author: ROBERTSON, Presiding Justice,

text:
    CITY OF MERIDIAN v. Charles W. WEBB.
    No. 52017.
    Supreme Court of Mississippi.
    July 30, 1980.
    Rehearing Denied Sept. 10, 1980.
    Snow, Covington, Temple & Watts, W. Arlo Temple, Meridian, for appellant.
    Robert M. Dreyfus, Jr., Goldman & Goldman, Meridian, for appellee.
    Before ROBERTSON, WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Appellee, Charles W. Webb, brought suit in the County Court of Lauderdale County against the City of Meridian, Mississippi, for damages suffered by him when his automobile was stolen while entrusted to the City of Meridian municipal parking garage. The jury returned a verdict for $2600 in Webb’s favor. The City of Meridian appealed to the Circuit Court, which court affirmed on condition of a $400 remittitur. The City of Meridian has appealed to this Court from the Circuit Court’s affirmance of a $2200 judgment against it.

Appellant assigns as error:

I.The Trial Court erred by overruling motion for directed verdict and refusing to grant requested peremptory instruction and overruling motion for judgment notwithstanding the verdict. The Circuit Court erred in not reversing the case for these same reasons.
II.The Trial Court erred in granting plaintiff’s instructions P-5, P-7, and P-8. The Circuit Court erred in not reversing the case for the same reasons.
III.The verdict is excessive and against the weight of the evidence, even with reduction by $400 by remitti-tur in Circuit Court, and the Circuit Court erred in not reversing the case for the same reasons.

Webb has cross-appealed, assigning as error the granting of a $400 remittitur by the circuit court.

On April 15, 1974, Clara Webb, appellee’s wife, entered into a parking space contract with the City of Meridian whereby, for a monthly fee, she could park her car in municipal parking garage No. 2. A separate “Agreement and Release” signed only by Mrs. Webb, provided:

“It is hereby understood and agreed that the employees of the Municipal Parking Garages of the City of Meridian have my permission to park my automobile, which I have parked in said garages or caused to be parked in said garages, on the street or driveway or streets adjacent to the parking garages, and that said employees have my further permission to place the key in a place to be designated by me in said automobile.
“It is understood and agreed that this will apply only after regular closing hours of said garage, and it is further understood and agreed that in consideration of any of the above services, I will not hold the City of Meridian, or any of its employees, liable for any loss, damages or other claims relevant to the parking of the said automobile on said street.” (Emphasis added).

Mrs. Webb usually worked until 5:30 p. m. at Marks-Rothenberg department store, a very short distance from the parking garage. The testimony was that the parking garage was closed each day about 5:20 p. m., and it took about a minute and a half to remove a car from the garage and park it on an adjacent city street. It was the customary practice for the garage employees to begin moving the cars to vacant parking spaces on surrounding streets about 3:30 p. m. each afternoon.

On June 1, 1978, Mrs. Webb’s 1974 Thunderbird was removed from the garage about 4:15 p. m., and parked on a nearby city street. The keys were placed over the sun visor, as usual, and the car was left unlocked. On this particular day when Mrs. Webb got off work at 5:30 p. m. she was unable to locate her car and subsequently discovered that the car had been stolen. The car was recovered about five and a half months later in Columbus, Ohio, where it had been abandoned on a public street. Ap-pellee testified that he incurred $474.82 in travel expenses, necessary repairs and lost wages in going to Columbus, Ohio, and driving his car back to Meridian, Mississippi.

Webb testified that his 1974 Thunderbird was worth $4400 at the time it was stolen, and that after shopping around among automobile dealers he sold it to an automobile dealer for $2100 two days after he had driven it back to Meridian.

Jerry Cumberland, a used car dealer, testified that the retail value of the car in June of 1978 was between $4200 and $4300, and that the car had a retail value of about $2200 to $2300 when it was recovered and returned to Meridian. '

I.

There is no merit in the first assignment of error, that the trial court erred in not granting a directed verdict, peremptory instruction or judgment n. o. v.

In Pope v. Andrews, 361 So.2d 71 (Miss.1978), we restated and reaffirmed the duty and responsibility of a bailee for hire in this way:

Undoubtedly, there existed a bailment for the benefit of the bailor-appellant and the bailee-appellee because the bailment was one of hire. It also is well settled that an ordinary bailee is not an insurer of the goods or chattels delivered into his keeping [Milner Enterprises, Inc. v. Jacobs, 207 So.2d 84 (Miss.1968)], but rather is burdened with due care, that is, reasonable care commensurate with his responsibility. Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695 (1909); Yazoo & M.V.R. Co. v. Hughes, 94 Miss. 242, 47 So. 662 (1908). And see A. Dobie, Handbook on the Law of Bailments and Carriers, section 16, page 32, and section 17, page 36 (1914). 361 So.2d at 72. (Emphasis added).

The plaintiff’s burden where his car was stolen was stated in the rather old case of Edwards Hotel Co. v. Terry, 185 Miss. 824, 187 So. 518 (1939):

The evidence offered by appellee himself disclosed that the failure to return the car to him was due alone to the fact that it was stolen. The rule is that when this fact is disclosed either by the evidence of the bailor or by that offered on behalf of the bailee the burden is then upon the bailor to show that the theft was occasioned by the negligence of the bailee defendant. The prima facie case made by proof of delivery and failure to return the bailed property disappears upon proof of loss by fire or theft. Yazoo & M.V.R. Company v. Hughes, 94 Miss. 242, 47 So. 662, 22 L.R.A. (N.S.), 975, and the other authorities therein reviewed. Also 8 C.J.S. Bailments § 50, pages 342-346, inclusive. And the defendant is entitled to the verdict unless the plaintiff goes forward and proves that the theft was due to defendant’s negligence. 185 Miss, at 835, 187 So. at 521. (Emphasis added).

The Agreement and Release signed by Mrs. Webb contained this specific limitation: “It is understood and agreed that this will apply only after regular closing hours of said garage, . . . ”

Mrs. Webb testified:

“A I did not think that my car was being brought down on the street until about 5:00 o’clock, which would have not been more than ten to fifteen minutes before I got off work.
Q Now, what made you think it was being brought down at 5:00 o’clock? Did you ever see it brought down at that time?
A No, but, I assumed that if they didn’t close until 5:20 — and I knew they didn’t close until 5:20 — that there would be no need in bringing it down before then.”

The evidence was undisputed that Mrs. Webb’s unlocked car was parked on a public street and the keys placed above the sun visor about 4:15 p. m. on June 1, 1978. It was thus exposed to possible theft for one hour and five minutes before the parking garage closed. The jury found that this exposure to theft was for a longer period of time than was contemplated or required and that this undue hazard was caused by the negligence of the bailee for hire. All questions of negligence are for the jury to decide. MCA § 11-7-17 (1972). The defendant was not entitled to a directed verdict or a peremptory instruction, or a judgment notwithstanding the verdict.

II.

No error was committed by the lower court when it granted appellee’s instruction P-5. That instruction was on the elements of damage that could be considered by the jury in the event the jury found for the plaintiff. The instruction properly set forth these elements of damage:

1. The difference in the reasonable market value of the subject vehicle on the date that it was stolen and the date on which it was returned to plaintiff, if any.
2. Reasonable expenses necessarily incurred by the plaintiff, if any, in returning the vehicle to Meridian, Mississippi.

Appellant complains that P-7 and P-8 lack the requisite specificity in applying the law to the particular facts of this case. There is no merit in this contention.

P-7 includes this language:

“If you find from a preponderance of the evidence in this case that the defendant failed to use reasonable care by leaving said automobile on a street not adjacent to the parking garage for an extended period of time and for a period of time prior to the closing hours, then the defendant is guilty of negligence.
If you further find from a preponderance of the evidence that plaintiff’s 1974 Thunderbird was stolen as a direct and proximate cause of defendant’s negligence, then it is your duty to return a verdict in favor of the plaintiff.” (Emphasis added).

P-8 used slightly different language in applying the law to the particular facts of this case.

Appellee, in his cross-assignment of error, contends that the circuit court erred in granting a $400 remittitur.

In its opinion, the circuit court stated the reason it granted a remittitur was because the appellee “should not have been allowed to introduce evidence concerning reasonable cost of restoration of the vehicle in question or expenses instant to returning the vehicle to the location from which it was stolen.”

In 33 Am.Jur.2d, Bailments, § 332 (1963), we find this language:

“The measure of damages recoverable against bailees of automobiles in cases of loss or theft has been held in a number of cases, to include such things as value of baggage and other articles left in the car, expenses of trip made necessary by the loss of the car, repairs, etc.” pp. 1218-1220. (Emphasis added).

In Campbell v. Portsmouth Hotel Co., 91 N.H. 390, 20 A.2d 644 (1941), the Supreme Court of New Hampshire ruled:

“If ordinarily a bailee’s liability for negligence is measured by the difference in value before and after the property bailed is damaged, it is because such measure ordinarily is the full damage sustained. But the rule of proximate consequences may produce a different measure in unusual cases of special circumstances. Here compensation included the expense incurred in the recovery of the car, in repairs, and in restoration to the owner. No rule of law has the effect of leaving him only partly compensated for these items." 20 A.2d at 646. (Emphasis added).

To the same effect are Rhodes v. Turner, Civ.App., 171 S.W.2d 208 (Tex.1943) and Beetson v. Hollywood Athletic Club, 109 Cal.App. 715, 293 P. 821 (Cal.1930).

The first time the appellee itemized his expenses, totaling $474.82, was in his answer to interrogatories propounded to him by appellant. Appellee again itemized his expenses from the witness stand. All of these were travel and repair expenses so that the stolen car could be driven from Columbus, Ohio, to Meridian, Mississippi, except $140.20 which was claimed for two days’ lost wages.

