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Upchurch v. Rotenberry6/15/2000
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 05/08/96
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 6/15/2000
EN BANC.
. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.
STATEMENT OF THE CASE
. This case arises out of a one-car accident that occurred in Oktibbeha County on October 5, 1992. The plaintiff, Beverly Ann Upchurch (Upchurch), filed a Complaint against the defendant, Teresa Rotenberry (Rotenberry) and her father, Walter Rotenberry (Walter) on October 3, 1993. The suit was filed as a result of the alleged negligence of Rotenberry. The Complaint alleges that Rotenberry negligently lost control of her vehicle while driving on Highway 182 in Oktibbeha County, Mississippi, which resulted in the death of Upchurch's son, Timothy Adam Upchurch (Adam). The Complaint further alleged that the Rotenberry's father was guilty of negligent entrustment of the vehicle. More specifically, the Complaint alleges that Rotenberry is guilty of violating Mississippi Code Annotated § 63-3-501 regarding speeding, §63-3-1201 with regard to reckless driving and § 63-11-30 in that she operated her vehicle while under the influence of an intoxicating liquor.
. Walter and Rotenberry both filed an Answer to the Complaint joining issue on all material allegations . An Order of Non-suit Without Prejudice was entered in favor of Walter on May 20, 1994, and he ceased to be a party in this action.
. This case was tried in Oktibbeha County Circuit Court on the 22nd, 23rd, and 29th days of April, 1996. Rotenberry moved for a directed verdict at the close of Upchurch's proof which was denied. The jury returned a verdict in favor of the Rotenberry.
. Upchurch filed a Motion for Judgment Notwithstanding The Verdict Or In The Alternative For New Trial on May 15, 1996. Upchurch filed a Response to plaintiff's Motion on May 22, 1996. On September 23, 1996, Judge Lee J. Howard entered an Order Overruling Plaintiff's Motion For Judgment Notwithstanding The Verdict Or In The Alternative For A New Trial.
. Upchurch timely filed Notice Of Appeal to this Court on October 11, 1996. The appeal from the verdict of the Oktibbeha County Circuit Court jury and from the denial of the Motion for Judgment Notwithstanding The Verdict Or In The Alternative For A New Trial raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE FOR A NEW TRIAL.
II. THE JURY'S VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
III. THE COURT ERRED IN NOT ALLOWING EXPERT TESTIMONY ON THE ISSUE OF LOSS OF ENJOYMENT OF LIFE DAMAGES.
STATEMENT OF THE FACTS
. While the facts of this case are not necessarily disputed, this case is certainly not without evidentiary difficulties. The case at bar is a perfect example of "he said, she said," with regard to the investigations and testimonies of the Upchurch's and Rotenberry's experts.
. On the night of October 5, 1992, the decedent, Timothy Adam Upchurch, was riding in the passenger seat of Teresa Rotenberry's car while Rotenberry was driving. Adam was the only passenger in the car. The car was traveling west on Highway 182 in Oktibbeha County, Mississippi when Rotenberry lost control of her vehicle. Upchurch claims Teresa left the road suddenly without warning, causing injuries and damages to the dece
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