author: INZER, Presiding Justice, BOWLING, Justice,

text:
    BUSH CONSTRUCTION COMPANY, INC. v. Billy Ralph BLAKENEY.
    No. 49578.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Nov. 16, 1977.
    Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Richard S. Bush, Jackson, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Bush Construction Company, Inc. from a judgment of the Circuit Court of Smith County awarding appel-lee Billy Ralph Blakeney a judgment in the amount of $62,500 as damages for personal injuries resulting from a one car accident.

Blakeney brought this suit in the Circuit Court of Smith County charging that on November 7, 1974, Bush Construction Company was contractor for and was causing to be resurfaced State Highway No. 28 between Mize and Taylorsville. It was charged that this highway was open to general and unrestricted public travel. The highway was being resurfaced by layers of asphalt and at the point complained of the surface had been substantially raised but dirt had not been pulled up to the level of the road causing a dangerous and hazardous drop-off to those using the road. It was further charged that Bush failed to notify the traveling public of the dangerous condition in that it failed to put up necessary warning signs, blinking lights, smudge pots, barricades or other warning devices to warn those traveling the highway that the particular section of the highway was under construction and that a hazardous drop-off existed.

The declaration then charged that the plaintiff’s vehicle was traveling east on the highway about four miles east of Mize when he met a vehicle proceeding west. Both vehicles had their lights burning and when plaintiff moved his vehicle to the right side of the road, plaintiff’s tires, suddenly and without cause, caught the hazardous edge on the asphalt shoulder and the sudden catching caused plaintiff to lose control of his vehicle, run off the road, turn over and strike a light pole and a tree.

It was charged that Bush was guilty of negligence in (a) building up the asphalt level of the road without keeping the dirt shoulder pulled up to the asphalt level, (b) failing to warn those using the road by the use of available warning devices of the existence of the dangerous shoulder created by the edge of the asphalt, (c) failing to provide either a temporary or permanent center line or edge line along the side of said road, and (dl failing to use proper methods in performing the resurfacing work.

Bush answered and denied that it was guilty of any negligence that caused or contributed to the accident and alleged that the accident was due solely to the negligence of Blakeney.

The facts indicate that about 12:30 a. m. on November 7,1974, Blakeney was operating his vehicle in an easterly direction on Highway 28 which was being widened and resurfaced. The evidence established that Blakeney’s vehicle left the highway at a point where the highway makes a sweeping curve to the left. The vehicle left the pavement, crossed the shoulder, traveled 300 feet where it struck and knocked down a light pole, passed through a fence, glanced an oak tree and finally came to rest upside down on top of a second fence some 600 feet from the point it left the highway.

The principal conflict in the evidence in this case involves the question of whether there was a drop-off or low shoulder at the point where the vehicle left the highway. Five witnesses testified on behalf of Blake-ney that there was a vertical drop-off from the hard surface of the roadway to the shoulder. They estimated the drop-off to be from one foot to one and one-half feet. They all testified that there were no warning devices or signs in the area warning the person driving at night of the alleged dangerous drop-off.

One of the witnesses was Daniel Lowrey, a supervisor in a plant at Taylorsville. He was not acquainted with the plaintiff. Mr. Lowrey worked the night shift on November 7 and was on his way home from work going in a westerly direction on Highway 28. He was the first person to the scene after the accident. His testimony was that as he approached the scene, he saw slashes that appeared to be lightning, but found them to be electrical flashes from the electrical wires that were attached to the pole which was struck by plaintiff’s car. He first started looking for the car and found it with the plaintiff thrown outside the car. Plaintiff was unconscious. This witness examined the scene after plaintiff was carried away in an ambulance and testified he could see where plaintiff’s vehicle left the south side of the roadway and left “some skid marks” as the wheels got on the shoulder, which according to him was two or three feet wide at this point. He testified that the drop from the hard surface to the shoulder was probably twelve to fourteen inches at the point where the vehicle left the roadway. The witness did not see any warning signs at the point where the vehicle left the highway.

The testimony of these witnesses was contradicted by five witnesses who testified for Bush. Included in this group were three officers who investigated the accident and they failed to find any drop-off or noticeable low shoulder at the point where the vehicle left the highway. However, this conflict in the evidence must be resolved in favor of the plaintiff Blakeney and it must be conceded for the purpose of this opinion that there was a drop-off or low shoulder at this point.

Blakeney suffered severe head injuries as a result of the accident and the neurosurgeon testified that the principal damage to plaintiff’s head was in the brain area associated with memory. He also sustained a compression fracture of the sixth cervical vertebra in his neck and a linear fracture of his scapula. There were other lacerations and abrasions and he suffered severe pain from his injuries.

Blakeney did not know how the accident happened and testified that the last thing he remembered on November 7, 1974, was bright lights in his eyes. He did not remember going to Mize or where he was when the accident happened. On cross examination, in answer to the question, “You don’t know when and where those bright lights were, you just remember that that was the last thing you recall for several days?” Blakeney replied, “That’s — that’s all I remember is bright lights in my eyes.” He also testified that he remembered that he knew sometime prior to the accident that the roadway was under construction.

Harry Bush, president of the defendant corporation, was called by the plaintiff as an adverse witness, and plaintiff is bound by that part of his testimony that was not contradicted by other witnesses or physical facts. Bush testified that his company was not informed and did not know that there had been an accident until about five months after it happened. His testimony established that at the time the accident happened the paved portion of the highway had already been widened to 24 feet and that there was a temporary center line on the road. He was cross examined at length about the signs from the beginning of the construction work up to the point where the accident happened. His testimony established without dispute that plaintiff had passed the following signs in a little over three miles he had traveled before his vehicle left the highway. They are: “Road Construction 1,500 feet,” “Road Construction 1,000 feet,” “Road Construction, 500 feet,” next a sign showing the project number then “Low Shoulder,” “Flagman Stop, One Lane Ahead,” “Low Shoulder”, with a 35 miles per hour warning, “Do Not Pass,” “Do Not Pass,” “Pass with Care,” “Danger, Trucks Entering Highway 1,000 feet,” “Do Not Pass,” “Low Shoulder,” “Pass With Care,” “Do Not Pass,” “Low Shoulder,” with a 35 miles miles per hour warning, “Do Not Pass.” In addition to these signs there were other signs, in fact the testimony established that there were 28 signs from the time plaintiff first entered the construction area to the point of the accident. The last low shoulder sign was about four-tenths of a mile from where the vehicle left the road and the last sign was a “Do Not Pass,” about three-tenths of a mile from the point of the accident and a “Pass with Care” sign about one-tenth of a mile east of the point of the accident.

At the conclusion of the testimony and after both sides had rested, Bush renewed its motion for a directed verdict that it had made when plaintiff rested his case. This motion was overruled. After the jury verdict, Bush made a motion for a judgment notwithstanding the verdict of the jury, which was likewise overruled.

