Mills v. Nichols

• Decision Date: 10 April 1985
• Docket Number: No. 54672,54672
• Citation: 467 So.2d 924
• Parties: James R. MILLS and Shirley Mills v. Hugh NICHOLS, d/b/a Hugh Nichols Trucking Company.
• Court: Mississippi Supreme Court

Page 924

467 So.2d 924

James R. MILLS and Shirley Mills v. Hugh NICHOLS, d/b/a Hugh Nichols Trucking Company.

No. 54672.

Supreme Court of Mississippi.

April 10, 1985.

John Booth Farese, Farese, Farese & Farese, Ashland, for appellants.

William C. Murphree, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellee.

Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

I.

This is an appeal from a jury verdict awarding Hugh Nichols, d/b/a Hugh Nichols Trucking Company, $1,000, and finding no liability to James and Shirley Mills for injuries and damages resulting from an April 7, 1979, collision between James Mills' car and a Nichols tractor-trailer driven by employee L.Q. Cooksley. On appeal, the Mills contend that the trial court erred in:

1. Not declaring the truck driver an adverse witness;

2. Refusing to grant instruction P-2-(e) (concerning change of lane); granting instructions D-2 (concerning effect of intoxicating liquor), and instruction D-7-(a) (concerning right of way at intersection);

3. Excluding portions of the plaintiff's motion picture;

4. Overruling the Mills' motion in limine concerning the affirmative defenses raised by Nichols;

(5) Failing to exclude hearsay testimony; and

(6) Failing to grant a new trial on the inadequacy of the verdict.

We affirm for the reasons set forth below.

This litigation arose from an accident occuring between 3:00 and 4:00 a.m. on April 7, 1979, in the westbound lanes of highway 72 just outside the city limits of Corinth, Mississippi. L.Q. Cooksley, driving a Nichols' tractor-trailer dump truck, turned onto the northbound highway 45 exit ramp in order to turn west onto highway 72. This required Cooksley to stop at the stop sign where the exit ramp first intersects highway 72; cross the eastbound two lanes of highway 72 so as to reach the median area of highway 72; pause in the center median area; and turn left into the righthand (northernmost) of the two westbound lanes of highway 72.

James Mills was traveling westbound on highway 72, leaving Corinth. About 1/10th of a mile east of the highway 45-72 intersection is the crest of a hill. The hill crest was the first point at which Cooksley could see oncoming cars and Mills could see the intersection. Mills came over the top of the hill in the lefthand lane with his companion Wade Robinson following in the righthand lane. When Mills saw that the collision was imminent, he braked, leaving skidmarks in the lefthand lane 45 feet to the point of impact. Mills' vehicle struck the left rear portion of Nichols' trailer.

The Mills filed this civil action on October 15, 1979, in the Circuit Court of Alcorn County, seeking one million dollars damages for personal injuries to James Mills, and loss of consortium by Shirley Mills. The complaint named Hugh Nichols, d/b/a Hugh Nichols Trucking Company, as the defendant and charged the driver with negligence in several respects. There was no question that Cooksley was employed by Nichols Trucking Company and was acting within the scope of his employment at the time of the accident. Nichols denied the charges of negligence and asserted its own charges of negligence against Mills, and counterclaimed for $5,000 property damage to its truck.

Trial resulted in a verdict for defendant in the amount of $1,000. The jury apparently adopted Nichols' theory that, at the time of the accident, Mills was not keeping a proper lookout and was probably speeding. Mills' motion for judgment notwithstanding the verdict and alternatively for a new trial was overruled.

II.

Mills called Cooksley to the witness stand in his case in chief and, after preliminary questioning, requested the trial court to declare Cooksley an adverse witness, to which defense counsel objected. The court sustained the objection and Mills, nevertheless, continued to examine Cooksley as a witness for the plaintiff. On appeal, the Mills contend that the trial court erred in not declaring this witness, an employee and sole eyewitness for the defense, to be an adverse witness.

Appellants can find no comfort from Mississippi Rule of Civil Procedure 43(b)(3), which provides:

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 question.

