Editor’s Notes —

Section 13-1-57, referred to in this section, was repealed by Laws of 1975, ch. 501, § 22, effective from and after January 1, 1976. Comparable provisions now appear in Section 13-1-227.

Cross References —

Appointment of official court reporter, see §9-13-1.

Application to all courts of circuit court civil practice provisions, see §11-7-1.

Venue of civil actions or suits generally, see §§11-11-1 et seq.

Rules of evidence generally, see §§13-1-1 et seq.

Process, notice and publication generally, see §§13-3-1 et seq.

Power of notaries public to administer oaths, see §§25-33-9,25-33-11.

Acknowledgment and proof of conveyances or other contracts dealing with property, see §§89-3-3,89-3-9.

Rules governing civil practice and procedure in Mississippi courts, see Miss. R. Civ. P. 1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

This section gives the mayor of a municipality the authority to administer oaths and therefore swear other public officials into office. 2004 Miss. Op. Att'y Gen. 375.

RESEARCH REFERENCES

ALR.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Am. Jur.

3 Am. Jur. 2d, Affidavits §§ 6, 7.

20 Am. Jur. 2d (Rev), Courts §§ 37, 38.

58 Am. Jur. 2d, Oath and Affirmation §§ 16, 17, 20-22.

18A Am. Jur. Pl & Pr Forms (Rev), Oath and Affirmation, Forms 1-6.

13C Am. Jur. Legal Forms 2d, Oath and Affirmation, §§ 189:5-189:7, 189:9.

12 Am. Jur. Proof of Facts, Acknowledgments, Proof No. 1 (Valid acknowledgment–testimony of notary).

CJS.

2A C.J.S., Affidavits §§ 9, 51.

21 C.J.S., Courts §§ 116-118.

JUDICIAL DECISIONS

1. In general.

Defendant’s claim that the trial court was without jurisdiction to accept defendant’s guilty plea was unsupported and without merit as defendant’s affidavit and the unsworn statement of the victim purporting to have had consensual sex with defendant in another county, which was not presented to the trial court, was insufficient evidence to support defendant’s allegation. Moore v. State, 250 So.3d 521, 2018 Miss. App. LEXIS 317 (Miss. Ct. App. 2018).

Petitioner failed to furnish affidavits or show cause why he could not furnish affidavits to support his claims that he was shackled in front of the jury, as required by Miss. Code Ann. §§99-39-9(1)(e),11-1-1; although the petitioner referred to statements as “affidavits,” they had not been notarized before any official. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

For a murder trial taking place in Tennessee, a court reporter was authorized to take the deposition of a witness in Mississippi. State v. Powers (Tenn. Jan. 6, 2002).

The manner of selection of guardians as provided by the statutes is not exclusive, and a selection made by a notary public was sufficient where the notary public was authorized to administer oaths. Vaughn v. Vaughn, 226 Miss. 153, 83 So. 2d 821, 1955 Miss. LEXIS 618 (Miss. 1955).

Proceeding for seizure of property on which seller had purchase-money lien held not invalid because affidavit for seizure was made before officer in another state, since statute, providing that person having purchase-money lien “can enforce same” by making affidavit before proper officer of county where subject-matter of lien may be, is not mandatory. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

A justice of the peace is authorized to take affidavits in his own county, to be used elsewhere. Cassedy v. Mayers, 64 Miss. 356, 1 So. 510 (Miss. 1886).

Every affidavit taken in the progress of any suit must bear upon its face the title of the suit in which it is taken, and show the proceedings to which it is intended to reply. Saunders v. Erwin, 3 Miss. 732, 1838 Miss. LEXIS 34 (Miss. 1838).

Whenever an officer is confined in the execution of his duties to a particular territory, all of his official acts must show upon their face that they were performed within such territory. Saunders v. Erwin, 3 Miss. 732, 1838 Miss. LEXIS 34 (Miss. 1838).

Cross References —

Execution of process on attorney in fact, see §87-3-5.

RESEARCH REFERENCES

Am. Jur.

61A Am. Jur. 2d, Pleading §§ 274, 278.

CJS.

71 C.J.S., Pleading §§ 504, 505, 532, 534.

JUDICIAL DECISIONS

1. In general.

2. Agent or attorney.

1. In general.

Where a statute specifically prescribes who shall make a certain affidavit, it can be made by none other than the persons specified, although there is nothing in the language of the statute to show that its designation was intended to be exclusive. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

This section is inapplicable with respect to an affidavit of complainant accompanying a bill for divorce under Code 1942, § 2737, since under the latter section the designation of complainant as the person to make the affidavit is exclusive. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

In all cases the affidavit should be special and show whether the knowledge or information be that of the party or the attorney. Burks v. Burks, 66 Miss. 494, 6 So. 244, 1889 Miss. LEXIS 135 (Miss. 1889).

2. Agent or attorney.

Where motion which was signed and sworn to by appellant’s attorney to reinstate a cause after dismissal of appeal because of the failure of appellant to file assignment of error and brief though he had 30 days, the motion was insufficient where it did not disclose that this failure was without the appellant’s fault. Paine v. Wilemon, 218 Miss. 238, 67 So. 2d 289, 1953 Miss. LEXIS 535 (Miss. 1953).

It is not necessary that the prisoner himself swear to the application for change of venue where it appears from the affidavit of counsel filed before trial that the prisoner seems to be either insane or so shocked and mentally unbalanced since his arrest as to be unable to make a coherent statement and aid counsel in preparation of his defense. McGee v. State, 200 Miss. 350, 26 So. 2d 680, 1946 Miss. LEXIS 298 (Miss. 1946).

Affidavit to complaint made by attorney and reciting that allegations of complaint were correct and true held not objectionable for failure to disclose that facts were within personal knowledge of affiant, since, in absence of statement that allegations of facts were made on information, it was presumed to be sworn to on personal knowledge of affiant. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Answer denying charge of bill sworn to by attorney puts complainant to proof. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Where bill charged debt of gross amount not itemized, and answer sworn to by defendant’s attorney denied debt, and itemized sworn account was not embraced in pleadings, ex parte sworn account was not admissible; ex parte sworn account, after pleadings in which such account was not embraced or at issue, did not impose on defendant duty to file counteraffidavit specifying particular items denied. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Treasurer of corporation may make oath to open account within statute. W. M. Finck & Co. v. Brewer, 133 Miss. 9, 96 So. 402, 1923 Miss. LEXIS 103 (Miss. 1923).

Affidavit of agent to dispossess must be personal, and state facts. Downing v. Campbell, 131 Miss. 137, 95 So. 312, 1922 Miss. LEXIS 281 (Miss. 1923).

Attorney can make affidavit of defense on motion to set aside default judgment. Southwestern Surety Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143, 1916 Miss. LEXIS 41 (Miss. 1916).

The attorney can make affidavit for a principal to a plea of non est factum. Northrop v. Flaig, 57 Miss. 754, 1880 Miss. LEXIS 51 (Miss. 1880).

A bill in chancery, sworn to by the attorney of complainant, will not dispense with the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow the answer sworn to, as would be done if complainant himself swore to the bill. Jacks v. Bridewell, 51 Miss. 881, 1876 Miss. LEXIS 157 (Miss. 1876); Waller v. Shannon, 53 Miss. 500, 1876 Miss. LEXIS 102 (Miss. 1876).

Where a bill in chancery is sworn to by the attorney, the affidavit must be special, stating whether the allegations made on information and belief are on the information and belief of the complainant or of the attorney; and statements within the knowledge of the affiant must be stated to be within his knowledge. Waller v. Shannon, 53 Miss. 500, 1876 Miss. LEXIS 102 (Miss. 1876).

Cross References —

Duty of chancery clerk to make final record, see §9-5-161.

Larceny of court records, see §97-9-3.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d (Rev), Clerks of Court § 50.

CJS.

21 C.J.S., Courts §§ 327-351.

Editor’s Notes —

Former section 11-1-6 provided for pretrial conferences.

Former §11-1-7 provided that all matters pending when a court fails to hold a term or fails to continue to sit for entire term are continued, that there would be no discontinuance when a court failed to sit on any day in a term, and that a court could take a recess.

RESEARCH REFERENCES

Law Reviews.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Cross References —

Continuance of Supreme Court cases, see §11-3-7.

Continuance of trial in habeas corpus proceedings, see §11-43-33.

Continuance of action against nonresident, see §75-75-13.

Continuance in divorce cases, see §93-5-7.

Application for continuance in capital cases, see §99-15-31.

RESEARCH REFERENCES

Am. Jur.

17 Am. Jur. 2d, Continuance §§ 50, 51, 54.

7 Am. Jur. Pl & Pr Forms (Rev), Continuance, Forms 66, 69, 171 et seq.

CJS.

17 C.J.S., Continuances § 51.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 3:2.

JUDICIAL DECISIONS

1. In general.

The length of time for which a continuance may be granted rests within the sound discretion of the trial court. Thus, in a prosecution for armed robbery in which defense counsel was a member of the Mississippi Legislature, the trial court did not err in granting defendant a continuance until the day following the adjournment of the legislature, despite his request for a continuance to the next term of court. Gooch v. State, 384 So. 2d 74, 1980 Miss. LEXIS 2022 (Miss. 1980), cert. denied, 450 U.S. 923, 101 S. Ct. 1374, 67 L. Ed. 2d 352, 1981 U.S. LEXIS 901 (U.S. 1981).

Editor’s Notes —

Former §11-1-11 prescribed the manner of finding a substitute when a circuit judge, county judge, or chancellor was disqualified from hearing a case.

Former §11-1-13 provided distinctions between a special judge appointed for a particular case and one appointed for an entire term.

Former §11-1-15 provided for judges of other districts to cover for judges who were disqualified in matters of vacation.

Editor’s Notes —

Laws, 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

RESEARCH REFERENCES

ALR.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Trial court did not err in relying on the clerk’s documentation as to when defendant’s motion to reconsider sentence was truly filed; a judge may not alter or vacate a sentence once the term of court the defendant was sentenced in has ended, thus defendant was four days late, for jurisdictional purposes, in filing his motion; this motion could not be considered “pending” under Miss. Code Ann. §11-1-16, because the motion was not filed before the term of court ended. Ducote v. State, 970 So. 2d 1309, 2007 Miss. App. LEXIS 831 (Miss. Ct. App. 2007).

Miss. Code Ann. §11-1-16 (1991) clearly gives a circuit court authority to consider a pending motion after a term has ended; Dickerson v. State, 731 So. 2d 1082 (Miss. 1998) is overruled to the extent it is inconsistent with Miss. Code Ann. §11-1-16 (1991). Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

The statute gives a circuit court authority to consider a pending motion after a term has ended. Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

There has been a vast expansion by statutory enactment of the times within which circuit judges are lawfully empowered to conduct court affairs. Although the Mississippi Constitution contemplates circuit courts being held at fixed, stated terms provided by statute, and the circuit courts of this State have had fixed terms, the legislature by various enactments – §§11-1-7 [Repealed],11-7-131,11-7-133 [Repealed],11-7-121 [Repealed],11-1-16, and9-7-3 – has granted circuit courts wide latitude in taking official actions in vacation. Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Miss. Code Ann. §11-1-16 (1991) clearly gives a circuit court authority to consider a pending motion after a term has ended; Dickerson v. State, 731 So. 2d 1082 (Miss. 1998) is overruled to the extent it is inconsistent with Miss. Code Ann. §11-1-16 (1991). Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

The dispositive portion of a circuit judge’s order entered in vacation setting aside defendants’ convictions under 2 counts of an indictment had the same finality as a final judgment, and where no further action was taken in the ensuing regular term of the court, the circuit court was without authority thereafter to reinstate the convictions. Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Medical malpractice action was not required to be remanded for new trial because the prevailing parties in the court below failed to file their final judgment before the term of court closed, but in fact filed it at the next term of court. Latham v. Hayes, 495 So. 2d 453, 1986 Miss. LEXIS 2653 (Miss. 1986).

2. Applicability.

Trial court did not abuse its discretion in denying defendant’s motion to reconsider a 10-year prison sentence for the sale of crack cocaine where the term of court in which defendant was sentenced had ended. Defendant did not qualify under the exception in Miss. Code Ann. §11-1-16(1), as defendant’s motion was not pending when the court term ended. McGee v. State, 976 So. 2d 954, 2008 Miss. App. LEXIS 141 (Miss. Ct. App. 2008).

Editor’s Notes —

This section is modified or supplanted by Rule 15, Mississippi Rules of Appellate Procedure, as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Appeal from final judgment or decree, see §11-51-3.

Writ of mandamus to require trial court decision, see Miss. R. App. P. 15.

RESEARCH REFERENCES

ALR.

Consequences of prosecution’s failure to file timely brief in appeal by accused. 27 A.L.R.4th 213.

Am. Jur.

47 Am. Jur. 2d, Judgments § 51.

CJS.

49 C.J.S., Judgments §§ 181, 185, 186.

Law Reviews.

1982 Mississippi Supreme Court Review: Civil Procedure: Judicial Decisions. 53 Miss LJ 130, March 1983.

JUDICIAL DECISIONS

1. In general.

Circuit court did not err in affirming the decision of a county board of supervisors to rezone certain property from agricultural and very low density residential to general industry because substantial evidence was before the board to support its decision, which was fairly debatable and could not be disturbed on appeal, and the impact of a hurricane on the area was an underlying concern and a significant factor in the change that had occurred in the area sought to be rezoned; the board was well aware of the impact of the hurricane on the county, and it implemented proper procedures for determining the rezoning of the area. Edwards v. Harrison County Bd. of Supervisors, 22 So.3d 268, 2009 Miss. LEXIS 410 (Miss. 2009).

A chancery court ruling entitled “Court Opinion,” which stated that it was the “final order,” acted to finally terminate litigation in the trial court for purposes of appeal such that no further act by the court was necessary even though no separate “final judgment” was entered. Adoption of Karenina v. Presley, 526 So. 2d 518, 1988 Miss. LEXIS 244 (Miss. 1988).

Where the filings required for an appeal were made prior to a decision which abrogated §11-1-17, which allowed an appeal to be taken directly to the Mississippi Supreme Court upon a trial court’s failure to enter a final decree within six months after taking the matter under advisement or deferment, and which promulgated a rule replacing the appeal procedure with the right to apply to the Supreme Court for a writ of mandamus to compel a trial judge to render a decision on a matter taken under advisement or deferred, the appeal would be heard and decided in accordance with the prior existing law, and thus, the chancellor lost jurisdiction to render a decree once the appeal was perfected pursuant to §11-1-17. Protective Service Life Ins. Co. v. Carter, 445 So. 2d 215, 1983 Miss. LEXIS 3016 (Miss. 1983).

An appeal would not lie under §11-1-17, where the circuit court judge had neither taken the case under advisement nor set a final due date for the filing of briefs. Mabry v. Day-Brite Lighting Div., Emerson Electric Co., 416 So. 2d 677, 1982 Miss. LEXIS 2052 (Miss. 1982).

In an action for wrongful death where the jury returned a verdict for the defendant and where the circuit court failed to rule on the plaintiff’s subsequent motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, the appeal would be dismissed since, if an order had been entered on the motion, it would have been an interlocutory order and therefore nonappealable from the circuit court to the Supreme Court. Woods v. Lee, 390 So. 2d 1010, 1980 Miss. LEXIS 2164 (Miss. 1980).

Party appealing to the Supreme Court under this section has the status of an appellant. Beall v. Beall, 310 So. 2d 706, 1975 Miss. LEXIS 1910 (Miss. 1975).

Where, upon remand from the supreme court, the trial court took the case under advisement following a hearing, but failed to decide the case within six months, appellant was entitled to appeal under the statute. Horton v. Horton, 301 So. 2d 305, 1974 Miss. LEXIS 1660 (Miss. 1974).

After an appeal was taken on the ground of the court’s failure to render a final decree within 6 months after the date when the matter was taken under advisement, the lower court was without jurisdiction to enter any opinion or decree in the matter. Evans v. State, 258 So. 2d 419, 1972 Miss. LEXIS 1497 (Miss. 1972).

Editor’s Notes —

Former §11-1-19 provided procedures for correcting errors in records of judgments and decrees and trial records.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds § 32.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

Cross References —

Authority of chancery court to reduce or cancel excessive bonds of receivers, executors, etc., see §9-5-103.

Authority of Supreme Court to require new bond, see §11-3-33.

Authority of circuit court to require new appeal bond, see §11-51-97.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

That circuit court permitted alleged defective bond given on appeal from county court to be amended held not error. Bassett v. Building & Loan Ass'n, 164 Miss. 674, 145 So. 109, 1933 Miss. LEXIS 229 (Miss. 1933).

Cross References —

Validity of bonds without seal, see §75-19-7.

Irregularities in bail bonds, see §99-5-23.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds §§ 18 et seq.

CJS.

11 C.J.S., Bonds §§ 44 et seq.

JUDICIAL DECISIONS

1. In general.

2. Irregularity or insufficiency.

3. —Form of bond.

4. —As to payee or beneficiary.

5. —As to amount.

6. —As to conditions of bond.

7. Estoppel.

1. In general.

This section does not apply to bonds required in federal court under federal statutes. National Surety Co. v. Lee, 125 Miss. 517, 88 So. 7, 1921 Miss. LEXIS 137 (Miss. 1921).

This section has no application to a voluntary bond, and a cost bond is a voluntary bond if given in a suit after the court has adjudged its execution unnecessary. Nichols v. Gulf & S. I. R. Co., 83 Miss. 126, 36 So. 192, 1903 Miss. LEXIS 20 (Miss. 1903).

The statute does not apply where a defendant in execution gave a bond to have the proceeds of property levied on forthcoming. Such a bond is unauthorized; and in such case it makes no difference that another made a claimant’s issue, the court will treat the officer as having the money in his hands. Carothers v. Leigh Bros., 60 Miss. 258, 1882 Miss. LEXIS 44 (Miss. 1882).

2. Irregularity or insufficiency.

This section cures all defects in bond after decree approving same. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

Sureties on supersedeas bond, given on premature appeal, are liable for rent, where on appeal decree awarding plaintiff possession of land is affirmed, plaintiff in the meantime being deprived of possession. Perkins v. Watson, 92 Miss. 452, 46 So. 80, 1908 Miss. LEXIS 213 (Miss. 1908).

3. —Form of bond.

The obligors in a bond given in a replevin suit cannot, under the statute, object to judgment against them because the form of the bond be the one appropriate for a claimant’s issue. Clark v. Clinton, 61 Miss. 337, 1883 Miss. LEXIS 133 (Miss. 1883).

4. —As to payee or beneficiary.

Action on a bond made in favor of the state for the use of a city was properly brought in the name of the state. Williams v. General Insurors, Inc., 6 So. 2d 922 (Miss. 1942).

Under this section the fidelity bond of a former liquidating agent of an insolvent bank was for the benefit of the depositors, creditors and stockholders of such bank and covered the misappropriation of funds thereof, notwithstanding that the bond was payable to the state banking department and it did not expressly provide for the security of the stockholders and creditors of the bank, and that it was not required by the banking laws, since it was given in the progress of a legal proceeding, the administration of the affairs of the bank by the chancery court, that the superintendent of banks had incidental powers to require such a bond and that the bank’s supervision and control laws were enacted for the benefit of the depositors, creditors and stockholders of banks. Moore v. Bank of Indianola Liquidating Corp., 183 Miss. 626, 184 So. 305, 1938 Miss. LEXIS 274 (Miss. 1938).

That official bond of member of board of supervisors was payable to county, instead of to State, as required by statute, did not exempt surety from liability thereon, since bond inured to benefit of persons whom law designated it to secure, regardless of named obligee of bond. State use of Russell v. McRae, 169 Miss. 169, 152 So. 826, 1934 Miss. LEXIS 26 (Miss. 1934).

Bonds executed by surety for principal on contract for installing heating and ventilating system in high school protected materialmen. Union Indem. Co. v. Acme Blow Pipe & Sheet Metal Works, 150 Miss. 332, 117 So. 251, 1928 Miss. LEXIS 171 (Miss. 1928).

Failure of bond in certiorari to review proceedings of board of supervisors, to run to county, held not to require dismissal of certiorari. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

Bond made payable to city does not prevent liability of surety to county under this section. United States Fidelity & Guaranty Co. v. Adams County, 105 Miss. 675, 63 So. 192, 1913 Miss. LEXIS 247 (Miss. 1913).

5. —As to amount.

When plaintiff’s replevin bond does not recite amount, law writes into bond penalty of double value of property as ascertained by officer’s return. Myers v. Daughdrill, 163 Miss. 298, 141 So. 583, 1932 Miss. LEXIS 42 (Miss. 1932), but see Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

Chancery clerk taking injunction bond in proper amount is not subject to statutory penalty or damages if sureties are solvent. Davis v. Hale, 155 Miss. 309, 124 So. 370, 1929 Miss. LEXIS 297 (Miss. 1929).

Where all sureties but one had signed supersedeas bond, act of principal thereafter raising amount then procuring signature of additional surety relieved all sureties of liability regardless of this section. Parsons-May-Oberschmidt Co. v. Furr, 110 Miss. 795, 70 So. 895, 1916 Miss. LEXIS 201 (Miss. 1916).

Where supersedeas bond does not state an amount court is only authorized to render judgment for amount authorized by terms of the bond and rules of equity. Parsons-May-Oberschmidt Co. v. Furr, 110 Miss. 795, 70 So. 895, 1916 Miss. LEXIS 201 (Miss. 1916).

6. —As to conditions of bond.

Under this section a bond intended to be an indemnifying bond under § 1967, Code 1892, but conditioned by mistake under § 3482, Code 1892, will on a suit thereon be treated as though properly conditioned. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

7. Estoppel.

Surety held estopped to rely on any defects in proceedings or to assert that defendant not signing bond did not authorize appeal where appeal bond executed by surety and one defendant recited that both defendants were appellants, record came before Supreme Court in regular form with appeal bond operating as supersedeas and court’s attention was not directed to any defects therein. Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 378, 168 So. 468 (Miss. 1936).

Cross References —

Requirement that official bonds be made payable to state, see §25-1-17.

Requirement that bail bonds and recognizances be made payable to state, see §99-5-5.

OPINIONS OF THE ATTORNEY GENERAL

Bond which secures the patient funds held by the state must be payable to the state. 2003 Miss. Op. Att'y Gen. 753.

Cross References —

Proceedings on death of surety on bond in trial of right of property, see §11-23-19.

Proceedings on death of surety on bond in ejectment, see §11-51-37.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Death of principal as exoneration, defense, or ground for relief, of sureties on bail or appearance bond. 63 A.L.R.2d 830.

Cross References —

Execution on death of surety on bond in trial of right of property, see §11-23-19.

Execution on death of surety on bond in ejectment, see §11-51-37.

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Death of principal as exoneration, defense, or ground for relief, of sureties on bail or appearance bond. 63 A.L.R.2d 830.

Cross References —

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

Cross References —

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

Cross References —

Constitutional authority for certification of transferred causes, see Miss. Const. Art. 6, § 163.

Jurisdiction of chancery court over causes transferred by circuit court, see §9-5-81.

Jurisdiction of circuit court over cases transferred by chancery court, see §9-7-83.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 85.

15 Am. Jur. Pl & Pr Forms (Rev), Judges, Forms 1, 81-84.

CJS.

21 C.J.S., Courts §§ 347, 350 et seq.

JUDICIAL DECISIONS

1. In general.

Where prior to the conclusion of the trial of a suit brought in the circuit court, the plaintiff made a motion to transfer the case to chancery court, and the circuit court granted such motion, the chancery court was vested with jurisdiction and the circuit court could not dispose of the case. Ainsworth v. Blakeney, 227 Miss. 544, 86 So. 2d 501, 1956 Miss. LEXIS 723 (Miss. 1956).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 85.

CJS.

21 C.J.S., Courts §§ 266, 272.

JUDICIAL DECISIONS

1. In general.

Although plaintiff failed to refile his complaint with the chancery court of Forrest County after the case was transferred from the circuit court of Forrest County, Miss. Code Ann. §11-1-39 did not require the dismissal of plaintiff’s complaint. Gibson v. Williams, 186 So.3d 836, 2016 Miss. LEXIS 108 (Miss. 2016).

Heavy equipment vendor’s action against a county board of supervisors which was timely filed in the chancery court, but later transferred to the circuit court, would be deemed to have been timely filed in the circuit court. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

When an action is transferred from the chancery court to the circuit court, or vice versa, in the transferee court the action is deemed filed as of the date of original filing in the transferor court. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

Chancellor’s denial of motion to dismiss case for failure to reform pleadings within 30 days following transfer of case from circuit to chancery court will not be reversed on appeal where no prejudice is shown to have resulted from denial. Star Chevrolet Co. v. Green, 473 So. 2d 157, 1985 Miss. LEXIS 2141 (Miss. 1985).

In an action by a construction company seeking to establish and enforce a claim for a construction lien against the property of the defendant, the trial court should have dismissed the cause where the plaintiff had failed to file its declaration within 30 days as required by the statute, notwithstanding the fact that the parties had continued discovery and communicated by letter with one another after the cause had been transferred from the chancery court to the circuit court; however, where the plaintiff did in fact file its declaration approximately 20 months after the cause had been transferred to the circuit court and where the defendant had answered the declaration joining issue and continued to participate in the trial of the cause until judgment, the judgment would be allowed to stand since the defendant had suffered no prejudice during the course of the trial and no good purpose would be served by requiring the parties and the court to undergo another extensive trial, incurring large sums of additional expense and consuming valuable judicial time. Central Grain & Supply Co. v. Jesco, Inc., 410 So. 2d 879, 1982 Miss. LEXIS 1876 (Miss. 1982).

The statute does not provide for a dismissal of the action where the plaintiff or complainant fails to file his declaration or bill of complaint in the transferee court. If a complainant or plaintiff fails to file his declaration or bill in the court to which the case has been transferred within 30 days or within such time as the transferee court shall fix, the case would be in the same posture as if no case had been filed and would be subject to dismissal without prejudice. Commercial Nat'l Bank v. Fleetwood Homes of Mississippi, Inc., 398 So. 2d 659, 1981 Miss. LEXIS 2020 (Miss. 1981).

In view of the provisions of Code 1942, § 360, actions brought in the chancery court to enforce laborer’s and materialmen’s liens were properly transferred by the chancellor to the Circuit Court, and an interlocutory appeal from the order of transfer should not have been granted. West v. Mechanical Services, Inc., 216 So. 2d 174, 1968 Miss. LEXIS 1223 (Miss. 1968).

Where prior to the conclusion of the trial of a suit brought in the circuit court, the plaintiff made a motion to transfer the case to chancery court, and the circuit court granted such motion, the chancery court was vested with jurisdiction and the circuit court could not dispose of the case. Ainsworth v. Blakeney, 227 Miss. 544, 86 So. 2d 501, 1956 Miss. LEXIS 723 (Miss. 1956).

Where an equitable proceeding by an insurance company seeks reimbursement on behalf of an insurance agency for an insurance agent’s default in his accounts guaranteed by a bond, based on the theory of subrogation, was transferred to the circuit court, such court was under a duty to proceed with the suit the same “as if it had been originally begun in that court, as of the date on which the cause was originally instituted,” even though it was exclusively one of equitable cognizance, and whether the transfer was proper or not. Jenkins & Boyle v. Rogers, 184 Miss. 182, 185 So. 603, 1939 Miss. LEXIS 39 (Miss. 1939).

Defendant presenting plea before default judgment is entitled to trial on merits, where failure to timely present plea was through attorney’s inadvertence. Tonkel v. Williams, 146 Miss. 842, 112 So. 368, 1927 Miss. LEXIS 246 (Miss. 1927).

On transfer of cause from circuit to chancery court upon issue of garnishee’s liability raised by its answer setting up adjudication of the issue between garnishee and certain parties defendants to the bill in the chancery court, where plaintiff could only attack the judgment on the ground of fraud and collusion, it was error to dismiss the bill. Foote-Patrick Co. v. Caladonia Ins. Co., 113 Miss. 419, 74 So. 292, 1917 Miss. LEXIS 116 (Miss. 1917).

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Cross References —

Sequestration generally, see §§11-29-1 et seq.

Attachments generally, see §§11-33-1 et seq.

Replevin generally, see §§11-37-101 et seq.

Sale of perishable goods, see §13-3-167.

Warehouseman’s options with regard to perishable goods, see §75-7-206.

Remedy to enforce lien, see §85-7-31.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 456, 458 et seq.

CJS.

7 C.J.S., Attachment §§ 129, 138.

38 C.J.S., Garnishment §§ 182, 183.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

Cross References —

Rule prescribing methods of service of summons, see Miss. R. Civ. P. 4.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

Cross References —

Withdrawal of exhibits from clerk of court, see §9-13-29.

Power of arbitrators in certain arbitration proceedings to issue subpoenas to compel production of books, records, documents and other evidence, see §11-15-117.

Award of attorney fees and costs against attorney or party who abuses discovery procedures available under the rules of civil procedure, see §11-55-5.

Clerk refusing to give copy of papers, see §97-11-17.

Rule covering the issuance and service of subpoena duces tecum, see Miss. R. Civ. P. 45.

RESEARCH REFERENCES

ALR.

Necessity and sufficiency, under statutes and rules governing modern pretrial discovery practice, of “designation” of documents, etc., in application or motion. 8 A.L.R.2d 1134.

What constitutes books of original entry within rule as to admissibility of books of account. 17 A.L.R.2d 235.

Pretrial deposition – discovery of opinions of opponent’s expert witnesses. 86 A.L.R.2d 138.

Discovery, in civil case, of material which is or may be designed for use in impeachment. 18 A.L.R.3d 922.

Assertion of privilege in pretrial discovery proceedings as waiver of privilege at trial. 36 A.L.R.3d 1367.

Attorney’s conduct in delaying or obstructing discovery as basis for contempt proceeding. 8 A.L.R.4th 1181.

Photographs of civil litigant realized by opponent’s surveillance as subject to pretrial discovery. 19 A.L.R.4th 1236.

Right of prosecution to discovery of case – related notes, statements, and reports – state cases. 23 A.L.R.4th 799.

Judgment in favor of plaintiff in state court action for defendant’s failure to obey request or order for production of documents or other objects. 26 A.L.R.4th 849.

Judgment in favor of plaintiff in state court action for defendant’s failure to obey request or order to answer interrogatories or other discovery questions. 30 A.L.R.4th 9.

Rights and remedies of financial institution customer in relation to subpoena duces tecum exception to general prohibitions of state right to financial privacy statute. 43 A.L.R.4th 1157.

Discovery of defendant’s sales, earnings, and profits on issue of punitive damages in tort action. 54 A.L.R.4th 998.

Discoverability of traffic accident reports and derivative information. 84 A.L.R.4th 15.

Criminal liability of attorney for tampering with evidence. 49 A.L.R.5th 619.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

Pretrial discovery of facts known and opinions held by opponent’s experts under Rule 26(b)(4) of Federal Rules of Civil Procedure.33 A.L.R. Fed. 403.

Restriction on dissemination of information obtained through pretrial discovery proceedings as violating Federal Constitution’s First Amendment – federal cases. 81 A.L.R. Fed. 471.

Public access to records and proceedings of civil actions in Federal District Courts. 96 A.L.R. Fed. 769.

Am. Jur.

23 Am. Jur. 2d, Depositions and Discovery §§ 67 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Forms 481 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Form 503.1 (Notice of motion–For further order to inspect and copy document or paper).

18 Am. Jur. Pl & Pr Forms (Rev), Motions, Rules, and Orders, Form 28.1 (Motion–To compel–Production of requested materials).

41 Am. Jur. Trials 99, Social Worker Malpractice for Failure to Protect Foster Children (discovery).

41 Am. Jur. Trials 232, Motorboat Propeller Injury Accidents (discovery).

41 Am. Jur. Trials 586, Computer Technology in Civil Litigation (discovery of computer evidence).

CJS.

27 C.J.S., Discovery §§ 153-155, 169, 170 et seq.

Law Reviews.

1989 Mississippi Supreme Court Review: Discovery Sanctions. 59 Miss. L. J. 803, Winter, 1989.

JUDICIAL DECISIONS

1. In general.

2. Bills of discovery.

3. Inspection of records, etc.

4. Privileged matter.

5. Subpoena duces tecum.

1. In general.

This section is penal and the powers granted therein should be exercised with caution. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

This section is not mandatory and a trial judge has some discretion in the matter as to whether he will require the production of the documents sought. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

A proceeding may not be dismissed under this section for failure to produce records which would not be admissible in evidence. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

The statute is highly penal and requires an extraordinary state of case to justify the rendition of a judgment thereunder, and the power granted by it should be exercised with great caution to avoid the invasion of the rights of the parties. Equitable Life Assurance Soc. v. Clark, 80 Miss. 471, 31 So. 964, 1902 Miss. LEXIS 280 (Miss. 1902).

2. Bills of discovery.

Where a general demurrer has been sustained to a bill of complaint on the ground that it did not state a cause of action, the complainant had no right to require discovery or production of evidence. Burns v. Washington Savs., 251 Miss. 789, 171 So. 2d 322, 1965 Miss. LEXIS 903 (Miss. 1965).

Under this section one granted leave to file a bill of review for newly discovered evidence is entitled to a full discovery from the other party of all evidence bearing on the merits. Ford v. Commercial Sec. Co., 236 Miss. 130, 109 So. 2d 352, 1959 Miss. LEXIS 302 (Miss. 1959).

Fact that, under statute, party may demand and receive papers and documents from his adversary without necessity of bill of discovery, does not deprive chancery court of jurisdiction of pure bills of discovery. Callender v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119, 1938 Miss. LEXIS 199 (Miss. 1938).

Decree rendered on bill of discovery which sought only discovery of life policy was not res judicata on issue of insurer’s liability in subsequent suit on policy, which insurer allegedly wrongfully claimed was void. Callender v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119, 1938 Miss. LEXIS 199 (Miss. 1938).

Discovery is not open to demurrer on ground that litigant had remedy under this section. Citizens' Bank of Hattiesburg v. Tracy, 120 Miss. 413, 82 So. 307, 1919 Miss. LEXIS 99 (Miss. 1919).

3. Inspection of records, etc.

In a proceeding before the Public Service Commission on proposed changes in the gas rate, it was error to deny the gas company’s motion, made pursuant to this section, to examine the raw data upon which the commission witness based his expert opinion. Mississippi Public Service Com. v. Mississippi Valley Gas Co., 358 So. 2d 418, 1978 Miss. LEXIS 2551 (Miss. 1978).

The unsworn motion of the defendants to require the plaintiff to produce copies of his income tax returns does not constitute a showing of good cause for their production. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

The refusal of the trial court, on the unsworn motion of the defendants, to require the plaintiff to produce copies of his income tax returns was not an abuse of discretion. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

Overruling of a motion to require plaintiff to produce records and documents for inspection and copying is reversible error, where the information was necessary to the defense of a property damage action. Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892, 1963 Miss. LEXIS 313 (Miss. 1963).

Refusal of defendant’s request for the production of a written statement of a state’s witness to the district attorney, held no error. Mattox v. State, 243 Miss. 402, 139 So. 2d 653, 1962 Miss. LEXIS 357 (Miss. 1962).

A motion in a negligence action to require the other party to permit inspection, before trial, of photographs which he has caused to be taken should be specific as to the particular photographs desired and what they portray. Dent v. Luckett, 242 Miss. 559, 135 So. 2d 840, 1961 Miss. LEXIS 593 (Miss. 1961).

Although, in an action upon demand notes, the trial court committed error in permitting the defendants, who contended that the name of the payee had been changed and that it was necessary to obtain expert testimony on the question, to submit the notes to an expert, who resided without the court’s jurisdiction, the error was not prejudicial where the plaintiffs did not object thereto, or object to the expert’s testimony on the ground that it was obtained by court order in contravention of statute, and the notes were restored to plaintiffs in the same condition as they were in when delivered to the defendants. Boxwell v. Champagne, 229 Miss. 355, 91 So. 2d 256, 1956 Miss. LEXIS 615 (Miss. 1956).

Where, in prosecution for murder defendant made a motion to be permitted to confer with the state’s witnesses while the jury was being selected and to see the confession which he had signed and a trial court permitted him to confer with the witnesses as soon as selection of the jury was completed and, when state offered confession in evidence, it was first tendered to attorney for defendant and the confession was not admitted until the court first made a preliminary inquiry into its admissibility, the defendant was in no manner prejudiced. Jones v. State, 222 Miss. 387, 76 So. 2d 201, 1954 Miss. LEXIS 655 (Miss. 1954).

Those alleging a resulting trust in real estate were entitled to an inspection and copy of the books and records kept by one since deceased which would reveal information pertinent to the issues. Shepherd v. Johnston, 201 Miss. 99, 28 So. 2d 661, 1947 Miss. LEXIS 374 (Miss. 1947).

In proceeding on motion against a former sheriff and his sureties to charge them with liability for failure to make return of a writ of execution on return day thereof, movant, under this section [Code 1942, § 1659], could have obtained an inspection and copy of the receipt in the hands of such sheriff if the writ had been delivered to his successor. W. T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250, 1941 Miss. LEXIS 53 (Miss. 1941).

Defendant’s motion for subpoena duces tecum to produce notes of evidence, taken by Federal officers investigating killing, for purpose of impeaching witnesses, held properly denied as not stating facts expected to be proved. Eaton v. State, 163 Miss. 130, 140 So. 729, 1932 Miss. LEXIS 23 (Miss. 1932).

Court could order plaintiff, foreign corporation, to permit inspection and taking of copies by defendant of plaintiff’s books and papers. Security Finance Co. v. Tindall, 151 Miss. 516, 118 So. 606, 1928 Miss. LEXIS 357 (Miss. 1928).

On appeal from assessment of taxes, circuit court may require production and inspection of books and papers showing property’s value; where evidence shows taxpayer has books and papers showing value of property, circuit court, on appeal from tax assessment, should order their production. Knox v. L. N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873, 1927 Miss. LEXIS 94 (Miss. 1927).

In an action for privilege tax an application for inspection of defendant’s books should be granted. Robertson v. Greenwood Lumber Co., 127 Miss. 793, 90 So. 487, 1921 Miss. LEXIS 282 (Miss. 1921).

4. Privileged matter.

This section does not apply to documents and other material which are qualifiedly privileged, unless the movant’s evidence shows that the person in possession of the qualifiedly privileged matter has probably exceeded the privilege by publishing it with malice and bad faith, and on a motion to produce, this is an issue for the trial court in its sound discretion. Garraway v. Retail Credit Co., 244 Miss. 376, 141 So. 2d 727, 1962 Miss. LEXIS 459 (Miss. 1962).

Before a movant is entitled to production of qualifiedly privileged mercantile credit reports or other qualifiedly privileged documents, he must present facts which make a prima facie showing that the information in question is material and relevant, that disclosure is necessary or essential to the proper development of the cause of action, that the information is not otherwise available, and that the person against whom the motion is directed has exceeded the qualified privilege by malice and bad faith. Garraway v. Retail Credit Co., 244 Miss. 376, 141 So. 2d 727, 1962 Miss. LEXIS 459 (Miss. 1962).

5. Subpoena duces tecum.

In a products liability case, a trial court abused its discretion by imposing sanctions arbitrarily since the record reflected that an injured party and his expert witness complied with a subpoena duces tecum actually served by a ladder company. The attendance of a nonparty expert witness had to be obtained by a proper subpoena; a subpoena ad testificandum requiring the presence of the expert witness was not served. Laws v. Louisville Ladder, Inc., 146 So.3d 380, 2014 Miss. App. LEXIS 454 (Miss. Ct. App. 2014).

Amendment Notes —

The 2006 amendment added (3) and (4).

OPINIONS OF THE ATTORNEY GENERAL

Section 11-1-52 limits collection of copying fees from “patients or their representative”; the county medical examiner/investigator is not the patient or her representative and has the authority, pursuant to Section 41-61-63(2)(a), to inspect and copy medical records of a decedent. 2006 Miss. Op. Att'y Gen. 611.

JUDICIAL DECISIONS

1. Unconscionability.

Provision in a nursing home’s admission agreement setting the costs for requested copies at $ 3 per page was in violation of the law; hence, a court ordered the provision stricken from the admission agreement. Trinity Mission Health & Rehab. of Clinton v. Estate of Scott, 19 So.3d 735, 2008 Miss. App. LEXIS 11 (Miss. Ct. App. 2008).

Pursuant to Miss. Code Ann. §11-1-52(1), certain clauses had to be stricken from the admissions agreement as they were unconscionable; thus, the trial court erred in finding the entire admissions agreement to be unenforceable and in denying the nursing home’s motion to compel arbitration. Trinity Mission of Clinton, LLC v. Barber, 988 So. 2d 910, 2007 Miss. App. LEXIS 550 (Miss. Ct. App. 2007).

Cross References —

Change of venue in jury cases in chancery court, see §11-5-5.

Change of venue in counties having two judicial districts, see §11-11-59.

Rule governing change of venue, see Miss. R. Civ. P. 82.

RESEARCH REFERENCES

Law Reviews.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Procedure in supreme court for motions to correct judgment or retax cost, see Miss. R. App. P. 36.

RESEARCH REFERENCES

ALR.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 16 A.L.R.4th 238.

Excessiveness or adequacy of damages awarded for injuries causing particular diseases or conditions. 16 A.L.R.4th 736.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sensory or speech organs and systems. 16 A.L.R.4th 1127.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases. 35 A.L.R.4th 441.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death. 35 A.L.R.4th 538.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker. 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations. 47 A.L.R.4th 134.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest. 48 A.L.R.4th 165.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor. 49 A.L.R.4th 1076.

Excessiveness or inadequacy of compensatory damages for defamation. 49 A.L.R.4th 1158.

Damages for breach of contract as affected by income tax considerations. 50 A.L.R.4th 452.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations. 50 A.L.R.4th 787.

Excessiveness or inadequacy of compensatory damages for malicious prosecution. 50 A.L.R.4th 843.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 48 A.L.R.5th 129.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 13.5 (Notice of Motion–Ground–Remittitur).

CJS.

5 C.J.S., Appeal and Error §§ 1027 et seq.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 32:14.

JUDICIAL DECISIONS

1. In general.

2. Particular cases—Additur.

3. —Remittitur.

1. In general.

Any party aggrieved by the amount of damages awarded pursuant to a jury verdict is allowed to file a motion for additur or remittitur under Miss. Code Ann. §11-1-55. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

If the trial judge grants a motion for an additur or remittitur, such grant of an additur or remittitur is to take effect only if accepted by all the parties; if all the parties do not agree, then each has the right to either demand a new trial on damages or appeal the order asserting an abuse of discretion on the part of the trial judge. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

Where plaintiff driver was injured when defendant driver struck him from the rear, the record showed he was examined following the accident and was not found to have had any skeletal injuries, that he returned to work the next day, and that not until two months later did he complain of shoulder or neck pain, which was treated with manipulative therapy and anti-inflammatory medications. The record also showed that he had two other work related accidents before filing suit almost three years after the accident; thus, where he obtained a verdict for $ 1500, representing his medical expenses and other minor expenses on the date of the accident, the trial court did not abuse its discretion in denying an additur for medical costs incurred after the accident or lost wages. Colville v. Davidson, 934 So. 2d 1028, 2006 Miss. App. LEXIS 4 (Miss. Ct. App.), cert. denied, 933 So. 2d 982, 2006 Miss. LEXIS 382 (Miss. 2006).

Appellate court held that the trial court did not err in rejecting the facility’s request for remittitur or company’s request for an additur under Miss. Code Ann. §11-1-55 as the jury’s calculation of profits appeared to be based on the evidence. Benchmark Health Care Ctr., Inc. v. Cain, 912 So. 2d 175, 2005 Miss. App. LEXIS 715 (Miss. Ct. App. 2005).

A plaintiff dissatisfied with the amount of recovery, even as enhanced by an additur, may not demand a new trial. Edelen v. Jackson Coca-Cola Bottling Co., 782 So. 2d 1256, 2001 Miss. App. LEXIS 26 (Miss. Ct. App. 2001).

The trial court was obligated to order a new trial 30 days after entry of an additur order where the defendant failed to affirmatively accept the additur during that period. Edelen v. Jackson Coca-Cola Bottling Co., 782 So. 2d 1256, 2001 Miss. App. LEXIS 26 (Miss. Ct. App. 2001).

A defendant has 30 days from the date of entry of an order granting additur to accept the additur, reject the additur and request a new trial, or file an appeal; further, where the defendant takes no action within those 30 days, the trial court must proceed with a new trial on damages. Estate of Berry v. Dahlem, 741 So. 2d 932, 1999 Miss. LEXIS 207 (Miss. 1999).

It is primarily province of jury to determine amount of damages to be awarded, and award will normally not be set aside unless it is so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount, and outrageous. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Party seeking additur must prove his injuries, damages and loss of income; in deciding if burden has been met, court must look at evidence in light most favorable to party in whose favor jury decided, granting that party any favorable inferences that may reasonably be drawn therefrom. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Award of $8,000 in damages for wrongful death of 17-year-old youth who died of accidental gunshot wound was neither unreasonable nor outrageous in light of considerable evidence that youth was almost entirely responsible for bringing about his own death, which occurred after he and friends had been playing with gun. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Abuse of discretion standard applies to Supreme Court’s review of a trial judge’s denial of a motion for additur. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

In order to remand case for an additur on damages, Supreme Court must find that the jury was biased or prejudiced or that the verdict was against overwhelming weight of the evidence. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

The Supreme Court will not vacate or reduce award of damages unless it is so out of line as to shock conscience of court. Ross-King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1996 Miss. LEXIS 128 (Miss. 1996).

For purposes of statute allowing court to impose remittitur, “overwhelming weight of the credible evidence” standard is objective standard. Terex Corp. v. Ingalls Shipbuilding, 671 So. 2d 1316, 1996 Miss. LEXIS 129 (Miss. 1996).

In a new trial on damages only, which was ordered by the trial court in a personal injury action after the defendant refused to accept the trial court’s additur, the plaintiff was not required to prove a causal connection between the defendant’s negligence and his damages; the plaintiff had made the requisite connecting proof in the original trial, and §11-1-55 does not require a plaintiff to “rerun the gauntlet.” Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

Where a trial court has granted an additur or, in the alternative, a new trial on the issue of damages only, the defendant only may elect (1) to reject the additur and have the case retried on the issue of damages only, (2) to appeal to the Supreme Court on grounds that the trial court should not have granted the additur at all or, alternatively, that the additur granted was legally excessive, or (3) to accept the additur and pay the judgment; the plaintiff can only appeal to the Supreme Court arguing that the trial court abused its discretion and that the additur is legally inadequate. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has granted a remittitur or, in the alternative, a new trial on the issue of damages only, the plaintiff only may elect (1) to reject the remittitur and have the case retried on the issue of damages only, (2) to appeal to the Supreme Court on grounds that the circuit court should not have granted the remittitur at all or, alternatively, that the remittitur granted was legally excessive, or (3) to accept the remittitur; in such a case, the defendant’s only procedural avenue is to appeal to the Supreme Court arguing that the trial court abused its discretion and that the remittitur was legally inadequate. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has denied a remittitur, the defendant may appeal to the Supreme Court on grounds that the trial court abused its discretion in failing to order the remittitur and, if the defendant can convince the Supreme Court on that score, the defendant may argue that the damage award be reduced to such an amount as would no longer be contrary to the overwhelming weight of the credible evidence; if the defendant should be successful, the plaintiff would then have the option of accepting the remittitur or going to trial again on the issue of damages only. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has denied a plaintiff’s motion for an additur, the plaintiff may appeal on grounds that the trial court abused its discretion in failing to order an additur, whereupon it becomes incumbent upon the Supreme Court, if it finds that the trial court did abuse its discretion, to order an additur up to the point where the verdict is no longer so low that it is contrary to the overwhelming weight of the credible evidence; the right to accept the additur (and pay the judgment) on pain of a new trial on damages only lies exclusively with the defendant. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

The scope of appellate review under §11-7-213[Repealed] is limited to determining whether the trial court abused its discretion in granting a motion for new trial where the plaintiff refuses to accept an additur. State Highway Com. v. Warren, 530 So. 2d 704, 1988 Miss. LEXIS 422 (Miss. 1988).

Additurs represent a judicial incursion into the traditional habitat of the jury and, therefore, should never be employed without great caution. Gibbs v. Banks, 527 So. 2d 658, 1988 Miss. LEXIS 294 (Miss. 1988).

Statute gives party right to present cross-appeal notwithstanding his acceptance of remittitur in Circuit Court, so action of accepting remittitur does not constitute waiver of right to complain of remittitur on appeal. Life Ins. Co. v. Allen, 518 So. 2d 1189, 1987 Miss. LEXIS 2975 (Miss. 1987).

Trial judge’s authority to enter a remittitur or an additur exists where the nature of the damage award at issue is punitive or exemplary. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

Motions challenging quantum of punitive damages and seeking either remittitur or additur are subject to same rules as motions challenging amount of damage awards generally. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

When a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial. Screws v. Parker, 365 So. 2d 633, 1978 Miss. LEXIS 2425 (Miss. 1978).

Before allowing an additur to a jury verdict for damages, the trial court must determine that the jury verdict was so inadequate under the facts of the case as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. Standard Products, Inc. v. Patterson, 317 So. 2d 376, 1975 Miss. LEXIS 1735 (Miss. 1975).

Where the court finds the damages are inadequate and orders an additur, this impinges on the right to trial by jury, and the defendant has the option of agreeing to pay the added amount beyond that which the jury gave, or submitting to a new trial on the question of damages only. Altom v. Wood, 298 So. 2d 700, 1974 Miss. LEXIS 1565 (Miss. 1974), overruled, Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

The same rule applies in determining whether an additur is proper as applies in determining if the amount of damages awarded is excessive. Smith v. Washam, 288 So. 2d 20, 1974 Miss. LEXIS 1837 (Miss. 1974).

Although, unlike remittitur, the theory and practice of which have been a part of our jurisprudence for many years, the power of additur is new to the courts of Mississippi, but the legal principles involved with additur are the same as those involved with remittitur. Biloxi Electric Co. v. Thorn, 264 So. 2d 404, 1972 Miss. LEXIS 1360 (Miss. 1972).

2. Particular cases—Additur.

Circuit court did not abuse its discretion in denying a motor vehicle accident victim’s motion for an additur because the amount of the jury’s award of damages to the victim was not so inadequate as to shock the conscience and to indicate bias, passion, and prejudice on the part of the jury. Stockett v. Classic Manor Builders, Inc., 226 So.3d 620, 2017 Miss. App. LEXIS 536 (Miss. Ct. App. 2017).

Circuit court properly awarded damages to an injured passenger and, inter alia, denied his motion for an additur because there was ample evidentiary support for the verdict returned by the jury where it was presented with the passenger’s conflicting sworn testimony concerning his prior medical condition and previous injuries, and evidence that called into question the credibility of the expert-medical testimony presented on his behalf. Reel v. Warren, 232 So.3d 736, 2017 Miss. App. LEXIS 302 (Miss. Ct. App.), cert. denied, 229 So.3d 713, 2017 Miss. LEXIS 502 (Miss. 2017).

In an inverse condemnation proceeding, it was not error to deny a landowner’s motion for additur because substantial evidence supported the jury’s award. Bay Point Props. v. Miss. Transp. Comm'n, 201 So.3d 1046, 2016 Miss. LEXIS 282 (Miss. 2016), cert. denied, — U.S. —, 137 S. Ct. 2002, 198 L. Ed. 2d 750, 2017 U.S. LEXIS 4057 (U.S. 2017).

Trial court did not err in denying a motion for additur where the jury awarded plaintiff approximately $3,000 less than requested, there was testimony that called into question some of plaintiff’s claims damages, and the jury was instructed to consider plaintiff’s negligence in its determination of damages. Wetzel v. Sears, 214 So.3d 1092, 2016 Miss. App. LEXIS 286 (Miss. Ct. App. 2016), cert. denied, — So.3d —, 2017 Miss. LEXIS 101 (Miss. 2017).

Trial court’s finding that a jury could have found that plaintiff’s injuries in an automobile accident did not warrant medical treatment over and above what was received at the emergency room supported the denial of additur and did not constitute an abuse of discretion. Crowell v. Burchfield, 168 So.3d 1052, 2013 Miss. App. LEXIS 666 (Miss. Ct. App. 2013).

In a personal injury action involving a rear-end vehicle collision, a trial court did not abuse its discretion by denying a motion for an additur by driver 1, who was in the stopped vehicle, was not an abuse of discretion because while driver 1’s medical bills established a presumption that those bills were reasonable and necessary for the treatment of her injuries, the medical bills were not prima facie evidence that the accident was the proximate cause of driver 1’s injuries. Downs v. Ackerman, 115 So.3d 785, 2013 Miss. LEXIS 350 (Miss. 2013).

Trial court did not abuse its discretion in denying a subcontractor’s (SC’s) motion for additur, Miss. Code Ann. §11-1-55, in the SC’s breach of contract action against a general contractor (GC), wherein the jury awarded the SC $ 41,500 rather than the $ 165,068.82 sought by the SC, because the GC disputed the $ 80,993.82 in costs presented by the SC, challenged the alleged $ 84,075 lost profits and the reasonableness of a near ten percent profit, and the award was not so inadequate as to shock the conscience. DC General Contractors, Inc. v. Slay Steel, Inc., 109 So.3d 577, 2013 Miss. App. LEXIS 50 (Miss. Ct. App. 2013).

In a personal injury action, the trial court did not err in failing to impose an additur, pursuant to Miss. Code Ann. §11-1-55 (Rev. 2002), because the defendant provided sufficient evidence in support of its case from which the jury could have reasonably concluded that the plaintiff’s personal injuries were not caused by the defendant’s negligence. Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 2011 Miss. App. LEXIS 240 (Miss. Ct. App. 2011).

Law was clear that the stopped driver was entitled to all past, present, and future medical damages caused by the other driver’s negligence and the trial court erred in denying the stopped driver’s motion for a new trial on the sole issue of damages. The discrepancy between the amount of damages that the stopped driver requested and the much lower verdict, coupled with the continuous requests from the jury while in deliberation, suggested that the jury was confused by the jury instructions or departed from its oath, and that the verdict was a result of bias, passion, and prejudice. Thompson v. Nguyen, 86 So.3d 251, 2011 Miss. App. LEXIS 44 (Miss. Ct. App. 2011), rev'd, 86 So.3d 232, 2012 Miss. LEXIS 195 (Miss. 2012).

In an action for damages, where here was no finding that the jury was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence, the trial court abused its discretion in ordering additur under Miss. Code Ann. §11-1-55 (Rev. 2002). Evidence supported the jury’s verdict and the verdict was not so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous. Miss. State Fedn. of Colored Women's Club Hous. for the Elderly in Clinton, Inc. v. L. R., 62 So.3d 351, 2010 Miss. LEXIS 657 (Miss. 2010).

In a negligent entrustment action, the appellate court lacked jurisdiction to hear the owner of an utility terrain vehicle’s appeal of a motion for judgment notwithstanding the verdict before the trial court had an opportunity to rule on the injured passenger’s second request of a new trial on damages following her rejection of a proposed additur. Davis v. Walters, 54 So.3d 272, 2010 Miss. App. LEXIS 221 (Miss. Ct. App. 2010), cert. dismissed, 2011 Miss. LEXIS 106 (Miss. Feb. 17, 2011).

Trial court’s order granting the additur simply found that the motion was well taken and should have been granted, but the trial court’s failure to indicate its specific findings in granting the additur was an abuse of discretion; however, that did not preclude the trial court, on remand, from granting the additur. Rather, if the trial court chose so, there had to be adequate findings to support the additur, and thus, the appellate court remanded the case to the trial court to either reinstate the jury’s verdict or consider the additur in accordance with the applicable statutory guidance. J. Criss Builder, Inc. v. White, 35 So.3d 541, 2009 Miss. App. LEXIS 698 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 266 (Miss. 2010).

Trial court did not err in not granting an additur to plaintiff in a personal injury action against the Mississippi DOT after a vehicle that plaintiff was traveling in was struck by a rock that was thrown from a MDOT employee bushhogging along the highway because plaintiff’s physician never unequivocally stated that the accident accelerated plaintiff’s need to have a total knee replacement. Potts v. Miss. DOT, 3 So.3d 810, 2009 Miss. App. LEXIS 85 (Miss. Ct. App. 2009).

Amount awarded by the jury to each wrongful death beneficiary on their respective claim of loss of society and companionship was not against the great weight of the evidence presented during the second trial of the case and the jury verdict was not tainted as a result of bias, prejudice, or passion, so the beneficiaries’ request to increase the jury verdict, either through altering the judgment, additur, or new trial had to be denied. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

In an injured party’s negligence suit against a driver regarding an automobile accident, where the jury returned a verdict in favor of the injured party for $50,000, it was not an abuse of discretion to deny the injured party’s motion for a new trial or, in the alternative, an additur, because there was substantial evidence in the record to support the jury’s verdict based on, inter alia, the severity of the impact and the injured party’s conduct. Dobbins v. Vann, 981 So. 2d 1041, 2008 Miss. App. LEXIS 273 (Miss. Ct. App. 2008).

