author: CARLSON, Justice,

text:
    HORACE MANN LIFE INSURANCE COMPANY and Leo Hawkins, Jr. v. Betty NUNALEY.
    No. 2006-CA-00250-SCT.
    Supreme Court of Mississippi.
    July 19, 2007.
    Samuel Ernest Linton Anderson, Arthur F. Jernigan, Ridgeland, attorneys for appellants.
    T. Jackson Lyons, Precious Tyrone Martin, Sr., attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Betty Nunaley sued Horace Mann Life Insurance Company and Leo Hawkins, Jr., concerning the sale of an insurance policy. After a jury trial conducted in the Humphreys County Circuit Court, Judge Jannie Lewis presiding, the jury found that Horace Mann and Hawkins had engaged in fraud and negligent misrepresentation and awarded Betty Nunaley $35,000 in compensatory damages and $1,935,000 in punitive damages. From the trial court’s entry of a final judgment consistent with the jury verdict, Horace Mann Life Insurance Company and Hawkins have appealed to this Court. Upon a thorough review of the record and consideration of the applicable law, we reverse the Humphreys County Circuit Court’s final judgment and render judgment here in favor of Horace Mann Life Insurance Company and Leo Hawkins, Jr.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 28, 2001, Betty Nuna-ley (Nunaley) met with Leo Hawkins, Jr. (Hawkins), an insurance agent for Horace Mann Life Insurance Company, in her office at O.M. McNair Middle School in the Humphreys County School District to discuss increasing the amount of the annuity she had previously purchased from Hawkins. Nunaley decided against increasing the annuity, and instead decided to purchase life insurance covering her two children, Cedric and Nadia. Nunaley testified that Hawkins told her she could purchase two separate policies, covering each child individually, which would provide $300,000 in death benefits for a monthly premium of $50, as that was what Nunaley could afford.

¶ 3. Hawkins testified that he told Nuna-ley she could “[pjrobably get about $300,000” worth of insurance. Hawkins then typed Nunaley’s information into his laptop computer. His computer program produced the application for the insurance policy, and he went over the benefits of the policy with Nunaley. The application clearly stated that the policy Nunaley was purchasing was a joint life, first-to-die policy with an option to convert the joint life, first-to-die policy to two single life policies. The policy would pay a death benefit of $256,514 in the event of the death of either Cedric or Nadia. If Cedric and Nadia died simultaneously, or within thirty-one days of each other, Nunaley would receive two payments of $256,514. Nunaley signed the application.

¶ 4. Nadia went to Hawkins’s office to sign the application and undergo the required medical test for approval. Hawkins obtained Cedric’s signature at Cedric’s workplace, where Cedric also completed the required medical test. Both Nadia and Cedric signed the application. Hawkins then completed the application process.

¶ 5. Nunaley had stated on the application that Cedric was not a smoker; however, the medical test showed that Cedric was indeed a smoker. Horace Mann sent an amendment, effective May 17, 2001, to Hawkins with reduced coverage in the amount of $110,295. Hawkins mailed the amendment to Nunaley’s home. Cedric intercepted the amendment and signed this document as the owner of the policy, rather than an insured. Nunaley never saw the amendment since Cedric mailed the amendment to Horace Mann’s headquarters. Horace Mann did not catch the error, and the policy was issued as amended.

¶ 6. Nunaley made no further contact with Hawkins. On January 21, 2004, Nu-naley obtained a copy of her policy, along with the amendment. Nunaley alleges that this is the first time that she had seen a copy of the insurance policy with the amendment reducing benefits to $110,295. Further, Nunaley alleges that this is the first time that she learned that she did not have two, single life insurance policies covering Cedric and Nadia, but rather a joint life, first-to-die policy.

¶ 7. Nunaley filed suit in the Humphreys County Circuit Court on February 11, 2004, alleging, inter alia: (1) fraud; (2) anticipatory breach of contract and breach of contract; (8) breach of fiduciary duty; (4) negligent misrepresentation and negligence per se; (5) negligent supervision; (6) conspiracy; (7) suppression/omission of information to the plaintiff; (8) post-sale fraudulent concealment; and (9) intentional spoliation of evidence. Horace Mann filed a Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement. The trial judge entered an order directing Nunaley to file a more definitive statement within thirty days. Horace Mann Educators Corporation then filed a Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim in Response to Plaintiffs More Definitive Statement. Horace Mann then filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment, which the trial judge denied. The trial judge also denied Horace Mann’s Request for Certification for Interlocutory Appeal pursuant to M.R.A.P. 5(a). This Court entered an Order denying Horace Mann’s Petition for Interlocutory Appeal on June 17, 2005.

¶8. A jury trial was duly conducted June 23 through June 25, 2005. Nunaley called several witnesses to testify, including Matthew Thomas, an expert in insurance sales. Thomas testified that the language of the policy would reasonably lead Nunaley to believe that she was purchasing two, single life insurance policies rather than a joint life, first-to-die policy. Thomas also testified that Nunaley should have signed the amendment as the owner, rather than Cedric, and that, additionally, Hawkins should have delivered the policy to Nunaley.

¶ 9. Nunaley also called James Henley (Henley) to testify as an expert on damages. Henley testified that the appropriate method for calculating Nunaley’s alleged damages was that of lost opportunity of investment rather than benefit of the bargain. Henley testified that Nunaley’s total damages were the premiums she paid, $2,243.10, plus lost earnings on those premiums in the amount of $1,913.84. Thus, Henley testified that Nunaley’s total damages were $4,156.94. Nunaley testified that she “probably” would not have purchased the policy had she known that it was a joint life, first-to-die policy rather than two single policies. Further, Nuna-ley claimed that she would not have purchased the policy had she known of the reduced coverage amount in the amendment. However, at this time, Nunaley continues to pay her premiums to keep the policy in force.

¶ 10. At the close of Nunaley’s case-in-chief, Horace Mann moved for a directed verdict pursuant to Miss. R. Civ. P. 50. The trial court granted the motion as to Nunaley’s claims for emotional distress, breach of contract and civil conspiracy, but denied the motion as to the remaining counts/allegations in Nunaley’s complaint.

¶ 11. Horace Mann then called several witnesses, including Freda Young, the former Vice President of Life Administration for.the company. Young testified that Nu-naley could have rescinded the policy and received a full refund of her premiums, since she was unsatisfied with the amendment. Instead, Nunaley never rescinded the policy but continued to pay her premiums and filed the present lawsuit.

¶ 12. After the presentation of the evidence and reading of the jury instructions, Nunaley’s counsel, during closing arguments, asked the jury to return a verdict in favor of Nunaley and to award her $25,000 in compensatory damages. The jury returned a unanimous verdict in favor of Nunaley as to the following: (1) that Hawkins engaged in fraud in dealing with Nunaley by clear and convincing evidence; (2) that Horace Mann engaged in fraud in dealing with Nunaley by clear and convincing evidence; (3) that Hawkins engaged in negligent misrepresentation by a preponderance of the evidence; (4) that Horace Mann engaged in negligent misrepresentation by a preponderance of the evidence; and (5) that Nunaley incurred damages as a result of the actions of the defendants. The jury awarded Nunaley $35,000 in compensatory damages.

¶ 13. At the close of the punitive-damages phase of the trial, Nunaley’s counsel asked the jury to award punitive damages in the amount of $19,000,000. The jury returned a 9-3 verdict in favor of Nunaley, awarding punitive damages in the amount of $1,935,000. The trial court entered a final judgment on June 29, 2005, consistent with the jury verdict, and on July 1, 2005, Horace Mann filed a Motion for JNOV, New Trial, or Remittitur, which the trial judge denied. Horace Mann timely appealed to this Court.

DISCUSSION

¶ 14. Questions of law are reviewed de novo by this Court. Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 232 (Miss.2006) (citing Burnette v. Hart ford Underwriters Ins. Co., 770 So.2d 948, 950 (Miss.2000)).

¶ 15. Horace Mann presents fourteen issues for this Court to decide: (1) whether there was fraud as a matter of law because the same policy language as that found in Nunaley’s policy has been held to be clear and unambiguous; (2) whether Nunaley failed to establish the elements of fraud; (3) whether Nunaley’s allegation that she did not have a copy of her insurance policy relieved her of the duty to request another copy and to acquaint herself with an insurance contract she voluntarily maintained for years; (4) whether Nunaley ratified her life insurance contract; (5) whether compensatory damages were consistent with alleged damages, against the overwhelming weight of the evidence, were the result of jury confusion or were the product of bias, passion and prejudice; (6) whether the evidence supported an award of punitive damages; (7) whether the award of punitive damages was unconstitutional; (8) whether juror Bill Allen was improperly dismissed for cause after agreeing he could follow his oath to remain fair and impartial; (9) whether juror Charlie Gaugh was improperly singled out for sleeping during certain testimony; (10) whether James Henley’s testimony regarding “lost opportunity” damages was admissible; (11) whether Nunaley was improperly permitted to introduce pattern and practice testimony during the compensatory phase of the trial; (12) whether Horace Mann was improperly denied jury instructions D-25 and D-27; (13) whether the ratification jury instruction was improperly amended; and (14) whether comments made by Nunaley’s counsel during closing were prejudicial or justified by the evidence.

¶ 16. However, because our decision in the case sub judice turns on two issues, only those issues will be discussed. These two issues are: (1) whether there was fraud as a matter of law because the same policy language found as that in Nunaley’s policy has been held to be clear and unambiguous; and (2) whether compensatory damages were consistent with alleged damages, against the overwhelming weight of the evidence, the result of jury confusion or the product of bias, passion and prejudice. We restate, the issues for the sake of clarity in discussion.

