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Donaldson v. Covington County3/27/2003
ufficiency of the evidence.
. Alternatively, the county argues that regardless of whether it breached its duty of ordinary care, there was substantial evidence that the breach was not the proximate cause of the accident. This includes: evidence regarding Donaldson's failure to take adequate caution under the road conditions, especially considering the load he was hauling; testimony from several witnesses who stated that just prior to the wreck, they noticed that he was in a hurry and specifically warned him to be cautious; and testimony from Chester King, who found Donaldson after the wreck, that only moments before Donaldson had passed him from behind at a high rate of speed.
. When a trial judge sits without a jury, an appellate court must review the record and accept all evidence that would reasonably support the judgment, together with any reasonable inferences that could be drawn from the evidence. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss. 1994). This Court must let stand trial judge's findings of evidentiary or ultimate fact when substantial evidence in the record supports those findings, or when findings are not clearly erroneous. Crowe v. Smith, 603 So.2d 301, 304 (Miss. 1992).
. This Court determines that the findings of the trial court were based on sufficient evidence. Both parties presented conflicting evidence regarding the presence of warnings and had several witness testify in support of their arguments. Because it observes the witnesses first hand, the trial court is in the best position to assess the persuasiveness of a witness and to decide what weight to afford that witness's testimony. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000).
. Donaldson requests that this Court reverse the trial court based on its failure to expressly refer to the MUTCD in its findings and based on the testimony of Exnicios. Failure to refer to the MUTCD does not rise to the level of a reversible error, and because there was considerable evidence and testimony rebutting Donaldson's claims, this Court is unable to find that the decision of the trial court was clearly erroneous.
IV. DOES THE MTCA VIOLATE PLAINTIFF'S RIGHT TO A JURY TRIAL?
. Mississippi Tort Claims Act cases are tried without a jury. Miss. Code Ann. § 11-46-13(1). Donaldson alleges that the MTCA denies his right to a jury trial provided by the state constitution, which provides in part: "[that] the right to trial by jury shall remain inviolate." Miss. Const. art. 3, § 31.
. Because Donaldson failed to raise this issue with the trial court or to give notice to the Attorney General, this issue is procedurally barred. When the constitutionality of a statute is challenged notice must be given to the Attorney General. Miss. R. Civ. P. 24(d); M.R.A.P. 44(a). See also Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss. 1999). Further, except in unusual circumstances, this Court should not consider any matter which has not first been presented to and decided by the trial court. Id. at 202. "The law is well settled that the constitutionality of a statute will not be considered unless the point is specifically pled." Id. The failure to raise the issue at trial and to notify the Attorney General renders the issue procedurally barred.
CONCLUSION
. For these reasons, the judgment of the Covington County Circuit Court is affirmed.
. AFFIRMED.
SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.
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