author: LEE, Justice, for the Court:

text:
    MUNFORD, INC. v. Ira PETERSON et al.
    No. 50856.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Rehearing Denied March 21, 1979.

      Daniel, Coker, Horton, Bell & Dukes, Cy T. Faneca, Jr., Gulfport, for appellant.
    Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellees.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

The parents and brothers of Scott Peterson instituted suit in the Circuit Court, First Judicial District of Harrison County, against Munford, Inc. and Tommy Blankenship for damages accruing by reason of the wrongful death of Scott Peterson. The jury returned a verdict in favor of the Petersons for one hundred thousand dollars ($100,000), judgment was entered against Munford, Inc., and in favor of Blankenship, and Munford, Inc. appeals.

On the afternoon of May 28, 1975, Scott Peterson and four other boys planned to get together after .baseball practice. Peterson and one of the boys were to spend the night at the home of Blankenship. Later that evening, one of them slipped the keys to the family car, found some Vodka, and took it with him to the appointed meeting place (a boy’s home). They all went to the Majic Market (owned and operated by the appellant), where they bought some orange juice and later drank it with the Vodka. One of the boys was fifteen (15) years of age, three (3) of them were fourteen (14), and one (1) was thirteen (13). After drinking the Vodka, they went back to the Majic Market and one of the fourteen-year-olds entered the establishment and purchased a six-pack containing 14-oz. cans of beer. The woman operator asked him if he was eighteen (18) years of age. He replied in the affirmative, but she made no effort to have him prove his age or identify himself. The record indicates that he looked no older than a fourteen-year-old boy.

The boys went to David Black’s house (one of the party) and drank the beer. They then decided to return to the Majic Market for more beer. The seventeen-year-old sister of Black refused to let him leave because she knew they were drinking beer. The other four drove to the Majic Market where a different boy went in and bought a six-pack of beer (king-size). No inquiry was made concerning his age. They went out on a side road and drank the beer.

After consuming the second package of beer, the boys went back to the Majic Market where one of them again entered the place and bought another six-pack without any questions being asked about his age. They drove out on the side road, drank the beer and began to ride around. About 4 a. m., Blankenship was driving the automobile and was traveling west on U. S. Highway 90. A hard rain had fallen, there was water on the road, he lost control of the vehicle, crossed the median and south lanes of the highway, hit the seawall, the automobile hurdled fifty-seven (57) feet through the air, landed on the beach, and turned over five (5) times, traveling three hundred thirty-seven and a half (337V2) feet. Scott Peterson was thrown out of the car and it' rolled over him, fatally crushing his chest.

The declaration charged negligence against Munford, Inc. for selling beer to the boys in violation of the' law, all of whom were under the age of eighteen (18) years, and who became intoxicated as a result of drinking the beer. Blankenship was charged with negligence in the operation of the vehicle.

I. — II.

Appellant contends (1) the trial court erred in overruling appellant’s demurrer since the plaintiff failed to state a cause of action upon which relief could be granted, and (2) the trial court erred in instructing the jury that appellant was negligent as a matter of law.

Under the common law, there is no action for damages in the selling or giving away of intoxicating liquors. The rule is stated in 45 Am.Jur.2d Intoxicating Liquors § 553, at 852 (1969), as follows:

“At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there could be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished.”

Where there is no statute pertaining to a subject, the common law prevails. City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223 (1940).

While the Wisconsin Supreme Court upheld the common-law principle stated above in Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970), (Wisconsin subscribes to the comparative negligence doctrine) the dissenting opinion of Chief Justice Hallows may have expressed a modern trend:

“The time has arrived when this court should again exercise its inherent power as the guardian of the common law and hold upon general principles of common-law negligence a person, who, when he knows or should have known a person is intoxicated, sells or gives intoxicating liquor to such a person, is guilty of a negligent act; and if such negligence is a substantial factor in causing harm to a third person, he should be liable with the drunken person under our comparative-negligence doctrine. Conceded, the common law in this state for almost 100 years has been to the contrary. [Cases cited] but the basis upon which these cases were decided is sadly eroded by the shift from commingling alcohol and horses to commingling alcohol and horsepower.” (Emphasis added). 176 N.W.2d at 572.

However, in the discussion of the two questions presented here, we do not look to, or decide, the application of the common law in view of our statutes. Mississippi Code Annotated Section 67-3-53(b) (1972) provides the following:

“In addition to any act declared to be unlawful by this chapter, or by sections 27-71-301 through 27 — 71—347, and sections 67-3-17, 67-3-27, 67-3-29 and 67-3-57, it shall be unlawful for the holder of a permit authorizing the sale of beer or wine at retail:
(b) To sell, give, or furnish any beer or wine to any person visibly or noticeably intoxicated, or to any insane person, or to any habitual drunkard, or to any person under the age of eighteen (18) years.” (Emphasis added)

The above section is a part of Chapter 3, Title 67 of Mississippi Code Annotated (1972) which relates to the sale of light wine, beer and other alcoholic beverages, the purpose of which was to legalize and regulate the manufacture and sale of such beverages in the State of Mississippi. We are of the opinion that although the said chapter was enacted for the legalization and regulation of the manufacture and sale of such beverages, Section 67 — 3-53(b) also was adopted for the protection of the general public, including persons such as Scott Peterson. The declaration charged, among other things, that appellant sold beer to the minors in violation of Mississippi law and that such negligence contributed to the wreck and to the death of Scott Peterson.

The decisions of other states are divided on the question of liability under the facts hereinabove stated. In Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963), a seller of intoxicants to a minor was held to be civilly liable for the death of the minor to whom the product was sold. The Court said:

“At 8:30 one night in January 1960 the minor son accompanied by two friends, 17 and 18 years old, respectively, went to the Estuary Bar to purchase beverages. They were met there by Farmer who, without inquiring about their ages, delivered to them for a price one case of beer containing 24 cans and one-half pint of whiskey. The boys proceeded to a drive-in theatre and then drove to a park near a school. During these visits they drank the whiskey and 14 cans of the beer. As a consequence the petitioner’s son and his younger companion became nauseated. When they recovered to some extent they went to the home of the older companion and left him there. Afterward as petitioner’s son, still under the influence of liquor, according to the allegations of the complaint, was driving along the road at the rate of 55 miles an hour, accompanied by the remaining companion, he lost control of the car, struck an oak tree and turned over. Within six hours of the purchase of the alcohol petitioner’s son was dead from the injuries received when the car was wrecked.
The court observed that generally, in the absence of statute, a seller of liquor is not responsible for injury to the person who drinks it. It is true that such a ‘Dram Shop Act’ has not been enacted in Florida.
We feel that just here we must depart from the reasoning of the able judges who determined the controversy in the District Court of Appeal although their logic along the trail from the cited cases in the absence of a Dram Shop Act appears impeccable.” 155 So.2d 366, 367.

For decisions in other jurisdictions, see also Marusa v. District of Columbia, 157 U.S. App.D.C. 348, 484 F.2d 828 (1973); Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974); Pence v. Ketchum, 326 So.2d 831 (La.1976); Taggart v. Bitzenhofer, 35 Ohio App.2d 23, 299 N.E.2d 901 (1972); Mason v. Roberts, 35 Ohio App.2d 29, 300 N.E.2d 211 (1971).

This Court expressed the legislative concern for public safety and legislative intent when enacting the beer and wine statutes, in Alexander v. Graves, 178 Miss. 583, 173 So. 417 (1937), by stating:

“Chapter 171 of the Laws of Mississippi of 1934, and section 1, provide ‘that it shall hereafter, subject to the provisions hereinafter set forth, be lawful in this state to transport, Store, sell, distribute, possess, receive and/or manufacture wine and beer of an alcoholic content of not more than four per centum by weight.’ By section 2 it was provided ‘that if any county, at an election held for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein,’ etc.
Prior to the enactment of chapter 171 above referred to, the state had outlawed the sale of all liquors, including beer and wine, containing in excess of 1.5 per cent of alcohol. See Laws of 1908, cc. 113-117, pp. 112-120. The Legislature was departing from the policy of total prohibition to a limited sale of intoxicating liquors. They were aware of the history of legislation in reference to the sale and possession of intoxicating liquors dating back many years. It was recognized that there might be portions of the territory within the county where the sale of beer and wine might be hurtful to morals and to the safety of the community. They recognized that a vote of the entire county might authorize the sale of beer and light wines in the county, or that a majority might prohibit it; but they also recognized that in some parts of a county favorable to the sale as a whole, there might be zones where it would be hurtful and injurious to public morals and public safety. In our opinion, it was intended to confer upon the board of supervisors in territory outside of the municipality, and upon the municipality within its territory, the power to fix zones in which the sale might be conducted, and other zones in which it might be prohibited. They were not dealing with a subject entirely harmless within itself. They knew that such liquors when drunk to excess produced intoxication. Fuller v. Jackson, 97 Miss. 237, 52 So. 873, 30 L.R.A.(N.S.) 1078, in which case it was held that a beverage containing in excess of 2.12 per cent, of alcohol was intoxicating. They knew this to be an age in which the machine is much used — almost universally used in transporting people from point to point; and they knew that intoxicating liquors impaired both vision and judgment in the operation of such machines. The police department of the city of Jackson estimates that a large percentage of motor accidents are due to the use of intoxicating liquor; and also that it is responsible for a large percentage of crime in the municipality — a fact known to all informed people. They knew, also, that the use of intoxicants stimulates the baser passions, breaks down mental and moral resistance to temptation, and promotes immorality. They are also conversant with the fact that under modern conditions people use automobiles to go considerable distances from their place of residence and neighborhood, and that they are not as considerate of the sentiment of other communities as their own.” 178 Miss, at 590-591, 594-595; 173 So. at 418, 420.

