author: EASLEY, Justice, DIAZ, Presiding Justice,

text:
    TOTAL TRANSPORTATION, INC. OF MISSISSIPPI and Protective Insurance Company v. Gerry Lynn SHORES, Widow and Dependent of Phillip Shores, Deceased.
    No. 2005-CT-01951-SCT.
    Supreme Court of Mississippi.
    Sept. 20, 2007.
    Rehearing Denied Nov. 29, 2007.

      Jeremy Lloyd Carlson, Jeffrey A. Walker, Jackson, Eve Gable, attorneys for appellants.
    Tina Lorraine Nicholson, Gulfport, attorney for appellee.
   EASLEY, Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Phillip Shores (Shores) and his wife, Lynn Shores (Lynn), were employed by Total Transportation, Inc., of Mississippi (Total) as an over-the-road trucking team. On January 16, 2003, the couple picked up a load in Sunnyside, Washington, and headed toward Jackson, Mississippi, to deliver it. While on the road, the Shoreses began having trouble with their truck and located a Petro station in Laramie, Wyoming, to have the truck repaired. Prior to reaching the Petro station, Lynn dropped off Shores at a Sinclair Fuel Center because he wanted to get away from the truck and get something to eat.

¶2. Shores had received approximately two hours of sleep in the preceding forty-eight hours and had not had anything to eat in almost twenty-four hours. He told Lynn to go back to the Petro station, repair the truck, and then return to get him. Although they did not specifically discuss where to meet after Lynn dropped off Shores, Lynn testified that it was their custom to meet back wherever they separated. Shores logged off-duty and entered the convenience store. Lynn also testified that they had been arguing and needed some time apart.

¶ 3. Lynn drove the truck back to the Petro station for the needed repairs. She returned to the Sinclair Fuel Station about an hour and half later, around 6:00 p.m., went into the convenience store, but did not see her husband. The Sinclair Fuel Center was an U-shaped complex consisting of a convenience store, a motel, a liquor store, and Foster’s Bar. There was no sign outside the complex, to indicate that there was a bar inside, so Lynn never looked for her husband there.

¶ 4. Lynn drove around the Sinclair Fuel Center several times in an attempt to locate Shores. Lynn then drove back to the Petro and Pilot stations twice before parking the truck around 10:00 p.m. in the emergency lane on the exit ramp where she originally had dropped off Shores. She had a clear view of the Sinclair Fuel Station from that position. She stayed in the truck throughout the night, but she never made contact with her husband.

5. While waiting for her husband, Lynn checked to see if he had made an airline or bus reservation and called Total’s dispatcher to see if he had checked in with Total, with no success. Lynn testified that, while waiting for Shores, she thought he might have been angry enough with Total to quit. Shores had anger management problems and had quit prior trucking jobs after only short employment periods. Lynn left Laramie the next day around 6:00 a.m., headed for Jackson, Mississippi.

¶ 6. It was later determined that Shores had entered Foster’s Bar around 3:00 p.m. on January 17 and had stayed until 2:00 a.m. when the bar closed. During that time, Shores had eaten a meal, consumed several beers, and shot pool with several other patrons. The bartender later told the local police that Shores “did buy a large amount of alcohol for himself and others.” According to several witnesses, he had appeared intoxicated while at the bar. Electronic records showed that he had withdrawn almost the Shoreses’ entire paycheck of more than $400 from an automatic teller machine.

¶ 7. Christopher Shandy later testified in a guilty plea to kidnaping, attempted aggravated robbery and second degree murder in the Second Judicial District of Albany County, Wyoming, that he arrived at the bar around 11:00 p.m. and, at some point, played pool with Shores. After the bar closed at 2:00 a.m., Shores asked Shandy for a ride to the Petro station. In the parking lot, Shandy pulled a gun on Shores, ordered him to get in the car, and drove toward the Petro station. Shores offered Shandy all of his money, but Shandy told him to put it back in his wallet. He said he wanted to drop off Shores a considerable distance away from the Petro station to have plenty of time to flee the scene before Shores could call the police.

¶ 8. Shandy said Shores became nervous when they passed the Petro station and attempted to jump from the moving vehicle. Shandy admitted shooting Shores in the back as he exited the vehicle. Shores bled to death after jumping a fence and landing in a ditch a few hundred feet from the Petro station. Shores’s autopsy revealed that his blood alcohol content (BAC) was 0.137 grams per deciliter. He had $170 in his wallet and less than $20 in his pocket.

¶ 9. Total had an alcohol policy which prohibited drivers from consuming alcohol while on duty performing safety-sensitive functions and for a period of four hours before going on duty. The policy prohibited an employee from reporting for duty with a BAC of .04 percent or greater. An employee’s violation of these policies required mandatory termination.

¶ 10. Lynn eventually filed suit against Total and its insurance carrier, seeking workers’ compensation benefits for the death of her husband. The administrative law judge (ALJ) entered an order awarding death benefits to Lynn. Total appealed the ALJ’s ruling to the Mississippi Workers’ Compensation Commission (Commission), which affirmed the ALJ’s ruling without comment. Upon judicial review, the Circuit Court of Rankin County, the Honorable Samac Richardson presiding, affirmed the Commission’s decision.

¶ 11. The Court of Appeals considered the following two assignments of error:

I. Whether the Commission erred in holding that Shores was acting in the course and scope of his employment when he was killed.
II. Whether the Commission erred in holding that the third-party assault on Shores was directed against him because of his employment.

¶ 12. A divided Court of Appeals (6-4) reversed the judgment of the circuit court. The dissent concluded that Shores’s death was compensable as his death arose out of and in the course and scope of his employment. Total Transp., Inc., 968 So.2d 456, 473, 2006 WL 3361833, 2006 Miss.App. LEXIS 874, at * 50. The dissent reasoned, “a traveling employee remains in the course of employment during breaks to stop and eat, such activity being reasonably incidental to employment as a traveling employee.” Id. at 467, 2006 Miss.App. LEXIS 874, at 25-26.

¶ 13. However, the majority stated:

... Mr. Shores chose to drink large amounts of alcohol and only left the bar because it was closing. The fact that Mr. Shores remained at the bar for eleven hours, his drinking, his state of mind prior to leaving the truck and even prior employment history clearly indicate that Mr. Shores was not acting reasonably incident to employment. This was no mere dinner break.

Total Transp., Inc., at 462, 2006 Miss.App. LEXIS 874, at * 11-12. The majority concluded that, “[t]o grant compensation in this case would be contrary to public policy and would effectively erase the ‘because of his employment’ requirement from the Mississippi Workers’ Compensation Act.” Id. at 466, 2006 Miss.App. LEXIS 874, at 21.

¶ 14. Lynn filed a successful writ of certiorari with this Court. We now consider whether the Court of Appeals erred by finding that the Commission was wrong to hold that Shores’s death was compensa-ble. Finding that the Court of Appeals did not err in its judgment, we affirm the judgment of the Court of Appeals reversing the trial court.

STANDARD OF REVIEW

¶ 15. The standard of review in workers’ compensation cases is limited and deferential:

The substantial evidence test is used. See Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991). The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim. This Court will overturn the Workers’ Compensation Commission decision only for an error of law or an unsupported finding of fact. Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Reversal is proper only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992).

Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (Miss.2003) (emphasis added). In Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997), the Court stated:

The function of the circuit court (and of this Court) on appeal from rulings of the Workers’ Compensation Commission is to determine whether there exists a quantum of credible evidence which supports the decision of the Commission. It is not the role of the circuit courts to determine where the preponderance of the evidence lies when the evidence is conflicting, given that it is presumed that the Commission, as trier of fact, has previously determined which evidence is credible and which is not. Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293 (Miss.1990).

DISCUSSION

¶ 16. We first address Total’s argument that the Commission erred in holding that the third-party assault on Shores was directed against him “because of’ his employment. Total asserts that the Court of Appeals was correct in its decision finding that the Commission improperly applied the relevant law to the question of whether Shores’s death, which was caused by a third-party intentional act, was directed against him “because of’ his employment. We agree.

¶ 17. When an employee’s injury or death was caused by a third-party intentional act, it must be shown that such willful act was directed against the employee “because of his employment while so employed and working on the job.... ” Miss.Code Ann. § 71 — 3—3(b) (Rev.2000) (emphasis added). “The words ‘because of,’ like other broadly-construed words of causation with[in] the act, such as ‘arising out of,’ express the necessity of a nexus between the injury and employment.” Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 890-91 (Miss.1980). “The base line is simply a rational connection of employment and injury.” Id. at 891.

¶ 18. The Court held:

We are of the opinion the following facts make this ease one of first impression, to be decided as such: (1) no personal vendetta arising from the claimant’s activities motivated his injury; (2) the claimant violated no instructions concerning the manner in which the work was to be earned out; and (3) the stop by the roadside upon being nagged down involved no signifícant deviation either specially or temporally from the delivery route. We think an employer may reasonably foresee that his traveling employee will stop to aid a distressed motorist when implored to do so. Such conduct is an acknowledged incident of being on the road.

Big “2” Engine Rebuilders, 379 So.2d at 891 (emphasis added).

¶ 19. However, there must be a direct connection between the employment and the injury, more than “the merely furnishing of an opportunity” to the third party to commit the assault. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294, 299 (1952). As such, the employment must be a “contributing cause” of the willful act of the third party, as opposed to merely being a “contributing cause” of the employee being present at the place where the assault occurred. Id. at 299-300. In Watts, the Court examined whether an employee injured by a third party was injured because of his employment. Id. at 302. Watts was employed as a route man delivering and picking up laundry. Watts began an affair with Garrett, a married woman. On the day in question, when Watts came to the Gar-retts’ home to pick up the laundry and dry cleaning, Garrett’s husband was at home. When Watts refused to leave, Garrett’s husband shot and killed him.

