source: Caselaw Access Project

license: Public Domain

text:
    Anne W. WEISSINGER, Martha W. Weissinger, William T. Wynn, II, and Margaret W. Fortier v. Elliott Vaughan Doss SIMPSON, Lenore Anne D. Gault and CYnthia Louise Doss Cooper.
    No. 2002-CA-01137-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Franklin Alan Garrison, Neville H. Boschert, Jackson, Charles H. Weissinger, Rolling Fork, attorneys for appellants.
    E. Randolph Noble, Jr., David S. Roun-savall, Greenville, attorneys for appellees.
    Before SMITH, P.J., WALLER and COBB, JJ.
   SMITH, Presiding Justice, for the Court.

¶ 1. In this estate case, we review a chancellor’s finding that a testator’s use of the term “then living issue” was intended to include adopted children. This Court must determine whether the phrase “then living issue” includes adopted children as beneficiaries to a class gift when the testator has used different language (“children, including adopted children”) in the will to specifically include adopted children as the beneficiaries to a different gift. We find that the chancellor erred. When a testator uses distinctly different terms in his will, he intends different results; therefore in this case, the term “then living issue” does not include adopted children. Additionally, this Court finds the chancellor did not err in refusing to order an immediate disbursement of four-sevenths of the trust to the natural children, nor did she err in failing to recuse herself from the proceedings due to ex parte contacts with the late Douglas C. Wynn.

FACTS

¶2. Douglas C. Wynn (Douglas) was born in 1932, and as a child, he was adopted by Margaret B. Wynn. Margaret B. Wynn was the sister of Douglas W. Brooks (Brooks). Douglas was Brooks’s nephew.

¶ 3. On September 18, 1968, Brooks executed a will that created, at his death, the Douglas W. Brooks Trust FBO Margaret B. Wynn (Trust). Brooks’s will provided that, at the death of Douglas C. Wynn, “the Trustee shall pay over the entire then remaining accumulated income and corpus of Trust B, in equal shares per stirpes to the then living issue of Douglas C. Wynn.” Brooks died on October 24,1969.

¶ 4. Leila Clark Wynn and Douglas were married in June of 1954; four children, Margaret, Martha, Anne and William, were to born to the marriage. Leila and Douglas divorced in September of 1988. The next day, Douglas married Lucy Vaughan Wynn.

¶ 5. Lucy was previously married; four children, Lenore, Vaughan, Cynthia, and Jennifer, were born to her previous marriage. Two years after Lucy and Douglas married, on November 2, 1990, Douglas adopted three of Lucy’s daughters, Lenore, Vaughan, and Cynthia. A decree of adoption for each was entered in Washington County, Mississippi.

. ¶ 6. On September 13, 2001, the Trustee for the Douglas W. Brooks Trust (Trust) advised the natural and adopted children of the then recently deceased Douglas C. Wynn that the Trust would be terminated and the principal distributed equally among the seven of them. On September 19, 2001, counsel’for William T. Wynn, II notified the Trustee he objected to a disbursement of any portion of the Trust proceeds to the adopted children. On November 13, 2001, the National Bank of Commerce (Bank) filed a Complaint for Declaratory Relief and Interpleader in the Chancery Court of Washington County, asking the chancery court to determine and adjudicate the proper beneficiaries of the Trust.

¶ 7. On January 18, 2002, the four natural children, Anne W. Weissinger, Martha W. Weissinger, William T. Wynn, II., and Margaret W. Fortier, filed a motion asking for an immediate disbursement to them of an amount equal to four-sevenths of the value of the Trust. Following a hearing, the chancery court denied their motion.

¶ 8. The natural children then filed their memorandum of facts and authorities in support of request for relief. The adopted children, Elliott Vaughn Doss Simpson, Lenore Anne D. Gault, and Cynthia Louise Doss Cooper, then filed their memorandum of facts and authorities in response. Since the parties agreed there were no questions of fact, only questions of law, a statement of stipulated facts was submitted in a separate pleading simultaneously with the request for relief.

¶ 9. The chancery court held a hearing on May 2, 2002. The chancery court then dictated its ruling from the bench into the record. An order prepared by counsel for the adopted children memorializing this ruling was signed and entered on May 15, 2002. On the same day, the chancery court entered an order relieving the Bank of any obligation to participate further in the action and allowing it to remain custodian and trustee of the Trust until a final order from the final appellate court orders distribution.

¶ 10. The natural children filed a motion to vacate judgment, motion for recu-sal, and motion for new trial. A hearing was held on that motion on June 3, 2002. The chancery court denied the motions the same day. The natural children then filed the appeal that is now before this Court. The Bank is not a party to this appeal.

STANDARD OF REVIEW

¶ 11. This Court has ruled that

[i]t should not interfere with the chancellor’s findings of fact unless they were ‘manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’ Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard.

Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001) (citing In re Carney, 758 So.2d 1017, 1019 (Miss.2000)).

LAW AND ANALYSIS

I. WHETHER THE CLASS CREATED BY THE TERM “ISSUE” IN DOUGLAS W. BROOKS’S WILL INCLUDE THE ADULT ADOPTED CHILDREN OF DOUGLAS C. WYNN.

¶ 12. When a court must construe a testator’s will, the first place it looks is to the will itself, giving due consideration and weight to every word. Matter of Homburg, 697 So.2d 1154, 1157 (Miss.1997); In re Granberry’s Estate, 310 So.2d 708, 711 (Miss.1975). At least two rules of construction are helpful in this case. First, the intention of the testator is controlling. May v. Hunt, 404 So.2d 1373, 1376 (Miss.1981). Second, the testator’s intent must, if possible, be gathered from the entire will, giving due consideration and weight to every word in it. In re Granberry’s Estate, 310 So.2d at 711.

¶ 13. This case involves a gift to a class of beneficiaries. A gift to a group whose members are not individually named is generally held to be a class gift. Lee v. Foley, 224 Miss. 684, 689, 80 So.2d 765, 766 (1955). When the time of distribution of the gift to the class is delayed because of an intervening interest, the class membership will be ascertained when the interest in the gift is deemed by the law to have vested in the beneficiaries. Branton v. Buckley, 99 Miss. 116, 54 So. 850, 850 (1911).

¶ 14. The natural children of Douglas argue there is no evidence showing Brooks intended that the subsequently adopted adult children of Douglas be considered “issue” under his will. In support of this assertion they point to the second page of Brooks’s will where Brooks uses the language “children, including adopted children,” as opposed to his use of “then living issue” in the other portions of the will. They contend that Brooks used the explicit language to refer to Douglas, the adopted child of Margaret B. Wynn, but that Brooks had no intention of including any other adopted children. The natural children maintain that there is no other reason for the use of different terms than that Brooks did not intend to include adopted children in the term “issue.”

¶ 15. The natural children further claim that in order “[t]o prevail, the adult adop-tees had to affirmatively show that Brooks intended to include the subsequently adopted adult children ... in the term ‘issue’ in his Will.” In Dodds v. Deposit Guaranty National Bank, 371 So.2d 878, 881 (Miss.1979), this Court held that the adopted son of Edwin Dodds was his descendant “and as such is entitled ... to share in the trust as a member of the class created by the trust unless there is language within the will directing otherwise.” In Brooks’s will, the use of a different term “children, including adopted children” operates to exclude adopted children when the term “issue” is subsequently used alone. Had Brooks intended to include adopted children in the term “issue,” he could have added the phrase “including adopted children,” as he did in the previous part of his will when referring to Douglas.

¶ 16. As the adopted children assert, Brooks had no way of knowing who would be included in the class of Douglas’s “then living issue” which he intended to open upon the execution of his will and not close until Douglas’s death. Any number of changes were possible including marriages, births, deaths, and even adoption; however, Brooks did not allow for the adoption of children to be included in his use of the term “issue.”

¶ 17. Next, the natural children argue the chancery court did not follow well-established rules of construction, mandating a holding that Brooks meant to distinguish between natural children and adop-tees. In that vein, the natural children contend the chancery court was bound to hold that Brooks knew the difference between the terms in question, meant to distinguish between them and had in mind “different results,” according to Strickland v. Delta Investment Co., 163 Miss. 772, 137 So. 734, 736 (1931). According to the rules of construction, the intention of the testator is controlling. May, 404 So.2d at 1376. Here, the testator used the words “then living issue” to designate the class of beneficiaries to whom the Trust would be paid; however, Brooks did not specify to include or exclude adopted children. Then, Brooks’s intent should be gathered from the entire will, giving consideration to every word in it. In re Granberry’s Estate, 310 So.2d at 711. One can see that when Brooks knew an adopted child existed, he specifically included him with “children, including adopted children.” Since he used language of inclusion in part of the will, the absence of inclusive language in another part acts as an exclusion.

¶ 18. We find that Brooks used two different terms in his will because he intended different results for each term. When Brooks intended to include adopted children, he used the language “including adopted children.” When Brooks intended to exclude adopted children, he used the word “issue” without the words “including adopted children.” The trial court erred in finding Brooks intended to include Douglas’s adopted children. We reverse and remand for proceedings consistent with this opinion.

II. WHETHER THE CHANCERY COURT ERRED BY NOT ORDERING THE BANK TO IMMEDIATELY DISBURSE FOUR-SEVENTHS OF THE TRUST TO ANNE W. WEISSINGER, MARTHA W. WEISSINGER, MARGARET W. FORTIER, AND WILLIAM T. WYNN, II, FOLLOWING THEIR REQUEST FOR IMMEDIATE DISBURSEMENT ON JANUARY 18, 2002.

