author: 11 EDWIN A. LOMBARD, Judge.

text:
    Sean GEORGE v. The DELTA QUEEN STEAMBOAT CO.
    No. 2001-CA-1902.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Rehearing Denied Oct. 7, 2003.

      Jeffrey S. Berkowitz, Dennis P. Couvil-lion, James H. Minge, Berit Catherine Hanna, James Minge & Associates, New Orleans, LA, for Plaintiff/Appellant.
    C. William Emory, Wilton E. Bland, III, Mouledoux, Bland, Legrand & Brackett, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   11 EDWIN A. LOMBARD, Judge.

This is an appeal of a judgment awarding damages under the Jones Act and general maritime law for the injuries suffered by a deckhand employed by Delta Queen Steamboat Company occasioned in the course and scope of his work while assisting in the mooring of the boat in Memphis, Tennessee.

STATEMENT OF FACTS

Sean George, appellee/plaintiff, was injured on August 27, 1998 during a routine landing in Memphis, Tennessee at Beale Street. The Beale Street landing is the Delta Queen’s normal landing location in Memphis. He had been working for Delta Queen for approximately a year, as a dishwasher for much of that time. He had participated in several landings at the Beale Street landing previously.

To accomplish the landing that resulted in the accident, several deckhands, including Mr. George, went onto the levee to receive the vessel’s mooring lines for the purpose of securing the vessel. During his attempt to secure the vessel, Mr. George became stuck in the mud up to his thighs and sustained a serious lower back injury that required surgeries and left him with some permanent disability.

| ¡/The lead deckhand of that operation, Teron Spencer, confirmed that he witnessed Mr. George get stuck in the mud on the bank of the river as the latter approached the heaving line that Mr. Spencer had thrown onto shore. Mr. Spencer further testified that the water level was low that day and that the mud on the bank, which the river had recently covered, looked hard — it appeared as mud that had dried out. Mr. Spencer had worked for Delta Queen for approximately four years at the time of trial and testified that he also had experienced trouble in the mud during landings previously.

Mr. Spencer testified that he had thrown Mr. George the spring line, which landed about 40 feet out. He witnessed Mr. George walk toward the line to reach it and then saw him start to sink down in the mud. The two other deckhands on the shore, Ronnie Anderson and Mike Bowers, helped Mr. George get out of the mud by using another line, a heaving line.

Mr. Spencer testified that there is another way to get the mooring line out to the deckhands: walking the line down the stage, or gangplank, while holding onto the handrail. The stage is approximately seven feet wide by 60 feet long. That method is difficult, however, because the stage is moving as the deckhand walks down, although there is a handrail on the side of the stage that can be grasped while carrying the heavy line in the other hand.

Additionally, Mr. Spencer testified that he had only received on-the-job training in landing techniques and that there was no training specifically geared toward what to do about mud on the shore. Moreover, during the landing in 13question, there was no warning issued by anyone concerning the river level being recently lowered and the possibility or probability of the mud being soft underneath the apparently-hard surface.

Mr. George testified that when the line was thrown to him, it went over his head a bit and, as he reached up for it, he sank into the ground that he suddenly had been standing on; ie., the seemingly-solid ground gave way with his upward bodily motion, although he testified that he did not actually jump up to catch the line.

Subsequent to the accident, Mr. George had a series of three epidurals performed. He also had MRIs and x-rays taken of his back. Both the independent medical examiner and his treating physician testified that he had a significant herniated disk at L5-S1, which was resulting in a pinched lumbar nerve root. Then, at the recommendation of his treating physician, Mr. George underwent a percutaneous diskec-tomy surgery. For a period of time, the pain lessened, but eventually returned and Mr. George had a second surgery — a lami-nectomy, followed by physical therapy. He returned to work for awhile, but not as a deckhand. He worked as a delivery person for a food business, but after a few weeks, the regular motion of getting in and out of his car with the food orders began irritating his back and he started having constant pain again.

Since the accident with the Delta Queen, Mr. George experienced two car accidents. Both were minor and neither accident produced injuries, according to his testimony.

[¿The master (captain) of the Creole Queen, Captain Albert James Christian, qualified as an expert in navigation and operation of the Mississippi River motor vessels that make riverbank landings. Captain Christian explained that the Creole Queen and the Delta Queen were similar in design and in the nature of their work, both being paddle-wheel driven and both carrying passengers. Additionally, both boats have similar boarding structures, including gangways and stages. Although the Creole Queen does not routinely make landings, it has done so over the past 15 years since Captain Christian has served as its master (beginning in 1986).

Captain Christian had been asked to review and provide opinions relative to the Delta Queen accident involving Mr. George. The procedure used by the Delta Queen, of throwing the line ashore to the deckhand, is the same procedure as that used by the Creole Queen. Captain Christian also had experience with landings at the Beale Street landing, specifically, and concluded that it was generally a fairly safe place to land the boat.

On direct examination, Captain Christian also testified that he believed the procedure utilized by the Delta Queen— throwing the heaving line — was safer than the alternative method of walking the line down the stage. Upon cross-examination, however, he acknowledged that he rarely has performed the stage method, and that the Delta Queen lands one out of every three or four times via the stage method. Therefore, Captain Christian acknowledged that, under certain circumstances, it might be more appropriate to walk the line out rather than throw it out.

Another expert testified in the area of safe operation and navigation of motor vessels, Frank M. Buck. Mr. Buck has over 40 years experience in the maritime industry and, until 1998, held a 500-ton master license, among other licenses Irrelative to operating vessels. Mr. Buck testified on direct that he believed the stage method was safe for deckhands to use if conducted properly and that some circumstances dictated the use of that method. When questioned concerning what the normal procedure would be when getting ready to land a boat in a situation as that presented at the Beale Street landing that particular time, Mr. Buck responded:

Normally you’d have — whoever’s going to be in charge — and this boat having this many mates, it would be the mate’s job to have a brief meeting prior to making the landing even though it’s the same landing area you’ve made many times. And based on my experience in the towboat business, trying to get out on the bank various means and ways when you know that a certain area has been underwater for a period of time, it’s very likely it’s gonna be awfully muddy.

Mr. Buck also testified about the grade of the ground in that area based upon the river having been receding at a fairly fast rate before the landing. In fact, Mr. Buck’s review of the Army Corps of Engineers’ river stages information indicated that the river in that location had been under water for a long time and only out from under water for a week or two at the time of the landing at issue. He stated that this is the type of information a river boat captain would want to know prior to effecting a landing and that captains have ready access to such information. Mr. Buck opined as follows with direct questioning:

Q: Is this the type of information that the captain would want to have before attempting a landing such as this, a bank landing?
A: Well, in my opinion, he should have that information before he ever arrives at the area.

Concerning the condition of the river bank following the river’s falling over a short period of time as was the case in the instant situation, Mr. Buck testified:

Q: Based upon your experience on the river, when the water recedes, what happens to the ground? Does it dry?
A: Yes.
DQ: Do you know if it dries through and through?
A: No, I don’t.
Q: In fact, that’s one of the problems, isn’t it, that you don’t know how dry it is, that there may be soft mud underneath a thin crust?
A: That is correct.
Q: Is this something that a captain should take into consideration in attempting a bank landing, considering that deckhands may be asked to go out onto that bank?
A: I think he should. And evidently somebody should have been aware of that, ‘cause after all, they had a 60-foot stage.
Q: Under these conditions where the river was falling this fast, was it safe to use the heaving line method to get that line out there to the deckhand?
A: It would be a lot safer to walk it out on the stage like I had said earlier, in my opinion.

The first mate of the Delta Queen, Larry Wilkinson, was unavailable during the beginning of the trial; thus, his deposition testimony was admitted in lieu of his ap-. pearance despite defense counsel’s later attempts to have him testify when he returned to town. In his deposition, Mr. Wilkinson explained that he had become promoted to first mate around 1989, but had worked for Delta Queen and for the Mississippi Queen since 1982.

On the date of the accident, Mr. Wilkinson worked a normal twelve-hour shift: 5:30 p.m. to 5:30 a.m. David Hardesty, the second mate, served as relief for the opposite twelve-hour shift ending at 5:30 p.m. Mr. Wilkinson testified that the accident occurred approximately a half hour after his shift had ended: around 6:00 p.m. that evening. Mr. Wilkinson did not see Mr. George sink into the mud, but did witness them pulling him out because he was maintaining the stage. Mr. Hardesty, who was on duty at the time, had left the bow because the batteries in the 17radio needed to be replaced and he asked Mr. Wilkinson to supervise the landing from the bow in his absence. Mr. Wilkinson watched the line being thrown to Mr. George, but did not see what happened after that time until the other deckhands were pulling him out of the mud. Mr. Hardesty returned shortly after retrieving the radio batteries. Finally, Mr. Wilkinson testified that there were no discussions relative to safety concerns when docking in the mud on the riverbank.

David Hardesty testified at trial that he had been employed by Delta Queen Steamboat Company since April 1995 when he entered the maritime field. He became a second mate in 1998, but was the head deckhand on a different boat, the American Queen, prior to promotion as second mate and a transfer to the Delta Queen in the summer of 1998.

At the time of Mr. George’s accident, Mr. Hardesty had only been second mate on the Delta Queen for a couple weeks. The American Queen and the Delta Queen were substantially different boats: the former was a much larger vessel and the Delta Queen was a steamboat. Mr. Har-desty testified that the procedure for landing the two boats was essentially the same: generally using the heaving method. He had participated in approximately 20 landings at the Beale Street area prior to the accident.

