author: PRATHER, Justice, ROBERTSON, Justice,

text:
    JESCO, INC. v. Robert O. SHANNON.
    No. 54060.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Rehearing Denied April 25, 1984.

      William M. Beasley, W.P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, Darden, Sumners, Carter & Trout, New Albany, for appellant.
    Roy 0. Parker, Tupelo, Roscoe B. Hogan, William W. Smith, Birmingham, Ala., for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   PRATHER, Justice,

for the Court:

Robert Shannon filed this tort action for recovery of damages for permanent burn injuries sustained by him from an explosion at his place of employment, Sunshine Mills, Inc. in Tupelo. The defendant in the suit was Jesco, Inc., an independent contractor doing maintenance work at the Sunshine Mills plant, including welding. The jury returned a plaintiff’s verdict for $1,024,-268.00 compensatory damages, from which Jesco, Inc. (hereafter called Jesco) appeals. The plaintiff Shannon cross-appeals on denial of a punitive damage instruction. We affirm on both appeals.

The appellant Jesco assigns as error the trial court’s actions in:

(1) Refusing a directed verdict for the defendant Jesco, absent probative evidence that the explosion was caused by Jesco.

(2) Refusing to instruct the jury that they must believe from a preponderance of the evidence that the explosion occurred according to plaintiff’s expert witness, or find for the defendant Jesco.

(3) Refusing the defendant’s independent intervening cause instruction.

(4) Admitting into evidence an audio-video tape demonstrating burn treatment.

(5) Allowing expert testimony on plaintiff’s total loss of future wage earning capacity.

(6) Overruling the defense’s objection to its net worth, absent evidence justifying punitive damages.

(7) Refusing a new trial on the excessive award of damages, evidencing the jury’s bias, passion and prejudice.

The appellee Shannon’s cross appeal charged the trial court erred in'refusing to submit the punitive damage issue to the jury.

I.

Robert Shannon is an employee of Sunshine Mills, (hereafter referred to as Sunshine), a manufacturer of dog and fish food.

The Sunshine Mills facility consisted of elevators, a concrete mill building, and a large complex of metal buildings which surrounded the concrete mill building on three sides. The elevators were used for storing raw grain, and conveyors were used to transfer the raw grain to the fourth floor of the concrete mill building. There the raw grain was pulverized by a system of hammermills. Extending from the fourth floor to the first floor were a complex system of some twenty-four bins.

The first story of the mill building contained electrical controls which operated all of the bins, conveyors and other machinery. Also on first floor were the cookers or expanders which cooked the unprocessed raw dogfood.

The cooked material was conveyed to one of four gas-fired open flame dryers. After the material had been dryed, it was returned by conveyor into the mill building where it was processed and stored in storage bins on the upper floors.

Tons of grain, processed and unprocessed dog and fish food, flowed through the complex system continuously.

On the date of the explosion, December 22, 1977, there was in effect an ordinance adopting a fire prevention code by the City of Tupelo governing conditions hazardous to life and property from fire or explosion. This code is the basis of the acts of negligence charged against Jesco that proximately caused or contributed to Shannon’s injury.

Sunshine contracted with Jesco to make certain alterations within several bins on the second floor. The work required the cutting into the metal bin with an acetylene torch to build a new spout or chute down to some new equipment. In this area of the second floor there was a cluster of four bins, two containing corn, one containing wheat, and one containing soybean. The bins extended from the fourth floor downward to the second floor where the hoppers were located. Openings at the top of each bin provided an entrance into the bin, and a built-in ladder provided access downward through the bin into the hopper which tapered off to approximately 14 inches square at its bottom.

Jesco’s employees, Tommy May and Roger Hawkins, performed the welding on the corn bin and proceeded to the wheat bin.

May viewed the inside of the wheat bin through an inspection plate door and noticed clumps of grain within the bin. Employees of Sunshine were called to clean out the caked-on wheat. Two employees of Sunshine, Talmadge Stubblefield and Johnny Whitehead, crawled down into the bin from the top and scrapped the sides of the bin with a scraper. The wheat was caked on all sides of the hopper. Stubblefield and Whitehead were unable to scrap all of the wheat because some of it could not be reached. They advised the Jesco welders that all of the wheat could not be taken out. The welders, May and Hawkins, told the Sunshine employees that the bin was clean enough so the cleaning was stopped.

Hawkins proceeded to cut the hole. After cutting two sides with an acetylene torch, Hawkins could tell that something was behind the cut. A hole was cut in the center of the cut-out in which a rod was placed to prevent the cut-out from falling into the bin. After five minutes of cutting, the two men were able to lift the entire metal piece out. They saw clumps of smoldering wheat behind the cut metal. May left and returned five minutes later with Stubblefield who attempted to get the remaining chunks of wheat out of the bin.

Satisfied that the bin was cleaned, May welded the chute onto the hopper. Hawkins supposedly watched for fire, but he never looked into the bin after the welding was completed.

May testified that the actual cutting of the metal creates hot slag and BB’s, but he could not say whether hot slag and metal BB’s penetrated the caked wheat. After the removal of the wheat clumps, neither Hawkins or May saw any fire or smoldering. Droppings from the welding would have fallen onto the floor instead of inside the bin. After welding the hole up, there was no way for May to see any smoke at that point. He stated that he would have been able to smell smoldering wheat through the metal bin had there been any smoke. The time period from the moment the hole was cut until the explosion was estimated to be about forty-five minutes to one hour.

Negligent action was attributed to the Jesco welders in the following respects. No one told May or Hawkins that a fire watch was to be used in the bin for a period of thirty minutes after the welding. Nor did anyone tell them to use non-flammable shields if welding was within thirty-five feet of combustible material. They were told not to cut or weld in a bin that contained flammable solids or anything else that would cause fire. The floor was not wet down around the welding area prior to welding. All of the above are required by the Tupelo Fire Prevention Code.

After the welding, May notified the Sunshine employees that the job was complete. The Sunshine employees restarted the operation, and wheat entered the bin to the point of the welding. May stated that it takes three to five minutes for the weld to cool to the point that it could be touched and the same amount of time for the hot slag from the cutting torch to cool.

May was on the second floor facing north when the explosion occurred. The first thing he remembered was seeing flames come up from the first floor through the manlift openings in the second floor. He did not hear or see an explosion before the fire. He stated that it was pretty noisy since the mill was operating and that he may not have heard a low order explosion if one occurred.

Plaintiffs expert was Emerson Venable, a consulting chemist specializing in materials engineering and safety and health problems. Venable investigated the Sunshine Mill explosion on January 11, 1978, taking pictures and making numerous notes while inspecting the mill premises.

Venable defined smoldering as a non-flaming combustion which can occur with any kind of pourous material that is combustible. He stated that wheat could smolder and that smoldering could go for hours undetected. One may or may not be able to smell smoldering material especially if smoldering is occurring on the inside of a pile. Venable was of the opinion that hot slag, spark, or hot BB’s from the cutting torch could cause wheat to smolder. The welders would have to be looking for it to detect it.

Venable’s testimony on the plaintiff’s theory of the explosion is as follows: the cause of the explosion and the fire which caused plaintiff’s injuries was that the negligent cutting or welding by Jesco welders caused the wheat material on the inside of the bin to smolder, thus providing a source of ignition. Grain dust, of a combustible mixture, was created and was contained within the bin when the mill operation was restarted which was ignited by the smoldering wheat, causing a low order explosion. This initial explosion shook the building causing dust accumulated throughout the building to fall down through the various openings in the floors. The dust was drawn into one of the open flame gas dryers on the first floor of the mill. The open flame ignited the dust causing a large fireball to explode upward through the building. It was this fireball that burned the plaintiff and set off secondary explosions causing the destruction to the building.

The plaintiff, Robert Shannon, age twenty-nine years, with an eleventh grade education, was married and the father of two boys, ages six and one. His wife was expecting another child.

He was employed by Sunshine Mills five years prior to the explosion. He was the foreman in charge of running the twenty-five pound dog food line which required the sacking and lifting of the twenty-five pound bags of dog food. At the time of the explosion the only thing Shannon remembers is getting up and seeing fire as his clothing was burning. He sustained first, second and third degree burns over thirty-eight percent of his body. He was treated at North Mississippi Medical Center in Tupelo and later at the burn center at Delta Medical Center in Greenville for more than three months. He had to be sent to the University Hospital in Jackson for the removal of a catheter which had come loose and lodged in a vein in the upper part of his body. After his stay in Jackson, he was sent back to Greenville for further treatment. During his second stay in Greenville, skin grafts were taken from both legs and applied to the burned areas. A psychiatrist was seen by Shannon.

Shannon was in good health before the explosion.. His recreational activities before the explosion included fishing, basketball, and baseball.

Mentally, Shannon was anguished after the explosion. He did not want to see his wife or mother because of his burns. He worried about his looks and medical expenses. He was at all times dependent on someone and needed assistance to use the bathroom, which caused embarrassment. He also complained of flashbacks of the fire.

After getting home, Shannon felt further embarrassment. He was unable to hold his children. He walked with a limp and had to have help dressing.

Medical expenses include: $719.00 from North Mississippi Medical Center, $17,-874.00 from Delta Medical Center — first stay, $1,420.00 from the University Hospital, $586.72 from Delta Medical Center— second stay, $420.00 from Dr. Jan T. Goff, $300.00 from Dr. Patrick Lehan, and $900.00 from Greenville Surgical Clinic, to-talling $22,220.80.

