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JML - Standard Of Review - Credibility: Brown & Dodds V. K&m Tree Services, Inc.

Brown & Dodds v. K&M Tree Services, Inc., [Ms. 2160903, Feb. 9, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This unanimous opinion by Judge Thomas (Thompson, P.J., Pittman, Moore and Donaldson, JJ., concur), reverses the Jefferson Circuit Court’s granting judgment as a matter of law (JML) in favor of Defendant K&M (K&M) Tree Services, Inc. on a motor vehicle negligence claim.

The evidence was undisputed that K&M owned the truck operated by its employee Phillips which rear ended the plaintiffs. However, the accident occurred at 9 p.m., long after Phillips’s job duties as a tree cutter ordinarily ended for K&M. However, Plaintiffs Brown and Dodds each testified that Phillips told Brown that he had been “on his way to get his boss” at the time of the accident. Ms. *3. Phillips defaulted and did not appear at trial. Ms. *2.

Phillips’s boss, Kenneth Malone, the owner of K&M, testified that Phillips was not on his way to pick up Malone at the time of the collision and that in fact Phillips did not have permission to drive the truck. Ms. *7.

Malone testified that he had advised Nalley, the investigating officer, that Phillips had stolen the K&M truck or at least had taken it without permission. Ms. *8. However, Nalley denied that Malone told him that. Nalley testified that if Malone had told him that Phillips did not have permission to use the vehicle, he would have detained Phillips and afforded Malone the opportunity to file a police report on the night of the accident. Ms. *10.

K&M argued that the JML was proper because there was no direct evidence as to whom Phillips was referring in saying he was on his way to pick up his boss at the time of the crash and that it was equally plausible that he may have been referring to his spouse. Ms. *20. In rejecting this argument, the court noted that the “court must review the record in a light most favorable to [Brown & Dodds] and must resolve all reasonable doubts against [K&M].” Ms. *21, quoting Pryor v. Brown & Root, USA, Inc., 674 So. 2d 45, 47 (Ala. 1995). The court noted that “based on Phillips’s statement and the undisputed fact that he was driving K&M’s truck at the time of the accident, a jury could reasonably infer that the ‘boss’ to whom Phillips had referred was literally the owner of the employer, K&M, i.e., Malone.” Ms. *22.

The court also noted that certain comments made by the circuit court in the course of the arguments on K&M’s motion for JML indicated that the circuit court had given more weight to Malone’s testimony, which the circuit court appeared to find more credible than Dodd’s testimony. Ms. *23. In reversing, the court noted that

[E]ven assuming that K&M “presented strong evidence that contradicts [Brown & Dodd’s] evidence, the credibility and weight to be given to a witness’s testimony are matters for the jury to determine. It is not the role of the circuit court to consider the credibility of a witness when it is ruling on a motion for [JML].”

Ms. *23, quoting McCombs v. Bruno’s, Inc., 667 So. 2d 710, 713 (Ala. 1995).

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