BEFORE ROY NOBLE LEE, DAN LEE and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
James Rucker, Udell Stubbs Trucking Company and Magna Corporation (Mississippi Steel) appeal from a judgment entered in the Circuit Court of Hinds County, Mississippi, in favor of Brenda Faye Hopkins, widow of Charles Edward Hopkins, Deceased, for four hundred ninety-six thousand seven hundred eight dollars ($496,708) on account of the wrongful death of Charles Edward Hopkins. Rucker, Stubbs and Mississippi Steel appeal to this Court and assign eleven (11) errors in the trial below. We reverse and remand for a new trial.
On Wednesday morning, July 28, 1982, between 4:30 and 5:30 a.m., Harry Hopkins was driving a two-tone grey Buick automobile in a northerly direction on Flowood Drive in Flowood, Rankin County, Mississippi, accompanied by his brother, Charles Hopkins. Harry Hopkins was employed at Continental Can Company, located on Flowood Drive, and when the Hopkins were about four hundred (400) yards south of the Continental Can plant, they met and were passing a southbound truck. An object, later identified as a large truck tire, inflated on a rim, struck the passenger side roof of the car, collapsing the roof and windshield, and resulting in the instantaneous death of Charles Hopkins.
Harry Hopkins blew his car horn several times in an
effort to stop the truck after it passed, without success. He examined his brother and then drove to the Continental Can plant for help. Flowood police Officer Truitt Calhoun responded to the emergency call from the Continental Can plant and medical aid was rendered, but Charles Hopkins was pronounced dead. Harry Hopkins could give no information about the passing truck other than that it was a flatbed truck. He was taken by ambulance from Continental Can to the Mississippi Baptist Hospital, where he was sedated with medication, leaving the hospital about noon on the same day. He talked to the Flowood Police several times throughout the day, and still was unable to give any information about the passing truck except that it was a flatbed truck.
In November, 1982, Hopkins no longer claimed to know only that the truck was a flatbed truck. By then he could positively identify the passing truck as a Mississippi Steel truck, basing his identification on the fact that he had read the words "Mississippi Steel" on the side of the truck and observed the tire on top of a load of steel as the Hopkins car and the truck were passing each other. That truck was owned by Udell Stubbs Trucking Company and driven by James Rucker, who was employed by Udell Stubbs, and the vehicle was leased to Mississippi Steel. Rucker is a professional truck driver with a great deal of experience in driving trucks.
When Rucker arrived at the Mississippi Steel mill on the morning of the accident, his truck was loaded and parked in the lighted parking lot next to the security post. His assignment that day was to deliver the truckload of steel to a customer in Little Rock, Arkansas. Rucker performed his daily routine before leaving the premises, i.e., checked his oil, bumped his tires (a method of checking the tires), examined his trailer for loose objects, and used chains to secure the load. According to him, there was no tire or any other loose object on his load of steel. He had one spare tire, and it was chained to the tire rack underneath the right side of the trailer.
After securing his load, Rucker drove past the security post headed toward Flowood Drive. The security guard, who passed Rucker out of the plant, observed his truck and verified that there was no tire on the load of steel. Rucker drove south on Flowood Drive two and one-half (2-1/2) miles to Highway 80, which was the route for him to take on leaving Flowood Drive. Rucker testified he left the Mississippi Steel premises at approximately 4:50 or 4:52 a.m. He passed one vehicle, a two-tone green car, between the Mississippi Steel plant and Highway 80. Before turning onto Highway 80, he stopped and again checked his binders and
tires. His spare tire was still resting in the rack underneath the truck. When he returned from his destination, Little Rock, Arkansas, later that afternoon, he still had the same tires he left with that morning. On the way back from Little Rock, Rucker stopped in Pine Bluff at a place which does work on truck tires. He developed some slight trouble in his truck and called Udell Stubbs who told him that a man had been killed by a truck tire on Flowood Drive that morning.
The tire which killed Charles Hopkins was a General tire 1000/20. Stubbs had purchased approximately sixty (60) such General tires in 1981, and Rucker's truck was equipped with ten (10) General tires on January 28, 1982. There are a number of industrial plants along Flowood Drive, and large trucks, including flatbed trucks, frequent the area and use Flowood Drive.
THE LOWER COURT ERRED IN REFUSING DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS THERE WAS NO CREDIBLE EVIDENCE TO SUPPORT A FINDING THAT RUCKER'S TRUCK WAS INVOLVED IN THE ACCIDENT.
Appellants contend (1) that the testimony of Harry Hopkins was contradicted by former statements, (2) inconsistent, (3) contrary to physical possibilities and (4) should be rejected by the court. The plaintiff has the duty in a tort case to prove by a preponderance of the evidence, e.g., with reasonable definiteness, that the party charged with the tort is the one actually responsible for it. In McCain v. Wade, 181 Miss. 664, 180 So. 748 (1938), the Court said:
But in this class of cases, as in other actions in tort, the plaintiff must show with fair or reasonable certainty or definiteness that the party charged is the party actually responsible for the wrong. It is not enough that this shall be left to conjecture or to inferences so loose as that it cannot be dependably told where conjecture ceases and cogent inferences begin.
181 Miss. at 668, 180 So. at 749. See also Western Geophysical Company of America, 253 Miss. 14, 174 So.2d 706 (1965); and Magnolia Petroleum Company v. Williams, 222 Miss. 538, 76 So.2d 365 (1954).
On the day of the accident, Harry Hopkins was
questioned extensively at the scene and throughout the day about his observation of the passing truck, and he could give no information which would assist in the investigation of the accident. He was questioned on two separate occasions by Flowood Police Chief, Gary Rhoads, between 8 and 9 a.m. and later around 2 p.m. He was unable to suggest an identity of the truck; or to tell Chief Rhoads the color of the truck or any name or any identifying mark on the truck; or whether it was light or dark in color, and loaded or unloaded. Hopkins wanted to know whether or not the police had any leads, whether they had been able to determine the name of the truck company or at least the color of the truck. On the day of the accident, Hopkins returned to the scene and helped search for the object (tire) which struck his car. He retained an attorney to pursue his own personal injury claim and employed a private investigator to help identify the truck and attend to business in connection with the accident.
Harry Hopkins gave a deposition November 15, 1982. He testified that he knew the truck belonged to Mississippi Steel because he glanced quickly at the truck as it was passing and read the words "Mississippi Steel" written on the truck. At trial, Hopkins testified he didn't remember what he told the police because he was still in shock and under sedation. Suffice it to say, Hopkins' trial testimony was inconsistent with, contradicted by, his deposition testimony and by statements made on the day of the accident, and thereafter, and was impeached.
In Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301 (1940), the Court held that a jury should not be permitted to consider evidence where it is manifest that no reasonable man engaged in a search for truth, uninfluenced by proper ...