¶ 20. The Court determined that Watts’s employment was not the contributing cause of the willful shooting, stating:

There is no direct testimony in the record to show that Watts’[s] employment was in any manner a contributing cause to his injury. He did not become involved in a quarrel with Garrett over the receipt or delivery of laundry, or the collection of a laundry bill, or because of any dissatisfaction with the service rendered by the Brookhaven Steam Laundry, or by Watts as its employee. Garrett and Watts had [sic] no sharp words concerning the quality of service that Watts had rendered in the handling of the laundry for Garrett and his family. So far as this record shows Garrett killed Watts because Garrett believed that Watts was having improper relations with his wife. The fact that Watts was an employee of the Brookhaven Steam Laundry was a contributing cause of Watts’[s] being at the Garrett home that day, but it was in no sense a contributing cause of the willful shooting of Watts by Garrett.

Id. at 299 (emphasis added).

¶ 21. In Green v. Glen Oaks Nursing Ctr., 722 So.2d 147, 149-50 (Miss.Ct.App. 1998), the Court of Appeals provided an excellent analysis of whether an injury is compensable where it arose as a result of a risk created by employment conditions, applying the law discussed above. The Court of Appeals stated:

Pursuant to section 71-3-7. of the Mississippi Code Annotated (Supp.1990), an employer is required to. compensate an employee for any disability as a result of an injury “arising out of and in the course of employment.” A compensable injury includes “an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job.... ” Id., § 71-3-3 (Supp. 1991). In the past, our supreme court has ruled that a casé such as this presents a question of fact for the Mississippi Workers’ Compensation Commission as to whether the employee was assaulted because of her employment and while employed and working on the job. Barry v. Sanders, 211 Miss. 656, 661, 52 So.2d 493, 495 (1951). On the other hand, our supreme court has also held that where, as in this case, there is no dispute as to the facts óf a case, the issues to be decided become questions of law. Wilson v. International Paper Co., 235 Miss. 153, 157, 108 So.2d 554, 555 (1959); Dependents of Roberts v. Holiday Parks, Inc., 260 So.2d 476, 479 (Miss.1972). We will review this case de novo.
This action involves injuries suffered by an employee which were caused by the intentional acts of an unknown third-party assailant. Our supreme court has stated “injuries caused by third party intentional torts should be compensated whenever it can be fairly said that they occurred ‘because of the employment.” Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 892 (Miss.1980). Big “2” analyzes the statutory language of section 71-3-7 (“arising out of and in the course of employment”) and concludes that in order for a claim to be compen-sable, there must be some causal connection between the employment and the injury. This causation may be minimal or even “reasonably incidental” to the employment, including “such personal pursuits as cleaning teeth, smoking and procuring tobacco, and going to the telephone.” Id. at 890 (citing Dunn, MISSISSIPPI WORKMEN’S COMPENSATION, § 178 (2d Ed.1967)). On the other hand, where the intentional tort is committed as the result of a personal vendetta, no causal connection exists, since such an act can as easily be committed in the workplace as anywhere else. See Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 636, 55 So.2d 381 (1951) (where irate husband killed an employee laundry man, suspecting him to be his wife’s paramour); Ellis v. Rose Oil Co., 190 So.2d 450 (Miss.1966) (where employee’s death resulted from his affair with a married woman). As stated by our supreme, court, “risks associated with such escapades cannot reasonably be viewed as risks associated with employment.” Big “2” Engine Rebuilders, 379 So.2d at 891.

Green, 722 So.2d at 149-150.

¶ 22. Here, the ALJ reasoned that Shores fell within a “zone of special danger.” The ALJ determined that the “because of’ requirement merely expressed the need for a causal nexus between the injury and employment, a nexus which was established by Shores’s risk of assault, “street risk,” which was incidental to his employment as a traveling employee far away from home.

¶ 23. The Court of Appeals addressed the ALJ’s application of a theory of a “zone of special danger,” stating:

The judge invoked the “positional risk doctrine” and held that Shores was killed because of his employment based on “the fact that the risk of assault was a street risk which was incidental to his employment as a traveling employee far away from home.” The “positional risk doctrine” was defined in Johnson v. Roundtree, 406 So.2d 810 (Miss.1981), as follows:
Since every jurisdiction now accepts, at the minimum, the principle that a harm is compensable if its risk is increased by the employment, the clearest ground of compensability in the assault category is a showing that the particular character of claimant’s job or because of the special liability to assault associated with the environment in which he must work. Among the particular jobs that have, for self-evident reasons, been held to subject an employee to a special risk of assault are ... those jobs that specially expose the employee to lawless or irresponsible members of the public, ... or that merely subject the employee to increased and indiscriminate contact with the public, such as the jobs of streetcar conductor, bus driver, taxi driver or hotel manager.
Roundtree, 406 So.2d at 811 n. 1 (quoting 1 Larson’s Workmen’s Compensation Law, § 11.11(a) (1978)).
In Johnson, the supreme court held that the death of Roundtree, a taxicab driver who was shot in the head while picking up a fare, was compensable. Id. The court found a rational connection between Roundtree’s employment and his death based on the positional risk doctrine:
Roundtree was exposed to the hazard of robbery or assault because of the nature of his employment; and ... his death would not have occurred except for the fact that his employment conditions placed Roundtree in the position where he was injured by a' force neither personal to him nor associated with his employment.

Id. at 810-11.

A few other Mississippi cases have employed a rule similar to the “positional risk doctrine” in cases involving third party intentional torts....
This Court applied the aforementioned rule in Green v. Glen Oaks Nursing Ctr., 722 So.2d 147 (Miss.Ct.App.1998). Green was a nurse who worked the night shift from 11:00 p.m. to 7:00 a.m. at the Glen Oaks Nursing Center. She was forced to.park in a secluded parking lot without security guards and one night she was assaulted and robbed in the parking lot by an unknown assailant. This Court held that “the injury to Green arose as a result of a risk created by employment conditions.” Id. at 150. In a similar case, Adams v. Lemuria, Inc., 738 So.2d 295 (Miss.Ct.App.1999), this Court held that the injuries sustained by an employee, who was injured when she jumped from her car after being abducted in the parking lot of her employer, arose as a result of a risk created by employment conditions. Id. at 298.
However, in Sanderson Farms, Inc. v. Jackson, 911 So.2d 985 (Miss.Ct.App. 2005), Jackson was hit over the head at work with a two-by-four by a co-worker from whom he had demanded repayment of a ten dollar loan. This Court held that the Sanderson Farms chicken plant was not a “zone of danger” and that “the risk to Jackson in this case arose solely from his personal disagreement with Allen concerning the ten dollar loan.” Id. at 991.

Total Transp., Inc., 968 So.2d at 465, 2006 Miss.App. LEXIS 874, at * 15-20.

¶24. We find that the Commission’s decision did not properly apply the relevant law to the facts of this case. Here, as the Court of Appeals stated:

... Shores’s employment did not require him to be in Foster’s Bar at 2:00 a.m. His employment required him to visit truck stops, not the bars located in or near truck stops.
Shores’s death did not originate with his personal indiscretions, but the extended escapade he went on at Foster’s Bar exposed him to risks that cannot reasonably be viewed as being associated with the trucking business or arising out of or in the course of his employment.

Total Transp., Inc., 968 So. 2d at 466, 2006 MissApp. LEXIS 874, at * 20-21 (emphasis added).

¶ 25. Shores entered the bar around 3:00 p.m. and stayed there for approximately eleven hours. Although he did eat, Mr. Shores stayed at the bar in order to drink and play pool. He withdrew his weekly paycheck of more than $ 400 to buy drinks for himself and other patrons. Witnesses described Shores as intoxicated. Lynn testified that she looked for Shores from approximately 6:00 p.m. until 10:00 p.m. before she finally parked where she dropped him off, waiting there until 6:00 a.m.

¶26. Lynn testified that she thought Shores may have been so angry that he quit, and she called the dispatcher to see if Shores' had called and quit. She testified that Shores had worked for six trucking companies from October 2000 until they began working for Total in mid-2002. Shores’s anger management problem was the reason for his termination from these prior trucking jobs, including threatening his employer, threatening to wreck his truck, abandoning his truck, and throwing a rock at his truck, breaking the windshield. Prior to exiting the truck, Mr. Shores was angry with his wife and with Total because of problems and delays in repairing the truck.

¶27. The Court of Appeals correctly determined that the Commission expanded the relevant law by finding that Shores’s death, which was caused by a third-party intentional act, was directed against him because of his employment and therefore compensable. We affirm the judgment of the Court of Appeals finding that Shores’s death was not compensable. Since we find that Shores’s death was not a result of his employment with Total, and therefore not compensable under workers’ compensation law, this assignment of error is dispositive of this appeal.

CONCLUSION

¶ 28. We find that the Commission improperly applied the law by holding that Shores’s death was compensable. Therefore, the judgment of the Court of Appeals, which reversed the trial court’s and the Commission’s decision and rendered judgment in favor of Total, is affirmed, and the judgment of the Rankin County Circuit Court is reversed and rendered.

¶ 29. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND IN RESULT. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Presiding Justice,

Dissenting:

¶ 30. Mississippi Code Section 71-3-7 states that “compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.” Miss. Code. Ann. § 71-3-7 (Rev.2000) (emphasis supplied). Accordingly, I must respectfully dissent.

