author: ROBERTSON, Justice,

text:
    C. Leo HALL, Mary Hall and Randy Lee Hall, Appellants, v. Dr. Eugene G. WOOD, Jr., et al., Appellees.
    No. 54546.
    Supreme Court of Mississippi.
    Dec. 7, 1983.

      Russel D. Moore, III, Moore, Royals & Hartung, Jackson, for appellants.
    David K. McGowan, Jackson, for appel-lees.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This is a diffused surface waters case. In 1979 Leo Hall and members of his family purchased and cleared a 20 acre tract of land in southwest Jackson. Almost immediately diffused surface waters flowing across the skinned land began depositing excessive amounts of silt, sediment and pollution into nearby Lake Catherine. Owners of property abutting Lake Catherine have brought suit and the Chancery Court has enjoined the Halls, prohibitorily and manditorily, to cease and correct their pollution and destruction of Lake Catherine.

The Halls have appealed charging primarily that the injunction denies them the use of their property for legitimate purposes. In the context of the facts of this case and the damage caused to Lake Catherine, we hold that the stripping of the Hall lands without taking adequate measures to prevent erosion was not a legitimate use of the Halls’ property. Accordingly, with only a modification in form to be explained below, we affirm.

II.

A.

Plaintiffs below and Appellees here are 27 property owners whose lots abut Lake Catherine in southwest Jackson. They are sometimes referred to below as “the Lake Catherine Plaintiffs”.

The Defendants below and Appellants here are C. Leo Hall, his wife, Mary Hall, and their son, Randy Lee Hall, each of whom at various times have owned interests in a 20 acre tract northwest of Lake Catherine. At all times C. Leo Hall (hereinafter “Hall”) was the dominant actor on behalf of his family’s interests in this land.

On January 27, 1979, the Halls acquired this 20 acre tract. At the time it was heavily wooded. Prior to that time, access to and rights in Lake Catherine were a valuable appurtenance to the «Plaintiffs’ residential properties. Lake Catherine has been a source of recreational and aesthetic enjoyment.

The Halls’ 20 acre tract is zoned commercial. Hall acquired it for commercial development purposes. In the summer of 1979 Hall employed land clearers to remove all trees, vegetation and undergrowth. By August of 1979 the land had been completely stripped. The theretofore existing contours of the land were not altered, and no erosion prevention measures were taken at that time.

Hall had been engaged in negotiations with a major retail department store firm. He contemplated a sale of the property to this firm and others for development as a shopping center. Insofar as the record reflects, the tight money economy prevailing in 1979 resulted in the parties with whom Hall was negotiating abandoning their interest in the 20 acre tract in question. Hall was stuck with the property and remains so.

Once the land was stripped the forces of nature went to work, impervious to Hall’s economic woes. Diffused surface water sped across the land toward the upper end of Lake Catherine. Silt, sediment and other pollutants began to be deposited in the lake. In the spring of 1980 Hall made an ineffectual attempt to fertilize and seed the property. The erosion continued apace.

Over the last three years, approximately 80 to 100 tons of silt and sediment have been deposited in the upper end of Lake Catherine per acre per year. A mud bar has been created in the northern end of the lake destroying spawning habitat. Suffice it to say that the ecology of the waters of Lake Catherine has been substantially adversely affected. The undisputed culprit is the eastern 12 acres or so of the Hall land, skinned in 1979 but now heavily rutted.

B.

On April 30, 1982, the Lake Catherine Plaintiffs commenced this civil action. In a nutshell they charged that the Halls had been negligent in the use of their adjoining property to the northwest and that this negligence had proximately caused substantial damage to Lake Catherine and their respective property rights therein. The Lake Catherine Plaintiffs further alleged that the damage was continuing. They demanded prohibitory injunctive relief restraining the Halls from any further deposits of silt or sediment into Lake Catherine as well as mandatory injunctive relief that the Halls restore Lake Catherine as nearly as practicable to its former condition. Plaintiffs further demanded monetary damages as well as a lien on the Halls’ property to secure their performance of the requested injunctive relief. The Halls denied these allegations and demands for relief.

The matter was tried on its merits on June 21, 1982, in the Chancery Court, First Judicial District, Hinds County, Mississippi.

On August 2, 1982, the Chancery Court released its opinion in substance holding for the Lake Catherine Plaintiffs. The Chancery Court recognized the rule

that any landowner has a right to develop his property and has the right to increase the flow of water [but that] he does not have the right to cause silt to be washed into the lower landowners.

Under that rule, the Halls were found liable.

The trial court then made clear that it has no intention of trying to spell out exactly what should be done to stop the erosion.

The court’s opinion concluded:

The Defendant, Leo Hall, should be required to do whatever is necessary to stop the erosion from land owned by him and his son into Lake Catherine and to proceed forthwith with whatever is necessary. Further, the Defendant, Leo Hall, is directed to remove the silt from Lake Catherine which has been previously eroded into Lake Catherine from his property.
The Plaintiffs have not specifically proved any damage to them but collectively they will be given a lien against the property of the Defendants, Leo Hall and Randy Hall, to guarantee the work. James Winstead will be requested to work with the Defendant, Leo Hall, in connection with stopping the erosion into Lake Catherine and to remove the silt from Lake Catherine.

A final decree was entered September 1, 1982, carrying into effect the forgoing opinion. From that decree, the Halls have perfected this appeal.

III.

A.

We cherish the notion that a person’s real property is his to do with as he sees fit, see Andrews v. Lake Serene Property Owners Association, 434 So.2d 1328, 1331, 1333 (Miss.1983), although the complexities and interdependence of today’s world have produced not insignificant limitations. Ordinarily the landowner has the right reasonably to improve and use his property for any legitimate purpose. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970).

For these rights to be meaningful, each property owner’s use and enjoyment of his property must be shielded from unreasonable interference by others — these “others” ranging from the faceless sovereign to one’s next door neighbor. By the same token, how one person uses his property necessarily affects others. These effects may be positive or detrimental. How my neighbor uses his land may enhance or destroy my land’s value in use or in exchange, and sometimes both.

Given these realities, our reasoned and intuitive sense of justice demands that each property owner be assured an equal right to the most extensive freedom of use of his property and freedom from interference by others, compatible with an equal freedom of use/freedom from interference on the part of all of one’s neighbors. Cf. Rawls, A Theory of Justice, 60, 250 (1971). This broad principle of justice as fairness among property owners is the common denominator of the rules of law which have evolved in our cases as will be articulated below.

Our concern in this case is water. Water may be a blessing or a curse to the landowner. Waters provide aesthetic enjoyment. They nourish life. Waters also flood. They erode. Waters impede use and development. They carry pollution, wholly indifferent to its chemical properties or destructive potential.

Waters are thrust upon our lands the enjoyment of which our law protects by a variety of natural processes. The state may make laws and thus create rights guarding the legitimate interests of property owners. Pursuant to the laws of the state, disputes between property owners are heard and adjusted. Waters obey only the laws of physics, principal of which are the laws of gravity. See Lauck v. Gilbert, 252 Miss. 371, 394, 173 So.2d 626, 637 (1965).

In their obedience to physical laws, waters have generated disputes in a variety of factual contexts. Our law has generated general rules which we find applicable without regard to specific factual contexts. The equal maximum right to use/equal maximum freedom from interference principle stated above certainly applies in every context. Historically most litigation concerned natural watercourse disputes. Most of our case law arises in this context. Recently we have heard more and more diffused surface water cases. See Homes, Inc. v. Anderson, 235 So.2d 680 (Miss. 1970); see also Comment, Diffused Surface Waters in Mississippi, 46 Miss.L.J. 118 (1975). As recently as 1978 this Court intimated that there might be a difference in principle between the two types of cases. See Warrior, Inc. v. Easterly, 360 So.2d 700, 702 (Miss.1978). Upon reflection, that difference escapes us. By virtue of the general considerations discussed above, the rules and principles found in our case law have force in all waters cases bearing similarities of operative fact.

We emphasize an elementary proposition. Each landowner takes his lands— and their waters — as he finds them, burdens and benefits alike. Where the flow of waters has been rendered by the operation of the laws of physics upon the natural contours of the land, a lower landowner has no rights against his upper neighbor for damages thus caused: Certainly upper landowners may use well established watercourses through lower lands to drain upper properties. Lauck v. Gilbert, 252 Miss. 371, 395, 173 So.2d 626, 637 (1965); Shattles v. Field, Brackett & Pitts, 261 So.2d 795, 797 (Miss.1972); Ferris v. Wellborn, 64 Miss. 29, 8 So. 165 (1886). On the other hand, an upper landowner may not unreasonably alter natural drainage patterns to the detriment of his lower neighbor.

B.

