author: COBB, Justice,

text:
    Owens CORNING v. R.J. REYNOLDS TOBACCO COMPANY; British American Tobacco (Investments) Limited, f/k/a British American Tobacco Company Limited; Brown & Williamson Tobacco Corporation, Individually and as Successor by Merger to the American Tobacco Company; Philip Morris Usa Inc., f/k/a Philip Morris Incorporated; Altria Group, Inc., f/k/a Philip Morris Companies, Inc.; Liggett Group, Inc., Liggett & Myers, Inc., Lorillard Tobacco Company; Batus Holdings, Inc., f/k/a Batus, Inc.; RJR Nabisco, Inc., Brooke Group, Ltd.; American Brands; Fortune Brands, Inc.; Loews Corporation; Council for Tobacco Research-U.S.A, Inc., f/k/a The Tobacco Industry Research Committee; And The Tobacco Institute, Inc.
    No. 2001-CA-01285-SCT.
    Supreme Court of Mississippi.
    March 18, 2004.

      Walter Garner Watkins, Jr., Alexandra Francoise Markov, Nathaniel Alandas Ar-mistad, Tim D. Gray, Jackson, Thomas Gerry Bufkin, Daniel J. Mulholland, Carroll Rhodes, Hazlehurst, Richard L. For-man, Walter G. Watkins, III, Matthew S. Steffey, Richard A. Brown, Jackson, attorneys for appellant.
    Michael B. Wallace, Rebecca L. Hawkins, Walker (Bill) Jones, III, Stuart G. Kruger, Tiffanee N. Wade, Jackson, James L. Shannon, Willie James Perkins, Greenwood, Bruce R. Tepikian, Craig E. Proctor, Brian A. Jackson, Stephen E. Scheve, Mark C. Carroll, Jackson, James E. Up-shaw, Lonnie D. Bailey, Greenwood, William F. Riley, Natchez, Keith W. Vaughan, Kurt D. Weaver, Michael W. Ulmer, Lewis W. Bell, Robert L. Gibbs, Christopher A. Shapley, Andrea La’Verne Ford Edney, S. Jonathan Silverman, James Lawton Robertson, Mark P. Caraway, Jackson, Patrick S. Davies, Mark E. Lowes, Brooke Ferris, III, Vincent T. Chang, Thomas A. Cook, Ridgeland, Jesse Lee Howell, David L. Wallace, Susan St. Denis, William E. Hoff-mann, William L. Durham, II, Jon Mark Weathers, Hattiesburg, Rick Noton, Trent L. Walker, Canton, James Lawrence Wilson, Columbus, Alex A. Alston, Jeffrey P. Hubbard, Jackson, Edward Blackmon, Canton, Joe R. Colingo, Pascagoula, Richard 0. Burson, Laurel, Richard Marion Truly, Fayette, Bryan Howard Callaway, Greenwood, John Vanderstar, Paul Taylor, attorneys for appellees.
   COBB, Justice,

for the Court.

¶ 1. This is an appeal from a grant of summary judgment in favor of the defendants, R.J. Reynolds Tobacco Company, et. al. (“Tobacco Defendants”), in the Jefferson County Circuit Court. The original suit was filed in 1996. Owens Corning was joined as a plaintiff in 1998. Partial summary judgment was granted in favor of Tobacco Defendants in July 2000. In July, 2001, the trial court entered summary judgment in favor of Tobacco Defendants based on the “remoteness doctrine” and directed entry of final judgment against all of Owens Coming’s claims pursuant to M.R.C.P. 54(b). Owens Corning timely appealed this ruling presenting one issue for review:

WHETHER OWENS CORNING’S CLAIMS OF UNJUST ENRICHMENT/RESTITUTION, FRAUD, AND VIOLATION OF MISSISSIPPI’S ANTITRUST STATUTE ARE BARRED BY THE “REMOTENESS DOCTRINE.”

¶2. Tobacco Defendants have cross-appealed, challenging unfavorable trial court decisions on the issues of statute of limitations, laches, change of venue and production of “Bliley” documents, only if this Court reverses or modifies the summary judgment. Because we affirm the trial court’s summary judgment, we do not reach the cross-appeal issues.

FACTS

¶ 3. This case was originally filed in 1996 by a single plaintiff, Ezell Thomas, in the Circuit Court of Jefferson County, Mississippi. Thomas, an admitted lifelong smoker, filed suit against, among others, R.J. Reynolds Tobacco Company, complaining that smoking Salem cigarettes damaged his health.

¶ 4. In October of 1998, the circuit court granted Thomas’s motion to amend his complaint to join 25 individuals and a corporation, Owens Corning, as plaintiffs. Owens Corning is a Toledo, Ohio, based Fortune 500 company that is the world’s largest producer of building materials. Thomas’s amended complaint also joined additional tobacco companies and asbestos companies as defendants. The 26 individuals complained that smoking and asbestos exposure damaged their health; Owens Corning, a former producer of asbestos materials, complained that the tobacco companies were liable for its expenditures on past and future asbestos claims where the asbestos claimants also smoked. Thus, Thomas’s individual claim was transformed from an individual action against R.J. Reynolds and other tobacco companies to a mass action by 26 individual smokers against tobacco companies and asbestos companies and a “national action” by Owens Corning against the tobacco industry. The Owens Corning claims have since been severed from the individual plaintiffs’ claims of the original suit. The subject of this appeal is the case between plaintiff-appellant Owens Corning and defendants-appellees Tobacco Defendants.

¶ 5. Thomas’s desire to join Owens Corning as a plaintiff rather than as an asbestos defendant is unusual. However, according to Thomas’s amended complaint, Owens Corning had reached a settlement agreement with the individual plaintiffs on their asbestos personal injury claims. As part of that agreement, Owens Corning agreed to pay Thomas, and each Jefferson County resident asbestos claimant with whom it had settled, an additional $80,000 if it was successful in its action against the tobacco defendants. In addition, Owens Corning agreed to donate at least $1.5 million for educational scholarships in Jefferson County. Considering Thomas’s interest in Owens Coming’s claim against Tobacco Defendants, it is not surprising that he desired to join Owens Corning as a plaintiff in his action.

¶ 6. Owens Corning states that it has been required to pay compensatory damages, both by way of judgment and settlement, which ought to have been borne by Tobacco Defendants. Owens Corning avers several theories of liability based on Tobacco Defendants’ wrongful conduct: indemnity, unjust enrichment/restitution, fraud, misrepresentation, intentional infliction of emotional distress, conspiracy to defraud and fraudulent concealment, and antitrust violations. In July, 2000, the trial court granted Tobacco Defendants’ motion for partial summary as to Owens Coming’s indemnity claim. In July of 2001, the trial court entered summary judgment in favor of Tobacco Defendants based on the “remoteness doctrine” and directed entry of the judgment against all Owens Coming’s claims.

DISCUSSION

¶ 7. The standard for granting summary judgment is set forth in Miss. R. Civ. P. 56. We review de novo the granting or denying of summary judgment and examine all the evidentiary matters before us — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant is given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). A motion for summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

Review of Asbestos-Tobacco Litigation History

¶ 8. Efforts by asbestos companies to reduce their liability for lung disease, through the courts and legislatures, have been ongoing for over 20 years. See Kan M. Nawaday, Note, Apportioning Asbestos-Tobacco Liability in Falise v. American Tobacco, 88 Cornell L.Rev. 1142, 1145-46 (2003). Certain lung diseases, such as asbestosis and mesothelioma, are attributed exclusively to asbestos exposure, and even though there is a consensus that asbestos exposure may also cause lung cancer, doctors generally attribute lung cancer most significantly to smoking. Id. at 1146. Thus, asbestos companies have attempted to reduce their liability for lung cancer suffered by asbestos claimants through (1) apportioning fault to a plaintiff for contributing to his own injury by smoking, (2) bringing separate contribution actions against the tobacco companies for combined injuries to claimants, and most recently (3) bringing direct actions against tobacco companies to recover legal and medical costs incurred due to wrongful conduct of tobacco companies. These suits have found mixed success. Some courts have allowed reductions in damage awards to claimants based on contributory or comparative negligence of the claimant, but most have found against asbestos companies in the separate contribution actions. The contribution actions fail for the same reasons that individuals have not been successful against the tobacco companies: many jurisdictions do not allow separate contribution actions where a defendant was not named in the initial suit; and tobacco companies are not liable under strict liability doctrine, therefore, other theories must be proven. The direct action cases, as discussed below, have failed for lack of proximate cause.

