text:
    Joanne Bork, wife of/and R. Patrick SHARP, III and Rosemary Norris, wife of/and William W. Hall v. Vivian Sells, wife of/and Clements A. BOZZELLE.
    No. 5-130.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    William W. Hall, Hall, Lentini, Moule-doux & Wimberly, Kenner, for plaintiff and appellee, Joanne Bork, wife of/and R. Patrick Sharp, III and Rosemary Norris, wife of/and William W. Hall.
    Martin A. Welp, New Orleans, for defendant and appellant, Vivian Sells, wife of/and Clement A. Bozzelle.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The plaintiffs-appellees filed suit for red-hibition and/or quanti-minoris pursuant to their purchase from defendants-appellants on June 20,1978, of the premises and structure located at 813 Lafayette Street, Gret-na, Louisiana. Some ten months later, the plaintiffs contacted the defendants tendering a return of the property and a restitution of the purchase price plus expenses because of extensive termite damages. The tender was refused and this litigation proceeded. After trial on the merits, the trial court rendered judgment in favor of the plaintiffs in the sum of $1,858.08 plus interest and costs. From this adverse judgment, the defendants appealed.

The only issue before us is whether the termite damage in the premises was discoverable by just a normal inspection of the premises. The trial court determined and concluded from the facts and evidence that neither the buyer nor the seller had ever discovered the termite infestation prior to the sale, even though the premises had been in the defendant’s family since the early 1930’s.

This case turns on an interpretation of Article 2521 of the Civil Code and the jurisprudence that follows.

In Pursell v. Kelly, 244 La. 323, 152 So.2d 36, at 41, (1963), the Louisiana Supreme Court held that the term “inspection” as used in this codal article is not a mere casual observation but “an examination of the article by the vendee with a view of ascertaining its soundness”. As pointed out in Pursell, the proper test is whether a reasonably prudent buyer would have discovered the vice. This is not to require the buyer, however, to examine the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects. Kolwe v. Owens, 357 So.2d 1333 (La.App. 4th Cir.1978).

In the case at bar, from the testimony and evidence, it is obvious that the plaintiffs and their agents did conduct an inspection of the premises prior to agreeing to purchase the property. Their inspection was more than a mere casual observation. Plaintiffs’ renovation contractors did not observe any evidence of extensive termite damage until, while in the process of repairing the building subsequent to the sale, they tore down a section located on the front part of the building. According to plaintiffs’ expert witness, Raymond J. Ullo, in places where the siding had been pulled off by the contractors or the present owners, he was able to see termite damaged sills. However, a prospective buyer is under no obligation to deface the structure while inspecting it. Although this building was in excess of fifty years old, weather beaten with water damage in several locations, the termite damage was not discoverable by simple inspection.

The trial judge, after reviewing the testimony and evidence, was convinced that the defects complained of by the plaintiffs existed at the time of sale; that they were not apparent; and that they were so serious as to warrant a reduction in the purchase price. This court will not disturb reasonable evaluations of credibility and inferences of fact absent, manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). In this case, we find no manifest error in the judgment of the trial court. The record supports the trial judge’s conclusion that the plaintiffs are entitled to a reduction in the purchase price. Quantum is not at issue.

Accordingly, the judgment appealed from is affirmed. All costs of this appeal are to be paid by defendants-appellants.

AFFIRMED.

      . Prior to trial, the plaintiffs sold the property and by stipulation they abandoned their pleas to rescind the sale and proceeded in quanti-mi-noris.

      . L.S.A. C.C. Article 2521: “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”


source: Caselaw Access Project

author: HAWKINS, Justice, for the Court:

license: Public Domain

text:
    James Kiley THAMES v. DAVIS & GOULET INSURANCE, INC.
    No. 53347.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    Rehearing Denied Nov. 10, 1982.
    Watkins & Eager, James L. Carroll, Jamie G. Houston, III, Jackson, for appellant.
    W.'E. Gore, Jr., Jackson, for appellee.
    Before SUGG, HAWKINS and PRATHER, JJ.
   HAWKINS, Justice, for the Court:

James Kiley Thames has appealed an order of the Chancery Court of the First Judicial District of Hinds County overruling his motion to dissolve a temporary injunction of that court previously issued against him, which enjoined him from soliciting any customers or policy holders of the complainant Davis & Goulet Insurance, Inc., listed on Exhibit C to the bill of complaint.

We address on this appeal the propriety of the injunction.

Davis & Goulet Insurance, Inc., is a Mississippi corporation engaged in the insurance business in Jackson as local agent for several casualty insurance companies. Mr. Thames was employed by Davis & Goulet on May 7, 1975, as a salesman and agent of the company under a written contract. We quote the heading and pertinent parts:

CONTRACT OF EMPLOYMENT BETWEEN DAVIS AND GOULET INSURANCE, INC., HEREINAFTER CALLED THE COMPANY
AND
JAMES KILEY THAMES HEREINAFTER REFERRED TO AS THAMES
(1) Company agrees to employ Thames as a solicitor and/or Agent in the business of the Company, and Thames agrees to devote his full time, energy, ability, skill and services to the business of the Company, more particularly to the business of selling and soliciting insurance.
(4) It is understood and agreed that this contract may be terminated at any time by giving (30) thirty days notice by either party to the other, and compensation to the said Thames will cease at the end of the said 30 days, and for this purpose the books of the Company shall be closed at the end of such 30 days.
(5) The said Thames agrees that, in the event this agreement is terminated, he will not solicit, directly or indirectly, business of any customer of the Company, whether said customer be originally obtained by said Thames or others, nor will the said Thames attempt in any way to influence any other agents of the Insurance Companies in any manner operating under or through Company. The said Thames agrees that the names or lists of customers and any other business affairs of Company, are the sole property of the Company and the said Thames agrees ■ that, during the lifetime of this contract, he will disclose nothing apertaining [sic] thereto to any persons, nor in the event of termination of this contract will he hereafter use any information thus acquired for his own use or directly or indirectly divulge same to any parties.

The contract also gave Thames the option, following one year’s employment, to purchase a small number of shares in the corporation.

On August 26, 1980, Thames notified Davis & Goulet that he intended to resign from his employment, and a month later he left the business and began working with another insurance agency.

The bill of complaint was filed February 3, 1981, seeking to enjoin Thames from violating the contract, exhibited to the bill, and for a judgment against him for commissions earned in violation of the contract. The complaint made no allegation of the reasonableness or need for the restraint imposed by the contract, or background or circumstances surrounding its execution. An answer setting forth several defenses, and denying complainant’s right to any relief, was filed along with a general demurrer on February 10.

On that date the chancellor conducted a hearing on whether to issue a temporary injunction, following which an order granting a temporary injunction was issued by the court February 12,. enjoining Thames from soliciting any customers or policy holders listed on Exhibit C to the complaint, upon the filing of an injunction bond payable to Thames in the sum of $5,000.

On March 2, Thames filed a motion to dissolve the temporary injunction, on which a hearing was conducted March 13, and the chancellor by order dated May 1,1981, overruled the motion.

In both hearings before the chancellor, Davis & Goulet offered no proof of its economic need for the post-employment restraint imposed by the contract, or its reasonableness, or any circumstances or background to the execution of the contract supporting such restraint.

Thames, on the other hand, testified that Davis & Goulet gave him no training in the insurance business, and that he was fully trained when he was employed by the firm. He testified that the only customers he was interested in soliciting were friends and relatives of his who he had put on the books, and except for their personal relation to him, would not be customers of Davis & Goulet. He also testified that a considerable financial hardship would be imposed on him if he was prohibited from soliciting these parties as customers.

After the rendition of the order overruling the motion to dissolve the temporary injunction, Thames petitioned for an interlocutory appeal, which was denied by the chancellor May 20. This Court granted an interlocutory appeal June 17.

The assignments of error we address are the finding by the chancellor that the contract was enforceable and the injunction was proper.

LAW

The chancellor imposed a limited restraint upon Thames in the injunction. In this case we do not reach the enforceability of this restraint imposed by contract, whether it was reasonable or not, because procedurally Davis & Goulet failed to meet the burden of proof imposed upon it in seeking to enforce the contract.

This Court has examined several contracts imposing post-employment restraints upon competition. See Texas Road Boring Company of Louisiana-Mississippi v, Parker, 194 So.2d 885 (Miss.1967); Landry v. Moody Grishman Agency, Inc., 254 Miss. 363, 181 So.2d 134 (1965); Redd Pest Control Company, Inc. v. Heatherly, 248 Miss. 34, 157 So.2d 133 (1963); Bagwell v. H.B. Wellborn & Company, 247 Miss. 564, 156 So.2d 739 (1963); Frierson v. Sheppard Building Supply Co., Inc., 247 Miss. 157, 154 So.2d 151 (1963); Donahoe v. Tatum, 242 Miss. 253, 134 So.2d 442 (1961); and Wilson v. Gamble, 180 Miss. 499, 177 So. 363 (1937).

In Donahoe v. Tatum, supra, we stated:

It is the law’s function to maintain a reasonable balance in this area. This requires us to recognize that there is such a thing as unfair competition by an ex-employee as well as by unreasonable oppression by an employer. The circumstances in each case will be carefully scrutinized to determine whether it falls within or without the boundary of enforceability. Id. 242 Miss, at 261, 134 So.2d at 445 (citations omitted).

In Texas Road Boring Company of Louisiana-Mississippi v. Parker, supra, we stated:

Non-competition agreements are not favored in law and in considering them, courts recognize there are three major aspects to be looked to: the rights of the employer, the rights of the employee, and the rights of the public. . . .
* * * * * *
The recurrent theme of these cases is that restrictive covenants are not favored in law; the employer has the burden of proving their reasonableness; and the reasonableness as to time and space limitations must be determined from the facts of each case.

