Tillis Trucking Co., Inc. v. Moses

• Citation: 748 So.2d 874
• Parties: TILLIS TRUCKING COMPANY, INC. v. Malachi MOSES et al. Willie Ray Pride v. Malachi Moses et al.
• Decision Date: 12 November 1999
• Court: Supreme Court of Alabama

748 So.2d 874

TILLIS TRUCKING COMPANY, INC. v. Malachi MOSES et al.

Willie Ray Pride v. Malachi Moses et al.

1915.

Supreme Court of Alabama.

November 12, 1999.

Charles E. Sharp, Turner B. Williams, J. Clinton Pittman, Theresa S. Jones, Kevin T. Shires, and Joel A. Williams of Sadler, Sullivan, Sharp & Van Tassel, P.C., Birmingham; and Richard H. Brogden, Ozark, for appellant Tillis Trucking Company, Inc.

David B. Byrne, Jr., of Robison & Belser, Montgomery, for appellant Willie Ray Pride.

J. Keith Givens and Joseph D. Lane of Cherry, Givens, Peters & Lockett, Dothan, for appellees.

C.C. Torbert, Jr., Peter S. Fruin, and Stephen Foster Black of Maynard, Cooper & Gale, P.C., Montgomery, for amicus curiae Alabama Forestry Ass'n.

On Application for Rehearing

PER CURIAM.

The original opinion of January 8, 1999, is withdrawn and the following opinion is substituted therefor.

Tillis Trucking Company and Willie Ray Pride appeal from a judgment on a jury verdict awarding $7,000,000 to Malachi Moses, Josephine Horton, and Jimmie Horton, as personal representatives of the estate of Cynthia Diane Moses, deceased.¹ The jury found that Mr. Pride, acting in the line and scope of his employment with Tillis Trucking, had wrongfully caused the death of Mrs. Moses when he drove a truck loaded with logs onto the highway along which Mrs. Moses was travelling and caused her to drive her vehicle into the truck. In separate appeals, Tillis Trucking and Mr. Pride argue that the trial court committed various errors during the trial, such as improperly admitting certain evidence over objection and overruling objections to improper arguments of counsel; that the verdict should be reduced, under applicable remittitur standards; and that the long-standing construction of the Alabama Wrongful Death Act, § 6-5-410, Ala. Code 1975, as providing only for punitive damages is unconstitutional.

Because the evidence regarding how the collision occurred is pertinent both to the issues about the conduct of the trial and to the issue of excessiveness of the award, we set forth the following rendition of the facts as suggested by the evidence presented at trial.

There were no known surviving witnesses to the collision other than the driver of the vehicle with which Mrs. Moses's vehicle collided. Mr. Pride denies that his truck was involved in the collision. However, the evidence suggested that he turned left onto a highway, going up a hill, in the pre-dawn darkness, with two of the lights on the left side of his trailer not working; that before he reached enough speed to pull the trailer out of the lane of traffic he was crossing, Mrs. Moses came down the hill and could not see his trailer because of headlight glare from the truck and because the one working light on the trailer would have been obscured by the frame of the trailer; that the left rear wheels of the trailer actually rolled over the front of her vehicle after it had collided with the side of the trailer; and that rather than stopping to give assistance to Mrs. Moses, Mr. Pride kept driving. Mrs. Moses died shortly after the accident, from injuries she suffered in it. Because the defendants continue to dispute that the collision happened in this manner, we shall set forth the evidence in some detail.

Approximately 5:30 a.m. on December 14, 1994, a passing motorist on County Road 50 in Dale County found Mrs. Moses dead in her motor vehicle, a 1988 Suzuki Samurai, which had been severely damaged and was resting partly in the eastbound lane of the road and partly on the shoulder of the road. The Suzuki had obviously been involved in a vehicular collision, but the other vehicle had left the scene. Tree bark was mixed with the debris from the vehicle and was found inside it. There were muddy tracks from the tires of tractor-trailer trucks that had entered the county road near the point of impact. The tracks came from a dirt road on the south side of the county road. Some of them turned west, crossing Mrs. Moses's lane of travel, and some turned east. The first officer on the scene testified that the tracks turning left (west) were "extremely fresh" and the ones turning right (east) were not as fresh, that they had "been taken away by traffic."

