McMillan v. Rodriguez

• Decision Date: 15 August 2002
• Docket Number: No. 2001-CA-01090-SCT.,2001-CA-01090-SCT.
• Citation: 823 So.2d 1173
• Court: Mississippi Supreme Court
• Parties: Roger McMILLAN and J.A. Tucker v. Genaro Salinas RODRIGUEZ.

823 So.2d 1173

Roger McMILLAN and J.A. Tucker v. Genaro Salinas RODRIGUEZ.

No. 2001-CA-01090-SCT.

Supreme Court of Mississippi.

August 15, 2002.

Christi R. McCoy, Booneville, for Appellants.

David O. Butts, Barry Joe Walker, Tupelo, for Appellee.

Before SMITH, P.J., WALLER and CARLSON, JJ.

SMITH, P.J., for the Court.

¶ 1. Genaro Salinas Rodriguez (Salinas) and his wife, Maria Rodriguez, filed suit against Roger McMillan and J.A. Tucker on September 22, 1998. Their complaint alleged that McMillan and Tucker were liable for damages suffered by Salinas following an automobile collision with a Brangus bull owned by McMillan on Highway 365 in Tishomingo County, and Maria's resulting loss of consortium. On May 24, 2001, Tucker filed a motion for summary judgment. The case went to trial on June 4, 2001. After the jury was empaneled and dismissed for lunch, Tucker's attorney addressed the motion for summary judgment, arguing that Miss.Code Ann. § 69-13-111 (2001) controlled and placed all liability on the shoulders of McMillan. The motion for summary judgment was denied. Further, Tucker's and McMillan's counsel made a motion in limine for the exclusion of all testimony relating to any previous escapes by the bull. That motion also was denied. The case went to trial, and the jury returned a verdict for Genaro Salinas Rodriguez in the amount of $150,000.00, but Maria Salinas's claim for loss of consortium was denied. Judgment was entered accordingly. Alleging that the trial court improperly denied their motions for summary judgment and the exclusion of prior escape testimony, McMillan and Tucker have appealed.

¶ 2. We conclude that the trial court was correct in denying the motion for summary judgment as a jury issue regarding negligence was clearly established. We also hold that the trial court did not abuse it discretion in admitting evidence of a prior occurrence under similar circumstances was being more probative than prejudicial. We affirm the trial court.

FACTS

¶ 3. On the morning of April 21, 1998, Genaro Salinas Rodriguez, a naturalized Mexican American, was driving to work on Highway 365 in Tishomingo County, when his automobile collided with a registered Brangus bull. Salinas was taken from the scene of the accident to Iuka Hospital, and from there to North Mississippi Medical Center. He was treated for a fractured pelvis, broken ribs, and lacerations to his face.

¶ 4. The Brangus bull had escaped from his pasture bordering Highway 365 and wandered onto the highway. The bull was owned by McMillan, but he kept it on Tucker's, his father-in-law, land with Tucker's cattle. The pasture was enclosed by various fences throughout and an approximately four foot high chain link fence on the side that fronts the highway. There was never any lease, license, or other instrument transferring an interest in the land executed between McMillan and Tucker. McMillan had previously owned a herd of cattle kept at a different location, but had sold it in either 1997 or earlier in 1998. McMillan had been in the cattle business for approximately five years. Tucker had been in the cattle business for approximately thirty years.

¶ 5. Eleven days prior to trial, Tucker's counsel, who had recently been retained, filed a motion for summary judgment, but the motion was not heard until a jury had been empaneled on the day set for trial of the case, June 4, 2001. Tucker's counsel argued that since Miss.Code Ann. § 69-23-111 placed the presumption of liability squarely on the owner of the offending livestock, he could not be held liable for any of Salinas's damages. The plaintiff argued that they were not seeking to impose liability on Tucker under Miss.Code Ann. § 69-13-111, but instead were seeking to send the question of his liability to the jury under the common law theory of negligence. The trial court denied the motion for summary judgment. Tucker renewed his motion as a motion for directed verdict at the conclusion of the plaintiffs' case.