The principle that violation of a statute constitutes negligence per se is so elementary that it does not require citation of authority. When a statute is violated, the injured party is entitled to an instruction that the party violating the statute is guilty of negligence, and, if that negligence proximately caused or contributed to the injury, then the injured party is entitled to recover. The demurrer admitted that appellant violated the law and the evidence is undisputed that it did so. The demurrer was properly overruled and the peremptory instruction on negligence was correctly given. The law is plain and unambiguous in prohibiting the sale, giving or furnishing beer or wine to any person under the age of eighteen (18) years by the holder of such a permit. The method of determining a minor’s age is for the proprietor to select. Suffice it to say, the responsibility is his to see that the law is not violated by him.

III.-IV.

Appellant further contends (3) the trial court erred in overruling the defendant’s motion for a directed verdict since plaintiff failed to prove defendant’s action was a proximate cause of the injury, and (4) the trial court erred in overruling defendant’s motion for a judgment notwithstanding the verdict since the jury verdict was against the overwhelming weight of the evidence.

The evidence is uncontradicted that appellant sold to the minors involved a quantity of beer in violation of the statute, that the driver of the vehicle, Blankenship, and occupants of the automobile were intoxicated to the extent that they were “feeling no pain,” that the sister of one of the boys refused to permit him to accompany the other boys to the Majic Market on their second trip to obtain beer because she recognized that they were under the influence of alcohol, that the driver of the car had consumed five (5) 14-oz. cans of beer (over a half gallon) and that on a wet highway, he lost control of the vehicle after having done so. The physical facts showed that the vehicle traveled across the highway, hit the seawall, went over the seawall a distance of fifty-seven (57) feet in the air, traveled 337V2 feet and turned over five times in the process, which indicated that it was moving at a high rate of speed.

On motion for a directed verdict, all facts proved, together with reasonable inferences, are considered most favorably for the party against whom it is requested. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975). The facts in this case raise a jury issue as to whether or not there was causal connection between the incompetence of the driver as a result of drinking the beer, and the accident. It is required only that the intoxication be a contributing cause to the accident, not the sole proximate cause. The evidence was sufficient to withstand a motion for directed verdict and the verdict was not against the overwhelming weight of the evidence.

V.

Appellant contends the trial court erred in refusing instructions on contributory negligence and assumption of risk and in granting an instruction that plaintiff was not negligent as a matter of law.

The appellant requested an instruction on assumption of risk, which was refused by the court. The instruction contains the general phrase, “that Scott Peterson knew that the conditions in which he placed himself were inconsistent with his safety” throughout. It was not specific, it did not follow the evidence, gave the jury no guide for a determination of the question, and the court committed no error in refusing same. Continental Casualty Company v. Lang, 254 Miss. 422, 181 So.2d 340 (1965).

The co-defendant Blankenship, who received a favorable verdict from the jury, requested an instruction on contributory negligence which was refused. The appellant did not request such an instruction and cannot complain that the court erred in refusing that instruction to Blankenship.

The appellees requested and were granted the following instruction:

“The Court instructs the jury that as a matter of law in this case, the Plaintiffs’ decedent, was not negligent, nor at fault, nor to blame for his death; and cannot be charged with any negligence or fault.”

Appellees seek the benefit of the statute to impose liability on appellant, yet argue that Scott Peterson was a member of a protected class and that he could not be guilty of negligence. They cite Hartwell Handle Company v. Jack, 149 Miss. 465, 115 So. 586 (1927). That case construed the Child Labor Laws, is distinguished from the present ease and is no authority for their position on this point. We have stated hereinabove that the provision of the statute prohibiting sale of beer to persons under the age of eighteen years (and others named therein) is for the public safety.

The evidence is undisputed that Scott Peterson and the other boys chipped in (pooled their money) to buy the beer, that they were all together drinking it, that they all “felt no pain,” that they were drinking the beer to make them feel good, and that Scott Peterson knew Blankenship had drunk a quantity of beer, in addition to drinking Vodka. Appellant set up an affirmative defense of contributory negligence in its answer. The instruction (peremptory) directly contradicted the evidence and it precluded the jury from applying the law of comparative negligence, although the appellant did not request an instruction thereon, [Winfield v. Magee, 232 Miss. 57, 98 So.2d 130 (1957)] was highly prejudicial and constituted reversible error.

VI.

Appellant further contends the trial court erred in granting Instruction C-00 which allowed the jury to find against appellant without finding against Tommy Blankenship.

Part of the above instruction was deleted from the court reporter’s notes by typographical error, but the entire instruction was made a part of the record and appears in the abstract. The instruction was properly given. Munford, Inc. cannot complain that the jury found in favor of the plaintiff against it and in favor of Tommy Blankenship, driver of the vehicle. The jury may return a verdict against one co-defendant and for another or in favor of the agent and against the principal. Gulf Refining Company v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954), held:

“In the case of Illinois Central Railroad Co. v. Clarke, 85 Miss. 691, 38 So. 97, 98, Clarke brought suit against the railroad company and its engineer for damages inflicted upon him by the wrongful running of a train of cars against him and his vehicle while crossing the railroad track; the railroad company acted only through and by its engineer and code-fendant as its servant and agent; the verdict was against the railroad company but it acquitted the engineer from all liability to the plaintiff. On appeal this Court said: ‘The appellee could have instituted suit for the entire amount of damage which he had suffered against either of the parties, or against both, as he chose to do. Had the verdict been against both, this would neither have lessened nor increased the liability of appellant for the entire judgment. Nor is the fact that the jury, no matter by what motive actuated, failed to find a verdict against appellant’s codefendant, in anywise prejudicial to the rights which may exist between appellant and its codefend-ant, growing out of the subject-matter of this suit. Conceding the irregularity of the verdict, and that in fact appellee should have recovered against both, this concession conveys an implied acknowledgment of the rightfulness of the verdict against appellant, and justifies the affirmance thereof, leaving appellant and appellee to settle the existing equities between them as they shall deem best. Because appellee, by reason of the whim or sympathy of the jury, was denied a recovery against both who were liable, is no argument why he should be deprived of that which he did obtain. The question here involved, while new in instance, is not novel in principle. See Knowles v. Summey, 52 Miss. 377; Weis v. Aaron, 75 Miss. 138, 21 So. 763, 65 Am.St.R. 594; Railway Co. v. James, 73 Tex. 12, 10 S.W. 744, 15 Am.St.R. 743.’ ” 220 Miss, at 434, 71 So.2d at 218-219.

VII.-XI.

Appellant assigns and argues (7) the closing argument of appellees’ counsel was designed to invoke sympathy for the other parties and prejudice appellant; (8) the trial court erred in not granting appellant’s motion for a mistrial because of remarks made by appellee’s counsel in opening argument; (9) the trial court erred in refusing to overrule appellant’s objections to opposing counsel’s interrogation of a prospective juror, Marilyn Knight; (10) the trial court erred in refusing appellant’s motion in li-mine and admitting evidence of other sales of beer [sales to other boys in the group]; and (11) cumulative effect of the errors made by the trial judge was so prejudicial that the effect constitutes reversible error.

We have carefully considered those assignments and conclude that, either they do not constitute error, or they will not occur on a retrial.

REVERSED AND REMANDED.

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

      . “The Court instructs the jury that in this case, the Defendant, Munford, Inc. was negligent as a matter of law.”

      . Morris v. Lammons, 243 Miss. 684, 139 So.2d 867 (1962) and Saxton v. Rose, 201 Miss. 814, 29 So.2d 696 (1947) hold that an assumption of risk instruction is proper in a case involving an intoxicated driver.


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    MISSISSIPPI CHEMICAL CORPORATION v. William C. ROGERS.
    No. 50829.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Rehearing Denied March 21, 1979.
    Megehee, Brown & Williams, Michael J. McElhaney, Jr., Pascagoula, for appellant.
    Pritchard, Myers & Gordon, Robert A. Pritchard, Pascagoula, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice, for the Court:

This is an appeal from the Circuit Court of Jackson County from a judgment awarding William C. Rogers $60,000 against Mississippi Chemical Corporation. Rogers was employed by Baggett Industrial Constructors, an independent contractor, which had a contract with Mississippi Chemical to perform a contract to repair one of the buildings owned by Mississippi Chemical. While walking across the roof of the building, Rogers fell through the roof when it gave way under his weight. As the result of the fall, Rogers suffered injuries.

In his declaration Rogers charged Mississippi Chemical with the specific acts of negligence as follows:

1. Failure to provide him with a reasonably safe place to work.
2. Failure to warn Rogers of the fact that the roof had deteriorated to the extent that it would constitute a hazard to his safety and well being by walking across the roof.
3. Failure to provide sufficient scaffolding to avoid the necessity for walking on the roof.

Mississippi Chemical argues on appeal that it was entitled to a peremptory instruction.