¶ 19. As already noted, a chancellor’s findings should be allowed to stand “unless they were ‘manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’ ” Bell, 563 So.2d at 596-97. The natural children contend that they should not be liable for any value the trust may lose before it is disbursed because the court did not disburse their undisputed share. In fact, the record indicates that the value of the trust increased over this time. Considering the fact that class gifts are to be treated as a whole and not divided until disbursement and that the chancellor found the bank, trustee, and attorneys would continue to work on the trust and require fees, we find the chancellor acted reasonably in disallowing partial disbursement. We affirm the trial court’s denial of an order for immediate disbursement of four-sevenths of the trust to the natural children.

III. WHETHER THE CHANCERY COURT ERRED WHEN IT FAILED TO VACATE THE JUDGMENT AFTER REPEATED REFERENCES WERE MADE BY THE ADOPTED CHILDREN TO FACTS CLEARLY NOT IN EVIDENCE.

IV. WHETHER THE CHANCERY COURT ERRED WHEN IT FAILED TO DISCLOSE TO THE PARTIES, AT THE OUTSET OF THE PROCEEDINGS THAT PRIOR TO THIS ACTION, IT ENGAGED IN DETAILED CONVERSATIONS WITH THE PARTIES’ FATHER, DOUGLAS C. WYNN, SHORTLY BEFORE HIS DEATH, ABOUT MATTERS DIRECTLY AT ISSUE IN THE LITIGATION.

V. WHETHER THE CHANCERY COURT ERRED WHEN IT DENIED THE NATURAL CHILDREN’S MOTION TO VACATE JUDGMENT, MOTION FOR RE-CUSAL, AND MOTION FOR NEW TRIAL IN THIS MATTER.

¶ 20. We address these three issues together. The natural children allege that the chancellor considered facts which were not part of the record and made explicit references to and considered her meetings with the parties’ father. They moved for her recusal from the case after the judgment was rendered, citing several portions of the Code of Judicial Conduct as follows:

Canon 2(B) A judge “should not allow his family, social or other relationships to influence his judicial conduct or judgment.”
Canon 3(A)(4) “[A] judge should ... [not] ... consider ex parte or other communications concerning a pending or impending proceeding.”
Canon 3(C)(1) mandating recusal “including but not limited to instances where (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) ... or the judge ... has been a material witness concerning [the matter].

Though this Court finds that the chancellor used an incorrect legal standard in deciding the instant case, no evidence has been presented indicating that bias, prejudice, or ex parte proceedings persuaded the chancellor to decide as she did.

¶ 21. Recently, this Court referenced an earlier decision that found “the chancellor did not abuse his discretion in refusing to recuse himself from a case in which he had limited ex parte contacts with a lawyer representing a party in that pending case.” In re Conservatorship of Bardwell, 849 So.2d 1240, 1246 (Miss.2003) (citing Bryan v. Holzer, 589 So.2d 648 (Miss.1991)). In Bardwell, this Court further explained the objective criteria under Canon 3 to be considered in whether recusal is necessary:

“A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986); (Collins v. Dixie Transport, Inc., 543 So.2d 160, 164 (Miss.1989); Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990) ].... When a judge is not disqualified under the constitutional or statutory provisions, “the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion.” Ruffin v. State, 481 So.2d 312 at 317 (Miss.1985) (quoting McLendon v. State, 187 Miss. 247, 191 So. 821, 823 (1939)); Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner, 573 So.2d at 677.

Bardwell, 849 So.2d at 1246-47 (quoting Bryan, 589 So.2d at 654).

¶ 22. The chancellor did make references in court to the late Douglas Wynn and their ex parte communications just prior to his death, but the record does not show that the court based its decision on these. The evidence here is not adequate to support a finding that a reasonable person would harbor doubts about the chancellor’s impartiality. As stated in Bard-well,

if ‘substantial involvement’ in a case (or a party) were legitimate grounds for recusal, a circuit judge or county judge with five indictments on the same defendant would have to get four other judges involved in presiding over the remaining cases because of ‘substantial involvement’ with the criminal defendant in the first case.

849 So.2d at 1247. Finding no error, we affirm the trial' court’s refusal to recuse from the case.

CONCLUSION

¶ 23. We find that the trial court erred in finding the term “then living issue” in Brooks’s will included the adopted daughters of Douglas. The trial court did not err in refusing to order an immediate disbursement of four-sevenths of the trust to the natural children, nor did it err in failing to recuse due to ex parte contacts with the late Douglas Wynn. The trial court judgment is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion.

¶ 24. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. PITTMAN, C.J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . The natural children listed twelve issues. The first eight issues can be captured by this single issue statement; therefore, we address the first eight issues as one for clarity.


author: WALLER, Justice, for the Court.

text:
    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. Sammie L. DURN.
    No. 2002-CA-01270-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.