¶ 9. The tobacco companies’ settlement with the States in 1997 initiated the most recent wave of cases. The Seventh Circuit calls these “me-too” cases. International Bhd. of Teamsters, Local 731 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818 (7th Cir.1999). The direct action cases have been based on fraud, misrepresentation, unjust enrichment, state and federal antitrust violations, RICO violations, and others, ■ Although there have been some successes at the trial court level, none of these cases has been successful at the appellate level.

¶ 10. Despite the asbestos industry’s lack of success, there are public policy arguments supporting the concept that tobacco companies should contribute to the cost of medical care for lung disease. One such argument is that tobacco users should pay for their own health care. If tobacco companies were required to contribute to the health care cost burden, they would pass these costs on to the tobacco consumers, thus effecting this premise. Most commentators urge that this is a legislative responsibility, even though Congress has tried repeatedly and unsuccessfully to pass this type of tobacco bill.

Remoteness

¶ 11. Owens Corning argues that Tobacco Defendants knowingly and intentionally engaged in fraudulent and tortious conduct designed to defraud the public, including companies such as Owens Corning, about the health risks of smoking and the true cause of lung disease. Owens Corning contends that a primary intended consequence of Tobacco Defendants’ conduct was to cause Owens Corning to pay billions of dollars to litigate and resolve lawsuits by persons with lung injuries, caused at least in part, by smoking. Further, Owens Corning argues that by effectively shifting liability for smoking related disease to it, Tobacco Defendants have been unjustly enriched at Owens Coming’s expense.

¶ 12. Notwithstanding the decision of the trial court, Owens Corning claims that Mississippi law allows it to bring claims of fraud, unjust enrichment, and violation of state antitrust laws against the Tobacco Defendants. Owens Corning charges that Tobacco Defendants are asking the court to ignore Mississippi law and adopt a foreign rule, the “remoteness doctrine,” which has only been applied in cases distinct from this one. As Owens Corning concedes, the remoteness doctrine is nothing more than a context specific rule of proximate cause, and although Mississippi law already addresses principles of proximate cause in many contexts, the present case presents one context not yet considered by this Court.

¶ 13. Nine federal courts of appeals and several state appellate courts have weighed this issue and have rejected claims similar to Owens Coming’s. The plaintiffs in these cases have included insurance companies, public hospitals, unions, health benefit funds, and other health care providers who sued tobacco companies to recover money expended to provide medical treatment to their plan participants for tobacco-related illnesses. In all of these cases, regardless of the theory of liability, the courts have determined that injuries to these provider plaintiffs were either too remote to be compensable or were not proximately caused by the defendant’s conduct. The provider plaintiffs would not have incurred the expenses, and thus their injuries, but for the injuries sustained by their plan participants. Tobacco Defendants charge that Owens Corning does not and cannot allege any direct, non-derivative injury to itself; that all Owens Coming’s claims result from financial losses it suffered on behalf of injured asbestos workers who smoked.

¶ 14. Owens Corning concedes that the courts have generally adhered to the rule that insurer or other third-party provider claims may be brought only in a subrogation action. Instead, Owens Corning claims that its unjust enrichment, fraud, and antitrust claims constitute a single, direct claim against Tobacco Defendants for harm done directly to it. However, Owens Corning concedes that it would not be here today if there had been no injury to the smoking asbestos workers. Despite Owens Coming’s characterization that its claims are direct, we conclude that the claims hinge on the payment of damage awards to thousands of smoking asbestos claimants and are thus indirect.

¶ 15. The distinction argued by Owens Corning is that it is not an insurer attempting to recover the costs of being an insurer from Tobacco Defendants. Owens Corning points out that insurers spread risk and collect premiums to cover costs, and the insurers’ costs for providing health care to smokers are already figured into the premium amounts. Owens Coming argues that the cases cited by Tobacco Defendants simply prevent insurers from recovering these costs of doing business from the tobacco companies. Accordingly, because it is not an insurer, Owens Corning argues that these cases are not applicable.

¶ 16. We reject Owens Coming’s theory. Although Owens Coming does cite International Brotherhood Local 731, in which the Seventh Circuit court discussed the role of insurance companies in spreading risk and collecting higher premiums from those who smoke, 196 F.3d at 823-24, there are several other courts of appeals and state appellate cases that reached the same conclusion with no discussion of the type of plaintiff involved or the recovery of costs through premium collections. The plaintiffs in Association of Washington Public Hospital Districts v. Philip Morris, Inc., 241 F.3d 696 (9th Cir.2001), were attempting to recover unreimbursed costs for treating patients suffering from tobacco related illnesses. In Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., 1999 WL 760527 (N.D.Cal. Sept.21, 1999), the plaintiff was an insurer of asbestos companies, not an insurer to individuals. The plaintiff was attempting to recover from unanticipated asbestos company loses, many of which were a result of unanticipated employee medical expenses, allegedly caused by a combination of asbestos and tobacco exposure. In these cases, the dis-positive issue was one of proximate cause and the derivative nature of the plaintiffs injuries.

¶ 17. The Second Circuit addressed the proximate cause issue in Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229 (2d Cir.1999). The court began its discussion of proximate cause by admitting that the topic is subject to much disagreement and confusion, and is one “always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.” Id. at 235 (quoting W. Page Keeton et al., Prosser & Keeton on The Law of Torts, § 42, at 279 (5th ed.1984)) (quoting 1 Street, Foundations of Legal Liability 110 (1906)). The court maintained that proximate cause is essentially a legal tool for limiting the liability of a wrongdoer to those harms having a reasonable connection to the wrongdoer’s actions, and that over time, courts have formulated liability-limiting “judicial tools” based on common law principles. Citing Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992), in which the U.S. Supreme Court announced a policy based proximate cause test, the Second Circuit explained:

Among these “judicial tools,” one notion traditionally included in the concept of proximate causation'is the requirement that there be “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes, 503 U.S. at 268, 112 S.Ct. 1311, 117 L.Ed.2d 532. For this reason, “a plaintiff who complaints] of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts [is] generally said to stand at too remote a distance to recover.” Id. at 268-69, 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (citing 1 J.G. Sutherland, A Treatise on the Law of Damages 55-56 (1883)); see also AGC, 459 U.S. at 532-33 & n. 25, 103 S.Ct. 897, 74 L.Ed.2d 723; Anthony v. Slaid, 52 Mass. (11 Met.) 290 (1846). Holmes emphasized that although the direct injury test “is not the sole requirement of [proximate] causation, it has been one of its central elements.” 503 U.S. at 269, 112 S.Ct. 1311, 117 L.Ed.2d 532 (citing AGC, 459 U.S. at 540, 103 S.Ct. 897, 74 L.Ed.2d 723). This language tells us that to plead a direct injury is a key element for establishing proximate causation, independent of and in addition to other traditional elements of proximate cause. Thus, the other traditional rules requiring that defendant’s acts were a substantial cause of the injury, and that plaintiffs injury was reasonably foreseeable, are additional elements, not substitutes for alleging (and ultimately, showing) a direct injury.

Laborers Local 17, 191 F.3d at 235-36. The Second Circuit went on to state that a plaintiff must establish both foreseeability and direct injury, which are distinct concepts, and injuries which are wholly derivative of an injury to the property of a third-party, are too remote as a matter of law. Id. at 235-36. “Moreover, in light of the discussion of case law above, substituting the foreseeability test, in place of finding the existence of a direct injury, is error. As a general rule, proximate cause requires that both be present” Id. at 236. We agree.

¶ 18. Owens Corning argues that if the facts of this case were analyzed using the Holmes factors, proximate cause would be found. In Holmes, after it determined that proximate cause was required in a RICO claim, the U.S. Supreme Court explained the policy reasons for this requirement:

Although such directness of relationship is not the sole requirement of ... causation, it has been one of its central elements, for a variety of reasons. First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent, factors. Second, quite apart from problems of proving factual causation, recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the viola-tive acts, to obviate the risk of multiple recoveries. And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely.

Holmes, 503 U.S. at 269, 112 S.Ct. 1311. In Holmes, the Court used these three criteria to illustrate why the plaintiffs indirect claim could not be brought.

¶ 19. Owens Corning argues that as for the first criterion, it has proffered detailed evidence of the damages and unjust enrichment caused by Tobacco Defendants’ misconduct through expert reports based upon well-established statistical and epidemiological principles. As for the second and third criteria, Owens Corning explains that

“the second and third Holmes concerns can be dismissed together as they stem from the same worry, irrelevant here; namely whether the correct plaintiff is bringing suit.... These concerns may make sense in the insurance context, but they do not apply here. Here, there is neither a concern for apportioning damages nor anyone else to vindicate Owens Coming’s injuries.”