The building on which Rogers was working was a large building covering approximately two acres and was two stories high. The walls and roof of the building were covered with transite, an asbestos-type material. Rogers was working with a painting crew whose duty it was to sandblast the vertical beams, studs and braces to which the transite wall covering was attached. The structure to be sandblasted was a part of the second story of the building. In order to reach the wall it was necessary to mount the roof of the first story, and cross the roof to the wall of the second story. Rogers was carrying a hose across the roof when he fell through and received his injuries. He testified that there was no scaffolding or walkway across the roof which he was required to traverse in order to reach the wall of the second story of the building. Several witnesses for Mississippi Chemical testified that walkways were provided to enable workers to move across the roof, and Rogers’ foreman testified that he warned Rogers to use the walkways and not walk on the transite roof.

There was no testimony that Mississippi Chemical warned Rogers that it was unsafe to walk on transite, neither was there any testimony that Mississippi Chemical specifically warned Baggett, the independent contractor, about the danger of walking on transite. However, the evidence shows without contradiction that the supervisory personnel of Baggett knew of the danger of walking on transite and had been instructed in a safety meeting to keep the employees of Baggett off the transite except on the walkways provided.

Lemand Edward West, a general foreman for Baggett, testified that all the general foremen were called in the office and told to caution all their employees to stay off the transite because it was dangerous. Jerry McVey, a painters foreman for Bag-gett, and Rogers’ immediate foreman, testified that he had been instructed by his immediate foreman, Larry McVey, to keep his people off the transite and to require them to stay on the scaffold. Larry Wayne McVey, a painters general foreman for Baggett, testified that Ron Simmons, superintendent for Baggett, instructed him to tell his men not to walk on the transite. He said that he had three foremen working for him and he instructed his foremen to instruct the men in their crews not to walk on the transite. Charles Christian, a carpenters general foreman for Baggett, testified that he was told that one should not walk on transite. The reason given was that transite is more or less like concrete, it forms hairline cracks, and when the cracks occur, the material separates and would not support the weight of a man.

From the above testimony it is uncontra-dicted that the supervisory personnel of Baggett, the independent contractor, knew that transite would not support the weight of a person, that it was dangerous to walk on it, and the construction foremen were instructed to tell the crew members working under them not to walk directly on transite but use the walkways provided.

Under these undisputed facts, was Mississippi Chemical liable for the injuries Rogers received?

The owner of a building owes a duty to an independent contractor and the latter’s employees to furnish a reasonably safe place to work or give warning of danger. In Mississippi Power Co. v. Brooks, 309 So.2d 863 (Miss.1975) we held:

However, the owner is liable for his own negligence. This was clearly enunciated in the case of Ingalls Shipbuilding Corporation v. McDougald, 228 So.2d 365 (Miss.1969) where the Court discussed the obligation of a prime contractor to furnish the employees of a subcontractor a reasonably safe place to work. Ingalls did not involve a contract between an owner of property and an independent contractor but dealt with a contract between a prime contractor and an independent contractor who was a subcontractor; however, the principles set forth apply to a contract between an owner and an independent contractor. In Ingalls we stated:
Ordinarily a prime contractor is not liable for the torts of an independent contractor or of the latter’s servants committed in the performance of the contracted work. This is based on the theory that the contractee does not possess the power of controlling the person employed as to the details of the work. However, one who employs an independent contractor is nevertheless answerable for his own negligence. So an employer owes a duty to an independent contractor and the latter’s employees to turn over to them a reasonably safe place to work or to give warning of danger. W. Prosser, The Law of Torts § 80 at 546 (3d ed. 1964); 41 Am.Jur.2d, Independent Contractors §§ 24, 25, 27 (1968); Annot., 31 A.L. R.2d 1375 (1953); 57 C.J.S. Master and Servant § 603 (1948); see generally, Whatley v. Delta Brokerage & Warehouse Co., 248 Miss. 416, 159 So.2d 634 (1964); May v. Vardaman Mig. Co., 244 Miss. 261, 142 So.2d 18 (1962).
(309 So.2d at 866).

The duty to warn of any latent danger is fulfilled when the owner of premises warns an independent contractor of latent danger. Mississippi Power & Light Co. v. Nail, 211 So.2d 815 (Miss.1968).

We also recognize the rule that knowledge of danger by an independent contractor relieves the owner from the duty of warning the independent contractor or his employees. In Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 (1970), we said:

Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, .

Moreover, it should be remembered that liability rests, not upon the ground of danger, but upon the ground of negligence. Mississippi Power & Light Co. v. Nail, 211 So.2d 815 (Miss.1968); Long, Admx., Etc. v. Wollard and Farmers Elevator, Inc., 249 Miss. 722, 163 So.2d 698 (1964).

In sum, Rogers charged Mississippi Chemical with negligence in failing to provide him with a reasonably safe place to work and failure to warn him of the fact that the roof on which he was working would not support the weight of a person walking across it. Assuming that Mississippi Chemical did not furnish Rogers with a reasonably safe place to work, it did not have the duty to notify Rogers of the danger of walking on transite because his employer, an independent contractor, had knowledge of the danger of walking on transite, and the supervisory personnel of the independent contractor were instructed to warn its employees not to walk on the roof except on the walkways. Mississippi Chemical had no control over Rogers or the other employees of its independent contractor, and was entitled to the peremptory instruction which it requested.

REVERSED AND RENDERED.

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

BOWLING, J., takes no part.


text:
    Leland MARTIN v. STATE of Mississippi.
    No. 51057.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    H. C. Moynihan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

Affirmed.

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


author: COFER, J.,

text:
    HONEY FLUFF DONUT COMPANY, INC. v. DANIEL, INC.
    No. 51382.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
   COFER, J.,

for the court.

MOTION TO DOCKET AND DISMISS APPEAL OVERRULED.

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


text:
    Curtis Lee BUCHANAN v. The ESTATE of Miss Annie G. FAUNCE.
    No. 50851.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Harry P. Sneed, Jr., Gulfport, for appellant.
    Harry P. Hewes, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Charlye Mae Lambert ROSS, Administratrix of Estate of Fred D. Ross, Deceased v. Thelma Lee THOMPSON et al.
    No. 50956.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Lester C. Franklin, Jr., Franklin & Moore, Pascagoula, for appellant.
    T. Larry Wilson, Pascagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Louise Ivy WINTERS v. J. Merle GRAHAM and Theresa W. Graham.
    No. 50932.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Thomas C. Harvey, Jr., Kenneth B. Rector, Columbus, for appellant.
    Stone, Graham, Segrest & Johnson, Thomas L. Segrest, Columbus, for appellees.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Russell H. GILES v. Otis L. DAVIS.
    No. 50920.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Michael J. Malouf, Jackson, for appellant.
    Watkins & Eager, Velia A. Mayer, James A. Becker, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before SMITH, P. J., and SUGG and GOFER, JJ.

AFFIRMED.


text:
    CITY LUMBER & SUPPLY COMPANY v. Henry MAKI.
    No. 50965.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Megehee, Brown & Williams, Larry A. Smith, Pascagoula, for appellant.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

Earl L. Koskela, Pascagoula, for appellee.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    James COLE v. Rashied HOUZE, By and Through his Next Friend Yvonne HOUZE, and Yvonne Houze, Individually.
    No. 50974.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    H. W. “Sonny” Jones, Jr., Meridian, for appellant.
    Goldman & Goldman, Robert M. Dreyfus, Jr., Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    K. C. BROWN et al. v. T. L. ESTESS.
    No. 51206.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Carnathan & Davidson, Douglas M. Wright, Tupelo, for appellant.
    Cason Rankin, Carroll E. White, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Edward S. LEWIS v. STATE of Mississippi.
    No. 50879.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Garner & Garner, Robert J. Kelly, Her-nando, for appellant.
    A. F. Summer, Atty. Gen., by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concurring.


text:
    Jimmy E. PHILLIPS v. Janet PINKARD.
    No. 51045.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.
    Harry L. Kelley, Don Ramsey, Jackson, for appellant.
    Charles H. Ramberg, Brandon, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


text:
    R. D. BULLOCK and Edna Marie Bullock v. Leon FAIRBURN.
    No. 51043.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Allen & Allen, Robert 0. Allen, Donald B. Patterson, Brookhaven, for appellants.
    Mounger & Mounger, Breed 0. Mounger, Sr., Joseph M. Stinson, Tylertown, for ap-pellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Walthall County; Joe N. Pigott, Judge.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Judy Lynn Lewis SHARP v. Jimmie H. LEWIS.
    No. 50994.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Ben Thomas Cole, II, Holly Springs, for appellant.
    Farese, Farese & Farese, Anthony T. Farese, Ashland, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Tippah County; William H. Anderson, Chancellor.

AFFIRMED.


text:
    Rosie Lee GROSS et al. v. Ruthie Pittman ROBERTS.
    No. 50979.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Bailey & Bailey, Hugh L. Bailey, Sr., Winona, for appellants.
   Appeal from Chancery Court, Montgomery County; Kermit R. Cofer, Chancellor.

Liston, Crull & Gibson, Luther P. Crull, Jr., Alan D. Lancaster, Winona, for appel-lee.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.

COFER, J., took no part.


text:
    Carl ROGERS v. ROSS MOTOR COMPANY, INC., et al.
    No. 50989.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellant.
    Troutt & Moore, Nat G. Troutt, Senato-bia, for appellees.
   Appeal from Chancery Court, Tate County; L. E. Hannaford, Sr., Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.

