BEFORE HAWKINS, P.J., PRATHER AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
On July 12, 1983, Ruth Selleck, on behalf of two (2) surviving children of Walter Henry Selleck, deceased, filed suit against S. F. Cockrell Trucking, Inc. (Cockrell) in the Circuit Court of Jefferson Davis County. After the jury returned a verdict for Cockrell, the trial court granted Selleck's motion for a new trial. Thereafter, Charles Selleck replaced Ruth Selleck as the named plaintiff representing the children of the deceased, and a third child of the deceased was added as a survivor. At the conclusion of the second trial on the merits, the jury returned a verdict in favor of Cockrell. From judgment entered pursuant to that verdict, Selleck appeals.
Ize Collins was a truck driver for S. F. Cockrell Trucking, Inc. On June 9, 1983, Collins was hauling saw dust and bark from Silver Creek, Mississippi, to Bogalusa, Louisiana. Collins, whose pay was based on the number of loads hauled, had already made two (2) trips to Bogalusa that day and was returning to Silver Creek to pick up a third load. At approximately 12:30 p.m., Collins was driving his eighteen-wheel tractor-trailer north on Highway 13 between Columbia, Mississippi, and Prentiss, Mississippi. A Volkswagen "bug" driven by Walter Selleck was in front of Collins on the two-lane road. According to Collins, the Volkswagen was traveling between 40 and 45 miles per hour. Collins moved into the left lane to pass the Volkswagen. According to Collins' testimony, just as he was moving into the left lane, the Volkswagen moved over into the left lane without giving any turn signal. Collins skidded and then the right (passenger side) front of his truck struck the driver's door of the Volkswagen. After the collision, the truck was partly off the left shoulder of the road and partly in the left lane. The Volkswagen was straddling the center line. Walter Selleck died from injuries received in the collision.
The evidence is conflicting as to 1) the speed at which Collins was driving, and 2) the manner in which Selleck's Volkswagen moved into the left lane. Immediately after the collision, Collins told Mississippi State Trooper Jerry Kilpatrick that his speedometer read 57 miles per hour at the moment he hit his brakes and began skidding. The speed limit on Highway 13 at that time was 55 miles
per hour. At trial, however, Collins admitted on cross-examination that his speedometer was "off some," although he did not know how much. There is no indication in Collins' testimony or elsewhere in the record as to whether the speedometer was "off" high or "off" low. Selleck's expert witness was William Eugene Hughes, Ph.D. physicist. Based on his tests and measurements of the skid marks, the gouges in the pavement, the length of the truck, the grade of the highway's slope, and the coefficient of friction, Hughes testified that in his opinion the minimum speed of Collins' truck at the time it began leaving skid marks was 72 miles per hour.
As to the manner in which the Volkswagen moved into the left lane, Collins claimed that the car moved without giving a signal and that he did not know whether the car was turning left. Selleck's expert Hughes testified that, in his opinion, the Volkswagen was making a left turn as it was struck. There was, at the point of the collision, a store on the left side of the highway, although testimony indicated that it was closed and was overgrown with weeds.
Ruth Selleck Dyess, ex-wife of the deceased, filed a wrongful death suit on behalf of two (2) of Walter Selleck's surviving children. She alleged, inter alia, that Collins had been speeding and had failed to keep a proper lookout, and that Cockrell had negligently entrusted the truck to Collins. At the conclusion of the first trial, the jury returned a verdict for Cockrell, but the trial court granted Selleck's motion for a new trial.
Between the first and second trials, Walter Selleck's brother Charles replaced Ruth as the plaintiff representing the children. Also, a third child of the deceased was named as a survivor.
The second jury also returned a verdict in favor of Cockrell. From that verdict Selleck appeals assigning six (6) errors. Because one (1) is dispositive, we need not address the others.
DID THE TRIAL COURT ERR IN NOT DECLARING A MISTRIAL BECAUSE OF MISCONDUCT ON THE PART OF COCKRELL?
On the third day of the trial, S. F. Cockrell, owner of the defendant/appellee S. F. Cockrell Trucking, Inc., went into the jury room and conversed with jurors for ten or 15 minutes. With other jurors present he spoke with Mrs. Jones, a juror, about church, her uncle, and biscuits.
Then Cockrell told Hall, a juror who was by profession a concrete finisher, that he (Cockrell) needed some work done on his driveway and that he would like Hall to do the work. When this conversation was brought to the attention of the trial court, the judge offered to grant plaintiff Selleck a mistrial. After consulting with his client regarding the trial court's offer, plaintiff's counsel stated the following:
It's just economically impossible to pay all these expenses again. We're just going to have to take the position that, even though three little children are involved, there's just not any money here to finance a third trial, and if we can't recover some of our expenses, - I've got approximately - with Dr. Hughes's second day here, I've probably got in the range of $2500 in actual expenses in this trial. I'd have to go calculate it, ...