author: PATTERSON, Chief Justice, ROBERTSON, Justice,

text:
    Jerry COLE, Sue Bratcher and Kathlyn McGriff, Plaintiffs-Appellants, v. Myrtle (Jones) TODD and Standard Home Shopping Service Corporation, Defendants-Appellees.
    No. 49692.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Rehearing Denied March 8, 1978.
    Miller & Miller, Harold Leon Miller, Pearl, Robert L. Williams, Water Valley, for plaintiffs-appellants.
    Daniel, Coker, Horton, Bell & Dukes, C. Michael Ellingburg, John M. Roach, Jackson, Alfred G. Nicols, Jr., Brandon, for defendants-appellees.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   PATTERSON, Chief Justice,

for the Court:

Jerry Cole, Sue Bratcher and Kathlyn McGriff appeal from a judgment of the Circuit Court of Rankin County which dismissed their cause against Myrtle (Jones) Todd and Standard Home Shopping Service Corporation for the wrongful death of their father, J. C. Cole. The judgment resulted from a jury verdict for the defendants although there is no evidence disputing the fact that a vehicle driven by Mrs. Todd struck and killed Cole.

The primary assignments of error concern the court’s refusal to grant a peremptory instruction for the plaintiffs, to sustain a motion for a judgment notwithstanding the verdict and to find the jury’s verdict against the overwhelming weight of the evidence.

At approximately 8:50 p. m. on June 12, 1975, Mrs. Todd, while about the business of Standard Home Shopping Service Corporation, was driving a 1973 Ford Econoline van east on Highway 80 in Pearl, Mississippi. According to her, she was proceeding at twenty-five or thirty miles per hour with her headlights on in clear weather when the following occurred:

. I remember I was facing Highway 80 East and was going down the road past the Kentucky Fried Chicken or somewhere along there and I heard a thump and I don’t know, I turned and I go down to see what it was and from there I don’t know, I don’t know, I saw it was a person, that’s all I know.
Q. You don’t remember anything—
A. I didn’t see anyone.
Q. You don’t, you didn’t see anyone?
A. No sir.
Q. You don’t remember what you did after that time?
A. No sir.

An employee in the nearby Kentucky Fried Chicken restaurant observed, intermittently, for about two hours, a person later determined to be J. C. Cole, as he sat and stood on the shoulder of the road near the intersection of Highway 80 and Valent-our Road. Her testimony was that Cole acted “weird.” She saw a white van pull to the edge of the highway and observed the driver looking back. Immediately thereafter she noticed a man lying on or near the road and watched the van as it sped through a red light and passed from view.

An officer promptly arrived on the scene and found Cole lying unconscious about eighteen inches from the edge of the traveled portion of Highway 80 and bleeding from the right side of his head and right arm. At the time Cole was wearing a light lavender shirt and dark colored trousers. The officer observed no skid marks at the scene. Cole died from his injuries some fourteen hours later.

The right rear-view mirror of the van driven by Mrs. Todd was found to be broken and was removed for examination. The record does not disclose the distance the mirror projected from the van’s side although it does appear from photographs that the projection was no more than ten or eleven inches. The laboratory test of the rear-view mirror revealed bloodstains upon it although they were too small for confirmation as human blood.

Mrs. Todd testified she did not remember her activities after the accident. However, out of the jury’s presence an employee of the police department testified that Mrs. Todd turned herself in on June 14,1975, for hitting a man, stating “she had heard it on the news” and “couldn’t live with herself any longer knowing that she did it.” At the time she made an oral statement and wrote the following:

I had finish (sic) 4A Route at Flowood going to Brandon to do a callback. I didn’t see anyone. I heard a noise hit the side of the truck. I turned around and come down little street to see what it was. I saw it was a person I just went out of mine (sic). I called Mr. Thrash this morning seven o’clock. Mr. Thrash advised me to turn myself in. I’m not sure of the time about 9:00 or 9:30 p. m.

Objections were interposed to both statements which were sustained in part, the court permitting into evidence the written statement with the exception of the reference to a Mr. Thrash and the time and excluding all of the oral statement except “I hit the man.”

Although we are loath to disturb a jury verdict, the evidence leaves no alternative to setting it aside because there is no evidence contrary to Mrs. Todd’s testimony concerning the accident and it is sufficient, in our opinion, to establish a case of liability as a matter of law.

In Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1964), we stated:

In the absence of a statute to the contrary, a pedestrian has the right to use and travel upon any portion of a public highway at any time of the day or night, “and his rights and the rights of one operating a vehicle thereupon are mutual, reciprocal, and equal.” The operator of a motor vehicle owes to pedestrians walking along the highway the duty to exercise reasonable or ordinary care to avoid injuring them. Hence a motorist is guilty of negligence where he strikes a pedestrian walking along the highway, where in the exercise of reasonable care he should have but did not see him and could have avoided the accident. (248 Miss. at 696-697, 160 So.2d at 687)

And in Robertson v. Welch, 242 Miss. 110, 134 So.2d 491 (1961), a motorist negligently struck two pedestrians while they were crossing a highway in a closely built-up area. After noting that the accident occurred in the late hours of a rainy night while the motorist had his headlights on, this Court reversed a jury verdict for the defendant and entered judgment for the plaintiffs, stating:

. Since he had lights on his car, it is incredible that he did not see these people, if he was in fact looking. . (242 Miss, at 117, 134 So.2d at 493)

Appellees’ defense was that Cole was intoxicated and his negligence was the sole proximate cause of the accident. There was evidence from which it could be reasonably inferred that Cole was intoxicated, but without more, this does not absolve their liability. In Robertson, supra, we held intoxication did not release the motorist from compliance with the law or from the observance of reasonable rules of care. We held:

. Intoxication, either in whole or in part, does not place the addict beyond the protection of the law. After all, such an unfortunate has rights just as any other human being or member of society. (242 Miss, at 118, 134 So.2d at 494)

The record reveals that Mrs. Todd was driving at slow to moderate speed with unobstructed vision when Cole was struck. The area was developed and some of the nearby business establishments were lighted. Indeed, the employee of the Kentucky Fried Chicken restaurant testified, without objection, that she believed there was a light near the area where Cole was standing. Considering the condition of the highway, the unobscured vision of the driver as well as the nearness of Cole to the traveled portion of the road, we conclude that reasonable care dictates that Mrs. Todd should have seen Mr. Cole. We are fortified in this conclusion by the absence of any statement by the driver that she did not have an excellent view of the highway and its periphery. The only explanation that we fathom for the accident is that she was not maintaining a proper lookout for pedestrians and this negligence was the proximate cause of Cole’s death. We are of the opinion the trial court erred in not granting the plaintiffs’ motion for a peremptory instruction.

The next assignment of error is that the trial court erred in not allowing Mrs. Todd’s statements to the police into evidence. We think they were admissible because they impeached her prior testimony of not remembering anything concerning the accident subsequent to it, thereby affecting the credibility of her testimony. In brief, her testimony was that she hit the man, panicked, fled the scene and remembered nothing afterward. However, the statements to the police reveal that she did remember, though belatedly, and sought legal advice.

The other numerous assignments of error are found to be without merit and since they are largely procedural and not likely to recur, we decline comment upon them.

We are of the opinion the trial court erred in not granting a peremptory instruction for the plaintiffs on the question of liability. The cause is reversed and remanded on the sole question of damages.

REVERSED AND REMANDED.

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

ON PETITION FOR REHEARING

ROBERTSON, Justice,

dissenting:

A majority of the Court is of the opinion that the Petition for Rehearing filed by Myrtle (Jones) Todd and Standard Home Shopping Service Corporation, should be denied. I am of the opinion that the Petition for Rehearing should be granted, the original opinion withdrawn, and the judgment of the trial court, which was based on a jury verdict for the defendants, affirmed. Therefore I respectfully dissent.

It cannot be emphasized too strongly that the judgment of the Circuit Court of Rankin County for the defendants was based on a jury verdict after a full trial of all the issues. The jury was properly instructed that:

“The burden is upon the plaintiffs to prove by a preponderance of the evidence, that the accident, injuries and death were proximately caused by negligence on the part of Mrs. Todd, and if the plaintiffs have failed to so prove, and if you find that Mrs. Todd was not negligent in causing the accident, injuries, and death, then it is your sworn duty to return a verdict for the defendants. You are instructed that if you find that Mrs. Todd was not so negligent, then you cannot return a verdict against either Mrs. Todd or her employer Standard Home Shopping Service Corporation.”