COFER, J., took no part.


text:
    W. L. RAYBORN v. STATE of Mississippi.
    No. 50993.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    G. Lowrey Lucas, Jackson, for appellant.
    William D. Boerner, Brookhaven, for ap-pellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Horace T. SULLIVAN v. STATE of Mississippi.
    No. 50949.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.
    Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge. George' B. Grubbs, Special Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    C. L. SLOAN v. STATE of Mississippi.
    No. 50960.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.
    Mitchell, Rogers, Eskridge, Voge & Clayton, William M. Beasley, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

C. L. Sloan was indicted and tried for murder in the Circuit Court of Lee County. The jury returned a verdict of guilty of manslaughter, he was sentenced to serve a term of twelve (12) years in the state penitentiary, and appeals here from that sentence and judgment.

The evidence is in direct conflict. Testimony for the State indicates that on August 13, 1977, the appellant was operating Jewel’s Minit Mart, a convenience store in a rural area of Lee County, that Curley McLendon (the victim) and other individuals entered the store and became involved in an argument with Sloan. As McLendon started to leave the store, appellant pulled a pistol and fired a shot above McLendon’s head into the ceiling. McLendon started running from the store and appellant fired two other shots, one of which struck him in the left leg. His companions drove their automobile up alongside McLendon, as he ran, helped him into the car and took him to the hospital. When seen by a physician, McLendon was in shock, had no pulse and expired. His death was attributed to bleeding as a result of the bullet cutting or injuring the popliteal artery in his leg.

Testimony for the appellant was to the effect that McLendon came into the store, an argument ensued, McLendon put his right hand in his pocket, as if to draw a weapon, and appellant fired the shot above McLendon’s head in order to frighten him. McLendon left the store and went to his car, walked around it and started back toward the store with his hand still in his pocket. At that point, appellant claims he fired into the ground to stop McLendon, and then fired again. He testified that he did not know McLendon had been wounded, and, after McLendon started running away from the store, he never fired again.

I.

Did the trial court err in admitting in evidence bloody trousers worn by McLen-don at the time of the shooting, since they were irrelevant to the issues and were offered for the purpose of inflaming the jury?

The appellant testified that he did not see blood on the deceased’s clothes after he fired the last shot and that he did not know he had hit the deceased. The State argues that the purpose for introduction of the clothes was to show the position of the bullet hole, the nature of the wound which resulted in profuse bleeding, and to contradict the evidence of appellant. The clothes of deceased had some probative value. Williams v. State, 354 So.2d 266 (Miss.1978). Furthermore, the trial judge has a wide discretion in permitting introduction of such evidence, and we cannot say that he abused his discretion under the facts of this case. Haralson v. State, 318 So.2d 891 (Miss.1975).

II.

Did the trial court err in permitting the State to introduce parts of appellant’s confession in rebuttal?

The appellant testified in his own behalf and made statements that were contrary to, and in conflict with, a previous statement he made to Deputy Sheriff Clark on the day of the homicide. That statement was given freely and voluntarily and was properly admitted in rebuttal for the purpose of impeaching appellant. Myers v. State, 353 So.2d 1364 (Miss.1978); Blade v. State, 240 Miss. 183, 126 So.2d 278 (1961).

III.

Did the trial court err in refusing defendant’s Instruction D-10?

The Instruction D-10 follows:
“The Court instructs the jury that the defendant is not required to prove that he shot the deceased in self-defense, but the State is required to prove beyond all reasonable doubt and to a moral certainty that the defendant did not shoot the deceased in self-defense, real or apparent, and unless the State has proven beyond a reasonable doubt that the defendant did not shoot the deceased in self-defense, then you will find the defendant not guilty.”

The burden of proof in a criminal case never shifts from the State to the defendant. The State is required to prove every material element of the indictment beyond reasonable doubt. Likewise, the defendant is not required to prove that he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, including evidence of self-defense, he must be acquitted. Scott v. State, 203 Miss. 349, 34 So.2d 718 (1948); Haley v. State, 106 Miss. 358, 63 So. 670 (1913).

In Pierce v. State, 289 So.2d 901 (Miss.1974), this Court held that failure of a trial court to instruct the jury that the burden of proof rested upon the State to prove the defendant did not act in self-defense,' when so requested by the defendant, constituted reversible error.

Appellant Sloan testified that he shot over McLendon’s head into the ceiling to frighten him because McLendon put his hand in his pocket; that McLendon went outside, walked around a car and turned like he was coming towards the store; that McLendon still had his hand in his pocket as if he was trying to get something out, and that appellant fired two additional shots. Even though such testimony does not indicate that, at any time during the entire episode, McLendon pulled a weapon or removed his hand from his pocket (incredible as that may seem), the trial court should have given Instruction D-10.

Instruction C-3 charged the jury that the defendant was presumed to be innocent and the burden of proving the defendant guilty beyond reasonable doubt was upon the State. Further, the defendant was not required to prove his innocence.

Instruction S-l told the jury that, if it believed beyond reasonable doubt Sloan shot and killed McLendon without authority of law and not in necessary self-defense, the defendant was guilty of murder as charged, and if it believed beyond reasonable doubt that appellant shot McLendon without authority of law and not in, necessary self-defense, without malice aforethought and in the heat of passion, it should find the defendant guilty of manslaughter.

Instruction S-5 to some extent defined self-defense, although it did not tell the jury that the burden was on the State to prove appellant did not act in self-defense.

Instruction S-7 told the jury that, if it believed beyond reasonable doubt Sloan wil-fully, unlawfully, and feloniously and of his malice aforethought killed and murdered McLendon, then appellant was guilty of murder.

Instruction D-7 detailed elements and facts of self-defense and told the jury that, if it had a reasonable doubt as to whether or not the appellant shot the deceased at a time when he believed it was necessary in order to avoid loss of his life or to prevent great bodily harm to him, then the jury should find appellant not guilty.

Instruction D-8 was similar to D-7 and detailed the elements of self-defense as to an overt act being any gesture, motion, conduct or demonstration that would indicate a design on the part of the deceased to take appellant’s life or to do him some great bodily harm.

Under the particular facts of this case and reading all the instructions as a whole, we are of the opinion that the jury was fully instructed as to the State’s burden of proof, that the appellant was not prejudiced by refusal of Instruction D-10, and that such refusal did not constitute reversible error.

The judgment of the lower court, therefore, is affirmed.

AFFIRMED.

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


text:
    STATE FARM FIRE & CASUALTY COMPANY v. Vanda R. MAGEE, Administratrix of Estate of Janice Faye Magee, Deceased.
    No. 50923.
    Supreme Court of Mississippi.
    March 7, 1979.

      Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Edward J. Currie, Jr., Jackson, for appellant.
    Michael J. Malouf, Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Vanda R. Magee, Administratrix of ithe Estate of Janice Faye Magee, Deceased, intestate, filed suit in the Circuit Court of the First Judicial District of Hinds County against State Farm Fire & Casualty Company on an uninsured motorist claim. After the plaintiff rested, the defendant filed a motion for directed verdict which was overruled by the trial judge, and the defendant then also rested. The jury returned a verdict for the plaintiff in the amount of ten thousand dollars ($10,000), judgment was entered thereon, and the defendant has appealed.

I.

Did the trial court err in allowing testimony of the administrator of the estate of Gilbert Richard pertaining to the administrator’s investigation and conclusions as to the insurability of Gilbert Richard?

Janice Faye Magee was a passenger in a truck operated by one Calvin Walley and owned by Eagle Motor Lines. The truck collided with an automobile driven by Gilbert Richard in which his wife and three (3) other individuals were riding. Ms. Magee and Gilbert Richard (a resident of Chicago, Illinois) were both killed in the accident.

Ms. Magee carried liability insurance with State Farm Fire & Casualty Company, her policy included uninsured motorist coverage, and suit was filed against the company under that provision. Attorney Angelo J. Dorizas qualified as administrator of the estate of Gilbert Richard in the Chancery Court of Warren County, Mississippi. Dori-zas testified that he conducted an independent investigation as administrator and personal representative of said estate, that a claim was asserted against the estate for the wrongful death of Vanda R. Magee, that he made several trips to Chicago in the investigation of his client’s case, and that the purpose of his investigation was to find and collect any personal property and assets of said estate in Mississippi. Existence of a liability insurance policy would constitute an asset of the estate. He further testified that his investigation revealed there was no liability insurance policy in effect on Gilbert Richard or on the automobile he was driving at the time of the collision (April 24, 1974).

The appellant contends that the testimony of Dorizas was inadmissible because it constituted hearsay evidence, and cites State Farm Mutual v. Stewart, 288 So.2d 723 (Miss.1974). However, there the testimony as to his investigation was by plaintiff’s attorney and it was held to be without probative value, while here the testimony was by the administrator of the deceased uninsured motorist’s estate. Appellant cites Pan American Fire & Cas. Co. v. Loyd, 411 S.W.2d 557 (Tex.Civ.App.1967), where the Texas Court held that testimony of an administrator as to statements made by insurance companies was hearsay and that the administrator’s conclusions were without probative value. In Texas, hearsay evidence is totally incompetent and even without objection will not support a verdict. Subsequently, in State Farm Mutual Automobile Insurance Co. v. Matlock, 462 S.W.2d 277 (Tex.1970), the Texas Court held that a plaintiff in an uninsured motorist case attempts to prove a difficult negative, that the proof must be merely sufficient to convince the jury all reasonable efforts were made to determine the existence of such evidence; and that no insurance was discovered.