¶ 31. As the majority notes, the function of this Court on appeal from rulings of the Workers’ Compensation Commission is to determine whether credible evidence exists which supports the decision of the Commission. The Commission found that Shores’s death arose out of and in the course and scope of his employment and that the injury was directed against him because of his employment. This Court will overturn the Workers’ Compensation Commission decision only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992).

¶ 32. The majority cites Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294 (1952), for its finding that the Commission’s order was based erroneous application of law. In Brookhaven, an employee was killed while delivering laundry to a customer’s home. Id. While his employment required Watts to be in the customer’s home that day, it was not a contributing cause to his death. Id. Watts was killed by the homeowner because Watts was having improper relations with the homeowner’s wife. Id., 214 Miss, at 635, 55 So.2d 381. The majority compares Watts with Shores, finding that, although their employment contributed to their being in the places they were killed, it was their egregious conduct that caused their deaths. “[Wjhere, the intentional tort is committed as the result of a personal vendetta, no causal connection exists, since such an act can as easily be committed in the workplace as anywhere else.” Green v. Glen Oaks Nursing Ctr., 722 So.2d 147, 149 (Miss.Ct.App.1998) (citing Brookhaven, 214 Miss. 569, 636, 55 So.2d 381 (1952)).

' ¶ 33. The majority fails to acknowledge the distinction between Shores and Watts. Although Shores’s drinking constituted negligent conduct, a causal connection between his employment and injury remains, going beyond “the mere furnishing of an opportunity” as required for compensation. Brookhaven, 214 Miss. at 635, 55 So.2d 381. Undeniably, Shores was killed at random by a “lawless [,] irresponsible member[ ] of the public,” not as a result of a personal vendetta. Johnson v. Roundtree, 406 So.2d 810, 811, note 1 (Miss.1981). Shores was exposed to the hazard of robbery and assault because of the nature of his employment. This is supported by the testimony of other truck drivers. Lynn Shores testified that she had been instructed by Total not to exit the truck at a truck stop after dark because truckers had been robbed at fuel stations. She also testified that truckers are preyed upon because they must carry their money and personal items with them on trips. For these reasons, it is reasonably foreseeable for truckers such as Shores to be preyed upon at various stops by opportunistic criminals. See Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888 (Miss.1980) (holding that traveling salesman was entitled to compensation resulting from roadside assault).

¶ 34. It is important to note that Shores remained where his wife and driving partner left him for eleven hours. The majority bases its opinion on the fact that Shores’s employment did not require him to be in Foster’s Bar at 2:00 a.m. However, Shores remained at the place his partner left him. When his partner did not return, Shores eventually tried to get back to the Petro station where he believed the truck was being repaired, and in doing so, was killed.

¶ 35. The majority construes the standard governing compensable injuries too narrowly; the applicable law requires only that Shores’s employment contributed to, aggravated, or accelerated the injury, in this case his death. The sole issue before the Workers’ Compensation Commission was whether Shores’s death met the definition of a compensable injury under Section Tl — 3—3(b), which provides in part:

Injury meaning accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an outward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner ... this definition ... also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job ...

Miss.Code Ann. § 71-3-3(b) (Rev.2000). Shores’s employment significantly contributed to his death.

¶ 36. Since Shores consumed alcohol before his death, the majority emphasizes the issue of whether Shores was considered employed with Total at the time of his death. Although Shores was in violation of the regulations set forth by Total prohibiting the consumption of alcohol, it does not preclude him from compensation.

¶ 37. In Tyson Foods, Inc. v. Hilliard, 772 So.2d 1103, 1105 (Miss.Ct.App.2000), the Court of Appeals addressed the effect of an employee’s intoxication at the time of his injury on the compensability of his injury, which was otherwise work-related. Regardless of whether Shores’s intoxication contributed to his death, such conduct is not an issue in whether benefits for the injury arising on the job are payable. Id. Should such conduct be discovered before it causes injury, then termination or other discipline of the employee may be appropriate. Total Transp., Inc. of Mississippi v. Shores, 968 So.2d 456, 473, 2006 Miss.App. LEXIS 894, 48 (Miss.App.2006) (Chandler, J., dissenting).

¶ 38. Finally, this Court has held that the Workers’ Compensation scheme mandates that “doubtful cases must be compensated.” Big “2” Engine Rebuilders, 379 So.2d at 889.

¶ 39. For the reasons above, I respectfully dissent from the majority. I would reverse the Court of Appeals and the trial court finding that Shores’s death was not compensable.

GRAVES, J., JOINS THIS OPINION.

      . The following facts and procedural history are taken largely from the Court of Appeals. Total Transp., Inc. v. Shores, 968 So.2d 456, 459-60, 2006 Miss.App. LEXIS 874, 1-5 (Miss.Ct.App.2006).

      . The Mississippi Trucking Association (MTA) also filed an Amicus Curiae brief on the direct appeal, requesting that the Commission’s and the circuit court's decisions be reversed. The MTA asserts that the Commission erred in its holding that Shores’s death was compensable within the provisions of the Mississippi Workers’ Compensation Act. The MTA argues that Shores's death resulted from the willful act of a third party and was not inflicted 'because of' the Decedent's employment.

      . In Big "2” Engine Rebuilders, the claimant worked as a route salesman for the employer, delivering products and taking orders for parts and engine repairs. Big "2” Engine Rebuilders, 379 So.2d at 889. While en route to a garage, the claimant was flagged down by a disabled motorist. Id. The motorist struck the claimant in the head, and the claimant sought workmen's compensation benefits for his injuries. Id. In its reasoning, the Court focused on the humanitarian aspect of the claimant assisting a stranded motorist, stating: "We think the present claimant’s injury resulted from a humanitarian act which was literally thrown into his path because of his employment." Id. at 892 (emphasis added).

      . The Court of Appeals held that Green's injury was compensable under workers' compensation law. Green, 722 So.2d at 150. The facts in Green were as follows:
      She [Green] was required by her employer (1) to report for her work shift ten to twenty minutes early in order to facilitate an efficient shift change, and (2) to park in the rear or side parking lots of the Nursing Center building in order to allow parking in the front of the building for visitors.
      Green arrived for work ... and parked her vehicle in her usual parking space in the rear parking lot of the Nursing Center, all in accordance with her employer’s instructions. Her parking space was located twenty-five to thirty feet from the back door of the building.
      When Green got out of her vehicle, she was accosted by, a, man with a handgun who demanded that she surrender her purse. When she did so, she was struck on the head with the handgun and fell to the ground.

        Green, 722 So.2d at 148 (emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    E.I. DUPONT DE NEMOURS AND COMPANY v. Glen STRONG and Connie Strong.
    No. 2006-CA-01005-SCT.
    Supreme Court of Mississippi.
    Oct. 18, 2007.

      John G. Corlew, Deborah Deroche Ku-chler, Robert D. Gholson, attorneys for appellant.
    Alben N. Hopkins, Allen M. Stewart, James D. Piel, Stephanie Brooks Lesmes, attorneys for appellees.
    EN BANC.
   EASLEY, Justice,

for the Court.

¶ 1. Glen Strong (Strong) and his wife, Connie, collectively “the Strongs,” were among thirty-seven plaintiffs who filed suit in the Circuit Court of Jones County, Mississippi, Second Judicial District, against E.I. DuPont de Nemours Corporation (DuPont) in December 2002, in the matter of Govan v. DuPont, et al., Cause No. 2002-376-CV12. The Strongs did not have an individual complaint. At the same time, a larger group of approximately 2,200 plaintiffs filed a separate complaint against DuPont in the matter of Lizana v. DuPont, et al., Cause No. 2002-377-CV12, alleging similar injuries as in the Govan complaint. In fact, the only major difference in the two complaints was that the plaintiffs’ names were different.

¶ 2. Two Mississippi residents also were named as defendants in the complaints, namely Waste Management of Mississippi and G.B. Boots Smith Corporation, a Laurel trucking company used to fix venue in Jones County, Mississippi. DuPont immediately removed the Govan and Lizana cases to federal court. DuPont alleged the fraudulent joinder of Waste Management and Boots Smith. The federal court remanded the Govan and Lizana cases to the trial court in February 2004.

¶ 3. In July 2004, the trial court entered its initial case management order (CMO), which set an initial trial date of March 30, 2005, for the first plaintiffs case. The CMO also established a procedure to narrow a smaller subset of plaintiffs from the Govan and Lizana cases for discovery requirements and identification of the initial trial plaintiffs. The CMO specified that the plaintiffs and the defendants had to select three preliminary trial plaintiffs each, whose cases would be tried one at a time in six different trials. This was done to allow discovery to proceed. However, the plaintiffs did not have to disclose which plaintiff would be tried first.

¶ 4. On February 15, 2005, the plaintiffs designated the Strongs as the plaintiffs to be tried on March 30, 2005. On February 24, 2005, the plaintiffs voluntarily dismissed Waste Management as a defendant. DuPont unsuccessfully removed the case to federal court on the grounds of fraudulent joinder. Thereafter, Boots Smith filed for bankruptcy. The plaintiffs sought to sever Boots Smith due to the bankruptcy. DuPont again removed the case to federal court. The federal court found that the federal bankruptcy court had jurisdiction, but remanded the case on April 12, 2005, to the trial court as matter of discretionary abstention. The trial court rescheduled the Strongs’ trial for August 17, 2005.

¶ 5. The jury awarded Strong a $14,000,000 verdict in compensatory damages, and Strong’s wife was awarded $1,500,000 in loss-of-consortium damages. Therefore, the jury’s verdict for the Strongs totaled $15,500,000. The trial court found sufficient evidence to submit punitive damages to the jury. However, the jury was unable to agree upon punitive damages, and the trial court granted a mistrial as to the punitive damages. The trial court entered a judgment for the jury’s $15,500,000 verdict, plus interest accruing from the date of the verdict. DuPont now appeals to this Court.