Shannon returned to work at Sunshine Mill in November, 1980. His work was limited to janitorial duties such as sweeping and cleaning. He was unable to find other work. Darrell Smith, mill manager, agreed that Shannon could do the janitorial work. He allowed Shannon to rest when rest was needed and only required that Shannon work four days a week. Shannon did not want to go back to Sunshine but did so because he needed the money. For two months’ work Shannon’s gross pay in 1980 was $1,320.38. His gross wages in 1981 was $11,238.38 and in 1982, at the time of the trial, his takehome pay was $156.00 per week. At the time of the explosion Shannon’s takehome pay was $140.00 per week for five days’ work.

Shannon admitted that he would have been able to leave the hospital much sooner had the catheter not come loose. After getting home, he saw Dr. Benton Hilton in February and March of 1978. At that time Hilton suggested that Shannon go back to work, but Shannon elected not to go back until November of 1980. Shannon did not see Dr. Goff, a psychiatrist, until 1980 after this lawsuit was filed.

James Locust, plaintiff’s half-brother, and Angie Shannon, plaintiff’s wife, testified and corroborated much of Shannon’s testimony concerning his medical treatment and physical inabilities.

Paul T. Oliver, Professor of Economics at the University of Mississippi, who is an expert in the fields of finance and economics, testified that Robert Shannon’s life expectancy was 43.1 years and that his work life expectancy was 42.9 years. If Shannon worked for his normal work life expectancy, Oliver stated that his gross earnings would be $562,313.59. Total wage losses from the date of the explosion to the date of the trial equaled $40,423.43. Oliver testified that gross earnings of $562,313.59 must be discounted to its net present value of $214,293.75.

Dr. John C. Sandefur, a general surgeon, opined that Shannon had suffered a twenty percent impairment of function of the whole man. This does not take into consideration any physiological problems nor does it consider education, but is only concerned with 'anatomical disability.

William Furr, a professional in the field of vocational rehabilitation, was of the professional opinion that Shannon was not physically nor mentally capable of engaging in substantial gainful employment.

The defendant, Jesco Inc., called as its only witness, Keith Royer. Royer was the head of Fire Service Education at Iowa State University. Previous experience in grain dust explosions included somewhere between 50 and 150 incidents.

After hearing all of the testimony of those witnesses with knowledge of the occurrence, including Emerson Venable, Roy-er was of the opinion that there could not have been an explosion in the wheat bin. His opinion was based on the fact that when the mill process was restarted after the welding, a continuous flow of fuel entered into the bin. If a source of ignition were present with this continuing flow, a very violent explosion would have occurred which would have torn the bin into causing extreme damage on the second floor of the mill. Royer stated that the initial explosion did not occur in the wheat bin, but he could not offer any idea about where it may have occurred.

II.

(1) Turning to the first assignment of error, the appellant Jesco asserts that it was entitled to a directed verdict in the absence of probative evidence that the Jes-co welders were negligent and that their negligence caused the explosion.

The question presented is whether the evidence is sufficient to prove that Jesco caused the explosion.

The standard to be applied to a motion for directed verdict is set forth in the Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

(T)he court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. (319 So.2d at 655).

See also, General Tire and Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969); Blackwell v. Dairymen, Inc., 369 So.2d 511 (Miss.1979). The plaintiffs testimony as to the cause of the explosion came from its expert, Emerson Venable, upon which testimony the plaintiffs case must stand with other direct testimony from other witnesses. The appellant asserts that Venable’s testimony is based upon speculation and supposition. Upon this proposition appellant relies upon Tombigbee Electric Power Ass’n v. Gandy, 62 So.2d 567 (Miss.1953), a case in which there was no direct evidence or reasonable inferences upon which negligence proximately contributed to the damage could be based. The Court in Tombig-bee, supra, held that inference upon inference could not support a judgment without evidence of a more explicit, direct, and satisfactory character.

In the case sub judice, direct evidence was introduced of (1) violations of the city fire code by Jesco welders; (2) presence of caked-on wheat inside the bin and smoldering within the bin; (3) welding into such caked-on wheat; (4) the giving off of hot slag and “BB’s” when welding into metal with an acetylene torch; (5) a vertical weld position; (6) a presence of dust within the bin and the building during the operation; (7) a containment of wheat within the welded bin; and (8) an explosion and secondary explosions.

The appellant’s assertion was that the expert’s testimony involved speculation and conjecture as to the cause of the explosion. This Court has held that whenever facts are in dispute, or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is allowed. City of Jackson v. Locklar, 431 So.2d 475 (Miss.1983).

The opinion of the expert Venable was supported by sufficient facts, which were not contrary to scientific principles or reason. Absolute certainty is not required for an expert witness. Gulf Insurance Co. v. Provine, 321 So.2d 311 (Miss.1975).

Applying the Paymaster test to these facts we hold that there was probative testimony with its reasonable inferences upon which to sustain a judgment should one be returned by the factfinder. The motion for a directed verdict was properly denied by the trial court as resting upon reasonable probabilities and not upon mere possibilities.

(2) Was it error to refuse to instruct the jury that they must believe that the explosion was caused in the manner described by Venable or find for the defendant?

The following instruction was proffered by the defendant:

Instruction DIO A
The court instructs the jury that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence in this case that in the cutting operation on the wheat bin by Jesco, Inc. welders that hot slag was thrown into the wheat bin, that there was a residue of grain in said bin and that said hot slag came to rest in said grain residue and smoldered until after said bin was put back in operation, that it then ignited a mixture of air and wheat dust in said bin, causing a relative minor explosion, that this explosion caused dust to fall down and spread to the first floor where some of the dust was drawn into the dryer where it was ignited; causing the fire ball and the major explosion; and if plaintiff has failed to meet such burden of proof, then your verdict must be for the defendant, Jesco, Inc.

The plaintiff objected asserting that his burden of proof was not correctly stated in that the plaintiff was not required to meet that great a standard. The court denied the instruction as being in conflict with one already granted having to do with circumstantial evidence.

The instruction, P-6, to which the trial judge referred is as follows:

The Court instructs the jury that in order to recover, the plaintiff is not required to show by direct evidence the exact source of ignition of the explosion at Sunshine Mills.
It is permissible for the plaintiff to introduce circumstantial evidence of the cause of the explosion, and if you can reasonably and legitimately infer from a preponderance of the evidence that the explosion was caused by the negligence of the defendant, Jesco, Inc., then you may find that the defendant, Jesco, Inc. was guilty of actionable negligence and if that negligence, if any, proximately caused or contributed to the explosion and resulting injuries of Robert Shannon, then you will find for the plaintiff, Robert Shannon.

The appellant’s argument here is that the instruction required the jury to either find from a preponderance of the evidence that the explosion was caused in the manner theorized by Venable, or find for the defendant.

The rule of law which the appellant attempts to apply here is that the defendant Jesco is entitled to have the jury instructed on its theory presented in defense of its case. Sipe v. Farmer, 398 So.2d 1325 (Miss.1981); Alley v. Praschak Machinery Co., 366 So.2d 661 (Miss.1979). However, the refused instruction D104A did not address the defense’s theory, but the plaintiff’s burden of proof. Therefore, such law is not applicable here.

Instruction DIO A, if granted, would have limited the jury’s reasoning to those inferences which were listed. Instruction P-6 properly limits the jury’s inferences to those which are reasonable and legitimate. Por these reasons, this Court holds that the trial court did not err by refusing defendant’s instruction 10A.

(3) Was it error to refuse defendant’s instruction regarding its theory of independent intervening cause?

Instruction D17-A proffered by the defendant reads as follows:

The court instructs the jury that a superseding cause is an independent and unforeseen act which follows the defendant’s negligence and which is the substantial factor in causing the plaintiff’s injuries. A superseding cause becomes the proximate cause for the plaintiff’s injuries, and the defendant’s negligence is a remote cause for which he is not liable. Even if you should find from a preponderance of the evidence in this case that the defendant was negligent in its welding, if you also find from a preponderance of the evidence that the explosion of the dryer was an independent and unforeseeable act following the negligent acts of Jesco, Inc. and was a substantial factor in causing the injuries suffered by Robert Otis Shannon, then defendant, Jesco, Inc. is not liable for his injuries, and you must find your verdict for the defendant.

The trial court refused this instruction on the ground that it was not justified by the factual situation.

The intervening cause instruction was proffered in light of Venable’s testimony that the gas dryers were dangerous and defective since they each lacked fire suppression devices. However, he concluded that although the devices would reduce the risk of fire, it would not necessarily prevent such an occurrence.

Jesco supports its argument with a long line of eases recognizing the doctrine of independent intervening cause in negligent actions. Saucier v. Walker, 203 So.2d 299 (Miss.1967); Louisville and N.R. Co. v. Daniel, 135 Miss. 33, 99 So. 434 (1924); Miss. City Lines v. Buelock, 194 Miss. 630, 13 So.2d 34 (1943).

The trial judge correctly concluded that factually, the doctrine was not applicable here. The independent action was described in Marqueze v. Sontheimer, 59 Miss. 430 (1882) as:

(T)hey are independent actors, and each is answerable for his own acts, because of the want of causal connection between the acts.

Assuming, as the instruction does, that the defendant was negligent, the cutting or welding put in motion a sequence of events which had not lost its identity and continuity when the injury occurred. Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192 (1933). Under the facts of this record the jury could have opted for any one of several alternatives as to what was the source of ignition.

Taking the instructions read as a whole the Court holds that the jury was properly informed and that no error was made by the trial judge.

(4) Was it error to allow the jury to view a video tape demonstrating burn treatment procedures?

The jury was allowed to watch a film of normal burn treatment procedures, but not depicting the treatment Shannon received. Prior to trial, a motion in limine was made by the defendant to exclude the film from evidence. The trial court permitted use of the film to describe normal burn treatment procedure and which was substantially the same treatment received by Shannon.