The duty of the administrator of a deceased’s estate requires him, among other things, to collect assets and pay debts of the estate, to liquidate the affairs of the estate, and to distribute the net residue of the estate to those persons entitled to it. Alexander v. Herring, 99 Miss. 427, 55 So. 360 (1910). Attorney Dorizas testified as the administrator of Richard’s estate about what he did in determining whether or not there was a liability insurance policy covering Richard. Such actions cannot be complained of as hearsay. If some part of his testimony is argued to be hearsay, it falls within the exception to the exclusionary hearsay rule as stated in 29 Am.Jur.2d Evidence § 496, at 554 (1967) following: “An exception to the hearsay rule may be made where the hearsay evidence is the only possible proof, as where a sole witness to a transaction is dead or beyond the reach of a subpoena.”

The administrator made a reasonable effort to determine the existence or not of liability insurance, which satisfied the burden of proof. We hold that the trial court did not err in admitting the administrator’s testimony. We further hold that when a reasonable investigation has been made by an administrator or executor to determine the existence of a liability insurance policy (in the estate), the results of that investigation may be shown. If the investigation indicates the nonexistence of such a policy, the plaintiff has made out a prima facie case. The burden then shifts to the insurance company to prove the existence of insurance. To hold otherwise would, as a practical matter, void the uninsured motorist provision where the uninsured motorist is deceased.

II.

Did the trial court err in admitting in evidence answers to interrogatories propounded to a non-resident witness, Mrs. Catherine Richard, who did not testify, to prove that Gilbert Richard was not insured?

Mrs. Catherine Richard is the widow of Gilbert Richard. She was riding in the automobile driven by him at the time of the unfortunate accident. Both she and Mr. Richard lived in Chicago, Illinois, and, although the record does not show they were residing together, the inferences are that they were cohabiting as husband and wife and living in the same household. Such being the situation, any liability insurance policy issued to Richard covers her as a member of the household, and she has an interest in the policy. Mrs. Richard- was asked and answered the following interrogatories:

“Q. State your name please.
A. Mrs. Catherine Richard.
Q. Where is your residence located?
A. 11527 South Eggleston, Chicago, Illinois 60628.
Q. Who was the owner and operator of the vehicle in which you were riding on or about April 24,1974 at the time of the accident that occurred in Warren County, Mississippi in which you were injured and which resulted in the death of Miss Janice Faye Ma-gee?
A. Gilbert Richard, Jr.
Q. What relation were you to the owner and operator of the vehicle?
A. My husband.
Q. Do you know if there was any liability insurance on the operator or on the vehicle in which you were riding at the time of the accident?
A. Yes.
Q. Was there any such liability insurance at the time of said accident?
A. No.”

The interrogatories were filed, notice was given to the appellant, a motion to suppress the interrogatories was filed and overruled, and appellant declined to propound cross-interrogatories. Appellant now claims that the answers constitute hearsay, that it had no opportunity to cross-examine Mrs. Richard and that the interrogatories and answers were erroneously admitted in evidence.

This Court held in Stonewall Insurance Co. v. McQueen, 337 So.2d 711 (Miss.1976), that the husband, wife and son, constituting the family of an uninsured motorist, would have been covered by a liability insurance policy as members of the same household and that the testimony of the son, who was driving the automobile, and the wife, that there was no insurance in effect, together with the reasonable inferences from such testimony, was sufficient to withstand a request for peremptory instruction.

Appellee propounded the interrogatories under Mississippi Code Annotated Section 13-1-35 (1972), (since repealed) and there is no contention that the statute was not corn-plied with. Mississippi Code Annotated Section 13-1-47 (1972) (since repealed) provided that interrogatories taken, certified and returned pursuant to law are admissible as evidence in a case. The statutes were complied with, the interrogatories were admissible, and there is no merit to this assignment.

III.

Was the appellee’s evidence as to the uninsurability and negligence of Gilbert Richard insufficient, and, therefore, should appellant’s motion for a directed verdict, or in the alternative, appellant’s motion for a judgment notwithstanding the verdict, or in the alternative a new trial, have been sustained?

This is the second appearance of the case before the Mississippi Supreme Court. On the first trial, the lower court sustained a motion for directed verdict, the case was appealed here and was reversed and remanded for a new trial. Magee v. State Farm Fire & Casualty Co., 345 So.2d 1391 (Miss.1977). The Supreme Court Record No. 49,382 was incorporated in the present cause on motion of appellant.

The proof indicated that Janice Faye Ma-gee was riding in an eighteen-wheel tractor-trailer truck, traveling south on Highway 61 Bypass in Warren County, and, as the truck approached the intersection of said highway and Culkin Road, a pickup truck pulled out in front of it. The truck driver drove into the northbound lane of Highway 61 in order to avoid hitting the smaller vehicle he was attempting to pass, and that vehicle increased speed. The tractor-trailer truck driver then attempted to slow down, and the smaller vehicle also slowed down. The Richard vehicle was approaching from the south and the view was clear for a distance of approximately one (1) mile. In order to avoid a collision, the tractor-trailer driver went approximately nine (9) feet off the east edge of the pavement. The Richard automobile drove off the pavement, struck the truck at the right front wheels, knocking them into the drive wheels.

Under all the facts, this Court held that the case was improperly withheld from the jury on the first trial. We are of the opinion that under the facts on the second trial, there was an issue of liability for the jury to determine.

IV.

Did the trial court err in granting conflicting instructions?

At the request of plaintiff, the court granted Instructions Nos. 2 and 7 as follows:

“INSTRUCTION 2
The Court instructs the Jury that if you find from a preponderance of the credible evidence that Richard Gilbert was negligent in the operation of his vehicle, and which negligence, if any, proximately caused or contributed to the accident which resulted in the death of Janice Faye Magee, then you should return a verdict for the Plaintiff and assess damages against the Defendant accordingly up to the policy limits of $10,000.00.”
* * * * * *
“INSTRUCTION 7
The Court instructs the Jury that if you find from a preponderance of the credible evidence that the uninsured motorist failed to keep a proper lookout[,] failed to have his vehicle under proper control or was speeding at the time of the accident complained of herein, then said uninsured motorist was negligent, and if you further find that said negligence proximately caused or contributed to the accident which resulted in the death of Janice Faye Magee, then you should return a verdict for the Plaintiff.”

At the request of defendant, the court granted Instruction No. 17:

“The Court instructs the jury that the burden of proof is on the plaintiff in this case to prove by a preponderance of the evidence that Gilbert Richard was an uninsured motorist at the time of the accident in question, that the said Gilbert Richard was guilty of negligence which proximately resulted in the accident in question, that the policy of insurance with the defendant was in full force and effect at the time of the accident, and that the plaintiff has suffered damages from this accident, and should you believe that the plaintiff has failed to sustain this burden of proof, then it will be your sworn duty to return a verdict for the defendant.”

Appellant contends that in Instructions Nos. 2 and 7, use of the language “proximately caused or contributed to the accident” conflicted with Instruction D-17 which used the language “proximately resulted in the accident in question, . .” It further argues that in State Farm Fire & Casualty Co. v. Wightwick, 320 So.2d 373 (Miss.1975), this Court held a collision must be the “proximate cause of negligence” on the uninsured motorist’s part. The appellant here apparently argues that there is a different rule for the application of negligence in an uninsured motorist cause and the ordinary automobile accident case. It relies upon Wightwick for that position. Although Wightwick stated that a plaintiff must show the collision was the proximate result of negligence on the part of the uninsured, it did not enunciate a new rule. Proximate cause leads to a proximate result. Proximate cause includes proximate contributing cause and the latter extends to proximate contributing result. We make no distinction in proximate cause or proximate contributing cause and proximate result or proximate contributing result. There is no merit in this assignment.

The judgment of the lower court is affirmed.

AFFIRMED.

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


author: LEE, Justice,

text:
    WANDER LIMITED v. KROUSE & COMPANY, INC., d/b/a Natchez Pecan Shelling Company.
    No. 51048.
    Supreme Court of Mississippi.
    March 7, 1979.
    Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, Natchez, for appellant.

      Mulhearn & Mulhearn, John E. Mulhearn, Natchez, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Wander Limited sued Krouse & Co., Inc. in the Circuit Court of Adams County for breach of contract, seeking fifty-three thousand four hundred dollars ($53,400) damages. The jury returned a verdict for Wander Limited in the sum of fifty-four hundred dollars ($5,400) and it has appealed, assigning the following errors:

(1) The trial court erred in refusing the peremptory instruction; and

(2) The trial court erred in overruling the motion for judgment notwithstanding the verdict filed by appellant.

The appellant requested that the court direct the jury to return a verdict for it in the amount of $53,400, which was refused. It then asked that the court instruct the jury to return a verdict for the plaintiff and to assess its damages at such amount as the jury might find from a preponderance of the evidence would fully compensate it for damages suffered because of the breach of contract by defendant, which also was refused. The rule applicable upon request for a peremptory instruction is that the facts of the case most favorable to the party against whom it is requested, along with reasonable inferences, be taken as true, that all evidence of the party seeking same which is contradicted, be disregarded, and, if the evidence is insufficient to support a verdict, the peremptory instruction should not be given. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

The facts of the present case most favorable to appellee indicate that on June 19, 1975, appellant ordered from appellee thirty thousand (30,000) pounds of Junior Mammoth pecan halves. Appellee was in the business of buying pecans, shelling them and retailing the halves to other companies. Appellant was in the business of manufacturing candies and used shelled pecan halves in the process.