FACTS

¶ 6. According to the record, Strong suffered from a long list of chronic health conditions unrelated to the multiple myelo-ma that he alleges was caused by DuPont. Strong had coronary artery disease, mild congestive heart failure, arrhythmia, obstructive lung disease, and was a smoker.

¶ 7. Strong was diagnosed with multiple myeloma in 1998. He received treatment at M.D. Anderson Medical Center, receiving extensive chemotherapy and a bone marrow transplant. Strong alleges that since the diagnosis in 1998 with multiple myeloma, he has not had a pain-free day, and he has not had intimate relations with his wife. The multiple myeloma reoccurred in 2000, and Strong was advised that he did not have long to live. Strong received treatment at M.D. Anderson, again receiving extensive chemotherapy and a bone marrow transplant. Since receiving the second transplant, Strong also suffered two heart attacks, one in 2003 and the other in 2004, both unrelated to the multiple myeloma.

¶ 8. Dr. Sergio Giralt, Strong’s doctor at ■ M.D. Anderson, testified that Strong responded well to treatment and had a relatively small chance of the multiple myeloma reoccurring. Dr. Giralt could not testify as to what caused Strong’s multiple myeloma, stating in his deposition testimony that multiple myeloma has no known cause. Dr. Giralt stated that he would defer to an epidemiologist or toxicologist as to the cause. In his affidavit introduced during the trial, he stated that he had never undertaken any research as to the causation of multiple myeloma. He testified that there was no cure for multiple myeloma. However, Dr. Giralt’s examination of Strong, weeks before trial, revealed that he was in complete remission. Further, Strong’s doctor testified that Strong had a greater likelihood of dying from one of his other health conditions unrelated to multiple myeloma than from multiple myeloma.

¶ 9. DuPont has operated a plant in Harrison County, Mississippi, in DeLisle on the St. Louis Bay since 1979. DuPont’s Harrison County plant produces titanium dioxide, which is a bright pigment used in paints, plastics, paper, and other products. The Strongs live in Bay St. Louis, Mississippi, approximately five miles from the DuPont plant.

DISCUSSION

¶ 10. On appeal, DuPont raises various assignments of error that it contends merit reversal of the judgment as a result of trial court error.

I. Striking DuPont’s experts.

¶ 11. This appeal follows a laborious and highly contentious discovery process during which the trial court struck nine of DuPont’s witnesses, including the majority of its designated experts. The trial court determined that “based upon the record, the history of abuses in this ease, and pursuant to Miss. R. Civ. P. 37(b)(2), 37(e), Rule 11 and the court’s inherent powers to impose sanctions on those who abuse the Mississippi Rules of Civil Procedure, the Court finds that DuPont has indeed abused the Mississippi Rules of Civil Procedure.”

¶ 12. In its order in cause number 2005-M-01583-SCT dated August 16, 2005, this Court already ruled on DuPont’s emergency petition for interlocutory appeal and motion for stay regarding the trial court’s ruling to strike its experts, stating:

Petitioner seeks relief from the trial court’s order striking certain report and fact witnesses from participation in the trial scheduled for August 17, 2005. The Court finds that the trial court granted the motion to strike these witnesses as a sanction for petitioner’s prior abuse of the discovery process. The Court therefore finds that the emergency petition for interlocutory appeal and motion for stay should be denied.

(Emphasis added). Under Mississippi Rule of Civil Procedure 37 and the inherent power of the trial court to protect the integrity of its process, the trial court has the broad authority to impose sanctions for abuse-of-discovery violations. While the striking of DuPont’s expert witnesses is an extreme measure, we find that the trial court acted within its discretion to do so. See Miss. Farm Bureau Mut. Ins. Co. v. Parker, 921 So.2d 260, 265 (Miss.2005).

¶ 13. In Parker, the Court stated:

Our trial judges are charged with this responsibility and are in a much better position to resolve all pre-trial issues, including discovery, and it is not, and should not, be part of our mandated appellate review, to resolve such issues .... Our trial judges are likewise in a much better position to decide which parties and/or lawyers need to be sanctioned for their behavior, and our trial judges should unhesitatingly exercise this inherent power and authority.

Here, we find that the trial court properly exercised its authority to impose sanctions for abuse-of-discovery violations.

II. Admitting affidavit testimony.

¶ 14. Over DuPont’s objections, the trial court admitted the affidavits of Strong’s treating physicians, Dr. Sergio Giralt and Dr. Donna Weber, several days after the trial already had began. DuPont contends that the introduction of the affidavits from Drs. Giralt and Weber was improper and highly prejudicial to its defense of lack of causation. DuPont asserts these affidavits altered Drs. Giralt’s and Weber’s prior deposition testimony, which was admitted into evidence. These affidavits also were allowed into evidence and available for review by the jury during its deliberations.

¶ 15. In their depositions, Drs. Giralt and Weber testified that there are no known causes of multiple myeloma. Drs. Giralt and Weber specialized in the treatment of multiple myeloma, devoting half of their practice to its treatment. In the affidavits, Drs. Giralt and Weber altered their testimony to state that they were not experts in the causation of Strong’s multiple myeloma, had no opinion as to the cause of multiple myeloma, and specialized only in the treatment of multiple myeloma.

¶ 16. The Strongs argued that the catch-all provision, Mississippi Rule of Evidence 804(b)(5), allows the admission of the affidavits into evidence. First, Mississippi Rule of Evidence 804(b)(5) requires that the declarant be determined to be unavailable as discussed above. Second, Mississippi Rule of Evidence 804(b)(5) further specifically requires:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if 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, including the name and address of the declarant.

¶ 17. The affidavits from Drs. Giralt and Weber, which altered their deposition testimony, clearly were not furnished to DuPont sufficiently in advance of the trial to provide DuPont with a fair opportunity to prepare to meet the affidavits. Nor did they afford DuPont notice of their intention to offer the statement and the particulars of the affidavits. See M.R.E. 804(b)(5). We agree with DuPont’s assertion that the introduction of the affidavits from Drs. Giralt and Weber was improper and highly prejudicial to its defense of lack of causation. The affidavits were used by the Strongs to alter the deposition testimony the doctors provided. The assertion that the affidavits were not introduced for that purpose is simply incorrect.

¶ 18. These affidavits were never furnished to DuPont as required in Mississippi Rule of Evidence 804(b)(5). The rules of evidence are clear that the use of affidavits in this context is impermissible. The Strongs attempted, several days into trial, to use affidavits to tailor the doctors’ deposition testimony, thereby adversely affecting a substantial right of DuPont to have sufficient advance notice of the. information contained in the affidavits before trial. See Fitch v. Valentine, 959 So.2d 1012 (Miss.2007). Accordingly, we find that the trial court erred in admitting the affidavits from Drs. Giralt and Weber.

III. Plaintiffs’ experts and witnesses.

A. James Tarr.

¶ 19. James N. Tarr, Plaintiffs’ air modeling expert, was allowed to testify despite numerous contemporaneous objections by DuPont. Tarr testified that in general, corporations act to intimidate and deceive regulatory agencies. DuPont objected that the testimony did not apply specifically to DuPont, and was improper and should be struck. DuPont also sought a mistrial based on the series of contemporaneous objections. Tarr stated:

[T]he people who are what I call in the trenches of the regulatory agencies tend to be young, inexperienced, and sometimes they can be intimidated by the power that they perceive that a major corporation like DuPont might bring to bear if they didn’t give DuPont what they want.

(Emphasis added),

• ¶ 20. Tarr’s testimony was not based on DuPont’s dealings with any regulatory agency. As DuPont stated in its motion for a mistrial, Tarr speculated about the interaction between a hypothetical company and a hypothetical agency. Tarr’s testimony was not specific as to Mississippi, as to DuPont’s plant in Mississippi, or as to DuPont.

¶ 21. The comments to Mississippi Rule of Evidence 702, which applies to testimony by experts, state, “[t]he use of the hypothetical question has been justly criticized.” Here, Tarr’s testimony was as to hypothetical regulatory violations by DuPont or DuPont’s employees. It was improper to allow testimony lumping DuPont, based on its size, into a hypothetical with other large companies that may have a history of intimidating and deceiving regulatory agencies. From Tarr’s line of testimony, the jury easily could have been misled into believing that DuPont was guilty of covering up alleged regulatory violations. Under a Rule 403 balancing test, Tarr’s testimony was more prejudicial to DuPont than probative. See M.R.E. 403. There exists a real danger that the testimony would unfairly prejudice DuPont and mislead the jury with the accusations of hypothetical regulatory violations by DuPont.

¶ 22. On remand, the Strongs shall refrain from questioning Tarr as to his speculation about the interaction between a hypothetical company and a hypothetical governmental agency. This line of questioning shall be limited to Tarr’s knowledge, if any, of intimidating actions by DuPont or DuPont’s employees against a specific regulatory agency.

B. Victor Hawkins.

1. Hawkins’s Alleged Prior Injury.

¶ 23. Victor Hawkins, a former maintenance employee of DuPont’s DeLi-sle plant, testified that he had worked for DuPont for eighteen years, until November 25, 1997. Hawkins retired on long-term medical disability. Hawkins testified concerning his personal injury suffered in a maintenance-related accident. DuPont objected to Hawkins’s testimony regarding his injuries at DuPont’s DeLisle plant. Over DuPont’s objections as to relevance, Hawkins was allowed to testify that at some undisclosed date, he was injured when a tank fell and caused the side of the tank to explode.