      Benjamin E. Griffith, Chris Powell, attorneys for appellant.
    J. Kirkham Povall, Cleveland, attorney for appellee.

      Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   WALLER, Justice, for the Court.

¶ 1. Sammie L. Durn brought suit against the Mississippi ' Department of Public Safety and State Trooper Reginald Lantern pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003), for injuries sustained in a motor vehicle accident with Lantern. The circuit court found that Lantern acted in reckless disregard of Durn’s safety and well-being and that Durn had made an improper left turn. The circuit court awarded Durn $160,453 in damages. The Department of Public Safety appeals, contending that Lantern’s actions were protected by the police exemption under the MTCA, and, alternatively, that the circuit court abused its discretion in awarding damages. We affirm liability under the MTCA but reverse and remand because, after finding that Durn had made an improper left turn, the circuit court did not determine the percentage of Durn’s comparative fault and reduce the amount of the actual damages awarded.

FACTS

¶2. At 6:30 a.m. on October 11, 1999, Durn was driving south on a two-lane area of U.S. Highway 49 north of Indianola. He was headed to the school bus garage to warm up his bus before picking up the children along his bus route. As Durn was driving south on Highway 49, State Trooper Lantern was headed north in his patrol car. Soon after the two passed each other, Lantern noticed a vehicle traveling southbound at a speed in excess of the posted speed limit of fifty-five miles per hour. He made a u-turn and pursued the speeding vehicle.

¶ 3. While in pursuit of the speeding vehicle, Lantern eventually came upon Durn. He attempted to pass Durn using the northbound lane, but as he started to overtake Durn, Durn turned left across the northbound lane to enter the lot leading to the bus garage. Lantern collided with the driver-side rear quarter of Durn’s truck, pushing the truck 178 feet and throwing Durn from his vehicle. The skid marks left by Lantern’s vehicle were completely in the northbound lane. Durn was cited for having an improper tag on his vehicle.

¶ 4. At trial, Durn and Lantern had different accounts of what transpired before the accident. Durn testified that he had his turn signal on before attempting to turn left. He checked his rearview mirror and did not notice a vehicle approaching from either direction. He never heard a siren and also stated that he never noticed the speeding vehicle Lantern was pursuing. Durn’s expert witness testified that Lantern was traveling eighty-one miles an hour before the accident.

¶ 5. Lantern testified that he activated his wig-wag lights as soon as he made the u-turn. He claimed he kept his vehicle at fifty-five miles an hour during the pursuit and that he had already overtaken the northbound lane, attempting to pass Durn when Durn crossed over into the northbound lane. He also stated that Durn began driving in the northbound lane fifty feet before attempting to turn into the garage lot. He did not recall if Durn used his turn signal.

¶ 6. The circuit court found that Lantern acted in reckless disregard of others’ safety and well-being and awarded Durn $8,953 in medical bills, $1,500 in lost wages, $2,000 for the loss of the truck, and $148,000 for pain and suffering, emotional distress, and permanent disability. The circuit court found that Lantern was in pursuit of a speeding vehicle, that the accident occurred in an area where there are numerous businesses, and that visibility was limited due to the time of day. It also found that, although Durn made an improper left turn, he did not engage in any illegal activity and he had activated the left-hand turn signal prior to turning. The circuit court finally found that Lantern was operating his vehicle at an excessive speed. The Department of Public Safety appeals the circuit court’s ruling.

DISCUSSION

¶ 7. Cases brought under the MTCA are tried without a jury. Miss. Code Ann. § 11^16-13 (Rev.2002). The circuit court has the sole authority for determining the credibility of witnesses when it sits as the trier of fact. City of Jackson v. Lipsey, 834 So.2d 687, 691 (Miss.2003). A circuit court judge sitting as the trier of fact is given the same deference with regard to his fact finding as a chancellor, and his findings are safe on appeal when they are supported by substantial, credible, and reliable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000). Questions concerning the application of the MTCA are reviewed de novo. Donaldson v. Covington County, 846 So.2d 219, 222 (Miss.2003). Immunity is a question of law. Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (Miss.2003).

I. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT OFFICER LANTERN’S ACTIONS WERE NOT PROTECTED BY THE POLICE EXEMPTION OF THE MISSISSIPPI TORT CLAIMS ACT.

¶ 8. The Department of Public Safety argues that it is entitled to immunity because: (1) Lantern did not act in reckless disregard of Durn’s safety and well-being; and (2) Durn performed an illegal turn which was the cause of the accident.

¶ 9. The MTCA provides the exclusive remedy for tort actions brought against a governmental entity or its employees. Miss.Code Ann. § 11-46-7(1) (Rev.2002). Although the MTCA waives sovereign immunity for tort actions, it also prescribes certain exemptions from this statutory waiver under which a governmental entity retains its sovereign immunity:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ...
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]

Miss.Code Ann. § 11^6-9 (Rev.2002).

