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RICKY LAMAR SESSUMS, BY LAMAR SESSUMS, NEXT FRIEND v. DAVID McFALL and TRI-COUNTY HOME HEALTH CARE

AUGUST 02, 1989

RICKY LAMAR SESSUMS, BY LAMAR SESSUMS, NEXT FRIEND
v.
DAVID McFALL and TRI-COUNTY HOME HEALTH CARE, INC.



BEFORE HAWKINS, P.J., ANDERSON and BLASS, JJ.

BLASS, JUSTICE, FOR THE COURT:

Appellant Ricky Lamar Sessums, by his father and next friend Lamar Sessums, filed a complaint in Circuit Court of Leake County for injuries and damages growing out of a motor vehicle/motorcycle accident on a county road. Appellees/Defendants were David McFall, the driver of the vehicle, and Tri-County Home Health Care, Inc. (Tri-County), his

employer. Defendants admitted that at the time of the accident McFall was acting as the agent and servant of Tri-County within the scope of his authority and in furtherance of the business of the corporation.

 After a jury trial, a verdict was returned in favor of defendants. Feeling aggrieved of this verdict, Sessums appeals assigning the following errors:

 (1) THE LOWER COURT ERRED IN PERMITTING THE TREATING PHYSICIAN TO TESTIFY OVER THE OBJECTION OF APPELLANT AND IN REFUSING TO ALLOW APPELLANT CROSS EXAMINATION AS TO BIAS AND PREJUDICE OF SUCH WITNESS.

 (2) THE VERDICT OF THE JURY AND JUDGMENT OF THE COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND EVIDENCE AND THE COURT ERRED IN REFUSING TO GRANT A NEW TRIAL.

 (3) THE COURT ERRED IN NOT PERMITTING APPELLANT TO CALL ROBIN LEWIS AS A WITNESS.

 (4) THE COURT ERRED IN REFUSING INSTRUCTION CD-4 AS REQUESTED BY APPELLANT

 Finding merit in assignment number one, we reverse and remand for a new trial.

 I.

 The incident which gave rise to this law suit occurred on a narrow county road in Leake County, Mississippi on June 25, 1985. Plaintiff/appellant Ricky Sessums was riding north on his motorcycle on his way home. Defendant/appellee, David McFall was driving his automobile south on the same road. There is a factual dispute as to where and how the accident occurred. Sessums contends he was hit 75 yards south of a fork in the road at a willow bush; that McFall was on the wrong side of the road; and McFall's lack of control of his vehicle caused the accident. McFall contends that the accident occurred in the fork of the road; Sessums pulled out in front of him; and collided with his right fender. At the time of the accident, McFall was working for Tri-County Home Health Care, Inc., acting within the scope of his authority and in furtherance of the business of that corporation.

 There were no eyewitnesses to the accident other than the principals.

 II.

 DID THE LOWER COURT ERR IN PERMITTING THE TREATING PHYSICIAN TO TESTIFY OVER THE OBJECTION OF APPELLANT AND IN REFUSING TO ALLOW APPELLANT CROSS EXAMINATION ...


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