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HOLMES COUNTY BANK AND TRUST COMPANY, EXECUTOR OF THE ESTATE OF PERRY STRICKLAND, DECEASED v. STAPLE COTTON COOPERATIVE ASSOCIATION

SEPTEMBER 10, 1986

HOLMES COUNTY BANK AND TRUST COMPANY, EXECUTOR OF THE ESTATE OF PERRY STRICKLAND, DECEASED
v.
STAPLE COTTON COOPERATIVE ASSOCIATION



BEFORE HAWKINS, P.J., ROBERTSON AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

In March, 1984, the plaintiff/appellant Perry Strickland obtained a jury verdict for personal injuries against the defendant/appellee, Staple Cotton Cooperative Association, in the Circuit Court of Leflore County in the sum of $200,000.00.

On appellee's motion for a new trial, the trial court found the damages awarded to be against the great and overwhelming weight of the evidence and so excessive as to be the result of bias, prejudice, and passion. He ordered a remittitur in the sum of $113,400.38, leaving an award of $86,599.62. The plaintiff was required to accept the remittitur or face a new trial. He appeals, and we agree with plaintiff/appellant.

 However, before proceeding, it should be pointed out that the plaintiff/appellant died in November, 1984, and that the executor of his estate, Holmes County Bank and Trust Company, is substituted here as appellant.

 The facts giving rise to the suit are well stated in the complaint and we recite the second paragraph:

 On March 12, 1983, plaintiff was operating his Datsun pickup truck in a northerly direction on Highway 49 just south of Greenwood in Leflore County, Mississippi, in a safe

 and prudent manner, when suddenly and without warning an oncoming, south-bound, 18-wheel tractor-trailer owned by defendant and operated by its employee, servant and agent Rubert M. Phillips, jackknifed and struck plaintiff's vehicle, knocking it off the highway and causing severe personal injuries to plaintiff as hereinafter more particularly described.

 It was not disputed that the operator of the tractor-trailer was acting within the scope of his employment and in furtherance of the business of the defendant/appellee. It was further alleged and supported by evidence that:

 4. Said negligent operation of his vehicle by Rubert M. Phillips consisted of his failure to keep said vehicle under reasonable and easy control, his failure to keep a proper lookout ahead, following another vehicle more closely than was reasonable and prudent under the circumstances then and there existing, in violation of Section 63-3-619 (1) of the Mississippi Code of 1972 and his operation of said vehicle at a rate of speed which was excessive under the circumstances then and there existing, consisting of heavy vehicular traffic in an area where there were many approaches to and from said Highway 49, to and from business establishments and private residences.

 The appellee asked for and received an instruction on contributory negligence; however, it is stated in appellee's brief that it" does not contend that it was entitled to a peremptory instruction on Mr. Strickland's contributory negligence, so the sole issue here is simply whether or not the trial court abused its discretion in holding that, based on the evidence of Mr. Strickland's injuries and damages, the amount of the verdict was so excessive as to be against the weight of the evidence. "

 The allegations of the complaint were amply supported by the witnesses and the circumstances. Also, there is no dispute concerning the plaintiff's injuries. Therefore, the question here is whether or not the trial court manifestly abused its discretion. Hynum v. Smith, 447 So.2d 1288 (Miss. 1984); Dorris v. Carr, 330 So.2d 872 (Miss. 1976). In deciding this question, we are to consider the record as a whole, and weigh the action of the trial judge according to the facts and circumstances of this

 case and in others. McNair Transport, Inc. v. Crosby, 375 So.2d 985 (Miss. 1979).

 The plaintiff's light pickup was knocked off of the highway and he was taken immediately to a Greenwood hospital and within a few hours removed by ambulance to the Baptist Hospital in Jackson, where he remained for 27 days and was there treated by Dr. Lucien Hodges, a neurosurgeon. The appellee in its brief gives the testimony of Dr. Hodges in part. We do likewise:

 His x-rays showed what we call a fracture dislocation of the 4th vertebrae in his neck on the 5th vertebrae; and in simple terms that means that one vertebrae has slipped forward a little bit on the other vertebrae and that it causes his neck to be unstable. Now we later got some what we call tomograms on him, and these showed a fracture through the joint of that level in his neck at the C-4 level. My diagnosis basically was a fracture dislocation of his cervical spine, the 4th on the 5th vertebrae. We felt that most likely the 5th cervical nerve root had some pressure on it because of his pain, and later because of the slight weakness that he had in his arm. This was pretty well relieved by the treatment that we gave him. I felt Mr. Strickland to be a pretty stoic individual. He didn't really complain of a lot of pain. He was, of course, very uncomfortable and he was uncomfortable with the treatment we gave him. But, you know, he had the usual soreness and stiffness in his neck and some coming out into his arm, although pain was never a great factor with him. I felt he was a stoic individual because he didn't complain very much. Sometimes you get a little bit more complaints than what he had.

 . . . .

 In my opinion the wreck caused these injuries. The treatment that I gave Mr. Strickland was that we put him at bed rest. For the first couple of days we used a cervical collar on him which restricted any movement of his neck and kept him in ...


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