and Appellants here.

The building already on the Buxton property was increased substantially in size and a paved parking lot was constructed. Buxton had no expectation as to how drainage from this property would occur. This matter had been left to the contractors and engineers who performed the work. Indeed, Buxton was not aware of precisely what changes were made to its property as a result of the construction he had authorized. During the period of construction from June to October of 1981, Harris complained to Buxton that water from the Buxton property was coming on the Harris property.

On April 18, 1982, Harris commenced this action by filing a complaint in the Circuit Court of the Second Judicial District of Jones County, Mississippi. Since Buxton was unfamiliar and unknowledgeable regarding the specifics of the improvements that had been made to its property, Harris attempted at trial to call Joe Parker--who was Buxton's general contractor for the improvements made on the Buxton property--as an adverse witness and to cross-examine him regarding the improvements actually made. The basis for this request was that Parker was identified with Buxton and that Harris could not, and would not, vouch for this witness' credibility. The trial judge overruled Harris' request. Given this turn of events, Harris elected not to call Parker at all.

Several other witnesses were called regarding conditions on the Buxton property and the adjoining properties, as well as witnesses testifying as to engineering and construction practices. The testimony of all these witnesses is not relevant to the points raised here on appeal.

The only other aspect of this trial which is relevant to this appeal concerns two jury instructions: P-2 and D-18. In essence, Instruction P-2 told the jury that while a property owner has the right to alter his property, he may not do so to the detriment to other landowners and that if the jury found that the water drainage flow onto the Harris' property "either increased ['in volume' excised], velocity, intensity or concentration" then the verdict should be in favor of Harris. Instruction D-18, in contradistinction, told the jury that an "uphill" landowner is not liable to an adjoining landowner "even though the flow of water is accelerated or the volume increased" and so even if the jury found that Buxton had caused these detriments to Harris--the jury should nonetheless find in favor of Buxton.

After hearing the evidence and having been thus instructed, the jury after due deliberation found in favor of Buxton. From final judgment entered on the verdict, Harris appeals and presents two issues:

III.

Harris' first assignment of error is that the Circuit Court

"erred in not allowing the Plaintiffs [Harris, et al] to call the Defendant's contractor, Joe Parker, as a witness identified with an adverse party under Rule 43(b)(3) of the Mississippi Rules of Civil Procedure."

As the record makes clear, the thrust of Harris' complaint is that Buxton made some improvements or alterations upon the properties it occupied thus allegedly altering drainage patterns and causing excessive waters to be cast upon Harris' lower adjoining lands. Harris says that, prior to these improvements, there was no drainage problem on their property, but that after Buxton did his work on his property,

"the Plaintiffs have been caused to suffer severe flooding to their home and yards by rain water draining from Defendant's property."

In this context, Harris sought to call as a witness one Joe Parker. Harris' counsel stated to the court that Parker was the general contractor who actually made and performed the alterations to the property of which Harris was complaining. Harris' counsel invoked Rule 43(b)(3), Miss.R.Civ.P., and asked that he be allowed to ask the witness leading questions and that he not be required to vouch for Parker's credibility.

It is important that, prior to her efforts to call Parker, Harris had called Robert Earl Buxton, the corporate representative of Buxton T.V., Inc. as an adverse witness. Buxton proceeded to testify that he had hired Joe Parker Construction Company to make certain renovations on an existing building on the property complained of by adding approximately 2,000 sq. ft. to an existing 1,200 sq. ft. building by doing certain paving on the back of the lot and other related work. Buxton further testified that he was not familiar with the manner in which his contractor had done the work, but rather he had hired a contractor to do a job and he turned the matter over to his contractor.

In this context it certainly appears that, if Buxton has any liability in the premises, that liability will be the substantial product of the acts or omissions of Joe Parker Construction Company. Joe Parker as the chief managing officer of that corporation is the individual Harris sought to call as a witness.

Parenthetically, had Buxton been determined to have liability in the premises, Buxton may well have had an indemnity claim over against Parker. If Harris had elected to do so he could have named Parker as a defendant in this action. Had that been done Buxton could procedurally have asserted its indemnity claim against Harris via a cross-claim under Rule 13(g), Miss.R.Civ.P.

In this context, we consider Rule 43(b)(3), Miss.R.Civ.P. The rule provides as follows:

(3) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse witness, or a witness identified with an adverse party, interrogation may be by leading questions. [Emphasis added]

(4) Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling him.

This rule has an identical counterpart in Rule 611(c) of the Federal Rules of Evidence.

Rule 43(b)(3) is clear and unequivocable. In the context of the assignment of error before us, the rule provides that, when a party calls a witness identified with an adverse party, interrogation may be by leading questions. The meaning of this rule has been explicated in the official Comments which provide

"The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only 'an adverse party of an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.' This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration. The phrase of the rule, 'witness identified with' an adverse party, is designed to enlarge the category of persons thus callable."

The comment, as well as the express language of the rule, make it clear that Rule 43(b)(3) is broader than its former counterpart in the Federal Rules of Civil Procedure. The matter is of no moment for, as we have noted above, Rule 611(c) of the Federal Rules of Evidence contains a sentence identical to that in question here.

Since the adoption of Rule 611, Fed.R.Ev. in 1975, there has been precious little litigation concerning the issue of who may be considered as "identified with an adverse party". There are only two decisions emanating from United States Courts of Appeals which address this issue: Ellis v. City of Chicago, 667 F.2d 606 (7th Cir.1981) and Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979). The holding of these cases can be summarized as follows:

Before the adoption of Rule 611(c), the use of leading questions on direct examination required either a showing of actual hostility or a determination that the witness being examined was an adverse party, or an officer, director, or managing agent of such an adverse party. [citations omitted]

These limitations were designed to guard against the risk of improper suggestion inherent in examining friendly witnesses through the use of leading questions. [citations omitted]

The drafters of Rule 611(c), however, determined that these limitations represented "an unduly narrow concept of those who may safely be regarded as hostile without further demonstration." [citation omitted] The new rule was thus designed to enlarge the categories of witnesses automatically regarded as adverse, and therefore subject to interrogation by leading questions without further showing of...