The jury was properly instructed on contributory negligence. This was as it should be, because Mississippi Code Annotated section 11-7-17 (1972) provides:

“All questions of negligence and contributory negligence shall be for the jury to determine.”

These are the undisputed facts that the jury had squarely before it:

Mrs. Myrtle (Jones) Todd was driving a white 1973 Ford Econoline van east on Highway 80, about 8:50 p. m. on the night of June 12, 1975. U.S. Highway 80 is a four-lane highway with two lanes going east and two lanes going west. The weather was clear, and Mrs. Todd had her headlights on as she traveled east in the south lane of traffic. She was watching the road ahead in her lane of traffic when she heard a thump on the right side of her Econoline van. She drove a short distance down the highway and turned off on the frontage road, returning to the spot where she heard the thump. J. C. Cole was lying on the shoulder of the road.

Denise Allen, an employee of the Kentucky Fried Chicken restaurant, called as a witness for the plaintiffs, testified that she had observed Cole for about two hours before the accident'. She testified that the shoulder of the highway slopes into a ditch and that he had been slumped down on his elbows along the shoulder of the road; that he at times was just lying down, then he would sit down, then he would prop back on his elbows, then he would stand up and face the sun, then he would face straightforward, and then he would sit down for awhile. Her testimony was that Cole acted “weird”, that it was her impression that he was drunk.

An officer who promptly arrived on the scene found Cole lying unconscious about 18 inches from the edge of the paved portion of Highway 80, and bleeding from the right side of his head and right arm. Cole was promptly rushed to a hospital in an ambulance and died some 14 hours later. The only damage to Mrs. Todd’s van was a broken right rearview mirror.

Denise Allen also testified that she observed a white van pull off on the gravel at the edge of the highway and saw the driver looking back. She watched this van as it sped through a red light and passed from view. She testified that this was not Mrs. Todd’s van, and of course she was right because Mrs. Todd’s undisputed testimony was that she turned back on the frontage road and returned to where she had heard the thump on the right side of the van.

In my view the jury properly applied the principles of law. involved (as instructed by the court) to these undisputed facts in returning its verdict for the defendants.

In setting aside the jury’s verdict for the defendants, and in ruling as a matter of law that the defendants are liable, we are departing from a long-established principle of law that was well stated in the recent case of Shelton v. Coleman, 323 So.2d 90 (Miss.1975), in these words:

“In order to overrule a jury verdict we have held that this Court must find it was contrary to the overwhelming weight of the evidence and not a product of reason, but, rather, the result of bias, passion and prejudice. Phillips v. Dow Chemical Co., 247 Miss. 293,151 So.2d 199 (1963).
“The rule was stated in Illinois Central Railroad Co. v. Harrison, 224 Miss. 331, 80 So.2d 23 (1955), as follows:
‘The judge may not substitute his judgment for that of the jury merely because he would have decided the matter differently. . . . Conflicts
in the testimony and the veracity of witnesses are for the determination of the jury, not the judge.’ 224 Miss, at 338-39, 80 So.2d at 26.”

323 So.2d at 91.

In Gulf Oil Corporation v. Turner, 235 So.2d 464 (Miss.1970), this Court said:

“With regard to deciding a case as a matter of law which necessitates a finding that the evidence was insufficient to establish a jury issue, the oft-announced rule is that this Court must view the evidence in the light most favorable to the party in whose favor the jury returned the verdict. We must consider as true all evidence favorable to the successful party and assume that the jury drew every permissible inference in reaching its verdict. All conflicts in the evidence are resolved in favor of the prevailing party and this Court may not consider any evidence favorable to the other party except that which is uncontradicted.’’ 235 So.2d at 466. (Emphasis added).

See also: Sprayberry v. Blount, 336 So.2d 1289 (Miss.1976); Hubbard v. Morris, 275 So.2d 858 (Miss.1973); Maness v. Illinois Central Railroad Co., 271 So.2d 418 (Miss.1972); McCollum v. Randolph, 220 So.2d 310 (Miss.1969); Spell v. Ruff, 217 So.2d 7 (Miss.1968); Southern Pine Superior Stud Corp. v. Herring, 207 So.2d 632 (Miss.1968); Dendy v. City of Pascagoula, 193 So.2d 559 (Miss.1967).

Applying this long-established rule to the case at bar, we should have no hesitancy in affirming the jury verdict for the defendants.

Smith v. Kilpatrick, 254 Miss. 155, 180 So.2d 607 (1965), is very similar to the case at bar. This Court summarized the testimony in this way:

“Mrs. Kilpatrick said that, as she passed along the street, her right wheels were about two feet from the curb on her right hand side. She had not shifted out of low gear, and was traveling about five to ten miles per hour when she heard a bump or thud on her right front door.
“She stopped her automobile, got out and went back, and found the little Smith girl lying in the driveway. She said she had not seen the child before the impact on her car door, the sound of which she had heard.
“A subsequent examination of Mrs. Kilpatrick’s automobile disclosed a smudged place in the mud or dirt on the right hand door about the place where she heard the sound. There was no physical or other evidence that any other part of Mrs. Kilpatrick’s automobile had come in contact with the child.” 254 Miss, at 159, 180 So.2d at 608.

In upholding a directed verdict for the defendant, this Court said:

“We do not think this testimony raises an issue of fact which would warrant its submission to a jury as to whether any negligence on Mrs. Kilpatrick’s part proximately caused or contributed to the injury and death of Vicki Smith.
“In Hebert v. Lenart, 247 Miss. 494,153 So.2d 658 (1963), it was held that the burden of proving the child’s position was upon the plaintiff. The Court said in 247 Miss, at 505, 153 So.2d at 662:
* * * the burden was on the plaintiff to show that the child was in the street a sufficient time before the collision, and in a place within the range of vision of the bus driver, for the defendant, in the exercise of ordinary care, to have seen him and avoided striking him. But, as stated above, there is no evidence as to when the child came into the intersection, how he got there, or what the position of the bus was when he got there.”
254 Miss. at 160-61, 180 So.2d at 609.
“In Berry v. Brunt, 252 Miss. 194, 172 So.2d 398, 401 (1965), this Court said:
In view of the fact that the burden of proof is upon the plaintiff, such circumstances must be ample and must appear from the evidence. Moreover, the evidence must not leave the causal connection a matter of conjecture; it must be something more consistent with plaintiff’s theory as to how the accident occurred.”
“The trial court was correct in directing the jury to return a verdict for the defendant.” 254 Miss, at 162, 180 So.2d at 610.

Hebert v. Lenart, 247 Miss. 494,153 So.2d 658 (1963) is also very similar to the case at bar. Hebert was the driver of a school bus, and, after discharging some children on the right side of the street, he checked his rear-view mirrors and pulled away from the curb. He had gone only a few feet when he heard a noise and felt something like a bump. He stopped and discovered that the left rear wheels of the bus had passed over a small boy on a bicycle. The area was one in which many children played and rode their bicycles in the street.

This Court, speaking through Judge Kyle, reversed a judgment for the plaintiffs, stating:

“[W]e think the plaintiffs failed to prove negligence on the part of the defendant in the operation of his school bus; and that the court erred in refusing to grant the peremptory instruction requested by the defendant.” 247 Miss. at 509, 153 So.2d at 664-65.

Furr v. Brookhaven Creamery, 188 Miss. 1, 192 So. 838 (1940), is almost an identical case. In Furr, a 16-year-old boy was attempting to board a milk truck as it was proceeding down the road. The plaintiff, decedent’s mother, was the only person examined as to the details, as the trial court granted the defendant a directed verdict at the conclusion of the plaintiff’s case. The Court summarized her testimony as follows:

“Mrs. Furr’s testimony was to the effect that her son was accustomed to ride with the driver, Nettles, to Wesson two or three times a week; that on the morning in question her son raised his hand to flag Nettles, who was looking at the highway in the direction in which he was proceeding, and as the truck passed the boy at a speed of eight or ten miles an hour, he caught the door of the cab, and as the truck speeded up, fell and was run over by the rear righthand wheel of the truck. She further said she believed that the driver Nettles, saw her son immediately before and at the time of the accident; but on cross-examination admitted that she did not know whether Nettles saw her son flag the truck and attempt to board it.” 188 Miss, at 17-18, 192 So. at 839 — 40.