¶ 24. Hawkins testified that he was burned on his arm and from his neck to his belt area by the hydrochloric acid that sprayed out of the tank. Hawkins said he was transported to the hospital and treated, being wrapped for burns. DuPont again logged its continuing objection to relevancy. Hawkins tried to testify as to what some undisclosed member of the plant’s safety personnel told him at the hospital. DuPont objected to the testimony as hearsay. Hawkins was allowed to testify that he was required to return to work, despite DuPont’s objection as to relevance. Hawkins testified that he returned to the plant to prevent his absence from being counted as a lost workday.

¶ 25. DuPont argues that Hawkins, a disgruntled former employee, had no legitimate purpose in testifying about his alleged injury at DuPont’s DeLisle plant. DuPont contends that Hawkins’s alleged injury was unrelated to claims asserted by the Strongs at trial, and that this testimony unfairly prejudiced the jury against it. “This Court has consistently ruled that ‘the relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.’ ” Buel v. Sims, 798 So.2d 425, 427 (Miss.2001) (quoting Martindale v. Wilbanks, 744 So.2d 252, 253 (Miss.1999)). “Unless the trial judge’s discretion is so abused as to be prejudicial to a party, this Court will not reverse his or her ruling.” Buel, 798 So.2d at 427.

¶ 26. Allowing this irrelevant line of testimony over DuPont’s repeated contemporaneous objections was error. See M.R.E. 402 (“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible”). (Emphasis added).

¶ 27. Therefore as such, we find that the trial court abused its discretion and erred in allowing this line of testimony concerning Hawkins’s personal, on-the-job injury while he was an employee at the DuPont DeLisle plant.

2. Hawkins’s Personal Observations of Alleged Safety Violations.

¶ 28. Hawkins further testified that he was aware during his time at DuPont that in its early days DuPont had released TICL and chlorine fumes into the air. He testified that DuPont undermined plant safety and was deceitful both to DuPont’s headquarters and to the Mississippi Department of Environmental Quality (MDEQ) about safety matters by preparing for their inspections. While DuPont on appeal finds this testimony to be objectionable, DuPont objected only to the relevancy of Hawkins’s knowledge of prior warning of a regulatory agency’s inspection and visit from the DuPont home office. Thereafter, DuPont objected only to Hawkins’s testifying about hearsay concerning what other people told him. Hawkins corrected these answers and testified to his account of events.

¶ 29. All of Hawkins’s testimony pertained to his personal knowledge. He testified about the cleaning procedures implemented prior to a visit from the DuPont home office. In addition, he testified to the procedures that he was assigned to perform prior to a regulatory visit from MDEQ. Hawkins corrected the objectionable hearsay testimony by testifying only concerning his personal knowledge and observations related to DuPont’s safety procedures at the DeLisle plant. DuPont never objected to or cross-examined Hawkins as to a timeline for the alleged safety violations with regard to visits from DuPont’s headquarters and/or MDEQ. Accordingly, this assignment of error is without merit.

IV. Jury instruction D-10.

¶ 30. DuPont requested the following jury instruction, D-10, which stated in pertinent part:

The court instructs the jury that in a toxic tort case such as this, the plaintiffs must prove by a preponderance of the credible evidence that the plaintiff was (1) exposed to a dioxin, dioxin-like compound and/or heavy, metal emitted by DuPont and (2) was exposed to such emission with sufficient frequency and regularity, and (3) was exposed in sufficient proximity to such emissions so that (4) it is more probable than not that exposure to DuPont’s emissions caused Glen Strong’s multiple myeloma.

¶ 31. DuPont argues that this Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757 (Miss.2005), adopted the “frequency, regularity, proximity” standard in toxic tort cases. DuPont is correct that this Court adopted this standard; however, the Court stated that it was adopted only for asbestos litigation.

¶ 32. In Gorman-Rupp Co., 908 So.2d at 754-57, this Court adopted the “frequency, regularity, proximity” standard as the correct test to be applied in asbestos litigation. The Court held:

Gorman asks this Court to adopt the “frequency, regularity, proximity” standard in Lohrmann v. Pittsburgh Coming Corp., 782 F.2d 1156 (4th Cir.1986), in the context of summary judgment for asbestos cases. In Lohrmann, the United States Court of Appeals for the Fourth Circuit affirmed the directed verdict entered by the United States District Court of Maryland at the close of the appellant’s case in favor of Ray-mark, Pittsburgh Corning, and Celotex. Id. at 1161. The court found there was “as a matter of law insufficient evidence to show the necessary element of causation between the use of their products and Lohrmann’s claim of asbestos.” Id. at 1162. The court reasoned:
As asbestos litigation has developed over the past decade, most plaintiffs sue every known manufacturer of asbestos products, and during the course of discovery some of the defendants are dismissed on motions for summary judgment because there has been no evidence of any contact with any of such defendants’ asbestos-containing products. Other defendants may be required to go to trial but succeed at the directed verdict stage. Some defendants settle prior to trial, and these are usually the defendants whose products have been most frequently identified by the plaintiff and his witnesses as having been used by the plaintiff or by others in his presence or working near him.
Lohrmann, 782 F.2d at 1162.
In Lohrmann, the district court found that “the plaintiff had not proved a reasonable probability of causation between the plaintiffs disease and the products manufactured by Raymark, Celotex, and Pittsburgh Corning.” The court concluded that the district court was correct in its ruling and the “use of the ‘frequency, regularity and proximity test’ was appropriate in determining whether the inferences raised by the testimony were within the range of reasonable probability so as to connect a defendant’s product to the plaintiffs disease process.” Id. at 1164. The court stated that the “frequency, regularity and proximity test” used by the district court in the context of asbestos eases was an application of the principle stated in Lovelace v. Sher-win-Williams Co., 681 F.2d 230 (4th Cir.1982). In Lovelace, the court discussed the quantum of circumstantial evidence necessary to support a finding of a causal connection and that the permissible inferences must be within the range of reasonable probability. Id. at 241. See Lohrmann, 782 F.2d at 1163.
We find that the “frequency, regularity, and proximity” test discussed herein is the correct test to be applied in asbestos litigation and is hereby adopted by this Court. Based on the record, Hall falls short of meeting this test. Hall failed to submit any evidence that demonstrated that he had any exposure to an asbestos-containing product attributable to Gorman.

Gorman-Rupp Co., 908 So.2d at 754-57 (emphasis added).

¶ 33. The Strongs argue that the “frequency, regularity, and proximity” standard is inapplicable in the context of environmental contamination litigation. The Strongs contend that the term “proximity” would easily confuse a jury into believing that the Strongs needed to be closer to the plant despite expert evidence of exposure. While we find that the trial court properly denied DuPont’s jury instruction D-10, we address this assignment of error to clarify that in Gorman-Rupp Co., this Court did not extend this standard beyond asbestos litigation. Therefore, we find that the trial court did not abuse its discretion in denying the proposed jury instruction, D-10.

CONCLUSION

¶ 34. Based on the cumulative error in the record before us, we reverse the judgment of the Circuit Court of Jones County, Mississippi, Second Judicial District, and remand this case to the circuit court for a new trial consistent with this opinion..

¶ 35. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., AND CARLSON, J., CONCUR. LAMAR, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.; JOINED IN PART BY RANDOLPH . AND LAMAR, JJ. DICKINSON, J., NOT PARTICIPATING.

RANDOLPH, Justice, concurring in part and in the result:

¶ 36. I concur with the Majority Opinion as to parts I., II., III.(B.),.and IV., and the result.

DIAZ, Presiding Justice,

dissenting:

1137. One would never know from reading the majority the basis of Strong’s claims against DuPont: that for years DuPont knowingly deposited tons of toxic material into the waters of Bay St. Louis; that according to the United States Environmental Protection Agency (EPA), the DeLisle plant is the second largest emitter of potentially-carcinogenie dioxins in the country; that DuPont was aware of the risks associated with human exposure to these toxins since at least 1983; and that Glen Strong incurred roughly $675,000 in medical bills for. treating his cancer which developed after living his entire life in close proximity to the plant and eating contaminated seafood from the bay. In light of these facts, and the thousands of pages of documentation supporting his claims, the “errors” found by the majority can hardly be deemed reversible. .

¶ 38. First, the majority finds that submission. of the one-and-a-half page affidavits from Strong’s treating physicians “altered their deposition testimony” and was “highly prejudicial” to DuPont. I fail to see how these affidavits altered the deposition testimony m any way, and if anything, the affidavits were helpful to DuPont’s defense. The doctors testified in their depositions that they had no opinion “as to whether or not dioxin exposure can cause multiple myeloma” and that they would defer to other scientists “who have made it their research interest to look into this in ways which are scientifically valid with respect to causation issues.” Likewise, the affidavits stated that the physicians “[did] not know the cause of Mr. Strong’s multiple myeloma, and [they] have never attempted to determine the cause or form any opinion as to the cause of his disease. [Their] sole purpose is to treat Mr. Strong’s multiple myeloma, not to reach opinions about its cause.” The affidavits were no different from the deposition testimony already before the jury, and the doctors’ statements that they did not know the cause of Strong’s cancer could only help DuPont’s defense. By no stretch of the imagination can these affidavits be considered “highly prejudicial to [DuPont’s] defense of lack of causation.” Accordingly, the trial judge acted within his discretion in submitting the affidavit, and it cannot be said that this constituted reversible error, cumulative or otherwise.

