author: HAWKINS, Justice, WALKER, Justice, WALKER, Justice,

text:
    Jerry A. WOODS, William C. Boteler, Alfred E. Corey, Executor of the Estate of Russell D. Corey and Charles T. Kyles, Nancy Anderson and Larry T. Brooks v. Ronald D. NICHOLS.
    No. 52684.
    Supreme Court of Mississippi.
    June 30, 1982.
    Rehearing Denied July 28, 1982.

      Wells, Downey & Wicker, John H. Dow-ney, Watkins & Eager, Thomas M. Mur-phree, Jr., Heidelberg, Woodliff & Franks, Sam E. Scott, John B. MacNeill, Jackson, for appellants.
    King & Spencer, Larry Spencer, Daniel, Coker, Horton & Bell, Terry R. Levy, Jackson, for appellee.
    WALKER, Justice, for the Court on Parts I, II and III.
    ROY NOBLE LEE, Justice, for the Court on Parts IV and V.

      . William C. Boteler is now deceased and this cause was revived in the name of Willie Hazel Boteler, Executrix of the Will and Estate of William C. Boteler on July 22, 1980.

      . Russell D. Corey is now deceased and this cause was revived in the name of Alfred E. Corey, Executor of the Estate of Russell D. Corey on February 19, 1980.

   This is an appeal from the Circuit Court of the First Judicial District of Hinds County wherein appellee, Ronald D. Nichols, was awarded the sum of $550,000 as a result of an automobile accident. The suit grew out of an accident that occurred on January 31, 1979, on U. S. Highway 49 approximately two miles north of Flora. At that time Highway 49 was a two-lane highway.

The accident occurred on what is known as the Big Black River Bottom, a level stretch of highway with three bridges. The accident occurred between the first and the second bridge approximately one-fourth of a mile north of the first bridge. It is undisputed that this area is straight and flat and that there are no obstructions to a person’s view for more than a mile.

Plaintiff Nichols was driving a United Parcel van in a northerly direction along Highway 49. Defendant, Larry Brooks, was driving a Chevrolet Nova in a southerly direction meeting the plaintiff. The Nova was owned by the defendant, Nancy Anderson. The accident occurred in the northbound lane of the highway across from and approximately at the rear end of a disabled tractor-trailer parked facing south on the west side of the highway. The rear wheels of the tractor-trailer rig extended approximately eighteen inches onto the paved portion of the highway. The defendant, Charles Kyles, was following the plaintiff Nichols in a Boteler and Corey Sausage delivery truck.

As Nichols and the defendant, Brooks, approached the parked tractor-trailer from opposite directions — Nichols going north and Brooks coming south — Brooks suddenly veered from the southbound lane of traffic into Nichols’ northbound lane and collided with the front end of Nichols’ United Parcel Service van. The impact almost totally demolished the Nova, and the impact to the cab of Nichols’ van was so severe that the van flew into the air and landed on the highway on its left side. The sausage truck driven by the defendant, Kyles, then struck the United Parcel Service van as Kyles veered to the left in an attempt to avoid colliding with the van.

As a result of the accident plaintiff Nichols sustained serious and permanent injuries. Plaintiff contended in his suit that the operator of the Nova automobile, the sausage delivery truck and the parked tractor-trailer were negligent, and, in combination, directly and proximately caused his injuries and that all drivers, and other defendants, were jointly and severally liable.

PART I.

LIABILITY OF LARRY BROOKS

The evidence and testimony in this case is undisputed that the Nova vehicle driven by Larry Brooks suddenly veered across the center line into the northbound lane of traffic and collided head on with the United Parcel van driven by the plaintiff Nichols.

Brooks does not question his liability in his brief, but does contend that the trial court erred in failing to grant him a mistrial following alleged prejudicial comments by the court while he was being cross-examined. The brief charges that every party in the ease, with the exception of Anderson, sought to blame the accident entirely on him. The brief points out that Brooks was questioned and requestioned about incidental details, distances, times, places, etc. An objection was interposed by plaintiff’s counsel to the questioning suggesting that such repetitious questioning had no probative value. Whereupon, the trial judge, referring to Brooks’ testimony, stated that the court did not blame counsel for Brooks’ response, “because the more we ask these questions, the different answers we are getting, and we’re getting nowhere with them.”

We have carefully considered this assignment of error and are of the opinion that when the statement is taken in the context of all of the preceding questioning and the fact that Brooks’ negligence was proven overwhelmingly, that although it was unfortunate the comment was made, it does not constitute reversible error. With or without the trial court’s comment, the plaintiff was entitled to a peremptory instruction against Brooks on the evidence in this record.

AFFIRMED AS TO THE LIABILITY OF LARRY BROOKS.

PATTERSON, C. J., SUGG and SMITH, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PART II.

LIABILITY OF NANCY ANDERSON

The appellee Nichols charged in his declaration that Nancy Anderson was the owner of the Nova and Larry Brooks was driving the automobile with the full permission and consent of Nancy Anderson and as her agent.

It is undisputed that Mrs. Anderson owned the Nova automobile which was being driven by Brooks on a trip to Jackson from Yazoo City. Brooks was accompanied by his aunt, Mrs. Maybelle Johnson. Mrs. Maybelle Johnson was also the aunt of Nancy Anderson. Nancy Anderson and Brooks were cousins.

Mrs. Anderson was a resident of Chicago, Illinois, and had bought the Nova for her personal use while on visits to Mississippi. She had first left the vehicle with her mother who resided at a residence on Lynch Street in Jackson. After her mother’s death, she left the Nova with her aunt, Mrs. Maybelle Johnson, who lived in Yazoo City. Nancy Anderson owned rental property in Yazoo City which Mrs. Johnson looked after and collected rents from the tenants. Mrs. Anderson also owned the mother’s former home on Lynch Street in Jackson.

It is undisputed that Mrs. Maybelle Johnson had two children and a grandchild living at the Lynch Street house. These family members did not pay rent to Mrs. Anderson.

There was also vague testimony from Brooks that there were several students from Jackson State University who lived on the property as renters.

Mrs. Anderson testified, by deposition, that Mrs. Johnson only collected rents on the Yazoo City properties and that she did not collect rents on the Lynch Street property. She further testified that Mrs. Johnson frequently went to Jackson to visit her children who lived at the Lynch Street address.

Mrs. Anderson described her arrangement with Mrs. Johnson’s children as being one whereby the children did not pay rent on the property and that any rent that they collected from others was to be used by them for the upkeep of the house.

In any event, there is no evidence in the record to support a finding that Mrs. Johnson was on her way to the Lynch Street property in Jackson to collect rents for Mrs. Anderson on the day of the accident. The only testimony with regard to the collection of rents came from the defendant, Brooks, who testified that he and Mrs. Johnson went to the Lynch Street property on Wednesday or Thursday of the week before the wreck to collect rent. Brooks also testified that in addition to driving Mrs. Johnson to Jackson at her request, he was going to attempt to take care of some personal matters between 3:00 and 5:00 that afternoon. When asked what kind of work he planned to do at 504 Lynch Street, his reply was “Ordinarily, she was going to do some sweeping and do some washing, dishes, furniture, moving around the furniture, checking on lighting fixtures. My tasks were if I knew how to put in, hookup a light, put in a light, go out into the yard and pick up garbage. And in January I was going to be doing some yard cleaning, primarily, and doing some climbing up in the attic and sorting through old things and getting a lot of the old furniture or old papers out of the attic in different rooms.”

If there is any liability on the part of Mrs. Anderson for the injuries sustained by the plaintiff Nichols, it must necessarily be predicated upon an agency relationship existing between Mrs. Anderson and Mrs. Johnson and the sub-agency relationship of Brooks as the driver of the Nova at the request of Mrs. Johnson, who could not drive.

Therefore, the underlying question with regard to the liability of Mrs. Anderson is whether, under the facts presented by this record, there was a jury issue made as to whether Mrs. Johnson was about the business of Mrs. Anderson, pursuant to Mrs. Anderson’s authorization, either express or implied, or whether Mrs. Johnson was going to Jackson for her own personal reasons, such as visiting her children who lived at the Lynch Street address when the accident occurred and in which Mrs. Johnson was killed.

There is no evidence of any agreement between Mrs. Anderson and Mrs. Johnson with respect to the Lynch Street property. To the contrary, Mrs. Anderson testified that Mrs. Johnson did not collect rents from the Lynch Street property nor look after it. The testimony of Brooks that ordinarily she would “do some sweeping and do some washing, dishes, moving around the furniture, checking on light fixtures” and that he would pick up the garbage and clean up the yard is more consistent with the theory that Mrs. Johnson was visiting the Lynch Street property for the purpose of visiting and looking after her children who lived there. It would be most unusual for a landlord to do sweeping, washing, and dishes under the usual rental arrangements; and, there is no testimony in this record to support any unusual arrangement between Mrs. Anderson, the renters and Mrs. Johnson.

The burden of proving an agency relationship is upon the party asserting it, in this case the plaintiff Nichols. U. S. Fidelity & Guaranty Co. v. Arrington, 255 So.2d 652 (Miss.1971); Highlands Ins. Co. v. McLaughlin, 387 So.2d 118 (Miss.1980). It is an elementary principle of law in this State that a mere permissive user of a motor vehicle does not in and of itself create an agency relationship; and, there is no vicarious liability of the automobile owner for the permissive user’s negligently caused injuries and damages to a third person. Atwood v. Garcia, 167 Miss. 144,147 So. 813 (1933); Merchants Co. v. Tracey, 175 Miss. 49, 166 So. 340 (1936).

Upon a review of the record with respect to whether an agency relationship existed between Mrs. Anderson and Mrs. Johnson with respect to the Lynch Street property and whether Mrs. Johnson was acting as Mrs. Anderson’s agent on the day of the accident, we are of the opinion that any such evidence amounts to a mere scintilla, if that much. We are of the further opinion that no issue of agency was sufficiently made for a jury to determine. Therefore, Mrs. Anderson was entitled to a peremptory instruction, and the court should have sustained her motion for a judgment notwithstanding the verdict.

REVERSED AND RENDERED AS TO THE LIABILITY OF NANCY ANDERSON.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PART III.