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

The introduction of photographs and motion pictures is a matter for the sound discretion of the trial court and that court is afforded wide latitude in exercising this discretion. Niles v. Sanders, 218 So.2d 428 (Miss.1969); Marr v. Nichols, 208 So.2d 770 (Miss.1968). See also, Butler v. Chrestman, 264 So.2d 812 (Miss. 1972).

In Butler, an 8 MM movie film which “depicted an agonizing period during (the plaintiff’s) recovery” was viewed by the jury as evidence of her pain and suffering. The Court reversed and remanded the case, holding that:

Where the only purpose of photographs is to influence and prejudice the jury they should be excluded, but where they visualize the injury at a stage subsequent to the accident, they may not be excluded solely because they may contain emotional overtones. Jensen v. South Adams County Water and Sanitation District, 149 Colo. 102, 368 P.2d 209 (1962), and Godvig v. Lopez, 185 Ore. 301, 202 (Id. at 816).

Caution again is stated to trial judges to preview such evidence to determine its probative value as against its prejudicial effects upon a jury.

The Court upholds here the trial court’s discretion, and does not find an abuse of that discretion in his decision on this point.

(5) Was it error to allow expert testimony that the plaintiff had suffered a total loss of future wage earning capacity when the proof did not support total disability?

The testimony of several witnesses is relevant to this issue. First, Robert Shannon was advised to return to work by Dr. Benton Hilbun, his personal physician. Shannon stated that he was unable to do so at that time. Second, Dr. Sandefur testified that Shannon had suffered a twenty percent permanent physical disability, while Dr. Goff testified that Shannon suffered a ten to fifteen percent physiological disability. Third, William Furr classified Shannon as being totally disabled for gainful employment in the general job market. Fourth, Shannon returned to work as a janitor at Sunshine Mills in November, 1980, and was working there at the time of the trial. Furr’s opinion was based on the special consideration Shannon received that would not be available in the general job market.

The testimony which was objected to was that of the economist, Paul Oliver, who testified that Shannon’s loss of earnings for the rest of his normal life was $562,-313.89, which should be discounted to its net present value ranging from $173,870.33 to $256,703.50.

This Court has previously held that regarding recovery for permanent loss of wage earning capacity that in order to recover for permanent loss of wage earning capacity, there must be a showing of permanent physical impairment. Casey v. Texas Gas Corp., 361 So.2d 498 (Miss. 1978); Walters v. Gilbert, 248 Miss. 77, 158 So.2d 43 (1963); Kincade and Loftin v. Stephens, 50 So.2d 587 (Miss.1951).

Such was shown of Shannon by two medical witnesses, one a surgeon, the other, a psychiatrist. A vocational rehabilitation expert testified that Shannon was totally disabled in the general job market. None of this testimony was objected to by the defendant, and factually this case falls within the stated principle. Defense counsel, through cross-examination, presented evidence of Shannon’s present wages to be at least as much as his past earning. This fact does not take into account, however, the factor of inflation.

The thrust of this assignment is directed toward Dr. Oliver’s testimony of total loss of wage earning capacity, when in fact, Shannon is working gainfully.

A similar question was addressed by the Wisconsin Court. In Kincannon v. National Indemnity Co., 5 Wis.2d 231, 92 N.W.2d 884 (1958), the plaintiff showed permanent disability through medical experts, but continued to work for the same employer at his pre-injury salary.

In affirming the jury verdict for the plaintiff, the Wisconsin Court acknowledged that:

While plaintiff’s employer had not reduced his salary of $800 per month, the jury could well believe that he would be unlikely to participate in future pay raises, and that the hazard of being discharged or receiving a cut in pay was greatly increased, The fact that the employer had been generous to date of trial does not negative an impairment in earning capacity. Earning capacity is related to capacity to do the work and earn the salary, and may be impaired materially although the employer generously continues to pay the old rate. Prunty v. Vandenberg, 257 Wis. 469, 480, 44 N.W.2d 246; Olk v. Marquardt, 203 Wis. 479, 486, 234 N.W. 723. (Id. at 236, 92 N.W.2d at 887).

Also, McIntire v. Wallace, 44 Abs. 626, 64 N.E.2d 66 (1945); Southwestern Freight Lines v. McConnell, 254 S.W.2d 422 (Tex. Civ.App.1952); City of Philadelphia v. Philadelphia Transp. Co., 400 Pa. 315, 162 A.2d 222 (1960).

We adopt the Wisconsin Court’s holding on admissability of impairment of earning capacity. Therefore, we find no error in the admission of Oliver’s testimony.

(6) Was it error to allow evidence of defendant’s net worth in the absence of evidence justifying an award of punitive damages?

Plaintiff’s attorney offered the balance sheet of Jesco Inc. into evidence. The balance sheet was objected to on the grounds that there had not been a sufficient case proven on punitive damages. The objection was overruled, and the balance sheet was admitted.

At this point, Greg Megginson, the vice-president of Jesco, was called to testify as an adverse witness. Megginson testified in front of the jury that Jesco’s net worth was $3,216,000. The jury was dismissed from the court room. The weekend recess was taken and when court resumed the following Monday, the Court made the following ruling:

JUDGE: ... I am going to change my ruling of Friday afternoon to this extent, I am going to have the balance sheet that has already been introduced held in abeyance, I am going to let this one be marked for identification and I am going to move on. I will decide at the end of all the evidence whether I am going to instruct the jury on the question of punitive damages or not and at that time if we need any clarification I will have time to think about it in the meantime, I will decide what is proper as far as any additional explanation is concerned....
It is in evidence but I am not going to let the jury see it until I make up my mind at the end of all the evidence as to whether to instruct the jury on punitive damages or not.

At the close of all evidence the trial judge reversed his prior ruling on punitive damages, and no financial statement was viewed by the jury. He was not asked nor did he, admonish the jury to disregard the verbal statement testified as to the net worth of Jesco. Defense counsel’s objection to the testimony, therefore, was sustained, and no punitive damage instruction was given. Other instructions on proper elements of damages were given.

No mistrial motion was sought by Jesco, and in the absence of such, no trial error is shown. Mars v. Hendon, 178 Miss. 157, 171 So. 880 (1937); Robertshaw Trustees v. Columbus & G. Ry. Co., 185 Miss. 717, 188 So. 308 (1939); U.S.F. & G. Co. v. Smith, 249 Miss. 837, 164 So.2d 462 (1964).

Jesco relies on Progressive Casualty Ins. Co. v. Keyes, 317 So.2d 396 (Miss. 1975), holding that evidence of its net worth was inadmissible where the jury was not warranted in awarding punitive damages. However, the case sub judice can be distinguished. In Progressive, the jury not only heard testimony of defendant’s net worth, but were actually instructed that they could consider punitive damages.

This error, if error at all, was harmless and does not constitute grounds for reversal.

The cross-appeal likewise addresses this issue on punitive damages and asserts that the punitive damage instruction should have been granted with the supporting evidence of net worth of Jesco.

Punitive damages are allowable upon proof of gross negligence or willful misconduct. Mississippi Power Co. v. Jones, 369 So.2d 1381 (Miss.1979); Fowler Butaine Gas Co. v. Varner, 141 So.2d 226, 244 Miss. 130 (1962).

The record here does not support a punitive damage instruction; therefore, the cross appeal is denied.

(7) The last assignment of error addresses the excessiveness of jury verdict of $1,024,268.00.

The standard of review for damages is set forth in pertinent part in Mississippi Code Annotated section 11-1-55 (Supp. 1972), as follows:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence ....

The above statutory standard for addressing additur or remittitur is whether the award by the factfinder was influenced by bias, prejudice, or passion, or contrary to the overwhelming weight of credible evidence. The same rule of law, above stated applicable to additur or remittitur, has been applied in determining if the amount of damages awarded is excessive. However, this Court in James Reeves, Contractor, Inc. v. Chain, 343 So.2d 1229 (Miss.1977), stated:

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

Therefore, the question for determination here is whether the award was so excessive to evince bias, passion or prejudice by the jury as to shock the conscience. Kinnard v. Martin, 223 So.2d 300 (Miss. 1969).

The excessiveness of damages and its application was discussed at length in one of this Court’s recent decisions, Woods v. Nichols, 416 So.2d 659, 670 (Miss.1982). Elements of damages discussed in Woods, supra include the degree of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage earning capacity, sex, age, plaintiffs state of health, loss of use of limbs, disfigurement or mutilation of the body, the impact of inflation and change in the purchasing power of money and cost of living. Citing:

Mobile & Ohio Railroad Co. v. Carpenter, 104 Miss. 706, 61 So. 693 (1913); Kinnard v. Martin, 223 So.2d 300 (Miss. 1964); the loss of use of limbs, Memphis & C.R.R. Company v. Whitfield, 44 Miss. 466 (1870); Grenada Dam Contractors v. Patterson, 48 So.2d 480 (1950); disfigurement or mutilation of the body, Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541 (1951); Rankin County v. Wallace, 230 Miss. 413, 92 So.2d 661 (1957); Jenkins v. Cogan, 238 Miss. 543, 119 So.2d 363 (1960); as to inflation, Kinnard v. Martin, 223 So.2d 300 (Miss. 1969) and Shaw v. Richardson, 392 So.2d 213 (Miss.1980); as to the purchasing power of money and the cost of living. Louisville & N.R.R. v. Williams, 183 Ala. 138, 62 So. 679 (1913); Annot., 12 A.L.R.2d 611, § 11 at 636 (1950); 22 Am. Jur.2d Damages §§ 87, 365 (1965).