Since the appellant offered no evidence, Webb’s testimony was undisputed that he missed two days from work for which he was not paid, and that his lost wages totaled $140.20.

If Webb’s car had not been recovered, appellant would have been liable for the market value of the car at the time it was stolen. Webb, through his own efforts and at his expense, recovered his stolen car in Columbus, Ohio, and personally drove it back to Meridian. He did all he could to mitigate his damages.

We feel that the county court was correct in allowing him to itemize all of his necessary expenses for the jury’s consideration in fixing damages, and that the county court jury verdict for $2600 is amply supported by the evidence. The circuit court was in error in granting a $400 remittitur.

The judgment is, therefore, affirmed on direct appeal, but reversed on cross-appeal and the verdict of the jury for $2600 damages is reinstated.

AFFIRMED ON DIRECT APPEAL, REVERSED ON CROSS-APPEAL AND JURY VERDICT REINSTATED.

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


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    STATE of Mississippi ex rel. Bill ALLAIN, Attorney General of the State of Mississippi v. BOARD OF TRUSTEES OF INSTITUTIONS OF HIGHER LEARNING, Verner S. Holmes, President, Bobby L. Chain, Vice President, E. E. Thrash, Executive Secretary, R. W. Harrison, Charles C. Jacobs, Dr. John R. Lovelace, Boswell Stevens, Travis E. Parker, Denton Rogers, Betty B. Shemwell, W. M. Shoemaker, Miriam Q. Simmons, Betty S. Williams: Gulf Coast Research Laboratory; Slaughter & Allred, P. A., and Starks Contracting Co., Inc.
    No. 51984.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Bill Allain, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, for appellant.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, Jacobs, Griffith, Pearson, Ed-dins & Povall, Charles C. Jacobs, Jr., Cleveland, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This cause originated in the Chancery Court of Jackson County and involves a controversy between the Mississippi State Building Commission and the Board of Trustees of State Institutions of Higher Learning. The cause reaches this Court on appeal from a decree of the chancellor sustaining appellees’ motion to dissolve a temporary injunction and dismissing the bill of complaint. Appellee, Board of Trustees, cross-appeals on the ground hereinafter discussed.

At the outset, we state that the narrow issue involved in the appeal is the power of the Board of Trustees to use “self-generated funds” [as that term is hereafter defined] to construct facilities at the institutions under its supervision without the approval of and control by the State Building Commission.

The history of the cause of action began when the Board of Trustees advertised for bids and entered into a contract for the construction of a building at the Gulf Coast Research Laboratory located in Jackson County, Mississippi. The State Building Commission, on relation of the Attorney General, filed its bill of complaint for a temporary and a permanent injunction prohibiting the Board of Trustees from proceeding with the project without conforming to the statutes setting out the duties and obligations of the State Building Commission. A temporary injunction was issued after which appellees filed their petition to dissolve. After a hearing the temporary injunction was dissolved and the bill of complaint dismissed as stated above. The Building Commission appeals.

The Gulf Coast Research Laboratory was created by the Legislature in 1950 “to promote the study and knowledge of science, including the natural resources of the State of Mississippi, and to provide for the dissemination of research findings and specimens from the Gulf Coast area.” The Legislature further provided that “the Gulf Coast Research Laboratory shall be under the control and supervision of the Board of Trustees of State Institutions of Higher Learning, and the powers of said Laboratory shall be' vested in and its duties performed by said Board.” Among its other activities connected with the education of students in the field of science, the Research Laboratory was authorized to perform services for remuneration for companies and other entities in need of such research facilities. The “self-generated funds” to be used in the construction of the building in question at the Research Laboratory were secured from these services rendered to third parties by the Laboratory. None of the funds involved here were legislatively appropriated or are in any manner controlled by agencies other than the Board of Trustees.

The chancellor held that the Board of Trustees had the power to use the funds in question to construct the building; that this power included the right to secure bids and enter into a contract with the lowest and best bidder without securing the approval and supervision of the State Building Commission.

The basis of the chancellor’s decree was Mississippi Code Annotated section 37-101-15 (1972). This is the statute that sets out the “general powers and duties of the Board” and provides in part:

(a) The board of trustees of state institutions of higher learning shall succeed to and continue to exercise control of all records, books, papers, equipment, and supplies, and all lands, buildings, and other real and personal property belonging to or assigned to the use and benefit of the board of trustees formerly supervising and controlling the institutions of higher learning named in section 37-101-1. The board shall have and exercise control of the use, distribution and disbursement of all funds, appropriations and taxes, now and hereafter in possession, levied and collected, received, or appropriated for the use, benefit, support, and maintenance or capital outlay expenditures of the institutions of higher learning, including the authorization of employees to sign vouchers for the disbursement of funds for the various institutions, except where otherwise specifically provided by law.

The chancellor specifically was impressed with the power of the Board of Trustees regarding “capital outlay expenditures.” He did not discuss or base his opinion on section 213-A of the Mississippi Constitution of 1890, under which the Board of Trustees was founded and receives its constitutional authority. This is the subject of the cross-appeal by the Board of Trustees. It contended at trial, and contends here, that the provision of the Constitution made the Board autonomous and that this Court should hold in the cross-appeal that the Board of Trustees does have autonomy due to its status as a constitutionally created board and the language of the constitutional provision.

A brief history of the Board of Trustees and the Building Commission would be helpful. At the outset, it is interesting to note that the constitutional provision making the Board of Trustees a constitutional body was approved by the Legislature and the vote of the citizens in 1944. The legislative statute creating the Building Commission was adopted the same year. In 1938, the Legislature had passed a temporary building commission act which set up a commission for purposes of doing specific building activities as designated by the Legislature. By the 1944 statutes, the Legislature created a permanent Building Commission and set out its powers and duties [Mississippi Code Annotated sections 31-11-3, et seq. (1972)]. Section 31-11-3, granting the “powers and duties” of the Building Commission, set out specific buildings to be constructed by the Commission, including a state office building, Mississippi State Penitentiary Hospital, a Mississippi Central Market, a gymnasium at Columbia Training School and other specific duties. It went further, however, and set out “general” duties, among which was “to build suitable plants or buildings for the use and housing of any state school or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the Legislature.” (Emphasis supplied).

The preamble to “powers and duties” of the Commission provides as follows:

The commission, for the purpose of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate such architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the commission to be necessary. Said commission shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs or improvements are to be made under the provisions of this chapter.
(a) The commission shall have full power to erect buildings, make repairs, additions or improvements, and buy materials, supplies and equipment for any of the institutions or departments of the state. In addition to other powers conferred, the commission shall have full power and authority as and when directed by the legislature, or when funds have been appropriated for its use for such purposes, to:

We now direct our attention to section 213-A of the Constitution. A general history of the Institutions of Higher Learning reveals that for many years those institutions had been “political footballs” of the politicians then in power. At one time, the accreditation was taken from most of the institutions because of the action of whomever was in power politically at that time. By the year 1944, the people of the state and the members of the Legislature were ready to cure the previous political diseases. Consequently, section 213-A was approved by the Legislature and the electorate and became a part of the Constitution without subsequent change or amendment. The part of this constitutional section pertaining to the present case is as follows:

The State institutions of higher learning now existing in Mississippi, to wit . and any others of like kind which may be hereafter organized or established by the State of Mississippi, shall be under the management and control of the Board of Trustees to be known as the Board of Trustees of state institutions of higher learning .

Therefore, we have a constitutionally created state agency with the constitutional provision giving the board “management and control” of the institutions under its supervision. This constitutional authority has been implemented and supplemented by legislative statutes, including Code section 37-101-15 discussed above. As hereinbe-fore stated, this appeal is concerned with the question of the Board of Trustees’ use of “self-generated funds.” This term is generally defined as any funds secured by the individual institution through its own individual activities and not by legislative appropriation. For instance, the term would include such activities as the sales of commodities raised on university property, library fees, diploma fees, gifts and donations, and income received from property owned by that institution. An example of this is income received from the sale of timber and execution of oil leases involving lands owned by a university. The record reveals that the Board of Trustees has in actuality controlled such funds as these over the years. According to the first paragraph of appellants’ brief, the building now in question at the Gulf Coast Research Laboratory has, in ordinary language, brought the matter to “a head.” The brief begins:

The attorney general initiated this litigation in order to settle an issue which has for many years simmered behind closed doors in state government. The issue is simple, yet its resolution will have a profound impact on the operation of government of this state.

We agree that the issue might be simple but we do not know how much simmering has been done behind closed doors. All we can do is consider and interpret the constitutional and statutory directives before us regarding the agencies.

Admittedly any funds appropriated by the Legislature for the construction of facilities under the “management and control” of the Board of Trustees fall within the statutes controlling the powers and duties of the State Building Commission. An examination of the various statutes gives some indication of how the question before us should be determined. A provision of Code section 37-101-15 describing the powers and duties of the Board of Trustees requires an annual report to the Legislature setting out that the Board shall “show how the money appropriated to the several institutions has been expended . . .” The Board is also required to “keep the annual expenditures of each institution herein mentioned within the income derived from legislative appropriations and other sources .” (Emphasis supplied).

We have already seen that Code section 31-11-3 stating the powers and duties of the Building Commission authorizes that agency to construct buildings at state schools or institutions “as provided for by the legislature.” This section further provides that “the Commission is clothed with large discretionary powers and authority in the expending or allocation of any funds appropriated for expenditure under this chapter in order that the Commission may act in the interest of economy and sound business judgment.” (Emphasis supplied).