I. WHETHER THERE WAS FRAUD AS A MATTER OF LAW BECAUSE THE SAME POLICY LANGUAGE AS THAT FOUND IN NUNALEY’S POLICY HAS BEEN HELD TO BE CLEAR AND UNAMBIGUOUS

¶ 17. Horace Mann argues that the policy language has been found to be clear and unambiguous by the Mississippi Court of Appeals. In Watts v. Horace Mann Life Ins. Co., 949 So.2d 833 (Miss.Ct.App.2006), a case strikingly similar to the case sub judice, the Court of Appeals stated:

The language of the policies was clear and unambiguous, despite Watts’s arguments to the contrary. The policies clearly stated:
The simultaneous death benefit
If the Insureds die within 31 days of each other and this policy is in force on the date of the first death with all premiums paid, we will provide a simultaneous death benefit. Proof of each Insured’s death must be received at the Home Office. The simulta-neons death benefit will be determined as of the date the Insureds died.
The surviving Insured may purchase a new policy
Within 31 days after the date of an Insured’s death, the surviving Insured may request a new policy. We will not require proof that the Insured is insurable. The new policy may be of the same coverage as this policy or any permanent plan of insurance currently being issued by us.
(emphasis in original).
There is no interpretation of these sections other than that the insurance would pay benefits for the death of both insureds only if they died within thirty-one days of each other. Otherwise, the second insured could automatically request a new policy, without showing proof of insurability, when the first insured died, provided that the request was made within thirty-one days of the death of the first insured. The copy provided to Watts stated in bold on the first page:
Right to examine policy for 15 days. It is important to us that you are satisfied with this policy. We hope that it meets the insurance goals for which you planned. If you are not satisfied, you may return the policy to us or the agent from whom you purchased it, within 15 days after it is delivered to you, and receive a full refund of any premiums that you have paid.
Therefore, not only were the policies clear and unambiguous, but they also encouraged Watts to carefully review her copy to ensure that she was satisfied.

Id. at 836. See also Parker v. Horace Mann Life Ins. Co., 949 So.2d 57 (Miss.Ct.App.2006); Warren v. Horace Mann Life Ins. Co., 949 So.2d 770 (Miss.Ct.App.2006); Evans v. Horace Mann Life Ins. Co., 946 So.2d 410 (Miss.Ct.App.2006); Wheeler v. Horace Mann Life Ins. Co., 2007 Miss.App. LEXIS 146 (per curiam affirmed).

¶ 18. Similarly, Nunaley’s policy states:

Your Plan of Insurance
Your plan of insurance provides level term insurance on the lives of two insureds for 20 years. While this insurance is in force, we will pay the insurance benefits when the first of the joint insureds dies.
The insurance benefits we pay
We will pay the insurance benefits in accordance with this policy’s provisions upon receipt of due proof of the first death of one of the joint insureds. These insurance benefits, determined as of the date of the Insured’s death, will be the total of:
• the Insurance Amount [] currently in force;
The simultaneous death benefit
If the Insureds die within 31 days of each other and this policy is in force on the date of the first death, we will pay the survivor benefit to the beneficiary of each insured. Proof of each insured’s death must be received in the home office. The survivor benefit will be determined as of the date the surviving Insured dies. The survivor benefit will be equal to:
• the Insurance Amount currently in force;
The surviving Insured may purchase a new policy
Within 31 days of an Insured’s death, the surviving Insured may request a new policy. We will not require proof that the Insured is insurable. The new policy may be the same coverage as this policy or any permanent plan of insurance currently being issued by us.
You may change to single life plans
While this policy is in force and both Insureds are living, you may exchange this policy for an individual level term insurance policy on each Insured. You will not need to provide proof that the insureds are insurable.
Right to examine policy for 20 days— It is important for you to be satisfied with this policy. We hope that it meets your insurance goals. If you are not satisfied, you may return the policy to us or the agent from whom you purchased it within 20 days after it is delivered to you, and we will refund any premiums you have paid. Return of the policy shall void it as if it had never been issued.

(Emphasis in original). Thus, as the Court of Appeals has held in similar cases, we hold that the language of Nunaley’s policy was clear and unambiguous. Since the language of the policy does not support a claim for fraud, this issue, as asserted by Horace Mann, has merit.

II. WHETHER COMPENSATORY DAMAGES WERE CONSISTENT WITH ALLEGED DAMAGES, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, THE RESULT OF JURY CONFUSION OR THE PRODUCT OF BIAS, PASSION AND PREJUDICE

¶ 19. Horace Mann argues in its brief that “a plaintiff cannot recover compensatory damages in an amount exceeding the loss she actually incurred.” Nu-naley’s expert witness, James Henley, testified that Nunaley’s damages were $4,156.94. Henley testified that Nunaley was entitled to “lost opportunity” damages because she could have invested the money she spent on premiums rather than pay for a policy she supposedly would not have purchased under all of the circumstances.

¶ 20. However, Nunaley has incurred no damages at all. In order to prove a claim for negligent misrepresentation, Nunaley must prove the following elements: (1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person/entity charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such persons/entities; (4) that the plaintiff reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance. Skrmetta v. Bayview Yacht Club, Inc., 806 So.2d 1120, 1124 (Miss.2002) (citing Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992)); Bank of Shaw v. Posey, 573 So.2d 1355, 1360 (Miss.1990) (citing Berkline Corp. v. Bank of Mississippi, 453 So.2d 699, 702 (Miss.1984)).

¶21. Nunaley unquestionably fails to prove the fifth element — that she suffered damages as a direct and proximate result of such reasonable reliance on any perceived negligent misrepresentation which Hawkins/Horace Mann made to her. Nu-naley, to this day, has in effect a policy that will pay $110,295 in the event of the death of one of her children and she has made no claim on her insurance policy because, thankfully, neither of her children have died. The record is simply devoid of any proof that Nunaley has suffered damages as a result of any negligent misrepresentation by the defendants. Accordingly, we find that Nunaley cannot prevail on her claim of negligent misrepresentation.

¶22. Since Nunaley has suffered no compensatory damages, it necessarily follows that she is not entitled to an award of punitive damages. Bradfield v. Schwartz, 936 So.2d 931, 938 (Miss.2006); Miss.Code Ann. § 11—1—65(c) (Supp.2006). We thus likewise find this issue asserted by Horace Mann to have merit.

CONCLUSION

¶ 23. We hold that the plain language of Nunaley’s policy did not constitute fraud and that Nunaley cannot prove the necessary element of damages in her negligent misrepresentation claim. Accordingly, the Humphreys County Circuit Court’s judgment entered against Horace Mann Life Insurance Company and Leo Hawkins, Jr., and in favor of Betty Nunaley, in the amount of $35,000 in compensatory damages and $1,935,000 in punitive damages, is reversed and judgment is rendered here in favor of Horace Mann Life Insurance Company and Leo Hawkins, Jr.

¶ 24. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND LAMAR, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT. DIAZ, P.J., AND GRAVES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . For the sake of clarity, we will collectively refer to the defendants as "Horace Mann.”

      . Nunaley, at the time of trial, had been employed by the Humphreys County School District as an educator for 32 years. She was a guidance counselor at the time of the events surrounding this case and at the time of trial. Nunaley holds a bachelor’s degree and two master's degrees.

      . At the time of the application for the insurance policy, Cedric was twenty-four years old and Nadia was twenty-one years old.

      . To date, no claim has ever been made on the insurance policy because both Cedric and Nadia are still living.

      . Hawkins could not remember during his deposition whether he also mailed a copy of the policy with the amendment. At trial, Hawkins stated that Horace Mann’s procedure is to send the amendment, along with a copy of the policy, to the agent to be given to the policyholder. Hawkins testified at trial that he remembered that he complied with Horace Mann's procedure and also mailed a copy of the policy along with the amendment to Nunaley’s home.

      . To date, the policy, with the amendment, is still in effect. Nunaley has timely paid her premiums and continues to pay her premiums on the policy despite the jury’s verdict. If one of her children were to die, Horace Mann would be obligated to pay $110,295, according to the amendment.

      . This same order likewise provided that original defendants Horace Mann Insurance Company, Teachers Insurance Company, Horace Mann Educators Benefits Consulting Corp., and Horace Mann Service Corporation were dismissed from this cause of action.

      . Horace Mann Educators Corporation was also an original party to the suit but was dismissed at trial. Horace Mann Educators Corporation is a holding company which owns 100% of the stock of Horace Mann Life Insurance Company. Horace Mann Life Insurance Company is the only insurance company defendant participating in this appeal, because it was deemed at trial that the corporate veil of the holding company had not been pierced:

      . Although Nunaley alleged damages for emotional distress in her complaint, she did not put on any evidence to support her claim. Thus, her total proven compensatory damages at trial were $4,156.94.

      . The motion for rehearing was denied on October 17, 2006, and the mandate issued on November 7, 2006.

      . "Insurance Amount" is defined by the Policy as "the amount of level term life insurance issued under the policy as stated on the Policy data page,” which was $110,295.00.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Elizabeth Joy (Selby) GIANNARIS v. Stephen Andrew GIANNARIS.
    No. 2005-CT-00498-SCT.
    Supreme Court of Mississippi.
    July 19, 2007.

      Wendy C. Hollingsworth, Dustin Norman Thomas, Ocean Springs, attorneys for appellant.
    William E. Tisdale, attorney for appel-lee.
   RANDOLPH, Justice,

for the Court.

¶ 1. On July 10, 1994, Stephen Andrew Giannaris (“Stephen”) and Elizabeth Joy (Selby) Giannaris (“Elizabeth”) were married in California. One child, S.G., was born of the union in 1998. On July 30, 2002, a “Final Judgment of Divorce” between Stephen and Elizabeth was filed in the Chancery Court of Harrison County. Incorporated into the final judgment was the “Child Custody, Support, and Visitation Settlement Agreement” (“agreement”) executed by Stephen and Elizabeth. The agreement provided Elizabeth with “paramount physical control and custody of [S.G.,]” while granting Stephen liberal visitation. The following year, Stephen filed a “Complaint for Contempt, Modification and Other Relief’ seeking primary physical custody of S.G. Following a hearing, the Chancery Court of Harrison County modified custody and granted Stephen primary physical custody. Specifically, the chancellor determined that the substantial visitation provided by the agreement, combined with the fact that Stephen, a weather forecaster for the United States Navy, had been transferred to San Diego, California, “constituted a substantial change in circumstances.” Moreover, the chancellor found that Elizabeth’s “refusal to communicate and cooperate with [Stephen] and [her] attitude toward [Stephen’s present wife, Anita] constitutes an adverse circumstance.” The chancellor then conducted an Albright analysis and found that the factors favored Stephen. The Court of Appeals affirmed the chancellor’s ruling. See Giannaris v. Giannaris, — So.2d -, 2006 WL 2599134, 2006 Miss.App. LEXIS 668 (Miss.Ct.App., Sept. 12, 2006).

