text:
    In re The Appointment of a CONSERVATOR FOR Mrs. John Q. (Margie Allen) DEMOVILLE. Margaret Demoville, Appellant, v. Dixie Johnson, Appellee.
    No. 2002-CA-00150-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.
    Rehearing Denied Sept. 2, 2003.

      Ron L. Woodruff, Oxford, Jim Waide, Tupelo, attorneys for appellant.
    William M. Beasley, Tupelo, Rebecca L. Hawkins, Jackson, attorneys for appellee.
    Before SOUTHWICK, P.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the court:

¶ 1. Dixie DeMoville Johnson (Dixie) filed a petition for appointment of conservator in the Chancery Court of Lee County, Mississippi, seeking an appointment of a conservator over the person and estate of her mother, Mrs. Margie DeMoville. The petition was filed as a result of her mother’s failing mental health and the belief that Margaret DeMoville (Margaret), Dixie’s younger sister, was transferring assets from the estate to herself for her own benefit.

¶ 2. Margaret filed an answer opposing the appointment of a conservator and during the course of the proceedings, she also moved “to stay all proceedings in this case, and to consolidate these matters with the will contest which would follow upon the death of Mrs. DeMoville.”

¶ 3. Following three days of testimony and a chance to observe Mrs. DeMoville during the trial, the chancellor appointed Bill Benson as conservator of Mrs. DeMo-ville’s estate and Margaret as conservator of Mrs. DeMoville’s person. Margaret appeals to this Court regarding the chancellor’s decree.

STATEMENT OF THE ISSUE

I. WHETHER THE CHANCELLOR PROPERLY APPOINTED A CONSERVATOR OVER THE ESTATE OF MRS. MARGIE ALLEN DEMO-VILLE.

II. WHETHER THE CHANCELLOR PROPERLY APPOINTED A DISINTERESTED THIRD PARTY, BILL BENSON, RATHER THAN MARGARET DEMOVILLE.

FACTS

¶ 4. Mr. John DeMoville died in 1984 leaving a sizable estate to his widow, Mrs. Margie DeMoville and her daughters, Dixie and Margaret. The estate was never divided or distributed, but was converted into a partnership managed by Mrs. De-Moville, with Margaret’s assistance. In 1998, Mrs. DeMoville began showing signs of failing mental capacity due to Alzheimer’s disease. In October of 2000, Mrs. DeMoville moved in with Margaret. It was also around this time that Dixie began to question the management of the business and questioned Margaret’s decision not to engage an estate planner. Dixie also became convinced that Margaret was hiding information from her, and asked to see bank records, but Margaret refused to produce any records. The familial relationship swiftly declined after that. Finally, in 2001, Dixie filed suit seeking an accounting of all the assets and petitioned for conservatorship of Mrs. DeMoville. The chancellor appointed Margaret as conservator of Mrs. DeMoville and appointed Bill Benson, Lee County Chancery Clerk, conservator of Mrs. DeMoville’s estate.

ANALYSIS

I. WHETHER THE CHANCELLOR PROPERLY APPOINTED A CONSERVATOR OVER THE ESTATE OF MRS. MARGIE ALLEN DEMO-VILLE.

¶ 5. The applicable standard of review is that findings of the chancellor are to be reviewed “in the light most favorable to the appellee where there is substantial evidence supporting the chancellor’s ruling.” Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999). A chancellor’s “findings of fact on conflicting evidence cannot be disturbed on appeal unless it can be said with reasonable certainty that his findings were manifestly wrong and against the overwhelming weight of the evidence.” Harvey v. Meador, 459 So.2d 288, 293 (Miss.1984).

¶ 6. Miss.Code Ann. § 93-13-251 (Rev.1994) governs the petition to appoint a conservator of Mrs. DeMoville’s estate. It states:

If a person by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate, the chancery court of the county wherein such person resides may, upon the petition of such person or of one or more of his friends or relatives, appoint a conservator to have charge and management of the property of such person, and if the court deems it advisable, also to have charge and custody of the person subject to the direction of the appointing court.

Thus, under this statute, a conservator may be appointed if an individual is “incapable of managing his own estate.” Margaret asserts that dissipation of Mrs. DeMo-ville’s property must be proven in order for a conservator to be appointed. However, this is contrary to Mississippi law and is illogical. To require everyone seeking an appointment of a conservator to prove that the person at issue was being cheated by someone goes far beyond anything required in the statute.

¶ 7. In Harvey, the court adopted a “management competency test” with regard to the application of § 93-13-251 which states:

A test of management competency can be answered by considering the factors of: ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or similar factors.

Harvey, 459 So.2d at 292 (emphasis added). There is nothing in the above quote that states that a chancellor is required to consider or find each of these factors in order to appoint a conservator. The chancellor may find just one to be sufficient for an appointment of a conservator.

¶ 8. In Conservator of Eldridge v. Sparkman, 813 So.2d 753, 757(¶ 14) (Miss.Ct.App.2001), the court, in applying the Harvey management competency test, considered not only Mrs. Eldridge’s age, but also her physical and mental health and her confused testimony in upholding the establishment of a conservator. The Court found that there was no abuse of discretion by the chancellor in appointing a conservator because the evidence “established that Mrs. Eldridge’s ability to manage her affairs had been affected.” Id. at 757(¶ 14).

¶ 9. Based on the aforementioned case law, the overriding question in determining whether a conservator should be appointed is a person’s ability to manage his or her own property. Mrs. DeMoville’s undisputed medical condition of severe dementia renders her incapable of managing her own property. Such findings, that she is unable to manage her own property, are supported by two treating physicians, Dr. Ken Davis and Dr. Jan Goff.

¶ 10. The record clearly supports the finding that Mrs. DeMoville’s medical condition made her incapable of managing her own business matters. The evidence in the record was overwhelming that Mrs. DeMoville suffers from severe dementia.

¶ 11. Dr. Ken Davis, one of the doctors who saw Mrs. DeMoville, testified in his deposition that his impression, based on mental status testing performed, was that Mrs. DeMoville was suffering from “mild to moderate dementia, most likely of the Alzheimer’s type.” Later, when Dr. Davis saw Mrs. DeMoville in a subsequent hospital admission, he found her condition to be one of “dementia that’s moderate to severe.”

¶ 12. Another doctor, Dr. Jan Goff, who saw Mrs. DeMoville while the case was pending, testified that Mrs. DeMoville was incapable of exercising any sort of judgment. When Dr. Goff was asked, during a deposition, as to the degree of her cognitive functions impairment, he responded, “severe, severe, severe, unable to do much except for the very basic, maybe some self care things, but nothing requiring any judgment.”

¶ 13. Even Margaret herself testified that her mother “needs help now ... because she has declined very much.” And finally, the chancellor was able to observe Mrs. DeMoville during the proceedings and questioned her in chambers. In regards to her testimony, the chancellor remarked, “I seriously question whether Mrs. DeMoville really knew where she was even yesterday.” In his decision, the chancellor stated that he did not believe Mrs. DeMoville “even understood what was being asked.”

¶ 14. The contention that Mrs. DeMo-ville is unable to manage her estate is further supported by the chancellor’s holding, which states:

I think, at any time, when some person has lost their sense of reasoning and so forth, and they have an estate that needs to be managed, the court can get involved, provided the medical proof is there, without showing that there’s been anyone that has allegedly overreached the particular ward in question.

¶ 15. Margaret’s own admission that her mother cannot handle matters on her own but needs assistance, coupled with the testimony of Dr. Goff and Dr. Davis, as well as the chancellor’s findings, clearly illustrate that Mrs. DeMoville was in desperate need of a conservator. Under these circumstances, and under Mississippi law, the evidence undoubtedly supports the appointment of Margaret as conservator of Mrs. DeMoville’s person and Bill Benson as conservator of her estate.

II. IF IT WAS NECESSARY TO APPOINT A CONSERVATORSHIP, WHETHER THE CHANCELLOR PROPERLY APPOINTED A DISINTERESTED THIRD PARTY, BILL BENSON, RATHER THAN MARGARET DEMOVILLE.

¶ 16. In her brief, Margaret argues that if it was necessary to appoint a conservator, then she should have been the person appointed of both Mrs. DeMoville and her estate. The chancellor noted that he would liked to have appointed either Dixie or Margaret as conservator of the estate; however, under the circumstances, he found that was just not practical. With regards to such matters, this decision was well within the chancellor’s discretion.

¶ 17. In Mississippi, the law states that a person with a conflict is prohibited from serving in the capacity of a conservator. Jackson v. Jackson, 732 So.2d 916, 921(¶7) (Miss.1999) (“if a conflict exists, the fiduciary had a duty to refuse the trust, resign or remove the conflicting personal interest”).

¶ 18. However, Mississippi has no case on point regarding conflicts of interest among family members. Because there is no Mississippi case, we turn to another state which has addressed this issue. Missouri, for instance, has a case concerning this issue involving family members in conflict. In the Missouri case, two sons were in dispute over which one of them should handle their mother’s affairs. One son, Harold, had previously been given power of attorney by his mother. Couch v. Couch, 824 S.W.2d 65, 65 (Mo.Ct.App.1991). The court found that the mother was “totally incapacitated as to managing her finances” and appointed a public administrator as conservator. Id. at 67. The court also at this time set aside the power of attorney to Harold because evidence indicated that Harold had made out checks to both himself and his brother on his mother’s accounts which were designated as gifts. Id.