The Supreme Courts of several states have had before them the question regarding the autonomy of college boards of trustees or boards of regents as they are usually called. A study of these cases and the constitutional provisions involved reveals different language in all constitutions. Some of them, however, are very similar to the Mississippi section in question. The cases primarily relied upon by appellee and cross-appellant Board of Trustees are: Board of Regents of the University of Nebraska v. Exom et al., 199 Neb. 146, 256 N.W.2d 330 (1977); Sprik v. Regents of University of Michigan, 43 Mich.App. 178, 204 N.W.2d 62 (1972); Regents of the University of Minnesota v. Lord, 257 N.W.2d 796 (Minn.1977); Board of Regents of Higher Education v. Judge, 168 Mont. 433, 543 P.2d 1323 (1975); University of Utah v. Board of Examiners of State, 4 Utah 2d 408, 295 P.2d 348 (1956); Sterling v. Regents of University of Michigan, 100 Mich. 369, 68 N.W. 253 (1896).

The main thrust of the cases cited on the question of autonomy of the constitutional boards is the fact that they are in existence by reason of the constitution and not statute law. Although we have referred to the above cited cases and the question of autonomy of the boards under the various constitutions (an issue raised by appellee board), we do not reach that question in this case. We decide the issue as originally set out merely under an interpretation of Section 213-A of the Constitution and the hereinbe-fore discussed statutes. This Court has the duty and authority to interpret the provisions of the Constitution as they apply to each individual question raised. State of Mississippi on relation of Jean D. Muirhead v. State Board of Election Commissioners et al., 259 So.2d 698 (Miss.1972), cert. denied 409 U.S. 851, 93 S.Ct. 64, 34 L.Ed.2d 94; W. Horace Williams Co. v. Federal Credit Co. et al., 198 Miss. 111, 21 So.2d 582 (1945); University of Utah v. Board of Examiners of State of Utah et al., 4 Utah 2d 408, 295 P.2d 348 (1956).

It is our opinion that the chancellor correctly dismissed the petition of appellant for an injunction. Although his opinion was based solely on the statute [Code § 37-101-15], we hold that he should have gone further and based his decision on section 213-A of the Mississippi Constitution. Where the lower court reaches a correct decision, it is the policy and duty of this Court to affirm whether or not the decision was on correct or sufficient grounds. Taylor v. F. & C. Contracting Co., Inc. 362 So.2d 625 (Miss.1978); Huffman v. Griffin, 337 So.2d 715 (Miss.1976); Miller v. Miller, 173 So.2d 424 (Miss.1965); Larry v. Moody, 242 Miss. 267, 134 So.2d 462 (1961).

In 1944 the Legislature and the people of the state had good reason to make the Board of Trustees a constitutional board and in not taking the same action in regard to the State Building Commission. Obviously good reasons justified placing the Institutions of Higher Learning under management and control of the constitutionally organized Board of Trustees.

It is clear to us, and we so hold, that the management and control of the constitutionally organized college board includes the management and control of “self-generated” funds that are the subject of this cause. As hereinbefore pointed out, the statutes involving both agencies indicate that the Legislature reserved only the management and control of funds legislatively appropriated to both agencies. The statutes giving powers and duties to the Building Commission do not override the powers created by the constitution.

In addition to the authority of the constitution, we hold that the chancellor was correct in basing his opinion on the provisions of Code section 37-101-15. It is our opinion that he should have based his decree on both grounds.

This case was considered by a conference en banc, and in the opinion of all the justices, we do not reach the broad question of whether or not the Board of Trustees is an “autonomous” board. To do so would require a consideration of questions beyond the primary question involved in this appeal. It necessarily follows that the cause is affirmed on both the direct and cross-appeals.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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


text:
    Kenneth HENDERSON a/k/a Kenneth Collier v. STATE of Mississippi.
    No. 52054.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Sept. 10, 1980.
    Laurel G. Weir, Philadelphia, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

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

Affirmed.


text:
    John D. HICKS, Jr., and Dixie W. Hicks v. GREENVILLE LUMBER COMPANY, INC.
    No. 52078.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Robertshaw & Merideth, Douglas J. Smith, Jr., Greenville, for appellants.
    Felts, Russell, Adams & Lueckenbach, Nathan P. Adams, Jr., Greenville, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Appellants, John D. Hicks, Jr., and his wife, Dixie W. Hicks, appeal from a judgment of the circuit court of Washington County, sustaining a general demurrer to their four-count declaration for damages against the Greenville Lumber Company, Inc.

Appellants sought damages of $92,284.39 from the appellee for negligence in the construction of their home, breach of an express one-year warranty covering any defects in construction, breach of implied warranties of suitability and fitness, strict liability in tort, and the false filing of a mate-rialman’s lien against their property. The house, the subject matter of this suit, was constructed by appellee and sold by it to Sharron Anne Shepherd, the title being transferred by general warranty deed dated October 20, 1975. The Hicks subsequently purchased this house from Mrs. Shepherd, who conveyed title to the Hicks by general warranty deed dated June 8, 1976. Appel-lee acted as broker in this transaction.

Appellants’ only assignment of error is that the trial court erred in sustaining a demurrer to all counts of their first amended declaration. Negotiations for the purchase of this house were carried on in May and June of 1976 between the Hicks and a representative of Greenville Lumber Company.

Among other things, appellants charged in their declaration:

“[TJhat as an inducement to Plaintiffs to purchase said residence, said representative of Greenville Lumber Company, Inc. stated to Plaintiffs that said residence was still covered by an express 1-year warranty from his Company, under the terms of which Defendant would correct all deficiencies in the construction of the residence. That prior to October, 1976, but after Plaintiffs had purchased said residence, Plaintiffs gave notice to Defendant’s representative that water came through the chimney of the house when it rained, however no action to correct this deficiency in the chimney was ever taken by Defendant.
That on or about May 1, 1977, Plaintiffs noticed water leaking into the house from under the concrete slab. Plaintiffs contacted Defendant, and after an inspection by a representative of Defendant, Plaintiffs learned that a “T” joint had been improperly placed under said house. The Greenville Lumber Company made certain repairs to the “T” joint by pulling back the carpeting, cutting off the water, and breaking a hole in the concrete slab under the bathroom and hall of said residence. That the total time expended in making such repairs was approximately six weeks.”
In Count IV, Plaintiffs charged:
“That Defendant falsely and knowingly filed a notice of Materialman’s lien against Plaintiffs’ property in violation of Mississippi Code of 1972, Section 85-7-201, and are thereby liable to Plaintiffs for damages in the amount of $2,284.39.”

The trial court was correct in sustaining a demurrer to Counts I, II, and III of the Amended Declaration, but was in error in sustaining a demurrer to Count IV.

The allegation about the residence being still covered by an express one-year warranty of appellee apparently was an oral representation by appellee’s agent, because no copy of the sales contract or any writing of any kind was attached to the declaration.

Since there were no allegations in the declaration charging fraud or mutual mistake, our ruling in Mississippi State Highway Commission v. Cohn, 217 So.2d 528 (Miss.1969), applies. In Cohn, we said:

“By numerous decisions of this Court the prior negotiations of parties become merged in the contract of conveyance when it is executed. West v. Arrington, 183 So.2d 824 (Miss.1966); Brown v. King, 214 Miss. 437, 58 So.2d 922 (1952); and State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148 (1937). In the absence of fraud or mutual mistake, and none is here alleged, parol evidence directed to the prior oral representations could not have been introduced at the trial to vary the terms of the deed by the plaintiffs to the defendant. Since these allegations are incapable of proof by evidence, they are not well pled. Bower v. Chess & Wymand Co., 83 Miss. 218, 35 So. 444 (1903).” 217 So.2d at 531. See also, 77 C.J.S. Sales § 312 (1952), pp. 1148-49.

The trial court was correct in sustaining a demurrer to Count I of the declaration.

In Count II, the plaintiffs charged:

“That Defendant, in failing to properly manufacture and construct said residence, breached both expressed and implied warranties to [Plaintiffs], resulting in damages to Plaintiffs as herein above described.”

In the concurring opinion in Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974), a majority of this Court joining therein, it was said:

“I concur in the result of the majority opinion insofar as it holds that the rule of strict liability in tort or products liability does not create liability on the part of a builder-vendor to remote purchasers of a permanent structure on real estate. However, I do not concur with the opinion insofar as it tends to hold that the maxim of caveat emptor and the judicial doctrine of merger leaves little or no room for an implied warranty between a builder-vendor and the first purchaser. It has long been the rule in this state that a builder-vendor of a new home is liable to his vendee for latent defects. Mincy v. Crisler, 132 Miss. 223, 96 So. 162 (1923).” 303 So.2d at 469.

Following up on the Oliver ruling, we said, in Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978):

“The appellants are correct in their contention that as between the builder-vendor of a new home and his vendee there is an implied warranty that the home was built in a workmanlike manner and that it is suitable for habitation. However, a party bringing suit based upon such an implied warranty must allege in his declaration, inter alia, that (1) the house is new; and (2) that the plaintiff was the first purchaser.” 358 So.2d at 722.

The trial court was correct in sustaining a demurrer to Counts II and III of the declaration.

Appellee contends that the trial court was correct in sustaining a demurrer to Count IV of the declaration because Count IV “shows on its face that the action for recovery is filed more than one year from the filing of any such alleged false notice and is, therefore, barred by the statute of limitations in this cause, same being Section 85-7-201 of Mississippi Code of 1972, Annotated.”

MCA section 85-7-201 (1972), which has been brought forward unchanged in each successive code since 1930, provides:

“Any person who shall falsely and knowingly file the notice mentioned in section 85-7-197 without just cause shall forfeit to every party injured thereby the full amount for which such claim was filed, to be recovered in an-action by any party so injured at any time within one year from such filing; . . . ”

MCA section 85-7-197 (1972), also brought forward unchanged since 1930, provides in part:

“Any laborer, materialman or architect entitled, or who may become entitled, to a lien under this chapter, or to give hereunder a stop notice to any owner, shall have the right to record his claim in the lis pendens record upon compliance with the following requirements, to wit: (1) He shall reduce his claim for the lien to writing which writing shall show the basis of his claim and all of the parties thereto or to be affected by the lien, and such writing shall contain a description of the property sought to be bound, and it shall also set forth the rights claimed in the property to be bound, and the person claiming the lien shall make an affidavit to the writing. (2) He shall notify the owner in person if a resident of the county, or by registered mail if a non-resident of the county, by giving to the said owner a copy of the notice aforesaid, and he shall attach to the original of the said notice an affidavit that the said notice has been given and the date and manner thereof.”