By way of implementation of the equal maximum freedom of use/equal maximum freedom from interference principle stated above, the law of this state has repeatedly recognized and imposed upon upper landowners substantial duties and obligations toward lower landowners. See, e.g., Steed v. Kimbrough, 197 Miss. 430, 436, 19 So.2d 925, 926 (1944); Newton Coca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485 (1951); Shattles v. Field, Brackett & Pitts, Inc., 261 So.2d 795, 797-798 (Miss.1972); and Payne v. Touchstone, 372 So.2d 1277, 1279-1280 (Miss.1979). In this context, our law is a two way street, vesting comparable rights in upper landowners. An upper landowner may without fear put his lands to reasonable uses even though as a proximate result thereof waters harm lower landowners, provided the harm is not unreasonable or unnecessarily severe. See, e.g., Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County v. Board of Drainage Commissioners of Washington County, 130 Miss. 764, 95 So. 75 (1923); American Sand and Gravel Company v. Rushing, 183 Miss. 496, 502, 184 So. 60 (1938); Lauck v. Gilbert, 252 Miss. 371, 173 So.2d 626 (1965); Homes, Inc. v. Anderson, 235 So.2d 680, 682 (Miss.1970).

The owner of unimproved upper lands may allow diffused surface waters to drain from his lands unimpeded in their natural state even though lower landowners are affected. Payne v. Touchstone, 372 So.2d 1277, 1279 (Miss.1979). To require an upper landowner to retain all waters coming onto his property from all sources, especially rainfall would (a) be to require an impossibility and (b) impose an intolerable burden on the owners of upper lands in every water shed. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970); Payne v. Touchstone, 372 So.2d 1277, 1280 (Miss.1979). An upper landowner may increase the flow of water via drainage incident to the reasonable development of his property even though it does some damage to the lower landowner. Homes, Inc. v. Anderson, 235 So.2d 680, 682-683 (Miss. 1970); Shattles v. Field, Bracket & Pitts, Inc., 261 So.2d 795, 797 (Miss.1972); Payne v. Touchstone, 372 So.2d 1277, 1280 (Miss. 1979). Water by its nature confers burdens as well as benefits. These burdens our law requires be shared equitably.

From the vantage point of the owner of lower lands, the law is complementary. In diverting waters from his lands, any landowner must use reasonable care to prevent unnecessary injury to adjoining landowners. Holman v. Richardson, 115 Miss. 169, 179, 76 So. 136, 137 (1917); Payne v. Touchstone, 372 So.2d 1277, 1279 (Miss.1979). The owner of upper lands does not have the right to collect and discharge waters onto the lower landowner with impunity even though in some instances in no greater overall quantity than flowed from his property in its natural state. Steed v. Kimbrough, 197 Miss. 430, 436, 19 So.2d 925, 926 (1944); Warrior, Inc. v. Easterly, 360 So.2d 700, 702-703 (Miss.1978); Payne v. Touchstone, 372 So.2d 1277, 1279 (Miss.1979). Numerous cases have held that upper landowners may not by artificial means discharge waters in greater .quantities to the detriment of lower landowners. Steed v. Kimbrough, 197 Miss. 430, 436, 19 So.2d 925, 926 (Miss. 1944); Newton Coca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485 (1951); Shattles v. Field, Bracket & Pitts, Inc., 261 So.2d 795, 797 (Miss.1972); War rior, Inc. v. Easterly, 360 So.2d 700, 702-703 (Miss.1978).

Getting closer to the facts of the case at bar, this Court has held an upper landowner liable where he graded his lot and thereby caused a concentrated discharge of waters onto his neighbor’s land. Newton Coca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485, 489 (1951). In such cases, nothing turns on whether the discharge is generated via grading (changing the contours of the land) or mere clearing (where the contours remained unchanged).

Where two methods of disposing of excess waters are available to an upper landowner, one of which will damage the lower lands of his neighbors and the other of which will not, the upper landowner, absent prohibitive expense, must use the latter alternative. Holman v. Richardson, 115 Miss. 169, 179, 76 So. 136, 137 (1917); Payne v. Touchstone, 372 So.2d 1277, 1279 (Miss.1979).

The careful reader will note that the principles stated are not wholly consistent one with the other. Neither logical nor peaceful coexistence is possible unless one emphasizes before each such principles the qualifier “generally speaking” or “in the absense of equitable considerations to the contrary”. The reciprocal equal maximum freedom of use/equal maximum freedom from interference principle, considered against the backdrop of the natural conditions of the land and water’s obedience to the laws of physics, are always our touchstone.

C.

Applying these principles, we hold that upper landowners such as Hall are entitled to make reasonable use of their land. Where there is a reasonable likelihood of damage to the property of lower landowners, however, upper landowners are required to do whatever is reasonable to minimize the damage. The fact that some damage nevertheless occurs to the lower landowners does not render the upper landowner liable. On the other hand, where the upper landowner has done nothing in an effort to ameliorate the adverse effect on lower landowners and where the damage is in fact substantial, and further where the development activities of the upper landowner are a major proximate cause of that damage, the lower landowners are entitled to damages and/or injunctive relief as may be appropriate.

Under the facts of this case, we do not hesitate to uphold the conclusions of the chancellor on the question of liability. The Plaintiffs in this case have important and viable property rights in Lake Catherine. That lake lies to the southeast and generally below Leo Hall’s 20 acres. Hall stripped his land, albeit with legitimate development plans in mind. He reasonably should have known his actions would result in erosion which in turn would result in substantial silting, sedimentation and general pollution of Lake Catherine. When belatedly Hall attempted corrective actions, he was ineffectual. Without doubt there has been major damage to the ecology of the water of Lake Catherine, and without doubt, the culprit is Hall’s skinned land. On the liability phase of this case, we affirm.

IV.

A.

With one exception to be explained below, the relief portion of the chancellor’s decree will likewise be affirmed.

To begin with, the proof of damage to individual landowners was sufficiently diffused so that the chancellor was wholly correct in denying actual damages. Besides, it is clear from this record that actual damages will do the Lake Catherine Plaintiffs little good. They want their lake restored. As soon as is practicable, they want to be able to enjoy the waters their properties adjoin and include.

We emphasize that an injunction is an equitable remedy. It must be tailored to meet the exigencies of the situation. It must be clear in that the party enjoined is entitled to know what he is expected to do or to refrain from doing. It must be practical in that it must be susceptible of compliance without undue hardship and reasonably likely to achieve the desired end.

In the Final Decree of September 1, 1982, Hall was mandatorily enjoined:

(a) to do whatever is necessary to stop the erosion from the subject property into Lake Catherine, and (b) to do whatever is necessary to remove from Lake Catherine all silt which has eroded into Lake Catherine from the subject property-

The essence of the injunction is mandatory, although the “stop any further erosion” part has prohibitory trappings.

We reaffirm and reemphasize our longstanding rules that a court of equity should grant a mandatory junction with extreme caution. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970). A mandatory injunction should be ordered where such is “the only effective remedy”. Warrior, Inc. v. Easterly, 360 So.2d 700, 704 (Miss.1978); Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970).

Mandatory injunctions should be granted only where that which they demand is reasonably practicable. A mandatory injunction requiring “a practical impossibility” should never issue. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss. 1970). The expense and hardship to the party enjoined should also be considered. That these may be substantial counsels caution and restraint.

The uncontradicted evidence in the record reflects that remedial measures are practicable.

Consider first so much of the injunction as enjoins Hall to act to prevent further unreasonable pollution of Lake Catherine. The evidence makes clear that heavy fertilization and seeding coupled with terracing would substantially slow down the flow of water off of Hall’s property. A debris basin or sediment control structure constructed at the lower end of the property would keep much sediment out of the lake. In short, corrective measures are feasible.

The Lake Catherine Plaintiffs established that cleanup was also practicable. The water level will have to be lowered before the silt may be removed. This cost of the cleanup operation was estimated at $50,-000. Hall offered no evidence suggesting impracticability of cleanup.

Applying to the facts of a given case the important considerations counseling restraint when mandatory injunctive relief is sought inevitably requires judgment calls. Suffice it to say here that the judgment that mandatory injunctive relief was practicable and was the only practicable remedy was well within the evidence and the chancellor’s discretion. Under these circumstances, we decline to disturb the chancellor’s decision.

B.

On the matter of the content of the specific injunction issued, we applaud the wisdom of the chancellor’s recognition that no court under such circumstances should “try ... to spell out exactly what should be done to stop the erosion”. We emphasize that his failure in this regard in no way runs afoul of our long established rule that mandatory injunctions must be clear and explicit on their face so that the party enjoined will be distinctly informed as to what he is enjoined from doing or what he is commanded to do. See, e.g., Illinois Central Railroad Co. v. George, 241 Miss. 233, 238, 130 So.2d 260, 261 (Miss.1961); Lauck v. Gilbert, 252 Miss. 371, 393, 173 So.2d 626, 636-637 (Miss.1965). Nor did the chancellor depart from our current rule found in Rule 65(d)(2), Miss.R.Civ.P., which in pertinent part provides:

Each order granting an injunction ... shall be specific in terms; [and] shall describe in reasonable detail and not by reference to the complaint or other document the act or acts sought to be restrained; ....