¶ 19. Harold appealed, like Margaret in the present case, arguing that he should have been appointed as conservator. The court, relying on previous decisions, held that although the Missouri statute expressed a preference for family members, that preference would not apply where “the record shows a dissention in the family.” Mat 70.

¶ 20. Consistent with Couch, there was evidence presented that showed an overreaching by Margaret with regard to her mother’s finances. Over $58,000 went to Margaret from Mrs. DeMoville’s personal account. In a sixteen month period, over $78,000 worth of checks, attributable to Margaret’s personal benefit, were written from the estate account owned jointly by Mrs. DeMoville, Margaret and Dixie. A lawsuit against Margaret for conversion of funds from both the estate account as well as her mother’s personal account is currently pending. Therefore, it was well within the chancellor’s discretion to refuse to allow Margaret to serve as conservator of Mrs. DeMoville’s estate in light of the discord between her and Dixie and the pending lawsuit. Under Mississippi law, Jackson, 732 So.2d at 921(¶ 7), an individual with a conflict cannot serve as conservator. This, in conjunction with the hostilities between Margaret and Dixie, was ample reason for the chancellor to refuse to appoint Margaret as conservator of Mrs. DeMoville’s estate.

¶ 21. Because neither daughter could serve as conservator of the estate, the chancellor appointed the chancery clerk, Bill Benson. The supreme court reviews a chancellor’s findings of fact under the manifest abuse of discretion and substantial evidence test. Harvey, 459 So.2d at 293. In United States Fidelity & Guaranty Co. v. Melson, the court affirmed the chancellor’s decision to appoint the chancery clerk as conservator in place of an individual with a conflict of interest, despite USF & G’s argument that no proof had been submitted that no one else was qualified to serve. United States Fidelity & Guaranty Co. v. Melson, 809 So.2d 647, 656 (¶¶ 36—40) (Miss.2002). Because Margaret was not qualified to serve as conservator, the chancellor properly appointed the chancery clerk of the jurisdiction to serve, and the chancellor’s decision was well within his discretion.

¶ 22. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P. JJ., THOMAS, LEE, MYERS, AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MeMILLIN, C.J., AND CHANDLER, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: MYERS, J., GRIFFIS, J.,

license: Public Domain

text:
    MISSISSIPPI BAPTIST MEDICAL CENTER and the Virginia Insurance Reciprocal, Appellants, v. DEPENDENTS OF Frank E. MULLETT, Appellees.
    No. 2002-WC-01157-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 2, 2003.

      Douglas R. Duke, Jackson, attorney for appellant.
    John Griffin Jones, Jackson, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Frank E. Mullett was found dead at his work station at Mississippi Baptist Medical Center (Baptist) on January 12, 2000. Baptist prevailed before the administrative law judge, but the Full Workers’ Compensation Commission (Commission) reversed the administrative law judge’s decision in an order dated September 11, 2001. On June 3, 2002, the Circuit Court of the First Judicial District of Hinds County affirmed the Commission’s decision. Baptist appeals the circuit court’s decision to this Court. Baptist and Virginia Reciprocal Group (Virginia Reciprocal), Baptist’s carrier, assert ten issues:

I. THE FULL MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN FINDING THAT THE DECEASED RECEIVED A COMPENSABLE INJURY AS A RESULT OF HIS HEART ATTACK AND DEATH AT WORK.
II. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT ERRED IN AWARDING ANY COMPENSATION BENEFITS, AND SUCH AWARD IS CONTRARY TO LAW, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND IS MANIFESTLY WRONG.
III. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN ITS FINDINGS OF FACTS AND LAW.
IV. THE COMPENSATION ACT HAS NOT BEEN FAIRLY CONSTRUED ACCORDING TO THE LAW AND EVIDENCE IN THIS CAUSE AS REQUIRED BY THE MISSISSIPPI WORKERS’ COMPENSATION ACT.
V. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED UNDER THE FACTS AND LAW IN THIS CASE, IN REVERSING THE DECISION OF THE ADMINISTRATIVE JUDGE.
VI. THE DECISION OF THE COMMISSION AND THE CIRCUIT COURT IS CONTRARY TO THE CREDIBLE AND CONVINCING EVIDENCE ADDUCED IN THE TRIAL AND IS CONTRARY TO REASON, AND IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
VII. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN DISREGARDING UNCONTRA-DICTED EVIDENCE AND MISCONSTRUING AND MISAPPLYING THE HEREIN REBUTTED FOUND DEAD PRESUMPTION.
VIII. THE FINDING AND AWARD OF THE FULL COMMISSION AND THE CIRCUIT COURT IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE.
IX. THE ORDER OF THE FULL COMMISSION AND THE CIRCUIT COURT JUDGE WAS ARBITRARY AND CAPRICIOUS IN RELYING ON FACTS NOT IN THE RECORD.
X. IN THE ALTERNATIVE, AND ONLY IF THE APPELLATE COURT AGREES WITH THE FULL COMMISSION ORDER AND THE CIRCUIT COURT THAT THIS CLAIM IS IN ANY WAY COMPENSABLE, WHICH IS DENIED, THEN THE APPELLANTS’ ASSERT THAT THE FULL COMMISSION ERRED IN FAILING TO ORDER APPORTIONMENT.

Statement of the Facts

¶ 2. Baptist hired Frank Mullett in May 1997. His job title was project manager (or process improvement manager) for Baptist’s information technology department. He had three dependents, his wife, Benita Shurdan Mullett; a son, Michael; and a daughter, Molly. Doctors diagnosed Frank with high blood pressure sometime around August 1997. This was the first chronic health problem Frank had, and he had to take regular medication for it. Frank regularly took his medication (Diov-an); he filled his last prescription on December 17, 1999. Additionally, Frank monitored his blood pressure at home with a home monitor. Shortly before his death, Frank began to take Norvasc to help control headaches he began to experience in December 1999.

¶ 3. Frank regularly exercised, usually in the form of weight lifting, running, and/or tennis. He never smoked and continued exercising until the day of his death. He stood five feet eleven inches tall, and maintained a weight of approximately 160 pounds.

¶ 4. At the time of his death, Baptist was setting up a new computer record system. Frank was the liaison between Baptist and the system’s vendor. Baptist had difficulties with the system and this apparently added to Frank’s stress level. Additionally, Frank had to work extra hours, as did many in his department, trying to ensure systems were “Y2K compliant.” All of this was in addition to helping others at Baptist with computer problems.

¶ 5. The day of Frank’s death was largely uneventful. He had not complained of any unusual blood pressure readings, nor of any headaches. Frank attended a meeting at 10:00 that morning. Following the meeting, Frank worked out during his lunch break, as was his usual practice. Frank returned from his workout at around noon, and commented to a coworker that it had been a “rough workout,” or words to that effect. At approximately 1:20 p.m., a co-worker heard a wheezing, choking sound coming from Frank’s cubicle. The co-worker hurried over, and found Frank unconscious in his chair. Frank was not breathing and did not have a pulse. Co-workers attempted CPR, but failed to resuscitate Frank. The death certificate stated 1:30 p.m. as the approximate time of death.

¶ 6. An administrative law judge found that there was sufficient evidence to rebut the “found dead” presumption, and dismissed the workers’ compensation claim of Frank’s widow on April 2, 2001. The Full Workers’ Compensation Commission reversed the judge’s findings, and ordered full death benefits to Frank’s dependents. The Circuit Court of the First Judicial District of Hinds County affirmed this decision. Baptist and Virginia Reciprocal now appeal to this Court.

Standard of Review

¶ 7. Under our standard of review, it is difficult to overturn the decision of the Full Commission.

The standard of review in worker’s compensation cases is limited. The substantial evidence test is used.... The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim. This court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.

Smith v. B.C. Rogers Processors, Inc., 743 So.2d 997, 1002 (¶ 13) (Miss.Ct.App.1999) (quoting Inman v. Coca-Cola/Dr. Pepper Bottling Co. of Memphis, Tennessee, 678 So.2d 992, 993 (Miss.1996)).

Legal Analysis

I. THE FULL MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN FINDING THAT THE DECEASED RECEIVED A COMPENSABLE INJURY AS A RESULT OF HIS HEART ATTACK AND DEATH AT WORK.

II. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT ERRED IN AWARDING ANY COMPENSATION BENEFITS, AND SUCH AWARD IS CONTRARY TO LAW, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND IS MANIFESTLY WRONG.

III. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN ITS FINDINGS OF FACTS AND LAW.

IV. THE COMPENSATION ACT HAS NOT BEEN FAIRLY CONSTRUED ACCORDING TO THE LAW AND EVIDENCE IN THIS CAUSE AS REQUIRED BY THE MISSISSIPPI WORKERS’ COMPENSATION ACT.

V. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED UNDER THE FACTS AND LAW IN THIS CASE, IN REVERSING THE DECISION OF THE ADMINISTRATIVE JUDGE.

