Star Freight, Inc. v. Sheffield

CourtSupreme Court of Alabama
Writing for the CourtHORNSBY
Citation587 So.2d 946
Decision Date06 September 1991
PartiesSTAR FREIGHT, INC. v. Essie Lee SHEFFIELD, as personal representative of the Estate of Willard Burney, deceased. 1900061.

John F. Fox, Jr. of Taylor & Taylor, Philadelphia, Pa., Billy L. Church of Church & Trussell and Erskine R. Funderburg of Church, Trussell & Funderburg, P.C., Pell City, for appellant.

R. Ben Hogan III and Richard D. Stratton of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellee.

W. Kirk Davenport and Richard L. Wyatt of Wallace, Wyatt & Davenport, Birmingham for appellee/intervenor Liberty Mut. Ins. Co.

HORNSBY, Chief Justice.

This wrongful death case arises from a motor vehicle accident that occurred on July 28, 1986. Essie Lee Sheffield, as the personal representative of the estate of Willard Burney, deceased, sued Star Freight, Inc., James Cook, Tommy Thompson, Linn B. Isbell, Southwire Machinery Division, Randy M. Chandler, and Sutherlin Leasing Company, alleging that the defendants had been negligent in operating their respective vehicles and that their negligence had caused the accident that killed Burney.

Defendants Sutherlin Leasing Company, Southwire Machinery Division, and Randy M. Chandler were dismissed. The court entered a default judgment against Linn B. Isbell. Liberty Mutual Insurance Company (Liberty Mutual), the uninsured/underinsured motorist insurer for Willard Burney, filed a motion for limited intervention, asserting its subrogation rights to any judgment received by Sheffield. 1 Prior to the trial of this case, Sheffield agreed to dismiss James Cook and Tommy Thompson, who were the agents of Star Freight at the time of the accident. Consequently, the only remaining defendant at the time of trial was Star Freight.

The jury returned a $200,000 verdict for the plaintiff Sheffield. Star Freight filed a motion for a judgment notwithstanding the verdict and a motion for a new trial. The trial court failed to dispose of these motions within 90 days, and this failure constituted a denial of the motions under A.R.Civ.P. 59.1. Star Freight appeals.


On July 28, 1986, Willard Burney was killed in a tractor-trailer collision on Interstate Highway 20 in St. Clair County, Alabama. Burney, who was driving the "Bulldog" tractor-trailer truck involved in this accident, had been driving in a group with two other trucks for 10 or 11 miles prior to the accident. One of those trucks was owned by Southwire Machinery and was operated by Randy Chandler. That truck was travelling in the left eastbound lane of I-20. Before the collision, the Southwire truck was running alongside Burney's vehicle. The other truck was owned by Star Freight and was operated by James Cook. The evidence presented was unclear as to which lane the Star Freight truck was travelling in. Cook and an eyewitness testified that the Star Freight truck was travelling in the left eastbound lane of I-20 behind the Southwire truck. The plaintiff's expert witness testified that in his opinion the Star Freight truck was travelling in the right lane behind the Bulldog truck that Burney was driving.

As these three vehicles were travelling east on I-20, another vehicle, operated by Linn Isbell, entered the highway from the right shoulder of I-20. Apparently, Isbell was backing her vehicle on the emergency strip along the right side of the highway, lost control, and entered the highway. Defendant Star Freight contends that Isbell's vehicle caused the Bulldog truck driven by Burney to "jackknife" into the left lane directly in front of its truck. It further contends that the Southwire truck was knocked from the highway by a combination of the Bulldog truck's "jackknifing" into the left lane and the Isbell vehicle's crossing the highway. Star Freight stated that its truck collided with the left side of the "Bulldog" truck and that after the impact, its truck veered to the left into the median of the highway, where it overturned.

Based upon the opinion of John Sims, a mechanical engineer who testified as the plaintiff's expert, Sheffield contends that the Star Freight truck was "tailgating" the Bulldog truck, i.e., was following it too closely in the right lane. In reaching his opinion, Sims examined photographs and a videotape of the scene and considered the nature of the damage to the vehicles involved. He further examined a diagram drawn by Officer Jonathan Bryson, who was called to the scene of the accident; the deposition of Cook; and the Star Freight truck itself. Sims testified that he had considered the location and length of the various gouges and skid marks, the final resting places of the vehicles, and the damage to the vehicles to determine the sequence of events. Sims testified that in his opinion the Isbell vehicle passed in front of the Bulldog truck and was struck by the Southwire truck in the left eastbound lane. He also testified that the Star Freight truck collided with the rear of the Bulldog truck as that truck was jackknifing to a stop in the right eastbound lane. He further testified that the Star Freight truck came up the side of the "Bulldog" truck, which was jackknifing, and that the Star Freight truck struck the cab of the Bulldog truck, thus causing the driver of the Bulldog truck, Burney, to be ejected from his vehicle and be killed.

