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WELLS FARGO ARMORED SERVICE CORPORATION, HERMAN C. LUDVIGSEN AND JAMES T. PICKENS v. ELBERT TURNER

FEBRUARY 27, 1989

WELLS FARGO ARMORED SERVICE CORPORATION, HERMAN C. LUDVIGSEN AND JAMES T. PICKENS
v.
ELBERT TURNER



BEFORE DAN LEE, ROBERTSON AND ZUCCARO.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

This appeal arises out of an automobile accident which occurred on December 27, 1985, on U.S. Highway 61 south of Port Gibson, near the community of Russum in Claiborne County, Mississippi. Suit was filed by Elbert Turner in the Circuit Court of Claiborne County. Named as defendants were Wells Fargo Armored Service Corporation (" Wells Fargo "), Herman C. Ludvigsen, Pickens Brothers Lumber Co. (" Pickens Brothers "), and James T. Pickens. Pickens Brothers Lumber Co. filed a cross-claim against Wells Fargo and Ludvigsen for damage to its pickup truck.

The plaintiff/appellee, Elbert Turner, was injured when a Wells Fargo armored truck driven by defendant/appellant Herman C. Ludvigsen collided with his automobile. The armored truck simultaneously hit the rear of a pickup truck owned by cross-appellee Pickens Brothers Lumber Co., Inc., and driven by defendant/appellant James T. Pickens.

 Finding that James Pickens was not acting as an agent of Pickens Brothers at the time of the accident, the court directed a verdict against Turner as to the liability of Pickens Brothers. Turner did not appeal this directed verdict.

 The court directed a verdict for Pickens Brothers against Wells Fargo on its cross-claim for the property damage to the 1983 Ford pickup truck driven by James T. Pickens and struck by the armored truck owned by Wells Fargo and driven by Ludvigsen. The jury returned a verdict in the amount of three million four hundred sixty-one thousand eighty-two dollars ($3,461,082.00) against appellant/defendants James T. Pickens, Herman Ludvigsen, and Wells Fargo. This verdict was reduced on post-trial motion to conform to plaintiff's demand under the ad damnum clause to

 three million four hundred sixteen thousand ninety dollars ($3,416,090.00). Defendants' motions for judgment n.o.v., new trial, and remittitur were denied.

 Appellants Wells Fargo and Ludvigsen appeal the court's failure to sustain the motion for judgment n.o.v., a new trial, or remittitur. They also appeal the directed verdict in favor of Pickens Brothers, assigning numerous errors.

 James T. Pickens, also assigning numerous errors, appeals the refusal of the trial judge to grant a new trial, judgment n.o.v., or remittitur.

 Finding that the verdict against James T. Pickens was contrary to the overwhelming weight of the evidence, we reverse and remand for a new trial as to both liability and damages.

 We affirm the jury's finding that Ludvigsen and Wells Fargo were negligent. However, finding merit in the contention that the verdict is so excessive as to evidence bias, passion and prejudice, we reduce the jury award to eight hundred fifty thousand dollars ($850,000), conditioned upon acceptance within thirty (30) days or in the alternative a new trial on damages only.

 We affirm the directed verdict in favor of Pickens Brothers Lumber Co., Inc., against Ludvigsen and Wells Fargo.

 FACTS

 At approximately 9:30 a. m. on December 27, 1985, plaintiff Elbert Turner was driving north on State Highway 61, south of Port Gibson, Mississippi, in his 1975 Lincoln Continental. A light rain was falling. At the same time, defendant James T. Pickens was driving south on Highway 61 in a 1983 Ford pickup truck owned by Pickens Brothers Lumber Co., Inc. Pickens had left his job to drive home for breakfast, and was not on any business for Pickens Brothers at the time of the unfortunate accident.

 Following Pickens, also travelling south, was a Wells Fargo armored truck driven by Herman Ludvigsen. This 40,000-pound armored vehicle was owned and operated by Wells Fargo Armored Service Corp. Ludvigsen was acting in his capacity as an employee of Wells Fargo at the time of the accident. The armored truck had travelled from Jackson, Mississippi, to Vicksburg that morning and was en route from Vicksburg to Natchez at the time of the accident.