LIABILITY OF BOTELER AND COREY AND ITS AGENT, CHARLES T. KYLES

Nichols charged in his declaration that the defendant, Charles T. Kyles, driver of the sausage truck, was negligently following too closely, did not maintain a proper lookout, did not maintain control of his vehicle and negligently struck the disabled van occupied by Nichols after the initial collision between the United Parcel van and the Nova automobile.

Kyles, the driver of the sausage truck, and his employer, Boteler & Corey, will be collectively referred to hereinafter as Kyles. As to Kyles’ involvement in the accident, the record reveals that the plaintiff Nichols, operating a United Parcel van with a fiber glass cab, passed Kyles’ sausage truck as it proceeded north, approximately one-fourth of a mile south of the accident. Kyles was driving at a steady 55 miles per hour rate of speed when Nichols passed and pulled in front of him as both vehicles continued northward. Xyles continued to maintain a 55 miles per hour rate of speed as Nichols gradually pulled away creating a three to four car lengths distance between the two vehicles just before the accident occurred. The elapsed time from the time that Nichols passed Kyles to the point of collision was approximately 16.5 seconds.

As stated earlier, prior to reaching the first bridge, which was approximately one-fourth of a mile from the accident scene, Nichols and Kyles saw the tractor-trailer rig parked facing south on the west side of the highway opposite their northbound lane. Nichols had also seen the truck in the same position the day before the accident. Nichols was aware of the approaching southbound Nova vehicle driven by Brooks. Defendant Kyles was unaware of the approaching Nova, evidently because of the large United Parcel van in front of him. Plaintiff Nichols testified as follows:

Q. All right. When did you first observe a car [the Nova driven by Brooks] approaching from the north?
A. After I had completed my pass around the grain [sic — sausage] truck.
Q. All right now, where was that car with respect to the center of the highway when you first observed it?
A. He was on his side of the road.
Q. All right. What if anything was that car doing that appeared unusual or that called your attention to it in any special way?
A. Nothing.
Q. All right. And as you were approaching the grain truck, at what speed were you traveling?
A. Around fifty, between fifty and fifty-five.
Q. All right. Now, what, if anything, did you do as you came nearer to the grain truck?
A. I let off my accelerator a little bit.
Q. And why did you do this?
A. To slow down a little bit because of the coming situation. The grain truck was out a little bit.
Q. All right now, at that time, had the oncoming vehicle done anything unusual?
A. No sir.
Q. All right. Then tell the jury if you will, Ron, what next occurred.
A. Well, just all of a sudden the Nova just came over in my lane, and I slammed on brakes and tried to turn to the right, and that’s all I remember.
Q. All right. And when the Nova— and this is the vehicle driven by Larry Brooks?
A. Yes sir.
Q. All right. When it came over in your lane, how did it come over there?
A. Quickly, suddenly. Just all of a sudden he just zipped over.
Q. All right. And you did what?
A. I just slammed on brakes and tried to turn to the right to get out of his way. (Emphasis added).
Q. All right now, at the time he came over in your lane, do you know where you were with respect to the disabled trailer on the shoulder of the road?
A. I imagine I was about seventy-five feet this side, south side of the trailer.
Q. You had not gotten to the trailer?
A. No sir.
Q. Had he gotten to the trailer?
A. No sir.
Q. Could you estimate how far north of the trailer he was when he zipped over in your lane, as you call it?
A. Probably around a hundred feet.
Q. All right. So then how far apart would you say ya’ll were when he zipped over in your lane?
A. Around two-hundred feet.
Q. All right. And after you saw him zip over in your lane and applied your brakes and pulled to your right, then what happened?
A. That’s all I remember.
Q. That’s all you remember?
A. Yes, sir.
Q. All right. What is the next thing you remember after putting on your brakes and pulling to your right?
A. I came to and I was laying on the highway. They had already gotten me out of the truck. When I came to, I saw a lot of people standing around, and then I guess I blacked back out.
Q. All right. The last time you remember seeing the Chevy Nova, how was it coming at you?
A. Straight at me, just bearing down at me.

The defendant Kyles was called by plaintiff as an adverse witness and testified as follows with respect to the collision:

Q. As you were following along behind this UPS van, maintaining your fifty-five mile an hour speed, three, four car lengths behind him, and approaching this disabled van on the shoulder of the road, what is the first thing you noticed that made you know something wasn’t right?
A. The first thing I noticed that made me know something wasn’t right was when I seen this UPS van going in the air and all the debris flew from it and the door flew off of it and it turned over.
Q. All right. Now, what did you do when you finally determined that something had gone wrong up there?
A. Tried to dodge it, tried to stop, tried to dodge it.
Q. All right now, did you apply your brakes?
A. Yes sir.
Q. And how far away from him were you when you applied your brakes?
A. I don’t know, sir.

Nichols was unable to avoid the Nova driven by defendant Brooks, which had crossed into Nichols’ lane of traffic. The resulting collision virtually destroyed the United Parcel van’s cab and the Nova automobile. Kyles veered to the left to avoid hitting the United Parcel van but was unsuccessful and struck some part of the van.

Was appellant Kyles entitled to a peremptory instruction and, failing that, a judgment N.O.V.?

The general law with respect to following vehicles is summed up in Blashfield, Automobile Law and Practice (3d ed.) section 113.15, (1979) which states, in part, as follows:

Duties — following vehicle — maintain reasonable distance.
Under the provisions of some statutes the express duty of the driver of a following vehicle is to not follow more closely than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of, the highway. [Same as our statute, Miss. Code Ann. § 63-3-619(l)(1972) J.
Statutes or rules of the road which require the maintenance of distance by one vehicle following another are not rendered inapplicable by the mere fact that the following vehicle is not directly in the rear of the leading vehicle, but do not apply where the following vehicle is overtaking and passing the leading vehicle, or is in another lane.
Hard-and-fast or general rules do not exist as to how close a motorist, in the exercise of ordinary care, should follow another vehicle, and the only rule that can govern the interval to be maintained is that of reasonable care under the circumstances. The mere fact that a vehicle travels in close proximity to a moving vehicle ahead does not necessarily constitute negligence.
The driver of a following vehicle is not to be charged with anticipating an emergency created by the negligence of another under circumstances that could not have been reasonably anticipated. Exonerating circumstances may be when the vehicle immediately ahead collides with another vehicle or object. . .. (Emphasis added).

That fact that plaintiff Nichols passed Kyles and thereby placed Kyles in a close following position presents two questions: (1) After being passed by Nichols, was Kyles under a duty to immediately decrease his speed? We think not. For a vehicle to immediately slow down after being passed could, in itself, create a hazardous condition to traffic to the rear. From common practice and experience we can safely say that a driver who is passed on the highway, under ordinary circumstances, maintains his speed while the passing vehicle moves on ahead creating a distance between them. This of necessity takes time, the amount of time depending on the speed of the two vehicles. We would add, however, that at some point, if the passing vehicle does not create a distance between the two vehicles that would be reasonable, the passed vehicle must either slow until a reasonable distance is created or elect to repass the original passing vehicle. (2) The next question is whether the tractor-trailer rig which was disabled and parked on the west shoulder of the highway with approximately eighteen inches extending onto the paved portion of the highway, created a special hazard which required Kyles, in the exercise of reasonable care, to immediately slow his vehicle after being passed by the United Parcel van? Again, we think not. All of the testimony is to the effect that there was ample room for a southbound vehicle such as the Nova to pass the parked disabled truck without crossing the center line, while meeting oncoming traffic in the northbound lane. In fact, Nichols had traveled this highway the day before the accident and had seen the disabled truck and testified that although the rear dual wheels of the truck protruded onto the highway, there was ample room for vehicles meeting one another to pass without any problem. The defendant Brooks also testified that there was ample room for him to have passed between the truck and oncoming traffic without crossing the center line and was unable to explain why he suddenly veered into the path of Nichols’ United Parcel van. Brooks’ relevant testimony is as follows:

Q. So that’s the last thing you remember?
A. That’s the last thing I remember, with the exception of, as I said, this silver streak, I said in the deposition given in October, came across my right hand. I don’t know what this silver streak was.
Q. When you were last conscious, you were approaching then the grain truck and you were moving to the left.
A. No, I was not moving to the left. I was at the position at which I was reasonably safe. I was no longer moving.
Q. Well, where were you?
A. I was going straight ahead.
Q. In whose lane?
A. My lane.

We are of the opinion that under the circumstances presented, no special hazard existed on the highway which would require a person in the exercise of reasonable care to immediately decrease the speed of his vehicle after being passed by another vehicle. Therefore, since the defendant, Kyles, was under no duty to immediately decrease the speed of his vehicle after being passed by Nichols’ United Parcel van, in order to allow an interval to be created between them, and, since Nichols, by passing Kyles, created the short distance between himself and Kyles and 16.4 seconds later collided with the Brooks’ vehicle (Nova) which suddenly and without cause or reason veered into Nichols’ lane of traffic, creating a situation that was not reasonably anticipated, Kyles was not guilty of any negligence which proximately caused or contributed to Nichols’ damages and injuries.

As to whether Kyles reacted to the situation in a reasonable manner under the circumstances, we need only look to the undisputed facts. At the time the United Parcel van collided with the Nova, Kyles was three to four ear lengths behind the United Parcel van traveling at 55 miles per hour. Nichols “slammed on brakes” and collided with the Nova. Kyles saw the van “going in the air and all the debris flew from it and the door flew off of it and it turned over.” Kyles put on brakes, skidded and veered to the left in an attempt to miss the van but was unsuccessful. One could hardly do more under the circumstances.

For the above reasons, we are of the opinion that the trial court should have sustained Kyles’ motion for a judgment notwithstanding the verdict.

REVERSED AND RENDERED AS TO THE LIABILITY OF BOTELER AND COREY AND ITS AGENT, CHARLES T. KYLES.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM and ROY NOBLE LEE, JJ., concur.

BOWLING, HAWKINS and DAN M. LEE, JJ., dissent.

PART IV.

LIABILITY OF JERRY A. WOODS

Nichols charged in his declaration that Woods was negligent in leaving his disabled vehicle protruding into and partially blocking the travelled portion of the highway for an unreasonable length of time and that such negligence proximately contributed to the cause of the accident and resultant injuries and damages suffered by Nichols.