In the case sub judice, the plaintiff offered into evidence proof to support many of these elements which were properly before the jury. Each suit for personal injury must be individually decided upon its particular facts. Woods, supra. Undeniably, this plaintiff sustained serious and permanent injuries.

In the Woods case, supra, this list of cases from other jurisdictions evidences an increase in jury verdicts in personal injury cases as:

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

Within our own jurisdiction recent judgments in elevated amounts reflect the same trend as in other parts of the country.

In view of the evidence of prior health and permanent injury in this record, and in deference to the role of the jury as the factfinder, this Court cannot hold that this verdict is so excessive as to evince bias, prejudice or passion on the part of the jury to shock the conscience. We affirm the verdict of $1,024,268.00.

We also affirm the trial court’s ruling on punitive damages.

AFFIRMED.

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

WALKER, P.J., and ROBERTSON, J., specially concur.

HAWKINS, J., not participating.

ROBERTSON, Justice,

specially concurring:

I concur wholly in the opinion for the Court authored by Justice Prather and in the result reached. I write briefly because this day we decide another case arising out of the December 22, 1977 explosion at Sunshine Mills. Jesco, Inc. v. Whitehead, 451 So.2d 706, 711-717 (Miss.1984).

In the Whitehead case I have filed a specially concurring opinion. I there commented upon the testimony of John Sims, a consulting engineer who was called in rebuttal by plaintiff Whitehead. Sims hinted at a theory regarding the cause of the explosion which pointed the finger at Jesco. In the Whitehead case I have written:

Second, we have the testimony of John Sims, a consulting engineer who was called in rebuttal by plaintiff. Sims was asked his opinion regarding the most likely place for the ignition to have occurred. Sims answer was:
The most likely place would be in the wheat bin itself. As the ground wheat is falling out of the hammermill, the most likely place we are going to see explosive mixtures of air and wheat dust are in the wheat bin itself.
The problem here is that Plaintiff let the matter drop at this point. Mr. Sims never spells out just how, in his expert opinion, the explosion could have begun in the wheat bin. Accordingly, standing alone, Mr. Sims’ theory (if we may call it that) is insufficient to sustain the verdict returned by the jury.
We thus have a second hypothesis, in and of itself too speculative and undeveloped to support the verdict, but nevertheless suggesting that Jesco is the culprit. Candidly, we regard the Sims “theory” as more sensible than that offered by P.J. Lawson. Indeed, if plaintiff had fully developed the Sims theory, it may well have been sufficient to sustain the verdict in his favor. 451 So.2d 706 at 712-713.

In the case at bar what is in essence the “Sims theory” was fully developed. This was done primarily via the expert testimony offered by Plaintiff Shannon through Emerson Venable. Because of this substantial improvement and the quality of the expert proof offered by Plaintiff Shannon vis-a-vis that offered by Plaintiff Whitehead, I concur in the Shannon case that the Circuit Court correctly overruled Jes-co’s alternative motions for a judgment notwithstanding the verdict and for a new trial.

WALKER, P.J., joins this opinion.


source: Caselaw Access Project

author: WALKER, Presiding Justice, BOWLING, Justice, ROBERTSON, Justice,

license: Public Domain

text:
    JESCO, INC. v. Gerald WHITEHEAD.
    No. 53833.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Rehearing Denied July 11, 1984.

      William M. Beasley, W.P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, Darden, Sumners, Carter & Trout, New Albany, for appellant.
    William S. Lawson, Tupelo, Talmadge Littlejohn, New Albany, Roseoe B. Hogan, William W. Smith, Birmingham, Ala., for appellee.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Lee County wherein the appellee, Gerald Whitehead, was awarded damages resulting from personal injuries received on December 22, 1977 when an explosion occurred in a grain mill operated by Sunshine Mills, Inc. (hereinafter referred to as Sunshine). Jesco, Inc. was an independent contractor performing work which required, among other things, welding on a grain conveyor and grain bin.

We reverse and remand for a new trial.

During the plaintiff’s case in chief the plaintiff attempted to prove through the testimony of an engineering expert, Phillip Lawson, that Jesco caused the explosion. The evidence presented by the plaintiff is largely uncontradicted except for the testimony of the experts. On December 22, 1977, an explosion occurred in the mill building operated by Sunshine. The four-story concrete building was being used by Sunshine to manufacture dog food at the time of the explosion. The first story of the building contained the main control panel for the production equipment. Also on the first floor of the mill building were the expander units, the weigh hopper for the mixer, and screw conveyors which feed grain into the weigh hopper. At the time of the explosion the conveyor lines had been turned on and were running. Plaintiff, Gerald Whitehead, was an employee of Sunshine. He was an expander operator and was approximately three or four feet away from the scales and mixing controls on the first floor at the time of the explosion.

For many years Jesco, a general contractor, had assisted Sunshine in building additions and making assorted alterations to the plant. On the day of the explosion Jesco employees were performing two separate jobs on the second floor of the building. Tommy May and Roger Hawkins had been assigned the task of building (cutting and welding) term spouts coming off the hopper of the grain bins. They had finished their work on two of the bins, the last having been completed at least thirty minutes before the explosion. Both bins were in full operation and grain had already refilled the bins above the area where the work had been performed. Jimmy Rick-man and Jerry Thompson were assembling a screw conveyor in the middle of the second floor area at the time of the explosion. In the process of assembling the screw conveyor, Jerry Thompson had used the acetylene cutting torch to cut two bolt holes.

Phillip Lawson, the plaintiffs industrial engineer and expert witness, inspected the explosion site five days after the explosion occurred. On the second floor, twelve to fifteen feet from the area where Thompson and Rickman were working on the screw conveyor, Lawson found a burned hole in an acetylene hose. On top of the hose was a piece of sheet metal. Based on the fact that he found the burned hose under the sheet metal, Lawson theorized: (a) that in the process of cutting the bolt holes it was necessary for Jerry Thompson to pull the hose taut; (b) that when he pulled the hose against the adjacent metal, the edge of the metal cut the hose; (c) that acetylene gas leaked from the hole and spewed directly into dust assumed to be lying on the floor blowing the dust into a thick cloud; (d) that the acetylene gas and dust cloud were ignited by an unknown source creating a small explosion in the southwest corner twelve to fifteen feet from Rickman and Thompson; (e) that the small explosion shook the entire building, stirring up grain dust; (f) that the flame front from the first explosion ignited the stirred-up dust cloud on the east side of the second floor, creating the second big explosion which caused the major damage and the burns suffered by the plaintiff.

The theory testified to by Phillip Lawson, Whitehead’s expert, was sharply contradicted by Jesco’s witnesses who were on the second floor when the explosion occurred. They .testified that the metal plates were not on the hose at the time of the explosion and that the explosion and fire did not originate on the second floor. They further testified that it was not necessary to pull the hose taut in order for them to perform their welding and cutting operations.

There was much evidence presented by Whitehead that Jesco had violated the Standard Fire Prevention Ordinance adopted by the City of Tupelo, which ordinance contained provisions directed toward the prevention of dust explosions. Whitehead charged and proved, inter alia, that Jesco had violated the City Ordinance by performing welding and cutting operations within thirty-five feet of combustible materials exposed to the operation; failed to have a fire watcher to watch for fires during the job and for thirty minutes after the welding and cutting operations were finished; welding or cutting in or near rooms or locations where flammable dust was present; and performing welding or cutting on a container which had contained flammable solids without cleaning, inert-ing, or purging same.

The question presented in this case is whether Whitehead proved by a preponderance of the evidence that Jesco’s negligence proximately contributed to the explosion and Whitehead’s resulting injuries and damages. The jury found that it did.

However, after a meticulous combing and studying of this record and the briefs of able counsel, we are of the opinion that the verdict is contrary to the overwhelming weight of the evidence and that the judgment in favor of Whitehead against Jesco should be and is hereby set aside and a new trial ordered. In doing so, we have considered the cases cited by appellant, Jesco, urging that the case be reversed and rendered as well as those cited by appellee, Whitehead, urging that the case be affirmed. In our opinion justice demands another trial.

In remanding the case, we feel it is necessary to comment on several of appellant’s assignments of error.

I.

The first question is whether the trial court erred in not instructing the jury that they must rely on the evidence presented by the plaintiff’s expert witness, Phillip Lawson, as to the cause of the explosion if the plaintiff was to recover.

The primary thrust of Whitehead’s case was that the hole in the acetylene hose line was caused by Jesco’s employees’ negligence and was the proximate cause of the explosion. However, it had been pled and there was presented to the jury throughout the case evidence that Jesco had violated several sections of the Ordinance of the City of Tupelo dealing with welding and cutting operations. Because of this evidence, we are unable to say that the trial court erred in refusing to grant Jesco’s instruction DJ9A and in granting Whitehead’s instruction P7 .

We do not find it necessary to comment on the testimony of Whitehead’s other expert, Sims, offered on rebuttal, as this will, in all probability not occur again upon retrial.

II.

It was error for Whitehead’s attorney to tell the jury in closing argument that all sums paid by the Workmen’s Compensation insuror must be repaid before the plaintiff could receive anything out of any sum awarded by them. See Merchants Co. v. Hutchinson, 199 So.2d 813 (Miss.1967).

III.

The court erred in granting the plaintiff an instruction, over defendant’s objection, which permitted the plaintiff Whitehead to recover for loss of future earnings without discounting the loss to its present worth.