In holding that the directed verdict for the defendant was properly given, this Court said:

“We are of opinion that in order to predicate negligence on the part of Nettles it was necessary to show, either by direct testimony or such circumstances as would lead to the fair inference, that Nettles saw young Furr, and negligently speeded up his truck while aware of Furr’s effort to board it; and that he could have foreseen that increasing speed at that moment might result in injury to Furr. We do not think that it can fairly be inferred from Mrs. Furr’s evidence that the driver of the truck was aware of Furr’s perilous situation when he speeded up the truck.
“The death of young Furr, therefore, as shown by this record, was not due to negligence on the part of Nettles; and the jury could only have reached a verdict for the plaintiff had the case been submitted upon mere conjecture, instead of these facts. The courts cannot base judgment upon mere conjecture or possibility.” 188 Miss. at 18, 192 So. at 840.

The principal fault I find with the majority opinion in the case at bar is that we are not only ignoring and disregarding the undisputed facts which support the jury’s verdict for the defendants, but also speculating and conjecturing as to how the accident happened in order to find that, as a matter of law, the defendants are liable.

The most that could be said in the case at bar is that it was a jury issue. Invariably we have affirmed the jury verdict. In Morris, by next friend, v. Boleware, 228 Miss. 139, 87 So.2d 246 (1956), this Court said:

“There must have been negligence on the part of the defendant which proximately caused or contributed to her injury. Since the defendant testified that he did not know that there was child at the intersection until she suddenly ran around the parked car in front of his automobile, the jury was well-warranted in believing that the defendant, in the exercise of reasonable care, could not have reasonably anticipated that some child would suddenly run around a parked car in front of his moving automobile. Thus the jury was warranted in finding that the defendant was guilty of no negligence whatever in connection with the injury to the plaintiff. See Gordon v. Carr, 226 Miss. 836, 85 So.2d 490; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603.
“Neither was the verdict of the jury contrary to the great weight of the evidence.
“From which it follows that the judgment of the trial court must be affirmed.” 228 Miss. at 146, 87 So.2d at 248 (1956). (Emphasis added).

We affirmed a jury verdict for the defendants in Oglesby et al. v. Bagby Hall Motors, Inc. (and Olen McKay), 209 So.2d 644 (Miss.1968).

The amazing thing about the Court’s decision in the case at bar is that, while in Morris and Oglesby the victim was in front of the defendant’s car when hit yet we affirmed jury verdicts for the defendants; while in the case at bar the victim apparently backed into the side of the defendant’s van with no chance for the defendant to avert the accident, yet we are finding as a matter of law that the defendant was liable. The physical facts prove that the only way Cole could have been hit on the right side of his head by the rearview mirror on the right side of defendant’s van was to move backwards from the shoulder of the highway into the right side of the van.

Robertson v. Welch, 242 Miss. 110, 134 So.2d 491 (1961), cited in the majority opinion, is clearly distinguishable. In Robertson, four people were crossing the highway from south to north. Welch was proceeding west in the north lane. As they neared the north edge of the pavement Mrs. Raines was hit by the right front headlight and fender of Welch’s car.

In the case at bar, Cole backed into the right side of Mrs. Todd’s van as she was abreast of him in her proper lane on the highway. She had no chance whatsoever to avert the accident, and the jury so found.

I would affirm the verdict of the jury for the defendants.

SMITH, P. J., and BROOM, J., join in this dissent.


source: Caselaw Access Project

author: BROOM, Justice

license: Public Domain

text:
    VICKSBURG CHEMICAL COMPANY v. Clifton THORNELL et ux. and W. M. Alexander et ux.
    No. 49955.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Rehearing Denied March 15, 1978.

      Brunini, Everett, Beanland & Wheeless, William G. Beanland, Robert A. Weems, Vicksburg, for appellant.
    Bullard, Campbell & Gee, Robert W. Gee, George N. Chaney, Vicksburg, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice

for the Court:

Air pollution and resulting damages are the chief aspects of these two consolidated causes appealed from the Circuit Court of Warren County. Two verdicts of $18,000 each were returned against Vicksburg Chemical Company (appellant), and in favor of the plaintiffs, W. M. Alexander and Roberta Alexander, husband and wife, and Clifton Thornell and Willie Mae Thornell, husband and wife (appellees). We reverse for retrial on the issue of damages only.

The plaintiffs alleged that the air on and over their property was polluted by appellant’s chemical plant. Originally fifteen separate suits were filed by residents of the area against appellant but, on motion of plaintiffs to consolidate all the cases, the lower court issued its order consolidating the cases into three packages of five cases each so that there would be only three trials (five cases at one time). Consolidation was in numerical order according to docket numbers whereby the first five cases were tried (including the two now before the Court). The jury returned five identical verdicts for $18,000 each, but after trial and pending appeal, disposition was made of three of the cases, leaving the two now before us.

Each declaration alleged that the plaintiffs owned their residences a short distance west of appellant’s plants and had lived there for many years. Other allegations were that beginning in early 1974 an excessive amount of pollutants, including smoke and odors, was emitted into the air by appellant which caused appellees harm, principally in the smelling of obnoxious odors, and making it inconvenient and disagreeable to live in their residences which on occasions were rendered unfit for occupancy-

Appellant argues that the trial court erred in consolidating five cases for trial, granting appellees certain instructions, and refusing others. Appellant further argues that the jury verdicts were excessive.

The rule established in this jurisdiction is “whether a consolidation should be ordered is within the sound discretion of the trial court,” and “consolidation of actions in proper cases serves many sound purposes and should be liberally construed. The object is to avoid a multiplicity of suits, to prevent delay, to clear congested dockets, to simplify the work of the trial court and to save numerous costs and expenses.” See Stoner v. Colvin, 236 Miss. 736, 110 So.2d 920 (1959); Gwin v. Fountain, 159 Miss. 619, 126 So. 18 (1930); Planters Oil Mill v. Yazoo and M. V. R. Co., 153 Miss. 712, 121 So. 138 (1929).

Here the consolidated cases were based on the same cause of action and each had a common defendant. In our opinion, the lower court did not abuse its discretion in ordering that the cases be consolidated into trials of five each and we would not reverse the causes for that reason. After a careful study of the record, however, we have reached the conclusion that the consolidation and the actions of the jury as shown by the record hereafter discussed had a substantial bearing and influence on the jury and in all likelihood caused the amount of the verdicts to be excessive.

Appellant complains of three instructions given appellees, which instructions were based primarily on what is commonly called the “Mississippi Air and Water Pollution Control Act” enacted by the Legislature as Chapter 258, Laws of 1966. This statute was amended in 1972 and the instructions given plaintiffs and objected to by appellant were based primarily on the amended statute as set out in Mississippi Code Annotated section 49-17-29 (1977 Supp.), which provides:

It shall be unlawful for any person to cause pollution of the air in the state or to place or cause to be placed any waste or other products or substances in a location where they are likely to cause pollution of the air.

Under “Definitions” in the Act, we find the following (Code § 49-17-5 [1977 Supp.]):

(a) “Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke, or vapor or any combination thereof produced by processes other than natural.
(b) “Air pollution” means the presence in the outdoor atmosphere of one or more air contaminants in quantities, of characteristic, and of a duration which are materially injurious or can be reasonably expected to become materially injurious to human, plant or animal life or to property or which unreasonably interfere with enjoyment of life or use of property, throughout the state or throughout such area of the state as shall be affected thereby.
(c) “Air contamination” means the presence in the outdoor atmosphere of one or more air contaminants which contribute to a condition of air pollution.

The declarations filed in the cases sufficiently allege facts which if true would constitute a violation of the act as above quoted. Appellees were granted other instructions dealing with the alleged nuisance. Our opinion is that the instructions granted appellees based on the statute were properly granted and submitted to the jury.

Appellant contends that it was erroneously refused three instructions pertaining to its affirmative defense that appellant had acquired a prescriptive right to emit the alleged pollutants into the air. The facts showed that the initial chemical plant at the location in question was built in 1953 by Spencer Chemical Company for the purpose of producing nitric acid. In 1960 this nitric acid plant was sold to Gulf Chemical Company and at about the same time Southwest Potash Company began operating a potash nitrate plant adjacent to the nitric acid plant. Appellant purchased both properties in July, 1972, and in 1973, built three additional plants primarily for the purpose of manufacturing herbicides and pesticides. About the first of 1974, appellant began operations, .and soon began operating another plant making hydrazine, a rocket fuel for the Air Force. This, according to appellant, was discontinued the latter part of the year primarily because of obnoxious odors emitting therefrom.

Appellees correctly contend that the “Air and Water Pollution Act” enacted by the legislature in 1966, and amended in 1972, tolled any prescriptive right gained by appellant or its predecessor in ownership. Also, appellant admittedly added greatly to the output of the nitric acid plant after 1973, and added four chemical plants which produced chemicals other than nitric acid. We agree with the lower court that there is no way to hold that the additional output of chemicals after purchase by appellant in 1972 was a continuation of the prior operation. Clearly there was an extensive change, and a corresponding change in output of pollutants. Therefore, we hold that the lower court made no reversible error in its rejection of instructions requested by appellant.

