author: DAN M. LEE, Justice,

text:
    MONROE COUNTY ELECTRIC POWER ASSOCIATION and T & M Steel Erectors, Inc. v. Terry PACE.
    No. 54519.
    Supreme Court of Mississippi.
    Dec. 12, 1984.

      John W. Crowell, Gholson, Hicks & Nichols, Columbus, Michael D. Greer, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellants.
    David W. Houston, III, Houston, Cham-berlin & Houston, Aberdeen, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

I.

This is an appeal from the Circuit Court of Monroe County wherein the jury returned a verdict in favor of the appellee, Terry Pace, against the appellants, Monroe County Electric Power Association and T & M Steel Erectors, Inc. This suit was initiated by Pace when he filed a declaration on May 1, 1980, which alleged that he was injured as the result of the negligence of the appellees and a third defendant, Mitchell Engineering. Following the trial, the circuit judge granted a directed verdict to Mitchell Engineering.

Pace was injured while at work on November 10, 1979. His injury occurred as the result of coming into contact with a high voltage “feeder” power line which was strung over the roof of a building Pace was working on. Briefly, Pace argued that T & M Steel Erectors, Inc. (T & M) was negligent for erecting the building directly under the high tension wires so as to leave the wires no more than approximately four feet over the roof of the building. Pace also alleged that Monroe County Electric Power Association (The Power Company) was negligent in failing to inspect the wires, become aware of the danger, and remedy that situation.

The jury returned a verdict for Pace against the two appellees and assessed his damages at $75,000. A judgment was entered accordingly. From that verdict and judgment the appellees bring this appeal.

II.THE FACTS

On November 10,1979, Terry Pace was a 17-year-old laborer for Hamilton Electric Gin. When Pace arrived at work that morning he had been working for Hamilton Electric Gin six weeks. Pace testified that soon after arriving at work he was told to get a ladder and climb onto the roof of'the molt press shed and begin cleaning out a vent on top of that roof. Pace had never been on the roof before. Pace worked with Carl Lee and Jimmy Revord to clean wet cotton lint out of the vent. Lee and Revord were pulling the lint out of the vent and Pace was scooping it up in an aluminum scoop, taking it to the side of the building and throwing it over. The roof was covered with approximately three inches of damp cotton lint. As Pace was carrying a scoop full of the cotton lint to the side of the roof, he accidentally hit a high voltage power line which ran across a section of the roof. The next thing Pace remembered was being carried off the roof in great pain. Pace testified that he was unaware of the presence of the high voltage lines and that no one had warned him about them.

There is no need to detail the full extent of Pace’s injuries. He suffered severe burns on his neck, right shoulder and both feet. Portions of both feet had to be amputated. In addition to the extreme pain from the initial injury, Pace had to undergo painful whirlpool treatments twice a day for approximately twenty-five days. Pace’s recuperation and rehabilitation were lengthy. He has a twenty-eight percent disability of his feet and legs and continues to complain of a loss of balance, inability to run, difficulty in walking up an incline and the inability to stand for longer than fifteen to twenty minutes.

Mariis E. Mink, general supervisor for the hamilton Electric Gin, testified that the molt press shed was built in June, 1977. Mink stated that Robert Parham, superintendent of Amory Cotton Oil Company and Mink's supervisor, had initiated the building of the molt press shed. According to Mink, Parham contacted Mitchell Engineering, who drew up the plans for the shed. The plans and building materials were purchased from Mitchell Engineering but the assembly of the building was contracted to T & M.

Mink testified when the T & M construction team arrived on the scene, Hamilton Electric Gin had already caused a concrete foundation, complete with anchor bolts, to be poured. As per Parham’s design, the molt press shed was to be constructed next to an existing building so as to use the wall of the existing building as one of the walls of the press shed. This design also required that the molt press shed be erected directly under high voltage “feeder lines” which brought electricity from the power lines to the Gin’s transformers, located behind the molt press shed.

Mink further testified that when the T & M construction team arrived they wanted to know if the high voltage feeder wires running over the construction site were hot. Mink testified that Parham told them no, that the energy to those lines had been cut off at the fuses on the pole.

Mink added that these high voltage lines leading to the Gin were energized every Fall and de-energized every Spring. In other words, the high voltage wires carried electricity only during the ginning season. The Power Company had always been responsible for turning the electricity on and off.

After T & M erected the shed, it became necessary to install a vent on the roof. Installation of the vent was accomplished by employees of Hamilton Electric Gin and the services of T & M were not availed of in that project. Following the installation of the vent, representatives from T & M were twice called back to the Gin to repair leaks in the shed they had erected. This required that T & M employees be on the roof of the molt press shed where the installation of the vent was obvious.

Prior to the construction of the molt press shed, the Gin had requested that The Power Company de-energize the high tension lines and the 220 line so that Hamilton could raise the weatherhead on its existing building. The weatherhead is the pipe to which the 220 line is directed from its source at the utility company’s pole. The line went down the weatherhead to the 220 meter. Because Hamilton intended to build the molt press shed, he needed to raise the weatherhead so that the 220 line would not be in the way. Representatives from Monroe Electric came out and cut the power to that line on and off so that this work could be completed.

Mink was responsible for having sent Pace up on the roof to clean out the vent. He testified that he did not remember giving Pace any special warning regarding the power lines other than a general warning sometime earlier to be careful.

Interrogatories propounded to The Power Company from Mitchell Engineering and Terry Pace were introduced into evidence. Among the information contained in those interrogatories is the following: The power lines along the road on which Hamilton Electric Gin sat were erected in 1939. The lines carried 12,500 volts. The feeder lines to the Gin were erected in 1964 and also carried 12,500 volts. Monroe County Electric Power Association retained ownership of the main lines and feeder lines. From the roof of the molt press shed to the high voltage feeder wires was a distance of forty-two inches. The Power Company energized and de-energized the lines once per year. There was no warning on any of the lines. The Power Company had not inspected the lines after the molt press shed was built. The National Electrical Safety Code regulates the erection and maintenance of electrical wires in Monroe County and sets the standards by which the Monroe County Electric Power Association operates. The lines in question did not comply with that Code. At Hamilton’s request The Power Company had raised the 220 volt line which ran alongside the 12,500 volt feeder lines. Employees and the operating superintendent of the Monroe County Electric Power Association observed the molt press shed; however, none observed the high tension wires running over it.

Robert Parham, superintendent of the Amory Cotton Oil Company and general manager of the Hamilton Electric Gin, testified for Terry Pace. Parham stated that he was responsible for purchasing the molt press shed, having it erected and installing the molt press. Parham testified that Mitchell Engineering gave him a foundation plan and poured the foundation which included anchor bolt settings to attach the shed to the foundation.

Parham testified that Buck Tieg, a sales representative for Mitchell Engineering, came to the Gin site to discuss the plans and erection of the molt shed. Tieg asked Parham if the high tension lines running over the construction site were hot. Par-ham assured him that the lines had been de-energized. At Tieg’s suggestion, Par-ham hired T & M to do the actual construction of the building after Mitchell furnished the supplies.

Parham stated that the T & M representative, James Herrington, asked him if the power to the high voltage wires was on. As he had done for Tieg, Parham assured Herrington that the lines had been de-ener-gized for the construction of the building.

Parham stated that he never did call The Power Company and ask them to move the feeder lines. He also admitted that the vent which was installed on top of the molt press shed was not in the original plans as drawn up by Mitchell Engineering.

Damon Wall, the assistant dean of engineering and an associate professor of electrical engineering at the University of Mississippi, was called by Terry Pace as an expert witness. Wall testified that he was familiar with the National Electrical Safety Code and that that Code set standards intended to promote safety and govern the conduct of those dealing with electricity. Wall further testified that Section 23-4 of the National Electrical Safety Code required a minimum clearance of ten feet for the safe operation of high voltage lines. Wall was of the opinion that the high voltage wires in question constituted an unreasonably dangerous condition for persons required to work on the roof. He stated that Section 214 of the National Electrical Safety Code required the inspection, reporting and repair of dangerous lines. That section reads:

Lines and equipment shall comply with these safety rules when placed in service.

According to Wall this provision of the Safety Code was violated by The Power Company each time it re-energized the high voltage lines following the construction of the molt press shed. Wall testified that in his opinion the Code required that all lines be checked before they were put back in service. Wall further stated that he was familiar with the provisions of the National Electrical Safety Code Section 214(a)(2) which reads:

Lines and equipment shall be inspected from time to time at such intervals as experience has been shown to be necessary.

And subsection (a)(5) which reads:

Lines and equipment known to be defective so as to endanger lives or property shall be promptly repaired, disconnected or isolated.

James Herrington, the President of T & M, testified that when they erected the molt press shed they used precut materials which had been fabricated at Mitchell Engineering. Herrington testified that he and his employees had encountered high tension lines over their construction area on previous occasions but that they had never removed them. Herrington stated that he saw the high tension wires prior to the erection of the molt press shed but that he was unaware that the erection of the building brought its roof to within less than eight feet from those wires. He admitted that if high voltage lines interfere with his work he generally asks the owner of the wires to move them. He stated that he depends on the owner of the lines to take care of any clearance problems. According to Herrington, this was the custom and practice in the erection industry.

Herrington testified that he never knew the molt press shed’s purpose or that a vent would be installed on its roof. He admitted being on the roof of the building at least once during its construction and could have seen the roofs proximity to the power lines. Herrington denied that he had any reason to believe that access would ever be required to the roof’s building.

Kenneth Miller, the operating superintendent at The Power Company, testified that the high tension wires measure forty-two inches above the roof of the building. He admitted that representatives from The/ Power Company read electric meters at the Gin on a monthly basis. The Gin had two electric meters, one for the high tension wires which were activated only during the ginning season, and another for the 220 line which ran power to the Gin’s office year-round. The 220 meter was read on a monthly basis throughout the year and the high voltage meter was read once a month during the period the lines were energized.