The tractor-trailer driven by Woods was loaded with soybeans. The rig was thirty-eight (38) feet long and had a gross weight of 71,020 pounds. The load of beans was so heavy that the trailer broke in half and Woods attempted to drive the rig off on the west shoulder of the highway. The shoulder was wet and muddy and he was unable to do so, leaving the trailer approximately eighteen (18) inches on the west side of the paved portion of the highway and partially blocking it. The time was approximately 2:00 a. m. on Tuesday, January 31, 1979. Woods spent the remainder of that night at a 24-hour truck stop and did not remove the rig from the highway before the collision occurred at approximately 9:30 a. m. Wednesday, February 1,1979, approximately thirty-one and one-half (3IV2) hours later.

The evidence is uncontradicted that while the Brooks Nova automobile was in the vicinity of the Woods soybean truck, it suddenly veered to the east across the center-line into the path of the Nichols vehicle. Brooks testified that he first saw the truck-trailer when he was between a quarter of a mile to a half-mile away. He further testified, in part, as follows:

Q. O.K. Mr. Brooks, go ahead. I want to find out exactly how this wreck happened.
A. And as I was approaching the eighteen-wheeler I moved over slightly to my left to insure that the right-hand passenger side on which my aunt was driving [riding] would not go into the eighteen-wheeler, which was sticking in our line. And at the same time the eighteen-wheeler was situated near a big, ole gully. Just in case something strange happened, I didn’t want to be on that side of the gully. So at the same time it was two objects coming toward us. O.K. It appeared that one of the objects was passing the other object. And as we were approaching the eighteen-wheeler, I was approaching the eighteen-wheeler, and the markings were saying — I don’t know whether they were flashing or whether they were little triangles, but I knew that the eighteen-wheeler was not moving, and I clicked on my blinkers or flashed my headlights on and off like you’re driving at night and someone is passing and they’re coming at you and you flash the light on to say you’re there, slow down, back it up, get back in, because there’s originally not enough chance, me going at my speed and you going at your speed, so we can both get through that square. And as I put my blinkers on, instinct or something told me to move a little bit closer and see what was going on. And as I moved to see what was going on, I said, “What the hell?” And when I said “hell,” I woke up in the hospital.
Q. So that’s the last thing you remember?
A. That’s the last thing I remember, with the exception of, as I said, this silver streak, I said in the deposition given in October, came across my right hand. I don’t know what this silver streak was. (Emphasis added).

The photographs indicate that the tractor-trailer was a huge and imposing rig and appeared to block more than the west eighteen inches of the paved portion of the highway. Brooks was concerned for the safety of his aunt who was sitting on the passenger side, due to the presence of the tractor-trailer, and he drove to his left. The fact that the tractor-trailer was near a big gully also gave him concern for her safety. It is undisputed that he moved away from the stalled rig toward the east. The evidence is also undisputed that the Nova then suddenly crossed the centerline into the northbound lane.

The jury and the court can apply their own experience and knowledge in driving and meeting situations on highways. It is a matter of common knowledge that the driver of a vehicle approaching another vehicle stopped on the edge of the pavement, or on the shoulder, almost subconsciously will drive to his left in order to place distance between his vehicle and the stopped vehicle and such is true even on an interstate highway. The question arises here as to whether or not Woods reasonably should have foreseen that some accident may have occurred as a result of the tractor-trailer’s being stopped on the highway, even though he may not have foreseen the specific accident which did occur. If an approaching vehicle had driven into the southbound lane in which Brooks was driving the Nova, forcing Brooks to drive within six (6) inches of the west edge of the pavement thereby causing him to hit the tractor-trailer parked there, resulting in injury to him, could it be said that Woods was not contributorily negligent? If he would be negligent under those facts, why should he not be negligent under the present facts?

In Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952), one Wiley left a disabled automobile parked on the south side of a bridge approximately one hundred fifty (150) feet from the west end of it. The Rosamond automobile was proceeding west-wardly on the bridge, left the north lane of travel and ran into the Wiley vehicle. In holding Wiley liable, the Court said:

Frank Wiley, Jr., admitted that he had left his stalled automobile on the bridge from 4:30 o’clock a. m. until the midafter-noon without taking any effective action to remove it from the bridge, although he had made two trips back to the stalled car during the morning. The fact that the bridge was 19 feet 3 inches in width and that approximately 13 feet of the traveled portion of the bridge remained unobstructed did not relieve him from the duty of taking prompt and effective action to remove the automobile from the bridge without unreasonable delay so as to avoid the danger created by the parking of the automobile on the bridge.
In case a motor vehicle is disabled on the public highway so that is [sic] cannot be moved under its own power, if it can be removed from the traveled portion of the highway, it is the duty of the driver to so remove it. Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92. [213 Miss, at 643, 57 So.2d at 465].

This Court, in Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975) cited General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), and stated the principle that applies to motions for directed verdicts, judgments n.o.v., and requests for peremptory instructions as follows:

The established rule is when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105. [319 So.2d at 657],

We are of the opinion that, applying the principle expressed above to the facts and inferences in this case favorable to the ap-pellee, there was a question for the jury to determine as to the liability of Woods, and we affirm on liability.

AFFIRMED AS TO THE LIABILITY OF WOODS.

SUGG, P. J., and BOWLING, HAWKINS, and DAN M. LEE, JJ., concur.

PATTERSON, C. J., SMITH, P. J., and WALKER and BROOM, JJ., dissent.

PART V.

EXCESSIVENESS OF DAMAGES

All of the appellants assigned as error the verdict of the jury was excessive and was not supported by the evidence. It can hardly be questioned however that Nichols has suffered serious, permanent and crippling injuries, whereas prior to the accident, he was a healthy, active twenty-eight year old male.

A summary of his injuries are as follows: A laceration on the left side of the scalp, two lacerations on the right side of his face, and a laceration on his left ankle; dislocation of the right elbow and the right ulna broken in four places; a deep laceration in the web between the thumb and index finger on his right hand and loss of tissue on his thumb, long and ring fingers (the lacerated fingers required skin grafting, and one finger is disfigured); a two to three-inch laceration on his left leg near his knee; a front tooth knocked out, requiring a three-part bridge; a large wound from the kneecap to the back of his right leg with the upper four inches of the tibia being pulverized; a fracture of the fibula and commi-nuted fracture of the femur.

An attempt to repair the broken bones with pins and screws was unsuccessful. Complications involving gangrene, dead tissue or attempted skin grafts necessitated that Nichols be carried to the operating room on several occasions over the next few days. It was finally determined that since large amounts of muscle and bone had died and there was danger that Nichols could bleed to death from a torn artery, it would be necessary to amputate his right leg four to six inches above the knee. During the course of his stay in the hospital, Nichols had numerous blood transfusions, his right arm placed in a cast and later in a brace, and he received physical therapy treatments. Motion in his right wrist is permanently limited to ninety degrees, and his right forearm healed with a permanent fifteen-degree angulation.

Appellee was in the hospital forty-eight days, six days of which were in intensive care. Medical expenses totalled $25,914.91. He was off work for a year and eight weeks (60 weeks). He has lost between $26,000 and $27,000 in wages.

At the time of the accident Nichols was working 45 hours a week driving a United Parcel Service van earning $9.40 an hour for the first forty hours and time and a half for overtime. At the time of trial, truck drivers doing the same work were making over $11.00 an hour. Nichols has returned to work but now does office work since he can no longer drive a truck. He is now earning $1,950.00 per month; therefore, at the time of the trial, he was making approximately $1,680.00 less per year doing office work that he would have been making as a truck driver.

It is evident that Nichols experienced great pain and suffering as a result of the collision, during his hospitalization and that he still has some pain. He is unable to walk over rough terrain, must take stairs one at a time, cannot drive a standard vehicle, cannot run, cannot engage in some social activities and testified that he no longer is able to shoot a gun or hunt with a bow or ski. He also testified that he has difficulty eating normally with his right hand.

Nichols described his prosthesis (artificial leg) as being hard to wear, hurts to walk on it, and causes blisters and boils. When blisters or rashes appear, Nichols has to take off the prosthesis and get about on crutches or by wheelchair. Dressing is difficult.

The doctor testified that fungus infections are common complications that amputees have because the fiber glass “stump” does not breathe. They are prone to get skin infections such as painful boils and pimples, which may ordinarily be considered insignificant, but means to an amputee that he leaves his prosthesis home and uses crutches.

The orthopedist testified that Nichols’ artificial leg will have to be replaced every two to five years at today’s cost of $2,400.00. Concerning probable future problems, the doctor said, “I never discharge an amputee.”

The question here is whether the jury verdict of $550,000 is so grossly excessive as to evince passion, bias and prejudice on the part of the jury.

Some of the elements that may be considered by the jury in fixing the amount of damages suffered by a plaintiff include: the degree of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and plaintiff’s state of health, Mobile & Ohio Railroad Co. v. Carpenter, 104 Miss. 706, 61 So. 693 (1913); Kinnard v. Martin, 223 So.2d 300 (Miss. 1969); the loss of use of limbs, Memphis & C.R.R. Company v. Whitfield, 44 Miss. 466 (1870); Grenada Dam Contractors v. Patterson, 48 So.2d 480 (1950); disfigurement or mutilation of the body, Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541 (1951); Rankin County v. Wallace, 230 Miss. 413, 92 So.2d 661 (1957); Jenkins v. Cogan, 238 Miss. 543, 119 So.2d 363 (1960). With regard to the impact of inflation and change in the purchasing power of money and cost of living, see Kinnard v. Martin, 223 So.2d 300 (Miss.1969) and Shaw v. Richardson, 392 So.2d 213 (Miss.1980).

In Walters v. Inexco Oil Company, 511 F.Supp. 21 (1979), Walters, a Mississippi citizen, filed suit in the United States District Court for the Southern District of Mississippi seeking damages for personal injuries received in an oil well accident. His principal injury was loss of his right leg above the knee. District Judge Walter L. Nixon, sitting without a jury, awarded damages in the sum of $534,116.54. The judgment was affirmed by the Fifth Circuit Court of Appeals on February 2, 1981 [Not Yet Reported]. While Walters sustained larger damages for medical expenses and loss of earnings, that case and the case sub judice are comparable.