Thus, Owens Corning has elected not to address the issue in criterion two pertaining to multiple recoveries and apportionment of damages to plaintiffs, nor criterion three, in which Owens Corning would need to show why it should be able to bring a claim against Tobacco Defendants when the individual claimants may not. In light of our recent decision in Lane v. R.J. Reynolds Tobacco Co., 853 So.2d 1144 (Miss.2003), which holds that the Mississippi Product Liability Act (MPLA) precludes all tobacco cases based on products liability, a claim that smoking caused the damage to the asbestos claimants would fail. We are not persuaded by Owens Coming’s argument that proximate cause is found under the Holmes test in the present case.

Proximate Cause under Mississippi Law

¶20. Owens Corning first argues that there is well-established Mississippi law demonstrating that summary judgment based on proximate cause principles was clear error, and cites Donald v. Amoco Production Co., 735 So.2d 161, 174 (Miss.1999) for the proposition that “causation is generally a matter for the jury.” In Donald, Donald argued that the trial court improperly addressed foreseeability, which he claimed was an issue of fact for the jury, and this Court explained:

While duty and causation both involve foreseeability, duty is an issue of law, and causation is generally a matter for the jury. Juries are not instructed in, nor do they engage in, consideration of the policy matters and the precedent which define the concept of duty. This Court has held that the existence vel non of a duty of care is a question of law to be decided by the Court. Therefore, the lower court properly decided a matter of law.

Id. at 174 (citations - omitted & emphasis added). In Donald, we did not address Owens Coming’s implied assertion that a case based on an issue of proximate canse must necessarily withstand a summary judgment motion, so that it may be decided by a jury. The issue of proximate causation, as opposed to actual causation, is generally a matter of law, which should be left in the hands of the court.

¶21. Owens Corning argues that its claims of unjust enrichment, fraud, and state antitrust violations should be decided using existing principles of proximate cause under Mississippi law, and not be decided based on the never before used “remoteness doctrine.” Although Owens Corning points to several Mississippi cases to support this contention, it falls short each time. Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666 (Miss.2001), is one such case cited as an “indirect” injury case. In Delahoussaye, defendant sold beer to a minor, who allegedly gave the beer to another minor. The second minor later injured the plaintiff in an automobile accident. Although the chain of causation in Delahoussaye involves several steps, it is a direct injury case; the plaintiff did not derive his claim from a third-party’s injury.

¶ 22. The issues in Delahoussaye involved the correctness of jury instructions concerning foreseeability as an element of proximate cause. The Court said:

Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred. Foreseeability is an essential element of both duty and causation. In order to establish liability by proving negligence on the part of [defendant], Delahoussaye must prove ... that it was foreseeable that ... the minor who bought the alcohol from [defendant], would share the alcohol with another minor who would negligently cause injury to Delahoussaye.

Id. at 671. Thus the issue of derivative or indirect injury as a bar to finding proximate causation did not surface in the Court’s discussion of this case. Additionally, as discussed above, foreseeability and direct injury are distinct concepts, and substituting the foreseeability test in place of finding the existence of a direct injury, is error. Laborers Local 17, 191 F.3d at 235-36.

¶ 23. Owens Corning again points to Donald to establish that Mississippi law allows compensation for injury that is far removed from the original events of the lawsuit. Donald discusses foreseeability as an element of duty. In Donald, the plaintiff purchased property from owners who had contracts with oil companies to do oil well maintenance. The owners disposed of the oil field wastes on their property. Donald sued the oil companies. The trial court dismissed the case finding “any alleged negligent acts on the part of the Oil Company Defendants are too remote to the Plaintiff to give rise to a duty owed ...” (Id. at 175 (quoting lower court)). This Court reversed on appeal finding that the oil companies did owe a duty to the plaintiff. Obviously, the issue in Donald was not one of indirect injury or even causation, and in citing this case as support for its contention that indirect injuries are compensable under Mississippi law, Owens Corning has misconstrued the case.

¶ 24. Relying on Choctaw, Inc. v. Wichner, 521 So.2d 878 (Miss.1988), and Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App.2001), Owens Corning argues that Mississippi law allows compensation for derivative injuries through loss of consortium claims. This is true, but these cases are very clear that the plaintiffs in these actions stand in the shoes of the injured third-party, subject to all defenses that would have been available against the injured person. Choctaw, 521 So.2d at 881. This is no different than what the courts of appeals have said and that Owens Corning concedes: third-party recoupment claims must be brought as subrogation actions. This is because the alleged injury is too remote to be brought in direct actions. See Texas Carpenters Health Benefit Fund v. Philip Morris, Inc., 199 F.3d 788 (5th Cir.2000) (“funds’ lawsuits constitute an illegitimate end-run around principles of subrogation.”).

Unjust Enrichment/Restitution

¶ 25. In support of its unjust enrichment/restitution argument, Owens Corning relies on Fordice Construction Company v. Central States Dredging Company, 631 F.Supp. 1536. (S.D.Miss.1986), in which the federal district court denied a summary judgment motion against Ford-ice’s unjust enrichment claim. The defendant in Fordice submitted the winning bid for a government contract that was to be awarded only to a qualified “small business.” Fordice alleged that but for defendant’s misrepresentation as to its status as a small business, Fordice would have won the bid; thus the defendant was unjustly enriched by the profit it would make from the job. The district court, sitting in diversity and applying Mississippi law, concluded that the unjust enrichment claim was viable under Mississippi law:

Mississippi law provides that, in an action for unjust enrichment, the plaintiff need only allege and show that the defendant holds money which in equity and good conscience belongs to the plaintiff. The requirements of proof of unjust enrichment are neither technical nor complicated and, [plaintiff] can state a claim against Defendants on the basis that [defendants] were unjustly enriched because they received the profits [which] they should not have been permitted to [receive].

Id. at 1538-39 (citations omitted). Based on this, Owens Corning states that summary judgment denying its claims was plainly wrong. Owens Corning fails to mention that the Fordice court also made it clear that in order to prevail on its claim for unjust enrichment Fordice would have to prove both that defendants were unjustly enriched, and that Fordice was entitled to the contract award. Id. at 1539. In the present case, Owens Corning would have to prove that Tobacco Defendants were liable for injuries suffered by the asbestos claimants, for which the claimants have been compensated by Owens Corning. As stated previously, Tobacco Defendants could not be held liable, based on our decision in Lane, 853 So.2d at 1144.

¶ 26. Owens Corning also relies on Omnibank of Mantee v. United Southern Bank, 607 So.2d 76 (Miss.1992), in which United Southern Bank (USB) brought an unjust enrichment action against Omni-bank. USB purchased the assets of a branch bank from Omnibank. A bank officer who worked first for Omnibank at the branch, then for USB, made several improvident loans after becoming an officer of USB, which loans were later written off. The proceeds of one of these loans was paid to Omnibank. This Court held that USB did not have a cause of action against Omnibank, because Omnibank was not unjustly enriched by the officer’s actions. Citing Restatement of Restitution § 14(1) (1936), the Court also noted that in the absence of a showing of wrongdoing, the plaintiffs cause is not unjust enrichment, and redress must be brought through “subrogation or some such theory.” Id. at 92. Again, this is a direct injury case with no discussion of causation. Even if Omni-bank had fraudulently procured payment from USB through USB’s loan officer, this would have been a direct injury to USB by Omnibank. There was no third-party injury, therefore the issue of remoteness was never reached.

¶ 27. Finally, with regard to unjust enrichment/restitution, Owens Corning appeals to “ideas of what justice demands,” claiming that it has borne legal and medical costs for injuries caused by Tobacco Defendants’ misconduct, and that affirming the trial court’s judgment will reward Tobacco Defendants’ dishonesty. It is this Court’s view that a remedy of the magnitude requested here, based on this and other, possibly good, public policy reasoning is a task for Congress.

Fraud

¶ 28. Owens Corning argues that the trial court’s grant of summary judgment on its fraud claim was based solely on its belief that Owens Corning could not satisfy the causation requirement. The elements of fraud are well established: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on the truth; (8) his right to rely thereon; (9) his consequent and proximate injury. See, e.g., Martin v. Winfield, 455 So.2d 762, 764 (Miss.1984); Hamilton v. McGill, 352 So.2d 825, 831 (Miss.1977); Crawford v. Smith Brothers Lumber Co., 274 So.2d 675, 678 (Miss.1973). Proximate causation must be proved. Owens Corning again relies on Fordice, because both fraud and unjust enrichment claims were allowed to withstand the summary judgment motion. Because the injury to the plaintiff in Ford-ice was direct, not derivative, the concept of remoteness was not an issue. Therefore, Fordice does nothing to support Owens Coming’s position.