Id. at 888-89 (emphasis added).

One of the landmark cases on this subject is Arthur Murray Dance Studios of Cleveland v. Witter, 62 Ohio L.Abs. 17, 105 N.E.2d 685 (1952). This case, quoted in numerous cases throughout the United States and in law journal articles, details and amplifies somewhat the general statements in our Mississippi eases of the procedural obligation of an employer who seeks to enforce such a contract:

In this type of case, heavy procedural burdens impede the plaintiff employer. Because the restraint sought to be imposed is one which restricts the exercise of a gainful occupation, it is a restraint in trade.... It is cautiously considered, carefully scrutinized, looked upon with disfavor, strictly interpreted and reluctantly upheld .... Being a contract in restraint of trade it is presumptively void. The employer shoulders the burden of proving the restraint reasonable and the contract valid. . . . Even where the restraint is partial, the rule is not that it is good, but that it may be good.... The fact that an employer has a written agreement that the employee will not, on leaving his employment, compete with his employer, that the employee breaks that agreement, that the employee quits his employer, that the employee starts working for a rival, and that the rival thereby becomes a more efficient competitor, — all this, without more, does not automatically entitle the employer to an injunction .... Since this is an equitable action, the employer must establish the standard requirements for equitable intervention .... 105 N.E.2d at 693-94 (citations omitted) (emphasis added).

See also Richardson v. Paxton Company, 203 Va. 790, 795, 127 S.E.2d 113, 117 (1962); 43A C.J.S. Injunctions § 210 (1978), at 442-43, 447-48, and cases cited.

As above noted, this Court is committed to the general rule requiring the ex-employer in a case such as this to demonstrate to the trial court the economic justification, the reasonableness of the restraint which is sought to be imposed. Davis & Goulet did not plead in its complaint any special reason or necessity why the contract should be enforced. Furthermore, at both hearings it offered no proof whatever as to the reasonableness, necessity or purpose of the contractual prohibition. It simply offered the contract and proof as to alleged violations. This without more did not afford sufficient ground for injunctive relief under the general rule in cases of this nature.

We do not reach these factors in this case, however, because no proof of reasonableness or necessity was offered by Davis & Goulet.

While he may not have been required to do so in the posture of the case at the hearing, it is also to be noted that Thames offered proof as to why post-employment restraint should not have been imposed upon him.

We must therefore hold that the chancellor was in error in issuing the temporary injunction.

REVERSED AND RENDERED.

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

      . In the cases cited from this Court, we have listed many of the circumstances a chancellor may consider in determining whether a post-employment restraint is reasonable and enforceable. See also Arthur Murray Dance Studios, supra, for detailed analysis of such factors. Two leading law journal articles are: Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625 (1960); and Grody, Partial Enforcement of Post-Employment Restrictive Covenants, 15 Colum.J.L. & Soc.Probs. 181 (1979).


text:
    Gladys M. HOLLIS, Mother of George Kenneth Fuqua, Dec’d v. PEARL STEEL ERECTORS, INC. and U.S.F. & G. Co.
    No. 53370.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Rehearing Denied Nov. 10, 1982.
    Cothren & Pittman, Karen H. Spencer, Jackson, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, James F. Mixson, P.O. Gibson, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Claiborne County; John W. Prewitt, Sr., Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    MANDERSON-PICKLE, INC., et al. v. Shirley BONAS, Admrx. of Estate of Stephen C. Bonas, Dec’d.
    No. 53552.
    Supreme Court of Mississippi.
    Sept. 15, 1982.
    Rehearing Denied Nov. 20, 1982.
    Heidelberg, Woodliff & Franks, Sam E. Scott, Keith R. Raulston, Jackson, for appellants.
    Robert W. Graves, R. Conner McAllister, Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


author: SUGG, Presiding Justice,

text:
    Gene JACKSON v. STATE of Mississippi.
    No. 53524.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Rehearing Denied Nov. 10, 1982.
    Darden, Sumners, Carter & Trout, Thomas R. Trout, New Albany, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and HAWKINS and DAN M. LEE, JJ.
   SUGG, Presiding Justice,

for the Court:

On August 24, 1980, in an area around the Enterprise community of Union County a lumber shed and a farm truck were burned and there were attempts to burn an uninhabited residence and a store resulting in damage in excess of $150,000. Four indictments were returned against appellant; one for second degree arson, one for third degree arson, and two for fourth degree arson as defined by section 97-17-5, 7, 9 Mississippi Code Annotated (1972). The cases were consolidated for trial, appellant was convicted on each charge, and was sentenced to serve a maximum statutory penalty on each charge. The judgments provided for sentences to run consecutively with five (5) years suspended, leaving twelve (12) years to serve less credit for the three hundred ten (310) days appellant spent in jail before trial.

A co-indictee, Gene Howard, pled guilty before appellant’s trial. Howard testified that, on the day of the fires, he and appellant went “riding around” in the appellant’s car with the avowed purpose being of staying “away from the law” as they con-summed a large quantity of beer. Both men were subsequently arrested for public drunkenness after their car went off the road into a ditch less than one mile from the scene of the fires. Testimony of the arresting officers was that both men were extremely drunk, smelled of gasoline and smoke, and appellant had black smudges on his arms. It is noteworthy at this point that gasoline was used in starting one of the fires.

Neither man was questioned that night due to their intoxication, but the following day Howard gave a voluntary statement to a deputy sheriff implicating the appellant and himself which led to the discovery of the burned truck.

Appellant first complains that the two indictments charging him with fourth degree arson are void for their failure to allege an overt act toward the commission of the crime with which he was charged. The charging part of the indictments are set forth below.

5541-b ... did then and there willfully, maliciously, unlawfully and feloniously attempted to burn a building, to-wit: a store building belonging to J.C. Wooten. 5544r-b . . . did then and there willfully, maliciously, unlawfully and feloniously attempted to burn a dwelling, to-wit: a dwelling house owned by James Hillis.

The appellant was charged under section 97-17-9, which provides:

(1) Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of arson in the fourth degree and upon conviction thereof be sentenced to the penitentiary for not less than one nor more than two years or fined not to exceed one thousand dollars.
(2) The placing or distributing of any flammable, explosive or combustible material or substance, or any device in any building or property mentioned in the foregoing sections in an arrangement or preparation with intent to eventually, willfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of same shall, for the purposes of this section constitute an attempt to burn such building or property.

This assignment of error presents the question of whether an indictment in the language of the statute is sufficient or whether it is necessary to allege an overt act. In Jesse v. State, 28 Miss. 100 (1854) an indictment which charged an offense in the language of the statute was quashed because the indictment did not contain averments that the act of burning a barn was done maliciously. The Court held that whether an indictment in the language of the statute is sufficient, or whether other words or acts are necessary to properly charge the commission of a crime, depends on the nature of the offense and the terms in which it is described in the statute. If the offense is fully and clearly defined in the statute, an indictment in the language of the statute is sufficient; otherwise, the indictment should charge the offense by the use of additional words that clearly set forth every element necessary to constitute the crime. The Court stated:

While this is true as a general rule, we apprehend that it only applies where the description of the offense in the statute, taking into consideration its nature and the natural and legal import of the terms used in designating it, is such as to convey a certain, clear, and full idea of the offense intended to be created, and to embrace every ingredient necessary to constitute it, though the words employed be not the same as would be required in indictments for similar offenses at common law. In such a case, no prejudice can be done to the accused by following the words of the statute. But if the words used in the statute do not, in view of the nature of the offense and the recognized principles of law, describe the offense so as to convey to the mind a full and clear idea of everything necessary to constitute the crime, in such case, the full measure of the offense must be charged, by the use of such words as are necessary and proper, under established rules of law, to characterize it. The difference is simply that between offenses which are fully and clearly defined in the statute, and such as are described generally. In the former, the description contained in the statute is sufficient; in the latter, the offense must be charged agreeably to the rules of the common law. It depends upon the nature of the offense and the terms in which it is described in the statute, whether the one or the other of these rules will apply to the particular case. Wharton’s Crim.Law, 132, and cases there cited. (28 Miss, at 109-110)

In Sullivan v. State, 67 Miss. 346, 7 So. 275 (1889) the Court held:

In indictments’ for purely statutory offenses it is sometimes sufficient to charge the offense by using only the words of the statute. This may be done where the language of the statute is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to any other acts than those made unlawful. . ..
But where the act prohibited does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the statute, it is not sufficient to indict by the use only of the statutory words; under such circumstances, the indictment must charge in apt language the unlawful act, that the defendant may be advised of the nature and character of the offense with which he is charged, and that he may by demurrer take the opinion of the court whether the facts charged constitute an offense. (67 Miss, at 350, 7 So. at 275-276)

In numerous cases we have held that an indictment is sufficient to charge an offense by using only the words of the statute. Norwood v. State, 258 So.2d 756 (Miss.1972); State v. Labella, 232 So.2d 354 (Miss.1970); Love v. State, 211 Miss. 606, 52 So.2d 470 (1951); State v. Needham, 182 Miss. 663, 180 So. 786 (1938); State v. Coltharp, 176 Miss. 883, 170 So. 285 (1936); State v. Snowden, 164 Miss. 613, 145 So. 622 (1933); State v. Southern Ry. Co., 112 Miss. 23, 72 So. 837 (1916).

However, this Court has never addressed the question of the sufficiency of an indictment charging fourth degree arson under section 97-17-9 when the offense is charged only in the words of the statute. The rules announced in Jesse, supra, and Sullivan, supra, require an examination of the statute to determine if the language of the statute is specific enough to give notice of the act made unlawful, and exclusive enough to prevent its application to any other acts or than those made unlawful.