 Highway 61 is a well-travelled two-lane paved federal

 highway which runs generally north and south. The accident occurred at a culvert-type bridge, bordered by steel guard rails. Immediately on the south side of the bridge, the road curves sharply, blocking any view of oncoming traffic. According to the testimony of Pickens, he was approaching this culvert-type bridge, slowing down because a deer ran into his pickup truck. Turner, however, testified that Pickens had stopped while still partially on the roadway. As Pickens' truck approached the bridge, the Wells Fargo armored truck, which was travelling approximately six car lengths behind Pickens at a speed of approximately fifty miles per hour, accelerated to pass Pickens and moved into the north-bound lane. Ludvigsen saw Turner's automobile approaching and attempted to get back into his own southbound lane to avoid a head-on collision with Turner. The Wells Fargo truck went into a skid, sliding sideways down the middle of Highway 61 until striking Turner. Turner, on seeing the armored truck in his lane of travel, braked to a stop, but could not pull off the roadway due to the presence of a guard rail. Turner's car was hit on the front left side by the rear tandem wheels of the Wells Fargo truck. Pickens' truck was hit in the rear by the Wells Fargo truck, but did not come into contact with Turner's vehicle at any point. Pickens was not injured. Turner was injured and hospitalized. Ludvigsen was slightly injured.

 Pickens claims that he was reducing his speed because he hit a deer which ran out of the woods and into his pickup truck. Ludvigsen claims to have swerved into the north-bound lane to avoid a" body "which appeared from under Pickens' truck. Neither Turner nor the eyewitnesses saw a deer. The investigating highway patrolman saw no signs of a deer. No blood was discovered on the highway. Pickens' truck showed signs, two days after the accident, of having hit an animal in the recent past. Pickens and Ludvigsen claimed that someone had driven by and picked up the deer.

 Proposition I

 Did the Trial Judge Err in Refusing Wells Fargo's Motion for Judqment N.O.V. Or, in the Alternative, a New Trial?

 Several of Wells Fargo's assignments of error challenge the sufficiency of the evidence presented by Turner. Wells Fargo asserts that the evidence established that Ludvigsen was not negligent and the accident was unavoidable.

 The evidence established that Ludvigsen was travelling at 50 miles per hour in a 55 miles per hour zone, approximately six car lengths behind Pickens prior to the accident. He claims to have

 swerved into the left lane to avoid the decelerating Pickens truck and a" body. "The road was wet due to intermittent rain. When Pickens slowed, Ludvigsen did not brake; but instead accelerated and attempted to pass.

 Ludvigsen's contention is that when faced with the unforeseeable appearance of a" body "in the road, he acted reasonably in avoiding the hazard and no evidence was presented from which to infer that he was not in reasonable control of his armored truck.

 The evidence of this" body "was disputed. Two eyewitnesses to the accident, Cordelia Gary and Vernesta Wade, testified that they saw no deer at the scene of the accident. Lee Howard, the investigating highway patrolman, saw no signs of a deer at the accident scene. James Pickens stated that a deer ran into and underneath the right side of his truck. Pickens' corroborating witnesses, R. C. Kilcrease and Cecil Wade, testified that the truck showed evidence of hitting an animal on the left side of the front grill and underneath the chasis and A-frame; however, according to their testimony, the animal debris was located on the left front of the pickup truck, not the right.

 It is apparent that the jury did not believe that a deer or any other" body "was a factor in this accident. As we have stated many times:

 The demeanor or bearing, the tone of voice, the attitude and appearance of the witnesses, all are primarily for inspection and review by the jury. The jury not only has the right and duty to determine the truth or falsity of the witnesses, but also has the right to evaluate and determine what portions of the testimony of any witness it will accept or reject; therefore, unless it is clear to this Court that the verdict is ...


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