Hiltgen v. Sumrall

United States Court of Appeals,

Fifth Circuit.

No. 93-7309.

Maureen HILTGEN, Individually and as Parent and Natural Guardian
of Nicole Hiltgen and Molly Hiltgen, minor children and as Personal
Representative of Peter J. Hiltgen, Deceased, Plaintiff-Appellee-
Cross-Appellant,

v.

Douglas Leon SUMRALL, et al., Defendants-Appellants-Cross-
Appellees.

Oct. 27, 1994.

Appeals from the United States District Court for the Southern
District of Mississippi.

Before REYNALDO G. GARZA, DeMOSS and PARKER1, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Maureen Hiltgen filed this diversity wrongful death action

against Douglas Leon Sumrall ("Sumrall"), The Mason & Dixon Lines

("Mason"), and D. Larry Abston ("Abston"), asserting negligence and

vicarious liability for an automobile accident that caused the

death of her husband, Peter J. Hiltgen, on March 6, 1989. After a

trial by jury, the district judge entered judgment on the verdict

against all of the defendants, jointly and severally, in favor of

the plaintiff on March 5, 1992.

The defendants' post-trial motions were ultimately denied, and

this appeal followed. The plaintiff filed a cross-appeal as well,

which was contingent only. Since we find no merit in the

1
Judge Parker participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Texas. Since that time he has been appointed
as a Fifth Circuit Judge.

1
defendants' appeals, we do not address the points of error raised

by the plaintiff.

FACTS

The accident from which this case arose occurred on March 6,

1989 at approximately 10:00 p.m. on Interstate 20 near Leeds,

Alabama. Peter Hiltgen was killed instantly when his van slammed

into the rear of a tractor-trailer rig driven by Sumrall. Sumrall

is a Mississippi resident who was employed by Abston. Abston, also

a Mississippi resident, owned the tractor-trailer, which had been

leased to Mason for the purpose of carrying a load of plastic pipe

from Quitman, Mississippi to Woodstock, Georgia. Mason is a

Delaware Corporation with its principal place of business in

Tennessee, and an agent in Meridian, Mississippi.

Prior to 10:00 p.m. on March 6, 1989, Sumrall pulled the

tractor-trailer into the emergency lane or shoulder on the

right-hand side of I-20 East, just outside Leeds, Alabama, near the

144 mile marker. Sumrall testified later that the purpose of this

stop was to check his load and urinate. The evidence shows that

when Sumrall was prepared to continue his haul to Woodstock,

Georgia, he started to accelerate in the emergency lane and slowly

brought the tractor-trailer back into the right-hand lane of

traffic. The evidence also shows that the tractor-trailer was

travelling approximately 25-30 miles per hour at the time of the

collision.

Approximately seven miles west of the collision, Franklin

Howard and Gordon Simpson, travelling in the same vehicle, had

2
entered traffic on I-20 right behind the van driven by Peter

Hiltgen. They testified that the van was not being driven in a

reckless manner when they were in a position to observe it prior to

the accident. Fifteen to twenty seconds before the collision, the

Hiltgen van completed a safe pass of a vehicle driven by Britt

Smith. Mr. Smith testified that the van was operating with only

one headlight, but that it was being operated in a safe manner in

all other respects. The evidence indicates that the Hiltgen van

was travelling approximately 65-68 miles per hour immediately prior

to the collision.

Shortly after the van passed Mr. Smith's vehicle, Smith,

Howard, and Franklin saw the rear of the van suddenly jump in the

air, and then saw the van veer off into the median. All three

witnesses testified that at the time of the collision they could

not tell what the van had run into. In addition, all three

testified that they did not see the tractor-trailer rig or its

lights prior to the accident even though, in their opinion, they

were in a position to have seen the tractor-trailer if it had had

its lights on.

Prior to trial, the district court ruled that Alabama law

would be applied to the negligence claim against Defendant Sumrall.

Thus, the defendants asserted the affirmative defense of

contributory negligence, which, if proven, provides a complete bar

to the plaintiff's recovery under Alabama law.2 The district court

2
See, e.g., Alabama Power Co. v. Scholz, 283 Ala. 232, 215
So.2d 447, 452 (1968).

3
also ruled that Mississippi law would apply to the vicarious

liability claim against Defendant Abston because the employment

relationship between Sumrall and Abston was entered into in the

State of Mississippi.