¶ 10. To be entitled to immunity, the officer must not have acted with reckless disregard for the safety of others. Reckless disregard is more than mere negligence, but less than an intentional act. City of Jackson v. Brister, 838 So.2d 274, 281 (Miss.2003).

While we agree that reckless disregard would encompass gross negligence, we hold that reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.
“Disregard” of the safety of others is at least negligence if not gross negligence. Because “reckless” precedes “disregard,” the standard is elevated. As quoted above from Black’s Law Dictionary, “reckless,” according to the circumstances, “may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence.” In the context of the statute, reckless must connote “wanton or willful,” because immunity lies for negligence. And this Court has held that “wanton” and “reckless disregard” are just a step below specific intent.
“Our case law indicates ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.”

Lipsey, 834 So.2d at 691-92 (citations omitted). “Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999).

¶ 11. We recently upheld a finding of reckless disregard when officers caused a suspect to collide with a third party while pursuing her through a congested area at high speeds after she attempted to pass a forged check at a bank. Brister, 838 So.2d at 274. The pursuit took place in a heavily populated area that included apartment complexes, single-family housing and condominiums, a park, and an elementary school. Id. at 280. The officers drove at speeds in excess of twenty miles per hour over the posted speed limit while the suspect was traveling at speeds in excess of seventy miles per hour. Id. The accident occurred when the suspect crested into an intersection where her visibility was limited. We anchored our decision on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect’s escape is more dangerous to the community than the risk posed by the pursuit. Id. We noted that the officers were on the scene before the suspect left the parking lot, and they had the opportunity to either block the suspect in her parking space or get her tag number and apprehend her later. Id.

¶ 12. In Brister, we cited with approval the factors listed in District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001), to determine whether an officer acted in reckless disregard of others while pursuing a third party:

(1) Length of chase. In the present case, Lantern’s pursuit of the speeding vehicle lasted only seconds.
(2) Type of neighborhood. The area was a congested business area.
(3) Characteristics of the streets. The stretch of highway where the accident took place was straight and flat.
(4) The presence of vehicular or pedestrian traffic. The area was congested.
(5) Weather conditions and visibility. Visibility was limited by the darkness at 6:30 a.m.
(6) The seriousness of the offense for which the police are pursuing the vehicle. Lantern was pursuing a speeding vehicle at the time of the accident.

¶ 13. A review of our case law illustrates that we find reckless disregard when the “conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” Maldonado, 768 So.2d at 910-11.

¶ 14. We affirmed a finding of reckless disregard when an officer suddenly turned his vehicle in front of oncoming traffic without having his headlights on or using his blue lights or siren. Lipsey, 834 So.2d 687 (Miss.2003). The officer received a dispatch to an auto burglary at 1:30 a.m. He elected to respond although he was not the primary or secondary unit dispatched. We noted that the officer had been involved six prior accidents and that the present accident was investigated by the department, which concluded that the officer failed to yield the right of way.

f 15. We also found reckless disregard when an officer was driving twenty-seven miles per hour over the posted speed limit without using his siren or blue lights while on his way to dinner when he collided with a vehicle exiting a parking lot. City of Jackson v. Perry, 764 So.2d 373 (Miss.2000). The officer testified that he customarily drove without knowing how fast he was traveling. Id. at 377.

¶ 16. In Maye v. Pearl River County, 758 So.2d 391 (Miss.1999), we found an officer’s actions rose to the level of reckless disregard because he showed a conscious disregard for the safety of others when he backed up an incline entrance to a parking lot, knowing he could not be sure the area was clear. While the officer was backing up the entrance, a driver entered the lot from the road and noticed the police car backing towards her. Id. at 392. The driver could not back up and began using her horn to notify the officer that she was behind him. Id. at 394. The officer never stopped and ultimately collided with the vehicle. The officer testified that he could not see the road from the parking lot because his view was obstructed.

¶ 17. We found that a circuit court erred as a matter of law when it found an officer acted in reckless disregard when he caused an accident at a dangerous intersection. Maldonado, 768 So.2d at 906. There, an officer caused an accident when he pulled into an intersection where his view of oncoming traffic was obstructed by a water tower. Id. at 908. The officer checked for oncoming traffic before proceeding but did not see the plaintiffs vehicle until immediately prior to impact. Id. We found the officer was aware of the nature of the intersection and took steps to avoid the collision. Id. at 910.

¶ 18. We conclude that the circuit court did not err in finding Lantern acted in reckless disregard of the safety and well-being of others. The circuit court was in the best position to weigh the credibility of the witnesses. There were inconsistencies in Lantern’s testimony concerning his speed that cast doubt on his entire testimony. The circuit court found evidence that satisfied numerous Brister factors and determined that Lantern appreciated the unreasonable risk associated with attempting to overtake a vehicle that indicated it was turning, yet still acted in deliberate disregard of that risk.