Appellant contends that the five identical verdicts were excessive, and evinced bias and prejudice on the part of the jury. Although such bias and prejudice are not established by the record, it does indicate that the jury was confused. Confusion of the jury is demonstrated by the fact that each of the five cases was brought by the head of the household and the testimony showed that each of the five cases involved different family situations. The Alexanders had no children living at home; the Thornells had two children living at home; two of the other plaintiffs were single but had children. We recognize the legal principal that in a nuisance action a person who has a property interest, whether ownership or leasehold, may bring a suit for dangers resulting from a nuisance on behalf of himself and all members of his family. Hodges, et ux. v. Town of Drew, 172 Miss. 668, 159 So. 298 (1935); See also 58 Am. Jur.2d, Nuisances §§ 103, 104.

The evidence shows that the five plaintiffs whose cases were tried below lived varying distances from appellant’s plants. Some plaintiffs were inconvenienced at times more than others, although the evidence essentially is the same as to all property involved.

Confusion of the jurors is further shown by the record in that on two occasions, after deliberating for some time, the foreman reported to the court that they were unable to reach a verdict and were “hopelessly deadlocked.” After the court kept the jury in the room for further deliberation, finally identical $18,000 verdicts were returned in all five cases.

After carefully studying the record and noting the identical verdicts, we are of the opinion that the jury was confused and that this confusion probably resulted from the consolidated cases involving different numbers of people in each case. We conclude that the identical verdicts indicate that the jury did not follow the instructions on damages and in all probability reached a “compromise” verdict. Our view is that had the jury not been confused, and had it followed the court’s instructions, the amounts of the verdicts necessarily would have been different in each case. Therefore, reversal is ordered, and a new trial granted on the issue of damages only.

REVERSED AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES ONLY.

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


author: GEORGE F. ADAMS, Commissioner

text:
    Adele B. HEMPHILL v. Jerry ROBINSON.
    No. 49452.
    Supreme Court of Mississippi.
    Feb. 22, 1978.

      Brewer, Deaton & Evans, Norman C. Brewer, Jr., Greenwood, for appellant.
    Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Sullivan & Sullivan, R. M. Sullivan, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ., and ADAMS, Commissioner.
   GEORGE F. ADAMS, Commissioner

for the Court:

The principal questions involved on this appeal are whether a quitclaim deed from Vassar D. Hemphill to Mrs. Bessie Hemphill Robinson was delivered and the construction of the Last Will and Testament and Codicil of Mrs. Bessie Hemphill Robinson.

Jerry Robinson filed a bill of complaint in the Chancery Court of the First Judicial District of Carroll County against Mrs. Adele B. Hemphill on November 29, 1966. Complainant alleged that he inherited the east half of the west half of the northwest quarter of Section 16, Township 19, Range 2 East from his mother, Mrs. Bessie H. Robinson who died December 26, 1956. He alleged that the defendant, Mrs. Adele B. Hemphill, was the widow of Vassar D. Hemphill, who died on December 1, 1960, and that Vassar D. Hemphill devised her all of his property except two small bequests of money to other persons.

Complainant alleged that Vassar D. Hemphill, during his lifetime, and defendant, after the death of Vassar D. Hemphill, used and possessed the land of complainant from December 26, 1956.

The bill was dismissed September 30, 1967 for failure of complainant to answer interrogatories propounded by defendant. On appeal to this Court we reversed and reinstated the bill of complaint. Robinson v. Hemphill, 229 So.2d 827 (Miss.1969), (Rehearing denied 1970). Thereafter, on December 22,1970, complainant filed another bill of complaint against defendant in a separate cause and alleged that his mother owned at the time of her death two tracts of land described as follows:

Tract Number One
The East Half (E V2) of the West Half (W V2) of the Northwest Quarter (NW V4), Section 16, Township 19, Range 2 East, First Judicial District of Carroll County, Mississippi (all of this land, or substantially all, lying North of Highway 82, and containing 40 acres, more or less)
Tract Number Two
The East Half (E V2) of the Southwest Quarter (SW Vi), Section 16, Township 19, Range 2 East, and the East Half (E V2) of the Northwest Quarter (NW Vi), Section 21, Township 19, Range 2 East, First Judicial District, Carroll County, Mississippi (all of this land, or substantially all, lying South of Highway 82, and being 160 acres, more or less).

Complainant further alleged that his mother in her Last Will and Testament dated January 21, 1943, devised to her brother, Vassar D. Hemphill, the land which adjoined Vassar D. Hemphill on the south side of Highway 82; that testatrix devised and bequeathed to complainant all of her property not otherwise specifically devised in the Will; and, by Codicil dated August 19, 1954, testatrix modified the initial devise to Vassar Hemphill. The provisions of the Will and Codicil pertaining to the devise to Vassar D. Hemphill follow:

Will,
If I die before my brother Vassar Hemp-hill I want him to have the land belonging to me, that adjoins his on the south side of Highway 82 He having paid taxes on said land for 12 years.
Codicil
First of all I want the few acres of land on South side of road to go to my brother, Vassar D. Hemphill who has paid all my taxes and everything he could, since 1934

Complainant further charged that, after his mother’s death in 1956, he requested possession of the land passing to him under his mother’s Will from Vassar D. Hemphill, but that Vassar D. Hemphill, instead of delivering possession of the land to him, took him to the courthouse at Carrollton, Mississippi and showed him a deed dated May 15, 1934, signed by his mother, which conveyed the land involved in the suit plus 80 acres in Tallahatchie County to Vassar D. Hemphill.

Complainant further alleged that Vassar D. Hemphill concealed the fact that he re-conveyed the property to complainant’s mother by deed dated May 29, 1934. The deed from Vassar D. Hemphill to complainant’s mother was discovered in 1966 and complainant alleged that it had been in his mother’s possession until her death but had not been recorded; that immediately upon its delivery to complainant he caused the deed to be recorded. Complainant alleged that he was the owner of all of the land designated as Tract I, all of Tract II except for a “few acres on the south side of the road”, and requested the court to construe the meaning of the phrase.

Complainant prayed that the Will of his mother be construed and that his title be confirmed; that defendant be required to make an accounting for the use of his land since December 26,1956; that defendant be directed to secure the release of the land from any deed of trust which she had executed, or in lieu thereof, that he be granted a lien against that part of Tract II determined to be owned by defendant to secure payment of any indebtedness created by her against complainant’s land.

Defendant answered and admitted that the Will of Mrs. Bessie Hemphill Robinson was duly executed, but disagreed with complainant’s interpretation thereof, admitted that the deed from Vassar D. Hemphill to Mrs. Robinson was found in 1966 but denied that complainant made any request for possession of any land and alleged that complainant knew that the land was the property of Vassar D. Hemphill by virtue of a recorded deed which conveyed the land to him. Defendant denied that her husband concealed from complainant any fact pertaining to the estate of his mother. Defendant also asserted as affirmative defenses: (1) the property which is the subject of the suit descended to Vassar D. Hemphill under the terms of the Last Will and Testament of Mrs. Bessie H. Robinson, (2) there was no delivery or acceptance of the deed from Vassar D. Hemphill to Mrs. Bessie H. Robinson, (3) that complainant was es-topped to assert claim to a title through the deed from Vassar D. Hemphill to Bessie H. Robinson, (4) that complainant was not entitled to maintain his suit because of laches and the defendant and her predecessor in title had adversely possessed the land since May 29, 1934.

The two cases were consolidated for trial by agreement of the parties. The final decree granted complainant possession of Tract I and all of Tract II with the following exception: “Less, on the south side of Highway 82 a few acres of land which adjoin the land of Vassar Hemphill on January 1, 1954.” The decree did not describe the exception. The decree also directed defendant to secure a release of complainant’s land from all deeds of trust given by her or her predecessor in title and that a lien in favor of complainant be impressed on defendant’s land to secure the sum necessary to cause the release of complainant’s land from the deeds of trust. The lien was to remain on defendant’s land until complainant’s land was released from the deed of trust. No provision was made in the decree for an accounting by the defendant.

The testimony showed that L. S. Hemp-hill and Ida Martin Hemphill were the parents of Vassar D. Hemphill, Mrs. Bessie Hemphill Robinson, James Hemphill and Everett Hemphill. L. S. Hemphill owned extensive acreage in Carroll County along Highway 82 and his home was located at Valley Hill, approximately ten miles from Greenwood, Mississippi between Greenwood and Carrollton on Highway 82. L. S. Hemphill died about 1924 and his land descended to his widow and children. The land involved in this suit descended to Mrs. Bessie Hemphill Robinson.