On appeal Bush contends that the trial court was in error in overruling its motion for a directed verdict, peremptory instruction and a judgment notwithstanding the verdict for the reason that there was no evidence of negligence on its part and its conduct was not a proximate or concurring cause of Blakeney’s injuries. We are of the opinion that this contention is well taken and the trial court should have sustained the motion for a peremptory instruction at the conclusion of the evidence and in failing to do this, it should have sustained the motion for a judgment notwithstanding the verdict of the jury.

The testimony is undisputed that Bush complied with every contractual provision of its contract with the highway department relative to the posting of signs along the highway under construction. Don Mil-ner was the project engineer with the Mississippi State Highway Department on the job and he testified as to the signs required and that these requirements were fully met.

There is no question that the road here involved was under construction or undergoing repairs, although it was open to the general public, traffic was restricted. The purpose of the many signs that were placed along the highway was to warn the general traveling public and to restrict their travel while traversing the section of the highway under construction. They were sufficient to warn the general public to restrict their travel. It is in this case as it was in Reeves v. W. E. Blain & Son, Contractors, 276 So.2d 461 (Miss.1973), where we said:

It is abundantly clear from the record presented that the area in which the fatal and tragic accident occurred was an area which was permeated and saturated with evidences that construction was going on. To the extent that a sign situated by the highway and facing south advised motorists traveling the area of Highway 51, over which Reeves traveled, to reduce speed traffic was not unrestricted. (Emphasis added). (276 So.2d at 463).

It is clear that the contractor in this case discharged his duty to warn the traveling public, including plaintiff, of the hazards to be encountered while traveling the road under construction. The signs in this case were sufficient in the eyes of the law to require plaintiff, or any other person traveling the highway, to anticipate that at some point along the way he might encounter low shoulders or other hazards.

Plaintiff charged that Bush was negligent because it did not have signs at the particular place or point where his vehicle left the highway. In Gordon v. Illinois Central RR., 190 Miss. 789, 1 So.2d 772 (1941), we stated:

Moreover, the principle was announced on good authority in the case of Graves et al. v. Johnson, 179 Miss. 465, 176 So. 256, and in the companion case of Graves et al. v. Hamilton, 184 Miss. 239, 184 So. 56, that when one is sufficiently warned that a public thoroughfare is under construction or undergoing repairs, he should exercise a vigilant caution and keep a constant lookout for dangers incident to the progress of the work. This rule is sound, and was followed and reaffirmed in the case of Myers v. Sanders et al., 189 Miss. 198, 194 So. 300, wherein it was held, in substance, that it is not required, in the exercise of reasonable care under such circumstances, that barricades should be placed around or in front of obstructions or other like situations of danger that may be found within the space included between other nearby barricades which are sufficient in themselves to warn a motorist that he should reasonably expect to encounter to his own detriment such impediments to safe travel if he should fail to exercise reasonable care for his own safety by keeping a constant lookout and a vigilant caution as he proceeds within the condemned area. The rule there announced should apply with equal reason to a pedestrian. (Emphasis added). (190 Miss, at 794, 1 So.2d at 773, 774).

The contractor was not required to have signs along every foot of the highway that was under construction. All that was necessary was that there be sufficient signs to adequately warn the traveling public of the danger likely to be encountered. The signs in this case were sufficient. The signs were sufficient to warn the plaintiff of the danger of low shoulders and sufficient to require him to keep a constant lookout and vigilant caution for his own safety as he proceeded through the area under construction. There is nothing in the evidence in this case to indicate that Blakeney proceeded with vigilant caution or kept a constant lookout for any hazard on the road. In fact, the physical facts indicate that he was proceeding in a manner which shows an utter disregard relative to any hazard that he might encounter on the highway. When a vehicle is traveling at a speed fast enough to leave the highway, travel 300 feet, knock down a light pole, then sideswipe a large tree, and finally come to rest upside down 600 feet from the point it left the highway, this indicates that the driver was not using vigilant caution or keeping a constant lookout, but instead he was driving in utter disregard of any hazard he might encounter.

Appellee cites and relies on Webb v. Brock, 232 Miss. 154, 98 So.2d 139 (1957), as being in point and controlling in this case. The only similarity between the present case and the Webb case is that both cases involve a road under construction. The facts in Webb were that Clarke County contracted with Webb to put a bituminous surface on a rural road which the county had prepared for surfacing. In order to prepare the road for the paving it was necessary to break the surface and apply water to get the proper moisture content. Webb used tank trucks to apply the water and on the night of the accident the vehicle in which Brock was a passenger collided with a tank truck being operated on the left side of the road. The lights blinded the driver of the car to the extent that he could not determine on which part of the road the water truck was traveling. The driver took his foot off the gas and kept his car on the extreme right side of the road, but in spite of this it collided headon with the water truck. There were no warning devices or signs of any kind along the roadway and in this regard this Court stated:

The public traveled the road daily, and no effort was made on the part of the contractor, public officials, or anyone else, to regulate, control or interfere with traffic over the road. There were no warning signs, barriers, barricades, or other devices to warn the traveling public of dangerous conditions on the road. The public had free and unrestricted use of the road, although there was maintained at all times a sign at the termini of the project about three feet by six feet in size, known as “project signs”. These signs were located on the right of way but not on the traveled portion of the road. The proof does not disclose the exact wording of these signs, but it appears they showed a project number and a statement indicating the road was under construction with State and Federal aid. It fairly appears that these signs were not designed to restrict travel over the road, or to wain of danger. (232 Miss, at 161, 162, 98 So.2d at 141).

The trial court submitted the question of whether the contractor was guilty of negligence to the jury and it rendered a verdict in favor of Brock.

On appeal the contractor contended that the trial court was in error in refusing its request for a peremptory instruction for the reason that the driver of the vehicle in which appellee was riding failed to exercise the care required of one traveling a road under construction, and that his negligence was the sole cause of the accident. The contractor cited and relied upon a number of cases including those cited in Gordon v. ICRR, supra. We held that these cases were not applicable because of the failure of the contractor to post signs to warn the traveling public of the hazards to be encountered. In so holding we said:

As the contractor in charge of the construction of the road, appellant-Webb was under the duty to warn the public of the hazards to be encountered when traveling the road. We would not undertake to say that warning devices should have been maintained. In general, it is sufficient to say that Webb should have maintained barriers, barricades, signs or other warning devices readily and easily seen by those using the highway, and which would be sufficient in the eyes of the law to require a traveler on the highway to anticipate that at some near point in his progress he would encounter a truck in operation on its left side of the highway. (Emphasis added). (232 Miss, at 165, 98 So.2d at 142).

We held that under the facts of that case it was a jury question as to whether the driver fulfilled his duty to use ordinary care in the operation of his vehicle. In the case before us, although the highway was open to the general public, travel was not unrestricted. Here, the contractor maintained reflector signs easily seen at night warning the traveling public to anticipate hazards and particularly the hazard of low shoulders. It is undisputed that Blakeney passed at least four signs warning him of the low shoulders and the last one he passed was only four-tenths of a mile from the point where his vehicle left the highway. It is evident that he passed this sign less than a minute before the accident. Because of the difference in the factual situation, our decision in Webb v. Brock, supra, is not in point or controlling in this case.