¶29. Owens Corning presents many compelling facts concerning Tobacco Defendants’ wrongful and fraudulent conduct. But the summary judgment was determined based on remoteness of injury, not egregiousness of conduct. Owens Corning fails to supply any Mississippi cases that support its claim that Mississippi law would prevent summary judgment based on these facts. Therefore, Owens Coming’s claims must fail based on remoteness of injury.

Mississippi Antitrust Claims

¶ 30. Finally, Owens Corning asserts that Mississippi’s antitrust statute expressly provides recovery for their indirect injuries. Owens Coming’s theory is that if consumers had available a wider variety of products and the truthful information about the relative dangers of specific cigarette products, all of which would have been available in a competitive market in the absence of conspiratorial actions, smokers would have consumed cigarette products that, overall, were less harmful. Thus, Owens Corning claims that but for Tobacco Defendants’ conspiracy, Owens Coming’s damages would have been much less. Mississippi’s antitrust law states:

Any person, natural or artificial, injured or damaged by a trust and combine as herein defined, or by its effects direct or indirect, may recover all damages of every kind sustained by him or it and in addition a penalty of five hundred dollars ($500.00), by suit in any court of competent jurisdiction. Said suit may be brought against one or more of the parties to the trust or combine and one or more of the officers and representatives of any corporation a party to the same, or one or more of either. Such penalty may be recovered in each instance of injury. All recoveries herein provided for may be sued for in one suit.

Miss.Code Ann. § 75-21-9 (Rev.2000). Owens Corning claims that considerations of “remoteness” are inapplicable here. Owens Corning adds that the remoteness doctrine has never been invoked in reference to an antitrust case.

¶ 31. Tobacco Defendants respond that since Owens Corning never smoked, purchased, or competed in the market for cigarettes, it cannot satisfy any of the basic requirements of injury and standing imposed by antitrust law. Tobacco Defendants cite a U.S. Supreme Court case, Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979), which states that as a threshold requirement, a plaintiff must plead and prove injury to its “business or property;” personal injuries, or financial losses which derive from personal injuries are excluded. They also find support in several of the previously cited federal courts of appeals cases which found for the tobacco companies against plaintiffs’ antitrust claims. See Ass’n of Wash. Pub. Hosp. Dists., 241 F.3d at 705-06 (parallel “business or property” requirement in state statute barred financial claims based on smokers’ personal injuries); Laborers Local, 191 F.3d at 241 (under parallel RICO “business or property” requirement, financial claims based on smoker’s injuries are barred because “smoker’s injuries are personal in nature”); Oregon Laborers, 185 F.3d at 968 (where state trade-practices act imposed parallel “business or property” requirement, claims based on smokers’ injuries are barred because they “are clearly predicated upon ‘personal injury’ ”).

¶ 32. Additionally, Tobacco Defendants argue that an antitrust plaintiff must plead and prove that it suffered not just financial injury but “antitrust injury” — injury inflicted by the anti-competitive effects of the violation alleged. “Antitrust injury” is “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). “Antitrust injury” is narrowly defined by the legislative purpose of preventing anticompetitive conduct — i.e., conduct that restrains the trade of buyers or sellers within a particular market. See Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990); Lake Hill Motors, Inc. v. Jim Bennett Yacht Sales, Inc., 246 F.3d 752, 756 n. 2 (5th Cir.2001). There has been no showing of antitrust injuries here.

CONCLUSION

¶ 33. Based on the foregoing analyses, we affirm the trial court’s grant of summary judgment in favor of Tobacco Defendants as to all of Owens Coming’s claims.

¶ 34. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . Bliley documents — The United States House of Representatives Committee on Commerce issued subpoenas on February 19, 1998 for approximately 39,000 documents identified in the matter of State of Minnesota, et. al. v. Philip Morris, Inc., et al. No. Cl-94-8563 (2nd Judicial Dist., MN) as not protected by claims of attorney-client privilege because they may evidence crime or fraud.
      After an initial bipartisan assessment of all documents submitted to the Committee on April 6, 1998, Chairman Bliley consulted with the Ranking Minority Member and ordered the public release of subpoenaed documents on the Committee's site on the World Wide Web on April 22, 1998.

      . Owens Corning states that the term “Jefferson County residents” refers to residents of Jefferson, Claiborne, Copiah, and occasionally, Holmes Counties.

      . In its brief, Owens Corning points out that it exercised its right not to donate the money because it did not reach a satisfactory settlement with all the Jefferson County claimants.

      . See Dafler v. Raymark Indus., Inc., 259 N.J.Super. 17, 611 A.2d 136, 144 (1992) (discussing decisions in several jurisdiciions as early as 1985 allowing apportionment of fault to plaintiff smokers), aff’d per curiam, 132 N.J. 96, 622 A.2d 1305 (1993).

      . See Frank J. Vandall, The Legal Theory and the Visionaries that Led to the Proposed $368.5 Billion Tobacco Settlement, 27 Sw. U.L.Rev. 473 (1998).

      .In his opinion for the court, Judge Easter-brook remarked: "States that sued tobacco companies have been promised more than $200 billion in settlement over a 25-year period. Awed by this success, health insurers (including ERISA welfare benefit funds) have filed me-too suits, contending that the tobacco producers must compensate the insurers for the costs of smokers’ health care.” International Bhd. Local 734, 196 F.3d at 820.

      . See Service Employees Int’l Union Health & Welfare Fund v. Philip Morris, Inc., 249 F.3d 1068 (D.C.Cir.2001)(plaintiffs’ alleged [fraud and RICO] injuries were too remote to be proximately caused by alleged conduct of tobacco companies); Association of Washington Public Hospital Districts v. Philip Morris, Inc., 241 F.3d 696 (9th Cir.2001) (tobacco firm's alleged unlawful conduct was not the proximate cause of the districts injuries); Lyons v. Philip Morris, Inc., 225 F.3d 909 (8th Cir. 2000) (trustees “are essentially making subro-gation claims”); United Food & Commercial Workers Unions, Employers Health & Welfare Fund v. Philip Morris, Inc., 223 F.3d 1271 (11th Cir.2000) (claims for fraud, conspiracy, breach of assumed duty were barred by doctrine of proximate cause); Texas Carpenters Health Benefit Fund v. Philip Morris, Inc., 199 F.3d 788 (5th Cir.2000) (loss suffered was too remote from the manufacture and sale of cigarettes to recover for alleged antitrust or RICO violations ... funds' lawsuits constitute an illegitimate end-run around principles of subrogation); International Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818 (7th Cir.1999) (claims dismissed based partially on remoteness); Laborers Local 17 Health & Benefit Fund v. Philip Moms, Inc., 191 F.3d 229 (2d Cir.1999) (the economic injuries alleged were purely derivative of the physical injuries suffered by plan participants, and thus, were too remote for funds to have standing to sue tobacco companies); Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris, Inc., 185 F.3d 957 (9th Cir.1999) (alleged injury too remote for RICO claim); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912 (3d Cir.1999) (no proximate cause to support RICO, fraud, or special duty claims), cert. denied, 528 U.S. 1105, 120 S.Ct. 844, 145 L.Ed.2d 713 (2000); Republic of Venezuela ex rel. Garrido v. Philip Morris Cos., 827 So.2d 339 (Fla.Dist.Ct.App.2002) (Plaintiff did not have a direct independent cause of action against tobacco companies); Steamfitters Local Union No. 614 Health & Welfare Fund v. Philip Morris, Inc., 2000 WL 1390171 (Tenn.Ct.App. Sept.26, 2000) (plaintiffs’ alleged injuries are too remote, as a matter of law, to permit recovery on antitrust, fraud, deceit, misrepresentation, conspiracy, and violation of the Tennessee. Consumer Protection Act violations). See also Health Care Services Corp. v. Brown & Williamson Tobacco Corp., 208 F.3d 579 (7th Cir.2000) (plaintiffs may only proceed in subrogation claim) (connection between conduct and injury is too attenuated even under a relaxed standard of proximate cause); Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., 1999 WL 760527 (N.D.Cal. Sept.21, 1999) (no standing absent showing of direct injury).

      . See Laborers Local 17, 191 F.3d at 233 ("Ordinarily, plaintiffs’ right to sue for damages would be subrogated to the rights of those individual smokers for whom they provided health care benefits. In other words, plaintiffs would stand in the shoes of the injured participants and recoup damages from defendants, as tortfeasors, only to the extent defendants were liable to the participants themselves.").’

      . Since Holmes, other courts have referred to the analysis of proximate cause policy considerations as the “Holmes factors” or tire “Holmes test.”