Denial of the appellant driver’s motion for an additur in her action against the appellee driver for damages stemming from an accident was proper because the jury’s award was not erroneous simply because the jury did not believe that appellant sustained over $40,000 in damages as a result of her accident with appellee. Crews v. Mahaffey, 986 So. 2d 987, 2007 Miss. App. LEXIS 827 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 372 (Miss. 2008).

In an injured passenger’s suit arising from a three-vehicle accident, by rejecting the circuit court’s additur under Miss. Code Ann. §11-1-55, the driver and the insurer effectively opted for a new trial on damages; because that new trial on damages had yet to occur, there was no final judgment, and the matter was not ripe for appellate review. Henson v. Riggenbach, 982 So. 2d 432, 2007 Miss. App. LEXIS 712 (Miss. Ct. App. 2007).

In a personal injury case, a trial court did not abuse its discretion in denying a motion for an additur under Miss. Code Ann. §11-1-55 where, although it was undisputed that an injured party had a physical impairment and pain and suffering due to a fall, a property owner introduced contradictory evidence as to the amount of damages; most of the injured party’s testimony had been impeached through several sources, such as other witnesses and recordings of his activities. Quinn v. President Broadwater Hotel, LLC, 963 So. 2d 1204, 2007 Miss. App. LEXIS 286 (Miss. Ct. App. 2007).

Because an expert in an eminent domain action had little or no knowledge as to the valuation of a business sign based on the cost approach, his testimony based on a quote from a sign company should have been stricken since he was merely acting as a conduit for hearsay about another expert’s opinion, in violation of Miss. R. Evid. 703; however, additur was not an appropriate remedy in this case because the jury verdict was based on inadmissible evidence. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

Additur was not appropriate in an eminent domain case because the damages awarded to two land owners were not contrary to the overwhelming weight of the evidence; the admissibility of an expert’s opinion regarding the value of the land was waived, so the jury properly took into account the valuation evidence presented by both parties in making its decision. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

In an action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. §§ 621-634, where the appellate court held that the former employee was entitled to prejudgment and post-judgment interest, the appellate court also found that contrary to the employer’s assertion that the former employee was entitled to 35 months of back pay, the period of entitlement was 47 months. Therefore, an additur in the latter respect was warranted, and on remand, the trial court was also to consider what additur, if any, was required to reimburse the former employee for lost insurance and vacation benefits. Cash Distrib. Co. v. Neely, 947 So. 2d 317, 2006 Miss. App. LEXIS 6 (Miss. Ct. App. 2006), aff'd, 947 So. 2d 286, 2007 Miss. LEXIS 23 (Miss. 2007).

Due to its failure to affirmatively accept an additur within 30 days of the trial court’s order, a vehicle owner effectively acceded to a new trial limited to damages only where (1) the record revealed that the trial judge’s intent was to condition the denial of a motion for a new trial upon the owner’s acceptance of the additur, (2) the record was silent as to whether the owner affirmatively accepted or rejected the additur within the requisite time period, and (3) there was no evidence in the record to suggest that the owner ever paid the judgment as ordered by the trial judge. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 961, 2005 Miss. App. LEXIS 442 (Miss. Ct. App. 2005), aff'd, 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

In a medical malpractice case, doctors were liable for leaving a five-inch hemostat in the patient’s body during surgery. The jury properly awarded damages to the patient in the amount of $ 10, 000, which exceeded the cost of the surgery to remove the hemostat; the patient was not entitled to an additur. Williams v. Gamble, 912 So. 2d 1053, 2005 Miss. App. LEXIS 249 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 677 (Miss. 2005).

Jury properly awarded zero damages because there was more than sufficient evidence to justify a finding that tenants had either failed to mitigate their damages, or that their purchase of a home with a long-term mortgage was not a reasonably foreseeable consequence of the property management company’s negligence in telling the tenants that they would have to move from the apartment complex, or both; thus, under Miss. Code Ann. §11-1-55, the court affirmed the trial court’s order denying the tenant’s post-trial motion for an additur, or alternatively, a new trial on damages. Patterson v. Liberty Assocs., L.P., 910 So. 2d 1014, 2004 Miss. LEXIS 1456 (Miss. 2004).

Where decedent was killed by a tractor trailer while attempting to cross a two-lane highway, the jury found the driver of the tractor trailer and his company 30% at fault and awarded plaintiff $ 81,000. Plaintiff’s motion for judgment notwithstanding the verdict on damages only or, in the alternative, for a new trial on damages, was properly denied; the jury was not confused in determining damages and liability. Wells v. Tru-Mark Grain, Inc., 895 So. 2d 181, 2004 Miss. App. LEXIS 1085 (Miss. Ct. App. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, the trial court did not err by denying the property owner’s post-trial motion for an additur because the verdict was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

In a premises liability case, while a trial court did not comply with the technical requirements of Miss. Code Ann. §11-1-55 when it granted additur, in that it did not explicitly find that the jury’s damage award was against the overwhelming weight of the evidence, it was reasonable to conclude from the trial court’s order that the court nonetheless found the award inadequate for this reason, and the statute allowed the Supreme Court to make this finding. Gaines v. K-Mart Corp., 860 So. 2d 1214, 2003 Miss. LEXIS 821 (Miss. 2003).

In a trial to set value for landowners’ property taken by the State, the evidence presented – including videotapes and photographs of the owners’ property, plus testimony from three different experts in relevant fields – all provided substantial evidence to support the jury award to the landowners, and the trial court did not abuse its discretion in denying the landowners’ motion for additur or new trial. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

The trial court properly granted additur in an action to recover for injuries sustained in a motor vehicle accident where the plaintiff presented evidence of over $6,000 in medical bills, but the jury awarded only $400, since the defendant failed to rebut the reasonableness of the plaintiff’s medical bills where she relied on speculation and attempts to attack the credibility of the plaintiff’s witnesses, but failed to present any testimony that showed that the medical bills were unfair, unreasonable, or unnecessary. Boggs v. Hawks, 772 So. 2d 1082, 2000 Miss. App. LEXIS 559 (Miss. Ct. App. 2000).

The court affirmed upon condition of acceptance of additur by the defendant where the jury verdict did not fully compensate the plaintiff for his medical expenses or allow anything for pain and suffering and the defendant failed to rebut the reasonableness and necessity of the plaintiff’s medical bills and, instead, her attorney inflamed the jury with arguments for which he had no evidentiary support. Hubbard v. Canterbury, 805 So. 2d 545, 2000 Miss. App. LEXIS 143 (Miss. Ct. App. 2000).

The trial court did not err in refusing to order additur in an action arising from an automobile accident where the issue of the existence of meaningful physical injury or pain and suffering was disputed. Rose v. Clenney, 748 So. 2d 172, 1999 Miss. App. LEXIS 455 (Miss. Ct. App. 1999).

The court directed a new trial on damages unless the defendants accepted an additur of $10,000 where (1) the jury’s award of $2,900 was only $65 more than the plaintiff’s medical expenses, and (2) after reduction for comparative fault, the award was less than the medical expenses and left nothing for pain and suffering. Maddox v. Muirhead, 738 So. 2d 742, 1999 Miss. LEXIS 141 (Miss. 1999).

A jury award of $5,000 was appropriate therefore, additur was not proper where (1) the plaintiff had no visible injuries at the time of the accident, stated that he was not hurt, did not see a doctor until 11 days afterwards, and had total medical bills of $1,579.50, (2) there was no evidence regarding the cost of repairs made to the plaintiff’s car, (3) post-accident surgery to re-sect the plaintiff’s sternoclavicular joint may not have related to the accident (4) the additur appeared to have been granted based on the trial judge’s pre-trial evaluation of the case, as well as his admitted “disgust” with the jury for only deliberating 20 minutes. Anne Cook Interior Designs v. Sanders, 733 So. 2d 187, 1998 Miss. LEXIS 630 (Miss. 1998).

In an incident in which a truck rear-ended a car, the trial court correctly awarded an additur of $140,000 to the jury’s verdict of $67,000 because the jury was obviously influenced by bias, prejudice, or passion and the damages were contrary to the overwhelming weight of credible evidence which showed over $42,000 in medical bills, loss of wages from the date of the accident until the end of trial of more than $82,000, which coupled with a life expectancy of 22.9 years would result in a future income loss of $297,000. Jack Gray Transp., Inc. v. Taylor, 725 So. 2d 898, 1998 Miss. LEXIS 314 (Miss. 1998).

Trial judge did not abuse discretion in denying motion for additur by worker who sued oil company to recover for injuries suffered in drilling accident, was found by jury to have suffered $500,000 in damages, and was also determined to have been 75% at fault as between himself and oil company; there was nothing in the record to indicate jury was biased or prejudiced, while the finding on worker’s own negligence was supported by testimony that he was perhaps standing too close to the operation, and the finding as to total damages was not against overwhelming weight of the evidence. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

Compensatory award of $1,000 in plaintiff’s suit for assault, invasion of privacy, and negligence against bail bondsmen who entered her apartment was not against the weight of the evidence and was not the product of bias, passion, or prejudice, and thus plaintiff was not entitled to additur; plaintiff put on no proof of the severity of her injuries, nor of lost wages or other damages. Wallace v. Thornton, 672 So. 2d 724, 1996 Miss. LEXIS 58 (Miss. 1996).

A personal injury plaintiff was entitled to an additur in the amount of $2,000 where there was uncontradicted testimony that his knee injury caused him pain and suffering and had resulted in a 10 percent impairment to his left leg, and the jury’s verdict was only $20.80 over his alleged special damages. Harvey v. Wall, 649 So. 2d 184, 1995 Miss. LEXIS 29 (Miss. 1995).

A personal injury plaintiff was entitled to an additur in the amount of $11,765.50 where the jury awarded the plaintiff $11,762.50 which was the exact amount of his medical expenses, and the plaintiff had put on proof that his damages included not only medical expenses but also some pain and suffering. Rodgers v. Pascagoula Public School Dist., 611 So. 2d 942, 1992 Miss. LEXIS 825 (Miss. 1992).

A trial court in a personal injury action did not err when it ordered an additur of $400,000 where the court found calculable lost wages, fringe benefits and past medical expenses approaching $1,178,000, and the jury returned a general verdict for the plaintiff in the amount of $100,000. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

A trial court did not err in failing to grant an additur to the plaintiff in a negligence action arising from an automobile collision in which the defendant rear-ended the plaintiff even though the amount of the verdict was less than half of the plaintiff’s medical expenses, where the plaintiff also sustained injuries in a second automobile accident six months after the first accident, the plaintiff drove away from the first accident but was transported to the hospital in an ambulance after the second accident, the plaintiff’s chiropractor testified that the plaintiff had recovered considerably from the first accident and had no complaints of pain immediately preceding the second accident, the plaintiff sought only chiropractic treatment after the first accident but underwent a series of diagnostic tests, chiropractic treatment, and visits to medical doctors after the second accident, and the plaintiff produced no documentation verifying employment or rate of pay. Brake v. Speed, 605 So. 2d 28, 1992 Miss. LEXIS 418 (Miss. 1992).

A plaintiff in a personal injury action was not entitled to an additur under §11-1-55 to increase a $2,000 damages award, even though the plaintiff had introduced medical bills incurred in the treatment of his injuries which totalled $2,085.90 and he claimed that the jury had failed to consider his claims for pain, suffering and lost wages, where it was apparent that the jury believed that the plaintiff was somewhat responsible for his own injuries and accordingly reduced his award of damages to the amount of $2,000; a determination that the jury was incorrect in assessing the plaintiff’s contributory negligence would be tantamount to holding that a jury is to be instructed that it must return a verdict for all alleged damages, which is not a proper statement of the law. Leach v. Leach, 597 So. 2d 1295, 1992 Miss. LEXIS 217 (Miss. 1992).

A personal injury plaintiff was entitled to an additur of $10,000 where the $3,000 jury verdict was less than $600 above the plaintiff’s actual medical expenses and there was undisputed medical evidence that the plaintiff had suffered a very disabling back injury. Brown v. Cuccia, 576 So. 2d 1265, 1991 Miss. LEXIS 95 (Miss. 1991).

An additur of $30,000 to a jury finding of $30,000 was required where the injured plaintiff proved special damages in the amount of $28,682.70, the plaintiff received considerable injuries from the accident, including a deep tear in his kidney and a laceration of the liver and spleen, and, several months after the accident, the plaintiff had a limp and complained of pain in his leg and tenderness in his thigh area, since the jury’s finding obviously ignored the categories of past and future pain and suffering and permanent partial disability. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

Trial court did not erred in denying motion for additur or, in alternative, new trial, where it could not be said that jury’s verdict either evinced bias, prejudice, or passion, or was contrary to overwhelming weight of credible evidence, where there was substantial evidence to support jury’s resolution of factual disputes. Bass v. Montgomery, 515 So. 2d 1172, 1987 Miss. LEXIS 2910 (Miss. 1987).

Judgment of circuit court granting additur was proper where jury award of $1000 was so inadequate to “strike mankind at first blush as being unreasonable and outrageous”, and additur of $2000 was proper exercise of discretion considering testimony that plaintiff had pre-existing degenerative vertebra condition, or osteoarthritis condition. James v. Jackson, 514 So. 2d 1224, 1987 Miss. LEXIS 2872 (Miss. 1987).

The trial court properly ordered additur under §11-1-55 where it was evident that the jury failed to compensate defendant for the pain and suffering and permanent impairment sustained by him. City of Jackson v. Ainsworth, 462 So. 2d 325, 1984 Miss. LEXIS 2057 (Miss. 1984).

Additur would be entered increasing judgment for a personal injury victim to $3,000, where defendant admitted liability for the accident, and where the jury verdict of $364 in damages was inadequate and contrary to the weight of the evidence, which included uncontradicted evidence of actual damages consisting of $285, as well as plaintiff’s testimony concerning problems she had had since the collision, further medical bills, and 52 days lost from work as a bus driver. Polk v. Amoco Production Co., 430 So. 2d 417, 1983 Miss. LEXIS 2566 (Miss. 1983).

In an eminent domain proceeding under §11-27-83 in which the state acquired .18 of an acre of land leased by a church, the trial court erred in ordering a $10,000 additur to the jury verdict of $7,500 where the church would not lose any building or permanent structure on the taken property, the state had no plans to pave the land taken or place any structure upon it, the highest and best use of the property was for church purposes and not for commercial purposes, and the land taken was property in which the church only held a remaining 20-year leasehold interest. Mississippi State Highway Com. v. Antioch Baptist Church, Inc., 392 So. 2d 512, 1981 Miss. LEXIS 1900 (Miss. 1981).

In a personal injury action by a railroad employee against his employer and a company through whose property the railroad had a right of way, a jury verdict of $23,052.21 would be increased to $50,000 where the evidence established that the plaintiff had been a switchman for the railroad for all his working life, that he had an eighth-grade education, that his injuries prevented him from doing heavy physical work, that he had continually failed despite numerous attempts to find any employment, and that, since his injury, he had lost $89,368.68 in wages; however, because the jury had found the plaintiff to be 50 percent contributorily negligent, the total verdict of $50,000 would be reduced to $25,000. Cash v. Illinois C. G. R. Co., 388 So. 2d 871, 1980 Miss. LEXIS 2410 (Miss. 1980).

In a wrongful death action against a foreign automobile manufacturer and its local dealer, the trial court committed reversible error in awarding an additur increasing the $40,000 jury verdict to $157,894, where it could not be said that the jury verdict was motivated by passion or prejudice in favor of the foreign automobile manufacturer, or against the local plaintiff, and where the verdict was not so grossly inadequate as to shock the conscience or to reflect a manifest miscarriage of justice; the apparent basis for the additur was the judge’s acceptance in toto of the testimony of an expert economist. Toyota Motor Co. v. Sanford, 375 So. 2d 1036, 1979 Miss. LEXIS 2466 (Miss. 1979).

In an action for personal injuries sustained in an automobile accident, the trial court abused its discretion in ordering a $20,000 additur to a $35,000 jury verdict, where the record revealed that plaintiff’s expenses for medical care and treatment and damage to his truck were less than $3,000, and where his earnings had been reduced as a result of the accident from about $700 to $800 a month to about half that amount. McNair Transport, Inc. v. Crosby, 375 So. 2d 985, 1979 Miss. LEXIS 2411 (Miss. 1979).

Suggestion of additur was appropriate with regard to jury verdict awarding damages of $1,500 for appellant’s personal injuries in auto accident where only $940 of damages was assessed for personal injuries, appellant herself had not been negligent, and injuries were painful and included loss of strength and flexibility of one arm. Adams v. Taylor, 325 So. 2d 912, 1976 Miss. LEXIS 1987 (Miss. 1976).

Where plaintiff victim of an automobile collision had an involvement of the intercostal nerve which prolonged her disability and resulted in more than the usual pain from a rib fracture, and special damages proved by the plaintiff were of the total sum of $1,991, a jury verdict of $1,250 was against the overwhelming weight of the evidence even though plaintiff had previously received $1,500 in settlement of her claim against the driver of her vehicle, and the trial court was correct in providing for an additur of $1,750. Smith v. Washam, 288 So. 2d 20, 1974 Miss. LEXIS 1837 (Miss. 1974).

Circuit court did not abuse its discretion in denying a motor vehicle accident victim’s motion for an additur because the amount of the jury’s award of damages to the victim was not so inadequate as to shock the conscience and to indicate bias, passion, and prejudice on the part of the jury. Stockett v. Classic Manor Builders, Inc., — So.3d —, 2017 Miss. App. LEXIS 536 (Miss. Ct. App. Sept. 12, 2017). Circuit court properly awarded damages to an injured messenger and, interalia, denied his motion for an additurbe cause there was ample evidentiary support for the verdict returned by the jury where it was presented with the passenger’s conflicting sworn testimony concerning his prior medical condition and previous injuries, and evidence that called into question the credibility of the expert-medical testimony presented on his be-half. Reel v. Warren, 232 So.3d 736, 2017 Miss. App. LEXIS 302 (Miss. Ct. App.), cert. denied, 229 So.3d 713, 2017 Miss. LEXIS 502 (Miss. 2017).

3. —Remittitur.

Trial court abused its discretion when it denied a company’s motion for remittitur because the damages awarded went against the overwhelming weight of the evidence; the jury had no evidentiary basis for finding the company liable for more than four times the subcontractor’s claim for unpaid labor and services. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Trial court abused its discretion when it denied a company’s motion for remittitur because the damages awarded went against the overwhelming weight of the evidence; the jury had no evidentiary basis for finding the company liable for more than four times the subcontractor’s claim for unpaid labor and services. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Since the patient was credible and substantiated testimony as to her pain and suffering, testifying that her urine collection bag often leaked causing rashes and embarrassment and she was unable to care for her newborn, the award for pain and suffering which was six-and-a-half times the total special damages was not unreasonable or outrageous and the trial court did not err in denying the doctor’s request for remittitur. Robinson v. Corr, 188 So.3d 560, 2016 Miss. LEXIS 151 (Miss. 2016).

Because the court found that some bills incurred were not necessary and reasonable medical expenses resulting from the accident, it was error to submit those bills to the jury, and an offsetting remittitur was required, and if not accepted, a new trial on damages was necessary. Estate of Miles v. Burcham, 127 So.3d 213, 2013 Miss. LEXIS 646 (Miss. 2013).

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Evidence of the driver’s fractured vertebrae, ongoing pain, and limitation of her former activities did not warrant setting aside the jury verdict as so excessive to indicate bias, passion and prejudice on the part of the jury; therefore, the trial court did not err in denying the employer a new trial or remittitur. APAC Miss., Inc. v. Johnson, 15 So.3d 465, 2009 Miss. App. LEXIS 136 (Miss. Ct. App. 2009).

Motion for remittitur, under Miss. Code Ann. §11-1-55, was properly denied because there was sufficient evidence to preclude a finding that the jury was influenced by bias, passion, and prejudice; the jury’s verdict was just over eleven times the economic or special damages amount, and the patient suffered severe, recurring headaches and lived in a persistent vegetative state for almost two years. Estate of Jones v. Phillips, 992 So. 2d 1131, 2008 Miss. LEXIS 420 (Miss. 2008).

Amount awarded by the jury to each wrongful death beneficiary on their respective claim of loss of society and companionship was neither contrary to the overwhelming weight of credible evidence nor contrary to right reason and there was no showing that the jury verdict was the result of bias, prejudice, or passion, so the court found that the jury verdict should not be disturbed, and that the requested remittitur should be denied. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

District court, who saw and heard witnesses and who studied and ruled on numerous motions and objections dealing with the evidence, did not abuse its discretion in deciding to deny defendant restaurant operator’s new trial remittitur motion because the jury’s awards were not contrary to the overwhelming weight of credible evidence. The district court properly instructed the jury on Mississippi law and applied the proper state-law standard in considering whether the verdict returned was excessive. Foradori v. Harris, 523 F.3d 477, 2008 U.S. App. LEXIS 6937 (5th Cir. Miss. 2008).

In alienation of affection action in which the husband was granted $754,500 in damages from his wife’s boyfriend, the trial court did not abuse its discretion by denying remittitur because the evidence established that the husband lost his home, physical custody of his child, his marriage and society, companionship, aid, services, support, and the child he believed and raised as his daughter; there was no evidence that the jury was influenced by bias, prejudice, or passion or that the damages were contrary to the overwhelming weight of the evidence. Fitch v. Valentine, 959 So. 2d 1012, 2007 Miss. LEXIS 227 (Miss. 2007), cert. denied, 552 U.S. 1100, 128 S. Ct. 911, 169 L. Ed. 2d 730, 2008 U.S. LEXIS 127 (U.S. 2008).

In a debtor’s conversion action against a bank, the trial court abused its discretion in refusing to grant the bank a remittitur on compensatory damages as the compensatory damage award was against the overwhelming weight of credible evidence; the debtor’s statement regarding the “rental value” of certain equipment that was taken was insufficient to support a finding of lost profits, and there was overwhelming evidence that the debtor did not own all the property at issue. Cmty. Bank v. Courtney, 884 So. 2d 767, 2004 Miss. LEXIS 1321 (Miss. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, denial of the company’s motion for remittitur was proper as the verdict was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

Award of compensatory damages in favor of the borrower in the borrower’s action for conversion was against the overwhelming weight of credible evidence; thus, the trial court abused its discretion in refusing to grant a remittitur on compensatory damages. Cmty. Bank v. Courtney, 2004 Miss. LEXIS 656 (Miss. June 10, 2004).

Remittitur was ordered in a case involving an employer’s bad faith failure to pay worker’s compensation benefits because the punitive damages awarded were excessive where the evidence did not show that the employer’s conduct met the required degree of reprehensibility under Miss. Code Ann. §11-1-65(1)(a). Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

The trial court did not abuse its discretion in granting a remittitur which reduced the jury’s verdict from $30,000 to $7,500 for injuries resulting from a traffic accident where the plaintiff’s medical expenses were less than $600 and her treating physician testified that he did not believe the plaintiff would still have pain at the time of the trial and did not expect her to have any future medical expenses, notwithstanding the plaintiff’s testimony that she continued to have neck pain and headaches and suffered nervousness and loss of sleep due to the collision. Stringer v. Crowson, 797 So. 2d 368, 2001 Miss. App. LEXIS 226 (Miss. Ct. App. 2001).

In an action arising from a motor vehicle accident, the court refused to order a remittitur where the plaintiff claimed that she incurred medical bills of $569, as well as past, present, and future pain and suffering and mental anguish and she was awarded $29,099 in total damages, or 51 times her medical expenses; though the award was almost three times the greatest multiple found in the cases reviewed by the court, the amount of damages was primarily a concern for the jury and the court therefore deferred to the jury and affirmed the verdict and judgment of the trial court. Cade v. Walker, 771 So. 2d 403, 2000 Miss. App. LEXIS 514 (Miss. Ct. App. 2000).

In an action for assault, battery, and false imprisonment arising from an incident in which the plaintiffs drove their pickup truck across property owned by the defendant and the defendant stopped the truck by firing several shots in the air and then shooting one of the tires, the defendant was not entitled to remittitur where one plaintiff was awarded $50,000 and the other two plaintiffs were each awarded $30,000. Whitten v. Cox, 799 So. 2d 1, 2000 Miss. LEXIS 185 (Miss. 2000).

The court properly granted remittitur in the amount of $112,500 on a jury verdict of $187,500 where (1) the amount of the plaintiff’s lost wages were approximately $19,800, so that $167,700 of the verdict was attributable to pain and suffering, (2) the plaintiff told his physician that his back problem was resolved and that he no longer had pain, and (3) the plaintiff went back to full work and only stopped working after being involved in another accident unrelated to the case at bar. Rawson v. Midsouth Rail Corp., 738 So. 2d 280, 1999 Miss. App. LEXIS 67 (Miss. Ct. App. 1999).

Limiting punitive damages to triple amount of actual damages was arbitrary and improper. Ross-King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1996 Miss. LEXIS 128 (Miss. 1996).

In a wrongful death action arising from the death of an 85-year-old man in an automobile collision, a jury verdict in the amount of $150,000 comported with the evidence and, therefore, a remittitur was not warranted where the damages awarded were not just for the wrongful death of the decedent because the decedent suffered severe pain, suffering and mental anguish for 2 months prior to death as a result of the injuries he sustained in the collision, the decedent had at least 7.3 years of life remaining according to life tables in effect at the time of his death, the plaintiff was the decedent’s only child, and the plaintiff and the decedent were extremely close and communicated daily. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

Order of remittitur was proper where trial judge gave consideration to total circumstances, including aggravating effect of subsequent injuries, where facts considered pertinent in reaching that conclusion were that plaintiff had worked approximately 4 years after accident, damage to plaintiff’s vehicle was approximately $148, and all medical expenses totaled approximately $8,200. Stratton v. Webb, 513 So. 2d 587, 1987 Miss. LEXIS 2831 (Miss. 1987).

In absence of order for new trial, order of court reducing judgment by approximately $225,000 was a judgment notwithstanding verdict and not remittitur as termed by court where court had found evidence was insufficient as matter of law to support verdict. Investors Property Management, Ltd. v. Watkins, Pitts, Hill & Associates, 511 So. 2d 1379, 1987 Miss. LEXIS 2699 (Miss. 1987).

Remittitur of $499,000 in damages was appropriate where, in eminent domain proceeding, it was determined that fast food restaurant was entitled to damages only for actual value of property being taken and not for claimed damage as result of loss of access to frontage road. State Highway Com. v. McDonald's Corp., 509 So. 2d 856, 1987 Miss. LEXIS 2449 (Miss. 1987).

Although, in making the required adjustment of a jury’s verdict, the trial judge technically should have granted a motion for a new trial or denied it on condition of plaintiffs accepting a remittitur, the issuance of a judgment notwithstanding the verdict, which achieved the correct result, was harmless error. Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 1987 Miss. LEXIS 2283 (Miss. 1987).

In a personal injury action where the jury awarded $75,000 to the injured party, the trial judge, who failed to find that the jury’s verdict was so shocking to the conscience that it evinced bias, passion, and prejudice on the part of the jury, or that the verdict was contrary to the overwhelming weight of the credible evidence, abused his discretion in ordering a new trial conditioned on the plaintiff’s acceptance of a remittitur of $35,000. McIntosh v. Deas, 501 So. 2d 367, 1987 Miss. LEXIS 2240 (Miss. 1987).

The nature of damages in a malicious prosecution action will often be difficult to quantify in monetary terms, and where the verdict returned by the jury in such an action is within the evidence, a remittitur will not be ordered. Royal Oil Co. v. Wells, 500 So. 2d 439, 1986 Miss. LEXIS 2565 (Miss. 1986).

Trial judge abused his discretion in ordering a remittitur of $113,400.38 from a $200,000 jury award to pickup truck operator, who received severe injuries when his vehicle was struck by an oncoming 18-wheel tractor trailer, which jack-knifed and knocked the pickup truck off the highway. Holmes County Bank & Trust Co. v. Staple Cotton Cooperative Asso., 495 So. 2d 447, 1986 Miss. LEXIS 2634 (Miss. 1986).

Jury’s verdict awarding $100,000 to a 67 year old, retired man, with a life expectancy of 11.3 years, for injuries sustained while he was held hostage for 35 to 40 minutes in a discount department store by a mentally deranged customer, was excessive, where the total expense of the hostage victim, who was never hospitalized, was only $300.50, and, although he had a one-eighth hearing impairment and some ringing in the ears when the room was quiet, his condition was not rare for a person of his age; since the verdict was clearly against the overwhelming weight of the evidence, the Supreme Court would direct a new trial on damages unless the hostage victim accepted a remittitur of $30,000. Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d 965, 1986 Miss. LEXIS 2528 (Miss. 1986).

Trial judge abused his discretion in ordering a remittitur where amount of jury’s damage award was supported by the evidence. Anchor Coatings, Inc. v. Marine Industrial Residential Insulation, Inc., 490 So. 2d 1210, 1986 Miss. LEXIS 2492 (Miss. 1986).

Supreme Court would decline to reduce a $400,000 punitive damage award against an insurance company where the record failed to furnish any valid reason for doing so, and where the insurance company had persisted over a period of years in the use in its policies of an uninsured motorist exclusion which was in direct violation of state’s public policy. Employers Mut. Casualty Co. v. Tompkins, 490 So. 2d 897, 1986 Miss. LEXIS 2489 (Miss. 1986).

Motion to reduce punitive damages of $1,600,000 assessed by jury is properly denied where amount assessed is less than one percent of financial net worth of defendant. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

An award of $1,024,268, when reviewed under the standard set forth in §11-1-55, was not so excessive as to evince bias, prejudice or passion on the part of the jury, or to shock the conscience, in view of the evidence of plaintiff’s prior health and in view of the permanent injury in the record. Jesco, Inc. v. Shannon, 451 So. 2d 694, 1984 Miss. LEXIS 1644 (Miss. 1984).

In a personal injury and slander action for damages sustained by plaintiff in an altercation with a guard at an office, the trial court did not abuse its discretion in overruling defendant’s motion for a new trial on the issue of damages only and in declining to enter a remittitur, where the evidence was undisputed that plaintiff had sustained injury when he was removed from the building by the guard, and where damages of $5,000 were not excessive. Mississippi Power Co. v. Russell, 377 So. 2d 595, 1979 Miss. LEXIS 2524 (Miss. 1979).

In a personal injury action in which the jury awarded plaintiff damages in the amount of $26,000, the trial court abused its discretion in reducing the amount to $13,700 on defendant’s motion for a new trial where plaintiff’s loss of wage earning capacity to age 65 amounted to $124,800. Walton v. Scott, 365 So. 2d 630, 1978 Miss. LEXIS 2424 (Miss. 1978).

JUDICIAL DECISIONS

1. Court rules.

By the adoption of Miss. Unif. Ch. Ct. R. 1.06, effective May 29, 2003, the Supreme Court of Mississippi has superseded Miss. Code Ann. §11-1-56, exercising its inherent authority to adopt rules of practice, procedure and evidence to promote justice, uniformity, and the efficiency of the courts. In re Unif. Ch. Ct. Rules, 2003 Miss. LEXIS 252 (Miss. May 29, 2003).

Cross References —

Rules of evidence generally, see §§13-1-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 29-43, 46-51.

CJS.

21 C.J.S., Courts §§ 241-257.

JUDICIAL DECISIONS

1. In general.

2. Venue.

3. Process and return.

4. Nonsuit or dismissal.

5. Evidence.

1. In general.

By this section the provisions of the chapter are made applicable to all courts, and this embraces the county court; and, accordingly, conviction on a plea of guilty entered on an amendable affidavit is good and cannot be set aside on certiorari because of a defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

2. Venue.

In view of this section a fraternal benefit association may be sued in the chancery court of the county in which the beneficiary resides. Masonic Ben. Ass'n v. Dotson, 111 Miss. 60, 71 So. 266, 1916 Miss. LEXIS 240 (Miss. 1916).

3. Process and return.

In view of the section and Code 1930, §§ 575, 1397 case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

4. Nonsuit or dismissal.

Where a suit was brought in chancery court for cancelation of a conveyance on the ground that it has never been delivered, the chancellor should have granted the complainant’s motion for voluntary dismissal without prejudice where there was no submission to the chancellor for final decision on merits. Graham v. Graham, 214 Miss. 99, 58 So. 2d 85, 1952 Miss. LEXIS 449 (Miss. 1952).

A complainant in the chancery court has the right under the statute to dismiss his suit without prejudice. This rule applies in all cases where the defendant will not be prejudiced by a dismissal. Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 1917 Miss. LEXIS 137 (Miss. 1917); Adams v. Dean, 74 So. 436 (Miss. 1917); Adams v. Leatherbury, 74 So. 436 (Miss. 1917); Adams v. McInnis, 74 So. 436 (Miss. 1917).

5. Evidence.

Under the provisions of this section Code 1942, § 1469 is applicable to suits in the chancery court. General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So. 2d 845, 1965 Miss. LEXIS 927 (Miss. 1965).

In action of unlawful entry and detainer, introduction in evidence of deed to plaintiff held not objectionable on ground that no copy of deed was filed as exhibit to declaration, since statute (Code 1930, § 3458) made no such requirement. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Statutes requiring copy of writing to be annexed to declaration or bill before evidence of writing may be introduced applies to chancery court as well as to circuit court. Thomas v. B. Rosenberg & Sons, Inc., 153 Miss. 314, 120 So. 732, 1929 Miss. LEXIS 18 (Miss. 1929).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

JUDICIAL DECISIONS

1. Dismissal for non-compliance proper.

2. Dismissal for non-compliance improper.

3. Applicability.

4. Illustrative cases.

1. Dismissal for non-compliance proper.

Although the state legislature could not promulgate statutes dictating to the judiciary what a party was required to attach to pleadings filed in court, the legislature had constitutional authority to set out pre-suit requirements such as the requirement that a litigant obtain an expert consultation prior to commencing a medical malpractice suit. Where the attorney representing the personal representative of the estate of a decedent in a wrongful death suit against a nursing care facility admitted that he did not consult an expert prior to commencing the lawsuit, the nursing care facility was entitled to a dismissal. Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So. 2d 1179, 2008 Miss. LEXIS 521 (Miss. 2008).

Trial court improperly denied defendant hospital and administrator’s motion to dismiss the daughter’s negligence action due to the daughter’s failure to strictly comply with Miss. Code Ann. §11-1-58; since the daughter obtained the mother’s authorization for medical records after filing suit, she could not act on her mother’s behalf. Cmty. Hosp. v. Goodlett, 968 So. 2d 391, 2007 Miss. LEXIS 528 (Miss. 2007), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Medical malpractice suit was properly dismissed for failure to state a claim because plaintiffs did comply with Miss. Code Ann. §11-1-58 by filing with their complaint either an expert disclosure or a certificate of counsel stating that an expert disclosure had not yet been obtained because of the running of the statute of limitations under Miss. Code Ann. §15-1-36; strict compliance with Miss. Code Ann. §11-1-58 was mandatory, and defendants, a medical center and the estate of a deceased doctor, which had been substituted as a defendant under Miss. R. Civ. P. 25(a)(1) after the doctor’s death and reasserted the defenses raised by the doctor, had both raised as an affirmative defense plaintiffs’ failure to comply with the statute. Caldwell v. N. Miss. Med. Ctr., Inc., 956 So. 2d 888, 2007 Miss. LEXIS 280 (Miss. 2007), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Trial court properly dismissed a wrongful death and negligence action filed by the administratrix of the decedent’s estate against a nursing home as the administratrix failed to comply with Miss. Code Ann. §11-1-58 by failing to timely inform the nursing home that an expert had been consulted by way of an attorney’s certificate of compliance. Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 2006 Miss. LEXIS 301 (Miss. 2006), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

2. Dismissal for non-compliance improper.

In a medical negligence action, a doctor and a medical center waived the defense of a lack of strict compliance with Miss. Code Ann. §11-1-58 because, although both asserted the defense in their answers, they failed to further assert or pursue the defense until they filed their joint motion to dismiss nearly three years after the action was filed. Meadows v. Blake, 36 So.3d 1225, 2010 Miss. LEXIS 296 (Miss. 2010).

Mississippi Supreme Court is unable to ignore the constitutional imperative that the Mississippi Legislature refrain from promulgating procedural statutes which require dismissal of a complaint, and, particularly, a complaint filed in full compliance with the Mississippi Rules of Civil Procedure; the requirement in Miss. Code Ann. §11-1-58(1)(a) that a complaint be accompanied by a certificate or waiver is such a procedural statute. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Trial court erred in dismissing plaintiffs’ medical negligence action against a physician and a hospital for failure to file with the complaint a certificate of compliance as required by Miss. Code Ann. §11-1-58(1)(a) because the complaint did not need to be dismissed simply because plaintiffs failed to attach a certificate or waiver. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Medical malpractice plaintiff’s failure to attach a certificate of consultation to her complaint as required by Mississippi Code Annotated section 11-1-58(1)(a) did not mandate dismissal of the cause of action because, under the separation of powers doctrine, only the statute supreme court had the authority to establish procedural rules; as such, the statute was an unconstitutional procedural statute. A medical malpractice complaint, otherwise properly filed in accordance with the Mississippi Rules of Civil Procedure, could not be dismissed and need not be amended simply because a plaintiff failed to attach a certificate of consultation. Ellis v. Miss. Baptist Med. Ctr., Inc., 997 So. 2d 996, 2008 Miss. App. LEXIS 780 (Miss. Ct. App. 2008).

Relative, who served her certificate of review in January 2006 before she filed suit in April 2006, satisfied the pre-suit requirements of Miss. Code Ann. §11-1-58; in accordance with the intervening change in the law, the trial court should not have dismissed the relative’s wrongful death complaint against the doctors and medical center. McClain v. Clark, 992 So. 2d 636, 2008 Miss. LEXIS 515 (Miss. 2008).

3. Applicability.

Complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver; the certificate did not indicate whether the daughter’s attorney consulted with the expert prior to, or after, filing the complaint; if the former, then the daughter was in compliance with the enforceable portion of §11-1-58, and if the latter, then the pretrial statutory requirement was not met, and the trial court had to dismiss the complaint with prejudice. Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Where an employee killed co-workers after being referred to counseling by the employer and an employee assistance provider (EAP), the EAP was not entitled to summary judgment as to negligence claims because pre-suit notice and an expert certification were not required since the claims were for ordinary negligence, not medical malpractice. Tanks v. NEAS, Inc., 519 F. Supp. 2d 645, 2007 U.S. Dist. LEXIS 70334 (S.D. Miss. 2007).

4. Illustrative cases.

Where the patient filed a medical malpractice suit, contending that employees of the medical center were negligent in their examination, assessment, and care of her, proximately causing her stroke, she failed to attach a certificate of compliance to her complaint in accord with Miss. Code Ann. §11-1-58. The patient was permitted to amend her complaint. Moore v. Delta Reg'l Med. Ctr., 23 So.3d 541, 2009 Miss. App. LEXIS 328 (Miss. Ct. App. 2009).

RESEARCH REFERENCES

ALR.

Arbitration of medical malpractice claims. 84 A.L.R.3d 375.

Medical malpractice: “loss of chance” causality. 54 A.L.R.4th 10.

Liability of osteopath for medical malpractice. 73 A.L.R.4th 24.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Liability for medical malpractice in connection with performance of circumcision. 75 A.L.R.4th 710.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during cesarean delivery. 76 A.L.R.4th 1112.

Liability for dental malpractice in provision or fitting of dentures. 77 A.L.R.4th 222.

Liability of chiropractors and other drugless practitioners for medical malpractice. 77 A.L.R.4th 273.

Malpractice involving hysterectomies and oophorectomies. 86 A.L.R.4th 18.

Gynecological malpractice not involving hysterectomies or oophorectomies. 86 A.L.R.4th 125.

Opthalmological malpractice. 30 A.L.R.5th 571.

Medical Malpractice: negligent catheterization. 31 A.L.R.5th 1.

Medical malpractice liability of sports medicine care providers for injury to, or death of athlete. 33 A.L.R.5th 619.

Malpractice: Physician’s liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient. 47 A.L.R.5th 433.

Malpractice in diagnosis and treatment of male urinary tract and related organs. 48 A.L.R.5th 575.

Homicide: Liability where death immediately results from treatment or mistreatment of injury inflicted by defendant. 50 A.L.R.5th 467.

Liability of health maintenance organizations (HMOs) for negligence of member physicians. 51 A.L.R.5th 271.

Malpractice in diagnosis or treatment of meningitis. 51 A.L.R.5th 301.

Am. Jur.

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 45.1 (Complaint, petition, or declaration – Negligence in care of newborn – Loss of society).

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 68.1 (Complaint, petition, or declaration – Allegation – Malpractice).

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 68.2 (Complaint, petition, or declaration – Negligence in care of newborn – Res ipsa loquitur).

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 370 (Complaint, petition, or declaration – Against hospital and physician – Injury to newborn – Loss of society).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 122.1 (Complaint, petition, or declaration – For malpractice – General form – Allegations).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 122.2 (Complaint, petition, or declaration – For malpractice allegation – Loss of consortium).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 124.1 (Complaint, petition, or declaration – For malpractice allegation – Vicarious liability).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 278.3 (Complaint, petition, or declaration – Podiatric malpractice).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 293.1 (Complaint, petition, or declaration – Metallic wire left in during surgery – Against physicians and surgeons).

19 Am. Jur. Proof of Facts 2d 285, Physician’s Failure to Perform Timely Cesarean Section.

20 Am. Jur. Proof of Facts 2d 421, Therapist’s Liability for Injury caused by Nonverbal Therapy.

22 Am. Jur. Proof of Facts 2d 1, Medical Malpractice – Use of Hospital Records.

22 Am. Jur. Proof of Facts 2d 721, Plastic Surgeon’s Liability in Cosmetic Surgery Cases.

23 Am. Jur. Proof of Facts 2d 293, Negligence in Use of Diet and Weight Control Drugs in Treatment of Obesity.

25 Am. Jur. Proof of Facts 2d 411, Nurse’s Failure to Give Physician Timely Notice of Patient’s Condition.

25 Am. Jur. Proof of Facts 2d 657, Negligent Diagnosis of Eye Disease.

26 Am. Jur. Proof of Facts 2d 183, Medical Malpractice – Negligence in Postoperative Care of Patient.

26 Am. Jur. Proof of Facts 2d 363, Malpractice of Psychiatric Nurse.

30 Am. Jur. Proof of Facts 2d 95, Brain Injuries Due to Trauma.

34 Am. Jur. Proof of Facts 2d 199, Druggist’s Liability for Improperly Filling Prescription.

36 Am. Jur. Proof of Facts 2d 637, Medical Malpractice: Liability for Negligent Injection or Infusion.

38 Am. Jur. Proof of Facts 2d 445, Vicarious Liability of Physician for Negligence of Another.

38 Am. Jur. Proof of Facts 2d 589, Physician’s Liability for Causing Patient’s Drug Addiction.

39 Am. Jur. Proof of Facts 2d 545, Complications Due to Immobilization.

42 Am. Jur. Proof of Facts 2d 405, Physician’s Failure to Disclose Diagnosis or Test Result.

43 Am. Jur. Proof of Facts 2d 109, Hospital – Acquired Infections.

43 Am. Jur. Proof of Facts 2d 657, Physician’s Failure to Protect Third Party from Harm by Nonpsychiatric Patient.

44 Am. Jur. Proof of Facts 2d 55, Kidney Injuries.

44 Am. Jur. Proof of Facts 2d 499, Medical Malpractice: Electroconvulsive Therapy.

47 Am. Jur. Proof of Facts 2d 1, Malpractice by Emergency Department Physician.

47 Am. Jur. Proof of Facts 2d 525, Medicolegal Malpractice: Wrongful Claim Review by Physician.

1 Am. Jur. Proof of Facts 3d 691, Failure to Diagnose Impending Heart Attack.

4 Am. Jur. Proof of Facts 3d 689, Ophthalmic Malpractice.

8 Am. Jur. Proof of Facts 3d 145, Use of CAT Scans in Litigation.

16 Am. Jur. Proof of Facts 3d 49, Negligence of Optometrist.

23 Am. Jur. Proof of Facts 3d 1, Optician’s Negligence: Proof that an Optician Negligently Dispensed an Optical Device.

25 Am. Jur. Trials 185, Recovery Room Accidents.

30 Am. Jur. Trials 237, Misdiagnosis of Cancer and Loss of Chance.

30 Am. Jur. Trials 437, Countering the Standard Defenses in a Breast Cancer Malpractice Case.

32 Am. Jur. Trials 179, Eye Surgery Malpractice – Cataracts.

32 Am. Jur. Trials 375, Pharmacist Liability.

32 Am. Jur. Trials 547, Medicolegal Malpractice Litigation.

32 Am. Jur. Trials 673, Defective Prosthesis Litigation – Silicone Breast Implant.

35 Am. Jur. Trials 637, Trial Report: Informed Consent to Brain Surgery.

40 Am. Jur. Trials 1, Obstetrical Malpractice.

51 Am. Jur. Trials 375, Trial Report: Negligent Pediatric Care.

52 Am. Jur. Trials 347, Medical Malpractice: Brain – Damaged Infant.

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

JUDICIAL DECISIONS

1. Pleadings.

In a patient’s medical malpractice suit, defendants’ notice of removal was timely because (1) the patient was prohibited from including an ad damnum clause in the complaint and the facts alleged did not unequivocally establish that the plaintiff was seeking more than $ 75,000, and (2) the patient’s responses constituted an “other paper” because the patient’s evasive response to defendants’ requests for admission, combined with the patient’s manifestation of intent to seek over $ 75,000, was tantamount to a denial of defendants’ requests for admission. Harden v. Field Mem. Cmty. Hosp., 516 F. Supp. 2d 600, 2007 U.S. Dist. LEXIS 28436 (S.D. Miss. 2007), aff'd, 265 Fed. Appx. 405, 2008 U.S. App. LEXIS 3524 (5th Cir. Miss. 2008).

Amendment Notes —

The 2004 amendment, 1st Ex Sess, ch. 1, in (1)(a), inserted “disfigurement” in the first sentence, and substituted “shall not include punitive or exemplary damages” for “shall not include damages for disfigurement, nor does it include punitive or exemplary damages” in the second sentence; deleted former (1)(c), which defined “Provider of health care”; rewrote (2); and rewrote former (3) and (4) as present (3).

RESEARCH REFERENCES

ALR.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription – Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

JUDICIAL DECISIONS

1. Constitutionality.

2. Applicaton.

3. “Plaintiffs.”

4. Erroneous directed verdict.

1. Constitutionality.

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Court’s reduction of noneconomic damages awarded by a jury was affirmed because Miss. Code Ann. §11-1-60(2)(b) was not shown to be in palpable conflict with the right to have a jury alone find the amount of compensatory damages. The common law jury guarantee was not shown to includes the right to a judgment equal to the jury’s damages finding. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

High court declined to answer a certified question regarding the constitutionality of Miss. Code Ann §11-1-60(2), which generally limited non-economic damages to $ 1 million, because it would require speculation and guesswork to determine what portion of the jury’s $ 4 million general verdict represented noneconomic damages. Sears v. Learmonth, 95 So.3d 633, 2012 Miss. LEXIS 422 (Miss. 2012).

2. Applicaton.

Trial court properly applied this section and Miss. Code Ann. §85-5-7(2) to the damages award, finding that the sandblasting company was liable for the damages apportioned to it, which were below the $1 million cap. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

3. “Plaintiffs.”

Miss. Code Ann. §11-1-60(2)(a) instituted a cap on noneconomic damages recoverable by “the plaintiff,” and under Miss. Code Ann. §1-3-33, words written in the singular were to be read in the plural; therefore, a cap on noneconomic damages applied to all plaintiffs who brought a wrongful-death action pursuant to Miss. Code Ann. §11-7-13. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 2007 Miss. LEXIS 649 (Miss. 2007).

4. Erroneous directed verdict.

Record provided evidence from which a reasonable juror could find noneconomic damages; the testimony of two expert witnesses and the employee created a question of fact for the jury with respect to pain, suffering, inconvenience, physical impairment, disfigurement, and loss of the enjoyment of life. From the evidence found in the record, as well as all reasonable inferences which could be drawn from the evidence, viewed in the light most favorable to the employee, it could not be safely said that reasonable and fair-minded jurors in the exercise of impartial judgment could have found only for the employer on the issue of noneconomic damages. Kennedy v. Ill. Cent. R.R. Co., 2010 Miss. LEXIS 14 (Miss. Jan. 7, 2010), op. withdrawn, sub. op., 30 So.3d 333, 2010 Miss. LEXIS 130 (Miss. 2010).

Trial court erred in directing a verdict in favor of an employer in an action under the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 (2009), because reasonable and fair-minded jurors in the exercise of impartial judgment could have found for the employee on the issue of economic damages, as defined under Miss. Code Ann. §11-1-60(1)(a). Kennedy v. Ill. Cent. R.R. Co., 30 So.3d 333, 2010 Miss. LEXIS 130 (Miss. 2010).

RESEARCH REFERENCES

ALR.

Propriety of cross-examining expert witness regarding his status as “professional witness”. 39 A.L.R.4th 742.

Compelling testimony of opponent’s expert in state court. 66 A.L.R.4th 213.

Medical Negligence in Extraction of Tooth, Established Through Expert Testimony. 18 A.L.R.6th 325.

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss. L. J. 547, Winter, 1997.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

JUDICIAL DECISIONS

1. Conflicts with Rules of Evidence.

2. Illustrative cases.

1. Conflicts with Rules of Evidence.

Miss. Code Ann. §11-1-61 does not conflict with the Mississippi Rules of Evidence, which govern evidentiary matters, including the qualification of expert witnesses, Miss. R. Evid. 702. Blake v. Clein, 903 So. 2d 710, 2005 Miss. LEXIS 235 (Miss. 2005).

2. Illustrative cases.

Finding in favor of the patient in his medical malpractice action was improper where the trial court erred in allowing the testimony of an orthopedic surgeon because that doctor was not qualified to testify as to the standard of care in August of 1995 since he was still in his residency in Austria and had not completed his own orthopedic training at that time. Blake v. Clein, 903 So. 2d 710, 2005 Miss. LEXIS 235 (Miss. 2005).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Editor’s Notes —

Laws of 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Section 11-1-64, referred to in the first line of the section, was repealed by Laws of 2004, 1 st Ex. Sess., ch. 1, § 7, effective September 1, 2004.

Laws of 2014, ch. 383, § 2 provides:

“SECTION 2. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, at the beginning of the first paragraph, added the words preceding “in any action”; in (g)(i), changed “pursuant to (a)” to “pursuant to paragraph (a)”; and in (g)(ii), replaced “within thirty (30) days of the filing” with “within ninety (90) days of the service.”

The 2004 amendment, 1st Ex Sess, ch. 1, inserted (h), and redesignated former (h) as (i).

The 2014 amendment inserted “including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty” in the introductory paragraph; inserted “designer” or “designer’s” following “manufacturer” or “manufacturer’s” everywhere it appears; and inserted “or designer” following “seller” everywhere it appears.

Cross References —

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

RESEARCH REFERENCES

ALR.

See A.L.R. Index to Annotations under Products Liability.

Products Liability: Ladders. 81 A.L.R.5th 245.

Products liability: Manufacturer’s postsale obligation to modify, repair, or recall product. 47 A.L.R.5th 395.

The government-contractor defense to state products – liability claims. 53 A.L.R.5th 535.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive. 54 A.L.R.5th 1.

Products liability: firearms, ammunition, and chemical weapons. 96 A.L.R.5th 239.

Am. Jur.

63 Am. Jur. 2d, Products Liability §§ 1, 2 et seq.

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 73.1 (Complaint, petition, or declaration – By bicyclist – Struck by automobile-Against manufacturer of slotted drainage grate placed in sidewalk).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability §§ 1 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 61.1 (Complaint, petition, or declaration – Against manufacturer and distributor of swimming pools-Negligent design and failure to warn).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 111.1 (Complaint, petition, or declaration – Against manufacturer and seller – Negligent design and breach of warranties for trailer and sliding tandem bogey).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 143.1 (Answer-Defense – Statutory bar).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 143.2 (Answer – Defense – Assumption of risk by plaintiff).

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 216.2 (Complaint in federal court – Against manufacturers of blood product contaminated with AIDS virus – Alternate liability theory).

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 291.1 (Complaint, petition, or declaration – Action against manufacturers of asbestos products and distributors of diatomaceous earth – By employee).

46 Am. Jur. Trials 631, The Use of Biomechanical Experts in Product Liability Litigation.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Taming an Elephant: A Closer Look at Mass Tort Screening and the Impact of Mississippi Tort Reforms, 26 Miss. C. L. Rev. 253, 2006/2007.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Expert testimony.

4. Tobacco products.

5. Substantial change.

6. Adequate warnings.

7. Design defect.

8. — Open and obvious danger.

9. Feasible design alternative.

10. Prima facie case.

11. Evidence.

12. Jury instruction.

13. Asbestos cases.

14. Reliance.

15. Preservation for review.

16. Proximate cause.

17. Innocent seller.

1. In general.

In general, a claimant must make out a prima facie products liability case in Mississippi by showing that: (1) a product is defective; (2) that the defect causes the product to be unreasonably dangerous; (3) that the unreasonably dangerous defect causes the harm complained of; and (4) that the defective condition exists at the time the product leaves the control of the manufacturer or seller. Miss. Code Ann. Section 11-1-63(a) serves as a claimant’s roadmap and provides the basic framework from which claimants classify their particular claims. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

“Defective condition,” required under Miss. Code Ann. §11-1-63(a)(ii), (iii), should be distinguished under the statute from a “defective product,” which would be required under the first part of the statutory claim, §11-1-63(a)(i), if the plaintiff sues under §11-1-63(a)(i)(1), (2), or (3); the “defective condition” considered by §11-1-63(a)(ii) and (iii) is merely the satisfaction of one of four possible elements under §11-1-63(a)(i). Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Summary judgment granted in favor of a manufacturer was affirmed; the individual did not prove causation as required by Miss. Code Ann. §11-1-63(a)(iii) as he failed to establish that someone had followed the manufacturer’s instructions in removing a bearing, but that the instructions were inadequate which caused the axle on his truck to snap and cause his injuries. Harris v. Int'l Truck & Engine Corp., 912 So. 2d 1101, 2005 Miss. App. LEXIS 751 (Miss. Ct. App. 2005).

Recusal was not merited under 28 U.S.C.S. § 455 where district court’s refusal to transfer asbestos litigation to a multi-district litigation court was not motivated by the court’s alleged bias against defendants in asbestos removal litigation and the merits did not favor removal as plaintiffs’ claims under Miss. Code Ann. §11-1-63 clearly permitted retailers to be sued in products liability cases even absent a showing of fault, thus making defendants’ burden of demonstrating no possibility of recovery extremely difficult. Duffin v. Honeywell Int'l, Inc., 2004 U.S. Dist. LEXIS 12856 (N.D. Miss. Apr. 26, 2004).

Plaintiff’s product’s liability suit against a paintball gun manufacturer was properly dismissed on summary judgment, as plaintiff (1) did not prove that the paintball gun that allegedly injured him failed to function as expected; (2) offered no feasible design alternative that would have prevented the alleged injury; (2) knew that protective eyewear was available but chose not to buy any; and (3) was an active participant in shooting paintballs at other vehicles when he allegedly was injured. Clark v. Brass Eagle, Inc., 866 So. 2d 456, 2004 Miss. LEXIS 219 (Miss. 2004).

Plain meaning of the language of the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, is that the statute imposes liability on the manufacturer or seller for warnings that were inadequate at the time of sale, not for warnings that became inadequate at some later time. Therefore, it appears that there is no post-sale duty to warn under the statute. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

In an automobile owners’ products liability action concerning an automobile fire that occurred in 1998, because the automobile manufacturer’s engineer testified that in 1990 the manufacturer knew that leaves could collect in the blower box and cause smoke after contacting a resistor, it was not unreasonable for the jury to find that the leaves could also cause a fire, thereby establishing the owners’ claim for design defect. Hughes v. Ford Motor Co., 204 F. Supp. 2d 958, 2002 U.S. Dist. LEXIS 17092 (N.D. Miss. 2002).

The Mississippi Products Liability Act does not abrogate a statutory cause of action for breach of implied warranty as ground for recovery. Bennett v. Madakasira, 821 So. 2d 794, 2002 Miss. LEXIS 107 (Miss. 2002).