Mrs. Robinson, her husband and her son, the complainant, lived in Tallahatchie County until her husband died in 1933. After his death, Mrs. Robinson moved to the family home in Carroll County in 1934 and shared the home with her mother, her brother, Everett, and his wife, Myrtis Hemphill.

Mrs. Robinson continued to live in the old home place until shortly before her death on December 26, 1956. About four or five months before her death she became feeble and was moved to Greenwood. Mrs. Robinson’s mother died about 1951 and her brother Vassar died in December, 1960. There was an old safe located in the family home which was used by Mrs. Robinson and other members of the household. After the death of Mrs. Ida Hemphill and Mrs. Robinson, Everett Hemphill and his wife Myrtis continued to reside in the home place until the death of Everett. Myrtis, the wife of Everett, was the last to die and just before her death moved to an apartment in Greenwood. Myrtis requested that her personal belongings be brought to her from the old safe which was located in the old home place. When the safe was opened, the deed from Mrs. Robinson to Vassar D. Hemphill and the deed from Vassar D. Hemphill to Mrs. Robinson were found and Myrtis had the deeds sent to complainant who promptly recorded the deed from Vassar D. Hemp-hill to his mother on July 8, 1966.

It is without dispute that the unrecorded deed from Vassar D. Hemphill to Mrs. Robinson was found in the safe in the home where Mrs. Robinson had lived until shortly before her death. There is no evidence that Vassar ever used or attempted to use the safe located in the old home place. To the contrary, Vassar had other depositories, one at his gin, one at his bank, and one in a safe in his home.

The chancellor found there was a valid delivery of the deed from Vassar D. Hemp-hill to Mrs. Robinson and that Mrs. Robinson was the owner of the land described as Tracts I and II. The two deeds included eighty acres of land in Tallahatchie County. The Tallahatchie County land remained on the tax assessment rolls in the name of Mrs. Robinson, she conveyed the land to B. M. Wells on January 4, 1935, she accepted a reconveyance from Wells on February 1, 1936, and executed a deed of trust thereon in favor of Vassar Hemphill on November 5, 1936. Finally, she sold the Tallahatchie County land to J. M. Lay and wife by deed dated October 6, 1956. This treatment of the Tallahatchie County land by Mrs. Robinson strengthens the chancellor’s finding that there was a valid delivery of the deed from Vassar D. Hemphill to Mrs. Robinson. We therefore hold that the chancellor correctly held that Mrs. Robinson was the owner of the land designated as Tracts I and II at the time of her death.

The proof also showed that Vassar Hemphill was considered to be the “brains” and businessman of the Hemphill family; that even before his father’s death, Vassar began to farm his father’s land, and after his death continued to farm the land, including that which had descended to Mrs. Robinson, as he had always done. We are of the opinion that the evidence showed that Vassar Hemphill occupied a fiduciary relationship to his sister, Mrs. Robinson and therefore defendant’s claim of adverse possession based on Vassar’s use of the land is not well taken. Furthermore, his use of the land was not adverse to Mrs. Robinson during her lifetime.

Complainant was not guilty of lach-es because he filed the deed from Vassar Hemphill to his mother of record as soon as it was discovered in 1966 and shortly thereafter filed his suit.

We now turn to a construction of the Will and Codicil of Mrs. Robinson. In her Will she devised her brother, Vassar D. Hemp-hill, that part of her land that adjoined his on the south side of Highway 82. In the Codicil she changed this devise to read: “I want the few acres of land on south side of the road to go to my brother, Vassar D. Hemphill who has paid all my taxes and everything he could, since 1934 . . ..”

The provision in Mrs. Robinson’s Will devising her brother that part of her land adjoining his on the south side of Highway 82 is clear and unambiguous. The problem in this case is construction of the Codicil so as to ascertain the intention of the testatrix in devising Vassar D. Hemphill “the few acres of land on south side of the road.”

Certain fundamental rules of construction of Wills are well established. The object of construction of a Will is to ascertain ■ testator’s intent. Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564 (1935); Rives v. Burrage, 110 Miss. 789, 70 So. 893 (1916). A provision of the Will must, if possible, be construed so as to give effect to testator’s intention. Lanham v. Howell, 210 Miss. 383, 49 So.2d 701 (1951) cert. denied 342 U.S. 834, 72 S.Ct. 57, 96 L.Ed. 631. A Will must be construed and the testator’s intention ascertained from the usual and ordinary language expressed therein. The words of a Will are to be construed according to the rules of construction applicable to ordinary speech, except when technical terms are employed. Dealy v. Keatts, 157 Miss. 412, 128 So. 268 (1930); Harvey v. Johnson, 111 Miss. 566, 71 So. 824 (1916); Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855 (1879). Courts may not amend or reform a Will, neither may courts add to or take from a Will or make a new Will for the parties. Williams v. Gooch, 208 Miss. 223, 44 So.2d 57 (1950); Low v. First National Bank and Trust Co. of Vicksburg, 162 Miss. 53, 138 So. 586, 80 A.L.R. 112 (1931). Numerous cases dealing with the above rules of construction are to be found in Mississippi Digest, Wills, Nos. 435, 439, 440 and 456.

Additionally, Wills are to be construed in the light of circumstances surrounding testator at the time the Will was written. In Re Grandberry’s Estate, 310 So.2d 708 (Miss.1975). See also Mississippi Digest, Wills, No. 441.

In Hemphill v. Mississippi State Highway Commission, 245 Miss. 33, 145 So.2d 455 (1962), we held that a Will and a Codicil must be considered together. Accord, Magee v. Magee’s Estate, 236 Miss. 572, 111 So.2d 394 (1959); Joiner v. Joiner, 117 Miss. 507, 78 So. 369 (1918).

Applying the above rules of construction, we have no difficulty in holding that the Will of Mrs. Robinson is clear and unambiguous in her expressed intent to devise Vassar D. Hemphill all of the land owned by her south of Highway 82 which adjoined his land. The difficulty arises in ascertaining the intention of the testatrix in her 1954 Codicil when she stated, “I want the few acres of land on south side of road to go to my brother Vassar D. Hemphill ..” An examination of the Will and the Codicil in their entirety does not indicate what road the testatrix had in mind. Further, testatrix owned only 200 acres at the time of her death, 40 acres of the land lying north of Highway 82 described as Tract I, and 160 acres lying south of Highway 82 described as Tract II. The record is not clear as to the exact acreage in Tract II south of Highway 82, but we glean from the record that most of Tract II lies south of Highway 82. Certainly, 160 acres as compared to 200 acres would not be “a few acres”. We are therefore unable to ascertain the intent of the testatrix from the language used in her 1954 Codicil and hold that the quoted portion of the Codicil is void for uncertainty.

In Johnson, et al. v. DeLome Land and Planting Co., 77 Miss. 15, 26 So. 360 (1899), we held that, where a Codicil failed because it was not executed as required by law, the Will remained in full force and effect. Applying the principle announced therein that where a Codicil fails, the Will remains, we hold that the devise to Vassar D. Hemphill is determined by the Will of Mrs. Robinson dated January 21, 1943, without regard to the Codicil. We hold that Mrs. Robinson devised Vassar D. Hemphill all of her land south of Highway 82 which adjoined his land on January 21, 1943. We therefore reverse and remand the case for a hearing to ascertain the description of the land of testatrix which adjoined Vassar Hemphill’s land on the south side of Highway 82 on January 21, 1943.

On cross appeal the complainant contends he was entitled to an accounting for the use of the land from the date'of the death of his mother until the time of trial. The chancellor did not provide for an accounting and in this we are of the opinion he erred. We now hold that the complainant is entitled to an accounting by the defendant from the date she possessed the land following her husband’s death until the time of trial.

REVERSED AND REMANDED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: BROOM, Justice,

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. Barney J. WHITFIELD.
    No. 49959.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Rehearing Denied March 15, 1978.

      Roberts & Easterling, M. M. Roberts, Hattiesburg, for appellant.
    Holmes & Dukes, Paul H. Holmes, Alfred B. Jernigan, Jr., John W. Lee, Jr., Hatties-burg, for appellee.
    Before PATTERSON, C. J., and BROOM and WALKER, JJ.
   BROOM, Justice,

for the Court:

Insurance policy proceeds for a fire loss were sought by plaintiff, Barney J. Whitfield (appellee, insured) in his suit against U. S. F. & G. (appellant) in the Circuit Court of Forrest County. Trial without a jury resulted in a joint $74,546.50 judgment for the insured, Whitfield, and intervenor, First Mississippi National Bank, loss payee under the mortgage clause of the policy. We reverse.