The pecans ordered by appellant were to be used in its business for the year 1976. Delivery of the pecans ordered on June 19, 1975, was to be made in January or February of 1976. The order was confirmed by appellee on June 25, 1975. Appellee notified appellant by letter dated November 7, 1975, that the year 1975 was bad for quality pecans and that it would not be able to fill the order with the size requested. On December 15, 1975, appellee wrote appellant that the situation had worsened and that there were no good large-size pecans from which the order might be filled. Subsequently, there was considerable correspondence between the parties relating to a solution of the problem. On June 8, 1976, among other alternatives, appellee suggested payment of a cash settlement by it and on December 8, 1976, suggested a token payment to bring the matter to an end.

After being notified that appellee was unable to perform the contract, on January 20, 1976, appellant contracted for, and purchased, from South Georgia Pecan Company 30,000 pounds of large-size pecans at one dollar sixty-seven cents ($1.67) per pound. On the same date, it purchased an additional 30,000 pounds of large pecans from South Georgia Pecan Company for the same price per pound. The contract between appellant and appellee on June 19, 1975 provided for the sale by appellee to appellant of 30,000 pounds of Junior Mammoth pecan halves at a price of one dollar forty-nine ($1.49) per pound. Attorneys representing appellant wrote appellee a letter on January 13, 1977 that, if appellees had not delivered the pecans or made arrangements for delivery by January 31, 1977, legal proceedings would be commenced against appellee for breach of the contract.

Mr. Hugh Chevreau, an officer in the appellant firm, testified that his company covered its loss of pecans from appellee under the June, 1975 contract, and that it purchased all the pecans it needed for the year 1976, which was the year appellee’s contract required delivery of the pecans. He also testified that appellant purchased all the pecans it needed for the year 1977. Appellant did not advise appellee of the two 30,000-pound purchases of pecans it made on January 20, 1976, at a cost of $1.67 per pound.

We are of the opinion that the letter from appellee to appellant dated November 7, 1975, advising that it would not be able to fill the order with Junior Mammoth pecan halves placed appellee in the position of an anticipatory breach of contract. Mississippi Code Annotated Section 75-2-610 (1972) provides the following:

“When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may
(a) for a commercially reasonable time wait performance by the repudiating party; or
(b) resort to any remedy for breach (Section 2-703 or Section 2 — 711) [§§ 75-2 — 703 or 75-2-711], even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
(c) in either case suspend his own performance or proceed in accordance with the provisions of this chapter on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704) [§ 75-2-704].”

Under the Uniform Commercial Code, all contracts therein are required to be performed in good faith. Mississippi Code Annotated Section 75-1-203 (1972) states: “Every contract or duty within this code imposes an obligation of good faith in its performance or enforcement.”

The UCC extends to the person injured by breach of a contract the right and duty to cover his losses, that is, to buy the goods contracted for reasonably on the market and then to recover his damages from the party breaching the contract at the difference between the contract price and the cover price. In the present case, it is undisputed that the contract price was $1.49 per pound for 30,000 pounds of pecan halves that were ordered for use in the 1976 business year of appellant. Also, it is undisputed that appellant bought sixty thousand (60,000) pounds of large-size pecans on January 20, 1976 in two different purchases of 30,000 pounds each at a price of $1.67 per pound. These purchases were made, according to Mr. Chevreau, after appellant learned that appellee would not be able to perform the contract and for the purpose of covering the 30,000 pounds of pecans provided for in said contract.

Under the facts of this case, we are of the opinion that the trial court correctly denied appellant’s request for a peremptory instruction directing the jury to return a verdict for it in the full amount sued for ($53,400). The appellant also asked for and was granted Instruction P — 7, the latter part of which told the jury “ . . . [Y]ou shall return a verdict for Plaintiff and assess its damages at such amount as you find from a preponderance of the evidence will fully compensate it for damages it suffered as a proximate result of the breach of such contract by the Defendant.”

We are further of the opinion that the motion for judgment notwithstanding the verdict was also properly overruled, and that there was a jury question for determination of the full amount of damages sustained by appellant under all the facts of the case. Since the jury found for the appellant, and fixed its damages, the appellant was not prejudiced by refusal of the second requested peremptory instruction that the jury find for appellant and fix its damages in an amount that would fully compensate it for damages suffered because of the breach of contract by appellee.

Although the jury was not instructed otherwise than on mitigation of damages, it apparently arrived at its verdict of $5,400.00 by subtracting the difference between $1.67, the amount paid by appellant for pecans it purchased January 20, 1976, and $1.49, the amount per pound appellant was to pay appellee for 30,000 pounds under its contract of June 25, 1975, and multiplying the difference by the 30,000-pound figure. The verdict appears to be a logical one and supported by the evidence, and appellant cannot be heard to complain. Winfield v. Magee, 232 Miss. 57, 98 So.2d 130 (1957); Harris v. Pounds, 185 Miss. 688, 187 So. 891 (1939).

The judgment of the lower court is affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Mrs. Tellas Mae PITTMAN et al. v. MISSISSIPPI POWER AND LIGHT COMPANY.
    No. 50861.
    Supreme Court of Mississippi.
    March 7, 1979.
    Bailey & Trusty, Thomas W. Belleperche, Batesville, for appellants.
    Wise, Carter, Child, Steen & Caraway, Natie P. Caraway, Jackson, for appellee.

      Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court.

The wife and children of Alfred Pittman, deceased, filed this wrongful death suit against-Mississippi Power and Light Company in the Circuit Court of DeSoto County. After trial, the jury returned a verdict for the Power Company.

Plaintiffs’ deceased, Alfred Pittman, was killed by the fall of a utility pole while bushhogging the adjacent area on a tractor. The evidence indicated that the tractor or bushhog came into contact with a guy wire to the pole and as a result, the pole broke at its base falling on and killing Pittman.

Plaintiffs attempted to show negligence on two theories. The first was that the pole was improperly maintained, e. g., that it was rotten. The second theory was that the pole failed to meet standards established by the National Electric Safety Code.

Appellants argue that it was error for the court to admit into evidence a motion picture demonstration offered by defendant.

During the course of the trial, defendants offered into evidence a motion picture film of a tractor applying force to the guy wire of a pole and breaking the pole. The motion picture was made as part of a continuing study by Dr. Thompson, expert witness for the defendants, on light poles and stress.

Dr. Thompson stated it was an attempt to simulate the accident, but admitted some factors were different. The appellants argue these differences.

ACCIDENT SCENE APPELLEE’S MOTION PICTURE
20 year old pole New pole h*1
30-20 John Deere Tractor Ford Tractor tO
High weeds around pole and guy wire No weeds in picture CO
Two guy wires One guy wire ^
Gear of tractor unknown Guessed at gear of tractor Ol
Speed of tractor unknown Guessed at speed of tractor 05
Tractor headed counter clockwise around pole Tractor pulled away from pole
Pole broke at base Pole broke 4 feet from base
Nothing at base of pole Paraphernalia at base of pole

The Power Company, on the other hand, argues on appeal that the purpose of the test was not to recreate the accident exactly, but rather to try to simulate the size of the pole, the load on the pole, and the size of the tractor in order to determine if a new pole could withstand the stress which would have been generated at the accident scene.

They point out that the value of the test is to show that if a new pole could not withstand a similar stress, that fact becomes relevant to show that the break would have occurred no matter how good the condition of the pole. Other testimony showed that while the same model tractor was not used, the substitute was closely matched as to horsepower, size and pulling power. Other testimony by the expert, Dr. Thompson, was to the effect that neither the steel cuff and rubber shim at the base of the pole nor any other of the alleged variances would have any effect on the stress at which a pole would break.

The trial judge, after viewing the motion picture outside the presence of the jury, overruled the objection holding that the objections went to the weight of the evidence rather than to its admissibility. We disagree.

It is true that in Mississippi motion pictures are admissible into evidence. Barham v. Nowell, 243 Miss. 441, 138 So.2d 493 (1962); Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289 (1940).

In Metropolitan Life Insurance Company, supra, this Court held, “Evidence by means of motion pictures exhibited to a trial jury, while novel, is admissible when the accuracy with which they will reproduce the scenes photographed is proven, — somewhat like the accuracy of an ordinary photograph is proven. 3 Wig.Ev. 3rd Ed., Sec. 798a.” (190 Miss, at 63, 199 So.2d at 291). Again, in Barham, supra, we pointed out that a photographic representation of a scene is less likely to be distorted than a verbal one. (138 So.2d at 496 [citing to 8 Am.Jur., Proof of Fact, p. 155]).

However, the Court has been careful to limit admissibility of motion pictures unless a proper foundation has been laid for their introduction.

In Barham, supra, we stated:
As pointed out in 8 Am.Jur., Proof of Facts, page 157, it is essential in all cases to prove relevancy of the subject matter to the issues, identity of the subject matter, and that the moving pictures present an accurate and faithful representation of the scenes filmed. (138 So.2d at 495). (Emphasis added).

In Butler v. Chrestman, 264 So.2d 812 (Miss.1972), we held that even if properly authenticated a motion picture must be excluded if it is “more likely to prejudice the jury rather than to serve any evidentiary purpose.” (264 So.2d at 816).

We have held that in order to introduce a motion picture, the burden is on the proponent to lay a proper foundation for its introduction. In the present case, there is no contention that the motion picture was not properly authenticated, e. g., technical questions of who made it, how, and under what conditions the film was made, were satisfactorily answered. However, its relevancy was challenged by the plaintiffs because of the dissimilar circumstances heretofore enumerated, between the actual accident and that shown by the motion picture.