The statute provides that a person is guilty of arson in the fourth degree for willfully and maliciously committing any one of four acts which are stated disjunc-tively as follows:

Any person who willfully and maliciously
(1) attempts to set fire to, or
(2) attempts to burn, or
(3) to aid, counsel or procure the burning of any buildings mentioned in the foregoing sections, or
(4) who commits any act preliminary thereto or in furtherance thereof.. .

The two indictments under attack charge that appellant willfully, maliciously, unlawfully and feloniously attempted to burn a store building, a dwelling house, and named the owner of each. The statute clearly makes an attempt to burn the structures described in the indictments a violation of the law if done willfully and maliciously. The indictments were in the language of the statute and plainly and fully informed appellant of the nature and the causes of the charges against him.

Appellant argues that it was necessary to charge an overt act toward commission of the crime with which he was charged. He relies on Maxie v. State, 330 So.2d 277 (Miss.1976); Stapleton v. State, 130 Miss. 737, 95 So. 86 (1923); Miller v. State, 130 Miss. 730, 95 So. 83 (1923); State v. Wade, 102 Miss. 711, 59 So. 880 (1912). These cases dealt with indictments under the general attempt statute, section 97-1-7 Mississippi Code Annotated (1972). These cases have no application because the fourth degree arson statute is specific in describing the acts made unlawful, and exclusive enough to prevent their application to lawful acts.

We hold the indictments were sufficient to charge appellant with the crime of fourth degree arson.

There is no merit to appellant’s contention that there was error in the following instruction:

INSTRUCTION NUMBER S-3
The Court instructs the Jury that if two or more persons are engaged in the commission of a felony, then the acts of each in the commission of such felony are binding upon all, and all are equally responsible for the acts of each in the commission of such felony.

Appellant asserts there was no evidence before the jury to justify the instruction because the indictee recanted his culpability, notwithstanding his earlier plea of guilty. This recantation on the stand does not dimmish the fact in evidence that Howard pled guilty and made a voluntary statement implicating himself. The recantation at best, only affected the weight to be afforded his testimony. When an instruction correctly states the law, as this one did, and there is evidence to justify it, granting the instruction is not error. Foley v. State, 348 So.2d 1034 (Miss.1977).

We also find no merit in appellant’s contention that the testimony of accomplice Howard was insufficient to support the verdict. This Court has consistently applied the common law rule that a conviction may rest solely upon the uncorroborated testimony of an accomplice where it is not so self-contradictory, unreasonable, inconsistent or impeached as to be inherently unbelievable. E.g., Greene v. State, 406 So.2d 805 (Miss.1981); Catchings v. State, 394 So.2d 869 (Miss.1981); Wall v. State, 379 So.2d 529 (Miss.1980); Culberson v. State, 379 So.2d 499 (Miss.1979). Moreover, where the record contains even slight corroborating evidence, we have held the testimony sufficient to sustain the verdict. See Jones v. State, 381 So.2d 983 (Miss.1981) cert. denied, 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300; Lifer v. State, 189 Miss. 754, 199 So. 107 (1940). Contrary to appellant’s assertion, Howard’s testimony was not uncorroborated. There was testimony that placed the appellant’s car at the scene of one of the fires and there was also testimony that the appellant smelled of gas and smoke and had black smudges on his arm. In sum, we feel that it was for the jury to accept or reject the testimony, especially since the jury was instructed that the testimony of an admitted accomplice should be weighed with great care and caution. The jury had the duty to determine the impeachment value of the inconsistencies or contradictions as well as any testimonial defects. See Jones, 381 So.2d at 989.

Appellant’s final contention is that this case must be reversed because the trial judge restricted his right to cross examine the witness Gene Howard on two material points. Initially, it is his theory that he was denied the opportunity to pursue a line of questions in reference to Howard’s plea of guilty. This issue arises in part from the following proceedings at trial:

Q. Did ... Do you remember coming before the Court on each one of these cases and signing a form, a plea of guilty, which said in each case that I fully understand I am charged in this cause with the commission of the crime of arson, and that I am pleading guilty to same.
MR. COLEMAN: Your Honor, if it please the Court, we object to this. This is something, obviously, to confuse the Jury, and I will state a plea of guilty to accessory before the fact is the same as a plea of guilty, and this can serve no purpose other than just to confuse or prejudice the minds of the Jury.
THE COURT: I’m going to have to sustain it the objection now. He’s admitted pleading guilty to the charges, and that’s all he’s required to do.
Now if you want to go into any promises, anything, break it down that way, you have a perfect right to do so.
MR. TROUT: Your Honor, I think that I’m entitled to go into motivation of the witness for the Jury’s understanding of how likely it is that this witness is telling the truth today.
In order to do that, I’m entitled, then, to find out why it was that he pleaded guilty . . .
THE COURT: Mr. Trout, it’s simply a matter for the Court and the Judge that took the plea. It has nothing to do with this case.
Now if you want to impeach him in other things, that is not an impeachable thing. It is merely a question of law, so proceed with your other things.

In denying a motion for a mistrial lodged after he sustained the objection, the trial judge again advised appellant’s counsel that:

If you have prior contradictory statements, you can show them, or if you have any matters that were promises or anything of this nature, or threats, or anything else made to him to induce this plea, you’ve got a right to ask him about
that, but as to trying to bring conclusions of law and instruct the Jury through questioning the witness is highly improper, and the Court still rules that you cannot do that, and you will not do it.

Simply stated, the judge’s ruling at trial did not amount to a restriction of the appellant’s right of cross-examination. The rulings allowed the appellant’s counsel to explore any possible correlation between Howard’s guilty plea and his testimony at trial. The record reflects that counsel examined Howard at length in an attempt to show that he pled guilty with the understanding that he would testify against the appellant and that he was induced to so plea because of promises made in regard to his sentence. The witness was allowed to answer these questions; therefore, we fail to see any restriction.

The second alleged limitation arises from the following proceedings at trial:

Q. Isn’t it a fact that the Court had the right ... has the right to review your sentence a hundred and eighty days after the date that you entered it?
MR. COLEMAN: Your Honor, we object to that. Certainly, that’s improper.
THE COURT: All right. Sustained.
MR. COLEMAN: Ask that the Jury be admonished . . .
THE COURT: Ladies and gentlemen of the Jury, disregard it.
MR. TROUT: Your Honor, I want to completely understand the Court’s ruling.
I understand that I cannot ask him about the hundred and eighty day period of review.
THE COURT: Yes. I just got through telling you. You can ask him if anybody promised him that to induce his plea.
MR. TROUT: No, sir. That’s not the question I want to go into. I want to go into the fact that it exist and .. .
THE COURT: Well, ask him if he’s testifying because of the hundred and eighty days, if it was promised to him. Go ahead and ask him that.

After the statement by the court, appellant did not cross-examine in an effort to show that the right of review of his sentence induced Howard to plead guilty and testify for the state, but appellant now complains that he was curtailed in his effort to show the effects this right of review may have had on Howard’s willingness to testify-

On review of the entire record, we are not convinced that appellant was restricted in his cross-examination. The jury was made aware of Howard’s status as an accomplice and the right of the court to review his sentence. Furthermore, as stated earlier, the jury was instructed to receive Howard’s testimony with care and caution.

Finding no reversible error, we affirm.

AFFIRMED.

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

      . This case arose from the famous prize fight between John L. Sullivan and Jake Kilrain in Marion County.


text:
    Laverne Y. BOOTH, et al. v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.
    No. 53722.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Rehearing Denied Nov. 10, 1982.
    Banks & Nichols, Fred L. Banks, Jr., Coolidge C. Anderson, Jr., Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Richard W. Dortch, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before SUGG, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


author: PRATHER, Justice,

text:
    William Earl BAYSE v. STATE of Mississippi.
    No. 53748.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Nov. 10, 1982.

      Travis Buckley, Dan C. Taylor, Ellisville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

William Earl Bayse was convicted for the crime of manslaughter by culpable negligence in the Circuit Court of Marion County. As a result, he was sentenced to a fifteen-year term at the Mississippi Department of Corrections. The incident which led to Bayse’s conviction occurred when an automobile driven by the appellant collided with two teenagers riding on a bicycle. One of the teenagers was fatally injured upon impact.

The appellant assigns as error:

(1) That the lower court committed error in admitting evidence gained as a result of an alleged unlawful arrest; and

(2) That the lower court committed error in admitting prejudicial hearsay statements made by defendant’s wife; and

(3) That the lower court committed error in admitting the testimony of Dr. Arthur Hume, Director of the Mississippi Crime Laboratory, since his testimony was allegedly not based, on personal observation; and ■

(4) That the lower court committed error in granting and refusing various instructions, including a request for a directed verdict.

STATEMENT OF THE FACTS

On October 13, 1980, at approximately 7:00 p.m., Mason Ford and Benard Smith, two ninth grade children who lived near Columbia, Mississippi, were riding one bicycle, with Mason peddling and Benard riding on the handlebars. They were traveling south on the east side of Highway 13, facing oncoming traffic. Two of their friends were off of the west side of Highway 13, on separate bicycles. Three cars were also traveling south on Highway 13 on the occasion in question, and the third car, driven by the defendant, William Earl Bayse, pulled out into the east lane to attempt to pass the second car. In doing so, Bayse hit Ford and Smith on their bicycle. The testimony conflicted as to whether the bicycle was on or off the paved portion of the highway when struck from the rear. Bayse pulled back into the west lane of traffic without passing the second automobile and traveled approximately 1,320 feet down the highway before stopping to remove the bicycle from the front portion of his car. Without returning to the scene of the accident, Bayse drove home and parked his car in the woods.