Miller testified that all of the meter readers for The Power Company are trained to report any dangers or dangerous conditions they observe. He further stated that the location of the high tension wires in such close proximity to the building constituted a dangerous condition and that had his workers observed those lines, they would have moved them. He stated his workers tried to observe the lines but he could offer no explanation for why the dangerous condition was not observed and reported at least once during the twenty-nine times representatives of The Power Company came to the premises of the Gin and read the electric meters between the date of the erection of the building and that of the accident. Miller further testified that The Power Company had a formal policy of inspection of all lines once every three years. He admitted that it was no difficult task to observe the lines in question.

Frank Finney was called as a witness for The Power Company. Finney was a serviceman who read the Hamilton Electric Gin meters. Up until April, 1977, two months before the erection of the molt press shed, it was part of Finney’s job to routinely check the condition of the lines leading to the transformers and meters at the Gin. He stated that all servicemen are instructed to make visual inspection of power lines and to report any problems or dangerous conditions. Finney admitted that he was in the Hamilton Electric Gin area after the erection of the molt press shed but that he never noticed that the new building was under high tension lines. He stated that had he seen the condition, he would have reported it.

James K. Benton was also a serviceman for the Monroe County Electric Power Association. Benton was on hand the day Hamilton Electric Gin raised the weather-head. Benton was responsible for de-ener-gizing and then reenergizing the power lines following the raising of the weather-head. This occurred in the Spring of 1977, prior to the erection of the molt press shed. Benton testified that no one mentioned to him there was any intention to build the shed.

Benton further testified that from the Spring of 1977 through the date of the accident, he inspected power lines in the Hamilton area although he could not specifically recall inspecting the lines at the Gin. Benton was in the area at least once a week and he was certain that other representatives of The Power Company were in the same area doing the same thing. Benton stated that had he observed the lines he would have reported their condition because they unquestionably constituted a danger. Benton later testified that he might have seen the molt press shed but did not get close enough to “observe” it. Benton affirmed that The Power Company meter readers were at the Gin at least once a month and that they had a duty to inspect the condition of the wires.

Huel Riddle, a serviceman and meter reader for The Power Company, testified thijt he read the electric meters at the Gin from 1977 through 1980. He was also present when the weatherhead at the Gin was raised. Riddle testified that he never observed any problem with the high tension lines. He stated that he was in the area every day and although the lines were not difficult to see, he simply failed to observe them. Although Riddle admitted that he had a duty to inspect those wires, he testified that he failed to inspect the transformers at the Gin for a period of two and one-half years. Riddle stated that he energized and de-energized the power once a year for the Gin from 1977 through 1980. He admitted that he never did perform an actual inspection of the wires other than to simply look up at them. Riddle stated that if he turned the power on and there wasn’t an immediate short or fire, he considered the lines free of defect. Although he had earlier denied observing a problem with the lines, Riddle admitted seeing their condition as it related to the proximity of the molt press shed. He further acknowledged that he failed to report that condition.

On the above detailed evidence the jury deliberated and returned a verdict for Pace.

III. THE LAW

Because there are two appellants in this cause, some of the assignments of error overlap. We have set them out separately except where they overlap.

A.

MONROE COUNTY ELECTRIC POWER ASSOCIATION ASSIGNMENT OF ERROR NO. I

THE REFUSAL OF INSTRUCTION D-MC-13

The Power Company argues that the court erred in failing to grant Instruction D-MC-13. The circuit court refused to grant this instruction on the ground that it was repetitive. The requested instruction reads:

You are instructed that it is the law in Mississippi that no person, firm, partnership, or corporation shall require or permit any employee to enter upon any building or other premises and there engage in any operation or function whatsoever where to do so would bring such employee within eight (8) feet of a high voltage overhead line. You are instructed that as a matter of law this law was violated by the employer of Terry Pace when it required Terry Pace to go up on the roof and perform certain work which would reasonably require him to get within eight (8) feet of a high voltage overhead line. Such conduct on the part of the employer of Terry Pace is negligence and if you believe such negligence was the sole proximate cause of the injuries suffered by Terry Pace, then it shall be your sworn duty to return a verdict for Monroe County Electric Power Association.

The thrust of The Power Company’s argument is that § 45-15-3 of the Mississippi Code Annotated (1972) was not adequately included in any of the instructions and that the violation of this safety statute was negligence per se, entitling The Power Company to an instruction to that effect. We are of the opinion that D-MC-13 embodies the principles of § 45-15-3 and instructs the jury that if those principles are violated, such violation is negligence per se.

In White v. Mississippi Power & Light Co., 196 So.2d 343 (Miss.1967), this Court held that the violation of the statutory predecessor to § 45-15-3, although negligence, did not act to insulate the power company from its own negligence in failing to exercise due care in properly constructing its lines and maintaining and inspecting them so as to keep them in a safe condition.

In Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2 (1963), this Court held that a power company could be held liable where it either knew, or in the exercise of reasonable care, should have known, of a dangerous situation which existed in relation to its power lines. The Court relied on the fact of the power company's continued maintenance of its uninsulated high tension wires at the site and its duty to maintain those wires in a condition so that there was no reasonable cause to anticipate that people would be exposed to danger because of them. We there held:

The principal basis for determining liability of a power company for injuries resulting from contact between its wires and a crane or other moving machinery is the foreseeability of a situation arising which might lead to such injuries. If a reasonably prudent person in the position of the defendant should have anticipated dangers to others from its installations, the defendant may be held liable.

248 Miss. at 243, 158 So.2d at 16.

The opinion went on to state that:
It is well settled by the decisions of this Court that there may be more than one proximate cause of an injury; and that, if the appellant’s negligence proximately contributed to the injury, the appellant is liable even though its negligence was not the sole proximate cause of the injury.

248 Miss. at 252, 158 So.2d at 20.

We are of the opinion that these principles of law and those principles embodied in Instruction D-MC-13 were adequately presented to the jury. Numerous other instructions inform the jury that if the sole proximate cause of Pace’s injuries was attributable to anyone other than The Power Company, then The Power Company must be absolved of liability.

We briefly set forth the essence of those instructions:

I.D-MC-1. This instruction tells the jury that under the law in Mississippi an employer has an absolute duty to provide a safe place for its employees to work. It tells the jury that if Terry Pace was assigned to work in an unsafe place, then his employer was negligent. It further tells the jury that they find that Pace’s employer’s negligence was the sole proximate cause of the accident, then it was their sworn duty to return a verdict for the defendants.

II. D-MC-3. This instruction informs the jury that the Amory Cotton Oil Company had a duty to keep Terry Pace’s working premises in a reasonably safe and suitable condition or, in the alternative, warn him of any defects or dangers. The instruction further informs the jury that if Amory Cotton Oil Company failed to do this, it was guilty of negligence, and if that negligence was the sole proximate cause of Pace’s injuries, it was the jury’s duty to return a verdict for the defendants.

III. D-MC-4A. This instruction set forth the essential provisions of § 45-15-3 Miss.Code Ann. (Miss.1972). It informed the jury that if either Pace’s employer or T & M had violated the provisions of that statute by erecting a building so as to place Pace within eight feet of the high voltage wires that conduct was negligence and if that negligence was the sole proximate cause of Pace’s injuries, then it was the duty of the jury to return a verdict for the power company.

IV. D-T-13. This instruction told the jury that if Pace’s employers were negligent in allowing him to go onto the roof and that if such negligence was the sole proximate cause of Pace’s injuries or was combined with the negligence of Pace or the power company, then it was the duty of the jury to return a verdict of T & M.

There having been ample instruction on this point, we are of the opinion that the circuit court was correct in refusing to grant D-MC-13 as repetitive.

B.

MONROE COUNTY ELECTRIC POWER ASSOCIATION ASSIGNMENT OF ERROR NO. II.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING INSTRUCTION P-20?

Instruction P-20, given at the request of Pace, reads as follows:

The Court instructs the jury that if you find from a preponderance of the evidence that the Defendant, Monroe County Electric Power Association, violated the standards provided by the National Electrical Safety Code in maintaining and operating its overhead high voltage wires less than ten feet in height from the roof of the molt press shed, when it had knowledge of said condition or in the exercise of reasonable care should have known of the condition then the Defendant, Monroe County Electric Power Association, is guilty of negligence per se, and if you believe from a preponderance of the evidence that such negligence was the proximate cause or a proximate contributing cause of the injuries to Plaintiff, then you should return a verdict for the Plaintiff.

The Power Company’s principle argument here is that P-20 was defective because there was no specific reference to the National Electrical Safety Code provisions which were violated and that the instruction peremptorily instructed that The Power Company was negligent as a matter of law. The Power Company also argues that the use of Latin idioms in an instruction constitutes reversible error.

As to its peremptory nature, a reading of the instruction defeats this assertion. The instruction obviously requires that the violation of the National Electrical Safety Code standards must either have been known or should have been known in the exercise of reasonable care. Therefore, the instruction was not peremptory as it allowed the jury to determine \yhether the violations of the National Electrical Safety Code were known or should have been known in the exercise of reasonable care by The Power Company.

As to the argument that the instruction is vague and overbroad because it does not define which of the National Electrical Safety Code standards were violated, the only provisions of that Code which were relevant for the jury’s consideration were those referred to by the expert witness, Damon Wall. Wall specifically referred to provisions which require the inspection of electrical lines and replacement of defective lines prior to energizing those lines. We are of the opinion that because reference at trial was limited to specific provisions of the National Electrical Safety Code those were the only provisions which the instruction could have referred to. We are further of the opinion that this is the only reasonable interpretation the jury could have given P-20 and that the instruction was therefore not confusingly vague.