In Kinnard v. Martin, supra, Martin sustained serious leg injuries and was awarded $100,000 damages. This Court said:

We cannot, however, agree that the verdicts of the jury are so excessive as to evince bias and prejudice on the part of the jury. It is true that the amount is large in each case, but the hospital and medical expenses in Mr. Martin’s case were shown to have been $5,559.42, and in Mrs. Martin’s case, $6,466.20. Hospital and medical expenses have more than doubled in the last two years, but it is not contended here nor has it been contended in the cases which have been before this Court that they were excessive. It is true that just a few years ago a judgment for half the size of these verdicts would have been considered excessive, but that was before 5$ magazines sold for 50$ and $25 suits sold for $100.
The jury has a right to consider any change in the purchasing power of money and the cost of living. Louisville & N. R. R. v. Williams, 183 Ala. 138, 62 So. 679 (1913); Annot., 12 A.L.R.2d 611, § 11 at 636 (1950); 22 Am.Jur.2d Damages §§ 87, 365 (1965).
Each suit for personal injury must be decided by the facts shown in that particular case. The amount of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and health of the injured plaintiff, are all variables to be considered by the jury in determining the amount of damages to be awarded. Mobile & Ohio R.R. v. Carpenter, 104 Miss. 706, 61 So. 693 (1913); Southern R. R. v. Kendrick, 40 Miss. 374 (1866); 22 Am.Jur.2d Damages § 85 (1965). [223 So.2d at 302, 303].

In Swaggart v. Haney, 363 So.2d 251 (Miss.1978), Haney sustained chemical burns over his body, fracture of the pelvis bone, puncture of his bladder, bruises, and cuts under his eyes. He was hospitalized for seventeen (17) days and incurred medical expenses of $4,422.07. The jury verdict was $100,000, and we said:

Although the $100,000 jury verdict might possibly be higher than another jury would render, we cannot say that it was so high as to evince bias or prejudice, or that it was completely against the overwhelming weight of the evidence. [363 So.2d at 254],

In James Reeves, Contractor, Inc. v. Chain, 343 So.2d 1229 (Miss.1977), the verdict was $150,000 for back injuries and phlebitis, and a remittitur of $50,000 was entered. The Court said:

The test for determining whether a verdict is grossly excessive is whether it evinces passion, bias and prejudice on the part of the jury so as to shock the conscience. Some of our cases have made the statement that the test is whether the jury responded to reason or whether the evidence justified the amount of the verdict. [343 So.2d at 1232],

Some additional cases where substantial verdicts have been affirmed are: Deas v. Andrews, 411 So.2d 1286 (Miss.1982) [$202,-000 for loss of leg]; Daniels v. Soder, 253 So.2d 849 (Miss.1971) [$23,141.40 for fracture of leg]; Fruit v. Schreiener, 502 P.2d 133 (Alaska 1972); [$635,000 for loss of one leg]; Rediker v. Chicago, R. I. & P. R. Co., 1 Kan.App.2d 581, 571 P.2d 70 (1977) [$450,-000 for loss of one leg]; Gordon v. General Motors Corp., 323 So.2d 496 (La.App.1975) [$467,000 for fracture to leg]; Barlage v. The Place, Inc., 277 N.W.2d 193 (Minn.1979) [$700,000 for loss of one leg]; and Lamke v. Louden, 269 N.W.2d 53 (Minn.1978) [$450,-000 for loss of both legs].

As was said in Kinnard v. Martin, supra, each suit for personal injury must be decided by the facts of the particular case. "We are of the opinion that the verdict here is not so grossly excessive as to evince passion, bias and prejudice on the part of the jury so as to shock the conscience. Therefore, the judgment of the lower court as to damages is affirmed.

AFFIRMED AS TO DAMAGES.

PATTERSON, C. J., BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

SMITH and SUGG, P.JJ., and WALKER, J., dissent.

HAWKINS, Justice,

dissenting as to Part III:

I respectfully dissent solely as to the majority’s reversing and rendering the judgment against Kyles and his employers.

An opinion already triturated as this can hardly gain from further exposition by a minority expression. My comments, directed solely to the issue of Kyles’ negligence, are brief.

The majority opinion fails to note a segment of the testimony of one of the witnesses and an aspect of the physical facts, e.g., the photograph showing the rear end of the United Parcel van, which would justify a supplemental factual hypothesis indicating negligence on the part of Kyles. Yet I am persuaded the factual statement set forth in the majority opinion in and of itself indicates the negligence of Kyles was properly submitted to the jury and the case should be affirmed as to him and his employers also.

On a straight, flat, two-lane highway, with a clear view stretching for at least a mile, Kyles’ .sausage truck was passed by the United Parcel van driven by the plaintiff Nichols. Ahead of them, partially blocking the opposite lane, was a 38-foot long tractor-trailer loaded with soybeans. Coming from the opposite direction was a Chevrolet Nova being driven by Brooks. All this was in clear view.

At this particular moment, the vehicles were sufficient proximity for Kyles to recognize it was prudent “to let off "my accelerator a little bit,” and “to slow down a little bit because of the coming situation.”

Brooks’ Chevrolet Nova pulled over into Nichols’ United Parcel van’s lane to go around the disabled truck and the two vehicles collided head-on.

The jury found Kyles was neither keeping sufficient lookout ahead nor keeping his vehicle under sufficient control to stop prior to crashing into the first wreck a moment later.

The jury was properly instructed on the duty of Kyles to keep a proper lookout ahead and to keep his vehicle under proper control. On this issue, they manifestly found against Kyles.

The majority opinion has chosen just one (and in my view a far weaker) inference of fact from this case, i.e., that under the circumstances Kyles had no duty to slow down sufficiently or be sufficiently alert to avoid causing the second collision.

I believe the record fully justifies an inference of fact for the jury that Kyles failed to keep a proper lookout ahead and/or failed to keep his vehicle under proper control to avoid this collision, and under manifestly proper instruction found against Kyles and his employers. Strong argument can be made that Kyles should have observed the potential peril of an impending crash, and easily could have slowed sufficiently to avoid the second crash; hence, the jury issue. The jury, in my view at least, was certainly justified in wondering why Kyles, under these circumstances, never once put his foot on the brake prior to the first crash.

This case involves a multiple collision in a spacetime relationship which was peculiarly for the jury, not a court, to decide whether Kyles was keeping his vehicle under proper control and/or keeping a proper lookout ahead. It is the very sort of case in which the jury should decide these two issues. See Dorroh v. Cotten, 259 So.2d 121 (Miss.1972); Freeland v. Henderson, 252 So.2d 899 (Miss.1971); and Mooney v. Lawley, 214 So.2d 679 (Miss.1968).

BOWLING and DAN M. LEE, JJ., join in this dissent.

WALKER, Justice,

dissenting as to Part IV, Liability of Woods.

Nichols charged in his declaration that Woods was negligent in leaving his disabled vehicle partially protruding in the traveled portion of the highway for an unreasonable length of time and such negligence proximately contributed to the cause of the accident and resultant injuries and damages suffered by Nichols.

Assuming, arguendo, that Woods was negligent by leaving his disabled rig approximately eighteen inches on the paved portion of the road for an unreasonable length of time under the circumstances, the evidence negates any theory or contention that such negligence was a proximate cause of Nichols’ injuries and damages.

It is undisputed that the disabled vehicle was visible to all parties for more than a mile in each direction, and each of the parties testified that as they approached the disabled vehicle, they were aware of it.

Plaintiff Nichols’ relevant testimony was as follows:

Q. Now, I believe that you have stated that when you first saw the Nova approaching from the other direction it was about a mile away. Is that correct?
A. Yes, sir.
Q. All right now, was there any traffic on the road in front of you going northbound or in front of him going southbound that was between the two cars?
A. No, sir.
Q. So the fact is there was no traffic in the road between — no moving vehicles in the road between the front of your van and the front of his Nova.
A. No, sir.
Q. This is a long, flat area, I believe you have testified.
A. Yes, sir.
Q. And there are no obstructions whatever to visibility of anything parked along the side of the road in there, is there?
A. I don’t believe.
Q. And you could see the disabled truck on the morning of the accident from at least a half a mile away, I believe you said.
A. Yes, sir, something like that.
Q. On the day before when you went to Yazoo City and back, you had seen the truck or you remember seeing the truck, as I understand you, when you were coming back, anyhow.
A. Yes, sir.
Q. And as you came back from Yazoo City toward Jackson, the truck was off on the shoulder of the road on your right. Is that correct?
A. Yes, sir.
Q. And in passing by it in your van, you were able to stay completely in the southbound lane of traffic, could you not?
A. Yes, sir.
Q. And so you know that a Nova Chevrolet is smaller than a UPS van, don’t you?
A. Yes, sir.
Q. And if the UPS van could pass by without getting over the yellow line or over the middle line, there is no doubt in your mind that a Nova Chevrolet could do it, is there?
A. I would think so, yes, sir.
Q. All right. When did you first observe a car approaching from the north?
A. After I had completed my pass around the grain [sic — sausage] truck.
Q. All right now, where was that car with respect to the center of the highway when you first observed it?
A. He was on his side of the road.
Q. All right. What, if anything, was that car doing that appeared unusual or that called your attention to it in any special way?
A. Nothing.
Q. All right. And as you were approaching the grain truck, at what speed were you traveling?
A. Around fifty, between fifty and fifty-five.
Q. All right. Now, what, if anything, did you do as you came nearer to the grain truck?
A. I let off my accelerator a little bit.
Q. And why did you do this?
A. To slow down a little bit because of the coming situation. The grain truck was out a little bit.
Q. All right now, at that time, had the oncoming vehicle done anything unusual.
A. No, sir.
Q. All right. Then tell the jury if you will, Ron, what next occurred.
A. Well, just all of a sudden the Nova just came over in my lane, and I slammed on brakes and tried to turn to the right, and that’s all I remember, (emphasis added).
Q. All right. And when the Nova— and this is the vehicle driven by Larry Brooks?
A. Yes, sir.
Q. All right. When it came over in your lane, how did it come over there?
A. Quickly, suddenly. Just all of a sudden he just zipped over.
Q. All right. And you did what?
A. I just slammed on brakes and tried to turn to the right to get out of his way.
Q. All right now, at the time he came over in your lane, do you know where you were with respect to the disabled trailer on the shoulder of the road?
A. I imagine I was about seventy-five feet this side, south side of the trailer.
Q. You had not gotten to the trailer?
A. No, sir.
Q. Had he gotten to the trailer?
A. No, sir.
Q. Could you estimate how far north of the trailer he was when he zipped over in your lane, as you call it?
A. Probably around a hundred feet. DEFENDANT BROOKS, DRIVER OF THE NOVA, TESTIFIED AS FOLLOWS:
Q. How far away was this truck-trailer when you first saw it?
A. Between a quarter of a mile to a half mile from the curve in the Big Black River bridge.
Q. Quarter of a mile and a half mile?
A. Yes.
Q. Let’s look at your deposition again, on page 21. See if you recognize your answer.
A. Where do you want me to read?
Q. This would be down near line 21 and 22.
A. Your question?
Q. How far away was the truck-trailer when you first saw it?
A. When I gave this deposition, I was under the impression it was a mile away.
Q. O.K. Mr. Brooks, go ahead. I want to find out exactly how this wreck happened.
A. And as I was approaching the eighteen-wheeler, I moved over slightly to my left to insure that the righthand passenger side on which my aunt was driving would not go into the eighteen-wheeler, which was sticking in our line. And at the same time the eighteen-wheeler was situated near a big, ole gully. Just in case something strange happened, I didn’t want to be on that side of the gully. So at the same time it was two objects coming toward us. O.K. It appeared that one of the objects was passing the other object. And as we were approaching the eighteen-wheeler, I was approaching the eighteen-wheeler, and the markings were saying — I don’t know whether they were flashing or whether they were little triangles, but I knew that the eighteen-wheeler was not moving, and I clicked on my blinkers or flashed my headlights on and off like you’re driving at night and someone is passing and they’re coming at you and you flash the light on to say you’re there, slow down, back it up, get back in, because there’s originally not enough chance, me going at my speed and you going at your speed, so we can both get through that square. And as I put my blinkers on, instinct or something told me to move a little bit closer and see what was going on. And as I moved to see what was going on, I said, “What the hell?” And when I said “hell”, I woke up in the hospital.
Q. So that’s the last thing you remember?
A. That’s the last thing I remember, with the exception of, as I said, this silver streak, I said in the deposition given in October, came across my right hand. I don’t know what this silver streak was.
Q. When you were last conscious, you were approaching then the grain truck and you were moving to the left.
A. No, I was not moving to the left. I was at the position at which I was reasonably safe. I was no longer moving. (Emphasis added).
Q. Well, where were you?
A. I was going straight ahead.
Q. In whose lane?
A. My lane.
DEFENDANT KYLES, DRIVER OF THE SAUSAGE TRUCK, TESTIFIED AS FOLLOWS:
Q. But you could see the disabled van on the shoulder?
A. The disabled tractor-trailer, yes, sir.
Q. All right. Now, Mr. Kyles, can you explain to the jury why, in light of approaching a disabled van on the shoulder of the road on a two-lane highway, that you did not reduce your fifty-five mile per hour speed as you were approaching that disabled trailer?
A. Sir, the front end of his — he was clear of the highway. And I didn’t see nobody around out there trying to stop nobody. I didn’t see no reason for me to slow down or try to do anything than go on and try to make my deliveries and make it back.
Q. That’s right. After the accident, you walked right down the lane there right by the truck itself and observed how much room there was in the southbound lane, did you not?
A. Yes, sir.
Q. And there was plenty of room, was there not, for a vehicle to pass by the truck in the southbound lane without ever getting across the center line?
A. Yes, sir.

From the above testimony, I am of the opinion that the only reasonable conclusion is that the disabled rig was not a proximate contributing cause of the accident. Not a single party to the accident testified that the parked, disabled trailer rig played any part in the cause of the collision of the vehicles. The trial court should have sustained defendant Woods’ motion for a judgment notwithstanding the verdict.

I strongly disagree and dissent from the holding of the majority which imposes liability upon Woods and am at a loss to understand their reasoning. I have the deepest sympathy for Nichols who was seriously and permanently injured, but it is unjust and unfair to impose his loss and damages upon Woods when the negligence of Brooks was the sole proximate cause of this tragic collision.

PATTERSON, C. J., SMITH, P. J., and BROOM, J., join this dissent.

WALKER, Justice,

dissenting as to Part V, Damages.

I respectfully dissent from the holding of the majority in affirming the damage award of $550,000.00.

The question presented is whether the jury verdict of $550,000.00 is so grossly excessive as to evince bias, passion and prejudice on the part of the jury.

Some of the elements that may be considered by the jury in fixing the amount of damages suffered by a plaintiff include: the degree of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and plaintiff’s state of health. Mobile & Ohio Railroad Co. v. Carpenter, 104 Miss. 706, 61 So. 693 (1913); Kinnard v. Martin, 223 So.2d 300 (Miss.1969); the loss of use of limbs, Memphis & C.R.R. Company v. Whitfield, 44 Miss. 466 (1870); Grenada Dam Contractors v. Patterson, 48 So.2d 480 (1950); disfigurement or mutilation of the body, Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541 (1951); Rankin County v. Wallace, 230 Miss. 413, 92 So.2d 661 (1957); Jenkins v. Cogan, 238 Miss. 543, 119 So.2d 363 (1960). With regard to the impact of inflation and change in the purchasing power of money and cost of living, see Kinnard v. Martin, 223 So.2d 300 (Miss.1969) and Shaw v. Richardson, 392 So.2d 213 (Miss.1980).

A few cases of interest involving sizable verdicts are: Dendy v. City of Pascagoula, 193 So.2d 559 (Miss.1967) in which this Court affirmed a remittitur of $450,000 on a $550,000 verdict. The plaintiff in that case was permanently paralyzed as a result of diving from a city pier. Also involved in the case was Dendy’s contributory negligence.

Capital Transport Company v. Segrest, 254 Miss. 168, 181 So.2d 111 (1965) in which this Court affirmed a remittitur of $20,000 on a $90,000 verdict. The plaintiff Segrest, who owned and operated a service station, suffered third and second degree burns as the result of an explosion which occurred while a Capital Transport truck was unloading gasoline at the station.

James Reeves, Contractor, Inc. v. Chain, 343 So.2d 1229 (Miss.1977) involved a remit-titur of $50,000 on a $150,000 verdict. The injuries complained of in that case involved a motor vehicle accident where the plaintiff, the mother of three children, suffered back injuries and phlebitis requiring sixty days hospitalization.

M.F.C. Services v. Lott, 323 So.2d 81 (Miss.1975) wherein this Court affirmed a remittitur of $100,000 from a judgment of $175,000 where plaintiff’s injuries consisted of severe back and neck injuries that prevented him from operating his trucking operation and cattle business.

Kinnard v. Martin, supra, held that the jury had great discretion in fixing awards but qualified it by saying, “However, the discretion vested in the jury is not an arbitrary discretion. It must be exercised reasonably and intelligently to the end that the plaintiff may recover reasonable compensation for the loss he has sustained. 25 C.J.S. Damages § 81 (1966). Each suit for personal injury must be decided by the facts shown in that particular case. ... ” (323 So.2d at 303).

In James Reeves, Contractor, Inc. v. Chain, supra, this Court said: “The test for determining whether a verdict is grossly excessive is whether it evinces passion, bias and prejudice on the part of the jury so as to shock the conscience. Some of our cases have made the statement that the test is whether the jury responded to reason or whether the evidence justified the amount of the verdict.” (343 So.2d at 1232).

The evidence reveals that the plaintiff Nichols suffered severe permanent disabling and painful injuries, suffered medical expenses in the amount of $25,914.91, loss of wages in the amount of $25,760.00, loss of future wage-earning capacity resulting in loss of future earnings of $14,739.00 and future medical expenses of approximately $6,982.00. These losses amount to a total of approximately $73,395.91. This sum would compensate Nichols for his monetary losses.

The next question is whether the remaining amount of the verdict, i.e., $476,604.09 ($550,000.00 less $73,395.91) is so great as to evince bias, passion and prejudice or that the award is so great as to shock the conscience with respect to compensating Nichols for mental anguish, disfigurement (including the loss of his right leg from approximately four to six inches above the knee), and pain and suffering, past, present and future.

The statement of the Court in Capital Transport, supra, is applicable to this case:

The plaintiff’s injuries in this case are indeed severe, and he is unquestionably entitled to substantial damages. The court is sure that this plaintiff or any person, would not elect to undergo the ordeal of pain and suffering and injury encountered here for any sum of money, but yet the amount to be awarded must meet the test of such modern economic standards as have been accepted, approved and developed in this jurisdiction. ... It is the opinion of the court that the largeness of the verdict was prompted by an overwhelming sympathy (perhaps understandably so) on the part of the jury, but that the elements of passion and prejudice permeate the verdict to the extent of making it legally excessive. (254 Miss, at 183, 181 So.2d at 117-118).

I have carefully considered Nichols’ elements of damages along with the rules with respect to determining damages heretofore mentioned and am of the opinion that the award of $550,000.00 was excessive by $250,000.00 and that a remittitur should be ordered, leaving a judgment in the amount of $300,000.00.

SMITH and SUGG, P.JJ., join this dissent.

      . Mrs. Anderson agrees that if an agency relationship is found to exist between Mrs. Anderson and Mrs. Johnson, that the sub-agency of Brooks would also exist.

       (1) “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of'such vehicles and the traffic upon and the condition of the highway.” Appellee Nichols does not contend that subsection 2 is applicable to the facts in this passing situation. It provides as follows: “The driver of any motor truck or motor truck drav/ing another vehicle when traveling upon a roadway outside of a business or residence district shall not follow within three hundred feet of another motor truck or motor truck drawing another vehicle. The provisions of this subsection shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by motor trucks.”

      . On his deposition, Brooks said that he was one mile away when he first saw the truck-trailer.

      . Had the judgment been larger, the Appeals Court may have affirmed it.

      . The majority opinion quotes certain parts of the testimony of Larry T. Brooks, driver of the Nova automobile. The principal testimony of Brooks regarding the two trucks coming toward him was that the last time he saw them they appeared to be side by side, and one appeared to be trying to pass the other. In my opinion, this ignored testimony of Brooks clearly authorized that the liability of Kyles be submitted to the jury.