On the other hand, Mississippi Power and Light contends the motion picture was relevant because it demonstrates that even a new pole in good condition could not withstand the pressure generated at the time of the accident. From this, they argue that plaintiffs’ contention that a faulty pole was the cause of the accident is refuted. We do not agree because the evidence, without dispute, shows that there were a number of material variations between the actual event and the reconstructed event. Indeed, some factors were incapable of being reasonably duplicated because they were unknown, e. g., the speed of the tractor at the time of the accident, the point and manner of impact and the gear level. These disparities become even more important in view of the testimony of the Power Company’s expert witness who testified before the jury that “This was an attempt to recreate the accident,” or words to that effect. When this testimony is coupled with the dissimilar circumstances between the actual accident and those depicted by the motion picture, we are of the opinion the motion picture was more likely to mislead and prejudice the jury, rather than to serve any evidentiary purpose. Under the circumstances presented by the evidence, the motion picture was not relevant to the inquiry before the court as to whether the pole which struck the decedent was sound and properly maintained. Its introduction into evidence, therefore, was error. Furthermore, we are unable to say, as urged by appellee, that its introduction constituted harmless error.

For the foregoing reasons, the judgment of the lower court is reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

COFER, J., took no part.


text:
    OXFORD PRODUCTION CREDIT ASSOCIATION v. Wyllo DYE.
    No. 50902.
    Supreme Court of Mississippi.
    March 7, 1979.
    Johnson & Adams, David E. Adams, Sen-atobia, for appellant.
    Bailey & Trusty, Thomas W. Belleperche, Batesville, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is a suit to enforce a security interest in a cotton crop. The credit association sued Robert Eddins, a farmer, and Wyllo Dye, a cotton buyer. The Chancery Court of Tate County entered a judgment of $65,-437.18 plus attorney fees against Eddins and dismissed the suit against Dye. Eddins did not appeal the judgment. The credit association appeals the dismissal of defendant Dye.

The issue presented is whether the purchaser of a cotton crop, upon which there is a perfected security interest, may be sued and held jointly liable with the farmer/seller of the crop.

In 1975, the credit association made loans to Eddins in his cotton farming business. Among other things, the cotton crop was put up as collateral, and the credit association took the necessary steps to perfect their security interest in the cotton crop. Eddins defaulted on the loan in 1976, and upon default the credit association attempted to locate the collateral in order to foreclose. In the course of these attempts, the credit association learned that the cotton crop had been sold to Wyllo Dye. They then brought suit in the chancery court for a bill of accounting and other relief against both Eddins and Dye. The accounting revealed that Dye had made purchases of cotton from Eddins totalling $33,615.92.

Since Eddins did not appeal, the judgment of $65,437.18 against him on the promissory notes is final. In this appeal the credit association contends they should have a joint judgment against Eddins and Dye to the extent of the money paid by Dye to Eddins ($33,615.92) for the cotton crop which was the collateral for the loans.

The first question is whether the perfected security interest follows the sale of cotton to a cotton buyer. Mississippi Code Annotated section 75-9-306 (1972) provides in part:

(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Thus, absent other provisions of the Code, the perfected security interest would follow the sale of the cotton. Section 75-9-307 provides protection for buyers of goods and specifies that:

(1) A buyer in ordinary course of business (subsection (9) of Section 1-201 [§ 75-1 — 201(9)] other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.

The language of the statute expressly excepts from its protection “a person buying farm products from a person engaged in farming operations.”

The proof at trial showed that Eddins, the seller, was a farmer engaged in farming operations. Dye argues that the cotton was not a “farm product” since the cotton at the time of sale had been ginned and was in storage. However, Mississippi Code Annotated section 75-9-109(3) provides that goods are:

“farm products” if they are crops or livestock or supplies used or produced in farming operations or if they are products of crops or livestock in their unmanufactured states (such as ginned cotton, wool clip, maple syrup, milk and eggs), and if they are in the possession of a debtor engaged in raising, fattening, grazing or other farming operation. If goods are farm products, they are neither equipment nor inventory. (Emphasis added).

Further, the sale was directly from Eddins, the farmer, to Dye, the cotton broker.

We hold that a perfected security interest in a cotton crop follows the sale of the crop to a cotton buyer who purchases from the farmer who produced the crop. See United States v. Pete Brown Enterprises, Inc., 328 F.Supp. 600 (N.D.Miss.1971); United States v. Hughes, 340 F.Supp. 539 (N.D.Miss.1972). See also Marine Bank & Trust Co. v. Green ville Savings Bank & Trust Co., 133 Miss. 91, 97 So. 526 (1923) (arriving at same result but precommercial code case).

The cotton broker argues that Commercial Credit “waived” their right to go against her by acquiescing in Eddins’ sale of the cotton to her. To support this proposition, she cites United States v. Hext, 444 F.2d 804 (5th Cir. 1971) and Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967). Hext is distinguishable on the facts, and Clovis has been criticized in several cases and commentaries. See Baker Production Credit Association v. Long Creek Meat Co., Inc., 266 Or. 643, 513 P.2d 1129 (1973). The security agreement provides that the debtor “. . . will not further encumber, . . . sell or otherwise dispose of the same [crops] without the written consent of the secured party.” There was no evidence of written consent, therefore the cotton broker’s argument must fail.

We note that the trial court failed to make any findings of fact or conclusions of law in its dismissal of the suit against the cotton broker. The court’s opinion stated:

even though the Court has some misgivings about the responsibility of this lady as a cotton buyer, she did have some responsibility in determining whether or not the merchandise had a lien on it. I have some serious questions in my mind whether or not she exercised that degree of diligence that she should have exercised. I don’t think she did. But that notwithstanding pleadings as against her are dismissed with prejudice, .. (Emphasis added).

The chancellor erred in dismissing the complaint as to the defendant cotton broker, Wyllo Dye. As we stated earlier in this opinion, a perfected security interest in a cotton crop follows the sale of the crop to a cotton buyer who purchases from the farmer who produced the crop. Wyllo Dye fits squarely within this rule and is liable to the Oxford Credit Association for sums paid to the farmer, Eddins, for cotton to the extent that such sums were not then paid over to the Credit Association.

Therefore, since the complaint was erroneously dismissed as to Wyllo Dye and since the chancellor did not make findings of fact from which this Court can determine the sums due, if any, from Dye to Oxford Credit Association, this cause is reversed and remanded to the lower court for a determination of that question.

REVERSED AND REMANDED.

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

COFER, J., took no part.

      . Oxford Credit Association does not claim any interest in the sums paid to Eddins’ landlord by Wyllo Dye.


author: PATTERSON, Chief Justice,

text:
    Willie Nathaniel ANDERSON and Louis Scott v. STATE of Mississippi.
    No. 50899.
    Supreme Court of Mississippi.
    March 7, 1979.
    Sidney J. Martin, John C. Webb, Green-ville, for appellants.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Willie Nathaniel Anderson and Louis Scott were indicted in the Circuit Court of Washington County for aggravated assault upon a police officer acting within the scope of his duty and office. The jury found defendants guilty and the court sentenced each to thirty years imprisonment, the sentences to run consecutively with any sentence either was required to serve as a result of his armed robbery conviction in Warren County on November 21, 1977.

Both defendants appeal and contend the trial court erred in overruling appellants’ motion for a directed verdict and in ruling the state had established probable cause for appellants’ arrest.

On September 20, 1977, the Leland Police Department broadcast a bulletin describing two armed robbery suspects and the automobile in which they were traveling. Acting on this information Officer Donnie Kelly of the department stopped the described automobile, whereupon Louis Scott exited the passenger side of the automobile and opened fire on Officer Kelly. Several of the state’s witnesses testified Nathaniel Anderson also fired a weapon. Three different weapons were fired by Scott and Anderson, appellants, in the shooting spree. It was determined that Officer Kelly’s .357-caliber revolver was fired only once and that he was badly wounded in the melee.

There is conflicting testimony as to who fired the first shot and whether Anderson participated in it. The state’s witnesses, including Bernard Forbes who was accompanying appellants on the day of the shooting, testified the first shot was fired from Scott’s shotgun. Moreover, there was evidence that both of the appellants participated in the affray by firing weapons.

Appellant Scott testified Officer Kelly fired first and that he fired only in self-defense in an attempt to make Officer Kelly stay down, that he never aimed at the officer. However, the evidence establishes the great probability that ten shots, more or less, were fired at Officer Kelly from three different weapons while, to reiterate, only one shot was fired from his revolver.

The issue is whether Officer Kelly had probable cause to stop the appellants for investigation. The record reveals the communications operator for the Leland Police Department received a telephone call from the Warren County Sheriff’s Department describing two armed robbery suspects and the automobile they were occupying. The caller described the suspects as two black males, one weighing approximately 350 pounds, with a dark complexion, and the other around 150 pounds, with medium dark complexion, traveling northward on Highway 61 in a 1975 silver Cougar or Torino automobile with Louisiana license plates. The sheriff’s department also advised a warrant for the suspects’ arrest had been issued. No one on the Leland police force had personal knowledge of the warrant or the robbery in Warren County independent of the telephoned information.

The communications operator repeated this information by radio to all units of the department and approximately thirty minutes later Officer Kelly advised the communications operator that he was in pursuit of a silver Cougar automobile traveling north on Highway 61.