¶ 19. The Department also attacks the judgment on the grounds that it is immune from liability because Durn was engaged in illegal activity that caused the accident. Miss.Code Ann. § 11-46-9. The Department argues that Durn was engaged in criminal activity at the time of his injury, § 11^6-9(l)(e), because he committed a misdemeanor traffic offense by making a left turn when it was not reasonably safe to do so.

¶ 20. The MTCA’s police exemption “is designed to protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.” Perry, 764 So.2d at 379. If the victim is engaged in an illegal activity that is a cause of the harm, the government is immune from liability. Williams v. City of Jackson, 844 So.2d 1161, 1164 (Miss.2003). It must be shown that the victim was engaged in criminal activity that has a causal nexus to the wrongdoing of the tortfeasor. Perry, 764 So.2d at 379. “Where an officer has probable cause to arrest and proceeds to do so, there is the requisite nexus between criminal activity and the action causing injury.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001). The criminal activity supporting the exemption must be more than fortuitous, but it applies to misdemeanors as well as felonies. Id. Misdemeanor traffic offenses are criminal activities within the statute. Perry, 764 So.2d at 373.

¶ 21. In Petry, we found the City of Jackson was not entitled to immunity when the plaintiff was driving without a driver’s license at the time of the accident. Id. at 379. We noted that the plaintiff was neither charged with a crime nor issued a citation and that driving without a license was not specifically designated as a crime in the Mississippi Code. Id. at 378. We found the City was not entitled to immunity because the officer’s conduct had nothing to do with the criminal activity involved. Id. at 379.

¶ 22. We upheld summary judgment in favor of the City of Jackson when one of its fire engines collided with a vehicle at an intersection, killing the driver of the vehicle. Williams v. City of Jackson, 844 So.2d 1161 (Miss.2003). Williams’s blood alcohol content was .20% at the time of the accident. Williams’s estate argued that he was stopped at the intersection when the fire engine ran into him. Id. at 1165. The City argued, and witnesses testified, that the collision occurred in the middle of the intersection when Williams attempted to beat the fire engine through the intersection. Id. We stated:

Even had plaintiffs contention been supported by facts, it would not change the fact that Williams was intoxicated. It is therefore immaterial because it could have had no effect on the outcome of this action. Operating a vehicle involves both the moving and stopping of a vehicle and when these are done under the influence of alcohol, it is considered criminal activity, which in this instance, operates to limit the duty owed by police and fire personnel under § 11-46-9(l)(c).

Id. at 1165. We found a clear nexus between the criminal activity and the injury suffered by him. “Had he not been driving while intoxicated, Williams would have not attempted to beat the fire truck through the intersection and would not have been killed.” Id.

¶ 23. Unlike Perry, Durn’s actions are designated as a criminal offense. The skid marks at the accident show that Lantern was completely within the northbound lane before the accident occurred. According to the logic of Williams, Durn would not have been injured if he had not made an improper left turn. However, we cannot equate making a left turn with operating a vehicle with a .20% blood alcohol content level. Durn’s left turn was not the criminal activity that caused Lantern to give chase. As in Perry, the officer’s conduct had nothing to do with the alleged criminal activity. Lantern’s pursuit was caused by another speeding vehicle; Durn’s action was merely fortuitous.

[The statute] is not designed to protect grossly negligent or intentional tortfea-sors from liability where the fact that the victim is engaged in criminal activity is merely fortuitous and has no relation to the transaction out of which the liability would arise. It would be anomalous to suggest, for example, that a recklessly negligent officer who runs down a pedestrian on the sidewalk, escapes liability on a showing that the pedestrian was then and there in possession of untaxed whiskey.
This Court construes statutes “to produce a harmonious conclusion consistent with common sense and natural justice.” Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907, 909 (1920). Because the Officer’s conduct did not have anything to do with the criminal activity involved here, the City of Jackson’s argument is without merit.

Perry, 764 So.2d at 378-79.

¶ 24. It would defy common sense and natural justice for us to hold that Durn’s alleged improper left turn constituted criminal activity which entitled the Department to immunity. There was no credible evidence that Lantern had his siren on when he attempted to pass Durn. The physical evidence at the scene of the accident shows that Lantern was traveling at a high rate of speed. We affirm the circuit court’s finding that Durn was not engaged in criminal activity at the time of the accident.

II. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN DETERMINING DAMAGES.

¶ 25. The Department, while not conceding Lability, argues that the circuit court abused its discretion by (1) awarding $148,000 in damages for pain and suffering, emotional distress, and permanent disability when the amount was not supported by the evidence, and (2) not determining the extent of Durn’s negligence. It asks us to remand the issue of liability for a determination of comparative fault and to reverse the damages award by reducing the amount with an appropriate remittitur.