¶ 39. Second, Victor Hawkins’s brief testimony regarding his workplace injury was factually relevant to his personal knowledge of DuPont’s safety violations. As a long-term employee of DuPont, Hawkins had witnessed numerous system “blow outs” and other malfunctions that resulted in the release of toxic gases and poisonous fumes. That he was injured on one of these occasions was probative of the fact that he personally witnessed these malfunctions, and this outweighed any prejudicial effect the testimony might have had. To say that Hawkins “had no legitimate purpose in testifying as to his alleged injury,” completely disregards the context of this testimony. Furthermore, even if the trial judge abused his discretion in allowing this testimony, only two pages of Hawkins’s forty-six page testimony relate to his injury. Therefore, the prejudicial effect of this testimony was minimal at best.

¶40. Finally, the plurality’s assertion that James Tarr “testified that in general, corporations act to intimidate and deceive regulatory agencies,” is a complete mis-characterization. One of DuPont’s main defenses was that their “operations are legal and highly regulated,” and that “everything has been done in accordance with the regulations.” Tarr was asked how DuPont could get away with the egregious underreporting that his research uncovered. In response, Tarr testified that regulatory agency workers are often “overworked,” “underpaid,” “inexperienced,” and “can be intimidated by the power they perceive,” which “makes it very difficult for aggressive enforcement action to be undertaken successfully.”

¶ 41. Yet, the plurality finds that from this one sentence in James Tarr’s testimony “the jury could easily have been misled into believing that DuPont was guilty of covering up alleged regulatory violations.” However, the jury could not have been misled because they had already been presented with a great deal of evidence that DuPont had been underreporting its emissions for years. In just one example, Tarr used the same model approved by the EPA to determine that the amount of dioxins being emitted from the DuPont plant in 1992 was 89.1 grams. Linda Bernard, a DuPont environmental consultant, reported to the regulatory agency that the amount of toxins for that year was only 0.5 grams. According to Tarr, these actions reflected “a very egregious irresponsible history of reporting to regulatory agencies, state and federal.” From all the evidence, the jury could easily have inferred repeated regulatory violations by DuPont. Tarr’s testimony was based on his expertise and his own scientific testing, not “accusations of hypothetical regulatory violations by DuPont.” (emphasis in majority). When considered alongside the voluminous evidence indicating regulatory violations, any error in admitting portions of Tarr’s testimony could not have been so prejudicial as to “adversely affect[ ] a substantial right” of DuPont. Haggerty v. Foster, 838 So.2d 948, 960 (Miss.2002) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

Conclusion

¶ 42. Today’s case is yet another example of this Court’s willingness to overturn a jury verdict when individuals have been awarded large damages against corporate defendants. In the last two years, this Court has been asked to consider at least eight cases involving large damage awards in favor of individual plaintiffs, and seven of these cases have been reversed. Mariner Health Care, Inc. v. Estate of Edwards, 964 So.2d 1138, 2007 Miss. LEXIS 520 (Miss. Sept. 13, 2007) (reversing $6.5 million jury award against nursing home); Horace Mann Life Ins. Co. v. Nunaley, 960 So.2d 455 (Miss.2007) (reversing $1.9 million jury award and rendering judgment in favor of life insurance company); Baker, Donelson, Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440 (Miss.2006) (reversing $1.6 million jury award for legal malpractice and rendering judgment in favor of defendant law firm); Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888 (Miss.2006) (reversing $1.5 million jury award against insurance company); Irby v. Travis, 935 So.2d 884 (Miss.2006) (reversing $3.75 million jury award in wrongful death case); CMC v. Myles, 905 So.2d 535 (Miss.2005) (reversing $5.4 million award in wrongful death case); SM Co. v. Johnson, 895 So.2d 151 (Miss.2005) (reversing $25 million jury award and rendering judgment in favor of manufacturer). Compare Canadian Nat’l/ III. Cent. R.R. v. Hall, 953 So.2d 1084 (Miss.2007) (affirming $1.5 million jury award against employer). See also Jimmie E. Gates, Justices Void $36.4M Award in Insurance Suit, Clarion Ledger, Oct. 2, 2007, at Al. Yet, despite the substantial evidence in this case supporting a jury verdict in favor of the plaintiffs, the majority finds enough “cumulative error” to warrant a reversal. At some point, we must defer to the finders of fact and stop substituting this Court’s judgment for that of the jury.

¶ 43. For the foregoing reasons, I would affirm the judgment of the trial court.

RAVES, J., JOINS THIS OPINION. RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION IN PART.

      . The Strongs' claims were not severed from the Govan case until January 2005.

      . Ingram Industries also was named as a defendant, but the Ingram defendants were voluntarily dismissed by the Plaintiffs.

      . TICL is also known as titanium tetrachloride, which contains chlorine, ethinor, HC1, and titanium).

      . Indeed, in opening arguments, DuPont’s attorney argued that the doctors’ testimony would support their theory of the case: "If anybody would know whether Mr: Strong’s multiple myeloma was caused by dioxin exposure, these doctors from M.D. Anderson would know. And they will not say that multiple myeloma was caused by dioxins.”

      . Oddly, the majority characterizes Hawkins as a "disgruntled former employee,” but in the very next section finds that his testimony on safety violations perfectly admissible.


author: CARLSON, Justice,

text:
    In the Matter of the ESTATE OF Clyde V. WOODFIELD, Deceased, and In the Matter of the Conservatorship of Michael A. Woodfield. John V. Woodfield v. Sharon McCoy Woodfield, Administratrix of the Estate of Clyde V. Woodfield, Deceased, and Alfred R. Koenenn, Guardian Ad Litem and Temporary Conservator of Michael A. Woodfield on Writ of Certiorari.
    No. 2004-CT-00238-SCT.
    Supreme Court of Mississippi.
    Nov. 1, 2007.

      John V. Woodfield, Appellant, pro se.
    Timothy Lee Murr, Gulfport, Alfred R. Koenenn, attorneys for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. Does the withdrawal from probate of a will revoking prior wills reinstate a prior will? The Court of Appeals found that the withdrawal from probate of a 2001 will, which contained a provision “hereby revoking all previous wills and codicils,” revived a 1973 will. Pursuant to Mississippi Rules of Appellate Procedure 17(h), we have limited the question on review via a grant of certiorari. On this issue, we find that a proper determination must be made as to whether the 2001 will was validly made and executed. If the 2001 will was validly made and executed, the revocation clause is effective and revokes the 1973 will, and the 2001 will would thus be admitted to probate. We have no law in Mississippi which permits abandoning the testator’s intent and completely withdrawing a will which was validly made and executed, nor do we believe that such rule of law should be pronounced. On the other hand, if the 2001 will was not validly made and executed, then the 1973 will shall be probated because the revocation clause contained in the 2001 will has no effect. Therefore, we are compelled to reverse the judgments of the Court of Appeals and the chancery court, and we thus remand this case to the Chancery Court for the First Judicial District of Harrison County for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. Clyde V. Woodfield and Sharon Jeanne McCoy Woodfield were married in early 1966. At the time of their marriage, both Clyde and Sharon had children by previous marriages — Clyde had John Vernon Woodfield, and Sharon had David Lane and Kelly Sevier. All three children are now adults. The only child born to the marriage between Clyde and Sharon is Michael Allen Woodfield, who was born on November 7,1967.

¶ 3. On January 11, 1973, Clyde executed his last will and testament, which in essence devised and bequeathed all' of Clyde’s real and personal property to his wife, Sharon, and his two children, John and Michael. The will was just over three pages in length and contained six Articles. Briefly stated, Article II devised and bequeathed to John and Michael each an undivided one-half interest in Clyde’s one-half interest in the Sahara Motel on Highway 90 in Harrison County; Article III devised and bequeathed all the rest and residue of Clyde’s estate to Sharon, or alternatively, to John and Michael, if Sharon predeceased Clyde; Article IV contained alternative devises and bequests to Sharon, John and Michael, in the event that Clyde did not have any ownership interest in the Sahara Motel at the time of his death; Article V appointed Clyde’s father, Ozy Woodfield, as the executor; and, since Michael was then a minor, Article VT appointed Sharon (or alternatively, Ozy, if Sharon was unable to serve) as Michael’s guardian.

¶ 4. In January, 1997, at the age of twenty-nine, Michael was in a serious accident which rendered him totally incapacitated, thus requiring around-the-clock care. A court-supervised conservatorship was thereafter established for Michael, and John was appointed as the conservator of Michael’s person and estate.

¶ 5. On September 26, 2001, Clyde appeared at the law office of his son, John, a practicing attorney in Harrison County, and sought assistance from a paralegal in revising his will. John was evidently not present in his law office when Clyde appeared. According to Nick Thornton, John’s paralegal, and Danny Leggett, Clyde’s friend, Clyde wanted to remove all references to Michael in his will in order to keep the government from seizing farm assets which otherwise would be given to Michael under the 1973 will. Thornton and Leggett would later testify that Clyde stated that he was satisfied that Sharon and John would take good care of Michael. The will which was prepared pursuant to this office visit was basically the same as the 1973 will, except that the 2001 will acknowledged Michael’s serious injuries and the establishment of a conservator-ship; removed any references to Michael as a devisee or legatee under the will; and, appointed Sharon, or alternatively, John, as the executrix or executor, respectively. However, of significant import is the fact that this will provided in the first paragraph, inter alia, that Clyde did “declare this to be my Last Will and Testament, hereby revoking all previous wills and co-dicies (sic) as follows, to-wit.” This will was executed by Clyde on September 26, 2001, and witnessed the same day by Thornton and Leggett.

¶ 6. Three days later, on September 29, 2001, Clyde died, survived by Sharon, John and Michael. On October 9, 2001, Sharon, through John, as the attorney, filed a petition to have the 2001 will admitted to probate in the Chancery Court for the First Judicial District of Harrison County. The will was admitted to probate, and Sharon was appointed as the executrix of the estate. In September 2002, the special chancellor removed John and substituted Alfred Koenenn as temporary conservator and guardian ad litem for Michael. On October 21, 2002, Michael’s new guardian filed a petition contesting the 2001 will. This action prompted Sharon to file a petition to have the 1973 will admitted to probate, notwithstanding the fact that she had already filed a petition to have the 2001 will admitted to probate.