The dirt road from which the tracks entered the county road led to a logging site operated by Tillis Land and Timber Company.² Four months before this collision occurred, Lowell A. Tillis, Sr., the owner of Tillis Land and Timber, had incorporated Tillis Trucking Company, whose only assets were several logging trucks, including the one that Mr. Pride was driving on the morning of the accident in question. The evidence showed that drivers leaving the logging site with a full load could either turn left and proceed west on County Road 50 or turn right and proceed east. The trucks could reach their destination sooner by taking the westward route. The defendants asserted, however, that the drivers always turned east. An employee of Tillis Trucking testified that, on the day before he gave his testimony, he had made a left turn at the intersection with County Road 50 with a fully loaded truck, and that in doing so he could not reach a speed above five miles per hour, because, he said, at that point County Road 50 ran up a steep hill to the west. Mr. Pride testified that it was dangerous to make the left turn because doing so caused a truck to block both lanes, and he said that he did not do so. On the morning of Mrs. Moses's death, Mr. Pride drove a tractor with an empty trailer to the logging site about 4:45 a.m., to drop off the empty trailer and pick up a loaded one. He attached trailer number 917 to his tractor. At the back of the trailer is a bright light called a "pole light." Mr. Pride did not turn on the pole light on trailer 917 before he drove away, because it was too dark to see to connect the wires to give it electrical power. Mr. Pride said that he stopped at Dykes Store, a few miles eastward on County Road 50, and there connected the wires for the pole light and tightened down the load of logs.

The defendants contend that Mr. Pride left between 5:00 and 5:10; that Mrs. Moses did not leave her house until 5:10; and, therefore, that she arrived at the scene after Mr. Pride had passed it. However, the evidence regarding the time of these events was approximate. Mr. Pride testified that it took an hour and a half to an hour and 45 minutes to reach the paper mill where he delivered the logs, near Graceville, Florida. He contended that he arrived there at 6:40. There was evidence, however, indicating that the trip could be made in an hour and 15 minutes, and it is not clear exactly when he arrived; he weighed in at 6:53. The plaintiffs showed that, according to the weigh-in and weighout times, he spent more time at the mill than the other drivers did that morning. The plaintiffs assert that the extra time gave him the opportunity to clean from his trailer the visible evidence of the collision.

As further evidence that the accident must have occurred after Mr. Pride had driven away, the defendants cite the evidence indicating that, when paramedics arrived at 5:49 Mrs. Moses's body was still warm. The plaintiffs argue that she had survived until shortly before her body was discovered at 5:30, or had survived perhaps even longer, although the person who discovered her body at 5:30 could not feel a pulse. They point out that she had curled into a fetal position on the seat of the Suzuki and had pulled her jacket around her shoulders.

The defendants argue that the circuit court erred in admitting photographs showing Mrs. Moses's body in the Suzuki and showing it after it had been removed, and in overruling objections to testimony by the paramedics. They cite Bagley v. Grime, 283 Ala. 688, 692, 220 So.2d 876, 880 (1969), in which the Court stated, "We cannot see that a photograph of this crumpled body lying in a distorted position could shed any light on the issues of this case." In contrast, however, the position of Mrs. Moses's body on the front seat of her vehicle was relevant to the argument that she had died some time after the collision. The photographs support the plaintiffs' argument that she did not die instantly in the collision and that, therefore, the collision could have occurred around 5:10 rather than just before 5:30, as the defendants suggested.

Tillis Trucking had three drivers hauling loads from this logging site. Three trailers had been loaded the previous day for early morning pickup. Mr. Pride arrived first, and the other two drivers arrived after the police officers and others had arrived at the accident scene. There was no evidence to indicate that any other truck left the logging site in the time between Mr. Pride's exit and the supposedly later time of Mrs. Moses's fatal collision. It is unclear whether the defendants take the position that Mrs. Moses's Suzuki collided with an unknown truck that might have been leaving the area logged by Tillis Land and Timber Company. They do imply that she might have crossed the center line and collided with a westbound truck unrelated to Tillis Trucking. However, the evidence suggesting that she crossed the center line is scanty or nonexistent. For example, a "beauty ring" (a type of wheel cover) and the antenna from the Suzuki were found across the center line, in the westbound lane. All the other debris was found in the eastbound lane. The defendants argue that oil from the Suzuki was found on or across the center line, but the plaintiffs presented evidence indicating that the oil the defendants refer to was not there until after the Suzuki was towed away. The first police officer on the scene testified that there were no fluids in the westbound lane when he arrived, and the first state trooper to arrive also said there were no fluids across the center line.

The strongest evidence indicating that it was Mr. Pride's trailer that Mrs. Moses's Suzuki struck came from...