Mr. Hardesty testified that on the night of the accident, although the shift had changed and he was technically in charge of the landing, he had to leave the deck briefly to replace his radio’s battery so that he could stay in touch with the captain or the man on the stern during the landing. He asked the first mate who was standing nearby on the bow to watch the landing in his absence. Mr. Hardesty did not see any problems associated with the landing at the time he asked Mr. Wilkinson to watch the landing procedure. By the time that Mr. Hardesty returned |sto the bow (about five minutes later), the accident had already occurred. He did not receive a briefing on the accident, which frustrated him. Mr. Hardesty did not recall Mr. Wilkinson being on the bow upon his return.

Mr. Hardesty acknowledged that at the Beale Street landing, which is called a graded bank, for every foot that the river declines, it exposes about six feet of the bank. He also testified that the decision to use a particular method of getting the line to the shore purposes of securing the vessel often is made by the deckhands themselves, although the mates have supervisory authority and had the responsibility to warn the deckhands if the mates saw them getting into a troublesome situation on the shore.

One of the deckhands on duty with Mr. George the evening of the accident, Ronnie Anderson, testified at his deposition on May 22, 2000 that the line thrown to Mr. George was only about 15-20 feet long, but at trial he testified that it was around 70 feet long. He could not explain the difference in his testimony at deposition (nearly a year prior to the trial) and at trial.

Mr. Anderson stated that he observed Mr. George walking about five to ten feet towards the river to get to the heaving line after the latter got off the gangplank. Mr. Spencer had thrown the line, but it had not reached Mr. George. Mr. Anderson pulled Mr. George out of the mud using another heaving line that someone threw to him from the bow. Mr. Anderson stated that it took him approximately five to ten minutes to pull Mr. George out of the mud and during that time, he did not see either of the mates. Mr. Anderson testified that Mr. George took several steps toward the line and kept sinking more and more into the mud. He also testified, however, that Mr. George was standing still waiting for the rope to be thrown before he got stuck in the mud.

|aOn re-direct, plaintiffs counsel again impeached the witness with his prior deposition testimony that had been given a year earlier. In that deposition, Mr. Anderson testified that Mr. George had already reached the heaving line when he began sinking, but at trial he stated that Mr. George had not yet reached the line when he sank. Again, Mr. Anderson offered no explanation for his contradictory testimony.

The captain serving as master of the Delta Queen, Gabriel J. Chengery, also testified. He was in charge of the landing during which Mr. George was injured. Although Captain Chengery did not see the entire accident occur, he did see Mr. George sink into the mud up to his knees, as he recalled.

Captain Chengery also clarified that the decision to use the heaving line method as opposed to the stage method is made by the first mate, not the captain, during the landing. He stated that, as first mate, Larry Wilkinson “is aware that a lot of times the grading on these bank landings is so severe that even the 60-foot gangplank sometimes doesn’t even reach the water line where the water meets the dry land. And so sometimes it’s not practical to throw that line off the bow because the boat’s so far from dry land. So, I could understand where he may say one out of every three [the line is walked across the stage].” Captain Chengry finished by stating that in the Memphis landing at issue, the boat could arrive closer to the shore to be able to use the heaving method.

PROCEDURAL HISTORY

The case was set for a bench trial on May 30, 2001. Close to that date, defendant filed a Motion to Continue alleging that one of its witnesses-employees, Mr. Larry Wilkinson, was out of the country and, therefore, a continuance was 1 innecessary. The trial court admitted Mr. Wilkinson’s deposition. Although a request was made to hold the record open, such request was denied by the trial court.

The trial commenced on May 30th and continued through May 31st. The trial finally concluded on June 11, 2001.

On July 17, 2001, the court found that the defendant was hable in negligence under the Jones Act and that the Delta Queen was unseaworthy. The court entered judgment in favor of Mr. George and against defendant awarding general damages of $450,000.00 and special damages of $797,889.00 itemized as follows: (1) past lost wages — $40,733.00; (2) past employer meal costs — $8,408.00; (3) future wages— $231,824.00; and (4) fringe benefit contributions — $66,884.00.

Defendant appealed the damages awards and plaintiff cross appealed the trial court’s failure to award future medical expenses.

ANALYSIS

Applicant asserts that the trial court used the incorrect legal standard for determining negligence under the Jones Act; therefore, a de novo review of this record was conducted.

The trial court referred to “slightest negligence” as sufficient to sustain a finding of Jones Act liability, and stated that the plaintiffs burden to show causation is “featherweight.” The court cited Milstead v. Diamond M. Offshore, Inc., 94-1582 (La.App. 3 Cir. 9/6/95), 663 So.2d 137, writ granted, 95-2446 (La.12/15/95), 664 So.2d 440, aff'd in part, rev’d in part, 95-2446 (La.7/2/96), 676 So.2d 89.

Federal jurisprudence in 1997 clarified that seamen in Jones Act negligence cases are bound to the standard of ordinary prudence, not to a lesser standard of In care; ie., according to the court, Jones Act seamen are required to act as reasonable seamen under the circumstances. Similarly, Jones Act employers are not held to a higher standard of care than ordinary negligence, but are required to act as reasonable employers under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997). Inconsistent federal jurisprudence was overruled by that decision.

A year later, the Louisiana Supreme Court adopted the above standard concerning Jones Act negligence enunciated in Gautreaux and stated:

The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However, a seaman need only present “slight evidence” that his employer’s negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. The employer can introduce evidence of the seaman’s own negligence to reduce damages through application of pure comparative fault principles. Like his employer, the seaman must meet the standard of ordinary prudence by acting as a reasonable seaman would act under the same circumstances.

Foster v. Destin Trading Corp, 95-226 at pp. 3-4 (La.5/30/97), 700 So.2d 199, 208 (on rehearing) (citations omitted).

Additionally, the court in the same case reiterated the standard for unseaworthiness:

The owner of a vessel has a duty to furnish a seaworthy vessel. This duty is absolute and nondelegable. It extends to a defective condition of the ship, its equipment, or appurtenances. A ship’s equipment and appurtenances include most objects and things on or attached to the vessel regardless of whether the item belongs to the ship or is brought aboard by a third party.

Id. at p. 5-6, 700 So.2d at 209 (citations omitted).

Moreover, a crew that is inadequately trained or not sufficiently instructed in the use of the vessel’s equipment, or a crew that engages in unsafe methods of l^work has been considered to constitute unseaworthiness as well. See, e.g., Phillips v. Western Co. of North America, 953 F.3d 923 (5th Cir.1992).

Although the trial court may have used the incorrect case law and articulated the negligence standard inartfully, the factual findings are more than adequate to support the lower court’s determination of negligence on the part of Delta Queen. The captain and mates of the Delta Queen had a duty to evaluate and anticipate the likelihood of problems associated with the landing; i.e., the possibility of mud being soft underneath, which could pose a hazard for the deckhands on shore trying to retrieve the heaving line when thrown from the ship. An alternative method existed that would have been safer for the deckhands given the condition of the recently-dried mud on the bank, which information was readily available to the captain and mates of the vessel. The crew was familiar with the stage method where the line could be walked down to shore. Although that method has risks associated with it, too, under the circumstances with the river having recently receded within that last two weeks, it seems that the captain and mates might have opted for the stage method to avoid the possibility of injury to the deckhands if they got stuck in the riverbank mud.

Mr. George has no comparative negligence; his actions were consistent with those of deckhands on shore retrieving heaving lines to secure the boat. His •testimony is credible and logical, whereas Mr. Anderson’s testimony (that Mr. George kept walking forward into the mud) is not credible or logical. Also, the latter witness was impeached twice at trial. The trial court was correct in its credibility determinations and committed no reversible error in its conclusions regarding the negligence issue.

1,3Additionally, the trial court was correct in its determination that the Delta Queen was also unseaworthy based on its lack of adequate training, equipment, and safety procedures at the time of the accident. There was inadequate briefing and/or preparation of the crew prior to the landing in a situation that, under the specific circumstances that day, was risky.

Due to the above determinations, we need not reach the additional assignments of error raised by appellant.

Mr. George also appealed asserting that the trial court erred in failing to award damages for future medical care. Future medical expenses constitute a legitimate aspect of recovery even though the exact amount is not absolutely certain. Bly v. Prudential Prop. & Cas. Ins., 589 So.2d 495 (La.App. 5th Cir.1991). For purposes of our review of the trial court’s judgment regarding future medical expenses, we must ascertain whether the lower court abused its discretion in failing to award any damages for future medical expenses.

The record reflects that Mr. George’s treating physician, Dr. Bernard L. Manale, testified that Mr. George may need future medical treatment depending upon whether or not his condition worsens. When asked to give his prognosis for the future relative to Mr. George’s medical needs, Dr. Manale responded: “I think his prognosis is guarded. He’s not gonna [sic] have the pain that he had before his surgery. But he’s gonna [sic] have to watch what he does.” Dr. Manale elaborated on certain activities that Mr. George might have to avoid, which require certain back movements; e.g., “repetitive squatting, bending, working in cramped positions ..., etc.”