Whitfield operated a wholesale sporting goods business which he established in 1973, with a loan from First Mississippi National Bank. Fire destroyed his warehouse on March 3, 1975, at which time U. S. F. & G. had insured the merchandise to the extent of $83,000. Shortly after the fire, John Moore, Adjuster for General Adjustment Bureau (GAB), arrived at the scene where he made photographs and told the insured, Whitfield, to bring his books, invoices and records to the GAB office. Whitfield complied the next day. Thereafter GAB kept his books and accounts for about three months, and calculated a loss estimate. Other facts will be stated as pertinent legal propositions are discussed.

U. S. F. & G. argues that the insured failed to establish the amount of his loss with reasonable certainty, and asserts that the claim should be denied because no complete and detailed inventory of the property destroyed was furnished U. S. F. & G. Admittedly, the policy provided that within sixty days after loss the insured was required to furnish an inventory of the property damaged and destroyed, detailing costs and values thereof.

Whitfield kept all of his invoices of purchases and sales in a somewhat informal file folder system described by Cummings, Whitfield’s C. P. A., as follows:

He had sales invoices which he kept in folders by months and he had purchase invoices which he kept filed in folders by suppliers.

These records were introduced into evidence.

At the time of the fire, apparently some or all of these invoices were in the hands of Mr. Cummings, who was in the process of preparing Whitfield’s 1974 income tax return. Cummings, at Whitfield’s request, prepared the document entitled “Estimated Fire Loss” by employing the following process:

Well, I took the total sales and the total purchases. In other words, we had a total of everything he purchased from all his suppliers since the inception of his business. And we took the total sales, and assuming that he had a thirty percent gross margin on those sales, we deducted thirty percent from his sales and said seventy percent of his sales was the cost of what he sold. And, so, we took his total purchases, and from that we subtracted the cost of what he sold from the inception of the business. We subtracted the inventory that was on the books, which was not involved in the fire, and we also subtracted the proceeds from the salvage to arrive at the amount of loss.

The insured had been in business approximately twenty months before the fire, and the process by which C. P. A. Cummings arrived at the estimated fire loss was described by him as “the accepted accounting procedure whenever there is a fire loss . .” Cummings’ estimate dated March 11, 1975, was delivered to Adjuster Campbell and Mr. John Moore at the GAB office. The estimate concluded that $99,081 in merchandise constituted the fire loss. Along with the estimate given to GAB’s office were Whitfield’s invoices and records, and an inventory of merchandise sold for salvage was later delivered. GAB office kept these records for three months while considering the claim.

There is merit to the argument of U. S. F. & G. that the insured failed to establish the amount of his loss with reasonable certainty. Testimony of the insured’s witness (C. P. A. Cummings) as to the amount of the loss because of the fire was based upon the inventory reflected in the 1973 federal income tax return of the insured. According to the evidence, Cummings neither prepared the return nor discussed it with the actual preparer; and, he had no personal knowledge as to how the inventory figure was computed. Because of this, as to Cummings, the inventory amount utilized was rank hearsay. Also, no other witness testified as to the accuracy of the inventory figure reflected in the tax return. Because the testimony of the C. P. A. regarding the amount of loss was in a large measure based upon this inadmissible hearsay figure, the objection of U. S. F. & G. should have been sustained. Failure to do so constitutes error requiring reversal.

Additionally, there were other weaknesses in the proof of the insured’s loss. The record shows that there were missing and unexplained over one hundred invoices of merchandise purchased by the insured. Other testimony showed that as to sales which the insured made on credit, he kept no carbon copies of receipts and had no record of such items.

Continental Insurance Co. v. Thrash, 223 Miss. 344, 78 So.2d 344 (1955), is an instance where we allowed a claimant in an insurance case to “supply the hiatus in his records” by oral testimony of qualified witnesses. Here the amount of the insured’s loss which went to the jury through the testimony of C. P. A. Cummings was not the testimony of a “qualified witness.” The C. P. A. had made no audit of the insured’s records, but computed an estimate of loss based upon what, to a large extent, was speculation and hearsay.

We reject the argument of U. S. F. & G. that the claim based upon the policy issued to Whitfield must be denied because Whitfield failed to submit a formal proof of loss in writing as specified by the policy. We reach this conclusion because the record clearly demonstrates that, immediately after the loss, Whitfield delivered his records to U. S. F. & G.’s representatives who kept the records for about three months without requesting a detailed inventory. Surely these facts, together with the settlement offer made to Whitfield at the end of three months, were sufficient to lead him to believe that he had done all that was necessary at the time. Further, as testified by witness Grove (for U. S. F. & G.) at the trial, “we’ve never objected to paying this claim at all. We want to pay it.” He said payment was not made for lack of proof to justify the amount demanded. Mississippi Code Annotated § 83-13-13 (1972) states that a proof of loss is waived where the insurer fails to furnish to the insured “proper blanks upon which to make the required proof of such loss, with full directions as to what proof is required to secure the payment of the policy.” In the case at hand, U. S. F. & G. made no proof of compliance with this statute. Here, where no forms were shown to have been given for the insured’s use in making a proof of loss, considered together with the fact that the insured furnished the insurer all of his records, plus the facts pertaining to the negotiations that went on and the offer of settlement, we think the requirement was waived. New Orleans Ins. Ass’n v. Matthews, 65 Miss. 301, 4 So. 62 (1888); 45 C.J.S. Insurance § 1044 (1946).

Accordingly, reversal is required and this case must be remanded for retrial.

REVERSED AND REMANDED.

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


author: WALKER, Justice,

text:
    The HOME INSURANCE COMPANY v. M. T. OLMSTEAD and Charline Olmstead.
    No. 49980.
    Supreme Court of Mississippi.
    Feb. 22, 1978.

      Watkins & Eager, Velia Ann Mayer, P. N. Harkins, III, Jackson, for appellant.
    John G. Corlew, Pascagoula, Frank J. Hammond, Jr., Moss Point, for appellees.
    Before INZER, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a judgment entered by the Circuit Court of Jackson County, Mississippi, after a jury verdict in favor of the appellees, M. T. and Charline Olm-stead, plaintiffs in the court below, against the appellant, Home Insurance Company. The amount of the judgment was $23,160 in actual damages, plus $4,340 in punitive damages, plus interest at the legal rate on the sum of $16,000 from the date of loss, September 7, 1969.

This case arose out of a fire loss sustained by the Olmsteads on September 7, 1969. Hurricane Camille struck the Mississippi Gulf Coast on August 18,1969. At the time of Hurricane Camille, the Olmsteads’ property was insured by the Hartford Insurance Company through the Davis Insurance Agency in Moss Point, Mississippi. On or about August 20, 1969, the Olmsteads went to the Gary Smith Agency in Pascagoula inquiring about fire insurance on their home. Mrs. Jean Langner, the Smith Agency underwriter for fire insurance, testified that she asked the Olmsteads if they had any damage as a result of Hurricane Camille, and they told her that they did not. Mrs. Langner was not asked at trial if she ever asked the Olmsteads whether they had water in the house from the hurricane.

The Home Insurance Company issued its policy to the Olmsteads on August 21, 1969, which provided $10,000 coverage on the Olmsteads’ house and $6,000 on the contents. The policy had a mortgage clause payable to J. C. Wood. By the time of the trial, the mortgage had been paid off and the Olmsteads owed Mr. Wood nothing with respect to the property.

Sometime after noon on Saturday, September 7, 1969, the Olmsteads left their house to spend the weekend with Mr. Olm-stead’s brother in Fort Walton Beach, Florida. When they returned on Sunday night, all they found was a pile of ashes. It was the testimony of the Olmsteads that the house and all of its contents were destroyed and that they were not able to save anything.

Mr. Olmstead contacted his attorney, Mr. Hammond, who told him to report the fire to their insurance agent. On Monday morning, Mrs. Olmstead went to the Gary Smith Agency and reported the loss. Mr. J. C. Oliver, the adjuster for the Home Insurance Company, testified that he called Mrs. Olmstead on September 13, 1969, and she gave him directions to the house and told him that they had had approximately a foot of water in it from Hurricane Camille. After examining the house site and confirming the high water marks on the property, Mr. Oliver checked with the Davis Agency regarding the possibility of a claim having been made by the Olmsteads under the Hartford policy for damage from Hurricane Camille. Although neither the Hartford nor the Davis Agency could confirm that'a claim had been made, someone at the Davis Agency did tell Mr. Oliver that they were of the opinion that a claim had been made for hurricane damage. At the trial,' the Olmsteads denied making a claim under the Hartford policy. It was never determined whether or not Mr. Wood, the mortgagee, made a claim.