¶ 2. This Court granted Elizabeth’s petition for writ of certiorari, which raised the following issues: (1) the trial court erred in basing modification of child custody on the relocation of the non-custodial parent; (2) the trial court employed an erroneous legal standard for modification of child custody by allowing the “material change in circumstances” and the “adverse affect [sic]” to be based on unrelated matters; (3) the trial court erred in relying upon isolated events which were not likely to continue into the foreseeable future to support a modification of custody; and (4) the trial court and Court of Appeals failed to employ a Daubert analysis before considering the testimony of clinical social worker Pat Gunkel, and the Court of Appeals failed to address all of the requirements of Miss. R. Evid. 702. After due consideration, this Court finds that both the chancellor and the Court of Appeals erred. The chancellor conflated isolated events which resulted in the application of an erroneous legal standard, and abused his discretion in admitting the testimony of Gunkel. Accordingly, their judgments are reversed, and we render judgment, awarding primary physical custody of S.G. to Elizabeth, and remand the support and visitation issues to the chancery court for determination.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 10,1994, Stephen and Elizabeth were married in California. One child, S.G., was born of the union in 1998. Stephen and Elizabeth were separated on September 24, 2001. The couple filed for divorce on May 6, 2002. They entered into a “Child Custody, Support, and Visitation Settlement Agreement.” In pertinent part, the agreement provided for joint legal custody of S.G., with Elizabeth receiving “paramount physical control and custody of [S.G.]” and Stephen having liberal visitation. The agreement concluded by stating, “[t]his Agreement can, may and should be incorporated into a Final Decree of Divorce herein ... and both parties request the Court to agree with same.” On July 30, 2002, the “Final Judgment of Divorce” was filed in the Chancery Court of Harrison County. Incorporated into the final judgment was the agreement executed by Stephen and Elizabeth.

¶ 4. Three weeks after the divorce was finalized, Stephen married his present wife, Anita. Stephen and Anita had been involved in an extramarital affair prior to Stephen and Elizabeth’s divorce, of which Elizabeth initially was unaware. Elizabeth ultimately learned of the affair. As a result of the affair and Stephen’s subsequent marriage to Anita, animosity existed between Elizabeth and Anita. However, Stephen conceded that visitation was mostly without incident and in conformity with the provisions of the agreement. Furthermore, the record reveals that S.G. was in good physical health and had a normal appetite. Regarding other incidents, Elizabeth conceded that on one occasion she had refused to swap days with Stephen and instead kept S.G. and that she initially did not include Anita’s name on the daycare pickup list.

¶ 5. On October 14, 2003, Stephen filed a “Complaint for Contempt, Modification and Other Relief’ seeking primary physical custody of S.G. primarily on the basis of an alleged adverse effect upon her from the possibility of Elizabeth’s home being foreclosed. The chancery court granted Stephen permission to respond to unanswered requests for admissions, and to amend his complaint. On March 9, 2004, Stephen filed an “Amended Complaint for Contempt, Modification and Other Relief,” again seeking primary physical custody of S.G. The amended complaint alleged for the first time, “[t]hat Elizabeth has engaged in a course of conduct that has resulted in a substantial and material change in circumstances[,]” and then listed a series of factors which he alleged had an adverse effect on S.G.

¶ 6. At the August 17, 2004 hearing, the chancellor found that the substantial visitation provided by the agreement, combined with the fact that Stephen, a weather forecaster for the United States Navy, had been transferred to San Diego “constituted a substantial change in circumstances.” Moreover, the chancellor found that Elizabeth’s “refusal to communicate and cooperate with [Stephen] and [her] attitude toward [Stephen’s present wife, Anita] constitutes an adverse circum-stancef,]” which the chancellor used to initiate an Albright inquiry. After weighing the Albright factors, the chancellor concluded that “it would be in the best interest of [S.G.] ... that custody be transferred to [Stephen].” On September 9, 2004, a judgment to that effect was entered by the chancery court. Elizabeth’s subsequent “Motion to Set Aside, Reconsider and/or to Alter or Amend Judgment or for a New Trial” was denied by the chancery court and, thereafter, she timely filed notice of appeal.

¶ 7. The Court of Appeals affirmed the chancellor’s ruling. See Giannaris, — So.2d at-•, 2006 MissApp. LEXIS at 668. A majority of the Court of Appeals erred, in rejecting Elizabeth’s argument that “the change in circumstances and the adverse effect cannot be based on two entirely different] things.” Id. at-, at ⅜9. The Court of Appeals majority opined that:

[although the chancellor did not specifically state that Elizabeth’s failure to cooperate and communicate with Stephen and her attitude toward Anita was a change in circumstances, the facts imply that this “adverse circumstance” constituted a change in circumstances that arose after the entry of the divorce. Pre-divorce, neither communication and cooperation regarding visitation, nor Stephen’s marriage to Anita was an issue. Thus, Elizabeth’s behavior was necessarily a change in circumstances that occurred after the original custody determination. Moreover, the chancellor determined that her behavior was adverse to the best interest of the child.

Id. at-, at *9-10 (emphasis added). While conceding that Stephen’s move was foreseeable at the time of the divorce, the Court of Appeals deduced that “the chancellor did not modify custody based on Stephen’s move. In addition to Stephen’s move, the chancellor considered Elizabeth’s behavior since the divorce (i.e., her failure to cooperate and communicate with Stephen and her attitude toward Anita).” Id. at-, at *10-11. In so concluding, the Court of Appeals ignored the chancellor’s finding “that Stephen’s move to San Diego constituted a ‘substantial change in circumstances.’ ” Id. at-, at *8. After Elizabeth’s motion for rehearing was denied, by the Court of Appeals, she filed her petition for writ of certiorari with this Court. In granting Elizabeth’s petition, this Court now considers (1) whether the chancellor erred in modifying custody and granting Stephen primary physical custody of S.G. and (2) whether the trial court employed a proper analysis under Miss. R. Evid. 702 as to witness Gunkel.

ANALYSIS

I. Whether the chancellor erred in modifying custody and granting Stephen primary physical custody of S.G.

¶ 8. When this Court reviews domestic relations matters, our scope of review is limited by the substantial evidence/manifest error rule. See R.K. v. J.K., 946 So.2d 764, 772 (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59 (Miss.1998)). Therefore, we will “not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id.

¶ 9. “[T]he polestar consideration in child custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. This Court has previously noted that a change in custody is a “jolting, traumatic experience.” Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983). As such, “children do not need to be bounced back and forth between their parents like a volleyball[.]” Tucker v. Tucker, 453 So.2d 1294, 1298 (Miss.1984). See also Cooley v. Cooley, 574 So.2d 694, 699 (Miss.1991) (overruled on other grounds) (“The best interest of the child requires that the child have some degree of stability in his or her life.”) Therefore, “[a] change in custody should never be made for the purpose of rewarding one parent or punishing the other.” Tucker, 453 So.2d at 1297. All courts must be consistent, diligent, and focused upon the requirement that “only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991). See also Ballard, 434 So.2d at 1360 (“It is only that behavior of a parent which clearly posits or causes danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.”).

¶ 10. Additionally, chancellors are charged with considering the “totality of the circumstances.” Tucker, 453 So.2d at 1297 (quoting Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)). In other words:

[a]n isolated incident, e.g., an unwarranted striking of a child does not in and of itself justify a change of custody. Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course, that such change adversely impacts upon the child.

Tucker, 453 So.2d at 1297 (emphasis added). “The test for a modification of child custody is: (1) whether there has been a material change in circumstances [] which adversely affects [ ] the welfare of the child and (2) whether the best interest of the child requires a change of custody.” Floyd v. Floyd, 949 So.2d 26, 29 (Miss.2007) (citing Weigand v. Houghton, 730 So.2d 581, 585 (Miss.1999)) (emphasis added). See also Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001) (quoting Brawley v. Brawley, 734 So.2d 237 (Miss.Ct.App.1999)) (“the non-custodial parent must satisfy a three part test: ‘a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change’s adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child.’ ”) (emphasis added). Therefore:

the non-custodial parent’s request does not simply mean a re-weighing of the Albright factors to see who now is better suited to have custody of the child. ' Although a re-weighing of Albright factors may be triggered, in reviewing the circumstances, there must be shown ... a material change — not just a change — in circumstances, that has had an adverse affect [sic] on the child and which requires, or mandates, a change in custody for the best interests of the child.

Sanford, 800 So.2d at 1272 (emphasis added). Stated otherwise, a non-custodial parent must first sufficiently prove a material change in circumstances which has an adverse effect on the child that “clearly posits or causes danger to the mental or emotional well-being of a childf,]” Ballard, 434 So.2d at 1360, as a condition precedent to re-weighing the Albright factors. The Albright factors may ebb and flow yearly, quarterly, monthly or even less, but in the absence of a substantial adverse effect upon the child, physical custody changes aré not only unwarranted, they are unwise. Our body of law could not be clearer.

¶ 11. This Court has repeatedly held that the mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes. See Cooley, 574, So.2d at 699; Spain, 483 So.2d at 320-21; Pearson v. Pearson, 458 So.2d 711, 713-14 (Miss.1984). See also Lambert, 872 So.2d at 685. This Court has never found a noncustodial parent’s relocation creates a material change in circumstances sufficient for modification of child custody. Logic dictates that if the move of the custodial parent is not considered a material change in circumstances,' then the move of the non-custodial parent is likewise not a material change in circumstances. To hold otherwise would permit a non-custodial parent to unilaterally create a material change in circumstances and then seek modification of custody.