¶ 26. The Department argues that the circuit court’s award of $148,000 for pain and suffering, emotional distress, and permanent disability was arbitrary and based on speculation. It contends that the amount is twelve times the amount of any measurable damages, that the circuit court offered no explanation as to how it calculated the amount, and that the amount was not supported by any medical evidence.

¶ 27. We determine on a case-by-case method whether an award is excessive. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 621 (Miss.2001).

“[I]t is primarily the province of the jury [and, in a bench trial, the judge] to determine the amount of damages to be awardedf. T]he award will normally not be ‘set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Foster v. Noel, 715 So.2d 174, 183 (Miss.1998), quoting Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995). We view the evidence in the light most favorable to the verdict.

Brandon HMA, Inc., 809 So.2d at 621.

¶ 28. We have upheld awards that were forty times the amount of the medical damages, Edwards v. Ellis, 478 So.2d 282 (Miss.1985); fourteen times the amount of damages, Purdon v. Locke, 807 So.2d 373 (Miss.2001); and thirty-eight times the amount of damages, Gatewood v. Sampson, 812 So.2d 212 (Miss.2002). We reduced an award of $532,000, of which almost $500,000 was for future pain and suffering, to $232,000, finding that the evidence for pain and suffering did not justify the amount of the award. Entergy Miss. Inc. v. Bolden, 854 So.2d 1051 (Miss.2003) In Lipsey, we upheld an award of $25,000 for past physical pain and suffering and mental anguish. 834 So.2d at 694. In Pen% we upheld an award of $100,000 for pain and suffering when the plaintiff was confined to a wheelchair for four months after the accident and had to relearn how to walk. 764 So.2d at 380.

¶29. At trial, Durn testified that he still suffered from headaches, had muscle spasms in his legs, and that the left side of his body was still giving him problems. He also testified that he was so stressed about not being able to support his family because of his inability to work during his recuperation that he considered leaving his wife, and that he was constantly crying. William Barr, M.D., testified that Durn had a 10% permanent physical impairment, and that he would continue to have pain whenever he engaged in heavy physical activities. Durn’s wife testified that he was unable to work the odd jobs he performed on the side to earn extra money, such as cutting trees, yard work, plumbing, and laying carpet. Durn had a life expectancy of 35.1 years.

¶ 30. The Department also argues it was error for the circuit court not to take Durn’s negligence into account when awarding damages. A circuit judge, sitting as a trier of fact, is accorded great deference but his finding is treated the same as a jury verdict when he or she ignores the weight of the evidence. Jackson v. Daley, 739 So.2d 1031, 1039 (Miss.1999). We have held that “[a] party has a right to have jury instructions on all material issues presented in the pleadings or evidence.” Glorioso v. Young Mens Christian Ass’n of Jackson, 556 So.2d 293, 295 (Miss.1989). A party is entitled to a comparative negligence instruction only if credible evidence supports the instruction. Haggerty v. Foster, 838 So.2d 948, 955 (Miss.2002).

¶ 31. The Department affirmatively pled comparative negligence as a defense in its answer and placed evidence of Durn’s negligence before the circuit court. The circuit court heard testimony that Durn began to turn fifty feet before he reached the lot entrance, and that Lantern had already overtaken the northbound lane attempting to pass when Durn began to make his left turn.

¶32. We find the,circuit court did not abuse its. discretion as to the amount of damages. Durn’s emotional well-being and ability to do different types of physical labor was well documented. Durn also suffered a 10% impairment that would limit his ability to perform the jobs he performed outside of his regular employment.

¶ 33. However, we find the circuit court failed to determine if. comparative fault should be assigned to Durn, and, whether the award of damages should be reduced accordingly. We therefore reverse the judgment and remand to the circuit court.

CONCLUSION

¶ 34. We affirm the circuit court’s findings that Lantern acted in reckless disregard of Durn’s safety and well-being and that Durn was not engaged in criminal activity at the time of the accident. We reverse the judgment and remand this case for the circuit court to determine Durn’s-comparative fault, to consider comparative fault in awarding damages, and to make a new award.

¶ 35. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND CARLSON, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Lantern was dismissed from the case.

      . No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if a pedestrian may be affected by such movement or after giving an appropriate signal in the manner provided in this article in the event any other vehicle may be affected by such movement. A signal of intention to turn right or left shall be given continuously for a reasonable distance before turning.

        Miss.Code Ann. § 63-3-707 (Rev.1996). It is a misdemeanor if someone fails to perform what is required by § 63-3-707. Miss.Code Ann. § 63-3-201.


text:
    Timothy James HOUCK v. Guyolyn OUSTERHOUT.
    No. 2002-CA-01024-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.

      Orvis A. Shiyou, attorney for appellant.
    Philip David Bridges, Brandon, attorney for appellee.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   WALLER, Justice, for the Court.