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Russell D. WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01904-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.
    Rehearing Denied Sept. 30, 2003.
    Certiorari Denied March 18, 2004.

      Thomas H. Comer, Booneville, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Russell D. Williams was convicted in the Circuit Court of Prentiss County of rape and simple assault. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections for rape and six months in the Prentiss County Jail for simple assault. Feeling aggrieved, Williams has appealed his conviction. He asserts six separate issues in the appeal. We find these issues to be without merit and, therefore, we affirm the judgment of the circuit court.

I.

Facts

¶ 2. The State presented evidence at trial that tended to support the following version of events. On August 11, 1999, Russell Williams entered the home of his estranged wife, V.W., while she was sleeping. When V.W. awoke, she saw Williams standing at the foot of her bed. He announced his intention to have sexual intercourse with her. She resisted, but Williams threatened her with a gun and forced her to submit. V.W. later attempted to gain control over the gun, but while she was struggling to wrench it away from Williams, the gun went off. Williams then struck V.W. and she called out for help. Her son called the police and Williams was taken into custody. Williams was charged with rape and aggravated assault.

II.

Issue One: Jury Instructions

¶ 3. In his first issue, Williams asserts that the trial court erred in refusing to grant his proposed D-10 jury instruction. This instruction addressed the rape victim’s duty to resist and stated in part:

[T]he victim of an alleged rape is under a duty to use all reasonable physical resistance available to her ... to prevent the rape unless proof also shows, beyond a reasonable doubt, that she surrendered because she reasonably feared that if she did not, she would suffer death or great bodily harm. A mere tactical surrender ... in the fact of assumed superior force is not enough.

¶4. The State contends that the pertinent issues were covered in instruction D-10a, which states:

[I]f after a consideration of all evidence in this case you believe, beyond a reasonable doubt, that Russell Williams had sexual relations with [V.W.], nevertheless, you must still find him not guilty of raping [V.W.] unless you also find, beyond a reasonable doubt:
(1) That [V.W.] did not consent to such sexual intercourse, but that she instead used all reasonable physical resistance available to her under the circumstances then and there existing to prevent the sexual intercourse, or
(2) That [V.W.] submitted to such sexual intercourse because she reasonably feared that if she did not submit, she would suffer great bodily harm.
If the evidence fails to convince you, beyond a reasonable doubt in this regard, then it is your sworn duty to find the Defendant, Russell Williams, not guilty.

¶ 5. As a part of his argument against the State’s assertion that instruction D-10a covered the relevant issues, Williams contends that, though the trial court may have intended to use D-lOa instead of the requested D-10, instruction D-lOa was never actually given to the jury insofar as the record reveals. Alternatively, he argues that the instruction was incomplete because it failed to inform the jury concerning the doctrine of tactical surrender.

¶ 6. As to Williams’s first contention-that the instruction was never actually given to the jury — Williams points out that the instructions in the record do not include one marked D-lOa bearing a file stamp by the clerk or a handwritten indication on the face of the instruction by the trial court indicating whether the proposed instruction was given, refused, or withdrawn as appears on all other instructions. The court reporter, as is apparently often the custom, did not transcribe the reading of the instructions by the trial court into the record, instead simply making an entry in the record in this form: “(JURY INSTRUCTIONS READ TO THE JURY BY THE COURT).” Nevertheless, when jury instructions were being discussed, the language appearing in what the State contends was instruction D-lOa was discussed and the court indicated that it would be given. Additionally, during closing argument, defense counsel relied on the language of instruction D 10a in framing his argument when he said:

And the Court said that in consideration of all of the evidence in this case you believe beyond a. reasonable doubt that Russell Williams had sexual relations with [V-W.], you must still find him not guilty of raping [V.W.], unless you also find beyond a reasonable doubt, that [V.W.] did not consent to such intercourse, but that she instead used all reasonable and physical evidence — resistance available to her — to her under the circumstances, then and there existing to prevent the sexual intercourse, or that [V.W.] submitted to such sexual intercourse, because she reasonably feared if she did not — if she did submit, she would suffer great bodily harm.

¶ 7. It is clear from the record that the trial court intended to give instruction D-10a, and though there is no readily apparent explanation as to why it was not marked and stamped in the same manner as the other instructions, we do not conclude, on the basis of the record before us, that the instruction was somehow overlooked through inadvertence. Rather, based on. defense counsel’s summation that followed just minutes after the court completed delivering the instructions to the jury, it appears substantially likely that the jury was properly instructed on the concept that a rape victim must physically resist the sexual advances of the rapist or submit under a reasonable fear of imminent great bodily harm.in the form proposed as D-lOa.

¶ 8. This conclusion brings us to Williams’s second contention, ie., that the instruction was an incomplete statement of the law on the subject because of its failure to address the concept of “tactical surrender.” Williams cites Christian v. State for the proposition that a victim’s tactical surrender to sexual advances in the face of apparently superior force on the part of the assailant is not sufficient resistance under the law of rape. Christian v. State, 456 So.2d 729, 733 (Miss.1984). In Christian, however, the Mississippi Supreme Court affirmed a rape conviction when an instruction mentioning “tactical surrender” was refused and the only instruction given on the victim’s duty to resist was quite similar to D-lOa in this case. We understand Christian to mean that there is no requirement that the jury be specifically informed of the concept of “tactical surrender.” Rather, it appears that “tactical surrender” is merely illustrative of one particular situation where one of the two underlying alternative concepts of law concerning the duty to resist comes into play; namely, that physical resistance need not be shown if the victim is in reasonable apprehension of imminent serious bodily injury or death. The jury in this case, as in Christian, was properly instructed as to the two fundamental concepts which it should use in dealing with the victim’s duty to resist under the law. In that situation, we do not think it was reversible error for the court to decline to illustrate or attempt to define particular levels of resistance that would not satisfy the requirement to resist. Rather, it would appear that such considerations could be properly addressed in summation, using the court’s instructions concerning force or fear of imminent serious injury as the foundation for the argument. The refusal of an instruction, even if it correctly states the law, is not reversible error if the instructions given, when read in their entirety, adequately inform the jury on the concepts of law with which it must deal. Hull v. State, 687 So.2d 708, 722 (Miss.1997). We conclude that the jury was adequately instructed on the relevant issues without having heard proposed instruction D-10.

II.

Lesser-included Offense Charge

¶ 9. Next, Williams asserts that the trial court erred in refusing to give a lesser-included offense instruction on simple assault to the rape charge. The court refused, stating that in this scenario, simple assault could not reasonably be seen as a lesser-included offense of rape. The court noted, “I don’t think any reasonable juror could determine that if the Defendant did not commit the offense of rape against the alleged victim in this case, that they could find that he committed a simple assault. ... I believe the issue in this case is one of consent or lack thereof.”

¶ 10. A lesser offense charge is correctly excluded if there is no evidentia-ry basis for it. Payton v. State, 642 So.2d 1328, 1335 (Miss.1994). In this instance, the court found that there was no eviden-tiary basis for a simple assault instruction as a lesser offense to rape. The court correctly identified the pivotal issue on which the rape charge turned, which was whether the victim had engaged in consensual sex or had submitted under the fear of imminent serious injury arising out of the fact that Williams was armed with a firearm. There was no contention by the defense that Williams attempted, but was unable to complete, the act of engaging in sexual intercourse through the exercise of raw physical force — a situation that might give rise to a lesser-included offense instruction. In the situation we face, we do not think that a lesser-included offense of simple assault was indicated and it was not error to decline to instruct the jury in that manner.

¶ 11. Williams also contends that the trial court erred by declining to instruct the jury as to other possible lesser offense charges, including sexual battery. The only lesser offense charge actually requested by Williams was that of simple assault. Williams cannot complain on appeal about the refusal of the court to give an instruction that he never requested. See Mallett v. State, 606 So.2d 1092, 1095 (Miss.1992) (“We have held time and time again that a party may not complain on appeal of the failure to grant an instruction which was not at least in substance requested in the trial court.”). We find this issue to be without merit.

III.

State’s Exhibit 8

¶ 12. Williams’s third assignment of error concerns the introduction into evidence of a packet of letters written by the defendant and apparently intended for the victim. The letters were found in an envelope in Williams’s truck on the day of the alleged crime. The letters included a poem that opened with the phrase, “Something says you have to die.... ” These letters were found by police officers on the day of the assault. The letters were contained in an envelope labeled with the victim’s first name found on the passenger seat of Williams’s truck. The police found the truck parked in a field about one quarter of a mile from V.W.’s house. The State sought to have these letters introduced into evidence to show Williams’s state of mind on the day in question. The defense objected on the ground that they were not relevant and that there was no indication of when they were authored, thereby raising an issue of possible remoteness in indicating the defendant’s state of mind. The court admitted the letters into evidence.