¶ 12. This Court concludes that the chancellor applied “an erroneous legal standard,” R.K., 946 So.2d at 772, in modifying custody. Therefore, we are required to reverse. The chancellor erred in finding material changes in circumstances and then disuniting isolated incidents to find an adverse affect on S.G. According to this Court in Floyd, there must be “a material change in circumstances which adversely affects the welfare of the ehild[.]” 949 So.2d at 29 (emphasis added). In other words, the two cannot be separated. Furthermore, the material change in circumstances must be in the custodial home. See Riley, 884 So.2d at 793. The material change in circumstances relied upon by the chancellor was the move of the non-eusto-dial parent. Relocation of either parent is “insufficient grounds for modification of child custody.” Lambert, 872 So.2d at 685. Collectively, the chancellor erred in finding that Stephen’s substantial visitation combined with his transfer to San Diego “constituted a substantial change in circumstances.” Additionally, the material change in circumstances must be unforeseeable at the time of the original decree. See Lambert, 872 So.2d at 684; Tingle, 573 So.2d at 1391-92. Stephen’s employment with the United States Navy comes with the eminently foreseeable certainty of transfers throughout his career. The record reflects that during Stephen’s years in the Navy, he had already been assigned to duty stations in Italy, Mississippi, and California. At the hearing, Stephen conceded that he will likely be transferred again in three years.

¶ 13. The chancellor applied clearly erroneous legal standards in modifying custody. Furthermore, Stephen “failed to show that the mental and emotional well-being of the child was in any danger as a result of living with” Elizabeth. Lambert, 872 So.2d at 685. The Court of Appeals erred in attempting to divine the chancellor’s intent, by disregarding his stated reasons, and then relying upon implied facts.

II. Whether the trial court employed a proper analysis under Miss. R. Evid. 702 as to Stephen’s expert witness, clinical social worker Pat Gunkel.

¶ 14. “[T]he admission of expert testimony is within the sound discretion of the trial judge. Puckett v. State, 737 So.2d 322, 342 (Miss.1999). Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ Id.” Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (emphasis added). Miss. R. Evid. 702 provides:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702 (emphasis added). This Rule “recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable.” Comment to Miss. R. Evid. 702. See also McLemore, 863 So.2d at 38 (“First, the court must determine that the expert testimony is relevant— that is, the requirement that the testimony must “ ‘assist the trier of fact’ means the evidence must be relevant.” Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir.2002) (citing Fed.R.Evid. 702). Next, the trial court must determine whether the proffered testimony is reliable. Pipitone [v. Biomatrix, Inc., 288 F.3d 239,] 244 [ (5th Cir.2002) ]. Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one. Id. Daubert provides ‘an illustrative, but not an exhaustive, list of factors’ [] that trial courts may use in assessing the reliability of expert testimony. Id.”) (emphasis added).

¶ 15. Stephen tendered clinical social worker Pat Gunkel as an expert witness. Gunkel was S.G.’s therapist while employed at the Navy Family Service Center. In voir dire, Gunkel testified that her formal training in interviewing children consisted of a five-week training course and one year of working with abused children at the mental health department in Pascagoula. She further testified that she had done “five or six” interviews of children for the purpose of reaching a recommendation about which parent should retain custody. As to how she reached her specific recommendations in the case sub judice, Gunkel stated that she considered:

A. What [S.G.] told me and how she behaved in therapy.
Q. Is there any recognized textbooks or science with regard to how you would reach your conclusion or recommendation?
A. There is no exact science in psychology. There’s a lot of experimental science, but as far as reaching conclusions, a lot of it you go to training, instinct, and — mostly training.

(Emphasis added). Counsel for Elizabeth objected to Gunkel’s testimony arguing that “[t]here’s really no scientific basis for it.... The basis is simply what she has been told by the ... minor child in this case.” Nonetheless, the trial court overruled the objection and allowed the testimony. Gunkel, who was being paid by Stephen, testified without any records, never administered tests to S.G., and based her opinions, in part, on S.G. seeming to be upset over the divorce of her parents.

¶ 16. This Court has stated that “whether testimony is based on professional studies or personal experience, the ‘gatekeeper’ must be certain that the expert exercises the same level of ‘intellectual rigor that characterizes the practice of an expert in the relevant field.’” McLemore, 863 So.2d at 37-38 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). In this case, there is no evidence that Gunk-el’s opinion was either “based upon sufficient facts or data” or “the product of reliable principles and methods.” Miss. R. Evid. 702. To the contrary, Gunkel’s testimony was that her opinions were derived from unrecorded sessions with S.G. without independent verification of the truthfulness ml non of the allegations, and based upon her five-week training and instincts. This Court understands why the chancellor found that Gunkel’s “information and her opinions based upon what the child said, to me, are of an insignificant weight.” Nonetheless, the trial court erred in granting any weight to Gunkel’s testimony, as it lacked sufficient reliability under Miss. R. Evid. 702. As Gunkel was the only witness to testify that S.G. had been adversely affected, the erroneous admission of her testimony prejudiced Elizabeth and amounted to an abuse of discretion.

CONCLUSION

¶ 17. This case is reversed and judgment granted in favor of Elizabeth, awarding her primary physical custody of S.G. The case is remanded to the Harrison County Chancery Court for a determination of visitation and support issues.

¶ 18. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND LAMAR JJ„ CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . Specifically, Stephen’s visitation rights included: the first and third weekend of each month; every Tuesday and Thursday; three weeks during S.G.’s summer vacation; every other Christmas, Spring Break, and Thanksgiving; and every Father's Day.

      . Which wedding ceremony S.G. attended out-of-state without Elizabeth’s knowledge.

      . Stephen testified that Elizabeth called Anita a "dirty whore” in S.G.’s presence on one occasion.

      .Stephen testified:
      A.... Elizabeth had requested that she get a week of vacation with [S.G.]. I attempted to trade the days with her in order to give that week, but she refused to trade the Tuesday and Thursday, and just assumed that she’d keep those days.
      Q. Did she keep the child on those days?
      A. Yes, she did.

      . Stephen anticipated being in San Diego for "[a]t least three years_” Stephen also testified that he anticipated being deployed every six months for periods ranging between five days and two months.

      . In Riley v. Riley, 884 So.2d 791 (Miss.Ct.App.2004), the Court of Appeals recognized:
      "A material change of circumstances of the party not having custody of the children is not in and of itself enough to warrant a change of custody.” Bowden v. Fayard, 355 So.2d 662, 664 (Miss.1978). There must be a showing that a change of circumstances in the custodial home has occurred which materially affects the children’s welfare adversely. Id.

        Riley, 884 So.2d at 793 (emphasis added). Furthermore, the material change of circumstances must be unforeseeable at the time of the original decree. See Lambert v. Lambert, 872 So.2d 679, 684 (Miss.Ct.App.2003) ("[t]hese changed circumstances must be such that they could not be anticipated at the time of the initial determination of custody and of such magnitude as to justify the drastic measure of change in custody.”) (emphasis added); Tingle v. Tingle, 573 So.2d 1389, 1391-92 (Miss.1990).

      . In Spain v. Holland, 483 So.2d 318 (Miss.1986), this Court stated "[w]e need be clear what we mean by the phrase 'adverse effect.’ These children have already been adversely affected by the inability of their mother and father to live together which led to the ... divorce.” Id. at 320-21. See also Lambert, 872 So.2d at 684 ("It is foreseeable, indeed expected, that as a consequence of divorce a child will experience changes in his or her circumstances and experience anxiety as a result of the disruption of the family unit. Divorce has consequences which are often ' adverse, particularly for younger children.”).

      . As Judge Griffis astutely observed in his dissent:
      the chancellor relied on the move or relocation of the non-custodial parent to base his finding that there was a substantial change in circumstances. I am aware of no precedent or authority that supports this holding. Indeed, Professor Deborah H. Bell discusses the "difficult issues in modification actions” presented by the relocation of parents. In each of the cases cited by Professor Bell, it is the relocation of the custodial parent that triggers the modification consideration. Deborah H. Bell, Mississippi Family Law § 5.11 [5][b] (1st ed. 2005).

        Giannaris, - So.2d at -, 2006 Miss.App. LEXIS at 668, *25 (Griffis, J., dissenting).

      . According to McLemore:

      [t]hese factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the techniques of operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.
      863 So.2d at 37 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786).

      . According to Gunkel, at her initial meeting with Stephen and Anita, she "gave them a release of information for them to bring to [Elizabeth] to sign, so that she also knew that the child was in therapy, which is a thing I do with all children when there's a divorce.” Despite never receiving a signed release from Elizabeth, Gunkel saw S.G. weekly from mid-July 2003 until March 2004. Gunkel testified that she was unaware of whether Elizabeth was ever informed. Elizabeth testified that she did not find out that S.G. was meeting with Gunkel until "almost six months after she started going.” Gunkel never interviewed or met with Elizabeth.

      . This Court notes that Miss. R. Evid. 702 requires that (1) the witness be “qualified as an expert by knowledge, skill, experience, training, or education!;]” (2) the witness’s “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[;]” and (3) the testimony is "based upon sufficient facts or data,” “is the product of reliable principles and methods,” and those principles and methods have been reliably applied to the facts of the case. See Miss. R. Evid. 702.


author: LAMAR, Justice,

text:
    Leonard HAYES v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM.
    No. 2006-CC-01109-SCT.
    Supreme Court of Mississippi.
    July 19, 2007.

      George S. Luter, attorney for appellant.
    Mary Margaret Bowers, attorney for ap-pellee.
    Before SMITH, C.J., EASLEY and LAMAR, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. This appeal evolved from a benefit dispute between Leonard Hayes, a former firefighter for the City of Jackson and the Public Employees’ Retirement System (;hereinafter PERS). Finding the decision of PERS to be supported by the evidence, we hereby affirm the determination that under Miss.Code Ann. § 25-11-139 (Rev. 2006), Hayes was not eligible for benefits until he had effectively resigned from his position on January 30, 2001.

