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FELIX HENRY DUNN *fn1 v. JACK WALKER'S AUDIO VISUAL CENTER

MAY 10, 1989

FELIX HENRY DUNN *fn1
v.
JACK WALKER'S AUDIO VISUAL CENTER, A MISSISSIPPI CORPORATION



HAWKINS, PRESIDING JUSTICE, SPECIALLY CONCURRING:

I concur in the affirmance of this case, but I do believe there is merit in Justice Pittman's observations.

I do not believe we should assume a circuit judge's erroneous refusal to give a peremptory instruction on negligence is automatically, and always cured by a jury verdict in favor of the party requesting the instruction. It may or may not have been cured, and a patently modest verdict should be a factor in determining whether the error was prejudicial.

DAN LEE, P.J., JOINS THIS OPINION.

 EN BANC

 PITTMAN, J., DISSENTING:

 In the instant case there was an Order by the trial court granting plaintiff Dunn's motion on the issue of Walker's negligence directing that "this matter shall proceed to trial on the issues of proximate cause and entitlement to damages, if any" . Thereafter, the trial court instructed the jury by Instruction No. C.02 in regard to the burden of proof of the plaintiff, clearly setting out that the burden of proof is a preponderance of the evidence and further instructing the jury if the plaintiff failed the burden, they should find for the defendant. This instruction is contrary to the trial court's earlier finding as a matter of law, that Walker was negligent. The court below also granted Instruction C.00 as to form which instructed the jury that they could find "for the Defendant" which under the original finding of the court as to liability, the jury could not do. Further, the facts of the case support

 the summary judgment on the liability issue and preclude any other finding. To secondarily instruct the jury otherwise is to so confuse the jury that this Court should find reversible error.

 It is fiction for this Court to assume that when the trial court fails to properly instruct the jury on behalf of the plaintiff as to liability and to further allow the jury to second guess or reconsider liability as established by law is to denigrate or mitigate a right of the plaintiff at trial. It lessens the plaintiff's case and requires more of him than the law requires. Certainly it is intended that jury instructions carry weight with those sitting to decide a case. For this Court to assume that the failure to affirmatively instruct the jury that the defendant Walker was negligent under the law did not hurt the plaintiff's case because the jury ultimately found for the plaintiff, is to render jury instructions given by the trial court as unimportant and meaningless. The instruction in this case created a higher burden than the plaintiff had in law and that is to deny the plaintiff what the law gave him.

 This writer would reverse and remand for a new trial.

 SULLIVAN, J., JOINS THIS OPINION.   ¬†Opinion ...

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