As to the use of Latin idioms, it is true that in Illinois Central Railroad Company v. Pigott, 254 Miss. 429, 181 So.2d 144 (1965), this Court cautioned attorneys throughout the state that Latin idioms should not be incorporated into jury instructions. Regardless, the Court’s decision to reverse that cause was not founded in the use of Latin idioms, rather it found that the substance of the instruction was error. Acknowledging that it is certainly preferred that Latin idioms not be used in instructions, we cannot say that the use of the term “negligence per se” as it appears in Instruction P-20 constituted reversible error.

C.

T & M’S ASSIGNMENT OF ERROR NO. I

IS THE VERDICT REVERSIBLE BECAUSE AN EMPLOYER HAS A NON-DELEGABLE DUTY TO SAFEGUARD HIS EMPLOYEES BY PROVIDING THEM WITH A SAFE PLACE TO WORK.

Unquestionably T & M is correct when it asserts that an employer owes its employees the nondelegable duty of providing its employees with a safe place to work. Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916 (1911). The downfall of this argument is not that it is incorrect; rather, it is incomplete. The jury was correctly instructed that Terry Pace’s employer owed him a duty to provide him with a safe place to work. They were instructed that if Pace's employer’s negligence was the sole proximate cause of his injuries then they must return a verdict for the defendants. Obviously, the jury must have believed that to whatever degree Hamilton Electric Gin was negligent, it was not the sole proximate cause of Pace’s injuries. As stated above, it is a well settled rule in this state that there may be more than one proximate cause of an injury. Therefore, although the jury may have determined that Hamilton Electric Gin was negligent, that does not prohibit them from finding that T & M’s negligence was a proximate cause of Pace’s injuries. Mississippi Power & Light Co. v. Walters, supra. We believe that the jury was correctly instructed on these points and, as they are the ultimate finders of fact, we find no merit to this assignment of error.

D.

T & M’S ASSIGNMENT OF ERROR NO. II

IS A CONTRACTOR WHO COMPLETES A JOB ACCORDING TO THE PLANS AND SPECIFICATIONS OF THE OWNER LIABLE TO THE OWNER’S EMPLOYEE WHO IS INJURED TWO YEARS AFTER THE PROJECT IS ACCEPTED BY THE OWNER WITH FULL KNOWLEDGE OF ANY DANGEROUS CONDITIONS THAT MIGHT EXIST ON THE PREMISES?

T & M correctly argues that the general rule, and the rule in this state, is that where a contractor has turned over work and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work and the liability, if any, for maintaining or using the work in its defective condition is shifted to the proprietor. Herring v. Planters Lumber Co., 169 Miss. 327, 153 So. 164 (1934); City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454 (1913). While Pace acknowledges that this is the rule, he argues that this case falls within one of the well recognized exceptions to that rule, i.e., where the contractor turns the work over “in a manner so negligently defective as to be imminently dangerous to third persons.” Holmes v. T.M. Strider & Co., 186 Miss. 380, 189 So. 518 (1939); Herring, supra. The issue then boils down to whether the building, at the time it was turned over to Hamilton Electric Gin was so negligently defective as to be imminently dangerous to third persons. This was a question of fact for the jury upon which they were amply instructed. We are of the opinion that having been properly instructed, there was sufficient evidence for the jury to find both that T & M turned the building over in a condition so negligently defective as to be imminently dangerous to third persons and further that an injury of this type was entirely foreseeable. We therefore find no merit to this assignment of error.

E.

T & M’S ASSIGNMENT OF ERROR NO. III.

DOES MISS.CODE ANN. § 45-15-3 IMPOSE LIABILITY UPON A CONTRACTOR FOR INJURIES TO THIRD PARTIES WHICH OCCUR AFTER THE CONTRACTOR’S WORK HAS BEEN COMPLETED?

Here, we are asked to decide whether § 45-15-3 Miss.Code Ann. (1972) is designed only to protect workers performing activities in close proximity to high power lines at the time they are performing that activity. In other words, was the statute designed to protect T & M’s workers who were constructing the building or, did it also have the purpose of protecting all other persons from the creation of a dangerous condition as the result of the erection of the building? In order to answer this question, it is necessary to look at the statute:

No person shall enter upon any land, building or other premises and there engage in any excavation, demolition, construction, repair or other operation or function whatsoever, nor erect, install, operate or store in or upon any land, building, or other premises any tools, machinery, equipment, materials, structures, apparatus or other thing whatsoever were to do so would bring such person or such thing within eight (8) feet of a high voltage overhead line; provided the prohibitions contained in this section shall not apply in a case where the dangers of accidental contact with such high voltage overhead line have been effectively guarded against by (a) the erection of barriers to prevent physical contact with such high voltage overhead line, or (b) such high voltage overhead line has been de-energized and, where necessary, grounded. Provided, however, nothing herein shall be construed or shall operate to impose upon any person the duty or obligation to effect the precautionary measures described in (a) or (b) next above, at his or its expense, nor shall such person be obligated to de-energize or ground such line or lines where service to the public would be substantially interfered with, or the health, safety or welfare of the public would thereby be endangered.

Section 45-15-3 Miss.Code Ann. (1972)

T & M takes the position that this statute is intended only to protect workers engaged in the activities enumerated therein. They argue that it was not designed as ongoing protection for the general public once the enumerated activities are completed. This is an interesting argument and one which has not yet been addressed by this Court. The cases applying the statute have all applied it to situations where the injured parties were engaged in the enumerated activities. See White v. Mississippi Power & Light, 196 So.2d 343 (Miss.1967); Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2 (1963).

The construction of the statute urged by T & M requires that its literal wording be ignored. The statute prohibits the erection, installation or operation of any tools, machinery, equipment, materials, structures, apparatus or other thing whatsoever where to do so would bring such person or such thing within eight feet of a high voltage overhead line. Clearly then the statute prohibits the erection of a building where such erection would place the building within eight feet of a high voltage line. Because the purpose of the statute is to insure public safety, an interpretation as narrow as that sought by T & M would be illogical. Therefore, this argument has no merit.

F.

MONROE COUNTY ELECTRIC POWER ASSOCIATION’S ASSIGNMENT OF ERROR NO. Ill AND T & M’S ASSIGNMENT OF ERROR NO. IV

DID THE LOWER COURT ERR IN FAILING TO REFORM THE JURY’S INITIAL VERDICT?

After retiring to deliberate, the jury initially returned a bifurcated verdict wherein it assessed separate damages against T & M and The Power Company. That verdict assessed damages against The Power Company in the amount of $45,000 and against T & M in the amount of $18,-000 for a total of $63,000. The court instructed the jury that they were to redraft their verdict so as to reflect a single award. The jury then sent a verbal inquiry via the bailiff as to whether they could increase the amount of damages. The jury was instructed that they would have to write out their inquiry and, rather than doing so, they returned a single verdict for $75,000.

No one argues that the trial court was incorrect in refusing to accept separate verdicts. Nason v. Sanders, 227 So.2d 275 (Miss.1969). Section 11-7-159 Miss.Code Ann. (1972) states:

If the verdict is informal or defective, the court may direct it to be reformed at the bar. Where there has been a manifest miscalculation of interest, the court may direct a computation thereof at the bar, and the verdict may, if the jury assent thereto, be reformed in accordance with such computation.

In Gillespie v. Olive Branch Building & Lumber Co., 174 Miss. 154, 164 So. 42 (1935), the jury returned separate verdicts against joint tort-feasors. The jury assessed damages against one of the defendants at $4,000 and against another at $3,500. The court entered a judgment for $4,000. This Court reversed as to damages and held: “What the court below should have done ... was to direct the jury to return to its room, clear up its verdict, and render one in accordance with the court’s instructions.” 174 Miss. at 162, 164 So. at 43.

In other cases this Court has directed different outcomes. In Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572 (1951), the jury returned a verdict against one defendant in the amount of $20,000 and against another in the amount of $5,000. When the form of the verdict was objected to the jurors promptly replied that they had prepared an alternative verdict against both defendants in the sum of $25,000. This Court affirmed the trial court’s decision to accept the second award.

In Mississippi Central Railroad Co. v. Roberts, 173 Miss. 487, 160 So. 604 (1935), the jury returned two verdicts, one against the first defendant for $8,500 and the other against a second defendant for $1,000. The court directed the jury to retire for further deliberation. The jury soon returned with a verdict against both defendants for $9,500. In approving that action, this Court held:

From the earliest times in the state’s history, it has been the approved practice, when the verdict is not in legal form, or is ambiguous, or imperfect upon its face or is not responsive to the issues, or is beyond the power of the jury in material respects apparent to the face of the verdict or verdicts, to require the jury to retire and to return a verdict which in form and effect will be such as the law allows and contemplates as a perfected return in all its formal parts.

173 Miss. at 506, 160 So. at 607.

Because § 11-7-159 does not require that a verdict be reformed at the bar, it is merely directory. We are of the opinion that the trial court did not err in directing the jury to retire to the jury room and reform its verdict. Because no verdict had been accepted, and no judgment entered, we are of the further opinion that the jury’s decision to increase the amount of damages as awarded does not constitute grounds for reversal.

G.

MONROE COUNTY POWER ASSOCIATION ASSIGNMENT OF ERROR NO. IV.

DID THE TRIAL COURT ERR IN REFUSING TO PERMIT WITNESS HUGH OWENS TO BE COMPLETELY EXAMINED FOR PURPOSES OF FUTURE POSSIBLE IMPEACHMENT?