VI. THE DECISION OF THE COMMISSION AND THE CIRCUIT COURT IS CONTRARY TO THE CREDIBLE AND CONVINCING EVIDENCE ADDUCED IN THE TRIAL AND IS CONTRARY TO REASON, AND IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

VII. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN DISREGARDING UNCONTRA-DICTED EVIDENCE AND MISCONSTRUING AND MISAPPLYING THE HEREIN REBUTTED FOUND DEAD PRESUMPTION.

VIII. THE FINDING AND AWARD OF THE FULL COMMISSION AND THE CIRCUIT COURT IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE.

IX. THE ORDER OF THE FULL COMMISSION AND THE CIRCUIT COURT JUDGE WAS ARBITRARY AND CAPRICIOUS IN RELYING ON FACTS NOT IN THE RECORD.

¶ 8. Baptist asserts that the “found dead” presumption of workers’ compensation law does not apply to the facts of this case. Our supreme court has described the “found dead” presumption as follows:

The rule is firmly established in this state when an employee is found dead at a place where his duties require him to be or where he might properly be in the performance of his duties during work hours in the absence of evidence that he was not engaged in his employer’s business, there is a presumption that the accident arose out of and in the course of his employment.

Nettles v. Gulf City Fisheries, Inc., 629 So.2d 554, 556-57 (Miss.1993). The presumption may be rebutted upon showing substantial credible evidence that the employee’s duties did not contribute to the cause of death. Id. at 557. It is up to the employer/carrier to rebut the presumption, and it is not the burden of the claimant to support the presumption. U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So.2d 673, 676 (Miss.1987) (citing Okolona v. Dependent of Harlow, 244 So.2d 25, 26 (Miss.1971)). While this is, admittedly, a difficult burden to overcome, it belies “the likelihood that, if anything, greater unfairness would attend its placement on [a] claimant whose principal witness has been silenced by death.” Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So.2d 318, 322 (Miss.1986).

¶ 9. The presumption applies in the instant case, as Frank was found dead in his cubicle, where he performed most of his duties. We find that Baptist has not carried the burden to rebut the presumption. In summary, these are the facts that they claim rebut the presumption:

(1) Frank was in relatively good health.
(2) He suffered from chronic hypertension.
(3) Frank met with a co-worker approximately ten to fifteen minutes before his death for about three or four minutes. The co-worker could not tell if Frank was under any stress or if Frank did not feel well.
(4) Frank talked to a co-worker who could not tell from Frank’s voice that anything was wrong.
(5) A medical doctor, who never examined Frank, stated that Frank’s job did not contribute to his heart attack.

¶ 10. We cannot say that these facts add up to “substantial credible evidence.” Baptist’s evidence is based on assumptions. Since the workers’ compensation statutes are to be construed liberally in favor of the employee, assumptions could just as well, and should, be made in favor of Frank’s dependents. Harper v. North Mississippi Med. Ctr., 601 So.2d 395, 398 (Miss.1992).

X. IN THE ALTERNATIVE, AND ONLY IF THE APPELLATE COURT AGREES WITH THE FULL COMMISSION ORDER AND THE CIRCUIT COURT THAT THIS CLAIM IS IN ANY WAY COMPENSABLE, WHICH IS DENIED, THEN THE APPELLANTS’ ASSERT THAT THE FULL COMMISSION ERRED IN FAILING TO ORDER APPORTIONMENT.

¶ 11. Baptist urges that any recovery should be apportioned according to section 71-3-7 of the Mississippi Code of 1972 (Rev.2000). We disagree. Where the cause of death is unknown, apportionment is inappropriate. U.S. Rubber Reclaiming Co., 508 So.2d at 677. We know that Frank died of a heart attack, but the ultimate cause of his death — what caused the heart attack — remains unknown. Since the cause of the heart attack is unknown, we cannot apportion benefits.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

MCMILLIN, C.J., KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, AND LEE, JJ., CONCUR. GRIFFIS, J„ DISSENTS WITH SEPERATE WRITTEN OPINION JOINED BY IRVING AND CHANDLER, JJ.

GRIFFIS, J.,

dissenting.

¶ 13. The Mississippi Supreme Court described the “found dead” presumption in Washington v. Greenville Mfg. & Machine Works, 228 So.2d 642, 645 (Miss.1969) as follows:

The rule is firmly established in this state when an employee is found dead at a place where his duties require him to be or where he might properly be in the performance of his duties during work hours in the absence of evidence that he was not engaged in his employer’s business, there is a presumption that the accident arose out of and in the course of his employment.

In Road Maintenance Supply, Inc. v. Dep. of Maxwell, 493 So.2d 318, 321 (Miss.1986), the court held that the presumption would disappear upon “credible evidence that the deceased employee’s work ‘activities did not cause or contribute to the heart attack.’ ” In Johnston v. Hattiesburg Clinic, P.A., 423 So.2d 114, 119-20 (Miss.1982) the court ruled:

In order to overcome the presumption of causal connection not only must the cause of death be explained, but the work activities of the decedent must also be fully developed to show that such activities did not cause or contribute to the heart attack.

¶ 14. In this case, the Commission failed to consider several undisputed facts. These facts clearly support Baptist’s position that the “found dead” presumption was rebutted and that Frank Mullett’s death was not caused by or contributed to through his employment.

¶ 15. In overturning the administrative law judge’s decision, the Commission first concluded that Mr. Mullett’s activities were not accounted for during the sixty to seventy-five minutes prior to his death. Next, the Commission concluded that no credible medical expert testimony was presented to show that Mr. Mullett’s death was not caused by work-related activities. Both of these conclusions are contrary to the evidence in the record.

¶ 16. First, Johnston provides that, for the presumption to be overcome, Mr. Mul-lett’s activities immediately preceding his death must be “fully developed.” Id. The Commission’s order repeatedly states that his activities were not accounted for during the sixty to seventy-five minutes prior to his death. This conclusion is simply not supported by the record. Indeed, there was detailed evidence of what Mr. Mullett did from the evening before through the time of his death, at approximately 1:30 p.m. on January 12th.

¶ 17. The record reveals that Mr. Mul-lett was experiencing difficulty contacting his personal physician, Dr. Bob May, to obtain a prescription refill. Dr. May had previously treated Mr. Mullett for his high blood pressure and prescribed medication. In the days prior to his death, Mr. Mullett complained that he was not able to reach Dr. May to refill his high blood pressure medication prescription.

¶ 18. The evening before his death, January 11th, Mr. Mullett complained to his wife that it had been a “tough day.” From 6:00 until 10:00 p.m. that evening, Mr. and Mrs. Mullett painted their bedroom in anticipation of the arrival of new furniture the next day. They had moved their furniture out of their bedroom and were “roughing” it until the new furniture arrived.

¶ 19. On the morning of January 12th, according to Mrs. Mullett, Mr. Mullett seemed a little bothered and commented that he needed to get the prescription from Dr. May. He did not complain about any headaches or a high reading on his blood pressure monitor, but his Day Timer indicated that he had called Dr. May at home that morning. Mr. Mullett went to work at 7:00 a.m. He had a 10:00 a.m. meeting. After the meeting, he went to workout at the fitness center. He returned to his office around noon. From noon until he began experiencing problems, at approximately 1:15 p.m., he was in or around his desk and cubicle.

¶ 20. Paula Katherine McCormack, a registered nurse, testified that she worked in the office with Mr. Mullett, and she attended the 10:00 a.m. meeting. She testified that there was nothing significant about the 10:00 meeting, and said it had been a “nice meeting.” She testified that her desk was about fifty feet from Mr. Mullet’s desk. She said they were in the same office, but different cubicles. She testified that Mr. Mullett came to her cubicle, sat and spoke with her about ten or fifteen minutes prior to his collapse. She remembered that time to be approximately 1:00 p.m. She testified they were joking around, and she did not see anything physically wrong with Mr. Mullett. Their visit lasted approximately three or four minutes. Ms. McCormack was the first medical professional to respond and treat Mr. Mullett once he began experiencing problems.

¶21. Norval Yerger testified that his desk was next to Mr. Mullett’s desk, only separated by a partition. Mr. Yerger testified that he was with Mr. Mullett at the 10:00 a.m. meeting and that Mr. Mullett left to go to lunch at about 11:00 a.m. He too testified that it was a “good meeting.” He testified that some of the meetings had been stressful, but Mr. Mullet had accomplished several things and his supervisors were pleased. Mr. Yerger testified that “we all felt good about the meeting.” Mr. Yerger testified that Mr. Mullett returned to the office around noon and went to his desk. Mr. Mullet told Mr. Yerger that he had been at the gym during lunch and that it was a “rough workout.” Mr. Yerger could hear Mr. Mullett sit down in his cubicle and make a telephone call. Mr. Mullett was on the phone when Mr. Yer-ger heard him began to wheeze. Mr. Yer-ger testified:

Then I heard him making a strange sound, kind of a wheezing sound. At first I thought he was laughing and then it kept on. And I said, “Frank are you all right?” And he didn’t answer. And so I kind of got up and looked, and he was slumped back in his chair like this, you know, like he was — something was wrong with him.