After discovering the possibility that a claim had been made by the Olmsteads for hurricane damage, Mr. Oliver went back to the Smith Agency and interviewed Mrs. Langner. He submitted all of the information he had to the Home Insurance Company and was instructed by the company to leave a non-waiver agreement at the Smith Agency for the Olmsteads, which he did around the first of October. Mr. Oliver was instructed to suspend his investigation until the Olmsteads executed the non-waiver agreement.

The appellant first assigns as error the refusal by the trial court to grant instruction D-16, which informed the jury that their verdict should be for appellant if they found that the Olmsteads declined to submit to an examination under oath scheduled for February 4, 1970, and did not offer to submit to such an examination until June 14, 1971. The facts relating to this assignment are that on January 16, 1970, Mr. Goodman, the Home’s attorney, wrote the Olmsteads a letter, with a copy addressed to Mr. Hammond, the Olmsteads’ attorney, demanding that the Olmsteads present themselves at the Jackson County Courthouse in Pascagoula at 11:50 a. m. on Wednesday, February 4,1970, for an examination under oath. On February 2, 1970, Mr. Hammond called Mr. Goodman on the telephone and told him that the Olmsteads would not be able to make it on February 4, 1970, because they had to go out of town to take care of a sick relative. Mr. Hammond testified that at this time, and on several subsequent occasions, he attempted to make it clear to Mr. Goodman that he was not refusing entirely to submit his clients to the examination under oath, but that his refusal was only limited to February 4,1970, and they would be available at any reasonable time thereafter. Mr. Hammond admitted, however, that he did not know what Mr. Goodman’s understanding was and that he never suggested any specific dates to Mr. Goodman. Mr. Goodman did not testify at the trial.

On February 2,1970, Mr. Goodman wrote Mr. Hammond confirming their telephone conversation of that date. Mr. Goodman also sent Mr. Hammond a proof of loss form as Mr. Hammond had requested in their telephone conversation. On March 6, 1970, Mr. Hammond wrote a letter back to Mr. Goodman enclosing the signed proof of loss. Mr. Hammond’s letter of March 6,1970, did not mention his offer to have his clients examined under oath after February 4, 1970. On March 9, 1970, Mr. Goodman replied to Mr. Hammond’s letter of March 6, 1970, and asked Mr. Hammond to confirm in writing that his clients had refused to submit to the examination under oath on February 4, 1970. Mr. Hammond did not reply to this letter. • The first reference to Mr. Hammond’s alleged verbal offer was contained in a letter dated June 14,1971 (16 months after the first scheduled examination) from Mr. Hammond to Mr. Goodman asking Mr. Goodman to advise when the Olmsteads could be examined under oath “[p]ursuant to our previous conversations. . . "

On June 16, 1971, Mr. Goodman wrote back to Mr. Hammond stating that his offer to have the Olmsteads examined came too late, that the lapse of sixteen months since the examination was originally requested had resulted in the perishing of any benefits that could have been discovered from the examination demanded on February 4, 1970. The letter stated that it was the position of the Home Insurance Company that the insured by failing and refusing to submit to the examination under oath within a reasonable period of time had wilfully concealed material facts and circumstances relating to the insurance and to the alleged loss and that the Olmsteads were thereby precluded from any right of recovery.

Subsequent attempts to get the Home Insurance Company to reconsider its position proved fruitless and the Olmsteads filed suit on September 3, 1975.

The rule is that the refusal of the insureds to submit to an examination under oath in violation of the express provisions of the insurance policy will result in forfeiture of the insureds’ right to recover under the policy and will entitle the insurance company to a peremptory instruction in the trial of an action by the insureds to recover from the insurance company on a policy of fire insurance. Boston Ins. Co. v. Mars, 246 Miss. 36, 148 So.2d 718 (1963).

Further, if an insured, for a valid reason, is unable to attend an examination under oath, it is incumbent., upon the im sured, as soon as possible, to .offer to submit to an examination at a later date. See Standard Ins. Co. of New York v. Anderson, 227 Miss. 397, 86 So.2d 298 (1956); Bergeron v. Employers Fire Ins. Co., 115 Cal.App. 672, 2 P.2d 453 (1931).

Clearly, an issue in this case was whether the Olmsteads, after declining to attend the examination scheduled for February 4, 1970, failed to offer to submit to such an examination until June 14, 1971. Thus, it was error for the trial court to refuse to grant instruction D-16.

The appellant next contends that the trial court erred in instructing the jury that they could award the Olmsteads tort damages, including loss of wages and compensation for mental anguish, and punitive damages, if it was found that the insurance company acted in bad faith in refusing to settle the Olmsteads’ claim. We agree.

Such instructions could only have been premised on the assumption that there was an agreement between Messrs. Hammond and Goodman as of February 2, 1970, or shortly thereafter, that the Olmsteads would be available for an examination under oath at a convenient time after February 4, 1970. If there had been such an agreement, then the insurance company’s refusal to reschedule the examination and its denial of coverage might amount to bad faith.

However, the evidence does not indicate that there was any such agreement. At most, the evidence indicates a misunderstanding between Messrs. Hammond and Goodman. With respect to his refusal to submit the Olmsteads on February 2, 1970, and his verbal offer to make them available at a later date, Mr. Hammond admitted that he did not “. . . know how Bill [Goodman] took it.” It is clear from Mr. Goodman’s letters to Mr. Hammond, all of which mention the refusal of the Olmsteads to submit to the examination on February 4, 1970, but none of which acknowledge anything like an offer to submit as alleged by Mr. Hammond, that Mr. Goodman did not “take it” (their conversation) the way Mr. Hammond intended. In view of Mr. Hammond’s admission that he might not have made himself understood by Mr. Goodman, we are of the opinion that the evidence did not warrant granting bad faith instructions and it was error for the trial court to give them.

For the same reason, we are of the opinion that the award of prejudgment interest by the trial court was error. While it is true that prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally made, we are of the opinion that due to the misunderstanding in this case, prejudgment interest is not appropriate.

This case is a good illustration of the desirability of limiting the imposition of prejudgment interest to those cases where the denial of the claim is frivolous or in bad faith, for not only was the Home’s denial not in bad faith, but, in addition, the Olm-steads waited until September 3, 1975, to file suit — just before the statute of limitations ran out. In view of Mr. Goodman’s letter to Mr. Hammond of June 16, 1971, in which the Home Insurance Company denied the claim, it would be unjust to hold that the insureds could sit by idly and let the interest run up for four years before filing suit. We say this fully aware of Mr. Hammond’s explanation that he waited so long to file suit because he thought that Mr. Goodman was trying to get the company to reconsider its position. In the absence of any correspondence between Messrs. Hammond and Goodman following Mr. Goodman’s letter of June 16, 1971, and of any testimony concerning conversations between the two subsequent to their telephone conversation following Mr. Hammond’s receipt of the letter of June 16, 1971, it was not reasonable for Mr. Hammond to assume that Mr. Goodman would continue to pursue the matter for four years.

The Home Insurance Company’s final argument is that the trial court erred in instructing the jury that the burden was on the Home Insurance Company to prove that the Olmsteads wilfully concealed and misrepresented material facts concerning the issuance of the policy. The Home Insurance Company cites no cases in support of its argument. In Interstate Life & Accident Ins, Co. v. Smith, 260 So.2d 453 (Miss.1972), we stated that the burden is on the insurer to establish an affirmative defense relied upon to work a forfeiture of the insurance contract. Thus, there was no error by the trial court in this regard.

For the foregoing reasons, we are of the opinion that the judgment of the lower court must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . State Farm Mutual Auto Ins. Co. v. Bishop, 329 So.2d 670 (Miss.1976); Commercial Union Ins. Co. v. Byrne, 248 So.2d 777 (Miss.1971).


author: INZER, Presiding Justice,

text:
    Charles HARPER v. STATE of Mississippi.
    No. 50134.
    Supreme Court of Mississippi.
    Feb. 22, 1978.

      Don H. Evans, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ.
   INZER, Presiding Justice,

for the Court:

Appellant Charles Harper was indicted, tried and convicted in the Circuit Court of Winston County for the crime of burglary. He was sentenced to serve a term of five years in the custody of the Department of Corrections. From this conviction and sentence he appeals. We reverse and remand.

