Mid-Continent Aircraft Corp. v. Whitehead, MID-CONTINENT

• Decision Date: 05 April 1978
• Docket Number: MID-CONTINENT,No. 50178,50178
• Citation: 357 So.2d 122
• Parties: AIRCRAFT CORPORATION and Georgia-Pacific Corporation v. Truman WHITEHEAD.
• Court: Mississippi Supreme Court

Page 122

357 So.2d 122

MID-CONTINENT AIRCRAFT CORPORATION and Georgia-Pacific Corporation v. Truman WHITEHEAD.

No. 50178.

Supreme Court of Mississippi.

April 5, 1978.

Fair & Mayo, James C. Mayo, Louisville, Robert L. Crook, Ruleville, for appellants.

Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellee.

Before PATTERSON, BROOM, AND BOWLING.

BROOM, Justice, for the Court:

Damage to his cotton crop allegedly resulting from nearby timber spraying activities of Mid-Continent Aircraft Corporation (Aircraft herein, one of appellants) and Georgia-Pacific Corporation (Georgia-Pacific herein, the other appellant), was the gist of the suit of the plaintiff, Truman Whitehead (appellee). Trial was in the Circuit Court of Winston County, where the jury returned a verdict of $14,816.10 favorable to the appellee. We reverse.

Appellee charged that his 1974 cotton crop production was diminished because of the negligence of Aircraft in allowing a hormone-type herbicide spray substance to drift onto the lands where appellee's cotton crop was growing. He alleged that as agent of Georgia-Pacific, Aircraft was spraying Georgia- Pacific's timber, and that those in charge of the spraying negligently flew the airplanes too close to his (appellee's) cotton fields during heavy fogs and adverse wind conditions, thereby resulting in the chemicals getting upon and damaging the cotton plants. Appellee joined both Aircraft and Georgia-Pacific as defendants, along with two other defendants: Ronald Whitehead and Bob Burks (resident agents and employees of Georgia-Pacific), who allegedly directed the timber spraying activities.

At the conclusion of appellee's presentation of his case, Whitehead and Burks moved for a directed verdict, which the lower court sustained and from which action appellee cross appeals. Aircraft and Georgia-Pacific appeal directly contending, among other things, that the jury verdict for appellee is against the overwhelming weight of evidence. Other facts and legal propositions will be stated later in this opinion.

WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? During the trial the appellants moved for a directed verdict; they requested a peremptory instruction when all the evidence had been presented. The evidence shows that the appellants were spraying Georgia-Pacific's timber in close proximity to appellee's cotton fields. Called by the appellee as an adverse witness, Jim Hall (Aircraft's representative) testified that he knew that Georgia-Pacific's land joined appellee's land; Hall also knew that growing cotton was susceptible to adverse effects from the herbicide. He instructed his pilots to keep the planes "away from these crops when the wind was in the wrong direction and velocity or when they had fog conditions." The totality of the testimony of various other witnesses indicated that the herbicides sprayed by Aircraft for Georgia-Pacific did get upon the cotton crop of appellee, and at least caused minimal if not more damage. Though the testimony may not have been as direct as might be desirable, it at least raised an inference which the jury could draw from the testimony, that the appellants did not exercise proper care in their spraying activities and as a result thereof some of the chemical spray got upon the cotton plants.

It is true that some of the expert testimony, including that of Robert McCarty, established (from field inspections) very little damage which would diminish appellee's cotton yield. Nevertheless, we are of the opinion that there was sufficient evidence to justify the lower court's denial of appellants' requested directed verdict and peremptory instruction.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING THE APPELLANTS' MOTION FOR A MISTRIAL AFTER A WITNESS FOR APPELLEE STATED THAT L. B. DAVIS WAS REPRESENTING THE INSURANCE CARRIER? The episode under discussion occurred during the testimony of appellee's witness Jessie Crosby. Crosby had testified concerning his activity in meeting with others and checking on herbicide damage to crops in Winston and Choctaw Counties.

Q. Now, you mentioned Mr. L. B. Davis. Who is Mr. L. B. Davis?

A. It was my understanding that Mr. L. B. Davis was representing Mid-Continent and Georgia-Pacific for an insurance company

Q. No, you can't mention insurance

Following the testimony, counsel for appellants moved for a mistrial on account of the reference to an insurance company which counsel stated was prejudicial to the appellants. The court offered to instruct the jury to disregard the testimony concerning the insurance company, but defense counsel declined and pointed out that any comment about the matter would make it more harmful to his clients. Further questioning by plaintiff's counsel emphasizing L. B. Davis and his testimony, though not mentioning the word insurance again, may very well have accentuated the prejudice to the cause of the appellants. The general rule in this jurisdiction is that no reference should be made to the fact that a defendant is covered by liability insurance. Morris v. Huff, 238 Miss. 111, 117 So.2d 800 (1960). We do not hold that we would reverse this case on this ground standing alone. However, upon the whole record before us, which shows that proof of damages to the cotton crop and diminishment of its yield was vague and weak, fairness demands a new trial.

Other argument of appellants relates to the matter of appellee's counsel at trial repeatedly asking witnesses about statements made by Davis (during his investigation), who Crosby had identified as being connected with an insurance company. The argument is made that although the circuit judge cautioned appellee's counsel about long argumentative type questions concerning Davis, counsel continued to propound similar questions to his client's witnesses. No further discussion in this respect is necessary here because these actions by counsel will not likely occur again at retrial.

DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY AS TO AN

ERRONEOUS MEASURE OF DAMAGES? Appellee was permitted to testify, over objection, to the following computation of his 1974 cotton crop loss caused by the herbicide. In explaining his computed loss, he stated the following: (1) His 1974 actual yield "was 604 pounds lint per acre,...