The statute is not an abandonment of strict products liability; although common law strict liability is no longer the authority on the necessary elements of a products liability action, the concept of strict liability is still quite alive within the statute. Huff v. Shopsmith, Inc., 786 So. 2d 383, 2001 Miss. LEXIS 144 (Miss. 2001).

The statute was not intended to abrogate the long established common law theory of negligence or the statutory cause of action for breach of implied warranty. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

This section was not intended to abrogate the long established common law theory of negligence or the statutory cause of action for breach of implied warranty. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

A feasible design alternative to an allegedly defective design is a prerequisite under this section. Hammond v. Coleman Co., 61 F. Supp. 2d 533, 1999 U.S. Dist. LEXIS 13701 (S.D. Miss. 1999), aff'd, 209 F.3d 718, 2000 U.S. App. LEXIS 4553 (5th Cir. Miss. 2000).

The risk-utility analysis applies to design defects cases, not manufacturing defect cases. Byrd v. Corporacion Forestal y Indus. de Olancho S.A., 182 F.3d 380, 1999 U.S. App. LEXIS 18463 (5th Cir. Miss. 1999), abrogated, Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. Ed. 2d 1047, 2010 U.S. LEXIS 4378 (U.S. 2010).

Hangar doors were “fixtures,” rather than “products,” and, therefore, this section did not apply to an action arising from an incident in which the plaintiff was killed when one of a set of swinging hangar doors closed on him, crushing him between the door and door jamb. Bragg v. United States, 55 F. Supp. 2d 575, 1999 U.S. Dist. LEXIS 11240 (S.D. Miss. 1999).

Damages caused by the product that adversely affect the product’s monetary value are not within the scope of this section’s coverage, and thus, the product owner would have to seek a remedy in the law of warranty or contract. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So. 2d 384, 1999 Miss. App. LEXIS 106 (Miss. Ct. App. 1999).

When a plaintiff is relying on subsection (a)(i)(2) of this section in a products liability action, the known or open and obvious danger defense is a factor to be considered by the jury in determining whether a product is unreasonably dangerous. Hageney v. Jackson Furniture, Inc., 746 So. 2d 912, 1999 Miss. App. LEXIS 98 (Miss. Ct. App. 1999).

Conveyor manufacturer’s concession in products liability case that it did not contest feasibility of alternative designs proposed by plaintiff’s expert, but that defendant did claim that subsequent designs did not serve identified functions that its conveyor served, did not relieve plaintiff of requirement under Daubert that she independently establish technical basis for utility and safety of proposed alternative designs; manufacturer did not stipulate that alternative designs did not impair “utility, usefulness, practicability or desirability of the product to users or consumers,” within meaning of Mississippi law. Watkins v. Telsmith, Inc., 121 F.3d 984, 1997 U.S. App. LEXIS 24925 (5th Cir. Miss. 1997).

A trial court in a strict products liability action did not err in applying a “risk-utility” analysis, under which a product is “unreasonably dangerous” if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product, instead of a “consumer expectations” analysis, under which the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it; a risk-utility analysis best protects both the manufacturer and the consumer as it does not create a duty on the manufacturer to create a completely safe product, but instead charges the manufacturer with the duty to make its product reasonably safe regardless of whether the consumer is aware of the product’s dangerousness, and the consumer can recover for any injury resulting from a product danger even if he or she appreciates that danger so long as the utility of the product is outweighed by the danger that the product creates. Sperry-New Holland, Div. of Sperry Corp. v. Prestage, 617 So. 2d 248, 1993 Miss. LEXIS 124 (Miss. 1993).

Under the “risk-utility” test for determining whether a product is “unreasonably dangerous” within the meaning of § 402A of the Restatement of Torts, either the judge or the jury can balance the utility and danger-in-fact, or risk, of the product. Sperry-New Holland, Div. of Sperry Corp. v. Prestage, 617 So. 2d 248, 1993 Miss. LEXIS 124 (Miss. 1993).

2. Applicability.

Common law, rather than the Mississippi Products Liability Act (MPLA), applied to an injured driver’s negligence/failure-to-warn claims against a lessor of farm equipment, after the driver had his left arm severed by a farm disc that was being towed by a pick-up heading the opposite direction, because 2014 amendments suggested that the legislature did not intend to expand the MPLA beyond the three specific categories identified - manufacturers, designers, and sellers. Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846, 2018 U.S. App. LEXIS 27725 (5th Cir. Miss. 2018).

When homeowners sued a drywall seller for selling defective drywall, while, when suit was filed, the Mississippi Products Liability Act (MPLA) did not completely abrogate the homeowners’ breach of implied warranty claim, the seller was still entitled to summary judgment because the MPLA, including an innocent seller provision, applied broadly to any suit for damage caused by a defective product, except commercial damage. Holifield v. City Salvage, Inc., 230 So.3d 736, 2017 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 483 (Miss. 2017).

Homeowners’ common-law negligence and strict liability claims against a pipeline owner, an odorant manufacturer, and an odorant distributor failed as a matter of law because the Mississippi Products Liability Act provided the framework for analyzing the claims based on odorant fade. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Legislature intended to exempt every person participating in the procurement, processing, storage, distribution, and/or use of whole blood, plasma, blood products and blood derivatives, human tissue, organs or bones for the purpose of injecting, transfusing, transplanting or transferring the same or any of them into the human body from liability under the theory of strict products liability; the Mississippi Products Liability Act does not intend to change that long-standing concept. Palermo v. Lifelink Found., Inc., 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

Trial court did not err by granting a manufacturer’s motion for summary judgment on a patient’s claim under the Mississippi Products Liability Act (MPLA) because the manufacturer was statutorily defined as a service provider; the plain language of the MPLA makes clear that it does not apply to mere service providers. Palermo v. Lifelink Found., Inc., 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

Plaintiff, who took a generic equivalent of a brand-name drug, could not pursue a misrepresentation claim against manufacturers of the brand-name drug under a theory of innovator liability; Mississippi products liability law shielded the manufacturers from liability for products they did not create. Chatman v. Pfizer, Inc., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 127323 (S.D. Miss. Sept. 11, 2014).

Patient was barred from bringing a strict-products-liability claim or products-liability claim against a non-profit tissue bank, which supplied an allograft for the patient’s surgery, because human tissue, pursuant to Miss. Code Ann. §41-41-1, was not a product under the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63. Palermo v. LifeLink Found., Inc., 152 So.3d 1177, 2014 Miss. App. LEXIS 14 (Miss. Ct. App.), aff'd, 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

While negligence claims can be brought alongside strict liability claims, the findings for the claims brought under the Mississippi Products Liability Act can be dispositive as to the product-based negligence claims such as negligent failure to warn and negligent design. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Court rejected van manufacturer’s and seller’s contention that a driver’s exclusive remedy was to bring an action under the Mississippi Products Liability Act (MPLA), Miss. Code Ann. §11-1-63 et seq., finding no statutory requirement that made the MPLA the exclusive remedy for claims of malfunctioning automobiles. Additionally, breach of implied warranty claims were not barred by the MPLA. Watson Quality Ford, Inc. v. Casanova, 999 So. 2d 830, 2008 Miss. LEXIS 593 (Miss. 2008).

In a product liability case, a district court rejected the argument of a car maker and an occupant restraint maker that the first sentence in Miss. Code Ann. §11-1-63 stands for the proposition that the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, is the only statutory vehicle through which one can pursue a product liability claim, thereby excluding a negligence theory. Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. LEXIS 55123 (N.D. Miss. July 18, 2008), aff'd, 310 Fed. Appx. 747, 2009 U.S. App. LEXIS 5870 (5th Cir. Miss. 2009).

Mississippi courts are unified in their interpretation of the legislative mandate set forth in Miss. Code Ann. §11-1-63, the Mississippi products liability statute. Moreover, in explicit terms, the statute requires that when a claimant asserts a design defect theory of liability, the claimant not only must provide proof that the seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger causing injury, but also, the claimant must provide evidence that the product failed to function as expected by way of producing evidence of a feasible design alternative that could have reasonably prevented the claimant’s injury; in the case at bar, where a handgun fell from plaintiff’s car door and discharged (in part, it was undisputed that the safety was off), he failed to prove the aforementioned elements and summary judgment for defendant was proper. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

In a case involving a dispute over an allegedly defective roof, summary judgment was properly granted in favor of several builders because the action was untimely; Miss. Code Ann. §11-1-63 and Miss. Code Ann. §15-1-49 did not apply because an improvement to real property was not a product. Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 2005 Miss. LEXIS 517 (Miss. 2005).

In a mass-joined asbestos action in which numerous consumers sought recovery against numerous defendants for injuries resulting from exposure to asbestos-containing products, where the consumers’ complaint alleged that certain local retailers should be held liable under Mississippi law because they sold unreasonably dangerous and defective products, the complaint stated a cause of action against the retailers because Miss. Code Ann. §11-1-63 clearly provided for strict liability against retailers in products liability cases. Duffin v. Honeywell Int'l, Inc., 312 F. Supp. 2d 869, 2004 U.S. Dist. LEXIS 12857 (N.D. Miss. 2004).

Grant of summary judgment in favor of the company in a wrongful death action was proper where products liability law limited itself to imposing liability on entities engaged in the actual production or sale of goods, Miss. Code Ann. §11-1-63(a); further, the beneficiaries abandoned their motion for leave to amend because they permitted over three and on-half months to pass without making any effort to pursue a ruling on the motion in face of knowledge that the trial court had taken the summary judgment motion filed against them under advisement, Miss. Unif. Cir. & County Ct. Prac. R. 4.03(1), 2.04. Harrison v. B.F. Goodrich Co., 881 So. 2d 288, 2004 Miss. App. LEXIS 173 (Miss. Ct. App.), cert. denied, 882 So. 2d 772, 2004 Miss. LEXIS 1111 (Miss. 2004).

Trial court could not exclude material as to a warning in an owner’s manual as irrelevant based upon the plaintiffs’ admission that they did not rely upon any information in their owner’s manual. Because reliance on the manufacturer’s warning was not an element of an inadequate warnings case. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

Where a truck driver died in a single-vehicle log truck accident, and his wrongful death beneficiaries lost their suit, controlling law applied the risk-utility analysis, not consumer expectation, for determining whether a product, alleged to be defective in design, was unreasonably dangerous; as such, it was reversible error for the trial court to instruct the jury to apply the consumer expectations test. Smith v. Mack Trucks, Inc., 819 So. 2d 1258, 2002 Miss. LEXIS 199 (Miss. 2002).

Where plaintiffs alleged that they were injured by the process utilized by defendants in treating wood with creosote and by the alleged waste that process may have caused, defendants were entitled to summary judgment on plaintiff’s claims for failure to warn because the process and alleged waste was not a “product” within the scope of Miss. Code Ann. §11-1-63. Andrews v. Kerr McGee Corp., 2001 U.S. Dist. LEXIS 25973 (N.D. Miss. Dec. 3, 2001).

The statute does not apply to an action commenced prior to its effective date. O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 2000 Miss. App. LEXIS 205 (Miss. Ct. App. 2000).

3. Expert testimony.

Trial court properly barred a driver’s claim under the Mississippi Products Liability Act because his experts failed to provide any testimony that a reasonable alternative design existed for a gating end terminal, and the remaining evidence was insufficient to raise a genuine issue of material fact as to whether the terminal was defectively designed; one expert’s affidavit was an attempt to respond to companies’ argument that the expert had not shown a feasible alternative design. Singley v. Trinity Highway Prods., LLC, 180 So.3d 708, 2015 Miss. App. LEXIS 283 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 11 (Miss. 2016).

Consumer had not established that the failure to include a graphic adjacent to the written warning on the saw proximately caused his injury under Miss. Code Ann. §11-1-63. Any testimony presented by the human factors expert that the absence of a graphic adjacent to the written warning on the table saw rendered the warning inadequate was therefore irrelevant and should have been excluded. Previto v. Ryobi N. Am., Inc., 766 F. Supp. 2d 759, 2010 U.S. Dist. LEXIS 141381 (S.D. Miss. 2010).

Where the consumer complained that the vehicle-equipped air bag failed to deploy during a car accident, she filed a products liability suit against the manufacturer but failed to call expert witnesses to prove that the car was defective at the time it left the manufacturer. The circuit court did not err by granting summary judgment for the manufacturer after finding that the consumer failed to present evidence that created a genuine issue of material fact to support her claims under Miss. Code Ann. §11-1-63(a)(i)(1)-(3). Brown v. GMC, 4 So.3d 400, 2009 Miss. App. LEXIS 137 (Miss. Ct. App. 2009).

In a product liability case in which a district court had excluded a driver’s expert witnesses, the driver’s claims under Miss. Code Ann. §11-1-63 failed as a matter of law since, with the exclusion of her experts, she had insufficient evidence to create a genuine issue of material fact as to her defective design, defective manufacturer, and failure to warn claims. Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. LEXIS 55123 (N.D. Miss. July 18, 2008), aff'd, 310 Fed. Appx. 747, 2009 U.S. App. LEXIS 5870 (5th Cir. Miss. 2009).

Because plaintiff’s expert had no expertise in tire design, manufacture, or malfunction, his testimony was properly stricken as to causation under Fed. R. Evid. 702; without the testimony of causation, plaintiff failed to establish claim under Miss. Code Ann. §11-1-63(a) and summary judgment for the manufacturer was proper. Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 2007 U.S. App. LEXIS 18450 (5th Cir. Miss. 2007).

Although a driver did not offer expert testimony as to the issue of whether the collision in which she was involved was severe enough to warrant deployment of an air bag in accordance with the car manufacturer’s warranty that the air bag would deploy if the collision was “hard enough,” the evidence offered by the driver, including testimony from a mechanic as to the severity of the damage sustained by the car, was sufficient to allow a jury to conclude that the collision was “hard enough” such that the air bag should have deployed and that the warranty was breached, rendering the manufacturer liable under Miss. Code Ann. §11-1-63(a)(i)(4). Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Summary judgment in favor of defendant casket company on a product liability claim was proper because no expert testimony was presented that demonstrated that the alternative glue would have allowed the wooden casket to last for an “indefinite” period of time. Moss v. Batesville Casket Co., 935 So. 2d 393, 2006 Miss. LEXIS 378 (Miss. 2006).

In a products liability suit filed against the manufacturer of a cleaning product that exploded, the testimony of plaintiff’s expert as to the cause of the explosion was excluded because it was too speculative to be reliable. Kemp v. Biolab, Inc., 2005 U.S. Dist. LEXIS 34035 (S.D. Miss. June 22, 2005).

Directed verdict in favor of the corporation in the driver’s products liability action was proper pursuant to the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, because there was no evidence that the driver or her husband relied on any express warranty or other factual representation about the air bag before the accident. Additionally, the driver offered no expert testimony to say that the air bag should have deployed in the collision. Forbes v. GMC, 929 So. 2d 958, 2005 Miss. App. LEXIS 716 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Directed verdict for defendant under Miss. R. Civ. P. 50(a) was proper in a products liability action under Miss. Code Ann. §11-1-63 where a wife was injured in an automobile accident and there was evidence that her air bag did not deploy because the only express warranty made was that the automobile had air bags, there was no evidence that plaintiffs justifiably relied on statements in the owners’ manual, and plaintiffs offered no expert testimony to show that the impact was hard enough that the air bag should have deployed. Forbes v. GMC, 2005 Miss. App. LEXIS 95 (Miss. Ct. App. Feb. 1, 2005), op. withdrawn, sub. op., 929 So. 2d 958, 2005 Miss. App. LEXIS 716 (Miss. Ct. App. 2005).

Trial court erred in allowing auto manufacturer’s expert to provide lay testimony about air bag inflation technology court because the manufacturer failed to designate him as an expert before the deadline, and his “lay testimony” strayed into the realm of scientific, technical and specialized knowledge that could only be admitted as expert testimony after assessment pursuant to Miss. R. Evid. 702. Also the injured driver’s family members were prejudiced by the expert’s testimony as it rebutted their expert’s testimony regarding their claim of defective design under the Mississippi Product Liability Act, Miss. Code Ann. §11-1-63. Palmer v. Volkswagen of Am., Inc., 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), op. withdrawn, sub. op., 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

The district court properly ruled that expert testimony was irrelevant and properly excluded such testimony where the expert opined that a ladder had a manufacturing defect because there was no adhesion between the fiberglass and the polymer matrix making up the ladder, but failed to assess whether the ladder met ANSI standards. Byrd v. Corporacion Forestal y Indus. de Olancho S.A., 182 F.3d 380, 1999 U.S. App. LEXIS 18463 (5th Cir. Miss. 1999), abrogated, Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. Ed. 2d 1047, 2010 U.S. LEXIS 4378 (U.S. 2010).

4. Tobacco products.

Miss. Code Ann. §11-1-63 was commonly referred to as the inherent characteristics defense and was just that; a defense that had to be pled and proven, rather than an outright bar, and the defense in Miss. Code Ann. §11-1-63(b) did not bar any action for damages caused by cigarettes, as the defense only applied to a products liability action and, as with any other affirmative defense, the defense was a matter of proof. R. J. Reynolds Tobacco Co. v. King, 921 So. 2d 268, 2005 Miss. LEXIS 423 (Miss. 2005).

Mississippi Product Liability Act, Miss. Code Ann. §11-1-63, precludes all tobacco cases based on products liability against tobacco companies; hence, summary judgment was properly granted to tobacco companies on an asbestos company’s claim that smoking by asbestos claimants had caused the damage to the asbestos claimants. Owens Corning v. R.J. Reynolds Tobacco Co., 868 So. 2d 331, 2004 Miss. LEXIS 270 (Miss. 2004).

It was possible that the plaintiffs would be able to state a cause of action on the basis that the cigarettes at issue were defectively designed so as to render them unreasonably dangerous where the plaintiffs asserted that several thousand compounds had been found in cigarette smoke, including, for example, carbon monoxide, nicotine, carbon dioxide, benzene, formaldehyde, Polonium-210, ammonia, nicotine sulfate, freon 11, hydrogen cyanide, and certain liver toxins known collectively as “furans” and that some of these compounds had been deliberately added to the cigarettes. Thomas v. R.J. Reynolds Tobacco Co., 11 F. Supp. 2d 850, 1998 U.S. Dist. LEXIS 11277 (S.D. Miss. 1998).

Miss. Code Ann. §11-1-63 precludes all product liability actions against tobacco companies; the harm from tobacco use has been well documented, and elimination of the sources of the harm would greatly reduce the desirability of cigarettes. Lane v. R. J. Reynolds Tobacco Co., 853 So. 2d 1144, 2003 Miss. LEXIS 211 (Miss. 2003), overruled in part, R. J. Reynolds Tobacco Co. v. King, 921 So. 2d 268, 2005 Miss. LEXIS 423 (Miss. 2005).

5. Substantial change.

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show a lack of substantial change after the doors left the manufacturer where a third party replaced the threshold sensor with a sensor that had been rebuilt, without the knowledge or approval of the defendant manufacturer. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

6. Adequate warnings.

Plaintiff’s attempt to prove her failure to warn claim through defendants’ marketing materials and internal documents expanded the claim beyond the statutory scope of the Products Liability Act; the only pertinent question is whether the prescription drug label contained adequate warnings or instructions. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Risperdal label warned physicians that tardive dyskinesia might develop in patients treated with antipsychotic drugs and whether antipsychotic drug products differed in their potential to cause tardive dyskinesia was unknown; the Risperdal label warned the doctor specifically of the danger of tardive dyskinesia in no uncertain terms and was sufficiently adequate as a matter of law. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Widow presented sufficient evidence that the sandblasting company breached its duty to provide adequate warnings, as there was sufficient evidence for a jury to find that, between 1960 and 1970, the company knew or in light of reasonably available knowledge should have known about the danger inherent in the use of silica in sandblasting operations, even as it related to a so-called bystander such as the decedent. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

Homeowners’ failure-to-warn claims against an odorant manufacturer and odorant distributor failed because the homeowners could not prove that ordinary users or consumers of odorant did not realize the potential for odorant fade. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Trial court erred in failing to grant a manufacturer’s motion for judgment notwithstanding the verdict regarding a worker’s failure to warn claim because the worker proffered no testimony that he read the instructions on a respirator or that had the instructions contained a use limitation or warning, such a warning or limitation would have altered his behavior. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Where an arrestee died after being tased, the brother’s failure to warn claim against the taser company failed because the product warnings explicitly and repeatedly warned of the risks of serious injury and death, and the brother produced no evidence demonstrating that the warnings the company provided were inadequate. Williams v. City of Cleveland, 736 F.3d 684, 2013 U.S. App. LEXIS 22205 (5th Cir. Miss. 2013).

Although Mississippi imposed no post-sale duty to warn, Miss. Code Ann. §11-1-63(c), there were numerous studies in existence prior to 2000 that linked joint cartilage toxicity with exposure to foreign substance. The presence of those studies raised a genuine issue of material fact as to whether the defendants reasonably should have known at the time of the plaintiff’s surgery of the danger their product posed and thereby failed to provide sufficient warning. Cross v. Amtec Med., Inc., 2012 U.S. Dist. LEXIS 141508 (S.D. Miss. Sept. 30, 2012).

Mississippi law does not require the best and most obvious warning but only adequate warning. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Warning may be held adequate as a matter of law where the adverse effect was one that the manufacturer specifically warned against. The presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiff’s damages. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Warning was adequate as it not only warned of the potential of rear tip over, but also provided explicit directions on how to avoid the possibility of rear tip over. Further, the purchaser could not prove that the manual’s inadequate warnings proximately caused his injury as he voluntarily made the decision to not read the manual. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

In plaintiffs’ suit for injuries caused by exposure to lead paint used in an apartment building over the course of 70 years, the manufacturer was granted summary judgment as to plaintiffs’ post-sale failure to warn claims because Miss. Code. Ann. §11-1-63 did not impose such a duty; however, fact issues remained as to the product’s defectiveness, causation, and damages based on measurable diminution of plaintiffs’ mental abilities. Jones v. NL Indus., 2006 U.S. Dist. LEXIS 33714 (N.D. Miss. May 24, 2006).

With regard to a product liability claim under Miss. Code Ann. §11-1-63(a)(i)(4), it is possible to rely on assertions in an ownership manual without having actually read them; thus, in a driver’s breach of warranty suit against a car manufacturer, although the driver had not read the owner’s manual prior to purchasing a car, the driver could show that she relied on a warranty in the ownership manual concerning air bags where the salesman conveyed that information to the driver prior to her purchase of the car. Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Parents of a minor girl who died as a result of injuries sustained in a car crash when the air bags deployed did not have a valid argument that the warnings in the owner’s manual for the car were inadequate. The parents and the daughters admittedly had not even read the owner’s manual in which the warnings were found. Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

Creating a post-sale duty to warn appeared to conflict with the language of Miss. Code Ann. §11-1-63(a)(1) and the appellate court declined to create such a post-sale duty to warn. Even had defendants been aware of allegations of brake failure, they were under no duty to disclose them, and under the circumstances, where among the reports in the record, only two dealt with complaints of similar brake failures prior to the time the vehicle was purchased, admission of the prior incident reports occurring after the date of sale would have been more prejudicial than probative. Noah v. GMC, 882 So. 2d 235, 2004 Miss. App. LEXIS 172 (Miss. Ct. App.), cert. denied, 882 So. 2d 772, 2004 Miss. LEXIS 1150 (Miss. 2004).

Summary judgment dismissal of wrongful death claims based on failure to warn and defective design was affirmed, where the decedent was electrocuted after raising a broadcast antenna mast into a power line. Austin v. Will-Burt Co., 361 F.3d 862, 2004 U.S. App. LEXIS 3897 (5th Cir. Miss. 2004).

As defendant, the manufacturer of a liner installed in a lagoon where a worker drowned, gave a sufficient warning of the dangers of the liner in its contract with the general contractor. The dangerous nature of the liner that it became slippery when wet, also would have been known to the ordinary user; therefore, the trial court properly granted the manufacturer summary judgment on grounds that plaintiff failed to prove the manufacturer breached a duty to the deceased worker. Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68, 2003 Miss. App. LEXIS 681 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 957 (Miss. 2004).

Manufacturer’s telescoping mast was not defectively designed nor unreasonably dangerous when it left the manufacturer’s control; it performed without incident for years and was labeled with adequate warnings pursuant to Miss. Code Ann. §11-1-63 and the relatives’ suit was dismissed. Austin v. Will-Burt Co., 232 F. Supp. 2d 682, 2002 U.S. Dist. LEXIS 26542 (N.D. Miss. 2002), aff'd, 361 F.3d 862, 2004 U.S. App. LEXIS 3897 (5th Cir. Miss. 2004).

In workers’ suit against manufacturers and suppliers of asbestos-containing products, remand to state court was warranted because the in-state defendants were not fraudulently joined; the complaint contained allegations that could create liability for the in-state defendants which were allegedly responsible for selling defective products that caused injury to the workers. Arrington v. AC & S, Inc., 2002 U.S. Dist. LEXIS 27636 (S.D. Miss. Aug. 27, 2002).

Non-diverse pharmacies were fraudulently joined in the patients’ negligence, fraud, and failure to warn action for damages based on injuries caused by the diverse manufacturers’ diet drugs because, in the face of the specific allegations of the manufacturers’ concerted, unabated fraud and concealment of the drugs’ true risks from virtually everyone, no factual basis could have been drawn for the general, conclusory charge that the pharmacies knew or had reason to know of the risks. Louis v. Wyeth-Ayerst Pharms., Inc., 2000 U.S. Dist. LEXIS 22694 (S.D. Miss. Sept. 25, 2000).

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show that adequate warnings or instructions were missing where at least one warning sticker was posted next to the doors and there was no evidence that the warning proposed by the plaintiff would have had any causative impact. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

7. Design defect.

Homeowners’ design-defect claims against an odorant manufacturer and odorant distributor failed because the homeowners offered no proof of a feasible alternative odorant design. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Purchaser immediately noticed that the wheelchair did not include anti-tip tubes; he and his son immediately tried to install the tubes from his old chair onto his new one because the purchaser recognized that he needed them. Despite his recognition that the chair did not have the safety feature he needed, the purchaser voluntarily decided to ride around in it; therefore, the purchaser assumed the risk of using a chair without anti-tip tubes as a matter of law. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Grant of summary judgment against the father in his action against the manufacturer and seller under theories of strict liability and negligence, alleging a design defect in a garage door opener and a failure to warn, was proper pursuant to Miss. Code Ann. §11-1-63(f)(ii) where the manufacturer designed its garage door opener to raise and lower the door when someone physically activated the device. It did not design the opener to open unless someone manually operated it and thus, the father failed to show that the product failed to function as expected. Glenn v. Overhead Door Corp., 935 So. 2d 1074, 2006 Miss. App. LEXIS 60 (Miss. Ct. App.), cert. dismissed, 936 So. 2d 367, 2006 Miss. LEXIS 434 (Miss. 2006).

8. — Open and obvious danger.

Grant of summary judgment in favor of the employer and manufacturer in the employee’s personal-injury action was proper because the employee needed no warning to understand the danger of coming into close proximity with the moving chains attached to a mule boy; he appreciated that it was a dangerous situation but did not turn off the machine. Green v. Allendale Planting Co., 954 So. 2d 1032, 2007 Miss. LEXIS 232 (Miss. 2007).

Trial court properly allowed a car manufacturer to present evidence that the danger of air bags opening were open and obvious to rebut the plaintiffs’ inadequate warning claim. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

9. Feasible design alternative.

In a products-liability case following a house fire allegedly started by a device in a truck, an expert’s description of one feasible design alternative failed as he changed his opinion from the witness stand, and refused to include an alternative adopted by the manufacturer, and did not provide sufficient data or support for a second alternative; his methodology failed Daubert’s reliability test, and the design-defect claim also failed. Brown v. Ford Motor Co., 121 F. Supp. 3d 606, 2015 U.S. Dist. LEXIS 103878 (S.D. Miss. 2015).

District court properly granted judgment as a matter of law to the corporation on the employee’s design defect claim under the Mississippi Products Liability Act (MPLA), Miss. Code Ann. §11-1-63 et seq., because the employee did not present the requisite evidence for a reasonable jury to find that a door was a MPLA feasible design alternative, and the employee’s only witness testifying about the forklift design, presented no opinion, however, that a door would be a MPLA feasible design alternative. Therefore, the evidence produced by the employee was not sufficient for a reasonable jury to find that the corporation’s forklift had a design defect that rendered the forklift unreasonably dangerous. Guy v. Crown Equip. Corp., 394 F.3d 320, 2004 U.S. App. LEXIS 25986 (5th Cir. Miss. 2004).

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show that a feasible alternative design existed at the time the door system was manufactured and installed where the plaintiff’s own expert witness testified that the proposed alternative design had a short life expectancy, was likely to fail and result in accidents, and was very costly. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

10. Prima facie case.

In a driver’s product liability suit pursuant to Miss. Code Ann. §11-1-63(a)(i)(4), a circuit court erred in granting a directed verdict to a manufacturer; the driver set forth a prima facie case for breach of warranty where the driver introduced evidence tending to show that, inter alia: (1) the owner’s manual for the manufacturer’s car stated that the air bag would deploy if the collision were “hard enough”; (2) the driver relied on that warranty, which had been conveyed by a salesman prior to the driver’s purchase of the car; (3) and where the collision was severe and was “hard enough” to warrant deployment of the air bag. Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

While foreseeability is an element of proof required by Miss. Code Ann. §11-1-63, a claimant must also offer a feasible design alternative. In the case at bar, fundamental to proving his prima facie case was plaintiff’s burden of proving that: (1) the handgun (which fired when it was dropped), was unreasonably dangerous by showing that the product seller knew or should have known about the unreasonably dangerous condition of the handgun; (2) that the handgun failed to function as expected, and; (3) that there existed a feasible design alternative that would have, to a reasonable probability, prevented the harm complained of by plaintiff. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

In a products liability case alleging a manufacturing defect, plaintiff bears the burden of persuasion as to the issue of proximate cause. Plaintiff’s failure to produce any evidence from which a reasonable juror could conclude that the claimed manufacturing defects proximately caused her accident is insurmountable. Johnson v. Davidson Ladders, Inc., 403 F. Supp. 2d 544, 2005 U.S. Dist. LEXIS 38806 (N.D. Miss. 2005), aff'd, 193 Fed. Appx. 349, 2006 U.S. App. LEXIS 20526 (5th Cir. Miss. 2006).

Manufacturer of a cleaning product that exploded was entitled to summary judgment in the user’s action for products liability. The user failed to establish a material fact question on inadequate warning and proximate cause. Kemp v. Biolab, Inc., 2005 U.S. Dist. LEXIS 34035 (S.D. Miss. June 22, 2005).

Manufacturer was entitled to a motion for a judgment notwithstanding the verdicts, pursuant to Miss. Code. Ann. §11-1-63, because the asbestos injury claimants failed to meet their burden of proof of showing that a dust mask and respirator were defective when made by the manufacturer, or that a required warning by the manufacturer was missing. 3M Co. v. Johnson, 895 So. 2d 151, 2005 Miss. LEXIS 43 (Miss. 2005).

Passengers’ suit against a car dealer was subject to remand because the passengers’ allegations–that the dealer sold a vehicle that was unreasonably dangerous, was defectively designed, and failed to contain adequate warnings–were sufficient to potentially state a cause of action for products liability against the dealer in state court. Thus, the dealer’s citizenship, which destroyed complete diversity, could not be ignored for purposes of determining subject matter jurisdiction under 28 U.S.C.S. § 1332. Stanton v. Ford Motor Co., 2003 U.S. Dist. LEXIS 26554 (N.D. Miss. June 30, 2003).

Where the consumer alleged that the seller sold the consumer an all-terrain vehicle that was unreasonably dangerous, was defectively designed, and failed to contain adequate warnings, these allegations were sufficient to potentially state a cause of action for products liability against the seller under Miss. Code Ann. §11-1-63. Jackson v. Kawasaki Motors Corp., 2003 U.S. Dist. LEXIS 26291 (N.D. Miss. Mar. 26, 2003).

Where there was at least one viable state-law claim with a possibility of recovery against the resident retail sellers with respect to the strict liability claim under Miss. Code Ann. §11-1-63, joinder of the diabetics’ claims was proper under Miss. R. Civ. P. 20; therefore, the the case was erroneously removed pursuant to 28 U.S.C.S. § 1332 and had to be remanded to the state court. Polk v. Lifescan, Inc., 2003 U.S. Dist. LEXIS 25762 (N.D. Miss. Sept. 19, 2003).

In a products liability action by minor passengers against the manufacturer and the seller of a vehicle for the injuries the passengers suffered in a one-vehicle accident, the passengers were entitled to have their case remanded to state court under 28 U.S.C.S. § 1447(c) after defendants removed it to federal court under 28 U.S.C.S. § 1441(a) on a claim that the passengers had fraudulently joined the seller as a defendant in order to defeat diversity jurisdiction under 28 U.S.C.S. § 1332(a), where the passengers stated a cause of action under Miss. Code Ann. §11-1-63 by alleging that the seller sold a defective and unreasonably dangerous vehicle that caused the passengers’ injuries. Stanton ex rel. Stanton v. Ford Motor Co., 2003 U.S. Dist. LEXIS 25157 (N.D. Miss. July 2, 2003).

Where the injured party asserted a products liability action pursuant to Miss. Code Ann. §11-1-63 alleging that the manufacturer’s defective water heater had caused the injured party’s burns, the manufacturer was entitled to summary judgment under Miss. R. Civ. P. 56; the injured party was unable to show that the manufacturer’s hot water heater had caused the injured party’s burns, because the hot water heater had to comply with all mandatory and voluntary government and industry standards, and housing and urban development inspected the water heater after the incident and found nothing wrong. Moore v. Miss. Valley Gas Co., 863 So. 2d 43, 2003 Miss. LEXIS 601 (Miss. 2003).

As a wrongful death plaintiff failed to prove that defendant – the manufacturer of a liner installed in a lagoon where a worker drowned – defectively designed the liner, having presented no evidence of industry standards or customs and no expert opinion showing the availablity of an alternate design that would have prevented the alleged harm without impairing the usefulness of the product, the trial court properly granted the manufacturer summary judgment. Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68, 2003 Miss. App. LEXIS 681 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 957 (Miss. 2004).

Decedent’s beneficiaries made a prima facie case of products liability against the manufacturer of a tire that had separated treads with the testimony of a tire expert that the manufacturer had made the tire that had separated treads from bad stock and the testimony of two employees of the manufacturer that the manufacturer had knowingly and intentionally used bad stock in the manufacture of tires. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

11. Evidence.

Judgment was properly entered for a worker for silicosis-related injuries caused by a manufacturer’s defective respirator because the worker’s evidence was sufficiently reliable to rise above a mere post hoc ergo proptor hoc finding of causation; the worker offered evidence of extremely dusty work conditions and testimony that concrete contained silica and that he suffered from silicosis, an injury known to be caused by silica overexposure. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Trial court erred in denying a builder’s motion for judgment notwithstanding the verdict because purchasers failed to provide sufficient evidence that reasonable jurors could not have found in favor of the builder; the purchasers did not substantiate a basis for a products-liability claim under Miss. Code Ann. §11-1-63(a) because any damage they claimed from a misplaced wire was irrelevant since they never technically lived in or owned the home. Cavalier Home Builders v. Baughman, 126 So.3d 899, 2012 Miss. App. LEXIS 790 (Miss. Ct. App. 2012), cert. dismissed, 2013 Miss. LEXIS 626 (Miss. Dec. 5, 2013).

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners offered only mere proof of damage following the use of the windows, which was insufficient under Miss. Code Ann. §11-1-63(a), (b), and (f). The fact that their windows leaked and rotted was insufficient for the design-defect claim to survive the motion for summary judgment. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

Per the plain language of the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63(c)(i) (2004), critical to the district court’s inquiry into a failure-to-warn claim was the question of what the manufacturers knew and what knowledge was reasonably available to them and as knowledge accumulates over time, prior knowledge of harm that predated plaintiffs’ employment was relevant to a question of current knowledge; evidence that some members of the welding industry had warnings on their products as far back as the 1940s, which were later removed due to concerns about the financial implications of such warnings, was directly relevant to rebut testimony. Accordingly, given the relevance of these documents to plaintiffs’ failure-to-warn claim under Mississippi law, the district court did not abuse its discretion in admitting them over the manufacturers’ objection. Jowers v. Lincoln Elec. Co., 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Trial court did not err in granting a manufacturer and an automobile dealership summary judgment in a breach of warranty action filed by a driver and her husband because they produced insufficient evidence of causation pursuant to Miss. Code Ann. §11-1-63(a); there had to be proof from which a jury could conclude that the vehicle’s airbag would have prevented the driver’s injuries, but there was no evidence from which a reasonable jury could conclude that but for the breach of warranty, the driver would not have been injured or her injuries would have been mitigated, Rowan v. Kia Motors Am., 16 So.3d 62, 2009 Miss. App. LEXIS 533 (Miss. Ct. App. 2009).

Former police officer’s recollection of being told that it was “extremely hard” to grab a weapon from a certain model holster corresponded closely to the “extremely difficult” language used in defendants’ advertisement. The officer’s testimony regarding the holster’s reputation for weapon retention suggested that representations regarding that quality were at least part of what made him purchase it, Miss. Code. Ann. §11-1-63(a)(1)(4). Johnson v. Michaels of Or. Co., 2009 U.S. Dist. LEXIS 17870 (N.D. Miss. Feb. 23, 2009).

Because a product liability action established by Miss. Code Ann. §11-1-63 was subject to a comparative fault defense, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence under Miss. Code Ann. §11-7-15. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

12. Jury instruction.

Trial court erred in giving a certain instruction without specifying every essential element of a negligent misrepresentation claim; the instruction omitted an essential element of the claim, specifically the requirement that the representation or omission was material or significant. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Defendants argued that the case did not concern the adequacy of any instructions regarding Risperdal, but this argument was rejected because the statute clearly provided that a product may be defective because it failed to contain adequate warnings or instructions, and the inclusion of the word “instructions” was not improper. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Combination of the claims for negligent marketing and negligent misrepresentation as if they were the same claim, sharing the same elements, was misleading and improper; a negligent marketing or negligent advertising claim is not cognizable under Mississippi law to the extent that it is not part of a claim for negligent misrepresentation. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Because the jury was instructed pursuant to the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, the trial court did not need to present the jury with a separate negligence instruction on inadequate warnings. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

13. Asbestos cases.

In an asbestos case alleging failure to warn, a manufacturer was not entitled to a sophisticated user/learned intermediary defense because (1) the manufacturer did not show the manufacturer warned an injured employee’s employer of a product’s hazards, and (2) a reasonable jury could conclude the manufacturer’s warnings to customers as a whole was inadequate. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

Trial court erred by granting a judgment notwithstanding the verdict to the asbestos suppliers and distributor by applying the survivors’ proof to the “frequency, regularity, and proximity” test instead of the statutory elements of a design defect products liability claim, because the test was to be applied solely in the context of summary judgment or directed verdict, and nothing in the Mississippi Products Liability Act created a separate class of litigation for asbestos cases. Smith v. Union Carbide Corp., 130 So.3d 66, 2013 Miss. LEXIS 642 (Miss. 2013).

In asbestos litigation in Mississippi, the proper test to be used is the frequency, regularity, and proximity standard to show product identification of the defendants’ actual products, exposure of the plaintiffs to those products, and proximate causation as to the injuries suffered by the plaintiffs. In the case at bar, the workers fell well short of meeting the Lohrmann test as adopted by the Mississippi Supreme Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss. 2005); for those reasons, the supreme court reversed the circuit court’s denial of summary judgment and rendered judgment in favor of the chemical company. Monsanto Co. v. Hall, 912 So. 2d 134, 2005 Miss. LEXIS 765 (Miss. 2005).

14. Reliance.

Purchaser did not present any evidence that the manufacturers made an express representation to him about the wheelchair, or any evidence that the purchaser relied on any information from the manufacturer at all; indeed, there was no evidence that the manufacturers had any interaction with the purchaser at all since the seller handled the sale. Therefore there was no factual or legal basis for a breach of an express warranty claim under the Mississippi Products Liability Act. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

In a personal injury products liability lawsuit, the tire maker argued that the decedent’s estate failed to prove that there was a manufacturing defect in the tire when it left the control of the maker or the seller; the maker claimed that the estate failed to show any actual deviation in the tire from the manufacturer’s specifications. However, the theory on which the case went to the jury was not that of a manufacturing-defect theory, but instead it was that the tire breached an express warranty or failed to conform to other express factual representations upon which the decedent justifiably relied in using the product pursuant to Mississippi Code Annotated section 11-1-63(a)(i)(4); therefore, there was no merit to the assignment of error. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

15. Preservation for review.

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners’ warranty claims were procedurally barred. The homeowners never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against the seller and that critical fact fundamentally distinguished the case from the warranty decisions relied upon by the homeowners. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

16. Proximate cause.

Trial court erred in granting manufacturers’ motion for judgment notwithstanding the verdict (JNOV) because a widow presented sufficient evidence from which a reasonable juror could find that her husband was exposed to the manufacturers’ products to a sufficient degree such that they could have been a proximate cause of his lung cancer. Smith v. Union Carbide Corp., 200 So.3d 1035, 2016 Miss. LEXIS 399 (Miss. 2016).

Trial court erred in denying a manufacture’s motion for judgment notwithstanding the verdict on the issue of a worker’s misuse of a respirator because the worker failed to show that the manufacturer was the proximate cause of his injury the worker’s testimony overwhelmingly showed the respirator was misused, and that the misuse materially altered the product’s condition after it left the manufacturer’s control. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Circuit court abused its discretion in granting a new trial, when a claimant alleged that a seller of sand’s failure to provide adequate warnings of the dangers of the inhalation of respirable silica caused the claimant’s silicosis, because insufficient evidence was adduced at trial to prove, by a preponderance of the evidence, that the seller’s sand caused the claimant’s silicosis. Dependable Abrasives, Inc. v. Pierce, 156 So.3d 891, 2015 Miss. LEXIS 51 (Miss. 2015).

Summary judgment was granted to a manufacturer in a product liability case under Miss. Code Ann. §11-1-63 due to a lack of proximate causation; neither the manufacturer’s failure to warn nor its alleged design defect proximately caused a renter’s eye injuries from a bungee cord. The renter’s awareness of the allegedly dangerous condition was fatal to a failure-to-warn claim; as to a design-defect claim, there was testimony that the renter would have attempted to restrain a machine’s movement, even if the wheels of the machine had been locked. Berry v. E-Z Trench Mfg., 772 F. Supp. 2d 757, 2011 U.S. Dist. LEXIS 15940 (S.D. Miss. 2011).

17. Innocent seller.

Mississippi Products Liability Act’s innocent seller provision entitled a seller to summary judgment for selling homeowners defective drywall because selling salvaged drywall as new was not excepted, as (1) the seller did not know the defects, (2) no labeling as new or alteration caused the harm alleged, and (3) knowing the drywall was salvaged was not knowledge of defects. Holifield v. City Salvage, Inc., 230 So.3d 736, 2017 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 483 (Miss. 2017).

Consumer’s claims against the brand manufacturers of metoclopramide failed as the Mississippi Products Liability Act shielded the brand manufacturers from liability for products they did not create; the consumer did not ingest the brand manufacturers’ products. Lashley v. Pfizer, Inc., 750 F.3d 470, 2014 U.S. App. LEXIS 3207 (5th Cir. Miss. 2014).

Mother’s motion to amend her complaint under Fed. R. Civ. P. 60 to add a medical retail store as a defendant in her action seeking damages for her son’s injury in a wheelchair was denied because the mother voluntarily dismissed the store under Fed. R. Civ. P. 41(a)(2), the statute of limitations of Miss. Code Ann. §15-1-49 had expired, and the court failed to perceive any legitimate basis for the mother’s insistence that she was duped into believing that she had purchased the wheelchair by the “innocent seller” arguments of the store and the wheelchair’s manufacturer under Miss. Code Ann. §11-1-63. Braswell v. Invacare Corp., 760 F. Supp. 2d 679, 2010 U.S. Dist. LEXIS 140025 (S.D. Miss. 2010).

Editor’s Notes —

Former §11-1-64 provided the procedure for dismissing a defendant whose liability is based solely on his status as a seller in the stream of commerce.

Laws of 2004, 1st ex. Sess., ch. 1, § 20, provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007; the remainder of this act shall take effect and be in force from and after September 1, 2004, and Sections 1 through 7 of this act shall apply to all causes of action filed on or after September 1, 2004.”

Editor’s Notes —

Laws of 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, redesignated (g) as (2); inserted (3) and (4); and redesignated former (2) as (5) and made stylistic changes in (5).

The 2004 amendment, 1st Ex Sess, ch. 1, made a stylistic change in (1)(c); deleted “or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought” at the end of (2); substituted “Five Million Dollars ($5,000,000.00)” for “Ten Million Dollars ($10,000,000.00)” in (3)(a)(iii); substituted “Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00)” for “Seven Million Five Hundred Thousand Dollars ($7,500,000.00)” in (3)(a)(iv); substituted “Two Million Five Hundred Thousand Dollars ($2,500,000.00)” for “Five Million Dollars ($5,000,000.00)” in (3)(a)(v); substituted “Two percent (2%)” for “Four percent (4%)” in (3)(a)(vi); deleted (3)(d), which read “The exceptions provided in paragraph (d) shall not apply to an employer of a person acting outside the scope of such person’s employment or responsibility as an agent or employee”; and deleted (5), which provided that subsections (1) and (2) did not apply to contracts, libel and slander, or asbestos actions.

Cross References —

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

RESEARCH REFERENCES

ALR.

Intoxication of automobile driver as basis for awarding punitive damages. 33 A.L.R.5th 303.

Validity of state statutory cap on punitive damages. 103 A.L.R.5th 379.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive. 54 A.L.R.5th 1.

Liability of vendor for food or beverage spilled on customer. 64 A.L.R.5th 205.

Liability of cigarette manufacturers for punitive damages. 108 A.L.R.5th 343.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription – Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Recovery of Punitive Damages for Exposure to Asbestos. 24 A.L.R. 6th 497.

See A.L.R. Index to Annotations under Punitive Damages.

Am. Jur.

22 Am. Jur. 2d, Damages §§ 556 et seq.

659, 661-667.

8 Am. Jur. Pl & Pr Forms (Rev), Damages, Forms 111-117, 311-322.

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 291.1 (Complaint, petition, or declaration-Action against manufacturers of asbestos products and distributors of diatomaceous earth – By employee).

23A Am. Jur. Pl & Pr Forms (Rev), Torts, Form 26.1 (Complaint, petition, or declaration – Negligent and intentional disregard for safety causing asbestos poisoning-Individual plaintiff).

CJS.

CJS, Damages §§ 117 et seq.

133, 159, 162(3), 188.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Litigation in Mississippi Today: A Symposium: Mississippi’s Civil Justice System: Problems, Opportunities and Some Suggested Repairs, 71 Miss. L.J. 395, Winter, 2002.

Litigation in Mississippi Today: A Symposium: Why Mississippi Needs to Pay Attention to National Trends on Punitive Damages, 71 Miss. L.J. 579, Winter, 2002.

Punitive Damages in Mississippi: What Has Happened, What Is Happening and What Is Coming Next, 73 Miss. L.J. 135, Fall, 2003.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

JUDICIAL DECISIONS

1. In general.

2. Breach of contract.

3. Torts.

4. Availability.

5. Bifurcated trials.

6. Bifurcated claims.

7. Burden of proof.

8. Calculation of net worth.

9. Attorney’s fees.

1. In general.

Trial court did not err in submitting the issue of punitive damages to the jury, as the jury heard evidence that the sandblasting company placed no warning on its sandbags even though silicosis had been a known danger of sandblasting for decades and the evidence permitted an inference that the company did nothing at all to warn of a known and deadly risk. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

Trial court did not abuse its discretion by ruling that a jury instruction on gross negligence was not to be presented as a separate cause of action, but was more appropriate in the context of determining punitive damages only after a determination of liability against an attorney. White v. Nelson, 196 So.3d 1039, 2016 Miss. App. LEXIS 4 (Miss. Ct. App.), cert. denied, 202 So.3d 612, 2016 Miss. LEXIS 332 (Miss. 2016).

Bankruptcy court refused to reconsider its ruling that a judgment an injured party obtained in a Mississippi court was nondischargeable under 11 U.S.C.S. § 523(a)(6) because the debtor committed a willful and malicious injury when he assaulted the injured party, or to review the state court’s judgment awarding actual and punitive damages. Under the Rooker-Feldman doctrine, the question of whether the state court incorrectly assessed damages had to be answered by the state court, and while the judgment entered by the state court appeared to be inconsistent with Miss. Code Ann. §11-1-65, insofar as the award of punitive damages was concerned, it was not void under Mississippi law and was not subject to collateral attack in the bankruptcy court. Montgomery v. Canerdy (In re Canerdy), 2010 Bankr. LEXIS 2230 (Bankr. N.D. Miss. July 6, 2010).

Award of punitive damages was appropriate under Miss. Code Ann. §11-1-65(1)(a) because the jury returned a verdict finding that the appellee daughter had misappropriated her mother’s assets and the record before the appellate court supported the findings of the jury and the chancellor. Ultimately, the decision to award punitive damages was within the discretion of the chancellor as fact-finder, and there was no error with that decision. DeMoville v. Johnson (In re DeMoville P'ship), 26 So.3d 366, 2009 Miss. App. LEXIS 286 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 37 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 32 (Miss. Jan. 28, 2010).

In an insurance dispute involving a bad faith claim, an insurer’s motion to bifurcate the compensatory and punitive damages phases of trial was granted because it was consistent with the provisions of Miss. Code. Ann. §11-1-65. Simpson v. Econ. Premier Assur. Co., 2006 U.S. Dist. LEXIS 64603 (N.D. Miss. Sept. 8, 2006).

In an insurance dispute involving a bad faith claim, an insurer’s motion to prohibit the admission of evidence of its net worth was granted as to the compensatory damages phase of the bifurcated trial, but Miss. Code. Ann. §11-1-65 required that the trier of fact consider such evidence at the punitive damages stage of trial. Simpson v. Econ. Premier Assur. Co., 2006 U.S. Dist. LEXIS 64603 (N.D. Miss. Sept. 8, 2006).

If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury; therefore, in a contract case, a circuit court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages under Miss. Code Ann. §11-1-65. Bradfield v. Schwartz, 936 So. 2d 931, 2006 Miss. LEXIS 449 (Miss. 2006).

Trial court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages pursuant to the statutory mandates of Miss. Code Ann. §11-1-65(1)(c), which expressly provided that if a properly instructed jury returned a verdict for compensatory damages against a party, the trial court “shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.” Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 1940 Miss. LEXIS 205 (Miss. 1939).

When the jury returned a verdict which resulted in a compensatory damages award, a punitive damages phase of trial should have automatically proceeded, consistent with the applicable statutory provisions of Miss. Code Ann. §11-1-65(1). Bradfield v. Schwartz, 2006 Miss. LEXIS 268 (Miss. May 18, 2006), sub. op., 936 So. 2d 931, 2006 Miss. LEXIS 449 (Miss. 2006).

In order for punitive damages to be awarded, the plaintiff must demonstrate a willful or malicious wrong, or a gross, reckless disregard for the rights of others; punitive damages are only appropriate in the most egregious cases. A bank customer was not entitled to punitive damages for a bank teller’s fraudulent withdrawal of money from the customer’s account where: (1) the bank made prompt restitution; (2) the act complained of was committed solely by a single bank teller; (3) the bank’s investigation of the matter was complete, thorough, and proper; and (4) considering the totality of the circumstances, the bank’s conduct indicated a thorough attempt to satisfactorily resolve the matter. Wise v. Valley Bank, 861 So. 2d 1029, 2003 Miss. LEXIS 874 (Miss. 2003).

A proposed settlement amount of $ 4.4 million (6.5% of defendant’s net worth), in an action largely involving compliance with governmental guidelines and not involving terrible personal injuries, was well within any arguable zone of reasonableness. Smith v. Tower Loan of Miss., Inc., 216 F.R.D. 338, 2003 U.S. Dist. LEXIS 11070 (S.D. Miss. 2003), aff'd, 91 Fed. Appx. 952, 2004 U.S. App. LEXIS 4955 (5th Cir. Miss. 2004).

In borrowers’ suit arising from allegedly fraudulent loan transactions, remand was not necessary, because agents were fraudulently joined and the $ 75,000 jurisdictional threshold was met based upon the unspecified claims for punitive damages. Ross v. First Family Fin. Servs., Inc., 2002 U.S. Dist. LEXIS 23212 (N.D. Miss. Aug. 26, 2002).

Punitive damages were properly awarded in a case where two armed bail bondsmen entered a mother’s home without a search warrant or other authority looking for her son, who had jumped bail. Milburn v. Vinson, 850 So. 2d 1219, 2002 Miss. App. LEXIS 562 (Miss. Ct. App. 2002), cert. dismissed, 2004 Miss. LEXIS 607 (Miss. May 27, 2004).

Trial court did not err in refusing to grant decedent’s estate’s request for a jury instruction covering punitive damages in a wrongful death suit against a corporation arising out of a car accident, when the evidence did not support a punitive damages instruction in light of the fact that, although the corporation’s employee was negligent in the operation of the tractor-trailer, he was not grossly negligent. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 2002 Miss. LEXIS 181 (Miss. 2002).

Punitive damages pursuant to Miss. Code Ann. §11-1-65 (1994) were undivided claims of right with a potentially separable award and collectively exceeded the diversity jurisdiction amount. Remand of action to State court was thus denied. Agnew v. Commercial Credit Corp., 2002 U.S. Dist. LEXIS 15060 (S.D. Miss. July 11, 2002).

It was error for the court to refuse to submit the issue of punitive damages to the jury in an action for invasion of privacy by disclosure of private facts and intentional infliction of emotional distress, notwithstanding the trial court’s determination that the defendant son acted out of a vendetta toward what he perceived to be improper business activity by a timber company in its relations with the plaintiff father, rather than out of malice toward his father, because the vendetta did not give the son the right to recklessly disregard his father’s right to privacy and did not justify the outrageous conduct demonstrated by the son in subjecting his father to commitment proceedings to further his own interests. McCorkle v. McCorkle, 811 So. 2d 258, 2001 Miss. App. LEXIS 9 (Miss. Ct. App. 2001).

In an action arising from a motor vehicle accident, the defendant corporation, which owned the truck that struck the plaintiff’s vehicle, was entitled to summary judgment on the plaintiff’s claim for punitive damages since (1) there was no evidence that the driver of the truck acted with the necessary extreme conduct which would allow a reasonable jury to return a verdict for punitive damages against him individually, (2) the corporation could not be held liable for punitive damages on the basis of vicarious liability, and (3) there was no evidence that the corporation acted with actual malice or gross negligence or committed fraud in its screening, training, or monitoring of its drivers or in failing to remove unsafe drivers from the road. Hasty v. George, 2000 U.S. Dist. LEXIS 444 (N.D. Miss. Jan. 10, 2000).

An action for retaliatory discharge and tortious breach of contract was a contract action to which this section did not apply. Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 1999 Miss. LEXIS 343 (Miss. 1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2219, 147 L. Ed. 2d 251, 2000 U.S. LEXIS 3836 (U.S. 2000).

Chancellor did not abuse his discretion in determining that punitive damages were appropriate where the plaintiffs clearly and convincingly proved that the defendant acted fraudulently. Holland v. Mayfield, 826 So. 2d 664, 1999 Miss. LEXIS 195 (Miss. 1999).

Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct in the future and should only be awarded in cases where the actions are extreme. Thomas v. Harrah's Vicksburg Corp., 734 So. 2d 312, 1999 Miss. App. LEXIS 59 (Miss. Ct. App. 1999).

The trial court’s decision to permit the jury to consider both compensatory and punitive damages at the same time at a point when, if the jury had been properly instructed, the issue of whether compensatory damages were to be awarded had not been resolved was in direct contravention of the statute, and, therefore, error. Harbin v. Jennings, 734 So. 2d 269, 1999 Miss. App. LEXIS 47 (Miss. Ct. App. 1999).

Under Mississippi law, customer could not receive punitive damages from casino for injuries sustained when cocktail waitress spilled hot coffee on his back, where customer admitted that someone bumped into waitress causing her to spill her tray of drinks and that waitress did not act with either malice or gross negligence. Spann v. Robinson Prop. Group, L.P., 970 F. Supp. 564, 1997 U.S. Dist. LEXIS 13037 (N.D. Miss. 1997).

Question of whether punitive damages could be recovered from life insurer in suit alleging tortious breach of contract, breach of fiduciary duties, and fraud was governed by common law, not by punitive damages statute. American Funeral Assur. Co. v. Hubbs, 700 So. 2d 283, 1997 Miss. LEXIS 249 (Miss. 1997).

