Roberts v. Grafe Auto Co., Inc.

• Decision Date: 26 June 1997
• Docket Number: No. 94-CA-00703-SCT,94-CA-00703-SCT
• Parties: Phyllis ROBERTS v. GRAFE AUTO COMPANY, INC., Rene Clark and Sherrie Clark.
• Court: Mississippi Supreme Court

Page 1093

701 So.2d 1093

Phyllis ROBERTS v. GRAFE AUTO COMPANY, INC., Rene Clark and Sherrie Clark.

No. 94-CA-00703-SCT.

Supreme Court of Mississippi.

June 26, 1997.

Wayne E. Ferrell, Jr., Jackson, Margaret P. Ellis, Kitchens & Ellis, Pascagoula, for Appellant.

W. Mark Edwards, W. Lee Watt, Brown Watt & Buchanan, Pascagoula, James N. Compton, Compton Crowell & Hewitt, Biloxi, for Appellee.

Before PRATHER, P.J., and JAMES L. ROBERTS, Jr., and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice for the Court.

STATEMENT OF THE CASE

This is an appeal from the Circuit Court of Jackson County, Mississippi, involving a one car accident on Interstate 10, east of the Mobile, Alabama. Phyllis Roberts was a passenger in a 1976 Plymouth Volare driven by Rene' Clark. Appellant Roberts filed suit against appellee's Grafe Auto Company, Inc., Rene' Clark, Sherrie Clark and Goodyear Rubber and Tire Co. Prior to trial, Roberts entered into a settlement agreement with Goodyear Tire and Rubber Co. Following the presentation of evidence, the jury returned a verdict for the remaining defendants. Some question arose as to whether Roberts timely filed an appeal. However, this Court in Roberts v. Grafe Auto Co., Inc., 653 So.2d 250 (Miss.1994), determined that Roberts' appeal was timely filed and reinstated the appellate procedure. Subsequently, the trial court denied Roberts' motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. Aggrieved by the disposition below, Roberts raises the following assignments of error:

I. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION IN LIMINE PROHIBITING APPELLEE FROM MENTIONING APPELLANT'S PRETRIAL SETTLEMENT WITH FORMER DEFENDANT,

GOODYEAR TIRE & RUBBER, INC., AND FURTHER, DENYING APPELLANT'S MOTION FOR MISTRIAL BASED UPON APPELLEE'S REFERENCES OF THE PRETRIAL SETTLEMENT IN FRONT OF THE JURY?

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING A POLICE OFFICER, NOT QUALIFIED AS AN EXPERT, TO GIVE OPINION TESTIMONY INVOLVING THE CAUSE OF THE ACCIDENT?

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE TESTIMONY REGARDING THE APPELLANT'S FAILURE TO WEAR A SEATBELT?

IV. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND A NEW TRIAL ON DAMAGES ONLY OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL?

STATEMENT OF THE FACTS

On June 6, 1986, Phyllis Roberts and Renee' Clark graduated from Moss Point High School. Roberts spent graduation night at Rene's home, but because of the excitement surrounding graduation and their planned vacation to Panama City, Florida, Roberts slept only two (2) hours and Rene' did not sleep. After meeting two other friends and a chaperon, Janis Broadus, a teacher at Moss point High School, the group left for Florida in three automobiles. The two friends were in the lead car, Rene' followed in her car, in which Roberts rode as a passenger and Janis Broadus followed in the third car. Roberts contends that Rene' became sleepy during the trip, because of Rene's lack of rest, and that Rene' began to steer the car in a swaying motion, as the girls sang, in an effort to pull Rene' out of her drowsy episode. Roberts stated while Rene' was driving the car in a swaying fashion, they heard a noise and soon after Rene' lost control of the car. Broadus testified she saw Rene's car swaying, and that after the car was significantly swaying she saw a black object fly up from underneath the car. One of the tires had lost its tread, but remained inflated. The car hit a retaining wall on a bridge and later came to rest. Mobile Police Officer Steve Bitowf was called to the accident scene to investigate the accident and file an accident report.

Roberts suffered a broken leg requiring a pin, developed fat embolism syndrome, hematosis, cuts, bruises and was hospitalized for eleven days. Roberts filed suit against appellee's Grafe Auto Company, Inc., Rene' Clark, Sherrie Clark and Goodyear Rubber and Tire Co. In 1983, Grafe Auto Co. sold the 1976 Plymouth Volare to Sherrie Clark, father of Rene'. At the time of the accident, Rene' had owned the Volare for approximately three (3) years. Rene' testified that Sherrie had taken responsibility for maintenance of the car's tires which were manufactured by Goodyear.