Appellee argues that its Notice of Materialman’s Lien was filed in the “Notice of Construction Liens” book, in accordance with MCA section 85-7-133, and not in the lis pendens record, and, therefore, the. notice to the owner required in section 85-7-197 does not apply.

Besides being inconsistent in arguing that the one-year limitation provision of section 85-7-201 applies, but the reference to section 85-7-197 requiring notice to the property owner does not, the appellee’s contention must fail for these additional reasons. Section 85-7 — 197 (laborers and materialmen may file evidence of claim) has come down unchanged since it was first enacted into law in Chapter 136, General Laws of 1928. It first appeared in the 1930 Code as section 2282, and in the 1942 Code as section 380. Likewise, section 85-7-201 has come down unchanged since it was first enacted into law in Chapter 136, General Laws of 1928. It appeared in the 1930 Code as section 2284 and in the 1942 Code as section 382. In the 1930 Code, sections 2282 and 2284 were included in Chapter 44, under the heading “Liens”.

Likewise, section 85-7-131 has come down virtually unchanged since its appearance as section 2258 in the 1930 Code and section 356 in the 1942 Code under the heading “Lien of laborers, materialmen, architects — notice.”

It was not until 1964 that a “Notice of Construction Liens” book was provided for. The Mississippi Legislature in 1964 passed Senate Bill No. 1744 (Chapter 291, General Laws of 1964). The purpose was described in its title, which read: “AN ACT to amend Section 356, Mississippi Code of 1942, Recompiled, as amended, to extend labor and materialmen’s lien to water well drillers.” After section 356 of the 1942 Code, as amended, was repeated in its entirety in a long Section 1(a) of Senate Bill 1744, a short paragraph, Section 1(b) was added, as follows:

“(b) Each of the several chancery clerks of this state shall provide in his office, as a part of the land records of his county, a book entitled ‘Notice of Construction Liens’ wherein notices under this act shall be filed and recorded, and such liens, as provided hereunder, shall not take effect unless and until some notation thereof shall be filed and recorded in said book showing a description of the property involved, the name of the lienor or lienors, the date of filing, if and where suit is filed, and if and where contract is filed or recorded.”

That Section 1(b) is now MCA section 85-7-133, (1972).

There is no merit in appellee’s contention that the limitation of one year mentioned in section 85-7-201 applies, but that the mandatory notice to the property owner required by section 85-7-197 does not apply, merely because its notice of lien was listed in “Notice of Construction Liens” book rather than on the lis pendens docket.

The plaintiffs charged in their declaration that the materialman’s lien was filed July 28, 1977, without notice to them and came to their attention for the first time on or about May 25,1979. They filed their suit shortly thereafter, on June 21, 1979. Not being barred by the one-year limitation on filing suit, contained in section 85-7-201, the declaration in Count IV stated a good cause of action, not subject to demurrer.

Inasmuch as Count IV was good, the demurrer should not have been sustained to the declaration. Boler v. Mosby, 352 So.2d 1320 (Miss.1977).

The order sustaining the general demurrer is, therefore, reversed, and this cause remanded to the lower court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Frankie Lee MACKBEE v. STATE of Mississippi.
    No. 52056.
    Supreme Court of Mississippi.
    Aug. 13, 1980.
    Rehearing Denied Sept. 10, 1980.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Jones H. Hoskins, Brookhaven, for appellant.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

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: LEE, Justice,

text:
    M. T. REED CONSTRUCTION COMPANY and M. T. Reed, Jr. v. NICHOLAS ACOUSTICS AND SPECIALTY COMPANY.
    No. 52009.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Rehearing Denied Sept. 10, 1980.
    Cox & Dunn, Vardaman S. Dunn, Jack' son, for appellants.
    Young, Scanlon & Sessums, Brad Ses-sums, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court.

This unusual case was filed by Nicholas Acoustics and Specialty Company [Nicholas] in the Circuit Court of the First Judicial District of Hinds County against M. T. Reed Construction Company and M. T. Reed, Jr. [Reed], seeking actual damages for breach of contract and punitive damages in the sum of two hundred fifty thousand dollars ($250,000). The contract phase of the suit was transferred to the Chancery Court of Hinds County, and the punitive damage feature was retained in the circuit court. The pleadings were reformed in chancery court on breach of contract, and the issues were so complex that a master was appointed to take evidence. The chancery court entered judgment for actual damages in favor of Nicholas in the sum of twenty-four thousand one hundred ninety-six dollars ($24,196.00), which judgment was appealed to the Mississippi Supreme Court and affirmed on all issues except prejudgment interest.

The punitive damage aspect of the case was held in abeyance until completion of the suit for actual damages in chancery court. Upon determination of that suit, the punitive part was tried in the circuit court before a jury, resulting in a verdict and judgment in favor of Nicholas for two hundred twenty-five thousand dollars ($225,-000) punitive damages.

We do not reach all points raised on this appeal since the question of whether or not the proof was sufficient to make a case for punitive damages and whether or not the lower court should have granted a peremptory instruction are dispositive of the case. We reverse and enter judgment here for the appellant.

The declaration charges (1) fraud, (2) economic coercion, and (3) malicious breach of contract. We are concerned only with the proposition of whether or not there was a malicious breach of contract which amounted to an independent tort. The facts of the case, except the charge of malicious breach, were developed in the chancery court breach of contract trial for actual damages. M. T. Reed Constr. Co. v. Nicholas Acoustics and Specialty Co., 379 So.2d 308 (Miss.1980). The entire record of that case was introduced in evidence on trial of the present ease, the facts are fairly stated in the opinion, and we will not fully discuss the facts, except for brief reference.

Reed had the general contract to construct the Mississippi Methodist Rehabilitation Center for a sum in excess of two and one-half million dollars ($2,500,000), and Nicholas was a subcontractor on the ceilings, partitions, and floor installation of the prime contract. A fire broke out in one partition under construction by Nicholas when the building was eighty-five percent (85%) to ninety-five percent (95%) complete, resulting in one hundred forty thousand dollars ($140,000) damage. The owner agreed to pay seventy thousand dollars ($70,000) of the amount and Reed and Nicholas agreed to absorb the balance between themselves. Change Order 3A was issued for that purpose. This suit arose because of the differences in settling the expenses incurred by Reed and Nicholas in repairing the fire damage.

After the suit was filed in the circuit court, Reed moved to transfer the case to the chancery court because of the complexity of same and because of the voluminous records and evidence which would be introduced. No objection was made to the transfer motion.

Both M. T. Reed, Jr. and Don E. Nicholas were highly trained and experienced businessmen. Their negotiations on the contract, and final settlement, were hard and intense. In ascertaining whether there were bona fide differences between them in the final settlement, we set out Reed’s testimony as same appears in the abstract:

“The purchase of the vinyl involved about $10,000.00 worth and this figure was included in Reed’s charges against 3A work, less the credit of $1,400.00 applicable to the vinyl material. We had vinyl left over. This amounted to 5,000 square feet and is conceded to have been left over and we offered to give Nicholas half of it because we couldn’t return it. This offer, I believe was made at the November meeting. If it were later than this, then the offer was made whenever I found out about it. The letters don’t mention the vinyl that was left over.
* * * * * *
. Change Order 3A did not say anything about trucks, equipment and dozers, but this was equipment that was necessary to haul the trash out. Change Order 3A used the words ‘actual material and labor costs.’ That was the wording on it and I know what the wording was but my interpretation of that would mean the costs directly involved in doing the work. My interpretation of actual material and labor costs would include the trucks and bulldozer rental because that was used in the work. This is by my definition and the way I have seen work done in the construction industry.
* * * * # *
. . . There were a whole lot of papers to be looked at and I just didn’t look at all of them. I was paying Forby to do that.
sk 9k 9k sje
. It was my opinion that the package tendered to Nicholas on November 5 was a fair way to arrive at this 3A accounting. This was the only thing outstanding on the Methodist job and I wanted to get it behind me. What I had in mind was a fair accounting on 3A in order to arrive at how much to deduct.
* * * # * *
Nicholas said, ‘before you start this, you have got to agree to the $10,000.00 for the painting and agree that my invoices are correct and then we will go into detail on yours.’ I said, ‘Don, I can’t agree that yours are all correct without discussing it and I don’t care whether we discuss mine first or yours first, but I am not going to just agree to $10,000.00 for the paint and vinyl work in the fire area and that all your invoices are correct without going into them and then discussing mine.’ That’s when he got up and left and said something about court. At the meeting, Nicholas had some papers but we never got into the papers and I don’t know what they were.
******
At this time, we were viewing the paint and vinyl work in the fire damage area that had been incorrectly charged against 3A work at $1,400.00 and he was on the figure of $10,000.00 claiming that that is what Reed had in its insurance estimate so we got out the estimate and showed him it was about $2,100.00 and that is when he wanted to use the figure of $10,000.00 and have me to agree that his four invoices were correct before talking about my billings. I refused to do that and said that we would talk about mine first or his first, it didn’t make any difference, but that I was not going to agree without discussing his, that they were correct and the meeting broke up.
******
. I did not ever intend to apply any coercion. There was no duress or coercion. I just wanted to get the matter settled so we could make payment. I thought that the accounting that we gave Nicholas in August and the additional that we gave him in November was correct and to the best of my knowledge, it was correct, and I thought after we were sued that we had a legitimate defense. I never at any time terminated the discussions with Mr. Nicholas. I never threatened Mr. Nicholas with a lawsuit.”