When ordering the achievement of ends necessarily reached only through the employment of scientific or engineering techniques, courts of equity should be particularly cautious. An overly precise specification of means will generally be beyond judicial competence in fact or in law. What should and ought be done is the very clear specification of the end to be achieved. The party enjoined should then be directed to proceed with reasonable dispatch.

The court should be as clear as it reasonably can be in specifying the end which the party enjoined must achieve. On the other hand, it ordinarily will be appropriate to leave the party enjoined maximum flexibility with regard to the means of achieving the end.

The Plaintiffs in whose favor the injunction is issued have an interest in seeing the work proceed with dispatch. Ordinarily, they have no legitimate interest in the methodology employed. They are entitled to a judicial specification of means only if the means selected by the party enjoined does not substantially achieve the desired end within a reasonable period of time.

C.

The general form of the chancellor’s injunction is correct, within the evidence, and will not be disturbed. In one respect, however, the injunction must here be modified.

The final decree provides that Hall shall be deemed to have complied with the injunction

when Jack Winstead shall have certified to this Court that such work have been completed to his satisfaction.

Winstead was the Hinds County ASC Agent who testified as an expert witness at trial. There is nothing wrong with the court designating an independent expert to serve as an overseer or advisor regarding compliance with work such as that Hall has been enjoined to undertake. The chancellor, however, did not have the authority to delegate to Mr. Winstead what is essentially a judicial responsibility, i.e., certification of compliance with the injunction. Lauck v. Gilbert, 252 Miss. 371, 391-392, 399-400, 173 So.2d 626, 636, 640 (1965).

Ironically, the decree and particularly the part we here hold to be error, was drafted by the attorneys, not the chancellor. While it is no doubt of great assistance to the trial judges of this state to have attorneys draft, and consent to the form of, final judgments and decrees, the trial judge himself must independently evaluate and consider the provisions of any such decree and make such corrections as may be appropriate.

D.

Finally Hall challenges that portion of the chancellor’s decree as impresses his 20 acre tract with a lien to secure his performance of the injunctive provisions of the decree. Hall’s argument, in essence, is that the chancellor had no such lien creating power because there is no reported case in which any such power has been exercised. Hall recognizes that the Chancery Court, where it grants a money judgment, has the power to impress a lien to secure payment of that judgment, as in alimony and child support matters. He urges, on the other hand, that the chancellor has no power to impress a lien to secure compliance with a mandatory and prohibitory injunction.

The remedial powers of our chancellors are sufficient to vindicate the claims and interests of all litigants. Those powers are as broad as equity and justice require. Those powers have always been marked by flexibility and expansiveness so that appropriate remedies may be decreed to satisfy the needs of the particular case. The chancellor’s remedial powers are marked by plasticity. Equity jurisdiction permits innovation that justice may be done; See Higginbottom v. Short, 25 Miss. 160 (1852). That there is no precedent for the precise relief sought is of no consequence.

Courts of equity have all remedial powers necessary to the particular case, except those that are expressly forbidden by law. Accordingly, we look to our law to see if impression of a lien to enforce compliance with an injunction is a power forbidden to the chancellor by our law. We find no statutory or decisional impediment to such power, nor is there apparent in juridical logic any rationale under which this power ought be denied our chancellors.

In holding that the chancellor had the authority to impress a lien, we have taken only the first step. The exercise of such remedial authorities as are committed to our chancellors is ultimately a matter of sound discretion. If the authority exists, we will interfere with the exercise of the authority only where it is demonstrated that the discretion has clearly been abused. No such showing of abuse has been made. On this assignment of error, we affirm.

AFFIRMED AS MODIFIED.

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

      . The several states of this Union have adopted varying approaches to adjustments of the rights of the parties in waters cases. Commentators have classified these approaches under three labels: (a) "the natural-flow or civil-law rule”; (b) "the common-enemy rule”; and (c) "the reasonable-use rule”. See Comment, Diffused Surface Waters in Mississippi, 46 Miss.L.J. 118, 122-129 (1975). The label which most nearly fits and most accurately describes the principles reviewed and applied here is “reasonable use”.


source: Caselaw Access Project

author: PRATHER, Justice,

license: Public Domain

text:
    Ivy WALLACE, et ux v. EMPLOYERS MUTUAL CASUALTY COMPANY.
    No. 54,470.
    Supreme Court of Mississippi.
    Dec. 7, 1983.

      John E. Gregg, Raymond, W.N. Patterson, Jackson, for appellants.
    Joe W. Hobbs, Hobbs & Brand, Jackson, for appellee.
    Before BROOM, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Ivy and Merelene Wallace, plaintiffs below and appellants here, were the owners of a $26,000 contents coverage insurance policy issued by the defendant, Employers Mutual Casualty Company, covering the contents of a restaurant owned by the Wal-laces known as the Western Way Station located in Jackson, Mississippi which burned.

This action was brought by the Wallaces to recover the proceeds. The insurance company defended on the grounds that the fire was the result of arson committed or caused to be committed by the Wallaces, that the Wallaces forfeited their rights to the proceeds by false swearing and misrepresentation, and that the coverage was suspended due to an increase in moral hazard. From a jury verdict for the defendant, the Wallaces appeal. We reverse and remand for a new trial.

The questions raised by the Wallaces on appeal are:

(1) Whether the court erred in permitting the deposition of Stuart D. Abshire to be introduced into evidence;

(2) Whether the court erred by allowing appellee to cross-examine Merelene Wallace regarding a written statement she signed which was not produced pursuant to discovery requests;

(3) Whether the court erred in submitting the defense of increased hazard to the jury; and

(4) Whether the court erred in denying a new trial on the basis that the verdict was against the overwhelming weight of the evidence.

In May and June, 1978, Ivy and Merelene Wallace leased a building located at 1209 West Northside Drive, Jackson, Mississippi, from Stuart Abshire. Abshire had been using the building and premises for his swimming pool construction business. He continued to use a part of the premises despite the fact that the lease instruments purported to give the Wallaces a leasehold interest in the entire lot.

At the time the building was leased to the Wallaces, Abshire owned an insurance policy written by the defendant, Employers Mutual Casualty Company (Employers Mutual) with $10,000 coverage on the building and $10,000 on the contents. The Wallaces had the Employers Mutual agent, Sal Lem-bo, change the policy to include them. The contents coverage was deleted and the building coverage was increased to $25,000. Abshire later denied authorizing this change. The Wallaces then purchased a $26,000 contents policy written by Employers Mutual from an agency that had purchased the Lembo Agency. This agent advised Abshire that he was going to write some insurance for the Wallaces. Later Abshire took out a new policy with U.S.F. & G. with $10,000 coverage on the contents and $10,000 on the building. Thus, there was $71,000 worth of coverage on the building and contents where the restaurant was located.

To renovate the building for use as a restaurant the Wallaces incurred remodeling and equipment expenses of over $34,-000. To finance this expenditure, the Wal-laces used $30,000 in personal funds and $15,000 in loans from two different banks. The restaurant opened for business in October, 1979.

Between the time of the restaurant’s opening and its destruction by fire, the relationship between the Wallaces and Ab-shire became stormy. Chains and locks placed on trash dumpsters by the Wallaces were cut by Abshire as he continued to use the dumpster in his business. A confrontation between them occurred over a portable sign placed on the lot by Abshire. A wooden fence put up by the Wallaces was torn down by Abshire. Threats of bodily harm were made by both sides. Trouble with the sewer system provoked another confrontation. A lawsuit was filed by Abshire asking that the Wallaces be enjoined from obstructing his use of the premises.

On January 19, 1979, Abshire obtained a court order preventing the Wallaces from obstructing his access to the leased premises. On January 25, 1979, Abshire discussed the over-abundance of insurance coverage with the fire marshall and deputy fire marshall indicating that he believed the building was going to burn. On January 26, 1979, the Wallaces were notified that their $26,000 contents policy would be can-celled effective February 9, 1979. The building housing the restaurant burned on January 26, 1979.

On the night of the fire Merelene Wallace went to the restaurant a little before 12:00 midnight to close up. Normally her son performed this task but was not available on this particular night. She locked the doors behind her and took the two cooks home. The route from the cooks’ home to Mrs. Wallace’s home ran by the restaurant. At trial, Mrs. Wallace testified that she passed by the restaurant on the way home, but that she did not stop. Mrs. Wallace arrived home sometime between 12:30 and 12:45 a.m. The fire was reported to the fire department at 12:30 a.m. Mrs. Wallace was notified of the fire at about 1:00 a.m. by a phone call from her brother.