Mr. Yerger called Ms. McCormack for assistance.

¶ 22. The testimony of these witnesses chronicle Mr. Mullett’s activities up to the moment he collapsed. From approximately noon until he began experiencing problems at 1:15 p.m., Mr. Mullett was either talking with or in the immediate vicinity of his co-workers. None of the co-workers could indicate any stressful event or problem that could have caused or contributed to Mr. Mullett’s death. The Commission’s conclusion that sixty to seventy-five minutes prior to Mr. Mullet’s death were unaccounted for is not based on the evidence presented.

¶ 23. Second, the Commission held that no “credible expert medical testimony” was presented by the employer which rebuts the “found dead” presumption. Dr. James L. Crosthwait, a board-certified internist and specialist in cardiology, testified by deposition. Although he did not examine Mr. Mullett prior to his death, Dr. Crosthwait reviewed Mr. Mullett’s medical and employment records and determined that Mr. Mullett “suffered from sudden death syndrome.” Dr. Crosthwait testified that the most likely cause of this was “sudden failure of the heartbeat.” He also testified that Mr. Mullett’s job did not contribute to his death finding that “the job did not cause or contribute to his heart disease or to the sudden death episode.” Dr. Crosthwait testified that the more likely cause of death was high blood pressure, concluding that “[pjoorly controlled hypertension is a risk factor for a heart attack and sudden death.” Dr. Crosthwait’s testimony refutes the Commission’s determination that “no credible medical testimony” was presented by the employer to rebut the “found dead” presumption. Dr. Crosthwait’s opinion was credible medical evidence that Mr. Mullett died from an non-work related heart condition.

¶ 24. These two elements combined with the evidence that Mr. Mullett was suffering from high blood pressure, the testimony of all of his co-workers that the day in question was not a stressful one, and the evidence that Mr. Mullett’s stress level had tapered off clearly demonstrate that the judgment of the Commission was not supported by substantial evidence.

¶25. This case is analogous to Union Producing Co. v. Simpson’s Dependents, 251 Miss. 183, 168 So.2d 808, 808 (1964). In Union Producing Co., the employee died at work of a heart attack. Id. at 187, 168 So.2d at 809. The employer presented evidence of a pre-existing condition, provided details of the employee’s work, and developed the facts until the employee’s death. Id. at 194, 168 So.2d at 813. The supreme court held:

Since the Employee was not under any mental strain resulting from his work, and the physical efforts of his job, in the words of claimant, required him to lift nothing heavier than a pencil and a piece of paper, it cannot be said that there is any substantial connection between his terminal heart attack and his employment.

Id.

¶ 26. Here, Baptist presented “credible evidence” that Mr. Mullett’s work activities did not cause or contribute to his death. Road Maintenance Supply, Inc., 493 So.2d at 321. For the presumption to disappear, Mississippi law does not require the employer to prove this by clear and convincing evidence or by a preponderance of the evidence. Instead, the presentation of “credible evidence” is sufficient for the presumption to disappear. Id. See also Washington v. Greenville Manufacturing & Machine Works, 223 So.2d 642, 647 (Miss.1969) (“found dead” presumption disappears if credible evidence exists that the deceased employee’s work activities did not cause or contribute to the heart attack) (also cited and quoted with approval in Johnston v. Hattiesburg Clinic, P.A., 423 So.2d 114, 119-20 (Miss.1982); Alexander v. Campbell Construction Company, 288 So.2d 4, 5 (Miss.1974); McCarley v. Iuka Shirt Co., 258 So.2d 421, 422 (Miss.1972); City of Okolona v. Dependent of Harlow, 244 So.2d 25, 26 (Miss.1971)).

¶ 27. Accordingly, the Commission clearly erred in determining that Baptist did not satisfactorily rebut the “found dead” presumption to show that Mr. Mul-lett’s death did not arise out of or in the course of his employment. For these reasons, I disagree with the majority’s decision and dissent.

IRVING and CHANDLER, JJ., join this separate opinion.

      . The same doctor admitted that extreme emotional stress could have caused the heart attack, and that he did not know what Frank was doing or feeling immediately prior to the fatal heart attack.


author: SOUTHWICK, P.J., BRIDGES, J.,

text:
    Dexter MOORE, Appellant, v. K & J ENTERPRISES d/b/a the Library Bar & Grill, Appellee.
    No. 2001-CA-01705-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 9, 2003.

      T. Jackson Lyons, Jackson, Attorney for Appellant.
    Mitchell Orvis Driskell, Robert F. Stacy, Jackson, attorneys for appellee.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Dexter Moore sought damages from an Oxford nightclub for selling alcohol to a minor, since that minor after leaving the club drove a vehicle that ran into and injured Moore. The trial court directed a defense verdict because the alcohol consumed by the driver had been purchased for him by a person whose identification plausibly showed the buyer to be an adult. However, there is no legally consequential position of “designated buyer,” whom a nightclub may consider its sole concern and thereby blithely serve other demonstrably under-age individuals. The directing of a verdict was erroneous and we reverse and remand.

FACTS

¶ 2. On February 27, 1999, Katie Martin, Will Shappley, and three other friends were enjoying a social evening in Oxford. The group, all college students under the age of twenty-one, had already been at one bar before proceeding at 11:00 P.M. to “The Library” owned by the defendants. All except for Shappley received an “X” on their hands designating them as not being old enough to buy alcohol. Shappley presented a false identification showing him to be over the age of twenty-one. Once inside, the group went to an isolated comer of the bar. Shappley ordered rounds of drinks. The drinks were placed on the bar next to the group, where Martin and the others picked them up.

¶3. As the midnight-closing for the nightclub neared, the group determined that Martin was the least inebriated among them. She was made the driver. Martin drove past another bar, Forres-ter’s, which also was closing for the evening. Martin turned her head in order to view the crowd on her left exiting Forres-ter’s; she was also distracted by one of her passengers. When she looked up, Martin saw Moore walking in the street in front of the vehicle. Martin was unable to stop and ran into Moore. Moore suffered a severe closed head injury resulting in brain damage.

¶ 4. Moore brought suit and alleged that the defendant had illegally sold the alcohol that Martin drank. On this appeal from a directed verdict for the nightclub, we must decide the breadth of the responsibility of this sort of establishment to monitor its furnishing of alcohol. Further, even if an illegality occurred, we must decide whether civil liability exists for resulting harm.

DISCUSSION

A. Negligence per se — underage buyer with false identification

¶ 5. The common law imposed no responsibility on a negligent seller of alcohol when a buyer’s resulting intoxication proximately led to injuries. Munford Inc. v. Peterson, 368 So.2d 213, 215 (Miss.1979). This is because there was no common law duty of careful management of alcohol sales, the breach of which might lead to liability. Consequently, Moore was obliged here to proceed with a negligence per se claim. Negligence per se is founded on the violation of a statutory standard, usually a penal one. This means that even though general negligence concepts create no basis for suit against a seller, a violation of a statutory obligation by the provider of the alcohol can be the basis for a negligence per se claim. The plaintiff must show that (1) he is a member of the class sought to be protected under the statute; (2) that his injuries were of a type sought to be avoided by the statute; and (3) that the violation of the statute proximately caused or contributed to his injuries. Brennan v. Webb, 729 So.2d 244, 249 (Miss.Ct.App.1998).

¶ 6. This is the statute relied upon by Moore to advance his negligence per se claim:

[I]t shall be unlawful ...
(b) To sell, give or furnish any beer or light wine to any person visibly or noticeably intoxicated, or to any insane person, or to any habitual drunkard, or to any person under the age of twenty-one (21) years.

Miss.Code Ann. § 67-3-53 (Rev.2001). Will Shappley purchased the alcohol for the group of minors, and was under the age of twenty-one when he did so. An additional statute states this:

(4) A person who sells any beer or wine to a person under the age of twenty-one (21) years shall not be guilty of a violation of Section 67-3-53(b) if the person under the age of twenty-one (21) years represents himself to be twenty-one (21) years of age or older by displaying an apparently valid Mississippi driver’s license containing a physical description consistent with his appearance or by displaying some other apparently valid identification document containing a picture and physical description consistent with his appearance for the purpose of inducing the person to sell beer or wine to him.

Miss.Code Ann. § 67-3-69 (Rev.2001). Shappley presented a driver’s license belonging to an individual who was over age twenty-one, and whose appearance was similar.

¶ 7. The illegal sale of alcohol to minors has been found to establish negligence per se for civil liability. Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001). Moore argues that since Shappley was in fact a minor, a violation of statute occurred. In his view, civil liability by the bar exists since the criminal offense was only excused due to Shappley’s false identification.

¶ 8. It was the plausible identification that caused the trial court to grant a directed verdict. We find Moore’s argument that an apparently valid identification only excuses and does not eliminate the criminal violation to be artful, but unconvincing. The statutes establish when the holder of a permit for the sale of intoxicating beverages is guilty of an offense. If an identification card was presented that was acceptable under the statute, then the seller is not guilty of the offense of selling to that under-age drinker. A reading of the two statutes together explains the offense: it is unlawful to sell, give or furnish any beer or light wine to any person under the age of twenty-one years unless such a person represents himself to be at least twenty-one years of age by displaying an apparently valid Mississippi driver’s license containing a physical description consistent with his appearance. Miss.Code Ann. §§ 67-3-53(b) & 67-3-69(4) (Rev.2001) (paraphrase).