Furthermore, the evidence in this case is insufficient to show that the low shoulders caused or contributed to the accident. The low shoulders certainly did not cause appel-lee’s car to leave the paved portion of the highway. There is no substantial evidence from which it could be said that the low shoulders caused the appellee to lose control of his vehicle. The only thing in evidence that might indicate that low shoulders could have caused appellee to lose control of his car was the testimony of one witness who said that he saw skid marks at the place where the car left the highway. All the testimony showed that the car left the highway and traveled practically straight to the place where it struck the light pole. This does not indicate that the alleged drop-off caused appellee to lose control of his vehicle, but instead refutes the idea that it did. Appellee did not know what caused his vehicle to leave the paved portion of the highway. Although the declaration charged that appellee met a vehicle proceeding in the opposite direction with its lights burning and when he moved his vehicle to the right side of the road his tires caught the hazardous edge of the shoulder causing him to lose control of his vehicle, there is no proof to substantiate this charge. The Only indication that Blakeney might have been meeting another vehicle is the statement that the last thing he remembered is bright lights in his eyes. He did not know when and where he was when he saw the bright lights. There is no other evidence to show why his vehicle left the paved portion of the highway. A somewhat similar situation existed in Mississippi Export Railroad Co. v. Miller, 193 So.2d 134, (Miss.1966). There Miller brought suit and recovered a judgment against the railroad for its alleged negligence in failing to keep proper and even grades in the highway so that its tracks could be easily crossed. There, as here, the driver could not remember what happened. We stated in the opinion:

A summary of the appellee’s testimony shows conclusively that he did not know what happened; that he lost control of his automobile after it had passed over the tracks and that he did not know what caused him to lose control. He did not know how fast he was going at the time he crossed over the tracks in the curve on the River Road. He did not remember striking the bridge over the canal. He remembered only coming upon the bridge, but he did not know how he got into the ditch or into the canal. (193 So.2d at 135).

We then pointed out that the statute imposed a duty on the railroad to construct and maintain convenient crossings and to keep such crossings in good order, but that statute did not place the duty on the railroad to make crossings safe and easy under any and all circumstances. The court then said:

A careful review of the testimony of the appellee in this case convinces us that it provided no evidence of any defect or insufficiency in appellant’s crossing that caused or contributed to the lamentable accident in which the appellee sustained a broken leg and head and scalp wounds. The appellee’s testimony indicated that he entered the curve and crossing as he approached the bridge at a very rapid and dangerous rate of speed. The proof shows that his car traveled ninety-one feet beyond the tracks before it jumped the canal and buried its front end in the northern bank thereof.
The verdict and judgment of the lower court is not supported by substantial competent evidence establishing that the condition of appellant’s crossing was the cause or a contributing cause of the loss of control of the automobile by the appel-lee and the resulting accident. The well established rule is that where the verdict is not supported by substantial competent evidence or is clearly contrary to the overwhelming weight of the evidence, the verdict will be set aside. Authority for this rule is so well-known that no citation is necessary.
For these reasons, the judgment of the lower court is reversed and judgment is entered here for the appellant (193 So.2d at 136, 137).

The evidence in this case before us shows conclusively that the appellee did not known what happened and that he did not know what caused his vehicle to leave the paved portion of the highway. The evidence indicates that appellee was driving his vehicle at a very rapid and dangerous rate of speed. There is no substantial evidence that the condition of the shoulder of the highway was the cause or the contributing cause of the loss of control of the automobile by the appellee and the resulting accident.

For the reasons stated, we are of the opinion that the trial court was in error in overruling appellant’s motion for a judgment notwithstanding the verdict of the jury. Consequently, this case is reversed and a judgment entered here in favor of appellant.

REVERSED AND RENDERED.

SMITH, P. J., and ROBERTSON, SUGG and BROOM, JJ., concur.

PATTERSON, C. J., and WALKER, LEE and BOWLING, JJ., dissent.

EN BANC:

BOWLING, Justice,

dissenting:

I respectfully dissent.

As usual, much of the testimony on important points in the case was highly conflicting. The undisputed evidence showed that appellant had begun the construction work in May, 1974. Its contract with the Highway Department required that the highway be kept open for the traveling public during the construction work. Certain warning signs were required and were placed at the beginning of the area under construction and along the roadway at various intervals. It suffices to say that the traveling public was warned that the highway was under repairs. In addition to this, the plaintiff traveled the highway frequently and admittedly had full knowledge that the construction work was in progress.

The accident occurred at the beginning of a long “sweeping” curve going toward the left for a vehicle traveling east, as was that of the plaintiff. All witnesses agreed that the car left the south side of the roadway just as it reached the curve. Plaintiff testified that the last thing he remembered pri- or to the accident was lights on a vehicle approaching from the opposite direction. He remembered nothing further until several weeks later in the hospital.

On the question of the condition of the roadway and the lack of warning signs or appliances in the area, plaintiff introduced five witnesses; all saw the scene shortly after the accident. The testimony of these witnesses was that there was a vertical “drop-off” from the hard surface of the roadway to the shoulder. The estimates of the extent of this varied between one foot and one and one-half feet. All testified that there were no warning signs or devices of any kind in the area that would warn a person driving at night of the alleged dangerous “drop-off.”

One of the witnesses was Daniel Lowery, a supervisor at a plant in Taylorsville. He was not acquainted with the plaintiff. He worked the night shift on November 7, and was on his way home from work, going in a westerly direction on Highway 28. He was the first person to the scene after the accident. His testimony was that he saw flashes that appeared to be lightning as he approached the scene, but found them to be electrical flashes from the electrical wires that were attached to the pole that was struck by the plaintiff’s car. He first started looking for the car and found it with the plaintiff thrown outside the car. Plaintiff was unconscious. This witness examined the scene after plaintiff was carried away in an ambulance, and testified that he could see where plaintiffs vehicle had left the south side of the roadway and had left “some skid marks” as the wheels got on the shoulder, which, according to him, was two to three feet wide at that point. He testified that the drop from the hard surface to the shoulder was probably twelve to fourteen inches at the point where the vehicle left the roadway. The witness did not see any warning signs where the collision occurred.

One of plaintiff’s witnesses was Paul Craft, a forester for Georgia-Pacific Company, who lived about one and one-half miles from the scene of the accident. He testified that at the time the accident occurred there was a foot drop-off in the area where plaintiff’s car left the highway; and there was two to three feet of dirt for a bank and then a six-foot drop-off again. He testified there were no warning signs in the area where the accident occurred.