The record reflects that sometime between the hours of 12:30 and 2 a. m. on December 20, 1975, Jayroe’s Sport Shop in Louisville was burglarized. Entrance was gained by breaking the glass in the front door of the Radio Shack and then breaking open the door that led to the Sports Shop. An investigation revealed that a number of pistols were taken from the Sports Shop and among the missing guns was a .38 caliber super Llama automatic. Considerable other property was also taken. A rusty sledge hammer wrapped with black tape and a crowbar were found inside the building.

Investigating officers were unable to find any fingerprints. They began to cruise the neighborhood hoping to find suspects. The only car seen and stopped was one being driven by appellant, Charles Harper. This occurred approximately one hour after the break-in was discovered. The officers stopped Harper to “check him out.” With Harper’s permission, the officers opened the trunk of the car, searched it and found nothing. Harper went on his way. On the night of January 24, 1976, Harper was arrested in Ackerman for the possession of marijuana and for carrying a concealed weapon. At the time he was arrested he was in a car with Roy Thompson. The evidence reflects that Police Officers Shaw and McMinn, in checking out a car, approached the vehicle in which appellant was seated. They observed a bottle of beer between appellant’s legs. Ackerman is in a dry county where beer is illegal and the officers told the occupants of the ear to get out. Appellant got out of the car and began to remove a pistol from his pocket. Officer Shaw took the pistol and arrested the appellant. The pistol was a .38 caliber super Llama automatic, bearing pit marks on the handle and side, which was identified by Jayroe as being the pistol taken in the burglary of his shop. The serial number of the gun had been filed off, but the criminologist was able to restore the first four digits which were the same numbers as the first four digits of the .38 super Llama that was stolen.

Appellant, after first being advised of his rights, initially told the officers that a person pawned the gun to him in a cafe, but later said he was seated in the car when the gun was pawned to him.

At the trial the appellant testified in his own behalf and denied he committed the robbery and denied that the sledge hammer found in the shop belonged to him. He said that the gun was pawned to him on the night he was arrested and that he was unable to identify the person who pawned him the gun.

On appeal appellant assigns several grounds for the reversal of this case, at least one of which has merit and requires reversal.

Appellant was convicted of burglary and the only evidence tending to establish the guilt of the appellant was his possession of the pistol alleged to have been stolen from the shop that was burglarized and the identification of the sledge hammer as being the same sledge hammer seen in the trunk of appellant’s car sometime before the burglary. The state relied on the possession of recently stolen property to establish appellant’s guilt. The court granted over the objection of appellant the following instruction:

The Court instructs the Jury that possession of goods recently stolen does not in itself create presumption or amount to prima facie proof that the possessor is guilty of breaking and entering the building in which the goods were kept; but if other evidence in the case shows beyond a reasonable doubt, and to a moral certainty that the building was broken and entered by some one, that the theft of the goods was accomplished at the time and by means of the breaking and entering, proof of possession unexplained, or in the absence of circumstances raising a reasonable doubt as to whether the possession of the goods had been acquired otherwise than by the crime charged, is sufficient to warrant a conviction. (Emphasis added).

This instruction as written was objectionable for several reasons. It certainly is not in keeping with the approved instructions set out in Hall v. State, 279 So.2d 915 (Miss.1973) where we stated:

An instruction which correctly states the principles of law. applicable to cases involving possession of recently stolen property is set forth in Fletcher v. State, 168 Miss. 361, 151 So. 477 (1933), the instruction being as follows:
. “The Court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny.”
(168 Miss, at 365, 151 So. at 478).
In proper cases the instruction may be given as approved in Fletcher, but no attempt should be made to enlarge the scope of the instruction or to experiment with a change in language.
(279 So.2d at 916).

The purpose of setting out the foregoing form of instruction was for the guidance of the trial judges and those prosecuting for the state. While Hall was a larceny case, the same type of instruction applies to a crime involving a charge of burglary which is based upon possession of recently stolen property taken in the burglary. The instruction must be amended to encompass the charge of burglary instead of larceny. The whole purpose of the Hall admonition was to inform the trial judges and district attorneys that the instruction should inform the jury that the possession of property recently stolen is only a circumstance to be considered by the jury and in the absence of reasonable explanation the jury may infer guilt of burglary. Under the circumstances of this case the giving of the instruction complained of was reversible error.

Appellant also contends that the trial court was in error in failing to sustain his motion to suppress the evidence obtained by the officers when he was arrested in Acker-man. It is his contention that the officers stopped and searched the vehicle in which he was riding without probable cause and consequently the arrest began when the pursuit began. The trouble with this argument is that the record is not clear that the officers stopped the car. Apparently, the trial judge was of the opinion that the evidence established that the officers were making a routine check of a vehicle already parked near the curb of the street and saw the illegal beer, giving them the right to investigate and arrest. On a retrial of the case, the evidence on this point may be clarified.

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

REVERSED AND REMANDED.

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


text:
    Lige R. PARKER v. MISSISSIPPI VALLEY TITLE INSURANCE COMPANY.
    No. 49993.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Derek E. Parker, Jackson, for appellant.
    Taylor, Covington, Smith, Matriek & Gibson, Charles E. Gibson, III, Jackson, for appellee.
    Before INZER, P. J., SUGG and WALKER, JJ. and KERMIT R. COFER, Commissioner.
   AFFIRMED.


text:
    YEAGER FARMS, INC. v. C. S. WOODRUFF.
    No. 50074.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Levingston, Jacks, Levingston & Land, Jeffrey A. Levingston, Cleveland, for appellant.
    Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


text:
    CITY OF CLINTON, Mississippi v. C. D. WILLIAMS.
    No. 50355.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Fox & Gowan, John H. Fox, III, Marc A. Biggers, Jackson, for appellant.
    Merrida P. Coxwell, Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Carroll Mitchell FALVEY v. STATE of Mississippi.
    No. 50437.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    J. Cliff Thomas, Jr., Crystal Springs, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    Jackie Ben SMITH v. STATE of Mississippi.
    No. 50471.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Jan R. Butler, Eupora, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Eddie E. BRAMLITT et al.
    No. 50014.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Mauldin & Sneed, Pontotoc, S. H. Long, Tupelo, for appellant.
    Clayton & Clayton, Hugh N. Clayton, New Albany, for appellee.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ.
   Affirmed.


text:
    Earl SHELBY v. TERMINIX 7, INC. d/b/a Terminix Service.
    No. 50018.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    W. B. Duggins, Jr., Vicksburg, for appellant.
    Teller, Biedenharn & Rogers, Landman Teller, Jr., Vicksburg, for appellee.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ.
   Affirmed.


text:
    L. B. BARRETT and Mrs. L. B. Barrett v. SULLIVAN CONSTRUCTION COMPANY and Paul Sullivan.
    No. 50033.
    Supreme Court of Mississippi.
    Feb. 22, 1978.

      Laurel G. Weir, Philadelphia, for appellants.
    Clayton Taylor Lewis, Clayton Lewis, Philadelphia, for appellees.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ.
   Affirmed.


text:
    Errol DILLON v. Mary P. DILLON, Administratrix.
    No. 49981.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Carl Horn, Senatobia, for appellant.
    Taylor Webb, Leland, for appellee.
    Before INZER, P. J., SUGG and WALKER, JJ., and KERMIT R. COFER, Commissioner.
   Reversed and remanded.

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


author: WALKER, Justice for the Court.

text:
    Willis TAYLOR v. STATE of Mississippi.
    No. 50275.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Willis Taylor, pro se.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   WALKER, Justice for the Court.

Pro se petition for appeal denied with leave to amend.

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


author: WALKER, Justice, for the Court.

text:
    Charles Warner EATON v. STATE of Mississippi.
    Misc. No. 842.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Charles Warner Eaton, pro se.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   WALKER, Justice, for the Court.

Pro se petition for appeal denied with leave to amend.

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


text:
    Howard Dwaine WEEKS v. Jean Pugh WEEKS.
    No. 49978.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    John W. Christopher, Canton, for appellant.
    James H. Herring, Canton, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Affirmed, as modified.

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


text:
    Alex NORWOOD, Jr. v. STATE of Mississippi.
    No. 50199.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    William E. McLellan, III, Moore, Epps & Selph, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Affirmed.

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


text:
    Arthur M. JOHNSON v. STATE of Mississippi.
    No. 50494.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    John Paul Moore, Starkville, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and LEE, JJ.
   Affirmed.

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


text:
    Eugene BUFORD, Jr. v. STATE of Mississippi.
    Misc. No. 836.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    LeRoy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice, for the Court.

Petition for appeal granted.

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