On January 30, 1979, the Wallaces met with Don Hicks, an arson investigator of twenty-two years experience hired by the attorney representing Employers Mutual. In a statement taken by Hicks, Merelene Wallace represented that after she dropped the cooks off at their homes, she drove back by the restaurant. She noticed an old blue car parked nearby, and pulled into the restaurant parking lot to investigate, but found no one there. This statement, consisting of three pages, was signed by both Ivy and Merelene Wallace. The last sentence of the statement acknowledges that they read the statement and that its contents were true. Both plaintiffs denied that they were permitted to read the statement and further claimed that they were not allowed to have a copy.

On March 21,1979, an examination under oath was taken by Merelene Wallace pursuant to the provisions of the insurance policy. In that examination, Mrs. Wallace admitted being in the restaurant sometime after 12:00 midnight on the night of the fire. She stated that she arrived back at her house at about 1:00 a.m. after she had taken the cooks home.

An investigation of the burned premises by Hicks revealed the existence of pour or burn patterns located in a storage area in the central section of the restaurant. It was his expert opinion that these pour patterns were caused by a hydrocarbon liquid, such as gasoline, kerosene, alcohol or acetone. He concluded that the fire was the act of an arsonist.

An investigation by the Jackson Fire Department revealed that there was no forced entry into the building. It was completely locked when the firemen arrived on the scene. There were three doors to the restaurant. The plaintiffs and their son had a key to all three doors. Mr. Abshire had a key to one of the doors, but no one else had access to the building. Captain fire investigator Joseph Graham concluded that there was no doubt that the fire was set by an arsonist.

Following the fire, the Wallaces filed their claim with Employers Mutual on their $26,000 contents policy, the total loss being $30,440. The claim was denied, and this suit resulted. Likewise, Abshire filed his claim on the building and contents under his U.S.F. & G. policy. U.S.F. & G. paid this claim as there was no suspicion that Abshire caused the fire.

After this lawsuit was filed but before trial, Stuart Abshire died from an extended illness. At the time the trial was set, Mr. Abshire was ill and could not attend. A continuance was granted. Time for discovery had expired, and there was nothing mentioned in the continuance order granting additional discovery time, but the trial judge verbally instructed counsel to get Abshire’s deposition. Timely notice of taking Abshire’s deposition was filed and the deposition was taken. The attorneys for the plaintiffs were present and thoroughly cross-examined Abshire. Because of Ab-shire’s death his deposition was read into evidence at the trial over the objection of the plaintiffs.

Evidence of the financial status of the plaintiffs and their restaurant was adduced at trial. This evidence showed that the proposed renovation of the building for the restaurant was $20,000, but that actual costs were over $34,000. The operation was financed with $30,000 in personal funds and loans.

Monthly payments owed at the time of the fire loss included $171.00 on a first mortgage, $160.00 on a second mortgage; $300.00 for remodeling costs; $250.00 for building rent; $162.00 on the $5,000 loan; $100.00 for utilities; $125.00 for food and $171.00 on a new car.

Other debts included $2,600.00 on an open note to the Bank of Hazlehurst; $1,500.00 on an open note to Deposit Guaranty National Bank; and $1,000 to Sears.

The income statement of the restaurant showed that it suffered losses in October, November and December of 1978 and January of 1979 of $2,490.00; $317.24; $575.17 and $215.00 respectively. At the time of the fire the only income the plaintiffs had was a monthly payment of $617.00 from Social Security.

II.

The first issue is whether it was error for the lower court to permit the deposition of Stuart Abshire to be received into evidence. The appellant’s contention is twofold: (1) that time for discovery had expired and (2) that the testimony was not perpetuated according to statute. As to the first argument, we note our Mississippi Uniform Circuit Court Rule 2.08:

All discovery shall be completed within forty-five (45) days from service of process upon the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension.

Also, Mississippi Code Annotated section 13-l-230(b)(3) (Supp.1983) states that, “The Court may for good cause shown enlarge or shorten the time for taking the deposition.” Id. at 111.

When it was learned that Abshire would not be able to testify due to medical reasons, a continuance was granted. The verbal instruction given by the court was an indication that good cause had been shown to extend discovery time. Abshire was seriously ill as he had been undergoing hyperthermia treatments for cancer. Although the deposition was taken of Abshire over appellants’ objection, appellants’ attorneys were present and they thoroughly cross-examined Abshire.

Secondly, a deposition of a witness may be used for any purpose if the court finds that the witness is dead so long as that deposition is admissible under the rules of evidence. Mississippi Code Annotated § 13-1-232 (1972) (Supp.1983).

The argument by appellants that the testimony of Abshire was not properly perpetuated under Mississippi Code Annotated section 13-1-227 (1972) (Supp.1983), is without merit. That section refers to the taking of depositions before an action is commenced or pending an appeal, neither of which is the case here. We find no error in admitting the deposition of Abshire into evidence.

III.

The next question is whether it was error to permit appellee to use the statement of the plaintiffs taken by Hicks to impeach the testimony of Merelene Wallace.

■ Mrs. Wallace testified on direct examination that she did not stop at the restaurant minutes before the fire was reported. In the statement which she and her husband gave to independent investigator Hicks four days after the fire, Mrs. Wallace stated that she did stop at the restaurant on the way home after taking the cooks home. This statement placed her at the restaurant just minutes before the fire was reported.

During the cross-examination of Mrs. Wallace the statement was offered to impeach Mrs. Wallace’s prior inconsistent statement. Objection was made to its use on the grounds that the statement had not been produced pursuant to several discovery requests, specifically a request for production and inspection and request for bill of particulars. Appellee defended on the ground that the statement was privileged as work product since Hicks was an independent investigator hired by appel-lee’s attorney and not appellee. The trial judge allowed the use of the statement for impeachment purposes. The statement was later introduced into evidence without additional objection.

Work product can be discovered “only upon a showing that the party seeking discovery has substantial need of the materials in preparation of his case and that he is unable without due hardship to obtain the substantial equivalent of the materials by other means.” Mississippi Code Annotated § 13-1-226(b)(3) (1972) (Supp. 1983). However, that section further provides that a party may “obtain without the required showing a statement concerning the action or its subject matter previously made by that party.” Thus a statement of a party is not work product and is discoverable.

The appellants in a request for production and inspection asked for:

All investigative reports concerning plaintiffs and their claim, including but not limited, to any statements, sworn or unsworn, or affidavits made by the plaintiffs....

The statement made by the plaintiffs to Hicks was not produced for inspection. It, being discoverable, should have been produced.

In Square D Co. v. Edwards, 419 So.2d 1327 (Miss.1982) this Court stated that:

Vague or unresponsive answers to interrogatories cannot be tolerated if the process of discovery is to survive as a reasonable method of discovering the information requested in the interrogatories. One of the principal reasons for permitting interrogatories for pretrial discovery ... is to prevent trial by ambush and surprise....

(Id. at 1329).

This same reasoning applies to all discovery methods including requests for production and inspection.

A similar discovery issue was raised in Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025 (1954). In that case, the plaintiff was injured as a result of the negligent operation of a municipal bus. The plaintiff gave a statement to the city’s claim investigator which was transcribed as she made it. The attorneys for the defendants sought a writ of prohibition to block a court order to disclose “A document containing a signed statement made by [plaintiff] to a claims investigator of the [defendant] concerning the facts of the accident.” The argument by the attorneys was that the statement was privileged as being within the purview of the attorney-client relationship. The California Supreme Court said with respect to that statement that:

Her assertions that she was not given a copy of the statement and that she does not remember what she said are not disputed. She does not seek to have disclosed any communication from her adversaries to their attorneys. She merely seeks the record of a communication which she herself made in an “arm’s length” conversation and which was transmitted to her adversaries’ attorneys. Clearly as to the document embodying this communication there is no attorney-client relationship, the communication was not made nor intended to be in confidence, and the privilege did not attach. Accordingly the document can properly be reached under the statutory provisions.

(Id. at 507, 267 P.2d 1029).

Discovery requests were made for all statements of the plaintiffs, sworn or un-sworn. Since this statement was not disclosed, we hold this nondisclosure error and reverse and remand for a new trial.

IV.

Since we reverse and remand this case for a new trial, we choose not to make comment upon the weight of the evidence.

However, we are compelled to comment upon the instruction to the jury placing in issue the question of whether there was an increase of moral hazard which would suspend appellant’s fire coverage. We hold that it was error to submit the “increase in moral hazard” instruction to the jury.

The theory of increase in moral hazard was one of three defenses that the appellee had in this case. This defense has its origin in a provision of the fire insurance policy issued by appellee which reads:

Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this company shall not be liable for loss occurring (A) while the hazard is increased by any means within the control or knowledge of the insured.