In the recent case of Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797 (Miss.1979), the Court restated the principle governing recovery of punitive damages for breach of contract as follows:

“The rule in Mississippi is settled that punitive damages are not recoverable for a breach of contract unless such breach is attended by intentional wrong, insult, abuse, or such gross negligence that amounts to an independent tort. . .” 373 So.2d at 801.

Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1977), involved Standard Life’s refusal to pay a legitimate claim on a policy and actual and punitive damages were awarded against it. In affirming the judgment for punitive damages, this Court remarked that the company’s refusal to pay the claim was clearly contrary to the express provisions of the company’s own policy and was without any foundation whatsoever. The Court said: “. . .Of course, if an insurance company has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages will not lie . . . .” 354 So.2d at 248.

Again, in Aetna Casualty & Surety Co. v. Steele, supra, the Court said:

“If the appellant [insurance company] had a legitimate, allowable or arguable reason not to pay the claim of appellee, then punitive damages will not lie. Standard Life Ins. Co. v. Veal, 354 So.2d 239 (Miss.1978); Lincoln National Life Ins. Co. v. Crews, 341 So.2d 1321 (Miss.1977).” 373 So.2d at 801.

The record in this case is complex, containing four (4) volumes. The claims and positions of both parties are expressed therein, and, if either party had a- legitimate or arguable reason for not paying or settling the matter, then punitive damages were not recoverable. In the contract phase of the case in the chancery court, M. T. Reed Constr. Co. v. Nicholas Acoustics and Specialty Co., supra, this Court said:

“The appointment and services of the master were no doubt anticipated at least from the transfer of the matter from the circuit court. It is our view that, while the master may have resolved the issues largely in favor of Nicholas, he was called upon to decide legitimate issues tendered by both parties, and that the charges incurred in his services were properly charged to both parties.
Recapitulating, we reverse the chancellor’s decision as to the prejudgment interest, and on all other assignments of error, on direct and cross appeals, the decision is affirmed.” 379 So.2d at 313.

Appellee insists that the chancery court suit involved only actual damages, and that the facts relating to a malicious breach of contract and an independent tort, as a result thereof, were not presented in the chancery court. We are not persuaded by that argument, and are of the opinion that the case did present legitimate and arguable issues. Therefore, we hold that the proof failed to make out a case for punitive damages and the judgment of the lower court is reversed and judgment is entered here for appellants.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.

      . Reed’s superintendent.


author: SMITH, Presiding Justice,

text:
    Henry GRAY v. STATE of Mississippi.
    No. 52022.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    John P. Price, McComb, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Henry Gray was indicted for the murder of Jack Seals. Following his trial on that charge in the Circuit Court of Pike County, the jury returned a verdict convicting him of manslaughter. For that offense, he was sentenced to serve a term of 16 years imprisonment. He appeals, assigning several grounds for reversal.

It is contended that the verdict of the jury was “contrary to the weight of the admissible evidence.”

Under this assignment in appellant’s brief it is stated: “The defendant admitted that he shot the decedent, Jack Seals, and even admitted voluntary surrender of the weapon used in the shooting.”

The homicide was committed at the Mexi-Hot, a bar at which soft drinks and beer were sold. It does not appear that intoxicants were a factor in the homicide. Ruby Carter, whose son owned the bar, testified that she was behind the bar immediately prior to the shooting. Gray was sitting on a stool at the bar when she first noticed him. Seals came up to the bar and asked Gray if he would have a beer and Gray refused. She testified that Seals had a bottle of Coke, a bottle of Pepsi and two glasses of ice at the time he was shot by Gray. It appears that two women had asked Seals to go to the bar and get their drinks for them.

According to Ruby Carter, who was a few feet away at the time of the shooting, she heard no “words” passed. The witness was looking at Seals when he was shot by Gray. She stated that Gray shot Seals several times, she did not know how many, at a time when Seals was obtaining the Coke and Pepsi and two glasses of ice for the women. She testified that when Seals was shot the drinks and glasses fell to the floor. She stated that nobody disturbed the body of Seals where he lay on the floor. She saw no weapon on Seals and there is no testimony that a weapon was found on his body afterward.

Constable Estess testified that he was called and informed that there had been a shooting. When he arrived at the Mexi-Hot he found Seals lying on the floor dead. He stated that Seals had several wounds, including wounds in the shoulder and back and was lying face down on the floor. He identified photographs of the body. He identified a revolver which had been surrendered to him by Gray as the weapon used in killing Seals. It was loaded with empty shell cases at the time it was given to him by Gray and there were no “live rounds” in it.

Dr. Burrow, a pathologist, was called and arrived to find Seals’ body lying on the floor where it had fallen. He found one bullet wound in the right upper thorax anterior and there was one in the right posterior chest, one in the right arm and there was a wound in the posterior aspect of the right neck. The body was transported to the morgue where Dr. Burrow performed an autopsy. He described the numerous bullet wounds in detail and stated that, in his opinion, of the several wounds, the immediate cause of death had been the bullet which entered the right chest, tore the aorta away from the heart, releasing blood into the body.

A ballistics expert from the Mississippi Crime Lab testified that he had made an examination of the bullets taken from the body of Seals and that he had determined that the projectiles were 22 caliber long rifle hollow points. He said that comparison of these projectiles had been made with test bullets fired from the weapon which had been identified by Constable Estess as the one surrendered to him by Gray, and that they had been fired from that revolver.

Henry Gray, the defendant, testified as a witness in his own behalf. He said that he had shot Seals because he was afraid of him. He recalled that he and Seals had had a falling out some 6 months previously and that Seals had shot him in the shoulder with a rifle. He said that he had sued Seals for his hospital expenses. He testified that Seals had said before he was shot that he had thought the controversy as to the former shooting and the payment of the hospital bill was over. He testified that Seals had said to him “last time I liked to have got you and this time I will get you”, and had reached under his shirt which jras hanging out. Gray said that he had backed up from the stool and started shooting, thinking that Seals was reaching for a weapon. He testified that the week before he shot Seals he and Seals had gotten together and made a settlement of their difficulties but it “didn’t work out that way.” He said that he had been carrying the gun in his belt, and that he had the gun that night because “I kept it with me when I went anywhere.” He testified further that he didn’t see any knife or any other weapon but that he had thought Seals was making a break for a weapon and that every time he shot Seals, he and Seals were facing each other and Seals was coming steadily toward him.

Photographs taken of Seals’ body as it lay on the floor showed that, contrary to the testimony of Gray, his shirt was not “out” but was neatly tucked into his trousers.

In Carroll v. State, 196 So.2d 878 (Miss.1967), this Court said:

In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of the prosecution.
The jury’s verdict had the effect of resolving all conflicts in the evidence against appellant, and the findings of the jury, as the trier of facts, are conclusive upon this Court. (196 So.2d at 883).

In considering this assignment, we must accept the evidence which tends to support the verdict as true, together with all reasonable inferences to be drawn from it which reasonably tend to support the verdict. It was the province of the jury to resolve the conflicts in the evidence and they resolved them against appellant, Gray. It is clear that the jury was amply justified in concluding from the evidence, beyond a reasonable doubt, that the killing of Seals by Gray was neither an excusable nor justifiable homicide. The evidence was fully capable of supporting a verdict of murder and was entirely sufficient as a basis for the jury’s verdict finding Gray guilty of the lesser included offense of manslaughter. There is no merit in Gray’s contention that the verdict was contrary to the weight of the evidence.

Appellant assigns as error the action of the trial court in declining to grant the following instruction:

The Court instructs the jury that under the law the Defendant is a competent witness in his own behalf and that the jury has no right to disbelieve him merely because he is the Defendant; and that his testimony is entitled to such weight, faith and credit as the jury may think proper to give him, just as in the case of other witnesses.

In Phillips v. State, 374 So.2d 824 (Miss.1979), this Court had occasion to address this precise issue and therein held:

The appellant next assigns as error the refusal of the lower court to grant him the following instruction:
The Court instructs the Jury that under the law, the defendant is a competent witness in his own behalf, and that the Jury has no right to disbelieve him merely because he is the defendant, and that his testimony is entitled to such weight, faith and credit as the Jury may think proper to give it.
However, our research reveals that in the recent case of McNamee v. State, 313 So.2d 392 (Miss.1975), this Court condemned the use of an instruction similar to the one in the case at bar and held that it was properly refused.
The reasoning in McNamee, supra, was that to grant such an instruction would violate the rule against singling out witnesses and giving undue prominence to their testimony.
Only in rare cases where the testimony of the defendant is the only direct testimony and where the prosecution is based upon circumstantial evidence will an instruction of this type be granted. See, e. g., McNamee v. State, supra; Dunbar v. State, 159 Miss. 603, 132 So. 748 (1931) and McVay v. State, 26 So. 947 (Miss.1900).
In the case sub judice, the state’s case was not based on circumstantial evidénce. (374 So.2d at 826).

In the present case, the homicide was committed in the presence of eyewitnesses, and Gray’s guilt was established by direct, eyewitness testimony of the circumstances and supported by proof that Seals’ death resulted from being shot by the weapon surrendered by Gray to the officers through the testimony of the doctor and the ballistics expert.

The trial court did not commit error in declining to grant the quoted instruction.

Appellant also assigns as error the action of the trial court in granting an instruction requested by the State setting out the law relating to the circumstances which would render a homicide justifiable upon the ground of self-defense.

Appellant asserts that the instruction complained of had not been filed at least 24 hours in advance of trial as required by Rule 5.03, Miss.Unif.Crim.R.Cir.Ct.Prac. (1979), and that no good cause was shown for the delay.

