Kindred v. Columbus Country Club, Inc.

918 So. 2d 719, 2004 Miss. App. LEXIS 1008, 2004 WL 2439659
CourtCourt of Appeals of Mississippi
DecidedNovember 2, 2004
DocketNo. 2003-CA-00045-COA
StatusPublished
Cited by2 cases

This text of 918 So. 2d 719 (Kindred v. Columbus Country Club, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kindred v. Columbus Country Club, Inc., 918 So. 2d 719, 2004 Miss. App. LEXIS 1008, 2004 WL 2439659 (Mich. Ct. App. 2004).

Opinion

IRVING, J.,

for the Court.

¶ 1. Jim Kindred appeals from a judgment in favor of the Columbus Country Club, Inc. (Country Club) which was entered by the Circuit Court of Lowndes County pursuant to a jury verdict finding that the Country Club was not liable for the death of his wife who was killed when [721]*721the car which she and Jim were riding in was struck by a falling tree from the Country Club’s property as they traveled along a stretch of Mississippi. Highway 12 which runs parallel with the edge of property owned by the Country Club.

¶ 2. In this appeal, Kindred alleges that the circuit court erred (1) in refusing to allow him to call a certain witness to testify concerning the Country Club’s prior knowledge of the defective condition of the tree, (2) in denying a new trial because of the Country Club’s failure to accurately answer discovery, thereby causing him prejudice, (3) in denying a new trial as a sanction for the Country Club’s intimidation of a defense witness, and (4) in giving a peremptory instruction on a su-perceding cause.

¶ 3. We find no merit in the issues presented by Kindred; therefore, we affirm the judgment of the circuit court.

FACTS

¶4. On their wedding night, Kindred and his new bride, Diana drove through a storm as they made their way to their honeymoon destination. In route to their destination, they traveled past the Columbus Country Club where a major portion of a tree on the Country Club’s property fell across the Kindred’s car. A limb came through the windshield and injured Diana. She later died from her injuries.

¶ 5. Kindred, claiming that the Country Club was negligent in allowing the tree to remain on its property in a defective condition, filed a wrongful death lawsuit against the Country Club in which he alleged that the Country Club’s negligence was the proximate cause of his wife’s death.

¶ 6. After the usual discovery, the case proceeded to trial which lasted three days. At the conclusion of the trial, special interrogatories were submitted to the jury which found that Diana’s death was not proximately caused by the Country Club. The circuit court entered judgment accordingly, leading to this appeal. Additional facts will be related during our discussion of the issues.

. ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Refusal to Allow the Testimony of James Traywiek

¶ 7. The admission of evidence is within the discretion of the trial court. Clemons v. State, 732 So.2d 883, 887(¶ 18) (Miss.1999) (quoting Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996)). However, that discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will occur only if there has been an abuse of discretion resulting in prejudice to the proponent of the evidence.

¶ 8. After both Kindred and the Country Club had concluded their cases, Kindred sought to call three witnesses in rebuttal, Cathy Bailey, James Traywiek, and Jay Jordan, III. Kindred’s desire to call Jordan was conditioned upon his being allowed first, to call Bailey and Traywiek. He stated to the court that if the court was not going to allow him to call Bailey and Traywiek, then he did not want to call Jordan. Columbus Country Club noted that Jordan was on its list but that it had decided not to call Jordan. It offered no objection to Jordan being called by Kindred. The court refused to allow Bailey and Traywiek to testify, and the testimony of all three witnesses was proffered.

¶ 9. While the court refused to allow the testimony of two witnesses, Kindred has focused primarily on one witness, James Traywiek. Therefore, we will confine the bulk of our discussion to the circumstances surrounding the trial court’s refusal to let [722]*722this witness testify, although we will briefly discuss the circumstances surrounding the others.

¶ 10. The first witness, Bailey, testified that she first learned from a nightly news report two nights prior to her giving testimony that the trial was taking place. She was a former member of the Columbus Country Club who planted flowers on the grounds of the Country Club. She did not know how Kindred learned that she knew something about the subject tree in question. She came to court because she was responding to a subpoena. She testified that she had asked Jay, the Country Club groundskeeper, why the subject tree was not' cut during a time when other trees were being cut. The basis for her inquiry to Jay was not made clear in the record although she did testify that the tree had “mixed dead and mixed green” leaves on. it, part of the tree was brown and part of it was green. She could not specify the time frame when she talked to Jay about the tree.

¶ 11. Traywick testified that he and his boss, Danny Harrison cut up and removed one large limb which had fallen from the tree in question. He stated that when the large limb fell from the tree, it cracked or damaged two other limbs which he and his boss cut down. He also testified that the tree was hollow and black, “black and yellow.” When asked if he knew whether any plans were made at that time to have the tree cut, he responded, “Just what I was told. My boss went in to tell them it was cleaned up and told them it needed to come down, that it was going to hurt somebody cause it was hollow.” Finally, Tray-wick testified that he had forgotten about his involvement with the tree until he saw a report in the Sunday’s paper that the trial was about to begin. He stated that he came to the courthouse because he thought it was the right thing to do.

¶ 12. In arguing that he should be allowed to present the rebuttal witnesses, Kindred, through his attorney, advised the court that he had no prior knowledge of these witnesses, that witness Traywick read about the trial and just appeared at the courthouse, and that witness Bailey “came up here” after “a friend of hers called her, knowing that she had been upset about this when she was at the Country Club.” Later, Kindred’s counsel informed the court that he had gotten Bailey’s name from an anonymous caller who called his office during the trial. It is noteworthy that Bailey’s testimony did not comport with the representation that she just came to the courthouse or that she had ever shared her concerns about the tree with a friend. As noted earlier, she testified that she did not know how Kindred learned she knew something about the tree in question. Also, she never indicated in her testimony that she even knew about the incident when it occurred, much less that she was upset about it when she was a member of the Country Club. However, in fairness to counsel for Kindred, we point out that Bailey was never asked whether she talked to a friend about the incident when it occurred.

¶ 13. As noted, the trial judge refused to allow the witnesses’s testimony. His basis for denying the testimony was that the witnesses had not been disclosed to the defense prior to trial and were not listed on the pretrial order. Specifically, the trial judge remarked, “[Tjhese names were not disclosed. They’ve not been deposed. They’re not in the pretrial order, and people don’t walk in off the street and testify in Court.”

¶ 14. A review of the docket indicates that the trial of this matter commenced on August 26, 2002. Kindred relied on two witnesses, Tyrone McCoy and Robert Butler, to prove that the Country Club had [723]*723prior knowledge that the tree was rotten and needed to be taken down.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kindred v. Columbus Country Club, Inc.
918 So. 2d 1281 (Mississippi Supreme Court, 2005)
Jim Kindred v. Columbus Country Club, Inc.
Mississippi Supreme Court, 2002

Cite This Page — Counsel Stack

Bluebook (online)
918 So. 2d 719, 2004 Miss. App. LEXIS 1008, 2004 WL 2439659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kindred-v-columbus-country-club-inc-missctapp-2004.