¶ 13. On appeal, besides issues of relevance and remoteness, Williams asserts that the letters were not admissible because their prejudicial impact outweighed any probative value within the meaning of Mississippi Rule of Evidence 403. Williams also contends that the letters are evidence of past acts, offered solely to prove that Williams acted in conformity therewith, and, thus, inadmissible under Rule 404(b).

¶ 14. We disagree that Rule 404(b) plays any part in the issue of the admissibility of these letters since the act of writing a letter is not a prior bad act similar in any way to the act of rape. We do, however, find it necessary to address Williams’s contention that the letters were improperly admitted after Williams raised an objection based on relevancy. The State claims the letters were probative on the issue of Williams’s state of mind at the time the crime was committed.

¶ 15. The issue of remoteness is, we think, satisfied by evidence that the letters were apparently in the immediate possession of the defendant on the day of the crime. No matter when they may have been actually drafted, it is a fair inference that the subject or subjects addressed in the letters were prominent in Williams’s consciousness as shown by the fact that the letters were discovered on the front seat of his truck at the place he had parked it to go to the victim’s residence.

¶ 16. Relevance itself presents a closer question. A thorough reading of the contents of all the letters does not necessarily, in our view, indicate a person intent on committing an act of rape. The letters do, however, seem to demonstrate a person having a certain obsessive interest in the victim. Whether that makes it more likely that Williams, involved in obsessive thought concerning his estranged wife, would force her to engage in non-consensual sex (which is the test of relevancy set out in Mississippi Rule of Evidence 401), appears problematic at best. Nevertheless, we acknowledge the broad discretion afforded the trial court in controlling the admissibility of evidence. McKee v. State, 791 So.2d 804, 810 (¶22) (Miss.2001). Conceding that broad discretion, we cannot say that the decision to admit these letters, for whatever probative value the jury might find them to have, was an abuse of the court’s discretion of sufficient magnitude as to require this Court to intervene. At least in part, we base this decision on the fact that the contents of the letters do not appear particularly prejudicial under a Rule 403 analysis. Rather, the contents of the letters would appear equally as likely to invoke feelings of sympathy for the defendant as to cause him to be improperly prejudiced in the eyes of the jury. Thus, though their introduction may have had little probative value as to the pivotal issues of the case, it seems likewise true that there was no real prejudice to the defense in permitting the jury to discover his apparently strong, perhaps even excessively strong, emotional ties to his estranged wife.

TV.

Mistrial

¶ 17. During the jury deliberations, the jury sent a note to the judge asking if the victim had said “stop” or “no” prior to the alleged rape. The judge responded by instructing the jury to rely on their own recollection of the testimony. A few hours later, the jury reported that it was deadlocked on both charges. The defense then moved for a mistrial and objected to any further instructions being given to the jury. The court denied the motion and brought the jury out to determine the extent of the deadlock, which was discovered to be 11 to 1. The court asked the foreman if he thought further deliberations would be helpful. The foreman responded that he did not “believe six months would help.”

¶ 18. The court gave an additional instruction to the jury, over the defense’s objection, known as a “modified Allen charge.” The court also verbally admonished the jury that “we’ve tried this case for two days. You’ve only been deliberating now for less than three hours. I’m going to give you another instruction and then I’m going to have you return to the jury room.... ” The court then sent the jury back to deliberate, and instructed the bailiff to inquire as to whether or not any of the jurors would desire dinner. At this point, the defense again moved for a mistrial, stating as grounds the foreman’s assertion that the deadlock could not be resolved. The motion was denied and the court announced it would recess until the jury came back with a verdict. The record indicates that the court was called to order sometime thereafter and the jury announced its verdicts, finding Williams guilty of rape on count one and guilty of simple assault on count two.

¶ 19. On appeal, Williams asserts that the trial court committed reversible error in referring to the amount of work that went into the trial when instructing the jury to resume deliberations. Williams relies upon the ruling of Brantley v. State, 610 So.2d 1139 (Miss.1992), which held that it is reversible error to refer to such matters when instructing a deadlocked jury to resume deliberations. Williams asserts that the trial court’s instruction to the jury was similar to that proscribed by Brantley. We would agree that it would have been better for the trial court not to have made the oral remarks concerning the investment of time and resources in the case. Nevertheless, the actual formal charge given to the jury instructing them to continue to attempt to resolve their apparent impasse was one approved by the Mississippi Supreme Court. Sharplin v. State, 330 So.2d 591, 596 n. 1 (Miss.1976). We must assume that the court followed that instruction in its further deliberations. Payne v. State, 462 So.2d 902, 904 (Miss.1984). We do not think the court’s verbal remarks that preceded a correct instruction so tainted the jury in its work as to render its subsequent verdict so suspect that we ought to reverse. Additionally, Williams made no specific objection to the court’s comments. “Failure to raise a contemporaneous objection to the judge’s instruction procedurally bars [the defendant] from arguing this issue on appeal.” Walker v. State, 729 So.2d 197, 202 (¶ 19) (Miss.1998). To the extent that the court’s comments were prejudicial, the matter could easily have been corrected had the matter been called to the court’s attention in a timely way.

¶ 20. The court also inquired as to whether the jurors desired that an evening meal be ordered for them. Williams asserts that the court’s inquiry was reversible error because, coming as it did on Friday evening, the inquiry contained the implication that the court might keep the jurors into the weekend, thereby bringing improper pressure on them to resolve their deadlock.

¶ 21. We disagree that the court’s inquiry into the jurors’ desire to take a break for dinner was an attempt to coerce them into reaching a verdict. It is the duty of the trial court to see to the welfare of the jury during the course of the trial and during their subsequent deliberations. To have neglected their basic needs after a long day of difficult work would, itself, have seemed a failure of the court to carry out its responsibilities in that area.

V.

Motion for Continuance

¶ 22. During trial, the State sought to introduce into evidence photographs depicting new locks that had been placed upon V.W.’s doors. These photographs were to support V.W.’s testimony that, when she discovered that her estranged husband was returning to town, she took measures to ensure her safety against him. Williams objected to allowing the photographs into evidence, claiming the State had not disclosed the photographs in a timely manner under applicable rules of discovery. The objection was overruled and the photographs were admitted.

¶ 23. The State contends that the photographs were available at any time for inspection by defense attorneys and that counsel simply failed to avail himself of the opportunity. Further, the State argues that the issue was waived because the defense’s pre-trial continuance motion dealt with another matter but failed to raise the allegedly untimely production of the photographs.

¶ 24. Williams filed an ore tenus motion for continuance immediately prior to the commencement of trial based on the State’s allegedly untimely production of certain physical evidence, but did not mention the photographs. The court apparently accepted the State’s contention that the prosecution’s physical evidence had been available for inspection for an extended period and that the defense had simply delayed in availing itself of the opportunity to inspect it. On that basis, the continuance motion was denied. We agree that the defense’s failure to raise any other available issues relating to alleged discovery violations acted as a waiver. Aside from that, we do not think the admission of the photographs, even if admitted in error, affected the fundamental fairness of the trial to the extent that it would constitute reversible error. The victim was permitted to testify that she had changed the locks at her home upon learning of the defendant’s return to the area. It does not appear that the defense was contending that the victim was being untruthful in that testimony. In that situation, photographs of the doors themselves showing what is purported to be the new locks already testified to by the victim appear rather benign in terms of actual impact on the strength of the prosecution’s case. “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected....” M.R.E. 108(a). These photographs did not impact a “substantial right” of the defendant in this case.

VI.

Sufficiency and Weight of the Evidence

¶ 25. Williams raises in his final issue the argument that the evidence was insufficient as a matter of law to support the rape conviction. Alternatively, he says that the verdict was against the weight of the evidence. Williams’s contention, as to both issues, is that, because the victim did not physically resist his advances, and because the gun which the State contends put the victim in fear of imminent serious injury or death was physically out of his reach when the victim submitted to the act of intercourse, he could not be found guilty of rape.

¶ 26. A challenge to the sufficiency of the evidence requires a determination that, as to one or more essential elements of the crime, the State’s evidence is so lacking that a fair-minded juror could only find the defendant not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing the denial of a directed verdict of JNOV motion on appeal, this Court must view all the evidence in the light most favorable to upholding the verdict. Id. In that light, we conclude that the victim’s testimony that she felt compelled to submit to the defendant’s demands for sexual relations because he was armed with a gun and that she felt “like a trapped animal” in that situation was sufficient for the jury to infer that her capitulation was more than the tactical decision to surrender that is urged by the defense. The fact that the gun may not have been immediately at hand to Williams during the act of intercourse does little, if anything, to diminish a reasonable fear on the part of the victim that her failure to succumb to his demands could result in a decision on his part to use the weapon against her. We think that the jury could conclude that there was the requisite measure of immediacy in the threat to her person to make her decision to submit an involuntary one within the meaning of the rape laws of this State.

