Myles ex rel. Sparks v. ENTERGY, 2000-CA-01609-COA.

• Decision Date: 15 October 2002
• Docket Number: No. 2000-CA-01609-COA.,2000-CA-01609-COA.
• Parties: Ellen MYLES, by Gloria Myles SPARKS, Duly Appointed and Acting Guardian of the Person and Estate of Ellen Myles, Appellant, v. ENTERGY MISSISSIPPI, INC. f/k/a Mississippi Power & Light Company, Appellee.
• Court: Mississippi Court of Appeals

828 So.2d 861

Ellen MYLES, by Gloria Myles SPARKS, Duly Appointed and Acting Guardian of the Person and Estate of Ellen Myles, Appellant, v. ENTERGY MISSISSIPPI, INC. f/k/a Mississippi Power & Light Company, Appellee.

No. 2000-CA-01609-COA.

Court of Appeals of Mississippi.

October 15, 2002.

James H. Walker, Cleveland, attorney for appellant.

John H. Dunbar, Oxford, James W. Snider, Jr., Jackson, Sammye Sue Jurney Tharp, Tupelo, attorneys for appellee.

Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.

THOMAS, J., for the court.

¶ 1. Ellen Myles drove into two forty-foot utility poles on an Entergy trailer that was parked during repairs. Myles sued Entergy in negligence and a jury returned a verdict for Entergy. Aggrieved, Myles asserts the following issues:

I. THE JURORS CONCEALED MATERIAL INFORMATION ON VOIR DIRE WHICH AMOUNTS TO JURY MISCONDUCT.

II. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTIONS D-13(A) AND D-14(A).

III. THE JURY VERDICT WAS CONTRARY TO LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE LAY AND MEDICAL EVIDENCE.

IV. THE TRIAL COURT ERRED IN GRANTING MOTION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR STEPHANIE HAWKINS AND ALLOWING HER TO TESTIFY.

V. THE TRIAL COURT COMMITTED ERROR IN DISALLOWING THE PLAINTIFF'S MOTION IN LIMINE DATED MAY 6, 1997, REQUESTING AN ORDER PROHIBITING DEFENDANT FROM INQUIRING OR REFERENCING THAT PLAINTIFF, ELLEN MYLES, WAS DRIVING WITHOUT A VALID MISSISSIPPI DRIVER'S LICENSE.

Finding no error, we affirm.

FACTS

¶ 2. On February 9, 1994, a severe ice storm hit the Mississippi Delta. Bolivar County was one of the hardest hit areas. Widespread loss of electricity occurred throughout the Delta and Entergy Mississippi, Inc., formerly known as Mississippi Power and Light Company, mobilized in order to restore power to the area. This was a very large effort that included many crews working to repair the lines.

¶ 3. One of those Entergy crews included Bert Parsons and Tony Smith. Parsons and Smith were working to restore power to the town of Benoit, Mississippi, which had been without power for over a week. On February 17, Parsons and Smith were repairing utility poles along Highway 448, working their way west. They stopped to repair a broken pole a short distance from the residence of Charles Coglan shortly before 4:00 p.m. They parked their truck in a position off of the pavement so that they could reach the broken pole with the truck's boom. The truck was connected to a trailer which contained utility poles that were to be used to replace broken poles. There is some dispute over whether or not one wheel of the trailer was on the edge of the pavement of Highway 448. The poles on the trailer extended into the west-bound lane of Highway 448. Parsons and Smith placed an orange cone at the end of the poles and a red flag was tied on one pole. They also turned on the flashing lights on the back of the truck and trailer.

¶ 4. About thirty minutes after the Entergy crew began to work on the broken pole, Ellen Myles approached the Entergy crew at approximately 4 p.m. driving her 1978 Ford automobile. She was not wearing her corrective lenses and did not have a valid Mississippi driver's license. Myles drove into the poles protruding into the west-bound lane of the highway. There was no evidence that Myles tried to brake or swerve and no skid marks were found at the scene. The impact sheered the roof off of Myles' car and the vehicle ended up in the yard of Mr. Coglan.

¶ 5. Myles, by and through her guardian, Gloria Myles Sparks Blockett, filed suit against Entergy alleging negligence on July 19, 1996. Trial began on October 25, 1999, and ended November 4, 1999. A jury returned a 9-3 verdict in favor of Entergy. After her post-trial motion was denied, Myles perfected this appeal.

¶ 6. The accident was investigated by Mississippi Highway Patrol Officer Robert Williford. Williford approached the scene from the same direction as Myles. Williford testified at trial that the area where the accident occurred was very straight and flat and that the Entergy truck and trailer could be seen for over a mile before he reached it. Williford also testified that there was no other place for the Entergy crew to park their truck and trailer and still be able to reach the broken pole. Officer Williford testified that in his opinion Myles must have been inattentive because anyone watching the roadway would not have run into the poles.