Additionally, when asked about what follow-up treatment was indicated for Mr. George, Dr. Manale explained that additional tests, such as MRIs or EMGs, 114would not be necessary unless they were necessary for ongoing treatment at that time; “[I]f he’s stable, symptoms haven’t progressed, we might not need those tests.” Concerning his pain, Dr. Manale stated that although Mr. George was currently stable, if his condition worsened, he would have to be seen in the office every three months if he were taking Vicodin.

Dr. Manale’s summary regarding the approximate future cost of Mr. George’s medical expenses was speculative. He testified:

So, his medical bills will be a thousand dollars, maybe a little bit more than that, a year. And I cannot tell you how many years he’ll have to come see me. I jus.t have no way of knowing. It might be two years. It might be five. It might be less. I don’t know.

Given the uncertain nature of the expert’s testimony, we cannot find that the trial court committed manifest error in failing to award a specific amount for future medical damages. Therefore, we will not disturb this aspect of the judgment.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Charles Kent LANGDON, Appellant, v. Helen Crocker LANGDON, Appellee.
    Nos. 2001-CA-01077, 2001-CA-01315.
    Court of Appeals of Mississippi.
    Sept. 9, 2003.

      Arnold F. Gwin, Greenwood, attorney for appellant.
    Charles R. Brett, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Chancery Court of Humphreys County granted Helen Crocker Langdon (Helen) a divorce from Charles Kent Langdon (Kent) on the ground of habitual cruel and inhuman treatment. Kent has appealed, arguing that the chancery court erred by failing to grant him a divorce on the ground of adultery, by erroneously dividing the parties’ assets, and by awarding Helen attorney’s fees and court reporter’s fees. Prior to the divorce, Kent appealed from an order of the Chancery Court of Humphreys County finding him in contempt of a temporary order. The two appeals have been consolidated.

FACTS

¶ 2. Kent and Helen were married on December 18, 1988. They had three children, all boys. At the conclusion of trial in this matter, one child was age 15 and two were age 12.

¶ 3. The parties separated on or about December 28, 1998. On March 4, 1999, Helen filed for a divorce on the ground of habitual cruel and inhuman treatment or irreconcilable differences. Kent answered and counterclaimed for a divorce on the same grounds. Helen amended her complaint to add the ground of adultery. Kent amended his counterclaim to add the ground of adultery.

¶ 4. Helen requested temporary relief. After a hearing, the chancery court awarded Helen temporary custody of the children, temporary child support, and temporary alimony. The court ordered Kent to make the monthly mortgage payments on the parties’ former residence, and to retain the hospitalization and medical insurance on Helen and the children that was in force at the time of the order. The court restricted Kent from selling any asset. Subsequently, Kent failed to make the mortgage payments. The court found Kent in willful contempt and entered a judgment against him for the amount of the missed payments, $5,513.92. The court ordered his incarceration if he did not pay the amount within four days. Kent failed to pay and was incarcerated. He was released upon posting a supersede-as bond pending appeal. See M.R.A.P. 8.

¶ 5. After a three day trial, the chancery court entered an order granting Helen a divorce on the ground of habitual cruel and inhuman treatment, awarding her custody of the two youngest children, and awarding Kent custody of the oldest child. The court determined child custody and visitation, divided the parties’ assets, and awarded Helen attorney’s fees and court reporter’s fees. Further, the court ordered Kent to pay Helen $525 per month in child support and $300 per month in alimony.

STANDARD OF REVIEW

¶ 6. This Court reviews the facts of a divorce decree in the light most favorable to the appellee. Fisher v. Fisher, 771 So.2d 364, 367 (¶8) (Miss.2000). In domestic relations matters, this Court will not reverse the findings of a chancellor unless the findings are manifestly wrong, clearly erroneous, or if the chancellor applied an incorrect legal standard. Henderson v. Henderson, 757 So.2d 285, 289-90 (¶ 19) (Miss.2000). We may reverse a chancellor’s findings of fact only where there is no “substantial, credible evidence in the record” to justify the findings. Id.

LAW AND ANALYSIS

I. DID THE CHANCELLOR ERR IN AWARDING HELEN A DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT RATHER THAN AWARDING KENT A DIVORCE ON THE GROUND OF ADULTERY?

¶ 7. Kent argues that the evidence of his habitual cruel and inhuman treatment was insufficient to support the chancellor’s finding that Helen was entitled to a divorce on that ground. The ground for divorce on the basis of habitual cruel and inhuman treatment must be proven by a preponderance of the credible evidence. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). “The conduct which evinces habitual cruel and inhuman treatment must be such that it (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) renders the marriage revolting to the non-offending spouse because it is so unnatural and infamous, and makes it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.” Mitchell v. Mitchell, 767 So.2d 1037, 1041 (¶ 14) (Miss.Ct.App.2000) (quoting Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). Generally, the conduct must be shown to have been systematic and continuous. Daigle, 626 So.2d at 144. However, a single incident may be of sufficient severity to prove the ground. Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). There must be a causal connection between the treatment and the separation. Daigle, 626 So.2d at 144.

¶ 8. In her order, the chancellor recited the evidence of Kent’s habitual cruel and inhuman treatment of Helen. Helen testified that Kent began abusing her six months after the parties’ wedding. She stated that Kent threw a snake in the bathtub with her when.she was pregnant with their youngest child. Helen testified that, in 1989, Kent beat her about the head and the resulting injuries caused her to be hospitalized for approximately one week. Three of Helen’s family members testified that on that occasion they witnessed Helen’s head and facial injuries, bruises on her neck and arms, and scratches, and that they knew of the hospitalization. Kent admitted that on this occasion he hit Helen with an open hand two or three times, but denied causing injury.

¶ 9. Helen testified that, during Christmas 1998, Kent hit her in the head and choked her. Helen admitted taking a handful of pain pills prior to this incident and that she “lost it” and destroyed the family’s Christmas tree. Helen’s sister testified that after this incident she witnessed Helen with bruises on her neck and arm and a bruised and bloody ear. Kent denied striking Helen on this occasion, and stated that Helen’s head injuries occurred when she fell and hit her head on the kitchen table. It was uncontested that Helen moved out shortly after this incident.

¶ 10. Kent testified that Helen bruises easily. He further testified that, after the parties’ 1998 separation, he periodically had to restrain Helen by holding her down. Helen’s sister testified that she saw bruises on Helen’s arm and neck in the summer of 1999. Helen testified that she sought psychiatric and psychological treatment due to Kent’s abuse.

¶ 11. Our review of the record indicates that the Langdons had a tumultuous relationship. During the marriage, Kent filed for divorce one time and Helen filed twice, though the parties reconciled. Helen testified that, in December 1995, she and Kent fought and he hit her in the neck and chest areas. She presented pictures of the arm bruises and stated that the altercation incited her second filing for divorce. No other witnesses testified about that incident. Helen also testified that Kent continually insulted her appearance in front of the children and others. That testimony was corroborated by several witnesses.

¶ 12. The chancellor stated that the testimony was sufficient to prove that Helen was entitled to a divorce on the ground of habitual cruel and inhuman treatment. We find sufficient evidence in the record to support the chancellor’s finding that Kent engaged in habitually cruel conduct. Helen testified about three occasions during the marriage when Kent hit her and caused injuries. These were instances of conduct endangering “life, limb or health,” creating a reasonable apprehension of danger. Daigle, 626 So.2d at 144. It is apparent from the testimony that the Christmas 1998 incident caused Helen’s departure from the marital home. Id.

¶ 13. Kent contends that the chancellor’s finding amounted to manifest error because Helen’s testimony lacked sufficient corroboration. Kent admitted to having struck Helen on one of the three occasions; he only contested the severity of the injury inflicted. Other corroborating evidence was the testimony of Helen’s family members that they witnessed her injuries after two of those occasions, and the photographs of the injuries from the third occasion. Because there were no eyewitnesses to any of the alleged abuse, the chancellor had to render her decision based on the parties’ competing versions of events and the available corroborating evidence. See Lobella v. Lobella, 722 So.2d 472 (Miss.1998). The chancellor’s finding was not manifest error.

¶ 14. Kent argues that the chancellor should have granted a divorce to him on the ground of adultery. At trial, Helen admitted that she had sexual relations .with someone approximately sixteen months after the parties separated. The chancellor found that Helen had committed undenied, uncondoned adultery, but that Helen’s adultery did not precipitate the cause of action for divorce. Helen filed for divorce on the ground of habitual cruel and inhuman treatment on March 4, 1999, and the adulterous behavior did not occur until the spring of 2000.

¶ 15. The case of Garriga v. Garriga, 770 So.2d 978 (Miss.Ct.App.2000), cited by the chancellor, parallels this case. In Gar-riga, the chancellor found that Mr. Garriga proved the ground of adultery and Mrs. Garriga proved the ground of habitual cruel and inhuman treatment. Id. at (¶ 22). The chancellor implicitly found that Mr. Garriga’s habitual cruel and inhuman treatment of Mrs. Garriga made the continuation of the marital relationship impossible. Id. at (¶ 15). After the Garrigas separated, Mrs. Garriga committed unde-nied, uncondoned adultery. Id. at (¶ 22). The chancellor granted the divorce to Mrs. Garriga on the ground of habitual cruel and inhuman treatment. Id. at (¶ 14).