The deputy sheriff who investigated the accident obtained car identification information which led him to Bayse’s residence, where he first talked to Bayse’s wife. Mrs. Bayse told the officer of her husband’s recent arrival at home in a drunken condition and of his telling her that he hit something with his car. She also observed that the car windshield had been broken. The deputy sheriff told Mrs. Bayse that he needed to talk with her husband, and she responded by calling her husband to the door. The deputy testified that the defendant “came out ready to go,” for “he knew the reason I was there.” Further, the officer stated that Bayse’s speech was slurred, the smell of alcohol strong, and his walk sluggish. In the officer’s opinion Bayse was intoxicated. The officer then asked the defendant, without coercion, during this investigatory period, where his car was and if he had hit somebody. The defendant, upon stating that he had hit somebody, was then placed under arrest by the officer for leaving the scene of an accident, and his Miranda rights were read to him. No further interrogation was conducted by this officer, but, the officer did ask the defendant if he would consent to a breath alcohol test, which the defendant refused. However, the defendant did consent to a blood test which indicated that the defendant was heavily intoxicated at the time of the collision. After the death of Mason Ford, the defendant was charged with manslaughter by culpable negligence.

I.

The first error assigned involves the admission into evidence of the defendant’s confession to the deputy sheriff and of the results of the blood alcohol test. Bayse contended that this evidence was the result of an unlawful arrest since he was arrested without warrant for a misdemeanor. Admittedly, if the arrest is unlawful, then the evidence gained as a result must be suppressed. Canning v. State, 226 So.2d 747 (Miss.1969); Smith v. State, 228 Miss. 476, 87 So.2d 917 (1956); Lewis v. State, 198 Miss. 767, 23 So.2d 401 (1945). Further, section 99-3-7 of the Mississippi Code Annotated (1972) limits the circumstances under which a law enforcement officer may arrest a defendant on a misdemeanor charge without warrant, and the statute provides that such an arrest is legal only when the officer knows that a warrant is in fact outstanding for the defendant, or when the misdemeanor is committed in the officer’s presence. See Butler v. State, 212 So.2d 573 (Miss.1968) (officer cannot arrest individual for misdemeanor not committed in presence except with warrant); Shedd v. State, 203 Miss. 544, 33 So.2d 816 (1948) (arrest without warrant must be justified on ground provided by statute).

With regard to the confession, it is the Court’s opinion that the confession occurred prior to the arrest. “An arrest is not consummated until there has been a taking of possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest.” Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). In the instant case, Officer McCain testified that he did not place Bayse under arrest until he had heard the confession. The defendant offered no evidence to the contrary. Indeed, Officer McCain testified that he had no intention of arresting Bayse at the time he arrived at Bayse’s residence. Under these circumstances, it is apparent that the confession occurred prior to the arrest, whether termed lawful or unlawful, and evidence of the confession was properly admitted.

We also conclude that the arrest was lawful and that testimony concerning the blood test results was properly admitted. This conclusion is reached because Officer McCain personally observed the injured bodies at the scene of the accident, he gained information from various witnesses that Bayse’s car was involved in the incident, and he heard the confession of the defendant that he was involved in the collision. In Myers v. State, 158 Miss. 554, 130 So. 741 (1930) our Court determined that:

One of the safest tests ... of when a misdemeanor is committed in the presence of an officer, is whether the officer as a witness could at the time of the arrest of his own knowledge testify to sufficient facts as having happened in his presence to make out a case for conviction, if his evidence were undisputed; and, of course, an admission made to him or in his hearing is sufficient to supply knowledge of those facts competent to be covered by an admission. But no admission or confession can wholly supply the corpus delicti; that is to say, there must presently exist, independently of the confession, the essential facts which constitute the corpus delicti. (Emphasis added). [158 Miss., at 556, 130 So. at 741],

Thus, where an officer obtains sufficient facts to establish the corpus delicti of a crime, and he additionally obtains a confession, the “presence” requirement of section 99-3-7 has been met and the officer may arrest the individual for a misdemeanor crime. This same rationale was recently employed by our Court in Gregg v. State, 374 So.2d 1301 (Miss.1979), wherein we stated:

In the present case there can be no question but that the arrest of the defendant Gregg was a lawful arrest. This is true because when Officer Edmonds first observed Gregg, he was “propped up” against a vehicle on the side of the road; spoke with a thick tongue and had trouble standing; smelled of alcohol; and in Edmonds’ opinion was intoxicated. It was under those circumstances that Gregg told Edmonds that he was driving the vehicle which Edmonds observed in the ditch. Upon such facts, the arrest of Gregg was legal. [374 So.2d at 1303].

Since Officer McCain observed the injured bodies at the scene of a vehicular accident moments after it had occurred, and since the driver was not present, McCain had sufficient facts to constitute the corpus de-licti of “leaving the scene of an accident.” We therefore find no error in this assignment.

II.

On the trial of this cause Officer McCain was permitted, over objection, to repeat all of the statements made by the defendant’s wife to him and outside the defendant’s presence. Objection was made to this testimony on the ground that it was hearsay testimony and that it violated the confidential communication privilege between husband and wife. Section 13-1-5 of. the Mississippi Code Annotated (Supp. 1981) is the applicable statute in this matter insofar as the privilege assertion is concerned and its pertinent parts .provide:

. . . Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or non-support of children under the age of sixteen years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both. (Emphasis added).

This statute has been construed as prohibiting the prosecution from calling the defendant’s wife to testify against her husband. Wallace v. State, 254 Miss. 944, 183 So.2d 525 (1966); Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949). Further, this prohibition extends to introduction of out-of-court statements made by the spouse. Ford v. State, 218 So.2d 731 (Miss.1969); Caldwell v. State, 194 So.2d 878 (Miss.1967). See also McCormick’s Handbook of the Law of Evidence 168 (2d ed. 1972) (just as spouse cannot betray confidence by testifying in court, he or she may not destroy the privilege by out-of-court statements either). Clearly, in the case sub judice, the statements of the wife to the officer and repeated by him before the jury were inadmissible both on the ground of this privilege as well as on hearsay. The admission of this evidence constituted error.

III.

The defendant’s contention that Dr. Hume should not have been permitted to testify as to the results of the blood alcohol test since he did not actually perform the test himself is without merit. His personal supervision of the procedures in the analysis of this blood as shown by this record is more than sufficient to have received the testimony. The court finds no error in this contention.

IV.

There were other errors assigned relating to the instructions of the court. The Court finds that some of these instructions could have been worded with more clarity and succinctness for the jury, but we find no substantial error in their use. Since, however, this case will have to be reversed and remanded for a new trial on the basis of the prejudicial error heretofore discussed in Part II above, the Court suggests the use of a clearer instruction in the retrial of the case.

The appellant also contended that he should have been granted a directed verdict of not guilty. In passing upon a motion for a directed verdict, all evidence introduced by the state is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled. Wilks v. State, 408 So.2d 68 (Miss.1981); Taylor v. State, 398 So.2d 1341 (Miss.1981). In the instant case, for purposes of analyzing the appellant’s request for a directed verdict, the witnesses’ testimony that the boys were riding three feet away from the road must be accepted as true. Further, Bayse’s driving while heavily intoxicated and his failure to aid the victims arguably indicated a wanton disregard of life. Under these circumstances, a directed verdict of not guilty would not be proper.

In conclusion, because of the admission of prejudicial hearsay statements made by the defendant’s wife over objection of the defendant, this Court finds that the cause must be reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

BROOM, J., takes no part.

      . The Court also notes that pursuant to section 99 -3- 7 an officer may arrest an individual when a felony has been committed, and the officer has reasonable ground to believe that the individual arrested committed the felony. Under the facts of this case, the deputy sheriff had sufficient grounds to arrest Bayse for the felony crime of aggravated assault under section 97-3-7 of the Mississippi Code Annotated (Supp.1981).


author: PATTERSON, Chief Justice,

text:
    Jerry Lynn YOUNG v. STATE of Mississippi.
    No. 53586.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Nov. 10, 1982.
    Gene Barton, David O. Butts, Jr., Tupelo, for appellant.

      Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Jerry Lynn Young was convicted of armed robbery and sentenced to thirty years in the Mississippi Department of Corrections by the Circuit Court of Lee County. He appeals from this conviction and sentence.

On the afternoon of March 17, 1980, the Presley Heights Branch of the Bank of Mississippi in Tupelo was robbed by a masked man carrying a sawed-off shotgun. The robbery lasted about two minutes following which the gunman fled in a blue and white-automobile just as Police Officer Williams arrived. Williams as well as two of the three bank employees present were unable to identify the robber, however, the remaining employee, Mrs. Hoard, testified the holes in the mask permitted a view of the robber’s glasses, eyes, nose, mouth, the side of his face and the color of his hair, and from this she identified Young in court as the robber. On cross-examination she stated that she had first identified Young when shown several photographs by Officer Cri-der which included one of Young. An objection and motion for a mistrial were interposed to the identification testimony and argument made that the in-court identification was improper because it was upon a photograph shown the witness prior to the in-court identification. The court overruled the objection and motion reasoning it to be within the jury’s purview to determine what weight to give the testimony.

Troy Harrison, his wife Shirley, and Jimmy Dorman, also charged as principals, testified for the state. Each, expected leniency for testifying but had no promise for such.

Dorman testified that on March 14, 1980, Young discussed the robbery with him and the next day, advised that he had bought two shotguns from The Trading Post in Mooreville and was going to rob a bank. Harrison testified that he and Dorman at Young’s request assisted in sawing off the barrels of the guns and identified the weapons exhibited as the ones they altered.

