Ronald PAYNE and Thomas Payne, Individually and on Behalf of the Wrongful Death Beneficiaries of Marie Payne, Deceased, Appellant
Cleveland GOWDY, Individually and as an Employee of Schneider National Carriers, Inc., and Schneider National Carriers, Inc., Appellee.
JOSIAH DENNIS COLEMAN, Justice.
The instant matter is before the Court sitting en banc on the Petition for Writ of Certiorari filed by counsel for Ronald Payne. The petition was granted by order of the Court entered on March 21, 2013. Upon further consideration, the Court finds that there is no need for further review and that the writ of certiorari should be dismissed.
IT IS THEREFORE ORDERED that the writ of certiorari is hereby dismissed on the Court's own motion.
TO DISMISS: DICKINSON AND RANDOPLH, P.JJ., LAMAR, PIERCE AND COLEMAN, JJ.
CHANDLER, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY
WALLER, C.J., KITCHENS AND KING, JJ.
CHANDLER, Justice, objecting to the order with separate written statement:
¶ 1. I do not join the Court's order dismissing the certiorari petition. This case involved the tragic death of seventy-eight-year-old Marie Payne (Mrs. Payne), who was run over by Cleveland Gowdy as he backed his pickup truck through a parking garage on September 5, 2008. There were no eyewitnesses to the accident other than Gowdy and his wife. Gowdy denied that he saw Mrs. Payne prior to the accident and, throughout the trial, the defense suggested that the reason Gowdy had not seen Mrs. Payne was that she had fallen just prior to being struck by Gowdy's truck. Mrs. Payne had fallen on prior occasions, but the trial court excluded the evidence of her prior falls as irrelevant and more prejudicial than probative. But later, the trial court allowed evidence of a May 2008 fall in the guise of impeachment evidence. The jury found that Gowdy was
not negligent. As explained below, the trial court's ruling erroneously permitted Gowdy to impeach Mrs. Payne's sons, (the Paynes) on a collateral matter, resulting in substantial prejudice. I would reverse and remand for a new trial.
¶ 2. Relying upon the principle that a picture is worth a thousand words, I attach to my objection an exhibit that shows Mrs. Payne's final resting place under Gowdy's truck. The exhibit shows how far Gowdy traveled as he backed through the parking garage in the wrong direction. Mrs. Payne was five feet tall, approximately nine to ten inches taller than the tailgate of Gowdy's truck. Tim Corbitt, an accident reconstructionist, testified that Mrs. Payne would have been visible to Gowdy at all times as he backed up. No expert testimony or other evidence substantiated the defense's speculation that Mrs. Payne fell prior to being hit by Gowdy. Because no evidence substantiated the fall theory, the trial court excluded evidence that Mrs. Payne had fallen on prior occasions as irrelevant and more prejudicial than probative.
¶ 3. But later, the trial court permitted evidence that Mrs. Payne had fallen in May 2008 to impeach the testimony of Thomas Payne. Thomas testified that Mrs. Payne had no physical restrictions. Thomas testified that Mrs. Payne saw doctors, but she was an independent person and never discussed her medical conditions with him. On cross-examination, Gowdy asked whether Mrs. Payne had ever had any issues with her shoulder. Thomas replied, " Not that I'm aware of." His brother Ronnie testified that he had seen his mother daily. Gowdy did not ask Ronnie if he was aware of Mrs. Payne's shoulder injury. Neither brother was asked about Mrs. Payne's prior falls.
¶ 4. During the defense case, the deposition testimony of Mrs. Payne's treating physician, Dr. Rhonda Wilson, was read to the jury. The Paynes sought to redact from Dr. Wilson's testimony all mention of prior falls. Gowdy argued that he should be allowed to read Dr. Wilson's response concerning Mrs. Payne's May 2008 fall because, in the response, Dr. Wilson mentioned that Mrs. Payne had sustained a fracture to her right shoulder in the fall. Gowdy argued that Dr. Wilson's testimony that Mrs. Payne had a shoulder injury impeached the Paynes' testimony that Mrs. Payne had no physical restrictions. The trial court permitted the impeachment despite its prior ruling that the evidence of prior falls was irrelevant and unduly prejudicial, stating, " The way I recall, I said that if there is affirmative information that's presented that you feel like is inconsistent with the truth, you can impeach on that issue. And he asked Mr. Payne about ...