¶ 9. Though perhaps an affirmative defense, the effect of proving the defense is that the offense did not in fact occur. True, a sale to a minor occurred, but the offense as properly interpreted occurs only when there is an unjustified sale. Proof of the identification caused the trial judge to determine that there was no offense for the sale to Shappley.

¶ 10. Even if the statutory reference to a credible driver’s license could be seen as only “excusing” a violation as Moore argues, there still would not be civil liability. Indeed, even when there is an excuse only of reason and not of law, a recent draft Restatement suggests that no liability arises:

An actor’s excused violation of a statute is not negligence. A violation is excused when: ...
(b) the actor exercises reasonable care in attempting to comply with the statute; [or]
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable....

Restatement (Third) Torts § 15 (Tent. Draft # 1, 2001). A statute may excuse a violation or instead the statutory wording may suggest that no violation has occurred at all if certain actions are taken. Regardless of statutory terminology, the person committing the acts is liable neither criminally nor civilly for that act. This would mean that a violation of the statute does not create strict civil liability; the leaven of reasonableness in the permit holder’s conduct is still added. We inject the concept of reasonableness into our discussion of the statutory obligations.

¶ 11. We reject, therefore, Moore’s contention that an actionable claim lies for the Library’s sale of intoxicants to Shappley as a minor. However, even if the Library is protected by the apparently valid identification from liability arising because of its sales to Shappley, other events of that evening may indicate that a different offense occurred and a different per se negligence issue arose.

B. Other theories of recovery

¶ 12. Moore contends that although the identification is all that the trial court considered, there is in fact and law more. The trial judge directed the verdict because “there has been nothing to contradict the allegation that this driver’s license was used by this 20 year old.” Moore submits that other possible violations of section 67-3-54(b) would independently support his claim.

¶ 13. Licensees are prohibited from “selling, giving, or furnishing” intoxicating beverages to these categories: (1) persons visibly or noticeably intoxicated; (2) insane persons; (3) habitual drunkards; and (4) minors. Miss.Code Ann. § 67-3-53(b). A credible identification can only excuse the matter “proved” by the identification, namely, age. We will consider each other alleged violation.

1. The Library violated a duty not to sell to Shappley, a noticeably intoxicated person.

¶ 14. One part of the licensee statutes provides civil immunity if a permit holder lawfully sells or furnishes alcohol to a person who lawfully can purchase. Miss.Code Ann. § 67-3-73(2) (Rev.2001). Relevant to an additional offense alleged by Moore is that this immunity explicitly does not apply “when it is shown that the person making a purchase ... was at the time of such purchase visibly intoxicated.” Miss. Code Ann. § 67-3-73(4) (Rev.2001). A statutory violation would arise if the Library sold to Shappley as a noticeably intoxicated person.

¶ 15. The bar argues that Moore never raised the visible intoxication in his pleadings or argued it in the hearing on the motion for a directed verdict. We cannot consider theories of recovery advanced for the first time on appeal. Scordino v. Hopeman Brothers, Inc., 662 So.2d 640, 646 (Miss.1995). Here, it was not made clear to the trial court that Shapp-ley’s potentially visible intoxication was a basis on which to find liability. Further, the evidence that he was visibly intoxicated was weak. However, because we find that reversal is required on Moore’s next theory, we need not resolve here whether the trial court committed reversible error on this one.

2. The Library violated its duty not to “furnish” drinks to minors.

¶ 16. It is not enough for the Library to claim that it sold drinks only to Shappley, and he had a credible identification card. “There is no requirement that the intoxicated and negligent driver actually have purchased the alcohol.” Delahoussaye, 783 So.2d at 670. The giving or furnishing of alcohol may also be improper. Miss. Code Ann. § 67-3-53 (Rev.2001). A later section of the same act makes it a crime for a minor to purchase or possess alcohol. Miss.Code Ann. § 67-3-70 (Rev.2001). Even had Shappley actually been an adult, these remaining issues exist.

' ¶ 17. Thus, a minor in the bar may not purchase or possess; the permit holder may not sell or furnish. Returning to the critical Delahoussaye precedent, we find that any statutory violation as noted in the parenthetical in the quote may create a basis for liability.

In order to establish liability by proving negligence on the part of Mary Maho-ney’s, Delahoussaye must prove, in addition to negligence per se (that Mary Mahoney’s violated the statute by selling alcohol to a minor), that it was foreseeable that Tracy Collins, the minor who bought the alcohol from Mary Maho-ney’s, would share the alcohol with another minor who would negligently cause injury to Delahoussaye.

Delahoussaye, 783 So.2d at 671. Substituting for what occurred in our case, here we would insert in the parenthesis “(that the Library violated the statute by furnishing alcohol to a minor),” and then make the later phrase that “the minor who was furnished the alcohol by the Library would negligently cause injury to Moore.”

¶ 18. The court in Delahoussaye determined that an improper sale to one minor, and a foreseeable sharing of that alcohol with another minor, was a basis for civil liability. We find that the court by injecting the concept of foreseeability was analyzing the minor’s independent act of providing alcohol to another minor. The court had to decide if that sharing was an independent and superceding cause. If it were, then the alcohol permit holder would not be responsible. However, a cause remains a proximate cause when it “in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Id. In the court’s next sentence, the requirement that the sharing be foreseeable is stated. Thus we find that this is the relevance of the discussion of foreseeability in Delahous-saye even if the person causing the injury did not obtain the alcohol as a direct result of a statutory violation by the permit holder, there still may be liability if the obtaining was foreseeable.

¶ 19. What the Delahoussaye majority did not address is that one person’s buying alcohol for minors openly to consume on the permit holder’s premises may be a separate statutory violation. We, however, must consider that point as it has been validly raised on this appeal. When the alcohol is delivered by a bartender, are the other minor’s being “furnished” or served? When a reasonable bartender would know that the drinks are to be consumed by more than just the buyer, then the drinks are being furnished to the others. Thus both on the basis of the Delahoussaye approach of one minor’s sharing drinks with others in the bar as an issue of foreseeability, and our additional point that one person’s obvious buying for others causes the permit holder to be furnishing alcohol to all, there are possible reasons to find this bar liable despite the fake but credible identification.

¶ 20. The dissent argues that we should leave “furnish” dormant until a legislative definition is provided. That is a luxury, or an abdication, that we are not allowed. When a statute uses a word without giving it an explicit definition, the legislature itself has informed us that such words “are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.” Miss.Code Ann. § 1-8-65 (Rev.1998).

¶ 21. The remaining question is whether there is sufficient evidence in the record to survive a motion for directed verdict. As Moore points out, the courts are to consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. American Fire Protection, Inc. v. Lewis, 658 So.2d 1387, 1390 (Miss.1995). The dissent calls these “assumptions” that we impermissibly make. With respect to the dissent, appellate courts routinely must consider whether reasonable inferences existed from evidence. That is true whether we are deciding whether a judge improperly removed a dispute from the jury, or when we review a jury’s verdict. Here, the following evidence appeared in the record:

1. Katie Martin’s hand was marked with an “X,” indicating she was underage.
2. The group went directly to the bar.
3. There were no other patrons around them, and the bar only had 25-40 people there.
4. Martin said there was nothing impeding the bartender’s view of them or the marks on their hands indicating who was of the age to drink.
5. While at the Library for less than an hour, Martin had another beer as well as a shot.
6. 'While Martin could not remember whether she picked up the second beer from the bar, she remembered picking up the first beer and the shot glass from the bar.

¶ 22. The inferences from this evidence are strong that the Library knew or should have known that by twice providing five drinks to Shappley, with four marked minors standing next to him, that they were furnishing drinks to minors. The driver and marked minor Martin (item 6 above) also picked up two of her drinks. There is at least a question of factual inference as to whether the Library would have reasonably known that it was furnishing Katie Martin, an identified minor, with alcohol. She was the subsequent driver, so her drunkenness is a potential proximate cause of Moore’s injuries.

¶ 28. There may well be a sophomoric game conducted by bars, especially in college towns. So long as the person to whom the bar sells has an acceptable identification, that person will be allowed to purchase as many drinks as he desires for as many minors as are with him. The question in this case is whether the game is a legal one. It is not. Designated drivers among adults in a bar are a benefit; designated buyers among minors in a bar are a subterfuge. The defendant marks each under-age patron but then rejects legal responsibility for these labeled minors’ conspicuous consumption. Bars cannot be indifferent when individuals marked at their doors as being under-age are with the purchaser when enough orders are placed or delivered for them all. Only if the alcohol is not being consumed on premises might the focus rightly just be on the purchaser.