Instruction P19 reads in pertinent part: Should your verdict be for Gerald Whitehead, you may consider the following factors in determining the amount of damages to be awarded as may be shown by a preponderance of the evidence: ... (6) Any future disability that is reasonably certain to occur, if any, its duration and its affect, if any, on Gerald Whitehead’s future earning capacity. In arriving at the amount of your award, if any, for any loss of future earnings, you should consider what Gerald Whitehead’s health, physical ability, age and earning power or capacity were before the injury and the effect of Gerald Whitehead’s injuries, if any, upon them.

Appellant contends it was error to grant said instruction without advising the jury that any award for loss of future earning should be discounted to its present net cash value. Cf. Sheffield v. Sheffield, 405 So.2d 1314 (Miss.1981). We agree.

The appellee admits it has long been the practice in this State to reduce lost future earnings to present net value; however, he asserts this method fails to account for inflation. He supports his contention by citing a Pennsylvania case, yet notes such is not binding in Mississippi.

The general rule as found in 22 Am. Jur.2d Damages section 96 states:

Thus, if the court, for this element of damages, awards a sum of money equal to the total decrease in plaintiff’s earning capacity without reduction to present worth, it is ignoring the fact that money has the power to earn money. Damages should therefore be reduced to reflect only the present value of the plaintiff’s decreased earning capacity. The plaintiff is not entitled to a sum of money, the interest on which compensates him for his decreased earning capacity, because this would leave the principal amount intact, resulting in over-compensation. The amount awarded should consider the use of both the principal and the interest as compensating for the decreased earning capacity. The goal of the personal injury award for this element of damages should be to give the plaintiff that sum of money which, if invested in reasonably safe investments, will return to the plaintiff the amount of the decrease in his earning capacity over the period of the injury if not permanent, .or, if permanent, over the period of his life (or, according to some courts, work) expectancy prior to the injury and—at the termination of that period—be reduced to no value.

With regard to appellee’s other contentions under this assignment, it was not necessary for Jesco to tender its own instruction after its specific objection to instruction P19 was overruled, nor did the granting of said instruction constitute harmless error as evidenced by the size of the award.

It is not necessary for us to address the remaining assignments of error in view of our holding that the case must be reversed and remanded for a new trial.

ON CROSS-APPEAL

The appellee, Whitehead, contends on cross-appeal that the trial court erred in refusing to instruct the jury that they could award punitive damages in addition to actual damages.

We find no merit in this contention. There is not a scintilla of evidence in this record that would support an award • of punitive damages.

For the above stated reasons, this cause is reversed and remanded for a new trial on direct appeal and affirmed on cross-appeal.

REVERSED AND REMANDED FOR A NEW TRIAL ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and PRATHER and ROBERTSON, JJ., concur.

ROBERTSON, J., specially concurs.

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

HAWKINS, J., not participating.

BOWLING, Justice,

dissenting:

This probably should not be called a dissent. I think, however, that justice requires that I call the attention of the bench and bar to the situation existing between the case sub judice and a companion case being published this date. [Jesco, Inc. v. Shannon, 451 So.2d 694, both Whitehead and Shannon were employees of Sunshine Mills, working in the same vicinity in the mill. They were both horribly injured by the exact same set of circumstances at identically the same time. Nothing was different in the cause of the explosion. It was an explosion with one cause, the same as pulling the trigger of a gun and firing one shell or bullet that struck two people.

Something appears to me to be amiss when a judgment for one of the men is affirmed and the judgment for the other is reversed.

To me this is similar to a hypothetical as follows:

Assuming that John Doe and Richard Roe were riding in the back seat of a car. The driver in some manner ran off the road and hit a tree. One witness stated that in his opinion the speed of the car caused it to leave the road. The other witnesses stated that it was because the driver was not keeping a proper lookout — he was watching someone else on the sidewalk. The inescapable conclusion was that there was only one set of facts and everything involved was identical regardless of the opinion of the two witnesses. Something seems to be amiss with our judicial system then, if John Doe received compensation and Richard Roe did not.

We are affirming the case of Jesco, Inc. v. Shannon, an action with which I fully agree. We have no choice other than so to do as explained by Justice Prather in her opinion. We are reversing the case of Mr. Whitehead, who was seriously injured as previously stated in the exact same incident with no difference whatever in the facts as related in the hypothetical car accident above. I reiterate that this situation causes my eye-brows to raise and wonder how such a situation can develop under our legal jurisprudence. As we are affirming Shannon, I think it is the law of the case [or the incident] and Whitehead likewise should be affirmed.

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

ROBERTSON, Justice,

specially concurring:

I.

After considerable study, research and reflection, I concur in the judgment announced today.

Today we vacate what I understand to be the largest personal injury jury verdict and judgment in the history of the Courts of this State. Being aware of the importance of the case, the members of the Court to my certain knowledge have given it great care and attention. I personally know that my colleague, Presiding Justice Walker, who writes for the Court, has given the case long and intensive study. If anything, Justice Walker has gone the extra mile to assure that all facets of the case have been considered fairly and fully, not only by himself but by all other members of the Court.

I write separately not out of any reservation about the judgment reached but because, in my view, more need be said.

II.

The majority opinion provides a fair summary of the facts. Additional commentary, I believe, may make clearer the basis for today’s decision.

From the evidence we know several things with certainty. An explosion did occur in the grain mill operated by Sunshine Mills. Gerald Whitehead received horrible and disabling personal injuries as a direct and proximate result of the expíosion. There is no evidence that Whitehead did anything which caused the explosion or his injuries; indeed, no one has even suggested such.

Elementary laws of physics posit three requisites for an explosion: (1) a combustible mixture, (2) containment, and (3) a source of ignition. Because we know that the explosion did occur, we know that it had some source of ignition. This source of ignition necessarily must have been attributable to the act(s) or omission(s) of some person or persons. Under the evidence before us, we know with reasonable certainty that this culprit or culprits must have been an agent(s) or an employee(s) of either Sunshine Mills, Inc. or of Jesco, Inc. Our search, de jure as well as de facto, for the igniting culprit narrows to two parties — Sunshine or Jesco. There was in law no Act of God here.

Our analysis to this point puts the case in an Eenie-Meanie-Minie-Mo posture. Was it Sunshine or was it Jesco? If the evidence fails to provide the contours of an answer, judgment must be entered for Jesco notwithstanding the verdict of the jury. We accordingly search the record for evidence and physical facts which make it more probable that Jesco was the culprit than Sunshine?

We regard four factors as being of critical importance here.

First, Plaintiff Whitehead offered at trial P.J. Lawson, an industrial engineer and expert witness. Justice Walker’s opinion has outlined Mr. Lawson’s hypothesis regarding causation. As that opinion makes clear, the Lawson theory is based upon a pyramiding, one upon the other, of six inferences, no one of which was proved directly. I regard this testimony as wholly insufficient to sustain a verdict for Whitehead. I accept without hesitation that “a measure of speculation and conjecture is required” in most judicial fact determinations. City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983). Mr. Lawson’s theory, standing alone, contains much too much speculation and conjecture to support the verdict.

On the other hand, the Lawson theory is not wholly worthless. It is a possibility. The explosion could have happened as Lawson hypothesized. We find no credible evidence in the record establishing that the Lawson theory was a physical impossibility-

Second, we have the testimony of John Sims, a consulting engineer who was called in rebuttal by plaintiff. Sims was asked his opinion regarding the most likely place for the ignition to have occurred. Sims answer was:

The most likely place would be in the wheat bin itself. As the ground wheat is falling out of the hammermill, the most likely place we are going to see explosive mixtures of air and wheat dust are in the wheat bin itself.

The problem here is that Plaintiff let the matter drop at this point. Mr. Sims never spells out just how, in his expert opinion, the explosion could have begun in the wheat bin. Accordingly, standing alone, Mr. Sims’ theory (if we may call it that) is insufficient to sustain the verdict returned by the jury.

On the other hand, we know from other testimony that just prior to the explosion Jesco employees had been welding on the wheat bin. Welding necessarily involves the release of sparks and other extremely hot matter which are capable of smoldering and then igniting. Without speculating exactly how the ignition may have occurred, we know that, if the explosion occurred in the wheat bin itself (as could have happened), on these facts the culprit almost certainly was Jesco. Sunshine employees did nothing on the day in question or at any other time which may have provided a source of ignition in the area of the wheat bin itself.

We thus have a second hypothesis, in and of itself too speculative and undeveloped to support the verdict, but nevertheless suggesting that Jesco is the culprit. Candidly, we regard the Sims “theory” as more sensible than that offered by P.J. Lawson. Indeed, if plaintiff had fully developed the Sims theory, it may well have been sufficient to sustain the verdict in his favor.

The third factor we regard as significant is that the explosion did occur. And, as we have explained above, it must have been caused either by Sunshine or by Jesco. This cannot be overemphasized. We begin our consideration of the experts’ theories knowing that either Sunshine or Jesco is the culprit. Without any expert testimony we know that (statistically speaking) there is a fifty-fifty chance that Jesco caused the explosion. When we add to this fifty-fifty balance the Lawson possibility and the Sims reasonable suggestion, the finger of fate begins to point ever so perceptibly toward Jesco.

Fourth, we cannot ignore the practical realities of litigating in the debris of the explosion of December 22, 1977. Rules of law regarding proof of negligence and causation have little discernible meaning in a vacuum. If they are to serve as instruments of justice — and for that purpose they have surely been designed — they must regard the practical realities of the tragedies of life to which they are to be applied.

With an explosion and resulting destruction such as that with which we are concerned here, it would be amazing if anyone could establish with certainty what caused it to happen. We know that Gerald Whitehead is innocent. Although under our law we quite properly require that a plaintiff such as Whitehead prove by a preponderance of the evidence that the defendant’s negligence proximately caused his injuries, we allow the jury to consider a measure of speculation and conjecture even in automobile accident cases. See City of Jackson v. Locklar, supra, 431 So.2d at 478. The quality of speculation and conjecture allowable varies with the nature of the occurrence.

