BYRD (JOE ETTA) VS. HENRY (BILLY RAY), ET AL.Annotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOE ETTA BYRD
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 04-CI-00315
BILLY RAY HENRY; ESTATE OF
BILLY RAY HENRY; STATE FARM
AUTOMOBILE INSURANCE COMPANY;
ANTHEM HEALTH PLANS OF KENTUCKY,
INC.; AND KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY
** ** ** ** **
BEFORE: ACREE AND CAPERTON, JUDGES; ROSENBLUM,1 SPECIAL
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
ACREE, JUDGE: Jo Etta Byrd appeals the judgment of the Madison Circuit Court
entered pursuant to a jury verdict rejecting her claim for personal injury damages
suffered in a single vehicle accident with Billy Ray Henry.2 We affirm.
In the late evening of January 27, 2004, Henry was driving his new
pickup truck. Byrd was his passenger. Henry lost control of the vehicle and the
subsequent collision injured Byrd. Byrd, who had a close personal relationship
with Henry, nevertheless filed suit against him to recover damages.
Byrd and Henry gave consistent deposition testimony that the accident
occurred because of black ice on the highway. However, Henry later sent a letter
to Byrd’s attorney3 purporting to amend his deposition testimony. While his
deposition supported the defense that faulted bad weather and a sudden emergency,
his letter admitted he was driving faster than advisable under the circumstances,
was inattentive to his driving because he was eating a meal at the time and, after
the vehicle lost traction, reacted by oversteering. Byrd also changed her version of
the accident to place the blame more squarely upon Henry.
In July 2005, Henry was involved in a second automobile accident
and died from his injuries. Again, Byrd was his passenger. Henry was taking her
to a physical therapy session. Henry’s daughter, Jennifer, was appointed
administratrix and Henry’s estate was substituted as a party defendant.
Byrd originally instituted her action against Billy Ray Henry; however, Mr. Henry died before
the case came to trial. His estate was subsequently substituted as a party defendant.
The letter was addressed to Henry’s attorney and copied to Byrd’s attorney. However, Henry’s
attorney only learned of the letter from Byrd’s attorney.
Prior to trial, Byrd filed motions in limine. The purpose of the
motions was to prevent any reference to: (1) the fact that Byrd was married but not
to Henry; (2) the nature of the relationship between Byrd and Henry; and (3) the
circumstances surrounding Henry’s death, including the fact that Byrd was again
Henry’s passenger. The motions were denied.
At trial, Byrd testified that she and Henry were merely good friends.
They played bingo together, went fishing, played card games together, and grilled
out, but did not have a romantic or sexual relationship. She also testified she had
never lived or slept with Henry. Byrd acknowledged she was married, that her
husband had suffered a stroke and that he was a victim of Alzheimer’s disease.
Attempting to challenge the veracity of Byrd’s trial testimony (as well
as to explain Henry’s letter), Henry’s estate called two witnesses who were
allowed to testify over Byrd’s objection. Henry’s sister, Mary Mattox, testified
that Henry and Byrd had lived together at her sister’s home for at least six months
and that they shared the main bedroom in that house. Henry’s daughter Jennifer,
the estate’s administratrix, testified that her father had left her mother to be with
Byrd and that Byrd and Henry had lived together. She testified that Henry had a
tattoo of a heart with the inscription “Joe Etta Love”, and that Henry and Byrd had
exchanged rings to symbolize their relationship. She stated Henry wanted to marry
Byrd, but he could not because she was already married.
The jury returned a unanimous verdict in favor of the Henry’s estate,
finding no liability. Byrd moved for a new trial and was denied. This appeal
The only issue on appeal is whether the testimony of Mary Mattox
and Jennifer Henry was offered as character evidence in violation of Kentucky
Rule of Evidence (KRE) 608. We find it was not.
We review a trial court’s ruling regarding the admission or exclusion
of evidence for abuse of discretion. See Clephas v. Garlock, Inc., 168 S.W.3d 389,
393 (Ky.App. 2004). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. (internal quotation marks omitted).
The credibility of a witness may always be questioned. KRE 607
provides: “The credibility of a witness may be attacked by any party, including the
party calling the witness.”
We have thoroughly reviewed the videotaped trial proceedings upon
this issue and it is evident that the testimony of which Byrd complains was offered
to impeach Byrd’s own testimony that she had no romantic relationship with
Henry. Byrd was the only surviving witness to the accident. Testing the veracity
of her testimony was without question a proper subject of impeachment testimony
such as presented in this case. We find no abuse of discretion.
For the foregoing reasons, the judgment of the Madison Circuit Court
ROSENBLUM, SPECIAL JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Daniel A. Simons