      . Present value of loss of $1,680 per year for 45 years — the life expectancy of Nichols.

      . This amount is present value of payments every 3.5 years of $2,400 for Nichols’ life expectancy.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    Dorothy MABRY v. DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY.
    No. 53808.
    Supreme Court of Mississippi.
    July 7, 1982.

      William S. Lawson, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellee.
   ON MOTION TO DISMISS APPEAL

DAN M. LEE, Justice,

for the Court:

On April 17, 1979, Dorothy Mabry sustained a compensable injury while working for Emerson Electric Company of Tupelo. She filed her claim for workmen’s compensation benefits and the employer offered no witnesses to dispute her claim. By order of the administrative judge entered on December 19, 1980, claimant was awarded $66.12 per week commencing on September 17, 1979, as permanent partial disability, together with all medical expenses and interest. The defendant failed to appeal from this final order of the administrative judge, and on January 19, 1981, claimant applied for a lump sum payment under Section 13j which was authorized on January 26, 1981.

The employer appealed the order of the full commission approving the lump-sum settlement to the Circuit Court of Lee County on April 22,1981, and shortly thereafter, it was assigned to Judge Thomas J. Gardner, III. However, Judge Gardner has not taken the case under advisement for a ruling or set a final due date for the filing of briefs.

Mississippi Code Annotated section 11-1-17 (1972) provides:

All chancellors or judges of the chancery and circuit courts of the state of Mississippi shall render their final decree on any and all matters taken under advisement by such chancellors of judges not later than six (6) months after the date when same are taken under advisement or not later than six (6) months after the date on which the chancellors or courts or judges set as a date for the final brief or memoranda of authority is required to be filed on or as to the cause taken under advisement, whichever is the latest date after the date on which the cause or case is taken under advisement.
In the event a final decree has not been entered within the six months period hereinbefore referred to, then any party to said law suit shall have the right to appeal on the record as otherwise provided the same as if a final decree has been rendered adversely. Said appeal shall be to the supreme court of the state of Mississippi and shall be treated as a preferred case over other cases except election contests.

From our prior decisions it is evident that section 11-1-17 does not apply to the case sub judice. The circuit court judge, as evidenced by his affidavit, has neither taken the case under advisement nor set a final due date for the filing of briefs in the cause. See Guntharp v. Planters Oil Mill, 358 So.2d 397 (Miss.1978). Therefore, an appeal will not lie under section 11-1-17.

However, we feel constrained to note that appellant’s remedy is by writ of mandamus, which may be filed immediately with this Court. If the Court acquires jurisdiction, appropriate action may be taken on appellant’s cause immediately for the circuit court to show cause why no action has been taken.

The circuit court judge's failure to act if without just cause will not be condoned by this Court. A litigant’s right to have his cause prosecuted through the proper channels, without unnecessary delay, is of paramount importance. To unreasonably restrict or delay this right offends the very foundation of our judicial system. In light of the circuit court judge’s affidavit attached to the motion to dismiss which had the effect of further delaying the disposition of this case, some consideration may be given to assigning the appeal from the Workmen’s Compensation Commission to the Circuit Court of Lee County to another judge if the trial judge feels that he cannot give the case immediate consideration.

The motion to dismiss the appeal for lack of jurisdiction is hereby sustained.

APPEAL DISMISSED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE and HAWKINS, JJ., concur.

BOWLING, J., took no part.


text:
    Hosey Bernard JOHNSON v. STATE of Mississippi.
    No. 53485.
    Supreme Court of Mississippi.
    July 7, 1982.

      Mager A. Varnado, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE, and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Harrison County wherein Hosey Bernard Johnson, defendant/appellant, was indicted, tried and convicted for the March 26, 1980, armed robbery of L. H. Case. The jury imposed a life sentence after finding Johnson guilty as charged. We affirm.

On March 26, 1980, around 6:50 p. m., L. H. Case and his wife arrived at the Kim K. Apartment Complex to pick up a friend for church services. Mrs. Case exited the automobile to retrieve their friend while Mr. Case remained inside the vehicle with the engine running, the headlights on and the radio playing. Shortly after Mrs. Case had departed, a young black male approached the Case’s automobile and said something which Mr. Case could not hear. Mr. Case rolled the window partially down, whereupon the young man asked if the apartments were the Kim K. Apartments and then if the street in front of the apartments was Broad Avenue. The assailant then walked behind the vehicle and hollered as if he was relaying the information he had received from Mr. Case to someone. He then appeared at Mr. Case’s window with a pistol demanding his wallet, Mrs. Case’s purse, and the car keys.

The police were summoned to the scene of the crime and after routine investigatory procedures, Mr. Case accompanied officer Pierce to the police station to review various mug shots. Although appellant was pictured in one of the mug books viewed by Mr. Case, no positive identification was made at this time. Subsequently, on May 5, 1980, Mr. Case identified appellant as his assailant from a police lineup. Mr. Case also identified appellant at trial as the person who had robbed him.

Two handibank cards to the Hancock Bank, which had been issued to Mr. and Mrs. Case, were among the items stolen during the course of the robbery. These two cards were used a total of thirty-seven times between 7:17 p. m. on March 26,1980, and 7:55 a. m. on March 27, 1980. Three hundred ninety dollars ($390) was obtained by the use of these cards. The cards were used at the main branch of the Hancock Bank in Gulfport and also at the Long Beach branch office. A camera connected with the handibank computer photographed individuals using the handibank when the card was inserted as well as withdrawn. Numerous pictures depicting appellant were taken by these cameras as he used the handibank during the evening of March 26, 1980, and the early morning hours of March 27, 1980.

Appellant admitted using the cards to obtain money but denied the robbery of Mr. Case. Appellant contended he met Clarence Smith at Jay’s Lounge between 6:30 and 7:00 p. m. on March 26, 1980. Smith presented a gray package to appellant which contained the bank cards of Mr. and Mrs. Case. Smith and appellant then picked up Jessie Reynolds and began their spree with the bank cards. Both Smith and Reynolds testified for the state in rebuttal. Both denied any knowledge of the bank cards and also denied participating in the use of the cards with appellant.

The jury returned a verdict of guilty as charged and imposed a life sentence upon appellant.

I. Did the trial court err in limiting appellant’s cross-examination of Jessie Reynolds?

Appellant contends the trial court erred in limiting his right of cross-examination of state’s witness Jessie Reynolds. Through cross-examination of Reynolds, appellant sought to establish Reynolds’ relationship with Clarence Smith’s sister-in-law in an effort to show bias on his part or collaboration of their testimony, as well as Reynolds’ conversation with his attorney concerning the present case. Following a bench conference, appellant’s attorney apparently abandoned this line of questioning without dictating any sort of proffer of testimony into the record.

Appellant in his brief correctly points out that wide latitude should be allowed in cross-examination of witnesses in criminal cases because it effectively tests the accuracy, truthfulness and credibility of the testimony. However, appellant failed to procedurally preserve the alleged error, if any, in the trial judge’s action in the case at bar.

When objections to appellant’s inquiries concerning state’s witness Jessie Reynolds’ involvement with Clarence Smith’s sister-in-law and his conversation with his attorney were sustained, appellant should have asked that the jury be excluded whereby he could have continued his line of cross-examination in an effort to show bias of the witness or collaboration between Reynolds and Smith and thereby make his record outside the presence of the jury. See Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930). Counsel cannot be expected to know what the response of a witness will be until after the questions are posed. Therefore, a proffer of such evidence by the attorney, as contended by the state, would be worthless. Brown v. State, 88 Miss. 166, 40 So. 737 (1906).

Since appellant failed to continue his line of cross-examination outside the presence of the jury, this Court cannot assume what would have developed from the facts. Therefore, we cannot say the trial judge erred in excluding the testimony of Jessie Reynolds.

II. Did the trial court err in refusing to grant a new trial based on appellant’s motion for a new trial and petition for writ of error coram nobis?

Appellant contends his motion for a new trial should have been sustained when it was brought to the attention of the trial court that appellant was not convicted of strong armed robbery on May 5,1980, as he testified, but rather was arrested for strong armed robbery on May 5, 1980, and pled guilty to a revocation of probation on a prior aggravated assault charge on May 13, 1980.

Appellant testified in his own behalf. On direct examination, in a tactical move, appellant’s counsel elicited from appellant that he had previously been convicted of aggravated assault on October 15,1975, possession of marijuana, paraphernalia and contributing to a minor in 1976, and strong armed robbery on May 5, 1980.

The evidence now complained of was elicited by appellant’s own counsel. Moreover, the testimony came from appellant. Since appellant elicited the testimony, any error therein was invited, and he may not complain on appeal as to the admission of the same. Holifield v. State, 275 So.2d 851 (Miss.1973). Nor did the subsequent discovery of appellant’s previous criminal record constitute newly-discovered evidence.

In Townsel v. State, 228 Miss. 110, 87 So.2d 481 (1956), this Court stated:

An applicant must show that the evidence upon which he relies was in fact newly discovered or unknown to him until after the trial. Hence, “his application will be denied where it appears that he had knowledge or the evidence at the time of the trial; and this is true although he shows that he ... failed to communicate it to his attorney.” 39 Am.Jur., New Trial, Section 159. Evidence is not newly discovered where accused knew of it but did not mention it to his counsel. 23 C.J.S., Criminal Law, Section 1454 b, p. 1230... .

(228 Miss, at 119, 87 So.2d at 484).

Appellant certainly should have known his own previous convictions for criminal activity.

Since appellant injected the matters complained of into the record, he cannot complain of error, if any, as a result of his own mistake or ignorance.

Appellant’s petition for writ of error coram nobis was filed prematurely. Before a petition for a writ of error coram nobis will lie, it is necessary that this Court consider the case on the merits. Murphree v. State, 222 So.2d 694 (Miss.1969).

III. Did the trial court err in refusing to sustain appellant’s objection to the improper final argument of the prosecutor?

Only one objection was interposed during the district attorney’s final argument. The pertinent portion of the record provides:

You know, I’m sick and tired of goin’ to gatherin’s, parties, functions, churches, things like that, and people say, “Well, turned another one loose down there,
huh? Won’t do 'em nothing’_
BY MR. VARNADO: Your Honor, I’m gonna object to that.
BY MR. NECAISE: ...“The Court’s are turnin’ 'em loose.”
BY THE COURT: Just a second.
BY MR. VARNADO: I apologize for interrupting. But I request that the District Attorney keep his comments to the case today, not other cases.
BY THE COURT: Overruled.