Appellant introduced five witnesses who contradicted plaintiff’s five witnesses. The gist of appellant’s witnesses was that there was no extensive “drop-off” in the area where the accident occurred, but that the shoulder had been pulled back almost even with the top of the hard surface. There were some admissions that the distance between the top of the hard surface and the top of the shoulder varied to a minor extent along the highway.

The jury found for the plaintiff under proper instructions and this Court, therefore, is bound by the jury’s finding on the principal issues set out in the declaration, towit: (1) There was a dangerous “drop-off” where the plaintiff’s car left the roadway, and (2) there were no warning signs or devices in the area to warn of the condition.

The cases are too numerous to cite that this Court is bound by the finding of the jury on a disputed question of fact unless the Court can say with reasonable certainty that the finding is against the overwhelming weight of the evidence. From the foregoing discussion, it is obvious to this writer that we cannot so find in this case, and we are bound by the jury’s determination.

Appellant advanced the assignment of error that as a matter of law plaintiff, after having been warned and knowing that the road was under construction, was not entitled to recover. The majority opinion agrees with this contention. Several cases are cited and shall be discussed. The paramount situation in analyzing the jury’s finding with the decided cases is that in this case the highway under construction or repair was fully opened to members of the traveling public. A different situation entirely would exist had plaintiff been traveling on a highway marked closed during the course of the repairs.

Among others, appellant relies on the case of Reeves v. W. E. Blain & Son, Contractors, 276 So.2d 461 (Miss.1973). There the jury found all disputed facts in favor of the defendant construction company. As in the case at bar, the plaintiff’s decedent was fully warned that the highway was under construction. The car of the decedent was struck by another car at an intersection and the principal ground of alleged negligence was the failure of the construction company to have a stop sign on the road that crossed the highway. The testimony was clear that the driver of the other car stopped even though there was no sign. The opinion of the Court in essence stated that the jury was properly instructed as to plaintiff’s theory of the case, and even though, unlike the case at bar, there was practically no dispute in the evidence, the jury found all issues for the defendant construction company.

Appellant relies on W. E. Blain et al. v. Sullivan, 204 So.2d 436 (Miss.1967). In that case the Court, through Chief Justice Eth-ridge, emphasized the fact that the incident resulting in the case occurred on a “closed road” and the undisputed testimony showed that the construction company breached no duty owed the motorist. The Court reiterated its former decisions to the effect that:

Where the construction on a highway has not been completed or accepted by the public authorities, and the road under construction is not open to general and unrestricted traffic, the contractor is only required to keep and maintain the road under construction in a reasonably safe condition for use by those exercising vigilant caution and keeping a constant lookout for obstructions incident to the progress of the work remaining to be done. A long line of cases has established this rule.

It should be noted here in the case at bar the jury was instructed fully on the duty owed by appellant and the circumstances under which appellee was entitled to recover. Appellant asked for and was granted an instruction that it was the duty of the plaintiff to exercise vigilant caution and to keep a constant lookout. This instruction seems to have gone further than is required or authorized where the road under construction is open to unrestricted traffic. Admittedly plaintiff was guilty of negligence that contributed to his injuries. This, however, under cases too numerous to cite, only mitigates his damages. As said in 4 Blashfield, Automobile Law and Practice, section 166.4, at page 453:

As a general rule, the question of contributory negligence on the part of a motorist in an action for injuries from alleged defects in a public highway should be submitted to the jury or to the trial judge if he is sitting as a trier of facts. It is only where the facts are undisputed or clearly established by the evidence that such question is decided by the Court as a matter of law.

Appellant requested and received ample and plain instructions on the question of contributory negligence and negligence being the sole cause of plaintiffs injuries.

In the case of Webb et al. v. Brock, 232 Miss. 154, 98 So.2d 139 (1957), the Court, in a case similar to the case now under consideration, said:

It is true that the highway was under construction and Bonner knew it, that is to say, he knew it was being prepared for paving. But the existence of those two facts does not necessarily and of themselves absolve appellants from negligence. The correlative duties of a contractor on the road under construction and the traveler on the road are determined by all the circumstances.
The Court further said:
Bonner’s duty to anticipate such hazards would have been of a different degree but for the fact that the road was open to general and unrestricted travel.

I am, therefore, of the opinion that the jury had sufficient evidence to find that plaintiff during the night-time was confronted with a dangerous situation caused by appellant and that his injuries resulted from that situation, and the further finding that there was not sufficient warning at night in that particular area.

The majority opinion overlooks a very important fact brought out in the evidence. Even though the plaintiff’s vehicle traveled approximately 600 feet after leaving the roadway, it was still approximately 25 feet from the edge of the highway when it came to rest. Therefore, we know that there was not much of a “sweeping” curve, and after the vehicle went off the narrow shoulder it travelled mostly down the edge of the highway.

Another important point is that from the evidence in the case, including plaintiff’s testimony, the jury could and obviously did find that the acceleration of the car was caused or contributed to by the force of the initial impact either by mechanism of the car or plaintiff’s foot or leg striking the accelerator. This is substantiated by the fact that plaintiff remembers nothing that occurred at that particular instant.

The implication of the majority opinion is that once the contractor of a highway construction project similar to that before us places signs worked out by some highway department employee, the contractor may then brush his hands and ignore the rights of the traveling public who are paying him to do the work. The contractor has a license to ignore any further common-law duty to protect those forced to travel the roadway from serious personal injuries or death. The citizen who pays for the project assumes the risk. This writer is not prepared to agree that this is proper, either under common-law rules of negligence or other principles announced by authorities in such cases. I think that the people who are forced to travel on highly used roads such as the one in this case deserve more consideration.

In my humble opinion, the plaintiff, although obviously guilty of some negligence, did not assume the risk of hazards caused by the contractor. He was entitled to require that the contractor follow his common-law duty to use reasonable care to protect the plaintiff and others regardless of placing the required warning signs that the highly traveled road was undergoing repairs. The jury had sufficient evidence to find that the contractor had created an unusually dangerous situation at a particular area; that this danger was intensified because of nighttime travel, and that there was not sufficient warning of this particular hazard. Therefore, I would affirm the verdict of the jury and the resulting judgment of the lower court.

PATTERSON, C. J., and WALKER and LEE, JJ., join in this dissent.


source: Caselaw Access Project

author: INZER, Presiding Justice,

license: Public Domain

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY v. Leverne BRIDGES et al.
    No. 49663.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, Joel W. Howell, III, Jackson, for appellant.
    Holmes & Dukes, James K. Dukes, Hat-tiesburg, for appellees.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   INZER, Presiding Justice,

for the Court:

This appeal involves the question of whether the uninsured motorists coverage contained in one policy of insurance insuring three automobiles for which a separate premium was charged and paid on each automobile can be aggregated or stacked to cover the damage suffered by an insured. The case comes to this Court from the Circuit Court of Forrest County wherein it was held that the coverage could be aggregated or stacked. We affirm.