¶ 27. In situations where the evidence is sufficient to convict, a defendant may, nevertheless, be entitled to a new trial if the trial court determines that the verdict is so against the weight of the credible evidence that it would constitute a manifest injustice to permit the guilty verdict to stand. Wetz v. State, 503 So.2d 803, 812 (Miss.1987). Such a determination, involving as it does subjective evaluations of the evidence by the trial court, vests that court with substantial discretion in ruling on a new trial motion. Long v. Harris, 744 So.2d 839, 842 (¶ 12) (Miss.Ct.App.1999). If a new trial motion on that ground is denied and made the subject of appeal, this Court must review the record in the light most favorable to sustaining the conviction and determine whether the trial court abused its discretion. Id. To a large extent, this case turned on the decision of the jurors, sitting as finders of fact, as to whether the State’s evidence or that presented for the defense appeared more credible and worthy of belief. Such determinations, once made, are entitled to substantial deference and an appellate court is not at liberty to simply substitute its judgment for that of the jury on the issue of what evidence appears more persuasive. Veal v. State, 585 So.2d 693, 695 (Miss. 1991). The jury, by its verdict, indicated that it found the victim to be a trustworthy and believable witness. Her testimony was not incredible on its face nor was it contradicted by other, more ‘compelling, evidence. Neither was she substantially impeached by any of the recognized methods of casting a witness’s testimony into doubt. In that situation, we cannot find any legitimate basis to disturb the jury’s decision to accept her version of events and convict the appellant Williams of the crimes laid out in the indictment.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY OF CONVICTION OF COUNT I RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; COUNT II SIMPLE ASSAULT AND SENTENCE OF SIX MONTHS IN THE PRENTISS COUNTY JAIL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PRENTISS COUNTY.

KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, and GRIFFIS, JJ., concur. CHANDLER, J., dissents without written opinion.


author: BRIDGES, J.,

text:
    Shad Edward NICHOLS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KP-00230-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.
    Rehearing Denied Oct. 28, 2003.
    Certiorari Denied March 11, 2004.

      Shad Edward Nichols (Pro Se), Daniel Dewayne Ware, attorneys for appellant.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. The grand jury of Simpson County, Mississippi indicted Shad Nichols for the crime of killing Jennifer May by culpable negligence in violation of Mississippi Code Annotated section 97-3^17. Nichols was found “guilty as charged” and by order was sentenced to seventeen years in the Mississippi State Penitentiary. It is from that judgment of conviction that Nichols now appeals.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED NICHOLS’S MOTION FOR CHANGE OF VENUE.

II. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED NICHOLS’S REQUEST FOR A PEREMPTORY INSTRUCTION.

III. WHETHER THE INDICTMENTS WERE VOID BECAUSE THEY FAILED TO PUT NICHOLS ON NOTICE OF THE CHARGE AGAINST HIM.

IV. WHETHER THE TRIAL COURT LACKED JURISDICTION TO PROSECUTE NICHOLS BASED UPON THE INDICTMENT.

V. WHETHER NICHOLS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL.

FACTS

¶2. On November 27, 2000, Patricia Westberry, a pharmacist at D & P Discount Drugs (record does not indicate city), filled a prescription for Shad Nichols. Pursuant to the prescription presented by Nichols, Westberry gave him the drug Oxycontin, which is a brand name for oxyco-done, a Schedule II drug. Later that same day, Nichols drove to the home of Jennifer May, a fifteen-year-old girl, where she lived with her brother, Philip Wayne May II, and her mother, and waited for Jennifer in the front yard. When Jennifer got off her school bus and as she was walking up to her doorstep, Nichols approached her and started to shake the bottle of pills at her.

¶ 3. At approximately 4:00 p.m. that same day, Nichols, Jennifer and her brother, Philip, went to get something to eat at Wards. While there, Nichols informed them that they were going to go home and get high. After leaving Wards, they went to Nichols’s mobile home where Nichols took the bottle of pills out of his pocket and handed some pills to both Jennifer and Philip.

¶ 4. After about one and one half hours after they arrived at Nichols’s home, Nichols and Jennifer went into the bathroom for the purpose of “shooting” Oxycontin. Philip opened the bathroom door and witnessed Nichols sitting down and was pushing a needle toward Jennifer’s foot, “fixing to inject her with Oxycontin.”

¶ 5. Philip told Jennifer not to inject herself with Oxycontin and when she refused to leave, Philip walked back to the living room. When Jennifer finally came out of the bathroom Philip could tell she was “messed up” and intoxicated. Jennifer eventually became sick. Nichols and Jennifer then decided to go to Jackson and informed Philip that he could not go.

¶ 6. Nichols informed law enforcement that early the next morning he found Jennifer asleep on the couch and carried her to his bed. Later, after realizing she was in trouble, Nichols tried to give Jennifer CPR. It was then that Nichols’s father called for emergency assistance. It is not clear from the record when exactly Jennifer died; whether she was dead when Nichols found her or died later when the emergency assistance arrived.

ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED NICHOLS’S MOTION FOR CHANGE OF VENUE.

¶ 7. Nichols claims that the trial judge erred when he denied Nichols’s motion for a change of venue. He argues that the newspapers had prejudiced the people in the county against him.

¶ 8. Motions for a change of venue are left to the trial court’s sound discretion. Swann v. State, 806 So.2d 1111, 1116 (¶20) (Miss.2002). The Mississippi Supreme Court has also held that it will not disturb the ruling of the lower court on a change of venue unless there is an abuse by the trial judge. Shook v. State, 552 So.2d 841, 849-50 (Miss.1989).

¶ 9. Mississippi Code Annotated section 99-15-35 states that if a defendant swears that he cannot get a fair and impartial trial in the county where the offense is committed, in writing, and submits two affidavits by credible persons corroborating his claim, because of prejudgment of the case, grudge, or ill will towards the defendant, the circuit court may change the venue of the trial. Miss.Code Ann. § 99-15-35 (Rev.2000). The Mississippi Supreme Court has found that if the defendant properly applies for a change of venue under Mississippi Code Annotated section 99-15-35, as amended, a presumption arises that an impartial jury cannot be obtained. Porter v. State, 616 So.2d 899, 905 (Miss.1993).

¶ 10. However, the State can rebut this presumption, that the defendant could not receive a fair trial, by proving from voir dire that the trial court impaneled an impartial jury. Holland v. State, 705 So.2d 307, 336 (¶ 97) (Miss.1997); also see Swann v. State, 806 So.2d at 1116 (¶ 19). Therefore, if the State can prove from voir dire that an impartial jury was actually selected, this will overcome a showing of adverse pretrial publicity, and the trial judge’s discretion will not be overturned. Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). One should also note that when a prospective juror assures the court he can be impartial, this assurance is entitled to considerable deference. Scott v. Ball, 595 So.2d 848, 850 (Miss.1992).

¶ 11. In accordance with the aforementioned caselaw, the State produced evidence during the hearing which rebutted the presumption which arose form Nichols’s affidavits and motion. The record clearly supports a finding that a fair and impartial jury was actually selected. The jury panel was asked if it had heard anything about the case or Shad Nichols either in the newspaper or otherwise that would prevent it from being fair and impartial jurors. There was no response. The jurors were asked again, only this time by the judge, if any of them could not decide the case strictly upon the evidence and the law. There was no response. The judge continued to ask if there was anything that might affect their ability to be fair and impartial jurors. No one responded. In conformity with Swann and Holland, the State rebutted the presumption that Nichols could not receive a fair trial by proving from voir dire that the trial court impaneled an impartial jury.

¶ 12. There is no showing that Nichols has met his burden of showing that the trial judge abused his discretion when he overruled Nichols’s motion for change of venue. This issue is, therefore, without merit.

II. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED NICHOLS’S REQUEST FOR A PEREMPTORY INSTRUCTION..

¶ 13. Another claim made by Nichols was that the trial judge erred when he denied Nichols’s request for a peremptory instruction. Nichols contends that the proof did not support a finding of culpable negligence. He further argues that the two pills he admitted to giving to Jennifer May were not enough to cause the overdose which killed her.