Appellant’s failure to object to the remaining portions of the district attorney’s argument which he believes were .improper, constituted a waiver of those points. Wilks v. State, 408 So.2d 68 (Miss.1981).

In Brown v. State, 81 Miss. 143, 33 So. 170 (1902), Brown objected to the following remarks of the district attorney:

“If you are going to do like the juries did last week, turn everybody loose, regardless of evidence, why I might just as well close up shop. If you are going to believe the defendant, this entire court is a farce; he never denied his guilt until he employed counsel.” (81 Miss, at 143-44, 33 So. 170)

Finding the argument improper and in a doubtful case would cause reversal. The court found Brown’s guilt overwhelming. Brown’s conviction was therefore upheld because the Court found the result would clearly and certainly have been the same notwithstanding the error.

The jury in the present case was instructed that arguments, statements and remarks of counsel were not evidence. As stated in Coxwell v. State, 387 So.2d 104 (Miss.1980):

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).
(387 So.2d at 106)

Because appellant’s guilt was overwhelming we believe that the remarks of the district attorney during closing arguments, if improper, were rendered harmless thereby. Therefore, this case should be and is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, and HAWKINS, JJ., concur.

BOWLING, J., took no part.


author: HAWKINS, Justice

text:
    Lum CUMBEST, Petitioner, v. COMMISSIONERS OF ELECTION OF JACKSON COUNTY, Mississippi, Respondent.
    Misc. No. 1297.
    Supreme Court of Mississippi.
    July 7, 1982.
    Liston, Crull & Gibson, William Liston, Winona, Frank J. Hammond, Jr., Moss Point, for petitioner.
    Ready & Pritchard, Robert A. Pritchard, Pascagoula, for respondent.
   HAWKINS, Justice

for the Court:

On December 10, 1981, Lum Cumbest petitioned this Court for a temporary injunction restraining and prohibiting the Election Commissioners of Jackson County from holding a special election on January 5, 1982, or any other special election to fill the office of supervisor of district number one of Jackson County pending his appeal from a conviction of fraud in public office in the circuit court of Jackson County.

The respondents to this petition were the Election Commissioners of Jackson County, in their official capacities, and the State of Mississippi.

A hearing was held on this petition on December 17, 1981, before a panel of three Justices of this Court, following which an order was entered denying the petition.

On December 22, 1981, the petitioner filed a petition for rehearing with supporting brief, alleging as error the Court’s refusal to enjoin the election.

The petition for rehearing has been denied.

The gravity of this case and the legal principles involved warrant an opinion.

On June 23, 1981, Mr. Cumbest and Dale Coleman were indicted by the grand jury of Jackson County for fraud in public office in cause number 11,033. Mr. Cumbest was the duly elected and acting supervisor of district number one, and Mr. Coleman was a county employee of that district. Mr. Cum-best was tried and convicted of this crime while in office in November, 1981.

Following his conviction, the Honorable Arthur B. Clark, acting as special circuit court judge, rendered judgment on November 6, 1981, removing Mr. Cumbest from public office. Following a pre-sentence investigation the circuit court, on December 4, 1981, rendered judgment sentencing both defendants to serve four years in the Mississippi Department of Corrections, with three years suspended. Mr. Cumbest has duly perfected an appeal from this conviction to this Court, which is now pending.

On December 8,1981, the board of supervisors of Jackson County entered an order declaring a vacancy in the office of supervisors’ district number one, and appointed Gavin F. Hamilton to fill the vacancy until a successor was elected in the election designated in said order for January 5, 1982. On December 8, 1981, the board of supervisors, pursuant to Miss.Code Ann. § 23-5-197 (1972), also entered an order, directed to the Election Commissioners, to hold an election on January 5, 1982, to fill the vacancy. Pursuant to this order the Election Commissioners gave public notice of the special election, as required by law.

Following these developments Mr. Cum-best petitioned this Court to advance his appeal on our docket, and for a temporary injunction against the Jackson County Election Commissioners prohibiting the holding of the special election on January 5,1982, or any other election for the remainder of his term pending the appeal of his case. His petition, as set forth in his brief, was based upon two cases of this Court: Jolliff v. State, 210 So.2d 47 (Miss.1968), and Jolliff v. State, 215 So.2d 234 (Miss.1968).

LAW

In Bucklew v. State, 192 So.2d 275 (Miss.1966), Bucklew, mayor of the city of Laurel, was convicted in the circuit court of Jones County for attempting to embezzle city funds. The judgment of conviction fined him, removed him from office, and declared the mayor’s office vacant. The day after the sentence, the governing authorities of Laurel adopted a resolution declaring the office vacant, appointed an interim mayor, and ordered a special election to fill the vacancy.

Bucklew perfected an appeal, and then filed a motion for “remedial relief” asserting that since he had perfected an appeal with supersedeas, the appeal should stay his removal from office pending appeal. He styled the motion, “Motion for Stay of Removal from Office Pending Appeal.”

In overruling this motion, this Court’s opinion first quoted Section 175 of the Mississippi Constitution and the pertinent portions of the Mississippi code section authorizing this removal:

Section 175. All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.
Section 4053 (codified at Miss.Code Ann. § 25-5-1 (Supp.1981)) Removals from office. If any public officers, state, district, county, or municipal, shall be convicted of misconduct or misdemeanor in office, or of any felony . . . the court, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.

The concluding rationale of the opinion merits quoting in full:

The question is whether a pending appeal from Bucklew’s conviction and removal from office, under the Constitution and statute, has the effect of superseding his removal from office. We do not think it does. Constitution section 175, without qualification, provides that “upon conviction,” the public officer “shall be removed from office.” Code section 4053 directs the trial court, in addition to any other prescribed punishment, to “adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.” Here again there is no stated limitation resulting from an appeal.
Movant argues that his removal from office is an inseparable part of the entire judgment rendered by the trial court, and, considering that judgment as an entirety, the removal is suspended. Cited as authority for this proposition is Mississippi Code Annotated section 1175 (1956). However, Constitution section 175 and the statute are self-executing. They do not contain provisions for suspension of the removal pending appeal. The general rule in other jurisdictions is stated in 43 Am.Jur. Public Officers section 200 (1942):
The mere fact that a person who has been convicted may, by means of an appeal, ultimately succeed in establishing his innocence does not necessarily entitle him in the meantime to hold the office.
This is in accord with the overwhelming weight of authority elsewhere. Annot., 71 A.L.R.2d 593, 599-605 (1960). The conviction of appellant caused an immediate vacancy, despite the appeal. Removal of a public officer from office does not constitute part of the judgment of conviction. It is a consequence imposed in the interest of the public and of sound government. It would be against the public interest to retain in office, pending an appeal, one who, upon a verdict of guilty and judgment by the court, is no longer presumed to be innocent. The presumption of innocence disappears with the conviction, even though the officer may ultimately succeed in establishing his innocence. Certainly confidence in an elective official is destroyed when he is convicted of a crime. Public office is a trust, and respect for the law and confidence in public officers must be founded upon their integrity. No doubt these were some of the reasons for the enactment of Constitution section 175 and for the decisions denying supersedeas of a removal order. They are sound. Buck-lew’s motion for remedial relief and for a stay of the removal order is overruled.
Neither the City of Laurel nor the incumbent mayor are parties to this criminal proceeding. Quo Warranto is the proper method for contesting the right to a public office, but, in order to settle this question of public importance, we have dealt with the instant motion on the issue it presented.

192 So.2d at 276.

When Bucklew’s criminal appeal was heard, the judgment of conviction was reversed and the defendant was discharged. Bucklew v. State, 206 So.2d 200 (Miss.1968).

The cases of Jolliff v. State, and Jolliff v. Wilkinson County Board of Election Commissioners, 210 So.2d 47 (Miss.1968) (considered together), compounded the problem of Bucklew.

On September 5, 1967, Jolliff was employed in a cafe in Woodville which sold beer. The sale of beer was legal in that jurisdiction. On that date, two agents of the Alcohol Beverage Control Division of the State Tax Commission entered the cafe for the purpose of checking the beer license and examining the beer stock to determine whether it was Mississippi-taxed. One agent went behind the counter and began to check the beer stored in coolers. As the second agent started behind the counter Jolliff tapped him on the shoulder and asked him if he had a search warrant. Upon being told he had none, Jolliff advised him he could not go behind the counter and would have to leave the cafe.

Thereafter, in the general November, 1967, election Jolliff was elected supervisor of district one of Wilkinson County, and took office in January, 1968. In March, 1968, he was tried and convicted in the circuit court of that county for obstruction of justice, under the provisions of Miss.Code Ann. § 2294 (1942), presently Miss.Code Ann. § 97-9-55 (1972).

The judgment of conviction also removed Jolliff from the office of supervisor. Jolliff perfected an appeal from his conviction to this Court.

After Jolliff’s conviction, the board of supervisors of Wilkinson County appointed an interim supervisor until a special election could be held. The Election Commissioners of Wilkinson County issued notice of a special election to be held May 28, 1968. On April 4, Jolliff submitted a nominating petition to the Election Commissioners to place his name on the ballot in the special election. The Election Commissioners refused to do so, and through a bill of exceptions, Jolliff took an appeal to the circuit court. The circuit court affirmed the decision of the Election Commissioners, and Jolliff thereupon appealed to this Court.

With both his criminal and election contest appeals pending in this Court, Jolliff filed a motion to advance the appeals, to vacate his removal from office, and to stay the election pending the decision on his appeals. 210 So.2d at 47.