Approximately one week prior to trial, Roberts and Goodyear entered into a settlement agreement. Thereafter, Dr. Christopher Shapley, who had been retained as an expert witness for Goodyear, was retained by Roberts to serve as expert witness and testify as to the cause of the accident and the loss of tire tread. On November 19, 1991, the trial began and lasted three days. Prior to the start of trial, Roberts' counsel, asked the trial judge to grant a motion in limine prohibiting the defendants from informing the jury of the settlement between Roberts and Goodyear. Defense counsel stated that the disclosure was necessary because it went to the heart of their defense. The trial court denied the motion and stated that he felt the defendants reason for the disclosure was legitimate.

During opening statement, the Clarks' attorney, James N. Compton stated:

... This chameleon case started as a case about a tire that was defective, a tire that was manufactured by Goodyear, a tire that was bad, and a suit that was based on the tire that was bad and was manufactured by Goodyear. And just in the last week it suddenly, it has changed now into the car seller's fault and the father of the driver's fault and the driver's fault and all these other things that have suddenly come about that have changed the direction of where this case was and where it was going.

Roberts' attorney immediately asked for a mistrial, which the trial court denied.

Further attention was drawn to Goodyear during cross-examination of Roberts, Compton asked whether she had signed the answers to interrogatories that "were propounded by the defendant Goodyear." During cross-examination of Dr. Shapley, Compton asked if he had previously been employed as an expert by Goodyear. And during closing argument, Compton stated:

... Because what happened is, eventually the colors of what happened started to change, as I told you about the chameleon in this thing. And what was an accident that the sole cause of was an equipment failure became an opportunity to re-create a money recovery on, to profit from. As I've often said that expert witnesses, if you've got enough money, you can hire someone from somewhere who will testify to just about everything ...

Then Dr. Shapley. But the amazing thing about Dr. Shapley is, is last Friday he was working for Goodyear and Goodyear's lawyer, and then he switched over and went from the party that being sued and started working for the lawyers that were suing the very party that he was working against before. And you've heard the term "hired guns," but I have never seen a gun that switched sides or switched holsters as fast as Dr. Shapley did so he could pick up that extra two or three days at twelve hundred and fifty dollars ($1,250) a day to come on down here.

Roberts contends the verdict must be reversed because defense counsel informed the jury that Roberts was not wearing a seat belt at the time of the accident. On cross-examination of Roberts, defense counsel asked, "As I understand, you did not have your seat belt on?" Roberts responded, "No, sir." Counsel for Roberts immediately objected, however, the trial court overruled the objection and instructed defense counsel to not mention the Roberts' non-use of the seat belt again. Thereafter, defense counsel followed the trial court's directive and did not mention the non-use of seat belt again.

At trial, defense counsel intended to question Officer Bitowf regarding the cause of the accident and the accident report he had prepared. Before Officer Bitowf was called as a witness, Roberts' counsel asked the police officer to be qualified as an expert, because Bitowf was anticipated to give an opinion regarding the tire and Bitowf had previously stated he did not think he is qualified as an expert. The trial court responded, "I don't--I'm just going to get the witness. I don't know what he's going to ask, or who he is."

Officer Bitowf was called to testify, he was a hazardous material investigator assigned to the traffic services unit of the Mobile Police Department. Bitowf testified he had been employed by the Mobile Police Department for eighteen (18) years. His job duties included hazardous material enforcement, working traffic accidents and traffic citations. Officer Bitowf testified he arrived and investigated the traffic accident involving Rene' Clark and Roberts. He stated he completed a routine accident report based upon "... the way I see the facts and the way it appears to me, information off of the vehicles, and weather conditions. Just a general, typical police report, down to the accuracy of what I saw happen." Approximately one hundred (100) yards behind the automobile Bitowf found a long strip of passenger car tire tread. Bitowf arrived on the scene before the ambulance and found the driver, Rene' Clark, and passenger, Roberts. Bitowf testified that on his accident report he indicated the automobile had collided with a retaining wall. Next, defense counsel asked Bitowf if he indicated on the accident report the prime contributing circumstances of the accident. Plaintiff's counsel objected and asked the trial court to allow voir dire of the witness before the jury was exposed to opinion testimony. The trial court sustained the objection and stated Bitowf could testify as to what he saw at the accident scene. Defense counsel again asked Officer Bitowf if he indicated on the accident report the prime contributing circumstance of the accident. Roberts' counsel again objected and was overruled by the trial court. Officer Bitowf then testified he had reported defective equipment as the prime contributing circumstance...