FACTS

¶ 2. Hayes suffered several strokes that rendered him unfit to perform as a firefighter with the City of Jackson. Although he was declared eligible for disability retirement benefits by PERS on January 30, 2001, Hayes felt that he actually qualified on September 21, 1999, and was thus owed an additional sixteen months of back benefits. Several key dates were noted by the parties:

August 15, 1999: Hayes’s last paycheck for services was received.
September 20, 1999: Hayes’s application for disability retirement was filed, the date of termination listed as “pending.”
September 21, 1999: A document entitled “Employer Certification of Termination and Unused Leave” was certified by a City employee. The “Date of termination” section was blank.
February and March of 2000: Two more paychecks were received; composed of leave donated by other city workers.
February 12, 2001: The city sent PERS a letter with the effective termination date certified as January 30, 2001. A signed letter of resignation from Hayes was attached, indicating he was resigning from his firefighter position as of that date.
February 1, 2001: Disability retirement benefits were made available, as per disability officer’s interpretation of Miss. Code Ann. § 25-11-139 (Rev.2006).

¶ 3. A hearing was conducted by the PERS Board of Trustees Claim Committee on April 7, 2004. During this hearing, Donna Edwards, the Deputy Director of Special Programs, testified that to be eligible for disability retirement benefits under the statute, actual termination of employment must occur. She stated that PERS could not begin making disability retirement payments until either Hayes submitted a letter of resignation or the City gave Hayes notice of termination. In her opinion, Hayes remained a full-time employee on extended unpaid medical leave until his resignation was certified on January 30, 2001.

¶ 4. In support of this conclusion, Edwards stated that Hayes had been covered by the state’s insurance from the time of his disability application in 1999 until his benefits began in 2001; such coverage is not an option for non-employees. Edwards said that according to the state insurance office, Hayes had been paying his state insurance premiums since his strokes. She also noted that Hayes had been given two months of donated leave, for which he received an extra quarter year of service credit.

¶ 5. Michelle Day, Public Safety Administrator of the Board of the Circuit Clerk, was the next witness at the hearing. She testified that Hayes’s position was not filled prior to his resignation, and that his job duties were covered by a rotation of other firemen. Although Day first stated that Hayes was guaranteed a job with the City upon his return, she later revealed that under City policy, he could not have returned to his former position as a firefighter without doctor certification. Non-employees, according to Day, are ineligible to receive donated leave pay as Hayes did in February and March of 2000. She additionally testified that if Hayes had been terminated in 1999, he would have been unable to continue his coverage under the state’s insurance, and would have been covered by COBRA instead.

¶ 6. When Hayes was questioned, he stated that he had not paid the state insurance premiums during the 1999-2001 period, and that he only wrote the letter of resignation so that they that they “could go ahead on and proceed with [his] benefits.”

¶ 7. Based upon the evidence presented, the PERS board concluded that Hayes’s employment had not terminated until January 30, 2001, thus, he was not legally eligible for benefits until February 1, 2001. Hayes appealed to the Circuit Court, where the finding of the PERS Board was affirmed on June 6, 2006. He filed his notice of appeal to this Court on June 23, 2006.

DISCUSSION

¶ 8. Miss.Code Ann. § 25-11-139 provides in pertinent part that:

.... and no benefits shall be paid for any period prior to the first of the month following the receipt of such application for such benefits, but in no event prior to termination of employment ...

(Emphasis added).

¶ 9. In 2002, the Legislature amended the definition portion of the statute, Section 25-ll-103(aa), to state that the term “withdrawal from service” was synonymous with “termination from service.” Hayes argued that before this amendment, it was not clear that complete severance of the employment relationship was required. In the alternative, Hayes contended that his employment relationship was severed on September 21, 1999, when the City submitted a form to the agency indicating that he was being separated from service due to “Disability Retirement.”

¶ 10. This Court affords great deference to an agency’s interpretation of statutes which govern its operation. Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1202 (Miss.2003). In reviewing administrative decisions, an appellate court will look only to determine whether the agency’s determination: 1) was unsupported by substantial evidence, 2) was arbitrary and capricious, 3) was beyond the power of the administration to make, or 4) violated some constitutional right of the complaining party. Mainstream Sav. & Loan Ass’n v. Washington Fed. Sav. & Loan Ass’n, 325 So.2d 902, 903 (Miss.1976).

¶ 11. The PERS board determined that, under the plain meaning of the statute, actual termination is, and has always been, required in order to receive disability retirement benefits. It further found that Hayes’s employment with the city was not severed until he resigned on January 30, 2001. This conclusion is strongly supported by the evidence.

¶ 12. Edwards testified that, from the system’s inception, the disability program’s interpretation of the statute has been to require a complete termination of employment before disability- retirement benefits could be awarded. There was evidence showing that the City did not fill Hayes’s position until his letter of resignation became effective on January 30, 2001. Prior to that, Hayes could have returned to work at any time if he could have found five doctors to sign off on his recovery. Hayes received donated leave pay in February and March of 2000, and accumulated an additional quarter-year of service credit for this time. Based upon the evidence presented, it was reasonable to conclude that Hayes’s employment with the City was not severed until January 30, 2001, and thus he was not entitled to disability retirement benefits until February 1 of that year.

CONCLUSION

¶ 13. For the reasons cited above, this Court finds that the decision of PERS was not arbitrary or capricious; to the contrary, it was fully supported by the evidence. Therefore, we hold that the finding of the board and the lower court should be affirmed.

¶ 14. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.


author: ISHEE, J., SOUTHWICK, J.,

text:
    Elsie ETHERIDGE, Appellant v. HAROLD CASE & COMPANY, INC., a Mississippi Corporation, and Randy Parkman, Appellees.
    No. 2004-CA-01678-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied April 3, 2007.

      Alfred L. Felder, McComb, attorney for appellant.
    David M. Ott, Hattiesburg, attorney for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Following a collision between Elsie Etheridge and Randy Parkman, Etheridge filed a negligence action against Parkman and his employer, Harold Case & Company, Inc., (the Appellees) in the Walthall County Circuit Court. A trial was held on the issue of liability only. Following a jury verdict in favor of the Appellees, Eth-eridge filed a motion for JNOV or, in the alternative, for a new trial. The trial court denied Etheridge’s motion, and she now appeals. She presents the following assignments of error for this Court’s review:

I. The court erred when it ruled that an official traffic-control device warning to “SLOW TO 45” was advisory rather than mandatory to a truck driver approaching an intersection proceeded by a hill and curve.
II. The court erred in excluding Ether-idge’s animation that demonstrated that no wreck would occur had the truck slowed to forty-five miles per hour when it reached the warning sign.
III. The court erred in refusing Ether-idge’s instruction No. P-13 which would have allowed the jury to find that an official traffic-control device had lowered the speed to 45 miles per hour in the area where the wreck occurred.
IV. The court erred in granting Appel-lees’ instructions.
V. The court erred in refusing Ether-idge’s instructions P-16-A and P-17-A explaining habit testimony.
VI. The court erred in allowing into evidence the unsworn out-of-court statement of an allegedly deceased witness.
VII. The court erred in submitting a jury instruction or interrogatory which required the jury to inquire into Etheridge’s fault before inquiring into the Appellees’ fault.
VIII. The multiple and substantial errors by the trial court support a reversal of this case for a new trial.

¶ 2. Finding only harmless error, we affirm the judgment of the trial court.

FACTS

¶3. At 9:00 a.m. on August 21, 1992, Etheridge began a trip from her home in the Sartinville community in Walthall County. Approximately two miles into her journey, Etheridge was traveling on Sar-tinville Road when she came to an intersection with Mississippi State Highway 27; the intersection was controlled by a stop sign on Sartinville Road. Eight-hundred feet north of the intersection, and beyond a hill, was a yellow double-diamond warning sign. The top diamond indicated that an intersection was ahead, and the bottom diamond told drivers to “SLOW TO 45.” As Etheridge approached the intersection from Sartinville Road, Parkman, who was driving an eighteen-wheel truck, also approached the intersection as he traveled south on Highway 27. Etheridge pulled out into the intersection and was struck by Parkman.

¶ 4. There were four known witnesses to the accident: Etheridge, Parkman, Zebedee Brister, and J.P. Baylis. Brister and Baylis were both at the pumps of a gas station, which was located at the Startin-ville Road/Highway 27 intersection. Officer Tim Leggett of the Mississippi Highway Patrol investigated the accident and wrote an accident report.

¶ 5. On October 20, 1995, Etheridge filed suit against the Appellees in Walthall County Circuit Court. A jury trial was held to determine the issue of liability only.

¶ 6. During the trial, Etheridge testified through her deposition that, although she did not remember the accident, she always stopped at the stop sign on Sartinville Road. Etheridge’s daughter, Peggy Anderson, also testified as to Etheridge’s driving habits at the intersection where the accident occurred. She testified that Etheridge frequently drove through the intersection in question, and that Ether-idge drove her through the intersection on numerous occasions. Anderson further testified that Etheridge habitually stopped at that intersection and looked both ways before crossing the highway. Anderson also stated that her mother was a very careful driver, and that she had never seen her run the stop sign at that intersection.

¶ 7. Officer Leggett testified that, in his accident report, he attributed no improper driving to Parkman, but that he did note that Etheridge failed to yield to the right of way. Parkman testified that, as he was climbing the hill on Highway 27, he saw a car coming from Sartinville Road and slowed down. According to Parkman, when he realized that the car was not going to stop, he blew his horn, slammed on the brakes, and veered to the right, but could not avoid the collision. Brister was unavailable to testify at the trial (he was more than 150 miles away from the location of the trial), and his deposition was read in court. In the deposition, Brister testified that he saw Etheridge pull out in front of Parkman, and that Parkman was “right on her when she pulled out.” Bris-ter specifically testified as follows: “[I] think I saw the truck first then I looked and seen the car, because, I remember me saying oh, she’s going to run right out in, ran right out. She had stopped and then she pulled right out and hit him.” Baylis died before the trial began and was also unavailable to testify. Because his deposition had never been taken, the trial court allowed statements given by Baylis to be read to the jury. In those statements, Baylis indicated that Parkman was not speeding. He further opined that Ether-idge must not have seen Parkman, or she would not have driven into the intersection when she did.