This Court refused to stay Jolliff’s removal from office, but did stay the special election pending the outcome of his appeals, stating:

In view of the mandatory terms of the constitution and statute, this Court will not stay a removal from office pending appeal, where the office holder has been convicted of a felony. Miss.Const. § 175 (1890); Miss.Code 1942 Ann. § 4053 (1956); Bucklew v. State, 192 So.2d 275 (Miss.1966). However, an issue in the instant appeals, the right to the office, cannot be kept in status quo, if there should be during the period of appeal a new election for the unexpired term and installation of a successor officer. Cf. Bucklew v. State, 206 So.2d 200 (Miss.1968).
In the instant cases, the Board of Supervisors has appointed an interim supervisor for Beat 1 of Wilkinson County to fill the vacancy created by appellant’s removal from office until an election can be held. If the called election is held on May 28, 1968, to fill the office, the appellate jurisdiction of this Court will be frustrated if the conviction is reversed, or if this Court should decide in No. 45,154 that Jolliff is entitled to be on the ballot for a special election. We do not consider these issues at this time. This Court cannot reach these two cases before the date of the special election called for May 28, 1968, because of other cases of equal importance already on its May docket.
For these reasons, No. 45,154, Jolliff v. Wilkinson County Board of Election Commissioners, and No. 45,155, Jolliff v. State of Mississippi, are hereby advanced and set for hearing in the second week of September 1968.
In aid of the appellate jurisdiction of this Court, and upon Jolliff making a bond in the amount of $1,000, to be approved by the Clerk of this Court, a temporary writ of injunction will be issued to the Wilkinson County Board of Election Commissioners and its individual members restraining and prohibiting them from holding the special election set for May 28, 1968, or any other special election, to fill the office of Supervisor, Beat 1 of Wilkinson County for the remainder of appellant’s term of office, pending the appeals of both of these cases to this Court and until a final judgment is rendered by this Court in both cases. This Court retains jurisdiction of the injunction until final judgments are rendered by this Court in both cases.

210 So.2d at 48.

In this case Mr. Cumbest did not seek to have his name placed on the ballot of the special election, as Jolliff had done. The board of supervisors of Jackson County was required by statute to order the Election Commissioners to hold the election on a date named in the order, and the Election Commissioners were likewise required to give public notice of and hold such election. Miss.Code Ann. § 23-5-197 (1972). The board of supervisors and Election Commissioners were duly fulfilling such responsibility when the petition was filed to stay the election.

The petitioner clearly had no standing to interfere in any manner with this election, even if we were to accept the rationale of Jolliff, supra, and its progeny: Jolliff v. State, 215 So.2d 234 (Miss.1968); Jolliff v. Wilkinson County Board of Election Comm’rs, 215 So.2d 240 (Miss.1968); and Wilkinson County Board of Supervisors v. Jolliff, 230 So.2d 61 (Miss.1969), which we will presently address. In American Book Co. v. Vandiver, 181 Miss. 518, 527, 178 So. 598, 599 (1938), we stated:

A party plaintiff in any action for legal relief must show in himself a present, existent actionable title or interest, and this right must be complete at the time of the institution of the action; an inchoate right is not sufficient

(emphasis added).

Even if we now were to completely adopt all the legal principles asserted by Mr. Cum-best in his petition, the fact remains that his interest in the office of supervisor of district number one of Jackson County at most would be inchoate.

Moreover, we are convinced the Jolliff cases must be overruled on the principle of law that a person removed from office under section 175 of our Constitution and Miss.Code Ann. § 25-5-1 (Supp.1981) has no right whatsoever to such office by virtue of his election thereto. Section 175 states that any public officer, for willful neglect of duty or misdemeanor in office, upon conviction, “. .. shall be removed from office, and otherwise punished as may be prescribed by law.”

Miss.Code Ann. § 25-5-1 (Supp.1981) requires that the circuit court, following conviction of misconduct or misdemeanor in office, or of any felony, “. . . in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.”

In Bucklew v. State, 192 So.2d 275, 276 (1966), we stated:

However, Constitution section 175 and the statute are self-executing. They do not contain provisions for suspension of the removal pending appeal.

Additionally, these statutory and constitutional mandates do not contain any provision for reinstatement in office after removal. When this Court stated in Bucklew that these provisions were self-executing, this could only mean that, by virtue of the Constitution and the statute, once a public officer is convicted of the proscribed offense in a circuit court, such officer’s right to the office is thereby extinguished. This is in accord with the majority of jurisdictions, and supported by valid societal concerns.

In the first Jolliff case, we stated:

In view of the mandatory terms of the constitution and statute, this Court will not stay a removal from office pending appeal, where the office holder has been convicted of a felony. Miss.Const. § 175 (1890); Miss.Code 1942 Ann. § 4053 (1956); Bucklew v. State, 192 So.2d 275 (Miss.1966). However, an issue in the instant appeals, the right to the office, cannot be kept in status quo, if there should be during the period of appeal a new election for the unexpired term and installation of a successor officer, (emphasis added).

210 So.2d at 48.

The opinion was in error in stating that the Mississippi Constitution authorizes the removal from office for conviction of a felony. Section 175 only authorizes removal for misconduct in office. For authority to remove a public official who has been convicted of a felony not connected with his official conduct, it is necessary to resort to the statutory authority.

Unfortunately, the opinion cited no authority to stay the election in the Jolliff case, but presumed the authority of the Court to do so. Had the Court followed the clear import of the rationale and reasoning of Bucklew, it would have held there was no further right to such office by Jolliff pending appeal. His right thereto by virtue of his election terminated with his conviction. There is no constitutional or statutory authority for a resurrection of such right, and this Court has no authority to write one.

In Jolliff v. State, 215 So.2d 234 (Miss. 1968), Jolliff’s two appeals were considered, his conviction was reversed, and he was reinstated in office as of the date of the final judgment of this Court.

The opinion states:

We feel that the judgment in this particular case must be treated as an entirety and that when the judgment of conviction, upon which the removal from office was based, is reversed and the defendant discharged, it follows as a matter of course that the defendant should be restored to his former office.

Id. at 239. Our discomfiture with our opinion was shown in the paragraph following:

Now, we would be confronted with an entirely different situation if a successor had been regularly elected to the office according to law, and we want to make it crystal clear that our ruling is based entirely on the unusual and peculiar facts and posture of this case alone, (emphasis added).

Again, the reasoning of Bucklew was ignored. If the Constitutional and statutory provisions are self-executing, and neither the statute nor the Constitution make any provision for restoration to office, but are completely silent thereon, where is there any power or authority on the part of this Court to write such a provision?

In the case of State ex rel Guthrie v. Chapman, 187 Wash. 327, 60 P.2d 245, 106 A.L.R. 640 (Wash.1936), the identical question was presented. Is a public officer, who has been ousted from office pursuant to statute following his conviction in a trial court, entitled to reinstatement upon reversal of such conviction of appeal? The Washington appellate court answered that, insofar as the public official was concerned, “... the office became extinct,” since the ouster statute was self-executing and no statutory provision for reinstatement existed. Id. at 331, 60 P.2d at 246.

The opinion states two reasons therefor:

The statutes to which we have referred and the construction placed upon them are justified by these considerations: (1) The public interest demands that public affairs be administered by officers upon whom rests no stigma of conviction for infamous crimes; and (2) the proper administration of public business requires a constancy and continuity of service and therefore demands that it shall not be subjected to the hazards of frequent and uncertain changes of officers during a specified term of office.

Id. at 332, 60 P.2d at 246-47.

The Jolliff cases are a classic example of “hard cases make bad law.” The offense for which Jolliff was convicted did not involve any official misconduct, and transpired before his election. Moreover, the facts of the case, even had Jolliff been technically guilty under the statute, at most amounted to a trivial offense.

When a public official is convicted of a crime in office, both our statute and Constitution require that he be removed from public office in addition to whatever punishment he receives. He is, of course, entitled to appeal from his conviction which may ultimately be overturned, as in the cases of Messrs. Bucklew and Jolliff.

Concerning the individual’s right to office following his conviction, two separate entities must be considered: (a) the official, and (b) the people served by his office.

It must readily be conceded the office holder has a valuable right and material interest in his office. He may have gained it only at great personal sacrifice in time and money. He may have served honorably and well for many years. Furthermore, his conviction may be completely overturned on appeal.

The citizenry of this State, however, have the compelling right to be represented by the public official whom they select by ballot and in whom they can repose confidence, unstained by any conviction. The public should not be required to suffer because of his conviction. They are entitled to know that whomever they elect to fill the vacancy created by such removal will keep the office for the entire interim period remaining in the term.

On balance, the rights of the public far outweigh the rights of the public official to this office and its emoluments. A public office belongs to the people it serves.

The deprivation of these rights by a conviction of a crime in office must be considered by all candidates and office holders as one of the hazards of the position, and the possibility that such public official may ultimately pursue a successful cause of action against another for his wrongful prosecution, conviction and removal should not give him any right to the office following conviction.

In short, a public office belongs to the people it serves; consequently, the rights of the public must prevail over that of the office holder. It is in this manner only that quiet, harmonious and orderly government can be insured. Any other course results in a hovering cloud of uncertainty on the processes of government.

We therefore hold that any public officer removed from office following his conviction in a circuit court and pursuant to Section 175 of our Constitution and Miss.Code Ann. § 25-5-1 (Supp.1981), forfeits all of his rights to such office, regardless of what transpires on appeal. His right to such office for the remainder of the term to which he was elected is thereby extinguished, and the Jolliff cases, insofar as they hold to the contrary, are hereby overruled.

PETITION FOR REHEARING DENIED.

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

DAN M. LEE, J., dissents.

      . Ron Bacak, one of the commissioners, was removed as a respondent, having resigned from office and qualified as a candidate in the special election. The State, through the Attorney General, likewise was removed upon representation of the Attorney General that the State was not a proper party, and had no official interest in the outcome of the petition.


text:
    Alex WALLACE v. Georgia Mae WALLACE, Execx. of Estate of Thomas Wallace, Dec’d.
    No. 53255.
    Supreme Court of Mississippi.
    July 7, 1982.
    Lee B. Agnew, Jr., Jackson, for appellant.
    Fred M. Harrell, Jr., Robert R. Rester, Jr., Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Stanley M. McKISSACK, Dec’d., Dependents of v. H. R. MORGAN CONSTRUCTION CO., et al.
    No. 53260.
    Supreme Court of Mississippi.
    July 7, 1982.
    Paul D. Snow, III, Jackson, for appellant.
    McCoy, Wilkins, Noblin & Anderson, James M. Anderson, Daniel, Coker, Horton & Bell, James F. Steel, Tom Suttle, Jackson, for appellees.
    Rehearing Denied July 28, 1982.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEAL.