White v. Yellow Freight System, Inc., No. 2000-CA-00995-SCT

• Decision Date: 16 December 2004
• Docket Number: No. 2000-CA-00995-SCT, No. 2001-CA-00166-SCT.
• Citation: 905 So.2d 506
• Parties: Billie K. WHITE and Daphne E. White, a Minor, By and Through her Natural Mother and Next Friend, Judy White v. YELLOW FREIGHT SYSTEM, INC. and James D. Parish In re: Patricia Alexander Killgore and Roland C. Lewis, Jr.
• Court: Mississippi Supreme Court

905 So.2d 506

Billie K. WHITE and Daphne E. White, a Minor, By and Through her Natural Mother and Next Friend, Judy White v. YELLOW FREIGHT SYSTEM, INC. and James D. Parish

In re: Patricia Alexander Killgore and Roland C. Lewis, Jr.

Nos. 2000-CA-00995-SCT, 2001-CA-00166-SCT.

Supreme Court of Mississippi.

December 16, 2004.

Thomas W. Brock, William S. Guy, McComb, Patricia Alexander Killgore, Madison, Peter K. Smith, Quitman, attorneys for appellants.

Barry Stuart Zirulnik, Jackson, Martin Rose, Leane Capps Medford, Dallas, TX, Michael Chadwick Smith, Hattiesburg, John Benton Clark, Jackson, attorneys for appellees.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. The heirs of Billy R. White (the Whites) appeal from a Pike County Circuit Court judgment in favor of Yellow Freight System, Inc. and two of its drivers. The Whites sued Yellow Freight, James D. Parish and William T. Hudson¹, Jr.,(collectively Yellow Freight) in a wrongful death action, alleging that a Yellow Freight truck negligently operated by its driver struck and killed Billy R. White. The circuit court first tried the case in August, 1998, and the jury returned a general verdict for the Whites in the sum of $500,000. Yellow Freight subsequently filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court granted a new trial, finding that the verdict was against the overwhelming weight of the evidence. The second trial took place in April, 2000, and the jury found for Yellow Freight. The Whites appeal from that decision, alleging that the trial court erred (1) by setting aside the August 1998 jury verdict and granting Yellow Freight's motion for a new trial; (2) by having improper ex parte communications with the jury; and (3) by not recusing himself after having ex parte communications with the jury. After careful review of the record, we conclude that the trial court did not abuse its discretion, and there is no reversible error.

FACTS

¶ 2. On the evening of July 3, 1989, Yellow Freight drivers Parish and Hudson were driving Yellow Freight trucks from Texas to Jackson, Mississippi on Interstate 55. Parish drove the lead truck, pulling a double trailer. As they approached the Welcome Center in Pike County, Mississippi, Parish ran over what he said was a white object lying close to the road centerline. The two Yellow Freight drivers stopped and Hudson went back to inspect the object, but it was so badly damaged he could not determine what it was. The drivers then decided to travel to the Fernwood Truck Stop, and they called the authorities from there.

¶ 3. On the same evening, Tony Laird and his wife were traveling north on Interstate 55 in Pike County. Laird's wife noticed what she thought to be a body on the side of the road. After turning around to pass the body a second time, the Lairds went to the Welcome Center and called the authorities.

¶ 4. Officer Albert Johnson of the Mississippi Department of Public Safety responded and began an investigation, taking measurements and preparing an accident report. After examining the scene, Officer Johnson went to the Fernwood Truck Stop to interview Parish and Hudson and examine their vehicles. Parish told Officer Johnson that he had hit an object or some type of animal. The object in question was later determined to be the body of Billy R. White.

ANALYSIS

¶ 5. On appeal, the Whites argue that the jury's verdict should have been allowed to stand, and that the trial judge should have granted neither a new trial nor a judgment notwithstanding the verdict. Yellow Freight asserts that the JNOV should have been granted in the first trial, because the trial court found, in essence, that the evidence was legally insufficient to support the verdict, although its opinion spoke in terms of the weight of the evidence. Even though the jury found for Yellow Freight in the second trial, and the ultimate outcome is the same, in our view there is a need to briefly address the trial court decision.