The Harrisons testified a.few days before the robbery, at Young’s suggestion, they went to Lee Motors under the pretense of purchasing a car and had an extra key made to a blue and white car while trying it out. Dorman and Harrison testified on March 16, 1980, Young stole the car and parked it in his garage.

Shirley Harrison testified that on the day of the crime she heard Young ask her husband and Dorman to help rob the bank and saw Young leave shortly before the robbery in the blue and white ear, carrying a shotgun, and wearing gloves and a coat. Shirley stated she and her husband then drove to Reid’s Parking Lot, where Young had directed them to park and were joined by Dorman who told them Young was about to rob the bank and departed. Thereafter, about 8:00 p.m., Young arrived in the blue and white car, hurriedly got into the Harri-sons’ car with a gun and a money bag, stating how easy the robbery was and to “get the hell out of there.” They drove Young to his house and continued to their home followed by Young. There the money was counted and divided before Young returned home with his portion. Dorman testified that Young called him to his house and gave him $500, which he later destroyed.

Later that night Young talked with Harrison by phone and told him to get rid of the money because the police had been to his house. Harrison was later arrested and the next morning his wife directed the police to the guns and money which she and her husband had buried. These items were exhibited at trial along with a cap, windbreaker, and green laundry bag.

B.H. Cason, the owner of The Trading Post, verified the sale of the shotguns and identified Young as the purchaser. He also identified the guns exhibited to him in court as those which he sold to Young.

Young did not testify but presented three witnesses who attested his hair color was presently the same as in March, 1980, although each conceded they did not see Young the day of the robbery. One of the witnesses was appellant’s brother, Larry Young, who remained in the courtroom during the trial although “the rule” had been invoked. Over objection, the court permitted him to testify but instructed the jury they might consider his presence in the courtroom in determining what weight to give his testimony.

The appellant first contends the verdict was against the credible weight of the evidence. He argues the state failed to prove guilt beyond a reasonable doubt because the testimony of the accomplices must be viewed with great caution and suspicion and where uncorroborated, must not be unreasonable, improbable, self-contradictory or substantially impeached, citing Jones v. State, 368 So.2d 1265 (Miss.1979).

We are of the opinion the accomplice’s testimony was corroborated in that Mrs. Hoard identified Young as the man who robbed the bank, Cason identified Young as the purchaser of the shotguns found buried with the money, and the accomplice’s testimony of Young’s disguise as well as the automobile he fled in was corroborated by Williams and the bank employees.

In reviewing the accomplice’s testimony we find minor discrepancies, not unusual for any witness, but do not think the testimony unreasonable, improbable, self-eontra-dictory or substantially impeached as urged by appellant. We held in Maddox v. State, 230 Miss. 529, 533, 93 So.2d 649, 650 (1957), “Seldom do witnesses agree upon every detail. Indeed, their failure to do so is often strong evidence each is trying to accurately portray the situation as he saw it, and that is to the credit, rather than discredit, of the witnesses.”

The credibility of the witnesses, the weight and worth of their testimony is, of course, for the jury to determine, Davis v. State, 320 So.2d 789 (Miss.1975). Presently the jury was properly instructed on the nature of accomplice testimony, therefore, we conclude this assignment is without merit.

Young next contends the trial court erred by commenting on the weight to be given Larry Young’s testimony where the court instructed the jury, “I am instructing you that you may consider the fact that he has been in the courtroom and has not been under the rule in considering what weight you wish to give his testimony.”

The trial court permitted Young’s brother to testify after sustaining an objection by the district attorney following Young’s attorney’s plea that he “goofed up” and only wanted to ask the witness one question. Further, when the court advised Young’s attorney he would permit the testimony but would instruct the jury of the violation of the rule and that the jury might take that fact into consideration in weighing his testimony, Young’s attorney replied without objection, “Thanks, very much, sir.”

We are of the opinion the trial court was not charging the jury on the weight of the evidence, but rather was advising it of the infraction of the rule so the testimony might be considered with all factors in mind. Further, Young’s attorney was told of the trial court’s intention before the comment was given, to which Young’s attorney assented without objection. Therefore, Young may not complain of the instruction on appeal. Pittman v. State, 297 So.2d 888 (Miss.1974).

In appellant’s third assignment he alleges the lower court erred in instructing the jury on its own motion that the Harrisons and Dorman are accomplices rather than “alleged accomplices” thereby instructing on a question of fact which appellant submits should have been decided by the jury.

The accomplice instructions submitted by Young contained language that the witness “is an accomplice” rather than “alleged accomplice” moreover, Young did not object to the instruction .when amended by the court and given. In Reed v. State, 237 Miss. 23, 30, 112 So.2d 533, 535 (1959), we stated, “We will not reverse the trial court for an error created by the defendant’s own instruction,” and in Bieller v. State, 275 So.2d 97, 99 (Miss.1973), we held, “the acceptance of an instruction after its amendment by the trial court amounts to a waiver of an objection to the amendment.” We therefore find Young’s third assignment without merit.

In Young’s next assignment he argues the trial court erred in instructing the baliff outside Young’s presence to inform the jury to “continue their deliberations” after the jury informed the bailiff they could not reach a verdict.

We are of the opinion the instruction was neither a substantive instruction on a question of law nor indicative of a requirement that the jury must continue deliberating until a verdict was reached. We approved the admonition “Please continue your deliberations” in Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), and we therefore think appellant was not prejudiced by his absence at the time the instruction was given.

In Young’s next assignment for reversal he argues the trial court erred in denying a mistrial when the district attorney in closing argument commented:

Well, I want to know what more proof do you need than those witnesses and these shotguns and this green sack here that was flapping in the wind when he drove by there casing the bank before he robbed it. They only recovered Harrison’s half of the money, evidently. I am sure Mr. Young knows where the other half is.

Young contends the comment implied the district attorney had personal knowledge of the case and thereby was a comment on a fact not in evidence, as well as being a comment on Young’s failure to testify.

We are of the opinion the comment was a reasonable inference flowing from the un-contradicted testimony that Young took approximately half of the money and left the remainder with the Harrisons, and as such, was not a comment on a fact not in evidence or an intimation that the district attorney had personal knowledge of the case. In Chinn v. State, 276 So.2d 456, 459 (Miss.1973), we held:

It has long been the rule that this Court recognizes the right and duty of an attorney to deduce and argue reasonable conclusions based upon the evidence, which are favorable to their clients, and they may do so whether conclusions so urged are weak or strong so long as legitimate, and it is the function of the jury to determine the logic and the weight of the conclusion.

We next address the contention that the comment constituted a comment on Young’s failure to testify which if so, would be prohibited by Miss.Code Ann. § 13-1-9 (1972). After an examination of the cases under the foregoing statute, and review of the record and argument, we are of the opinion the chances are extremely remote that the jury understood the statement to be a comment on Young’s failure to testify. We therefore find the trial court did not err in overruling appellant’s motion for a mistrial.

In Young’s sixth assignment he contends “Where the Appellant was charged with armed robbery and the actual perpetrator of the crime was completely masked at all times, the Court committed reversible error when the Court refused to strike the identification testimony of one of the witnesses; to grant the Appellant a mistrial where there was insufficient basis for the in court identification apart from an unduly suggestive pretrial photographic showup and the totality of the circumstances of the showup showed a very substantial likelihood of mis-identification.”

Young argues a conviction based on a tainted in-court identification would be set aside if, upon consideration of the totality of the circumstances of the improper identification procedure, there was a substantial likelihood of misidentification, citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

However, before determining whether a substantial likelihood of misidentification under the totality of the circumstances exists, it must be found that Mrs. Hoard’s in-court identification was tainted by a pretrial identification gained by a suggestive or improper procedure.

The morning after Young learned Mrs. Hoard first identified him from a photograph, the following transpired between Young’s attorney and the trial judge:

BY MR. FARESE: Comes now the defendant and respectfully moves the Court to strike out all the testimony of the witness Mrs. Hoard on the grounds that Mrs. Hoard made an alleged identification of the defendant from the photograph before she came into Court and made an in-court identification. We move that the Court order all her testimony striken, and move for a mistrial also at this point.
BY JUDGE BIGGERS: What says the state? (At this time there was argument by the counsel for the State and counsel for the Defendant, after which the following was had.)
BY JUDGE BIGGERS: The Court is of the opinion that it is a question for the jury to determine what weight they wish to give this identification the way the question was framed to the witness, as the Court recalls, it was not based on whether she saw and identified a picture of this defendant some time after the robbery, but whether or not she saw, yesterday, the man who robbed her, in the courtroom. She pointed out she did. It is not clear in the record that this identification was based on having seen a picture; maybe she did, as she testified, point him out in a picture, the way the question was framed. She identified the man today as the man who robbed her, based on the identification in the courtroom.
BY MR. FARESE: How about my motion for production of that picture at this time. I would like to see that picture; I would like to recall Mrs. Hoard. She was shown a picture and she identified him from the picture.
BY JUDGE BIGGERS: She testified to that by the question: Do you see the man in the courtroom, can you identify the man in the courtroom who robbed you? Not: Can you see the man you picked out in the photograph? (At this time, there was further argument and then the following was had.)
BY JUDGE BIGGERS: All right, Mr. Farese, I have already ruled on the motion. I am inclined to grant your motion for production of the photograph, and all the other photographs that were shown her, from which she picked out the photograph of the Defendant. I assume Chief Crider still has the photograph he showed her.