¶ 8. Both parties presented expert testimony during the trial. Etheridge’s expert witness admitted that the accident may have occurred even if Parkman had been driving forty-five miles per hour when he saw Etheridge pull into the intersection. The Appellees’ expert witness, A1 Gonzales, similarly testified that if Parkman had been driving forty-five miles per hour at the point of perception the accident still would have occurred.

¶ 9. On June 24, 2004, the jury returned a verdict in favor of the Appellees, finding that Etheridge’s negligence was the sole and proximate cause of her injuries. On July 7, 2004, Etheridge filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The trial court entered an order denying Eth-eridge’s motion on August 4, 2004. Aggrieved, Etheridge appeals.

ISSUES AND ANALYSIS

I. The court erred when it ruled that an official traffic-control device warning to “SLOW TO 45” was advisory rather than mandatory to a truck driver approaching an intersection proceeded by a hill and curve.

¶ 10. Citing Mississippi Code Annotated sections 63-3-133 (Rev.2004) and 63-3-313 (Rev.2004), Etheridge contends that Parkman was required to obey the traffic-control device on Highway 27. Mississippi Code Annotated section 63-3-133 defines “official traffic-control devices” as “all signs, signals, markings, and devices not inconsistent with this chapter placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.” Pursuant to Mississippi Code Annotated section 63-3-313, “no driver of a vehicle shall disobey the instructions of any official traffic-control device placed in accordance with the provisions of this chapter, unless at the time otherwise directed by a police officer.” The traffic control device at issue is a yellow double-diamond sign with a black cross on the top diamond, indicating that an intersection is ahead, and black writing on the bottom diamond instructing drivers to “SLOW TO 45.”

¶ 11. In Harrison v. State, 800 So.2d 1134, 1137(¶ 14) (Miss.2001), the court determined that drivers have a general duty to obey all official traffic-control devices, pursuant to Mississippi Code Annotated sections 63-3-133 and 63-3-313. The court further determined that specific statutory provisions, such as the provision governing speed through construction zones, controlled over this general duty. The specific statutory provision at issue in Harrison was Mississippi Code Annotated section 63-3-516(1) (Rev.2004), which provides in part:'

It is unlawful for any person to operate a motor vehicle within a highway work zone at a speed in excess of the maximum speed limit specifically established for the zone whenever workers are present and whenever the zone is indicated by appropriately placed signs displaying the reduced maximum speed limit.

¶ 12. In determining that specific statutory provisions control over general provisions, the Harrison court addressed statutory construction, noting the well-established principle that “when a statute is plain and unambiguous there is no room for construction.” Id. at 1137(¶ 12) (citing Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.1995)). The court further expressed that “only when a statute is unclear ... should we look beyond the language of the statute in determining the Legislature’s intent.” Id.

¶ 13. In the case sub judice, the trial court initially ruled that the traffic-control device was mandatory, however, it later reversed its ruling. The trial court determined that the traffic-control device was advisory, rather than mandatory, based on the following: (1) it would be “ridiculous” to hold a driver to the standard set out in Harrison, as Harrison had not been decided when the accident in this case occurred; (2) the double-diamond sign is not a speed limit sign according to the Manual of Uniform Traffic Control Devices; (3) the Mississippi Supreme Court had no intention of changing traffic laws when it ruled on the search and seizure issue in Harrison,

¶ 14. We find that Harrison did not set out a new standard for care for drivers, or change traffic laws. Instead, it reaffirmed the well-established principle that a court should not look beyond the language'of a plain and unambiguous statute to determine legislative intent. Even though the double-diamond sign in question is not a speed-limit sign according to the Manual of Uniform Traffic Control Devices, it is an official traffic-control device according to the plain and unambiguous language of Mississippi Code Annotated section 63-3-133. Furthermore, according to the plain and unambiguous language of Mississippi Code Annotated section 63-3-313, drivers must obey all traffic-control devices, unless instructed otherwise by a police officer. Therefore, we find that the trial court erred in ruling that the double-diamond sign was advisory rather than mandatory. We further find, however, that this error is harmless.

¶ 15. The trial court determined that Etheridge was negligent as a matter of law for failing to yield to an immediate hazard. The Appellees’ expert witness, A1 Gonzales, testified that the accident would have occurred even if Parkman had been traveling forty-five miles per hour at the point of perception. He also testified that Etheridge’s negligence was the sole proximate cause of the accident. Most notably, Etheridge’s expert witness, Steve Irwin, admitted that the accident may have occurred even if Parkman had been driving forty-five miles per hour. Irwin further admitted that Etheridge was at fault for pulling out in front of Parkman. Moreover, all of the witnesses to the accident, except for Etheridge, who has no memory of the accident, stated that Etheridge pulled out into the intersection at a point when Parkman was too close to avoid the accident. Thus, the weight of the evidence lends to the conclusion that Parkman’s speed did not cause the accident. Therefore, the trial court’s error in ruling that the double-diamond sign was advisory is harmless.

II. The court erred in excluding Eth-eridge’s animation that demonstrated that no wreck would occur had the truck slowed to forty-five miles per hour when it reached the warning sign.

¶ 16. A trial court must employ a two-prong inquiry in determining the admissibility of expert testimony. Sports Page Inc. v. Punzo, 900 So.2d 1193, 1200-01(¶ 26) (Miss.Ct.App.2004) (citing Missis sippi Transp. Comm’n v. McLemore, 863 So.2d 31, 39(¶ 22) (Miss.2003)). First, the trial court must determine whether the expert testimony is relevant, i.e., whether it will “assist the trier of fact.” Sports Page Inc., 900 So.2d at 1201(¶ 26) (quoting Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir.2002)). The trial court then must determine whether the expert testimony is reliable. Id. (citing Mississippi Transp. Comm’n, 863 So.2d at 38(¶ 16)). “The admission of expert testimony is controlled by the trial judge’s discretion. This Court will not disturb the decision of a trial judge absent clear abuse of that discretion.” Daughtry v. Kuiper, 852 So.2d 675, 679(¶ 19) (Miss.Ct.App.2003) (quoting Stanton v. Delta Regional Med. Ctr., 802 So.2d 142, 144(¶ 4) (Miss.Ct.App.2001)).

¶ 17. During trial, Etheridge sought to introduce an animation showing that, if Parkman had been going forty-five miles per hour at the point of the warning sign, i.e., before the- intersection was in sight, Etheridge would have crossed the intersection before Parkman arrived. The trial court sustained the Appellees’ objection to the animation, stating that it was more prejudicial than probative under Rule 403 of the Mississippi Rules of Evidence. The court reasoned that whether Parkman was going forty-five miles per hour 800 feet before he could have seen Etheridge was irrelevant.

¶ 18. We agree with the trial court that the animation was irrelevant. Etheridge’s expert witness testified that the accident may have occurred even if Parkman had been driving forty-five miles per hour when he saw Etheridge pull into the intersection. Furthermore, the Appellees’ expert witness, A1 Gonzales, also testified that if Parkman had . been driving forty-five miles per hour at the point of perception the accident still would have occurred. Moreover, whether Parkman' was going forty-five miles per hour before he could see anyone in the intersection, and before anyone in the intersection could see him, is no more relevant to the cause of the accident than whether Parkman rolled through a stop sign five miles north of the intersection. Consequently, we find that the trial court did not abuse its discretion in excluding the animation of Etheridge’s expert. This assignment of error is without merit.

III. The court erred in refusing Eth-eridge’s instruction No. P-13 which would have allowed the jury to find that an official traffic-control device had lowered the speed to forty-five miles per hour in the area where the wreck occurred.

¶ 19. In determining whether a trial court erred in granting or denying jury instructions, no instruction should be read in isolation. Burr v. Mississippi Baptist Medical Center, 909 So.2d 721, 726(¶ 12) (Miss.2005). This Court reads all of the jury instructions together as a whole. Id. When read as a whole, no reversible error will be found if the jury instructions fairly announce the law of the case and create no injustice. Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1063(¶ 35) (Miss.2003) (quoting Reese v. Summers, 792 So.2d 992, 994(¶ 4) (Miss.2001)). A party is entitled to have his theory of the case presented to the jury through instructions if there is adequate evidence to support it, but only “if made conditional upon the jury’s findings that such facts existed.” Reese, 792 So.2d at 994(¶ 4) (quoting Murphy v. Burney, 27 So.2d 773, 774 (Miss.1946)). If a proposed jury instruction repeats a theory fairly covered in another instruction, incorrectly states the law, or is without adequate foundation in the evidence of the case, a trial court may properly refuse to grant the instruction. Burr, 909 So.2d at 726(¶ 12).

¶ 20. Requested jury instruction P-13 recited the language from Mississippi Code Annotated sections 63-3-133 and 63-3-313, and read as follows:

If you find from a preponderance of the evidence that an official traffic-control device had been placed at the intersection where this wreck occurred, and if you further find from a preponderance of the evidence that the defendant truck driver Randy Parkman did not obey the instructions of the official traffic-control device by reducing his speed to 45 miles per hour or below, then you are instructed that the defendant is negligent as a matter of law. If you find that such negligence was a proximate contributing cause of the wreck and injuries to the plaintiff, then your verdict shall be for the plaintiff.

Parkman testified that he did not decrease his speed to forty-five miles per hour upon reaching the sign on Highway 27. Because we have determined that Parkman was required to obey the instruction of the traffic control device to “SLOW TO 45,” there was sufficient evidence to support submission of Etheridge’s theory of the case to the jury through instructions. Furthermore, the requested jury instruction, P-13, was conditional upon the jury’s finding that Parkman’s negligence was a proximate and contributing cause of the accident. If requested jury instruction P-13 had been granted, the jury would have been at liberty to find that Parkman’s negligence did not contribute to the accident. Therefore, we find that the trial court erred in refusing to grant this instruction. Nevertheless, due to the weight of the evidence as discussed under the first assignment of error, we also find that this error is harmless.