The insurance policy here contains a provision for suspending or restricting insurance coverage upon an increase in the risk hazard which increase is within the control or knowledge of the insured. Such an increase may be of a physical nature or of a moral nature. The insurer here contends that the present case presents facts which constitute an increase of moral hazard.

Moral hazard with respect to fire insurance is defined as:

The risk or danger of the destruction of the insured property by fire as measured by the character and interest of the insured owner, his habits as a prudent and careful man or the reverse, his known integrity or his bad reputation, and the amount of loss he would suffer by the destruction of the property or the gain he would make by suffering it to burn and collecting the insurance. [Black’s Law Dictionary 647 (5th Ed.1979) ].

The appellee here contends that any act or change by the insured that results in the change of conditions will increase the temptation to destroy the property for the purpose of collecting the insurance and, therefore will increase the moral hazard. We do not agree. Rather we hold that the act or change that avoids insurance coverage contemplates that the alteration is material and substantial as would be viewed by a person of ordinary intelligence, care, and diligence. The increase in risk for the insurer must be such that he could not reasonably have been presumed to assume contractually. If the conditions affecting the risk assumed by the insurer are materially and substantially affected by means within the control or knowledge of the insured, then suspension of insurance coverage is proper.

Here the factor of multi-insurance policies is present. However, the record shows part of the insurance was secured by the lessor, Abshire, as well as the insured. Therefore, the increase of insurance was not within the control of the insured, and that factor does not warrant consideration here.

The additional factor of deteriorating financial condition of the Wallaces is presented as an increase of moral hazard sufficient to suspend the insurance coverage. We are of the opinion that this record fails to show two factors necessary to agree with appellee’s argument. First, there is no proof that the alleged deteriorating financial condition was within the control of the Wallaces. Even if such is shown, a worsening financial condition of an insured must be accompanied by some physical change in the condition, usage, or occupancy of the premises. Charles Stores, Inc. v. Aetna Ins. Co., 490 F.2d 64 (5th Cir.1974). Such facts are absent the record here.

Secondly, this factual situation of the Wallaces’ financial data does not show an increase in the hazard after the issuance of the policy.

In the case at bar, there was no proof at all that the financial condition of the Western Way Station had deteriorated since the issuance of the $26,000 contents policy. Although the plaintiffs had considerable personal debts, that debt existed when the policy was issued. Moreover, the restaurant was losing money from its conception and the insurance policy was issued with knowledge of these losses. Also, the restaurant’s financial records indicate that while the restaurant incurred monthly losses, those losses were heaviest in the first month of operation. Thereafter, these losses decreased and leveled off during the three months preceding the fire.

We hold that where the worsened financial condition of an insured property is relied upon to suspend coverage as an increase in risk, there must also be evidence of a physical change in the condition, occupancy, or usage, of the premise before an increase in moral hazard instruction can be given to the jury. Since this was not shown in the case sub judice it was error to give this instruction.

REVERSED AND REMANDED FOR NEW TRIAL.

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


text:
    John R. ROBINSON v. STATE of Mississippi.
    No. 54324.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Rehearing Denied Jan. 25, 1984.
    Samuel H. Wilkins, Edward Ellington, Wilkins, Ellington & James, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

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

AFFIRMED.


author: HAWKINS, Justice,

text:
    Laverne WEBSTER, et al., v. Lee KENNEBREW and Campbell Kennebrew.
    No. 53916.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Rehearing Denied Jan. 25, 1984.

      Wayne E. Ferrell, Jr., Thomas J. Richardson, Jackson, for appellants.
    Robert A. Malouf, Malouf & Malouf, Jackson, for appellees.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

FACTS

Sarah Kennebrew died March 23, 1979, at the age of 91. On November 24, 1976, she was 88.

On March 5, 1980, Lillie Cooper filed for probate in the Chancery Court of the First Judicial District of Hinds County an instrument purporting to be Sarah’s last will and testament, bearing date of November 24, 1976. The witnesses to the instrument were David M. McMullan, a Jackson attorney, and his secretary Dorothy T. Givens, who executed and filed affidavits that Sarah Kennebrew signed the instrument in their presence, and at her special instance and request they signed as subscribing witnesses. The affidavits complied with the statute, and the Chancellor on March 5, 1980, entered a decree admitting the will to probate. The will having been admitted to probate in common form, letters testamentary issued and Lillie Cooper was appointed executrix.

On April 16, 1981, Lee Kennebrew and Campbell Kennebrew, grandchildren of Sarah’s filed a petition contesting the validity of the will.

The defendants were the remaining beneficiaries under the will, who appear to be nieces and nephew, and grand-nieces and grand-nephews. The two principal beneficiaries appear to be Lillie Cooper and Lá-veme Webster.

Sarah was married to Daniel Kennebrew, who died intestate in 1952, leaving surviving him Sarah, and three sons: Emanuel, Willie and Mulberry Hayes Kennebrew. Daniel owned real property in Hinds County. After his death Sarah, on December 14, 1953, executed a warranty deed to Mulberry for an undivided one-fourth (¼) interest in certain realty, stating therein she had purchased Emanuel’s and Willie’s interest, and intended that she and Mulberry would each own an undivided one-half (V2) interest therein.

The record does not reveal what happened to Emanuel and Willie, but apparently they died without issue prior to Sarah’s death.

Mulberry was born in 1906. In 1924 he married Ruth Bell Bennett in Hinds County. Ruth separated from Mulberry and moved to Memphis in 1933. Mulberry obtained a marriage license and married Frances Campbell in 1935, and to this union Campbell was born in September, 1935, and Lee was born in January, 1937. Both children were born in Hinds County. The Chancery Clerk’s office of Hinds County and Shelby County, Tennessee, issued certificates that they could locate no record of a divorce from Mulberry and his first wife, Ruth. Mulberry and Sarah were living together when he died intestate in 1971. Lee and Campbell were then living in Michigan, where they also lived when Sarah died.

After the death of Mulberry, Sarah either moved into the home of Lillie Cooper or Lillie moved into her home. Following Mulberry’s death, Sarah lived at 620 Erie Street in Jackson until her death.

Laverne Webster is a school librarian in the school system in Jackson. After Mulberry’s death she and Lillie assisted Sarah in running errands for her, doing grocery shopping for her, and attending to personal matters. Also, Sarah and Lillie established a joint savings account of over $12,000 in June, 1976, and Laverne and Sarah had joint accounts. Laverne wrote checks on their bank account. On August 22, 1973, Laverne and Sarah went to the Bank of Flora in Flora, at which time Mulberry’s name was removed from Sarah and Mulberry’s joint account, and another card issued showing the account to be in the name of Sarah and Laverne. Sarah signed by a mark “X”. Beside this “X” is typed “Her mark — Can’t Write.” At the bottom of the card, beneath Laverne’s signature is another “X” for Sarah’s signature, and beside it in type, “Can’t Write.” On April 19, 1973, the name M.H. Kennebrew was struck off a joint savings account with the Bank of Flora and a new card issued in the name of Laverne and Sarah. Sarah did not sign this card, either, but Laverne did.

Beginning in 1970, Sarah was seen and treated by Dr. Robert Smith, a family medicine specialist in Jackson. Her main problem was cerebral arteriosclerosis. The medical records show that beginning in 1973 her weight ranged from 80 to 93 pounds. Dr. Smith’s medical records dated November 9, 1976, state:

The patient was brought in by a relative requesting a letter that this patient is in good sound mental health at the time of this examination. This patient was questioned and she did appear to be fairly oriented for time, place and person, general fund in information appeared to be good, chest was clear to A & P, weight was stable, abdomen was soft non-tender, extremities within normal limits. Her mental status — she was very well oriented for time, place and person, impression in sight and judgment was questionable. Numerical count was poor. Broad data about usual informational facts was missing. Her mental status seems to be questionable at this time.

Sarah was hospitalized in February, 1971, for cardiovascular disease, marked arthritic changes, chronic hiatal hernia and chronic obstructed lung. She was again hospitalized in October, 1971, following a cerebral ischemia attack secondary to acute renal damage.. She broke her hip in January, 1977, and thereafter was confined to a wheelchair.

It was the doctor’s recollection that Sarah, for the most part at least, was brought to his office.

Lay witnesses established that beginning at least in 1971 Sarah’s eyesight was very poor. Some said she could not read, others that her ability to read was limited. Two testified she could not recognize them by sight.

The known handwriting of Sarah’s indicates a person of very little formal education, if any.

Paragraph III of the petition to contest the will makes the following charge: “That the signature reflected on the Last Will and Testament admitted to probate herein is not the signature of Sarah Kennebrew, deceased.”

Paragraph IV of the petition alleges the signature was not properly executed, witnessed, and attested as required by law. Paragraph V charges lack of mental capacity to execute the instrument, and Paragraph VI charges the Will was a result of the undue influence of Lillie Cooper and persons associated with her.

