Shelton v. Coleman, 48415

• Decision Date: 08 December 1975
• Docket Number: No. 48415,48415
• Citation: 323 So.2d 90
• Parties: Mrs. C. A. (Mae) SHELTON, Plaintiff-Appellant, v. James Cedrick COLEMAN et al., Defendants-Appellees.
• Court: Mississippi Supreme Court

Page 90

323 So.2d 90

Mrs. C. A. (Mae) SHELTON, Plaintiff-Appellant, v. James Cedrick COLEMAN et al., Defendants-Appellees.

No. 48415.

Supreme Court of Mississippi.

Dec. 8, 1975.

Satterfield, Shell, Williams & Buford, Michael S. Allred, Sam S. Allred, Jackson, for plaintiff-appellant.

Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for defendants-appellees.

Before RODGERS, PATTERSON and SUGG, JJ.

PATTERSON, Justice.

This tort suit arises from the Circuit Court of Jefferson County, wherein Mrs. C. A. Shelton sought damages from James Coleman and James Embry, doing business as C and E Logging Company, and Luke Felton, their driver. The jury found against the plaintiff and she appeals, contending, among other things, that the verdict was against the overwhelming weight of the evidence and the trial court erred in entering a judgment in vacation.

The record demonstrates a jury question arising from conflicting testimony. The gist of the testimony of Felton, the driver of the log truck, and his witnesses was that the plaintiff came over on his side of a graveled road forcing him to leave the traveled portion to avoid hitting her automobile. He further testified that the plaintiff's automobile struck the rear wheel of his truck.

To the contrary, Mrs. Shelton, the plaintiff, and her witnesses testified that the log truck was on her side of the road coming around the curve and that she was forced off the right side to avoid striking the truck, but, nevertheless, the truck struck her automobile, inflicting damages to her.

In order to overrule a jury verdict we have held that this Court must find it was contrary to the overwhelming weight of the evidence and not a product of reason, but, rather, the result of bias, passion and prejudice. Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963).

The rule was stated in Illinois Central Railroad Co. v. Harrison,224 Miss. 331, 80 So.2d 23 (1955), as follows:

'The judge may not substitute his judgment for that of the jury merely because he would have decided the matter differently. . . . Conflicts in the testimony and the veracity of witnesses are for the determination of the jury, not the judge.' 224 Miss. at 338-39, 80 So.2d at 26.

We conclude the verdict of the jury was based upon evidence sufficient to support it and was not against the overwhelming weight of the evidence.

The appellant next contends that the judgment of the court was entered in vacation and is void. The trial concluded with a jury verdict for the defendants on an evening two days preceding the conclusion of the term. The appellant's attorney requested and received leave from the trial court to present to motion for a judgment n.o.v. and for a new trial in vacation. The defendants' attorney was in agreement with the above motion and thereafter, on the last day of the term, left a proposed form of the judgment in the circuit clerk's office. This judgment was not presented to the court and,...