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ROSALIE ROTWEIN v. SANDRA HOLMAN

JULY 20, 1988

ROSALIE ROTWEIN
v.
SANDRA HOLMAN, A MINOR, INDIVIDUALLY AND AS A MINOR BY NEXT FRIENDS AND FATHER AND MOTHER W. HENRY HOLMAN, JR. AND MRS. W. HENRY HOLMAN, JR.; W. HENRY HOLMAN, JR., AND WIFE, MRS. W. HENRY HOLMAN, JR.



BEFORE ROY NOBLE LEE, PRATHER and ROBERTSON

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Rosalie Rotwein has appealed from a judgment of the Circuit Court, First Judicial District, Hinds County, Mississippi, in favor of Sandra Holman and her parents, Mr. and Mrs. W. Henry Holman, Jr., denying recovery to Mrs. Rotwein for personal injuries alleged to have been sustained in an automobile accident. Appellant assigns two (2) errors in the trial below.

Facts

 On August 3, 1984, 18-year-old appellee Sandra Holman, accompanied by her younger sister, Janie, was driving her mother's new 1984 Jaguar from the parking lot of Fondren Station Post Office on Fondren Place in Jackson. As Sandra exited the parking lot and entered the street, she looked to the left and right and slowed down, but did not come to a complete stop. At the moment she began to turn into the street, a cup of coffee in the car spilled, and Sandra took her eyes off the road to reach for the cup. When she looked back up, she was on the rear of a 1982 Mercury Marquis. Sandra applied the brakes hard, but the Jaguar collided with the Mercury, causing $199.29 in damages to the rear of the Mercury and $543.20 in damage to the front of the Jaguar.

 The driver of the Mercury, appellant Rosalie Rotwein, 65 years old, immediately got out of her car to check on Sandra who was crying and upset. Sandra's sister Janie went to get their mother, appellee Mrs. W. Henry Holman, who was shopping at a clothes store across the street. Mrs. Holman came to the scene and asked appellant if she was all right. Appellant replied, "I'm fine." or "I'm all right." The police were not summoned. Appellant and Mrs. Holman exchanged names and addresses, and everyone left the scene.

 Appellant immediately went to her husband's office a short distance away. She told him that she had been in an accident and that she had "a bump about as big as a goose egg" on the left side of her head. After she rested,

 appellant and her husband took their car to a dealer for repairs; they went in separate cars, and appellant drove one of them.

 Law

 I.

 THE JURY VERDICT IN FAVOR OF THE APPELLEES WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND SAID VERDICT WAS ARBITRARY, CAPRICIOUS, OUTRAGEOUS AND SHOCKING TO THE CONSCIENCE, AND THE RESULT OF BIAS AND PREJUDICE.

 During voir dire of the jury, the attorney for appellees admitted negligence on the part of Sandra Holman. After the parties rested, the lower court granted a peremptory instruction in favor of appellees, Mr. and Mrs. W. Henry Holman, Jr., and granted a peremptory instruction on liability against Sandra Holman and in favor of the appellant. The peremptory instruction appears in the following language:

 The Court instructs the jury that Sandra Hyde Holman was negligent as a matter of law and the remaining issue for you to determine is the amount of damages, if any, sustained by Mrs. Rosalie Rotwein as a result of this accident.

 The above instruction did not appear in the record along with the other instructions, and was brought before this Court on a diminution of the record. Appellant argues that "there is absolutely no way of knowing whether or not [it] reached the jury." However, the copy of the instruction is certified by the circuit clerk as true and correct. Certification imports absolute authority, and the certified record is the sole evidence of the proceedings below. In Brown v. Sutton, 158 Miss. 78, 121 So. 835 (1929), the Court said:

 So long as it is a true transcript of what the record in the hands of the clerk actually shows, it cannot be impeached in the appellate court; and it cannot be, by us, varied or altered or amended . . . nor by statements in the ...


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