IY. The court erred in granting Ap-pellees’ instructions.

¶ 21. Etheridge asserts that the trial court erred in granting the Appellees’ jury instructions, labeled instruction No. 14, 21, and 23. Jury instruction No. 14 read as follows:

The Court instructs you that under the law of the State of Mississippi, Elsie M. Etheridge was negligent when she failed to yield the right of way to an approaching vehicle that was so close as to present an immediate hazard. Therefore, you must find that she was negligent. Further, under the law of the State of Mississippi, if a Plaintiff is the sole proximate cause of her own injuries, the Plaintiff may not recover from another for those injuries. Therefore, [i]f you find that the negligence of the Plaintiff, Elsie Etheridge, was the sole proximate cause of the accident, then you must find for the Defendants, Randy Parkman and Harold Case & Co.

Jury instruction No. 21 informed jurors that “under the laws of the State of Mississippi ... Etheridge was negligent as a matter of law when she faded to yield the right of way to an approaching vehicle driven by Randy Parkman that was so close as to present an immediate hazard.” It further instructed the jurors that they “must find that [Etheridge] was negligent.” Jury instruction No. 23 was a form to be filled out by each juror, as a means of returning their verdict. The form asked the jurors to state whether Ether-idge was negligent, the percentage of fault for which Etheridge was responsible, and whether Parkman was guilty of negligence which was a proximate contributing cause of Etheridge’s damages. If the juror found Parkman to be negligent, the form also asked that juror assign a percentage of fault to Parkman.

¶ 22. Etheridge asserts that these jury instructions were tantamount to a directed verdict in favor of the Appellees. Ether-idge further asserts that the evidence was sufficient to present a question for the jury as to whether an immediate hazard existed because there was conflicting testimony as to whether she stopped at the stop sign, looked both ways, and saw no vehicle coming. In support of this argument, Ether-idge cites the habit testimony that she always stopped at the intersection and the testimony of Baylis that she stopped at the stop sign before the accident.

¶ 23. The standard of review for whether a peremptory instruction should be granted is the same as the standard for a directed verdict. Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 7) (Miss.2003) (citing Herrington v. Spell, 692 So.2d 93, 97 (Miss.1997) (overruled on other grounds)). In determining whether to grant a peremptory instruction, the evidence should be viewed in the light most favorable to the opposing party, “giving the benefit of all the favorable inferences that may be reasonably drawn from the evidence, and considering any uncon-tradicted evidence offered by the moving party.” Pickering v. Industria Masina I Traktora (IMT), 740 So.2d 836, 842-43(¶ 23) (Miss.1999) (citing Turner v. Turner, 524 So.2d 942, 944 (Miss.1988)). If substantial evidence supports the verdict, so that reasonable and fair-minded jurors might have reached different conclusions, then we will not reverse. Reese, 792 So.2d at 996(¶ 8) (citing Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)).

¶ 24. Although Etheridge’s habit testimony supports the notion that she stopped at the stop sign on the day in question, and Brister testified that stopped at the stop sign, this evidence does not support the argument that Etheridge was not negligent. Mississippi Code Annotated section 63-3-805 (Rev.2004) states in part that “[t]he driver of a vehicle shall ... stop in obedience to a stop sign ... at an intersection where a stop sign is erected ... and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard.” All of the witnesses to the accident, except for Etheridge, who has no memory of the accident, stated that Etheridge pulled out into the intersection at a point when Parkman was too close to avoid the accident. Moreover, Etheridge’s expert witness testified that Etheridge was at fault for pulling out in front of Parkman, and the Ap-pellees’ expert testified that Etheridge’s negligence was the sole proximate cause of the accident. Consequently, we find that substantial evidence supports the verdict that Etheridge was negligent for disregarding an immediate hazard. This issue is without merit.

Y. The court erred in refusing Ether-idge’s instructions P-16-A and P-17-A explaining habit testimony.

¶ 25. During trial, Etheridge and her daughter, Peggy Anderson, testified as to Etheridge’s driving habits at the intersection where the accident occurred. Anderson testified that Etheridge frequently drove through the intersection in question, and that Etheridge drove her through the intersection dozens of times over a period of years. Anderson further testified that Etheridge habitually stopped at that intersection and looked both ways before crossing the highway. Anderson also stated that her mother was a very careful driver, and that she had never seen her run the stop sign at that intersection. Through her deposition, Etheridge testified that, although she could not remember the accident, she always stopped at the stop sign on Sartinville Road. Etheridge asserts that the trial court erroneously prevented her from presenting her theory of the case when it refused to give the jury her requested instructions on habit testimony, labeled P-16-A and P-17-A.

¶ 26. Requested jury instruction P-16A read as follows:

The Court instructs the jury that evidence of the habit of a person is relevant to prove the conduct of the person on a particular occasion was in conformity with the habit. If you believe from the evidence, if any, that Elsie Etheridge had established a habit of coming to a stop at the stop sign at the intersection of the collision, then you can imply that she probably acted in this instance of the collision in conformity with her habit.

Requested jury instruction P-17-A read as follows: “the Court instructs the jury that evidence of the habit of a person is relevant to prove the conduct of the person on a particular occasion was in conformity with the habit.” The trial court determined that to grant the requested instructions on habit testimony would be an improper comment on the evidence. We agree.

¶ 27. As previously stated, a party is entitled to have his theory of the case presented to the jury through instructions, if there is adequate evidence to support it. Reese, 792 So.2d at 994(¶ 4) (citing Murphy v. Burney, 27 So.2d 773, 774 (Miss.1946)); see also PACCAR Financial Corp. v. Howard, 615 So.2d 583, 590 (Miss.1993). Nonetheless, “[i]t is also well established that instructions to the jury should not single out or contain comments on specific evidence.” Crimm v. State, 888 So.2d 1178, 1186(¶ 35) (Miss.Ct.App.2004) (quoting Lester v. State, 744 So.2d 757, 759(¶ 6) (Miss.1999)). Accordingly, we find that the trial court did not abuse its discretion in refusing to grant jury instructions that inappropriately commented on the evidence. This issue is without merit.

VI. The court erred in allowing into evidence the unsworn out-of-court statement of an allegedly deceased witness.

¶ 28. In the case sub judice, Bay-lis, a witnesses to the accident, gave statements to each of the parties. One statement was given in 1993, and another was given in 1996. Shortly before the trial began, the Appellees learned that Baylis had died. The night before trial, the Ap-pellees notified Etheridge that they intended to use a statement given by Baylis to Etheridge’s investigator. Over Ether-idge’s objections, the trial court allowed the statement to be read into evidence.

¶ 29. Rule 804(b)(5) of the Mississippi Rules of Evidence, dealing with hearsay exceptions when a declarant is unavailable, provides in part that an out-of-court statement “not specifically covered by any of the foregoing exceptions [to the hearsay rule] but having equivalent circumstantial guarantees of trustworthiness” may be admitted:

[I]f the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it.

Thus, in order to be properly admitted under the residual exceptions to the hearsay rule, an out-of-court statement must be tested for trustworthiness, materiality, probative value, the interests of justice, and notice. Moore v. State, 822 So.2d 1100, 1108(¶ 24) (Miss.Ct.App.2002) (citing Quimby v. State, 604 So.2d 741, 747 (Miss.1992)).

¶ 30. Etheridge asserts that the trial court failed to determine whether the statement contained circumstantial guarantees of trustworthiness, whether it was offered as evidence of a material fact, or whether it was more probative to the point for which it was being offered than the Appellees could procure through reasonable efforts. Consequently, Etheridge argues that the trial court erred in admitting Baylis’s statement because it did not find that the statement met the requirements of Rule 804(b)(5). We disagree.

¶ 31. The trial court determined that Baylis was clearly unavailable, pursuant to Rule 804(a)(4), because he was deceased. The court determined that the Appellees should have given longer notice of their intent to use the statement. Nonetheless, it determined that the notice given was sufficient because Etheridge actually took the statement and had been in possession of it for several years. The court also noted that the statement given to Ether-idge was consistent with the statement Baylis gave to the Appellees. Because the statement given in 1993 was consistent with the statement given in 1996, the trial court determined that the statements contained “significant indicia of reliability.” Finally, the trial court held that the Mississippi Rules of Evidence favor admission of the statement over exclusion.

¶ 32. Although the trial court did not recite the language “circumstantial guarantees of trustworthiness” in its ruling, it did find that the statement contained “significant indicia of reliability.” Thus, the trial court clearly tested the statement for its trustworthiness. Moreover, the trial court read into the record Rule 804(b)(5) in its entirety and specifically found that the statement fell within the rule. Thus, even though the trial court did not use language such as “I find that this statement is offered as evidence of a material fact,” or “this statement is more probative to the point for which it was being offered than the Appellees could procure through reasonable efforts,” it plainly determined that the statement met the requirements of Rule 804(b)(5). Therefore, this issue is without merit.

VII. The court erred in submitting a jury instruction or interrogatory which required the jury to inquire into Etheridge’s fault before inquiring into the Appel-lees’ fault.

¶ 33. Under this assignment of error, Etheridge again addresses jury instruction No. 23, which asked the jurors to answer four questions. The first question asked whether Etheridge was negligent, and the second question asked the juror to assign Etheridge a percentage of fault. The third and fourth questions inquired into Parkman’s negligence and corresponding percentage of fault. Finally, the form instructed the jurors that both percentages must equal one-hundred percent.

¶ 34. As we have previously stated, this Court reads all of the jury instructions together as a whole to determine whether the instructions fairly announce the law of the case and create no injustice. Burr, 909 So.2d at 726(¶ 12) (citing Entergy Mississippi, Inc., 854 So.2d at 1063(¶ 35)). Etheridge’s negligence was established by jury instruction No. 14 and 21, which instructed the jury to find that Etheridge was negligent as a matter of law for failing to yield to an immediate hazard. Furthermore, we determined that instruction No. 14 and 21 were supported by substantial evidence. Thus, when reading the jury instructions together as a whole, it is clear that the instructions adequately and fairly announced the law of the case and created no injustice. Therefore, this assignment of error is without merit.