¶ 16. This Court affirmed the chancellor’s resolution. Id. at (¶ 24). We stated, “[tjhere can be only but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for the divorce, the chancellor must then determine which of the parties will be granted a divorce.” Id. at (¶ 23). The Court stated that the chancellor must grant the divorce to the party whose conduct was the proximate cause of the deterioration of the marital relationship. Id. at (¶24). In the instant case, both parties proved their grounds for divorce. The chancellor found that Kent’s habitual cruel and inhuman treatment was the precipitating cause of the deterioration of the Lang-don’s marital relationship. The testimony indicated that Helen’s adultery occurred at least one year after she filed for divorce. The chancellor’s refusal to grant the divorce to Kent was not manifest error.

¶ 17. Kent also argues that, because Helen resumed marital relations and cohabitation with him after the 1989 and 1995 incidents, Helen condoned any cruel and inhuman treatment that may have occurred during those incidents. Kent argues that, because Helen condoned Kent’s conduct during the 1989 and 1995 incidents, those incidents cannot be considered as evidence of Kent’s habitual cruel and inhuman treatment of Helen.

¶ 18. Cruel and inhuman treatment is an offense of a continuing nature. Chaffin v. Chaffin, 437 So.2d 384, 386 (Miss.1983). It is not condoned by continuance of cohabitation, but may be condoned where the parties separated and then resumed the marital relationship. Id. However, where condonation has occurred, if the cruel conduct subsequently occurs, the previous offenses are revived for the chancellor’s consideration of the ground of habitual cruel and inhuman treatment. Id. Therefore, even if Helen condoned the 1989 and 1995 incidents by resuming marital relations with Kent, the chancellor properly considered those incidents as evidence of habitual cruel and inhuman treatment because Kent engaged in physically violent conduct toward Helen in 1998. This argument is without merit.

II. DID THE CHANCELLOR ERR IN THE DIVISION AND DISTRIBUTION OF THE PARTIES’ ASSETS?

¶ 19. Kent argues that the chancellor committed several reversible errors in her distribution of the parties’ assets. He requests that this Court remand to allow the chancellor to make a correct division in light of his assertion that the condition of the assets has changed since the chancellor’s order.

¶ 20. Division of marital assets is conducted according to Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). Initially, the chancellor must characterize each asset as marital or non-marital according to Hems-ley. Id. Then, the chancellor must equitably divide the marital property using the guidelines articulated in Ferguson, considering each party’s non-marital assets. Id. These guidelines are: “(1) substantial contributions to the accumulation of the property, including economic and domestic contributions by each party to the marriage, (2) expenditures and disposal of the marital assets by each party, (3) the market value and emotional value of the marital assets, (4) the value of the nonmarital property, (5) tax, economic, contractual, and legal consequences of the distribution, (6) elimination of alimony and other future frictional contact between the parties, (7) the income and earning capacity of each party, and (8) any other relevant factor that should be considered in making an equitable distribution.” Selman v. Selman, 722 So.2d 547, 552 (¶ 16) (Miss.1998). If, after equitable division, the marital property, considered with each party’s non-marital assets, will not adequately provide for one party, then the chancellor should consider alimony. Johnson, 650 So.2d at 1287.

A. Helen’s personal injury settlement

¶ 21. In 1997, Helen was involved in an automobile accident. She sustained back and shoulder injuries, and developed hy-droencephalus, for which she has a surgically implanted shunt transferring fluid from her brain to her stomach. Helen instigated a lawsuit against the other driver and his insurer. Kent did not assert a loss of consortium claim and was not otherwise a party to the suit. The case settled. Kent argues that the chancellor erred in finding that the settlement funds were non-marital.

¶ 22. The record reflects that there were two amounts received in settlement of Helen’s claim, one for $25,000, and, later, one for $200,000. Of the $25,000 amount, Helen’s attorney retained a portion for his fees, and used a portion to pay some of Helen’s medical bills, leaving a remainder of $2,723.27. Of the $200,000, Helen’s attorney retained one-third for his fees and added the $2,723.27 remainder, resulting in proceeds of $136,056.60. From this amount, the attorney subtracted deposition costs and $40,000, which was held in a certificate of deposit in the names of Helen and the attorney for payment of any subrogation claims that might arise within three years of the settlement. After the parties separated, the remaining $96,080.45 was disbursed in a check made out to both Helen and Kent. Kent endorsed the check and gave it to Helen. Helen bought a $40,000 certificate of deposit and used it as collateral to purchase a residence. She used the remaining settlement funds to purchase household items and to pay living expenses for herself and the three boys.

¶23. In Tramel v. Tramel, 740 So.2d 286, 290 (¶ 16) (Miss.1999), the supreme court held that the chancellor must use an analytic approach to classify proceeds of a personal injury suit as marital or personal. The analytic approach requires the chancellor to focus on the type of loss the settlement was intended to compensate. Id. at (¶ 12). “That portion of the proceeds allocable to compensation to the initially injured spouse for pain, suffering and disfigurement” is that spouse’s separate property and, thus, “should be awarded in its entirety to the injured spouse.” Id. at (¶ 18). “That portion allocable to lost wages, lost earnings capacity and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles.” Id. That portion allocable to loss of consortium is the separate property of the spouse who suffered that loss, and is to be awarded in its entirety to that spouse. Id. The Tramel court recognized that the personal injury settlement may not provide much guidance to the chancellor, and charged the chancellor with performing “the alchemy of turning gross sums into clear, detailed portions. To that end, he is entitled to see such evidence and argument as is necessary to make the most informed assessment.” Id.

¶ 24. In the instant case, the chancellor conducted the analysis required by Tramel. The chancellor found that there was no evidence as to those portions of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses to the extent they applied during the marriage. The chancellor found no evidence of loss of consortium. The chancellor stated that, based upon the testimony and the evidence, the entire $200,000 settlement was compensation for Helen’s injuries, pain, suffering and disfigurement, and was Helen’s separate property-

¶ 25. Kent argues that the chancellor erred by finding that the entirety of the proceeds of the settlement was non-marital. Kent’s argument is that, because there was evidence that Helen lost earnings capacity, incurred medical bills during the marriage, and that Kent suffered loss of consortium, the chancellor was bound to find that part of the personal injury settlement was intended to compensate those losses. Kent cites the evidence of those losses. The evidence that Helen lost earning capacity was her testimony that she tended to the parties’ car wash business prior to the accident and that the accident left her unable to continue that job. The evidence of medical expenses was Helen’s testimony that she incurred over $72,000 in medical bills, and that $40,000 was being held by her attorney for potential subrogation claims. The evidence that Kent suffered loss of consortium was his trial testimony that he still has a loss of consortium claim.

¶ 26. We find that there was substantial evidence supporting the chancellor’s determination. The chancellor found the evidence insufficient to conclude that any portion of the settlement was intended to compensate for Helens’ lost earnings capacity, her medical expenses during the marriage, or Kent’s loss of consortium. The chancellor found sufficient evidence to conclude the settlement was intended to compensate Helen for injuries specific to her under Tramel. We find that this was a reasonable conclusion in light of the evidence. There was abundant evidence that Helen incurred severe pain, suffering and disfigurement, which supports the chancellor’s conclusion that the $200,000 was intended to compensate her for those injuries. Kent presented no evidence of the value of Helen’s contributions to the marriage from her work at the car wash. Tra-mel contemplates that settlement proceeds are marital property if allocable to reimburse the parties for medical bills incurred during the marriage. Id. at (¶¶ 17-18). It may be presumed from the record that the $72,000 in medical bills were paid by the initial $25,000 settlement amount and by Helen’s insurance carrier. Thus, even if portions of the proceeds had been allocable to medical bills, there was no proof that any marital funds were used to pay those bills that would necessitate reimbursement. Kent refused to assert a loss of consortium claim in the lawsuit, so it was not error for the chancellor to conclude that none of the settlement compensated that loss.

B. Net proceeds from sale of vacant lot

¶ 27. Helen testified that, in 1997, she purchased a vacant 4.1 acre lot for $83,000. Helen’s father deeded his house to Helen for use as collateral for a mortgage on the lot. The lot was titled solely to Helen. In September 2000, Helen sold the vacant lot for $50,000. After payoff of the mortgage and attorney’s fees, her net receipt was $10,281.64. Of that amount, Helen used $5,240.41 to pay off another loan incurred during the marriage. Helen used the remaining $5,041.23 for living expenses for herself and the children after the separation. After the sale, Helen deeded her father’s house back to him.

¶ 28. The chancellor found that the net proceeds from the sale of the lot were Helen’s non-marital asset and that the proceeds had been depleted. Kent contends that the chancellor’s findings were error. He argues that the proceeds were marital property because the vacant lot had been acquired during the marriage.

¶ 29. Assets acquired during the marriage are presumptively marital assets subject to equitable distribution. Hemsley, 639 So.2d at 914. In this instance, the vacant lot was acquired during the marriage, giving rise to the presumption that it was a marital asset. However, an asset may be classified as non-marital if it is purchased with one spouse’s separate funds, such as gifts or inheritances. Ferguson, 639 So.2d at 929. Here, the evidence reflects that Helen’s father gave Helen the house for the sole purpose of facilitating her purchase of the lot. The use of the house was a gift to Helen that Helen used to procure the mortgage on the lot. There was no evidence that Helen made a down payment on the lot that could have come from marital funds, and no evidence of commingling. There was no evidence that Kent expended efforts that resulted in the lot’s appreciation in value. Carrow v. Carrow, 642 So.2d 901, 906 (Miss.1994). We find that there was substantial evidence to support the chancellor’s finding that the net proceeds from the sale of the lot were Helen’s separate asset. Moreover, the chancellor found that the asset had been depleted by its use to pay off a marital debt and to support Helen and the children. This issue is without merit.