¶ 1. Timothy James Houck and his former wife, Guyolyn Ousterhout, agreed to divide custody of their five children, and entered into an agreed order which relieved Houck of any further obligations for the payment of child support in exchange for a lump sum payment of $1,500. Later Ousterhout sought nullification of that agreed order, and the Chancery Court of Lamar County voided the agreed order and awarded back support, along with a modification of future child support. We affirm the chancellor’s judgment.

FACTS

¶ 2. Timothy James Houck and Guyolyn Ousterhout were divorced on March 10, 1993. The chancellor awarded custody of their five children to Ousterhout and ordered Houck to pay $1,200 per month in child support, one-half of all medical and dental expenses not covered by insurance, and one-half of college tuition, including room, board and transportation, for four years.

¶ 3. Sometimes after the divorce, the two eldest children began living with Houck. After the Department of Human Services filed suit against Ousterhout, she was ordered to pay child support of $200 per month.

¶ 4. In 1996, because two children were living with Houck and three with Ousterh-out, the parties entered an agreed order modifying the divorce decree. The order stated that “[mjaterial changes ha[d] occurred in the life of Timothy James Houck which prevented] him from being able to pay his child support as directed.” The parties agreed that Houck would pay Oust-erhout a lump-sum of $1,500 in consideration of Ousterhout’s waiver of “all past, present and future child support payments,” and that “[b]oth parties hereby agree to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”

¶ 5. In November of 2000, Houck filed a petition seeking custody of the three un-emancipated children, and alleged that Ousterhout had not allowed him to have visitation with them. Ousterhout responded that, because Houck was not paying child support and college and medical expenses, she would not meet Houck halfway to allow him to have visitation. She also requested attorney’s fees, nullification of the 1996 agreed order, and an award of back child support.

¶ 6. The chancellor, finding that the 1996 agreement violated public policy, voided the agreement and awarded back child support to Ousterhout (for the benefit of the children) in the amount of $89,848.65, plus interest at the rate of 8% per annum. The chancellor also modified the amount of future child support to $300 per month. Houck appeals.

¶ 7. Finding that parents may not agree to relieve one parent of his or her obligation to pay child support, we affirm the nullification of the agreement, the amount of the child support awarded, and the interest rate set by the chancellor.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN RENDERING THE JULY 31, 1996, AGREEMENT NULL AND VOID.

¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).

¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes !a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.

¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.).

¶ 11. Consistent with these decisions, we affirm the chancellor’s nullification of the 1996 modification.

II. WHETHER THE CHANCELLOR ERRED IN CONTINUING TO USE THE $1,200 PER MONTH CHILD SUPPORT AWARD GIVEN IN THE ORIGINAL DIVORCE DECREE.

¶ 12. We have carefully reviewed the record and the chancellor’s calculation of the award of back child support. He divided the original $1,200 monthly award by five children and came up with $240 per month per child. He then took into account the amount of time that the two eldest children lived with Houck, the $200 per month that Ousterhout was ordered to pay, and the $1,500 Houck paid in consideration for the 1996 agreement. Finally, the chancellor added in one-half of medical expenses and tuition which Houck had not paid. We cannot find any error in the chancellor’s determination that Houck owed Ousterhout $89,848.65 in back child support.

¶ 13. Houck’s only argument against the amount of the award is that, pursuant to the 1996 agreement, he was not liable for any child support since the date of the agreement. This argument was discussed and dismissed in Issue I, above. We therefore affirm the chancellor’s award of $89,848.65 in back child support.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING INTEREST ON CHILD SUPPORT AT 8% PER ANNUM.

¶ 14. Houck argues that, first, he does not owe any arrearages, and second, that 8% “does not appear to be fair ... in today’s economy.” He cites no case law in support of his argument.

¶ 15. The chancellor had the discretion to set the rate of interest. Miss. Code Ann. § 75-17-7 (Rev.2000). There is no question that the chancellor had the authority to award interest on delinquent child support payments. As to the amount of interest awarded, we have affirmed an award of 8% per annum rate of interest on past due child support payments. Adams v. Adams, 591 So.2d 431, 436 (Miss.1991). Notwithstanding today’s lower interest rates, the child support payments owed by Houck were due over several years in which interest rates fluctuated. We find that the chancellor did not abuse his discretion as to this issue and that this assignment of error is without merit.

CONCLUSION

¶ 16. We affirm the chancellor’s nullification of the 1996 agreement which waived past, present and future child support as being violative of public policy. We also affirm the award of back child support of $89,848.65 and the award of interest at the rate of 8% per annum.

¶ 17. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, CARLSON AND GRAVES, JJ., CONCUR.

McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

DIAZ, J„ NOT PARTICIPATING.

      . Miss.Code Ann. § 75-17-7 (Rev.2000) provides as follows:
      All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.