We are of the opinion Young’s motion to strike the testimony and for a mistrial, dealt not with an allegation that the in-court identification was gained as the result of a suggestive or improper pre-trial identification procedure, but was on the sole basis that the witness’ in-court identification came after a pre-trial photographic identification. Under this circumstance the lower court did not err in ruling the credibility of Mrs. Hoard’s identification was for the jury to weigh. McNeal v. State, 405 So.2d 90 (Miss.1981). We reiterate as we stated in Chambers v. State, 402 So.2d 344, 347 (Miss.1981), “We are content to rely upon the good sense and judgment of juries, for evidence with some element of untrust-worthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”

In Young’s seventh assignment he argues “Where the Appellant is charged with robbery of a local bank and the actual perpetrator of the robbery was completely masked during the entire robbery and where one of the four witnesses of the robbery identified the Appellant as the robber, it was a denial of due process and reversible error for the trial court to refuse the Appellant’s pretrial discovery request to see the photographs shown to the witness who identified the Appellant and who had been shown a suggestive photographic showup.”

Rule 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice which applies to pre-trial discovery, provides in part, “Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.”

Young was provided all of the photographs prior to the presentation of his version of the case, and any prejudice that may have resulted from the trial court’s discretionary denial of his pre-trial request was overcome by his enablement to fully examine the entire identification procedure in his case-in chief.

We have reviewed the entirety of the record and are convinced there was ample testimony to support the jury’s verdict and that there was no prejudicial error necessitating a reversal.

AFFIRMED.

SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    John Irving WILSON, Jr. v. Cynthia Mae AINSWORTH.
    No. 53444.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.
    John W. Christopher, Canton, James G. McIntyre, Jackson, for appellant.
    Smith & Whitehead, Carson E. Whitehead, Moore, Royals & Taylor and Russell D. Moore, III, Jackson, for appellee.
   Appeal from County Court, Madison County; Roy H. Montgomery, Judge.

Before WALKER, P.J., HAWKINS and DAN M. LEE, JJ.

AFFIRMED EN BANC.


author: HAWKINS, Justice,

text:
    J.T. HUGHES, Jerome Montgomery and Darnell Bumphis v. STATE of Mississippi.
    No. 53460.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.

      Gene Barton, Moffett & Thorne, Michael G. Thorne, Coleman, Breard & Walker, John R. Coleman, Tupelo, for appellants.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

J.T. Hughes, Jerome Montgomery and Darnell Bumphis have appealed from their convictions in the Circuit Court of Lee County of aggravated assault. We affirm.

These three defendants were jointly indicted on November 26,1979, in a two-count indictment for aggravated assault on Jules Harrison “Nick” Blanchard and Donald Ray, and following their convictions were each sentenced to serve a term of seven years on each count, to run concurrently.

Gary Gilmore’s residence is next to Wade’s Grocery Store, a roadside store on Highway 371 in Lee County. Blanchard, at approximately 7:30 p.m. on Saturday, September 22, 1979, left his friend Donald Ray at the Gilmore house, where they had been visiting. Ray was invited to supper at Blanchard's house, about two miles distant.

Blanchard was driving a 1972 Chevrolet pickup. Parked in the store parking lot was a 1973 Pontiac four-door sedan owned and being driven by Hughes, and in which Montgomery and Bumphis were passengers.

As Blanchard backed around into the store parking lot preparatory to returning home, he and the three defendants had an exchange of some rather blunt language, the precipitation and content of which were disputed by the opposing parties. Blanchard sped away and, according to the defendants, the pickup threw gravel and broke the car’s windshield.

The car followed the pickup, and Blanchard stopped, got out with a club, and two of the defendants who had also gotten out of the car, returned to the car. Blanchard got into his pickup and drove to his home.

After Blanchard reached his home, Luke Lucas and Clarice Richardson arrived to eat supper with Blanchard and his wife; shortly thereafter Ray also arrived.

The defendants claimed that they wanted Blanchard to pay for the broken windshield. In the car were a .22-caliber pistol and a 12-gauge shotgun which they claimed they had used to shoot at turtles and cans down at a creek earlier that day.

They drove to the Blanchard residence where Mrs. Blanchard asked them to leave. Blanchard got his 12-gauge shotgun, and over his wife’s and friend’s protest went out the back door and placed himself behind a butane gas tank located to the side of the house. From there he proceeded to a tree in front of the house. He stood behind the tree.

Mrs. Blanchard and the guests went to the front porch telling the defendants to leave.

Again, the evidence is disputed, but three pistol shots were fired, wounding Ray. Blanchard stepped from behind the tree, armed with his shotgun, and was shot in the leg by a shotgun. Montgomery fired the pistol, and Bumphis fired the shotgun.

Ray was not seriously injured, but Blanchard’s would required amputation of his left leg.

Each of the defendants was represented by court appointed counsel who vigorously contested the state’s proof. Charged with aggravated assault on Ray and Blanchard, the defendants claimed lawful self-defense from the apprehension of serious danger at the hands of Blanchard, who was armed with a 12-gauge pump shotgun.

The defendants’ assignment of error on the insufficiency of the evidence is not persuasive. This was one of those hotly-contested cases on the facts, and success is dependent upon factual resolution by the jury. We see no necessity to detail the testimony of the various witnesses. The guilty verdict was sufficiently supported by competent evidence.

Blanchard and Ray are white. The defendants are all black. They allege that the trial judge erred in permitting the state to exercise peremptory challenges so that no blacks sat on the jury. There is no claimed error as to the selection of the venire, or as to any challenge by the state for cause. There is no merit to this assignment. Gaines v. State, 404 So.2d 557 (Miss. 1981).

Did the trial court err in refusing certain requested instructions on self-defense? One instruction for each defendant sought to inform the jury they should not hold the defendants to the same calm judgment the jurors might have, but to consider the circumstances in which the defendants were surrounded at the time of the shooting.

The other instruction sought to inform the jury that even if they found the defendants were initially the aggressors, if they had abandoned the enterprise and were leaving, and thereafter Blanchard, armed with the shotgun, approached them in such a manner as to cause reasonable fear for their safety, they were entitled to use their firearms in self-defense.

The wording of these instructions is somewhat questionable. There would be instances, however, in which a circuit judge would be obligated to give such instructions properly worded, and if this were such a case, we would call the circuit judge to task for refusing to give them in proper form. This is not such a case. The experienced circuit judge gave a detailed and fair instruction covering all the elements of self-defense. There was no instruction granted by the state which restricted or curtailed the defendants’ claim of self-defense. There was no instruction given which es-topped the defendants from claiming self-defense. The instruction given by the court on self-defense informed the jury that if the defendants had reasonable ground to fear death or perceive bodily harm at the hands of Blanchard, and even though the danger was only apparent as opposed to actual danger which caused them to shoot the weapons, they should be acquitted.

The instruction the court gave on self-defense did not conflict in any way with the requested defense instructions. The circuit judge adequately informed the jury on the law of self-defense. We see no need in this case for the trial judge to further delineate some aspect of the affray, which defense counsel were still free to argue to the jury, using as their text the self-defense instruction the court did give. Holmes v. State, 201 Miss. 509, 29 So.2d 312 (1947).

The remaining assignment of error, asserted by Bumphis, deals with the admission into evidence of a pretrial statement given by Blanchard to one of the investigating officers. Counsel for the codefendants cross-examined Blanchard about this statement to show inconsistency with his testimony. Having cross-examined Blanchard as to certain parts of the statement, the circuit judge permitted the state to offer the entire statement in evidence. This was not error. Jones v. State, 342 So.2d 735 (Miss.1977); Stampley v. State, 284 So.2d 305 (Miss.1973).

Although we affirm the convictions in this case, we commend the vigor and interest shown by the court appointed counsel in representing their clients in trial proceedings, in their briefs, and their oral argument before us. The defendants were well represented.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and' BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    In the Interest of J.W., a Minor.
    No. 53461.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellant.
    Hugh Hathorn, Louisville, for appellee.
   Appeal from Youth Court, Winston County; Edward C. Prisoek, Youth Judge.

Before SUGG, P.J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Amos ARCHIE v. STATE of Mississippi.
    No. 53737.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.
    Gilmer & Jones, Barry W. Gilmer, Charles I. Knauss, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Alfred G. Nicols, Jr., Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    The HOME INSURANCE CO. v. Harryette J. MOONEY.
    No. 53475.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.
    Upshaw & Ladner, James E. Upshaw, Alan W. Carter, Greenwood, for appellant.
    Brunini, Grantham, Grower & Hewes, Lawrence E. Allison, Jr., Jackson, Sumners, Hickman & Rayburn, S.T. Rayburn, Oxford, for appellee.
   Appeal from Circuit Court, Lafayette County; William R. Lamb, Judge.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


author: BROOM, Justice,

text:
    Mrs. Rogene Winborne DAVIS, Admrx. of Estate of Terry David Davis, Deceased v. Nathaniel WATERMAN.
    No. 53449.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.

      William F. Riley, Natchez, Donald Patterson, Brookhaven, for appellant.
    Daniel, Coker, Horton & Bell, Curtis E. Coker, J. Wyatt Hazard, Jackson, for appel-lee.
    Before SUGG, P.J., BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Wrongful death action growing out of an intersectional vehicular collision is the nature of this suit, tried in the Circuit Court of Lincoln County, the Honorable Joe N. Pigott, circuit judge, presiding. The appellant (plaintiff herein) Mrs. Rogene Win-borne Davis, as Administratrix of the Estate of Terry David Davis, Deceased, brought this action on account of the death of Terry, her son, born February 14, 1966, and killed September 30, 1979, in the collision of his motorbike with a car driven by Nathaniel Waterman (defendant herein). The jury found for the defendant, and we affirm.

On appeal, the plaintiff argues: (1) the court erred in allowing the jury to consider the. question of contributory negligence on the part of the plaintiff’s decedent, (2) the jury verdict was not supported by adequate evidence and was not responsive to the court’s instructions, (3) the court erred in failing to grant the plaintiff’s requested peremptory instruction, and (4) the court erred in refusing to grant plaintiff’s instruction P-5 on the law of contributory negligence.

