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Clark v. Luvel Dairy Products9/25/2001
dn't raise my children to steal. I lead by example. What I do, I want my children to do. So I never stole anything from Jimmy Briscoe or Luvel Diary Products."
. This evidence, in my view, unquestioningly presented a factual question both as to whether Briscoe acted with malice toward Clark when he accused him of stealing and as to whether Clark actually stole from Luvel. It is well settled in this jurisprudence that the jury - not the trial judge, not the appellate court - is the judge and final arbiter of the credibility of the witnesses. Wetz v. State So. 2d 803, 812 (Miss. 1987). Likewise, it is well settled in Mississippi jurisprudence that the standard for granting a motion for judgment notwithstanding the verdict is extremely high, and the standard for the appellate court in reviewing a trial court's grant of the motion is the same. That standard has been stated as follows:
he trial court must consider all of the evidence - not just evidence which supports the non-movant's case - in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should he denied and the jury's verdict allowed to stand. Stubblefield v. Jesco, Inc., 464 So. 2d 47, 54 (Miss. 1984).
. The jury was faced with weighing the credibility of individuals who were confessed liars and thieves against the credibility of (1) a man who had an impeccable work record, (2) a man who was held in high esteem by the manager of the plant, (3) a man who tried to resign just one year earlier because he was tired of trying to produce for Luvel with individuals who had shown no pride in their work and possessed no integrity and character, (4) a man who was asked just one year earlier by both the president of the company and the manager of the plant to please stay because he was so valuable to them, (5) a man who had demonstrated his value and commitment to the company time and time again by responding positively to the company's call no matter what it was. The jury resolved the matter in favor of that man. That was the jury's right, and its verdict should be upheld.
. On this record, reasonable, impartial and fairminded men, and women, certainly could have reached different conclusions, but, in my judgment, it cannot be reasonably concluded, as does the majority, that the only verdict the jury could have reached was a verdict for Luvel and Briscoe. The majority seems to believe that the party with the greatest number of witnesses wins even if those witnesses are confessed liars and thieves. The majority also seems to believe that because Briscoe denied using the specific word "thief" that proved he did not use it. Further, the majority seems to overlook the fact that Clark testified that Briscoe told him that Briscoe had a lady who could identify Clark as having sold her some Luvel products. Could not the jury believe Clark, and if it did, did that not mean that Briscoe was accusing Clark of stealing the products the lady said she bought? For the reasons presented, I dissent.
KING, P.J., JOINS THIS SEPARATE OPINION.
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