2. Breach of contract.

In a case in which a jury awarded a judgment in favor of an insurance company after determining that the insureds had not demonstrated all of the necessary elements of their breach of contract claim by a preponderance of the evidence and the insureds filed a motion for reconsideration of summary judgment denying bad faith punitive damages, substantial evidence supported the jury’s determination that the insureds did not prove their breach of contract claim, which also required dismissal of their tortious breach of contract claim. Pursuant to Miss. Code Ann. §11-1-65, since they were not entitled to compensatory damages, they also were not entitled to punitive damages. Bryant v. Prime Ins. Syndicate, Inc., 2010 U.S. Dist. LEXIS 40976 (S.D. Miss. Apr. 27, 2010).

In an insured’s bad faith breach of contract suit against an insurer, the insured’s claim for punitive damages under Miss. Code Ann. §11-1-65(1)(a) was not sent to the jury because the evidence showed that the insurer undertook a proper investigation into the insured’s alleged disability before denying extended benefits, and thus, the insurer had not acted with malice, fraud, or gross negligence. Tarver v. Colonial Life & Accident Ins. Co, 294 Fed. Appx. 873, 2008 U.S. App. LEXIS 20777 (5th Cir. Miss. 2008).

In an action against an attorney for legal malpractice and tortious breach of contract, it was error to allow the issue of punitive damages to go the jury on the cause of action for breach of contract. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So. 2d 1347, 1998 Miss. LEXIS 116 (Miss. 1998).

3. Torts.

Punitive damages award against a drug manufacturer was affirmed where it stated that the award was reasonably and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition and that the evidence clearly supported an ongoing need to deter the manufacturer and others from engaging in fraudulent profit taking at the cost of the public trust, the public funds, the Medicaid program itself and the beneficiaries of the program, and it further explained that the manufacturer’s conduct was clearly reprehensible and had continued for a long period of time, and that the manufacturer clearly was aware of the misconduct and had attempted to conceal its actions. Watson Labs., Inc. v. State, 241 So.3d 573, 2018 Miss. LEXIS 7 (Miss. 2018).

There was sufficient evidence to meet the “clear and convincing” standard required for punitive damages under Miss. Code Ann. §11-1-65 in the employees’ intentional tort action against the employer and the court’s determination of the employer’s net worth at the time of judgment was proper. Franklin Corp. v. Tedford, 18 So.3d 215, 2009 Miss. LEXIS 426 (Miss. 2009).

Applying net worth of the employer at the time of trial in a workmans’ compensation case relating to intentional conduct of the employer, the circuit court properly reduced an award of punitive damages, pursuant to Miss. Code Ann. §11-1-65(3)(a)(v). Franklin Corp. v. Tedford, 2009 Miss. LEXIS 169 (Miss. Apr. 16, 2009).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the court denied the manufacturers’ postverdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) with respect to the $1.7 million in punitive damages awarded by the jury to the professional welder under Miss. Code Ann. 11-1-65; the jury was presented with evidence regarding what the manufacturers knew about the hazard of brain damage caused by manganese toxicity from welding fume exposure, when they knew it, what they did and did not do to investigate it, what actions they took and language they used to warn about it, and when, what the ongoing state of scientific knowledge was about it, and what standards were set by government and industry. All of these factors were relevant to the question of punitive damages, and the evidence presented showed that none of these factors was so weighty that it immunized the manufacturers from a jury finding that they acted with a willful, wanton, or reckless disregard for the safety of others; considering all of the evidence in the light and with all reasonable inferences most favorable to the professional welder, a reasonable jury could have concluded there was sufficient evidence to support an award of punitive damages. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the court denied the manufacturers’ postverdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) with respect to the $1.7 million in punitive damages awarded by the jury to the professional welder under Miss. Code Ann. 11-1-65 because the manufacturers provided no warning regarding the hazard of the brain injury the professional welder suffered despite substantial evidence of their knowledge that exposure to welding fumes could cause brain damage. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Where a married couple, in their products liability action against three welding rod manufacturers, advanced a valid justification for the award of attorneys’ fees that was widely recognized and accepted by courts applying Mississippi law: i.e., the manufacturer’s acted with gross negligence which evidences a willful, wanton or reckless disregard for the safety of others pursuant to Miss. Code Ann. §11-1-65(1)(a), and the proofs presented at trial provided a sufficient basis for a reasonable jury to conclude, by clear and convincing evidence, that the manufacturers were liable for punitive damages, the district court exercised its discretion to grant the married couple’s motion under Fed. R. Civ. P. 54(d) for an attorney’s fee award. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Because the finding that appellee operated the parties’ company with gross negligence, evidencing a willful, wanton, or reckless disregard for the financial security of the company, was supported by substantial evidence, the chancellor did not err by awarding appellant punitive damages based on appellee’s operation of the company; appellee admitted that he used the company’s funds for his personal expenses and for the expenses of his other two businesses, and the court-appointed accountant and the chancellor found that the company’s financial records were not properly maintained and were in poor condition. Griffith v. Griffith, 997 So. 2d 218, 2008 Miss. App. LEXIS 715 (Miss. Ct. App. 2008).

In a medical malpractice and wrongful death case, where there was no evidence that the doctor demonstrated a wilful or malicious wrong or a gross and reckless disregard for the rights of others, an award of punitive damages was improper. Further, punitive damages should not have automatically been submitted to the jury by the trial court; rather, a jury should only be permitted to consider punitive damages if the trial judge determines, under the totality of the circumstances and in light of the defendant’s conduct, that a reasonable, hypothetical juror could have identified either malice or gross disregard for the rights of others. Causey v. Sanders, 998 So. 2d 393, 2008 Miss. LEXIS 520 (Miss. 2008).

In an action in which a beneficiary filed suit against an insurance company alleging claims of tortious breach of contract, breach of fiduciary duty and duty of good faith and fair dealing, negligence, gross negligence, and intentional infliction of emotional distress, the insurance company was granted summary judgment where: (1) the insured executed a voluntary statement to police that her husband had stabbed her with a knife and a month after the knife wound, the insured died in her bed; (2) no reasonable juror could conclude that the insurance company acted with malice, gross negligence, or reckless disregard in wanting to review the autopsy report; and (3) the delay in receiving the autopsy report was due in part to the beneficiary’s failure to inform them of his address change. Washington v. Am. Heritage Life Ins. Co., 500 F. Supp. 2d 610, 2007 U.S. Dist. LEXIS 54120 (N.D. Miss. 2007).

In a debtor’s conversion action against a bank, the trial court erred in denying the bank’s motion for JNOV as to punitive damages as the only evidence that remotely approached one of the statutory requirements was a bank employee’s alleged out-of-court statement regarding his intention to put the debtor out of business. This self-serving hearsay statement was not clear and convincing evidence of actual malice, gross negligence, or the commission of actual fraud. Cmty. Bank v. Courtney, 884 So. 2d 767, 2004 Miss. LEXIS 1321 (Miss. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, the trial court did not err in refusing to submit the issue of punitive damages to the jury as the evidence showed that the company thought the property in question belonged to the neighbor (who hired the company) and did not reenter the property once it was aware of the trespass. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

Award of punitive damages in favor of the borrower in the borrower’s action for conversion was improper under Miss. Code Ann. §11-1-65 because there was insufficient evidence to support a jury charge on that issue. A self-serving hearsay statement by a bank employee that he was going to put the borrower out of business was in no way clear and convincing evidence of actual malice, gross negligence, or the commission of actual fraud. Cmty. Bank v. Courtney, 2004 Miss. LEXIS 656 (Miss. June 10, 2004).

Once a jury returned a verdict in a customer’s favor on a claim sounding in conversion, it was the appropriate time to consider the issue of an unresolved claim for punitive damages under Miss. Code Ann. §11-1-65(1)(c). Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Even assuming that a trial court erred when it failed to take up punitive damages without any further prompting from a customer after a jury awarded damages on a claim sounding in conversion, the customer waived his right to complain by not raising the issue while the jury was still empaneled. Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Trial court did not commit plain error when it failed to proceed on punitive damages after a jury returned a verdict of actual damages on a customer’s claim sounding in conversion; the customer had no fundamental right to a possible assessment of punitive damages because he had already been made whole by the verdict for actual damages. Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Employee admitted to not following the store policy regarding shoplifters, ignored the policy, followed the guest from the store on her own initiative, accused the guest of shoplifting, and committed the tort of assault by grabbing the guest by her underwear; because there was no proof that the store had any knowledge of prior incidents committed by the employee and the employee was acting on her own initiative, pursuant to Miss. Code Ann. §11-1-65(1)(a), punitive damages against the store should not have been allowed and the appellate court reversed and rendered the punitive damages assessed against the store. Gamble v. Dollar Gen. Corp., 852 So. 2d 5, 2003 Miss. LEXIS 352 (Miss. 2003).

In a products liability case, the trial court did not err in refusing to submit the punitive damages issue to the jury because there was no clear and convincing evidence of malice or gross negligence. Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

Where there was no evidence that a new employer had the intent to harm a former employer by hiring a performer that was under contract, the issue of punitive damages should not have been submitted to the jury in a tortious interference with contractual relations case. Neider v. Franklin, 844 So. 2d 433, 2003 Miss. LEXIS 58 (Miss. 2003).

In a mother’s suit against a camp counselor and his employer, based on the mother’s claim that her child had been sexually assaulted by the counselor, the trial court properly refused to give a punitive damages instruction; the counselor was not acting within the scope of his employment at the time of the assault, the employer did not benefit from the assault, the jury did not find that the employer knew of the counselor’s homosexual tendencies, and a reasonable jury could not find malice, gross neglect, or reckless disregard by the employer. Doe v. Salvation Army, 835 So. 2d 76, 2003 Miss. LEXIS 29 (Miss. 2003).

In the absence of any proof that commercial lenders regularly maintained a system of cross-referencing loans and the bank’s prospective purchases, the failure to institute that system was not reckless or gross behavior warranting punitive damages; thus, the award of punitive damages was improper and the Supreme Court reversed and rendered the award. AmSouth Bank v. Gupta, 838 So. 2d 205, 2002 Miss. LEXIS 357 (Miss. 2002).

Remittitur was ordered in a case involving an employer’s bad faith failure to pay worker’s compensation benefits because the punitive damages awarded were excessive where the evidence did not show that the employer’s conduct met the required degree of reprehensibility under Miss. Code Ann. §11-1-65(1)(a). Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

In an automobile accident case, plaintiff was not entitled to punitive damages under Miss. Code Ann. §11-1-65 law where facts showed defendant did not run stop sign, did not fail to check vehicle’s speed, tried to take evasive action to avoid accident, had not consumed alcohol, and did not leave the scene of the accident; defendants’ conduct did not amount to gross negligence and accordingly, defendants were entitled to partial summary judgment on the issue of punitive damages. Terrell v. W.S. Thomas Trucking, Inc., 2001 U.S. Dist. LEXIS 25455 (N.D. Miss. Mar. 6, 2001).

Beneficiaries of decedent met their burden of proof against tire manufacturer in products liability suit through the testimony of employees of the tire manufacturer who stated that in the course of their many years of employment with the tire manufacturer, they had personal knowledge that bad stock had been used in the manufacture of tires. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

A simple mathematical formula cannot be used to determine whether a punitive damage award is excessive or constitutional. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

Plaintiff in a wrongful death case was not entitled to a jury instruction on punitive damages, as there was no showing of a causal nexus between the defendant’s alleged gross negligence and the fatal accident. Choctaw Maid Farms, Inc. v. Hailey, 2001 Miss. LEXIS 302 (Miss. Oct. 31, 2001).

Operating a motor vehicle on a public street while under the influence of intoxicants to the extent that the driver’s abilities were substantially impaired demonstrated the kind of gross negligence contemplated in Miss. Code Ann. §11-1-65(1)(a) (Rev. 1991) and punitive damages were therefore proper. Savage v. Lagrange, 2001 Miss. App. LEXIS 528 (Miss. Ct. App. Dec. 18, 2001).

In an action arising from an accident in which a tractor-trailer rear-ended a tractor, the defendants were entitled to summary judgment on the issue of punitive damages where the plaintiff failed to bring forth any evidence of an action by the defendants that amounted to gross negligence or reckless disregard for others and the defendants brought forth evidence that the truck driver was not under the influence of drugs or alcohol while operating the tractor-trailer. Miller v. Hunt, 2000 U.S. Dist. LEXIS 9924 (N.D. Miss. July 6, 2000).

4. Availability.

After a district court awarded punitive damages based upon evidence of willful and malicious acts of conversion by a bankruptcy debtor, and the bankruptcy court properly gave preclusive effect to its decision and held the debt nondischargeable, the award of punitive damages was also nondischargeable. Blake v. Custom Recycling Servs., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 148840 (N.D. Miss. Nov. 3, 2015).

Chapter 13 debtor who prevailed in an adversary proceeding she filed against a consumer financial services business and a person who owned the business, on her claim alleging that she could recover title to a mobile home she transferred to the owner because the transfer was constructively fraudulent under 11 U.S.C.S. § 548, was awarded punitive damages, attorney’s fees, and costs; although Mississippi law did not favor punitive damages, they were appropriate in this case under Miss. Code Ann. §11-1-65 because the owner misrepresented the nature of the transaction and did not provide the debtor with complete discovery, and because the debtor was entitled to an award of punitive damages she could also recover her attorney’s fees and costs. Nickelson v. Franklin Check Serv., LLC (In re Nickelson), 552 B.R. 149, 2016 Bankr. LEXIS 2310 (Bankr. S.D. Miss. 2016).

In a case in which plaintiff claimed he was terminated for reporting an illegal kickback scheme, the circuit court erred in denying a punitive-damages instruction without conducting an evidentiary hearing to determine whether punitive damages were appropriate. Roop v. Southern Pharms. Corp., 188 So.3d 1179, 2016 Miss. LEXIS 146 (Miss. 2016).

Chancellor properly declined to award actual damages, punitive damages, or attorney’s fees to the owners because the neighbors’ conduct was not malicious in any way, they had reason to believe that the restrictive covenants at issue no longer applied, stopped cutting trees upon being served with a restraining order, and the restrictive covenants failed to address the issue of attorney’s fees. Robertson v. Catalanotto, 205 So.3d 666, 2016 Miss. App. LEXIS 52 (Miss. Ct. App. 2016).

When a pharmaceutical provider reported false drug prices to a third party knowing the State of Mississippi would rely on that information to calculate Medicaid reimbursements to pharmacies for those drugs, the State’s recovery of punitive damages was properly limited by Miss. Code Ann. §11-1-65(3)(a) because the statute plainly applied to actions by the State. Sandoz, Inc. v. State (In re Miss. Medicaid Pharm. Average Wholesale Price Litig.), 190 So.3d 829, 2015 Miss. LEXIS 545 (Miss. 2015).

Tenant was properly awarded punitive damages against landlords, even though the award allegedly exceeded the landlords’ net worth, because, inter alia, proof of the landlords’ net worth was not a prerequisite. Lang v. Beasley, 159 So.3d 593, 2014 Miss. App. LEXIS 491 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 143 (Miss. 2015).

In an asbestos case alleging failure to warn, an award of punitive damages had to be vacated because the trial court’s unnecessary comments indicated the trial court considered the jury’s compensatory damages award to be inadequate. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

In an asbestos case alleging failure to warn, the issue of punitive damages was properly submitted to a jury because (1) there was evidence that the manufacturer knew the manufacturer’s OSHA-compliant warning was inadequate but the manufacturer did nothing to supplement the warning, (2) the jury was adequately instructed on the issue, and (3) a prior release did not address punitive damages. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

Insureds were not entitled to punitive damages, Miss. Code Ann. §11-1-65(1)(a), regarding an insurer’s alleged bad faith delay in paying an uninsured motorist claim because the reason for the delay was the insurer’s ongoing investigation concerning causation and evaluation of the claim, and, as such, the insurer had an arguable reason for the delay; the insurer ultimately tendered full payment of the claim. James v. State Farm Mut. Auto., Ins. Co., 2011 U.S. Dist. LEXIS 48845 (S.D. Miss. May 6, 2011), aff'd in part and rev'd in part, 719 F.3d 447, 2013 U.S. App. LEXIS 12816 (5th Cir. Miss. 2013), aff'd in part and rev'd in part, 743 F.3d 65, 2014 U.S. App. LEXIS 1741 (5th Cir. Miss. 2014).

It was undisputed that the trucking company collected payment for all of the work performed by the construction company, that, as a matter of law, the contract was modified to include all of the work performed by the construction company, and that the trucking company blatantly breached its promise to compensate the construction company; moreover, the construction company provided sufficient proof that the trucking company acted in bad faith, with complete disregard for the construction company’s rights, seeking to reap the benefits of its contract while at the same time denying its obligations. Based on the evidence, a reasonable juror could find that the trucking company had breached the contract either maliciously, by an intentional wrong, or with reckless disregard for the construction company’s rights; therefore, the trial court erred by not submitting the issue of punitive damages to the jury pursuant to Miss. Code Ann. §11-1-65(1)(c)-(d). T.C.B. Constr. Co. v. W. C. Fore Trucking, Inc., 134 So.3d 701, 2013 Miss. LEXIS 49 (Miss. 2013).

Insureds were not entitled to punitive damages because an insurer did not breach its contract of insurance or deny coverage in bad faith for two underlying lawsuits. Mitchell v. State Farm Fire & Cas. Co., 799 F. Supp. 2d 680, 2011 U.S. Dist. LEXIS 69777 (N.D. Miss. 2011).

Facts established by the record did not support the imposition of punitive damages becuase the facts known to, or reasonably knowable by defendant prior to the time the borrower was finally deposed, did not support a reasonable finding that defendant lacked a legitimate or arguable reason for its position, or that it had breached its duty to conduct a reasonable investigation. Peoples Bank of the S. v. Bancinsure, Inc., 753 F. Supp. 2d 649, 2010 U.S. Dist. LEXIS 116176 (S.D. Miss. 2010), dismissed, 2011 U.S. Dist. LEXIS 156159 (S.D. Miss. July 7, 2011).

Where punitive damages were not available under Miss. Code Ann. §11-1-54(1)(a) in a personal injury suit based on a vehicular collision because the driver’s conduct amounted to only simple negligence in failing to operate a vehicle in a safe manner and maintain a proper lookout, but it did not constitute willful or wanton disregard for the safety of others, such damages were also unavailable against the driver’s employer on a theory of vicarious liability. Dawson v. Burnette, 650 F. Supp. 2d 583, 2009 U.S. Dist. LEXIS 62579 (S.D. Miss. 2009).

Punitive damages were not available under Miss. Code Ann. §11-1-54(1)(a) in a personal injury suit based on a vehicular collision because defendants’ conduct amounted to only simple negligence in failing to operate a vehicle in a safe manner and maintain a proper lookout, but it did not constitute willful or wanton disregard for the safety of others. Dawson v. Burnette, 650 F. Supp. 2d 583, 2009 U.S. Dist. LEXIS 62579 (S.D. Miss. 2009).

Insured was not entitled to punitive damages under Miss. Code Ann. §11-1-65 for an insurer’s alleged bad faith delay in commencing a claims investigation because the terms of the policy at issue required the insured to survive for 180 days after his accident before becoming eligible for disability benefits, and the insurer commenced the investigation at end of the 180-day period, evidencing no willful, wanton, or fraudulent conduct by the insurer. Barnes v. Stonebridge Life Ins. Co., 624 F. Supp. 2d 574, 2009 U.S. Dist. LEXIS 21623 (S.D. Miss. 2009).

In an easement dispute, punitive damages were properly awarded under Miss. Code Ann. §11-1-65(1)(a) where a commercial property owner removed a sign with a blow torch, engaged in harassment, demanded payment for parking and signage covered under the easement, installed parking bumpers, and erected a fence on neighboring property. Warren v. Derivaux, 996 So. 2d 729, 2008 Miss. LEXIS 590 (Miss. 2008).

Casino patron’s Miss Code Ann. §11-1-65 claim for punitive damages in connection with injuries she allegedly sustained when a cocktail waitress dropped a tray of drinks on or near the patron, while attempting to serve another customer, failed because there was no evidence that the waitress acted with gross negligence when she dropped the tray after the customer unexpectedly and excitedly threw up her hands after winning a poker game. Callender v. Imperial Palace of Miss., LLC, 2008 U.S. Dist. LEXIS 71292 (S.D. Miss. Sept. 19, 2008).

After a guardianship account was drained, the wards prevailed in their suit against the bank for breaching its duty by allowing the funds on deposit to be converted without a court order. Because the evidence established that the bank was not grossly negligent and did not engage in fraud or intentional misconduct, the chancery court erred in awarding punitive damages against the bank under Miss. Code Ann. §11-1-65. Williams v. Duckett (In re Duckett), 991 So. 2d 1165, 2008 Miss. LEXIS 307 (Miss. 2008).

Under Miss. Code Ann. §11-1-65, the issue of whether two insureds were entitled to punitive damages should not have been sent to the jury because the insureds did not show that their homeowner’s insurer acted with actual malice in processing their claim, and the insurer had an arguable basis for denying the insureds’ claim, as evidence showed that the home was destroyed by flooding, a peril that was excluded from coverage; the insurer reasonably relied on a valid and enforceable anti-concurrent causation clause in denying coverage; and the insurer extensively investigated the insureds’ claim to determine whether the destruction of the home was caused by flooding or by hurricane winds, which was a covered peril. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Under Miss. Code Ann. §11-1-65, punitive damages should not have been awarded against a homeowner’s insurer in two insureds’ suit to recover policy proceeds and damages for bad faith; although the insurer advanced an unsuccessful legal position regarding the allocations of burdens of proof, it was not liable for punitive damages for advancing a legal argument over a disputed issue. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Under Miss. Code Ann. §11-1-65, punitive damages should not have been awarded against a homeowner’s insurer in two insureds’ suit to recover policy proceeds and damages for bad faith; although the insurer withheld payment after its expert opined that some of the damage to the insureds’ home was caused by wind, a peril that was covered under the policy, the insurer had advanced $ 2,000 to the insureds within 10 days after the destruction of the home, and the insureds had a two percent deductible, the combined sums of which may have been adequate to cover the damages caused by wind. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Employee was not entitled to punitive damages under Miss. Code Ann. §11-1-65 as to his claim that an insurer and its management company acted in bad faith in waiting four months to approve surgery for the employee’s work-related injury because (1) the evidence showed that the employee caused the delay by refusing to release his medical records and by making misstatements about his prior related injuries; (2) the management company was entitled to investigate whether the prior injuries contributed to the current injury for purposes of determining coverage; and (3) the management company did not violate the 48-hour rule in § IV(A)(1) of the Utilization Management Guidelines of the Official Mississippi Uniform Worker’s Compensation Fee Schedule because it approved the surgery within 2 days of receiving all of the information necessary to make the coverage decision. McLendon v. Wal-Mart Stores, Inc., 521 F. Supp. 2d 561, 2007 U.S. Dist. LEXIS 81264 (S.D. Miss. 2007).

Lessees were properly awarded punitive damages where the landman stopped production of the well and after only a few months had passed, contrary to the interest of the lease and the lessees’ interest, the landman contacted the landowner to negotiate and obtain a new lease for the well, and upon the execution of a new lease the landman resumed production from the well; the lessees claimed that they were never informed that the well was to be shut down by the landman. Gill v. Gipson, 982 So. 2d 415, 2007 Miss. App. LEXIS 520 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 238 (Miss. 2008).

Because an insured failed to prove that she suffered damages as a direct and proximate result of any reasonable reliance on any perceived negligent misrepresentation by an insurer and its agent, she could not prevail on her claim of negligent misrepresentation, nor was she entitled to a jury’s award of punitive damages pursuant to Miss. Code Ann. §11-1-65(c). Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 2007 Miss. LEXIS 398 (Miss. 2007).

It was not clear whether the court should have submitted the question of punitive damages to the jury before discovery was completed in a case involving the alleged forgery of a divorcee’s signature by her former husband on vehicle lease and purchase agreements since the court could not determine from the summary judgment evidence whether the divorcee had established the elements for an award of punitive damages set forth in Miss. Code Ann. §11-1-65(1)(d) against the dealership. Dowdy v. Palmer, 2006 U.S. Dist. LEXIS 3176 (S.D. Miss. Jan. 19, 2006).

Because the customer, in his action against the dealership for breach of contract, fraud, and infliction of emotional distress, failed to present evidence of compensatory damages, it was impossible to consider punitive damages under Miss. Code Ann. §11-1-65. Sumler v. East Ford, Inc., 915 So. 2d 1081, 2005 Miss. App. LEXIS 981 (Miss. Ct. App. 2005).

5. Bifurcated trials.

Tenant was properly awarded punitive damages against landlords because, inter alia, the landlords were not denied an evidentiary hearing, as the record reflected that the landlords had no further evidence to present. Lang v. Beasley, 159 So.3d 593, 2014 Miss. App. LEXIS 491 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 143 (Miss. 2015).

In a suit in which two insureds alleged that they were owed proceeds under two property insurance policies and were also seeking punitive damages for the insurer’s alleged bad faith and delays in payment, a bifurcated trial was ordered to be held in accordance with Miss. Code Ann. §11-1-65. Letoha v. Nationwide Mut. Ins. Co., 2008 U.S. Dist. LEXIS 30865 (S.D. Miss. Feb. 28, 2008).

In a case involving a dispute over claimed insurance coverage, the court granted the insurer’s request for a bifurcated trial, in accordance with Miss. Code Ann. §11-1-65, ruling that the issue of punitive damages would be tried separately from other issues in the case, such as coverage, liability, and actual damages. Fowler v. State Farm Fire & Cas. Co., 2008 U.S. Dist. LEXIS 63312 (S.D. Miss. July 25, 2008).

6. Bifurcated claims.

Although a jury ruled in favor of an insured in a dispute over policy proceeds for the loss of the insured’s home due to fire, the court did not send the insured’s punitive damages claim to the jury as the insured did meet the standard under Miss. Code Ann. §11-1-65 of showing that the insurer acted with malice, fraud, or gross negligence in denying the claim where the insurer suspected that the insured had committed arson, thus causing the loss of the home. GuideOne Ins. Co. v. Bridges, 2009 U.S. Dist. LEXIS 16035 (S.D. Miss. Mar. 2, 2009).

In insureds’ suit asserting claims for breach of insurance policies and bad faith with regard to payment of the insureds’ property damage claims related to Hurricane Katrina, bifurcation of the insureds’ coverage and punitive damages claims was appropriate under Miss. Code Ann. §11-1-65; however, because it was difficult to consider the issues of coverage and breach of contract without some information regarding the claims handling process, some evidence about that process would be allowed. Ross v. Metro. Prop. & Cas. Ins. Co., 2008 U.S. Dist. LEXIS 81114 (S.D. Miss. Aug. 25, 2008).

7. Burden of proof.

Chancery court erred by awarding the dominant owner punitive damages without requiring the dominant owner to prove by clear and convincing evidence that the subservient owner’s actions were malicious. Muirhead v. Cogan, 158 So.3d 1259, 2015 Miss. App. LEXIS 121 (Miss. Ct. App. 2015).

Trial court did not abuse its discretion denying a subcontractor’s claim for punitive damages because, while the contractor breached the parties’ contract by refusing to complete payment to the subcontractor and the contractor’s contention that the subcontractor received full payment was legally inaccurate, the subcontractor failed to prove the contractor acted in bad faith or breached its fiduciary duty to the subcontractor. Bar-Til, Inc. v. Superior Asphalt, Inc., 164 So.3d 1028, 2014 Miss. App. LEXIS 452 (Miss. Ct. App. 2014).

Builder’s claim that homeowners’ failure to prove some net worth of the builder precluded an award of punitive damage had no merit because the homeowners had no burden to establish that the builder had the financial ability to pay a punitive damage award. Woodkrest Custom Homes Inc. v. Cooper, 108 So.3d 460, 2013 Miss. App. LEXIS 24 (Miss. Ct. App. 2013).

Award of punitive damages was improper because, by instructing the jury that it could award punitive damages pursuant to a preponderance-of-evidence standard, the circuit court’s instruction relaxed the necessary burden of proof and in turn, it committed a clear error of law under Miss. Code Ann. §11-1-65(1)(a). AmFed Cos., LLC v. Jordan, 34 So.3d 1177, 2009 Miss. App. LEXIS 557 (Miss. Ct. App. 2009).

8. Calculation of net worth.

Because neighbors failed to provide evidence sufficient to enable the trial court to make a determination of their net worth, the trial court was not required to apply the statutory formula based on speculation or guesswork; the neighbors failed to make a full and complete disclosure of their assets in their bankruptcy filings and could have understated the value of their property or other assets. Moore v. McDonald, 210 So.3d 563, 2017 Miss. App. LEXIS 61 (Miss. Ct. App. 2017).

When a pharmaceutical provider reported false drug prices to a third party knowing the State of Mississippi would rely on that information to calculate Medicaid reimbursements to pharmacies for those drugs, the provider’s net worth was properly calculated for purposes of a punitive damages award because the provider’s most recent net worth using generally accepted accounting principles was used. Sandoz, Inc. v. State (In re Miss. Medicaid Pharm. Average Wholesale Price Litig.), 190 So.3d 829, 2015 Miss. LEXIS 545 (Miss. 2015).

9. Attorney’s fees.

Town and school district were not entitled to an award of attorney’s fees as punitive damages against a county because the court did not find the county’s conduct was so extreme and outrageous that the county should bear the expense of litigation. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

Editor’s Notes —

Laws of 2004, 1st ex. Sess., ch. 1, § 20, provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007; the remainder of this act shall take effect and be in force from and after September 1, 2004, and Sections 1 through 7 of this act shall apply to all causes of action filed on or after September 1, 2004.”

Amendment Notes —

The 2004 amendment, 1st Ex Sess, ch. 1, rewrote the section, which formerly read: “No owner, occupant, lessee or managing agent of property shall be civilly liable for the criminal acts of a third party, unless such owner, occupant, lessee or managing agent knew or, with the exercise of reasonable care, should have known of the risk of criminal conduct on such property and the failure to exercise reasonable care to deter such foreseeable conduct is a proximate cause of damages to an individual or entity.”

JUDICIAL DECISIONS

1.-2. [Reserved for future use.]

3. Independent contractor or employee.

4. No duty to warn.

1.-2. [Reserved for future use.]

3. Independent contractor or employee.

Appellant claimed that the business knew about the oil pits on appellant’s property and that knowledge was imputed to appellee, who was an independent contractor; however, while appellant claimed the business’s knowledge was undisputed, the testimony suggested otherwise, and appellee testified that there was no indication of the presence of oil pits, and the danger of falling into one did not arise out of and was not connected with the work appellee performed as a delivery driver. Fairley Constr. Servs. v. Savage, — So.3d —, 2019 Miss. App. LEXIS 61 (Miss. Ct. App. Jan. 31, 2019).

Mississippi Court of Appeals declined to extend the limited exception for licensees in Hoffman v. Planters Gin Co., 358 So. 2d 1008 (Miss. 1978), to this statute. Therefore, in a negligence case, a property owner was immune from liability because an independent contractor either knew or should have known of the allegedly dangerous conditions involving a forklift that he had driven for more than a year before a fall; moreover, he knew that the stairs were wet, grimy, and dirty before he fell on them. Tanner v. Roseburg Forest Prods. S., 185 So.3d 1062, 2016 Miss. App. LEXIS 31 (Miss. Ct. App. 2016).

Operator of a nuclear power plant was entitled to summary judgment on an injured employee’s premises liability lawsuit because the operator had no duty to warn an independent contractor and its employee of dangers inherent in the job when the employee for the independent contractor was injured in a fall. McSwain v. Sys. Energy Res., Inc., 97 So.3d 102, 2012 Miss. App. LEXIS 508 (Miss. Ct. App. 2012).

4. No duty to warn.

In a case in which plaintiffs were injured when they fell to the ground after the scaffolding for the second-story formwork collapsed, the circuit court properly granted summary judgment in favor of the property owner because the property owner had no duty to warn plaintiffs about the condition of the scaffolding as it did not exist at the time that the property owner surrendered control of the property to the general contractor; and the property owner had no control over any aspect of the scaffolding. McKean v. Yates Eng'g Corp., 210 So.3d 1037, 2015 Miss. App. LEXIS 446 (Miss. Ct. App. 2015), aff'd, 200 So.3d 431, 2016 Miss. LEXIS 385 (Miss. 2016).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

JUDICIAL DECISIONS

3. Damages not hedonistic.

4. Jury instructions.

3. Damages not hedonistic.

In a personal injury products liability lawsuit, an award of damages to the decedent’s estate was not inflammatory or in violation of Miss. Code Ann. §11-1-69(2) because, considering the actual damages and the testimony of the decedent’s mother as to the family’s loss of society and companionship of a young son and brother on the verge of manhood, and the pain and suffering that he must have experienced between the time of the tire’s rupture when he was alive and when the rolling automobile stopped against a tree and he was dead, the jury’s award was proper. There was evidence to support the damages, and the jury award to the estate was not based upon hedonic damages. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

4. Jury instructions.

In a beneficiary’s wrongful death suit against a doctor, the trial court committed reversible error in instructing the jury that it could consider the “value of life” of the decedent in awarding damages because Miss. Code Ann. § 11-1- 69(2) stated that in any wrongful death action, there would be no recovery for loss of enjoyment of life caused by death. Laney v. Vance, 112 So.3d 1079, 2013 Miss. LEXIS 171 (Miss. 2013).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Editor’s Notes —

Former §11-3-1 specified the return days for appeals.

Cross References —

Appeal in habeas corpus, see §§11-43-53,11-43-55.

Conclusiveness of judgment in habeas corpus, see §11-43-43.

Rules governing practice and procedure in appeals to the Supreme Court, see Miss. R. App. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review § 260.

2 Am. Jur. Pl & Pr Forms, Rev, Appeal and Error, Form 1.1.

CJS.

4 C.J.S., Appeal and Error § 536.

JUDICIAL DECISIONS

1. In general.

2. Causes entitled to advancement.

3. Advancement not warranted.

1. In general.

Motion to advance case for hearing in supreme court made by appellee must be overruled where record has been filed in supreme court at instance of appellee, the successful party in lower court, who is not appealing, no bond has been filed by party appealing and time for perfecting appeal has not expired, as there is no right or method whereby successful litigant in lower court, who is not appealing, can prosecute or perfect appeal on behalf of losing party who is taking appeal. Gaudet v. Natchez, 43 So. 2d 900 (Miss. 1950).

Request to advance a cause denied, where its position on the court’s docket was such that to advance it would result in its submission, but a short time, if any, earlier than it would be if it should retain its present place on the docket. Garraway v. State, 184 Miss. 466, 184 So. 628, 185 So. 803, 1938 Miss. LEXIS 312 (Miss. 1938).

2. Causes entitled to advancement.

An appeal from a judgment of circuit court upholding reasonableness of ordinance extending city limits may be advanced on the docket since Supreme Court has inherent power to control disposition of cases on its docket with economy of time and effort for itself, for counsel, and for litigants, especially in cases of extraordinary public moment. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Appeal from orders of board of tax supervisors levying taxes for road building will be advanced. Williams v. Board of Sup'rs, 108 Miss. 746, 67 So. 186, 1914 Miss. LEXIS 268 (Miss. 1915).

Case of public importance to county from which it comes may be advanced on docket whether preference case or not. Weston v. Hancock County, 98 Miss. 800, 54 So. 307, 1910 Miss. LEXIS 126 (Miss. 1910).

3. Advancement not warranted.

Appeal from a judgment of circuit court upholding reasonableness of ordinance extending city limits is not returnable forthwith, but is returnable as any other case, except those specially provided for in this section. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Separate class of cases to be advanced not created by words “in cases where the public interest is concerned” so as to permit advancement of appeals from orders of supervisors. Williams v. Board of Sup'rs, 108 Miss. 746, 67 So. 186, 1914 Miss. LEXIS 268 (Miss. 1915).

Railroad commission not entitled to advancement of hearing of its appeal from injunction of order against railroad companies. Mississippi R. R. Com. v. Yazoo & M. V. R. Co., 100 Miss. 595, 56 So. 668, 1911 Miss. LEXIS 59 (Miss. 1911).

Suit by attorney-general to forfeit charter of corporation for misuse of its franchise is not a preference case. Jackson Loan & Trust Co. v. State, 96 Miss. 347, 54 So. 157, 1909 Miss. LEXIS 67 (Miss. 1909).

Cross References —

Clerk’s sending up appeal bond, see §11-51-73.

Procedures related to tracking system adopted by Supreme Court for all civil and criminal cases, see Miss. R. App. P.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 756, 757.

CJS.

5 C.J.S., Appeal and Error §§ 879 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. In general.

2. Failure to execute bond.

3. Defective bond.

4. Failure to file record.

1. In general.

Although appellants filed their petition within the forty-five day period required by §11-51-5 [Repealed], they failed to make a reasonable effort to comply with the requirement of §11-3-5 of payment of the cost of appeal, where, during a ninety-six day delay, they neither took steps to compel the trial court clerk’s compliance with the requirements of §11-51-61 [Repealed] as to the estimated bill of costs, nor paid the estimated costs until fifty-four days after their knowledge of such costs. Garrett v. Nix, 431 So. 2d 137, 1983 Miss. LEXIS 2599 (Miss.), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

In cases where a petition for appeal is filed and granted by the clerk of the trial court in accordance with §§11-51-15 [Repealed],11-51-51 [Repealed], the appeal is taken when the petition is filed; the provision “if costs be then paid as required” in §11-51-15 [Repealed] refers to §11-51-61 [Repealed] rather than §11-51-25 [Repealed] and therefore does not require prepayment of costs prior to the taking of the appeal. Thus, in the case of appellants who had filed a petition for appeal but had not prepaid the costs of the lower court or the filing fee, a motion to dismiss their appeal for such failure of prepayment would be denied where appellants had requested the clerk of the lower court to prepare an estimate of costs but the clerk had failed to do so and where §11-3-5 bars dismissal of an appeal to the Supreme Court on the grounds of insufficient prepayment of costs or failure of an officer to comply with the requirements of law. Dixieland Food Stores, Inc. v. Kelly's Big Star, Inc., 384 So. 2d 1031, 1980 Miss. LEXIS 2011 (Miss. 1980), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

Appellant was granted leave to file an amended appeal bond after the expiration of the 45-day period set by §11-51-5 [Repealed] for filing of such bonds where the original bond had been timely filed and in the correct amount and where the purpose of the amendment was to add an obligee on the bond. Clow Corp. v. J. D. Mullican, Inc., 336 So. 2d 1327, 1976 Miss. LEXIS 1570 (Miss. 1976).

Any prematurity in filing notice of appeal with the court reporter was cured by the entering of a final judgment, the proper disposition of pending motions, and the filing and approval of an appeal bond. First Nat'l Bank v. Cutrer, 190 So. 2d 883, 1966 Miss. LEXIS 1417 (Miss. 1966).

The court should not strike a transcript of the testimony for purely technical reasons where there has been no prejudice to the opposite party. First Nat'l Bank v. Cutrer, 190 So. 2d 883, 1966 Miss. LEXIS 1417 (Miss. 1966).

Where the circuit court, upon appeal, reviewed the case upon a record made in the county court, the contention of appellant, who undertook an appeal to the Supreme Court and deposited $100.00 in cash with the circuit clerk in lieu of a bond, that “the cost of the transcript” meant solely the cost in the circuit court and did not include the cost previously accrued in the county court was rejected, since the quoted term meant the transcript upon which the appellant relied for his appeal, including the stenographer’s notes of the testimony in county court, as well as other costs accrued in the appeal to the circuit court. Walters v. Fine, 232 Miss. 494, 95 So. 2d 229, 1957 Miss. LEXIS 485 (Miss. 1957).

This section [Code 1942, § 1959] applies only to appeals to the Supreme Court of the state. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

This statute is broad in its terms and its application should not be limited to trivial defects and irregularities. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

A drainage district is a separate, distinct legal entity, with power to sue and be sued as such in its corporate name, and is not excepted from the necessity of giving bond for appeal to the Supreme Court, but it is within the power and discretion of the Supreme Court to permit bond to be executed on such terms and conditions as the court may deem proper. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

Rights already lost and wrongs already perpetrated cannot be corrected by mandamus. Lockard v. Hoye, 113 Miss. 238, 74 So. 137, 1916 Miss. LEXIS 38 (Miss. 1916).

A party will be permitted to amend in all cases so as to perfect his appeal. State ex rel. Attorney Gen. v. Board of Sup'rs, 64 Miss. 358, 1 So. 501, 1886 Miss. LEXIS 73 (Miss. 1886).

2. Failure to execute bond.

The perfection of an appeal to the Supreme Court within the time allowed by statute is jurisdictional, and an appeal within the meaning of the statute is taken when, but not until, a bond therefor is filed and approved where such bond is required. Fisher v. Crowe, 289 So. 2d 921, 1974 Miss. LEXIS 1694 (Miss. 1974).

Where a justice of the peace who presided over a special court of eminent domain had before him a petition for an appeal to the circuit court and had accepted $300 cash, the correct amount of the cost bond, and had issued a receipt reciting that the money was received as an appeal bond, the appellants would be permitted to cure the defect in the bond by filing the statutory bond with two sureties, since the reason for giving the bond and having securities thereon is to secure the payment of costs, and the deposit of cash while not meeting the requirements of the statute, unquestionably satisfied that purpose. Jefferson v. Mississippi State Highway Com., 254 So. 2d 181, 1971 Miss. LEXIS 1247 (Miss. 1971).

This section applying only to appeals to the Supreme Court, did not authorize the court, on a habeas corpus trial held after the time had expired for appealing from contempt judgments, to permit a sheriff to file bond at that time and perfect an appeal. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Where trial court fixed the bond at $1000 for an appeal without supersedeas and the appellant filed a petition for appeal and recited therein that he was depositing with the clerk the sum of $1000 as security for costs and the cost of transcript was not prepaid, this cash deposit did follow the statutory requirement, but the appellant was given seven days to file good and sufficient bond with proper sureties. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

Where bank appeals without necessary bond courts may permit it to supply bond. Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810, 1918 Miss. LEXIS 104 (Miss. 1918).

Appeal dismissed where no bond filed with record on appeal from justice to the circuit court. Gaines v. State, 48 So. 182 (Miss. 1909).

Where the appellant failed to execute a bond, he may be permitted to supply the same, so as to perfect the appeal. Hudson v. Gray, 58 Miss. 589, 1881 Miss. LEXIS 3 (Miss. 1881).

3. Defective bond.

In view of Code [1942] § 1163, requiring two or more sufficient resident sureties, one appealing from a decree of the chancery court who filed an appeal bond with only one individual surety would be given 30 days to file a sufficient bond, and if he should fail to do so, his appeal would be dismissed. Hatten v. Pearson, 221 So. 2d 87, 1969 Miss. LEXIS 1487 (Miss. 1969).

Where an appeal bond is filed with only one surety the Supreme Court may grant leave to perfect the defective appeal bond after the expiration of the time for taking an appeal. Lipson v. Lipson, 183 So. 2d 900, 1966 Miss. LEXIS 1450 (Miss. 1966).

Defect in appeal bond given in appeal from municipal ordinance to Circuit Court, in that it was signed only by the protestants as principals, and without the two sureties required by law, was waived by failure to object thereto in the circuit court; and, bond being amenable, defect did not deprive either the circuit court or supreme court of jurisdiction. Neely v. Charleston, 35 So. 2d 316 (Miss. 1948).

Appellees held not entitled to dismissal of appeal for defect in appellants’ bond which was not signed by surety, since all defects in appeal bonds may be cured by amendment, and appellants could substitute proper bond, as requested. Gericevich v. Bonham, 177 Miss. 423, 170 So. 680, 1936 Miss. LEXIS 251 (Miss. 1936).

Motion to dismiss defective appeal bond will be overruled and request to substitute new bond granted. Lovett v. Harrison, 162 Miss. 814, 137 So. 471, 1931 Miss. LEXIS 102 (Miss. 1931).

Leave may be granted to perfect defective appeal bond after expiration of time allowed for taking appeal. Lovett v. Harrison, 162 Miss. 814, 137 So. 471, 1931 Miss. LEXIS 102 (Miss. 1931).

Appellant filing defective appeal bond, in that it had only one surety, was granted ten days to supply proper bond. Purity Ice Cream Co. v. Morton, 157 Miss. 728, 127 So. 276, 1930 Miss. LEXIS 250 (Miss. 1930).

4. Failure to file record.

The authority of the Supreme Court to promulgate rules of procedure in aid of its appellate jurisdiction includes the power to issue writs of certiorari to court reporters requiring the preparation and filing of transcripts of testimony in cases appealed to the court. Brown v. Water Valley, 319 So. 2d 649, 1975 Miss. LEXIS 1481 (Miss. 1975).

Clerk of trial court not excused for failure to file record in Supreme Court seasonably after expiration of time for filing transcript of evidence, by fact that stenographer failed to file such transcript. Yazoo & M. V. R. Co. v. McGraw, 118 Miss. 850, 80 So. 331, 1918 Miss. LEXIS 137 (Miss. 1918).

Cross References —

Continuance of appeal where counsel is legislator, see §11-1-9.

Limitation for new action after reversal on appeal, see §15-1-69.

Periods of time for filing unaffected by expiration of term of court, see Miss. R. App. P. 26.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 721, 722 et seq.

CJS.

5 C.J.S., Appeal and Error §§ 1238 et seq., 1249 et seq.

Law Reviews.

1982 Mississippi Supreme Court Review: Civil Procedure: Judicial Decisions. 53 Miss LJ 130, March 1983.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 3:2.

JUDICIAL DECISIONS

1. In general.

2. Procedure in Supreme Court.

3. Disposition of appeal in general.

4. —Reversal and entry of proper judgment.

5. —Particular cases.

6. —Reversal and award of new trial.

7. —Reversal and dismissal of action.

8. —Affirmance.

9. —Remand.

10. Scope and effect of judgment of Supreme Court.

11. Recovery of costs.

1. In general.

Contempt for failure to obey judgment should be punished by court rendering such judgment. Ganong v. Jonestown, 98 Miss. 265, 53 So. 594, 1910 Miss. LEXIS 60 (Miss. 1910).

2. Procedure in Supreme Court.

The Supreme Court, in reversing dismissal on other grounds of statutory proceeding in which statute’s constitutionality was questioned, should, where no matter of fact is to be ascertained, no damages to be assessed, and no uncertainty in the matter to be determined, pass on the constitutionality of the statute. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

If demurrer to declaration because stating no cause of action, and defendant’s objections to evidence and request for peremptory instruction are overruled, first inquiry on defendant’s appeal from adverse judgment is whether declaration is sufficient. Newell Contracting Co. v. Flynt, 172 Miss. 730, 161 So. 743 (Miss. 1935).

Where defendant, instead of demurring to declaration because stating no cause of action, pleads thereto and unsuccessfully objects to evidence overrunning declaration and moves for peremptory instruction, first question on defendant’s appeal from adverse judgment is whether declaration is sufficient. Newell Contracting Co. v. Flynt, 172 Miss. 730, 161 So. 743 (Miss. 1935).

On appeal from judgment of chancellor reinstating disbarred attorney, trial is not de novo, but review is on record with right to require additional evidence, if necessary. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

3. Disposition of appeal in general.

Holding that the omission of the range number from the description appearing in a deed was a mere scrivener’s error, the Supreme Court, under authority of Code 1942, § 1962, entered a decree reforming the instrument by inserting therein the range number intended by the parties. Sunnybrook Children's Home, Inc. v. Dahlem, 265 So. 2d 921, 1972 Miss. LEXIS 1381 (Miss. 1972).

Supreme Court reversing circuit court judgment reversing county court judgment cannot render summary judgment on appeal bond carrying case from county to circuit court. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 498, 121 So. 858, 1929 Miss. LEXIS 95 (Miss. 1929).

4. —Reversal and entry of proper judgment.

Supreme Court, reversing circuit court’s judgment which reversed county court’s judgment, could render such judgment as circuit court should have rendered. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

On reversal, if judgment to be rendered appears certain, case will not be remanded for new trial, but Supreme Court will render final judgment. Witherspoon v. State, 138 Miss. 310, 103 So. 134, 1925 Miss. LEXIS 55 (Miss. 1925).

On reversal, where record presents nothing for jury, judgment will be rendered for appellant. Hines v. Cole, 123 Miss. 254, 85 So. 199, 1920 Miss. LEXIS 27 (Miss. 1920).

On reversing erroneous judgment Supreme Court will render proper judgment if facts are undisputed. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793, 1912 Miss. LEXIS 65 (Miss. 1912).

5. —Particular cases.

Where a judgment or decree rendered by a chancellor is clearly excessive and all the facts are found by the chancellor, and the amount of the judgment is based on facts and opinions of witnesses as to value, the Supreme Court will, on reversing the decree, render judgment for the proper amount without remanding the cause to the court below. Estate of Collins v. Dunn, 233 Miss. 636, 103 So. 2d 425, 1958 Miss. LEXIS 426 (Miss. 1958).

Where defendant in prosecution in county court for unlawful possession of whisky was entitled to a directed verdict of not guilty, and circuit court should have reversed judgment of conviction and discharged defendant, Supreme Court would reverse judgment of circuit court affirming conviction and would discharge defendant. Lewis v. State, 198 Miss. 767, 23 So. 2d 401, 1945 Miss. LEXIS 245 (Miss. 1945).

Where the proof in a grand larceny prosecution showed that the stolen cattle were taken in Tallahatchie County and were taken from the possession of the defendants in Coahoma County, without having passed through Grenada County, in which the indictment alleged the offense to have been committed, the trial court should have sustained defendant’s motion that venue was not proved in Grenada County; and the Supreme Court would render the judgment which the court below should have rendered by discharging the defendants from the present indictment, but holding them under their appearance bond to await the action of the next grand jury of the appropriate county. Whitten v. State, 189 Miss. 809, 199 So. 74, 1940 Miss. LEXIS 167 (Miss. 1940).

Where on suggestion of error after judgment of reversal in the Supreme Court, holding that the court below should have granted the plaintiff’s peremptory instruction to find for it in the amount of the deficiency claimed, with interest, after mortgage foreclosure, together with reasonable attorneys’ fees, plaintiff filed a remittitur of the attorney’s fee in due time, and the opinion of the Supreme Court clearly announced that the court below should have entered a judgment for the amount of the debt with interest, the Supreme Court had authority under this section to enter such judgment as the court below should have entered. Home Owners Loan Corp. v. Wiggins, 188 Miss. 750, 195 So. 339, 1940 Miss. LEXIS 52 (Miss. 1940).

Where description of mortgaged property was void because insufficient and record presented no other facts for jury’s determination which could affect right of purchaser at bankruptcy sale to recover, Supreme Court reversed judgment for mortgagee and entered final judgment for such purchaser. National Foods, Inc. v. Friedrich, 173 Miss. 717, 163 So. 126, 1935 Miss. LEXIS 248 (Miss. 1935).

Where chancellor finds all facts, Supreme Court reversing decree as to damages will render judgment for proper amount. Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874, 1927 Miss. LEXIS 280 (Miss. 1927).

Supreme Court, on reversing judgment for injury on ground that appellant was entitled to directed verdict, will render judgment for appellant, notwithstanding material evidence was excluded, where appellee consented thereto and failed to make application for continuance to procure alleged material witnesses. Hattiesburg Chero Cola Bottling Co. v. Price, 143 Miss. 14, 108 So. 291, 1926 Miss. LEXIS 239 (Miss. 1926).

Where judgment below is illegal Supreme Court may impose sentence in proper form. Thompson v. State, 124 Miss. 463, 86 So. 871, 1920 Miss. LEXIS 530 (Miss. 1921).

Where defendant entitled to peremptory instruction, Supreme Court on reversing judgment for plaintiff will render judgment for defendant. Yazoo & M. R. Co. v. Pope, 104 Miss. 339, 61 So. 450, 1913 Miss. LEXIS 46 (Miss. 1913).

Supreme Court, on appeal from judgment improperly refusing mandamus, will not remand case but will render judgment requiring election commissioners to meet and canvass returns made by managers of election. State ex rel. Hudson v. Pigott, 97 Miss. 599, 54 So. 257 (Miss. 1910).

6. —Reversal and award of new trial.

Supreme Court may award new trial on issue of damages only. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1915).

7. —Reversal and dismissal of action.

On reversal the cause is properly dismissed where there is nothing to be determined by the lower court and no action is maintainable in any court. Scottish Union & Nat'l Ins. Co. v. Warren-Gee Lumber Co., 104 Miss. 636, 61 So. 310, 1913 Miss. LEXIS 28 (Miss. 1913).

8. —Affirmance.

In a proceeding to set aside a will and to have title to deceased’s property vested in plaintiffs, or to obtain reasonable compensation for services rendered to deceased, which was done allegedly pursuant to an agreement by deceased to devise his property to plaintiffs for living with and caring for him, where the evidence was sufficient to support the chancellor’s finding that some additional compensation should be allowed the plaintiffs but the amount allowed was clearly excessive, the Supreme Court modified the decree of the lower court so as to reduce the amount of the allowance, and the decree, as modified, was affirmed. Estate of Collins v. Dunn, 233 Miss. 636, 103 So. 2d 425, 1958 Miss. LEXIS 426 (Miss. 1958).

In absence of cross-appeal and appellee’s declaration failing to demand full amount sheriff could have successfully sued for as fees for serving overseers’ commissions, Supreme Court cannot increase judgment, but will affirm judgment recovered. Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

Where the court of original jurisdiction rendered a judgment on the merits of a case on specific grounds, declining to pass on other grounds duly presented, the Supreme Court may, nevertheless, affirm on the grounds not passed on. Yazoo & M. V. R. Co. v. Adams, 81 Miss. 90, 32 So. 937, 1902 Miss. LEXIS 132 (Miss. 1902).

9. —Remand.

Where language contained in the opinion of the circuit judge left the matter to be determined by the Supreme Court uncertain, the cause was remanded to the circuit court. Biglane Operating Co. v. Brown, 322 So. 2d 470, 1975 Miss. LEXIS 1546 (Miss. 1975).

In action for damages for fraud and deceit in connection with representations by seller as to cultivatable protected acreage in tract of land sold, Supreme Court will remand case to trial court for taking of testimony upon question of amount of cultivatable land within protection of levee and amount of damages sustained by purchaser as consequence of misrepresentation when Supreme Court is unable to render judgment for reason that it cannot calculate amount with sufficient certainty. Reed v. Charping, 207 Miss. 1, 41 So. 2d 11, 1949 Miss. LEXIS 312 (Miss. 1949).

Case will be remanded where lower court makes no finding on one of two points in case, though its decision on the other be erroneous. Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69, 1908 Miss. LEXIS 207 (Miss. 1908).

Where trial court failed to adjudicate amount due in suit to restrain foreclosure of mortgage, proper amount could not be decreed on appeal. Gray v. Bryson, 87 Miss. 304, 39 So. 694, 1905 Miss. LEXIS 134 (Miss. 1905).

10. Scope and effect of judgment of Supreme Court.

Judgment on appeal conclusive as to case presented but not new case made by amendment of bill introducing new matter supported by new evidence. Haines v. Haines, 98 Miss. 830, 54 So. 433, 1910 Miss. LEXIS 131 (Miss. 1910).

11. Recovery of costs.

Where judgment for plaintiff was reversed in part and Supreme Court rendered judgment which trial court should have rendered, defendant was “successful party” entitled to full costs on appeal. Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 1932 Miss. LEXIS 306 (Miss. 1932).

Editor’s Notes —

This section is the counterpart of § 147, Constitution 1890. The cases annotated under that section of the constitution are applicable to this section of the code and are referred to in connection with it.

Cross References —

Constitutional prohibition against reversing judgment for want of jurisdiction, see Miss. Const. Art. 6, § 147.

Jurisdiction of chancery court in general, see §9-5-81.

Jurisdiction of circuit court generally, see §§9-7-81 et seq.

RESEARCH REFERENCES

ALR.

Lack of jurisdiction, or jurisdictional error, as rendering federal district court judgment “void” for purposes of relief under Rule 60(b)(4) of Federal Rules of Civil Procedure.59 A.L.R. Fed. 831.

JUDICIAL DECISIONS

1. In general.

2. Error of jurisdiction as between equity and law.

3. —In chancery courts.

4. —In law courts.

5. —Transfer of causes.

6. Other errors.

1. In general.

Supreme Court will not reverse in doubtful case where court had jurisdiction of parties because suit brought in wrong court. Metzger v. Joseph, 111 Miss. 385, 71 So. 645, 1916 Miss. LEXIS 309 (Miss. 1916).

Supreme Court will not reverse simply because suit brought in wrong court. White v. Willis, 111 Miss. 417, 71 So. 737, 1916 Miss. LEXIS 313 (Miss. 1916); W. W. Walley & Son v. L. N. Dantzler Co., 114 Miss. 601, 75 So. 433, 1917 Miss. LEXIS 65 (Miss. 1917).

Question of jurisdiction must be raised in trial court. Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915); Indianola Compress & Storage Co. v. Southern R. Co., 110 Miss. 602, 70 So. 703, 1915 Miss. LEXIS 88 (Miss. 1915).

Section 147, Constitution 1890, is not applicable where court below declined jurisdiction. McCracken v. Lewis, 89 Miss. 229, 42 So. 671 (Miss. 1906); Mitchell v. Bank of Indianola, 98 Miss. 658, 54 So. 87, 1910 Miss. LEXIS 107 (Miss. 1910); Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

This section [Code 1942, § 1964] deprives the Supreme Court alone of power; a chancery court may rightfully dismiss a cause the jurisdiction of which properly belongs to a court of law. Carbolineum Wood-Preserving & Mfg. Co. v. Meyer, 76 Miss. 586, 25 So. 297, 1898 Miss. LEXIS 138 (Miss. 1898).

This section [Code 1942, § 1964] exempts decrees in chancery and judgments of the circuit court from collateral attack on the ground of want of jurisdiction as between equity and common law. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

The prohibition of the section [Code 1942, § 1964] is not confined to final judgments or decrees, but applies also to appeals from interlocutory ones where the question of jurisdiction is directly raised. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, 1893 Miss. LEXIS 47 (Miss. 1893).

2. Error of jurisdiction as between equity and law.

Decree overruling demurrer to bill seeking damages for breach of contract not reversed, though action should have been at law. Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567, 1916 Miss. LEXIS 295 (Miss. 1916); Metzger v. Joseph, 111 Miss. 385, 71 So. 645, 1916 Miss. LEXIS 309 (Miss. 1916).

Under this section [Code 1942, § 1964] a personal judgment against the members of a firm for a firm debt rendered in a suit to set aside alleged fraudulent conveyances by them does not constitute reversible error. Holmes Bros. v. Ferguson-McKinney Dry Goods Co., 86 Miss. 782, 39 So. 70, 1905 Miss. LEXIS 97 (Miss. 1905).

In an action in equity for foreclosure of mortgage and recovery of the debt, the fact that there was a defense to the foreclosure action did not preclude court of equity from giving a recovery for the money claimed, although based upon a purely legal right. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

3. —In chancery courts.

The chancery court, upon dismissal of attachment against nonresident, still had jurisdiction to render a personal decree against the nonresident. Myers v. Giroir, 226 Miss. 335, 84 So. 2d 525, 1956 Miss. LEXIS 404 (Miss. 1956).

Decree of chancery court imposing penalty for violation of anti-trust law will not be reversed. Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, 1910 Miss. LEXIS 92 (Miss. 1910); Dukate v. Adams, 101 Miss. 433, 58 So. 475, 1912 Miss. LEXIS 12 (Miss. 1911).

In action in assumpsit in chancery court, decree overruling demurrer on ground of jurisdiction cannot be reversed by Supreme Court. Town of Woodville v. Jenks, 94 Miss. 210, 48 So. 620, 1908 Miss. LEXIS 48 (Miss. 1908).

Decree in chancery cannot be reversed for error as to whether cause was of equity or common law jurisdiction. Mississippi Fire Ass'n v. Stein, 88 Miss. 499, 41 So. 66, 1906 Miss. LEXIS 168 (Miss. 1906).

A decree in chancery will not be reversed on the ground merely that there was an adequate remedy at law. Hancock v. Dodge, 85 Miss. 228, 37 So. 711, 1904 Miss. LEXIS 121 (Miss. 1904); Decell v. Hazlehurst Oil Mill & Fertilizer Co., 83 Miss. 346, 35 So. 761, 1903 Miss. LEXIS 50 (Miss. 1904); Thompson v. Hill, 152 Miss. 390, 119 So. 320, 1928 Miss. LEXIS 265 (Miss. 1928).

When a court of equity has taken jurisdiction of a proceeding to compel an agent to account for misappropriation of funds, its decree will not be disturbed on appeal on the grounds that the complainant had a complete remedy at law. Decell v. Hazlehurst Oil Mill & Fertilizer Co., 83 Miss. 346, 35 So. 761, 1903 Miss. LEXIS 50 (Miss. 1904).

If a chancery court overrule a demurrer to a cross bill, the Supreme Court cannot, under the section [Code 1942, § 1964], reverse the decree because of any error or mistake as to whether the matters therein propounded be of equity or common law jurisdiction. Irion v. Cole, 78 Miss. 132, 28 So. 803, 1900 Miss. LEXIS 80 (Miss. 1900).

If the chancery court overrule a demurrer to a bill, raising the question of its jurisdiction to subject specific property to the payment of a judgment at law, the record of which judgment has been destroyed, the Supreme Court cannot, under the section [Code 1942, § 1964], review such question, there being no other error found in the record. Day v. Hartman, 74 Miss. 489, 21 So. 302, 1896 Miss. LEXIS 172 (Miss. 1896).

Where a chancery court entertains jurisdiction of a case, the question whether it were or were not equitable in character does not arise, by virtue of the section [Code 1942, § 1964], in the Supreme Court. Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881, 1896 Miss. LEXIS 130 (Miss. 1896).

If the chancery court erroneously assume jurisdiction of an action of trespass the Supreme Court is powerless to interfere. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, 1893 Miss. LEXIS 47 (Miss. 1893).

In action by creditor to set aside a fraudulent sale of goods against debtor and purchaser of goods, wherein creditor obtained attachment of purchaser’s real estate, under this section [Code 1942, § 1964] no error could be assigned that chancery court was without jurisdiction. Barrett v. Carter, 69 Miss. 593, 13 So. 625, 1891 Miss. LEXIS 137 (Miss. 1891).

4. —In law courts.

The circuit court having entertained jurisdiction of an action of ejectment, the Supreme Court cannot because of the section [Code 1942, § 1964] reverse its judgment, even if, by § 160 of the Constitution, the remedy in the particular case should have been sought in the chancery court. Illinois C. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760, 1897 Miss. LEXIS 57 (Miss. 1897).

A judgment of the circuit court in favor of a claimant will not, under the section [Code 1942, § 1964], be reversed because his title was only an equitable one. Goyer Cold-Storage Co. v. Wildberger, 71 Miss. 438, 15 So. 235, 1893 Miss. LEXIS 92 (Miss. 1893).

5. —Transfer of causes.

Order of chancellor sustaining demurrers to bill and ordering transfer to circuit court is appealable. Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, 1917 Miss. LEXIS 203 (Miss. 1917).

Supreme Court cannot transfer case from chancery to circuit court. Town of Woodville v. Jenks, 94 Miss. 210, 48 So. 620, 1908 Miss. LEXIS 48 (Miss. 1908).

6. Other errors.

Where original bill unsustainable for failure to show equity jurisdiction, cross bills were also unsustainable, but error of court assuming jurisdiction is not within Const. 1890 § 147. Scottish Union & Nat'l Ins. Co. v. Warren-Gee Lumber Co., 103 Miss. 816, 60 So. 1010, 1912 Miss. LEXIS 234 (Miss.), modified, 104 Miss. 636, 61 So. 310, 1913 Miss. LEXIS 28 (Miss. 1913); Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915); Indianola Compress & Storage Co. v. Southern R. Co., 110 Miss. 602, 70 So. 703, 1915 Miss. LEXIS 88 (Miss. 1915).

Dismissal of cause in chancery when transfer to circuit court proper, not within this section. Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

Error of chancellor in overruling demurrer to bill bad for misjoinder is not mistake as to equity or law jurisdiction. Newton Oil & Mfg. Co. v. Sessums, 102 Miss. 181, 59 So. 9 (Miss. 1912).

This section does not apply to cases in which either the circuit or chancery court entertains a cause, being neither of equity nor common-law jurisdiction, of which it has no jurisdiction. Board of Levee Comm'rs v. Brooks, 76 Miss. 635, 25 So. 358, 1898 Miss. LEXIS 143 (Miss. 1898).

On the reversal of a final decree in a cause of which the chancery court had no jurisdiction, instead of remanding the cause to the court having jurisdiction, the Supreme Court will dismiss it if it appears that the complainant has no cause of action. Griffin v. Byrd, 74 Miss. 32, 19 So. 717, 1896 Miss. LEXIS 95 (Miss. 1896).

The section is not applicable to a decree appointing a receiver, void because made on the ex parte application of a debtor, such unauthorized proceeding not being a “cause” within its meaning. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

The Supreme Court is not precluded by the section from reversing a decree enjoining a number of actions for the destruction of property by fire on the idea of preventing a multiplicity of suits, the question in such case being merely as to the power of any court to join the parties in one suit. Tribbette v. Illinois C. R. Co., 70 Miss. 182, 12 So. 32, 1892 Miss. LEXIS 87 (Miss. 1892).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 762, 767.

2 Am. Jur. Pl & Pr Forms, Rev, Appeal and Error, Forms 1096, 1097.

CJS.

5 C.J.S., Appeal and Error § 878.

Editor’s Notes —

Former §11-3-13 provided for the dismissal of an appeal where the record was not filed on or before the return day, and for reinstatement of an appeal after dismissal.

Cross References —

Effect of affirmance or dismissal of appeal on relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-1 et seq.

Reinstatement of a dismissed cause, see Miss. Sup. Ct., Rule 18.

RESEARCH REFERENCES

ALR.

Effect of nonsuit, dismissal, or discontinuance of action on previous orders. 11 A.L.R.2d 1407.

Am. Jur.

5 Am. Jur. 2d, Appellate Review § 766.

CJS.

5 C.J.S., Appeal and Error §§ 903-905.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Where an appeal has been perfected and dismissed for want of prosecution, a subsequent appeal or writ of error is barred by this section. First American Nat'l Bank v. Alcorn, Inc., 361 So. 2d 481, 1978 Miss. LEXIS 2368 (Miss. 1978).

Prior appeal by the attorney general, as a mere interloper, from order of the tax commission, does not bar a subsequent authorized appeal by him. Board of Sup'rs v. Guaranty Loan, Trust & Banking Co., 118 Miss. 600, 79 So. 802, 1918 Miss. LEXIS 102 (Miss. 1918).

A dismissal of an appeal because premature will not bar another from a final judgment in the same cause. Stokes v. Shannon, 55 Miss. 583, 1878 Miss. LEXIS 15 (Miss. 1878).

The statute does not apply where the dismissal is without the fault of the party, or for an irregularity over which he had no control. Bull v. Harrell, 8 Miss. 9, 1843 Miss. LEXIS 51 (Miss. 1843); Sherman v. Lovejoy, 30 Miss. 105, 1855 Miss. LEXIS 67 (Miss. 1855).

2. Applicability.

In a case in which (1) 29 days after the judgment of divorce was entered, the husband filed a timely notice of appeal and the appeal was ultimately dismissed for want of prosecution after he failed to file a timely brief; (2) the husband filed a motion in the chancery court to aside, alter, or amend the judgment of divorce; (3) the chancery court denied the motion; and (4) the husband appealed that decision, the wife unsuccessfully argued that appellate jurisdiction was precluded under Miss. Code Ann. §11-3-15. The present appeal was not a successive appeal from the judgment of divorce; it arose from the husband’s motion to set aside the judgment of divorce as void. Cobb v. Cobb, 29 So.3d 145, 2010 Miss. App. LEXIS 118 (Miss. Ct. App. 2010).

Editor’s Notes —

Former §11-3-17 provided for the revival or dismissal of an action upon the death of a party.

Former §11-3-19 provided that a bill of exceptions could contain matters of record without having a record distinct from the bill.

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error §§ 659, 666.

JUDICIAL DECISIONS

1. In general.

Supersedeas of a decree awarding temporary custody of a child to parent seeking a change in custody, upon evidence heard by the chancery court, is not proper where such evidence is not before the Supreme Court. Swager v. Swager, 246 Miss. 248, 148 So. 2d 516, 1963 Miss. LEXIS 438 (Miss. 1963).

This section [Code 1942, § 1970] has no application to appeal under Code 1942, § 1163, as right to appeal with supersedeas is unquestionably granted by § 1163, and operation of this section must be confined to cases in which, from nature of case, law does not permit supersedeas. Coulter v. Banks, 38 So. 2d 696 (Miss. 1949).

Supersedeas bond not discharged on motion in Supreme Court on ground sureties were misled into signing it and one of them notified the clerk before it was filed not to approve it. Douglas v. Parsons-May-Oberschmidt Co., 101 Miss. 620, 57 So. 624, 1911 Miss. LEXIS 123 (Miss. 1911).

An appeal with supersedeas, granted from an unappealable interlocutory order, will, upon motion, be discharged by the Supreme Court. Hanon v. Weil, 69 Miss. 476, 13 So. 878, 1891 Miss. LEXIS 175 (Miss. 1891).

It is only where from the nature of the case supersedeas on appeal is not allowable that a motion can be made in the Supreme Court under this section [Code 1942, § 1970] to discharge a supersedeas. Alabama & V. R. Co. v. Bolding, 69 Miss. 264, 13 So. 846, 1891 Miss. LEXIS 171 (Miss. 1891).

Supersedeas without bond held not discharged as to writ of possession, although bond insufficient as to recovery for mesne profits. Lum v. Reed, 53 Miss. 71, 1876 Miss. LEXIS 37 (Miss. 1876).

Editor’s Notes —

Former §11-3-23 set a procedure for computation in judgments for damages.

Former §11-3-25 established a procedure for cases where amount in controversy is not specified.

Cross References —

Proceedings on death of surety on bonds, see §§11-1-29 to11-1-35.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 393, 394.

CJS.

4 C.J.S., Appeal and Error §§ 644, 646, 663.

5 C.J.S., Appeal and Error §§ 1234 et seq.

JUDICIAL DECISIONS

1. In general.

2. Liability of sureties.

3. Estoppel.

1. In general.

The requirement as to the amount of a supersedeas bond is not met by giving bonds with different sureties for varying amounts aggregating the required amount. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

Where an appeal was dismissed because of the appellant’s failure to file an appeal bond within the required time, under this section [Code 1942, § 1973] statutory damages will be allowed. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

Supreme Court’s judgment must be enforced by court from which appeal came after its certification thereto by Supreme Court. Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626, 1932 Miss. LEXIS 3 (Miss. 1932).

Supreme Court cannot render summary judgment on appeal bond, where judgment of lower court did not award money recovery. Lamas v. Renaldo, 152 Miss. 353, 118 So. 417, 1928 Miss. LEXIS 214 (Miss. 1928).

2. Liability of sureties.

The dismissal of an appeal for failure to file the appeal bond within the required time is a breach of the conditions of the appeal bond so as to render the sureties liable. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

In a suit to remove tenant for nonpayment of rent, where the Supreme Court affirmed judgment for the landlord, money judgment would be assessed against tenant’s supersedeas bond for rent in default for the period in which an appeal was pending. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

Circuit court, when affirming money judgment of county court, where appeal bond supersedes judgment, should render judgment on bond for amount of judgment affirmed, with interest thereon from date of rendition at same rate as borne by judgment affirmed, court costs, and six per cent damages on amount of judgment. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Appellees held not entitled to judgment against sureties on appeal bond in partnership settlement case, where judgment was reversed as to two items. Arrington v. Stabley, 126 So. 842 (Miss. 1930).

3. Estoppel.

Where a party appealed and obtained a bond styled “appeal bond with supersedeas” in an amount sufficient to effect supersedeas, and had the benefit of supersedeas, in that execution of judgment was stayed, but there was no indication that the bonds were liable for the amount of judgment as required of supersedeas bonds by Code 1942, § 1973, such party was estopped in a suit on the judgment which had been affirmed, from changing his position and contending that the bond did not toll the statute of limitations since it failed to include the conditions imposed by Code 1942, § 1163 requiring that the bond be conditioned that the appellant will satisfy the judgment or decree. Breland v. International Paper Co., 233 So. 2d 827, 1970 Miss. LEXIS 1686 (Miss. 1970).

Editor’s Notes —

Former §11-3-29 covered judgments for costs in certain cases.

Cross References —

Executions on judgments, see §§13-3-111 et seq.

RESEARCH REFERENCES

ALR.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 721, 722.

CJS.

5 C.J.S., Appeal and Error §§ 1136-1139.

Cross References —

Authority of court or judge to require new security, see §11-1-23.

Payment of bond in judicial review of final decision of employee appeal board, see §25-9-132.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 303, 387, 393, 394.

CJS.

4 C.J.S., Appeal and Error §§ 445 et seq., 519, 520, 531-535 et seq.

5 C.J.S., Appeal and Error §§ 1234 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. In general.

Since appellant’s filing of two appeal bonds totaling 125 per cent of the judgment appealed from, under which different sureties bound themselves for a stated portion of the required supersedeas bond, was not a sufficient compliance with Code 1942, §§ 1163 and 1973, appellee’s exceptions to the sufficiency of the bonds would be sustained, unless within 30 days appellant filed a good and sufficient supersedeas bond. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

Cross References —

No reversal for harmless errors, see Miss. Sup. Ct., Rule 11.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 611-617, 625-633.

CJS.

5 C.J.S., Appeal and Error §§ 678, 1112-1120, 1121 et seq.

JUDICIAL DECISIONS

1. In general.

2. Questions first raised on appeal.

3. Jurisdictional matters.

4. Matters of pleading.

5. Parties.

6. Evidence.

7. —Admission and exclusion.

8. —Weight and sufficiency.

9. Instructions.

10. Matters pertaining to record.

1. In general.

Decree of lower court which is erroneous in awarding husbands of wives who predeceased wives’ parents interest in lands of parents will be modified on appeal of proceeding to determine rights of parties in realty, though not made an issue on appeal, to avoid possibility of making decree final with error therein. Dunaway v. McEachern, 37 So. 2d 767 (Miss. 1948).

Generally errors committed during trial are not reviewable unless assigned in motion for a new trial. Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

Supreme Court cannot consider merits of controversy unless passed on by lower court. Ascher & Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299, 1911 Miss. LEXIS 96 (Miss. 1910).

Improper remarks by counsel not reviewed without exceptions taken at the time. Mississippi C. R. Co. v. Turnage, 95 Miss. 854, 49 So. 840, 1909 Miss. LEXIS 294 (Miss. 1909) but see Hall v. State, 539 So. 2d 1338, 1989 Miss. LEXIS 104 (Miss. 1989).

2. Questions first raised on appeal.

Where a justice of the peace had not certified record made in his court as required by statute, and there was no objection made at the trial, the objection could not be made for the first time in the Supreme Court. Laird v. Forbes, 214 Miss. 250, 58 So. 2d 660, 1952 Miss. LEXIS 464 (Miss. 1952).

Errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

An objection to a variance between indictment and proof which is curable by amendment must be made before the verdict and, if not then made, is waived. Horn v. State, 165 Miss. 169, 147 So. 310, 1933 Miss. LEXIS 293 (Miss. 1933).

Defendant not objecting in circuit court to record of proceedings in justice court could not object for first time in Supreme Court. Lott v. Watkins, 162 Miss. 507, 137 So. 895, 1931 Miss. LEXIS 113 (Miss. 1931).

Contention that tax assessors and collectors are necessary parties to suit for back taxes cannot be raised first on appeal. Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 1908 Miss. LEXIS 165 (Miss. 1908).

Defendants in suit to quiet title claiming at trial under an alleged sale for taxes for the year 1874, could not assert title under such sale as a sale under the abatement act and by limitations for the first time on appeal. Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

Objection that tax title did not contain endorsement expressly required by law may be made for the first time on appeal. McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 1907 Miss. LEXIS 4 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

Where bill alleges assignment of trust deed and the answer admits it, it cannot be questioned on appeal. Watkins v. McDonald, 41 So. 376 (Miss. 1906).

In action to cancel conveyances under a trust deed, contention that holder of trust deed exhausted her power by appointment of substituted trustees cannot be raised first on appeal. Watkins v. McDonald, 41 So. 376 (Miss. 1906).

Void judgment reversed though invalidity urged for first time on appeal. Alexander v. Porter, 88 Miss. 585, 41 So. 6, 1906 Miss. LEXIS 161 (Miss. 1906).

3. Jurisdictional matters.

Jurisdiction of trial court may be questioned for first time on appeal. Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911); Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

Supreme Court has no jurisdiction where there is no bond in the record of appeal from justice to the circuit court. Humphreys v. McFarland, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Johnson v. Marshall, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

Appeal from interlocutory decree without order of court allowing it, dismissed and case remanded. Greve v. McGee, 92 Miss. 190, 45 So. 706, 1907 Miss. LEXIS 23 (Miss. 1907).

Mere failure of clerk to enter on the minutes order of court calling special term does not oust jurisdiction. Ex parte Neil, 90 Miss. 518, 43 So. 615, 1907 Miss. LEXIS 82 (Miss. 1907).

4. Matters of pleading.

Judgment on note not reversed on ground original note not produced and filed, where the record does not affirmatively show such to be the fact. Biles v. Wolf, 49 So. 267 (Miss. 1909).

Where petition dismissed on demurrer, question not raised in trial court cannot be reviewed. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, 1909 Miss. LEXIS 202 (Miss. 1909).

Supreme Court will not sustain demurrer to declaration not presented to lower court. Keystone Lumber Yard v. Yazoo & M. V. R. Co., 94 Miss. 192, 47 So. 803, 1908 Miss. LEXIS 28 (Miss. 1908).

Objection that complainant had no right to bring suit, not made in court below, held waived on appeal. Beason v. Coleman, 92 Miss. 622, 46 So. 49, 1908 Miss. LEXIS 195 (Miss. 1908).

5. Parties.

Contention that tax assessors and collectors are necessary parties to suit for back taxes cannot be raised first on appeal. Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 1908 Miss. LEXIS 165 (Miss. 1908).

Supreme Court will of its own motion decline to act where a proper decree cannot be made without having certain persons made defendants. Gates v. Union Naval Stores Co., 92 Miss. 227, 45 So. 979, 1908 Miss. LEXIS 190 (Miss. 1908).

6. Evidence.

Case should be reversed and remanded, where plaintiff might on new hearing be able to offer evidence entitling it to recover, instead of only reversed. Planters' Mercantile Co. v. Armour Packing Co., 109 Miss. 470, 69 So. 293, 1915 Miss. LEXIS 180 (Miss. 1915); Planters' Mercantile Co. v. Christian Peper Tobacco Co., 69 So. 295 (Miss. 1915); Schloss & Rothschild v. Haupt, 69 So. 295 (Miss. 1915).

A case cannot be reversed by the Supreme Court on the ground that the evidence did not show corporate existence where no objection was made on that ground in the court below. James v. State, 77 Miss. 370, 26 So. 929, 1899 Miss. LEXIS 59 (Miss. 1899).

7. —Admission and exclusion.

In action for damages resulting from automobile collision, where objection is sustained and court admonishes jury to disregard question, no prejudice sufficient to require mistrial is manifested by mere asking of defendant if he did not operate slot machines, defendant having disclosed without objection that he was operating bar in violation of law. Kouvarakis v. Hawver, 208 Miss. 697, 45 So. 2d 278, 1950 Miss. LEXIS 288 (Miss. 1950).

Judgment of circuit court will not be reversed on appeal to Supreme Court for error in admission of incompetent evidence which was either of no effect, or, if effective, was prejudicial to appellee and not to appellant. Magnolia Miss Dress Co. v. Zorn, 204 Miss. 1, 36 So. 2d 795, 1948 Miss. LEXIS 337 (Miss. 1948).

Defendant not objecting in the lower court cannot complain of admission of mortuary tables because the pleadings did not show value of decedent’s life expectancy. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

Party could not question the competency of parol testimony on motion for new trial. Anderson v. Maxwell, 94 Miss. 138, 48 So. 227, 1908 Miss. LEXIS 37 (Miss. 1908).

Rulings on admission and exclusion of evidence not considered unless motion for a new trial directs attention of the court to particular ruling. Carpenter v. Savage, 93 Miss. 233, 46 So. 537, 1908 Miss. LEXIS 92 (Miss. 1908).

Where testimony appears incompetent only when considered with other testimony not objected to, it is not ground for reversal. Mississippi C. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505, 1906 Miss. LEXIS 195 (Miss. 1906).

8. —Weight and sufficiency.

Verdict on conflicting evidence not disturbed. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 1911 Miss. LEXIS 164 (Miss. 1911); Thompson v. Poe, 104 Miss. 586, 61 So. 656, 1913 Miss. LEXIS 69 (Miss. 1913); Soverign Camp, W. W. v. McDonald, 109 Miss. 167, 68 So. 74, 1915 Miss. LEXIS 130 (Miss. 1915); Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

Chancellor’s findings not disturbed on appeal unless against preponderance of evidence. Gross v. Jones, 89 Miss. 44, 42 So. 802, 1906 Miss. LEXIS 86 (Miss. 1906); Carter v. Catchings, 48 So. 515 (Miss. 1909); Moyse v. Howie, 98 Miss. 30, 53 So. 402, 1910 Miss. LEXIS 42 (Miss. 1910); Heard v. Cottrell, 100 Miss. 42, 56 So. 277, 1911 Miss. LEXIS 12 (Miss. 1911); Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166, 1913 Miss. LEXIS 14 (Miss. 1913); Lott v. Hull, 104 Miss. 308, 61 So. 421, 1913 Miss. LEXIS 37 (Miss. 1913); Lee v. Wilkinson, 105 Miss. 358, 62 So. 275, 1913 Miss. LEXIS 206 (Miss. 1913); Bland v. Bland, 105 Miss. 478, 62 So. 641, 1913 Miss. LEXIS 233 (Miss. 1913); Northern Assurance Co. v. J. J. Newman Lumber Co., 105 Miss. 688, 63 So. 209, 1913 Miss. LEXIS 248 (Miss. 1913); Aldridge v. Bogue Phalia Drainage Dist., 106 Miss. 626, 64 So. 377, 1913 Miss. LEXIS 171 (Miss. 1914); Evans v. Sharbrough, 106 Miss. 687, 64 So. 466, 1914 Miss. LEXIS 5 (Miss. 1914); Freeman v. Freeman, 107 Miss. 750, 66 So. 202, 1914 Miss. LEXIS 138 (Miss. 1914); Golden v. Bank of Lake, 108 Miss. 420, 66 So. 782 (Miss. 1914); Humber v. Humber, 109 Miss. 216, 68 So. 161, 1915 Miss. LEXIS 137 (Miss. 1915); Rice v. W. L. Robinson Lumber Co., 110 Miss. 607, 70 So. 817, 1915 Miss. LEXIS 92 (Miss. 1915); Puryear v. Austin, 205 Miss. 590, 39 So. 2d 257, 1949 Miss. LEXIS 449 (Miss. 1949); Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949); James v. Federal Royalty Co., 44 So. 2d 542 (Miss. 1950).

9. Instructions.

Peremptory instruction held erroneous in view of the evidence. Illinois C. R. Co. v. Threefoot Bros. & Co., 121 Miss. 468, 83 So. 635, 1920 Miss. LEXIS 92 (Miss. 1920).

Supreme Court will not set aside verdict merely because it believes it was contrary to weight of evidence. St. Louis & S. F. R. Co. v. Bowles, 107 Miss. 97, 64 So. 968, 1914 Miss. LEXIS 55 (Miss. 1914).

Error in directing a verdict held reviewable though not assigned in motion for new trial. Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

Defendant cannot complain of failure to give instruction not requested by him, as to amount of damages, where amount assessed was well within sum jury could properly assess. Independent Order of S. & D. of J. v. Wilkes, 98 Miss. 179, 53 So. 493, 1910 Miss. LEXIS 50 (Miss. 1910).

Error in instruction disregarded, where not included in motion for new trial. Southern R. Co. v. Jackson, 49 So. 738 (Miss. 1909).

Case will not be reversed because peremptory instruction for plaintiff was given in the absence of defendant’s counsel and without giving defendant an opportunity to present additional proof, where motion for new trial made no showing as to materialty of the additional evidence. Evans v. Lilly & Co., 95 Miss. 58, 48 So. 612, 1909 Miss. LEXIS 383 (Miss. 1909).

Where case is disposed of by peremptory instruction, assignment of error directed to such disposition brings the entire case into review and permits argument on matters first raised in the Supreme Court. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

Objections to instructions not made in the court below will not be considered by the Supreme Court, and the acts of 1896, p. 91 on the subject of stenographers’ notes does not change this rule. Alexander v. Flood, 77 Miss. 925, 28 So. 787, 1900 Miss. LEXIS 60 (Miss. 1900).

10. Matters pertaining to record.

The many cases cited under Code 1972, §11-51-87 holding that the supreme court acquired no jurisdiction in cases where a copy of the judgment of the justice of the peace was not included in the record on appeal are overruled because of two statutes-Code 1972, §§11-3-35 and99-35-143-which were apparently overlooked by the early cases. Avera v. State, 300 So. 2d 787, 1974 Miss. LEXIS 1636 (Miss. 1974).

Although under the statutes it is still mandatory that the justice of the peace, or the mayor or police justice, in appeals from their courts, shall transmit to the proper clerk a certified copy of the record of the proceedings with the original papers, process and appeal bond, yet, if no objection is made to the transcript before or during the trial of the case on its merits, it will be conclusively presumed that the transcript was before the court and complied in every respect with the law. Whittington v. State, 218 Miss. 631, 67 So. 2d 515, 1953 Miss. LEXIS 581 (Miss. 1953).

While it is true that on appeals to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer on the circuit court jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

Where record did not contain judgment of justice court, appeal bond, or transcript of proceedings in justice court, but such transcript was unnecessary for understanding of proceedings in circuit court, statute prevents reversal. McCluney v. State, 162 Miss. 333, 138 So. 356, 1931 Miss. LEXIS 118 (Miss. 1931).

Without judgment of circuit court showing establishment, it is presumed certification of record was not established in circuit court on appeal from justice. Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

Assignments without basis in record will not be considered. Higgins v. State, 120 Miss. 823, 83 So. 245, 1919 Miss. LEXIS 134 (Miss. 1919).

Court will not reverse and remand for new trial where original papers have been lost through no fault of appellee. Germaine v. Harwell, 104 Miss. 679, 61 So. 659, 1913 Miss. LEXIS 72 (Miss. 1913).

Objection that stenographer’s notes were authenticated and filed out of time should be made by motion to strike before the case is submitted, and cannot be made for the first time on suggestion of error. Whittaker v. Godwin, 97 Miss. 663, 53 So. 413 (Miss. 1910).

Where clerk certifies there is no motion for continuance on file, appellant must bring the motion into the record or account for its absence before it can be reviewed. Greenburg v. Sauls Bros. & Co., 91 Miss. 410, 45 So. 569 (Miss. 1907).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 739-741, 745-751.

CJS.

5 C.J.S., Appeal and Error §§ 1232 et seq., 1106-1109.

JUDICIAL DECISIONS

1. In general.

2. Specific applications.

3. Statute held inapplicable.

1. In general.

This section and the next succeeding one [Code 1942, §§ 1988, 1989] (§ 4945, Code 1906) do not by the rule “expresso unius est exclusio alterius” prohibit the Supreme Court from limiting the issues on granting new trial where such right exists by some other statute or the common law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1915).

2. Specific applications.

In a wrongful death action, the misjoinder of nursing home licensees and administrators did not in any way prejudice a parent company of the nursing home; licensees and administrators owed a duty to their employer, and as such the parties could have been called by the decedent’s estate to provide relevant testimony, and the record demonstrated that all of the licensees and administrators did not testify, and those who did said little that advanced the case against the parent company. Mariner Health Care, Inc. v. Estate of Edwards, 964 So. 2d 1138, 2007 Miss. LEXIS 520 (Miss. 2007).

Two defendants did not have standing to appeal a determination that two other defendants were not liable for an award to the plaintiff of attorneys’ fees and costs since, no matter what the outcome of the appeal, the first two defendants would not be relieved of their obligation to pay attorneys’ fees and expenses. Mauck v. Columbus Hotel Co., 741 So. 2d 259, 1999 Miss. LEXIS 266 (Miss. 1999).

The defendant lessors did not have standing to the dismissal of intervenors on appeal in a proceeding to cancel a lease since, no matter what the outcome of the appeal, the lessors would not be relieved of their obligation to pay attorneys’ fees and expenses, and consequently their rights remained unaffected by the dismissal of the intervenors. Mauck v. Columbus Hotel Co., 1999 Miss. LEXIS 203 (Miss. June 17, 1999), op. withdrawn, sub. op., 741 So. 2d 259, 1999 Miss. LEXIS 266 (Miss. 1999).

The language of the statute applies to all cases, both civil and criminal and, therefore, two defendants did not have standing to raise the alleged error of the chancery court in dismissing two other defendants from the case, notwithstanding their contention that their potential liability was increased dramatically by the dismissal of those defendants. Mauck v. Columbus Hotel Co., 1998 Miss. LEXIS 577 (Miss. Nov. 25, 1998), op. withdrawn, sub. op., in part, 1999 Miss. LEXIS 203 (Miss. June 17, 1999).

Under this statute, an employer could not complain of the verdict against him alone in a case in which both he and his employee were sued jointly. Capital Transport Co. v. McDuff, 319 So. 2d 658, 1975 Miss. LEXIS 1484 (Miss. 1975).

Where two persons are jointly indicted and tried for a crime, and the state’s case against both defendants consists of the testimony of one witness, whose testimony is identical as to both defendants, a verdict acquitting one defendant and convicting the other does not entitle the defendant convicted to a discharge since verdicts in such cases need not be consistent. Newell v. State, 308 So. 2d 68, 1975 Miss. LEXIS 1829 (Miss. 1975).

The fact that the driver of a truck, on whose negligence his employer company’s liability depended, was exonerated from liability for injuries sustained by an automobile passenger in the collision between the automobile and the truck, did not require a reversal of the judgment for the passenger against the truck driver’s employer. D. W. Boutwell Butane Co. v. Smith, 244 So. 2d 11, 1971 Miss. LEXIS 1314 (Miss. 1971).

One defendant is in no position to complain by reason of the fact that the jury found for, and thereby released, his co-defendant, an alleged joint tortfeasor. Canton Broiler Farms, Inc. v. Warren, 214 So. 2d 671, 1968 Miss. LEXIS 1322 (Miss. 1968).

In an action for injuries sustained by the plaintiff when taxicab in which she was riding collided with another automobile, the failure to return a verdict against the driver of the cab does not affect the appeal from the judgment against the owner of the cab and business of furnishing taxi service to the public. Rawlings v. Inglebritzen, 211 Miss. 760, 52 So. 2d 630, 1951 Miss. LEXIS 403 (Miss. 1951).

Judgment of circuit court will not be reversed on appeal to Supreme Court for error in admission of incompetent evidence which was either of no effect, or, if effective, was prejudicial to appellee and not to appellant. Magnolia Miss Dress Co. v. Zorn, 204 Miss. 1, 36 So. 2d 795, 1948 Miss. LEXIS 337 (Miss. 1948).

Judgment not valid as to co-defendants not served with process, but under this section it is valid against those defendants over whom the court acquired jurisdiction. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Case not reversed as to partners served with process merely because others were not served. Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, 1917 Miss. LEXIS 247 (Miss. 1917).

In action for wrongful killing of person, judgment against railroad company, but also in favor of conductor sued jointly with it, presents no ground for reversal. St. Louis & S. F. R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 1910 Miss. LEXIS 27 (Miss. 1910).

A third party, claiming title to property seized in attachment proceedings, cannot complain of errors committed against defendant. Whitney v. Gregory, 16 So. 292 (Miss. 1894).

Where one of several defendants appealed from the decree against him, and his co-defendants, who had been defectively served by publication, entered their appearance in the supreme court and consented to a severance, thereby electing to abide by the decree, the appellant could not complain of the error against his co-defendants who failed to assign it. Burks v. Burks, 66 Miss. 494, 6 So. 244, 1889 Miss. LEXIS 135 (Miss. 1889).

Where suit commenced by attachment was premature as to one defendant but not as to the other, it was proper to affirm the judgment as to the latter and reverse the judgment against the former. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

A defendant in a judgment in attachment has no right to complain of errors in a judgment against a garnishee therein who does not complain. Tabler, Crudup & Co. v. Mitchell, 62 Miss. 437, 1884 Miss. LEXIS 100 (Miss. 1884).

3. Statute held inapplicable.

This section does not apply to a judgment absolutely void as to all parties. Weis v. Aaron, 75 Miss. 138, 21 So. 763, 1897 Miss. LEXIS 98 (Miss. 1897), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Cross References —

When new trials are to be for determination of damages only, see Miss. Sup. Ct., Rule 13.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 739-741, 745-751.

CJS.

5 C.J.S., Appeal and Error §§ 1232 et seq., 1106-1108.

JUDICIAL DECISIONS

1. In general.

2. Costs.

1. In general.

Obligations of partners, joint and several; judgment may be rendered against one partner in suit against both; judgment against all partners when evidence authorized the judgment against only one reversed in part and affirmed in part. Wise v. Cobb, 135 Miss. 673, 100 So. 189, 1924 Miss. LEXIS 58 (Miss. 1924).

In civil actions Supreme Court has common law power to award new trials on issue of damages only. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1915).

This section and the preceding one [Code 1942, § 1988] (§ 4944, Code of 1906) do not by the rule “expressio unius est exclusio alterius” prohibit the Supreme Court from limiting the issues on granting new trial where such right exists by some other statute or the common law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1915).

This section does not apply to judgment at law for default in payment over of taxes collected. Adams v. Carter, 92 Miss. 579, 47 So. 409, 1908 Miss. LEXIS 255 (Miss. 1908) but see Davis v. Noblitt & Capers Electric Co., 594 So. 2d 610, 1992 Miss. LEXIS 65 (Miss. 1992).

2. Costs.

Where affirmance of the judgment below is conditioned on a remittitur of damages, costs below should be adjudged against appellant, and the appeal costs may properly be assessed one-half to appellant and one-half to appellees. Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Where judgment for plaintiff was reversed in part and Supreme Court rendered judgment trial court should have rendered, defendant was “successful party” entitled to full costs on appeal. Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 1932 Miss. LEXIS 306 (Miss. 1932).

Cross References —

Chancery money decrees being furnished to circuit clerk, see §9-5-159.

Final record of causes in chancery court, see §9-5-161.

Final record of suits in circuit court, see §9-7-127.

Execution on judgments and decrees, see §§13-3-111 et seq.

RESEARCH REFERENCES

ALR.

Attorneys’ fees as recoverable in fraud action. 44 A.L.R.4th 776.

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 721, 722.

CJS.

5 C.J.S., Appeal and Error §§ 1136-1139.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. In general.

2. Certification of judgment.

3. —Final judgment or decree.

4. Enforcement of judgment.

5. Under former law.

1. In general.

Where a suggestion of error was filed in the supreme court after rendition of judgments of affirmance by the supreme court on appeal, this filing had the effect of suspending the judgment, so that the parties who had three months for performance of condition of judgment had three months after disposal of suggestion of error to perform such condition. Burton v. Redmond, 220 Miss. 704, 71 So. 2d 772, 1954 Miss. LEXIS 486 (Miss. 1954).

Where defendant was convicted of crime of robbery with firearms and suggestion of error was overruled by Supreme Court of the state and later Supreme Court of United States dismissed the appeal and the mandate of the court was received and filed by the clerk of court, a petition for stay of mandate which was unknown to the procedure in the Supreme Court after the overruling of a suggestion of error in a criminal case was unauthorized. Brooks v. State, 213 Miss. 1, 56 So. 2d 9, 1952 Miss. LEXIS 325 (Miss. 1952).

An appeal from a county court judgment denying petition for habeas corpus to secure release of accused who is held as fugitive from justice, and after the bond for appeal to the Supreme Court was approved and filed, the only method known to reinvest jurisdiction in the county court is by reversal and remand thereto by the Supreme Court and the filing in the county court of a mandate from the Supreme Court. Roberson v. Quave, 211 Miss. 398, 51 So. 2d 777, 1951 Miss. LEXIS 370 (Miss. 1951).

It was neither the desire nor the intention of the legislature in the enactment of this section, to regulate or limit the jurisdiction of the supreme court in the matter of entertaining timely suggestions of error for the purpose of reconsidering, modifying or changing its decisions and judgments, as the circumstances and justice of the case may require. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

2. Certification of judgment.

The supreme court was not divested of jurisdiction to hear a manslaughter case on suggestion of error after mandate was issued to and received by the court below upon reversal of the case by a division of the supreme court, where within the fifteen days allowed for filing such suggestion of error, an extension of time was granted so as to allow thirty days for filing the same, as shown by an order duly entered upon the minutes of the court prior to the expiration of the original fifteen days allowed, notwithstanding that no order was entered in the supreme court, nor notice given to the court below, recalling such mandate at any time prior thereto. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

An appellate court may recall its mandate where it has been inadvertently issued, or where it has been prematurely and erroneously issued before the expiration of the time allowed for a rehearing. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

The proper construction of this section requires the clerk of the supreme court to certify a final judgment or decree within twenty days after any suggestion of error shall have been disposed of or, if none has been filed, that he then certify the judgment and issue the mandate, within the period so prescribed, after the time allowed under the rule for filing a suggestion of error, or the extended time granted under an order of the court for that purpose, shall have expired. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

Where on appeal decree is entered making injunction perpetual which is certified to lower court for execution the cause is at end and lower court has no further jurisdiction. George v. Caldwell, 98 Miss. 820, 54 So. 316, 1910 Miss. LEXIS 129 (Miss. 1910).

3. —Final judgment or decree.

A final judgment or decree within the meaning of this section [Code 1942, § 1990] is not necessarily one that terminates the litigation in the case, but one that disposes finally of the appeal. Mobile & O. R. Co. v. Watly, 69 Miss. 475, 12 So. 558, 1891 Miss. LEXIS 118 (Miss. 1891).

4. Enforcement of judgment.

A mandate will not direct issuance of execution against the principal defendant and the sureties on his appeal bond for the sum of all sums due under the judgment affirmed. Thomas v. Cook, 236 Miss. 365, 109 So. 2d 861, 1959 Miss. LEXIS 327 (Miss. 1959).

Supreme Court’s judgment must be enforced by court from which appeal came after its certification thereto by Supreme Court. Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626, 1932 Miss. LEXIS 3 (Miss. 1932).

Supreme Court judgment, affirming circuit court judgment, affirming county court judgment, need not direct circuit court to remand case for enforcement by execution. Brandon v. Interstate Life & Acci. Co., 149 Miss. 814, 116 So. 739, 1928 Miss. LEXIS 99 (Miss. 1928).

Failure to obey judgment should be punished by court rendering it. Ganong v. Jonestown, 98 Miss. 265, 53 So. 594, 1910 Miss. LEXIS 60 (Miss. 1910).

5. Under former law.

Where an appeal by the plaintiff has been dismissed and costs were taxed to the plaintiff, but the costs were never paid, the clerk of the reviewing court could properly withhold mandate as long as the costs were not paid. Edmonds v. Delta Democrat Publishing Co., 221 Miss. 785, 75 So. 2d 73, 1954 Miss. LEXIS 594 (Miss. 1954).

Statutes permitting suit in forma pauperis applies only to a court of original jurisdiction and not to courts of appeal so as to permit setting down of a mandate on an affidavit in forma pauperis. Life & Casualty Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 200 So. 732, 1940 Miss. LEXIS 183 (Miss. 1940).

Clerk of trial court held without authority to issue writ of garnishment for collection of costs incurred on appeal to Supreme Court. State v. Keeton, 176 Miss. 590, 169 So. 760, 1936 Miss. LEXIS 143 (Miss. 1936).

The clerk of the Supreme Court cannot be compelled to certify to the court below a final judgment or decree until the costs of the appeal, including costs for which he may issue execution, shall be paid. Mobile & O. R. Co. v. Watly, 69 Miss. 475, 12 So. 558, 1891 Miss. LEXIS 118 (Miss. 1891).

Cross References —

Issuance and stay of mandate, see Miss. Sup. Ct., Rule 41.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 30-34, 47.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. In general.

Section 11-3-43, requiring that costs be paid in order to obtain a mandate and that it be done within 2 years or the appellee will be barred from pursuing the action on remand, was tolled and did not run on an appellee’s right to retrial following remand where a mandate had been issued by the clerk of the Supreme Court, even though costs had not been paid. Martin v. Reikes, 587 So. 2d 285, 1991 Miss. LEXIS 677 (Miss. 1991).

It is not within the province of the Supreme Court to deliver advisory opinions. Gipson v. State, 203 Miss. 439, 36 So. 2d 154 (1948).

Taxation of costs on affirmance in part and reversal in part. Boyd v. Applewhite, 123 Miss. 185, 85 So. 87, 1920 Miss. LEXIS 17 (Miss. 1920).

It is not essential under this section [Code 1942, § 1991] to the authority of an inferior court to proceed in a remanded case that the opinion of the Supreme Court should accompany the mandate. Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 1899 Miss. LEXIS 36 (Miss. 1898), aff'd, 180 U.S. 1, 21 S. Ct. 240, 45 L. Ed. 395, 1901 U.S. LEXIS 1278 (U.S. 1901).

Editor’s Notes —

Former §11-3-45 required that the appellant prepay certain costs.

Cross References —

Chancellors, terms, general powers and duties of chancery court, see §§9-5-1 et seq.

Application to all courts of circuit court civil practice provisions, see §11-7-1.

Venue of actions and suits generally, see §§11-11-1 et seq.

Provisions relating to injunctions generally, see §§11-13-1 et seq.

Suits to confirm title or interest, and to remove clouds on title, see §§11-17-1 et seq.

Partition of land by chancery court, see §11-21-3.

Sequestration of property, see §§11-29-1 et seq.

Attachment in chancery against nonresident, absent or absconding debtors, see §§11-31-1 et seq.

Garnishment proceedings, see §§11-35-1 et seq.

Habeas corpus proceedings, see §§11-43-1 et seq.

Suits against state or its political subdivisions, see §§11-45-1 et seq.

Rules of evidence generally, see §§13-1-1 et seq.

Process, publication and notice generally, see §§13-3-1 et seq.

Limitation of actions concerning land, see §§15-1-7,15-1-9.

Rules governing practice and procedure in chancery courts, see Miss. Uniform Chancery Court Rules 1.00 et seq.

RESEARCH REFERENCES

ALR.

Venue of suit to enjoin nuisance. 7 A.L.R.2d 481.

Relationship between “residence” and “domicil” under venue statutes. 12 A.L.R.2d 757.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Place of personal representative’s appointment as venue of action against him in his official capacity. 93 A.L.R.2d 1199.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 51, 52, 141, 147 .

20A Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 25.1 (Complaint, petition, or declaration – To remove cloud on title – To enjoin construction of edifice until boundary dispute determined).

CJS.

30A C.J.S., Equity §§ 84-93.

Lawyers’ Edition.

State venue provisions for civil actions as violating equal protection clause of Federal Constitution’s Fourteenth Amendment – Supreme court cases. 119 L. Ed. 2d 665.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

JUDICIAL DECISIONS

1. In general.

2. Suits to confirm, or remove clouds from, title.

3. Other suits involving real or personal property.

4. Suits involving executors, etc.

5. Venue where defendant resides or is found.

6. —Necessary party defendant.

1. In general.

General venue statute for chancery court did not apply in the State’s action against pharmaceutical manufacturers because the location of a foreign corporation’s registered agent was irrelevant to determine venue; because the general venue statute for chancery court did not apply, and the general venue statute provided criteria that did not rely on the location of a registered agent, the trial court’s reliance on the general venue state was appropriate. Purdue Pharma L.P. v. State, 256 So.3d 1, 2018 Miss. LEXIS 415 (Miss. 2018).

Where plaintiff sued the Mississippi Attorney General to obtain discovery from him for use in an administrative proceeding, as the suit was against him in his official capacity, and under Miss. Const. Art. 4, § 101, the seat of state government was in Hinds County, venue was proper there, not in Rankin County, where he lived. Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So. 2d 939, 2004 Miss. LEXIS 12 (Miss. 2004).

A party waived his right to raise the defense of improper venue when he failed to include that defense with his initial Motion to Quash and Set Aside and extended to the court the authority to hear the Motion to Quash without raising the defense of improper venue. Lowrey v. Last Will & Testament of Smith, 543 So. 2d 1155, 1989 Miss. LEXIS 185 (Miss. 1989).

Venue was not proper in Forrest County while action in Hinds County was pending and abeyance agreed to, where statute provided that one aggrieved by denial of access to public records could institute suit in Chancery Court of County in which public body was located; contention that Board of Trustees of state institutions of higher learning could be sued in any county where it did business was rejected, where to do so would require Board to defend actions in all 82 counties; Chancery Court has no jurisdiction over defendant who neither resides nor is found in county where suit is filed, absent waiver. Board of Trustees v. Slyke, 510 So. 2d 490, 1987 Miss. LEXIS 2982 (Miss. 1987).

A Mississippi court is without jurisdiction to quiet title to lands in another state. Jacobson v. Jones, 236 Miss. 640, 111 So. 2d 408, 1959 Miss. LEXIS 360 (Miss. 1959).

This section does not confer jurisdiction, but fixes the venue or locality in which suits may be tried of which the chancery court has jurisdiction. State ex rel. Gully v. Massachusetts Bonding & Ins. Co., 187 Miss. 66, 191 So. 285, 1939 Miss. LEXIS 79 (Miss. 1939).

Chancery court has jurisdiction to remove trustee, irrespective of his domicile. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

This statute does not apply to suits for partition of land. Such suits are governed by the chapter on that subject. Nugent & McWillie v. Powell, 63 Miss. 99, 1885 Miss. LEXIS 23 (Miss. 1885).

2. Suits to confirm, or remove clouds from, title.

Where, in a suit to enjoin the defendants from foreclosing a deed of trust and to cancel such deed of trust as a cloud upon complainants’ title, title to that part of the land covered by the deed of trust situated in the county in which the suit was brought had, at the time suit was brought, matured in the state under tax sales, and the defendants moved to dismiss the suit because the court had no territorial jurisdiction in that the rest of the land was situated in another county, but the suit was dismissed on another ground urged in such motion, defendants’ failure on complainants’ appeal from dismissal to urge the point that suit could not be maintained other than that in which it was situated, constituted waiver of the point. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

A suit to cancel a claim against land as a cloud upon the title, where the property is in possession of the complainant and the court is not asked to make any disposition thereof, should not be held to be a proceeding purely in rem in the sense that a court would be wholly without jurisdiction in a county other than where the land is situated. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

3. Other suits involving real or personal property.

Venue was not jurisdictional a brother’s action to set aside a deed to the family farm from their mother to a revocable trust, and the sister waived any objection to the suit being heard in the county because the venue issue was never pursued to a ruling in the chancery court. Hodnett v. Hodnett, — So.3d —, 2018 Miss. App. LEXIS 189 (Miss. Ct. App. Apr. 17, 2018), cert. denied, 258 So.3d 287, 2018 Miss. LEXIS 527 (Miss. 2018).

Where the insurer alleged that the insured committed insurance fraud, the insured’s assertion that it was an in personam action, with venue in the county where the insured resided, was rejected; the specific terms of Miss. Code Ann. §11-5-1 regarding venue for real and personal property actions, prevailed over the general terms of Miss. Code Ann. §11-11-3, which placed venue generally in the county of the defendant’s residence, thus, venue was properly in the county of the insurer’s office where the certificates were issued, and from where the claims were paid. Guice v. Miss. Life Ins. Co., 836 So. 2d 756, 2003 Miss. LEXIS 56 (Miss. 2003).

Trial court did not err in failing to grant defendant’s motion to transfer venue or for change of venue where debtors on mortgage were domiciled in county where property secured by deed of trust was located, but action was brought in different county; notes given by debtors on their face were payable in county where action was brought, and under §75-3-504, where negotiable instrument is payable in two places, holder has option to present it at either and is not under obligation to notify maker at which of places demand will be made. Haygood v. First Nat'l Bank, 517 So. 2d 553, 1987 Miss. LEXIS 2923 (Miss. 1987).

In an action to set aside an allegedly fraudulent conveyance of personal property, venue was in the county in which the property was located since the specific terms of Code 1972, §11-5-1 prevail over the general terms of Code 1972, §11-11-3. Green v. Winona Elevator Co., 319 So. 2d 224, 1975 Miss. LEXIS 1475 (Miss. 1975).

In a bill to recover a commission for producing a purchaser for real property owned by defendants and sold to a codefendant, and for an amount expended for authorized repairs, where the property lay in Jackson County, and the alleged contract of sale was made in that county and an alleged fraud occurred therein, the chancery court of the county had jurisdiction over the subject matter; and when the defendants entered their appearances, the court acquired jurisdiction of the parties. Arndt v. Turner, 230 Miss. 294, 92 So. 2d 875, 1957 Miss. LEXIS 371 (Miss. 1957).

In a proceeding upon attachment in chancery to recover for injuries received and to attach nonresident corporate defendant’s funds and property at the hands of Mississippi corporation which operated a motor transportation line in Winston County and a person residing in Choctaw County, although another defendant resided in Hinds County, venue was properly laid in Winston County. Continental Southern Lines, Inc. v. Wicker, 217 Miss. 856, 65 So. 2d 272, 1953 Miss. LEXIS 501 (Miss. 1953).

A purchaser under an executory contract for sale and purchase of land is entitled to equitable lien upon the land for amount which he has paid on purchase price, where the vendor failed to make good title within time required by contract, and the purchaser could maintain a suit in chancery court of the county in which the farm was located to impose an equitable lien. Cole v. Haynes, 216 Miss. 485, 62 So. 2d 779, 1953 Miss. LEXIS 659 (Miss. 1953).

Suit to enjoin drainage into streams so as to cause overflow of lower land maintainable in county in which such land is situated. Board of Drainage Comm'rs v. Board of Drainage Comm'rs, 130 Miss. 764, 95 So. 75, 1922 Miss. LEXIS 253 (Miss. 1923).

A bill by a judgment-debtor, seeking to enjoin the enforcement of the judgment, and to recover from the sheriff the possession of the property levied on, is a suit respecting real or personal property, and may be filed in the county where the property is. Boswell v. Wheat, 37 Miss. 610, 1859 Miss. LEXIS 58 (Miss. 1859).

4. Suits involving executors, etc.

This section contains no provision for a compulsory change of venue where an executor is sued along with another defendant in some county other than that in which the will was admitted to probate. Myers v. Vinson, 212 Miss. 85, 54 So. 2d 168, 1951 Miss. LEXIS 430 (Miss. 1951).

Chancery court of county in which nonexempt land of decedent is located does not have jurisdiction of bill by creditor seeking lien against land for payment of his claims, when decedent’s estate is in process of administration in another county. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

No court other than chancery court in which letters of administration has been granted has jurisdiction over petition for sale of decedent’s nonexempt lands for payment of decedent’s debts. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Jurisdiction of all demands by creditors or others against an estate of a decedent is vested in chancery court of county in which letters of administration are granted. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

An action to charge administratrix, and her sureties, for devastation of a deceased war veteran’s estate, consisting of the proceeds of war risk insurance and adjusted compensation, and also to charge the chancery clerk of Choctaw County for his negligent loss of one of the bonds securing the proper administration of the estate, was properly brought in Choctaw County where the administration of the estate was in such county and one of the defendants was the chancery clerk thereof. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

Suit on bond of executor appointed in Tennessee to pay over money converted in Mississippi to be administered in accordance with laws of Tennessee was maintainable in Mississippi. Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, 1910 Miss. LEXIS 132 (Miss. 1910).

Courts of this state have jurisdiction of suit by creditors on executrix’s bond for concealing assets, though executrix resides in Alabama, where administration is undertaken in Mississippi, executrix resided here at decedent’s death, the assets have their situs here, and her surety resides here. Myers v. Martinez, 95 Miss. 104, 48 So. 291, 1909 Miss. LEXIS 206 (Miss. 1909).

5. Venue where defendant resides or is found.

The chancery court of Hinds County should have transferred a separate maintenance suit to the Rankin County chancery court, even though the defendant was temporarily residing in Hinds County where he was found for the service of process, where the defendant owned a home in Rankin County which he still considered to be his residence, he was registered to vote and did vote in Rankin County, and he had a homestead exemption on a home in Rankin County; the mere fact that the defendant was not actually present in his home did not mean that it was not his residence. Dunn v. Dunn, 577 So. 2d 378, 1991 Miss. LEXIS 117 (Miss. 1991).

Decision by chancery court in Walthall County that reversed Medicaid’s decision denying a claimant nursing home benefits was reversed on appeal, where venue was improper in Walthall County; venue was proper in Hinds County, the seat of state government. Office of the Governor Div. of Medicaid v. Johnson, 950 So. 2d 1033, 2006 Miss. App. LEXIS 747 (Miss. Ct. App. 2006).