The petition requested an issue of devisa-vit vel non be tried by a jury on the questions of whether Sarah executed the Will, whether it was executed, witnessed and attested according to law, whether she had the testamentary capacity to make a will, and whether it was executed as a result of undue influence from Lillie Cooper and others.

Lillie Cooper, Laverne Webster and other defendants filed a. sworn answer on September 17, 1981, in which each made an affidavit denying Paragraph III, as well as Paragraphs IV, V and VI. They also affirmatively charged,

[T]hat the said will was executed by the Decedent, Sarah Kennebrew, and was witnessed by two fully competent and qualified persons: David M. McMullan, attorney at law, and his secretary, Mrs. Dorothy Givens.

They also alleged that while she suffered from physical infirmity, her mind was sound.

On October 2, 1981, Frank Kelley, on behalf of the heirs of the Estate of Edd Kelley, filed a sworn answer, specifically denying Paragraph III, as well as Paragraphs IV, V and VI. In his Seventh Defense, Kelley specifically alleged:

The answering respondent would affirmatively show by way of defense that the signature affixed to the Last Will and Testament of Sarah Kennebrew, a true and correct copy of which is attached hereto as Exhibit 2 and incorporated herein by reference, is the bona fide signature of Sarah Kennebrew ...

On September 17, 1981, shortly before trial, the defendants Lillie Cooper, Laverne Webster, and other defendants (excluding Kelley), filed an amended sworn answer. This answer likewise specifically denied the* allegations of Paragraph III, as well as IV, V and VI, insofar as it charged the will was a result of undue influence.

These defendants’ amended answer likewise affirmatively charged that the will was executed by Sarah Kennebrew, and duly witnessed.

On October 1, 1981, Kelley filed an amended answer, again denying Paragraph III, as well as Paragraphs IV, V and VI, insofar as it charged the will was a result of undue influence. It also affirmatively alleged the will was executed by Sarah Kennebrew, and witnessed. The Thirteenth Defense affirmatively alleged that the signature to the will, “is the bona fide signature of Sarah Kennebrew.”

On June 23, 1981, the petitioner contestants filed the following request for admission to each of the defendant proponents to the will:

1. Please admit that the signature found on Exhibit “A” attached hereto is not the signature of Sarah Kennebrew, deceased.
NOTE: If your answer to the above request for admission is admitted, you are stating that the signature on Exhibit “A” is not the signature of Sarah Kenne-brew.

The defendants Lillie Cooper, Laverne Webster, Frank Kelley, as well as the other defendants, each filed the following response to the request for admissions:

RESPONSE. It is denied that the signature found on Exhibit “A” is not the signature of Sarah Kennebrew, deceased.
REQUEST NO. 2. PLEASE EXPLAIN IN DETAIL HOW YOU KNOW THAT THE ALLEGED SIGNATURE OF SARAH KENNEBREW, DECEASED, ATTACHED HERETO AS EXHIBIT “A” IS THE ACTUAL SIGNATURE OF SARAH KENNEBREW.

The sworn answer of Laverne Webster to this interrogatory is, “I saw her sign the will.”

The sworn answer of Lillie Cooper to this interrogatory is, “It was her signature because it is her handwriting.”

Trial began October 5, 1981. A cousin of the contestants, Tommy Campbell, testified Sarah’s eyesight in 1976 was too poor to read, and she could not write in a straight line. Ruth Bell Kennebrew, Mulberry’s first wife, testified Sarah’s eyesight was very poor in 1971, that Sarah could not recognize her in 1972. She also testified the signature to the will was not Sarah’s. She was vigorously cross-examined by counsel for the proponents on her ability to tell Sarah’s handwriting.

Thomas L. Packer, a Jackson police officer, and an expert in handwriting, testified as an expert witness for the petitioners. From an examination of the signature to the will and known handwriting, including signatures of Sarah’s, he testified the signature to the will was not Sarah’s, that it was a forgery. He was first vigorously challenged by a voir dire examination on whether he should be permitted to testify as an expert, and after his testimony before the jury, defense counsel vigorously and at length cross-examined him about his opinion that the signature to the will was not in the same handwriting of known signatures of Sarah’s

A. Frank Hicks, of the Mississippi Crime Laboratory, also an expert in handwriting, testified as a witness for the petitioners. He likewise gave an opinion that the writer of the signatures known to be Sarah’s was not the same as the one who signed the will. He likewise was thoroughly cross-examined by defense counsel about his opinion. Both experts testified the quality of the handwriting of the signature to the will was very good, and showed no hesitation of motion.

Each of these expert witnesses also gave detailed testimony of their examination of the handwriting specimens, the reasons for their conclusions, and each was vigorously challenged on cross-examination.

Throughout the presentation of the contestants’ case in chief, defense counsel objected first to any lay or expert witness expressing an opinion on the handwriting, and thereafter made every effort on cross-examination to show the witness was mistaken in his or her testimony that the signature on the will was not the genuine signature of Sarah’s.

When the contestants rested, the proponents made a motion for a directed verdict finding for the validity of the will. The Chancellor sustained the motion, solely as the issue of undue influence. Some discussion then took place in chambers as to whether evidence of a former will would be admitted into evidence in the presentation of the proponents’ defense, and counsel for the contestants then made the strategic decision to withdraw any claim of lack of testamentary capacity.

The first witness for the proponents was David M. McMullan. He was the attorney who prepared the will. He testified that he was given information for the preparation of the will, but did not state by whom. On the day of execution, he testified that Mrs. Kennebrew, Mr. Frank Kelley and Mrs. Laverne Webster came to his office. They met in the law firm’s conference room, and he went over the legal descriptions, the number of acres, the names of all of the people involved, and asked her if that was what she wanted, and if it was in conformity with her instruction, and she replied “yes.” He then testified, “Subsequently to that, the will was executed and my secretary Mrs. Givens and I attested it and we placed it, I believe, in our firm safe.” Frank Kelley and Laverne were present throughout.

Asked if he saw Mrs. Kennebrew sign the will, he replied, “I was in the room. I don’t remember whether I watched her sign it physically.”

Further, he testified he could not remember whether he actually watched her sign the will, all he could remember was her being seated at the table and her being handed a pen after his discussion.

On cross-examination McMullan testified he did not remember watching Sarah sign the instrument, and he could not say she had put her name to the signature.

During the period Lillie Cooper was acting as executrix, following admission of the will to probate in common form, but prior to any contest, McMullan sent copies of the will to all beneficiaries, and he recalled Lee Kennebrew calling him long distance and telling him that the signature on the will was not his grandmother’s. He was asked if he had not further told Lee that there were so many people in the office that day he couldn’t say for sure who signed the instrument, and testified he did not remember saying this. Asked if he denied making the statement, he replied he did not remember saying it.

McMullan was also cross-examined on his knowledge as to whether the person purporting to be in his office November 26, 1976, was really Sárah. He was questioned about an affidavit he executed on June 23,1981, in which he stated an individual “purporting to be Sarah Kennebrew” was in his office. This affidavit contains the following statements:

I, David M. McMullan, attorney at law, do hereby state on my oath that an individual, purporting to be one Sarah Ken-nebrew, requested that I draw a certain Will devising and bequeathing her real and personal property upon her death. That this same individual purporting to be Sarah Kennebrew was ambulatory and, insofar as I could determine, her eyesight was normal. She did not appear to be lame or crippled but did use a walking stick. This same individual read and declared she understood and approved the Will in question and then executed the will in my presence and in the presence of my secretary, Dorothy T. Givens. I did not see anyone assist this individual in the signing of her Will. As far as I know, no other persons were present in the room other than Dorothy T. Givens, Laverne Webster and myself. This individual, whom I believed at that time to be Sarah Kennebrew, executed the Will filed with the Chancery Clerk in Cause No. P-579 [Hinds County] ...

Concerning the affidavit, McMullan testified an attorney for the contestants had first given him a proposed affidavit, which he had revised after showing it to Mrs. Givens and that she had typed the affidavit he executed, as well astaken the oath.

He recognized the affidavit contained language that Sarah was not helped in any way in signing the will.

Again, on cross-examination McMullan testified, “The lady who was there, as far as I know she signed it. I didn’t sit and watch her. I don’t remember watching her.”

He testified she probably had assistance in walking. Asked if she could “read fine”, McMullan replied, “As far as I could tell. As I say, I went over all of this orally, verbally with her to make sure because it is a long involved list of people and legal descriptions.”

He assumed that she was reading the will, although he was not sure and he testified that he discussed the will with her.

Finally, he was asked:

Q Is it Customary, Mr. McMullan, with your firm or your own private practice that when you get ready to write a will for a person you bring in outsiders and let them sit there and go over the will with them?
A I don’t know whether that is customary or not. These people apparently were relatives and helping her around; brought her to my offices and I didn’t think it was that unusual.