The case was tried by the circuit judge on a stipulation of facts without the intervention of a jury. It was stipulated that the plaintiffs were the father, mother, and the three brothers of Timothy Wayne Bridges, who died of injuries received when he was negligently struck by a hit and run driver on March 31, 1974. On the date of the accident, the policy in question issued by Hartford Insurance Group was in full force and effect. It was stipulated that deceased was an insured under the terms of the policy and his death was proximately caused by the negligent acts of the hit and run driver. It was also stipulated that defendant insurance company denied that coverage under the uninsured motorists section of its policy was in the amount of $30,000, but admitted that coverage under the policy amounted to $10,000.

The issue raised by the pleadings and stipulation was submitted to the trial judge who wrote an opinion which indicates that the judge gave considerable thought and study to the issue involved. His opinion merits being set out in full in this opinion, and it reads as follows:

This cause was heard by the Court on written stipulation of facts submitted jointly by the Plaintiffs and the Defendant and on memoranda briefs. The written stipulation of facts filed in the cause is adopted by reference and included as a part of this opinion and as the facts governing this opinion.
The question of law is whether uninsured motorists coverage on three separate automobiles in one policy of insurance can be aggregated or stacked.
Defendant, in stipulation, has tendered the sum of ten thousand dollars to the Plaintiffs and has admitted the liability under the policy, with its sole defense being the “limits of liability” under paragraph four of Section III of the uninsured motorists coverage provided by the policy. The Defendant continues to use a policy of insurance which contains other provisions which have been held to be void as in conflict with the statutes of this State.
It is the holding of this Court, based on the rationale of Southern Farm Bureau Casualty Insurance Company v. Mary Roberts, Guardian of the Estate of Drexel Ray Roberts, a minor, [323 So.2d 536 (Miss.1975)], that uninsured motorists coverage contained in one policy of insurance insuring three automobiles, and for which a separate premium was paid, can be aggregated or stacked; i. e., Defendant’s policy of insurance affords a maximum of thirty thousand dollars coverage to Plaintiffs’ decedent.
This holding requires that Talbot v. State Farm Mutual Automobile Insurance Company, 291 So.2d 699 (Miss.1974), be distinguished. In Talbot, there was only one insurance policy with only one uninsured motorist endorsement covering a fleet of four automobiles. The Court, in Talbot, determined that the “limits of liability” provision in the defendant’s policy was clear and unambiguous and denied insured the aggregate amount of uninsured motorist coverage. That clause limited liability to the “amount specified by the financial responsibility law of the state. . . .” The Limits of Liability provision of the policy issued by Defendant in this case contained the identical language as that provision of the policy in the Alabama case of Employers Liability Assurance Corporation, Ltd. v. Jackson [289 Ala. 673], 270 So.2d 806 (Ala.1972), and which opinion is cited in the dissenting opinion of four justices in Talbot at page 707. That provision is as follows:
The limit of liability for uninsured motorists coverage stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to “each accident” is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.
The Alabama court in Jackson held such a policy provision to be both ambiguous and difficult to understand, and accordingly permitted aggregation or stacking of policies. The courts of this State have consistently held that ambiguity and doubt in policies be resolved against the writer of the policy, the insurance company, and in favor of the insured. State Farm Mutual Insurance Company v. Taylor, 233 So.2d 805 (Miss.1970).
The Supreme Court of this State, in its latest pronouncement on the issue in question, seems to place greater emphasis upon the fact that a separate premium is charged and paid for uninsured motorist coverage for more than one vehicle, whether coverage is provided in one or in several contracts of insurance. There is persuasion to the argument that the insured paid for this coverage, and accordingly, should be entitled to it, limited only by the amount of damages which may be judicially determined.
In conclusion, it is the opinion of this Court that the Plaintiffs are entitled to recover from the Defendant the sum of thirty thousand dollars as damages for the death of Timothy Wayne Bridges, killed as a pedestrian by a hit-and-run automobile. The Plaintiffs may submit a judgment consistent with this opinion.

Pursuant to this opinion a judgment was entered in favor of the appellees for $20,-000, Hartford having paid into the registry of the court $10,000 admittedly due appel-lees. Hence, this appeal.

Appellant in its brief states that “the question on this appeal, and the only real question, is whether the appellees, under the uninsured motorists coverage of a single automobile policy are entitled to aggregate the amount of coverage provided for each person on each of the three insured automobiles.” It is earnestly contended that our decision in Talbot is controlling and the trial court was in error in failing to follow it. In view of our later decisions, there is some doubt that Talbot was correctly decided, but in any event, it may be distinguished from the present case and is not controlling. When we analyze Talbot, we find that it stands for the proposition that an insurance company can legally insure more than one automobile in the same policy and limit its uninsured motorists coverage to the minimum amount specified by the financial responsibility law. However, as indicated in Talbot, this must be done by clear and unambiguous language. Especially is this true, where as here, the insurance company charges a separate premium for the uninsured motorists coverage on each automobile, not a lump sum premium as in Talbot. While the charging of a separate premium is not necessarily controlling in determining whether the insured has aggregate coverage under the uninsured motorists provision of the policy, when a separate premium is charged for uninsured motorists coverage it raises a presumption or inference that the coverage in the one policy is the same as would be furnished if such coverage was provided for in separate policies covering the same vehicles. Consequently, in order to limit this coverage it must be done in such clear and unambiguous language that it may be readily seen and understood by the insured that the coverage is limited. After carefully examining the policy in question as a whole and especially the limits of liability provision of the contract, we find ourselves in agreement with the trial judge and the holding of the Alabama court in Jackson that the limits of liability clause in this policy is ambiguous and must be construed most strongly against its creator. This being true, the trial court was correct in holding that the uninsured motorists coverage provided for in this policy could be aggregated and stacked to the extent of the damage suffered by the insured.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: ROBERTSON, Justice,

text:
    I. C. CHATMAN v. STATE of Mississippi.
    No. 49941.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    William Hooper, Jr., Charles H. Walker, Oxford, for appellant.
    A. F. Summer, Atty. Gen., by Frankie Walton White, Special Asst. Atty. Gen. and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court.

I. C. Chatman was indicted, tried and convicted in the Circuit Court of Lafayette County of the murder of Robert Birks. He was sentenced to life imprisonment in an institution to be designated by the Department of Corrections, State of Mississippi.

About 9:30 p.m. September 22, 1973,1. C. “Bunk” Chatman and his wife went over to visit his brother, Jessie Chatman, and his family. They were watching television in the living room. Birks was sitting in a rocking chair in an adjoining bedroom. I. C. got up and went into the bedroom. He asked Birks if he was still mad at him. There was no answer. A gunshot was heard and I. C. rushed out of the bedroom. He and his wife left immediately without a word to anybody. Birks was found on the floor with a wound in his lower back and another in his upper left chest. He was pronounced dead on arrival at the hospital.