¶ 24. These statutes recognize a limited exception, which prevents the implying of even broader ones. A person who is at least eighteen years old may consume beer or wine with the consent and in the presence of a parent or guardian. Miss.Code Ann. § 67-8-54(1) (Rev.2001). Thus, even a parent may not purchase beer or wine for a child under the age of eighteen. This statute is relevant because a view of the overall statutory scheme, of which this cited statute is a part, indicates that the legislature has dealt with situations of one person of the proper age buying drinks for those under-age. Only in the narrow situation of section 67-3-54(1) is there approval for such action. There is no implied permit for a date or a friend to purchase alcohol for an under-age drinker.

¶ 25. The dissent relies on the absence of testimony regarding the bartender’s awareness of Martin’s alcohol consumption. The record contains evidence that the group, four of whom were marked by the Library at the door as underage, stood at a quiet corner of the bar with no other patrons around. Shappley, falsely claiming to be of drinking age, ordered rounds of drinks which were delivered to the bar. Martin picked up at least two of her three drinks from the bar. The holder of a license to serve alcohol on premises, who permits large numbers of minors to enter where alcohol is served, must be minimally observant. This bar might be found simply oblivious. It might also be found negligent per se. These facts are sufficient to warrant consideration of the question.

¶ 26. Alcohol and underage drinking remain matters about which society has conflicting attitudes. Attitudes may conflict, but there is nothing conflicting in these statutes. Furnishing of alcohol to underage drinkers is an offense both for the license holder who serves and the drinker who possesses. If it is argued that this bar could not oversee who drank alcohol, that is factually unconvincing based on the evidence in the record. It is unconvincing legally as well.

3. The Library was negligent in its method of determining a minor’s age.

¶ 27. In his final theory, Moore submits that the Library established a negligently inadequate procedure to determine the age of its patrons. The nightclub had numerous citations for underage drinking, which suggests to Moore that the procedures that were being used had historically been ineffective. However, the minority of everyone in the group except for the designated buyer William Shappley was properly identified. Therefore, if there was relevant negligence in identifying minors, it applied only to accepting Shappley’s offered identification.

¶ 28. As noted already, any claim against the seller of alcohol for injuries proximately related to the intoxication of a patron must be based on a violation of a statutory provision. Mississippi’s statutory scheme provides a defense to the sale to a minor if the seller was presented with “an apparently valid Mississippi driver’s license” or “some other apparently valid identification document.” Miss.Code Ann. § 67-8-69(4) (Rev.2001).

¶ 29. The statute requires an identification that is “apparently valid.” The parties accept that “the method of determining a minor’s age is for the proprietor to select.” Peterson, 368 So.2d at 218. The issue is not the sufficiency of the procedures generally employed at this bar, but the sufficiency of the offered license in this specific case. The license itself is not in the record. We are informed that the identification presented by Shappley was someone else’s valid Mississippi driver’s license. The parties appear to accept that the photograph of the other person was “consistent with [Shappley’s] appearance” as required under section 67-8-69. Since Moore does not dispute that consistency, the statutory defense to the sale to this patron remains viable.

k. Applicability of negligence per se

¶30. Not every requirement of law becomes a standard for negligence per se. As one authority explained, “there are statutes which are considered to create no duty of conduct toward the plaintiff, and to afford no basis for the creation of such a duty by the court.” W. Page KeetoN (ed.), Prosser & Keeton on the Law of Torts 222 (5th Student Ed.1984). What has been settled by the Mississippi Supreme Court is that the statutory prohibition on selling alcohol to minors creates a negligence per se standard for subsequent civil liability.

¶ 31. The nightclub here protests that Moore’s claims if successful would impose an impractical monitoring function for its employees. What weight to give to such concerns has to some extent already been addressed by the legislature. Added to the alcohol licensing statutes in 1987 is an explanation of the limits of the civil liability of holders of alcohol permits. 1987 Miss. Laws ch. 451, codified as Miss.Code Ann. § 67-3-73 (Rev.2001). We have previously discussed part of that limiting section. The legislature concluded that it was the consumption of alcohol and not its sale that was the proximate cause of injuries produced by inebriated people. Id. No holder of an alcohol permit is liable civilly to someone subsequently injured by the acts of an intoxicated individual, when the permit holder “lawfully sells or serves intoxicating beverages to a person who may lawfully purchase such intoxicating bever-ages_” Miss.Code Ann. § 67-3-73(2).

¶ 32. This language is simply an explanation of the standard of care element of negligence per se. If the permit holder did not violate the statutes, i.e., if it lawfully sold or served someone who lawfully could purchase, then it cannot be found hable civilly for injuries that result from actions of an intoxicated individual. If negligence per se rules are assumed to be certain and immutable, then the statutory language might be seen as meaningless. However, negligence per se is a court-created doctrine. This statute adopts it as the limit of liability for the holder of an alcohol permit. If the permit holder acted lawfully, it has no civil responsibility. “Lawfully” prohibits serving minors unless they have credible even if false identifications or visibly intoxicated individuals of any age.

¶ 33. This nightclub argues that the statutes applied literally would impose impossible demands on the permit holder. We cannot parse the alcohol licensee offenses and discern why only some would form the basis for negligence per se. Even so, these statutes do not fit well with some possibly common situations. Serving someone “visibly intoxicated” is prohibited even if another allegedly will be driving. If a drinking patron later drove, the statutes appear unconcerned that the bar might have asked if someone who was not drinking would be the driver.

¶ 34. The Supreme Court has suggested that what may ameliorate some impracticalities is application of the doctrine of foreseeability. Under negligence per se, the standard of care is established by the statutory requirement. Yet the Court has still mentioned foreseeability:

Nevertheless, a finding of negligence per se is only the first step in the equation, and does not, in and of itself, establish liability on the part of the defendant. Negligence per se supplies only the duty and the breach of a duty elements of a tort. The plaintiff must also prove by preponderance of the evidence that the breach of the duty owed proximately caused the injury or damages sustained.
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.

Delahoussaye, 783 So.2d at 671 (citations omitted) (emphasis added). Clear enough is that a statutory command creates the standard of care and a person has a duty to meet that standard. More complex is the role of “foreseeability” in the negligence per se context. The Delahoussaye court stated that the principle would affect both duty and causation. Duty is at least initially defined by the statute, as the first quoted paragraph stated.

¶ 35. We begin our answer to the questions raised by Delahoussaye’s language with noting the multiple roles of foreseeability in negligence analysis:

1) Foreseeability of risk of some harm. Keeton, ProsseR on Torts § 31.
2) Foreseeability of specific consequences, i.e., even if some harm was reasonably expected, the degree and nature of the actual harm should be reasonably known. Id. at § 43.
3) Foreseeability of an intervening cause. Id. at § 44.

¶ 36. What this listing does not explain is the means by which foreseeability affects negligence per se calculations. Negligence per se requires proof that (1) the plaintiff is a member of the class sought to be protected under the statute; (2) that his injuries were of a type sought to be avoided by the statute; and (3)(a) that the violation of the statute (b) proximately caused or contributed to his injuries. Snapp v. Harrison, 699 So.2d 567, 571 (Miss.1997). Obviously, then, there is more to the doctrine than just proving that failure to comply with a statute proximately caused injury.

¶ 37. Dean Keeton’s explanation of negligence per se is similar. Certain threshold issues establish “when the court will look to a criminal statute for its negligence standard of the conduct of a reasonable person.” Keeton, Peosser on Torts § 36 at 222. Looking to the purpose of a penal statute provides an answer to whether the person seeking application of the statutory standard was within the class of individuals whose interests were to be protected by the statute. The nature of the injury suffered by the plaintiff must be compared to the types of harms that the statute was intended to abate. If those factors are met, then the statutory standard applies. The remaining consideration is whether the violation of the standard was the legally relevant cause of the injury. Id. at 222-27.

¶ 38. We find the role of foreseeability in negligence per se analysis primarily by noting how that analysis mirrors traditional negligence. The perspective to maintain for all negligence — per se or per factum — is that it is “conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger.” Id. at § 43. This negligence must also have been the legally responsible cause for the injury. Id. at § 42. A statute may resolve certain of the issues in negligence per se, but it remains a negligence category.

¶ 39. Determining the class of persons to be protected by the statute is a matter of statutory interpretation. Statutory purpose is rarely explained in detail in Mississippi. The purpose for these statutes was to end prohibition and through regulation “to prevent the illicit manufacture, sale, and consumption” of alcohol. Miss.Code Ann. § 67-3-1 (Rev.2001). As purpose is sought post hoc, foreseeability may provide illumination. The determination of whether the plaintiff is a member of the class to be protected will be influenced by whether such a person was the kind foreseeably at risk of injury if these specific statutory protections were not adopted. The court looks for those at foreseeable risk since it assumes the legislature was also seeking to be foresighted. Cases such as Dela-koussaye have announced that the restrictions on alcohol permit holders are at least partly for the benefit of those who would be injured by drunk drivers.

¶40. Foreseeability is also relevant when evaluating whether the injuries were of the type that the statute sought to avoid. Again, in the absence of specific statutory language, the outer limit of the categories of injuries contemplated by the statute are those reasonably foreseeable when the statutory standard is not met. Cases we have already cited have recognized normal physical and emotional injuries from automobile accidents as within the risks to be lessened by the statute.

