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McMillan v. Rodriguez8/15/2002
DATE OF JUDGMENT: 6/5/2001
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 08/15/2002
. Genaro Salinas Rodriguez (Salinas) and his wife, Maria Rodriguez, filed suit against Roger McMillan and J. A. Tucker on September 22, 1998. Their complaint alleged that McMillan and Tucker were liable for damages suffered by Salinas following an automobile collision with a Brangus bull owned by McMillan on Highway 365 in Tishomingo County, and Maria's resulting loss of consortium. On May 24, 2001, Tucker filed a motion for summary judgment. The case went to trial on June 4, 2001. After the jury was empaneled and dismissed for lunch, Tucker's attorney addressed the motion for summary judgment, arguing that Miss. Code Ann. § 69-13-111 (2001) controlled and placed all liability on the shoulders of McMillan. The motion for summary judgment was denied. Further, Tucker's and McMillan's counsel made a motion in limine for the exclusion of all testimony relating to any previous escapes by the bull. That motion also was denied. The case went to trial, and the jury returned a verdict for Genaro Salinas Rodriguez in the amount of $150,000.00, but Maria Salinas's claim for loss of consortium was denied. Judgment was entered accordingly. Alleging that the trial court improperly denied their motions for summary judgment and the exclusion of prior escape testimony, McMillan and Tucker have appealed.
. We conclude that the trial court was correct in denying the motion for summary judgment as a jury issue regarding negligence was clearly established. We also hold that the trial court did not abuse it discretion in admitting evidence of a prior occurrence under similar circumstances was being more probative than prejudicial. We affirm the trial court.
FACTS
. On the morning of April 21, 1998, Genaro Salinas Rodriguez, a naturalized Mexican American, was driving to work on Highway 365 in Tishomingo County, when his automobile collided with a registered Brangus bull. Salinas was taken from the scene of the accident to Iuka Hospital, and from there to North Mississippi Medical Center. He was treated for a fractured pelvis, broken ribs, and lacerations to his face.
. The Brangus bull had escaped from his pasture bordering Highway 365 and wandered onto the highway. The bull was owned by McMillan, but he kept it on Tucker's, his father-in-law, land with Tucker's cattle. The pasture was enclosed by various fences throughout and an approximately four foot high chain link fence on the side that fronts the highway. There was never any lease, license, or other instrument transferring an interest in the land executed between McMillan and Tucker. McMillan had previously owned a herd of cattle kept at a different location, but had sold it in either 1997 or earlier in 1998. McMillan had been in the cattle business for approximately five years. Tucker had been in the cattle business for approximately thirty years.
. Eleven days prior to trial, Tucker's counsel, who had recently been retained, filed a motion for summary judgment, but the motion was not heard until a jury had been empaneled on the day set for trial of the case, June 4, 2001. Tucker's counsel argued that since Miss. Code Ann. § 69-23-111 placed the presumption of liability squarely on the owner of the offending livestock, he could not be held liable for any of Salinas's damages. The plaintiff argued that they were not seeking to impose liability on Tucker under Miss. Code Ann. § 69-13-111, but instead were seeking to send the question of his liability to the jury under the common law theory of negligence. The trial court denied the motion for summary judgment. Tucker
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