Henson v. Roberts, 92-CA-00841-SCT

• Citation: 679 So.2d 1041
• Decision Date: 25 January 1996
• Docket Number: No. 92-CA-00841-SCT,92-CA-00841-SCT
• Parties: Christy HENSON and Kevin Henson v. Steven B. ROBERTS.
• Court: United States State Supreme Court of Mississippi

Page 1041

679 So.2d 1041

Christy HENSON and Kevin Henson v. Steven B. ROBERTS.

No. 92-CA-00841-SCT.

Supreme Court of Mississippi.

Jan. 25, 1996.

Rehearing Denied Sept. 5, 1996.

V. Douglas Gunter, Jackson, for appellant.

Philip W. Gaines, Frances R. Shields, Currie Johnson Griffin Gaines & Myers, Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

Christy and Kevin Henson filed a Complaint in the Circuit Court of the First Judicial District of Hinds County alleging that

personal injuries and loss of consortium resulted from an accident occurring on June 6, 1990. Steven Bradford Roberts [Brad], while driving his 1985 4-wheel drive blue Toyota pick-up truck, struck Christy's 1981 silver Datsun automobile almost head-on. The primary liability issue at trial was which driver was in the wrong lane at the time of the collision. The jury returned its verdict in favor of Brad. Christy and Kevin appeal to this Court the following issues:

I. WHETHER OR NOT THE TRIAL COURT ERRED IN REFUSING CHRISTY'S J.N.O.V. MOTION OR, IN THE ALTERNATIVE, A MOTION FOR A NEW TRIAL BECAUSE THE 10-2 JURY VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. WHETHER OR NOT THE TRIAL COURT ERRED IN OVERRULING CHRISTY'S MOTION TO EXCLUDE THE TESTIMONY OF OFFICER JORDAN'S CONVERSATION WITH CHRISTY CONCERNING THE ACCIDENT REPORT.

III. WHETHER OR NOT THE JURY WAS PREJUDICED BY BRAD'S COUNSEL'S QUESTIONING OF RICHARD SPRING.

We find that only Issue I is worthy of discussion. After thorough review, we find the disputed facts were properly left to the discretion of the jury. A reasonable hypothetical juror could have returned a verdict as this jury did. We must affirm the lower court.

FACTS

Christy worked at her father's KEA store on Siwell Road which is located on the left side of Siwell Road as she was traveling westward. On the day of the accident she had forgotten her purse and was returning to the store to retrieve it. As Christy approached the KEA store, she came to a curve, which curved to her right, and the KEA store was on her left. Christy testified that she had come to a complete stop in front of the driveway of the KEA store, and that she remembered "sitting there being--it wasn't quiet a minute. It was a good few many seconds, and then the next thing I know it had been a crash." She said that she did not remember the blue vehicle coming toward her, that she had pressed the clutch and brakes, and that her wheels were facing forward. At trial, the defense called the officer who investigated the accident, James Jordan, to testify as to what he observed at the scene. He did not find anyone at that time who actually saw the collision. He did, however, briefly talk to Christy. He testified that Christy said she was "sitting still turning into the KEA, and she didn't see the oncoming vehicle." Later, under redirect, Jordon said "she was turning in and she just didn't see the vehicle coming in front of her and she had an accident."

Christy suffered injuries that included two teeth being knocked out, her lips torn apart, damage to her right elbow and left wrist, as well as knee damage that required two surgeries. She had around 200 stitches in total to repair the damage and had medical bills totaling $21,402.36.

At the time of the accident, Brad and his friend were traveling to his mother's home in Florence. He was a student in polymer science at the University of Southern Mississippi. His passenger, Cindy Whirlow, remembers leaving the house, but she was thrown out of the truck on impact and suffered a blow to the head. She does not remember anything else concerning the circumstances of the accident.

Brad described the location of the accident site. Going east on Siwell Road, he first passed Big Creek intersection and then Davis intersection. Brad testified that "as you near Davis, probably almost a ninety degree turn occurs right in front of the KEA store." He stated, "I saw her car traveling toward me, glanced back to the road, looked back again to the car as I neared, as I came right up upon it, then looked back up the road again as I came out of the curve, and then I felt the impact." He said that the last time he saw the silver car, it was still moving. He stated that as he entered the speed zone, he slowed down between thirty-five and forty, and then, as he entered the curve, he took his foot off the gas again. He does not Christy called four people who were at the accident site: Debbie Fuller, Michael Fuller, Richard Spring, and George Hollingsworth.

remember seeing Christy turn left in front of him. The speed limit just before the accident site was forty-five miles per hour and then it drops to thirty-five miles per hour at the site of the accident.

