Estate of Carter v. Phillips and Phillips Constr. Co., Inc.
| Docket Number: | 2002-CA-01243-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-25-2003 Opinion Author: Myers, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Hearsay - Relevant evidence - M.R.E. 401 - Personal knowledge - Sufficiency of evidence Judge(s) Concurring: King, P.J., Bridges, Thomas, and Chandler, JJ. Non Participating Judge(s): Lee, J. Dissenting Author : Griffis, J. Dissent Joined By : Southwick, P.J., and Irving, J. Concurs in Result Only: McMillin, C.J. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 12-01-2000 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: John Kitchens Disposition: JURY VERDICT IN FAVOR OF PHILLIPS & PHILLIPS CONSTRUCTION CO., INC., ESTATE’S CASE DISMISSED WITH PREJUDICE. Case Number: 95-154 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ESTATE OF EUGENIA W. CARTER |
ORBIE S. CRAFT |
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| Appellee: | PHILLIPS AND PHILLIPS CONSTRUCTION | DAVID M. SESSUMS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Hearsay - Relevant evidence - M.R.E. 401 - Personal knowledge - Sufficiency of evidence |
| Summary of the Facts: | Eugenia Carter was injured in a motor vehicle accident. She filed a negligence suit against Phillips and Phillips Construction Company, which was performing upkeep on the right of way of Highway 18 in Rankin County. Carter died before trial, and the suit was revived by her estate. A jury returned a verdict for Phillips and Phillips, and Carter’s estate appeals. |
| Summary of Opinion Analysis: | Issue 1: Evidentiary objections Carter’s estate argues that the judge improperly allowed hearsay evidence from an officer with the Mississippi Department of Public Safety. In one instance, the officer was asked about a diagram she prepared as part of her investigation. This was not hearsay, as the officer was testifying to her conclusions. The officer also testified as to what one of the flagmen had told her he witnessed which is clearly hearsay. Allowing these statements over the estate’s objections was an abuse of discretion. The estate argues that the officer’s testimony regarding her investigation was irrelevant. M.R.E. 401 defines relevant evidence as any evidence having the tendency to make the existence of any fact of consequence more probable or less probable. The officer was asked about a diagram she prepared of the scene, about the number of flagmen present, and from which lane Mrs. Carter would have been turning. This information definitely would allow the jury to find the existence of material facts more or less probable, and was therefore relevant under Rule 402. The estate also argues that the officer lacked personal knowledge of the events concerning the accident and, since she was not qualified as an expert, could not give opinion testimony. The officer’s testimony was peppered with comments on what the scene was like at the time of the accident. She testified that there were two flagmen present, one on each end of the construction zone, and she testified to what she had been told happened. Not only is this hearsay, but it shows that her testimony was not based on personal knowledge. Therefore, it was error to admit this testimony. Issue 2: Sufficiency of evidence Carter’s estate argues that the court erred in failing to grant a new trial. Viewing the evidence in the light most favorable to Phillips & Phillips, it would appear that the third flagman the trooper saw was a logger with Phillips warning him to stop. This appears to be the same conclusion the jury reached by coming to the verdict it returned. Therefore, the judge was correct in allowing the verdict to stand. |
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