In this assignment of error The Power Company argues that it was not allowed to impeach the testimony of Hugh Owens, the former foreman of T & M, in front of the jury. Here The Power Company is arguing that it wanted to impeach Owens’ credibility because, although he had testified that T & M had never moved existing power lines before beginning construction, he admitted that on previous occasions T & M had destroyed dilapidated power lines before erecting some projects. The Power Company argues that it would have introduced the testimony of Mr. Miller to show that in a parking lot on the previous day, Mr. Owens had admitted that T & M had relocated power lines in the past when the owner had failed to do so. We have reviewed the proffered testimony and are of the opinion that the circuit judge was correct in his ruling that the testimony of Mr. Owens was not relevant to the issue of the movement of live power lines. We therefore find no merit in this assignment of error.

H.

T & M’S ASSIGNMENT OF ERROR NO. V.

WAS THE NEGLIGENCE OF PACE’S EMPLOYERS A SUPERCEDING INTERVENING CAUSE OF HIS INJURIES?

This assignment of error tests the jury’s determination as to proximate cause. As reflected in the above discussion, the jury was instructed that in order to find against T & M it must find that T & M’s negligence was a proximate cause of Pace’s injuries. As previously stated, an accident may have more than one proximate cause. In Solomon v. Continental Baking Company, 172 Miss. 388, 160 So. 732 (1935), this Court wrote:

[Wjhere an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating and the injury inflicted is not different in kind from that which would have resulted from the prior act.

172 Miss. at 393, 160 So. at 733.

If the jury found that T & M’s actions were a proximate cause of Pace’s injuries they could well have found that the negligence in constructing the building constituted an ongoing dangerous condition. Therefore, having been adequately instructed and, having a plausible factual scenario on which to make its finding, the decision of the jury as to whether T & M was negligent and whether that negligence was the proximate cause of Pace’s injuries will not be overruled by this Court.

Based on all of the foregoing, we are of the opinion that this cause should be affirmed.

AFFIRMED.

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

WALKER, P.J., takes no part.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Glen MATTINA and Anthony Mattina, d/b/a A & G Enterprises v. Steve RODOLFICH, d/b/a Dixie Amusement Company.
    No. 55275.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Michael P. Collins, Michael F. Cava-naugh, Donald C. Doman, Jr., Biloxi, for appellants.
    Russell S. Gill, Biloxi, for appellee.
    Before ROY NOBLE LEE, HAWKINS and SULLIVAN, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Steve Rodolfich, d/b/a Dixie Amusement Company, filed suit in the Circuit Court of Harrison County against Anthony Mattina and Glen Mattina, d/b/a A & G Enterprises, to collect nineteen thousand two hundred thirty dollars seventy-five cents ($19,-230.75) on an account for the sale of eight (8) video games. At the conclusion of all the evidence, the lower court directed a verdict in favor of Rodolfich and the Matti-nas have appealed here.

The appellants have assigned three (3) errors in the trial below, but they all relate to the one question of whether or not the lower court erred in granting the directed verdict.

The appellants own two excursion boats which run from Biloxi to Ship Island and from Gulfport to Ship Island in the Mississippi Gulf Coast Sound. On April 7, 1982, they purchased four video games for installation on their boat operating out of Biloxi. Approximately one week later, they decided to purchase eight additional video games for installation on the Gulfport boat and possibly on Ship Island. The purchase price of those games was $19,230.75. Appellants were delivered three games on April 14, four on April 14, and one on April 16, 1982 (three separate invoices). A check in the full amount of the purchase price was delivered to appellee on April 21, 1982. Subsequently, the check was returned because of insufficient funds in the account upon which it was drawn. This suit for collection of the purchase price, together with interest and attorney's fees, followed.

The trial judge apparently was of the opinion that appellants had not pled their breach of contract defense and that the only question before the court to establish the appellant’s defense were provisions of the Uniform Commercial Code, which were affirmatively pled by the appellants. In ruling on the directed verdict, he said:

BY THE COURT: I’m afraid I’d be taking a chance not to, Don. I think the Supreme Court would reverse it if I didn’t give one. I don’t like to make somebody pay for something that I feel like, I feel like the two Mattinas over here, I honestly feel like they don’t owe it, and I’d hate to tell them that I think as a matter of law you do. I think that’s what I’ve got to 'do. I think the Supreme Court would reverse me if I didn’t do that. I don’t think you’ve shown any defense to the matter. They gave you a check.

The appellants filed an answer to the complaint, denied that they owed the amount sued for and stated in Paragraph II thereof the following defense:

Defendants deny that the check referenced in paragraph II of the Complaint was given in payment but would show that it was given to the Plaintiff to hold until such time as the Defendants accepted the machines. Defendants would further show that the Plaintiff’s attempt to negotiate said instrument prior to the approval of the Defendants was a breach of the agreement between the parties.

The affirmative defenses of the answer dealt with the UCC, but the defense of breach of contract was clearly set forth in Paragraph II of the answer.

Prior to the trial on the merits, appellee filed a motion in limine which sought an order to preclude the appellants from introducing or attempting to introduce any statements, representations or understandings between appellants and appellee concerning the sale of the video machines which are the subject of this suit; specifically to preclude introduction of testimony that the check given as payment for the purchase price of the machines was to be held by the appellee until such time as the defendants allegedly accepted the machines, and that the plaintiff’s attempt to negotiate said instrument prior to the approval of the appellants was an alleged breach of the agreement between the parties. Appellee’s motion in limine was overruled by the lower court on October 5, 1982, prior to the trial on its merits.

The appellants were permitted without objection to introduce evidence covering their principal defense in the case, viz, that they purchased the eight machines from appellee with the condition and understanding that they could try out the machines and determine whether or not the machines were satisfactory, and, if not, appellants could return them to appellee. Likewise, their proof indicated that appel-lee agreed he would not negotiate the check for the purchase price until the Mat-tinas were satisfied with the machines. That evidence followed the defense stated in Paragraph II of the answer.

The lower court was of the opinion that the contract defense had not been pled. Although we hold that the contract defense was pled under Paragraph II of the answer, the attorneys for appellants immediately should have requested permission to amend their answer to conform with the proof, or the trial judge should have suggested that they amend to conform. Rule 15(b), Mississippi Rules of Civil Procedure, states:

Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires. (Emphasis added)

In Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), which has been cited many times since the opinion was rendered, the Court, quoting from General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), said:

“The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to the plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105.”
The quotation above, we believe, expresses the better rule for a peremptory instruction or a judgment n.o.v. since it permits the court to examine the evidence of both parties that is not in conflict, as here, in order to reach a legal conclusion; or stated differently, the jury resolves conflicts of fact — the court resolves issues of law arising from non-conflicting facts.

319 So.2d at 657.

We are of the opinion that the lower court erred in directing a verdict in favor of the appellee and, consequently, the case must be reversed and remanded for a new trial. We again note for the benefit of trial judges the statement made by this Court in Claiborne v. Greer, 354 So.2d 1109 (Miss.1978), following:

Here, the case was tried in its entirety, with nothing remaining except instructions, arguments of counsel and deliberation of the jury. We remind trial judges that, after cases have been heard, where there are close questions of fact and law, requests for directed verdicts and peremptory instructions should be denied. Often times juries return verdicts which agree with the thinking of the trial judge. After verdict, if the trial judge is of the opinion that he should have granted a motion for directed verdict or request for peremptory instruction, he may then sustain a motion for judgment n.o.v. In the event of an appeal to this Court, the matter probably could be resolved finally without the necessity and expense of another trial.

354 So.2d at 1111.

REVERSED AND REMANDED.

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

      . See Rule 8(e)(2), Miss.Rules Civ.Proc.

      . The trial judge who presided at the hearing on the motion in limine and entered the order was Honorable Kosta N. Vlahos. The presiding judge on the trial of the case on its merits was Honorable J. Ruble Griffin.


text:
    David Phillip TURNER v. Maxine TURNER.
    No. 54533.
    Supreme Court of Mississippi.
    Dec. 19, 1984.
    Jerry H. Blount, Sullivan, Sullivan, Blount & Mooney, Jackson, for appellant.
    Rufus Creekmore, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Eddie T. JOHNSON, Jr. v. STATE of Mississippi.
    No. 55287.
    Supreme Court of Mississippi.
    Dec. 19, 1984.
    James P. Vance, Grenada, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: PRATHER, Justice,

text:
    Thomas CARDWELL and Lynn Cardwell v. STATE of Mississippi.
    No. 54490.
    Supreme Court of Mississippi.
    Dec. 19, 1984.
    Rehearing Denied Jan. 16, 1985.

      F.W. Mitts, III, Earl P. Jordan, Jr., Meridian, for appellants.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

A murder conviction against Lynn Card-well and Thomas Cardwell for the death of their child and step-child, respectively, Shawn Everett Newton, was returned by the Circuit Court of Lauderdale County. The court sentenced both defendants to life imprisonment in the state penitentiary.

Thomas Cardwell and Lynn Cardwell appeal, assigning as error:

(1) The trial court erred in overruling defendants’ motions for a severance;

(2) The trial court erred in admitting testimony of Mississippi Welfare Department employees without the proper predicate required by statute;

(3) The trial court erred in allowing into evidence:

(a) Proof of prior acts and offenses by the appellants; and

(b) Photographs of the deceased and

(4) The trial court erred in overruling defendant’s motion for a new trial on the ground that the jury verdict was against the overwhelming weight of the evidence.

I.

On April 11, 1982, in the early afternoon, seven-year old Shawn Everett Newton, the natural child of appellant Lynn Cardwell and the stepchild of appellant Thomas Cardwell, was admitted to the emergency room of Matty Hersee Hospital in Meridian, MS. Shawn, who weighed 27 pounds, was unconscious; his right pupil was dilated and fixed; his upper and lower extremities moved spastically. There was a large knot on the left side of his head and multiple bruises on his face. Because severe head injury was indicated, Shawn was rushed by ambulance to the University Medical Center in Jackson.

Shawn arrived at the University Medical Center in a state of cardio-respiratory arrest. A CAT scan indicated subdural he-matoma (blood clotting beneath the skull) and swelling of the brain. Emergency brain surgery was performed, and the blood clot successfully removed, but the prognosis was very poor. On April 14th, brain function ceased, and on April 17th, death occurred.

On May 7, 1982, the grand jury returned an indictment jointly charging appellants Thomas Cardwell and Lynn Cardwell with the murder of Shawn Everett Newton. Motions for severance filed by both defendants were overruled by the trial court. The State’s case consisted of the following evidence. Robert Ryals, Thomas Card-well’s half-brother who lived next door to Thomas and Lynn at the Vance Trailer Park in Meridian, testified that, around noon on April 11, 1982, Lynn Cardwell came to his trailer and asked Ryals to go check on Shawn. According to Ryals, Lynn said she had caught Shawn eating out of the garbage can and had slapped him down to the floor. Carolyn Runyon, a social worker at the University Medical Center who interviewed Lynn Cardwell on April 11, 1982, testified that Mrs. Cardwell gave her the same explanation for Shawn’s injuries. Velda Roberts, a social worker for the Lauderdale County Welfare Department who questioned Thomas and Lynn on April 12, 1982, was also told by Mrs. Card-well that she slapped Shawn to the floor when she found him eating out of a garbage can.

Dr. Reeda Lyons, of the University Medical Center found a two inch by one inch bruise on the child’s inner left leg, left side of the neck, left thigh and buttocks and three other bruises. The coloring of the bruises indicated that they were fairly new, having occurred within the last three or four days. According to Dr. Lyons, a bruise on the child’s back was older than the others. The coloring of a bruise on the child’s hip indicated that it was between 7 and 10 days old. Dr. Lyons opined that bruises of this sort could not be self-inflicted or the result of an accidental fall. Dr. Lyons’ testimony regarding the location of bruises on the child and the probable cause was corroborated by Dr. Dennis Roland.

Dr. Sanford, associate professor of neurosurgery at University Medical Center, testified that a great deal of force was required to cause an acute subdural hema-toma and that a push by an adult to the floor of a trailer could not cause an injury as severe as Shawn’s. This opinion was also shared by Dr. Rodrigo Galvez, the physician who performed the autopsy on the child.

Joyce Garrett, the principal of College Park Elementary School in Gautier, MS, testified that on October 5, 1981, Shawn was brought to her office by his teacher. Shawn had a cut on the top of his head, red marks across his forehead, a large bruise on his left cheek, bruises on his mouth, a handprint on his right hip, and bruises on the left buttocks. Ms. Garrett’s testimony was corroborated by Joyce Hammond, the school nurse at College Park Elementary. Dorothy Banks, a neighbor of the Card-wells during 1981, described Shawn as skinny and undernourished. Ms. Banks testified that she once saw Lynn Cardwell hit Shawn with a spoon so hard that it made a welt and that on another occasion Lynn hit Shawn with a spoon leaving a one and one-half inch gash. Another neighbor of the Cardwells, John Crocker, testified that he had never seen Tom Cardwell strike Shawn.

Ermie Windham, who owned a wood shop where Tom Cardwell’s father worked, saw Shawn frequently during 1982. Ms. Windham testified that Tom called Shawn “S_0_B_” and “Bastard” and that Tom once bragged that he had made Shawn eat ex-lax until he was so sick that he fainted. According to Ms. Windham, Tom Cardwell also bragged that he threw Shawn out in the yard at 4:00 o’clock a.m. one morning.

At the conclusion of the State’s case, both defendants renewed their motions for a severance on the ground that the evidence presented required antagonistic defenses. The motion was overruled, and the defendants rested.

II.

WAS THE TRIAL COURT IN ERROR IN OVERRULING THE DEFENDANT’S MOTION FOR A SEVERANCE?

The first issue raised by this assignment of error is whether a defendant jointly indicted for a capital crime not involving the death penalty has an absolute right to a separate trial or whether the question of severance is discretionary with the trial court.

Severance in felony cases is governed by Miss.Code Ann. § 99-15-47 (1972), which provides as follows:

Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.

In Price v. State, 336 So.2d 1311 (Miss.1976), this Court addressed the question of whether a separate trial is a matter of right where two or more persons are jointly indicted for a felony. This Court noted that the statutory language regarding severance had been changed from “shall” to “may” in 1880, held that the word “may” in section 99-15-47 should be given its ordinary meaning, and concluded that whether a severance should be granted is addressed to the sound discretion of the trial judge. 336 So.2d at 1310.

Appellants’ argument is based upon Miss.Code Ann. section 1-3-4 and Rule 4.04 Mississippi Uniform Rules of Circuit Court Practice. Miss.Code Ann. § 1-3-4 (Supp. 1983) defines “capital cases” as follows:

The terms “capital case,” “capital cases,” “capital offense,” “capital offenses,” and “capital crime” when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term “capital murder” when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary.

At the time this case was tried, Rule 4.04 of the Mississippi Uniform Rules of Circuit Court Practice provided that “the granting or refusing of severances of defendants in cases less than capital shall be in the discretion of the trial judge.” (Emphasis .added). Appellants argue that, since murder falls within the section 1-3-4 definition of capital cases, and Rule 4.04 only provides that severances shall be discretionary in cases less than capital, a defendant jointly charged with a capital crime is entitled as a matter of right to a severance.

Appellants further argue that, even if the right to severance is discretionary, the trial court abused its discretion in this case since, though each defendant had a right to call the co-defendant as a witness, each co-defendant had a right to invoke the Fifth Amendment. This argument was previously advanced and rejected under similar facts in Fairley v. State, 349 So.2d 1050 (Miss.1977).

Appellants’ constitutional argument is without merit and the denial of severance did not constitute an abuse of discretion.

III.

WAS THE TRIAL COURT IN ERROR IN ADMITTING TESTIMONY OF MISSISSIPPI WELFARE DEPARTMENT EMPLOYEES?

At the trial, Yelda Roberts, a Lauderdale County Welfare Department employee, gave testimony regarding an interview with the appellants conducted on April 12, 1982 during the course of her employment. Jane Tanner, a Jackson County Welfare Department employee, gave testimony regarding her observations while visiting the Cardwell home during the course of her employment. Appellants assign as error the admission of this testimony without the proper predicate required by the Mississippi Youth Court Act.

Miss.Code Ann. § 43-21-257 provides:
(1) Unless otherwise provided in this section, any record involving children, including valid and invalid complaints, and the contents thereof maintained by the department of public welfare, the department of youth services, or any other state agency shall be kept confidential and shall not be disclosed except as provided in section 43-21-261.
Miss.Code Ann. § 43-21-261 provides:
(1) Except as otherwise provided this section, records involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure

The objection to the Welfare worker’s testimony was based on the fact that the worker had information obtained from Welfare Agency records which were confidential. Under the Act, records could be used in another court proceeding only with permission of the Youth Court under Miss. Code Ann. § 43-21-261. However, this record reflects no Youth Court proceeding for child neglect or abuse prior to this incident. The testimony did reflect complaints were made to the Welfare workers, but there is no indication that the complaint resulted in a Youth Court case.

The trial court was of the opinion that the confidentiality provision was enacted for the benefit of the child and that the child’s parents charged with his death had no standing to object to the introduction of this testimony.

This Court concludes that no tangible Youth Court “record” was introduced. Also, the testimony of the Welfare workers did not evidence any information obtained by them from a youth court record. Their testimony addressed their personal observations and experiences. Therefore, this Court concludes no reversible error was made in permitting their testimony. The content of their testimony will be addressed further in the next assignment of error.

IV.

WAS THE TRIAL COURT IN ERROR IN ADMITTING (A) EVIDENCE OF PRIOR ACTS AND OFFENSES BY THE APPELLANTS: AND (B) PHOTOGRAPHS OF THE DECEASED?

A.

At trial, the appellants by motion in li-mine objected to the admission of any evidence relating to incidents or events occurring prior to April 17, 1982, the date of the crime of murder charged in the indictment. The trial court overruled the motion and witnesses on behalf of the State were permitted to testify to events that occurred in the Fall of 1981, which tended to establish that Shawn had previously been subjected to abuse. Appellants assign this ruling as error.

The general rule in this state is that a conviction should be based upon evidence showing guilt of the particular offense charged in the indictment, and proof which shows or tends to show the accused is guilty of the commission of other crimes at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. Readus v. State, 272 So.2d 659 (Miss.1973); King v. State, 66 Miss. 502, 6 So. 188 (1889). There are, however, several well-recognized exceptions to this general -rule. Evidence of other crimes, for example, is admissible to prove motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the persons charged with the commission of the crime on trial. Readus, supra at 661 (and cases cited therein); May v. State, 199 So.2d 635 (Miss.1967) (in prosecution of defendant for murder of wife, testimony of daughter that defendant had on a prior occasion fired a pistol at his wife held admissible to prove intent and absence of accident).

In Aldridge v. State, 398 So.2d 1308 (Miss.1981), this Court held that in a prosecution for felonious abuse and battery of a child under Miss.Code Ann. § 97-5-39, evidence of prior acts of child abuse is admissible to negate the idea that the injuries resulted from an isolated accident. Al dridge was subsequently reaffirmed in Shelton v. State, 445 So.2d 844 (Miss.1984).

We conclude that such evidence is likewise admissible where death results and the prosecution is one for murder. United States v. Colvin, 614 F.2d 44 (5th Cir.1980), cert. denied 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 802 (1980) (in prosecution of mother for second degree murder of daughter, evidence of prior injuries showing “pattern of abuse” held admissible to prove malice aforethought); United States v. Grady, 481 F.2d 1106 (D.C.Circ.1973) (in prosecution of mother for second degree murder of daughter, evidence of previous beatings of child held admissible to prove intent, malice and absence of mistake or accident); Holland v. State, 346 N.W.2d 302 (S.D.1984) (same); State v. Germain, 433 So.2d 110 (LA 1983) (same); Payne v. State, 249 Ga. 354, 291 S.E.2d 226 (1982) (same). The admissibility of such evidence, however, is subject to proof demonstrating that the defendant committed the prior offense. United States v. Colvin, supra at 45; United States v. Beechum, 582 F.2d 898, 912-913 (5th Cir.1978).

This conclusion is in line with this Court’s decision in Daumer v. State, 381 So.2d 1014 (Miss.1980). Appellant Daumer and his wife were jointly convicted for the murder of the wife’s natural son. At the trial, several witnesses testified to events tending to establish prior abuse of the child. On appeal, the appellants did not challenge the admissibility of the evidence of prior acts, but argued that the verdict was against the overwhelming weight of the evidence. In reviewing the evidence on appeal, this Court assigned weight to the testimony concerning prior abuse and the inferences deductible therefrom, thereby recognizing the probative value of such evidence.

This testimony was admissible and we find no error here.

B.

At trial, the appellants objected by motion in limine to the introduction of photographs of the deceased child on the grounds that they were gruesome, inflammatory and had no probative value. The trial court ruled the photographs admissible.

It is well settled in Mississippi that the admissibility of photographs is a matter within the sound discretion of the trial judge. Edwards v. State, 413 So.2d 1007 (Miss.1982). A photograph, though gruesome or inflammatory, may still be admissible as long as its introduction serves some useful evidentiary purpose. Butler v. State, 320 So.2d 786, 789 (Miss.1975). In Stevens v. State, 458 So.2d 726, 729 (Miss.1984), this Court upheld, as serving legitimate evidentiary purposes, the admission of photographs of a murder victim which “established both the multiplicity of blows administered and the extent of force and violence used.” See also Clingon v. State, 293 So.2d 823 (Miss.1974); Dase v. State, 356 So.2d 1179 (Miss.1978).

In the case sub judice, the photographs admitted into evidence corroborated the location of wounds, the multiplicity of wounds and the extent of force and violence used; therefore, the trial court did not abuse its discretion by admitting the photographs.

V.

WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

Appellants’ final assignment of error challenges the weight accorded to the evidence, emphasizing the circumstantial nature of the evidence and the unequal distribution of the evidence vis-a-vis each defendant.

Circumstantial evidence is entitled to the same weight and effect as direct evidence and this Court has upheld convictions based solely on circumstantial evidence. Tolbert v. State, 407 So.2d 815 (Miss.1981); Bogard v. State, 233 So.2d 102 (Miss.1970). In Aldridge v. State, 398 So.2d 1308 (Miss.1981), this Court upheld a conviction for felonious abuse and battery which was based almost exclusively on medical testimony regarding the injuries sustained by the infant and the absence of any other reasonable explanation of the injuries.

We have carefully read the record and conclude that the evidence presented at trial amply supports a verdict of murder against the appellant Lynn Cardwell. Mrs. Cardwell’s own explanation of Shawn’s injury was that she pushed the child to the floor when she discovered him eating out of a garbage can. In addition to the considerable evidence of general neglect, several witnesses testified to specific instances involving Mrs. Cardwell’s abuse of Shawn. One neighbor, for example, testified that Lynn once “backhanded” Shawn so hard that he rolled into the hallway. On another occasion, Lynn hit Shawn with a spoon, leaving a one and a half inch gash on his head. Another neighbor testified that when she asked about a large bruise on Shawn’s face, Mrs. Cardwell explained that “he got slapped”. In light of such evidence, it cannot be said that the jury verdict with respect to appellant Lynn Card-well was against the overwhelming weight of the evidence.

The evidence with respect to Tom Cardwell is considerably less compelling. A neighbor observed Tom “switching” Shawn three times with a small branch for mishandling a dog; Tom often cursed Shawn and was observed on one occasion shaking his fist in Shawn’s face; Tom bragged to a neighbor that he had once thrown Shawn out of the house into the yard at 4:00 a.m.; Tom bragged to a neighbor that he once fed Shawn ex-lax until Shawn was so sick that he fainted. At least one instance of severe abuse took place during a period when Tom was not living with Lynn and Shawn. No evidence places Tom Cardwell within the house trailer when the fatal injury was inflicted.

In Daumer v. State, 381 So.2d 1014 (Miss.1980), the appellants (husband and wife) were jointly tried and convicted for the murder of the wife’s natural son. On appeal, this Court affirmed the conviction as to the husband, but reversed the conviction of the child’s mother, finding the evidence insufficient to support the conviction.

In the instant case, this Court concludes that the evidence warrants a reversal of Tom Cardwell’s murder conviction. We do not address any other possible criminal charge. There is no evidence showing his presence when the child received an injury. To the contrary, the record evidences Lynn Cardwell did strike the child.

AFFIRMED AS TO LYNN CARD-WELL. REVERSED AS TO THOMAS CARDWELL AND DEFENDANT THOMAS CARDWELL DISCHARGED ON CHARGE OF MURDER.

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

DAN M. LEE, J., dissents.

      . This argument will not arise in the future. On October 26, 1982, Rule 4.04 was amended to read: "The granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial judge.” (Emphasis added)

      . The child, though seven years of age, weighed only twenty-seven (27) pounds when admitted to Matty Hersee Hospital. Neighbors described Shawn as skinny, undernourished and often bruised, with dark circles under his eyes. He was sent home from school with lice.


text:
    Sarah D. FLANAGAN, et al. v. JACKSON WHOLESALE BUILDING SUPPLY COMPANY.
    No. 55220.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      Luke Dove, Jackson, for appellants.
    Lem Adams, III, Brandon, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This appeal originated as a suit by Jackson Wholesale Building & Supply Co. against Sarah Flanagan, individually; Sarah Flanagan, as Administratrix of the Estate of Robert Flanagan; and Flanagan Construction Co., Inc. for the recovery of indebtedness on an open account. The Circuit Court of Madison County,, R.L. Goza presiding, entered judgment against Sarah Flanagan for the sum of $16,819.62 plus interest. Flanagan appeals, assigning as error:

(1) The circuit court erred in failing to transfer the cause to chancery court;

(2) The lower court erred in failing to sustain the motion for a directed verdict on behalf of the appellant; and

(3) The lower court erred in granting instructions submitted by the appellee and denying instructions submitted by the appellants.

From 1969 until his death in January of 1981, Bob Flanagan, the husband of appellant Sarah Flanagan, operated a home building and remodeling business. In 1974, Mr. Flanagan incorporated his business as Flanagan Construction Co., Inc. Mrs. Flanagan, as well as her husband, sighed the certificate of incorporation as an incor-porator. Mrs. Flanagan was also named in the certificate, along with her husband and her husband’s attorney, as one of the directors of the corporation.

Flanagan Construction Co. maintained a corporate bank account at First National Bank of Jackson. Mrs. Flanagan and her husband were both listed on bank records as persons authorized to sign checks on the corporate account (R. 36). Mr. Flanagan used the corporate bank account for both business and personal expenses. Mrs. Flanagan maintained personal bank accounts at Mississippi Bank in Jackson and at the Bank of New Albany.

Mrs. Flanagan did not write any checks on the corporate account prior to December 31, 1980, when Mr. Flanagan was hospitalized with his final illness. Mr. Flanagan, however, regularly drew checks on the corporate account to pay Mrs. Flanagan’s personal and household expenses. Mr. Flanagan also drew checks on the corporate account to pay the food and gas expenses of his daughter, Elisa, while she was in college. On several occasions, Mrs. Flanagan made loans to her husband by writing checks on her personal account to “cash”, which were in turn deposited in the corporate account by her husband.

The office of Flanagan Construction Co. was located in a room off of the garage of the Flanagan home, which was titled in Sarah Flanagan’s name. The home phone was also the business phone and Mrs. Flanagan often took bid offers and business messages over the phone for her husband. Mrs. Flanagan also typed her husband’s business contracts. Mrs. Flanagan, however, never drafted any contracts, never negotiated any contracts, never computed bids, never supervised labor and never ordered any building materials.

Around September, 1979, Mrs. Flanagan purchased a pickup truck for her husband because he needed it for his work. Though title to the truck remained in her name, Mrs. Flanagan never used the truck.

Flanagan Construction Co. maintained an open account with Jackson Wholesale Building & Supply Co. Building materials ordered on this account were delivered either to the Flanagan home or to the construction job sites. On two occasions during the Fall of 1980, Mrs. Flanagan went to Jackson Wholesale and personally picked up materials. According to T.E. Guillot, the general contractor who worked with Bob Flanagan, Mr. Flanagan took some left over material from a job site at 748 N. President Street, Jackson, stating he was going to use them in building a carriage house behind his home. Jackson Wholesale records indicate that Jackson Wholesale furnished the building materials for the Flanagan Construction Co. project at 748 N. President Street.

On December 5, 1978, Flanagan Construction Co. was suspended by the Secretary of State for failure to file an annual report. The first unpaid invoice from Jackson Wholesale was dated October 27, 1980. The parties stipulated that the amount of the unpaid invoices on the Flanagan Construction Co. account totalled $11,332.92. Service charges on the unpaid balance brought the total to $16,819.62 at the time of the trial.

John David Glen, Vice President and General Manager of Jackson Wholesale, spoke with Mrs. Flanagan about the account shortly after her husband’s death in January, 1981. According to Mr. Glen, Mrs. Flanagan personally guaranteed payment of the account. According to Mrs. Flanagan, no personal guarantee of payment was made to Mr. Glen, verbally or in writing.

II.

WAS THE TRIAL COURT IN ERROR IN OVERRULING THE MOTION FOR A DIRECTED VERDICT ON BEHALF OF THE APPELLANT?

Appellant’s primary assignment of error is that the trial court erred in failing to direct a verdict on behalf of Sarah Flanagan, individually. Appellant’s contention is that Mrs. Flanagan is beyond the reach of Miss.Code Ann. § 79-3-285 (1972) which provides as follows:

All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.

The question presented is whether Mrs. Flanagan was a “person assuming to act as a corporation” within the meaning of the statute, so as to render her liable for “corporate” debts incurred after the suspension of Flanagan Construction Company’s charter in 1974.

Carolina Transformer Co., Inc. v. Anderson, 341 So.2d 1327 (Miss.1977) is the only Mississippi case construing section 79-3-285. The appellee in that case was the owner of a domestic corporation, Tranco Electric Supply Co., Inc., that was suspended by the Secretary of State for failure to file its annual report. Following the suspension, the appellee continued to operate the business in the corporate name and obtained from Carolina Transformer Co. products to be sold on consignment by Tranco. When the Tranco account became delinquent, Carolina Transformer sued the appellant and the corporation. The circuit court awarded a judgment against the corporation but exonerated the appellee as an individual. On appeal, this Court reversed, holding that the appellee, by placing orders for additional products subsequent to the suspension of the corporation, came within the purview of section 79-3-285. Accordingly, this Court held the individual appel-lee personally liable on the “corporate” account, stating:

Upon suspension or its charter, Tran-co, under § 79-3-189, was without “any right to exercise powers” granted it by the state. By virtue of the suspension, § 79-3-285 became operative so that any person (including its president, appellee Anderson) who would assume to act as the corporation, as Anderson did here, was “without authority so to do.” Therefore, as provided in § 79-3-285, he was “liable for all debts ... arising as a result thereof.”

Carolina Transformer is distinguishable from the case sub judice in that the owner and officer of the defunct corporation personally placed the order for the products upon which suit was brought. In the case sub judice, there is no evidence that Mrs. Flanagan ever ordered any materials from Jackson Wholesale.

Jurisdictions with similar statutes have recognized that some limitation on personal liability is necessary. In Mobile Oil Corp. v. Thoss, 385 So.2d 726 (Fla.Ct.App.1980), the Florida Court stated the following with respect to its statute which is identical to § 79-3-285:

We think that the intent of these statutes is to impose personal liability upon those directors, officers, or agents who have control of the operation of the business and management over the actions in question. However, we do not think the Legislature intended to impose liability on every director or agent of a dissolved corporation who does not act or who has no knowledge of the dissolution.

385 So.2d at 727.

In Timberline Equipment Co. Inc. v. Davenport, 267 Or. 64, 514 P.2d 1109 (1973), the Oregon Supreme Court considered its statute which is identical to the one in Mississippi and stated:

We conclude that the category of “persons who assume to act as a corporation” does not include those whose only connection with the organization is as an investor. On the other hand, the restriction of liability to those who personally incurred the obligation sued upon cannot be based upon logic or the realities of business practice. When several people carry on the activities of a defectively organized corporation, chance frequently will dictate which of the several active principals directly incurs a certain obligation or whether an employee, rather than an active principal, personally incurs the obligation.
We are of the opinion that the phrase, “persons who assume to áct as a corporation” should be interpreted to include those persons who have an investment in the organization and who actively participate in the policy and operational decisions of the organization. Liability should not necessarily be restricted to the person who personally incurred the obligation.

514 P.2d at 1113-1114.

This Court adopts the same interpretation of the phrase “persons who assume to act as a corporation.” In this case, it is undisputed that Sarah Flanagan signed the certification of incorporation for Flanagan Construction Co- and was listed as one of the corporation’s original directors. It is also undisputed that Mrs. Flanagan regularly received funds from the corporate account for her personal and household expenses. Moreover, Mrs. Flanagan made several cash loans to her husband which, in effect, went to the benefit of the corporation. Mrs. Flanagan performed services for the corporation by taking bids over the phone and typing up the corporate contracts. Mrs. Flanagan also provided the corporation, through her husband, with a business vehicle.

On the other hand, Mrs. Flanagan, unlike the corporate director in Carolina Transformer, supra, did not personally incur the obligation presently sued upon. Nor can it be said that Mrs. Flanagan had “control of the operation of the business and management over the actions and questions,” Mobile Oil, supra, or that she “actively participated in the policy and operational decisions of the organization.” Timberline, supra.

The liability for corporate debt imposed by the provisions of § 79-3-285 should be limited to those officers and directors who are actively involved in the control and management of the corporation. While the evidence in the case sub judice clearly establishes that Flanagan Construction Co. and its finances were intertwined with the Flanagan household, there was no proof that Sarah Flanagan exercised control and management over the corporation. Therefore, the trial court erred in failing to direct a verdict on behalf of Sarah Flanagan, individually. •

III.

Having addressed the failure to grant a verdict in the affirmative, this Court finds it unnecessary to discuss the remaining assignments of error.

REVERSED AND RENDERED.

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


text:
    Robert C. KILPATRICK v. MISSISSIPPI BAPTIST MEDICAL CENTER, et al.
    No. 55303.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      Fred T. Rucker, Scales & Scales, Jackson, for appellant.
    Cary E. Bufkin, Jim Bullock, Shell, Buford, Bufkin, Callicutt & Perry, Heber A. Ladner, Jr., Stephen P. Kruger, Upshaw & Ladner, Jackson, for appellees.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The question of the propriety of a dismissal of an action with prejudice for failure to comply with discovery order under Miss.Code Ann. § 13-l-237(b)(2)(C) (Supp. 1982) is the question addressed by this appeal.

The Circuit Court of the First Judicial District of Hinds County, Mississippi ordered the dismissal of the complaint with prejudice for failure to obey a discovery order of the court requiring the answering of medical and expert opinion interrogatories. The complainant Kilpatrick assigns as error the following:

The trial court committed fatal and reversible error in holding as a matter of law that the plaintiff/appellant’s inability to obtain an independent expert medical witness by a designated date constituted evasive and incomplete “non” answers by appellant to appellee’s interrogatories justifying the extreme sanction and penalty of dismissal of this cause with prejudice as to the defendants, Mississippi Baptist Medical Center, Dr. Jon R. Meyer and Dr. T.K. Williams, appellees here.

I.

On August 20, 1978 Robert Kilpatrick was working as a tile worker for Armstrong Fork Company in Jackson when a co-worker lost control of a forklift which ran into Kilpatrick injuring his right foot. Kilpatrick was taken to the Mississippi Baptist Medical Center where he was given emergency treatment by Dr. Jon R. Meyer. Appellant was then referred to Dr. T.K. Williams and subsequently referred to Dr. McWillie M. Robinson, Jr., an orthopedic surgeon. Later he was treated by another orthopedic surgeon, Dr. Frazier Ward, III.

On August 18, 1980, Kilpatrick filed his declaration in circuit court alleging medical malpractice against the three appellees, Mississippi Baptist Medical Center, Dr. Meyer and Dr. Williams, seeking judgment in the amount of five hundred thousand dollars ($500,000.00) plus all costs and interests.

On November 12, 1980 appellant was first served with interrogatories by appel-lee Dr. Williams. On January 26, 1981 appellant filed his answer and responses. Dr. Williams was dissatisfied with appellant’s answers and failure to answer and on March 13, 1981 filed a motion to compel answer. Three questions and answers formed the basis for the court’s later order and dismissal. When asked to identify expert witnesses that appellant expected to call at trial, the response was “At this time, neither I nor my attorney have any crystal clear plans for calling any expert witnesses for my case. If and when these plans are changed including the expert witnesses, I will supplement my answers required by law to do so.” The other questions also concerned expert witnesses and were not answered.

On May 20, 1981, the circuit judge entered an order compelling appellant to answer Dr. Williams’ interrogatories. June 8, 1981 was set as the deadline to answer the medical and expert opinion interrogatories and the order stated that if Kilpatrick did not file answers to these interrogatories that his case as to Dr. Williams would be dismissed with prejudice.

On June 8, 1981 appellant asked the court for twenty one (21) days additional time. Appellant’s attorney argued appellant had recently undergone heart surgery and was in no position to assist in procuring a medical expert. It was also said that because of scheduling conflicts appellant had been unable to set up an appointment with Dr. Frazier Ward, III, for consideration as a possible medical expert.

On June 22, 1981 the court pursuant to appellee Williams’ motion to dismiss ordered the cause dismissed for failure to answer interrogatories regarding expert medical witnesses.

On October 11, 1988 an order of dismissal was granted on behalf of the remaining appellees. The order claimed that the remaining defendants “adopted by reference the motions and arguments of Dr. T.K. Williams and were entitled to the same benefits” of dismissal with prejudice.

I.