Also prior to trial, Defendant Abston moved for summary

judgment, arguing that he could not be held vicariously liable for

Sumrall's actions because the trip-lease and Federal Motor Carrier

Safety Regulation 49 C.F.R. § 1057.12 provided that during the term

of the lease, Mason was deemed to have exclusive possession,

control, and use of the equipment, and in addition that there was

no evidence that Abston retained sufficient control over Sumrall to

render Abston liable under the doctrine of respondeat superior.

The district court denied Abston's motion, holding that a genuine

issue of material fact existed with regard to Abston's control over

Sumrall.

The parties presented physical evidence, lay testimony, and

expert testimony. At the close of all the evidence, the defendants

moved for judgment as a matter of law under Rule 50(a) of the

Federal Rules of Civil Procedure. The district judge denied this

motion and submitted the matter to the jury by use of a special

verdict form. The jury found that Sumrall had been negligent and

that his negligence was a proximate cause of the collision. The

jury also found that Peter Hiltgen had been negligent, but found

that Hiltgen's negligence was not a proximate cause of the

collision. In addition, the jury found that Abston was liable for

4
Sumrall's negligence.3 Having found against all of the defendants,

the jury then awarded the plaintiff $1,500,000.00.4 The district

court entered judgment on the jury verdict.

Following judgment, the defendants renewed their motions for

judgment as a matter of law under Rule 50(b), and moved

alternatively for a new trial under Rule 59 of the Federal Rules of

Civil Procedure. Initially, the district court decided to grant

the defendants' motion for a new trial on the grounds that the

verdict was based in part on the incompetent testimony of

plaintiff's expert witness. However, upon motion for

reconsideration by the plaintiff, the court held that any error in

admitting the testimony of the plaintiff's expert witness had been

waived by the defendant's when they failed to raise a

contemporaneous objection. Therefore, the court withdrew its order

granting the defendants' motion for new trial. In addition, the

district court was very clear that the defendants' renewed motions

for judgment as a matter of law were denied.

After the court withdrew its order granting a new trial on the

bases of erroneously admitted evidence, the court considered the

defendants' motion for new trial based on the excessiveness of the

3
Defendant Mason conceded prior to trial that it was
responsible, by operation of the trip lease and federal
regulations, for Sumrall's actions. Therefore, there was no
separate instruction or finding of the jury regarding Mason's
liability.
4
Under Alabama law, the plaintiff in a wrongful death action
may only recover punitive damages. See, e.g., Tatum v. Schering
Corp., 523 So.2d 1042, 1052-57 (Ala.1988). Having ruled that
Alabama law applied, the district court appropriately instructed
the jury on punitive damages.

5
jury's punitive damages award and request for remittitur. The

court held a hearing to review the propriety of the award, as

required by Alabama law,5 and held that the amount awarded by the

jury was not excessive.

On appeal, the defendants make the following arguments: 1)

that the evidence is not legally sufficient to support the jury

verdict and thus they are entitled to judgment as a matter of law;

2) that the jury's verdict is contrary to the great weight of the

evidence and thus they are entitled to a new trial; 3) that

improper jury instructions and reading of certain stipulations

misled the jury and thus they are entitled to a new trial; and 4)

that the jury's punitive damages award is excessive and thus they

are entitled to a new trial on the damages issue or a remittitur of

the jury's verdict. In addition, Defendant Abston argues that as

a matter of law he is not vicariously liable for Sumrall's actions.

SUFFICIENCY OF THE EVIDENCE

A motion for judgment as a matter of law (previously, motion

for directed verdict or J.N.O.V.) in an action tried by jury is a

challenge to the legal sufficiency of the evidence supporting the

jury's verdict. On review of the district court's denial of such

a motion, the appellate court uses the same standard to review the

verdict that the district court used in first passing on the

motion. Bridges v. Groendyke Transp., Inc., 553 F.2d 877 (5th

Cir.1977). A jury verdict must be upheld unless "there is no

5
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d
812, 839 (Ala.1988).

6
legally sufficient evidentiary basis for a reasonable jury to find"

as the jury did. Fed.R.Civ.P. 50(a)(1).

This court has consistently applied this standard to show

appropriate deference for the jury's determination.