The appellants objected to the admission of the testimony of the communications operator on the basis of the Sixth and Fourteenth Amendments to the United States Constitution. The trial court in overruling the objection, held the communication from the Warren County Sheriff’s Office was sufficient to establish probable cause for the appellants’ arrest.

Appellants contend the communication to the Leland Police Department and transmitted by it to Officer Kelly was uncorroborated and unverified. Therefore, Kelly lacked probable cause to pursue, stop and investigate the appellants.

Probable cause means more than bare suspicion, of course, but it does not necessarily require sufficient evidence to support a conviction. Powe v. State, 235 So.2d 920 (Miss.1970). “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).

In our opinion Officer Kelly had sufficient information to justify stopping the appellants for investigation purposes. In Singletary v. State, 318 So.2d 873 (Miss.1975), we repeated and thereby adopted the following rule:

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court unequivocally settled the question of the lawfulness of an investigative stop where there is no probable cause to arrest if the officer acts reasonably. In Adams, the Court said:
“In Terry this Court recognized that ‘a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ Id., [392 U.S. 1] at 22, 88 S.Ct. [1868], at 1880, 20 L.Ed.2d 889. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct. [1868], at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22, 88 S.Ct. [1868], at 1879-1880; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970). (318 So.2d at 877)

Judged by any standard of reasonableness, the communication to the Leland Police Department was sufficient for an investigative stop, in our opinion, thus equating with probable cause.

AFFIRMED.

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


text:
    Alonzo GARDNER v. STATE of Mississippi.
    No. 50959.
    Supreme Court of Mississippi.
    March 7, 1979.

      Wilson & Hinton, Phil R. Hinton, Corinth, for appellant.
    A. P. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Alonzo Gardner appeals his conviction of aggravated assault upon a police officer for which he was sentenced to ten years imprisonment by the Circuit Court of Alcorn County.

About 10:00 p. m. on July 4, 1977, Policeman Larry Fuquay of Corinth answered a call which informed that someone was firing a gun in the southern part of the city. With this information he drove to the residence of Alonzo Gardner and knocked on the door. He received no response and departed.

Wayne Lowery and Randy Dickerson, police officers, were patrolling in the area about 10:30 p. m. when they heard a blast and observed someone carrying what appeared to be a long-barreled gun run into the apartment of Gardner. They also went to the door of his apartment, knocked, and receiving no response, departed. These officers then called the police dispatcher and requested a warrant for Gardner’s arrest for discharging a firearm within the city limits. Upon arriving at the police station they signed affidavits and obtained the arrest warrant. There is no evidence they appeared before a magistrate for the warrant. The only testimony is that the dispatcher called a judge and obtained his approval for the warrant before the officers arrived at the station.

Lowery and Dickerson, accompanied by Officer Fuquay, then returned to the Gardner residence where Officers Dickerson and Fuquay went to the rear of the apartment and Lowery to the front door. Lowery testified the following occurred:

I knocked several times and identified myself as a city policeman. And I didn’t get an answer.
I knocked again, told him I was a city policeman. I hollered, “Alonzo, city police. I have a warrant for your arrest.” He didn’t answer.
So I kicked the door twice. The door come partially a way open. Had a night chain on it.
And Alonzo, from the inside — excuse the language — he hollered, “Who the hell is it”? I said, “City Police. I have a warrant for your arrest.”
Well, I waited approximately five minutes; still no response from him. So I kicked the door.
The third time the door came open. As the door came open, I could see the light was still on in the kitchen and I could see a shadow of a man standing like that. And I just fell around behind the door facing. That’s when the blast came by.

Lowery returned the fire, shooting once through the door and twice through a window. A second shot came from the apartment and Lowery fired into the apartment the fourth time. Officer Fuquay came to the front of the building and called for police reenforcements. Later, the firing having subsided, the officers entered and found Gardner lying in bed wounded. A shotgun was discovered in the living room with an empty shell in its chamber and another expended shell on the floor. A .22-caliber pistol was found on the night stand beside the bed in which the defendant was lying.

Officer Dickerson corroborated Lowery’s testimony that he had identified himself as an officer prior to the opening shots, as did Billy Betts, a resident of the area. Officer Fuquay testified he was on the opposite side of the building and did not hear the identification.

Patricia Patterson was called as a witness for the state. After she testified that Gardner was not firing a gun on the afternoon or evening of July 4, the state moved to have her declared a hostile witness. A hearing out of the presence of the jury was conducted with the court permitting the witness to be cross-examined by the state.

Gardner testified he thought someone was breaking into his apartment and that he acted in self-defense. He elaborated that he had retired about seven o’clock and was awakened later in the night by his wife at which time someone was kicking the door to his apartment. He then walked into the living room and picked up a shotgun which accidentally fired as Lowery was breaking through the door. Mrs. Gardner, his wife, testified that she did not hear the officers identify themselves and generally corroborated her husband’s testimony. She stated that although her husband had some wine during the day, he was not drunk. Both testified the only gun Alonzo had intentionally fired, apparently in celebrating the Fourth, was a blank pistol.

A signed statement taken from Mrs. Gardner by Captain Inmon of the police department was introduced to impeach her testimony. It revealed she had previously sworn that her husband had been drinking all day and that he started firing about ten o’clock that night.

Gardner contends he was erroneously convicted under Mississippi Code Annotated section 97-3-7(2) (Supp.1978) because the officers were not acting within the scope of their duties when he was arrested due to a faulty arrest warrant. The statute provides:

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

We are of the opinion that Watkins v. State, 350 So.2d 1384 (Miss.1977), is in point and controls this case. In it Watkins was arrested without probable cause. Enroute to the jail he obtained a shotgun from a rack in the patrol car and directed the officer to pull over. He then pointed the gun at the officer and pulled the trigger. Fortunately, the gun was not loaded and Watkins was later convicted of aggravated assault under Section 97-3-7. In affirming his conviction we held that although a citizen has a limited right to resist an unlawful arrest, nevertheless the right does not give liberty for indiscriminate and violent resistance. We stated some of the standards to be considered in determining the scope of the privilege, such as:

(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.

The Court did not find the officer was acting beyond the scope of his duty even though the arrest was without probable cause. See also Allison v. State, 274 So.2d 678 (Miss.1973), and Wilkinson v. State, 143 Miss. 324, 108 So. 711 (1926).

We are of the opinion the trial court properly overruled the defendant’s motion to dismiss at the conclusion of the evidence and in submitting to the jury the issue of whether Lowery had identified himself as a police officer and was acting within the scope of his authority. It is contended that the court improperly determined this issue. The record reveals, however, that it was submitted to the jury for its resolution. In Dotson v. State, 358 So.2d 1321 (Miss.1978), we held this was the proper procedure and here the jury through its verdict of guilty resolved the issue from substantial facts.

Gardner next argues the court erred in admitting testimony that he had been drinking and had discharged both a pistol and a shotgun several hours prior to the time he fired through the door. The general rule is that proof of a crime distinct from that charged in the indictment should not be admitted into evidence against an accused. Cummings v. State, 219 So.2d 673 (Miss.1969). There are, however, exceptions to this rule as noted in Floyd v. State, 166 Miss. 15, 148 So.2d 226 (1933), and which has been elaborated upon in Horton v. State, 288 So.2d 467 (Miss.1974), as follows:

[T]hat proof of such other crime is admissible if it sheds light upon the motive for the commission of the crime charged in the indictment. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). Proof that defendant is guilty of another crime is admissible when that fact (1) tends to show that the deceased officer had a right to arrest the appellant without a warrant, or (2) tends to show that the accused knew why he was being arrested, and therefore sheds light on the motive for the commission of the crime for which accused is being tried. White v. State, 70 Miss. 253, 11 So. 632 (1892). (288 So.2d at 468)

Presently, it was incumbent upon the state to prove that Lowery was an officer and acting within the scope of his duty in order to make its case of aggravated assault upon a police officer. It was established through the testimony that Lowery was an officer, whereupon the conduct of Gardner became relevant and material to establish whether Lowery reacted reasonably and within the scope of his authority to the reports related to him or that which he observed concerning Gardner’s conduct preceding his going to the apartment to make the arrest. We conclude this testimony was properly admitted into evidence.

The final assignment of error concerns the cross-examination of Patricia Patterson by the state. The general rule is that a party may not attack the credibility of a witness introduced by himself. Manning v. State, 188 Miss. 393, 195 So. 319 (1940). However, when a witness proves unexpectedly hostile to the party who has called him, he may be cross-examined provided a proper foundation for such is laid. In Hall v. State, 250 Miss. 253, 165 So.2d 345 (1964), we stated:

. Witnesses may be cross-examined or impeached by the party calling them when they prove to be hostile. Bove v. State, 185 Miss. 547, 188 So. 557; Rutland v. State, 170 Miss. 650, 155 So. 681, 156 So. 520. But a proper foundation must be laid in order to impeach a witness. The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the statements being described to him in detail. Underhill’s Criminal Evidence, Vol. 1, Fifth Edition, p. 547. (250 Miss, at 264, 165 So.2d at 350)

The state followed the procedure outlined for impeachment of its witness and established through her testimony that she had previously testified to the contrary. Under the circumstances and authorities we think this was not error.

We think it regrettable that Gardner’s exuberance in celebrating the Fourth and the officers’ zeal in pursuing a misdemeanor has resulted in a penitentiary term, but our review of the record and the authorities leaves no alternative but to affirm.

AFFIRMED.

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