Putative father sued for support in both maternity proceeding under §93-9-17 and support proceeding under §43-19-33 has right to have cause heard in county in which he resides, if he is resident of state of Mississippi; defendant must timely assert right to venue in county of residence via Rule 12(b)(3) motion, and failure to do so amounts to waiver. Belk v. State Dep't of Public Welfare, 473 So. 2d 447, 1985 Miss. LEXIS 2179 (Miss. 1985).

In an action for an injunction and the recovery of damages against multiple defendants who had engaged in an economic boycott against plaintiffs’ businesses, the chancery court did not err in refusing to grant a change of venue from Hinds County to Claiborne County where at least three of the defendants “resided” in the First Judicial District of Hinds County. NAACP v. Claiborne Hardware Co., 393 So. 2d 1290, 1980 Miss. LEXIS 2174 (Miss. 1980), amended, 405 So. 2d 115, 1981 Miss. LEXIS 2244 (Miss. 1981), rev'd, 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215, 1982 U.S. LEXIS 49 (U.S. 1982).

A suit for alimony pendente lite, separate maintenance, and attorneys’ fees which was brought in Tate County, the residence of the wife, should have been transferred to the chancery court of Alcorn County where the evidence established that the latter county was the residence of the husband, and the husband had made timely objection to the venue. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

Wife’s separate maintenance suit should be brought in county of which husband is resident. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

In an action to recover damages for alleged tort against a sheriff (a nonresident of the county), his surety, a nonresident corporation, and certain resident garnishee defendants, the defendants were entitled to have the venue changed to the county of the sheriff’s residence, in view of the statute providing for the change of venue of an action against a public officer to the county of his residence upon his application, notwithstanding another provision that “all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be bound.” Holyfield v. State, 194 Miss. 91, 10 So. 2d 841, 1942 Miss. LEXIS 165 (Miss. 1942).

A cause of action to recover for usurious interest charges, forfeiture of principal, and an accounting for the price of cotton produced by plaintiff’s assignors accrued in the county in which suit was brought by reason of the fact that some of plaintiff’s assignors were tenants of a defendant’s plantation situated in that county, but that did not give the chancery court of such county jurisdiction where the defendant in question did not reside or could not be found therein, since under this section [Code 1942, § 1274], in cases of this character, the venue was in the county where a necessary party defendant might reside or be found. McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847, 1940 Miss. LEXIS 211 (Miss. 1940).

Suit against nonresidents temporarily engaged in road construction in state must be brought in county where road being constructed and where process served on three of them, although purchase-money notes for trucks sold two defendants were payable in another county. Brashier v. J. C. O'Connor & Sons, 181 Miss. 872, 180 So. 67, 1938 Miss. LEXIS 126 (Miss. 1938).

Chancery court had jurisdiction over nonresident stockholder who was made party defendant to suit by superintendent of banks against all stockholders of bank to recover statutory liability from stockholders, in absence of contention that none of stockholders resided in county where suit was brought. Anderson v. Love, 169 Miss. 219, 151 So. 366, 153 So. 369, 1933 Miss. LEXIS 8 (Miss. 1933), set aside, 169 Miss. 237, 153 So. 369 (Miss. 1934).

Attachment suit against nonresidents brought in county of any necessary defendants as authorized by statute does not unconstitutionally discriminate against any necessary defendant. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Statute fixing venue in action against railroad in any county in which line of railroad runs is applicable only when railroad is sued alone; suit against two or more railroads as necessary defendants or against several defendants living in separate counties falls under provisions of general venue statutes. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Where divorce decree granted in H. County did not provide for child’s maintenance, chancery court of another county, where divorced husband resided, had jurisdiction of suit for moneys expended for child’s maintenance, etc. Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 1929 Miss. LEXIS 344 (Miss. 1929).

A bill to foreclose a deed of trust may be filed in the chancery court where the trustee resides, although the property and all other defendants reside elsewhere. Moyse v. Cohn, 76 Miss. 590, 25 So. 169, 1898 Miss. LEXIS 134 (Miss. 1898).

A bill by the pledgor of a promissory note against the mortgagor and pledgee may be filed in the chancery court of the county in which the pledgee resides. Baker v. Burkett, 75 Miss. 89, 21 So. 970, 1897 Miss. LEXIS 102 (Miss. 1897).

A purchaser of land situated in another state can maintain a bill in the chancery court of the county of this state where his vendor resides to enforce the warranty of title and obtain reimbursement for expenditures in resisting a suit and extinguishing a paramount title. Oliver v. Loye, 59 Miss. 320, 1881 Miss. LEXIS 124 (Miss. 1881), limited, Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 1940 Miss. LEXIS 104 (Miss. 1940).

6. —Necessary party defendant.

In an attachment proceeding in chancery against a nonresident defendant, the presence of a resident defendant, who was alleged to have in his possession property of such nonresident defendant, was absolutely necessary to enable the complainant to proceed with her suit and to realize on any decree in her favor. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So. 2d 844, 1941 Miss. LEXIS 172 (Miss. 1941).

Where, at the time of filing an action to recover for alleged usurious interest charges, forfeiture of principal, and for an accounting for the price of cotton produced by the plaintiff’s assignor, there was an agreement that one of the defendants, residing in the county in which suit was brought, would not be heard by the suit, he was not a necessary party and the chancery court was warranted in dismissing the suit as to all defendants for want of a necessary party residing in that county, it being immaterial what consideration induced the agreement. McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847, 1940 Miss. LEXIS 211 (Miss. 1940).

Superintendent of banks could join all bank stockholders in suit in equity to recover statutory liability from stockholders who were all proper parties thereto. Anderson v. Love, 169 Miss. 219, 151 So. 366, 153 So. 369, 1933 Miss. LEXIS 8 (Miss. 1933), set aside, 169 Miss. 237, 153 So. 369 (Miss. 1934).

Seller’s agent not accounting for receipts held not necessary party to seller’s action against buyer for balance due for sheep sold, as regards venue. Burgin v. Smith, 163 Miss. 797, 141 So. 760, 1932 Miss. LEXIS 88 (Miss. 1932).

Cross References —

Questions of negligence for the jury, see §11-7-17.

Instructions to jury in civil cases, see §11-7-155.

Juries, generally, see §§13-5-1 et seq.

The rules governing the examination, selection of, and challenges to jurors, and for those covering jury instructions, see Miss. R. Civ. P. 47, 48, 51.

RESEARCH REFERENCES

ALR.

Right in equity suit to jury trial of counterclaim involving legal issue. 17 A.L.R.3d 1321.

Prospective juror’s connection with insurance company as ground for challenge for cause. 9 A.L.R.5th 102.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 201-205, 220.

JUDICIAL DECISIONS

1. In general.

2. Discretion of court.

3. Questions on appeal.

1. In general.

Where legislature adopted the construction placed upon this section by Supreme Court by re-enacting it, such construction is binding on Supreme Court. Griffin v. Jones, 170 Miss. 230, 154 So. 551, 1934 Miss. LEXIS 126 (Miss. 1934).

Circuit court clerk is custodian of the jury box and must place therein slips containing jurors’ names in accordance with list furnished him. Nelson v. State, 160 Miss. 401, 133 So. 248, 1931 Miss. LEXIS 159 (Miss. 1931).

Laws 1910 ch. 134 giving chancery courts concurrent jurisdiction of suits for penalty for violation thereof does not violate Const. 1890 §§ 26, 31, since, under this section (§ 558, Code 1906), the chancellor is empowered to award a jury trial when needed. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

2. Discretion of court.

Under Code 1972 §11-5-3, §91-7-23, and §91-7-29, prescribing will contest procedures, trial judge erred in directing verdict in favor of proponents of will on issue of testamentary capacity and undue influence, since roll of jury in will contest is same as that of jury in civil trial in court of law and is not “merely advisory.” Fowler v. Fisher, 353 So. 2d 497, 1977 Miss. LEXIS 2002 (Miss. 1977).

In litigation, growing out of death and injuries sustained in a collision of two automobiles, filed in the chancery court in the county where letters of administration on the decedent’s estates were issued, complainants charged that the accident was due to the negligence of a construction company, through its agent, in obstructing the highway, charged negligence in the operation of his automobile on the part of another defendant, who allegedly was an agent of a nonresident insurance company, and also charged, on information and belief, that another defendant had money and effects of the nonresident insurance company, and prayed for an attachment, where upon appeal from the decrees in favor of complainants, the Supreme Court found no reversible error in the record, the judgment would not be reversed in view of Mississippi Constitution § 147, and while the chancery court in his discretion might have directed the trial of the case by jury, error could not be predicated upon the refusal of a jury trial. Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 1957 Miss. LEXIS 512 (Miss. 1957).

Under this section, the court was authorized in its discretion to allow the jury to try the issue involving conflicting claims to realty, but since the granting of a jury trial is wholly discretionary, the court may disregard the finding of the jury when made. Laub v. Reason, 217 Miss. 475, 64 So. 2d 637, 1953 Miss. LEXIS 454 (Miss. 1953).

In suit for partition where cross-bill denied complainant’s title a jury trial is within the discretion of the court. Bland v. Bland, 105 Miss. 478, 62 So. 641, 1913 Miss. LEXIS 233 (Miss. 1913).

In suit by trustee in bankruptcy for an accounting to recover preferences whether the issues shall be submitted to a jury is within the discretion of the court. Carradine v. Estate of Carradine, 58 Miss. 286, 1880 Miss. LEXIS 123 (Miss. 1880); First State Bank v. Lincoln, 97 Miss. 720, 53 So. 387, 1910 Miss. LEXIS 292 (Miss. 1910).

3. Questions on appeal.

Neither chancellor nor jury have an arbitrary right to disregard testimony which is neither inconsistent with laws of nature nor contradicted either by direct or circumstantial evidence. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

In determining question whether trial court erred in granting appellee’s peremptory instruction, it being urged that there was evidence on which jury might have rendered adverse verdict, question presented is whether decree of chancellor was correct irrespective of jury and as if no jury had been present. Griffin v. Jones, 170 Miss. 230, 154 So. 551, 1934 Miss. LEXIS 126 (Miss. 1934).

Where chancellor approves jury verdict by rendering judgment thereon Supreme Court will not reverse for misdirection of jury unless the facts do not support the verdict, or the chancellor misconceived the law. Studdard v. Carter, 120 Miss. 246, 82 So. 70, 1919 Miss. LEXIS 81 (Miss. 1919).

Cross References —

Change of venue generally, see §§11-11-51 et seq.

Rule governing change of venue, see Miss. R. Civ. P. 82.

RESEARCH REFERENCES

ALR.

Construction and effect of statutory provision for change of venue for the promotion of the convenience of witnesses and ends of justice. 74 A.L.R.2d 16.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Am. Jur.

77 Am. Jur. 2d, Venue §§ 45 et seq.

CJS.

92A C.J.S., Venue §§ 121-135.

JUDICIAL DECISIONS

1. In general.

A party waived his right to raise the defense of improper venue when he failed to include that defense with his initial Motion to Quash and Set Aside and extended to the court the authority to hear the Motion to Quash without raising the defense of improper venue. Lowrey v. Last Will & Testament of Smith, 543 So. 2d 1155, 1989 Miss. LEXIS 185 (Miss. 1989).

Provision that chancery court to which venue is changed shall try the issue by jury is mandatory. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 1922 Miss. LEXIS 106 (Miss. 1922).

Editor’s Notes —

Former §11-5-7 specified the application of rules specified in this chapter.

Former §11-5-9 provided that all pleadings shall be subscribed by the party or his solicitor.

Former §11-5-11 specified what the address of bills and petitions, and what the introduction should be.

Former §11-5-13 specified what the bill must contain.

Former §11-5-15 provided that exhibits filed with a bill would be considered as if copied in the bill.

Former §11-5-17 specified when a defendant was to answer or demur.

Former §11-5-19 provided a form of demurrers.

Former §11-5-21 provided that a demurrer must have attached the solicitor’s certificate that he believes it ought to be sustained.

Former §11-5-23 specified the legal sufficiency of a bill or petition questioned by answer or demurrer, and provided for a vacation hearing on a demurrer.

Former §11-5-25 abolished pleas in chancery, required every defense to be made in the answer, and provided for a separate hearing on a plea set up in the answer, if warranted.

Former §11-5-27 required the defendant to answer all allegations and provided that a denial by reference to a designated paragraph was a sufficient denial.

Former §11-5-29 required that the answer be sworn to unless such requirement was waived, and specified how a corporation should answer.

Editor’s Notes —

Pursuant to Miss. Constn., § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Rules abolishing technical forms of pleading, eliminating the two witness rule, and allowing answer without oath, see Miss. R. Civ. P. 8, 11.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

Editor’s Notes —

Former §11-5-33 abolished the rule requiring two witnesses to overthrow an answer.

Former §11-5-35 provided that exhibits could be proved by affidavits or witnesses.

Former §11-5-37 authorized making an answer a cross-bill against a complainant or codefendant.

Former §11-5-39 authorized a complainant to obtain an order of attachment to compel the defendant to answer when defendant fails to answer.

Former §11-5-41 required the imprisonment of a defendant who refused to answer after an attachment for the purpose of coercing an answer.

Former §11-5-43 provided that a replication to an answer was not required, but that the cause would be at issue when the answer was filed.

Former §11-5-45 abolished exceptions to bills and answers, and provided for objections by motion, motions to strike and amendments to bills and answers.

Former §11-5-47 authorized an agreement between parties for additional time to answer or demur, provided that a solicitor, once authorized, was authorized until written notice of termination of authority was given.

Amendment Notes —

The 2008 amendment substituted “persons with mental retardation, persons with mental illness” for “idiocy, lunacy” in the first sentence; inserted “shall” following “and a decree” near the end; and made minor stylistic changes throughout.

The 2010 amendment substituted “persons with an intellectual disability” for “persons with mental retardation” in the first sentence.

Cross References —

Preservation of summary proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

What amounts to “appearance” under statute or rule requiring notice, to party who has “appeared,” of intention to take default judgment. 73 A.L.R.3d 1250.

Am. Jur.

27A Am. Jur. 2d, Equity § 154.

61A Am. Jur. 2d, Pleading §§ 112, 115-117, 119.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue-Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Matters testamentary and of administration.

3. Minors’ business.

1. In general.

Under this section [Code 1942, § 1281] adherence to the strict rules of pleading is not required in proceedings in matters testamentary and of administration. Duling v. Duling's Estate, 211 Miss. 465, 52 So. 2d 39, 1951 Miss. LEXIS 378 (Miss. 1951).

Affirmative averments, in an answer, even though it be under oath, are not evidence and must be proved, aliunde the answer. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

In matters testamentary and of administration no answers under oath are required, whether waived or not. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

2. Matters testamentary and of administration.

Petitions, one by intestate’s widow claiming the proceeds of certain personalty sold by order of the court, and another by the intestate’s daughters praying that the property be established as part of the assets of the estate, were matters in the course of the administration of the estate and neither required any answer; accordingly, failure of intestate’s daughters to waive oaths to the widow’s answer to their petition, and her oath to it, should have had no weight in the chancellor’s adjudication of the issues. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

Although it appeared in a contest between residuary legatees, seeking to compel the inclusion of certain corporate stock in the assets of testatrix’s estate, and certain persons claiming such stock as being a gift inter vivos that the residuary legatee filed a pleading to the answer of the executor which was sworn to by positive oath containing a positive and unequivocal allegation that the stock in controversy was not assigned, transferred, conveyed or delivered to the alleged donee thereof during the lifetime of the testatrix, and the answer of the ultimate beneficiaries of the alleged gift in such pleading was also sworn to, the answers were entitled to be given only such weight and credit as in view of the interests of the parties making the same, and the other circumstances of the case, it might be fairly entitled to, since in matters testamentary and of administration no answers under oath were required, whether waived or not. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

Administrator petitioning for authority to sell land to pay debts had burden of proving that the land was such an asset of the estate as the court could order sold for that purpose. Robinson v. Martin, 103 Miss. 733, 60 So. 769, 1912 Miss. LEXIS 223 (Miss. 1913).

3. Minors’ business.

The court is under the duty to see that the interest of the minor is properly presented, and has power to require any amendment or specific proceeding to be filed as it may deem necessary for the ascertainment of the truth. Dorsey v. Murphy, 188 Miss. 291, 194 So. 603, 1940 Miss. LEXIS 29 (Miss. 1940).

In inquiring into accounts of guardians, the court is not controlled by strict technical rules; and it should inquire into the matter and look after the interest of the minor even though that interest is not set forth with technical precision in the pleading. Dorsey v. Murphy, 188 Miss. 291, 194 So. 603, 1940 Miss. LEXIS 29 (Miss. 1940).

Cross References —

Construction of the term “demurrer”, as well as other terms, when used in a statute, see Miss. R. Civ. P. 81.

Filing of pleadings before presentation, see Miss. Uniform Chancery Court Rule 2.02.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 154, 155.

61A Am. Jur. 2d, Pleading §§ 196-200, 211-285.

Editor’s Notes —

Former §11-5-53 provided that amendments to pleadings and proceedings would be allowed on liberal terms.

Former §11-5-55 authorized a complainant to file an amended bill to make new parties in vacation, without leave of court.

Former §11-5-57 specified when a complainant could amend his bill without leave of the court.

Former §11-5-59 specified the amount of time provided to answer an amended bill or petition.

Former §11-5-61 specified how amendments of bill and answers were to be made.

Former §11-5-63 related to demurrer for multifariousness.

Former §11-5-65 provided that an objection for misjoinder of parties taken at the hearing could not be considered, and directed the court to decree upon the merits.

Former §11-5-67 specified when causes were triable.

Former §11-5-69 specified the methods of adducing testimony and examining witnesses.

Former §11-5-71 authorized the defendant to introduce evidence even though defendant’s motion to exclude complainant’s evidence was overruled.

Former §11-5-73 related to bills of exceptions.

Amendment Notes —

The 2006 amendment, in the first sentence, substituted “causes of action filed under the Uniform Fraudulent Transfer Act” for “bills exhibited by creditors who have not obtained judgments at law or having judgments, have not had executions returned unsatisfied whether their debts be due or not to set aside fraudulent conveyances of property or other devices resorted to for the purpose of hindering delaying or defrauding creditors; and may subject the property to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned ‘no property found’ ”; and substituted “complaint” for “bill” throughout the section.

Cross References —

Attachment in chancery against nonresident, absent or absconding debtors, see §§11-31-1 et seq.

Fraudulent transfers and conveyances, see §§15-3-101 et seq.

RESEARCH REFERENCES

ALR.

Assumption of mortgage as consideration for conveyance attacked as in fraud of creditors. 6 A.L.R.2d 270.

Necessary party defendant to action to set aside conveyance in fraud of creditors. 24 A.L.R.2d 395.

Right of creditors who attack as fraudulent a conveyance by third person to debtor’s spouse. 35 A.L.R.2d 8.

Venue of action to set aside as fraudulent conveyance of real property. 37 A.L.R.2d 568.

Accountability and rentability for rents and profits of grantee of fraudulently conveyed realty. 60 A.L.R.2d 593.

Right of tort claimant, prior to judgment, to attack transfer as fraudulent. 73 A.L.R.2d 749.

Right of creditor to recover damages for conspiracy to defraud him of claim. 11 A.L.R.4th 345.

Am. Jur.

37 Am. Jur. 2d, Fraudulent Conveyances §§ 103-105, 126-146.

12A Am. Jur. Pl & Pr Forms (Rev), Fraudulent Conveyances, Form 4.1 (Complaint, petition, or declaration – To vacate and cancel fraudulent conveyances-By judgment creditor).

12 Am. Jur. Pl & Pr Forms (Rev), Fraudulent Conveyances, Forms No. 1-101, 181-186.

25 Am. Jur. Proof of Facts 3d 591, Avoidance and Recovery of Fraudulent Transfers.

CJS.

37 C.J.S., Fraudulent Conveyances § 44.

JUDICIAL DECISIONS

1. In general.

2. Purpose.

3. Construction with other laws.

4. Jurisdiction.

5. Enforcement in Federal court.

6. Right and propriety of action.

7. Persons entitled to attack challenge, etc.

8. Transactions subject to challenge.

9. Pleading.

10. Proof.

11. Liens; priority of liens.

12. Rights of purchasers.

13. Effect of bankruptcy.

1. In general.

The deed of an insolvent corporation, or of a corporation rendered insolvent by reason of its execution, by which it undertook to convey substantially all of its assets to persons who were all of its officers, directors, and stockholders is void; for insiders cannot prefer themselves in payment of pre-existing debts and thus deprive other creditors of the corporation of their claims; and such creditors had a lien upon the assets of the corporation superior to that of a mortgagee which held a deed of trust executed by the corporation’s grantees as to all property not covered by prior deeds of trust executed by the corporation. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

A director of a corporation occupies a fiduciary position toward creditors, having a better knowledge of the condition of the company than have other creditors, and should not be permitted to use that position to benefit himself at their expense or to grant himself preferences or advantages in the payment of his claims over other creditors. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

A mortgagee with actual or imputed knowledge of a fraudulent transaction cannot defeat the claims of creditors. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

Where a client who was contesting a will devised land to the devisees’ grantee, which settled litigation, this was not a fraudulent conveyance as to the client’s attorneys who were employed under a contingent fee contract. Pollard v. Joseph, 210 Miss. 828, 50 So. 2d 546, 1951 Miss. LEXIS 319 (Miss. 1951).

In an attachment suit to establish a lien on realty for damages against nonresident for breach of warranty, chancellor’s decree that conveyance of the land from the defendant to his wife was fraudulent and void was reversed where the evidence disclosed that, although conveyance was originally made to defendant, the defendant’s wife had purchased the realty with her own personal funds. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

A husband, though insolvent, has a right to prefer his wife and to protect her interests by conveying his property to her, even though by so doing his other creditors are defeated of their rights and even though the conveyance is made on account of pendency of suits by other creditors against him, the only condition being that there must be existing between husband and wife a valid indebtedness equal to the fair value of the property conveyed. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

A conveyance made in good faith and for a valuable, though inadequate, consideration, the value of the property conveyed being substantially in excess of the consideration paid therefor, will be held in equity to be voluntary as to the grantor’s creditors to the extent of the value of the property in excess of the consideration paid therefor. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

2. Purpose.

The object of the statute is to prevent the necessity of a creditor resorting first to a court of law to recover a judgment, and then going into equity to secure its satisfaction; there is no reason why the court, having jurisdiction under the statute, should stop short of giving the parties all the relief which their case requires. Citizens' Mut. Ins. Co. v. Ligon, 59 Miss. 305, 1881 Miss. LEXIS 121 (Miss. 1881).

3. Construction with other laws.

An action to set aside a deed on certain property on the basis of fraud under Code §11-5-75 was not barred by a former action to place a lis pendens notice on the same property pursuant to Code §11-47-3, where not only were these two causes of action grounded in different statutes but they also involved entirely different classes of litigants, inasmuch as the lis pendens statute was enacted for those who claimed to rightfully own an interest in the property and the statute permitting an attack on fraudulent conveyances was devised for the protection of creditors who had no specific interest in the land. Dunaway v. W.H. Hopper & Associates, Inc., 422 So. 2d 749, 1982 Miss. LEXIS 2314 (Miss. 1982).

This section and those in the chapter on lis pendens relate to different classes of litigants. Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502, 1904 Miss. LEXIS 134 (Miss. 1904).

4. Jurisdiction.

The chancery court had jurisdiction of a creditor’s bill which sufficiently stated a cause of action under the section [Code 1942, § 1327], and the fact that the nulla bona return was not made within the time prescribed by statute did not divest the court of such jurisdiction. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

Jurisdiction of bills by creditors without judgment whose debts are due to set aside fraudulent conveyances and devices to hinder and delay creditors is expressly conferred by § 159 Const. 1890. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

5. Enforcement in Federal court.

The remedy imported by a former enactment of this statute (Code of 1880, §§ 1843, 1845), was unavailable in a Federal court by reason of the constitutional guaranty of the right to a jury trial on a claim cognizable at law. Scott v. Neely, 140 U.S. 106, 11 S. Ct. 712, 35 L. Ed. 358 (1891), but see Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693, 15 U.S.P.Q.2d (BNA) 1367 (1990); Cates v. Allen, 149 U.S. 451, 13 S. Ct. 883, 37 L. Ed. 804 (1893), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), criticized in In re Bonham, 33 Bankr. Ct. Dec. (CRR) 642 (Bankr. D. Alaska 1998).

6. Right and propriety of action.

Creditors may vacate attachments fraudulently sued out through collusion with the debtor, and subject the attached property, notwithstanding, by statute, they might intervene and contest the attachments at law. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

A judgment-creditor may sue in equity to remove obstructions to a fair sale of the debtor’s property liable to execution, though he has not exhausted his remedy at law. Jeffries v. Jeffries, 66 Miss. 216, 5 So. 112, 1888 Miss. LEXIS 92 (Miss. 1889).

Notwithstanding the pendency of an action at law for the debt, a bill may be maintained to subject property fraudulently conveyed. Anderson v. Newman, 60 Miss. 532, 1882 Miss. LEXIS 93 (Miss. 1882).

7. Persons entitled to attack challenge, etc.

Simple contract creditors without judgment have no standing in the U. S. District Court on bill to set aside a fraudulent conveyance. Cates v. Allen, 149 U.S. 451, 13 S. Ct. 883, 37 L. Ed. 804 (1893), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), criticized in In re Bonham, 33 Bankr. Ct. Dec. (CRR) 642 (Bankr. D. Alaska 1998).

A tort claimant may maintain an action to set aside a conveyance as in fraud of his rights as a creditor without first obtaining a judgment for damages. Allred v. Nesmith, 245 Miss. 376, 149 So. 2d 29, 1963 Miss. LEXIS 525 (Miss. 1963).

Both antecedent and subsequent creditors of wife may attack her verbal transfer of store and stock of goods to her husband. McCabe v. Guido, 116 Miss. 858, 77 So. 801, 1917 Miss. LEXIS 363 (Miss. 1917).

A trustee in bankruptcy as the representative of the creditors may maintain a suit in equity to set aside fraudulent deeds made by the bankrupt and subject the property conveyed to his debts. Thompson v. First Nat'l Bank, 84 Miss. 54, 36 So. 65, 1904 Miss. LEXIS 4 (Miss. 1904).

Property in the possession of voluntary grantees of a surety on a guardian’s bond may be subjected by the wards of the guardian. Patty v. Williams, 71 Miss. 837, 15 So. 43, 1894 Miss. LEXIS 38 (Miss. 1894).

Prior to act of January 26, 1898, only a creditor whose debt was due could invoke the remedy. Browne v. Hernsheim, 71 Miss. 574, 14 So. 36, 1893 Miss. LEXIS 120 (Miss. 1893).

8. Transactions subject to challenge.

Where a contractor misstated facts in a financial statement to a bonding company and where he was notified that claims had been filed with the bonding company, the contractor conveyed his one-half interest in the homestead and stock to wife without consideration, the conveyance was fraudulent and should be set aside at the request of the creditors of the contractor. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

A creditor’s bill attacking a fraudulent conveyance should not be dismissed because the land is so defectively described in the alleged fraudulent deed as to render it void upon its face, inasmuch as between the grantee and the grantor it was valid in so far as it conferred upon the grantor the right in equity to have it reformed. This equity the creditor is entitled to have cancelled. Levy v. Royston, 84 Miss. 15, 36 So. 69, 1904 Miss. LEXIS 6 (Miss. 1904).

Where in such a suit, after the court had announced its opinion that the deed was void from defective description, but before final decree was entered, the debtor executed a second deed perfecting the description, the cause on complainant’s application should be remanded to the rules to enable him to file a supplemental bill assailing the second deed. Levy v. Royston, 84 Miss. 15, 36 So. 69, 1904 Miss. LEXIS 6 (Miss. 1904).

A writ of seizure in favor of the vendor of personal property cannot be enforced against property in the hands of an assignee or receiver appointed in a suit under the statute. Frank v. Robinson, 65 Miss. 162, 3 So. 253, 1887 Miss. LEXIS 28 (Miss. 1887).

9. Pleading.

Averment of insolvency held sufficient. Ogden v. Amite County Bank, 139 Miss. 875, 104 So. 289, 1925 Miss. LEXIS 163 (Miss. 1925).

Bill to set aside sale under deed of trust for fraud is demurrable for failing to state facts constituting fraud. Weir v. Jones, 84 Miss. 602, 36 So. 533, 1904 Miss. LEXIS 63 (Miss. 1904).

A bill filed under the statute need not show that the defendant debtor is insolvent, nor that complainant cannot obtain satisfaction of his demand without resorting to the property in suit. Citizens' Bank v. Buddig, 65 Miss. 284, 4 So. 94, 1887 Miss. LEXIS 55 (Miss. 1887).

A cross-bill may be predicated on this statute. Heirmann & Kahn v. Stricklin, 60 Miss. 234, 1882 Miss. LEXIS 37 (Miss. 1882).

10. Proof.

Proof that consideration for conveyance of husband to wife of plantation was substantially less than value of the property, not including personal property conveyed, established prima facie case for setting aside deed as a fraud upon the rights of husband’s creditors, where conveyance made him insolvent. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

11. Liens; priority of liens.

Since a taxpayer who had made a fraudulent conveyance to his wife before federal tax liens arose, had no interest in such property, the federal government acquired no lien on the property but only a right to set the fraudulent conveyance aside, and therefore a creditor of the taxpayer which filed a suit to set aside the fraudulent conveyance a year before the federal lien was asserted, was entitled to priority. United States v. Fidelity & Deposit Co., 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

Where the federal government took no action to assert a tax lien until after a bonding company started suit to have the fraudulent conveyance set aside, the bonding company had a prior lien. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

Creditor not given notice of sale required by bulk sales law may by statutory proceeding acquire lien against purchaser with which other creditors do not share. Kline v. Sims, 149 Miss. 154, 114 So. 871, 1927 Miss. LEXIS 104 (Miss. 1927).

Attacking creditor has statutory lien on property, and right to foreclosure thereof in same proceeding in which established. Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681, 1924 Miss. LEXIS 26 (Miss. 1924).

Where a bill is handed to the clerk and marked “filed” by him, but immediately carried away by the solicitor who stated that he did not wish process issued, there has been no such “filing” as will give him priority of lien over another creditor who, before the return of the bill and issuance of process, has filed a like bill and had process issued thereon. Meridian Nat'l Bank v. Hoyt & Bros. Co., 74 Miss. 221, 21 So. 12, 1896 Miss. LEXIS 142 (Miss. 1896).

A creditor attacking fraudulent attachments of his debtor’s property does not acquire a lien superior to other attachments, the validity of which is not attacked and which were levied before the filing of his bill. Levy v. Marx, 18 So. 575 (Miss. 1895).

12. Rights of purchasers.

A bank was not a bona fide, innocent purchaser for value without notice under a subsequent deed of trust from a corporation’s officers-directors-stockholders, and was not entitled to priority over rights of the payees of the corporation’s notes, as to realty which had not been included in a prior deed of trust from the corporation to the bank but which was attempted to be conveyed by the corporation to its officers-directors-stockholders, where the bank, with knowledge of the corporation’s indebtedness to the payees for stock purchased back by the corporation from the payees, encouraged the conveyance and execution of the subsequent deed of trust. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

Purchaser of goods held not entitled to have amount paid certain of seller’s creditors apportioned pro rata, with creditor not given notice, and instituting proceedings under the bulk-sales law. Kline v. Sims, 149 Miss. 154, 114 So. 871, 1927 Miss. LEXIS 104 (Miss. 1927).

13. Effect of bankruptcy.

The lien of a judgment in a suit to set aside conveyances as fraudulent is not affected by defendant’s adjudication in bankruptcy subsequent to the filing of the suit more than four months before the bankruptcy proceeding, though prior to judgment. Davis v. Polk Financial Service, 242 Miss. 419, 135 So. 2d 175, 1961 Miss. LEXIS 578 (Miss. 1961).

Editor’s Notes —

Former §11-5-77 authorized the court to compute amounts due or refer matter to clerk or master for computation in cases involving a mere computation of the sum due.

RESEARCH REFERENCES

ALR.

Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect. 91 A.L.R.3d 1170.

JUDICIAL DECISIONS

1. In general.

A chancellor may make his decrees dependent upon the performance of certain conditions which may be waived only with the consent and approval of the chancellor who issued the decree, and such a decree is without force until the conditions have been performed. Twilley v. McLain, 233 So. 2d 794, 1970 Miss. LEXIS 1675 (Miss. 1970).

Lien under alimony decree cannot arise, if at all, until default in payment of installments. Harris v. Worsham, 164 Miss. 74, 143 So. 851, 1932 Miss. LEXIS 224 (Miss. 1932).

Where injunction to restrain execution on money decree was dissolved, execution could issue against sureties on injunction bond for amount of decree. Russ v. Stockstill, 155 Miss. 368, 124 So. 359, 1929 Miss. LEXIS 290 (Miss. 1929).

Cross References —

Effect of final decree and partition proceedings, see §11-21-35.

Enforcement of decree by garnishment, see §§11-35-1 et seq.

Interest on judgments and decrees, see §75-17-7.

Effect of surety paying a decree, see §87-5-9.

Procedure for enforcement of judgments, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 173-189.

30 Am. Jur. 2d (Rev), Executions §§ 66, 67, 473.

JUDICIAL DECISIONS

1. Remedies.

In a marital dissolution action, an order restricting the wife’s right to pursue enforcement of a judgment against the husband was rendered void because the order operated as a violation of the wife’s rights as set forth in the statute; the chancellor did not have the authority to restrict the wife’s rights to seek satisfaction of the judgment in the manner reflected in the statute. Jenkins v. Jenkins, 60 So.3d 198, 2011 Miss. App. LEXIS 180 (Miss. Ct. App. 2011).

Cross References —

Method of issuing executions, see §§13-3-111 through13-3-121.

Method for levying executions, see §§13-3-123 et seq.

Duty of sheriff to execute decrees, see §19-25-35.

Conveyances by masters, commissioners, or sheriffs, see §§89-1-27,89-1-67.

Form of conveyance by sheriff, see §89-1-65.

Procedure for enforcement of judgments, see Miss. R. Civ. P. 69.

Sheriff’s courtroom duties, see Miss. Uniform Chancery Court Rule 1.03.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 189.

JUDICIAL DECISIONS

1. In general.

On final decree confirming sale in suit for partition of land, writ of assistance, which is equivalent to writ of habere facias possessionem at law, can issue without process on defendant divested of all interest in land by the final decree. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

The statute embraces, and authorizes the issuance of, a writ of assistance. Griswold v. Simmons, 50 Miss. 123, 1874 Miss. LEXIS 31 (Miss. 1874); Jones v. Hooper, 50 Miss. 510, 1874 Miss. LEXIS 85 (Miss. 1874).

Cross References —

Prerequisites of conveyance of land, see §§89-1-3 et seq.

Court’s authority to enter judgment by divesting title of any party and vesting it in others, see Miss. R. Civ. P. 70.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 173-189.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

JUDICIAL DECISIONS

1. In general.

A commissioner may be appointed as provided hereunder to make a conveyance in accordance with the decree of the court in an action for specific performance providing that if it should be found that the vendors had been fully paid for real estate sold by them they should be directed to execute a warranty deed to the purchaser. Baker v. Hardy, 194 Miss. 662, 11 So. 2d 803, 1943 Miss. LEXIS 36 (Miss. 1943).

In action for confirmation of title to lands purchased on foreclosure of trust deed, where decree directed that title be confirmed in defendants, decree canceled plaintiff’s claim to the land. Cartee v. Blacketor, 179 Miss. 665, 176 So. 532, 1937 Miss. LEXIS 63 (Miss. 1937).

Editor’s Notes —

Former §11-5-87 authorized any party to request the court to separately state its findings of fact and conclusions of law.

Former §11-5-89 specified when decrees on publication only were final.

Cross References —

Rule relative to relief from judgment or order, see Miss. R. Civ. P. 60.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 190.

JUDICIAL DECISIONS

1. In general.

2. Parties entitled to rehearing.

3. Other remedy.

1. In general.

A mere statement that petitioner has an interest or claim is not sufficient to reopen a case under this section. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

Reopening of proceedings to confirm title should be done only where the right clearly appears in the petition. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

The purpose of the legislature in requiring a petition to reopen is to confine reopening to the discretion of the chancellor, who, in the exercise thereof, must have sufficient facts to guide him. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

After the petition for rehearing is allowed, the suit is a pending one, and the complainant may dismiss it. Belcher v. Wilkerson, 54 Miss. 677, 1877 Miss. LEXIS 78 (Miss. 1877).

2. Parties entitled to rehearing.

A nonresident, who was not a named defendant in proceedings to confirm a tax title, must in his petition to set aside such proceedings show the court, by averments, the facts with reference to his status as one having or claiming an interest in the land. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

In an action to reopen proceedings confirming tax title after final decree therein, a nonresident who was not a named defendant in such proceedings cannot maintain the action by a mere allegation that he claimed the undivided one-fourth equitable interest in the land. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

A decree pro confesso taken against nonresident defendants who failed to answer by publication as summoned lost its finality, and the cause in which it was rendered again became a pending cause when the defendants within two years after rendition of the decree applied to the court by which it was rendered for a rehearing. Henderson v. Odom, 198 Miss. 208, 22 So. 2d 159, 1945 Miss. LEXIS 186 (Miss. 1945).

3. Other remedy.

Although nonresident defendants, against whom a decree pro confesso was taken upon their failure to answer by publication and summons, have right to apply to the court rendering the decree for a rehearing, they also have the right to treat the decree as final and to appeal therefrom in order to avoid danger under this section [Code 1942, § 1392] that the property might be sold to a purchaser in good faith pursuant to the decree. Henderson v. Odom, 198 Miss. 208, 22 So. 2d 159, 1945 Miss. LEXIS 186 (Miss. 1945).

Cross References —

Constitutional direction for sale of lands under decree of court, see Miss. Const. Art. 4, § 111.

Sale of lands in partition proceeding, see §11-21-11.

Stay of execution by bond, see §11-51-59.

Procedure for making sales under execution, see §§13-3-161 et seq.

Limitation of actions for property sold by order of court, see §15-1-37.

Conveyances for lands sold under decree of court, see §89-1-27.

Procedure for selling lands under mortgages and deeds of trust, see §89-1-55.

Provision for suspension of inconsistent laws regarding foreclosure of mortgaged property in certain emergency situations, see §89-1-319.

Sale of goods seized under distress, see §89-7-69.

Sale of decedent’s property by executors and administrators, see §§91-7-175 et seq.

RESEARCH REFERENCES

ALR.

Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale. 2 A.L.R.2d 6.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 15-26.

CJS.

50A C.J.S., Judicial Sales §§ 30-41.

JUDICIAL DECISIONS

1. In general.

2. Notice.

3. Consideration.

1. In general.

A partition sale of real estate conformed to the requirements of §§11-5-93 and11-5-95, and did not violate either the order or legal notice, which asserted that the sale would be at the south front door of the courthouse, regardless of whether the sale was conducted inside or outside the front door. McCormick v. McCormick, 449 So. 2d 1209, 1984 Miss. LEXIS 1711 (Miss. 1984).

Decree ordering correction of description of land in deed of trust being foreclosed held not erroneous as eliminating from deed of trust description of other property. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

A purchaser cannot be put in possession until the sale has been reported and confirmed. Adler v. Meyer, 73 Miss. 863, 19 So. 893, 1896 Miss. LEXIS 209 (Miss. 1896).

The presumption of validity which the law attaches to ancient deeds will aid an administrator’s or executor’s sale. Stevenson's Heirs v. McReary, 20 Miss. 9, 1849 Miss. LEXIS 1 (Miss. 1849).

2. Notice.

In a partition action, the chancellor’s award of attorney’s fees payable by the appealing parties, and assessed against the sale proceeds, was error, as there was no evidence that said fees were reasonable and there was no bad faith shown. Further, as to notice of the sale, Miss. Code Ann. §13-3-163 did not apply where the chancellor gave specific instruction for terms of the sale pursuant to Miss. Code Ann. §§11-5-93 and11-5-95, and while the sale price was low, the chancellor did not abuse his discretion in refusing to set aside the sale. Necaise v. Ladner, 910 So. 2d 699, 2005 Miss. App. LEXIS 194 (Miss. Ct. App. 2005).

In an action by a homeowners’ association to enforce a lien on defendant’s property after defendant had failed to pay an annual assessment to the association for maintenance of common areas, the chancery court properly ruled that the assessment was a covenant running with the land and that defendant was liable, despite defendant’s contentions that the action was barred by the statute of frauds (§15-3-1). Furthermore, the chancery court’s decree was enforceable under this section, even though it failed to fix the time and terms of the sale of defendant’s property. William W. Bond, Jr. & Associates, Inc. v. Lake O'The Hills Maintenance Asso., 381 So. 2d 1043, 1980 Miss. LEXIS 1919 (Miss. 1980).

This section governs in the matter of sales and notice thereof under the decrees. Worthy v. Graham, 246 Miss. 358, 149 So. 2d 469, 1963 Miss. LEXIS 449 (Miss. 1963).

Failure of commissioner appointed to carry out chancellor’s decree granting foreclosure of mortgage to name one of mortgagors in notice of sale held not to invalidate sale, since all interested parties were in court and were expected to follow proceedings and ascertain sale day fixed in order. Jones v. Spearman, 174 Miss. 781, 165 So. 294, 1936 Miss. LEXIS 196 (Miss. 1936).

Sale of land must accord with order as to place and notice. Howard v. Jayne, 124 Miss. 65, 86 So. 752, 1920 Miss. LEXIS 497 (Miss. 1921).

Failure to give the prescribed notice will not render the sale void. Bland v. Muncaster, 24 Miss. 62, 1852 Miss. LEXIS 8 (Miss. 1852); Hanks v. Neal, 44 Miss. 212, 1870 Miss. LEXIS 102 (Miss. 1870).

3. Consideration.

Evidence held to show that upset price for mortgaged premises fixed by court in foreclosure suit was reasonable, and that higher price could not be had on resale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

That property sold under foreclosure suit might sell for much more at later time will not afford ground in equity for setting aside sale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

On collateral attack grossly inadequate consideration will not be held to invalidate a judicial sale of land made in unsettled and troubled times, and land was encumbered with life estate postponing purchaser’s occupancy 35 years. Ladd v. Craig, 94 Miss. 659, 47 So. 777, 1909 Miss. LEXIS 326 (Miss. 1909).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 15, 24.

CJS.

50A C.J.S., Judicial Sales §§ 25-27.

JUDICIAL DECISIONS

1. In general.

In a partition action, the chancellor’s award of attorney’s fees payable by the appealing parties, and assessed against the sale proceeds, was error, as there was no evidence that said fees were reasonable and there was no bad faith shown. Further, as to notice of the sale, Miss. Code Ann. §13-3-163 did not apply where the chancellor gave specific instruction for terms of the sale pursuant to Miss. Code Ann. §§11-5-93 and11-5-95, and while the sale price was low, the chancellor did not abuse his discretion in refusing to set aside the sale. Necaise v. Ladner, 910 So. 2d 699, 2005 Miss. App. LEXIS 194 (Miss. Ct. App. 2005).

A partition sale of real estate conformed to the requirements of §§11-5-93 and11-5-95, and did not violate either the order or legal notice, which asserted that the sale would be at the south front door of the courthouse, regardless of whether the sale was conducted inside or outside the front door. McCormick v. McCormick, 449 So. 2d 1209, 1984 Miss. LEXIS 1711 (Miss. 1984).

Failure of commissioner appointed to carry out chancellor’s decree granting foreclosure of mortgage to name one of mortgagors in notice of sale held not to invalidate sale, since all interested parties were in court and were expected to follow proceedings and ascertain sale day fixed in order. Jones v. Spearman, 174 Miss. 781, 165 So. 294, 1936 Miss. LEXIS 196 (Miss. 1936).

That property sold under foreclosure suit might sell for much more at later time will not afford ground for setting aside sale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

Evidence held to show that price fixed by court in foreclosure suit was reasonable, and that higher price could not be had on resale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

Decree ordering correction of description of land in deed of trust being foreclosed held not erroneous as eliminating from deed of trust other property. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

This section, as applicable to sale of property by a receiver, does not require notice of sale to be given to creditors. United States Fidelity & Guaranty Co. v. McCain, 136 Miss. 30, 136 Miss. 306, 101 So. 197, 1924 Miss. LEXIS 113 (Miss. 1924).

Where decree authorizes administrator to name the place of sale, confirmation makes a judicial sale that of the court, and the purchaser thereunder is entitled to the full benefit of his contract which will be enforced for and against him. Ladd v. Craig, 94 Miss. 659, 47 So. 777, 1909 Miss. LEXIS 326 (Miss. 1909).

Cross References —

Priority of mortgage for purchase money of land, see §89-1-45.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 75-85.

CJS.

50A C.J.S., Judicial Sales §§ 93, 109-124, 130-136.

JUDICIAL DECISIONS

1. In general.

An administrator or executor who charges himself with the receipt of the money although sale was on credit, and final settlement is confirmed by probate court, the land is discharged of the lien, and he is estopped to deny the payment; and the heirs are estopped if they do not object thereto on final settlement. Lambeth v. Elder, 44 Miss. 80, 1870 Miss. LEXIS 86 (Miss. 1870).

Cross References —

Time and method of making sales under execution, see §13-3-169.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 20-22.

CJS.

50A C.J.S., Judicial Sales §§ 51, 55.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 34, 36.

CJS.

50A C.J.S., Judicial Sales §§ 28, 29.

JUDICIAL DECISIONS

1. Purchase by mortgagee’s affiliate.

Because a second mortgagee lawfully foreclosed the mortgagor’s property under Miss. Code Ann. §89-1-55 and paid off a primary loan and there was no legal prohibition under Miss. Code Ann. §§11-5-101 and89-1-63 for the mortgagee’s affiliate to purchase the property at foreclosure, any rights of the mortgagor in the property were extinguished by the foreclosure sale. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

Cross References —

For rules governing the reports of masters and court-ordered conveyances of realty, see Miss. R. Civ. P. 53, 70.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 108.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Forms 61-70.

CJS.

50A C.J.S., Judicial Sales §§ 64-68.

JUDICIAL DECISIONS

1. In general.

Where price at judicial sale is grossly inadequate chancellor may order resale. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

Court properly directed resale on tenant failing to pay amount as against objection of purchaser at the sale. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

A purchaser cannot be put in possession until the sale has been reported and confirmed. Adler v. Meyer, 73 Miss. 863, 19 So. 893, 1896 Miss. LEXIS 209 (Miss. 1896).

Confirmation of a sale, reported at a term subsequent to that which next followed the sale, without notice, is not void. Johnson v. Cooper, 56 Miss. 608, 1879 Miss. LEXIS 174 (Miss. 1879).

It is not an objection to an administrator’s sale that he was ordered by the decree to sell and report to a certain term of court, and that he did not sell until after that time. Yerger v. Ferguson, 55 Miss. 190, 1877 Miss. LEXIS 122 (Miss. 1877).

If the decree confirming the sale recite that notice of the sale was given, this is sufficient on appeal, though the notice do not appear of record. Yerger v. Ferguson, 55 Miss. 190, 1877 Miss. LEXIS 122 (Miss. 1877).

Cross References —

Sale of land by executors and administrators, see §§91-7-187 et seq.

Rules governing the reports of masters and court-ordered conveyances of realty, see Miss. R. Civ. P. 53, 70.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 98-101.

CJS.

50A C.J.S., Judicial Sales §§ 109-113.

Cross References —

Decree of confirmation in partition proceedings, see §§11-21-35 et seq.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 109, 110, 120, 126-129.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Forms 83-91.

CJS.

50A C.J.S., Judicial Sales §§ 69-71.

JUDICIAL DECISIONS

1. In general.

Under this statute authorizing private sales, where there is a private sale or lease upon terms disclosed to, or required by, the court, and thereby approved, the transaction is confirmed by the decree directing it. Such decree is not a mere “interlocutory decree ordering said sale or lease,” as expressed in this section, but a decree executed after petition and hearing, at which all the terms disclosed by tender of the conveyances are heard and considered and thereby confirmed. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Confirmation is not necessary of a private sale of mineral lease and royalty interests in realty belonging to minor wards, where such sale was made pursuant to court decree authorizing the same on terms disclosed in guardian’s petition, even assuming that such sale was a “sale of land” contemplated by Code 1942, § 1389, and notwithstanding that decree authorizing conveyance of royalty interest provided that the guardian should make due report to the chancellor for confirmation. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Chancellor without power to confirm in vacation a judicial sale where protest is filed on the ground of gross inadequacy of price. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Validity and effect under Federal Arbitration Act (9 U.S.C.S. §§ 1 et seq.) of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 159 A.L.R. Fed. 1.

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 118, 119, 142.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Form 102.

CJS.

50A C.J.S., Judicial Sales § 118.

JUDICIAL DECISIONS

1. In general.

2. Effect of failure to require bond.

1. In general.

Defects in bond to prevent confirmation of sale were cured by Code 1906 § 1022. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

One who procures a resale under the statute must be treated as starting the bidding on the resale at twenty per centum advance on the former sale. Mason v. Martin, 64 Miss. 572, 1 So. 756, 1886 Miss. LEXIS 111 (Miss. 1886).

The statute relates to the remedy. John Chaffe & Sons v. Aaron, 62 Miss. 29, 1884 Miss. LEXIS 10 (Miss. 1884).

2. Effect of failure to require bond.

Where three of four heirs conducted a sale of property which was to be auctioned to the hightest bidder for cash, and the fourth heir was the highest bidder, the State Supreme Court held that Miss. Code Ann. §11-5-109 did not apply and the fourth heir was not required to post a bond. Hataway v. Estate of Nicholls, 893 So. 2d 1054, 2005 Miss. LEXIS 109 (Miss. 2005).

Where the wife objected to the sale of the marital home to the husband’s brother and the home was subsequently foreclosed on and sold for less than the brother’s bid, the appellate court did not address the issue of whether the chancellor erred when he did not require a bond because there were no funds from which to address the shortfall from the original bid to the amount received for the property later. Curtis v. Curtis, 796 So. 2d 1044, 2001 Miss. App. LEXIS 396 (Miss. Ct. App. 2001).

Cross References —

Procedure for selling lands under mortgages and deeds of trust, see §§89-1-55 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 173-189.

Law Reviews.

1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.

JUDICIAL DECISIONS

1. In general.

Mortgagee is entitled to deficiency judgment from debtor for balance due on indebtedness after proceeds of foreclosure sale are applied to debt unless mortgagee’s actions have been inequitable. OMP v. Security Pacific Business Finance, Inc., 716 F. Supp. 251, 1989 U.S. Dist. LEXIS 7344 (N.D. Miss. 1989).

Mortgagee seeking deficiency judgment has burden of proving entitlement under principles of equity; it must first be determined if mortgagee has endeavored to collect indebtedness out of land; then, it must be determined whether value of property satisfies debt of mortgagor or creates surplus. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

A written motion is entirely unnecessary under this section, and the absence thereof deprives a judgment debtor of no substantial right, as against the contention that this section is mandatory in its requirement that a motion in writing is jurisdictional in order to entitle a judgment creditor to a deficiency judgment upon the stated confirmation of the report of sale of any property under a deed of trust. Roebke v. Love, 186 Miss. 609, 191 So. 122, 1939 Miss. LEXIS 238 (Miss. 1939).

Complainant in trust deed foreclosure proceeding has option to take complete personal monetary decree in foreclosure decree or to take therein only decree adjudging amount due, declaring lien, and ordering sale, and obtain personal decree for balance due after sale. Edgewater Park Co. v. Standard Bond, etc., Co., 162 Miss. 684, 138 So. 811, 1932 Miss. LEXIS 114 (Miss. 1932).

On confirmation of sale on foreclosure court may render judgment for balance of claim; if motion for judgment for balance in lienholder’s suit made on day of confirmation, no notice required; limitation on deficiency judgment entered on confirmation of foreclosure sale runs from its entry. Continental Gin Co. v. Mathers, 132 Miss. 821, 96 So. 744, 1923 Miss. LEXIS 80 (Miss. 1923); Weir v. Field, 67 Miss. 292, 7 So. 355, 1889 Miss. LEXIS 92 (Miss. 1889).

In a suit to foreclose a mortgage on the land of a wife to secure the joint note of herself and husband, the note and mortgage being void as to her because of her insanity, a personal decree should be rendered against the husband. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

The right to move for a personal decree is not confined to the term at which the sale is confirmed, but may be exercised at any time before the decree becomes barred. Notice is unnecessary if the motion be made at the time of confirmation, but if made at a subsequent term it is necessary. Such decree may be obtained against the personal representative of a deceased debtor. Weir v. Field, 67 Miss. 292, 7 So. 355, 1889 Miss. LEXIS 92 (Miss. 1889).

Amendment Notes —

The 2008 amendment substituted “persons with mental retardation, persons with mental illness” for “idiocy and lunacy.”

The 2010 amendment substituted “persons with an intellectual disability” for “persons with mental retardation.”

Cross References —

Sales of real estate and partition proceedings, see §§11-21-27 et seq.

Sales of real estate in matters testamentary and of administration, see §§91-7-187 et seq.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 1.

CJS.

50A C.J.S., Judicial Sales §§ 1-6.

Cross References —

Definition of the term “infant,” see §1-3-21.

Limitations of personal actions of infants, see §15-1-59.

Validity of contracts made during infancy, see §15-3-11.

Infant’s title to property acquired by descent, see §91-1-31.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 40.

CJS.

30A C.J.S., Equity §§ 52, 53.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Character of sale as void or voidable.

3. Interest acquired under sale.

4. Impeachment of decree of sale.

5. —Time for impeachment.

6. —Right to rehearing or review.

7. Laches.

1. In general.

This section was not intended as a sword to prevent an infant from attacking a fraud perpetrated upon him. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

This section is not applicable in a suit to cancel deeds on the ground that they were procured by fraud. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

This section is substitute for ancient rule to insert such saving in decree, and has effect as though such right was actually reserved in decree. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

Duty of next friend to protect rights of ward throughout partition suit and to prevent confirmation of sale if prejudicial to ward’s rights. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

The court must make valuable elections for minor defendants, redeem their property from liens or tax sales, and see generally that their interests are fully protected. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

2. Character of sale as void or voidable.

Purchase by grandfather and next friend of minor was not void where the reasonable value of the land was paid, but was voidable at the minor’s election within the time allowed infant to exercise such right. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

3. Interest acquired under sale.

An absolute title cannot be acquired under a decree against an infant until the expiration of the year after his majority. The purchaser of the property should be made a party to the proceeding to vacate the decree. McLemore v. Chicago, S. L. & N. O. R. Co., 58 Miss. 514, 1880 Miss. LEXIS 151 (Miss. 1882).

4. Impeachment of decree of sale.

Minors within statutory period after arriving at majority held entitled to have partition sale at which their property was bought in under agreement set aside and property repartitioned. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

A decree rendered in an infant’s favor on a bill filed in his name by a next friend cannot, in the absence of fraud, be reopened by the infant. Johns v. Harper, 61 Miss. 142, 1883 Miss. LEXIS 87 (Miss. 1883).

An infant may by an original bill impeach a decree against him. Sledge v. Boone, 57 Miss. 222, 1879 Miss. LEXIS 49 (Miss. 1879); Enochs v. Harrelson, 57 Miss. 465, 1879 Miss. LEXIS 99 (Miss. 1879).

5. —Time for impeachment.

This section does not limit time infant may attack partition sale for bad faith of their next friend. Smith v. Strickland, 139 Miss. 1, 103 So. 782, 1925 Miss. LEXIS 117 (Miss. 1925).

If the infant wish to interpose a new defense, he must, in general, wait until he has become adult; but for special circumstances shown may obtain leave to make new defense during infancy; if the desire be to impeach the decree for fraud, collusion, or error, he may proceed by original bill during minority. McLemore v. Chicago, S. L. & N. O. R. Co., 58 Miss. 514, 1880 Miss. LEXIS 151 (Miss. 1882).

A party, within the year after his arriving at majority, may attack a decree rendered against him during infancy by averring matter aliunde the record. After the expiration of the year he stands on the same ground as if he had been adult when the decree was entered. Mayo v. Clancy, 57 Miss. 674, 1880 Miss. LEXIS 32 (Miss. 1880).

Where an improper decree has been made against an infant, it may be impeached by an original bill, and the infant need not wait until attaining full age, but may apply to open the decree as soon as he sees fit. Sledge v. Boone, 57 Miss. 222, 1879 Miss. LEXIS 49 (Miss. 1879).

6. —Right to rehearing or review.

This section grants the special privilege of a rehearing and that when a quondam infant comes within the one year period, the original case will then stand so far as he is concerned as though no decree had ever been made, and it becomes the duty of the court to hear the cause as though it had not been heard before. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

Right to review adverse decree is available to minor affected whether he be complainant or defendant. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

An infant party decreed to hold land in trust is entitled of right to a rehearing if willing to assume all the consequences of his own suit. Hebron v. Kelly, 77 Miss. 48, 23 So. 641, 1899 Miss. LEXIS 33 (Miss. 1898).

The affirmance of the decree by the Supreme Court will not bar the application for a rehearing, and this is true though the infant prosecuted the appeal. Vaughn v. Hudson, 59 Miss. 421, 1882 Miss. LEXIS 129 (Miss. 1882).

7. Laches.

Apparent laches of minors should not operate to their prejudice. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

Amendment Notes —

The 2008 amendment divided the former single sentence in (1) into two sentences by substituting “impose. If all” for “impose; and if all”; in the first sentence, substituted “persons with mental illness” for “lunacy” and “interest in the property” for “interest therein”; in the second sentence, substituted “full compliance with the order or decree” for “full compliance therewith”; and in (2), substituted “proceedings done in conformity with this section” for “proceedings heretofore had in conformity herewith.”

Cross References —

Private sale of personal property by executors and administrators, see §91-7-177.

RESEARCH REFERENCES

ALR.

Power of sale conferred on executor by testator as authorizing private sale. 11 A.L.R.2d 955.

Am. Jur.

27A Am. Jur. 2d, Equity § 3.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 12, 13.

CJS.

30A C.J.S., Equity §§ 52, 53.

50A C.J.S., Judicial Sales §§ 1-6.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Setting sale aside.

1. In general.

The power conferred by this section does not encompass a lease with option to purchase at a price to be determined by privately appointed appraisers, on which rent payments are to be credited. Thompson Funeral Home, Inc. v. Thompson, 249 Miss. 472, 162 So. 2d 874, 1964 Miss. LEXIS 408 (Miss. 1964).

Under this section, where there is a private sale or lease upon terms disclosed to, or required by, the court, and thereby approved, the transaction is confirmed by the decree directing it. Such decree is not a mere “interlocutory decree ordering said sale or lease,” as expressed in statute (Code 1942, § 1384), providing for confirmation thereof in vacation, but a decree executed after petition and hearing, at which all the terms disclosed by tender of the conveyances are heard and considered and thereby confirmed. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Confirmation is not necessary of a private sale of mineral lease and royalty interests in realty belonging to minor wards, where such sale was made pursuant to court decree authorizing the same on terms disclosed in guardian’s petition, even assuming that such sale was a “sale of land” contemplated by this section, and notwithstanding that decree authorizing conveyance of royalty interest provided that the guardian should make due report to the chancellor for confirmation. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Jurisdiction to authorize guardian to execute mineral lease and to convey a one-half royalty interest in realty belonging to guardian’s minor children and wards, followed domicil of the guardian-parent, although two of the minors lived at home of a great-grandfather in another county wherein the realty was located. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Prior to the enactment of this section as it now stands, sales were upon public bids, and the cognate statutory requirements are to be construed as contemplating such procedure. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Act of 1930 (Laws, 1930, ch 42, § 2), providing that such act was supplemental to any other act relating to sales of real and personal property by a decree of chancery courts, was repealed by chapter 327 of Laws, 1936, and recast in the form now appearing in this section (Code 1942, § 1389). Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

This section cannot be construed to authorize the court to permit the person making the sale to become the purchaser thereat, thereby imposing upon him inconsistent rights and duties. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

In action on notes secured by collateral, decree directing sale of collateral held erroneous in permitting plaintiff to purchase collateral at sale to be made by it. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

In judicial sales of property pledged as security for debts, to be made by persons other than pledgee, decree may permit pledgee to purchase, but pledgee cannot purchase at his own sale without consent of pledgor. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

2. Setting sale aside.

Legal fraud upon the court must be shown by clear and convincing testimony in order to warrant setting aside decree authorizing guardian of minors to execute upon terms approved by the court a mineral lease and conveyance of one-half royalty interest in realty belonging to the minors. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Legal fraud upon the court which will warrant setting aside decree authorizing guardian to sell at private sale mineral lease and royalty interest in realty belonging to the minor wards, upon the terms disclosed in the guardian’s petition, may not be shown by a mere failure to disclose information which the court should have known, but must be shown only by a deliberate withholding of facts which the purchaser knew and the disclosure of which would have revealed that the wards had been cheated of their rights by means that were unfair and unequitable, and at a value that was then inadequate. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

The test of adequacy of consideration paid at private sale of mineral lease and royalty interests in realty belonging to minor wards, pursuant to court authority, is the reasonable value at the time of the sale and not by subsequent developments. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

There is no finality to a decree for private sale or lease of mineral rights and royalties in realty belonging to minor wards as immunizes it to attack upon the ground of fraud of which a gross inadequacy of consideration is an element. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

After a sale of property by decree of the chancery court, a mere increase of price or inadequacy of price at the time of sale will not alone justify the court in setting it aside, although such inadequacy or increase in connection with unfairness, injustice or inequity in making the sale would be sufficient. Bethea v. Rahaim, 196 Miss. 15, 16 So. 2d 633, 1944 Miss. LEXIS 167 (Miss. 1944).

Chancery court was correct in setting aside receiver’s private sale of certain property of insolvent and ordering another sale where inadequacy of sale price was coupled with unfairness in failing to give notice of the time and place of sale to creditors holding a recorded purchase money reserve title contract lien against such property. Bethea v. Rahaim, 196 Miss. 15, 16 So. 2d 633, 1944 Miss. LEXIS 167 (Miss. 1944).

Editor’s Notes —

Former §11-5-119 authorized the staying of proceedings on a bill of review.

Former §11-5-121 required that bills of review be filed within two years after the date of the final decree.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 66, 67, 68.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 70.

JUDICIAL DECISIONS

1. In general.

Power to release sureties or require new bond is purely statutory. United States Fidelity & Guaranty Co. v. Felder, 105 Miss. 283, 62 So. 236, 1913 Miss. LEXIS 203 (Miss. 1913).

Cross References —

Reduction or cancellation of receiver’s bond in vacation, see §9-5-103.

Requirement of bond upon removal of receiver, see §11-5-157.

Appointment of receiver for nonresident or unknown owners of mineral interests, see §11-17-33.

Appointment of trustees upon judgment of forfeiture and ouster, see §§11-39-25 through11-39-39.

Jurisdiction of chancery court to issue injunction and appoint receiver under Medicaid Fraud Control Act, see §43-13-227.

Receivership of bank, see §§81-9-17 to81-9-37.

Receivership of insolvent insurance company, see §§83-23-1 to83-23-9.

Receivership for burial associations, see §83-37-31.

Administration of assignments for benefit of creditors, see §§85-1-1 to85-1-19.

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Appointment of receiver at instance of plaintiffs in tort action. 4 A.L.R.2d 1278.

Appealability of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appealability of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver. 72 A.L.R.2d 1075.

What constitutes waste justifying appointment of receiver of mortgaged property. 55 A.L.R.3d 1041.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation. 15 A.L.R.4th 224.

Federal receivers of property in different districts under 28 USCS § 754. 57 A.L.R. Fed. 621.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 58-65.

65 Am. Jur. 2d, Receivers §§ 146-150.

13B Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:252.1 (appointment of receiver).

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 1 et seq., 21 et seq, 351 et seq.

CJS.

75 C.J.S., Receivers §§ 36-42, 86-88.

JUDICIAL DECISIONS

1. In general.

2. Right of appeal.

1. In general.

Plaintiff must show, first, he has clear right to the property, or a lien upon it, or that it constitutes a special fund to which he has a right to resort, and, second, that defendant’s possession obtained by fraud, or property or income therefrom is in danger of loss from neglect, waste, misconduct, or insolvency of defendant. Clark v. Fleming, 130 Miss. 504, 94 So. 458, 1922 Miss. LEXIS 228 (Miss. 1922).

Liens and priorities acquired before appointment of receiver will not be disturbed. P. E. Payne Hardware Co. v. International Harvester Co., 110 Miss. 783, 70 So. 892, 1916 Miss. LEXIS 199 (Miss. 1916).

Appointment of receiver is always within the sound discretion of the court, but the necessity therefor should be clear and the interest of all parties considered. Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018, 1912 Miss. LEXIS 244 (Miss. 1913).

A decree appointing a receiver impliedly limits the right of the receiver to property which is not exempt from execution. Levy v. T. R. Rosell & Co., 82 Miss. 527, 34 So. 321, 1903 Miss. LEXIS 154 (Miss. 1903).

2. Right of appeal.

The statutes have been so altered that an appeal from a decree discharging a receiver may now be taken. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

Under the Code of 1880, which left the appointment and discharge of receivers wholly to the discretion of the court, an appeal did not lie from an order of the chancellor discharging the receiver. Hanon v. Weil, 69 Miss. 476, 13 So. 878, 1891 Miss. LEXIS 175 (Miss. 1891).

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Appealability of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appealability of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver. 72 A.L.R.2d 1075.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 60, 62, 63, 64.

13B Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:252.1 (appointment of receiver).

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 1-4.

CJS.

75 C.J.S., Receivers §§ 48-53.

JUDICIAL DECISIONS

1. In general.

2. Necessity of notice.

3. Appointment without notice.

1. In general.

The conditions which must be shown in order to entitle a stockholder to have a dissolution of a corporation and a receiver appointed are the insolvency of the corporation, or that the corporation ceases to be a going concern, or while not solvent the corporation sells its franchises in whole or in part. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Receiver not appointed at instance of simple contract creditor without lien. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Receivership never primary object of suit. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Appointment not independent equity, but auxiliary remedy. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Appointment discretionary and exercised as auxiliary to attainment of justice. Clark v. Fleming, 130 Miss. 504, 94 So. 458, 1922 Miss. LEXIS 228 (Miss. 1922).

The appointment of a receiver can only be made in a pending cause. It cannot be made before the bill is filed. Barber v. Manier, 71 Miss. 725, 15 So. 890, 1894 Miss. LEXIS 27 (Miss. 1894); Smith v. Ely & Walker Dry Goods Co., 79 Miss. 266, 30 So. 653, 1901 Miss. LEXIS 54 (Miss. 1901).

2. Necessity of notice.

A receiver should not be appointed without due regard to the rights of the defendant as well as complainant and never without notice unless the necessity is urgent. Buckley v. Baldwin, 69 Miss. 804, 13 So. 851, 1892 Miss. LEXIS 48 (Miss. 1892).

3. Appointment without notice.

Chancellor was justified in terminating the receivership and returning the assets to the corporation where the entire proceedings wherein the dissolution of the corporation was ordered and the receiver appointed were void for want of notice to other stockholders, and for failure to post the receiver’s bond, without regard to the fact that the president and vice president, who were majority stockholders of the corporation, failed to testify in the case. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

An order for the dissolution of a corporation and the appointment of a receiver was void where the petition for the dissolution of the corporation and the appointment of the receiver did not allege the existence of any emergency justifying the appointment of a receiver without notice, and the president and vice-president, who owned the majority of the stock, were not given notice, and no bond was executed, as required by Code 1942, § 1357. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Only gravest emergency justifies appointment of receiver without notice. Burton v. Pepper, 116 Miss. 139, 76 So. 762, 1917 Miss. LEXIS 291 (Miss. 1917).

Unsecured creditor cannot secure appointment of receiver, without notice, by simply showing execution of deeds of trust by debtor firm to other creditors. Lawrence Lumber Co. v. A. J. Lyon & Co., 93 Miss. 859, 47 So. 849, 1908 Miss. LEXIS 161 (Miss. 1908).

Where a receiver has been appointed without notice by the chancellor of another district, it will be presumed on a recital to that effect in the chancellor’s order that the showing required by statute to authorize such action was made. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

The court cannot appoint a receiver for a bank on its ex parte application, though it is insolvent. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

Appointment of a receiver, without notice and before process served, on bill by execution creditors against debtor and claimants under trust deeds, alleging that defendants were conspiring to hinder and delay the complainants until the secured debts should mature and the property could be sold and bought by such secured claimants, was erroneous, since any wrongful disposition of the property could be prevented by injunction. Meridian News & Pub. Co. v. Diem Wing Paper Co., 70 Miss. 695, 12 So. 702, 1893 Miss. LEXIS 21 (Miss. 1893).

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

CJS.

75 C.J.S., Receivers § 62.

JUDICIAL DECISIONS

1. In general.

The conditions which must be shown in order to entitle a stockholder to have a dissolution of a corporation and a receiver appointed are the insolvency of the corporation, or that the corporation ceases to be a going concern, or while not solvent the corporation sells its franchises in whole or in part. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

An order for the dissolution of a corporation and the appointment of a receiver was void where the petition for the dissolution of the corporation and the appointment of the receiver did not allege the existence of any emergency justifying the appointment of a receiver without notice, and the president and vice-president, who owned the majority of the stock, were not given notice, and no bond was executed, as required by this section [Code 1942, § 1357]. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Chancellor was justified in terminating the receivership and returning the assets to the corporation where the entire proceedings wherein the dissolution of the corporation was ordered and the receiver appointed were void for want of notice to other stockholders, and for failure to post the receiver’s bond, without regard to the fact that the president and vice president, who were majority stockholders of the corporation, failed to testify in the case. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Upon decree discharging receiver complainant is liable on the bond for all damages sustained because of appointment. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers § 69.

CJS.

75 C.J.S., Receivers § 63.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 66, 67, 68.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 70.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Receiver’s personal liability for negligence in failing to care for or maintain property in receivership. 20 A.L.R.3d 967.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 139-141.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 101 et seq., 161.

CJS.

75 C.J.S., Receivers §§ 126-131, 136, 167.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

JUDICIAL DECISIONS

1. In general.

Receiver not liable for disbursement of funds under order of court. United States Fidelity & Guaranty Co. v. McCain, 136 Miss. 30, 136 Miss. 306, 101 So. 197, 1924 Miss. LEXIS 113 (Miss. 1924).

Order by chancellor in vacation instructing receiver to sell property may be made in any county or court in which receivership situated. Cashin v. Murphy, 132 Miss. 834, 96 So. 747, 1923 Miss. LEXIS 82 (Miss. 1923).

Court may appoint receiver for solvent corporation upon petition of minority stockholders on a showing of maladministration by officers appointed by majority and if shown to be necessary to wind up business. Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018, 1912 Miss. LEXIS 244 (Miss. 1913).

Under the facts of the case, a decree authorizing a receiver to continue the publication of a newspaper was held to be too broad. Meridian News & Pub. Co. v. Diem Wing Paper Co., 70 Miss. 695, 12 So. 702, 1893 Miss. LEXIS 21 (Miss. 1893).

Cross References —

Appointment of guardian ad litem for infants or defendants of unsound mind, see §9-5-89.

Appointment of guardian for minors, see §93-13-13.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 910, 915.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Form 22.

CJS.

43 C.J.S., Infants § 461.

JUDICIAL DECISIONS

1. In general.

Receiver should not be appointed in estate matter because executor or administrator is derelict. Huston v. King, 119 Miss. 347, 80 So. 779, 1919 Miss. LEXIS 7 (Miss. 1919).

Cross References —

Additional bond for money received by circuit court clerk, see §9-7-121.

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 66, 67, 68.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 70.

JUDICIAL DECISIONS

1. In general.

A federal interpleader action brought in its own jurisdiction by a nonresident judgment debtor of an insolvent Mississippi judgment creditor was dismissed where, under Code 1942, §§ 1362 and 2804, ample procedures existed for the protection of the judgment debtor’s rights in Mississippi. Hansen v. Mathews, 424 F.2d 1205, 1970 U.S. App. LEXIS 10987 (7th Cir. Wis.), cert. denied, 397 U.S. 1057, 90 S. Ct. 1404, 25 L. Ed. 2d 675, 1970 U.S. LEXIS 2256 (U.S. 1970).

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Costs and other expenses incurred by fiduciary whose appointment was improper as chargeable against estate. 4 A.L.R.2d 160.

Measure and amount of compensation of receiver appointed by federal court. 6 A.L.R. Fed. 817.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 234-288.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 301-304.

CJS.

75 C.J.S., Receivers §§ 461-464.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March 1979.

JUDICIAL DECISIONS

1. In general.

2. Lien.

1. In general.

An attorney employed by the receiver under a general assignment held entitled to compensation under the facts and conditions described. Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305, 1898 Miss. LEXIS 52 (Miss. 1898).

Only such expenses as are incurred in benefiting or preserving the estate may be allowed. Counsel fees incurred in an unsuccessful defense of an assignment against creditors cannot be. An allowance may be made for the services of the assignee in a general assignment under the code, who is made by the statute a receiver. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894).

2. Lien.

Code 1942, § 1363 does not create a lien by operation of law which would follow the property out of the receivership and survive the termination of the receivership proceedings. In re Anglo-American Properties, Inc., 460 F.2d 212, 1972 U.S. App. LEXIS 9716 (5th Cir. Miss. 1972).

Cross References —

Other sections derived from same 1942 code section, see §§11-1-57,11-11-1.

Judges, terms, general powers and duties of circuit court, see Chapter 7 of Title 9.

Trial of right of property, see Chapter 23 of this title.

Attachment at law against debtors, see Chapter 33 of this title.

Garnishment proceedings, see Chapter 35 of this title.

Habeas corpus proceedings, see Chapter 43 of this title.

Mandamus and writs of prohibition, see Chapter 41 of this title.

Quo warranto proceedings, see Chapter 39 of this title.

Action of replevin, see Chapter 37 of this title.

Suits against state or its political subdivisions, see Chapter 45 of this title.

Rules of evidence generally, see Chapter 1 of Title 13.

Process, publication and notice generally, see Chapter 3 of Title 13.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Procedural rules applicable to practice in Mississippi circuit and county courts, see Uniform Rules of Circuit and County Court Practice, Rules 1.01 et seq.

RESEARCH REFERENCES

ALR.

Pleading and proof of law of foreign country. 75 A.L.R.3d 177.

Am. Jur.

20 Am. Jur. 2d, Courts §§ 33 et seq.

CJS.

21 C.J.S., Courts §§ 188-245.

Law Reviews.

The Limits of the Mississippi Supreme Court’s Rule-Making Authority. 60 Miss. L. J. 359, Fall 1990.

JUDICIAL DECISIONS

1. In general.

2. Venue.

3. Dismissal.

4. Evidence.

1. In general.

In view of the section [Code 1942, § 1412] and Code 1930, §§ 575, 1397 case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

By this section [Code 1942, § 1412], the provisions of the chapter are made applicable to all courts, and this embraces the county court; and, accordingly, conviction on a plea of guilty entered on an amendable affidavit is good and cannot be set aside on certiorari because of a defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

2. Venue.

In view of this section [Code 1942, § 1412], a fraternal benefit association may be sued in the chancery court of the county in which the beneficiary resides. Masonic Ben. Ass'n v. Dotson, 111 Miss. 60, 71 So. 266, 1916 Miss. LEXIS 240 (Miss. 1916).

3. Dismissal.

Where a suit was brought in chancery court for cancelation of a conveyance on the ground that it has never been delivered, the chancellor should have granted the complainant’s motion for voluntary dismissal without prejudice where there was no submission to the chancellor for final decision on merits. Graham v. Graham, 214 Miss. 99, 58 So. 2d 85, 1952 Miss. LEXIS 449 (Miss. 1952).

A complainant in the chancery court has the right under the statute to dismiss his suit without prejudice. This rule applies in all cases where the defendant will not be prejudiced by a dismissal. Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 1917 Miss. LEXIS 137 (Miss. 1917); Adams v. Dean, 74 So. 436 (Miss. 1917); Adams v. Leatherbury, 74 So. 436 (Miss. 1917); Adams v. McInnis, 74 So. 436 (Miss. 1917).

4. Evidence.

Under the provisions of this section [Code 1942, § 1412], Code 1942, § 1469 is applicable to suits in the chancery court. General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So. 2d 845, 1965 Miss. LEXIS 927 (Miss. 1965).

In action of unlawful entry and detainer, introduction in evidence of deed to plaintiff held not objectionable on ground that no copy of deed was filed as exhibit to declaration, since statute (Code 1930, § 3458) made no such requirement. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Statutes requiring copy of writing to be annexed to declaration or bill before evidence of writing may be introduced applies to chancery court as well as to circuit court. Thomas v. B. Rosenberg & Sons, Inc., 153 Miss. 314, 120 So. 732, 1929 Miss. LEXIS 18 (Miss. 1929).

Cross References —

Benefits carried with assignment of negotiable instruments, see §75-13-1.

Effect of releasing one or more joint debtors, see §85-5-1.

Provision that no action shall be dismissed on ground that it is not prosecuted in name of real party in interest until reasonable time has been allowed after objection for ratification of commencement of action by, or joinder or substitution of, real party in interest, see Miss. R. Civ. P. 17.

Substitution of parties generally, see Miss. R. Civ. P. 25.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments §§ 134-148.

2 Am. Jur. Pl & Pr Forms (Rev), Assignments, Forms 71-77 (Parties to actions; substitution).

2B Am. Jur. Legal Forms 2d, Assignments §§ 25:139 et seq. (choses in action; assignments arising out of contract); §§ 25:159 et seq. (choses in action; assignments arising out of tort).

CJS.

6A C.J.S., Assignments §§ 123-152.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Joinder of Claims and Parties – Rules 13, 14, 17 and 18. 52 Miss. L. J. 37, March 1982.

1981 Mississippi Supreme Court Review; Insurance. 52 Miss. L. J. 445, June 1982.

JUDICIAL DECISIONS

1. In general.

2. Rights assignable.

3. Assignment to attorney.

4. Necessity of assignment in writing.

5. Suit by or in the name of assignor.

6. Right of assignee to sue.

7. Assignment pendente lite.

8. Rights of assignor and assignee inter se.

9. Payment or settlement of claim after assignment.

10. Evidence.

11. Parties.

12. Limitation of actions.

1. In general.

Pursuant to a divorce, the property settlement agreement provided that each party released the other party from all claims through the date of the agreement, and referenced civil or criminal actions; the agreement was an appropriate location for a release of claims to appear, the claims that were the subject of the agreement were “choses in action,” and the trial court properly held that the contractual agreement precluded the wife’s suit for personal injuries based on a pre-divorce assault by the husband. Martinez v. Martinez, 860 So. 2d 1247, 2003 Miss. App. LEXIS 1151 (Miss. Ct. App. 2003).

In a cause of action based upon an open account for merchandise sold and delivered by the receiver of a bankrupt company to the defendant, where the declaration alleges that there was proper assignment under the authority of a proper decree of a chancery court, the failure of the plaintiff to file a copy of the order appointing the receiver and a copy of order authorizing sale of assets of the bankrupt company receivership to the plaintiff, with the declaration, does not constitute such a defect as to require a reversal of a default judgment. Britton v. Magnolia State Casket & Supply Co., 210 Miss. 264, 49 So. 2d 404, 1950 Miss. LEXIS 346 (Miss. 1950).

Statute regarding right of assignee of chose in action to sue in his own name held not applicable to suits in equity to enforce right of subrogation. Box v. Early, 181 Miss. 19, 178 So. 793 (Miss. 1938).

Statute (Code 1942, § 1450), requiring that assignment of chose in action be in writing, filed with papers, held not in conflict with this section [Code 1942, § 1448] authorizing institution or continuance of action in assignor’s name. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

2. Rights assignable.

Trial court did not err in failing to recognize and apply the waiver, joinder and assignment documents signed by a mother’s children regarding her claims for child support arrearages on their behalves because although Miss. Code Ann. §11-7-3 allowed for the assignment of choses in action, the child support benefits belonged to the children with the mother serving only in a fiduciary capacity. Ladner v. Logan, 857 So. 2d 764, 2003 Miss. LEXIS 551 (Miss. 2003).

Because a wrongful death claim accrued at death, a decedent could not have assigned it – or the personal injury component of the wrongful death claim that survived her death pursuant to Miss. Code Ann. §11-7-13 – to her ex-husband under Miss. Code Ann. §11-7-3. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

A claim against an insurance company for bad faith is assignable. Kaplan v. Harco Nat'l Ins. Co., 708 So. 2d 89 (Miss. Ct. App.), op. withdrawn, 716 So. 2d 673, 1998 Miss. App. LEXIS 139 (Miss. Ct. App. 1998).

Holder of mortgage on property destroyed by fire could properly assign its interest in any claims and/or causes of action against insurance company arising out of loss to the property owner, with property owner remaining fully liable to mortgagee for amount still owed on mortgage, and such assignment is not champertous, as property owners who obtain assignment from mortgage company are not strangers to litigation against insurance company and have asserted interest separate and distinct from interest of mortgagee; in issues of propriety of assignment and claims of champerty, analysis is not focused on relationship between assignee and assignor but rather relationships between assignor and insurance company and assignees and insurance company. Stephen R. Ward, Inc. v. United States Fidelity & Guaranty Co., 681 F. Supp. 389, 1988 U.S. Dist. LEXIS 1902 (S.D. Miss. 1988).

Under this provision, a cause of action for personal injuries may be assigned in part, and no unjust enrichment is involved in permitting recovery in excess of the amount due the assignee. Farmer v. Humphreys County Memorial Hospital, 236 Miss. 35, 109 So. 2d 356, 1959 Miss. LEXIS 291 (Miss. 1959).

The right of a borrower in case of usury to recover the principal and interest is not assignable. Fry v. Layton, 191 Miss. 17, 2 So. 2d 561, 1941 Miss. LEXIS 138 (Miss. 1941).

Landowner’s right to recover for cutting timber is assignable; deed conveying land with all rights of action accrued or to accrue, for depredation and trespasses, assigned right of action for wrongful cutting timber prior thereto. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

Action for recovery of personal property or to enforce contract or recover damages for breach of contract or for injury to person or property survives, and is assignable; pure penalty intended as punishment for misconduct does not survive, and is not assignable. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

An injured person may assign his claim for damages. Reese v. Salmon, 99 So. 382 (Miss. 1924).

The vendor of standing timber, acquiescing in the assignment of the contract of sale thereof, is estopped to deny the assignability of a claim. Young v. Adams, 122 Miss. 1, 84 So. 1, 1920 Miss. LEXIS 412 (Miss. 1920).

A valid claim for personal injuries may be assigned. Wells v. Edwards H. & C. R. Co., 96 Miss. 191, 50 So. 628, 1909 Miss. LEXIS 42 (Miss. 1909).

The right given to nonresident defendants against whom a final decree has been rendered to apply for a new hearing within two years is assignable and may be exercised by the assignee. Fink v. Henderson, 74 Miss. 8, 19 So. 892, 1896 Miss. LEXIS 97 (Miss. 1896).

A covenant not to re-engage in the insurance business is assignable and may be enforced by the assignee. Klein v. Buck, 73 Miss. 133, 18 So. 891, 1895 Miss. LEXIS 104 (Miss. 1895).

3. Assignment to attorney.

Where an attorney who, under a contract with his client, had obtained an assignment of a 50 per cent interest in the client’s cause of action against the defendant, or a 50 per cent contingent fee in the amount that might be recovered therein, had failed to file his contract in compliance with this section [Code 1942, § 1448], and in an action upon the alleged assignment, defendant, who had obtained a written settlement and release from the client, answered he had no knowledge of the contract between the attorney and the client at the time of his settlement with the client, the trial court properly sustained defendant’s plea in bar, in view of ample evidence to support the finding as to the absence of knowledge on the defendant’s part at the time of the release. Cumbest v. Kaufman, 230 Miss. 713, 93 So. 2d 857, 1957 Miss. LEXIS 413 (Miss. 1957).

Absent assignment to attorneys of interest in cause of action, complainant in good faith may dismiss suit without attorneys’ consent, notwithstanding attorneys’ fee is contingent. Zerkowsky v. Zerkowsky, 160 Miss. 278, 131 So. 647, 1931 Miss. LEXIS 121 (Miss. 1931).

4. Necessity of assignment in writing.

Real party in interest was company which had allegedly sold its stock to another company, and not company purchasing stock, where, other than proposal to buy stock and order of bankruptcy court accepting such proposal, no document evidencing sale or transfer of assets was executed between selling and purchasing companies. J. Morco, Inc. v. Prentiss Mfg. Co., 675 F. Supp. 1039, 1987 U.S. Dist. LEXIS 12465 (S.D. Miss. 1987).

The equitable holder of a chose in action, to whom a written assignment is not made, cannot sue in his own name. M. Lowenburg & Co. v. Jones, 56 Miss. 688, 1879 Miss. LEXIS 194 (Miss. 1879).

5. Suit by or in the name of assignor.

Court’s order allowing insurers, which had made payments to the insured for loss under a contract subrogating them pro tanto to insured’s claim for damages, to be made parties in insured’s action for damages caused by the alleged negligent installation of gas heating appliance in no way interfered with insured’s right to maintain action where none of the insurers filed pleadings attacking insurer’s right, and only action taken by insurers’ counsel was on the side of, and in aid of insured’s cause and with his full consent and approval. Ford v. United Gas Corp., 254 F.2d 817, 1958 U.S. App. LEXIS 4113 (5th Cir. Miss.), cert. denied, 358 U.S. 824, 79 S. Ct. 40, 3 L. Ed. 2d 64, 1958 U.S. LEXIS 443 (U.S. 1958).

Assignment of conditional sales contracts to a bank as collateral, held not to preclude the assignor from suing thereon. Murdock Acceptance Corp. v. Adcox, 245 Miss. 151, 138 So. 2d 890, 1962 Miss. LEXIS 542 (Miss. 1962).

Insurance companies, assignees of the insured’s cause of action, by bringing the action in the name of the assignor for damages resulting from the defendant’s alleged negligence in improperly installing a floor furnace in the insured’s home, elected to proceed in the name of the assignor, so that the trial court properly refused to permit plaintiff’s attorneys to impeach the assignor. Toler v. Owens, 231 Miss. 753, 97 So. 2d 728, 1957 Miss. LEXIS 562 (Miss. 1957).

Where suit by former sheriff against the county for fees alleged to be past due and owing him and the county made a counterclaim against the former sheriff and the suit was dismissed by agreement of the parties and without prejudice to either the claim of the former sheriff or the counterclaim of the county, and where later the former sheriff assigned his claim to an accountant, the order of dismissal was binding upon the former sheriff and nonprejudicial to the accountant’s rights as assignee to thereafter prosecute a suit in his own name. Smith v. Copiah County, 219 Miss. 633, 69 So. 2d 404, 1954 Miss. LEXIS 371 (Miss. 1954).

Under this section [Code 1942, § 1448], court is correct in permitting action brought in name of wife on hospitalization policy to proceed in her name after reopening of case to permit husband, to whom she had made assignment, to state that he authorized her to bring suit in her name and waived all his rights under assignment. American Life Ins. Co. v. Walker, 208 Miss. 1, 43 So. 2d 657, 1949 Miss. LEXIS 401 (Miss. 1949).

Where surety company on fidelity bond paid credit association amount of loss occasioned by dishonesty of association’s employee in forging indorsements on checks and drafts issued by such association on drawee-depository bank, and association assigned its rights to the surety, and at the request of the surety brought suit against the bank, suit could be instituted and prosecuted in the name of the association but the suit was entirely for the benefit of the surety. Oxford Production Credit Ass'n v. Bank of Oxford, 196 Miss. 50, 16 So. 2d 384, 1944 Miss. LEXIS 169 (Miss. 1944).

Where surety on fidelity bond paid credit association amount of loss occasioned by forgery of association’s employee in the indorsement of checks and drafts issued by such association upon drawee bank, and association assigned its rights to surety, action in name of association against bank, to which bank set up equitable defenses, was properly removed to chancery court, and when so transferred, proof of all equities and the effect thereof could properly be made and considered. Oxford Production Credit Ass'n v. Bank of Oxford, 196 Miss. 50, 16 So. 2d 384, 1944 Miss. LEXIS 169 (Miss. 1944).

A liquidating committee of a bank, vested with authority under decree of the chancery court to sue for and collect the indebtednesses due such bank, could maintain an action to collect a debt due the bank represented by promissory notes collaterally secured by corporate stock notwithstanding that such notes and collateral security had been assigned by the bank to the Reconstruction Finance Corporation, in view of the fact that the bank, as payee of such promissory note, was the original party entitled to sue on the note within the meaning of this section [Code 1942, § 1448]. Morrison v. Gulf Oil Corp., 189 Miss. 212, 196 So. 247, 1940 Miss. LEXIS 108 (Miss. 1940).

Order to amend declaration in tort action by bringing in corporation, to which plaintiff assigned right of action before bringing suit, as party thereto, and dismissal of suit for noncompliance with such order, held erroneous. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

Where the assignee brings suit in the name of the assignor, the suit may be prosecuted in the name of the assignor, or it can be by order of the court prosecuted in the name of the assignee as substituted plaintiff. Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79, 1925 Miss. LEXIS 134 (Miss. 1925).

Suits may be brought, maintained and appealed in the name of the assignor under this section [Code 1942, § 1448]. Ridgeway v. Jones, 122 Miss. 624, 84 So. 692, 1920 Miss. LEXIS 463 (Miss. 1920).

In a suit by one person for the use of another, recovery can only be had on the cause of action, the legal title to which is in the plaintiff. Where, under this section [Code 1942, § 1448] the usee is substituted for the plaintiff the extent to which the recovery may be had is not enlarged. Yazoo & M. V. R. Co. v. S. B. Wilson & Co., 83 Miss. 224, 35 So. 340, 1903 Miss. LEXIS 36 (Miss. 1903).

In actions of tort, usees have no rights that entitle them to recognition as parties litigant, but proof of right in the nominal plaintiff entitles him to a recovery. Jones v. Kansas C., M. & B. R. Co., 75 Miss. 913, 23 So. 547, 1898 Miss. LEXIS 33 (Miss. 1898).

A bailor whose warehouse receipts are pledged cannot maintain replevin or trover either in his own name or for the use of the pledgee. Selleck v. Macon Compress & Warehouse Co., 72 Miss. 1019, 17 So. 603, 1895 Miss. LEXIS 23 (Miss. 1895).

An action for damages against a railroad company for killing animals should not be brought in the name of one for the use of another, since in tort actions there cannot be a usee. Kansas City, M. & B. R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344, 1892 Miss. LEXIS 123 (Miss. 1892).

A plaintiff suing on several demands, one of which is held by verbal assignment from a partnership, may amend so as to proceed in the name of the partnership, as to that, and dismiss as to the other claims. Shannon v. Rester, 69 Miss. 238, 13 So. 587, 1891 Miss. LEXIS 134 (Miss. 1891).

An assignor in writing of an account cannot sue in his own name for the use of the assignee. Beck v. Rosser, 68 Miss. 72, 8 So. 259, 1890 Miss. LEXIS 5 (Miss. 1890).

6. Right of assignee to sue.

In an action by a savings and loan association against a former vice-president and members of the board of directors for $26 million dollars in damages for alleged breach of fiduciary duty in the management of the association, the trial court properly rejected the defendants’ contention that the suit was barred due to the acquisition of the association by a successor corporation where the written bill of sale and assignment had the effect of transferring and assigning unto the successor corporation all properties, assets and choses in action of every kind and nature, including the present action. Liberty Sav. & Loan Asso. v. Mitchell, 398 So. 2d 208, 1981 Miss. LEXIS 2003 (Miss. 1981).

A “subrogation receipt” taken by an insurer upon settling with insured for damage caused by a third person is such an assignment of insured’s right of action as to permit the insurer to bring suit thereon. United States Fidelity & Guaranty Co. v. Covert, 242 Miss. 1, 133 So. 2d 403, 1961 Miss. LEXIS 522 (Miss. 1961).

Under this section [Code 1942, § 1448], public accountant has right to contract with public official for prosecution of suit for additional salary, in consideration of percentage of recovery, and the suit may be prosecuted in the name of the latter as assignee. Calhoun County v. Cooner, 152 Miss. 100, 118 So. 706, 1928 Miss. LEXIS 219 (Miss. 1928).

Liquidating agent authorized to effect settlement of debts, etc., by agreement between bank, creditors, and state banking department could sue on note payable to bank or bearer. Yazoo Delta Mortg. Co. v. Harlow, 150 Miss. 105, 116 So. 441, 1928 Miss. LEXIS 117 (Miss. 1928).

A contract for the sale of timber is enforceable against the vendor by the assignee of the vendee. Young v. Adams, 122 Miss. 1, 84 So. 1, 1920 Miss. LEXIS 412 (Miss. 1920).

Plaintiff must have title to a chose in action at the time he brings suit; so where assignment of the right of action on a fire insurance policy was not made to plaintiff until after he brought suit thereon, the action could not be maintained. St. Paul Fire & Marine Ins. Co. v. W. H. Daniel Auto Co., 121 Miss. 745, 83 So. 807, 1920 Miss. LEXIS 118 (Miss. 1920).

Where a carrier by mistake delivers partnership property to a stranger and pays the partnership for it, receiving an assignment from one only of the partners of his interest therein, it may sue the stranger for the value of the property, notwithstanding the failure of the other partners to join in the assignment. Johnson, Nesbitt & Co. v. Gulf & C. R. Co., 82 Miss. 452, 34 So. 357, 1903 Miss. LEXIS 169 (Miss. 1903).

And in such case the carrier may sue in trover or waive the tort and sue for the value of the property without an assignment from the owner. Johnson, Nesbitt & Co. v. Gulf & C. R. Co., 82 Miss. 452, 34 So. 357, 1903 Miss. LEXIS 169 (Miss. 1903).

The assignee may sue in his own name if the assignment be in writing, though another may possess a beneficial interest in the money due. Jenkins v. Sherman, 77 Miss. 884, 28 So. 726, 1900 Miss. LEXIS 55 (Miss. 1900).

This section [Code 1942, § 1448], gives to assignees of grantors in fee, and to the assignees of covenants expressed in conveyances in fee, the like remedies for the estate assigned and upon the conditions and covenants contained in them that the common law gave to the original parties and their privies in contract. Wright v. Hardy, 76 Miss. 524, 24 So. 697, 1898 Miss. LEXIS 96 (Miss. 1898).

Where the seller, by separate written contract, reserves the legal title as security for a note for the purchase price, the assignee of the note may enforce the contract as a security. Ross-Meehan Brake-Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364, 1895 Miss. LEXIS 37 (Miss. 1895).

But the right is purely defensive unless the assignment be in writing. Pollard v. Thomas, 61 Miss. 150, 1883 Miss. LEXIS 90 (Miss. 1883).

The person to whom a claim for damages for injury to personal property has been assigned in writing can sue thereon, in his own name. Chicago, S. L. & N. O. R. Co. v. Packwood, 59 Miss. 280, 1881 Miss. LEXIS 118 (Miss. 1881).

7. Assignment pendente lite.

In an action by an assignor in the circuit court, after transfer from the chancery court, for reimbursement for the default in the account of an insurance agent guaranteed by bond, the assignment having been made while the suit was pending in the chancery court, the assignee was entitled to prove the payment of the consideration for such assignment on the trial of the suit in the circuit court maintained in the name of the assignor. Jenkins & Boyle v. Rogers, 184 Miss. 182, 185 So. 603, 1939 Miss. LEXIS 39 (Miss. 1939).

A plaintiff bringing a suit which is thereafter merged into other parties does not entitle defendant to a verdict in the case. Central Nat'l Bank v. Perry, 135 Miss. 445, 100 So. 276, 1924 Miss. LEXIS 62 (Miss. 1924).

It is no defense that the cause of action has been assigned since the beginning of the suit, and is still prosecuted in the name of the assignor. Montgomery v. Handy, 63 Miss. 43, 1885 Miss. LEXIS 9 (Miss. 1885).

8. Rights of assignor and assignee inter se.

A mortgage may be assigned but after the assignment the mortgagee has no authority to enter satisfaction thereon. Brown v. Yarbrough, 130 Miss. 715, 94 So. 887, 1922 Miss. LEXIS 246 (Miss. 1923).

The rights of the assignee cannot be affected by subsequent acts of the assignor. Peck-Hammond Co. v. Williams, 77 Miss. 824, 27 So. 995, 1900 Miss. LEXIS 41 (Miss. 1900).

9. Payment or settlement of claim after assignment.

A party is not protected in paying a claim which he knows has been assigned to another person unless he makes the payment to the person who owns it. Wells v. Edwards H. & C. R. Co., 96 Miss. 191, 50 So. 628, 1909 Miss. LEXIS 42 (Miss. 1909).

10. Evidence.

Where the nominal plaintiff assigns the cause of action pending the suit to the usee, evidence of an independent antecedent contract between the defendant and the usee is not admissible. Yazoo & M. V. R. Co. v. S. B. Wilson & Co., 83 Miss. 224, 35 So. 340, 1903 Miss. LEXIS 36 (Miss. 1903).

11. Parties.

Suit at law on chose in action must be brought in the name of legal owner, but in equity equitable owner may be joined. Cottrell v. Smith, 146 Miss. 837, 112 So. 465, 1927 Miss. LEXIS 251 (Miss. 1927).

The assignee of part of a claim is a necessary party to a suit for personal injuries to the assignor. A. K. McInnis Lumber Co. v. Rather, 111 Miss. 55, 71 So. 264, 1916 Miss. LEXIS 239 (Miss. 1916).

12. Limitation of actions.

Amendment to action by assignee to include assignor creates no new cause of action for consideration in determining limitations. Cottrell v. Smith, 146 Miss. 837, 112 So. 465, 1927 Miss. LEXIS 251 (Miss. 1927).

Cross References —

Limitation of setoff, see §15-1-71.

Defenses available with assignment of negotiable instruments, see §75-13-1.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments § 144.

JUDICIAL DECISIONS

1. In general.

Assignment of claim against county for purchase price of tractor sold was valid without consent of county, though there was element of guaranty or warranty. People's Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192, 1930 Miss. LEXIS 187 (Miss. 1930).

Defendant, after assignee of account was substituted as plaintiff, was not entitled to recover over against him on counterclaim. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

Assignee of account could not, after defendant in action thereon filed setoff, be substituted as plaintiff over objection. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

A judgment cannot be set off against another judgment so as to satisfy that part of it equitably assigned to the attorneys as compensation for their services in recovering it. Harris v. Hazlehurst Oil-Mill & Mfg. Co., 78 Miss. 603, 30 So. 273, 1900 Miss. LEXIS 183 (Miss. 1900).

And this is true, though the assignment of the account was not in writing. Ashby v. Carr, 40 Miss. 64, 1866 Miss. LEXIS 50 (Miss. 1866); Hunt & Vaughan v. Shackleford, 55 Miss. 94, 1877 Miss. LEXIS 110 (Miss. 1877).

In a suit by an indorsee of a note against the maker, the latter will be entitled to use a setoff on open account which was acquired by assignment before suit. Phipps v. Shegogg & Son, 30 Miss. 241, 1855 Miss. LEXIS 92 (Miss. 1855).

Cross References —

Executions and attachments on choses in action, see §§13-3-127,13-3-133,13-3-135,13-3-147.

Assignments generally, see §75-13-1.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments §§ 80-84.

2 Am. Jur. Pl & Pr Forms (Rev), Assignments, Forms 71-77 (Parties to actions; substitution).

CJS.

6A C.J.S., Assignments §§ 123-152.

JUDICIAL DECISIONS

1. In general.

2. Bad faith claim against insurance company.

1. In general.

Liability for corporate debt was limited to those officers and directors who were actively involved in the control and management of the corporation, and the president’s testimony at trial made it clear he was involved in the control and management of the corporation; however, where there was no proof of any assignment to the president by the corporation of any chose in action as contemplated under Miss. Code Ann. §11-7-7, the president had no standing to pursue the action on behalf of the corporation. Consequently, although the president, individually, could have been held liable for the corporate torts committed by the corporation, he had no authority to sue on a contract that belonged to the corporation; accordingly, all claims brought by the corporation and the president were dismissed. 4 H Constr. Corp. v. Superior Boat Works, Inc., 659 F. Supp. 2d 774, 2009 U.S. Dist. LEXIS 83183 (N.D. Miss. 2009), aff'd, 579 Fed. Appx. 278, 2014 U.S. App. LEXIS 16558 (5th Cir. Miss. 2014).

When a bank purchased a corporation’s choses in action at a sheriff’s sale, it also purchased lawsuits; as such, it became the owner of the lawsuits, and the trial court erred in not substituting the bank as a party plaintiff and in not dismissing the litigation. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

Trial court’s denial of a church’s motion to quash a writ of execution upon its chose of action against a third party was affirmed, as nothing in Miss. Code Ann. §11-7-7 excluded writs of execution from the manner in which a chose in action could be transferred. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

Miss. Code Ann. §11-7-7 does not prohibit a chose in action from being subject to a writ of execution. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

The right to sue for trespass to property was assignable to a subsequent purchaser of property, such that the grantee had the same rights as the prior owner; absent some other doctrine, buyers could bring suit for the claim originally possessed by the railroad. Flowers v. McCraw, 792 So. 2d 339, 2001 Miss. App. LEXIS 325 (Miss. Ct. App. 2001).

Attorney who, under oral contract for contingent fee, prosecuted suit for unliquidated damages to judgment and received from client, filed in the cause, an assignment in writing of that interest in the judgment, had a superior interest in judgment and took precedence to judgment debtor’s claim of right of setoff, although at the time suit was commenced and when judgment was rendered, attorney’s client was indebted to defendant in such suit in a larger sum than his judgment. Stribling Motor Co. v. Smith, 195 Miss. 547, 15 So. 2d 364, 1943 Miss. LEXIS 149 (Miss. 1943).

This section [Code 1942, § 1450], requiring that assignment of chose in action be in writing, filed with papers, held not in conflict with Code 1942, § 1448, authorizing institution or continuance of action in assignor’s name or substitution of assignee as plaintiff on his application. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

Landowner’s right to recover for cutting timber is assignable; deed conveying land with all rights of action accrued or to accrue, for depredation and trespasses, assigned right of action for wrongful cutting timber prior thereto. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

Satisfaction of judgment for damage to contents of building is bar to other action by same person for damage to buildings from same negligent act, though plaintiff had assigned his interest in second action, where notice of assignment was not given or filed as required by this section [Code 1942, § 1450]. Fewell v. New Orleans & N. E. R. Co., 144 Miss. 319, 109 So. 853, 1926 Miss. LEXIS 364 (Miss. 1926).

This statute [Code 1942, § 1450] does not apply to the assignment of a judgment but applies to assignment before judgment. Pigford Grocery Co. v. Wilder, 116 Miss. 233, 76 So. 745, 1917 Miss. LEXIS 287 (Miss. 1917).

2. Bad faith claim against insurance company.

A claim against an insurance company for bad faith is assignable. Kaplan v. Harco Nat'l Ins. Co., 708 So. 2d 89 (Miss. Ct. App.), op. withdrawn, 716 So. 2d 673, 1998 Miss. App. LEXIS 139 (Miss. Ct. App. 1998).

Cross References —

Crime of seduction, see §97-29-55.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur., Seduction § 80.

70 Am. Jur. 2d, Seduction § 49.

CJS.

79 C.J.S., Seduction §§ 4-7.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

Cross References —

Crime of seduction, see §97-29-55.

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parent and Child §§ 125 et seq.

70 Am. Jur. 2d, Seduction §§ 49, 50.

22 Am. Jur. Pl & Pr Forms (Rev), Seduction, Forms 3-6 (Complaint, petition, or declaration for seduction in action by father or mother).

CJS.

86 C.J.S., Seduction § 88.

JUDICIAL DECISIONS

1. In general.

Father was entitled to damages for humiliation and wounded feelings caused by seduction of daughter. Stone v. Bang, 153 Miss. 892, 122 So. 95, 1929 Miss. LEXIS 97 (Miss. 1929).

Defendant was guilty of seduction, if female between twelve and eighteen consented to sexual intercourse as result of defendant’s promise to give her money, clothes, etc. Stone v. Bang, 153 Miss. 892, 122 So. 95, 1929 Miss. LEXIS 97 (Miss. 1929).

Amendment Notes —

The 2004 amendment substituted “service charge of Forty Dollars ($40.00)” for “service charge of Thirty Dollars ($30.00)” at the end of (1).

The 2007 amendment inserted “holder or assignee” preceding “shall be entitled” in (2); in (2)(a), added (ii) and divided the former first paragraph into present (a) and (a)(i) by inserting the colon following “damages shall be” and inserting “(i) A service charge of” preceding “Thirty Dollars”; rewrote (2)(b) through (2)(d); and made a minor stylistic change.

Cross References —

Duty to establish accounts to facilitate handling of bad checks paid into the state treasury, see §7-9-12.

Bad checks generally, see §§97-19-55 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A tax collector, or a tax assessor and tax collector, may use the provisions of the statute to collect a bad check and obtain a civil penalty therefor. 1998 Miss. Op. Att'y Gen. 261.

RESEARCH REFERENCES

ALR.

Constitutionality of “bad check” statute. 16 A.L.R.4th 631.

JUDICIAL DECISIONS

1. Fraudulent Intent Requirement.

In wife’s contempt action against former husband, the wife presented no evidence that the husband issued the checks for child support, which the wife did not present to the bank for months, with fraudulent intent; therefore, there was no justification for the chancellor to award any statutory damages under Miss. Code Ann. §11-7-12 regarding the checks that were returned for insufficient funds, and for which the husband’s efforts to make good on the amounts were rebuffed by the wife. Broome v. Broome, 832 So. 2d 1247, 2002 Miss. App. LEXIS 858 (Miss. Ct. App. 2002).

Editor’s Notes —

The 1958 amendment to Code 1942, § 1453, provides as follows:

“SECTION 3. This Act shall apply where the death occurs on or after the passage of this Act; it shall be immaterial that the rights conferred herein did not exist at the time of the adoption or were not conferred by the decree of adoption; and the adopting parent or adopting parents shall have and possess the rights and powers which have been added by this Act, automatically by the operation of law.

Laws, 1981, ch. 529, § 7, provides as follows:

“SECTION 7. Nothing in Section 6 of this act shall be construed as conferring any additional rights or remedies upon illegitimates in wrongful death actions concerning the death of a decedent which occurred prior to July 1, 1981.”

Laws, 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, at the beginning of the last sentence of the first paragraph inserted “Except as otherwise provided in Section 11-1-69.”

The 2004 amendment inserted “or of any unborn quick child” and “or unborn quick child” throughout the section.

The 2013 amendment added the last two paragraphs.

The 2018 amendment added the second sentence of the fourth paragraph.

Cross References —

Constitutional authority for actions for death of employees, see Miss. Const. Art. 7, §§ 191, 193.

Liability of ships and vessels for wrongful death, see §11-7-175.

Presumption of negligence in case of injury by railroads and motor vehicles, see §13-1-123.

Limitation of action by personal representative of decedent, see §15-1-55.

Exemption of damages for wrongful death from collection by hospital reimbursement commission, see §41-7-95.

Period of retention of hospital records in case of wrongful death, see §41-9-69.

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

Liability of railroads for negligence and mismanagement, see §§77-9-435 et seq.

Exemption of judgment from execution for debt, see §§85-3-17,85-3-19.

Effect of final decree of adoption, see §93-17-13.

RESEARCH REFERENCES

ALR.

Instruction mentioning or suggesting specific sum as damages in action for personal injury or death. 2 A.L.R.2d 454.

Contributory negligence of parent as bar to an action by parent or administrator for death of child. 2 A.L.R.2d 785.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Claim for wrongful death as subject of counterclaim or cross action in negligence action against decedent’s estate, and vice versa. 6 A.L.R.2d 256.

Liability for injury to or death of participant in game or contest. 7 A.L.R.2d 704.

Marriage of child, or probability of marriage, as affecting right or measure of recovery by parents in death action. 7 A.L.R.2d 1380.

Prenatal injury as ground of action. 10 A.L.R.2d 1059, 27 A.L.R.2d 1256.

Right of defendant in action for personal injury or death to bring in joint tortfeasor for purpose of asserting right of contribution. 11 A.L.R.2d 228.

Civil liability for death by suicide. 11 A.L.R.2d 751.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death. 12 A.L.R.2d 611.

Death of or injury to occupant of airplane from collision or near collision with another aircraft. 12 A.L.R.2d 677.

Proof to establish or negative self-defense in civil action for death from intentional act. 17 A.L.R.2d 567.

Action against spouse or state for causing death of other spouse. 28 A.L.R.2d 662.

Right of action for wrongful death as subject to claims of creditors. 35 A.L.R.2d 1443.

Venue of wrongful death action. 36 A.L.R.2d 1146.

Effect of death of a beneficiary upon right of action under death statute. 43 A.L.R.2d 1291.

Effect of death of beneficiary upon right of action under death statute. 43 A.L.R.2d 1291.

Capacity of local or foreign representative to maintain death action under foreign statute providing for action by personal representative. 52 A.L.R.2d 1016.

Retroactive effect of statute changing distribution of recovery or settlement for wrongful death. 66 A.L.R.2d 1444.

Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent. 72 A.L.R.2d 1235.

Admissibility in wrongful death action of testimony of actuary or mathematician to establish present worth of pecuniary loss. 79 A.L.R.2d 259.

Admissibility, in death action for benefit of minor children, of evidence of decedent’s desertion, nonsupport, abandonment, etc., of children. 79 A.L.R.2d 819.

Damages for wrongful death of husband or father as affected by receipt of social security benefits. 84 A.L.R.2d 764.

Wrongful death damages for loss of expectancy of inheritance from decedent. 91 A.L.R.2d 477.

Conflict of laws as to measure or amount of damages in death actions. 92 A.L.R.2d 1180.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child. 94 A.L.R.2d 1237.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

What law governs right to contribution or indemnity between tortfeasors. 95 A.L.R.2d 1096.

Time from which statute of limitations begins to run against cause of action for wrongful death. 97 A.L.R.2d 1151.

Action for death of unborn child. 15 A.L.R.3d 992.

Rescue doctrine: applicability to situation created by breach of warranty. 44 A.L.R.3d 473.

Profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death. 45 A.L.R.3d 345.

Liability of governmental entity or public official for personal injury or damages arising out of vehicular accident due to negligent or defective design of a highway. 45 A.L.R.3d 875.

Parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child. 53 A.L.R.3d 566.

Modern status of rule denying a common-law recovery for wrongful death. 61 A.L.R.3d 906.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Remarriage of surviving parent as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death accrued before marriage. 69 A.L.R.3d 1046.

Carrier’s liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult. 74 A.L.R.3d 1171.

Recovery, in action for benefit of decedent’s estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Recovery for mental or emotional distress resulting from injury to, death of, member of plaintiff’s family arising from physician’s or hospital’s wrongful conduct. 77 A.L.R.3d 447.

Admissibility and sufficiency of proof of value of housewife’s services, in wrongful death action. 77 A.L.R.3d 1175.

Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father. 78 A.L.R.3d 1230.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

Liability for child’s personal injuries or death resulting from tort committed against child’s mother before child was conceived. 91 A.L.R.3d 316.

Elements and measure of damages for breach of warranty in sale of horse. 91 A.L.R.3d 419.

Doctrine of forum non conveniens: assumption or denial of jurisdiction in action between nonresident individuals based upon tort occurring within forum state. 92 A.L.R.3d 797.

Validity of release of prospective right to wrongful death action. 92 A.L.R.3d 1232.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa. 94 A.L.R.3d 676.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

Propriety of taking income tax into consideration in fixing damages in personal injury or death action. 16 A.L.R.4th 589.

Judgment in favor of, or adverse to, person injured as barring action for his death. 26 A.L.R.4th 1264.

Exterminator’s tort liability for personal injury or death directly resulting from operations. 29 A.L.R.4th 987.

State or local governmental unit’s liability for injury to private highway construction worker based on its own negligence. 29 A.L.R.4th 1188.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker. 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations. 47 A.L.R.4th 134.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor. 49 A.L.R.4th 1076.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations. 50 A.L.R.4th 787.

Wrongful death: surviving parent’s minority as tolling limitation period on suit for child’s wrongful death. 54 A.L.R.4th 362.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent. 61 A.L.R.4th 251.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse. 61 A.L.R.4th 309.

Excessiveness or adequacy of damages awarded for parents’ noneconomic loss caused by personal injury or death of child. 61 A.L.R.4th 413.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Recovery of damages for loss of consortium resulting from death of child-modern status. 77 A.L.R.4th 411.

Products liability: cigarettes and other tobacco products. 36 A.L.R.5th 541.

Wrongful death damages for loss of expectancy of inheritance from decedent. 42 A.L.R.5th 465.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death. 46 A.L.R.5th 557.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Liability of owner of wires, poles, or structures struck by aircraft for resulting injury or damage. 49 A.L.R.5th 659.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Liability of health maintenance organizations (HMOs) for negligence of member physicians. 51 A.L.R.5th 271.

The government-contractor defense to state products-liability claims. 53 A.L.R.5th 535.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death or patron. 54 A.L.R.5th 513.

Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child. 70 A.L.R.5th 461.

Skier’s liability for injuries to or death of another person. 75 A.L.R.5th 583.