A jury may draw reasonable inferences from the evidence, and
those inferences may constitute sufficient proof to support a
verdict. On appeal we are bound to view the evidence and all
reasonable inferences in the light most favorable to the
jury's determination. Even though we might have reached a
different conclusion if we had been the trier of fact, we are
not free to reweigh the evidence or to re-evaluate credibility
of witnesses. We must not substitute for the jury's
reasonable factual inferences other inferences that we may
regard as more reasonable.

Rideau v. Parkem Indus. Services, Inc., 917 F.2d 892, 897 (5th

Cir.1990) (citations omitted).

The defendants address two distinct points, arguing that the

evidence is insufficient to support the jury verdict. First, they

contend that the evidence does not support the jury's conclusion

that Sumrall was negligent. The district court specifically

rejected this contention.6 We agree with the district court's

determination.

Specifically, the defendants argue that there was no evidence

that the tractor-trailer's lights were off at the time of the

collision. However, in our opinion, the testimony of Franklin

Howard, Gordon Simpson, and Britt Smith provided ample evidence to

support a finding that the tractor-trailer's lights were off, and

thus that Sumrall was negligent in his operation of the rig.7 The

6
Federal District Court Record at Vol. 12, p. 1531 n. 3.
7
Because we hold that the testimony of plaintiff's lay
witnesses provides sufficient evidence to support the jury's

7
defendants rely on Sumrall's testimony that he never turned the

lights off. However, the jury was free to consider Sumrall's

interest in the outcome of the litigation and his credibility

generally, and we will not replace the jury's evaluation of the

weight or credibility of witness testimony with our own.8

Second, the defendants argue that the evidence does not

support the jury's conclusion that Peter Hiltgen's negligence was

not a proximate cause of the collision. This issue was raised by

the defendants' assertion of the defense of contributory

negligence. Contributory negligence, under Alabama law, is a

defense that is a complete bar to the plaintiff's recovery if

proven. It is an affirmative defense on which the defendant bears

the burden of proof. Robertson v. Travelers Inn, 613 So.2d 376,

379 (Ala.1993). In addition to the burden of showing that the

plaintiff failed to use due care for his own safety, the defendants

bore the burden of proving that such failure was a proximate cause

of the injury. American Furniture Galleries, Inc. v. McWane, Inc.,

477 So.2d 369, 372 (Ala.1985).

The evidence shows that Hiltgen was operating his van with

finding on this point, we find it unnecessary to address the
basis of the testimony provided by plaintiff's expert witness.
We note that the defendants do not argue on appeal that the
testimony of plaintiff's expert was improperly admitted.
8
The defendants also contend that the "negative" testimony
of the plaintiff's witnesses should not be allowed to outweigh
Sumrall's "positive" testimony to the contrary. Although the
defendants have made a valiant effort to phrase this argument in
the language of legal technicality, in essence it is no more than
a request that we take the questions of weight and credibility
away from the jury. We must deny this request for the reasons
given above.

8
only one functional headlight. The evidence also allowed a finding

that Hiltgen was driving too fast under the circumstances and that

he was inattentive to the road in front of him at the time of the

collision. Thus, the jury's conclusion that Peter Hiltgen was

acting negligently at the time of the collision is supported by the

evidence; but, as just explained, this finding establishes only

one part of the affirmative defense of contributory negligence.

The defendants argue that the testimony of the plaintiff's

expert regarding the effectiveness of the reflectors used on the

rear of the tractor-trailer and the average time necessary for

human reaction necessitates a finding that Peter Hiltgen's

negligent inattentiveness was a proximate cause of the accident.

Defense counsel have even provided us with mathematical

calculations showing that the deceased had ample time to react and

avoid, or at least mitigate, the fatal accident. However, even if

we accept the accuracy of their calculations, it does not require

the conclusion defendants propose.

The element of causation may be broken down into two parts:

factual or "but-for" causation and legal or proximate causation.

Hilliard v. City of Huntsville Elec. Util. Bd., 599 So.2d 1108,

1111 (Ala.1992). Factual causation, or "but for" causation, asks

whether the complained of injury or damage would have occurred but

for the act or omission of the party in question. Proximate or

legal causation asks whether the act or omission of that party is

of such a nature that a court of law will recognize it as the legal

cause of the injury. "In Alabama, the issue of proximate causation

9
hinges on foreseeability." Id. at 1111-12 (quoting Springer v.