We held in Harris v. Buxton T.V., Inc., 460 So.2d 828 (Miss.1984), that where a witness' acts or omissions are the predicate for a party's claim or defense, and a defendant is subject to potential liability because of the actions or omissions of the witness in question, then that witness is ordinarily sufficiently identified with an adverse party and may be called as an adverse witness and interrogated by leading questions. Id. at 833. This rule, as will be seen, constitutes a departure from our case law concerning who may be called as an adverse witness. Id. at 833. However, the Mississippi Rules of Civil Procedure, including the rule in question, apply only to those actions filed on or after January 1, 1982. Since this action was filed in 1979, prior to the effective date of the rules, the case is governed by the pre-rules case law concerning adverse witnesses. See Litten v. Grenada County, 437 So.2d 387 (Miss.1983).

Mills cites Winter v. Nash, 245 Miss. 246, 147 So.2d 507 (1962), for the premise that Mississippi Code Annotated Sec. 13-1-53 (1972), providing that a party opponent may be called as an adverse witness, does not limit the inherent power of a court in regard to the manner in which witnesses may be examined in its search for the truth. Nash affirmed a trial court's ruling allowed the manager of the defendant's business to be called as an adverse witness on the ground that the manager was the alter ego as far as the operation of the defendant's business in question. We ruled that the chancellor had considerable discretion in the matter, and committed no abuse of discretion. 245 Miss. at 258, 147 So.2d at 511.

Nichols points out that resolution of the issue under the pre-rules law focuses attention on whether the witness holds an executive or managerial capacity with a corporation that is a party opponent in the lawsuit. Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717 (1950); Smith v. Federal Crop Insurance Corp., 214 Miss. 55, 58 So.2d 95 (1952). In Smith, we upheld the trial court's refusal to permit a mere employee of a party opponent to be examined as an adverse witness under Sec. 13-1-53. We pointed out that he was not an executive officer of the corporation so he was not an opposite party. Moreover, the record showed that the employee was not hostile or evasive in answering the questions. 214 Miss. at 64, 58 So.2d at 95. The pre-rule law plainly requires that the witness occupy an executive position within the opposing party corporation in order to qualify as an adverse witness. The trial court was not in error in refusing to declare Cooksley an adverse witness, since his position as a truck driver was clearly not executive. Moreover, Mills' decision to examine Cooksley on direct following the trial court's adverse ruling was a tactical decision that was not necessary, since Mills could have waited to cross-examine Cooksley when Nichols called him as a defendant's witness.

III.

Mills first objects to instruction D-2 which states:

The Court instructs the jury it is negligence for a person to drive under the influence of intoxicating liquors.

The court instructs the jury that it is for you to determine whether James Mills was under the influence of intoxicating liquor in any degree, however slight, and if he was whether the intoxication contributed to the accident.

If you believe that such intoxication, if any, was the sole proximate cause of the accident or combined with any other negligence, if any, on the part of James Mills to be the sole, proximate cause of the accident, then you shall return a verdict for the defendant Hugh Nichols.

Mills points out that none of the occurrence witnesses, including investigating officers, smelled liquor on either Mills or Robinson's breath. Likewise, no liquor or beer bottles were in Mills' car after the accident. Mills contends that, even though he admitted to drinking four 7-oz. "Pony" beers between 7:00 and 11:00 p.m., their effect had long since worn off so that there was no evidence whatsoever that he was under any influence of intoxicating liquor at the time of the accident.

Nichols cites Allen v. Blanks, 384 So.2d 63, (Miss.1980), in which this Court, in considering the propriety of a similar instruction, stated:

It is a fact capable of judicial notice that consumption of even small quantities of alcohol may significantly, albeit "imperceptibly", impair reaction time. Where split seconds are critical, even a very slight impairment of reaction time may spell the difference between accident or no accident, between proximately contributing negligence or the lack of it.

In considering Blanks' argument that the instruction on intoxication was properly refused, we note that the only consequence of giving the instruction is to call the jury's attention to the relevant evidence as to whether the driver was intoxicated and further as to whether the intoxication, if any, proximately contributed to the accident. An instruction of the kind offered by Allen does not, as Blanks suggests, bind the jury to a finding of negligence. It simply indicates the legal effect of findings of intoxication and proximate cause, leaving entirely to the jury the factual question of whether such intoxication and proximate cause appears from the evidence presented.

Id. at 67.

In Allen v. Blanks, the evidence upon which this Court found it proper to submit a jury instruction included four...