¶ 7. By agreement of the parties, the trial was divided into two phases. The first phase was conducted on March 18-21, 2003; and, the second phase was conducted on May 12-13, 2003, and October 13-17, 2003. A nunc pro tunc order entered on April 25, 2003, reveals the special chancellor’s rulings on various pre-trial motions which were heard immediately prior to the commencement of the trial on March 18, 2003. In this order, the special chancellor ruled, inter alia, that because of the guardian ad litem’s filing of a petition contesting the 2001 will, John’s filing of a motion to withdraw the 2001 will, and no objection being lodged by “any party in interest or any heir at law of the decedent,” the petition to probate the 2001 will was “dismissed with prejudice.” Likewise, since the 1973 will did not name a successor executor in the event Clyde’s father was unable to serve, the special chancellor appointed Sharon as Temporary Administrator C.T.A. of the 1973 will. While this order also contained other findings and rulings on other issues, since these issues are not before us today, there is no need to discuss the other provisions of this order. Likewise, on April 25, 2003, a nine-page nunc pro tunc judgment was entered reflecting the special chancellor’s rulings on the issues presented in the first phase of the trial.

¶ 8. Continuing with the procedural history of this case, we now refer to the Court of Appeals’ opinion:

The parties agreed to a two-part trial. The first part, which started the day of the pretrial decisions on March 18, considered three issues. These were the chancellor’s rulings: (1) the 2001 will, after being withdrawn as an instrument that could dispose of property, had no further effectiveness and therefore did not revoke all prior wills; (2) Clyde Woodfield did not die intestate; and (3) though the original of the 1973 last will and testament was not produced, that will was in effect after the withdrawal of the 2001 will and should be admitted to probate as his last will and testament. As a penalty for frivolous litigation by John Woodfield in offering the 2001 will for probate, the chancellor awarded fees to Sharon Woodfield’s attorney in the amount of $22,155.78. Michael Wood-field’s guardian and conservator was awarded $15,220.78 in fees and expenses. The order was filed on April 25, 2003.
On June 26, 2003 John Woodfield filed a motion seeking Chancellor Griffin’s re-cusal, which the judge denied but also certified for interlocutory appeal. The sole basis for recusal was that Alfred Koenenn, the guardian for Michael Woodfield, had made a $500 contribution to Chancellor Griffin’s unsuccessful 2002 election campaign. On September 5, 2003, a three-justice panel of the Supreme Court found that the chancellor “did not abuse his discretion in determining that a reasonable person knowing all the circumstances would not question his impartiality.” After making that finding, the court denied John Woodfield’s petition for interlocutory appeal.
On October 13, 2003, the second part of the trial commenced. The three issues presented to the chancellor were the testator’s meaning in the clause in his 1973 will that referred to “[m]y homestead,” which was devised to his wife, Sharon Jeanne McCoy Woodfield; whether to accept John Woodfield’s testimony that his monetary debts to Clyde Woodfield had been forgiven prior to the latter’s death; and the ownership of certain personal property, which is no longer an issue.
The chancellor ruled that the term “homestead” in the will encompassed a 324-acre farm. The estate was awarded $261,558.15 against John Woodfield for various debts owed his father. John Woodfield was also ordered to pay $7,710 in attorneys’ fees owed by Michael Woodfield’s guardian ad litem, and $7,500 in attorneys’ fees owed by Sharon Woodfield.

In re Estate of Woodfield v. Woodfield, 968 So.2d 475, 479, 2006 WL 3365370, 2006 Miss.App. LEXIS 872, **4-6, ¶¶7-10 (Decided, November 21, 2006; R’hg denied, May 1, 2007, at 2007 Miss.App. LEXIS 316).

¶ 9. A sixteen-page final judgment memorializing the special chancellor’s findings and rulings was entered on November 24, 2003, and John Woodfield thereafter filed a motion for reconsideration which was denied by the special chancellor. John timely appealed from the chancery court’s judgments of April 25, 2003, and November 24, 2003, as well as the special chancellor’s order denying John’s motion for reconsideration. On appeal, this Court assigned this case to the Court of Appeals.

FACTS AND PROCEEDINGS IN THE COURT OF APPEALS

¶ 10. The Court of Appeals addressed the following issues: (1) voiding of the 2001 will; (2) probate of the 1973 will; (3) interpretation of reference to “my homestead” in the 1973 will; (4) John’s debts to the estate; (5) attorneys’ fees; (6) trial judge’s examination (view) of Woodfield Farms property without a court reporter present; and (7) recusal of the trial judge. On March 21, 2006, the Court of Appeals handed down a 7-1-2 decision reversing the chancery court judgment and remanding this case to the chancery court for a new trial; however, Sharon Woodfield filed a motion for rehearing, and the Court of Appeals granted the motion for rehearing, withdrew the original opinion, and substituted an opinion which affirmed the special chancellor in all respects except on the issue of attorney’s fees, which issue was remanded to the trial court for further proceedings consistent with the opinion. In re Estate of Woodfield v. Woodfield, 968 So.2d 475, 2006 WL 3365370, 2006 Miss. App. LEXIS 872 (November 21, 2006). This 5-3-2 opinion drew a dissent by Presiding Judge Lee, and the dissent was joined by Presiding Judge Myers and Judge Barnes. After the Court of Appeals denied John’s motion for rehearing, John filed with us his petition for writ of certio-rari in which he requested we consider five issues, which we restate here for clarity: (1) whether Judge Leslie Southwick’s participation in this case on rehearing was proper; (2) whether the special chancellor should have been disqualified from hearing the case; (3) whether the special chancellor erred in ruling that the term “homestead” encompassed the entire 324 acres of real property devised to Sharon; (4) whether the special chancellor erred in ruling that the withdrawal of the 2001 will revived the 1973 will; and (5) whether the special chancellor erred in awarding attorneys’ fees. By order entered on July 26, 2007, we granted, in part, John’s petition for writ of certiorari. Woodfield v. Woodfield, 959 So.2d 1051 (Miss.2007). We chose only to address the issue of “what effect the withdrawal from probate of a will executed in 2001 had on a ... will executed in 1973.” See M.R.A.P. 17(h) (upon a grant of certiorari, this Court “may limit the question on review”).

DISCUSSION

¶ 11. We restate the sole issue we have chosen to address.

WHETHER THE WITHDRAWAL OF A PROBATED WILL CONTAINING A CLAUSE REVOKING ALL PREVIOUS WILLS REVIVED AN EARLIER WILL.

¶ 12. Since the Court of Appeals discussed Parker v. Broadus, 128 Miss. 699, 91 So. 394 (1922), to determine whether the 1973 will was revived, we will now discuss this case in some detail and show why today’s ease is distinguishable from Broadus.

¶ 13. In Broadus, a testator who had ten children executed a will leaving his estate to only two of his children. After the death of the testator, the two beneficiaries under the will entered into an agreement with the testator’s other eight children,

whereupon the beneficiaries in the will renounced the will and agreed with the other children of the deceased that the property should be divided equally between the said children, counting the advancements made to some of the children by the deceased in his lifetime so as to equalize the estate of each child with that received from the father’s estate by the other children.

Broadus, 128 Miss., at 705-06, 91 So. 394. (Emphasis added). In addition to the renunciation, the agreement provided that the two beneficiaries under the will were to be appointed administrators of the deceased. Id. The beneficiaries filed a petition in the chancery court and caused this written agreement to be made an exhibit to the petition. Id. In response to the petition filed by the beneficiaries, the person who was named as the executor under Broadus’s will filed a petition to have the will admitted to probate and to be appointed executor and for letters of administration to be issued to him as executor. Id. After the chancellor had an opportunity to review the parties’ petitions, the chancellor approved the renunciation of the will and appointed the beneficiaries the administrators of the estate. Id. Thus, the executor under the will appealed to this Court on the issue of “whether a family settlement entered into between parties all competent to agree, including all of the beneficiaries of the will, can dispense with the probation of the will and renounce the will so as to make it ineffective as such.” Broadus, 128 Miss. at 706, 91 So. at 394-95. On this issue, this Court stated:

It is true the testator has a right to dispose of his property in the manner that he did dispose of it and to make such disposition not prohibited by law as may suit his purpose. It is equally true, however, that he cannot compel the beneficiaries in his will to accept the will or the property thereunder devised and they have the right to renounce the will where it contains no trust or other limitation upon the property devised or bequeathed by the will, and when a will is renounced the effect of the renunciation relates hack to the time the will became effective so as to make it void where, as in this case, the property is devised unconditionally and absolutely to the beneficiaries.

Broadus, 128 Miss. at 707, 91 So. at 395 (emphasis added).

¶ 14. In interpreting and applying Broadus, the Court of Appeals found that upon the petition to withdraw the 2001 will, and that petition’s dismissal with prejudice, the 2001 will was voided for all purposes, which included the revocation clause. Specifically, the Court of Appeals stated:

This holding means that the disposition of the estate is as it would have been the day before the withdrawn will was executed. The dissent is correct that in Broadus there was no prior will. Still, that court chose to say that the will was “void,” not just withdrawn. The act of its execution is canceled, making all terms of the will void by the beneficiaries’ enforceable agreement not to probate.
Once that is done, testator intent is lost.
Our best choice about how to proceed once the last will is withdrawn by all beneficiaries is where the Supreme Court directs us. The cancellation “relates back to the time the will became effective so as to make it void,” a statement that may be broader than the facts of the opinion in which it appears but persuasive all the same. Broadus, 128 Miss, at 707, 91 So. at 395. The 2001 language revoking all prior wills never came into effect.