C. Personal property and net proceeds from sale of residence

¶ 30. The chancellor used the Ferguson guidelines to divide the parties’ marital property. The chancellor gave Kent personal property valued at $80,150 and gave Helen personal property valued at $10,350. The chancellor ordered the sale of the parties’ former residence. The parties agreed that the value of the residence was $150,000, and the chancellor found that the equity in the residence was $88,650. The chancellor divided the equity equally between the parties. The chancellor noted that an airplane used by Kent in his former crop dusting business had been repossessed and sold, leaving a deficiency balance of $25,591.88. The chancellor found that Kent should pay this balance out of his portion of the equity.

¶ 31. Kent argues that the chancellor erred by subtracting the airplane debt from his portion of the equity because it resulted in his receipt of $5,792 less than Helen. While the chancellor made no specific findings as to the airplane debt, she considered the Ferguson factors in her division of the marital assets, and found that Kent should be responsible for the majority of the debt. “With respect to issues of fact where chancellor made no specific finding, this Court proceeds on the assumption that chancellor resolved all such fact issues in favor of the appellee, or at least in a manner consistent with the decree.” Smith v. Smith, 545 So.2d 725, 727 (Miss.1989). Ferguson does not require that the chancellor divide assets equally, only equitably. Love v. Love, 687 So.2d 1229, 1232 (Miss.1997). The chancellor noted that Helen had a significantly lower income and earning capacity than Kent. The record reflects that Kent was primarily responsible for the purchase, maintenance and disposal of the airplanes used in his crop dusting service. This issue is without merit.

D. Property taxes

¶ 32. The chancellor ordered Kent to pay delinquent property taxes on the parties’ former residence in the amount of $7,823.29. This amount reflects unpaid taxes from 1998, 1999, and 2000. Kent argues that the chancellor unfairly placed the tax burden upon him.

¶ 33. We find that the chancellor’s decision was not manifest error. The chancellor used the Ferguson guidelines to divide the marital property. The chancellor ordered Helen to pay the 2001 taxes and taxes for all years subsequent to the divorce until the sale of the residence. The chancellor noted that Helen earned $800 to $1,000 per month, while Kent earned $3,902.25 per month, and was eligible for a $15,000 yearly bonus. In light of Helen’s considerably lower income, it was permissible for the chancellor to order Kent to pay the delinquent taxes, which constituted a lump sum, while giving Helen the prospective tax burden.

E. Helen’s medical bills

¶ 34. This issue is one of contempt of the temporary order that is the subject of the consolidated appeal. The temporary order required Kent to continue providing the health insurance coverage already in force for Helen and the children pending the parties’ divorce. We presume from the record that Kent complied until April 2000, when he ceased to pay the premiums for Helen’s coverage. Helen’s coverage was therefore canceled. Kent purchased new health insurance for himself and the children. Helen testified that Kent never informed her that her coverage had been canceled. On November 14, 2000, Helen filed a motion for citation of contempt for Kent’s failure to retain her medical coverage, inter alia. She alleged that she incurred $2,863 in medical bills during the time she was uninsured.

¶ 35. Kent testified that he mailed the insurance premium in April 2000, and that the insurance company returned his check and mailed him a letter stating that it was discontinuing medical coverage in Mississippi as of November 1, 2000. The chancellor found that the temporary order required Kent to retain health insurance on Helen and that Kent failed to do so. The court ordered Kent to pay Helen the $2,863 in medical bills “in view of [Helen’s] medical condition and all other factors of this case.”

¶ 36. We view the chancellor’s decision as a finding of civil contempt and an imposition of monetary sanctions for damages sustained thereby. Illinois Cent. R.R. Co. v. Winters, 815 So.2d 1168, 1180 (¶ 47) (Miss.2002). This Court will not reverse a finding of civil contempt unless the lower court committed manifest error. Id. at (¶ 45).

¶ 37. On appeal, Kent argues that the chancellor erred in holding him in contempt because it was impossible for him to comply with the temporary order. He asserts that he could not continue Helen’s coverage because the insurance company returned his premium. He cites the insurance company’s letter as evidence that it was canceling the policy and would not accept premiums. We review the evidence of Kent’s inability to comply with the order. Kent mailed the premium check, which was dated April 1, 2000, to the insurance company. The check was returned to Kent in its original envelope, which bears a stamp stating “return to sender” and “no such number.” The insurance company’s letter, dated April 28, 2000, states that the coverage would terminate in November “provided coverage is otherwise in-force [sic] and premiums for coverage have been paid when due.” There was substantial evidence for the chancellor to conclude that the insurance company never refused any premiums to secure Helen’s coverage from April until the November cancellation date. The chancellor did not commit manifest error by finding Kent in contempt.

¶ 38. Kent also argues that the chancellor’s decision was unsupported by the evidence because Helen submitted insufficient proof of the medical bills. The record shows that Helen testified that she incurred over $2,863 in medical bills during the applicable time period. She testified to particular bills for $500, $200 and $1700. Kent never contested Helen’s assertion that she incurred the bills. The chancellor chose to credit Helen’s testimony as to the amount of the bills. See McLemore v. McLemore, 762 So.2d 316, 321 (¶ 17) (Miss.2000). The chancellor’s decision was not manifest error.

F. Attorney’s fees and court reporter’s costs

¶ 39. Helen requested attorneys’ fees and costs. The chancellor found that Helen lacked the ability to pay these expenses. The chancellor ordered Kent to pay $3,000 in attorneys’ fees and $383.70 in court reporting fees. Kent argues the chancellor’s award was error because Helen had an “obvious ability” to pay her attorneys.

¶ 40. “The general rule is that if a party is financially able to pay his attorney fees he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Lobella v. Lobella, 722 So.2d 472, 475 (¶ 13) (Miss.1998). In assessing the appropriateness of an award, the chancellor should consider the relative financial ability of the parties. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). “[W]here the record shows an inability to pay and a disparity in relative financial positions of the parties, there is no error in awarding attorney’s fees.” Bates v. Bates, 755 So.2d 478, 482 (¶ 11) (Miss.Ct.App. 1999). Additionally, the chancellor should consider “the skill and standing of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.” McKee, 418 So.2d at 767.

¶ 41. In the case sub judice, the chancellor examined the hourly rates of Helen’s three trial attorneys and found they were reasonable. The chancellor stated that, considering Helen’s income, non-marital assets, monthly expenses and the awards made in this case, that she does not have the ability to pay her attorney to pay the court reporting fees. The court noted that Helen has had physical problems since the accident and has limited education and work experience. Our review of the record indicates that Helen met her burden of proof to show that she was unable to pay the attorneys’ fees and costs. As previously noted, there was a significant disparity in the parties’ incomes and earnings capacity. The chancellor’s award was within her sound discretion.

III. DID THE CHANCELLOR ERR IN ORDERING CHARLES TO PAY AN EXCESSIVE AMOUNT .OF TEMPORARY SUPPORT AND IN FINDING HIM IN CONTEMPT OF COURT AND ORDERING HIS INCARCERATION FOR FAILURE TO PAY?

¶ 42. After a hearing, the chancellor held Kent in civil contempt for his failure to pay the mortgage as required by the temporary order. The chancellor allowed Kent several days to make the payments or be incarcerated. Kent failed to pay.

¶43. Whether a party is in civil contempt is within the chancellor’s substantial discretion. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995). The chancellor’s finding will be upheld absent manifest error. Illinois Cent. R.R. Co., at (¶ 45). At the hearing, Kent asserted that he was unable to make the mortgage payments. “A defendant may avoid a judgment of contempt by establishing that he is without the present ability to discharge his obligations. However, if the contem-nor raises inability to pay as a defense, the burden is on him to show this with particularity, not just in general terms.” Varner, 666 So.2d at 496.

¶ 44. Kent failed to file for modification of the temporary order prior to being held in contempt of the order. At the hearing, Helen testified that Kent made $50,000 per year with a yearly bonus of $20,000. Kent alleged that his sole income was $3011 per month as a farm manager. He stated that housing was provided as part of his farm managing job, but that he was responsible for utilities. He asserted that his monthly expenses were $1500 in temporary child support and alimony and $294 in medical insurance. He alleged that, with these expenses, making the mortgage payments of $1100 per month would leave him with only $117 per month for living expenses. He stated that he had been discharged from a crop dusting job because his employer feared liability. Kent did not offer any documentary evidence of his income and expenses. The chancellor was within her discretion in finding that Kent had not demonstrated his inability to make the monthly mortgage payments and in holding him in contempt.

¶ 45. THE JUDGMENTS OF THE CHANCERY COURT OF HUM-PHREYS COUNTY ARE AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THESE APPEALS ARE ASSESSED TO CHARLES KENT LANGDON.

McMILLIN, C.J., KING AND SOUTHWTCK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.


author: McMILLIN, C.J.,

text:
    Timothy HOGAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00521-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.