Terry David Davis (Terry herein), wearing no helmet, was driving a motorbike on September 30, 1979, and stopped at an intersection while headed east on Arlington Road in Lincoln County, where it intersects U.S. Highway 51 in the town of Bogue Chitto. The accident occurred about mid-afternoon on a fair day, when the defendant’s (Waterman’s) car apparently struck the motorbike as Waterman was headed south. Terry died on the scene after pulling out into the intersection in front of Waterman. The intersection was in a built-up area near residences, stores, a bank, school and church. Other facts will be stated as pertinent within this opinion.

DID THE TRIAL JUDGE ERR IN ALLOWING THE JURY TO CONSIDER THE QUESTION OF CONTRIBUTORY NEGLIGENCE ON THE PART OF THIRTEEN - AND - ONE - HALF - YEAR-OLD TERRY, THE DECEDENT? General law in this state has been that a child between the ages of seven and fourteen is presumed incapable of contributory negligence in failing to exercise due care for his own safety. Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957). Both litigants recognize that the presumption is rebuttable, but the plaintiff argues that “the record is void of any evidence which would in any way rebut this presumption. No proof, in fact, was offered by the defendant to rebut said presumption.” Defendant’s argument is that upon this record, pursuant to the rule enunciated in Johnson v. Howell, 213 Miss. 195, 56 So.2d 491 (1952), and upon the testimony introduced at trial, the presumption was rebutted, therefore making it proper for the question of contributory negligence to be submitted to the jury. In Johnson, the jury was instructed:

[T]hat if you believe from the evidence that the plaintiff, Bobby Howell, from his age, intelligence, knowledge and experience has sufficient discretion to be charged with negligence and if you further believe from the evidence that the plaintiff, Bobby Howell, was guilty of negligence which contributed to the injury, then the court instructs you that any damages which the plaintiff has sustained shall be diminished in proportion to the amount of negligence attributable to the plaintiff.

Id., at 198, 56 So.2d at 491-92, (emphasis added).

As to whether the contributory negligence issue was properly submitted to the jury, the following is excerpted .from the testimony of Deputy Sheriff Winborne, who testified (on cross-examination) as follows, when placed on the stand by the plaintiff:

Q Well, you knew Terry very well and you had confidence in him knowing about the rules of the road, did you not?
A I’ve told him many a time to always stop at stop signs, never cross the highway when a person is approaching it with his signal lights on because they’re mechanical. It could very easily be on and they not even know their signal lights was on. Always wait until the car made the attempt to make its turn, even though you knew its signal light was on before you crossed, because that signal light could be hung up and that man might not even know that light’s flashing, and he might have no intention of turning. And you go ahead and take it for granted the man’s going to turn off and cross in front of him and he’ll run over you, I said, “Always wait ‘til you know that the man is done in the position of turning off before you pull out.”
Q In other words, what you’re telling us is that even just you telling him, he was well instructed in the rules of the road and how to handle himself with traffic?
A I would say so.

Testimony in the record established that Terry had been riding a motorbike for two years and was a good rider. Further testimony was that Terry knew he was supposed to stop at the stop sign, was familiar with traffic, and knew he should look both ways before entering the highway. He was a seventh grader, about thirteen-and-a-half years old. It is true that none of the testimony literally described Terry as having “exceptional capacity” for his age, but we think the totality of the evidence was sufficient to justify the issue of his contributory negligence going to the jury. Clearly the evidence showed that he had capacity sufficient to know and appreciate the peril of his situation. Howell v. Illinois Central Railroad Co., 75 Miss. 242, 21 So. 746 (1897).

Regardless of the fact that the magic words “exceptional capacity” were not used in describing Terry’s mentality, we think the time has come when minors who operate a self-propelled vehicle on a highway must be held to the same standard of care as an adult. It is common knowledge that many children now operate self-propelled vehicles upon public streets and highways, and such vehicles in their hands are equally as dangerous as they would be if operated by adults. The proper rule, which we now adopt, is that stated in Gunnells v. Dethrage, 366 So.2d 1104 (Ala.1979), wherein the Alabama court held:

The overwhelming majority of jurisdictions hold minors to an adult standard in determining whether their conduct while engaging in an adult activity is negligent, [citations omitted]. The prevailing view is that a minor who enters upon an adult activity such as the operation of a motor vehicle must exercise a commensurate degree of responsibility. Motor vehicles are dangerous instrumentalities and public safety demands that all who operate them exercise the same degree of care and competency. We adopt this view.

Id., at 1105.

To the same effect is the following language taken from Prosser, The Law of Torts, § 32 (4th ed. 1071):

[W]henever a child, whether as plaintiff or as defendant, engages in an activity which is normally one for adults only, such as driving an automobile or flying an airplane, the public interest and the public safety require that any consequences due to his own incapacity shall fall upon him rather than the innocent victim, and that he must be held to the adult standard, without any allowance for his age. This position has been rapidly gaining ground in recent years.

Id., at 156-57.

Murchison v. Sykes, 223 Miss. 754, 78 So.2d 888 (1955), dealt with facts of an accident in which a nine-year-old child drove his bicycle from behind a blind corner into an intersection. There we stated:

[SJince the traffic laws of the State and the traffic ordinances of this municipality make no exception such as to exempt a child from their provisions, the instruction here complained of correctly states the law on behalf of the defendants. Defendants were not required to obtain instructions upon the plaintiff’s theory of the case wherein the instruction is complained of as being incomplete.

Id., at 759, 78 So.2d at 890.

Burlingame v. Southwest Drug Stores of Mississippi, Inc., 203 So.2d 74 (Miss.1967), was a case in which a 12-year-old plaintiff rode her bicycle into the street and was struck by the defendant’s car. We stated that it was within the province of the jury to consider the infant plaintiff’s contributory negligence even though such negligence was neither pleaded nor evidence put forth to show an exceptional capacity or judgment, unless the jury was specifically instructed that such exceptional capacity, intelligence and judgment did not exist.

The defendant argues that plaintiff should not now be heard to object to the contributory negligence issue going to the jury because, at her request, jury instruction P-10 was given in the following language:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that the defendant was guilty of negligence which proximately caused or contributed to the accident, and if you further find from a preponderance of the evidence in this case that Terry David Davis was guilty of negligence which proximately caused or contributed to the accident in question, then it will be your sworn duty to determine the sum of money which will fairly and adequately compensate the plaintiff for the death of Terry David Davis, and then reduce this sum by the percentage of Terry David Davis’ negligence if any in order to arrive at your verdict.

Responding to this argument, plaintiff points out that, because the court had refused her instructions P-3 and P-18, she was forced to ask for instruction P-10. We find it unnecessary to deal further with these arguments except as follows: On the record, Terry was “well instructed” by his uncle, Deputy Sheriff Winborne, as to the rules of the road pertaining to the operation of his motorbike. Further, we now adopt the rule that anyone operating any motor-propelled vehicle upon a public street or highway must follow the same “rules of the róad” and exercise the same standard of care as adults. In stating this rule, we are not unmindful of earlier decisions which, in some respects, are in conflict with the rule just set forth. To the extent that previous cases are in conflict with the rule set forth above, they are now overruled, but we emphasize that the rule adopted in this opinion applies only to motor-propelled vehicles. Future cases involving contributory negligence of children under fourteen years of age will be decided upon appropriately briefed arguments and facts as such subsequent cases appear on our docket.

WAS THE JURY VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE? Our analysis of the record leads us to conclude that the verdict was adequately supported by the evidence.

Defendant Waterman saw Terry stopping on his motorcycle at the stop sign as Terry faced east on Arlington Road. Being engaged in the operation of his car and Terry driving the motorcycle, Waterman stated that he could not determine Terry’s age or size. Plaintiff’s witness, Vicki Reed, passed Terry just before the accident and she determined that he was a young boy but her testimony was that she had known him for seven or eight years and recognized him. Following just behind defendant Waterman was Mr. Brown, who testified about Terry as follows: “He looked pretty big. He looked like an adult to me.”

No testimony established that Waterman was driving his vehicle at any excessive or unlawful rate of speed. Witness Brown was the only eyewitness who actually saw the tragic accident, except Waterman and Waterman’s wife. On cross-examination, Brown gave the following testimony:

Q And you heard [the defendant’s tires] squeal for a pretty good piece, didn’t you?
A No.
Q Well, you heard them squeal for several seconds, did you not?
A I wouldn’t say several seconds, but I just heard them, you know, shooos, like that.
Q All right. And he went into a skid, did he not?
A No. He — looked like it was controlled to me — looked like, you know, he just hit the brakes and just tried to swerve to the left.

Other testimony established that defendant Waterman honked his horn. Upon the totality of the testimony, we cannot agree that the jury verdict was against the weight of the evidence. It follows that the lower court did not err in refusing to grant the plaintiff a peremptory instruction on liability.

DID THE COURT ERR IN REFUSING TO GRANT PLAINTIFF’S INSTRUCTION P-5? P-5 is as follows:

Your verdict in this case must be in favor of the plaintiff awarding her such sum by way of damages as you find should be fixed based upon the evidence and the instructions of the Court in that regard if you find from a preponderance of the evidence that the defendant was guilty of some negligence, no matter how slight, which proximately caused or proximately contributed to causing the collision.

Instruction P-10 was granted to the plaintiff, and it provided:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that the defendant was guilty of negligence which proximately caused or contributed to the accident, and if you further find from a preponderance of the evidence in this case that Terry David Davis was guilty of negligence which proximately caused or contributed to the accident in question, then it will be your sworn duty to determine the sum of money which will fairly and adequately compensate the plaintiff for the death of Terry David Davis, and then reduce this sum by the percentage of Terry David Davis’ negligence if any in order to arrive at your verdict.