In re Woodfield, 968 So.2d 475, 484, 2006 WL 3365370, 2006 Miss.App. LEXIS 872, **21-23, ¶¶26, 27, 30.

¶ 15. The key difference between the case sub judice and Broadus is that in Broadus the beneficiaries to the will renounced their bequest under the will and then entered a private agreement detailing how the property should be divided. In today’s case, the beneficiaries are attempting to withdraw a will which may or may not have been validly made and executed. Beneficiaries are not entitled to completely disregard the testator’s intent and have a validly-made-and-executed will withdrawn completely from probate. It is true that a beneficiary may choose to renounce his or her bequest under the will, but renunciation and withdrawal do not equate to the same outcome. The term renounce means “[t]o give up or abandon formally (a right or interest); to disclaim,” Black’s Law Dictionary 1299 (7th ed.1999), while the term withdrawal means “[t]he act of taking back or away; removal.” Id. at 1595. Thus, when a beneficiary renounces a bequest under a will, that beneficiary formally gives up a right to property under the will. Whereas when a beneficiary attempts to withdraw a will, that beneficiary does not seek formally to give up a right under the will, but to have the testator’s estate distributed contrary to the testator’s intent. Such action is impermissible under Mississippi law, and thus we are constrained to reverse and remand the judgments of both the Court of Appeals and the chancellor.

¶ 16. On remand, if the Chancellor determines that the 2001 will was validly made and executed, Mississippi case law is clear in regard to revocation clauses. A testator who wishes to revoke a will may do so by either: (1) destroying, canceling, or obliterating the will, or (2) “by subsequent will, codicil, or declaration, in writing, made and executed.” Miss.Code Ann. § 91-5-3 (Rev.2004). In re Woodfield at 489, at *36, ¶ 54 (Lee, P.J., dissenting). However, in considering the revocation criteria, essential to a revocation is that the testator must have the intent to revoke the will. McCmmack v. Warren, 228 Miss. 617, 628, 89 So.2d 702, 706 (1956). Presiding Judge Lee also referred to a publication by University of Mississippi Law Professor Robert A. Weems. Id. at 489, at 36-37, ¶ 54 (Lee, P.J., dissenting). As stated in Robert A. Weems, WILLS & ADMINISTRATION OF ESTATES IN MISSISSIPPI § 5:3 (3d ed.2003):

Two very important rules of Mississippi law should be noted with regard to a revocation clause. First, it is effective to revoke prior wills as soon as the instrument which contains the clause is validly executed. Even though a will in general is ambulatory and not effective until the testator’s death, this is not true of the revocation clause. The most important consequence of this rule is that the revocation of the subsequent writing would not operate to revive the will it revoked. Second, a clear, unequivocal statement of revocation in the validly executed subsequent will is conclusive on the matter of the testator’s intent to revoke the prior will.

Id. (Lee, P.J., dissenting). Thus, a prior will may be effectively revoked by a revocation clause in a later will, and “an express revocation clause in a will revoking all former wills when duly executed and attested according to law is unequivocal and conclusive of the intent of the testator.” Crosby v. Alton Ochsner Medical Foundation, 276 So.2d 661, 669 (Miss.1973). Additionally, Mississippi law as far back as 1855 has stated that “ ‘a will duly executed according to the statutes, though prevented from taking effect in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made to take, is a revocation of a former will.’ ” Crosby, 276 So.2d at 669 (quoting Vining v. Hall, 40 Miss. 83, 107 (1866)). See also Hairston v. Hairston, 30 Miss. 276 (1855).

¶ 17. Although Hairston is not on all fours with today’s case, we find it to be analogous for the purposes of today’s discussion. Concerning express revocation clauses contained in subsequent wills, this Court stated in Hairston:

In cases like the one at bar, in which the will contains an express clause of revocation, and upon the face of it there is nothing from which it could be inferred that the testator intended only to revoke conditionally, and in subserviency to some other purpose; if the mere fact, that the bequests in the will, not from any defect in its structure or attestation, but from some extraneous circumstance, have failed, could authorize the presumption of a conditional or dependent revocation, — an unequivocal clause of revocation in a will duly attested would stand precisely on the same footing with an act of destruction, cancellation, or obliteration, which are equivocal in their very nature, — amount to but prima facie evidence of an intent to revoke, and depend exclusively for their efficacy upon the quo animo with which they are performed.
It will not be denied, that a declaration made and attested in the mode prescribed by the statute for the execution of wills, the object of which was the revocation of a prior will, would be conclusive of such intention. And, therefore, in any controversy which might arise, in reference to the efficacy of the instrument as an act of revocation, it would be incompetent to introduce evidence to prove that the declaration was not designed to operate as an absolute, but only as a conditional revocation, relative to, and dependent upon the happening of some event. Hence it is difficult to conceive, upon what principle a clause of revocation, unequivocal and unconditional, in a will duly attested, would be less conclusive as to the intention to revoke, or less efficacious for that purpose, because the devises have failed, in consequence of the incapacity of the de-visees to take. The power to revoke any disposition of his estate, made by will, is expressly given by law to the testator: but any act of revocation, to be efficacious, must be performed in some one of the modes prescribed in the statute; in each of which, the intention to revoke— the essential ingredient in an act of this character — must be clear and unequivocal, and manifested in the precise manner directed in the act. A will, executed with all the requisite formalities, and containing an express clause of revocation, although from some cause dehors the instrument, it may be inoperative as a testamentary act, unquestionably ful-fils every requisition of the statute, whether it be regarded as a will, or as a declaration in writing designed simply as a revocation.
An instrument propounded as a revocation, if it be in form a will, must be perfect as such, and be subscribed and attested as required by the statute. Hence, an instrument intended to be a will, but failing of its effect as such, on account of some imperfection in its structure, or for want of due execution, cannot be set up for the purpose of revoking a former will.

30 Miss. at 301-303. (Citations omitted).

¶ 18. Therefore, we come to but one logical conclusion — if Clyde Woodfield intended to revoke his 1973 will, we must honor his intentions if he complied with the requisite statute. See Miss.Code Ann. § 91-5-1 (Rev.2004). To do otherwise would wholly undermine our case law on wills and revocations. Clyde Woodfield’s 2001 will contained an express revocation clause which stated, “this to be my Last Will and Testament, hereby revoking all previous wills and codicies (sic).” Therefore, Clyde complied with Hairston by setting out in the 2001 will an unequivocal and unconditional clause which clearly conveyed his intent to revoke all previous wills and codicils.

¶ 19. On the other hand, if the chancellor determines that the 2001 will was not validly made and executed, Clyde Woodfield’s 1973 will should be probated.

¶ 20. In the end, for the foregoing reasons, we are compelled to reverse the judgment of the Court of Appeals as to that court’s determination that the 1973 will should be probated, which action on our part has the practical effect of likewise reversing the chancery court judgment and remanding the case for further proceedings consistent with this opinion. On remand, the chancellor shall determine whether the 2001 will was validly made and executed. After such a determination has been made, if the chancellor finds that the 2001 was validly made and executed, the chancellor shall re-admit the 2001 will to probate. However, if the chancellor determines that the 2001 will was not validly made and executed, then Clyde Wood-field’s 1973 will shall be re-admitted to probate.

CONCLUSION

¶ 21. For the reasons stated, the judgments of the Court of Appeals and the chancery court are reversed and this case is remanded to the Chancery Court for the First Judicial District of Harrison County for further proceedings consistent with this opinion.

¶ 22. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CHANCERY COURT ARE REVERSED AND THIS CASE IS REMANDED TO THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

      . By September, 2002, the chancellors of the Eighth Chancery Court District, of which Harrison County is a part, had sua sponte recused themselves since this litigation involved a local attorney as a party; therefore, this Court entered an order appointing William L. Griffin, Jr., as Special Judge to preside over these proceedings.

      . Sharon testified she met John at the courthouse the day that the 2001 will was presented for probate; however, according to Sharon, she handed John the 1973 will to be probated. Sharon stated she later found out that it was the 2001 will which had been submitted for probate. Sharon denies ever knowing about the existence of the 2001 will until after it was probated.

      .The final judgment entered on November 24, 2003, states that this part of the trial was conducted on May 18-19, 2003; however, the official court reporter’s transcript filed with us reveals the dates to be May 12-13, 2003.

      . The final judgment reveals that the estate matter and conservatorship matter were consolidated for trial purposes, by order dated September 4, 2002.

      . The basis for asserting this issue is that due to Judge Southwick’s extended military leave of absence, he was not present for oral arguments in this case.

      . We also have before us the response to John Woodfield's petition for writ of certiorari filed by Sharon Jeanne McCoy Woodfield, individually and in her various capacities, urging this Court to affirm the judgment of the Court of Appeals; John’s motion to strike Sharon’s response to his cert petition; and Sharon's response to John’s motion to strike. Our decision today render’s moot John's motion to strike.

      . The statute applicable in Hairston stated: "[N]o devise so made, or any clause thereof shall be revocable, but by the testator or testatrix destroying, cancelling or obliterating the same, or causing it to be done in his or her presence, or by a subsequent will, codicil, or declaration in writing made as aforesaid.” The current statute, Mississippi Code Annotated section 91-5-3 (Rev.2004), states in pertinent part: "A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed.” Thus, just as in today's case, in order for a will or codicil or declaration to be effective for the purpose of revoking a former will or any clause thereof under the above statute, the will or codicil or declaration must be executed with the same formalities which are required in the execution of a will.