      David Lydell Tisdell, Tunica, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Timothy Hogan has appealed his conviction on three felony counts by a jury in the Circuit Court of Coahoma County. The three counts arose out of a single incident involving Hogan’s alleged improper appropriation of a motor vehicle and his ensuing efforts to injure two police officers trying to arrest him. Those efforts allegedly involved driving toward the officers with the vehicle and striking them or the vehicles the officers were in. Hogan raises four issues in his appeal. We determine that the issues are without merit and affirm the verdict and resulting judgment of sentence entered in the circuit court.

I.

Facts

¶ 2. In August 2001, police officers were attempting to arrest Hogan on an outstanding arrest warrant. Acting on a tip, Officer Otha Hunter went to an apartment complex and spotted Hogan. Hogan attempted to flee. In the course of his flight, Hogan ran to the parking lot of a nearby restaurant and jumped into a customer’s parked car that had been left with the engine running. After initially appearing to comply with law enforcement officers’ demands to exit the vehicle, Hogan suddenly drove the car towards an approaching officer. The car came in contact with the officer and he was dragged for some distance before he could free himself. The officer then fired a shot to deflate a tire on the vehicle to stop Hogan’s escape. Hogan responded by driving the car toward the officer and striking him a second time.

¶ 3. Hogan then drove the vehicle into another police cruiser that had appeared on the scene. The impact of that collision was of sufficient force to throw the officer driving the cruiser out of the vehicle and into some nearby bushes.

¶4. By that time, other officers had arrived and there was a significant amount of gunfire as they attempted to disable the automobile Hogan was driving. The efforts to stop Hogan’s flight were unsuccessful, however, and Hogan drove away from the scene. Shortly thereafter, he stopped the car — by then significantly damaged by gunfire — -and fled on foot. He was apprehended before he managed to elude the pursuing officers.

¶ 5. Hogan was indicted for one count of taking away a motor vehicle and for four counts of aggravated assault; one count as to each of the four police officers who were on the scene in the restaurant parking lot. He was tried on all five counts. The jury convicted him on the motor vehicle count and for aggravated assault on two of the officers.

¶ 6. In this appeal from those convictions, the first three of Hogan’s four issues deal with the trial court’s decision to grant one particular instruction requested by the prosecution. Hogan’s issues consist of several alternate arguments for the contention that it was error to give the instruction. We treat them under the general assertion that it was error to give the instruction, dealing with the alternate reasons advanced by Hogan as sub-issues to be addressed in the order presented by him in his brief. The fourth issue as defined by Hogan actually presents two distinct, though related, contentions. One is that the evidence was insufficient as a matter of law to support a conviction. The other is that the guilty verdicts are against the weight of the evidence to the extent that it would work a manifest injustice to permit them to stand.

II.

The Jury Instruction

¶ 7. Hogan contends that the trial court committed reversible error when it granted instruction C-31, which stated as follows:

It is presumed that a person intends the necessary or natural and probable consequences of his act.

¶ 8. His three contentions regarding this instruction are (a) that case law has established that it is reversible error to give such an instruction in the situation where specific intent is an element of the crime; (b) that the instruction is an incomplete statement of the law; and (c) that granting the instruction effectively denied the defendant his right to assert the defense that he acted under duress.

¶ 9. When the trial court took up proposed jury instructions, the matter of the propriety of this requested instruction was resolved in the following discussion:

BY THE COURT: Yes, sir. Now that brings us to the final instruction, S-2. Have you seen S-2?
BY [defense counsel]: Yes, sir, and I object to it.
BY THE COURT: You object to it?
BY [defense counsel]: Yes, sir.
BY THE COURT: Well, actually I’m going to grant this instruction.
BY [the prosecuting attorney]: Thank you, Your Honor.
BY THE COURT: Okay. S-2 will be given. Well, I’m going to re-number it to instruction number C-31. All right, anything further at this time before we go back out and instruct the jury?
BY [defense counsel]: Not from the Defense, Your Honor.

¶ 10. “It is the rule of this Court that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection.” Walker v. State, 740 So.2d 873, 887 (¶ 56) (Miss.1999). We find that this alleged error in the manner that the jury was instructed was not properly preserved for appellate review and is, therefore, procedurally barred.

¶ 11. Even with the procedural bar in place, there remains the possibility that the granting of the instruction was an error so impacting the fundamental fairness of the trial that we ought to note it as plain error. See, e.g., Berry v. State, 728 So.2d 568, 571(¶ 5) (Miss.1999); Hunter v. State, 684 So.2d 625, 636 (Miss.1996). We do not conclude the granting of Instruction C-31 to be that sort of error. The recognized problem with the instruction is that it is an abstract statement of the law that provides little, if any, concrete assistance to jurors. Hydrick v. State, 246 Miss. 448, 451, 150 So.2d 423, 424 (1963). However, it is only in cases where specific intent is an element of the crime that the instruction has been deemed reversible error. Thus, for example, in the hypothetical situation of a murder case where the victim is killed by a blow to the head from a blunt instrument, it would constitute reversible error to instruct the jury that the defendant’s specific intent to cause the victim’s death — a necessary element of murder— can be supplied by nothing more than the presumption that the defendant knew, or at least the law charges him with knowledge, that such a blow was likely to cause death. The instruction is apparently found objectionable in those circumstances because it raises the possibility that the jury will not fully deliberate the distinct issue of specific intent, but rather will rely on the instruction to assume the necessary intent from the circumstances of the event alone, even in instances where the actual intent may not, in fact, exist.

¶ 12. However, in cases that do not involve specific intent, the mere fact that the instruction is objectionable as being purely abstract and, thus, unhelpful to the jury is not considered to necessarily constitute reversible error. Stegall v. State, 765 So.2d 606, 609-10 (¶¶7-8) (Miss.Ct.App.2000). Aggravated assault has been determined by the Mississippi Supreme Court not to be a crime of specific intent. McGowan v. State, 541 So.2d 1027, 1029 (Miss.1989). Thus, while it appears beyond dispute that the instruction was objectionable as being an unhelpful abstract statement of the law, in this situation it does not have the sort of adverse impact on the fundamental fairness of Hogan’s trial that would require us to note it as plain error.

¶ 13. Hogan argues in the alternative that this abstract statement was erroneous as being an incomplete statement of the law. Hogan relies on the case of Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (Miss.1963) to support his argument. The instruction in that case said that an inference could be drawn that the defendant intended the consequences that a person should reasonably expect from his intentional acts unless the evidence showed to the contrary. Id. at 426. Hogan points out that the version of the instruction given in his case did not require that his acts be intentionally done, nor did it deal with the effect to be given to evidence tending to be contrary to the presumption. Hogan is incorrect in his claim that the supreme court approved the more expansive instruction in Hydrick. To the contrary, the court found the instruction to constitute reversible error because Hydrick was charged with a crime for which specific intent was a crucial element. Id. Thus, the contention that the objectionable nature of this instruction could have been resolved by expanding it further is without merit.

¶ 14. Hogan’s third argument against the instruction is that, in giving it, the court somehow nullified his defense of duress. Hogan had attempted during trial to defend on the theory that his conduct in driving the vehicle toward the officers and in subsequently fleeing was accomplished under duress because the officers in pursuit of him were using unreasonable force by subjecting him to a barrage of gunfire that was not justified under the circumstances. According to his theory of defense, this caused him to fear imminent serious injury or death if he were not somehow able to end their efforts or escape their presence. Hogan received an instruction on duress and we see no arguable basis to conclude that an abstract instruction such as C-31 had the effect of negating the duress instruction. In the same manner we reviewed Hogan’s contention that the instruction violated the prohibitions contained in Hydrick to see if plain error occurred, we have looked at this contention- by Hogan to determine whether it might constitute plain error. Not only does this complaint not rise to the level of plain error, we conclude that it does not constitute error at all.

III.

The Weight and Sufficiency of Evidence of Guilt

¶ 15. Hogan argues that the evidence of his guilt was insufficient as a matter of law to sustain the guilty verdicts. Alternatively, he urges this Court to find that the verdicts were against the weight of the evidence, entitling him to a new trial.

¶ 16. It is a well-established rule that, in determining whether a jury verdict is supported by sufficient evidence to show the defendant’s guilt beyond reasonable doubt, this Court must accept as true all evidence presented that is supportive of the verdict. Eakes v. State, 665 So.2d 852, 872 (Miss.1995). A jury verdict will only be reversed when the evidence “is such that reasonable and fair-minded jurors could only find the accused not guilty.” Gleeton v. State, 716 So.2d 1083, 1087 (¶ 14) (Miss.1998). The witnesses who testified at trial presented admissible evidence that, if accepted as true by the jury, would plainly establish each of the essential elements of the crimes charged. Those witnesses were not so impeached or their testimony so contradicted that the evidentiary value of the evidence they presented was destroyed. In that situation, there is no legitimate basis to contend that the State’s evidence was insufficient to support the convictions as a matter of law.

