(Miss. February 27,2003)
Civil - Personal Injury
Jimmy Abrams purchased a Marlin 336 lever action 30-30 caliber hunting rifle from Gary's Pawn and Gunshop in Mississippi. On December 30, 1994 Abrams sustained a self-inflicted gun shot wound to his leg while inside his truck.
Robin Minyard found Abrams lying in the middle of a road and thereafter a call was placed to 911. While awaiting the paramedics, Dallas Slatton, avolunteer paramedic attended to Abrams. Mr. Slatton testified to the presence of alcohol on Abrams' breath and tire tracks leading from nearby property to his truck. Inquiries by Mr. Slatton lead to Abrams' onfirmation that he had been spotlighting deer
. Paramedics transported Abrams to the hospital where despite all efforts his leg became necrotic and gangrenous and had to be amputated above the knee.
Abrams filed a products liability action against Marlin and Gary's Pawn Shop alleging the gun was defective.
The jury returned a verdict in favor of Marlin and Gary's
after hearing evidence on theories of negligence and strict products liability.
Abrams' motion for a new trial was denied and thereafter he brought this appeal asserting as error that the verdict was against the overwhelming eight of the evidence and the admission of the evidence of alcohol consumption and illegal hunting.
In determining whether the trial court erred in admitting evidence of his possible alcohol consumption the Court discusses the arguments presented by both parties. Abrams relies heavily on a prior decision in Donald v. Triple S Well Service Inc., 708 So. 2d 1318 (Miss. 1998). In Donald the court addressed the admissibility of evidence and stated, "testimony of alleged alcohol consumption should not be allowed before the jury without a minimal showing of admissibility or causal connection between the alleged consumption of alcohol and the accidents involving Donald." Id. (emphasis added). The court in Donald, found the evidence to be unfairly prejudicial and never established a habit of drinking. "The Court of Appeals' decision in Hageney v. Jackson Furniture of Danville, Inc., 746 So. 2d 912 (Miss. Ct. App. 1999), is more on point in that it deals with evidence of drinking just prior to the event in question in the context of a products liability action." "Specifically in Hageney, 'the trial court found that the Hageney's state of sobriety was relevant in the jury's assessment of their credibility in relating the events surrounding the incident, and Tim's consumption of alcohol was relevant to the issue of whether Tim was contributorily negligent.'" Id. (Citing Miss. Power & Light Co. v. Lumpkin, 725 So. 2d 721 (Miss. 1998)). In the present case the court found that evidence of possible alcohol consumption just prior to the accident was highly relevant and probative as to Abrams' credibility, his recollection of the accident since there were no other witnesses, and his contributory negligence.
Abrams also asserts the trial court erred in allowing evidence of illegal spotlighting of deer, however Marlin argues that the evidence was probative on the issue of Abrams' negligence. In determining the trial court did not abuse its discretion in allowing the evidence the court stated, "the activity of spotlighting was contemporaneous to the accident, and it surely cannot be said that the only manner in which the accident occurred was the manner to which Abrams testified" therefore the admission of evidence contrary to the testimony of Abrams was not error. Finally the Court disregarded Abrams' argument that the jury's verdict was against the overwhelming weight of the evidence. Justice McRae dissented on the basis that the evidence admitted was irrelevant and prejudicial.