With the evidence in proper context, we turn to the issues before the Court.

III.

Following the jury’s verdict, Jesco, Inc. timely filed a motion for j.n.o.v., or, in the alternative, for a new trial. Upon the denial of these motions by the circuit court, Jesco has perfected this appeal.

In its briefs and again at oral argument, Jesco’s primary position is that it is entitled to judgment in its favor as a matter of law notwithstanding the verdict of the jury. In holding that a new trial should be held, the majority necessarily rejects this first of Jesco’s assignments of error. En route to this action I would have preferred it had the majority set forth clearly the distinction between a motion j.n.o.v. and a motion for a new trial. See, e.g., New Orleans and Northern Railroad Co. v. Burney, 248 Miss. 290, 299-300, 159 So.2d 85 (1963). Such in my view is necessary in order that the action we take today may be articulated on a reasoned basis and, hopefully, be so understood by the parties, the trial court, and other interested persons.

The motion for j.n.o.v. tests the legal sufficiency of the evidence supporting the verdict. It asks the Court to hold, as a matter of law, that the verdict may not stand. Where a motion for j.n.o.v. has been made, the trial court must consider all of the evidence — not just evidence which supports the non-movant’s case — in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury’s verdict allowed to stand. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).

The motion for a new trial is an altogether different animal. While a motion for judgment notwithstanding the verdict presents to the Court a pure question of law, the motion for a new trial is addressed to the trial court’s sound discretion. That as a matter of law the motion for judgment notwithstanding the verdict must be overruled and denied in no way affects and little informs the trial judge regarding his disposition of the motion for a new trial. Indeed, cases are hardly unfamiliar wherein the Court holds that the evidence is sufficient so that one party or the other was not entitled to judgment notwithstanding the verdict, but, nevertheless, that a new trial in the interest of justice should be ordered. See, e.g., Larkin v. Perry, 427 So.2d 138 (Miss.1983).

A greater quantum of evidence favoring the party against whom the motion is made is necessary for that party to withstand a motion for a new trial as distinguished from a motion for j.n.o.v. Under our established case law, the trial judge should set aside a jury’s verdict when, in the exercise of his sound discretion, he is convinced that the verdict is contrary to the substantial weight of the evidence. Mobile and Ohio Railroad Co. v. Bennett, 127 Miss. 413, 415, 90 So. 113 (1921); Columbus and Greenville Railway Co. v. Buford, 150 Miss. 832, 840, 116 So. 817 (1928); Odier v. Sumrall, 353 So.2d 1370, 1374 (Miss.1978); Cf. Rule 5.16(2), Miss. Uniform Cr.R. of Cir.Ct. Practice. This is so even though he may have denied the motion for j.n.o.v. There is no inconsistency between a holding by the trial judge, first, that there is evidence in support of the verdict sufficient to require denial of the motion for j.n.o.v., while at the same time holding that the verdict is against the substantial weight of the evidence so that justice requires a new trial.

Having well in mind the distinction between the two motions — and particularly having in mind the Paymaster Oil standard elaborated above, I would affirm the trial court’s judgment insofar as it denies Jesco’s motion for j.n.o.v. The four factors mentioned above — the P.J. Lawson theory, the Sims theory, the inferences arising from the almost overlooked fact that this explosion did occur, coupled with the practical realities of reconstructing such an incident — point the finger perceptibly and adequately at Jesco. The evidence taken as a whole is not so overwhelming and one-sided that we can say with confidence that no hypothetical reasonable juror could, under our familiar test, find for Whitehead on liability.

IV

Whether Jesco is entitled to a new trial is another matter. Here we face the question traditionally phrased as whether the trial judge abused his discretion in refusing to hold that the verdict returned by the jury was on the liability issue contrary to the substantial weight of the evidence. Through the following process, I would answer in the affirmative and, accordingly, join in the opinion of the majority.

I begin with an awareness that consideration of questions such as this must be had against the backdrop of constitutional mandate, for we find it provided in the fundamental law of our state that “the right of trial by jury shall remain inviolate, ...” Miss. Const. (1890) Art. 3, § 31. Beyond that, the legislature has enacted that all questions of negligence and contributory negligence shall be for the jury to determine. Miss.Code Ann. § 11-7-17 (1972).

Neither constitution nor statute, however, have ever been considered to deny the trial courts of this state, and this Court on appeal, the authority to set aside jury verdicts on terms and grounds which were available at common law. In Beard v. Williams, 172 Miss. 880, 161 So. 750 (1935), we articulated the point:

We are conscious of the fact that the verdict of a jury is to be given great weight, and is the best means, when fair, of settling disputed questions of fact. Nevertheless, throughout the entire history of jury trials, the courts have exercised a supervisory power over them, and have granted new trials whenever convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced. The duty of the court in supervising trials by jury is such a vital part thereof that no court may refuse to exercise such power whenever fully convinced of its duty so to do. 172 Miss, at 884, 161 So. at 751.

A new trial does not deprive a litigant of his right to trial by jury. It merely requires that he submit to trial before a second jury.

Without going into an extended historical analysis, we regard it as accepted law that our trial courts have the authority to set aside a jury verdict, where, in the exercise of their sound discretion, they regard such a verdict as being contrary to the substantial weight of the evidence. See Rule 59(a)(1), Miss.R.Civ.P.; Cf. Rule 5.16(2), Miss. Uniform Cr.R. of Cir.Ct. Practice.

However much the trial of this or any other action ought to be a search for the truth, in the real world this cannot be. That we will never know the truth of what happened on December 22, 1977 I accept, though I do not like it.

The end of our litigation process must nevertheless be justice. That end is furthered when we apply to the facts demonstrably fair rules regulating primary private activity and providing remedies for civil injuries. That end is likewise furthered when the process is fair. Indeed, it may be argued that procedural fairness is the single most important component of justice in civil litigation.

The motion for a new trial has long been an element of our procedural system. We regard it as a necessary component of procedural justice in civil actions. It is employed in those rare cases when there would be injustice either in allowing the verdict to stand or in granting a j.n.o.v.

What is troublesome is that we tend to ignore that there must be some neutral, objective criteria which the trial judge must consider in determining whether this is one of those rare cases where a new trial, with all of its attendant trauma, delay, and expense, should be ordered. To be sure, no mechanical formula can be devised, nor should one be attempted. The twilight zone between granting a j.n.o.v. and allowing the verdict to stand is of imprecise contours, is filled with shades of gray. That it is difficult of identification in no way suggests that we be less than diligent in our attempts to delineate its boundaries or in our recognition of specific cases found well within those boundaries.

We ought not be content with such elusive formulations as “against the substantial weight of the evidence” or “against the overwhelming weight of the evidence”. Such notions are empty vessels into which one may pour any content.

When passing on a motion for a new trial (after having denied-a motion for j.n.o.v.), the trial judge should consider and weigh a number of factors. Among these are:

(1) Has the search for the true facts proceeded as far as it reasonably may under the peculiar facts and circumstances of the case? That the evidence supporting the verdict is incomplete and undeveloped, given what is reasonably practicable under the circumstances, should be a factor tending to support granting a new trial. On the other hand, if there is no reason to expect that the parties can unmask the truth further at a new trial, the motion often should be denied.

(2) To what extent would it be unfair to the party in whose favor the verdict was returned in effect to give that party’s adversary a second bite at the apple? A trial is'a traumatic, expensive and time-consuming experience. Cf. Magee v. Griffin, 345 So.2d 1027, 1032 (Miss.1977). Having successfully weathered its slings and arrows, a litigant has a substantial and legitimate interest that he will not be subjected to a repeat performance.

(3) Considering the evidence, is there a substantial basis for believing that the jury disregarded their oaths and failed to follow the instructions of the Court in reaching its verdict? Put another way, is it substantially apparent that the jury’s verdict is the product of passion, prejudice or any other arbitrary factor? Most emphatically the trial judge should not have to think in terms of how he would have voted had he been a member of the jury. Rather he should consider whether it is substantially likely, considering the verdict in the light of the evidence, that the jurors did not fairly find the facts or apply the law.

(4) Assuming arguendo that the verdict is unjust (by reference to the underlying facts of the transaction or occurrence, the complete truth of which we will never know), what is the impact of that “injustice” upon the party against whom the verdict has been returned? Where that impact would be substantial, in view of an individualized consideration of the parties and the case, that should be a factor militating in favor of a new trial, and vice versa.

(5) If a new trial is ordered, will the party in whose favor the verdict has been returned be deprived of some fair advantage he enjoyed in the first trial? For example, if as here the verdict was for the plaintiff and if following the first trial a key witness has died, that may be a factor militating against ordering a new trial.

(6)Are there any other factors present, peculiar to the particular case or the parties, that would render just or unjust the grant or denial of a new trial?

When these factors are considered and weighed in the context of the case at bar, I regard it as an abuse of discretion that the trial judge did not grant Jesco’s motion for a new trial.

The evidence on causation is unsettlingly incomplete. The Lawson theory and the Sims theory are seemingly at odds. Jesco persuasively pointed the finger at Sunshine through its own expert witnesses. Though there is not enough speculation and conjecture present to justify a j.n.o.v., there is too much to allow the verdict to stand. The enormity of the injustice to Jesco from an “incorrect” verdict is obvious.

To be sure Whitehead must endure another trial (although surely a pre-trial settlement is a reasonable possibility). We are not aware of any fair advantage he enjoyed at the first trial that would not be equally available at a new trial. No doubt the memory of witnesses may dim with time. With the available transcripts and discovery (from this trial and others within the judicial knowledge of this Court), refreshing the witnesses’ memories for another trial should not be a significant problem.

