Reese v. Summers, 2000-CA-00697-SCT.
| Decision Date | 30 August 2001 |
| Docket Number | No. 2000-CA-00697-SCT.,2000-CA-00697-SCT. |
| Parties | Edward Joseph REESE, Jr. and Farrell Thompson v. John SUMMERS d/b/a John Summers Trucking and Brian Mallory. |
| Court | Mississippi Supreme Court |
Wayne E. Ferrell, Jr., Andre Francis Ducote, Jackson, for Appellants.
Joe Crawford Gewin, Biloxi, for Appellee.
Before BANKS, P.J., WALLER and COBB, JJ.
COBB, Justice, for the Court:
¶ 1. On January 3, 1995, a pickup truck occupied by driver Farrell Thompson and passenger Edward Reese was struck from behind by a Mack truck driven by Brian Mallory, at the intersection of Jamestown Road and Highway 63 in Moss Point, Mississippi. Thompson and Reese later filed suit in Jackson County Circuit Court against Mallory's employer, John Summers, in his individual capacity and doing business as John Summers Trucking, and against Mallory. The suit alleged that Mallory, while in the scope of his employment, negligently caused the accident.1 At the conclusion of a four-day trial, the jury found for Thompson in the amount of $29,800 and for Reese in the amount of $47,200. However, the jury also found that Thompson contributed to the accident and was 30% negligent. The circuit court subsequently reduced the amount of damages by that percentage. Following the denial of their post-trial motions, Thompson and Reese now appeal, raising the following issues which we have edited slightly:
Finding no error in the trial court's judgment, we affirm.
FACTS
¶ 2. While there is no dispute that the Mack truck driven by Mallory struck Thompson's pickup from behind, the parties are sharply divided on exactly how the accident occurred. According to Thompson and Reese, at the time of the accident they were driving down Highway 63 in Moss Point looking for an auto parts store. As they approached the intersection of Highway 63 and Jamestown Road, the traffic light turned red, and Thompson, the driver, applied his brakes to slow down. Before Thompson came to a complete stop, however, the light changed to green, and he began accelerating again. As Thompson's pickup entered the intersection, it was struck from behind by Mallory.
¶ 3. Mallory and Summers dispute that theory of how the accident occurred. According to Mallory's testimony and that of his companion Sean Page, Thompson's brake lights were still on at the time of the accident even though the light was green, thereby indicating that Thompson was not accelerating but coming to a stop. Mallory and Summers theorize that Thompson was actually on his way back to the hotel where he and Reese were staying which was located on the west side of Highway 63 at the intersection where the accident occurred. However, Thompson failed to get into the left hand turn lane and instead stopped in the middle of the intersection where the accident occurred.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED WHEN IT GRANTED JURY INSTRUCTION NUMBER 10, WHICH IS BASED UPON FACTS NOT IN EVIDENCE?
¶ 4. 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. Magnolia Beverage Co., 757 So.2d 925, 929 (Miss.1999)(collecting authorities); see also Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990)
(The "overarching concern is that the jury was fairly instructed and that each party's proof-grounded theory of the case was placed before it"). Both parties have the right to embody their theories of the case in the jury instructions provided there is testimony to support it, but only "if made conditional upon the jury's finding that such facts existed." Murphy v. Burney, 27 So.2d 773, 774 (Miss.1946)
¶ 5. Thompson and Reese object to the inclusion of Jury Instruction 10, which reads in its entirety as follows:
The instructions also included Special Interrogatory No. 1, which reads in relevant part as follows:
¶ 6. Thompson and Reese concede that Jury Instruction 10 does fairly state the law, but they contend that it was unsupported by any evidence showing that their vehicle was stopped in the intersection instead of simply at the intersection. Therefore, they reason, the instruction was erroneously given and constitutes reversible error.
¶ 7. This Court disagrees. The testimony offered by Mallory and Page clearly supports the defense theory that Thompson's pickup was within the intersection when the accident occurred, or at least creates a fact question as to that issue. In any case, the interrogatory quoted above (to which Thompson and Reese did not object at trial) permitted the jury to find that Thompson was contributorily negligent even without finding that his pickup was stopped within the intersection. The instructions as a whole therefore properly announce the law in Mississippi with regard to motor vehicles and traffic as well as to contributory negligence, and the granting of Instruction 10 was not error, even if Thompson's vehicle was not within the intersection when it was struck.
II. WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT PLAINTIFFS' MOTION FOR PEREMPTORY INSTRUCTION, JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL AS TO APPORTIONMENT OF FAULT DUE TO THE VERDICT BEING CONTRARY TO THE WEIGHT OF THE EVIDENCE?
¶ 8. This Court's standard of review for the denial of judgments notwithstanding the verdict, peremptory instructions, and directed verdicts is as follows:
[T]his Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.
Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997).
¶ 9. Thompson and Reese argue that a peremptory instruction was appropriate in this case because Mallory was negligent as a matter of law. As they correctly point out, when two vehicles are traveling in the same direction, the duty of avoiding collision generally rests with the driver of the following vehicle, and that driver is per se negligent if he runs into the leading vehicle absent any emergency or unusual conditions. See Thomas v. McDonald, 667 So.2d 594, 596 (Miss.1995)
( that whether particular circumstances rise to level of emergency or unusual is jury question).
¶ 10. Thompson and Reese then assert that no unusual or emergency conditions existed at the time of the accident. Needless to say, this assertion blithely ignores the testimony of Mallory and his companion Sean Page that Thompson had unexpectedly stopped in front of them. In fact, the disputed questions of whether Thompson had stopped unexpectedly or unnecessarily and whether such conduct might have constituted negligence were virtually the only disputed issues at trial other than damages. In this Court's opinion, both of those questions were properly considered and resolved by the jury, and the evidence offered by Thompson and Reese that Thompson had not stopped unexpectedly was not "so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict." Steele, 697 So.2d at 376. This issue is also without merit.
III. WHETHER...
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