¶ 17. A claim that the verdicts were against the weight of the evidence raises different considerations. That claim effectively concedes for sake of analysis that there was sufficient evidence to establish the critical elements of the crimes, but contends that other evidence tending to exonerate the defendant was so persuasive that to permit the verdicts to stand would work a manifest injustice. Wetz v. State, 503 So.2d 803, 812 (Miss.1987). Certainly, Hogan, in his defense, presented a scenario as to what occurred that was different from that testified to by the State’s witnesses. In his defense, Hogan indicated that he had suddenly and without provocation been subjected to a hail of gunfire that caused him to do everything within his power to flee for his life. Thus, according to his contentions, he was not guilty because he acted under sufficient duress that it was legally impossible for him to possess the requisite criminal intent to commit the various crimes with which he was charged. Additionally, he contends that the medical proof of the injuries received by the various officers is not consistent with the version of events related by them. The jury, in such a situation, acts as finder of fact charged with evaluating the evidence, determining the credibility of the various witnesses, and determining what weight and worth to give to any particular aspect of the proof. Jackson v. State, 614 So.2d 965, 972 (Miss.1993). Once the jury has performed that function, its findings are entitled to substantial deference when reviewed on appeal. Windham v. State, 800 So.2d 1257, 1263 (¶ 18) (Miss.Ct.App.2001). We are not persuaded that the evidence tending to demonstrate Hogan’s innocence as to the various charges was of such weight and worth that it would constitute a substantial miscarriage of justice to permit the present verdicts to stand. In that situation, our duty is to affirm the convictions.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I TAKING POSSESSION OF OR TAKING AWAY A MOTOR VEHICLE AND SENTENCE OF TWO YEARS WITH THREE YEARS OF POST RELEASE SUPERVISION TO RUN CONSECUTIVELY TO SENTENCES IN COUNTS II AND III; COUNT II AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO ANY OTHER SENTENCE PREVIOUSLY IMPOSED, AND COUNT III AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIFTEEN YEARS TO RUN CONCURRENTLY WITH SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDER TO MAKE FULL RESTITUTION TO VICTIMS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: LEE, J.,

text:
    Wilbert MYLES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01118-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.

      Donald Rafferty, Gulfport, attorney for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   LEE, J.,

for the court.

FACTS AND PROCEDURAL HISTORY

¶ 1. This case involves charges of grand larceny against Wilbert Myles, a former Mississippi State Trooper. On January 23, 2001, Trooper Myles met with Hancock County Deputy Justice Court Clerk Kimberly Stone at her office. Stone had three money orders for traffic fines which related to tickets Myles had written, but did not have the original citations, so Stone asked Myles to locate copies of the citations or fill out affidavits regarding them. Sometime after Myles left, Stone noticed that the money orders which had been on top of her desk were missing. Myles was not authorized to remove the money orders or to cash them.

¶ 2. Bank employees from two different banks on the coast testified that Myles came in uniform in his patrol car to the drive-up window of each of their banks and attempted to cash the money orders which were made out to the Hancock County Justice Court. Each teller informed Myles that he could not cash the money orders, but could only deposit them or return them to the payor to cash.

¶ 3. In Myles’s testimony he claimed that he mistakenly picked up the money orders with some other papers when he left Stone’s office, and that the bank employees misunderstood his questions. He explained that he, himself, was not attempting to cash the money orders, but that he was only inquiring as to whether the persons who drew the three money orders could cash the orders were he to return them to these payors. All three bank employees testified that Myles asked to cash the checks personally. In the prosecution’s cross-examination, Myles revealed that he held part-time jobs in addition to his full-time job as a state trooper. Myles objected to the relevancy of this evidence, but the prosecutor argued it was relevant for showing intent to take the money, and the court allowed it. Myles also admitted he had financial problems and an outstanding civil judgment owed to Donna Stockstill.

¶ 4. Myles requested an instruction for petit larceny, claiming each money order was a separate transaction, thus defeating the $250 threshold for grand larceny; the judge, however, overruled the request. Myles also requested a jury instruction for trespass rather than larceny, claiming that he took something without authority to do so but without intent to deprive the owner. The trial court also denied this instruction.

¶ 5. The jury found Myles guilty of grand larceny, and he was sentenced to five years in prison with three years suspended. His motion for judgment notwithstanding the verdict was denied, and he now appeals to this Court. Myles raises the following issues on appeal: (1) Did the trial court err by allowing evidence of a civil judgment against Myles? (2) Did the trial court err in refusing to grant lesser-included-offense instructions for petit larceny and for trespass less than larceny? We review Myles’s arguments on these points but find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

I. DID THE TRIAL COURT ERR BY ALLOWING EVIDENCE OF A CIVIL JUDGMENT AGAINST MYLES?

¶ 6. Myles first argues that the court erred by allowing the prosecution to introduce evidence concerning a civil judgment that Donna Stockstill had against him. Our standard of review concerning admissibility of evidence is as follows:

Admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.

Mooneyham v. State, 842 So.2d 579(¶ 7) (Miss.Ct.App.2002).

¶ 7. Myles claims that the prosecution erred in cross-examining him concerning a judgment against him for an unpaid promissory note he owed to Donna Stockstill. Myles argues that nothing concerning indebtedness constitutes a crime or shows untruthfulness, which could be the proper subject of impeachment pursuant to Rules 608 and 609 of the Mississippi Rules of Evidence. The State argues that the trial court did not admit this cross examination as character evidence, but rather admitted it as impeachment evidence, relevant for showing possible intent.

¶ 8. Myles testified that he had no intent to cash the money orders at the banks, only that his intent was to return the money to the three persons to whom he had written the traffic tickets. The bank tellers with whom he dealt, however, testified that Myles unequivocally attempted to cash the money orders himself.

¶ 9. Rule 404(b) of the Mississippi Rules of Evidence provides an exception to the rule that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. The exception states that such evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 10. We find that Myles’s indebtedness and the fact that he worked two other jobs in addition to his job as a trooper is not a “crime” within the meaning of Rule 404(b), nor is it necessarily a “wrong” under the rule, either. It can be considered an “act,” however, and pursuant to the rule it is not admissible to prove his character or that he acted in conformity therewith. However, pursuant to the exceptions listed in the rule, the judge admitted evidence of Myles’s indebtedness to show that his intent or motive to steal the money orders was based on the indebtedness and apparent need for money. The judge ruled that the jury could weigh this evidence and determine its probative value.

¶ 11. Myles cites the following rule from Professor Wigmore’s noted treatise on evidence law:

The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly those of violence!.]

2 Wigmore, Evidence, § 392 at 431 (Chad-bourn rev. 1979). Myles negates to quote the paragraph which follows the one he cited which states:

Nevertheless in cases of merely speculative crime (such as larceny or embezzlement), and in civil cases where the issue is whether the defendant borrowed money or not, the fact that he was in need of it at the time is decidedly relevant to show a probable desire to obtain it and therefore a probable borrowing or purloining; and there is here not the same objection from the standpoint of possible unfair prejudice!.]

Id. at 431. According to Wigmore, since this is a case of larceny, evidence concerning Myles’s need for money at the time of the theft is relevant. We agree and find no error in the judge’s admitting this evidence.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LESSER-INCLUDED OFFENSE INSTRUCTIONS FOR PETIT LARCENY AND FOR TRESPASS LESS THAN LARCENY?

¶ 12. Myles argues that the trial court should have granted his request for lesser-included-offense instructions concerning petit larceny and trespass less than larceny.

This Court’s standard of review in reviewing jury instructions is as follows: In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. A lesser-included-offense instruction is required only “where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.”

Tyler v. State, 784 So.2d 972(¶ 6) (Miss.Ct.App.2001) (citations omitted).

a. Petit larceny instruction

¶ 13. First, concerning petit larceny, Myles argues he is entitled to a new trial because the money orders should not have been taken at their face values since the cases to which they pertained were never docketed, an accusation was never filed, and the money orders were worthless in their unendorsed condition. Myles argued that each money order standing alone constituted one act of petit larceny, as opposed to the grand larceny charge when the three were grouped together. The State counters that none of the money orders were presented individually for cashing, rather Myles took them from the clerk’s office in one motion and presented them together at both banks where he attempted to cash them all at once.

¶ 14. The court denied Myles’s request for an instruction on petit larceny finding that the evidence clearly showed that Myles removed the money orders from the justice court not on separate occasions, but in a singular act, and that he unequivocally presented all three orders at once for cashing at the banks. The evidence in this regard was overwhelming, and pursuant to the rule from Tyler, we find a lesser-included-offense instruction on petit larceny was not in order based on this evidence.

b. Trespass instruction

¶ 15. Myles also argues he was due a lesser-included-offense instruction on trespass less than larceny. Myles claims that since the checks were never endorsed, the State failed to prove that he actually stole them and intended to cash them. Myles claims the tellers’ testimony showed that Myles only asked them how to return the money orders to the purchasers so they could cash them. However, the record reveals that all three bank employees testified that Myles presented the money orders and asked if he could cash them because those people owed him money. We, again, look to caselaw for rules concerning lesser-included-offense instructions:

It is well settled that a lesser-included-offense instruction should be given unless the trial judge determines, by looking at the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included-offense, and ultimately not guilty of at least one element of the principal charge. Whether the lesser-included-offense instruction is allowed also turns on whether there is an evidentiary basis for it. There must be some evidence to support the lesser-included-offense.

Odom v. State, 767 So.2d 242(¶ 11) (Miss.Ct.App.2000) (citations omitted).