On balance, I regard this as one of those clear cases in which a new trial most certainly should have been ordered.

V.

By today’s judgment we have ordered a new trial. The trial judge erred in his failure to order a new trial. While the rules regarding the trial judge’s discretion and authority are well-established, the point on appeal is a bit trickier. We sit as an appellate court, not as a trial court. We do not consider these matters de novo. Rather, our review is limited to an inquiry whether the ruling of the trial judge may be fairly characterized as an abuse of discretion. See Dorris v. Carr, 330 So.2d 872, 873-74 (Miss.1976); Taylor v. Washington Terminal Co., 409 F.2d 145, 147-48 (D.C.Cir.1969); Dupont v. Southern Pacific Co., 366 F.2d 193, 198 (5th Cir.1966); Morinville v. Morinville, 116 R.I. 507, 359 A.2d 48, 52-54 (1976).

Our review of a trial judge’s exercise of discretion necessarily involves a substantial amount of discretion — and deference — on our part. In matters such as these we must always recognize that it is the trial judge who is on the scene. There is no way we could ever become as familiar with the proceedings at trial as the trial judge. Cf. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). We should give substantial weight, deference and respect to the decision of the trial judge in matters such as this.

On the other hand, we do not regard that we have the option of declining altogether review of the order of a trial judge denying a motion for a new trial. Such a position would be wholly inconsistent with our responsibilities as the court of last resort in this State. Where under all of the facts and circumstances of the case we are convinced clearly that the interest of justice requires a new trial and where we are further convinced clearly that the trial judge has abused his discretion in his refusal to grant a new trial, it becomes our duty to intervene. This, in my judgment, is the situation we have here.

VI.

In the end I candidly confess that subjective judgment cannot be excised from the inquiry we have here confronted. This is true when we consider the propriety of denial of judgment notwithstanding the verdict. It is certainly true in our review for abuse of discretion of the trial judge’s denial of Jesco’s motion for a new trial.

In cases such as this we make a judgment call. It will be ever thus. I only hope that the judgment call we make this day will be seen as having been as. principled and unbiased as we have tried to make it.

My confession made, I concur

(a) that the Circuit Court correctly overruled Jesco’s motion for judgment notwithstanding the verdict,

(b) that the Circuit Court’s refusal to grant Jesco’s alternative motion for a new trial constitutes an abuse of discretion, and

(c) that the judgment of the Circuit Court should be reversed and the case remanded for a new trial.

      . The court instructs the jury that you cannot return a verdict against the defendant, Jesco, Inc., on the basis of their actions in connection with welding on the corn bin and wheat bin.

      . The court instructs the jury that at the time of the explosion at Sunshine Mills, the City of Tupelo had adopted by ordinance a Standard Fire Prevention Code, which contained provisions for the prevention of dust explosions, and also prescribed safety procedures for welding operations.
      If you believe from a preponderance of the evidence presented in this case, that the defendant, Jesco, Inc., in conducting its welding operations at Sunshine Mills, violated the Standard Fire Prevention Code, by performing welding or cutting operations within 35 feet of combustible material exposed to the operation; failing to have a fire watcher to watch for fires during the job and at least 30 minutes after the welding or cutting operation is finished; welding or cutting in or near rooms or location where flammable dust is present; performing welding or cutting on a container which has contained flammable solids without cleaning, inerting, or purging same. And if you believe the aforesaid violations of this Code is such there were proximately caused or contributed to the injuries sustained by Gerald Whitehead, then the defendant Jesco, Inc., is guilty of actionable negligence and you shall so find.

      . This distinction' has been procedurally codified in the Mississippi Rules of Civil Procedure. The motion for j.n.o.v. is covered by Rule 50(b), while the motion for a new trial is authorized in Rule 59.

      . The motion for a directed verdict at the conclusion of one’s adversary’s case, as well as the request for a peremptory instruction, serve a similar office.

      . Conversely, where the motion for j.n.o.v. should be granted, the trial judge generally should conditionally grant a new trial. See Larkin v. Perry, 427 So.2d 138 (Miss.1983).

      . There are numerous other established bases on which new trials may be ordered. These include newly discovered evidence, trial errors in evidentiary rulings, errors in instructing the jury and no doubt many more. We are here concerned only with the motions grounded on the premise that the verdict is contrary to the substantial weight of the evidence.

      . Professor Maurice Rosenberg has provided us with an insightful consideration of the entire subject of appellate review of trial court discretion. Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173 (1979); compare Dworkin, Taking Rights Seriously 31-39 (1977). In making this determination, we consider the same factors that a trial judge would when deciding whether to grant a new trial. It is merely our power to overturn his judgment, as limited by our scope of review, that is more restrictive.


text:
    Winston W. CARPENTER v. Dianna P. LESTER and Danny Lester.
    No. 54803.
    Supreme Court of Mississippi.
    April 18, 1984.
    Rehearing Denied July 11, 1984.
    Edwin W. Tindall, Lake, Tindall, Hunger & Thackston, Greenville, for appellant.
    G. Kenner Ellis, Jr., Greenville, for appel-lees.
   Appeal from Circuit Court, Washington County; Gray Evans, Judge.

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

AFFIRMED.


text:
    Jacob Bruce RUSSELL v. Antoinette Massa RUSSELL.
    No. 54199.
    Supreme Court of Mississippi.
    May 2, 1984.
    Rehearing Denied July 11, 1984.
    Larry L. Lenoir, Gulfport, for appellant.
    Harry P. Hewes, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

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

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, DAN M. LEE, PRATHER and SULLIVAN, JJ.


author: PATTERSON, Chief Justice

text:
    Eddie Lee WILSON v. STATE of Mississippi.
    No. 54826.
    Supreme Court of Mississippi.
    May 9, 1984.
    See also 451 So.2d 724, 426 So.2d 792.

      Carroll Rhodes, Hazlehurst, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice

for the Court:

Eddie Lee Wilson was tried in the Circuit Court of Copiah County on a charge of attempted rape. The jury returned a verdict of guilty, and the court imposed a sentence of ten years in the custody of the Mississippi Department of Corrections.

Wilson appeals, assigning as error that the trial court:

I. Overruled defendant’s motion to suppress his statement.

II. Refused to admit the entire medical record of the defendant.

III. Overruled defendant’s motion to suppress identification testimony.

IV. Denied defendant’s motion for mistrial when the state allegedly buttressed the in-court identification testimony of the prosecutrix.

V. Denied defendant’s requested instructions.

VI. Granted the state’s requested instructions.

Further, Wilson argues the verdict was against the overwhelming weight of the evidence and was the result of bias, prejudice and passion.

On December 30, 1977, two men entered a grocery store owned by the prosecutrix and her husband. The prosecutrix was alone in the store. Suddenly one of the men darted behind the counter where the prosecutrix was standing and grasped her arms from the back while his accomplice stood in front of the counter and pointed a gun at her. The assailant who was standing behind her then took the money from the cash register and put it into his pockets. He again seized the back of the prose-cutrix’s arms and led her to the back door of the store. She complied with his order to remove the bolt, and he forced her outside. She testified that at that point

... he turned and faced me and grabbed at me and said: “Don’t you want to * * me?” and then took his hand and rammed it down in my pants and rammed his finger into my vagina. Then out the back, I was trying to kind of move a little bit and he would bring me back this way, then pull me back over this way. Then he started taking me out toward my garden fence. ...
She testified further,
He got over that fence and was trying to pull me through, and I caught that top barbed wire fence and I was just holding to it.... I did not want to be pulled through there. I did not know what he might do to me. I was hoping I would get a chance to get away. Well, in a few seconds, he did turn loose, and he went running all out through my garden. (R. 286-87)

Wilson and Wells were arrested in Claiborne County on Saturday, January 7, 1978.

Confined in the Copiah County Jail on charges of robbery and attempted rape, Wilson notified Sheriff Earl Guess on January 8 that he wished to give a statement. Wilson was then brought into the sheriff’s office where Guess advised him of his Miranda rights. Having stated that he understood these rights, Wilson gave an oral statement in the presence of Guess and his secretary, Janice Pitts. Deputy Sheriff Thomas Way made intermittent appearances during the taking of the statement.

After Wilson concluded, Ms. Pitts typed the statement from her shorthand notes. Since Wilson professed difficulty reading, Guess read the statement to him. Wilson then signed the statement.

After a hearing on the issue, the court ruled the statement was freely and voluntarily given after the defendant had been advised of his constitutional rights and had made an effective waiver thereof. The motion to suppress was therefore overruled and the statement was admitted into evidence as set out below:

My name is Eddie Lee Wilson and I am 21 years old and I live at Rt. 2, Box 18, Patterson, MS. On December 30, I left Port Gibson with Lafayette Wells and Larry Appeleton and went to Barlow down 547 turned off at Thetford’s Store. Then we went to Mr. Dixon’s store and went up that lil ole road and by-pased the store twice and we stopped. Then Larry asked Lafayette what we were fixing to do and Lafayette said we fixing to hit the store. And Larry said wait just a minute. Larry said let me go up the road and turn around and come back to the store and get some gas and when we come back to the store Lafayette said lets go in the store and I went in and got a bag of Skins and she asked us did we want any gas and I told her no’m and I went back out and Lafayette nodded his head at me to go into the store and then when he nodded his head at me both of us went back in the store. When we went in the store, Lafayette had his hood down over his head in his mouth and said hold it lady, this is a holdup. So I say you better do what he says and she said what you want. Lafayette said the money. Lafayette said get the money man and she pulled the cash register open and then I said this all whats in the cash register. I got everything in the cash register and he say some more, some more. She say its in the third drawer and I pull the drawer open and get the money and Lafayette said lets go out the back way. I grabbed the lady going to the back. When I caught hold of her and she said what you fixing to do now? I say we going out the back way so when we got to the back door we went out the back. Me and her went around to the other side and I see somebody in a pickup and I run back on the on the other side and I looked and did not see anybody. Then so I broke through the fence and I was still pulling on her and I fell on the fence and then when I got up I was going through the fence and I turned her arm aloose. I went around 3 fences after then and came out into a road and Lafayette and Larry Appleton picked me up down the road by a church. We got back to Lafayette’s house and split the money up. I got $430.00. When we split the money we went to a place called Tillman. And thats the way it happened. (R. 352-A & B)

Wilson now argues the court’s ruling was error.

