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JOSEPH CHRISTOPHER SUGG v. JEFFREY SANDERSON AND G. H. AVERY CO.

NOVEMBER 12, 1987

JOSEPH CHRISTOPHER SUGG
v.
JEFFREY SANDERSON AND G. H. AVERY CO., INC.



BEFORE DAN LEE, P.J., AND SULLIVAN AND ANDERSON, JJ.,

ANDERSON, JUSTICE, FOR THE COURT:

Appellant Christopher Sugg filed suit in the Circuit Court of Monroe County alleging he was a guest passenger in a pickup truck driven by Jeffrey Sanderson and owned by G. H. Avery. Sugg was severely injured when the truck left the road and hit a tree. Both appellees denied charges of negligence and raised the defense of assumption of risk, claiming that both parties had been drinking.

The jury returned a verdict in favor of the defendant/appellee. We reverse and remand on grounds of erroneous jury instructions.

 FACTS

 JEFFREY SANDERSON was employed as a pipefitter for G. H. Avery since 1980. Approximately one week prior to the accident, the company issued Sanderson a pickup truck for business use. It was understood that employees drove the vehicles home and he was instructed of no limits regarding its use.

 The parties agree that on the morning of the accident (Memorial Day 1983), Sanderson asked Sugg to help install storage bins on his company truck. Sugg agreed and they worked on the bin from about 9 a.m. until approximately 12 or 1 p.m. They then decided to drive to the Tennessee-Tombigbee Waterway (a public boat landing and recreational area) since it was a holiday. Sanderson's company had no business interests or operations in that area.

 Sanderson and Sugg were the only witnesses testifying regarding the accident itself and their testimony is somewhat contradictory. Nevertheless, there is testimony that the two spent the day socializing and drinking beer.

 There is agreement that the day was clear and the pavement was dry. They left the waterway around 7 p.m. to go home. As they traveled an access road leading to the highway, Sugg cautioned Sanderson about tailgating another vehicle. As they approached a curve in the highway, the right front tire ran off the pavement while Sanderson was attempting to adjust the radio dial. Sanderson jerked the wheel to the left and lost control of the vehicle, hitting two trees. The truck was totalled and both parties

 were injured.

 Appellant Sugg filed this action on February 2, 1984. Sanderson and Avery jointly answered generally denying negligence. They then filed an amended answer raising the defense of contributory negligence and assumption of risk. Appellants allege seven assignments of error.

 I.

 After careful review of each of the assignments presented, we find only two of these to be meritorious. Both concern erroneous instructions to the jury.

 The first instruction which we find troublesome reads:

 The court instructs the jury that as a general rule, the mere fact that an accident has occurred is not, of itself, evidence of negligence on the part of anyone, and if you believe that the defendant Jeffrey Sanderson exercised that degree of care that an ordinary, reasonable, prudent person would have exercised under like or similar circumstances at ...


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