Jessie Mae Sisk, defendant’s niece, and Willie Lee Chatman, defendant’s nephew, testified that defendant got up from his chair in the living room and walked into the bedroom where Robert Birks was seated in a rocking chair, apparently asleep. Both testified that they heard I. C. Chatman ask Birks if he was still mad at him. They did not hear any answer from Birks. They heard a “pop” like a gun going off, and saw defendant rush out of the room and leave with his wife without saying a word.

Dr. Brooks Allison testified that he examined the body of Robert Birks about 2V2 years later after it had been exhumed; that Birks was killed by a bullet entering the lower right back and exiting from the upper left chest, traveling through the body at about a 45° angle.

The defendant took the stand in his own defense and testified that earlier in the evening of September 22nd Birks had cursed him and told him to get out of his yard. That night he had gone in the bedroom at Jessie Chatman’s home to see Birks; that as he talked with Birks he saw what looked like a gun barrel stuck through the window underneath the window shade; that as he ran out of the bedroom he heard a gunshot; that he and his wife left without saying a word to anybody.

Defendant further testified that he and his wife had an argument on the way home, and that after taking her home he went to a carnival. Three or four hours later his wife came to the carnival and told him that the police were looking for him, and he left immediately by himself and drove to Oakland, California.

Over two years later, on December 3, 1975, the defendant was apprehended in Los Angeles, California, and Sheriff F. D. East of Lafayette County went out to Los Angeles, California, to bring him back.

Sheriff East testified that he read him his Miranda rights while in the airport parking lot, and then about IV2 hours later, while they were on the plane en route to Oxford, Mississippi, that he asked him what he did with the pistol that night after the shooting, and the defendant responded: “Oh, I got rid of it a long time ago. I sold it.”

Defendant assigns as error:
1. That the court should have granted him a peremptory instruction because the State failed to prove beyond a reasonable doubt that the defendant committed the murder, and the verdict of the jury was against the overwhelming weight of the evidence;
2. That the peremptory instruction should have been granted because of the Weathersby Rule;
3. That Sheriff East’s testimony concerning the ownership and disposition of a gun by the defendant should have been excluded because his Miranda rights were not explained to him immediately before the statement was made.

The jury were the sole judges of the credibility of each witness, and the weight to be given to the testimony of each witness, and were entitled to believe the testimony of Jessie Mae Sisk and Willie Lee Chatman. The testimony of Jessie Mae Sisk and Willie Lee Chatman, defendant’s niece and nephew, conflicted with that of the defendant. From their testimony, the jury was amply justified in finding the defendant guilty beyond a reasonable doubt of the murder of Robert Birks.

This was not a case for the application of the Weathersby Rule, because the testimony of the other witnesses conflicted with that of the defendant, as to what actually occurred. The defendant’s actions following the shooting, as testified to by the defendant himself, were not those of a reasonable or innocent man. The guilty flee when no man pursueth.

The testimony of Sheriff East was that Chatman’s Miranda rights were fully explained to him IV2 hours before he was asked about what happened to the pistol. We held in Dean v. State, 300 So.2d 797 (Miss.1974), that an explanation of defendant’s Miranda rights made four hours before any questions were asked and answers given was sufficient. Moreover, no objection was made to Sheriff East’s testimony as to his question and defendant’s answer.

There being no merit in these assignments of error, the conviction and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Eddie E. WATKINS v. STATE of Mississippi
    No. 50122.
    Supreme Court of Mississippi.
    Nov. 2, 1977.

      Ray S. Mikell, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Eddie E. Watkins was convicted in the Circuit Court of Attala County of aggravated assault upon a law enforcement officer. He appeals from this conviction and sentence of fifteen years in the state penitentiary, contending that he was illegally arrested and therefore privileged to resist the arrest or, alternatively, the events subsequent to the illegal arrest were erroneously admitted into evidence.

On February 20, 1975, at about 1:30 in the morning, Officer Mitchell of the Kosciusko Police Department observed a car leaving Campbell’s Motel & Restaurant. He followed it for a short distance and, after radioing Officer Steed for assistance, stopped the car on Highway 35 South.

Mitchell testified he had seen the car at about 10:00 p. m. driven by Ricky Tavares who he knew had been recently released from Parchman and two nights before that he had observed the car with a Hinds County license tag and had checked its registration. He also stated, when asked if the car was driven properly, “Well, it was very slow, or, he was weaving. I guess anybody does if they are driving slow.”

Upon stopping the car, Mitchell approached the driver’s side and Officer Steed, who had arrived in another patrol car, approached the passenger side. Mitchell directed the beam of his flashlight into the car and observed a nearly empty wine bottle. He then asked Tavares for his driver’s license and, smelling alcohol on his breath, searched him and directed him to his patrol car.

Meanwhile Officer Steed directed his attention to Watkins, a passenger in the car, and observed him cramming some green leafy substance into his mouth. According to Steed, Watkins smelled of alcohol, his eyes were glazed and he stumbled upon getting out of the car. Steed arrested Watkins for public drunkenness and placed him in the back of his patrol car.

While enroute to jail Watkins in some manner obtained the shotgun mounted in the gun rack of the patrol car and pointed it to Officer Steed’s head and commanded him to pull over to the side of the road. After Steed had done so, Watkins pulled the trigger while pointing the gun at the officer. Thankfully, there was not a shell in the gun’s chamber and it did not fire. Steed was then able to take the gun from Watkins and proceed to jail with him.

Watkins admitted he pointed the gun at the officer’s neck and pulled the trigger. He denied drinking or having a green leafy substance in his mouth. A test for drunkenness by alcoholic content at the police station proved negative.

At the outset we are of the opinion the initial arrest was without probable cause. Officer Mitchell admitted he stopped the car “just mainly to check out the driver to see who he was and check his license.” While there is evidence which might be tenuously argued to demonstrate probable cause for arrest, the overwhelming weight of the evidence clearly presents the motivation for arrest as being mere desire to “check out” the occupants of the car. Such an arrest violates the Fourth Amendment protection. Keys v. State, 283 So.2d 919 (Miss.1973).

Since there was not probable cause for the initial arrest of Tavares, the issues remaining are:

(1) If a motorist is stopped without probable cause by one officer and another officer, who has been summoned to his aid, places a passenger in the automobile under arrest, is the passenger privileged to resist by seizing a gun, pointing it at the officer, and pulling the trigger?
(2) Does the Fourth Amendment exclusionary rule bar evidence of an assault on a police officer when the preceding arrest was without probable cause?
(3) Is an indictment and conviction for aggravated assault upon a law officer defective because it states the assault was “within the scope of duty” but the evidence discloses the arrest was without probable cause?

THE PRIVILEGE OF RESISTING AN ILLEGAL ARREST

There are several cases of this Court which hold that a person unlawfully arrested may legally resist. Jolliff v. State, 215 So.2d 234 (Miss.1968); Smith v. State, 208 So.2d 746 (Miss.1968); King v. State, 246 Miss. 86, 149 So.2d 482 (1963); Pettis v. State, 209 Miss. 726, 48 So.2d 355 (1950); Hinton v. Sims, 171 Miss. 741, 158 So. 141 (1934); Deaton v. State, 137 Miss. 164, 102 So. 175 (1924); and Merritt v. State, 5 So. 386 (Miss.1889).