¶ 41. Foreseeability may also independently affect on the final issues of whether the statutory standard was violated and whether a violation was a proximate cause of injury. The concept initially impacts these final issues since whether the class of persons and injuries are within the statutory purpose resembles the “proximate cause doctrine that is applied in ordinary negligence cases.” Restatement (ThiRd) ToRts § 14 cmt. f (Tentative Draft No. 1, 2001).

¶42. In sum, then, we find that the word “foreseeable” in Delahoussa/ye was a substitute for the more usual terminology of determining whether the injured party “is a member of the class sought to be protected under the statute, that his injuries were of a type sought to be avoided by the statute, and the statutory violation was a legally proximate cause ...” Brennan, 729 So.2d at 249.

¶ 43. We find no basis on which to sustain the trial court’s actions because of the concept of foreseeability. We hold that the “give or furnish” statutory prohibition creates the potential for civil liability. The simple point before us is whether a bar commits an offense when a reasonable inference from the evidence is that the one “adult” was ordering drinks for minors to be consumed on the premises. We find that this inference is sufficient to create a fact question on liability.

¶ 44. This bar argues that instead the only issue is whether it secured protection from legal consequences by assuring itself that it dealt with the four identified minors through an intermediary whose adulthood was adequately “proved.” That interpretation of a bar’s duties might balance the requirements of the law with the practices in college towns and elsewhere. Our task is not to make compromises but to enforce the law as written. To find as a matter of law that this bar did not knowingly furnish alcohol to minors would make a distortion of the normal meanings of knowing, furnishing, and minors. The lower court erred in directing a verdict for the Library.

C. Admissibility of evidence

¶ 45. Finally, Moore submits that evidence of prior sales of alcohol to minors by the Library was improperly excluded. Moore contends that such evidence would be relevant to show opportunity, absence of mistake or accident, and foreseeability. The Library counters that Moore’s evidence is nothing more than an attempt to show other bad acts to prove conformity therewith.

¶ 46. The admission or exclusion of evidence is within the discretion of the lower court. We will defer to such rulings absent an abuse of that discretion. Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002). An evidentiary rule governs the admissibility of a party’s other bad acts. M.R.E. 404(b). For Moore’s evidence of numerous “minor in possession” violations by the Library to be admitted, it must fall within one of 404(b)’s exceptions. Exclusion of that evidence must constitute an abuse of the lower court’s discretion before we may reverse on the question.

¶ 47. The plaintiff in Delahoussaye also attempted to introduce evidence of other sales to minors. The plaintiff similarly attempted to justify the evidence’s admissibility in terms of the 404(b) exceptions, i.e. as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). There, the Supreme Court held:

We can conceive of no purpose for the proffered testimony other than to show that Mary Mahoney’s has a propensity to sell alcohol to minors. The trial judge also properly excluded the testimony under Rule 403, as the probative value would have been greatly outweighed by the prejudicial value, thus creating an improper basis for the jury determination in this case.

Delahoussaye, 783 So.2d at 673.

¶ 48. We likewise find no relevance for the evidence in this suit.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED AND REMANDED. ALL COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., LEE, MYERS, AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BRIDGES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY THOMAS AND CHANDLER, JJ.

BRIDGES, J.,

DISSENTING:

¶ 50. I dissent.

¶ 51. With respect to my colleagues in the majority, I am of the opinion that they reached a wrong decision as to the reversal and remand of the judgment of the Lafayette County Circuit Court. I am most concerned with the presumed facts and inferences that are contained in the majority’s opinion and strongly disagree with its reasoning. Believing that the record contains facts that support the directed verdict given by the trial court, I would affirm.

¶ 52. First and foremost, I feel that it is important to note that my feeling would be different if this appeal had resulted from a summary judgment. However, that is not the case. This appeal is the result of a directed verdict, where the plaintiff had ample opportunity to present all evidence supporting his case to the trial court. It was only after that evidence was presented that the trial court felt that the plaintiffs evidence was insufficient, therefore, resulting in the directed verdict. With the majority’s decision to reverse and remand, I strongly feel that this is only granting the plaintiffs a “second bite of at apple.” They have already had their day in court and do not deserve a second chance to get it right.

¶ 53. Moore alleged that the trial court’s view of § 67-3-53(b) was too narrow. He contends that § 67-3-69(4) provides a defense to only part of § 67-3-53(b). Moore asserts that the language is different between the two sections. Section 67-3-69(4) states “a person who sells any beer or wine to a person under the age of twenty-one years shall not be guilty of a violation ... if the person represents himself to be twenty-one years of age by displaying an apparently valid [identification].” The language in Section 67-3-53(b) states “it shall be unlawful ... to sell, give or furnish any beer or light wine to any person ... under the age of twenty-one years.”

¶ 54. However, the appellees contend that The Library did not “furnish” alcohol to Katie Martin to which I agree. Katie Martin did not order or purchase the drinks she consumed, nor did she know where the bartender was when she picked up the drinks. There is no proof that the bartender ever saw Katie Martin with a drink. It is undisputed that the bartender never sold or served a drink to Katie Martin.

¶ 55. Moore suggests that the bartender somehow had knowledge that Katie Martin was drinking on the night in question and that she was a minor, however, there is no evidence in the record to support that contention, nor was there any testimony by any of the witnesses as to where the bartender was when Katie Martin picked up and consumed the beverages.

¶ 56. Moreover, The Library only sold drinks to Will Shappley, who presented an apparently valid identification. This is not a violation under the statute. Shappley was the one who, in turn, provided drinks to Katie Martin. Therefore, The Library did not furnish alcohol to Katie Martin in violation of § 67 — 8—53(b).

¶ 57. While I appreciate the majority setting out the facts that were in the record to help prove that drinks were “furnished,” I noticed that the main facts that should be used to decide this issue were left out. In accordance with the majority, we enumerate the relevant facts in regards to this issue.

1. Katie Martin did not order or purchase the drinks she consumed.
2. Katie Martin did not purport to testify where the bartender was when she picked up the drinks.
3. Diala Husni did not know what the bartender did or saw.
4. Tara Childers was not paying attention and could not say where the bartender was.
5. There is no proof the bartender ever saw Katie Martin with a drink.
6. It is undisputed that the bartender never gave or handed a drink to Katie Martin.
7. Testimony from the bartender was never presented.
8. The bartender sold drinks only to Shappley, whose hand did not have an “X”.

¶ 58. Through the language of the majority, it is evident that there are numerous assumptions being made regarding this issue. It is improper and certainly not the job of this Court to make eviden-tiary assumptions about what the bartender may or may not have seen. Since the record is devoid of any support that the bartender actually saw Katie Martin drinking on the night in question, the majority’s contention that the bartender’s knowledge that Katie Martin was drinking constitutes “furnishing” is unfounded and is not grounds for reversal of the trial court’s directed verdict in favor of The Library.

¶ 59. Any definitions or meanings of which the statute may be devoid should perhaps be addressed by the legislature, not this Court. The majority discusses foreseeability and further responsibility for bar-owners/bartenders to establish the correct age of purchasers. This puts an additional burdensome liability on bar-owners/bartenders to go above and beyond the statutory requirements, and such as, by a ridiculous illustration, requiring that the purchaser go home to get his birth certificate or other means of identification, like bringing witnesses or family members, to verify what the statute requirements already establish. Again, I definitely think additional legislation is needed.

¶ 60. The majority also makes mention of Miss.Code Ann. § 67-3-54(1) (Rev. 2001), however, the relevance of this statute subsection is not known. This statute states that a person at least eighteen years of age may consume beer or wine with the consent and in the presence of a parent or guardian. This Court finds no problem with that; however, the majority goes a step further. It states that “even a parent may not purchase beer or wine for a child under the age of 18, and therefore there is no implied permit for a fraternity brother or friend to purchase alcohol for an underage drinker.” I am of the opinion that surely something must be missing. The case, sub judice, is about minors between the ages of eighteen to twenty-one, and the fact that the majority brings up the code section concerning parents not being able to supply beer or wine for a child under the age of eighteen is simply not relevant to this case.

¶ 61. The majority states that the inferences in this situation are strong that the Library knew or should have known that they were providing drinks to minors. They state that the bar knew or should have known simply because Shappley ordered five drinks while minors stood by. I find that it is not so hard to believe that a college-age male would purchase more than one drink at a time, for example, during a “happy hour” to take advantage of the drink specials or to avoid working his way through a crowded room just to get back to the bar. I also do not find it unreasonable or unlikely that minors might be standing around the bar or in the bar area in an establishment where they are permitted to enter. The majority makes mention of the fact that the bar in question was not heavily populated on the night involved, however, this situation is not always the case, especially in college towns. In fact, a bar can become densely populated in a very short amount of time. Where are bartender or bar owners supposed to draw the line between crowded and uncrowded bars? The majority infers that a bartender should “follow the drinks to their prospective person,” and this concept does seem simple enough, however, put in practice, this concept could be quite difficult. Again, for example, can a bartender really be expected to follow every drink sold, while at the same time continue to wait on other customers and check their age of majority? This can be even more difficult in a large establishment like the Library. I feel the majority infers too much in the case sub judice and draws lines that will be next to impossible to determine in the future.