Jefferson County, 595 So.2d 1381 (Ala.1992)). At most, defendants'

calculations could be said to establish factual or "but-for"

causation, i.e. that the collision would not have occurred but for

Hiltgen's inattentiveness. Proximate or legal causation is not as

easily demonstrated with scientific certainty and is most often a

question for the jury.

We must be especially careful when reviewing a denial of a

motion for judgment as a matter of law where the moving party has

the burden of proof on the issue in question.9 We cannot say that

the defendants presented such proof that a reasonable jury could

only reach the conclusion that Peter Hiltgen's negligence was a

proximate cause of the accident. Therefore, we must hold that the

jury's determinations regarding negligence and proximate causation

are supported by legally sufficient evidence.

MOTION FOR NEW TRIAL

Our review of the district court's denial of a motion for new

trial is more deferential than our review of a denial of a motion

for a judgment as a matter of law. "We will reverse the trial

court's denial of a motion for new trial only when there is a clear

showing of an abuse of discretion." Dawsey v. Olin Corp., 782 F.2d

1254, 1261 (5th Cir.1986).

1. WEIGHT OF THE EVIDENCE

9
See Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 n.
9 (5th Cir.1980); Steven A. Childress & Martha S. Davis, Federal
Standards of Review § 3.06, at 3-65 (2d ed. 1992); 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 2535,
at 592-93 (1971).

10
 Defendants argue that they are entitled to a new trial

because the jury's verdict is contrary to the great weight of the

evidence. To show an abuse of discretion, the defendants would

have to be able to show "an absolute absence of evidence to support

the jury's verdict." Dawsey, 782 F.2d at 1262 (quoting Bailey v.

Southern Pacific Transp. Co., 613 F.2d 1385, 1391 (5th Cir.) (per

curiam) (quoting Urti v. Transport Commercial Corp., 479 F.2d 766,

769 (5th Cir.1973)), cert. den., 449 U.S. 836, 101 S.Ct. 109, 66

L.Ed.2d 42 (1980)). Since we have already held that the jury's

verdict was supported by the evidence, we do not find an abuse of

discretion.

2. ERROR OF THE TRIAL COURT

Defendants also argue that they are entitled to a new trial

because certain instructions given to the jury and stipulated facts

read to the jury may have led the jury to believe that it could

find the Defendant Sumrall negligent on some unsupported general

theory of negligence. We have reviewed the district court's charge

to the jury and conclude that it accurately reflects applicable

law. In addition, we do not believe that the order of the

instructions created any risk of confusion. "Trial courts are

accorded great latitude in shaping instructions, and a verdict

based judgment will be reversed because of an erroneous instruction

only when the charge as a whole leaves us with substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations." Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th

Cir.1986) (citations omitted). We have no such doubt in this case.

11
 The defendants also cite the fact that the district court

read stipulated facts contained in the pre-trial order to the jury

at the beginning of the trial. To the extent that such stipulated

facts were not relevant to the issues to be tried, their submission

to the jury would seem to be contrary to Federal Rule of Evidence

402, which provides that "[e]vidence which is not relevant is not

admissible." However, we do not believe that any of the stipulated

facts created a substantial risk of confusion or prejudice.

Therefore, we find that the district judge did not abuse his

discretion in denying the defendants' motion for new trial on this

basis.

3. EXCESSIVE DAMAGES/REMITTITUR

The defendants also contend that the jury's award of punitive

damages is excessive and that they are entitled to a new trial on

damages or a remittitur of the jury verdict. The district court

properly instructed the jury on punitive damages, and the jury

awarded the plaintiff $1,500,000.00. On defendants' motion for new

trial or remittitur, the district court held a hearing to review

the award for excessiveness and applied the factors provided by

Alabama substantive law.10 The district court fully considered the

prescribed factors and held that the award was not excessive under

Alabama law. The district court's decision in this regard is

accorded considerable deference and should not be reversed absent

an abuse of discretion. Browning-Ferris Indus. of Vermont, Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 279-80, 109 S.Ct. 2909, 2922,

10
See Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).

12
106 L.Ed.2d 219 (1989). Applying this standard of review, we find

no error.

ABSTON'S VICARIOUS LIABILITY

In addition to the arguments applicable to both defendants,

Defendant Abston contends that he cannot be held liable for

Defendant Sumrall's actions. This argument requires us to review

both questions of law and findings of fact.