The substance of the two instructions quoted above are quite similar, and they differ mainly as to wording rather than as to substance. P-5, as worded in the first four lines, is very close to being peremptory, and quite conceivably could be interpreted by a jury as being peremptory. P-10, together with the other instructions given, furnished adequate and proper guidance to the jury.

Our conclusion is that all issues growing out of the traffic accident were submitted to a jury which rendered a fair verdict. No reversible error has been established, and therefore affirmance is required.

This case was considered by a conference of the judges en banc.

AFFIRMED.

SUGG and WALKER, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

PATTERSON, C.J., takes no part.

      . Collected here are prior cases which discussed the issue of contributory negligence of children under fourteen years of age. Although they do not specifically involve motor-propelled vehicles on public thoroughfares, they are listed in order to show something of the history of our jurisprudence as related to contributory negligence of young children. Westbrook v. Mobile and Ohio R. Co., 66 Miss. 560, 6 So. 321 (1889); City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774 (1889); Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617 (1909); Pascagoula Street, Ry. & Power Co. v. Brondum, 96 Miss. 28, 50 So. 97 (1909); City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329 (1911); Hines v. Moore, 124 Miss. 500, 87 So. 1 (1920); Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 (1949); Johnson v. Howell, 213 Miss. 195, 56 So.2d 491 (1951); Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603 (1952); Morris v. Boleware, 228 Miss. 139, 87 So.2d 246 (1956); Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957); Agregaard v. Duncan, 252 Miss. 454, 173 So.2d 416 (1965); Burlingame v. Southwest Drug Stores of Miss., Inc., 203 So.2d 74 (Miss.1967).


author: ROY NOBLE LEE, Justice,

text:
    Clifton GALLENT v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Kentucky Corporation, and Buck Asher.
    No. 53817.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.

      Blackwell, Owen & Galloway, Ben F. Galloway, Sherman Muths, Jr., Gulfport, for appellant.
    White & Morse, George E. Morse, Gulf-port, for appellee.
    Before PATTERSON, ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Clifton Gallent filed suit in the Circuit Court of the First Judicial District of Harrison County, Honorable Kosta N. Vlahos, presiding, against Louisville & Nashville Railroad Company and Buck Asher, road-master, for personal injuries .sustained in a train-automobile collision. The jury returned a verdict in favor of the railroad company and Asher, and judgment was entered for them. Gallent has appealed and assigns the following errors in the trial below:

(1) The lower court erred in refusing Instructions P-14 and P-17 and' in granting Instructions D-4, D-6, and C.02.

(2)' The verdict of the jury’ evinces bias and prejudice, and was against the overwhelming weight of the evidence.

(3) The lower court erred in refusing to admit into evidence records of traffic counts ih the area of the crossing conducted by the Mississippi State Highway Commission.

Clifton Gallent, age fifty-six (56) years, accompanied by Revon St. Amant, age eighteen (18) years, was driving an automobile in an easterly direction on Railroad Street in the City of Long Beach, Harrison County, Mississippi, and approached an intersection with White Harbor Road. Railroad Street runs in an east-west direction, and White Harbor Road runs north and south. The L & N railroad tracks lie east and west in that area, and are approximately seventy-five (75) feet south of Railroad Street and its intersection with White Harbor Road. Gallent had entered Railroad Street from Beat Line Road in excess of four hundred (400) feet west of the White Harbor Road intersection, and he drove that distance east parallel with the L & N right-of-way, which was in close proximity and in plain view.

When Gallent arrived at White Harbor Road, he stopped, turned right, drove onto the L & N railroad tracks, was struck by the train, and seriously injured. He suffered amnesia from the accident and was unable to testify about what occurred. St. Amant testified that he did not hear the whistle blowing or the bell ringing on the engine, and that he did not see the train coming. He did not testify that Gallent stopped on White Harbor Road before entering the crossing. A cross-bar railroad sign and a stop sign were situated in open view on the north side of the crossing as Gallent approached it.

Two (2) cars were stopped east of White Harbor Road on Railroad Street, waiting for traffic to clear before proceeding. Gal-lent was in Railroad Street across White Harbor Road from them. The drivers of the automobiles saw the train approaching from the west. They testified that they did not hear the whistle blow or the bell ring, and that Gallent entered White Harbor Road and drove into the crossing without stopping. Another witness testified that, just before the accident, he was proceeding north on White Harbor Road and crossed the railroad tracks. He heard the engine whistle blowing, the engine light was on, and he saw the train approaching.

The evidence was conflicting as to whether or not the whistle was blowing and the bell was ringing. It was uncontradicted that Gallent failed to stop at the crossing on White Harbor Road. Evidence for Gallent indicated that high grass grew along the right-of-way and obscured the tracks in most areas. There was no evidence that the grass obstructed a motorist’s view of an oncoming train or the crossing signs. Thirty-one (31) large color photographs were introduced in evidence, which depicted the scene, the right-of-way, and streets in the vicinity of the crossing.

I.

Did the lower court err in refusing Instructions P-14 and P-17, and in granting Instructions D-4, D-6 and C.02?

Instruction P-14 would have told the jury that, if it believed from a preponderance of the evidence the crossing was unusually dangerous, and the crossing signals and signs were inadequate and the failure of the railroad company to provide additional crossing signals and signs constituted negligence contributing to the accident, the jury verdict should be for the plaintiff.

Instruction P-17 stated that, if the jury believed the railroad company failed to exercise ordinary care in warning the public of the existence of its crossing on White Harbor Road, and that the railroad company was guilty of contributory negligence in such failure, the jury verdict should be for the plaintiff.

The lower court granted Instruction P — 15 at the request of the plaintiff, which told the jury that, if it believed the railroad crossing was unreasonably dangerous and such situation constituted negligence on the part of the defendants, the verdict should be for the plaintiff. Instruction P-15 was stronger for the plaintiff than P-14.

The lower court granted Instruction P-5 requested by the plaintiff, which instructed the jury that it was the duty of the railroad company to ring the bell or blow the whistle beginning at a distance of three hundred (300) yards prior to reaching the crossing and, if the jury believed that the railroad company did not give such warnings and that such failure amounted to negligence which proximately caused or contributed to the plaintiff’s injuries, then the verdict should be for the plaintiff.

Instruction P-5 submitted the same issue contained in Instruction P-17. The court is not required to give repetitive instructions on the same issue and there was no error in refusing Instructions P-14 and P-17.

The appellant complains that Instruction D-4 was error. That instruction told the jury that, if it believed L & N Railroad Company complied with the law in giving proper signals, then the operators of the train engine had a right to indulge in the presumption that the plaintiff would not drive his automobile onto the tracks in front of the train without first stopping as required by law.

In Gulf, Mobile & Ohio Railroad Company v. Grubbs, 260 So.2d 837, 839 (Miss.1972), the Court said:

The trainmen had a right to assume that appellee would stop at the “Stop” sign, as required by law. When it became apparent he would not, the fireman shouted to the engineer; but it was not possible then to stop in time to avoid the accident.

Instruction D-6 told the jury that, under the evidence in the case, the plaintiff was guilty of contributory negligence. Appellant contends that the instruction constituted reversible error in that it left the jury unguided and uninstructed.

When the evidence, is undisputed as to certain facts, which constitute negligence, it is proper for the court to instruct the jury that the offending party is guilty of negligence. In the present case,- the evidence is undisputed that appellant did not stop before entering upon the railroad crossing and it is uncontradicted that the approaching train was in open view of persons about to enter upon the crossing. Under those facts, the lower court did not err in granting the instruction.

Instruction C.02 told the jury that the burden of proof was upon the plaintiff to prove the facts necessary to establish his case by a preponderance of the evidence. Appellant complains that the instruction singled out the plaintiffs burden of proof and that the court erred in not instructing the jury on the burden of proof on the defendant’s affirmative defenses.

The instruction properly stated the law. Also, every instruction requested by the plaintiff set out his burden of proof and even the defendants’ instructions placed the burden of proof on the defendant for their defense. Those instructions did not cover affirmative defenses and assumed an unnecessary burden to the defendant.

We are of the opinion that there was no reversible error in granting and denying the instructions mentioned.

II.

Did the verdict of the jury evince bias and prejudice and was it against the overwhelming weight of the evidence?

The case of Illinois Central Gulf RR Co. v. Yates, 334 So.2d 364 (Miss.1976), is similar to the facts of the case sub judicé. That case involved failure to give the statutory signals at a public crossing. The highway upon which Yates was driving ran parallel to the Illinois Central Gulf railroad tracks for a distance of sixteen hundred (1,600) feet. The tracks were seventy-five (75) feet away from the highway diminishing to 57.6 feet at the crossing. Yates passed the train and turned left into the crossing where he was struck by the train and fatally injured. In a specially concurring opinion, this writer stated:

Therefore, since the deceased had actual notice of the presence and the approach of the train, failure to give the statutory warning signals was not a proximate cause of the collision, and liability is not imposed against appellants under that submitted issue. [334 So.2d at 369].

The verdict of the jury was not contrary to the overwhelming weight of the evidence. On the contrary, the great weight of the evidence supported the verdict of the jury. -

The remaining assignment of error is without merit.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Mae Belle SULLIVAN v. W.C. BRELAND.
    No. 53773.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Toxey Hall Smith, Jr., Biloxi, for appellant.
    James M. Hall, Wiggins, for appellee.
   Appeal from Chancery Court, Stone County; Jason H. Floyd, Jr., Chancellor.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.