author: COLEMAN, Justice,

text:
    Elise W. NOONE v. Frank R. NOONE.
    No. 2012-CA-01849-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      John H. Ott, McComb, attorney for appellant.
    Amanda Jane Proctor, William R. Wright, Ridgeland, attorneys for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. At issue in the instant case is the interpretation of Mississippi Code Section 11-21-1(2) (Rev.2004); particularly whether the statute, which limits partition of homestead property “exempted from execution” and owned by spouses to partition by agreement only, prohibits one spouse from obtaining a partition of jointly owned property by chancery decree against the other. As more fully detailed below, the issue is the meaning of the phrase “exempted from execution.” The chancellor held that Section 11-21-1 wholly prohibits the partitioning of spousal property by chancery decree, even to the extent that the property has a value greater than the $75,000 protected from creditors. Finding no error, we affirm.

Facts and Procedural History

¶ 2. Elise and Frank Noone are married, and they jointly own approximately sixty-seven acres of land in Copiah County as joint tenants with right of survivorship. Frank and Elise claim their homestead exemption on said property. Elise filed for divorce on the ground of habitual cruelty and inhuman treatment, but the chancellor denied the divorce following a trial in February 2011.

¶ 3. Following the divorce action, Elise filed a complaint for declaratory judgment seeking a determination that the Chancery Court of Copiah County had the power to partition the Noones’ property and asking the chancellor to partition the property. Elise then filed a motion for summary judgment, arguing that Mississippi Code Section 11-21-1(2) did not prevent the partition of the Noones’ homestead property, at least to the extent that the value of the property exceeded $75,000 (the maximum amount of the homestead exemption). Frank responded that Section 11-21-1(2) barred partition of their homestead property by chancery decree. The chancellor denied Elise’s motion for summary judgment and, finding it dispositive on the issue of requested partition of the property, he ordered that the property would not be partitioned. Elise timely filed the present appeal.

Discussion

¶ 4. A chancery court’s grant or denial of a motion for summary judgment is reviewed under a de novo standard. In re Guardianship of Duckett, 991 So.2d 1165, 1173 (¶ 15) (Miss.2008) (citing Anglado v. Leaf River Forest Prods., Inc. 716 So.2d 543, 547 (Miss.1998)). Additionally, statutory interpretation is a matter of law, which the Court reviews de novo. Franklin Collection Serv., Inc. v. Kyle, 955 So.2d 284, 287 (¶ 8) (Miss.2007) (citing Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (¶ 7) (Miss.2002)).

¶ 5. Elise asserts that the chancellor erred in denying her motion for summary judgment because he incorrectly interpreted Section 11-21-1. She also asserts that the statute is invalid and unenforceable because it is against the public policy favoring the alienability of land.

A. Whether the chancellor correctly interpreted Section 11-21-1.

¶ 6. Typically, when one eo-owns property as a joint tenant, he or she has the right to partition property in one of two ways: (1) by chancery decree pursuant to Mississippi Code Section 11 — 21—3, or (2) by written agreement of the owners pursuant to Section 11-21-1(1). Section 11-21-1(2) provides that homestead property co-owned by spouses can be partitioned only by written agreement of the parties and not by chancery decree as provided in Section 11-21-3. Section 11-21-1, which was amended in 2009 to add subsection (2), provides:

(1) Partition of land held by adult joint tenants, tenants in common, and copar-ceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties. They may also bind themselves by written agreement to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive between the parties, unless made or procured by fraud.
(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.

Miss.Code Ann. § 11-21-1 (Supp.2013).

¶ 7. Elise maintains that, by using the phrase “homestead property exempted from execution,” the Legislature meant specifically to incorporate Section 85-3-21, the homestead exemption statute. Section 85-3-21 allows one to hold up to $75,000 worth of his or her homestead property exempt from execution by creditors. Miss. Code Ann. § 85-3-21 (Rev.2011). Creditors can access the value of homestead exempted property that exceeds $75,000. Id. Elise’s primary argument is that Section 11-21-1(2) applies only to the extent that the property is actually exempt from execution. In other words, she contends that the law applies the same way to spouses seeking to partition land by decree as to creditors-the law creates a limit on homestead property exempt from execution, and that limit is applicable in all situations where homestead property is invoked. If she were correct, because the Noones’ property is valued at more than $600,000, Elise would still be able to partition the large majority of the property.

¶ 8. The issue, in the narrowest sense, is the interpretation of the phrase “homestead property exempted from execution.” Miss.Code Ann. § 11-21-1(2) (Supp.2013). When the meaning of a statute is plain and unambiguous, “the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction.” City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (citations omitted). The potential meanings of “homestead property exempted from execution” are two: (1) the phrase could mean that the entire homestead property is under the ambit of Section 11-21-1, and therefore partition must be by written agreement of the owners; or (2) the phrase could mean that Section 11-21-1 applies only to the $75,000 that is exempt from execution by creditors under Section 85-3-21.

¶ 9. If the interpretation of that phrase were a true matter of first impression for the Court, then the latter reading might be plausible. However, in similar contexts, the Court has restricted the meaning of “homestead property exempted from execution” to the former. See Hendry v. Hendry, 300 So.2d 147, 148 (Miss.1974) (“Homestead value is relevant only in considering the claims of creditors in relation to the homestead upon which exemption is claimed.”); accord Stockett v. Stockett, 337 So.2d 1237, 1240 (Miss.1976). Hendry and Stockett have foreclosed any ambiguity. Therefore, in the instant case, the Court is tasked with nothing more than applying the logic underlying Hendry and Stockett.

¶ 10. In Hendry v. Hendry, a husband sold homestead property without obtaining his wife’s approval. Hendry, 300 So.2d at 148. Pursuant to Mississippi Code Section 89-1-29 (Rev.2011), a conveyance so made cannot be upheld. Section 89-1-29 provides, generally, that a conveyance of a “homestead exempted from execution” is not valid or binding unless signed by the owner’s spouse. Id. The Hendry Court held the value limitation on homestead property relevant only to creditors. Hendry, 300 So.2d at 149. Therefore, the law voided the entire conveyance-not just the portion subject to exemption from creditors. Id.

¶ 11. The Stockett Court discussed the issue even more explicitly. Stockett, 337 So.2d at 1239-41. In Stockett, the decedent left all of his property equally to his wife and son. Id. at 1238. The son tried to partition the homestead property of the widow (formerly owned by the decedent) but was denied because of Mississippi Code Section 91-1-23, which limits a devi-see’s right to partition a decedent’s “exempt property” occupied by the widow of the deceased. Id. The decedent’s son argued that Section 91-1-23 protected the property only to the extent the value equaled the amount exempt from execution. Stockett, 337 So.2d at 1239. The Court disagreed, holding that the limit found in Section 85-3-21 protects creditors, while Section 91-1-23 protects widows. Id. at 1240 — 41; see Miss.Code Ann. § 91-1-23 (Rev.2013). The Stockett Court wrote:

We have not varied in this interpretation of these statutes since 1905 when we said, in Moody v. Moody, 86 Miss. 323, 38 So. 322[, 323 (1905) ]: “The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors-to prevent unreasonable amounts from being held exempt from execution to the prejudice of those to whom just debts might be due. But the question of value has no place in a consideration of the rights of the surviving widow to the use and occupancy of the homestead.... ”

Stockett, 337 So.2d at 1240.

¶ 12. Both Section 91-1-23 and Section 11-21-1 invoke the exemption from creditors found in Section 85-3-21. However, the reasoning employed by the Stockett Court applies to the case sub judice. Just as Section 91-1-23 protects widows from involuntary partition, Section 11-21-1 protects spouses from involuntary partition. Neither statute protects creditors. The phrase “homestead property exempt from execution” serves as a descriptive phrase identifying the property that one (or, in the instant case, a married couple) inhabits. As shown above, we repeatedly have held that the Legislature’s decision to use the phrase “homestead property exempt from execution” in other statutes identifies the specific type of property that the Legislature wants to protect. The phrase is not, as Elise argues, intended to bring the specific limitations on creditors’ rights to other, unrelated statutes.

B. Whether Section 11-21-1(2) is void as against the public policy favoring the alienability of land.

¶ 13. Elise also argues that Section 11-21-1(2) is invalid and unenforceable because it violates the public policy favoring the alienability of land. Frank responds that she failed to preserve the issue for appeal. Regardless, the point completely lacks merit. Legislative power is constitutionally vested in the Legislature. Miss. Const, art. 4, § 33 (1890). “[S]ection 33 was ‘a full grant of all the power that the state has of a legislative nature and includes the power to do any act that a legislature may do except such as are prohibited in other sections’ of the state and federal constitutions.” Jeffrey Jackson & Mary Miller, 8 Encyclopedia of Mississippi Law § 68:3, 48 (2001) (quoting George H. Ethridge, Mississippi Constitutions 159 (1928)). See also Hart v. State, 87 Miss. 171, 39 So. 523, 524 (Miss.1905). Although the Court has the power of judicial review, that power does not extend to invalidating statutes as against public policy. See Marshall v. State, 662 So.2d 566, 572 (Miss.1995) (holding that the power of judicial review does not extend beyond constitutional challenges).

Conclusion

¶ 14. Mississippi Code Section 11 — 21— 1(2) (Supp.2013) prohibits the partition of spousal homestead property by chancery decree. Additionally, Elise failed to show any way in which Section 11-21-1(2) is unconstitutional. Therefore, we affirm the judgment of the Chancery Court of Copiah County.

¶ 15. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.

      . Section 11-21-3 provides, in pertinent part: "Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession ... may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated....” Miss. Code Ann. § 11-21-3 (Rev.2004).


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice, Court:

license: Public Domain

text:
    GUARDIANSHIP OF Kelly Elizabeth GARVIN, a Minor, by and Through her Natural Parents and Guardians, Karen Sullivan and Greg Garvin; Karen Sullivan, Individually; and Greg Garvin, Individually v. TUPELO FURNITURE MARKET, INC., Alexandria Miller, a Minor, V.M. Cleveland and Melanie Cleveland.
    No. 2012-IA-01334-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      Michael T. Jaques, Bobby L. Dallas, Ridgeland, Grant M. Fox, Brandon, attorneys for appellants.
    John Brian Hyneman, H. Scot Spragins, Oxford, William C. Murphree, Tupelo, attorneys for appellees.
    Before RANDOLPH, P.J., KITCHENS and KING, JJ.
   RANDOLPH, Presiding Justice, Court:

for the

¶ 1. Kelly Garvin was injured when the car in which she was a passenger collided with two horses. Garvin filed suit against the driver, Alexandria Miller, for negligence, and Miller’s mother and stepfather, Melanie and V.M. Cleveland, and Tupelo Furniture Market, Inc. (TFM), for negligent entrustment. Garvin additionally claimed V.M. Cleveland was guilty of negligent training/instruction. The circuit court granted summary judgment on the claims of negligent entrustment and negligent training/instruction in favor of the Clevelands and TFM. Garvin filed this interlocutory appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 5, 2007, fifteen-year-old Miller and sixteen-year-old Garvin were traveling on a two-lane road in Pon-totoc County, Mississippi, when their vehicle collided with two horses that had escaped from a nearby property and were standing in the middle of the road. Garvin sued Miller in the Circuit Court of Ponto-toc County, Mississippi, alleging negligent operation of the vehicle. Garvin asserted claims of negligent entrustment against Miller’s mother and stepfather, Melanie and V.M. Cleveland, and Tupelo Furniture Market, Inc, and a claim of negligent training/instruction against V.M. Cleveland. Garvin further asserted that Melanie and V.M. Cleveland were liable for Miller’s negligence because they had signed Miller’s driver’s license application.

¶ 3. The Clevelands and TFM filed a motion for summary judgment. In addition to the pleadings, before the trial court for consideration were the depositions of Miller, Garvin, Melanie and V.M. Cleveland, and the affidavits of several others, inter alia. The trial court granted summary judgment as to the claims of negligent entrustment and negligent training/instruction against the Clevelands and TFM. Garvin filed this interlocutory appeal. Further facts will be discussed as they are pertinent to specific issues.

ISSUES

¶ 4. On interlocutory appeal, Garvin raises the following issues, restated as follows:

I. Whether the trial court erred in granting summary judgment as to Garvin’s claims of negligent en-trustment against Melanie Cleveland, V.M. Cleveland, and Tupelo Furniture Market, Inc.
II. Whether the trial court erred in granting summary judgment as to Garvin’s claim of negligent training/instruction against V.M. Cleveland.

STANDARD OF REVIEW

¶ 5. This Court reviews a trial court’s grant of summary judgment de novo. Eli Inv., LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151, 154 (Miss.2013) (citing Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004)). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “The evidence must be viewed in the light most favorable to the party opposing the motion.” Eli Inv., LLC, 118 So.3d at 154 (citing Davis, 869 So.2d at 401).

ANALYSIS

I. Whether the trial court erred in granting summary judgment as to plaintiffs claims of negligent en-trustment against Melanie Cleveland, V.M. Cleveland, and Tupelo Furniture Market, Inc.

¶ 6. Mississippi has adopted the following definition of the doctrine of negligent entrustment:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Sligh v. First Nat’l Bank of Holmes County, 735 So.2d 963, 969 (Miss.1999) (quoting Restatement (Second) of Torts § 390). “The paramount requirement for liability under the theory of negligent entrustment is whether or not [the] defendant had a right to control the vehicle.” Id. (quoting Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436, 442 (1997)).

Melanie Cleveland

¶ 7. The trial court found (and the defendants concede) that “Melanie had control over Miller’s use of the vehicle.” Since her “right to control the vehicle” is undisputed, the only determination is whether any issue of material fact exists that Melanie negligently entrusted the vehicle to Miller.

¶ 8. Miller was fifteen years old at the time of the accident. See Robison v. Enterprise Leasing Co.—South Central, Inc., 57 So.3d 1, 5 (Miss.Ct.App.2010) (“A claim of negligent entrustment cannot be sustained on ... age ... alone.”). Miller was operating the vehicle under a valid driver’s license. Although Miller admitted in her deposition that she had once driven the vehicle around 100 miles per hour, she had no previous history of accidents and had only one previous speeding violation that was not reported. See id. (“[Plaintiffs] have [not] shown that it could be found negligent to entrust an automobile to an eighteen-year-old who had recently been in an automobile accident and had previously received a few tickets.”).

¶ 9. As Miller’s prior driving history forms an inadequate basis to sustain liability under a claim of negligent entrustment, Garvin cites a list of conduct, admitted by Miller in her deposition, which Melanie knew or should have known rendered Mil-ter incompetent to operate the vehicle. Although tacitly related to her operation of the vehicle, Garvin argues, inter alia, that Milter consumed alcohol and smoked marijuana on several prior occasions, that there was a bottle of vodka in the car at the time of the accident, and that Milter was undergoing counseling.

¶ 10. Mississippi caselaw has allowed claims of negligent entrustment based on conduct separate and apart from the negligent driver’s prior driving history. In Dixie Drive It Yourself System Jackson Co., Inc. v. Matthews, 212 Miss. 190, 54 So.2d 263, 267 (1951), the Court affirmed a plaintiffs verdict for negligent entrustment where evidence was presented that the defendant car rental company “knew or should have known” that the negligent operator “was under the influence of liquor” when it rented the car to him. In F.B. Walker & Sons, Inc. v. Rose, 223 Miss. 494, 78 So.2d 592, 595 (1955), the Court affirmed a jury’s finding that the defendant negligently had entrusted a vehicle to his close friend who was “admittedly a narcotic addict and had been committed ... for treatment....” In Savage v. LaGrange, 815 So.2d 485, 489 (Miss.Ct. App.2002), the Court of Appeals upheld a jury’s finding that a father was negligent in entrusting his vehicle to his adult son who “had a history of hospitalizations for substance abuse, had a number of prior convictions for alcohol-related offenses, and ... his driver’s license was suspended at the time of the accident.” However, in all of the aforementioned cases, there was evidence that the negligent operator of the vehicle was under the influence of alcohol or drugs at the time of the accident. Thus, the conduct of which the supplier of the vehicle was or should have been aware had a direct correlation to the cause of the accident.

¶ 11. Such is not the case here. It is undisputed that Miller was not under the influence of alcohol or drugs (prescription or illegal) at the time of the accident. Miller testified in her deposition that she had not consumed alcohol on the day of the accident. The defendants submitted an affidavit of the responding officer attesting that Miller “exhibited no signs that she was under the influence of alcohol or any other substance that may impair her abilities.” The defendants also submitted the affidavit of John Hampton Hughes, who attested that he had been with Miller and Garvin in the hours prior to the accident, and that Miller had consumed no alcohol. Miller’s testimony and supporting affidavits were not contradicted. Moreover, Garvin testified in her deposition that she had not seen Miller consume any alcohol, nor did Miller exhibit any signs that she had consumed alcohol or any other substances prior to the accident.

¶ 12. No issue of material fact exists that alcohol or other substances contributed to accident. Therefore, the plaintiffs reliance on Miller’s past alcohol and marijuana consumption is irrelevant to whether Melanie was negligent in entrusting the vehicle to her. Such conduct could be a basis for liability only if it was a proximate cause of the accident. See Davis v. Seymour, 868 So.2d 1061, 1064 (Miss.Ct.App. 2004) (“[Njegligent entrustment can only arise as a viable claim if Ziegler knew or should have known at the time he allowed Seymour to drive his vehicle that doing so involved an unreasonable risk of harm.”) (emphasis added).

TFM & V.M. Cleveland

¶ 13. The trial court found that neither TFM nor V.M. Cleveland had a right to control the vehicle. Although “control” is typically the threshold consideration when reviewing a claim of negligent entrustment, it is unnecessary for us to make such a determination in this case. Based on the analysis supra, no issue of material fact exists as to whether the entrustment of the vehicle (by any defendant) was negligent under the circumstances. Therefore, TFM’s and V.M. Cleveland’s right of control is moot, for a party cannot be liable for negligent entrustment only because he or she had the right to control the vehicle. The trial court properly granted summary judgment to TFM and V.M. Cleveland on this claim.

II. Whether the trial court erred in granting summary judgment as to Plaintiffs claim of negligent training/instruction against V.M. Cleveland.

¶ 14. V.M. Cleveland testified in his deposition that he had driven with Miller on several occasions and had provided her with some instruction as to proper operation of a vehicle. Garvin argues that V.M. assumed a duty when he voluntarily undertook to instruct Miller. Garvin further argues that V.M. breached his assumed duty because he failed to instruct Miller “with respect to driving at night at a safe speed and being able to stop within range of the ear’s headlights.”

¶ 15. Garvin argues an “assumed duty” for good reason — she can cite no support for a claim that V.M. had a duty to teach Miller to drive. Garvin also fails to cite any authority for the proposition that one assumes a duty by voluntarily undertaking to provide instruction to a youthful driver. Miller held a valid driver’s license issued by the State. In other words, the State had determined that Miller was competent to operate a vehicle on its roads.

¶ 16. Assuming arguendo that V.M. could assume a duty to teach Miller how to drive, it must be shown that “the plaintiff detrimentally relied on the defendant’s undertaking.” Wagner v. The Mattiace Co., 938 So.2d 879, 885 (Miss.Ct.App.2006) (citing Coleman v. Louisville Pants Corp., 691 F.2d 762 (5th Cir.1982)). There is no evidence that Garvin relied on V.M. to instruct his stepdaughter how to drive. According to Garvin’s deposition, she had ridden with Miller on multiple occasions and felt reasonably safe in the car with her.

¶ 17. The trial court properly granted summary judgment on this issue. The law imposed no duty on V.M. to instruct Miller, and it can hardly be argued that he assumed a duty (upon which Garvin relied) when he provided general instruction to Miller on the operation of a vehicle.

CONCLUSION

¶ 18. Based on this analysis, the trial court properly granted summary judgment as to the claims of negligent entrustment against the Clevelands and TFM, and the claim of negligent training/instruction against V.M. Cleveland. Viewing the evidence in the light most favorable to Gar-vin, no issue of material fact exists that any of the defendants was negligent in entrusting the vehicle to Miller, nor was V.M. negligent in failing to instruct Miller properly on the operation of the vehicle.

¶ 19. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR. CHANDLER AND COLEMAN, JJ., NOT PARTICIPATING.

      . Garvin also named Miller’s father, John Miller, as a defendant. According to the appel-lee’s brief, John Miller was dismissed from the suit by agreed order.

      . The vehicle driven by Miller was titled in TFM. V.M. Cleveland was the president of TFM.

      . Mississippi Code Section 63-1-25 provides, in pertinent part, "any negligence or wilful misconduct of a minor under the age of seventeen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license....” Miss.Code Ann. § 63-1-25 (Rev.2013).

      . As noted by the trial court in its order, summary judgment in favor of Melanie did "not negate or effect [sic] any liability imputed to [her] under Mississippi] Code Section 63-1-25.” The record reveals that only Melanie signed Miller’s license application.

      . The only restriction on Miller’s license was a requirement that she have an adult in the vehicle with her after ten p.m. The accident occurred around seven p.m.; therefore, Miller was operating the vehicle within the parameters of her license restriction at the time of the accident.

      . See Matthews, 54 So.2d at 267 (‘‘[W]ithin a period of two hours before Shivers called for the car he had had two drinks of liquor ..."); Rose, 78 So.2d at 595 (“On the day of and at the time of the collision between the two vehicles Brumfield was under the influence of narcotics to such extent that he was wholly incapable of safely operating the truck.’’); Savage, 815 So.2d at 488 (“The evidence showed that Savage was, in all likelihood, intoxicated at the time of the accident.”)


author: RANDOLPH, Presiding Justice, KING, Justice,

text:
    Jason HALL a/k/a Jason Ladell Hall a/k/a Jason L. Hall v. STATE of Mississippi.
    No. 2012-KA-01282-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Jason Hall was indicted and tried on an indictment for burglary of a building. After both sides rested, the State requested and was granted a jury instruction for accessory after the fact to burglary (in addition to the burglary instruction). The jury acquitted Hall of burglary but convicted him of accessory after the fact to burglary. Because Hall was convicted of a crime for which he was not indicted, nor did he waive indictment, we reverse the judgment of conviction and vacate his sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hall was indicted for burglary under Mississippi Code Section 97-17-33. His indictment alleged that he “did willfully, unlawfully, feloniously, and burglariously break and enter a certain building ... wherein there were kept goods, merchandise, or valuable things for use, sale, deposit, or transportation, with the intent to steal therein....” His indictment did not contain a separate count for accessory after the fact to burglary.

¶3. After the State and the defense rested at trial, the State announced that it had a “supplemental instruction,” S-9, for accessory after the fact that it needed to present to the court. Hall objected to S-9. The trial court granted the instruction. Then, the State offered S-10 which covered the elements of accessory after the fact. Hall did not object to S-10, specifically indicating that the lack of objection was due to the fact that S-9 already had been given.

¶ 4. The jury acquitted Hall of burglary, but convicted him of accessory after the fact. Hall filed a post-trial motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. He argued, inter alia, that he was convicted of a crime for which he was never indicted; therefore, the trial court should “set[ ] aside the jury verdict[.]” The trial court denied Hall’s motion, and he filed this appeal.

ISSUE

¶ 5. On appeal, Hall raises the following issues, restated as follows:

I. Whether the trial court erred in granting the State’s requested instruction on accessory after the fact to burglary.
II. Whether the State presented sufficient evidence to convict Hall of accessory after the fact to burglary.

As Issue I is dispositive, we will address only that issue.

ANALYSIS

¶ 6. Hall’s contention that the State was not entitled to a lesser-offense instruction raises a question of law, which this Court reviews de novo. Downs v. State, 962 So.2d 1255, 1258 (Miss.2007) (citing State v. Shaw, 880 So.2d 296, 298 (Miss. 2004)).

¶ 7. Mississippi Code Section 99-19-5(1) provides, in pertinent part, that “[o]n an indictment for any offense the jury may find the defendant guilty of the offense as charged ... or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment_” Miss.Code Ann. § 99-19-5(1) (Rev.2007) (emphasis added). While accessory after the fact is considered a lesser offense of the principal, it is well-established that it “is an entirely separate and distinct offense and not ... a lesser included offense.” Byrom v. State, 863 So.2d 836, 874 (Miss.2003) (quoting Wilcher v. State, 455 So.2d 727, 734 (Miss. 1984) (overruled on other grounds) (emphasis added)). Thus, accessory after the fact “is a distinct crime for which a person cannot be punished unless indicted.” Gangl v. State, 539 So.2d 132, 137 (Miss.

1989) (citing Wilcher, 455 So.2d 727 (Miss. 1984) (overruled on other grounds); Johnson v. State, 477 So.2d 196 (Miss.1985)).

¶ 8. As an exception, the Court has provided that “[a]n accused is entitled to a lesser-offense instruction only where there is an evidentiary basis in the record.” Thomas v. State, 48 So.3d 460, 472 (Miss.2010) (citing McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)) (emphasis added). In this ease, the State requested the lesser-offense instruction. Because the defendant’s request of a lesser-offense instruction operates as a waiver of indictment, only the defendant, and not the State, may request a lesser-offense instruction. See Griffin v. State, 533 So.2d 444, 448 n. 2 (Miss.1988).

¶ 9. The State was not entitled to S-9 or S-10, which allowed the jury to convict Hall of the lesser offense of accessory after the fact. However, the State argues that Hall waived this issue because he failed to object to S-9 at trial on the same ground as he raises on appeal, and because he failed to object to S-10. Hall’s counsel objected to S-9 and argued, “[ijsn’t that covered basically in the definition of accomplice? .... There’s an instruction on being an accomplice, an aider, an abettor, a presumption of theft, accessory after the fact.” Hall’s objection at trial does not reflect that raised on appeal (that the State was not entitled to the instruction because he was never indicted for accessory after the fact). Thus, the trial court was not called upon to determine whether S-9 was improper for want of indictment on the lesser offense.

¶ 10. Notwithstanding Hall’s inartful objection, the trial court committed plain error when it granted S-9 and S-10. “To constitute plain error, the trial court must have deviated from a legal rule, the error must be plain, clear or obvious, and the error must have prejudiced the outcome of the trial.” Keithley v. State, 111 So.3d 1202, 1204 (Miss.2013) (quoting Cox v. State, 793 So.2d 591, 599 (Miss.2001)). Based on this Court’s precedent that accessory after the fact is a lesser (nonin-cluded) offense of the principal offense and that only the defendant may obtain a jury instruction on a lesser unindicted offense, the trial court “deviated from this legal rule.” The error was “plain, clear or obvious” and “prejudiced the outcome of the trial[,]” for the instructions allowed Hall to be convicted of an offense which the State never secured the right to prosecute.

¶ 11. The result — a defendant convicted of a crime for which he was not indicted-is not new. More than 130 years ago, in Scott v. State, 60 Miss. 268 (1882), Scott was indicted and tried for murder, but was convicted by a jury of “assault and battery with the intent to murder.” On appeal, this Court held that Scott was unlawfully convicted of assault and battery, as she was not indicted for that crime, nor is assault and battery a lesser included offense of murder. Id. The Scott Court reversed the judgment and set aside the verdict. Id.See also Bell v. State, 149 Miss. 745, 115 So. 896, 897 (1928). The Court reached a substantially similar result in Woodson v. State, 94 Miss. 370, 48 So. 295 (1909), and Morris v. State, 118 Miss. 605, 79 So. 811 (1918). In both Woodson and Morris, the Court reversed a judgment of conviction and dismissed the prosecution where no charging document was shown in the record.

¶ 12. In Hailey v. State, 537 So.2d 411, 412 (Miss.1988), Hailey was indicted for “forcible rape” of a thirteen-year-old. “[T]he trial court ... granted an instruction to the jury that it could find Hailey guilty of the lesser included offense of child fondling.” Id. at 413. The jury convicted Hailey of child-fondling. Id. However, because Hailey was not indicted for child-fondling and “child fondling could not be a necessarily included offense of forcible rape[,]” this Court found that “[t]he trial court erred in granting an instruction allowing the jury to consider child fondling. ...” Id. at 416-17 (emphasis added). Hailey’s conviction was “vacated ... [and] remanded for further proceedings not inconsistent with this opinion.” Id.

¶ 13. Scott, Woodson, Morris, and Hailey establish that, upon conviction of a crime for which the defendant was not indicted, the judgment of conviction must be reversed and either set aside (Scott), dismissed (Woodson and Morris), or vacated and remanded (Hailey). The case sub judice is no different, as Hall was convicted of a lesser offense, for which he was not indicted.

¶ 14. The dissent would acquit Hall by reversing and rendering judgment. The fountainhead of this error can be traced to Harris v. State, 723 So.2d 546 (Miss.1998), in which the Court substantially departed from its historical precedent and acquitted Harris by reversing and rendering his conviction for an unin-dicted lesser offense, without citation of authority or overruling Scott, Woodson, Morris, or Hailey. Harris was indicted for three counts of deliberate-design murder. Id. at 547. Based on the evidence presented, the trial court granted Harris a directed verdict as to the murder charges, “but ... allowed the State to proceed on three counts of aggravated assault.” Id. The jury convicted Harris of aggravated assault. The Harris Court opined that the “apparently unqualified” directed verdict as to the murder charges served as a “judgment of acquittal of the charged offense ... [and] acquittal on all uncharged lesser included felony offenses.” Id. at 548-49 (emphasis added). The basis of this flaw is quite apparent — aggravated assault is not a lesser-included offense of murder. See Johnson v. State, 512 So.2d 1246, 1251 (Miss.1987) (overruled on other grounds). Whether the flaw in Harris was the result of paralogism, or otherwise, is of no import — the error vitiates the holding. A “judgment of acquittal [for murder]” should not have served as an acquittal on an uncharged lesser nonin-eluded felony offense, i.e., aggravated assault.

¶ 15. The dissent also cites Gause v. State, 65 So.3d 295 (Miss.2011). Gause was indicted for capital murder with the underlying felony of burglary. Gause, 65 So.3d at 299. At the request of the State, the jury was instructed on the lesser-included offenses of murder and manslaughter, and, “if [the jury] found him guilty of manslaughter, then they were to consider whether he was -also guilty of burglary....” Id. The jury convicted Gause of manslaughter and burglary. Id. But because burglary is not a lesser-included offense of capital murder and Gause was not separately indicted for burglary, the Court reversed his conviction. Id. at 302. Without explanation or citation (like Harris), the Court acquitted Gause of burglary by rendering judgment. Id. The disposition to render was likely the result of the inconsistent verdicts in that case. Gause was convicted of two lesser offenses — one included, one not included — which together constitute capital murder, but the jury acquitted him of capital murder. The paradoxical verdict is readily apparent because of the burglary conviction. Gause is an outlier resulting from an anomalous jury verdict-quintessential jury nullification. This atypical scenario limits Gause’s prece-dential value to the context of capital murder and the nullification verdict in that case.

¶ 16. We focus on two errors in this case. First, the trial court erred in granting instructions S-9 and S-10. Second, the trial erred in denying Hall’s motion for JNOV, which requested that the jury ver-diet of guilty for accessory after the fact be set aside. See supra ¶4. Hall argues that, should this Court find instructions S-9 and S-10 in error, we should “reverse the conviction [and] void the judgment of the circuit court....” After a careful review of prior cases, we are of the opinion that Hall has made the appropriate request. We reverse the judgment of conviction and vacate his sentence. We discern no benefit in remanding this case to the circuit court for further proceedings. As Hall was acquitted of burglary, and there is no charging document (indictment) in the record, no further action is necessary by the trial court. However, we find no legal authority to acquit Hall by reversing and rendering judgment and reject that Harris and Gause require us to do so.

CONCLUSION

¶ 17. As Hall was convicted of a crime for which he was not indicted, we are duty bound to reverse the judgment of conviction and vacate Hall’s sentence.

¶ 18. REVERSED AND VACATED.

WALLER, C.J., DICKINSON, P.J., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.; CHANDLER, J., JOINS IN PART.

KING, Justice,

concurring in part and dissenting in part:

¶ 19. While I concur with the majority’s determination that Hall’s conviction for accessory after the fact to burglary was improper given that Hall was not indicted for accessory after the fact to burglary, I believe that the proper disposition is to reverse and render Hall’s conviction; therefore, I respectfully dissent from the disposition.

¶ 20. On September 1, 2010, Hatties-burg police were called to the Spanish Oaks Apartments due to the suspicions of the apartment manager, Douglas Raison, and his wife, Eulis Irene Cochran, that a burglary was occurring. Cochran and Rai-son testified that they saw two men, later identified as Tommy Moore and David Pryor, enter a vacant apartment at about 8:30 or 9:00 p.m. They witnessed a third man, later identified as Jason Hall, the defendant, sitting in an SUV parked near the next building over. Hall remained in the SUV for the duration of the alleged burglary. The police arrived, and Moore and Pryor began running toward the vehicle. One of them threw something. All three men were then apprehended by police. A Smith and Wesson handgun was found approximately ten yards from the vehicle. A window pane in the vacant apartment was found to be displaced, and the door to the apartment- may have been “messed up.” The record contains no evidence that any items were taken from the apartment, and Raison testified that “there was really nothing in there for them to steal.”

¶21. Hall was indicted for burglary, and the case went to trial. At trial, after the State and the defense both rested, the court and counsel reviewed the jury instructions. At the outset, the State announced that it had a “supplemental instruction” for accessory after the fact that it needed to present to the court. When the instruction, S-9, for accessory after the fact, was presented, Hall objected, and the State indicated that the instruction was warranted in the event the jury believed the defense:

THE COURT: S-9?
MR. ROSE: We would object to that. Isn’t that covered basically in the definition of accomplice? It seems at this point we’re hitting everything. We would object.
THE COURT: And the basis of your objection is it’s covered under the accomplice instruction?
MR. ROSE: There’s an instruction on being an accomplice, an aider, an abettor, a presumption of theft, accessory after the fact. We object.
THE COURT: Why are we adding instructions at this time?
MR. VAUGHN: Judge, I just got to thinking when the proof was coming through that if the jury happened not to believe — if they happened to believe Katie Jones, that this man went over there with just the knowledge that he was going over there to drop a buddy off that would certainly — and I would contend if they believe he’s not guilty of burglary. But when two of his buddies come back, a gun is thrown out, it’s pretty obvious that a burglary has taken place. It’s just if the jury happens to believe that he wasn’t guilty of the burglary because he had no knowledge that his friends were going over there to do wrong, they became an accessory after the fact when they returned to the vehicle running, throwing guns with the police in [sic] route.
THE COURT: Response?
MR. ROSE: That’s—
MR. VAUGHN: I’m sorry, Judge. Ido have a case that’s very similar to this if the Court wishes to see it.
THE COURT: Is this where you came up with this theory to match the proof that was—
MR. VAUGHN: Well, yes, sir. I wasn’t sure if Katie Jones would indeed testify. I was not sure if she would or not, and I waited until she gave testimony. I had this ready. I just didn’t know if she would testify or not.

¶22. The jury returned a verdict of guilty of accessory after the fact to burglary. In his appeal, Hall first argues that the trial court erred by instructing the jury that it could find Hall guilty of accessory after the fact to burglary, given that the indictment did not charge him with this crime, nor did he request the instruction. Hall also argues that the evidence at trial was insufficient to support the guilty verdict for accessory after the fact to burglary.

¶ 23. Hall argues that the State’s aeces-sory-after-the-fact-to-burglary jury instruction was improper, given that he was not indicted for accessory after the fact and the instruction deprived him of his right to notice of the crimes charged. The State argues that the evidence, indeed Hall’s own defense witness’s testimony, supports such an instruction. Clearly, allowing the State to hear the accused’s defense at trial, and then tailor a jury instruction with a new, unindicted charge to the defense’s evidence, which is what the State admits and declares it did here, is highly prejudicial to any defense to the indictment. No defense is ever safe if the State can then use the defense itself to instruct the jury on an entirely new charge for which the defendant has no notice.

¶ 24. Because Hall was acquitted of the indicted offense and convicted of an offense for which he was not indicted and never received notice, in violation of both Section 26 and Section 27 of Article 3 of the Mississippi Constitution, and Hall did not waive indictment or notice, this Court should reverse and render Hall’s aceesso-ry-after-the-fact conviction. Gause v. State, 65 So.3d 295, 299-302 (Miss.2011) (“[TJhere is a crucial difference between a jury instruction on a lesser-included offense, which either the State or the accused may request, and an instruction on a lesser offense, which only the accused may request.”) (“Gause’s indictment did not charge him with the elements of burglary.... The trial court clearly erred by granting the State’s request for an instruction on burglary, because burglary is not a lesser-included offense of capital murder, and because the State was not entitled to a lesser-offense instruction. We reverse and render Gause’s conviction of burglary.”); Harris v. State, 723 So.2d 546, 549 (Miss. 1997) (trial court’s decision to enter directed verdict of acquittal, but to allow State to proceed to trial on lesser-included offenses found to be in error and conviction reversed and rendered; stating “[t]he State cannot be allowed to charge only the highest offense and then test the evidence as it goes along until the burden for some lesser offense is met”). Gause is virtually indistinguishable from the present case, since, in Hall’s case, at the request of the State, the jury was instructed on lesser-included offenses to burglary, as well as the lesser offense of accessory after the fact to burglary. The prosecution advocated for an improper conviction for a crime for which it never even attempted to indict Hall.

¶ 25. The majority believes that Hall’s conviction should be reversed and vacated, despite the precedent to the contrary, giving the State the option to indict Hall for accessory after the fact. When we make a determination regarding the disposition in a case, we must consider what such a disposition accomplishes. In this case, reversing and vacating the conviction would accomplish nothing but a waste of judicial resources and injustice to Hall, especially in light of the serious double jeopardy concerns that arise in this case, as discussed below.

¶ 26. In addition to complaining about being convicted for a crime for which he was not indicted, Hall also challenges the legal sufficiency of the evidence in support of his conviction for accessory after the fact to burglary. See Taylor v. State, 110 So.3d 776, 782 (Miss.2013). This Court “must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. When the evidence viewed in the light most favorable to the State fails to show beyond a reasonable doubt that the accused committed the act charged, “and that he did so under such circumstances that every element of the offense existed,” the evidence is insufficient to support the conviction and the appellate court must reverse and render. Id. (emphasis added); Johnson v. State, 81 So.3d 1020, 1023 (Miss.2011).

¶ 27. A person is guilty of accessory after the fact if he “concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment.” Miss.Code Ann. § 97-1-5 (Rev.2006).

¶ 28. Hall argues that the State put forth no evidence supporting a conviction for accessory after the fact. He argues that the State presented no evidence that he concealed, received, relieved, aided, or assisted any felon, nor did it present any evidence of knowledge. The State argues that there “was sufficient credible evidence for inferring that Hall assisted the burglars by attempting to assist them in avoiding arrest after the burglary was accomplished.” (Emphasis added). The State continues that “if the jury believed that Hall went to the apartment complex to assist Pryor in visiting his girl friend, then there would be a basis for inferring that Hall possibly assisted Pryor and Moore after knowing that they had possibly burglarized an apartment.” (Emphasis added). It further argues that Lieutenant Bounds’s testimony that he saw men running from the apartment, and saw one man throw a handgun, which was ultimately found approximately ten yards from the vehicle, proves knowledge beyond a reasonable doubt. It also argues that the photographs “show the distance between the burlgarized apartment and the vehicle.” Thus, concludes the State, “[u]n-der these facts, it could be inferred that Hall would have known that he was assisting the culprits in trying to avoid the police who were rapidly approaching.”

¶ 29. The State put forth no evidence that Hall concealed, received, relieved, assisted, or aided Pryor and Moore. Indeed, the record is unclear as to how the three men were apprehended (and does not even reveal whether Hall started or moved the vehicle), given that police were undisput-ably present before Pryor and Moore entered the SUV. Further, no evidence was presented that Hall had any knowledge that a felony occurred. It was nighttime, the vehicle was not parked very close to the apartment, and there is no evidence that Hall saw Pryor and Moore enter the apartment, no evidence that he knew that they were not authorized to be in that particular apartment, and no evidence that Pryor and Moore actually stole anything from the apartment (thus no evidence Hall saw them carrying stolen goods). No one even gave any testimony describing in which direction the vehicle was facing: toward or away from the apartment.

¶ 30. The State likewise failed to put forth evidence of the intent requirement. No evidence exists that Hall intended to assist Pryor and Moore in escaping or avoiding arrest. Indeed, the police were already present when Pryor and Moore exited the apartment. The State’s closing argument recognizes the specious nature of the State’s evidence to prove Hall guilty of accessory after the fact. The State argued:

You find him not guilty, that’s your decision. But he is guilty of at least being an accessory. At least. He knew what they were doing. Your life experiences tell you that. That’s the reason you’ve got to be at least 21 or so, so that way you can appreciate credibility. Things of that nature. He knew it and you know he knew it.
If somebody comes to a car with a gun, they’re up to no good. And then he tried to leave from the police, but they boxed him in. One went around the side and one came straight at him. Instead of pressuring these offices [sic], they need to be thanked. They went into a place where they knew guns were out. They were out numbered. They still beat them. They still got them.
Ladies and gentlemen, it’s your case and your decision, but he’s at least guilty of something.

(Emphasis added). The jurors’ life experiences certainly do not amount to proof beyond a reasonable doubt that Hall was guilty of accessory after the fact. Viewing the evidence in a light (very) favorable to the State, the State at the very most showed that one could infer that Hall saw two men running toward his car, he saw one throw a gun, and both men entered his vehicle. No reasonable factfinder could find beyond a reasonable doubt that Hall concealed, received, relieved, aided, or assisted felons with knowledge of the felony and the intent to help them avoid arrest. The evidence is simply not sufficient to support a conviction of accessory after the fact. It appears that the jury convicted Hall for, as the State urged, being guilty of “something.”

¶ 31. Rather than go through the proper procedures of altering an indictment through the grand jury, the prosecution chose, and indeed advocated, over the objection of the defendant, to improperly place an unindicted charge before the jury, subjecting the defendant to a trial by ambush for accessory after the fact. The prosecution knew, or should have known, the extreme impropriety and unconstitutionality of this action due to the clear case law on the matter, as well as the straightforward federal and Mississippi constitutional provisions expressly forbidding the actions taken by the prosecutor. Indeed, the majority admits that the legal rule in this case is absolute, and deviation therefrom is plain, clear, obvious error. Maj. Op. ¶ 10. The prosecutor’s deliberate conduct chartered this improper course. Double jeopardy includes a “protection against a second prosecution for the same offense after conviction.” Rowland v. State, 98 So.3d 1032, 1037 (Miss.2012) (quoting Powell v. State, 806 So.2d 1069, 1074 (Miss.2001)); see also United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Double jeopardy protects “a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where bad-faith conduct by judge or prosecutor threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant.” Dinitz, 424 U.S. at 611, 96 S.Ct. 1075 (internal quotations and citations omitted). Thus, the prosecutor, who knew that a prosecution absent an indictment is unconstitutional, exercised his prerogative in a plainly unconstitutional manner, intentionally put Hall on trial for an unindicted charge, and obtained a conviction on evidence that was, at best, specious. Further, Hall appealed the sufficiency of the evidence against him, and it is obvious that the evidence was indeed woefully insufficient. Where a conviction is not supported by sufficient evidence, a subsequent trial is barred by double jeopardy. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id. at 11, 98 S.Ct. 2141. The State may not make repeated attempts to convict Hall of accessory after the fact to burglary. Id. It would violate constitutional principles to allow the State to cause such a blatantly unconstitutional error, and then get a “second bite at the apple” to convict Hall. See id. at 17, 98 S.Ct. 2141.

¶ 32. Reversing and vacating this conviction would cause an egregious waste of judicial resources and a serious injustice to Hall, who has been through an entire trial and was illegally convicted at the State’s insistence. Allowing the State a “second bite at the apple” constitutes harassment of Hall and allows the State to commit a bad faith egregious error at Hall’s expense, and then have the opportunity to reindict and retry Hall. Reversing and rendering is the only proper course, and it is in line with this Court’s precedent. See Gause, 65 So.3d 295. To do otherwise, while suggesting that no other action can be taken in this case, embraces form over substance. Therefore, I disagree with the majority’s disposition in this case, and believe it causes an unconstitutional injustice.

KITCHENS, J., JOINS THIS OPINION. CHANDLER, J., JOINS THIS OPINION IN PART.

      . The State takes issue with the form of Hall’s objection to S-9 and lack of objection to S-10. The State's argument will be addressed infra, ¶¶ 9-10.

      . As we vacate Hall's conviction, we need not address Issue II, for to do so would be an exercise in futility. Would we not be required to set aside the verdict even if the State had presented overwhelming evidence of guilt of a crime not charged in the indictment?

      . See Morgan v. State, 741 So.2d 246, 253 (Miss. 1999) (citing Watson v. State, 483 So.2d 1326, 1329 (Miss.1986)) ("In order to preserve a jury instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.”); see also Gillett v. State, 56 So.3d 469, 520 (Miss.2010) (citing Howell v. State, 860 So.2d 704, 756 (Miss.2003)) ("[T]his Court repeatedly has held that failure to object contemporaneously at trial waives any claim of error on appeal.”)

      . See Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989) ("A trial judge will not be put in error on a matter which was not presented to him for his decision.”)

      . The dissent relies on the following Harris dicta, "[t]he State cannot be allowed to charge only the highest offense and then test the evidence as it goes along until the burden of some lesser offense is met.” Harris, 723 So.2d at 549. The Harris opinion in this regard reflects what has been described by Professor Michael Hoffheimer as "[the justice’s] personal belief that when the [S]tate charges a serious crime, it should not be able to win a conviction of a less serious one.” Michael H. Hoffheimer, Lesser Included Offenses in Mississippi, 74 Miss. LJ. 135, 143 (2004). Without speculating as to a justice’s "personal beliefs[,]” the same justice continued unsuccessfully to advance a similar position in other cases. See Wolfe v. State, 743 So.2d 380, 388 (Miss.1999) (McRae, J., concurring in part and dissenting in part); Arthur v. State, 735 So.2d 213, 221 (Miss.1999) (McRae, J., concurring in part and dissenting in part); Shields v. State, 722 So.2d 584, 590 (Miss.1998) (McRae, J., dissenting).

      . See Hailey, 537 So.2d at 419 (Robertson, J., concurring) ("I concur in the majority’s directive that the case be reversed and remanded 'for further proceedings not inconsistent with this opinion’ — so long as it be understood clearly that there are no further proceedings that may be had consistent 'with this opinion.’"). Justice Robertson recognized the same principle we do today — that, absent an indictment, there is no need for further proceedings in this case. Contrary to the suggestion of the dissent, Justice Robertson did not call for reversing and rendering the judgment of conviction.

      . The apartment the two men allegedly entered was being renovated and contained items such as tile, mortar, and mud.

      . Witnesses testified that the SUV was parked near the dumpster. Photos introduced at trial show that the dumpster (and thus the area in which the SUV was located) was not directly adjacent to the apartment that was allegedly burglarized. The photos demonstrate that the SUV was over one building’s length away from the vacant apartment. In fact, based on the photos, which have vehicles in them, it appears that the SUV was located at least seven or eight car lengths away from the road in front of the vacant apartment, with the road being another several feet away from the door of the vacant apartment.

      . The testimony was that Hall was in the SUV the entire time. Cochran did testify that Hall “did step out but then stepped back in.” There is no allegation by the State that Hall ever entered or even went near the vacant apartment with the other two men.

      . At trial, Katie Jones testified on behalf of Hall. Jones testified that she was living in Spanish Oaks Apartments on September 1, 2010. Jones testified that her sister, Constance Davis, lived with her, and that Pryor was Davis's boyfriend. She testified that Hall gave Pryor a ride to Spanish Oaks for the purpose of Pryor visiting Davis.

      . In his post-trial motions, Hall noted that the State’s jury instructions violated Uniform Rule of Circuit and County Court 3.07, which forbids jury instructions that are not prefiled, absent good cause. URCCC 3.07.

      . The majority attempts to distinguish Gause from the present case by stating that the case was “quintessential jury nullification.” Maj. Op. at ¶ 15. Nothing in the analysis of the issue in Gause mentioned any analogy to jury nullification. Rather, the entire analysis of the issue was based on the fact that the State requested a lesser-offense, rather than a lesser-included-offense, jury instruction above the objection of the defendant. Gause, 65 So.3d at 299-302 ("[T]here is a crucial difference between a jury instruction on a lesser-included offense, which either the State or the accused may request, and an instruction on a lesser offense, which only the accused may request.”) (“Gause’s indictment did not charge him with the elements of burglary.... The trial court clearly erred by granting the State's request for an instruction on burglary, because burglary is not a lesser-included offense of capital murder, and because the State was not entitled to a lesser-offense instruction. We reverse and render Gause's conviction of burglary.”). Gause is virtually indistinguishable from the present case, since (as the majority emphasizes in describing the Gause case) in Hall’s case, ”[a]t the request of the State, the jury was instructed on” lesser-included offenses to burglary, as well as the lesser offense of accessory after the fact to burglary. Maj. Op. at ¶ 15 (emphasis added).

      . The majority quotes Justice Robertson’s concurring opinion, which states that it should "be understood clearly that there are no further proceedings that may be had consistent ‘with this opinion.’ ” Hailey v. State, 537 So.2d 411, 419 (Miss.1988) (Robertson, J., concurring) (emphasis added). Justice Robertson affirms that nothing else may be done in such a case. Indeed, if the trial court is barred from conducting any further proceedings with regard to Hall and any accessory-after-the-fact charge arising from these allegations, it makes little sense not to simply render Hall's conviction.

      . This version of the accessory statute is no longer in effect, as the accessory statute was amended in 2012, after Hall allegedly committed the crime; however, the elements of the crime remain the same. 2012 Miss. Laws Ch. 496.

      . Cochran testified that “When the police arrived — it's a double opened-end [sic] driveway, and they swarmed in. The two guys started running toward the vehicle, and at that time they were all three apprehended by the police.” Raison testified that when the police arrived, the three men were "By the 4-Runner. In the 4-Runner.” Lieutenant Bounds testified that when the police arrived "[t]hey all broke and run towards the vehicle. ... We approached the vehicle. There were three suspects inside the vehicle.”


author: LAMAR, Justice,

text:
    ESTATE OF Edward MILES, Deceased v. Virgil BURCHAM.
    No. 2012-CA-01021-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      R. Bradley Best, Oxford, Edward R. McNees, Booneville, attorneys for appellant.
    Duncan L. Lott, Thomas O. Cooley, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Following a motor-vehicle accident, Virgil Burcham sued Edward Miles’s estate for negligence and negligence per se. Burcham received a $60,000 judgment, from which the Miles estate appeals. We affirm the judgment as to liability, subject to remittitur.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 3, 2005, Edward Miles drove his pickup truck into an intersection in front of Virgil Burcham’s eighteen-wheel fuel truck. Miles was transported by helicopter to the Regional Medical Center in Memphis, where he died several hours later. At the accident scene, Burcham complained of minor back pain but drove himself home after his boss, Danny Jumper, gave him a ride to his personal vehicle.

¶ 3. The next day, Burcham informed Jumper that his back pain had increased and that he needed to see a doctor. During this conversation, Burcham first learned that Miles had died. Burcham was traumatized by the news and asked Jumper to find someone else to haul fuel. Jumper could not find a replacement, and Burcham resumed hauling fuel a week later. During the next six months, Burcham was nervous and often cried while driving. He also lost control of his bowels several times. Despite his emotional distress, Burcham continued to haul fuel but did not unload it due to his back injury.

¶ 4. Nineteen days after the accident, Burcham went to see Dr. Joseph Putnam with complainants of increased constipation, lack of bowel control, and blood in his stool. Dr. Putnam ordered a colonoscopy, which identified divertieulosis, and not the accident, as the cause of Burcham’s issues. For his emotional distress, Burcham went to see Dr. Joe Ed Morris and was diagnosed with post-traumatic stress disorder. Dr. Morris referred Burcham to Timber Hills, a regional mental facility, where Burcham was treated on an outpatient basis by Dr. Atsuko Ishikawa. Burcham’s conditions improved, and he continued to haul fuel until he retired in 2006.

¶ 5. Burcham sued the Miles estate for negligence and negligence per se, and a jury awarded him $60,000. The Miles estate appeals from the judgment, raising six issues:

I. Did the trial court err by failing to exclude Burcham’s emotional-distress claims?
II. Did the trial court err by failing to exclude Burcham’s colonoscopy-re-lated medical expenses?
III. Did the trial court err by giving flawed and incomplete jury instructions?
IV. Did the trial court err by excluding Officer Mathis’s testimony regarding Burcham’s prior accident?
V. Is the jury’s verdict unsustainable?
VI. Did the trial court err by setting a six percent post-judgment interest rate?

LAW AND ANALYSIS

I. Emotional Distress

¶ 6. The crux of this appeal is whether Burcham’s emotional distress was a reasonably foreseeable injury and therefore a recoverable category of damages. For purposes of foreseeability, emotional-distress plaintiffs are divided into two categories: participants and bystanders. Participants are directly involved in the causal event, and the foreseeability of their emotional-distress claims is analyzed like any other damages claim. Bystanders merely observe the causal event, and the foreseeability of their emotional-distress claims is determined by analyzing the three Dillon factors, which are:

1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

¶ 7. The parties dispute Burcham’s classification because his emotional distress was caused by two events: the accident and the subsequent knowledge of Miles’s death. Burcham claims that his involvement in the accident makes him a participant, while the Miles estate claims that his trauma stemmed from Miles’s death, not the accident, and therefore, this should be analyzed as a bystander claim. We agree with Burcham.

¶ 8. Emotional distress is a reasonably foreseeable injury to a car-accident participant, therefore Burcham was entitled to such damages so long as he proved they were in fact caused by Miles’s negligence. It was undisputed at trial that, at the intersection where the accident occurred, Miles had a stop sign and Burc-ham had a flashing yellow caution light. As such, Burcham had the right of way, and Miles breached his duty to yield when he pulled out in front of him. This breach caused the accident between the parties. The question then became whether the accident caused Burcham’s emotional distress. The testimony of several witnesses supports the jury’s finding that it did. Specifically, Jumper testified that when he arrived at the accident scene Burcham was rattled, rambling, pale, “shaking like a leaf,” and “a basket case.” Similarly, Dr. Morris testified that Burcham’s post-traumatic stress disorder was caused by his involvement in the fatal accident. Since Miles negligently caused the accident that caused Burcham’s emotional distress, and since emotional distress is a reasonably foreseeable injury to a car-accident participant, the trial court did not err by submitting this claim to the jury. This issue is without merit.

II. Medical Expenses

¶ 9. In addition to emotional-distress damages, Burcham sought to recover the cost of a colonoscopy and other related procedures. In order to recover these expenses, Burcham had to prove that they were “necessary and reasonable” medical expenses resulting from the accident with Miles.

¶ 10. Nineteen days after the accident, Burcham went to see Dr. Putnam with a variety of complaints including increased constipation, lack of bowel control — particularly when driving his fuel truck — and blood in his stool. Dr. Putnam ordered Burcham a colonoscopy to determine the cause of the blood in his stool. One potential cause was an injury sustained in the accident. Dr. Putnam testified that he could not rule out the accident as a cause without a diagnostic test-a colonoscopy. But the colonoscopy revealed that Burc-ham’s condition was caused by diverticulo-sis, not the accident. This procedure also revealed several small polyps in Burcham’s colon, which were removed and biopsied. Burcham sought to recover the cost of the colonoscopy and the polyp procedures. By presenting the bills to the trial court and testifying that they were incurred as a result of the accident, Burcham made a prima facie case that the bills were “necessary and reasonable” expenses. We address separately the damages for the colo-noscopy and the polyp procedures.

A. Colonoscopy

¶ 11. The Miles estate claims that the cost of Burcham’s colonoscopy was erroneously admitted because “the test was not performed because of the accident” and “Burcham’s medical condition was not medically related to the accident.” Burc-ham argues that the colonoscopy was a “necessary and reasonable” diagnostic test, the cost of which is recoverable regardless of its results.

¶ 12. We have not found a case, nor have the parties cited one, in which this Court has addressed the specific issue of whether a plaintiff may recover damages for diagnostic examinations in the absence of evidence of physical injury related to a defendant’s negligence. The Miles estate mistakenly relies on Martin v. St. Dominic-Jackson Memorial Hospital, 90 So.3d 43 (Miss.2012), to argue that the cost of such a procedure is unrecoverable. In Martin, we held that the defendant was entitled to a directed verdict because the plaintiff had failed to establish the defendant’s negligence was the proximate cause of her injury. We did not directly address whether a plaintiff can recover the cost of a diagnostic procedure if the procedure eliminates, as opposed to implicates, a defendant’s negligence as an injury’s cause. Today, we hold that the cost of a diagnostic procedure is recoverable, regardless of its results, so long as it is found to be a “necessary and reasonable” expense related to a defendant’s negligence.

¶ 13. Accordingly, even in the absence of physical injury, Burcham should be able to recover the costs of diagnostic examinations which are a “necessary and reasonable” expense caused by Miles’s negligence. “The need for diagnostic examinations, of course, must be supported by the testimony of competent medical experts.” Here, Burcham’s need for the diagnostic examination — the colonoscopy— was shown through the testimony of Dr. Putnam. Because the accident could not be eliminated as the cause of Burcham’s condition without the colonoscopy, we cannot say that the trial court erred in finding that the colonoscopy was a “necessary and reasonable” diagnostic procedure resulting from the accident. As such, the trial court did not err by allowing Burcham to submit these damages as a medical expense.

B. Polyp Procedures

¶ 14. The Miles estate separately attacks $1,080 in medical bills incurred for the removal and testing of polyps, alleging those procedures clearly were not accident-related. We agree. Because we find those bills were not “necessary and reasonable” medical expenses resulting from the accident, it was error to submit such bills to the jury, and an offsetting remitti-tur is required. If Burcham does not accept the necessary $1,080 remittitur, a new trial on damages will be necessary.

III. Jury Instructions

¶ 15. In addition to the damages awarded, the Miles estate challenges the jury instructions on three issues. When considering a jury-instruction challenge, the instructions are “read together as a whole, and so long as they fairly state the law of the case and create no injustice, no reversible error exists.” Additionally, a jury instruction cannot be given unless there is an evidentiary basis for it.

A. Emotional Distress

¶ 16. The Miles estate claims that the trial court improperly refused instruction D-15, which correctly explained when a bystander can recover emotional-distress damages. The trial court refused the “bystander instruction” because it had correctly classified Burcham as a participant. The trial court did not err by refusing to give instruction D-15. This issue is without merit.

¶ 17; The Miles estate also challenges the trial court’s edits to instruction D-15R. D-15R was given as an alternative to instruction D-15 and initially stated:

In this case, Plaintiff seeks an award of damages for emotional distress resulting from Plaintiffs learning of Edward Miles’ death at some time after the automobile accident. You are instructed that you may only award damages for the plaintiffs mental suffering if the plaintiff proves, by a preponderance of the evidence, that:
1. the [P]laintiff has suffered some sort of demonstrative harm or injury; and
2. that Plaintiffs emotional distress was reasonably foreseeable to Edward Miles, Deceased.
In order to determine if Plaintiffs claim of emotional distress was reasonably foreseeable to Edward Miles, Deceased, the Court instructs you to consider the following factors:
1. whether Plaintiff was located near the scene of Mr. Miles’ death;
2. whether Plaintiffs emotional distress resulted from a direct emotional impact upon Plaintiff from the sensory and contemporaneous observance of Mr. Miles’death; and
3. whether Plaintiff and Mr. Miles were closely related.
Therefore, if the Plaintiff fails to prove to you that he has suffered some sort of demonstrative harm or injury and that Plaintiffs emotional distress was reasonably foreseeable, by a preponderance of the evidence, then you must not award Plaintiff any damages for emotional distress.
However, if you find that the Plaintiff has proven these factors, by a preponderance of the evidence, then you must award such damages, if any, as you deem reasonable to the plaintiff.

The trial court gave instruction D-15R but eliminated the portion italicized above. The Miles estate argues that the original version correctly stated the law and that the amended version was misleading and confusing. We disagree. Like D-15, the original version of D-15R was a bystander instruction and was properly refused. D-15R was properly edited to reflect the trial court’s correct classification of Burc-ham as a participant. This issue is without merit.

B. Comparative Fault

¶ 18. The Miles estate wanted to instruct the jury on several theories of comparative negligence by alleging Burcham contributed to the accident by failing to: 1) obey a caution light, 2) yield, and 3) blow his horn. We address separately each instruction.

1. Caution Light

¶ 19. The Miles estate faults the trial court for refusing instruction D-9, which read:

You are instructed that a flashing yellow or amber light facing a motorist at an intersection imposes on him or her the duty of proceeding into the intersection with caution and at a reasonable speed, and of maintaining a careful lookout for other vehicles. You are further instructed that no driver of a vehicle is permitted to disobey the instruction of any official traffic-control device, unless at the time otherwise directed by a police officer.

In this case, there was a flashing yellow or amber light facing Plaintiff Virgil Burcham above the intersection of Highway 72 and Highway 7 at the time of the automobile accident at issue. Further, there was no direction by a police officer to disobey the instruction of the flashing yellow or amber light. Should you find that Plaintiff Virgil Burcham disobeyed the flashing yellow or amber light by proceeding into the intersection without caution, at an unreasonable speed, or by failing to maintain a careful lookout for other vehicles, such as that driven by Defendant Edward Miles, then Plaintiff Virgil Burcham is guilty of negligence.

If you believe that such negligence was the sole proximate cause of the accident and any injuries and damages Plaintiff claims to have sustained, then your verdict shall be for the Defendant. If you find that the negligence of Plaintiff was a proximate contributing cause of the accident and any damages and injuries, in arriving at your verdict, first determine that sum of money which will fairly and adequately compensate Plaintiff for said injuries and damages, and then assign Plaintiff a percentage of fault in proportion to the causal negligence of Plaintiff as provided in these instructions.

While instruction D-9 correctly stated the law, it lacked an evidentiary basis, as there was no evidence at trial that Burcham disobeyed the caution light. This issue is without merit.

2. Failure to Yield

¶20. Similarly, the Miles estate criticizes the trial court for refusing instruction D-8R, which read:

You are instructed that the law of this State requires the driver of a vehicle to stop at the entrance to a through highway and yield the right-of-way to other vehicles which are approaching so closely on the through highway as to constitute an immediate hazard. However, once the driver has yielded at the intersection, he may proceed and the drivers of all other vehicles approaching the intersection on the through highway must yield the right-of-way to the vehicle proceeding into or across the through highway.
You are also instructed that the law of this state requires a driver of a vehicle to reduce his speed when approaching an intersection.
In this case, Plaintiff Virgil Burcham has alleged that Defendant Edward Miles, after stopping at the intersection of Highway 7 and Highway 72, entered the intersection of Highway 72, where Defendant’s vehicle was struck by a vehicle driven by Plaintiff Virgil Burcham. Should you find that Defendant Edward Miles stopped at the intersection and yielded the right of way as required, and that Plaintiff Virgil Burcham then failed to yield the right-of-way to Edward Miles, who was then entering the through highway, then you may find Plaintiff Virgil Burcham was negligent.
In addition, if you also find that Virgil Burcham did not reduce his speed has [sic] he approached the intersection of Highway 72 and Highway 7, then you may find that Plaintiff Virgil Burcham was negligent.
If you believe that such negligence was the sole proximate cause of the accident and any injuries and damages Plaintiff claims to have sustained, then your verdict shall be for the Defendant. If you find that the negligence of Plaintiff was a proximate contributing cause of the accident and any damages and injuries, in arriving at your verdict, first determine that sum of money which will fairly and adequately compensate Plaintiff for said injuries and damages, and then assign Plaintiff a percentage of fault in proportion to the causal negligence of Plaintiff as provided in these instructions.

Instruction D-8R correctly stated the law governing an intersection without a light or stop sign. However, it was undisputed at trial that Miles had a stop sign at the intersection where the accident occurred. Therefore, D-8R was not supported by the evidence and would have confused the jury. This issue is without merit.

3. Horn

¶ 21. Despite it being undisputed at trial that Burcham did not have time to sound his horn, the trial court gave instruction D-18, which stated:

You are instructed that the law of this State requires a driver of a motor vehicle, such as Plaintiff Virgil Burcham, to give audible warning with his horn when reasonably necessary to ensure safe operation. In this case, Plaintiff has testified that he did not give an audible warning with his horn before the accident at issue. Should you find that the use of Plaintiffs horn was reasonably necessary to ensure safe operation of his vehicle as he approached Mr. Miles’ vehicle, then Plaintiff Virgil Burcham is guilty of negligence.
If you believe that such negligence was the sole proximate cause of the accident and any injuries and damages Plaintiff claims to have sustained, then your verdict shall be for the Defendant.
If you find that the negligence of Plaintiff was a proximate contributing cause of the accident and any damages and injuries, in arriving at your verdict, first determine that sum of money which will fairly and adequately compensate Plaintiff for said injuries and damages, and then assign Plaintiff a percentage of fault in proportion to the causal negligence of Plaintiff as provided in these instructions.

It was error to give instruction D-18, as it was not supported by the evidence. However, the error was harmless, as it clearly did not contribute to the verdict.

¶ 22. Based on the portion of instruction D-18 italicized above, the Miles estate argues that it was entitled to, but not given, an instruction on assigning a percentage of fault. We agree that it is error to refer to an instruction that is not given, but, because we find no evidentiary support for instruction D-18, it should never have been given, and the error was harmless.

C. Accident Without Negligence

¶ 28. Finally, the Miles estate faults the trial court for refusing instructions D-2, D-5, and D-6. It argues that these instructions were necessary to inform the jury that an accident can occur without anybody being negligent. All three instructions addressed issues sufficiently covered by the trial court’s other instructions and were appropriately refused. This issue is without merit.

IV. Prior Accident

¶ 24. The Miles estate disputes the trial court’s exclusion of testimony from Officer Mathis regarding an accident Burcham had six months prior to his accident with Miles. The Miles estate sought to question Officer Mathis about the accident on two occasions. On each occasion, the trial court held a bench conference to determine the admissibility of the testimony. The first conference occurred following Burcham’s direct examination of Officer Mathis, and the trial court ruled that the questioning was premature. The second conference occurred before the Miles estate called its first witness, and the trial court ruled that the questioning was an inappropriate attempt to impeach Burc-ham on a collateral matter. The Miles estate challenges the trial court’s second ruling.

¶ 25. A trial court’s admission or exclusion of testimony is reviewed for an abuse of discretion. Impeachment on a collateral matter is prohibited and “a matter is collateral when it is not directly relevant to the issues in the case.” The Miles estate claimed the testimony it sought was relevant and admissible based on a rule set out in Boyd v. State that

[T]he plaintiff may properly be cross examined as to his previous injuries, • physical condition, claims, or actions for injuries similar to that constituting the basis of the present action, for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused, wholly or partially, by an earlier injury or pre-existing condition.

However, no evidence was presented nor proffer made that Burcham was injured, physically or mentally, in his previous accident. As such, Officer Mathis’s testimony regarding Burcham’s previous accident was irrelevant, and it was not an abuse of discretion for the trial court to exclude it. This issue is without merit

V. Jury’s Verdict

¶ 26. The Miles estate also claims that the jury’s verdict is unsustainable and that a substantial remittitur is required.

Awards fixed by juries are not merely advisory and will ordinarily not be set aside except where so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable, and outrageous. Evidence of bias, passion, or prejudice on the jury’s part is an inference to be drawn from contrasting the amount of a verdict with the amount of damages.

As previously discussed, we find that a remittitur in the amount of $1,080 is necessary to negate the submission to the jury of unrelated medical expenses. This re-mittitur will reduce Burcham’s judgment from $60,000 to $58,920. We find no evidence of bias, passion, or prejudice in the jury’s award, nor is it “beyond all measure, unreasonable, and outrageous” and we can affirm it, subject to acceptance of remitti-tur. If the remittitur is not accepted, a new trial on damages will be required.

VI. Post-Judgment Interest Rate

¶ 27. Lastly, the Miles estate argues that the six-percent post-judgment interest rate set by the trial court “is improperly punitive and far exceeds the scope and purpose of post-judgment interest.” We disagree. Mississippi had a statutory post-judgment interest rate of eight percent until 1989, when statutory amendments replaced the fixed rate with a requirement that the trial judge set a fair and reasonable rate. Since 1989, many trial judges have continued to use an eight-percent interest rate, and this Court repeatedly has affirmed such orders. This issue is without merit.

CONCLUSION

¶ 28. Miles negligently caused an accident when he pulled his pickup truck out in front of Burcham’s eighteen-wheel truck. As a participant in the accident, Burcham was entitled to recover emotional-distress damages and accident-related medical expenses. He was not entitled to recover medical expenses that were not accident-related. N on-accident-related medical expenses totaling $1,080 were submitted to the jury, necessitating an equivalent remittitur. Finding no other reversible error, we affirm the judgment of the Benton County Circuit Court if remittitur of $1,080 is accepted and entered within fifteen days from the date of issuance of this Court’s mandate. Otherwise, we reverse and remand this case for a new trial on damages only.

¶ 29. AFFIRMED ON CONDITION OF REMITTITUR; IF REMITTITUR REFUSED, REVERSED IN PART AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ.,'KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The accident occurred at the intersection of Mississippi Highway 7 and U.S. Highway 72. Miles was driving northbound on Mississippi Highway 7. Burcham was driving eastbound on U.S. Highway 72.

      . At the accident scene, Miles was in pain but exited his truck without assistance and retained consciousness. The responding officer did not consider the accident to be potentially fatal.

      . According to Dr. Putnam, divertieulosis is a disease characterized by pockets in the colon wall.

      . Burcham asked for $7,084.55 in medical expenses, $40,000 for past emotional distress, $8,000 for future emotional distress, and $5,000 for past physical pain, for a total damages request of $60,084.55.

      . Entex, Inc. v. McGuire, 414 So.2d 437, 444 (Miss. 1982) (holding a plaintiff in a negligence case can recover only reasonably foreseeable damages).

      . Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 658 (Miss. 1995).

      . Entex, 414 So.2d at 444 (Miss.1982) (citing First Nat'l Bank v. Langley, 314 So.2d 324 (Miss. 1975), which abandoned the impact doctrine for emotional-distress claims, and adopting the reasonable foreseeability factors set out in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)).

      . See U.S. Fid. & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38 (Miss.2002).

      . Downs v. Ackerman, 115 So.3d 785, 790-91 (Miss.2013).

      . See id.

      . Id. at 49-50.

      . Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 827 n. 15 (D.C.Cir.1984).

      . Miss. Code Ann. § 11-1-55 (Rev.2002) (stating ''[t]he supreme court ... may ... affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds ... that the damages awarded were contrary to the overwhelming weight of credible evidence”).

      . Daniels v. State, 107 So.3d 961, 963 (Miss. 2013) (internal quotations omitted).

      . Neal v. State, 525 So.2d 1279, 1288 (Miss. 1987).

      .Burcham also argues that D-15 conflicts with C-8. We disagree. C-8 provided the test for proximate cause stating:
      An element or test of proximate cause is that an ordinarily prudent person should reasonably have forseen that some injury might probably occur as a result of his/her negligence. It is not necessary to foresee the particular injury, the particular manner of the injury or the extent of the injury.
      D-15 addressed the separate issue of when emotional distress is reasonably foreseeable.

      . The Miles estate’s reliance on Dupree v. Plantation Pointe, L.P., 881 So.2d 832 (Miss. Ct.App.2003), is misplaced, as it is a bystander case.

      . See Snapp v. Harrison, 699 So.2d 567, 572 (Miss. 1997).

      . The trial transcript indicates that a bench conference occurred at the end of Burcham’s direct examination. There is no record of the parties' arguments during the first bench conference, but the trial court's determination that the testimony was premature is referenced in the record of the parties' second bench conference.

      . Kindred v. Columbus Country Club, Inc., 918 So.2d 1281, 1284 (Miss.2005).

      . Lee v. State, 944 So.2d 35, 43 (Miss.2006).

      . Boyd. v. Smith, 390 So.2d 994, 998 (Miss. 1980).

      . Schoppe v. Applied Chemicals Div., Mobley Co., Inc., 418 So.2d 833, 836 (Miss.1982) (citations omitted).

      . Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 164 (Miss.2011).

      . Id.