First, Abston argues that, as a matter of law, he cannot be

held liable for Sumrall's actions under the doctrine of respondeat

superior because federal regulations required Defendant Mason, as

the lessee of the truck, to have "exclusive possession, control,

and use" of the tractor-trailer provided by Abston.11 Indeed, the

lease, and the controlling federal regulations, provide the basis

for Defendant Mason's liability in the present case. In Simmons v.

King, this court recognized that the lessee's liability under such

a lease12 is not governed by the common law doctrine of respondeat

11
The Federal Motor Carrier Leasing Regulations governed the
lease entered into by Abston and Mason. Section 1057.12 of those
regulations states, in relevant part:

(c) Exclusive possession and responsibilities—

(1) The lease shall provide that the authorized carrier
lessee shall have exclusive possession, control, and
use of the equipment for the duration of the lease.
The lease shall further provide that the authorized
carrier lessee shall assume complete responsibility for
the operation of the equipment for the duration of the
lease.

49 C.F.R. § 1057.12.
12
In Simmons, as required by federal regulation, the lease
provided

13
superior. Simmons, 478 F.2d 857, 867 (5th Cir.1973). Instead, the

assumption of responsibility required by the federal regulations

made the loaned driver the statutory employee of the lessee, and

rendered the lessee vicariously liable as a matter of law. Id.

We also held in Simmons that the legal responsibility of the

lessee mandated by the federal regulations did not preclude the

lessor's liability under common law standards of control. Id.

This is not as incongruous as might be supposed. ICC can
mandate a positive legal responsibility which we uphold in the
only way it would be meaningful—to give protection to the
injured member of the public[.] At the same time [the lessor]
has, or may have, a practical control over [the driver] of a
kind which would allow it to obtain an automatic insulation
from liability from the mere terms of a lease between two
parties.

Id. Therefore, to determine whether Defendant Abston may be held

vicariously liable under the circumstances presented, we must first

look to the applicable state law.

The district court held that Mississippi law would be applied

to the determination of this issue and this ruling has not been

appealed. Although the Mississippi courts have used multi-factored

tests to determine vicarious liability in different contexts, it

also has held that the core issue is whether the employer had

sufficient control that he ought to be held liable for the

negligent acts of the "employee". See Fruchter v. Lynch Oil Co.,

It is understood that the leased equipment under this
agreement is in the exclusive possession, control and
use of the authorized carrier Lessee and that the
Lessee assumes full responsibility in respect to the
equipment it is operating, to the public, the shippers
and the Interstate Commerce Commission.

Simmons, 478 F.2d at 862 n. 13.

14
522 So.2d 195, 198 (Miss.1988).

The Mississippi courts have not addressed the application of

the doctrine of respondeat superior to a situation like this one

where a trip-lease purports to vest exclusive control over the

equipment in a third-party lessee. However, we have no reason to

conclude that the Mississippi court would allow an employer to

avoid vicarious liability by operation of such a contract while

retaining de facto control of the employee. Therefore, we hold

that under Mississippi law, an employer can be subject to vicarious

liability based on a right or power to control an employee's

actions despite the intervention of a written equipment lease that

purports to vest exclusive control in a third-party lessee.

Since we find that the vicarious liability claim against

Defendant Abston is not precluded by federal law or Mississippi

state law, we must consider the relevant facts and review the

district court's rulings on this issue. Abston testified that

Sumrall was working for him and was loaned to Mason for the purpose

of delivering specific cargo. Sumrall testified that he considered

Abston his boss. After the accident, Sumrall telephoned Abston to

report the accident and to obtain permission to complete the

scheduled trip. In addition, it is clear that Sumrall's activity

was in furtherance of Abston's business.

With these facts in mind, and in light of the law discussed

above, we do not hesitate to affirm the district court's rulings.

Clearly, these facts are sufficient to justify the district court's

denial of Abston's motion for summary judgment. In other words, we

15
agree that there existed a genuine issue of material fact with

regard to Abston's control of Sumrall. Likewise, we affirm the

district court's denial of Abston's motion for judgment as a matter

of law because the jury's finding with regard to Abston's liability

is more than sufficiently supported by the evidence.

CONCLUSION

After carefully reviewing the alleged errors raised by the

defendants, we are of the opinion that all of them are without

merit. Accordingly, the judgment of the district court is

AFFIRMED.