¶ 16. Evidence in favor of Myles consisted solely of his own contention concerning how he got the money orders and what he attempted to do with them after he discovered them in his possession. Countering his testimony, however, was the following testimony: Deputy Clerk Kimberly Stone stated that although officers were not authorized to remove money orders from her desk, Myles did take the three money orders; Hancock Bank Teller Lorraine Ladner at the Waveland branch testified that Myles approached her drive-up window and asked her to cash the three money orders, which she would not allow pursuant to her supervisor’s direction; Hancock Bank Teller Rebecca Necaise at the Bay St. Louis branch testified that Myles also approached her drive-up window and asked her to cash the three money orders, which she would not allow; and Hancock Bank Manager Miranda Bosarge, also at the Bay St. Louis branch, testified that she heard Myles ask Necaise to cash the three money orders for him and Ne-caise denied the request, which was in accordance with their banking policy. Further, although Myles claims that he attempted to cash the money orders because those persons owed him the money in return for favors he did for them, all three persons who purchased the money orders testified that they did not personally know Myles, nor did he owe them any favors nor they, him.

¶ 17. Myles requested a lesser-included-offense instruction of trespass, claiming that he mistakenly picked up the money orders from the clerk’s desk and later when he discovered he had done so, he went to the banks to attempt to cash the orders and return them to the persons who had purchased them. However, all evidence points to the contrary. A lesser-included-offense instruction is appropriate only when there is an evidentiary basis for it. Odom, at (¶ 11). Here, such did not exist and we find the judge did not err in refusing the requested instruction.

¶ 18. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED, AND THREE YEARS’ PROBATION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Rule 608 of the Mississippi Rules of Evidence in part concerns admission of evidence of the witness's character concerning truthfulness or untruthfulness. Rule 609 concerns impeachment by evidence of conviction of a crime.


author: THOMAS, J.,

text:
    Jennie S. CRAFT, Appellant, v. MILLCREEK REHABILITATION CENTER and Argonaut Insurance Company, Appellees.
    No. 2002-WC-01106-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.

      J. Peyton Randolph John David Garner, Attorneys for Appellant.
    Kenneth G. Perry, Jackson, Attorney for Appellee.
    Before McMILLIN, C.J., THOMAS, and IRVING, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Jennie Craft filed a claim against Millcreek Rehabilitation Center alleging that she suffered an injury to her right foot while in the course and scope of her employment at Millcreek which rendered her permanently and totally disabled. An administrative law judge heard Craft’s claim and decided in her favor on April 19, 2001. The employer and carrier appealed to the Full Commission which reversed the administrative law judge’s order on May 21, 2002. Craft then appealed to the Circuit Court of Simpson County which affirmed the Full Commission. Aggrieved, Craft asserts the following issues on appeal:

I. THE FULL COMMISSION ORDER APPLIED THE WRONG LEGAL STANDARD TO APPORTIONMENT AND PRE-EXIST-ING INJURY CLAIMS.
II. THERE IS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE FULL COMMISSION’S ORDER OR THE CIRCUIT COURT’S ORDER AFFIRMING IT, AND THE SAME ARE AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SUCH THAT THEY ARE ARBITRARY AND CAPRICIOUS.

Finding no error, we affirm.

FACTS

¶ 2. Jennie Craft, at the time of the hearing, was a fifty-five-year-old resident of Simpson County, Mississippi, with a twelfth grade education. Craft worked at MagneTek, Inc. for thirty-one years, during which time she developed problems with her right foot. She had surgery on her foot in 1989 and again in 1997. After the MagneTek plant closed in May 1998, Craft filed a worker’s compensation claim against MagneTek on June 9, 1998, alleging disability due to an injury to her right foot suffered on the job. Craft was hired by Millcreek Rehabilitation Center on November 16, 1998, and worked there until March 15, 1999. In April 1999, the administrative law judge denied Craft’s claim against MagneTek. Craft appealed and MagneTek subsequently reached a monetary settlement with Craft.

¶ 3. Craft filed a claim against Millcreek on June 1, 1999, alleging that she suffered an injury to her right foot while in the course and scope of her employment at Millcreek which rendered her permanently and totally disabled. She alleged that the extra walking and standing at Millcreek aggravated her foot. An administrative law judge heard Craft’s claim and decided in her favor on April 19, 2001. The employer and carrier appealed to the Full Commission which reversed the administrative law judge’s order on May 21, 2002. Craft then appealed to the Circuit Court of Simpson County which affirmed the Full Commission. Craft then perfected an appeal to this Court.

I. DID THE FULL COMMISSION APPLY THE WRONG LEGAL STANDARD TO APPORTIONMENT AND PRE-EXISTING INJURY CLAIMS?

II. IS THERE SUBSTANTIAL EVIDENCE TO SUPPORT THE FULL COMMISSION ORDER’S OR THE CIRCUIT COURT’S ORDER AFFIRMING IT, AND ARE THE DECISIONS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SUCH THAT THEY ARE ARBITRARY AND CAPRICIOUS?

¶ 4. Craft argues that both the Full Commission and circuit court erred in applying the wrong legal standard regarding apportionment and pre-existing injury claims, and that there was not substantial evidence to support their decisions. Craft asserts that an injury is not compensable until such time as the injury manifests itself in an occupational disability. Stuart’s, Inc. v. Brown, 543 So.2d 649, 655 (Miss.1989). Craft asserts that “a ‘preexisting physical handicap, disease, or lesion’ which did not impair wage earning capacity ex ante by definition cannot be that which impairs wage earning capacity ex post.” Id. at 655. “When an injury develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.” United Methodist Senior Services v. Ice, 749 So.2d 1227, 1230(1110) (Miss.Ct.App.1999).

¶ 5. Our scope of review is limited to a determination of whether or not the decision of the Full Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, 752 So.2d 444, 447(¶ 7) (Miss.1999). This Court acts as a court of review and is prohibited from hearing evidence or otherwise evaluating evidence and determining facts. Id. “Substantial evidence, though not easily defined, means something more than a ‘mere scintilla’ of evidence, and that it does not rise to the level of ‘a preponderance of the evidence.’ ” Id. at 448(¶ 7). The Commission sits as the “ultimate finder of facts” in deciding compensation cases; therefore, “its findings are subject to normal, deferential standards upon review.” Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). Matters of law are reviewed under the de novo standard of review. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308(¶ 12) (Miss.1997). We will only reverse the Commission’s rulings where issues of fact are unsupported by substantial evidence and matters of law are clearly erroneous. Westmoreland, 752 So.2d at 448(¶ 8).

¶ 6. The Full Commission found that Craft had only worked two weeks at Mill-creek when she claimed to have suffered a disabling injury to her foot. In her claim against MagneTek, Craft alleged that the injury to her foot was the result of cumulative physical activity extending .over a thirty-year period, with the alleged onset of June 1, 1989. Craft had surgery in 1989 and returned to work at MagneTek after a few months. Craft again had surgery in 1997 and again returned to work after missing a few months. The administrative law judge in the MagneTek claim denied Craft compensation because she had not sustained an occupational disability since she continued to return to work. In her sworn testimony on April 1, 1999, Craft testified that she believed her employment with MagneTek caused her foot and leg problems. Craft only worked three days a week for a total of twenty-four hours at Millcreek, and claimed that her preexisting foot problems prevented her from performing the work she was assigned at Millcreek. Dr. Lane Rolling testified that traumatic arthritis can be aggravated by certain injuries or occupations, and that in his opinion her thirty-year employment with MagneTek contributed to her foot problem. The administrative law judge found that Craft failed to prove a work injury to her foot. Craft failed to give MagneTek notice until after the plant had closed. Also, her claim against MagneTek would have failed due .to the statute of limitations. Craft claimed an onset date of June 1, 1989, but did not file a petition to controvert until June 1998.

¶ 7. United Methodist Senior Services v. Ice, cited above, is similar to the case at hand. ' In United Methodist, the claimant suffered a back injury while working at United Methodist Senior Services. After reaching maximum medical improvement, the claimant took a job at a department store which required a lot of standing and which she asserted caused a great deal of discomfort due to her back problems. Id. at 1228-29 (¶¶ 2-3). The claimant sought compensation solely from United Methodist Senior Services and the administrative law judge, Full Commission, and circuit court agreed with her and held the first employer responsible. In affirming the circuit court, this Court adopted both the “last injurious exposure” as well as the “intervening cause” rules. Id. at 1231(¶ 13). The “last injurious exposure” rule requires proof that something occurred during the subsequent employment that had a causal relation to the disability. Id. at 1230(¶ 10). The “intervening cause” rale requires the subsequent employment to “independently contribute to the disability” in order be held liable. If the subsequent employer “does not contribute even slightly to the causation of the disabling injury, ‘the first employer remains liable for all.’ ” Id. at 1231(¶ 12) (quoting 4 LARSON, WORKMEN’S COMPENSATION § 95.23, at 17-185).

¶ 8. Like the claimant in United Methodist, Craft claimed that working for her subsequent employer aggravated her injuries. Also, Craft related no specific injury or aggravating factor, but instead claimed she suffered due to additional standing and walking. Although the Commission did not refer to the “intervening cause” rale, it did find that any aggravation Craft may have suffered at Millereek did not independently contribute to her final disability. The Commission did refer to the “last injurious exposure” rule, and found that Craft presented no evidence other than her own testimony linking her employment with Millereek to her injury. The Commission examined Craft’s testimony in her claim against MagneTek which directly contradicted her testimony in her claim against Millereek, and found that her claim against Millereek was made in the face of undisputed facts which show her foot bothered her so severely while employed at MagneTek that she underwent two surgeries and incurred several periods of disability.

¶ 9. The Full Commission applied the correct legal standard and there was substantial evidence to support its order. Finding no error, we affirm the Full Commission and the circuit court.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.