¶ 62. Again, I would affirm the lower court.

THOMAS AND CHANDLER, JJ„ JOIN THIS SEPARATE OPINION.

      . It is arguable that this language has created by implication a statutory tort that can be brought against those who do not gain the protections of the immunity. That has not been the manner in which the Supreme Court has discussed the matter, and we therefore just note it.


author: THOMAS, J.,

text:
    Anthony Gene COFFEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01305-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Certiorari Denied Oct. 30, 2003.

      Anthony G. Coffey, Appellant, pro se.
    Office of the Attorney General by John R. Henry, Jackson, Attorney for Appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court:

¶ 1. Anthony Coffey, pro se, appeals an order of the Circuit Court of Harrison County denying his petition for post-conviction relief. Aggrieved, Coffey asserts the following issues on appeal:

I. IT WAS A FUNDAMENTAL VIOLATION OF DUE PROCESS AND EQUAL PROTECTION OF LAW, WHEN COFFEY UNKNOWINGLY PLED GUILTY TO AN ESCAPE CHARGE THAT WAS NOT WITHIN THE PURVIEW OF THE STATUTE HE WAS INDICTED UNDER.

II. COFFEY WAS ENTITLED TO A CONCURRENT SENTENCE WHERE THE SENTENCE IMPOSED WAS NOT WITHIN STATUTORY PRESCRIPTION.

III. THE TRIAL JUDGE ERRED IN HIS REVIEW OF COFFEY’S POST-CONVICTION RELIEF PETITION AND MISSISSIPPI STATUTORY AND CASE LAW, THUS DENYING APPROPRIATE RELIEF.

Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. Anthony Coffey was indicted for aggravated assault and kidnaping by a grand jury in Harrison County, Mississippi, in March of 2000. While jailed at the Harrison County Detention Facility awaiting trial on these charges on or about May 28, 2000, Coffey escaped custody and was later recaptured. The grand jury indicted Coffey for jail escape in March of 2001. On December 10, 2001, Coffey entered a petition to enter a plea of guilty to the felonies charged against him in both indictments. In his petition, Coffey indicated that he understood that the State would recommend a sentence of seven years on both the aggravated assault and kidnaping counts to be served concurrently, and three years on the escape count to run consecutively with the aggravated assault and kidnaping sentences for a total of ten years. The trial court accepted Coffey’s petition and the State’s recommendations as to sentence.

¶ 3. On April 23, 2002, Coffey filed a motion for post-conviction collateral relief, asserting that the trial court erred in requiring the sentence imposed upon the escape conviction to be served consecutively to the two for aggravated assault and kidnaping. On July 15, 2002, the Circuit Court of Harrison County denied relief on Coffey’s motion. Coffey then perfected an appeal to this Court.

ANALYSIS

I. WAS IT A FUNDAMENTAL VIOLATION OF DUE PROCESS AND EQUAL PROTECTION OF LAW, WHEN COFFEY UNKNOWINGLY PLED GUILTY TO AN ESCAPE CHARGE THAT WAS NOT WITHIN THE PURVIEW OF THE STATUTE HE WAS INDICTED UNDER?

¶ 4. Coffey asserts that he was indicted under Miss.Code Ann. Section 97-9-49(1) (Rev.2000), which provides:

Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemean- or, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.

Coffey asserts that since he was being held as a pre-trial detainee and there was no “former sentence” as stated in the statute, Section 97-9-49(1) can not apply and his guilty plea was therefore unknowingly given.

¶ 5. Coffey failed to raise this issue before the trial court. “[T]he law is well settled ‘that the failure to raise an issue in the trial court requires [the appellate court] to impose a procedural bar on appeal.’” Mosley v. State, 832 So.2d 589, 598(¶ 17) (Miss.Ct.App.2002)(quoting Evans v. State, 725 So.2d 613, 638(¶48) (Miss.1997)). Notwithstanding the procedural bar, Coffey clearly stated in his petition to enter a plea that he knew the sentence for escape would be consecutive to the sentences for aggravated assault and kidnaping.

¶ 6. Coffey relies on the case of Williams v. State, 420 So.2d 562 (Miss.1982), where the Mississippi Supreme Court held that where the defendant escaped prior to his sentencing, he was not subject to any “former sentence” and thus the escape was not within the purview of the statute. As pointed out by the trial court, Williams was decided on a version of the statute which is no longer in existence. In Cressionnie v. State, 797 So.2d 289 (Miss.Ct.App.2001), the defendant raised a similar question arguing that his indictment for felony escape was incorrect and at the most he should have been indicted for misdemeanor escape because he was being held on pending charges at the time of his escape. The defendant also relied on Williams for his argument. In Cressionnie, this Court noted that the Mississippi Legislature repealed Section 97-9-51 and substantially amended Section 97-9-49. Cressionnie, 797 So.2d at 293(¶ 15). The revised section provides that if a prisoner is being held on felony charges, whether he has been convicted or not, then an escape may be punished by a term not to exceed five years in the penitentiary. Id. (citing Miss.Code Ann. Section 97-9-49(1) (Rev.1994)). This issue is without merit.

II. WAS COFFEY ENTITLED TO A CONCURRENT SENTENCE WHERE THE SENTENCE IMPOSED WAS NOT WITHIN STATUTORY PRESCRIPTION?

¶ 7. Coffey asserts that in the event his escape is subject to Section 97-9-49(1), his sentence must run concurrently to his other sentences rather than consecutively. Coffey cites Cressionnie, 797 So.2d at 289, in support of his position, because this Court stated that “the logical conclusion is that a defendant convicted of felony escape who was, at the time of his escape, not the subject of a prior sentence may simply have his sentence for the escape begin to run immediately rather than have to await the completion of another sentence.” Id. at 294(¶ 16).

¶ 8. Coffey also cites Ward v. State, 708 So.2d 11 (Miss.1998). In Ward, the defendant was given a deal by the local sheriff where he would be released from jail in order to participate in an undercover drug deal but was supposed to appear for trial at a designated date. Ward, 708 So.2d at 12(¶ 3). The defendant instead left the state for four days, but was later apprehended and charged with escape. Id. He pled guilty to escape as well as to sale of cocaine, which he was being held for at the time he was released for the undercover operation and was sentenced to fifteen years for the sale of cocaine and five years on the escape charge. Id. at (¶ 4). The Mississippi Supreme Court reversed the five-year sentence on the escape conviction because under Miss.Code Ann. Section 97-9-49(2), six months is the maximum sentence for someone who is allowed to leave custody and fails to return as stipulated. Id. at (¶ 12-13).

¶ 9. The Court included the statement that if Ward’s escape sentence was valid, “it would necessarily have to run concurrently with Ward’s sentence for sale of cocaine since he was a pretrial detainee with no original sentence at the time of escape.” Id. at (¶ 13). The Court did not cite any prior authority for this statement, and admitted that “further discussion is not warranted” because they held that “both convictions were defective and that the escape sentence is illegal.” Id. Instead, the Court based this statement on an interpretation of Section 97-9-49 which appears to blend Section 97-9-49(1) with Section 97-9-49(2). The Court states, “[i]n addition, as Section 97-9-49(1) indicates, Ward is not eligible for a consecutive sentence because, as a pretrial detainee, he was not being confined in jail at the time of his escape under an “original sentence” as described in the statute.” Id. at (¶ 14). The Court follows this statement with a direct quote from Section 97-9-49(2) which refers to an “original sentence,” which is not found in the language of Section 97-9-49(1). Id. Section 97-9-49(1) instead uses the language “to commence at the expiration of his former sentence” and ends with “or which may be imposed for the crime for which he is charged.” Miss.Code Ann. Section 97-9-49(1) (Rev.2001).

¶ 10. Whether or not a sentence is to be served concurrently or consecutively is clearly within the discretion of the trial judge according to Miss.Code Ann. 99-19-21(1), which states:

(1) When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.

Miss.Code Ann. Section 99-19-21(1) (Rev. 2001). When compared to the confusing dicta found in Ward, Section 99-19-21(1) is clear. Lacking any other authority to support Coffey’s position, this issue is without merit.

III. DID THE TRIAL JUDGE ERR IN HIS REVIEW OF COFFEY’S POST-CONVICTION RELIEF PETITION AND MISSISSIPPI STATUTORY AND CASE LAW, THUS DENYING APPROPRIATE RELIEF?

¶ 11. Coffey alleges that the trial judge erred in reviewing his petition for post-conviction relief and in interpreting Mississippi statutory and case law. Specifically, Coffey asserts that the trial judge can not use Section 99-19-21(1) as a “catch all” in order to sentence him to consecutive sentences and that the trial judge erred in distinguishing Williams and Ward. Instead, it is Coffey who attempts to use his third issue as a “catch all” to rehash the arguments he brought forth in his first two issues. ■ As displayed in the discussion of the issues above, this Court is not persuaded by Coffey’s arguments. The trial judge sentenced Coffey within the boundaries of Section 97-9-49(1). The sentence did not exceed the maximum allowed by law and was not contrary to public policy. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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