DeMOSS, Circuit Judge, dissenting:

I can think of nothing more "foreseeable" than the fact that

if you drive with only one headlight working (which is negligence

per se under Alabama Law) at 10:00 p.m. at a speed above the

maximum speed limit, and are inattentive to the road in front of

you, you may run into the rear of a slower moving vehicle. Since

the jury found that Hiltgen's decedent was negligent in one or all

of the assumed respects, I think we are quibbling over

technicalities to try to distinguish between factual or legal

causation. If the collision would not have occurred "but for" the

negligence of Hiltgen's decedent, as the panel majority concedes,

then in my view such negligence was certainly a cause of the

collision; and the circumstances of foreseeability in this case

are so clear that I would hold such cause to be a legal cause.

Every safe driving course taught in every high school and

every defensive driving course given to adults instructs over and

16
over again that the greatest danger in driving at night is

"overdriving your lights," i.e., driving at a speed which prevents

you from stopping in the visible distance ahead. I would hold

therefore, as a matter of law, that each driver on the federal

interstate highway system owes a duty to all other drivers to drive

at a speed which permits him to stop his vehicle in the visible

distance ahead. Even plaintiff's expert in this case recognized

this duty which arises out of the common sense recognition of the

many occasions in which road conditions (ice, snow, pavement

breakup repair work), slow moving traffic (farm tractors and

equipment), wild animals (deer), road debris (lost loads), and

vehicles damaged in prior collisions can create hazards which

require a driver to be able to bring his vehicle to a safe stop or

turn and avoid collision. Both of those curative actions are a

function of response time; and response time is a function of

visibility, and visibility is a function of lighting, and at night

hazards may not always have lights on them. That such occasions

may be "unexpected" does not make them "unforeseeable."

Furthermore, on a divided interstate freeway with two lanes

for vehicles' proceeding in the same direction, the ability to

change lanes quickly is a safety factor which permits faster moving

traffic to avoid and pass slower moving traffic. Consequently, if

one chooses to drive on our interstate freeways at or over the

speed limit, the safer place to be is in the left hand lane because

slower moving, entering traffic must enter the right lane from the

right and departing traffic must slow down in the right lane to

17
exit on the right. Highway signs generally instruct slow moving

traffic to use the right lane. The collision in this case occurred

in the right hand lane, the lane in which entering traffic can be

expected to be going at a slower rate than other traffic, and at a

point approaching an exit off the freeway.

The test of whether negligence is a proximate (legal) cause of

injury is a function of the scope of the duty, not whether the

negligence in question is the act of the plaintiff or the

defendant. If, for instance, in this case, the positions and

activities of the two vehicles and the negligence of their drivers

were exactly reversed, so that the truck, which is proceeding

without one headlight at a speed above the maximum truck speed

limit, collides with the rear-end of the Hiltgen automobile, which

is proceeding at 30 miles per hour in the right lane with its

lights off, would anyone seriously contend that a jury finding that

the negligence of the truck driver was not a proximate cause of the

collision was supportable under the facts? I think not. The jury

just let their sympathies override their reason in answering the

causation questions regarding the plaintiff's contributory

negligence. That a contributory negligence holding would result in

Hiltgen being unable to recover under the law of Alabama, may be an

argument for comparative fault; but it is no justification for

"hair splitting" over what is a legal cause and what is not a legal

cause.

The only evidence upon which the jury could rationally have

based its decision that Hiltgen's contributory negligence was not

18
a proximate cause of this accident was the testimony of plaintiff's

expert, Langley. But the trial judge correctly characterized

Langley's testimony as "unsupported and incompetent" and

sufficiently prejudicial to entitle defendants to a new trial.

Regrettably, the trial judge backed down on his initial

determination to grant a new trial; and therein I think the trial

judge erred. Simply because a timely objection was not made as to

the admissibility of Langley's conclusions does not cure the

inherent inaccuracy of such expert's testimony. You can't make a

silk purse out of a sow's ear just by not objecting.

I think the jury's finding of "no proximate cause" as to the

contributory negligence of Hiltgen is just plain "wrong and unjust"

and I would REVERSE and REMAND for a new trial. See King Coal Co.

v. Garmon, 388 So.2d 886 (Ala.1980).

19