VIII. The multiple and substantial errors by the trial court support a reversal of this case for a new trial.

¶ 35. Although we determine that the trial court erred under the first and third issues presented, we find that both of the errors were harmless. Thus, we find that the combination of the two errors does not merit reversal.

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

KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ., CONCUR. SOUTHWICK, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS AND BARNES, JJ. LEE, P.J., JOINS IN PART. IRVING, J., CONCURS IN RESULT ONLY. LEE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

SOUTHWICK, J.,

concurring.

¶ 37. I concur. My opinion addresses a precedent that bedeviled the lower court and which the majority also must discuss. Harrison v. State, 800 So.2d 1134 (Miss.2001). In my respectful view, that precedent should be overruled by the Supreme Court. I believe both that it was wrongly decided and, as the present case demonstrates, its reasoning encourages mischievous legal arguments.

¶ 38. In that precedent, the defendant had been driving at about 67 mile per hour on an interstate highway in which 70 miles per hour was the usual speed limit. Harrison, 800 So.2d at 1135. He was stopped while traveling through a work zone with a posted speed limit of 60 miles per hour. The court held that the posted signs notifying travelers of a speed limit in a construction zone did not create a duty to drive at that speed unless there were workers present. Id. at 1138. That was because a statute created a specific penalty for speeding in construction zones only when workers were present. Id., citing Miss.Code Ann. § 63-3-516(1) (2000). Therefore, though the only traffic signs regarding speed limits in this location indicated that 60 miles per hour was the maximum, the absence of construction workers meant the posted limit was not the enforceable limit.

¶ 39. The Court of Appeals had found that the issue was not the applicable penalty -but was instead the applicable speed limit. The Supreme Court held that not only did the absence of workers eliminate the specific penalty, the Supreme Court held that the absence of workers eliminated “the construction speed limit” itself. Harrison, 800 So.2d at 1138.

¶ 40. Among the problems with the Supreme Court’s approach is its use of elements of criminal offenses to cancel agency regulatory actions. The legislature may not delegate to administrative agencies the authority to define crimes. State v. Russell, 358 So.2d 409, 411 (Miss.1978). What may be and was validly relinquished to an agency was the making of rules for the control of traffic on highways. Miss.Code Ann. 65 — 1—8(c) (Rev.2005). Harrison effectively held that a criminal statute rescinded this delegation to the extent of setting speed limits in unoccupied work zones. It appears more accurate to conclude that the statute simply provided a new penalty for one category of rule violations but did not take back from the agency its right to set all work zone speed limits. If the Department of Transportation wants to set different speed limits for occupied and unoccupied zones, as opposed to the legislature’s setting different penalties for violations, the authority exists and its exercise would be reflected by traffic control signs so stating.

¶ 41. Even if criminal statutes are relevant, the most specific criminal statute does not displace other statutes penalizing the same conduct. Instead, when multiple statutes would apply, it is for a prosecutor to choose under which to charge, a choice not subject to objection by the accused. Beckham v. State, 556 So.2d 342, 343 (Miss.1990). The Harrison opinion did not refer to precedents regarding criminal statutes but instead to general principles of statutory construction dealing with inconsistent statutes. Harrison, 800 So.2d at 1139. As I will discuss, though, there is nothing inconsistent about a specific work zone speed limit statute when workers are present and other statutes criminalizing speeding — including in work zones when workers are absent.

¶42. The difficulties with an analysis such as was later used by the Supreme Court were discussed in the Court of Appeals’ Harrison opinion, excerpts of which now follow.

Harrison must be arguing that not only was Section 63-3-516 not violated, but also that the speed limit at this location was 70 miles per hour. That means that what was posted as the speed limit was not actually the speed limit. To the contrary, a traffic violation occurs whenever anyone disobeys “the instructions of an official traffic-control device” placed along the road. Miss. Code Ann. § 63-3-313 (Rev.1996). Another section defines a “traffic control device” as “all signs ... placed or erected ... for the purpose of regulating, warning, or guiding traffic.” Miss.Code Ann. § 63-3-133(a) (Rev.1996); see Niles v. Sanders, 218 So.2d 428 (Miss.1969) (exceeding a municipality-posted speed limit is a violation of a “traffic control device” under section 63-3-305). Therefore a speed-limit sign would be a “traffic-control device,” whose “instruction” must be followed....
One final relevant statute allows the Transportation Commission to adopt “rules, regulations and ordinances for the control of and the policing of the traffic on the state highways,” the violation of which constitutes a misdemeanor. Miss.Code Ann. § 65-l-8(c) (Supp.1999). This delegation of general regulatory authority is understandable, indeed indispensable unless the legislature must enact every highway traffic rule.
One statute requires warning signs to be obeyed; another statute allows special rules to be created for construction zones and for “explicit instructions” regarding them to be posted [Miss.Code Ann. § 65-1-71 (Rev.1991) ]; still another provides for general traffic rules to be adopted. Here, the warning signs posted day and night provided for a 60 mile per hour speed limit. The presumption is that the direction given by these signs, namely, that a continuous lower speed limit existed, properly expressed controlling traffic regulations ....
To hold that section 63-3-516 is the only applicable statute, the rule that specific statutes control over general ones might be invoked. However, we hold that the specific statute does not apply. There is no rule of statutory construction that an inapplicable statute ever controls over an applicable one. There is a general speeding statute— one must obey posted speed limits. There is a specific statute that sets a $250 fine when a driver speeds in a work zone and workers are present. The “occupied work zone” speeding statute did not apply so the general one does. There simply is no specific over general issue.
The point could be altered into an argument that the specific statute is the exclusive one controlling work zone speeding. However, the statute does not state that “it is unlawful to exceed the posted work zone speed limits only if workers are present....” When the specific offense occurs, the specific penalty applies. Before the 1997 statute [section 63-3-516] created a new penalty for some work zone speeding, the general prohibition of ignoring traffic signs would have applied.
The 1997 statute only partly covered all the speeding that could occur in a construction zone. To make it go further than its precise wording would result in a repeal by implication of the general speeding statutes’ coverage as to the remainder. Few rules of construction are better established than that repeals by implication are disfavored. Associated Press v. Bost, 656 So.2d 113, 115 (Miss.1995). Here the repeal would be to exempt conduct that formerly was prohibited. Instead of a repeal, we apply this mandate:
When different code sections deal with the same subject matter, these sections are to be construed and interpreted not only so they harmonize with each other but also where they fit into the general and dominant policy of the particular system of which they are part.
Ashcraft v. Board of Supervisors of Hinds County, 204 Miss. 65, 36 So.2d 820 (1948), quoted in Andrews v. Waste Control, Inc., 409 So.2d 707, 713 (Miss.1982).
The obvious harmony with the “general and dominant policy” of highway safety regulations is that traffic control signs are to be obeyed. It is not just a policy; it is a statutory command. Miss. Code Ann. § 63-3-313 (Rev.1996). Harrison wants us to conclude that construction speed limits may be ignored when workers are not present. A driver presumably only knows whether a worker is present when he sees one, which means the warning signs will be ignored until that happens. We hope the worker will be seen in time. The higher fine in fact applies whenever a worker is present, whether observed or not. Moreover, hazards exist even when workers are gone, e.g., torn-up pavement; one lane of traffic on an interstate highway; heavy equipment, tools, and barricades in place; bumps, dips, and narrow bridges. It often is simply not safe to proceed at anything near the “normal speed” irrespective of workers. Yet no matter how significant the hazard, how indispensable to safety a driver’s slowing might be, Harrison in effect argues that the Transportation Commission is statutorily compelled to permit full speed ahead unless workers are present.
The decision regarding construction zone speeds is for the legislatively empowered agency to make. If lower limits only for the workday are appropriate, that decision can be reflected at day’s end by removing the signs or laying them face down. The dominant policy of highway safety calls on the agency and not the motorist to decide when the reasons for the speed limit apply.

Harrison, 1998-CA-01278-COA, 13-21.

¶ 43. The arguments raised in the present litigation reveal the distortions that can arise from a precedent that makes guesswork out of enforcing administrative agency regulations, especially ones for which proper notice has been posted by the agency. The Department of Transportation’s traffic control signs are supposed to control traffic. Traditionally, a violation of traffic rules may at times be excused if the driver proves necessity for the violation. Stodghill v. State, 892 So.2d 236, 238 (Miss.2005). Harrison was used by a party in this case to suggest that a violation of traffic rules may at times be excused unless the State proves necessity for the enforcement. Uncertainty naturally flows from a precedent that allows posted regulations to be voided by isolated and extraneous issues. I believe the precedent drove too far the concept of a specific criminal statute’s controlling over a general one when it declared a partial repeal of the general.

¶ 44. The continuing existence of the precedent inspires creation of broader error in statutory interpretation and in the authority of administrative agencies. I respectfully suggest that we should turn back from the road that Harrison marked.

GRIFFIS AND BARNES, JJ., JOIN THIS OPINION. LEE, P.J., JOINS THIS OPINION IN PART.

      . The posted speed limit on Highway 27 was fifty-five miles per hour.

      . Harrison also addressed whether police officers had probable cause to stop the defendant who was going sixty-seven to seventy miles per hour in a sixty mile per hour construction zone when no workers were present. Id. at 1135(¶ 3). The stop led to the officers finding 117 pounds of marijuana in the trunk of the defendant’s car. Id. at 1135(¶5). The court determined that, although the defendant was not in violation of Mississippi Code Annotated section 63-3-516(1), "the question of probable cause does not turn on an ultimate finding of guilt,” but on whether the officer had an objective reasonable basis for believing that a violation had occurred. Id. at 1138-39 (¶ 17, ¶ 21).

      . Perhaps instead, the only problem is that my perspective is skewed. I wrote the Court of Appeals opinion whose reasoning was rejected even while its result was affirmed by the higher court. Harrison v. State, 1998-CA-01278-COA (Miss.Ct.App. Feb. 8, 2000) (conviction affirmed by equally divided vote), aff'd 800 So.2d 1134 (Miss.2001).