The office file of the attorney was then introduced into evidence, revealing among other things, that he had prepared a previous will for Sarah Kennebrew in 1972, and thereafter a codicil. He was of the belief that the original of these documents had been destroyed.

McMullan further testified he did not read the instrument to her, but that she had read it and he went over it trying to condense what was in there.

Finally, McMullan acknowledged that a certificate to the 1972 codicil stated, “That the above and foregoing codicil was read to Sarah Kennebrew in its entirety,” while no such certificate appeared in the file or on the 1976 will.

Mrs. Givens was the next witness for the proponents. She* recalled Kelley and Lá-veme coming with the person purporting to be Sarah. Mrs. Givens did not recall ever having met Sarah prior to this date. She said she left during the conference between McMullan and the clients, and that after a period of time she was called in, and McMullan asked her to be a subscribing witness.

The record reveals:

Q Okay. What happened then?
A First he introduced me, told her my name and my position and then we saw her sign it. That was it.
Q How did she sign it?
A She signed it with the help of Lá-veme who took her hand. There was a line for her signature.

There was immediate objection to this testimony as contrary to the parties' pleading. Mrs. Givens then interposed:

A I didn’t mean to say that she didn’t sign her name. It was her hand that wrote it.

The Court permitted her to testify, and she further stated:

A She was real trembly. The will, if I remember, she was pretty old and she was real trembly and, I think, Mrs. Webster guided her hand to the line and held her hand while she signed it.

As to the procedure, she stated:

A Well, you are introduced to the people. You are asked if they want you to be subscribing witness and et cetera. Then we do sign our names in their presence, both the original and a copy. We keep a copy and give them the original, ordinarily.

Beginning with the filing of contestants’ petition in April, 1981, on through the proponents’ answer, the request for admissions, denials, interrogatories and answers, the affidavit of McMullan, and throughout this trial, up to this point in the testimony of Mrs. Givens, there was never a hint or suggestion by any of the proponents that anyone except Sarah had signed the will. There was no statement or intimation by any of the proponents that any person assisted her. Indeed, the statements and admissions of the proponents and their attorney McMullan were to the contrary, and in the contestants’ case in chief, counsel for the proponents vigorously challenged any assertion that the signature to the will was not in Sarah’s own handwriting.

Mrs. Givens had no recollection of ever meeting Sarah prior to November 24, 1976.

The proponents next called Láveme Webster as a witness, and over the objection of the contestants, she was permitted to testify. She testified she was Sarah’s niece, and she carried Sarah to the attorney’s office on November 24, 1976.

A We went to Mr. McMullan’s office and he signed, we went in his conference room and he went over the will with her and asked her if she had questions, was that what she wanted. She read it slowly and they talked about it and they came to the end and he asked her if she had any questions and was that what she wanted and she said, “Yes, sir.”
BY THE COURT: You can’t tell what she said. Just what happened.
A So, he placed the will in front of her and she picked up a pen to sign it after she agreed that’s what she wanted. She picked up a pen. I was sitting opposite her and she asked me, “Dolly, will you help me?”
BY MR. MALOUF: I object
BY THE COURT: You can’t tell what was said. You can tell what happened.
A I helped her sign — I assisted her in the signing of the will.

In 1972 the attorney’s offices were in 'the Capitol Towers Building in Jackson, and it was in this building that the 1972 will was prepared. Prior to 1976 the attorney and his firm had moved to the Deposit Guaranty Building. Laverne was positive that the 1976 will was executed in the Capitol Towers Building.

On cross-examination she testified McMullan and Mrs. Givens were both in the room when she helped Sarah sign the instrument, and they both saw her help Sarah sign. She testified she was sitting across the table from Sarah, and demonstrated before the jury, with the court reporter, how she reached across the table, placed her hand on Sarah’s and helped her sign the instrument. According to her, McMullan was sitting at the head of the table when she reached across and assisted Sarah in signing.

She testified she could not say Sarah read the will, that she looked at it, and as best she knew Sarah did not read the complete will.

Interrogatory Number Seven to the proponents was as follows:

REQUEST NO. 7. PLEASE STATE WHETHER YOU EVER ASSISTED SARAH KENNEBREW IN ANY WAY IN THE PLANNING, DRAWING, MAKING, OR EXECUTION OF HER WILL DATED NOVEMBER 24, 1976.

Laverne’s answer to this interrogatory was “no.”

When asked to explain this answer, she testified: “I may have misunderstood. I was thinking about the planning, drawing, and making of the will. I didn’t help her with the planning, drawing, and making.” Her attorney then stated that was his interpretation as well. She admitted that she had conferred with the attorneys in preparing the answers to the interrogatories. She surmised it was an oversight on her part in answering as she did.

She testified she had said all along to her lawyers that she had assisted Sarah in signing the will, and that they knew it. When asked whether her lawyers had attempted to explain “execution” to her, she said she did not remember.

The record also discloses the following:

Q You mean from the very beginning you told Mr. Richardson and Mr. Ferrell that you helped her write the signature?
A No. I helped her; I assisted her.
Q What I am asking you: When did you first disclose this fact to Mr. Richardson and Mr. Ferrell?
A NO ANSWER BY WITNESS.

As to Sarah’s eyesight in 1976, she testified that Sarah “could see some but her eyesight wasn’t the best' at that time.” Also, “she could see you if you walked into the room.” And, “she could read some but I don’t know how well.” Laverne agreed that she had been with Sarah on both occasions in 1973 at the Bank of Flora when the bank accounts were changed.

The proponents offered as their final witness Frank Kelley. It developed Kelley had been in the courtroom prior to calling him as a witness, and heard some of the testimony. Upon objection, the Chancellor excluded his testimony. The proponents questioned Kelley in chambers by way of offer of proof.

The jury was instructed, and rendered a verdict against the validity of the will. Decree was thereupon rendered that the will was invalid.

LAW

Miss.Code Ann. 91-5-1 provides in pertinent part:

Every person ... shall have power, by last will and testament, to devise ... provided such last will and testament ... be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction.

Appellants strenuously urge that the un-contradicted proof shows the execution of this document complied with the statute.

The question before us is whether a jury issue was made whether there was a compliance with the statute. We are compelled to conclude the Chancellor made no error in submitting this issue to the jury.

This conclusion is forced upon us by the conduct of the proponents. When the petition to contest was answered, the proponents had opportunity to set forth the circumstances under which the will was executed. They knew the contestants were specifically charging the signature to the will was not Sarah’s. Yet, their answer denies all such allegations in the petition. Again, on request for admission, they were presented with a golden opportunity to explain how the instrument was executed. They denied the request for admission under oath.

Then, interrogatories were propounded, attaching a copy of the signature to the 1976 instrument, and the proponents were specifically asked to explain in detail how they knew the signature to the will was the actual signature of Sarah’s.

Lilly Cooper, who had known Sarah all her life, and with whom Sarah lived the last seven years of Sarah’s life, answered under oath, “It is her signature because it is her handwriting.”

Lilly Cooper obviously knew something about Sarah’s handwriting, and she just as obviously knew it was not Sarah’s “actual signature.”

Laverne Webster answered under oath, “I saw her sign the will.”

The troubling aspect of this matter does not end here. Mrs. Givens, the secretary who testified Sarah was trembly and needed help, also assisted her employer, Mr. McMullan, in preparing the June 23, 1981 affidavit — over a year after suit was filed and about four months from trial. According to Mr. McMullan’s testimony, he discussed the matter with Mrs. Givens, she typed it, and she took the oath. This affidavit states, “I did not see anyone assist this individual in the signing of her will.”

If Mrs. Givens testimony is given credence, on June 23, 1981, she knew her employer was signing an affidavit giving a distinctly false implication: that no one assisted Sarah in the signing of the will. She and Mr. McMullan obviously would know whoever read the affidavit would conclude Mr. McMullan, as a subscribing witness, actually saw Sarah sign, and that since he saw her sign, he was also making oath nobody assisted Sarah.

It is absolutely beyond belief that Mrs. Given would permit her employer to sign such an affidavit, with her then and there knowing Laverne Webster reached across the table and assisted Sarah in signing the document. And, right in front of Mr. McMullan, who was sitting at the head of the table!

In oral argument before this Court, counsel for the proponents stated he learned the will was not signed by Sarah about a week prior to trial. Yet, counsel did not disclose this to the court or jury at the beginning of trial. Instead, all witnesses, including the experts, who testified this was not Sarah’s signature were vigorously and emphatically challenged. It was only after the contestants had put on overwhelming proof that the signature was not Sarah’s and rested their case, that any disclosure of Laverne Webster assisting Sarah was brought to light.