The record shows Ms. Pitts, Deputy Way and Sheriff Guess testified that Wilson was not induced to make the statement by any threats, promises, coercion or abuse. Further, Deputy Sheriff Onnie Bell Sellers, who was called in to witness Wilson’s signature, testified that no threats, promises, coercion or abuse were used to induce Wilson to sign the statement.

To rebut this evidence Wilson relies on the testimony of Dr. John Long, who stated Wilson came into his office on January 12 complaining of dizziness and headache. Dr. Long testified that Wilson told him he (Wilson) had been beaten at the jail the previous Sunday evening. Long admitted Wilson to the hospital and treated him for a contusion to the head and suspected skull fracture. By the time Wilson was discharged on January 19, Long’s diagnosis had changed to “probable cerebral concussion but no skull fracture.”

While this testimony may arouse some suspicion as to the cause of the injury, we emphasize there is absolutely no evidence connecting it with the statement given on January 8. Wilson had the opportunity to take the stand outside the presence of the jury and make that connection, yet he declined to do so. At the hearing on the motion to suppress the statement, the defense called only Dr. Long and therefore proved only that Wilson did sustain a head injury. To the contrary, Sheriff Guess testified a woman claiming to be Wilson’s mother had come to the jail after Wilson’s arrest and informed Guess that Wilson had suffered a head injury inflicted by a falling tree. We are of the opinion there is insufficient testimony to bridge the gap between the injury and the statement and to thereby rebut the testimony of the law enforcement officers and Ms. Pitts that Wilson was not coerced into making the statement. Any other holding would be rooted in mere conjecture in our opinion.

Wilson next argues the trial court improperly excluded from evidence those portions of his medical record which contained Wilson’s assertions that his injuries were the result of a beating sustained at the jail.

In Shorter v. State, 257 So.2d 236, 240 (Miss.1972), we held, “It is a general rule that declarations of a party in his own favor are not admissible in his behalf.” The reason for this exclusion is stated in 2 Wharton’s Criminal Evidence, § 303 (13th ed. 1972):

A declaration made by a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution, is not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its testimonial trustworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.

We are of the opinion the statement by Wilson to Dr. Long that Wilson’s injury was the result of a beating at the jail was a self-serving declaration and therefore properly excluded. In reaching this conclusion we are mindful of Cone v. State, 271 So.2d 453 (Miss.1973), wherein we held the trial court improperly excluded certain statements made by the defendant before his arrest. However, that case turned on facts which are not present here.

In Cone, defendant was convicted for possession of marijuana after officers found contraband in the dormitory room defendant shared with Christopher Linken-hoker. At Cone’s trial, the jury was not allowed to hear the following testimony of the dormitory proctor:

A. Well Jim [Cone] came to me one night and he asked if he could talk to me, and I said all right, and he said he thought Chris [Linkenhoker] might have had some form of drugs or narcotics in the room, and I said all right, then I’ll talk to him; and in the meantime, it bugged me because it’s part of my job to try not to let these things get in there, and I went and spoke with Mr. Oubre about it.
271 So.2d at 455.

We reversed, stating, “We do not feel that the statement of Cone to McKay, the proctor of the second floor of Scott Hall, was a self-serving declaration within the usual and real meaning of that term. It was not a statement of Cone about himself or in his own interest.” 271 So.2d at 455. We based this holding in part on the fact that at the time they were made, Cone’s statements were not self-serving: we could not conceive that Cone would invite a search of his room while he prepared to deal in drugs from that room. In short, Cone’s statements were made well before his arrest, well before he could have foreseen a need to fabricate evidence favorable to him. Therefore the “testimonial trustworthiness” rationale did not apply.

To the contrary, Wilson’s statement to the doctor was made after Wilson’s arrest, after he had made a confession. Unlike Cone’s statement, Wilson’s declaration was self-serving at the time it was made. We are therefore of the opinion it was properly excluded.

We next consider the overruling of Wilson’s motion to suppress the lineup identification of Wilson by the prosecutrix. Wilson contends this was error for two reasons.

He first argues he was improperly denied counsel during the proceedings. We are of the opinion the following language from Bankston v. State, 391 So.2d 1005 (Miss.1980), disposes of this contention:

... In the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and its companion case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held that a pretrial corporeal identification conducted after a suspect was indicted was a critical stage in a criminal prosecution to which the sixth amendment right to counsel applied. In Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877 [1882], 32 L.Ed.2d 411 (1972), the Court made it clear that the right to counsel attaches only “at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” ...
This Court has held consistently that the right to counsel does not extend to preindictment lineups. Scott v. State, 359 So.2d 1355 (Miss.1978); Fells v. State, 345 So.2d 618 (Miss.1977); Cox v. State, 326 So.2d 794 (Miss.1976).
391 So.2d at 1007.

Therefore the first prong of Wilson’s argument is without merit.

Secondly, Wilson asserts the lineup procedure was suggestive and therefore led to an irreparably mistaken identification. He bases this argument on the fact that he (Wilson) was taller and darker complexioned than anyone else in the lineup and further, that he was the only man with a beard.

Again, we find the appropriate analysis in Bankston v. State:

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that even if the pretrial identification procedure had been unnecessarily suggestive the identification did not have to be excluded if upon consideration of the totality of the circumstances there was no substantial likelihood of misidentification. The Court set out five factors to be used in analyzing the totality of circumstances. These factors include:
(1) The opportunity of the witness to view the criminal at the time of the crime;
(2) The witness’s degree of attention;
(3) The accuracy of his prior description of the criminal;
(4) The level of certainty demonstrated at the confrontation; and
(5) The time between the crime and the confrontation.
[Manson v. Brathwaite ], 432 U.S. [98] at 110-14, 97 S.Ct. [2243] at 2250-53, 53 L.Ed.2d [140] at 151, 153, 154 [1977].
391 So.2d at 1008.

Directing these factors to the facts in this case, we conclude:

(1) The prosecutrix had ample opportunity to view Wilson for 20 to 25 minutes during the commission of the crime. She testified she looked at his face while he was taking the money and again while they were standing outside the store in the sunlight.

(2) The prosecutrix testified that she purposefully scrutinized Wilson because she wanted to be able to remember his face.

(3) The prosecutrix described the man who attempted to rape her as being about 5 feet, 6V2 inches tall with a small beard.

(4) The prosecutrix positively identified Wilson at the lineup.

(5) While testimony was equivocal as to the exact date of the lineup, it occurred no more than nine days after the crime.

Considering the foregoing facts, we are of the opinion there was no substantial likelihood that Wilson would be misidentified. Therefore the trial court properly overruled the motion to suppress the lineup identification.

Wilson next contends the allegedly unreliable pre-trial identification tainted the prosecutrix’s in-court identification of him. In view of our holding the pre-trial identification was properly admitted, we find this argument meritless. We note further the prosecutrix made a positive in-court identification of Wilson as the man who came into her store on December 30, 1977, and attempted to rape her. We are therefore of the opinion the state established an independent source for the in-court identification notwithstanding the lineup identification.

Wilson’s fifth proposition is that the trial court erred in refusing three instructions offered by the defense. The first such instruction was peremptory and properly refused in our opinion.

We have held that while the jury determines the weight and worth of a statement, its admissibility is a question of law for the court. Craft v. State, 380 So.2d 251, 255 (Miss. 1980). In view of this ruling, Instruction D-8 sets forth an incorrect principle of law and was therefore correctly refused.

Finally, Instruction D-3 would have informed the jury the following:

In every criminal case, the State must first establish the fact that a crime has been committed. This is known as the corpus delicti. To constitute a crime, there must be the joint operation of two essential elements, an act forbidden by law and an intent to do the act. Before the defendant may be found guilty of a crime, the State must establish beyond a reasonable doubt that under the statute defined in these instructions defendant was forbidden to do the act charged, and that he intentionally committed the act.

The court properly refused this instruction as being abstract. Callahan v. State, 419 So.2d 165 (Miss.1982). Further, the court had already instructed the jury on the element of intent to do an act forbidden by law. The court was not required to grant repetitive instructions. Anderson v. State, 413 So.2d 725 (Miss.1982).

We find no basis in the record for Wilson’s sixth assignment of error, that the court erred in granting each instruction granted by the state.

Wilson’s seventh assignment of error, that the verdict was against the overwhelming weight of the evidence, is in our opinion meritless in view of the facts already discussed in this opinion.

Finally, Wilson argues the verdict was the result of bias, prejudice and passion. We find in the record no evidence in support of this contention, nor do we find that Wilson’s attorney made any objection to the jury panel or any member of it. This proposition is without merit.

Having carefully reviewed the record, we are of the opinion the trial court committed no reversible error and the case should be affirmed. We observe further that Wilson received a fair trial.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., concurs in result only.