Miss.Code Ann. § 13-l-226(b)(4) (Supp.1984) provides for discovery through interrogatories of the identity of, the facts known and opinions held by experts the other party expects to call at trial. Compliance with discovery may be enforced by motion of a party addressed to the court to compel discovery. The party seeking discovery must first obtain a court order to compel the discovery from the recalcitrant party or witness. The violation of the court order gives rise to the imposition of court sanctions. Ladner v. Ladner, 436 So.2d 1366 (Miss.1983). Also, under the inherent power of courts to protect the integrity of their process, courts may impose sanctions without a court order. Ladner, supra; Wright & Miller, Federal Practice and Procedure § 2050 (1970). The statutory authority for imposing sanction is found in Miss.Code Ann. § 13-1-237(b)(2)(C) (Supp.1982), which provides:

(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under section 13-2-230(b)(6) or section 13-l-231(a) to testify in behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this section, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

This Court has repeatedly upheld sanctions against a party for failure to respond to expert interrogatories. Ladner v. Ladner, 436 So.2d 1366 (Miss.1983); Huff v. Polk, 408 So.2d 1368 (Miss.1982); Square D. Company v. Edwards, 419 So.2d 1327 (Miss.1982); Clark v. Mississippi Power Company, 372 So.2d 1077 (Miss.1979).

In the imposition of sanction, the trial court has considerable discretion in matters pertaining to discovery and its orders will not be disturbed in the absence of abuse of discretion. Clark v. Mississippi Power Co., 372 So.2d 1077 (Miss.1979); Harkins v. Paschall, 348 So.2d 1019 (Miss.1977); Paulk v. Housing Authority of City of Tupelo, 228 So.2d 871 (Miss.1969).

Thus, there is presented for decision here whether the trial court abused his discretion in applying the drastic sanction of dismissal with prejudice in this case.

The defendant Williams sought and received a court order compeling discovery of the plaintiff by May 27, 1981 as to non-medical answers and by June 8, 1981 as to identity and opinion of the plaintiffs expert by June 8, 1981. On May 27th, the plaintiff filed his supplemental response and stated as to expert witnesses question the answer “none at this time.” On June 8 the plaintiff asked for 21 days additional time “to produce an expert medical witness”. The grounds stated by Kilpatrick were: (1) his open heart surgery and (2) conflicting schedule of a proposed expert witness, Dr. Frazier Ward, III. The trial judge, on June 22, 1981, dismissed the suit as to the defendant Dr. T.K. Williams.

The remaining two defendants waited eight months and adopted the same interrogatories as Dr. Williams and renoticed the plaintiff to answer the same interrogatories as to medical expert witnesses or suffer dismissal with prejudice as to the remaining two defendants. The renotice of motion to dismiss or remaining defendant was filed November 30,1982 setting February 11, 1983 as the hearing date. The dismissal with prejudice as to the remaining defendants was entered October 11, 1983.

The initial request for 21 additional days time contained allegations of grounds that may be meritorious, but nonetheless the trial judge did not act on the request for 14 days thereafter. The plaintiff took no action as to the two remaining defendants for over two years thereafter.

If the failure to comply is because of inability to comply, rather than because of willfulness, bad faith, or any fault of the party, the action may not be dismissed, nor a default judgment given, and less severe sanctions are the most that can be invoked. This merely emphasizes the fact that Rules 37(b) and 37(d) call upon the court to “make such orders in regard to the failure as are just,” and that justice requires that the most drastic sanctions be reserved for flagrant cases.

Wright & Miller, Federal Practice and Procedure (1970) § 2284.

Appellant concedes that expert testimony is essential to his case. In a medical malpractice action negligence cannot be established without expert medical testimony that the appellee failed to use ordinary skill and care. Hawkins v. Ozborn, 383 F.Supp. 1389 (N.D.Miss.1974); Dazet v. Bass, 254 So.2d 183 (Miss.1971). The fact that the results of the doctor’s treatment were unsuccessful does not give rise to a presumption of negligence. Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1964); Hawkins v. Ozborn, supra.

When the case against the first ap-pellee, Dr. Williams, was dismissed, the sanction had been announced in advance in the court’s order compelling answer to the interrogatories. When the remaining ap-pellees were granted a dismissal nearly three years had passed since the appellant was first requested to name his medical experts. There is no evidence that this was not adequate time in which to begin to prepare a case apart from appellant’s contention of impossibility because of the “situation and circumstances.”

This Court holds that under the facts of this case there is no abuse of discretion in applying a drastic sanction.

AFFIRMED.

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

HAWKINS, J., not participating.


text:
    Willie MOORE v. STATE of Mississippi.
    No. 55314.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      John Miller Pickett, Morton, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County wherein the appellant, Willie Moore, was found guilty of escape. Moore was originally convicted of cattle theft on March 10, 1981. He was sentenced to serve a term of four years in the Mississippi State Penitentiary; however, due to overcrowding, Moore remained housed in the Scott County jail. On January 9, 1982, Moore was discovered missing. Moore was located and arrested on December 11, 1982. On October 5, 1983, Moore was indicted for the crime of escape and on October 10, 1983, he was convicted. At that time Moore was sentenced to serve an additional four years in the State Penitentiary for the crime of escape.

After Moore’s escape, his sentence was recomputed so that he was eligible to earn only 251 days of good time. Prior to the escape he had been eligible for a maximum of 654 days of good time. The recomputation of Moore’s good time was an administrative procedure authorized by § 47-5-139(5) Miss.Code Ann. (1972).

On the day of trial, appellant’s attorney made a motion to drop the charges on the grounds that the forfeiture of the earned time was punishment for the escape and that this prosecution was barred by the double jeopardy clause.' The trial court overruled this motion. Trial was then had and the proof was adequate to support Moore’s conviction of escape.

Moore’s first assignment of error is that the administrative proceeding under which he was required to forfeit his good time was a quasi-judicial act which punished him for his escape. Therefore, he argues, his subsequent trial for escape was barred by the double jeopardy clause in the Fifth Amendment to the United States Constitution.

In Segarra v. State, 430 So.2d 408 (Miss.1983) we held that it was not a violation of the double jeopardy clause to deny an inmate credit against her sentence for time spent on parole before a revocation of that parole.

In Pagliaro v. Cox, 143 F.2d 900 (Eighth Circuit 1944), Pagliaro received a seven year sentence and was placed in a local jail to await transportation to the penitentiary. While en route he escaped. He was not prosecuted for the escape but did forfeit his good time. The court held that the forfeiture of good time for the violation of a prison rule is merely an administrative procedure and is distinguished from the crime of escape.

The first issue must be determined against appellant. There is no double punishment. The two matters were entirely distinct and separate. The allowance of good time, until earned for the entire term (Estabrook v. King, 8 Cir., 119 F.2d 607, 609; Douglas v. King, 8 Cir., 110 F.2d 911, 913, 127 A.L.R. 1200; United States v. Nicholson, 4 Cir., 78 F.2d 468, 470, certiorari denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405), is a privilege which is conditioned expressly by the statute, sec. 710, Title 18 U.S.C.A., allowing it upon a record of conduct showing that he has faithfully observed all the rules and has not been subjected to punishment.” See Wipf v. King, 8 Cir., 131 F.2d 33, 34. The existence or the forfeiture of good time is in no sense dependent upon whether the misconduct also may be a criminal act. It would be a strange anomaly if a mere infraction of prison rules would be a basis for forfeiture while commission of a serious crime while in custody and in respect to such custody could not be. This would lead to an absurd result. United States v. Anderson, 8 Cir., 76 F.2d 375, 378.

143 F.2d at 901.

We are of the opinion that Moore’s first assignment of error is without merit. As the revocation of good time is an administrative proceeding we are of the opinion that Moore was not unconstitutionally subjected to double jeopardy by the combination of the revocation of his good time and prosecution for escape.

Moore’s second assignment of error is that he was sentenced under the wrong statute. Moore was convicted and sentenced in accordance with § 97-9-45 Miss. Code Ann. (1972). That section provides the maximum punishment of five years for escaping from the state penitentiary. Moore contends that he should have been sentenced in accordance with § 97-9-49 for escaping from the county jail. The maximum penalty under this section is two years. Section 97-9-49 was amended effective July 1, 1983 to provide for a five year penalty. The state concedes that Moore should have been sentenced under § 97-9-49, the statute providing for escape from a county jail, as opposed to § 97-9-45, the state relating to escape from the penitentiary.

Regardless of the fact that § 97-9-49 was amended to provide for penalties identical to those in § 97-9-45, we must recognize that that amendment occurred subsequent to the escape now in question. Relying on Allen v. State, 440 So.2d 544 (Miss.1983), we hold that Moore must be sentenced under the statute in effect at the time he committed the offense. We are therefore compelled to reverse Moore’s sentence and remand this case to the Circuit Court of Scott County for resentencing.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


author: HAWKINS, Justice,

text:
    Clarence COURSE v. STATE of Mississippi.
    No. 55277.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      William B. Kirksey, Kirksey, Brantley & DeLaughter, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice,

for the Court:

Clarence Course appeals from his conviction of the crime of burglary of a dwelling in the Circuit Court of the First Judicial District of Hinds County and sentence to serve ten years in the Department of Corrections. Having also found Course had been previously convicted of two separate felonies, one for armed robbery and another for burglary, all as charged in the indictment, the circuit judge sentenced Course as a habitual offender to serve the full ten years without parole, probation or reduction of sentence under Miss.Code Ann. § 99-19-81. We affirm.

The attorney for Course on appeal did not represent him at trial.

Course has two assignments of error, the first being that the State, simply by producing records that one “Clarence Course” was convicted of the two previous felonies, did not in and of itself identify that person as the defendant on trial. The records did furnish a presumption of such identity, however, which could have been easily overcome if erroneous. See: Branning v. State, 224 So.2d 579 (Miss.1969); Goldsby v. State, 240 Miss. 647, 123 So.2d 429 (1960); and 1 Wharton’s Criminal Evidence, § 103, pp. 180-82 (Torcai ed. 13th ed. 1972). We do add the State would be well advised to be prepared to go further than mere records, however, especially where the name is not unusual or uncommon.

Course also complains of the trial judge’s amendment of one instruction and refusal of another, which we find without merit.

AFFIRMED.

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