After Sims testified, the plaintiff rested, and the defendant indicated that it would not present any witnesses, and it also rested. The defendant moved for a directed verdict upon the basis that the evidence presented to the jury failed to establish any act of negligence on the part of Star Freight's agent that proximately caused or contributed to the death of Burney. Counsel for Star Freight stated:

"The only evidence [the plaintiff has presented] of any contact with the [Bulldog] truck driven by Mr. Burney is that ... evidence of Mr. Sims, their expert, [who] says it [the Star Freight truck] was in [the] right-hand lane, but that does [not] establish anything. It does [not] say at what point in [this] sequence of events [what] transpired.... From all that appears, the Burney truck moved directly in front of him [the Star Freight truck], assuming he [the Star Freight driver] was in the left-hand lane. That does [not] establish any act of omission or negligence on behalf of our driver. It is a total failure of proof, and we are entitled to a directed verdict."

The trial court denied the motion, and the case was submitted to the jury, which subsequently returned a $200,000 verdict for the plaintiff. Subsequently, the trial court denied Star Freight's motion for a judgment notwithstanding the verdict and its motion for a new trial.


Star Freight argues: (1) that the trial court erred in overruling its objection to John Sims's testifying as to his opinion regarding the proximate cause of the accident; (2) that the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and new trial because of what it calls the lack of evidence supporting the plaintiff's contentions; and (3) that the judgment of $200,000 should be reduced because of Sheffield's receipt of $60,000 from Burney's uninsured/underinsured motorist insurance carrier, Liberty Mutual.

Sheffield contends: (1) that the trial court did not err by allowing her expert, John Sims, to testify, because, she says Star Freight failed to preserve the issue; the objection to the expert's opinions went to the weight of the testimony and not its admissibility; and there were substantial facts supporting the expert's opinions; (2) that the jury's verdict was not against the weight of the evidence so as to be palpably wrong and manifestly unjust; and (3) that the trial court did not err in denying Star Freight's motion to remit the verdict to $140,000 because of the plaintiff's receipt of $60,000 from Liberty Mutual, which was subrogated to a portion of the amount awarded to the plaintiff. 2


1. The Expert Witness's Testimony

In Alabama Power Co. v. Robinson, 447 So.2d 148, 152-53 (Ala.1983), this Court stated:

"An expert witness may give his opinion based on his own knowledge of the facts, stating those facts and then his opinion, or he may give an opinion based upon a hypothetical question as to facts already in evidence or evidence to be subsequently admitted. Where personal observation is lacking, however, an expert witness cannot be permitted to give his expert opinion until facts upon which his opinion is to be based have been properly hypothesized before him.


"We have opined that '[e]xperts may be permitted to state facts known to them because of their expert knowledge but should not be allowed to substitute opinion for fact, although they can express an opinion on established or assumed facts.' "

(Citations omitted.) This Court in Macon County Comm'n v. Sanders, 555 So.2d 1054, 1058 (Ala.1990), also stated:

"The defendants argue that the trial judge improperly allowed Jack Chambliss, a traffic engineer testifying for the plaintiff, to give his opinion about the proximate cause of the accident. Experts may testify as to the ultimate issue in a case. A determination of whether a witness qualifies as an expert rests largely in the discretion of the trial judge, and that determination will be reversed only if found to be palpably wrong. An expert is defined as 'anyone whose opportunity or means of knowledge in a specialized art or science is better than that of the average juror or witness,' such that his testimony will aid the jury. Through the extensive questioning of Chambliss, it was shown that he possessed sufficient knowledge, training, and experience to qualify as an expert and to testify as to the cause of the accident, and thus it was not an abuse of discretion to allow him to testify."

In this case, John Sims was qualified as an expert, but in its objection the defendant's counsel stated:

"MR. CHURCH: Judge, may I renew my objection?...

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