The broadest pronouncement of the right to resist occurs in King, supra, an obstruction of justice case. In dictum the Court, citing 4 Am.Jur., Arrests, section 92, page 63 (1936), stated:

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” (149 So.2d at 484)

An analysis of King reveals that its holding is not as broad as the dictum suggests. In it two officers, without warrant or probable cause, pursued a car which pulled into a private driveway. The driver fled into or upon the premises of a private home. As the officers arrived on the private property the owner asked why they were trespassing and demanded they leave, thus essentially barring the pursuit but without using physical violence. The Court held that where a citizen, without violence, confronts peace officers who had neither a warrant nor probable cause to arrest and bars them from his premises, there was not a prima-facie case of obstructing justice and the conviction was reversed.

Cases subsequent to King have carefully restricted the privilege of resistance to this limitation rather than broadening it by indulging its dictum. Smith v. State, 208 So.2d 746 (Miss.1968), involved invasion of private premises and an unarmed physical resistance by the owner when the officers stated they had a warrant but would not produce it when demanded by the arrestee. Similarly, Jolliff v. State, 215 So.2d 234 (Miss.1968), involved the invasion of private business premises where officers stated they had no warrant and the resistance was limited to unarmed nonviolent resistance.

In considering these cases, the Court has adhered to a limited right to resist arrest. In determining the scope of the privilege it has identified several variables which it measured:

(1) The nature and location of the premises where the attempted arrest occurred;
(2) Inquiry as to whether the arrest was made with apparent legal authority as opposed to no claim of authority;
(3) The potential for violence and physical harm under the circumstances of the particular confrontation;
(4) Whether the force used in resistance was reasonable considering the above factors.

Applying these standards to the present case it is apparent that the limited privilege of resisting arrest does not lend itself in support of Watkins’ violent resistance which fortunately did not terminate in homicide. The arrest was made upon a public highway by an officer, summoned by another officer, both of whose identities as officers with apparent legal authority were unquestioned because they were in full uniform and clearly marked patrol cars. Compare Craft v. State, 202 Miss. 43, 30 So.2d 414 (1947); and Hinton v. Sims, 171 Miss. 741, 158 So. 141 (1934). Moreover, Officer Steed, summoned to the scene, was confronted with a passenger in an automobile at 1:30 a. m. who he believed was intoxicated because of the wine bottle, glazed eyes and the stumbling upon getting out of the car. Officer Steed’s arrest of Watkins, unaccompanied by either vocal or physical abuse, was not unreasonable under these circumstances, in our opinion. To the contrary, Watkins’ resistance included the intended death of Steed and was accompanied by overt but unfruitful acts to that result. There is no judicial way that Watkins’ resistance can be classified as privileged or condoned by a court in modern society. Conceding the appellant’s right of freedom, liberty and privilege against unauthorized restraint, his greatest discomfiture would have been the possible embarrassment of arrest and detention for the remainder of the night. Moreover, there would have been available to him the legal processes of the courts for vindicating his illegal arrest if indeed it was such. We conclude the first assignment of error is without merit.

THE EXCLUSIONARY RULE

Watkins contends that because the initial arrest was illegal, all subsequent evidence of the assault should be excluded. He apparently relied upon Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is argued “but for” the illegal arrest, the assault would not have occurred and so evidence of it should be excluded as it derived from a primary illegality.

The Court in Wong Sun made clear that the question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or by means sufficiently distinguishable to be purged of the primary taint.” (371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455). Other courts have attacked what they considered the illogic of mechanically excluding all evidence which would not have surfaced “but for” the primary illegality. A more practical inquiry of considering the precise role the illegal arrest bore to the subsequently discovered evidence was suggested in United States v. Friedland, 441 F.2d 855 (2d.Cir. 1971).

We are unable to characterize the evidence of assault in this case as either a “discovery” or the result of “exploitation” of the illegal arrest. The evidence sought to be excluded was not provoked by harassment of the defendant while in the custody of the officer. Neither was it the likely product of a continued but nevertheless illegal arrest. Thus, the exploitation element of the exclusion is lacking.

In our opinion the deterring purpose of the exclusionary rule would not be served by excluding evidence of the assault. Moreover, in our judgment it would be unreasonable to approve a crime of violence under the name of lawful resistance. We think the better and safer method of determining the difficult question of probable cause or illegal arrest is to leave that decision to a judicial officer in proper environment rather than to an individual upset by his arrest. We conclude the testimony concerning the assault was properly admitted in evidence.

THE INDICTMENT

The indictment alleged the aggravated assault occurred while the police officer was “within the scope of his duty.” Watkins contends the officer could not have been within the scope of his duty because there was no probable cause for the arrest although the allegations are in compliance with Mississippi Code Annotated section 97-3-7 (Supp.1977).

At the time of the assault Steed was on duty in uniform and in an official patrol car. There is no contention by Watkins that he failed to recognize him as a law enforcement officer or as being on duty as was the case in Craft v. State, 202 Miss. 43, 30 So.2d 414 (1947); and Hinton v. Sims, 171 Miss. 741, 158 So. 141 (1934). Conceding the initial arrest was without probable cause, we are unable to say that Steed was acting beyond the scope of his duty in answering the call to the scene and arresting Watkins who he reasonably believed was intoxicated. We conclude the appellant was convicted under a proper indictment.

We have considered the other assignment of error relating to continuing the cause for trial at a later date and find it to be without merit.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    P. D. STRONG et al., for themselves and all others similarly situated v. The PEARL MUNICIPAL SEPARATE SCHOOL DISTRICT FOR the CITY OF PEARL, Mississippi, et al.
    No. 50278.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Butler, Snow, O’Mara, Stevens & Canna-da, Robert C. Cannada, Rhesa H. Barksdale, Jackson, for appellants.
    Bacon, Smith & Jernigan, Arthur F. Jer-nigan, Jr., Jackson, Smith & Henderson, Paul B. Henderson, Robert B. Henderson, Pearl, A. F. Summer, Atty. Gen. by George M. Swindoll, Asst. Atty. Gen., Jackson, for appellees.
    Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court:

After the complainants, P. D. Strong and others, had rested their case, the Chancery Court of Rankin County sustained the defendants’ motion to exclude the evidence and dismiss the bill of complaint. The complainants appeal.

On November 27,1973, the United States District Court for the Southern District of Mississippi entered its order dividing Rankin County into school attendance areas. Property within the corporate boundaries of the City of Pearl and certain geographical areas of Rankin County outside Pearl’s municipal boundaries were designated the Pearl School Attendance Area.

