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Jackson v. Daley6/3/1999
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V. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
.It is well settled that our authority to interfere with a jury's verdict is quite limited. Benson v. State, 551 So. 2d 188, 192-93 (Miss. 1989). Indeed, a jury verdict will stand unless the verdict illustrates bias, passion, and prejudice. Warren v. Ballard, 241 So. 2d 647, 649 (Miss. 1970). We will set aside a jury's verdict if the jury was improperly instructed, misled, confused, or ignores the weight of the evidence. McKinzie v. Coon, 656 So. 2d 134, 142 (Miss. 1995).
.In this case, the jury's verdict was supported by sufficient evidence. There was conflicting testimony as to whether Jackson's car even touched the dirt. Witnesses testified that they had successfully navigated the dirt on the same night. There was conflicting testimony about the visibility of the piles of dirt and how far they extended into the road. There was also testimony that Jackson was driving under the influence and speeding. Indeed, there was conflicting testimony about almost every issue in this case. We have repeatedly held that the jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony. Maiben v. State, 405 So. 2d 87, 88 (Miss. 1981).
.The jury in this case was presented with the conflicting testimony and made its determination under proper instruction. The jury determined that Jefferson Davis County was not liable for Jackson's death. We find that this decision is supported by the record and is not against the overwhelming weight of the evidence.
CROSS APPEAL
I. SOVEREIGN IMMUNITY LAW APPLICABLE ON AUGUST 15, 1989.
.A review of the applicable sovereign immunity law on August 15, 1989, the time of the accident, is in order.
.In 1982, this Court abolished judicially created sovereign immunity in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982), holding that it was the Legislature's duty to determine the extent of sovereign immunity. The Legislature responded by enacting Miss. Code Ann. § 11-46-1 et seq., a comprehensive torts claim act providing a limited waiver of sovereign immunity. Hord v. City of Yazoo City, 702 So. 2d 121, 123 (Miss. 1997). However, Miss. Code Ann. § 11-46-6 stated that the Act was not yet effective and that the common law that existed before Pruett would govern until the act became effective. In 1992, in Presley v. Mississippi State Highway Comm'n, 608 So. 2d 1288 (Miss. 1992), we held that Miss. Code Ann. § 11-46-6 was unconstitutional because it sought to revive law by reference. Subsequently, we held that Presley was to be applied prospectively only. Robinson v. Stewart, 655 So. 2d 866, 868 (Miss. 1995).
.This case is a post-Pruett, pre-Presley cause of action, because it arose on August 15, 1989. Therefore, according to Robinson, we follow Miss. Code Ann. § 11-46-6 which directs us to apply pre-Pruett common law.
.Pre-Pruett common law mandates a finding of whether the act involved is a discretionary function or a ministerial function in determining the liability of county officials individually. Coplin v. Francis, 631 So. 2d 752, 753 (Miss. 1994). An official is immune when the act being performed is discretionary. Coplin, 631 So. 2d at 753. We have held that maintenance and repair of roads are discretionary functions. Id. at 754. Thus, in the present case the individual members of the Board of Supervisors for Jefferson Davis County are immune from suit.
.Next we must consider whether Jefferson Davis County is immune from suit. It is well settled that a county has no liability except as authoriz
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