¶ 6. Next, Tucker's and McMillan's counsel made a motion to have all testimony or evidence of prior escapes by the bull excluded from evidence. Two months prior to Salinas's accident, the same Brangus bull had escaped from the pasture, crossed Highway 365 and entered the pasture of a neighboring farmer. Tucker and McMillan claimed that any such evidence's prejudicial effect outweighed its probative value because there was no evidence of how the bull escaped, although Tucker and McMillan speculated that it must have jumped the fence. Salinas's attorney argued that the evidence was merely presented to offer evidence of Tucker's and McMillan's notice of the existence of an dangerous condition. The trial court denied this motion as well.

¶ 7. After the witnesses had testified, the trial court sent the case to the jury on the following jury instructions. As to McMillan's liability, Jury Instruction No. 5 stated:

The Court instructs the jury that the owner of livestock found on the highways of this State, which cause wrecks or bodily injury, are responsible for the property damage and injuries caused by the livestock. It is not the burden of the injured person to prove that the owner of the livestock was negligent, but rather it is the burden of the owner to prove that the livestock got onto the highway through no fault or negligence of his own.

It is admitted by the defendant, Roger McMillan, that he owned the bull which got on to the highway and caused the accident which destroyed Mr. Salinas' car and injured him. It is not Mr. Salinas' burden to prove that Mr. McMillan's negligence caused the bull to be on the roadway, but it is the burden of Mr. McMillan to prove that the bull got there through no fault or negligence of his own. Negligence is doing an act which a reasonably prudent person would not do, or failing to do what a reasonably prudent person would do. If the defendant, Mr. McMillan has failed to prove that the bull go onto the road through no fault or negligence of his won, then you will return your verdict for the plaintiffs against the defendant, Mr. McMillan.

The trial court's instruction No. 6 dealt with Tucker's liability:

This Court instructs the jury that persons who keep cattle have a duty to prevent their escape. The keepers of such animals are responsible for harm done by them if the keepers fail to exercise reasonable care to control the animal and the harm done is of a sort normal for animals of its class. Therefore, if you find from a preponderance of the evidence that J.A. Tucker failed to exercise reasonable care to prevent the escape of the bull in question, and that the harm done was of the sort expected to occur in such circumstances, then you will return your verdict for the plaintiffs against the defendant, J.A. Tucker.

¶ 8. The jury returned a verdict in favor of Salinas for $150,000.00. McMillan and Tucker appeal that finding.

STANDARD OF REVIEW

¶ 9. This Court has repeatedly stated the standard of review for denials of motions for summary judgment:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court's grant or denial of a summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000) (citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)

). The admissibility of evidence rests within the discretion of the trial court. Clemons v. State, 732 So.2d 883, 887 (Miss.1999); Hayes v. State, 803 So.2d 473, 475 (Miss.Ct.App. 2001). However, this Court will review the record to determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. Id. Therefore, the trial court's discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice occurs. Id.

DISCUSSION

¶ 10. McMillan and Tucker raise the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN DENYING J.A. TUCKER'S MOTION FOR SUMMARY JUDGMENT AND MOTION FOR DIRECTED VERDICT.

¶ 11. Section 69-13-111 of the Mississippi Code Annotated provides:

The owners of livestock which through their owner's negligence are found on federal or state designated paved highways or highway rights-of-way shall be subject to any damages as a result of wrecks, loss of life or bodily injury as a result of said livestock being on the above designated highways. The burden shall be on the owner of any such livestock to prove lack of negligence....

Miss.Code Ann. § 69-13-111 (2001). Rule 56(c) of the Mississippi Rules of Civil Procedure states that the summary judgment motion "shall be served at least ten days before the time fixed for the hearing.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a...