At the time of the accident, Debbie and Michael Fuller were driving behind Brad, having pulled onto Siwell Road from Big Creek Road. When the accident happened, Debbie testified that she saw the blue truck coming up the road, but did not turn onto Siwell Road because "he was going too fast for me to pull out in front of," but said she could not speculate as to Brad's rate of speed. She saw the truck flip in the air, but did not see who was in the wrong lane. Christy's attorney had a diagram of the accident site where he had each of the witnesses place the location of Christy's car after the crash. This placement was important for accident reconstruction purposes. Debbie Fuller placed the car on the diagram and Christy's attorney photographed it.

Michael Fuller estimated that Brad was driving at about fifty to fifty-five miles per hour. He was the first witness to mention the controversial gouge mark in the road. This gouge mark, which, by the time of the trial, was apparently one of the several paved over spots on the road, was used by both accident reconstructionists in their reconfigurations of the accident. The controversy arises over what exactly caused the gouge mark and where exactly the mark was located. Christy's position is that the gouge was caused by the front portion of Brad's truck when it flipped. Brad attributes the gouge to the place in the road where Christy's vehicle was pressed down by the force of Brad's truck running over the top of the front hood edge.

Richard Spring finished work about 4:00 p.m., bought some beers at the KEA, and was sitting on a picnic table in a pavilion near the store drinking "probably" his second beer at the time of the collision which was at 7:40 p.m. He looked out to the road and saw Christy's car sitting in the road and saw another car going by her, which signified that she was stopped and in the proper lane. He testified that there was a crash and Christy's car was knocked back some twenty feet. The defense claims that from where he was sitting, Richard Spring was behind the store and could not even see the accident. The defense attorney also asked Spring about a statement he had made to the defense attorney's paralegal. He asked Spring if he told the paralegal that "the lawyers [Christy's] keep trying to get me to say I saw the blinker [turn signal] on," but that he could not say that because he could not see the blinker. Spring said that no, he was really saying that Christy's lawyers had asked him if he saw the blinker on. In Christy's appeal she argues that these were mudslinging tactics and were improper.

George Hollingsworth, a witness not discovered until a couple of weeks before trial, was standing outside the door of the KEA store when he saw "a blue pickup come through there ... and he ran into Christy right there at the intersection at the store." He confirmed Christy's story that she had been stopped waiting to turn for thirty seconds or more and that she had not yet attempted to make a left turn. He testified that he thought Brad was going about sixty miles per hour when he hit Christy. Hollingsworth said that he could not see the yellow line dividing the road but that he had seen another car pass by before the blue truck did and that is how he knew that Christy was on her side of the road.

John Neil, Christy's accident reconstructionist who had participated in five investigations, examined the scene of the accident and the car approximately two years after the accident. He placed the now patched gouge seventeen and one-half feet away from the edge of the entrance to the KEA driveway (the lane in which Christy was traveling). He did not consult the on-the-scene investigating officer, James Jordan. He looked at the car, studied the accident site, and talked to the aforementioned witnesses and Christy's lawyer. He also testified that the left front wheel of the vehicle was frozen forward and maybe turned just a little bit to the left.

James Jordan investigated the accident immediately after it happened. He made a drawing of the positioning of the vehicles at that time. He identified the gouge mark in the oncoming lane (the one closest to the KEA entrance and the lane in which Brad was traveling) as the place where they collided and said that the mark was caused by Christy's car in that collision. However, he did not put this gouge mark location in his report. Jordan also testified that Christy had approached him at the KEA store well after the accident, saying that the accident was not her fault and that she "had some doctor bills and she wasn't going to be able to pay them; that she wanted me to reconsider my report--correcting the report, as far as finding her at fault."

Christy made a motion to keep this damaging information away from the jury, and the judge granted it in part and denied it in part. The trial judge disallowed any reference to "insurance" because Christy had told the officer that she needed the report changed to get insurance money, but allowed the testimony mentioned above. Christy cites this as prejudicial, reversible error.

Cecilia Kazery, Brad's accident reconstructionist, was a trooper with the Mississippi Highway Patrol and had investigated fifteen to...