We have listed just some of the aspects of this matter which warranted submission of the execution of the will to the jury.

There is, of course, nothing wrong per se in any elderly, infirm or physically incapacitated person having assistance in making a signature and the statute in the execution of wills expressly authorizes another person to affix the testator’s signature. Yet, this was never brought to light by the proponents until they had to.

In view of the positive, unequivocal answers of Laverne Webster, Lillie Cooper and Frank Kelley in their pleadings and under oath in discovery proceedings, a serious question is presented on whether contradictory testimony should have been permitted. See: Gates v. Murphree, 286 So.2d 291 (Miss.1973); Callender v. Cockrell, 217 So.2d 643 (Miss.1965); Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565 (1957).

Even conceding the testimony was admissible with their explanation, a corollary to this case can be found in homicide prosecutions. Under the familiar Weathersby rule, where the defendant is the sole wit- ’ ness, his testimony must be accepted as true unless substantially contradicted by physical facts of by facts of common knowledge. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). Yet, if the defendant has given a prior contradictory statement on any material fact, the rule does not apply, and it then becomes a jury question whether or not to believe the defendant, and the jury whether or not to believe the defendant, and the jury is entitled to take into account his testimony and the pre-trial statement. Harrelson v. State, 217 Miss. 887, 65 So.2d 237 (1953). Moreover, the jury was entitled to consider the signature to the will, Laverne Webster’s explanation of how she assisted Sarah in signing the instrument, and the opinion of the handwriting experts on the credibility of the signature being executed under this circumstance.

A jury question is clearly present in this case as to whether the will was executed as required by statute.

This Court has long given the testimony of subscribing witnesses to a will great deference. A duty devolves upon such witnesses greater than witnessing an ordinary instrument. In Fortenberry v. Herrington, 188 Miss. 735 at 747, 196 So. 232 (1940), we stated:

The attesting witnesses must not only witness the signing and publishing of the will by the testator, but it is also their duty to satisfy themselves that he is of sound and disposing mind and memory, and capable of executing a will... For this reason, in the case of Brock v. Luckett’s Ex’rs., 4 How. 459, this court said that the testimony of these subscribing witnesses is entitled to greater weight than the testimony of witnesses who had no such duty to perform, and especially is entitled to greater weight than the testimony of who were not present at the time of executing the will, and especially is this true of those who did not see the testator the day of its execution....
The attesting witness to a will may express an opinion as an expert upon the testamentary capacity of the testator.

In according this deference, it is our hope that subscribing witnesses be advised by counsel of their corresponding duty to that testator. A witness to a will should be some person acquainted with the testator, and having no interest, direct or indirect, as a beneficiary. He should be impressed with the necessity of specifically observing the testator and other person sign the will. He should be impressed with the necessity of being satisfied that the testator understands it is a will, and that it expresses the wishes of the testator. Finally, the will should be signed in privacy, with no other persons present than the testator, his attorney and the witnesses, unless required by unusual and compelling circumstances. The presence of some persons who could cast cloud or suspicion on this solemn occasion should be scrupulously avoided. In most of the will contest cases which come before this Court, we find one or more of these simple precautions have been ignored.

DEAD MAN STATUTE

It is argued the testimony of Ruth Bell Kennebrew, the first wife of Mulberry and a devisee under the will, violated the Dead Man Statute, Miss.Code Ann. 13-1-7. The testimony of this witness for the contestants was against her own interest as devisee, not to establish her own claim or interest, and therefore was competent. See: Veazey v. Turnipseed, 219 Miss. 559, 69 So.2d 379 (1952); Estes v. Estes, 200 Miss. 541, 547, 27 So.2d 854 (1946); Birchett v. Hundermark, 145 Miss. 683, 694, 110 So. 237 (1926).

CONTESTANTS’ STANDING TO SUE

In a separate action the contestants alleged that Ruth and Mulberry were never divorced, and that Ruth was an heir-at-law of Mulberry’s. By a separate motion to dismiss, or plea in bar, the proponents sought to dismiss the petition because of the illegitimacy of Lee and Campbell Ken-nebrew. The Chancellor overruled the motion and plea.

The proponents never denied the contestants were in truth and in fact the natural children of Mulberry’s, and therefore the natural grandchildren of Sarah’s. Their claim is simply that these two grandchildren, being illegitimate, have no interest in this estate, and no standing to petition the will. A simple answer to this would be the fact that there remains a 1972 will and codicil in which they received a greater share in the estate, and which may very well be subject to probate.

Moreover, on the merits, the record shows there was a ceremonial marriage between Mulberry and Frances Campbell, and thereafter Lee and Campbell were born of this union. Thus, there is no impediment to their inheriting as lawful heirs-at-law of Mulberry’s. See: Miss.Code Ann. 91-1-5 (1981 and 1983 supplement); Vance Witt, Admr. v. Mitchell, 437 So.2d 63 (Miss. 1983).

EXCLUDING TESTIMONY OF FRANK KELLEY

The rule was invoked at trial. When the proponents offered Frank Kelley as a witness, the contestants objected. Kelly was a party defendant, a son of Edd Kelley, who was a devisee under the will. Kelley had been in the courtroom the previous day when one of the handwriting experts testified. Because of the violation of the rule, the Chancellor would not permit Kelley to testify before the jury. In chambers the proponents made proferí of his testimony by examining him and the contestants cross-examined him. The refusal of the Chancellor to permit his testimony before the jury is assigned as error.

There would ordinarily be the question about the competency of Kelley to testify as violative of the Dead Man Statute. Brief and argument of counsel, however, state Edd Kelley pre-deceased Sarah, and since the will contains no anti-lapse provision, the devise to Edd Kelley lapsed under the statute. See: Miss.Code Ann. 91-5-7.

We have often stated that it is discretionary with the trial judge whether to permit a witness who has violated the rule to testify. In Chilcutt v. Keating, 220 Miss. 545, 71 So.2d 472 (1954), we held that permitting a witness to testify after violating the rule was not error.

In Moore v. Chambers, 199 So.2d 261 (Miss.1969), we reversed a trial court’s refusal to permit a party to testify after first being called as an adverse witness by the opposing side. That case involved some misunderstanding as to the invocation of the rule, however, as well as a party who had already testified as an adverse witness.

In four criminal cases we have affirmed two convictions of defendants when the state, over defense counsel objection, was permitted to call a witness who had violated the rule to testify, and likewise affirmed two convictions of defendants when the circuit judge refused to permit the defense to call a witness to testify who had violated the rule.

In Triplett v. State, 230 Miss. 707, 93 So.2d 654 (1957) and Humphreys v. State, 217 Miss. 909, 65 So.2d 226 (1953), we affirmed where the state, over the objection of the defendant, permitted witnesses to testify who had violated the rule. In Goss v. State, 413 So.2d 1033 (Miss.1982) and Ford v. State, 227 So.2d 454 (Miss.1969), we affirmed the convictions of defendants when the circuit judge refused to permit witnesses who had violated the rule to testify as defense witnesses. In Goss we did have some discomfort with the ruling, and suggested it would be preferable for the circuit judge, in the exercise of his discretion, to lean towards admitting the testimony.

From the record, Kelley’s testimony in chambers would appear to be somewhat less than completely satisfying to the proponents, and we do not fully understand the contestants objection to his testifying before the jury.

These matters rest within the sound discretion of a trial judge there on the scene, and we are most reluctant to reverse a trial judge on his ruling as to whether a witness who has violated the rule should testify.

Nevertheless, in this case Kelley stated to the Chancellor, presumably under oath, that he had only been in the courtroom about three minutes on the previous day, and we believe he should have been permitted to testify. The right to call a witness is such an important right, we believe, as we stated in Goss, that trial judges should, where they can, lean towards permitting such a witness to testify.

The Chancellor conducted this difficult trial with considerable discernment and ability, and it is with reluctance we feel constrained to reverse on this one question.

There was no cross-appeal on the Chancellor’s permitting Laverne Webster to testify, over the objection of the contestants, as being violative of the Dead Man Statute, and we do not address her competency, or whether it was waived by the request for admissions, and the interrogatories propounded to her.

Upon remand, the issues of undue influence and testamentary capacity will not be foreclosed to the contestants. In view of the testimony of the proponents witnesses, there may very well be an issue of undue influence as well as testamentary capacity upon retrial. These witnesses’ testimony, coming as a complete surprise to the proponents, would make it unfair to foreclose from the contestants the opportunity upon retrial to also attack the will on these grounds.

REVERSED AND REMANDED.

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

BOWLING and DAN M. LEE, JJ., not participating.

      . The record is not clear as to the relationship of some of the beneficiaries, whether kin by blood or marriage, and it is entirely possible some are no relations. Frank Kelley appears to be a great nephew. One of the attorneys stated in oral argument Laverne Webster was a "distant” cousin.