In the State’s brief, it is pointed out that appellant had also requested (and was granted) instructions incorporating the theory of self-defense and that there is no basis in the record capable of supporting a finding that prejudice resulted because of delay in submitting the requested instruction. Trial courts may and often do waive requirements of the rule in question. Newell v. State, 308 So.2d 68 (Miss.1975), Clark v. State, 260 So.2d 445 (Miss.1972). Unless prejudice is shown to have resulted from the action of the trial court (and no prejudice is shown to have occurred here), the conviction will not be reversed for mere delay in submitting an instruction. Ferrill v. State, 267 So.2d 813 (Miss.1972).

The conviction and sentence appealed from must, therefore, be affirmed.

AFFIRMED.

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


text:
    Merrida P. COXWELL v. STATE of Mississippi.
    No. 52008.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    John R. Poole, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Attorney Merrida P. Coxwell was convicted in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, for receiving stolen property, was sentenced to five (5) years in the state penitentiary and was disbarred from the practice of law. He has appealed and assigns as error that the court erred in failing to grant a mistrial because of the district attorney’s final argument wherein he referred to Coxwell as a “crooked lawyer.”

The evidence for the State indicates that on March 6, 1978, an unidentified couple left the Osborne Ford Motor Company lot in Tallulah, Louisiana, in a 1978 Cougar XR-7 automobile belonging to the dealership, ostensibly for the purpose of testing the car before buying same. The couple failed to return to the lot; the theft of the vehicle, which was valued at approximately seven thousand dollars ($7,000), was reported to the police.

Subsequently, the vehicle appeared at a truck stop in Vicksburg, Mississippi, where it was picked up and delivered to Jackson by one Murray Johnson, upon instructions of Tommy Thornton, who operated an automobile repair shop in Jackson. Johnson delivered the vehicle to Charley’s Car Repair either on March 7 or 8, at which time he met the appellant, who was interested in purchasing it. Appellant inspected the automobile and then gave Thornton nine hundred fifty dollars ($950.00) for same. Johnson, an accomplice, testified to the above facts on the trial.

One William Thornton, upon instruction of the appellant, prepared a title application for the vehicle indicating the purchaser to be the Hightower Corporation, which was owned by appellant. A license tag for the automobile was issued to appellant by the Tax Collector’s Office of Hinds County, listing as owner the Hightower Corporation. A Mississippi inspection sticker was obtained which noted appellant to be the owner.

Appellant testified that he purchased the vehicle from James Hood of Hood Auto Sales of Ellisville, Mississippi, and that he gave Hood five thousand dollars ($5,000) in cash and a diamond ring in exchange for it. His testimony was impeached in several particulars.

In final argument, the district attorney said the following:

“What was the only deal that we had with those people? Tell the truth and the judge will be told about it. The judge didn’t have to be told about it. He heard them testify. So, that’s no deal at all. Did they have anything to gain? What the defense is gonna say, of course, is: ‘Why, they were gonna go to jail and they were gonna be charged but all of their charges were gonna be dropped.’ That’s what they are gonna say but is there any proof of that? ‘You had better tell the truth or we are gonna burn your tail.’ That’s all. Nothing more and nothing less. ‘The judge will know you testified.’ So what? So what if he knows they testified. And suppose the judge does, which I have no reason to believe he will, but suppose the judge does say: ‘Okay, you helped us get rid of a crooked lawyer. I am gonna give you some years off.’
BY MR. MOORE:
I object to that, may it please the Court. That’s improper.
BY THE COURT:
I believe you are getting out of bounds, Mr. Peters.
BY MR. PETERS:
I beg your pardon?
BY THE COURT:
I believe you are getting a little far afield.
BY MR. MOORE:
And I would move for a mistrial, Your Honor.
BY THE COURT:
Overruled.”

Appellant contends that the above mentioned argument of the district attorney was prejudicial and constituted reversible error, and cites cases in which similar remarks made by prosecuting attorneys required reversal: Ellis v. State, 254 So.2d 902 (Miss.1971) (“professional criminal”); Carr v. State, 208 So.2d 886 (Miss.1968) (“beastly nature”); Reed v. State, 232 Miss. 432, 99 So.2d 455 (1958) (“[I]f you don’t stop them now, they will next be robbing white people”); Tubb v. State, 217 Miss. 741, 64 So.2d 911 (1953) (Negro was in den of iniquity — drinking, gambling, and women there); Mays v. State, 571 S.W.2d 429 (Ark.1978) (“dope pusher”); People v. Natoli, 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096 (1979) (“a habitual or professional criminal”); Flynn v. State, 379 N.E.2d 548 (Ind.App.1978) (“drug dealer”); Commonwealth v. Collins, 374 Mass. 596, 373 N.E.2d 969 (1978) (“Animal”); Commonwealth v. Dougan, - Mass.App. -, 376 N.E.2d 1255 (1978) (“You’re not dealing with average citizen when you’re dealing with a motorcycle gang”); State v. Stewart, 162 N.J. Super. 96, 392 A.2d 234 (1978) (“punk, hood and bum”); People v. Matthews, 33 A.D.2d 679, 305 N.Y.S.2d 919 (1969), (“attack on defense lawyer”); People v. Hickman, 34 A.D.2d 831, 312 N.Y.S.2d 644 (1970) (“junkie, rat and sculptor with a knife, et al.”); State v. Foster, 2 N.C.App. 109, 162 S.E.2d 583 (1968) (“Professional crooks”); Crutcher v. State, 481 S.W.2d 113 (Tex.1972) (Abuse of defense counsel).

Although the trial judge did not sustain the objection to the argument in exact words, his remarks to the district attorney, in effect, sustained same. Appellant’s counsel did not request the judge to tell the jury to disregard the remarks of the district attorney.

Jury Instruction # 1, granted by the court, states in part:

“Arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.”

The remarks of the district attorney were highly improper and constitute error. However, we have carefully reviewed the entire record, and, in view of the written instruction given the jury, as set forth above, and in view of the overwhelming evidence of appellant’s guilt beyond reasonable doubt, we hold the error was harmless. Austin v. State, 384 So.2d 600 (Miss.1980).

Therefore, 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: BROOM, Justice,

text:
    FRUEHAUF CORPORATION v. TRUSTEES OF FIRST UNITED METHODIST CHURCH.
    No. 52089.
    Supreme Court of Mississippi.
    Aug. 27, 1980.

      Watkins & Eager, Michael W. Ulmer, Jackson, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, John H. Cocke, Clarksdale, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

Strict liability in tort was the basis of the action of the Trustees of the First United Methodist Church (plaintiff herein) against appellant Fruehauf Corporation. Another defendant, James R. Ashcraft, an individual, was jointly sued but on grounds of simple negligence. Trial in the Circuit Court of Coahoma County resulted in a $19,777.63 jury verdict in favor of the plaintiff as against Fruehauf but exonerating Ashcraft. Fruehauf appeals, contending that the plaintiff failed to make out a case against Fruehauf under our landmark case of State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966). We affirm.

Central to the case is a one-inch nipple connector, an integral element of. a tractor/trailer hydraulic system. On the trailer is a male quick-couple connection which comes from a hydraulic line; the male quick-couple snaps onto the female connection mounted on the tractor (commonly called the truck). The female quick-coupling screws onto the nipple which measures about two (2) inches in length and one and one-fourth (lVi) inches in diameter. The nipple screws into the base of a cylinder located on the trailer. Such a nipple was on the heavy-duty large dump trailer manufactured by Fruehauf which Ashcraft purchased on September 4,1975, from Frue-hauf’s wholly-owned subsidiary, Hobbs Trailers, at Little Rock, Arkansas. On that same day, Ashcraft hooked the trailer (with the nipple installed) to his International tractor and drove away. Although the nipple was vital to the proper functioning of the trailer’s dumping mechanism, apparently it was not connected to the towing or braking mechanism of the trailer/tractor vehicle. Within a short time after acquiring the trailer, Ashcraft traded his International tractor for a Kenworth. This necessitated connecting the Kenworth hydraulic system to the Fruehauf trailer, and allowed Ashcraft to continue using the original nipple.

Subsequent to purchasing the tractor on September 4,1975, Ashcraft was using it on April 14, 1976, to deliver 44,000 pounds of sand to a construction site in Clarksdale, Mississippi, across the street from the plaintiff’s church building. At that time Ash-craft had used the trailer some 15,000 miles. During the sand dumping process, the nipple in controversy here ruptured, causing highly pressurized hydraulic oil to spew across the street and into the plaintiff’s sanctuary building resulting in $19,777.63 damages.

The plaintiff’s (church’s) insurer paid for the damages and brought this subrogation action against manufacturer Fruehauf and trailer operator Ashcraft. Ashcraft was exonerated by the jury which had before it the following issues: Was the nipple connector present on the trailer at the time it was delivered to Ashcraft? Was the nipple defective when delivered to Ashcraft?

Fruehauf concedes that the jury heard sufficient (though conflicting) testimony that the nipple connector was on the trailer when Ashcraft purchased it and no longer is that issue present in the lawsuit. Strenuously, Fruehauf argues on appeal that the plaintiff’s case was insufficient to go to the jury because of the lack of evidence “of the presence of a defect in the nipple” when it left Fruehauf’s hands after manufacture. Fruehauf moved for a directed verdict when the plaintiff rested and chose to present proof after the trial court rejected the motion for a directed verdict. In that posture, we will consider, in accordance with our rule, all of the evidence presented at trial.

Fruehauf primarily relies upon State Stove, supra, to support this proposition. In State Stove at 121, Chief Justice Ethridge, writing for the Court, stated:

[Wjhether a product is reasonably safe or not is a flexible standard responsive to the facts of each case. Wade, 19 Sw.L.J. at 17. It is a question of fact whether the particular article involved was reasonably safe when it left the control of the manufacturer.