1. Motion for New Trial or alternatively for Judgment Notwithstanding the Verdict

¶ 6. A motion for a JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994). It asks the court to hold, as a matter of law, that the verdict may not stand. Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss.1989) (citing Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984)). When a motion for JNOV is made, the trial court must consider all of the evidence — not just evidence which supports the non-movant's case — in the light most favorable to the party opposed to the motion. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict, granting the motion is required. Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 54 (Miss.2004). Whether the trial judge grants or denies a motion for JNOV in no way affects and little informs the trial judge regarding the disposition of a motion for new trial. Jesco, Inc. v. Whitehead, 451 So.2d 706, 714 (Miss.1984) (Robertson, J., concurring).

¶ 7. A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict. Bailey, 878 So.2d at 55. Rule 59 of the Mississippi Rules of Civil Procedure authorizes the trial judge to set aside a jury verdict as to any or all parts of the issues tried and to grant a new trial whenever, whenever justice requires. Miss. R. Civ. P. 59 cmt. The grant or denial of a motion for a new trial is a matter within the trial court's sound discretion. Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994). A new trial may be granted in a number of circumstances, such as when the verdict is against the substantial or overwhelming weight of the evidence. Shields v. Easterling, 676 So.2d 293, 298 (Miss.1996); see also U.R.C.C.C.P. 10:05(2)². On appeal, this Court may reverse the granting of a new trial only when the trial court has abused its discretion. Green, 641 So.2d at 1207. The existence of trial court discretion, as a matter of law and logic, necessarily implies that there are at least two differing actions, neither of which if taken by the trial judge will result in reversal. Shields, 676 So.2d at 298. In reviewing the trial court's decision, an appellate court must consider the credible evidence in the light most favorable to the non-moving party and generally take the credible evidence supporting the claims or defenses of the non-moving party as true. Green, 641 So.2d at 1207. When the evidence is so viewed, this Court will reverse only when, upon review of the entire record, we are left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice. Id. at 1207-08.

¶ 8. In both trials, it was undisputed that White died of injuries he received when he was struck by a motor vehicle on Interstate 55 in Pike County, Mississippi, and that White was standing erect and facing whatever vehicle struck him at the time of first impact. In addition, it was also undisputed that the Yellow Freight vehicle operated by Parish struck White's body at some point in time, and that there was minimal damage to the truck, especially to the fiberglass front grill, fenders, and body of the truck. The Whites allege that the Yellow Freight truck driven by Parish struck Billy White while he was alive and caused his death. Yellow Freight asserts that White was already dead from contact with another vehicle and lying in the road when its truck struck White's body. Therefore, the key issue in this case was whether a Yellow Freight truck driven by James Parish hit and killed Billy White.

¶ 9. In order to prevail in a wrongful death action, the plaintiff must establish that the conduct of the defendant proximately caused the injury and death in question. Berryhill v. Nichols, 171 Miss. 769, 773, 158 So. 470, 471 (1935). There was no eyewitness testimony, at either trial, that the Yellow Freight truck driven by Parish struck White while he was standing in the road. Therefore, the jury in the first trial was required to base its verdict on circumstantial evidence and reasonable inferences.

¶ 10. In order to prove that the Yellow Freight truck driven by Parish struck Billy White while he was alive and standing, the Whites offered the testimony of Jerry Addison. Addison testified that he worked at the Fernwood Truck Stop the night of July 3, 1989, from 10:00 p.m. until 6:00 a.m. Addison testified that he was asked by two Yellow Freight drivers who had pulled into the truck stop to rinse blood off the front grills of their trucks from a deer they had hit. Addison said that in addition to rinsing off blood, he rinsed hair and chips of bone from the grill of the first truck and a little blood on the side and front of the second truck. The Whites claim that Addison's testimony, along with a picture of Parish's truck showing indentions in the front bumper, allowed the jury to make reasonable inferences that the Yellow Freight truck driven by Parish struck and killed Billy White. There was, however, contradictory testimony from others who worked with Addison at the truck stop.

¶ 11. The trial judge weighed the testimony of Addison against contravening evidence offered by Yellow Freight and granted Yellow Freight's motion for a new trial. In the order, he acknowledged that while the evidence presented by the Whites regarding the issues of negligence and damages was "voluminous," their only evidence supporting the element of causation was Addison's testimony. In granting the new trial, the court said:

In order to find for the plaintiff, the jury must have conclusively found that Mr. White was standing erect, in the roadway facing the oncoming eighteen wheeler in the traveled lane of traffic.... The undersigned trial judge is

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