The City of Pearl, Mississippi, by ordinance passed on May 20, 1976, created the Pearl Municipal Separate School District (PMSSD), under the authority of Mississippi Code Annotated section 37-7-605 (1972). The boundaries of PMSSD were coterminous with the corporate boundaries of the City of Pearl, and encompassed all school buildings of the Pearl School Attendance Area. This created a rather anomalous situation because there were students attending these schools (now within Pearl’s corporate boundaries) from geographical areas within the Pearl School Attendance Area but outside the municipal boundaries of the City of Pearl.

To correct this situation, the Rankin County Board of Education on May 31, 1976, unanimously adopted an order requesting the PMSSD to add all the remaining territory of the Pearl School Attendance Area to the Pearl Municipal Separate School District.

Even though the territory to be added lay within the Rankin County School District, the PMSSD, by order dated May 31, 1976, accepted the Rankin County Board of Education’s request and added this territory to PMSSD.

These orders of PMSSD, its trustees, and the Rankin County Board of Education, together with other required data, were filed with the State Educational Finance Commission with a request for its approval. [Mississippi Code Annotated section 37-7-605 (1972)]. That Commission, by order dated June 21, 1976, approved the PMSSD with added territory and provided that said district would be officially and legally constituted as of July 1, 1976.

The complainants/appellants contend that while section 37-7-605 outlines the action required of the Pearl Municipal Separate School District where additional territory is added, still this section must be read in harmony with Mississippi Code Annotated section 37-7-105 (1972), which makes additional requirements of the Rankin County Board of Education, where the territory added to the PMSSD is taken from the Rankin County School District.

The defendants/appellees answer that section 37-7-605 is complete within itself, that they scrupulously followed its provisions, and that compliance with section 37-7-105 was not necessary nor required.

All of the assignments of error boil down to the question of whether section 37-7-105 is applicable to this case.

Section 37-7-605 provides:
“After school districts are reorganized and reconstituted under the provisions of Article 1 of this chapter, any municipality may thereafter be declared to be and constituted as a municipal separate school district by ordinance of the governing authorities thereof. However, such action of said governing authorities shall not be effective until same shall have been submitted to and approved by the state educational finance commission.
“Additional territory adjoining a municipal separate school district may be added to any municipal separate school district by the county board of education with the consent of the board of trustees of the municipal separate school district and subject to the approval of the state educational finance commission as is more specifically provided by Article 1 of this chapter.” [Emphasis added].
Section 37-7-105 provides:
“In cases where the county board of education abolishes, alters, or creates a school district without a petition therefor as is otherwise provided in sections 37-7-107, 37-7-109. the county board of education shall publish the order creating, altering. or abolishing such district or districts in some newspaper published and having a general circulation in such county once each week for three consecutive weeks, which said order shall be duly-certified by the president of said county board of education. If no newspaper be published in said county, then such order shall be published for the required time in some newspaper having a general circulation therein, and, in addition, a copy of said order shall be posted for the required time at three public places in the county. The order so published shall contain a provision giving notice that said order shall become final thirty days after the first publication of said notice unless a petition is filed protesting against same within such time. In the event no such petition be filed, the said order shall become final at said time. However, in the event twenty per cent of the qualified electors of any school district created, altered, or abolished by such order shall file a petition with the county board of education, within thirty days after the first publication of said notice, protesting against the creation, alteration, or abolition of such district, then an election shall be called and held, on order of the county board of education, by the county election commission, after publication of legal notice of such election, which said election shall be held within thirty days after the first publication of the notice of such election. At such election the question shall be submitted to the qualified electors of the district or districts affected and from which a petition is filed as to whether or not such district or districts shall be created, altered, or abolished as provided in the said order of the county board of education. If a majority of those voting in said election in each district affected and from which a petition is filed shall vote in favor of the order of the county board of education then such order shall become final. If a majority of those voting in said election in any district from which a petition is filed shall vote against the order of the county board of education then such order shall be void and of no effect and no further attempt to make the proposed change in such district shall be made for a period of at least two years after the date of said election.” [Emphasis added].
On May 20, 1976, the governing authorities of the City of Pearl did all that was required of them to be properly constituted as a municipal separate school district and the PMSSD was so constituted on that date, subject to the approval of the State Educational Finance Commission. [Section 37-7-605]. However, we think there are additional procedures specifically set forth in Section 37-7-105 that must be followed by the Rankin County Board of Education before it can legally alter the Rankin County School District on its own motion.

It was mandatory that a notice be published where the Rankin County Board of Education was proceeding on its own motion. Section 37-7-105 is very clear on this point when it provided:

“In cases where the county board of education abolishes, alters, or creates a school district without a petition therefor as is otherwise provided in sections 37-7-107, 37-7-109. the county board of education shall publish the order creating, altering. or abolishing usuch district . . fEmphasis addedl

Notice would not be required “If a petition signed by a majority of the qualified electors of specifically described territory of an existing school district shall be filed with the county board of education requesting that said described territory be taken from such existing district and annexed to an adjacent district”. [Section 37-7-109].

When a county board of education proceeds on its own motion, Section 37 — 7—105 makes no distinction whether it is abolishing, altering or creating a school district: “[T]he county board of education shall publish the order creating, altering, or abolishing such district . . . .” When territory was subtracted from the Rankin County School District, the District was unquestionably “altered”. Where the school district was altered, the mandatory requirement of the statute, that notice be published, was activated.

Section 37-7-105 goes on to provide that “in the event twenty per cent of the qualified electors of any school district . altered,” protest against the alteration, “then an election shall be called and held,” and “[a]t such election the question shall be submitted to the qualified electors of the district or districts affected . . . as to whether or not such district or districts shall be altered, ... as provided in the said order of the county board of education.” If a majority of those voting in said election vote in favor of the order, then the order becomes final. If a majority of those voting in said election vote against the order, then the order shall be void and of no effect. [Sec. 37-7-105].

The only difference between the case at bar and Winston County v. Woodruff et al., 187 So.2d 299 (Miss.1966), is that in Winston County the School District was abolished and in the case at bar the School District was altered. The words “abolish” and “alter” are equal in section 37-7-105; no distinction is made between them.

In Winston County we noted that the Winston County Board of Education acted “expressly pursuant to the authority of Mississippi Laws 1953, Chapter 16” [which included as Section 6(b), § 37-7-105 of the 1972 Code].

In Winston County, this Court also said: “Publication was made as required by Chapter 16, and a sufficient number of qualified electors not having protested, no election was called.” 187 So.2d at 300.

We are of the opinion that this general language of Section 37-7-605:

“Additional territory adjoining a municipal separate school district may be added to any municipal separate school district by the county board of education

presupposes that the county board of education will comply with the specific language of section 37-7-105 as to what the county board must do in order to tender good title, so to speak, to the territory which it is requesting be added to the municipal separate school district.

Since we have reached the conclusion that section 37-7-105 does apply to the procedure to be followed by the Rankin County Board of Education, and since these mandatory requirements were not met, the trial court was in error in sustaining the motion to exclude and to dismiss the bill of complaint. It follows, therefore, that the judgment must be reversed and this cause remanded for further action not inconsistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.