We found that State Stove Manufacturing Company was not liable for the destruction of the Hodges home where the electric water heater, manufactured by appellant, State Stove, exploded when the thermostats locked in the “on” position. We rejected the chancellor’s finding, and ruled that the contractor’s failure to install the temperature relief valve according to instructions attached by State Stove was the “intervening, sole proximate cause of the damages. . ” State Stove at 123. The mere fact that the thermostats malfunctioned did not prove, we reasoned, that they were defective when manufactured, especially “after the lapse of seven months of use.” State Stove at 123.

Fruehauf also cites Baker v. Ford Motor Co., 317 So.2d 51 (Miss.1975). In Baker, we upheld the directed verdict in favor of the defendant on the ground that the plaintiff failed to show either by direct or circumstantial evidence that the defendant violated some duty owed her. Our opinion by Presiding Justice Rodgers restated the three required elements to be proved in a strict liability torts case:

(1) that the manufactured product left the manufacturer in a defective condition, (2) that the product was in the same condition at the time of the accident as it was when it left the factory, and (3) that the defect in the product was the proximate cause of the injury. Ford Motor Co. v. Matthews, 291 So.2d 169 (Miss.1974); Coleman v. Ford Motor Company, 240 So.2d 607 (Miss.1970); States [sic] Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966).
(317 So.2d at 52).

See also William Cooper and Nephews, Inc. v. Pevey, 317 So.2d 406 (Miss.1975).

The plaintiff in contradistinction to State Stove, relies upon another line of our cases. In Early-Gary, Inc. v. Walters, 294 So.2d 181 (Miss.1974) we affirmed the chancellor’s award of damages to a customer whose hand was severely injured when he attempted to loosen the cap of new Heinz Ketchup bottle by bumping the inverted bottom of the bottle with the palm of his right hand. The bottle broke off; the wall of the bottle remained intact; and his hand was severely cut upon impact. After hearing testimony establishing the chain of control over the bottle from the time Heinz shipped it to the time it was purchased by Early-Gary, the chancellor determined that the defect existed when the bottle left Heinz. In addition, both the waitress and Mr. Walters testified that the bottle was not obviously defective.

In another bottle case, Falstaff Brewing Corp. v. Williams, 234 So.2d 620 (Miss.1970), we affirmed the chancellor’s award of damages as being supported by substantial evidence. The beer was bottled and shipped from New Orleans to Natchez and delivered in the original cases to Bob’s Eats. The bottle was placed in the cooler and exploded without being touched, causing the plaintiff to suffer a severe eye injury when struck by the exploding bottle. Justice Robertson authored Falstaff and quoted from a decision by Justice Tray nor in Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal.2d 453 at 461, 150 P.2d 436 at 440-441 (1944):

“[P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot.”

Merely distinguishing the present case factually from the fact patterns of our earlier cases will not resolve the issue here. The nipple here is not a thermostat and is without movable parts which are ordinarily subject to wear and abuse.

The plaintiff argues that upon ample évi-dence and proper instructions, the jury found that the nipple was defective when it left Fruehauf’s hands. Additionally, the plaintiff points out that, according to Ash-craft’s testimony he, (the sole operator) had in no way misused the trailer on the day of the incident, altered the nipple, or adjusted the pressure relief valve so as to exert too much pressure on the nipple or otherwise to cause it to burst. Also noted by the plaintiff is the fact that after the nipple was replaced with one obtained from a hardware store, the hydraulic system never malfunctioned again. Another testimonial aspect of the case relied upon by the plaintiff is that Ashcraft’s expert Ellison, (subpoenaed by Fruehauf, Ellison’s employer), testified in effect that the explanation for the bursting of the nipple would be either a defect in the nipple itself, misuse of the nipple, or overpressurization. Ellison pointed out that the nipple in question was of lesser size and weight than that which Fruehauf Corporation would normally use on a trailer of this type. He concluded that rupture of the nipple indicated a defect or malfunction which would not necessarily have manifested itself prior to the occurrence in question.

Plaintiff asserts that proof that the system operated perfectly after the “defective nipple was replaced, eliminates the possibility of over-pressurization as a cause of the malfunction, because if there were a problem with the pressure, the replaced nipple would have burst as well.” Plaintiff further contends that the only logical conclusion for the jury to reach then was that the defect must have been present when the trailer was sold by the defendant Fruehauf. We think the proof adequately eliminated any other causes for the defect at least to the point of raising a jury issue.

Cases cited and discussed establish that there are two types of proof which may be presented in a products liability case of this sort. There may be direct evidence from an individual who witnessed the occurrence in question and testifies from his own personal knowledge. Such a witness, of course, would be able to testify that he observed a defect in the product when it left the manufacturer. Other types of evidence are circumstantial including “expert” and “inferential” evidence. A qualified expert, although not present when the product was manufactured, or at the time of the occurrence of an injury, may express his opinion as to whether a defect existed in the product at each of the relevant times. Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966) presents a case where liability was properly imposed upon the defendant who presented no expert testimony. There the case involved a decomposed mouse found inside the defendant’s bottle of soda pop. In such a case expert testimony is hardly necessary to prove that the mouse, an obvious “defect,” was in the bottle when it left the defendant’s hands, because anyone knows that a mouse cannot crawl into a capped bottle of Coca-Cola. Fruehauf raises the following question: Is it within the realm of general public knowledge that a hydraulic nipple connector could function perfectly well for over seven months and then fail, not because of anything which happened to it during the time it was in use, but because of something done or not done when the product was manufactured?

Fruehauf says that the plaintiff’s failure to offer expert testimony to establish the existence of a defect in the nipple connector when it left Fruehauf’s hands is fatal because the plaintiff did not offer the best proof available: the opinion of a qualified expert, Dr. Allen Wehr, that the defect existed in the trailer when it left Frue-hauf’s hands. It is true that in cases of this sort the plaintiff has the burden to produce such proof or account, on the record, for its failure to do so. As stated in William Cooper and Nephews, Inc. v. Pevey, supra,

In Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295 (1934), this Court recognized the desirability of proving facts capable of direct proof by chemical analysis if such proof is reasonably available to the party who has the burden of proof. Circumstantial evidence may be used to prove the defect in cases where there is no other way to establish it. (317 So.2d at 408-09).

Here, the record clearly shows that the nipple was intact until Ashcraft attempted to remove it from the trailer after the accident. He stated that he could not recollect what he did with the parts of the nipple after removal from the trailer, but the record does show that one of the pieces of the part was submitted to a metallurgist at Mississippi State University for his examination. However, Ashcraft was uncertain as to what was done with the other portions or pieces of the nipple. We do not find in the record any evidence which would establish that the portion of the nipple available to the plaintiff for examination by an expert was insufficient in size or otherwise to be examined by an expert who could then form his opinion about any defect thereof. It is true that during an in-chambers discussion between counsel and court, Attorney Merkel (plaintiff’s counsel) stated that Mississippi State expert Wehr (who was subpoenaed by both Fruehauf and the plaintiff) told him “the fragment that was there, it was too small and too damaged by the external forces that removed it at the welding shop for him to give any opinion whatsoever as to what caused it to fracture or burst.” According to the record after Attorney Merkel made the statement concerning what an expert who was not present to testify would (adversely to plaintiff) say, the court made the following statement:

BY THE COURT:
Well, this is not — certainly you have made your record, but the Court is not basing anything on what . . the witness may or may not have said if he was here, and for the same reason that’s not proper at this point, particularly under the circumstances that exist here now. Had they in fact failed to bring this man, or released him without Mr. Ulmer having made a motion to prohibit him from testifying, there might be some inference. I say “Might be”. I’m not ruling on that, but there might have been some inference that this so-called expert would have testified adversely to the Plaintiff or to Defendant Ashcraft had he not been brought here, and had there been no objection or motion asking the-Court to prohibit him from testifying.

The trial court, acting within his sound judicial discretion, thus recognized the infirmity contained in the attempt of Fruehauf’s counsel to leave with the jury an inference (adverse to the plaintiff) that expert Wehr examined the controversial “part” for plaintiff and found nothing wrong with it. Under the general rule, if the pieces of the allegedly defective part were insufficient in size so that an informed determination as to the existence of a defect in the nipple could not be made, the plaintiff’s burden was to present admissible testimony to that effect. Then the plaintiff clearly could have justifiably relied upon another type evidence: circumstantial. Except for the unusual circumstances existing here, the plaintiff should have put expert witness Wehr (with whom the church’s attorney admits discussing the question of a defect in the part in question) on the witness stand to explain to the jury how it is possible, if possible it is, for a part such as a nipple connector to function perfectly well for seven months and then suddenly to rupture in normal use.