¶ 14. “The standard of review for a denial of a directed verdict, peremptory instruction and a J.N.O.V. are identical.” Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003). “When reviewing a denial of a peremptory instruction or a denial of a motion for judgment notwithstanding the verdict, the standard of review requires us to consider the evidence in the light most favorable to the appellee, giving the appellee the benefit of all favorable inferences which may be reasonably drawn from the evidence.” Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001). The court is required to reverse and render where the facts point overwhelmingly in favor of the appellant that reasonable men could not have found appellant guilty. Id. However, we are required to affirm where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found the appellant guilty. Id. Also see Weeks v. State, 823 So.2d 578, 579-80 (¶ 9) (Miss.Ct.App.2002).

¶ 15. In the ease of Smith v. State, culpable negligence was defined as “the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the willful creation of an unreasonable risk thereof.” Smith v. State, 197 Miss. 802, 817, 20 So.2d 701, 705 (1945). “All the State must prove with respect to the victim is that he was prior to the incident a live human being. The homicide laws of this State protect all living beings within the jurisdiction, sinners as well as saints, drunks as well as deacons.” Dickerson v. State, 441 So.2d 536, 538 (Miss.1983). In addition, oxyco-done is a controlled substance included in Schedule II. Miss.Code Ann. § 41-29-115(xiv) (Rev.2001). It is a crime for anyone in lawful possession of oxycodone to give oxycodone to another person in the absence of lawful authority. Miss.Code Ann. § 41-29-139(a)(l) (Rev.2001) (makes it a crime to transfer, distribute, or dispense controlled substances).

¶ 16. As the law requires in Baker and Weeks, the evidence was sufficient to support a finding that g. reasonable and fair minded hypothetical juror could have found Nichols guilty of manslaughter by culpable negligence. In the record, there was evidence that Jennifer was alive and in the bathroom with Nichols. Philip, Jennifer’s brother, claimed that he walked in the bathroom and saw Nichols sitting down pushing a needle towards Jennifer’s foot. When Jennifer came out of the bathroom, there was also testimony by Philip that she looked “messed up” and intoxicated. Jennifer then became ill and had to go outside where she continued to vomit. There is also the statement by Nichols that he gave Jennifer two Oxycontin pills and the next morning found Jennifer unconscious.

¶ 17. Also in evidence is the testimony of Dr. Steven Hayne, a forensic pathologist, who stated that a far greater amount of Oxycontin is delivered by injection than is received through an oral ingestion, and a much higher level of Oxycontin is found in the blood when delivered by injection. Dr. Hayne also found that the Oxycontin level in Jennifer’s blood was approximately eleven times higher than the high therapeutic level, and was approximately five and one half times higher than the toxic level of Oxycontin.

¶ 18. As the law dictates in Dickerson, the only thing the State had to prove with respect to the victim is that, prior to the incident, she was a live human being. It is perfectly clear that the evidence in the record was sufficient to prove Nichols was guilty. When all of the evidence contained in the record and all reasonable inferences arising therefrom are viewed in the light most favorable to the State, a reasonable fair minded juror acting in good faith could have found that the Oxycontin given by Nichols to Jennifer May caused her death. Therefore, because of the aforementioned reasons, this issue is without merit.

III.WHETHER THE INDICTMENTS WERE VOID BECAUSE THEY FAILED TO PUT NICHOLS ON NOTICE OF THE CHARGE AGAINST HIM.

¶ 19. Nichols argues that the indictment was void because it failed to put him on notice of the charge against him. However, Nichols failed to challenge the indictment before the trial court, therefore, preserving the issue for appeal. This Court sits to review alleged errors committed at the trial level and not to adjudicate the merits of claims not previously presented to the trial court for resolution. Denson v. State, 746 So.2d 927, 932 (¶ 17) (Miss.Ct.App.1999). In his brief, Nichols does not indicate when he raised the issue before the circuit court nor was this Court able to locate any mention of this issue at the trial court level; therefore, he has failed to preserve the issue and is procedurally barred from bringing the issue before this Court. We find that Nichols is procedurally barred from raising the issue on appeal.

IV. WHETHER THE TRIAL COURT LACKED JURISDICTION TO PROSECUTE NICHOLS BASED UPON THE INDICTMENT.

¶ 20. Another argument made by Nichols is that the indictment was defective because it did not identify the judicial district in which Nichols is alleged to have committed the crime.

¶ 21. This Court sits to review alleged errors committed at the trial level and not to adjudicate the merits of claims not previously presented to the trial court for resolution. Id. Again, Nichols does not indicate when he raised the issue before the circuit court nor was this Court able to locate any mention of this issue at the trial court level; therefore, he has failed to preserve the. issue and is procedurally barred from bringing the issue before this Court. We find that this issue is procedurally barred.

V. WHETHER NICHOLS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 22. The final argument made by Nichols is that he received ineffective assistance of counsel. He stated three grounds for this claim. First, Nichols claims that defense counsel failed to demur to the indictment because it failed to identify the judicial district in which the crime occurred. Second, he argues that defense counsel failed to inform him of the status of the case, failed to file a speedy trial motion on charges pending against Nichols, and failed to file a notice of appeal or move for" an appeal bond. Lastly, Nichols claims that defense counsel failed to subpoena and put on character witnesses, and also failed ’to subpoena and call to the stand witnesses who could testify that Jennifer said she wanted to kill herself because her parents were prostituting her for crack cocaine. .

¶ 23. The Supreme Court of the United States in the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), clearly set the guidelines for judicial determination of cases involving effective or ineffective assistance of counsel.

¶ 24. There are two components that Nichols must prove in order for his claim of ineffective assistance of counsel to prevail and require reversal of his conviction. First, Nichols must show that his “counsel’s performance was deficient.” Id. at 687, 104 S.Ct. 2052. Second, Nichols must show the “deficient performance prejudiced the defense.” Id. This requires a showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In regards to this second prong, Nichols must show that there is- a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Leatherwood v. State, 473 So.2d 964; 968 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). Nichols must prove both of these elements in order to succeed on his claim. Id. Each case should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer, 454 So.2d at 476. The standard of performance used is whether counsel provided “reasonably effective assistance.” Leatherwood, 473 So.2d at 968, “There is a strong presumption that counsel’s conduct is within the wide range of reasonable professional conduct.” Id. at 969.

¶ 25. Nichols- claims that defense counsel failed to demur to the indictment because the indictment failed to identify the judicial district in which the crime occurred. The crime Nichols is charged with occurred in Simpson County. Simpson County is not divided into separate judicial districts, like some other counties. Therefore, whether the indictment failed to state the judicial district where the -crime occurred is irrelevant.

¶ 26. As for the failure to inform regarding trial status, the record does not support a finding, and Nichols does not allege, that he would have prevailed on a claim alleging denial of a speedy trial. Nor does Nichols allege that he suffered any prejudice from any trial delay. The Mississippi Supreme Court has been reluctant to order dismissal of charges on speedy trial issues where no actual prejudice has been shown. State v. Woodall, 801 So.2d 678, 685 (¶ 24) (Miss.2001). Additionally, it is not clear from the Appellant’s brief if Nichols is referring to the trial upon which this appeal is based or otherwise. Nichols’s conviction is on appeal so he has failed to demonstrate prejudice due to the notice of appeal or appeal bond.

¶ 27. Regarding the failure to call character witnesses, there was no contested facts which required the jury to make credibility findings, nor did Nichols demonstrate that character witnesses would have assisted his case at trial. Nichols has not demonstrated that the failure to call character witnesses caused him any prejudice. Nor has Nichols proven that the decision not to call character witnesses did not fall into the class of trial strategy. Lastly, there is nothing in the record that even hints that there is a reasonable probability that, but for the failure to put on the character witnesses at trial, the result would have been different. Therefore, Nichols has failed to prove at least the second element of the Strickland test, a test in which he must prove both elements in order to prevail on his claim of ineffective assistance of counsel.

¶ 28. Regarding the failure to call witnesses who would testify that Jennifer told someone that she wanted to kill herself, that evidence would have been irrelevant and not admissible. The relevant facts include: Nichols gave Jennifer oxyco-done, she took oxycodone, and she died from an oxycodone overdose. These facts were not contested. If there was any disputed issue about those facts, Nichols might have had a stronger argument that the testimony would have been relevant and admissible.

¶ 29. It is clear that defense counsel’s professional performance was not deficient, and there was no showing that the failure to call witnesses who would testify about Jennifer’s statements prejudiced Nichols’s case. In this instance, Nichols has failed to prove either prong of the Strickland test.

¶ 30. This Court finds that this issue is without merit.

¶ 31. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF SEVENTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED TO SIMPSON COUNTY.

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