¶ 7. Williford did not know, however, that Myles was extremely nearsighted and had been driving without her glasses. Myles' vision was 20/800 without her glasses; she sees at twenty feet what a person with 20/20 or normal vision sees at 800 feet. Vision that is 20/40 or better is required to obtain a Mississippi driver's licence. Twenty/two hundred or worse is considered to be legally blind. Accident re-constructionist John Bentley testified at trial that someone with normal vision could have avoided the accident, but Myles could not see the poles until she was too close to avoid them. Bentley testified that Myles had been traveling between forty-three and forty-nine miles per hour before the accident, and that a driver with safe vision would have had plenty of time to react to the poles.

¶ 8. Myles was treated by Dr. James Corbett in Jackson after the accident. Myles told Dr. Corbett that she was not wearing glasses at the time of the accident. She also told him that she did not wear glasses while driving and knew that she had poor eyesight without them. Myles told Dr. Corbett that she had driven down to Jackson for Corbett's examination and treatment, after the accident, without her glasses.

ANALYSIS

I. DID THE JURORS CONCEAL MATERIAL INFORMATION ON

VOIR DIRE WHICH AMOUNTED TO JURY MISCONDUCT?

¶ 9. Absent a showing of fraud, unfairness or prejudice, a departure from the statutory scheme for listing, drawing, summoning and impaneling a jury is not sufficient to overturn a jury verdict. See Avery v. State, 555 So.2d 1039 (Miss.1990),

overruled on other grounds by Mayfield v. State, 612 So.2d 1120 (Miss.1992); Parker v. State, 201 Miss. 579, 29 So.2d 910 (1947). Plaintiffs failed to show that any of the jurors were in fact not qualified. They also failed to show prejudice from any connection with anyone associated with the Defendant or Counsel.

¶ 10. The standard of review in examining the conduct of voir dire is abuse of discretion. Berry v. State, 575 So.2d 1, 9 (Miss.1990) (citing Billiot v. State, 454 So.2d 445, 457 (Miss.1984)). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the defense. Davis v. State, 684 So.2d 643, 652 (Miss.1996). This court shall not disturb a trial courts decision unless it is "clearly wrong." Langston v. State, 791 So.2d 273, 283(¶ 25)(Miss.Ct.App.2001).

¶ 11. There is no firm rule guiding the courts in every given situation of voir dire examination; these matters must be determined on a case by case basis. Odom v. State, 355 So.2d 1381, 1383 (Miss. 1978). Mississippi law provides that a juror is "disqualified" within the meaning of Mississippi Code Annotated § 13-5-67 (1972) where on voir dire examination he or she has withheld information or misrepresented material facts. Myers v. State, 565 So.2d 554, 558 (Miss.1990). Odom, is our seminal case. Odom holds that the failure to respond does not warrant this Court granting an appellant a new trial unless the question propounded to the juror was (1) relevant to the voir dire examination; (2) unambiguous; (3) the juror had substantial knowledge of the information sought to be elicited and (4) prejudice in selecting the jury could reasonably be inferred from the juror's failure to respond. Odom, 355 So.2d at 1383.

¶ 12. Myles contends that three jurors, Jacqueline Evans, Allean Christian, and Elaine Taylor, concealed material information on voir dire which denied Myles the right of a fair and impartial jury. To be granted a new trial based on juror concealment of material information, a defendant must show that the requirements set out in Odom are all satisfied. With respect to Jacqueline Evans and Allean Christian, Myles failed to show that either of the two had any knowledge whatsoever regarding Mr. Henry Atkins and his relationship with anyone in there families, thus failing to meet the burden of the third part of the Odom test. Elaine Taylor's concealment is irrelevant as she was excused from the jury before deliberations. Atkins is a probation officer who provided information or assistance during voir dire. Myles argues that the jurors could and would be swayed to take a position with the defense from the start, feeling it might work out better for their family later, if they had a member of their family under his supervision. In order to have thoughts like these, the members of the jury would first have to have knowledge of such. They did not. This issue has no merit.

II. DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTIONS D-13(A) AND D-14(A)?

¶ 13. The assignments of error dealing with the trial court's granting of jury instructions D-13(A) and D-14(A) are without merit. We would note at the outset the general rule that jury instructions must be considered as a whole. We are not to confine our consideration to one particular instruction in isolation. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1157 (Miss.1992). If, based upon a review of the instructions as a whole, the Court can conclude that the jury has been reasonably, though not perfectly, apprized of the applicable law, there can be no reversible error based upon an isolated defect in a particular instruction. Id.

¶ 14. In reviewing the granting or refusal of jury instructions, this Court has said that if the instructions actually given fairly announce the law of the case and create no injustice when read as a whole, no reversible error will be found. Fielder v....