As concerns the failure of the plaintiff to offer expert Wehr’s testimony, as pointed out in the plaintiff’s (appellee’s) brief, the trial court entered an order precluding the church from calling Wehr. Ironically, the preclusion order was entered in response to Fruehauf’s motion based upon the plaintiff’s failure to respond to Fruehauf’s interrogatories seeking information concerning Wehr’s opinion and the facts upon which it was based. Having no response to its interrogatories, Fruehauf filed a demand for supplementation. When there was still no response, Fruehauf moved the court to order preclusion of the church and its co-defendant Ashcraft from calling any expert witness to support its case. Fruehauf’s motion was sustained thereby precluding the plaintiff from calling the expert Wehr. Excerpted from the record is the following:

BY MR. ULMER: I was just going to say, their own failings in not answering interrogatories got them into this situation where I filed my motion. And, again my motion was designed to keep an expert from coming up here and bolstering or supporting their testimony.
BY THE COURT: Well, you asked that he be prohibited from testifying and as you say bolstering or supporting, now when you do that, you simply can’t — this Court will not permit you to do by inference what — You had the opportunity, if what you infer is correct, then the Court doesn’t see why you didn’t have the witness to come on. But, I will direct the jury to disregard that question.
BY MR. MERKEL: Your Honor, we would think, too, that they should be instructed either now or at the time you do this, or at the close of the evidence that the so-called expert who examined it was equally available and under subpoena of all parties, and that no inference whatsoever should be drawn from his absence at this trial.
BY MR. ULMER: Your Honor, I take strong exception to that. He’s not equally accessible and available to me. He was hired by Allan Shackelford, and if Allan had so desired he could have kept me from talking to him, putting him on the stand, or doing anything of that nature. BY MR. SHACKELFORD: Your Honor, may I inquire of Counsel—
BY THE COURT: — (Interrupting)—The Court will inquire. Did he keep you from talking to him?
BY MR. ULMER: No, sir, I talked to the man.
BY THE COURT: All right, sir.
BY MR. MERKEL: Well, am I not correct, Shack, that you told him he could bring him here, hire him, pay him, whatever he wanted to?
BY MR. SHACKELFORD: Whatever he wanted to.
BY THE COURT: All right, I will make such statements as the Court deems appropriate.
(COURT, ALL COUNSEL & COURT REPORTER RETURN TO THE COURTROOM)
IN COURTROOM — JURY IN BOX
BY THE COURT: Ladies and gentlemen of the jury, the Court has sustained and did sustain the objection of Counsel to the question asked of the witness regarding what was termed an expert by Mr. Ulmer, the attorney for Fruehauf. You will disregard that question, and you will disregard any inference that might arise from that question, since the Court sustained the objection to the asking of the question or the answer. Any evidence that you receive will be presented from the witness stand and not by inference. Any witnesses that either of the parties desire to call may be called or subpoenaed, and you will accept only those, and only that evidence that you receive from the witness stand.

Ordinarily failure of a party to offer his own expert as a witness creates a situation from which the jury may be allowed to infer that failure to produce the witness shows that such testimony would have been adverse to such a party, the plaintiff here. Upon this most peculiar record, we do not think that the court committed reversible error in instructing the jury to disregard any inference that might arise from the question propounded by Frue-hauf’s counsel concerning metallurgist Wehr, and the failure of plaintiff to produce Wehr’s testimony.

The case went to the jury upon proper instructions and we find that the evidence presented by the plaintiff was sufficient to support the jury’s finding that the nipple was defective when it left the hands of Fruehauf. According to the uncontra-dicted evidence, the nipple ruptured which ordinarily does not happen if the item is non-defective, and used in a reasonable manner. As a consequence, the plaintiff, though totally without fault, suffered substantial damages. Expert Walter Ellison related rupture of the nipple to either of three explanations: the nipple was defective, misused, or over-pressurized. The plaintiff’s proof was sufficient basis upon which the jury could find (as it did) that the rupture resulted from a defect in the nipple rather than from either one of the other two explanations. Upon excellent briefs and oral argument, our finding is that there was sufficient evidence to submit the case to the jury and no reversible error has been demonstrated.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Linnon McCLENDON v. STATE of Mississippi.
    No. 51990.
    Supreme Court of Mississippi.
    Aug. 27, 1980.

      Brown, Alexander & Sanders, Firnist J. Alexander, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Linnon McClendon was convicted of armed robbery and sentenced to thirty years imprisonment with five years suspended. From this conviction and sentence in the Circuit Court of the First Judicial District of Hinds County, he appeals. For reversal he argues the lower court erred (1) in overruling his motion to dismiss because of double jeopardy, (2) in not affording him due process and because the trial court denied him a transcript of earlier proceedings, and (3) in permitting the State to interrogate him upon irrelevant matters.

McClendon’s first trial began on March 22,1979, when the State called Junior Roby, its first witness, who testified that he was robbed at gunpoint and that he saw one of the robbers in the courtroom. Prior to his anticipated identification, a motion was made by McClendon for a hearing outside the presence of the jury. The motion was sustained, and Roby was called as a witness by the defendant and questioned about his identification of one of the robbers. During this hearing he positively identified McClendon as one of the men who had robbed him by force of arms. At the conclusion of his testimony, Officer Stubble-field was called as a witness by McClendon but was not available, necessitating a short recess of the court to obtain the witness. Stubblefield thereafter became a witness and gave some testimony outside the jury’s presence before the court observed and called to the attention of the attorneys that the court reporter was not present and that the testimony of Stubblefield had not been recorded to that point. This led to the following colloquy between the court and defense counsel and motion:

BY THE COURT:
What I’m asking you, if there is a motion for a mistrial.
BY MR. ALEXANDER:
Yes, sir, we ask the Court for a mistrial.
BY THE COURT:
I see no basis but to grant the motion that a mistrial be granted. Reset the case for next week if possible.

The second trial transpired in June 1979, leading to the conviction and this appeal. It also led to a plea of double jeopardy by McClendon. Although Crist, Warden v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), announces the federal rule on double jeopardy now applicable to the various states through the Fourteenth Amendment to the United States Constitution, we think the present facts distinguish this case from it. In Crist, the following questions were propounded to the Court:

“1. Is the rule heretofore applied in the federal courts — that jeopardy attaches in jury trials when the jury is sworn — constitutionally mandated?
2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial — state or federal, jury or nonjury — until the first witness is sworn?” (437 U.S. at 32, 98 S.Ct. at 2158, 57 L.Ed.2d at 29)

It responded as follows:

We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial “serves as the lynchpin for all double jeopardy jurisprudence.” 546 F.2d at 1343. In Illinois v. Somerville, supra, (410 U.S. 458] at 467, [93 S.Ct. 1066 at 1072, 35 L.Ed.2d 425] a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that “jeopardy ‘attached’ when the first jury was selected and sworn.” Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.
(437 U.S. at 38, 98 S.Ct. at 2162, 57 L.Ed.2d at 33)

The reasoning of our highest Court was that a defendant has a constitutional right to be tried by the particular jury that had been empaneled and sworn. In Crist, however, the prosecution moved the trial court to dismiss the entire information so that a new one could be filed. Presently, the mistrial was requested by the defendant, a significant distinguishing factor, thereby waiving his right to a trial by the particular jury that had been empaneled and sworn. In United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), it was held the constitutional right to trial by the jury empaneled was subject to being waived by a defendant’s motion for a mistrial. The Court stated:

. Such a motion by the defendant is deemed to be a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact. .
(437 U.S. at 93, 98 S.Ct. at 2195, 57 L.Ed.2d at 76)

The defendant having requested the mistrial, we are of the opinion that double jeopardy did not attach and the trial court consequently did not err in this regard.

It is next contended there was error in failing to provide at state expense a transcript of the March 22, 1979, trial. There is no doubt that appellant is indigent and represented by court-appointed counsel. However, at the beginning of the second trial, a double jeopardy plea was interposed and argued. The plea was denied and when asked, defense counsel announced ready for trial. Whereupon the jury was selected and the trial began with Roby again the State’s first witness. He was asked whether he could identify the person who robbed him and the defendant objected to “any testimony along this line.”

The jury retired and there followed a motion and discussion concerning the transcript of the previously aborted proceedings. From the record before us, it does appear that defense counsel in the first trial had interrogated Officer Stubblefield after the court reporter returned, but this transcript was not available to him during the second trial. While the trial judge may have technically erred in the first trial in denying the motion for the transcript, we are of the opinion it did not prejudice the defendant in this trial because his counsel had equal knowledge with the state’s attorney of the events of the first trial. Moreover, he announced ready for trial and only renewed his motion for the transcript after the trial was under way. Had the motion been sustained, a second disruptive mistrial would have resulted.

Finally, the transcript is before us and review of its five and one-half pages reveals nothing prejudicial. It concerns the number of photographs exhibited to Roby in an endeavor to identify his assailants. Stubblefield stated he presented Roby five or six photographs while Roby testified that he identified McClendon from a large stack of photographs. Because there is no evidence that Stubblefield’s presentation was suggestive or improper, the interrogation was nothing more than an attempt to impeach the witness upon an irrelevant point. The identification of McClendon was the relevant point rather than the number of photographs observed before the identification was made.

In making the above statements, we do not diminish, indeed we have no authority to, the significance of Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1972), which provides as a matter of equal protection the state must supply an indigent defendant with a transcript of pri- or proceedings when it is needed for an effective defense, on retrial, or appeal. We conclude this assignment of error is without merit.

McClendon also contends the prosecution’s questions on cross-examination about the circumstances of his arrest constituted gross misconduct greatly prejudicing him. The record discloses that at the time of his arrest McClendon falsified his identification, representing himself to be one Leon Thompson, and corroborated this by exhibiting a driver’s license to the arresting officer which had the name Leon Thompson on it. Only when confronted with his photograph did McClendon acknowledge his true identity. The questions directed to McClendon on cross-examination concerning this episode were not error, in our opinion. In .2 Wigmore on Evidence, 3d Ed., section 279, it is stated:

[I]t is today universally conceded that the fact of an accused’s flight, escape from custody, resistence to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.

And Cobb v. State, 282 So.2d 327 (Ala.App. 1973), is persuasive to the same point of view. We think this assignment without merit.

Finally, the record before us convincingly demonstrates that appellant was given a fair and impartial trial without substantial error or prejudice and that the jury’s verdict is in accord with the evidence.

AFFIRMED.

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


text:
    Karen Lynn WILLIAMSON v. James Dean WILLIAMSON.
    No. 52124.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    Suzanne Griggins, Mendenhall, for appellant.
   Appeal from Chancery Court, Simpson County; J. W. Walker, Chancellor.

Barnett, Montgomery, McClintock & Cunningham, G. William Palmer, Jackson, for appellee.

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

AFFIRMED.


text:
    Terry BERRY v. STATE of Mississippi.
    No. 52062.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    Darrell Reeves, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Clay County; Harvey Buck, Judge.

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

AFFIRMED.