Who, Other Than Parent, May Recover For Loss of Consortium on Death of Minor Child. 84 A.L.R.5th 687.

Propriety of considering future income taxes in awarding damages under Federal Tort Claims Act. 47 A.L.R. Fed. 735.

Am. Jur.

22A Am. Jur. 2d, Death §§ 122-131, 135-144, 194-205.

7 Am. Jur. Pl & Pr Forms (Rev), Compromise and Settlement, Forms 31 et seq. (compromise and settlement of wrongful death actions).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Forms 1 et seq. (actions for wrongful death in general); 41 et seq. (availability of damages under wrongful death statute); 61 et seq. (parties entitled to bring action).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Form 8.2 (Complaint, petition, or declaration – Under combined wrongful death and survival statute – Death while in police custody).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Form 9.1 (Complaint under wrongful death statute – Action against municipality – Fatal shooting during execution of search warrant).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Forms 1-18, 51-83 (Actions for wrongful death).

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 149.2 (Complaint, petition, or declaration – By family of decedent – Against owner of building where fatal shooting occurred).

19A Am. Jur. Pl & Pr Forms (Rev), Penal and Correctional Institutions, Form 5.1 (Complaint, petition, or declaration – Against municipal corporation – Failure to prevent suicide of jail inmate – Survival and wrongful death action).

5 Am. Jur. Legal Forms 2d, Compromise and Settlement § 63:71 (wrongful death).

11 Am. Jur. Trials, Representation of Survivors in Death Actions.

12 Am. Jur. Trials, Wrongful Death Actions.

20 Am. Jur. Trials, damages for wrongful death of, or injury to, child, §§ 1 et seq.

28 Am. Jur. Trials, 307 Wrongful Death of Minor in Police Custody.

37 Am. Jur. Trials 1, Crib Death Litigation.

24 Am. Jur. Proof of Facts 2d 211, Wrongful Death Damages – Loss of Prospective Inheritance.

27 Am. Jur. Proof of Facts 2d 393, Loss of Consortium in Parent-Child Relationship.

38 Am. Jur. Proof of Facts 2d 195, Forensic Economics – Period of Economic Loss in Death and Personal Injury Cases.

49 Am. Jur. Proof of Facts 2d 191, Damages for Wrongful Death of Child.

24 Am. Jur. Proof of Facts 3d 337, Proof of Damages for Decedent’s Pain and Suffering.

25 Am. Jur. Proof of Facts 3d 251, Proof of Damages in Wrongful Death or Survival Action.

CJS.

25A C.J.S., Death §§ 80-134, 141-145, 146, 147, 185-212.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Symposium on Mississippi Rules of Civil Procedure: Joinder of Claims and Parties – Rules 13, 14, 17 and 18. 52 Miss. L. J. 37, March 1982.

Damages Recoverable in Mississippi for the Wrongful Death of an Adult. 53 Miss. L. J. 637, December, 1983.

1983 Mississippi Supreme Court Review: Inapplicability of savings statute to wrongful death actions. 54 Miss. L. J. 169, March, 1984.

Brady, Hedonic damages. 59 Miss. L. J. 495, Fall 1989.

Hedonic Damages: A Variation in Paths, The Questionable Expert and a Recommendation for Clarity in Mississippi. 65 Miss. L. J. 735, Spring 1996.

Sleeping Double in a Single Bed – Personal Consumption in Wrongful Death, 25 Miss. C. L. Rev. 159, Spring, 2006.

Comment: “I’m Not Dead Yet!”: An Analysis of the Recent Supreme Court of Mississippi’s Wrongful Death Jurisprudence, 27 Miss. C. L. Rev. 235, 2007/2008.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 32:12, 32:18.

JUDICIAL DECISIONS

1. In general.

1.5. Relation to Other Laws.

2. Right of action generally.

3. —Marital misconduct, as affected by.

4. —Enforcement of foreign cause of action.

5. Persons entitled to sue.

6. Persons entitled to recover.

7. Proximate cause.

8. Negligence and contributory negligence.

9. Limitation of actions.

10. Actions in general.

11. —Joinder of actions.

12. —Removal of cause.

13. Pleading.

14. Issues, proof and variance.

15. Parties.

16. Evidence.

17. Questions for jury.

18. Instructions.

19. Execution on judgment.

19.5. Attorney fees.

20. Damages.

21. —Elements of damages.

22. —Measure of damages.

23. —Amount of damages.

24. —Exemplary or punitive damages.

25. Compromise, settlement and release.

26. Res judicata.

27. Unborn child.

29. Adopted child.

30. Jurisdiction.

31. Collateral source rule.

1. In general.

In a wrongful death suit, as Miss. Code Ann. §11-46-9(1)(m) applied to any non-intentional/non-criminal acts alleged to have been committed upon a deceased inmate by a sheriff and/or his deputies while in the course and scope of their employment, the trial court correctly dismissed claims alleging negligent acts by defendants and properly left an assault claim viable; however, it erred by dismissing other counts that alleged intentional criminal acts, as pursuant to Miss. Code Ann. §§11-46-5(2),11-46-7(2), these claims remained viable under the wrongful death statute, Miss. Code Ann. §11-7-13 (Supp. 2003). Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

In a wrongful death action under Miss. Code Ann. §11-7-13, a motion to compel arbitration should have been granted because an arbitration agreement between a doctor and a patient agreement fell under 9 USCS § 2 since it had a nexus to interstate commerce, and there was no procedural unconscionability based on the patient’s inability to read since the language was not complex, the waiver of the right to a trial was in bold and capital letters, the patient signed or initialed on several pages, and there was a time lapse between the signing and the date of a surgery. Cleveland v. Mann, 942 So. 2d 108, 2006 Miss. LEXIS 467 (Miss. 2006).

Wrongful death statute should be given reading most coherent in principle, given entire statutory scheme and other valid rules in field. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

Wrongful death statute creates new and independent cause of action, unknown to common law, in favor of those named therein. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

In wrongful death action, there is no injury, and hence, no cause of action, until death occurs. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Venue in wrongful death action alleging medical malpractice was proper either in county in which patient died some six months after allegedly negligent care was rendered, or in county in which that care was rendered. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

No statute provides for prejudgment interest on estimated earnings from time of decedent’s death to time of trial, consequently, trial judge would have been correct in denying prejudgment interest on this basis alone, including §11-7-13. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

Wrongful death statute is strictly construed on appellate review. Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

On a factual showing that landowner neither did nor failed to do anything that breached any duty owed to the invitee, landowner was properly granted a directed verdict in action for the wrongful death of an experienced woodcutter whom he had hired to come onto his premises to fell trees and cut up firewood, and who was fatally injured in the felling of the first tree. Hathorn v. Hailey, 487 So. 2d 1342, 1986 Miss. LEXIS 2454 (Miss. 1986).

Code 1972, §11-7-13 must be considered in pari materia with Code 1972, §§91-7-231,91-7-233, which authorize only a personal representative to sue to recover the assets of the deceased. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

Since the wrongful death statute created a cause of action unknown to the common law, it must be strictly construed. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of his father where the father has not acknowledged the child did not deny equal protection of the laws to an illegitimate son who had not been acknowledged by the deceased. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

Where a prime contractor, after the subcontractor failed to furnish a performance bond, terminated the subcontract and thereafter directed the subcontract work in all particulars, a workman who was killed when struck by a vehicle engaged in performance of the subcontract was an employee of the prime contractor, and the prime contractor was precluded from the recovery of indemnification from the subcontractor for the amount of a settlement in a wrongful death action. C. H. Leavell & Co. v. Doster, 233 So. 2d 775, 1970 Miss. LEXIS 1668 (Miss. 1970).

The wrongful death statute creates an entirely new cause of action for the benefit of the persons named in the act, and the cause of action is not a part of the estate of the decedent. Harvey v. State, 218 So. 2d 11, 1969 Miss. LEXIS 1586 (Miss. 1969).

State law, rather than Death on the High Seas Act, governs the remedies for wrongful deaths occurring on artificial islands and fixed structures erected thereon on the outer Continental Shelf. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360, 1969 U.S. LEXIS 3100 (U.S. 1969), but see Herb's Welding v. Gray, 703 F.2d 176, 1983 U.S. App. LEXIS 28741 (5th Cir. 1983).

An action for wrongful death is not derivative. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Since an action under the wrongful death statute against a motorist for the death of a four and a half year old child was not an action by the child’s estate, but was one brought by the administrator on behalf of the surviving heirs named in the statute, the estate of the decedent could not be adversely, beneficially, or otherwise affected thereby, and the motorist was not disqualified as a witness by the dead man’s statute. Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 1958 Miss. LEXIS 365 (Miss. 1958).

Since this section [Code 1942, § 1453] created an action unknown to the common law, the court was not justified in extending its application beyond its terms. Logan v. Durham, 231 Miss. 232, 95 So. 2d 227, 1957 Miss. LEXIS 509 (Miss. 1957).

Where an amendment to the statute provided that if employer fails to secure the payment of workmen’s compensation, the employee or the legal representative has the choice between claiming compensation or suing at law for damages, and in such event neither negligence of fellow servant, assumption of risk, nor contributory negligence can be pleaded, this amendment did not repeal the Workmen’s Compensation Law and reinstate the right to maintain an action for wrongful death of an employee as in existence prior to the original enactment of the statute. Allen v. R. G. Le Tourneau, Inc., 220 Miss. 520, 71 So. 2d 447, 1954 Miss. LEXIS 465 (Miss. 1954).

This section [Code 1942, § 1453] is in derogation of the common law and as such must be strictly construed. Boroughs v. Oliver, 217 Miss. 280, 64 So. 2d 338, 1953 Miss. LEXIS 430 (Miss. 1953); Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

The statute is not one of survival but creates a new and independent cause of action. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944); Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 1958 Miss. LEXIS 365 (Miss. 1958).

The statute does not cause the deceased’s right of action to survive or be revived, but creates an independent cause of action. Thames v. Mississippi, 117 F.2d 949, 1941 U.S. App. LEXIS 4382 (5th Cir. Miss.), cert. denied, 314 U.S. 630, 62 S. Ct. 63, 86 L. Ed. 506, 1941 U.S. LEXIS 394 (U.S. 1941).

The history of this section [Code 1942, § 1453] is discussed in Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

1.5. Relation to Other Laws.

Mississippi law, rather than South Carolina law, governed the distribution of settlement funds in a wrongful-death action when a South Carolina resident was killed in a motor-vehicle accident in Mississippi because the personal representative of the decedent’s estate waived the choice-of-law issue by not bringing the issue to the Mississippi trial court’s attention early in the proceedings. Shortie v. George, 233 So.3d 883, 2017 Miss. App. LEXIS 299 (Miss. Ct. App. 2017).

A statutory heir under the descent and distribution statutes (Miss. Code Ann. §§91-1-1 to91-1-11) is not necessarily a listed relative under Mississippi’s wrongful death statute, Miss. Code Ann. §11-7-13, since the listed relatives under the wrongful death statute exclude a decedent’s grandparents, uncles and aunts, each of whom are included in the descent and distribution statute’s definition of “statutory heir.” Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

2. Right of action generally.

Miss. Code Ann. §11-7-13 did not recognize “contingent” wrongful death claims as to do so would usurp the child’s right to damages to which she would be entitled simply because her relatives anticipated her death earlier than it would naturally occur; therefore, there was no claim upon which relief could be granted, and the trial court was correct to grant a dismissal. In re Brantley v. Brantley, 865 So. 2d 1126, 2004 Miss. LEXIS 184 (Miss. 2004).

Since beneficiaries could have only brought claims the decedent could have brought had the decedent survived, logic required the Mississippi Supreme Court to conclude that the converse was true, in that the decedents could not have brought claims the decedent could not have brought, had the decedent survived; therefore, where a patient signed an arbitration agreement with a doctor prior to surgery, beneficiaries were not able to subsequently file a wrongful death action against the doctor arising out of such surgery. Cleveland v. Mann, 942 So. 2d 108, 2006 Miss. LEXIS 467 (Miss. 2006).

While Miss. Code Ann. §11-7-13 (Supp. 2003) allows wrongful death beneficiaries to maintain an action to recover damages as would the decedent if death had not ensued, the action is derivative and the beneficiaries stand in the position of their decedent; thus, where the decedent was a prison inmate who could not have filed an action against the Mississippi Department of Corrections or a prison superintendent because of the immunity granted in Miss. Code Ann. §11-46-9(1)(m), his wrongful death beneficiaries could not maintain a wrongful death action against those defendants. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Heirs of deceased smoker could not recover damages for injuries suffered by smoker during his lifetime in wrongful death action where jury found that cause of death was unrelated to smoker’s lung cancer or chronic obstructive pulmonary disease, but rather was pulmonary embolism caused by complications resulting from treatment for gonorrhea in 1940’s, and heirs did not also assert claim under survival statute. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

Wrongful death action is not part of estate of deceased, and only those individuals listed in wrongful death statute may bring this independent, statutory cause of action. Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

Family members of motorist who was left in coma as result of automobile accident did not have claim under Mississippi law for “loss of filial consortium” similar to wrongful death claim, even though loss they suffered was arguably similar; rather, claim remained one in nature of personal injury, despite severity of injury, as claim by motorist survived through conservator. Moore v. Kroger Co., 800 F. Supp. 429, 1992 U.S. Dist. LEXIS 12526 (N.D. Miss. 1992), aff'd, 18 F.3d 936, 1994 U.S. App. LEXIS 5268 (5th Cir. Miss. 1994).

Mother of decedent was not entitled to bring wrongful death action where decedent was killed when he was struck by car while working on highway project; contention that wrongful death statute controlled over Workers’ Compensation provision which provided that it would be exclusive remedy; also rejected was argument that because mother was not dependent on decedent exclusive remedy provision in death benefit cases did not apply was also rejected, because act intended to provide exclusive remedy growing out of employer-employee relationship, and different result would subject employer in many instances to double liability. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

Wrongful death action may be maintained when unborn child dies after reaching pre-natal age of viability, when destruction of life of its mother does not necessarily mean end of its life also, and when, if separated from its mother, it would be so far matured as human being that it would live and grow mentally and physically as person; if such child dies before birth as result of negligent act of another, action may be maintained under wrongful death statute. Terrell v. Rankin, 511 So. 2d 126, 1987 Miss. LEXIS 2616 (Miss. 1987).

Dismissal of personal injury claims brought by particular plaintiff does not collaterally estop wrongful death action asserted on behalf of family members by plaintiff in representative capacity since party appearing in representative capacity for others is not bound by determination of earlier suit in which he appeared only in individual capacity. Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 1985 U.S. App. LEXIS 23252 (5th Cir. Miss. 1985).

Where the husband of a deceased woman, he being the sole party in interest under §11-7-13, sued and recovered judgment in a court of competent jurisdiction for all damages resulting from his wife’s death against all of the parties jointly and severally liable, and the judgment was paid in full, the cause of action against all parties who were jointly and severally liable for the woman’s death was thereby terminated; accordingly, a subsequent suit by the deceased’s sister, individually and as representative of the heirs and as administratrix of the deceased’s estate, was properly dismissed with prejudice. Campbell v. C & H Transp. Co., 411 So. 2d 1284, 1982 Miss. LEXIS 1911 (Miss. 1982).

In an action to recover for the wrongful death of a boy who was injured after climbing into a newly installed septic tank that had been opened to facilitate an inspection, defendants were entitled to a peremptory instruction relieving them of liability, since the duty owed to the boy as a trespasser or at most as a licensee, was to refrain from willfully or wantonly injuring him; nor was the doctrine of attractive nuisance applicable under these facts since the septic tank was not an inherently dangerous instrumentality. Hughes v. Star Homes, Inc., 379 So. 2d 301, 1980 Miss. LEXIS 1841 (Miss. 1980).

This section did not authorize a wrongful death claim, based on a warranty theory of liability, against the manufacturer and original seller of the aircraft in which decedent was killed. McCullough v. Beech Aircraft Corp., 587 F.2d 754, 1979 U.S. App. LEXIS 17646 (5th Cir. Miss. 1979).

In a wrongful death action based in part upon the failure of an aircraft seat and harness upon a crash, such failure was regarded as a separate or “second accident” where the alleged defect did not cause or contribute to the initial mishap and did not arise from the intended normal use for which the product was manufactured. Williams v. Cessna Aircraft Corp., 376 F. Supp. 603, 1974 U.S. Dist. LEXIS 8854 (N.D. Miss. 1974).

An action is not maintainable for the wrongful death of one whose right against defendant is limited to the recovery of workmen’s compensation. Evans v. Avery, 272 Ala. 230, 130 So. 2d 373, 1961 Ala. LEXIS 426 (Ala. 1961).

A municipality may be held liable under this statute [Code 1942, § 1453]. City of Corinth v. Gilmore, 236 Miss. 296, 110 So. 2d 606, 1959 Miss. LEXIS 319 (Miss. 1959).

Where a nonresident and a resident were killed in an automobile collision in Mississippi allegedly as the result of the nonresident’s negligence, the heirs of the deceased resident had a cause of action against the personal representative of the deceased nonresident under this section [Code 1942, § 1453], and were creditors of the nonresident’s estate, and upon their petition the chancery court of the county where the nonresident’s death occurred had jurisdiction to grant administration upon the estate of the nonresident. Day v. Hart, 232 Miss. 516, 99 So. 2d 656, 1958 Miss. LEXIS 301 (Miss. 1958).

Where a wife died of injuries sustained in an automobile accident allegedly due to the negligence of her husband, an action was not maintainable against the husband by or on behalf of the deceased’s mother and father and sisters, the remoter class of beneficiaries under this section [Code 1942, § 1453], merely because the preferred beneficiaries, the husband, as tortfeasor, or the unemancipated minor child of the husband and wife, could not maintain the action. Logan v. Durham, 231 Miss. 232, 95 So. 2d 227, 1957 Miss. LEXIS 509 (Miss. 1957).

Under this section [Code 1942, § 1453] it is essential to the maintenance of an action for death by wrongful act that the wrongful act be of such character as would have supported an action by the deceased for his injuries if he had survived. Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434, 1954 Miss. LEXIS 537 (Miss. 1954).

This section [Code 1942, § 1453] is an adaption of Lord Campbell’s Act, which in derogation of the common law gave a cause of action to the executor or administrator of a person whose death had been caused by defendants’ wrongful act, neglect, or default, and extends this right of action to the widow or other appropriate heirs of the deceased when the death has been “caused by any real wrongful or negligent act, or omission, or by [any] unsafe machinery, way or appliances” in cases where the injured party, had he survived, could have maintained an action in respect thereof. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

While the right of a decedent to maintain an action, if he had survived, is a prerequisite to the right of his widow to maintain an action for his death, the initial requirement remains that death must have been caused by a real wrongful or negligent act. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

While the early refinements in the construction of this section [Code 1942, § 1453] were concerned with the definitive scope of “negligence,” involving the propriety of including deliberate or felonious acts, the employment of the term “wrongful” expanded its meaning to include felonious acts, but nowhere in the materials from which this statutory reform was constructed is there found any reference to acts that were wrongful except in the tortious sense. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

The employment of the words “real wrongful” in this section [Code 1942, § 1453] narrows its meaning to an actual and not a nominal or constructive wrong. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

This section [Code 1942, § 1453] does not create a right of action ex contractu by a widow for the death of her husband. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

A widow does not, under this section [Code 1942, § 1453], have a right of action for the death of her husband, caused by eating pie infected with a poisonous substance, grounded upon breach of implied warranty, since the statute applies only to death caused by a wrongful or negligent act. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

Code of 1892 § 663, as amended by Laws 1898 ch. 65 (Code 1906, § 721) and incorporated above, relates to causes of action antedating the constitution, of liability under the general law of negligence, and in no way to causes of action for injuries inflicted by fellow servants. Hence, it was not repealed or affected by Laws 1898, ch. 66 (since declared unconstitutional in Ballard v. Mississippi Cotton Oil Co. 81 M 507, 34 So 533). Const. § 193, and (Code 1892, § 4056) as amended by Acts 1898 ch. 66, relate exclusively to actions by employees to recover for injuries due to negligence of those fellow servants named therein. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

By the express terms of Laws 1898 ch. 65, incorporated above, it applies to all personal injuries of employees, resulting in death, due to the negligence of the master. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

The right of a parent under this section (Code 1906, § 721) depends on whether the child, had it survived, could have maintained an action for the injury. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

The right of action is independent of that given to the executor and administrator. Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537, 1887 Miss. LEXIS 92 (Miss. 1887).

3. —Marital misconduct, as affected by.

The wife’s conduct will not prevent recovery for the death of her husband. Belzoni Hardwood Lumber Co. v. Langford, 127 Miss. 234, 89 So. 919, 1921 Miss. LEXIS 217 (Miss. 1921).

4. —Enforcement of foreign cause of action.

Under this section [Code 1942, § 1453] a minor whose mother was appointed a tutrix for purpose of bringing action under the Louisiana workmen’s compensation law could sue in federal district court for Mississippi district by mother as next friend, to recover damages for father’s death, and Louisiana court’s leave was not required inasmuch as the law of Mississippi was governing. C. J. Peck Oil Co. v. Diamond, 204 F.2d 179, 1953 U.S. App. LEXIS 2412 (5th Cir. Miss. 1953).

Where wrongful death caused in Louisiana, an administrator cannot maintain suit therefor in Mississippi because no right of action is given the administrator in Louisiana. Vicksburg, S. & P. R. Co. v. Williams, 102 Miss. 735, 59 So. 883, 1912 Miss. LEXIS 113 (Miss. 1912).

Where an injury occurs in Louisiana the rights of the parties will be determined by the Louisiana statutes. Runt v. Illinois C. R. Co., 88 Miss. 575, 41 So. 1, 1906 Miss. LEXIS 157 (Miss. 1906).

Where the injury resulting in death occurs in another state having a statute substantially corresponding to ours the remedy may be enforced here. Chicag, S. L. & N. O. R. Co. v. Doyle, 60 Miss. 977, 1883 Miss. LEXIS 50 (Miss. 1883).

5. Persons entitled to sue.

Statute does create tiered categories of wrongful-death beneficiaries, but only as to the right to recover damages, not the right to file the wrongful-death action. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Circuit court did not err by granting the motion of a decedent’s child to be substituted as the plaintiff in the wrongful-death action the decedent’s mother filed and by denying companies’ motion to dismiss for lack of standing because the mother had standing when she filed her wrongful-death suit; an order of priority existed as to who could recover damages but not as to standing. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Statute does create tiered categories of wrongful-death beneficiaries, but only as to the right to recover damages, not the right to file the wrongful-death action. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Circuit court did not err by granting the motion of a decedent’s child to be substituted as the plaintiff in the wrongful-death action the decedent’s mother filed and by denying companies’ motion to dismiss for lack of standing because the mother had standing when she filed her wrongful-death suit; an order of priority existed as to who could recover damages but not as to standing. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

An “interested party” is a person who has a relationship to the decedent that is recognized by law and who therefore has suffered a remediable injury (i.e., the invasion of a legally protected interest) by the wrongful deprivation of the decedent’s life at the defendant’s hands. Such a person thus may claim a genuine right of recovery from the decedent’s wrongful death action by seeking damages for his or her injury, and that right gives the claimant a legally sufficient interest in the action to make him or her an interested party under the wrongful death statute. Clark Sand Co. v. Kelly, 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death action, the trial court erred, when considering defendant’s summary judgment motion, in finding that plaintiff was not the decedent’s common law wife because the trial court was not permitted to make such a factual determination at the summary judgment stage. Clark Sand Co. v. Kelly, 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death case in which a circuit court found that the deceased’s girlfriend, who was also his personal representative, had standing to bring the case and a sand company filed an interlocutory appeal of the circuit court’s denial of its motion for summary judgment, the girlfriend did not have standing as an interested party because, at the time she commenced the suit, she did not have a recognized-by-law relationship to the deceased. Her later appointment as executrix did not change that. Clark Sand Co. v. Kelly, 2010 Miss. LEXIS 94 (Miss. Feb. 25, 2010), op. withdrawn, sub. op., 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death case in which a circuit court found that the deceased’s girlfriend, who was also his personal representative, had standing to bring the case and a sand company filed an interlocutory appeal of the circuit court’s denial of its motion for summary judgment, since, at the time she filed the suit, the girlfriend had not yet been formally appointed executrix of the deceased’s estate, she did not have standing as his personal representative to bring the present action at that time. The personal representative also lacked standing as the deceased’s executrix under the savings statute. Clark Sand Co. v. Kelly, 2010 Miss. LEXIS 94 (Miss. Feb. 25, 2010), op. withdrawn, sub. op., 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

Under Miss. Code Ann. §11-7-13, an “interested party” may not only join a wrongful death action, but may also initiate such an action. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

Pursuant to Miss. Code Ann. §11-7-13, although a grandfather did not qualify as a personal representative or a listed relative under the statute, he was an interested party under the statute because of his relationship as an inheriting heir of the deceased grandchildren, and therefore had standing to bring a wrongful death action. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

Dismissal of a wrongful death suit was proper because the great-nephew lacked standing to institute a wrongful death suit under Miss. Code Ann. §11-7-13, which conferred standing only to a decedent’s spouse, parent, child, or sibling and not to distant relatives; the great-nephew also lacked standing because he was not the administrator of the decedent’s estate when the wrongful death suit was commenced, and standing was to be determined as of the commencement of the action. Delta Health Group, Inc. v. Estate of Pope, 995 So. 2d 123, 2008 Miss. LEXIS 485 (Miss. 2008).

Substitution of a son as the party in a wrongful death case was improper because a patient’s brother lacked standing to bring the action originally; by the time the son filed an amended complaint, the limitations period in Miss. Code Ann. §11-7-13 had expired, and the complaint did not relate back to a nullity, and therefore dismissal was warranted. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 2007 Miss. App. LEXIS 467 (Miss. Ct. App. 2007).

Where defendant nursing home filed for Chapter 11 bankruptcy protection, the trial court did not err by dismissing a wrongful death suit against the nursing home brought on behalf of a deceased patient’s beneficiaries. The stipulation exempting the wrongful death suit from the bankruptcy did not name decedent’s beneficiaries; they were precluded from bringing suit. Estate of Perry v. Mariner Health Care, Inc., 927 So. 2d 762, 2006 Miss. App. LEXIS 24 (Miss. Ct. App. 2006).

Defendants’ motion for summary judgment was granted in a niece’s action pursuant to Miss. Code Ann. §11-7-13 to recover for the wrongful death of her great-uncle where (1) defendants alleged that the niece had no standing to bring the suit because she was not among the class of individuals permitted to bring a wrongful death suit by virtue of a blood relationship to the decedent and that she was not a representative of the great-uncle’s estate because no estate had ever been opened; (2) in response to defendants’ motion, the niece argued only that she should be permitted to amend her complaint to substitute the real party in interest; and (3) amendment could not be permitted just three weeks before trial because defendants would have been prejudiced thereby, and further, because the niece had stated that the great-uncle had no other living blood relatives, standing would still be lacking. Austin v. Mariner Health Care, Inc., 226 F.R.D. 548, 2005 U.S. Dist. LEXIS 8768 (N.D. Miss. 2005).

Wrongful death statute does not provide mechanism to allow courts to bypass statutory order of beneficiaries so that one statutory beneficiary, more removed from deceased under statute yet emotionally closer to deceased, can bring action over proper statutory beneficiary; it is possible that at times best relative to bring wrongful death action, because of his closeness to deceased, might not be relative allowed by statute to bring such action. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Decedent’s mother, sister, and brothers are not proper beneficiaries where decedent was survived by minor children, despite fact that children had been adopted by their paternal aunt prior to decedent’s death, since law permits adopted children to inherit both through their adoptive parents and natural parents. Fillingame v. Patterson, 704 F. Supp. 702, 1988 U.S. Dist. LEXIS 15575 (S.D. Miss. 1988).

It is clearly established in Mississippi case law that parent is immune to tort suit by his unemancipated minor child, and therefore minor child cannot bring action against father who shot and killed his wife, child’s mother; Parental Immunity Doctrine is not affected by case holding that spousal immunity had ceased to exist when it was destroyed by intentional killing of spouse. Veselits v. Veselits, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

Unemancipated minor child under legal guardianship of grandmother cannot maintain, through grandmother, wrongful death action against her natural father where natural father was convicted of manslaughter for death of wife and natural mother of minor, as there is still mutual love and affection shared by father and daughter, father has not abandoned child, and there exists father’s legal duty of support, together with mutual rights of heirship between father and daughter. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

Illegitimate child has right to inherit in father’s wrongful death claim, but such claim must be asserted and established by clear and convincing evidence under §§91-1-27 and91-1-29. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Surviving adoptive brothers and sisters of child killed in automobile collision have right to bring suit under Mississippi wrongful death statute (§11-7-13), to exclusion of natural brothers and sisters of adoptive child. McLemore ex rel. McLemore v. Gammon, 468 So. 2d 84, 1985 Miss. LEXIS 2070 (Miss. 1985).

The son of a pedestrian who was killed when struck by a vehicle is a proper person to prosecute a wrongful death action for and on behalf of himself, the other wrongful death beneficiaries of the decedent, and the decedent’s personal representative. Hornburger v. Baird, 508 F. Supp. 84, 1980 U.S. Dist. LEXIS 16076 (N.D. Miss. 1980).

Decedent’s mother had no standing to bring a wrongful death action under §11-7-13, even though decedent’s will named her as executrix of his estate and sole primary beneficiary, where decedent left surviving him his wife, who was injured in the same accident and died approximately 30 minutes after her husband; a cause of action accrued to the wife even though she survived decedent for only a few minutes, and this cause of action was an asset in her estate, upon which it was entitled to sue pursuant to §91-7-233; furthermore, decedent’s will could not circumvent the wrongful death statute, which created a new and independent cause of action in favor of those named in the statute, and recovery under the statute would become an asset of decedent’s estate only if none of the statutory heirs had survived him. Partyka v. Yazoo Development Corp., 376 So. 2d 646, 1979 Miss. LEXIS 2374 (Miss. 1979).

The administratrix or the heirs, but not both, may bring suit for wrongful death pursuant to Code 1942, § 1453. Jones v. Steiner, 481 F.2d 392, 1973 U.S. App. LEXIS 8896 (5th Cir. Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by one of such persons, there can only be one suit for the benefit of all entitled to share in the distribution, and the damages recoverable in such suit are punitive damages, pain and suffering of the deceased and damages that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If a deceased is not survived by husband, wife, child, mother, father, brother or sister, suit should be brought by the personal representative for all damages recoverable under the statute, and any sum recovered in such suit is subject to the debts and liabilities of the deceased, and any balance remaining is subject to general distribution. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damage to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

Since the legislature studiously avoided any mention of a first cousin as a dependent, beneficiary, or representative of the deceased who could bring an action for wrongful death, where the deceased was a widow and left no children, no father, no mother, no brother and no sister, only the executrix could bring an action as the personal representative of the deceased. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of the father, where the father has not acknowledged the child, does not deny an illegitimate child who had not been acknowledged by the deceased equal protection of the laws, in view of the facts that it is a simple matter to prove the maternity of an illegitimate child, but it is infinitely more complex and difficult to prove paternity, and in Mississippi the requirements are simple and easy for a father to legitimize his child under the law. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

An adopting parent has a right to bring an action for the wrongful death of his adopted infant child. Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So. 2d 900, 1964 Miss. LEXIS 469 (Miss. 1964).

In the wrongful death statute there is no expression indicating a legislative intent to abrogate the rule that a minor may not sue a parent in tort. Durham v. Durham, 227 Miss. 76, 85 So. 2d 807, 1956 Miss. LEXIS 656 (Miss. 1956).

Where wife died in an automobile accident as a result of the negligent operation of vehicle by her husband, she could not have sued the husband in tort even if she had survived. Durham v. Durham, 227 Miss. 76, 85 So. 2d 807, 1956 Miss. LEXIS 656 (Miss. 1956).

Administratrix has the right to bring a suit against the city for wrongful death of a child. City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So. 2d 368, 1954 Miss. LEXIS 664 (Miss. 1954).

Prior to the 1958 amendment it had been held that under the wrongful death statute, the word parent meant the natural father or mother of the child, and the adoptive parents had no right to sue for the wrongful death of an adopted child. Boroughs v. Oliver, 217 Miss. 280, 64 So. 2d 338, 1953 Miss. LEXIS 430 (Miss. 1953).

There is no distinction in the right to sue as between the personal representative and the survivors and the one who first brings the suit has the right to prosecute and maintain it to a conclusion. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Under the statutes the right of action is in the survivors, to be asserted by the personal representative for the benefit of all persons entitled to recover, or by such survivors, and the cause of action is not abated by the death of such survivors. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Where the daughter sued her stepfather for wrongfully causing death of her mother, the fact that the mother had she lived could not sue the step-father for assault, does not affect the daughter’s right to maintain an action. Deposit Guaranty Bank & Trust Co. v. Nelson, 212 Miss. 335, 54 So. 2d 476, 1951 Miss. LEXIS 455 (Miss. 1951), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Decree in proceeding for appointment of administratrix and contract with attorney on part of administratrix for prosecution of death action can have no effect on right of widow and children to institute and maintain suit. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

As between widow and children on one hand and administratrix or personal representative on the other, one who first brings death action has right to prosecute and maintain it to conclusion. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

This cause of action for wrongful death does not pass to trustee in bankruptcy. Dent v. Mendenhall, 139 Miss. 271, 104 So. 82, 1925 Miss. LEXIS 137 (Miss. 1925).

While a suit is pending by a personal representative, the widow has no right to sue. J. J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11, 1922 Miss. LEXIS 105 (Miss. 1922).

An employee of a railroad company engaged in interstate commerce cannot recover under this section [Code 1942, § 1453].His rights are controlled by the federal statute. New Orleans, M. & C. R. Co. v. Jones, 111 Miss. 852, 72 So. 681, 1916 Miss. LEXIS 410 (Miss. 1916).

A suit for personal injuries may be revived after the death of the injured party in the name of his administratrix who may in that suit recover such damages as he could have recovered if living and she may thereafter sue for her husband’s negligent death, but the second suit must not embrace damages previously sued for. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

A suit by the widow and children for the death of the father precludes the administratrix from recovering damages for the same injury. Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 1907 Miss. LEXIS 213 (Miss. 1907), aff'd, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910).

It is competent for the legislature, as was done in Laws 1898, ch. 66, to extend the remedy provided by Const. § 193, so as to authorize actions by others than the legal or personal representatives of the person injured. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

An illegitimate daughter cannot sue for the death of another illegitimate daughter. Illinois C. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753, 1900 Miss. LEXIS 59 (Miss. 1900).

An action can be maintained under Code 1906, § 721 by the mother, a sole surviving parent, for the death of her son, an employee, because of negligence of the railroad company in failing to provide safe machinery and appliances, such negligence being that of the company itself, and not the negligence of a co-employee. The ground of liability existed before the Constitution of 1890 and is wholly independent of it. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

It is only where an employee is killed through the negligence of a fellow servant that the action must be brought by the personal representative under Const. § 193. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

Independently of the statute, the mother, being the only surviving parent, may maintain a suit for injuries resulting in the death of an infant son, for the time between the injury and death. Natchez, J. & C. R. Co. v. Cook, 63 Miss. 38, 1885 Miss. LEXIS 8 (Miss. 1885).

6. Persons entitled to recover.

Chancellor properly determined that a mother was a wrongful-death beneficiary of a deceased child because the mother was not married to the child’s natural father at the time of his birth, and accordingly, the child would be considered an illegitimate child. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

Chancellor erred in finding that a deceased child’s half-sister was a wrongful death beneficiary and heir-at-law of the child because the record contained no evidence to show that the half-sister was conceived and viable, and, therefore, “living” at the time of the child’s death; more than two years after the child’s death, the half-sister was approximately one year old, and thus, calculations showed that she was not conceived or possibly in existence at the time of the child’s death. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

Deceased child’s father could not recover wrongful death benefits from the child because the father failed to establish the requirements of Miss. Code Ann. §91-1-15; the father never met child or introduced the child to his family, he was not listed on the child’s birth certificate, he neglected to support the child, and he denied paternity and challenged the mother’s efforts to obtain child support and social security benefits from him. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

Chancellor did not err in determining that a father’s children could not recover wrongful death benefits from his deceased child because the father did not meet the requirements of Miss. Code Ann. §91-1-15 (3)(a)-(c); the deceased child’s sole wrongful death beneficiary was his mother, and she was entitled to the settlement proceeds deriving from his wrongful death. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

Trial court properly determined that a child was not a wrongful-death beneficiary of the decedent because, while the decedent signed the child’s birth certificate, supported her, and participated in her life for eight years, genetic testing before his death established that he was not the child’s father, the mother made no claim that the child was his heir, and the Wrongful Death Statute did not provide a cause of action for in loco children. In re Estate of Smith, 130 So.3d 508, 2014 Miss. LEXIS 55 (Miss. 2014).

Chancery court properly divided insurance settlement proceeds equally among all the wrongful death beneficiaries, which included the decedent’s three half-siblings, because with respect to priority of beneficiaries within the same class, no distinction existed between kindred of whole or half-blood. In re Estate of Eubanks, 197 So.3d 878, 2014 Miss. App. LEXIS 35 (Miss. Ct. App. 2014), aff'd in part and rev'd in part, 197 So.3d 861, 2015 Miss. LEXIS 83 (Miss. 2015).

Pursuant to Miss. Code Ann. §11-7-13, a grandfather had standing to bring a wrongful death suit as an interested party from the moment of his grandsons’ deaths, but he gained the ability to recover on behalf of the estates only after those estates came into existence and he was appointed administrator. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

There was no merit to the Georgia relatives’ argument that the decedent was an illegitimate child so as to preclude her father’s kindred from qualifying as wrongful death beneficiaries; application of the wrongful death statute provides that the decedent’s wrongful death beneficiaries included all five of her half-siblings, as well as her mother, and even though the decedent’s half-siblings on her father’s side never had any contact with her, they were still statutorily entitled to their respective shares of the decedent’s estate. Ray v. Ray, 963 So. 2d 20, 2007 Miss. App. LEXIS 512 (Miss. Ct. App. 2007).

Mississippi wrongful death statute provides for the recovery of all the wrongful death beneficiaries in a single lawsuit; thus, when any person statutorily entitled to do so files a wrongful death action, that action enures to the benefit of all parties entitled to recover for the death. Under this scheme, though a minor beneficiary would be disabled from instigating the one suit due to infancy, a personal representative of the deceased or an adult beneficiary could recover on behalf of the minor during the minor’s disability. Anderson v. R & D Foods, Inc., 913 So. 2d 394, 2005 Miss. App. LEXIS 294 (Miss. Ct. App. 2005).

Where a decedent was allegedly injured by medication during her life, and allegedly died from it, the estate administrator was to assert both a wrongful death action and a survival action against the drug manufacturer; if the jury found that the drug caused the decedent’s death, then the recovery belonged to the wrongful death heirs. If the jury found that the drug did not cause the death, the estate could recover for any personal injuries caused by the drug, and the decedent’s ex-husband could recover from the estate amount he was entitled to under the decedent’s holographic instrument. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

Because a wrongful death claim accrued at death, a decedent could not have assigned it – or the personal injury component of the wrongful death claim that survived her death pursuant to Miss. Code Ann. §11-7-13 – to her ex-husband under Miss. Code Ann. §11-7-3. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

Neither the father of an illegitimate child nor an illegitimate half-brother could recover for the wrongful death of the child where the father never met the child, failed to support the child, and failed to acknowledge the child as his own during the child’s lifetime, notwithstanding that he did not receive the results of a blood test that established his paternity until just four days before the child’s death. In re Estate of Patterson v. Patterson, 798 So. 2d 347, 2001 Miss. LEXIS 11 (Miss. 2001).

Under wrongful death statute, adopted child was wrongful death beneficiary of his natural father; right to bring wrongful death action for natural father’s death was not terminated at time of adoption. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Inheritance laws of Mississippi, where decedent’s estate was located, rather than law of Louisiana, pursuant to which decedent’s natural child was adopted, applied in determining whether child was wrongful death beneficiary. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Where wrongful death action and action against uninsured motorist coverage for same death are simultaneously pending, uninsured motorist coverage is source of funds from which wrongful death heir who controls prosecution of wrongful death action may satisfy any judgment recovered on behalf of all wrongful death heirs; therefore first wrongful death plaintiff will not be preempted from choosing trial tactics or electing remedies by another wrongful death heir; consolidation of two such suits for purpose of ordering settlement is appropriate. Rampy ex rel. Rampy v. Austin, 718 F. Supp. 556, 1989 U.S. Dist. LEXIS 8463 (S.D. Miss. 1989).

Biological father entitled to inherit from illegitimate child is entitled to share in recovery in wrongful death action. Burdette v. Crump, 472 So. 2d 959, 1985 Miss. LEXIS 2142 (Miss. 1985).

The daughter of a deceased insured was also an insured entitled to recover uninsured motorist benefits where both of the policies at issue defined the term “insured” to include any person entitled to recover damages and where the daughter, under the provisions of this section, would be entitled to maintain a wrongful death action for the death of her mother. Pearthree v. Hartford Acci. & Indem. Co., 373 So. 2d 267, 1979 Miss. LEXIS 2267 (Miss. 1979).

The legislature intended that, if there were no surviving heirs as specifically named and listed in the wrongful death statute, the damages recovered in a wrongful death action would become an asset of the estate to be used as any other asset in the payment of the “just debts of the estate” and then any residue to be distributed according to the last will and testament of the deceased, if there were a will, or under the statute of descent and distribution if there were no will, and where the nearest surviving relatives of the decedent were eleven first cousins, the net proceeds recovered in a wrongful death action were to be distributed to the sole residuary legatee under the last will and testament of the decedent. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Under Mississippi’s wrongful death statute, an illegitimate child cannot sue for or recover damages for the wrongful death of his father, where the father has not acknowledged the child in any way recognized by Mississippi law. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

Two minor children who, after the death of their mother, had been adopted by their paternal grandparents at the behest of the father who continued to contribute to their support, were persons entitled to bring an action for the wrongful death of the father. Alack v. Phelps, 230 So. 2d 789, 1970 Miss. LEXIS 1562 (Miss. 1970).

An heir cannot recover under this section [Code 1942, § 1453] unless the deceased himself could have recovered had he not been killed. Market Ins. Co. v. United States, 415 F.2d 459, 1969 U.S. App. LEXIS 10886 (5th Cir. Miss. 1969).

Where the plaintiffs’ evidence made a jury issue of whether as a result of the defendants’ intentional torts in the illegal, improper, and perverted use of process for an ulterior motive or purpose, the decedent acted under an irresistible impulse and committed suicide, he would, had he lived, have a good cause of action against the defendants, and under the wrongful death statute his widow and children are entitled to recover damages which decedent could have recovered. s State use of Richardson v. Edgeworth, 214 So. 2d 579, 1968 Miss. LEXIS 1316 (Miss. 1968).

Husband’s claim for medical expenses and loss of services of wife sustaining personal injuries survives, but that claim for loss of companionship and consortium does not. Scott v. Munn, 245 Miss. 120, 146 So. 2d 564, 1962 Miss. LEXIS 537 (Miss. 1962).

An employer or insurer paying workmen’s compensation for the death of an employee is entitled to share in the proceeds of a settlement of a claim against a third party tortfeasor for causing the employee’s death only where the beneficiary of the death action is also a workmen’s compensation beneficiary. United States Fidelity & Guaranty Co. v. Higdon, 235 Miss. 385, 109 So. 2d 329, 1959 Miss. LEXIS 440 (Miss. 1959).

Under this statute [Code 1942, § 1453], whichever statutory beneficiary brings an action for wrongful death, the proceeds belong to those entitled as if they had all been named as plaintiffs. Thames v. Mississippi, 117 F.2d 949, 1941 U.S. App. LEXIS 4382 (5th Cir. Miss.), cert. denied, 314 U.S. 630, 62 S. Ct. 63, 86 L. Ed. 506, 1941 U.S. LEXIS 394 (U.S. 1941).

That one statutory beneficiary is person charged as defendant in death action, held not to prevent proportional recovery by other beneficiaries. Nosser v. Nosser, 161 Miss. 636, 137 So. 491, 1931 Miss. LEXIS 286 (Miss. 1931).

7. Proximate cause.

Although wrongful death statute provides for recovery of all damages of every kind, which would certainly include lifetime damages, entire claim under statute must fail where heirs fail to prove by preponderance of evidence that death was caused by defendant. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

Circuit Court did not err in granting motion of electric company for directed verdict where: expert testimony did not show that any act or omission of electric company proximately caused or contributed to death of decedent; electric company owed no duty to decedent with respect to electric lines not under its control; electric company neither owned nor controlled wiring beneath which decedent was found; fact that electric meter was moved had nothing to do with accident, where there was no circuit breaker after rewiring, which had been done by someone other than electric company, between transformer and wiring going to place where decedent was killed; and, testimony showed that had breaker been in place and had wiring carrying current from transformer to place where decedent was killed gone through breaker, decedent would still have been shocked when he encountered wires and nothing in that encounter would have tripped breaker in time to save his life. Upton v. Magnolia Electric Power Asso., 511 So. 2d 939, 1987 Miss. LEXIS 2700 (Miss. 1987).

The trauma to decedent’s left breast, received in a collision, which caused the metastasis of a dormant cancerous condition was held to have been the proximate cause of her death three years after the date of the accident. New Orleans & N. R. Co. v. Thornton, 191 So. 2d 547, 1966 Miss. LEXIS 1223 (Miss. 1966).

Where jury is warranted in finding that killing of child could have been avoided by defendant through exercise of reasonable care in keeping constant lookout for pedestrians who may chance to use highway, failure of mother to safeguard safety of child in crossing highway does not constitute direct or proximate cause of its death. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Employer held liable for death of minor fatally burned as result of explosion while cleaning coin-operated machines with gasoline in small room in which there was a gas heater with open flame, notwithstanding immediate activating cause of explosion was running of rat from machine to heater and its return to machine after its fur was ignited. United Novelty Co. v. Daniels, 42 So. 2d 395, 1949 Miss. LEXIS 476 (Miss. 1949).

Where mechanic’s helper died as result of a can of gasoline used in priming an engine being thrown on him by the mechanic after the gasoline therein had become ignited when the engine backfired, the employer would be liable if the proximate cause of the accident was the negligence of the employer in failing to furnish a safe priming can, but would not be liable if the proximate cause was the negligence of the mechanic. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

To establish liability under wrongful death statute, negligence complained of must be proximate or at least directly contributing cause of death, and must be proved as a reasonable probability. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 1935 Miss. LEXIS 6 (Miss. 1934).

If trespasser’s death on railroad tracks resulted from engineer’s failure to give warning signals after becoming aware of trespasser’s danger, trespasser’s administrator was entitled at least to nominal damages. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

A widow cannot sue for injuries resulting in the death of her husband, an engineer, while running his locomotive, unless the proximate cause of his death was such negligence of the company as showed a want of ordinary care. Illinois C. R. Co. v. Woolley, 77 Miss. 927, 28 So. 26, 1900 Miss. LEXIS 49 (Miss. 1900).

8. Negligence and contributory negligence.

In a wrongful death action arising from a 4-car automobile accident, a driver’s negligence in driving at too high a speed on a wet road, with worn tires, and paying insufficient attention to traffic ahead, were foreseeable acts of negligence and are precisely the types of negligence careful drivers of other vehicles must guard against. Thus, the driver’s negligence was not an intervening cause sufficient to cut off the liability of another driver. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615, 1988 Miss. LEXIS 437 (Miss. 1988).

Circuit Court did not err in granting motion of electric company for directed verdict where: expert testimony did not show that any act or omission of electric company proximately caused or contributed to death of decedent; electric company owed no duty to decedent with respect to electric lines not under its control; electric company neither owned nor controlled wiring beneath which decedent was found; fact that electric meter was moved had nothing to do with accident, where there was no circuit breaker after rewiring, which had been done by someone other than electric company, between transformer and wiring going to place where decedent was killed; and, testimony showed that had breaker been in place and had wiring carrying current from transformer to place where decedent was killed gone through breaker, decedent would still have been shocked when he encountered wires and nothing in that encounter would have tripped breaker in time to save his life. Upton v. Magnolia Electric Power Asso., 511 So. 2d 939, 1987 Miss. LEXIS 2700 (Miss. 1987).

The United States, by and through the Corp of Engineers, is liable for the wrongful drowning deaths of swimmers where it was guilty of negligence in its supervision of a dredging operation which created a hazardous condition in the form of a depression surrounded by shallow water. Price v. United States, 530 F. Supp. 1010, 1981 U.S. Dist. LEXIS 10112 (S.D. Miss. 1981), modified, 726 F.2d 1057, 1984 U.S. App. LEXIS 24595 (5th Cir. Miss. 1984).

In a wrongful death action brought by a minor decedent’s parents, defendant was not entitled to contribution from the child’s father, even though he was a joint tortfeasor, where the child could not have sued his father for damages had death not ensued; further, a diminution of damages was available only when the injured party, not a statutory beneficiary, had been contributorily negligent. Hood v. Dealers Transport Co., 472 F. Supp. 250, 1979 U.S. Dist. LEXIS 12939 (N.D. Miss. 1979).

In a medical malpractice action, a general practitioner who failed to enlist the aid of a chest surgeon after a patient had suffered massive hemorrhaging and was coughing up blood failed to conform to the standard of care required of a general practitioner in his locality. Pittman v. Gilmore, 556 F.2d 1259, 1977 U.S. App. LEXIS 12177 (5th Cir. Miss. 1977).

Defendants failed to discharge their duty to use reasonable and ordinary care to provide protection for minor children playing at or near a motel swimming pool where there was no lifeguard on duty, there were no gates on the fence surrounding the pool, no cover had been placed over the pool, and there was no life saving equipment or warning signs near the pool. Gault v. Tablada, 400 F. Supp. 136, 1975 U.S. Dist. LEXIS 11301 (S.D. Miss. 1975), aff'd, 526 F.2d 1405 (5th Cir. Miss. 1976).

Owners of apartment complex, who were charged with foreseeing the danger presented by a water-filled swimming pool located in the middle of an apartment complex which was occupied by minor children, were negligent where they failed to have a lifeguard on duty, to fence the area in question, to cover the pool, to maintain any resuscitation or rescue equipment, and to drain the pool when it was not expected to be used. Kopera v. Moschella, 400 F. Supp. 131, 1975 U.S. Dist. LEXIS 16768 (S.D. Miss. 1975), aff'd, 526 F.2d 1405 (5th Cir. Miss. 1976).

In an action against an automobile driver for the alleged wrongful death of a minor who was riding a bicycle when it collided with the automobile, a jury verdict in favor of the driver foreclosed all questions of fact, resolved all conflicts in the evidence favorable to the driver, and also amounted to a factual finding by the jury that the driver of the automobile had not been negligent and had acted as a reasonably prudent person would have done under the same or similar circumstances. McCollum v. Randolph, 220 So. 2d 310, 1969 Miss. LEXIS 1452 (Miss. 1969).

Motorist failing to slow down on being blinded by lights of approaching car held liable for death of pedestrian struck while walking on side of road. Layton v. Cook, 248 Miss. 690, 160 So. 2d 685, 1964 Miss. LEXIS 293 (Miss. 1964).

It is no defense to an action for death to child in highway caused by motorist that driver was not responsible because he was only 5 feet 7 inches tall and that his vision of place where child was when hit by car did not begin closer than 63 feet ahead of him, on account of view being obstructed by hood of automobile and open airvent thereon. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

In action under this section [Code 1942, § 1453] for damages for death of child, five-year-old child is prima facie incapable of contributory negligence. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

In action against restaurateur for death to customer by serving food not fit for human consumption, it must be shown that restaurateur did not use that degree of care in the selection, preparation, cooking or serving of the food so injuring the customer as a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table, the restaurateur not being an insurer against injury to his customers. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

Employer not relieved of liability for death of minor fatally burned by explosion while cleaning coin-operated machine with gasoline in violation of instructions where there was no showing that employee himself was warned. United Novelty Co. v. Daniels, 42 So. 2d 395, 1949 Miss. LEXIS 476 (Miss. 1949).

In suit to recover for death of licensee or trespasser, owner of land is not liable irrespective of his negligence provided it did not amount to willful or wanton negligence. Westmoreland v. Mississippi Power & Light Co., 172 F.2d 643, 1949 U.S. App. LEXIS 2755 (5th Cir. Miss. 1949).

Bus company was not liable for death of passengers who alighted pursuant to their request at safe place on highway opposite their homes when they were struck by a passing automobile while attempting to cross the highway after the bus had gone, even though the bus driver gave no warning of the approaching automobile. Beeson v. Tri-State Transit Co., 146 F.2d 754, 1945 U.S. App. LEXIS 2076 (5th Cir. Miss. 1945).

Plaintiff has burden of showing in action against employer for employee’s death that such was caused by the employer’s negligence. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Employer is not liable for death of mechanic’s helper caused by the negligence of the mechanic. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

In respect to liability of master for death of employee, while master owes duty to promulgate rules where the work is dangerous and the conditions are obscure or complex, no such duty exists in regard to the use of simple tools and appliances or where the conditions are neither obscure nor complex. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Even though a mechanic’s helper, who dies as result of a can of gasoline used in priming an engine being thrown on him after the gasoline therein had become ignited when the engine backfired, was contributorily negligent in choosing the particular can and in standing in a dangerous position, the jury could properly reduce the damages by virtue of the law of comparative negligence if the jury should find that the employer was liable in negligently failing to furnish a safe priming can. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

An infant cannot be held liable in death action for faults or omission when the duty to act otherwise must find its basis in an agreement by the infant. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Fourteen-year-old boy riding on farm tractor on highway, who agreed to warn the tractor operator of approaching traffic but who failed to warn him of a truck which collided with the tractor from the rear, could not be held liable for the death of the tractor operator. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Contributory negligence of one of the beneficiaries cannot be used as a defense in an action for damages causing death. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

In an action by a widow for the death of her husband, the rule that to board a moving train is negligence, as a matter of law, is discussed and the facts held to constitute an exception. Wooten v. Mobile & O. R. Co., 79 Miss. 26, 29 So. 61, 1901 Miss. LEXIS 6 (Miss. 1901).

In an action by a father for the death of his son it was held contributory negligence, as a matter of law, for the latter, an active and intelligent boy between twelve and thirteen years of age, who had knowledge of the danger, to voluntarily jump from a train going twenty miles an hour. Howell v. Illinois C. R. Co., 75 Miss. 242, 21 So. 746, 1897 Miss. LEXIS 95 (Miss. 1897).

Although nurse in charge of two small children attempted to cross railroad track while aware of approach of train, she was not necessarily guilty of contributory negligence, and where there was evidence to the effect that she would have had ample time to cross if she had not been confused by the outcries and commotion of a near-by crowd, finding of jury against contributory negligence in action for death of child would not be disturbed. Alabama & V. R. Co. v. Lowe, 73 Miss. 203, 19 So. 96, 1895 Miss. LEXIS 128 (Miss. 1895).

9. Limitation of actions.

Only when someone who is qualified to bring a wrongful-death suit actually files a wrongful-death suit on the minor beneficiaries’ behalf will the minors savings clause not apply, because, once the suit is filed, the running of the statute of limitations is immaterial. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent the supreme court held in Curry v. Turner, 832 So. 2d 508 (Miss. 2002), that the mere existence of a person of majority age with statutory standing to file a wrongful-death suit prevents the application of the minors savings clause, the supreme court explicitly overrules this holding; instead, Curry should be limited to its facts. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent Curry v. Turner, 832 So. 2d 508 (Miss. 2002), held that the mere existence of someone qualified to bring a wrongful-death suit created an irreconcilable conflict between Miss. Code Ann. §11-7-13 and Miss. Code Ann. §15-1-59 and precluded the application of the latter statute, the supreme court explicitly overrules this part of its holding. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Mere existence of an aunt as a person with statutory standing to bring a wrongful-death suit did not prevent the application of Miss. Code Ann. §15-1-53 because the aunt had been neither appointed guardian nor authorized by the chancery court to bring an action on behalf of the deceased’s children; the oldest child did not have a guardian appointed who had the legal authority to bring a suit on her behalf, and thus, the savings clause remained in operation. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Circuit court properly denied a hospital and a doctor summary judgment because the minors savings statute applied, and thus, the deceased’s oldest child had two years from when she reached the age of majority to file a wrongful-death suit based on medical negligence; the deceased’s two minor children could rely on the application of the minors savings clause to toll the running of the two-year statute of limitations, and the oldest child timely filed her complaint within two-year period. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Miss. Code Ann. §11-7-13 wrongful-death claims of wrongful-death beneficiaries matured–and Miss. Code. Ann. §15-1-49, the statute of limitations on those claims, began to run–on April 17, 2000, not because that was the day the decedent died, but rather because that was the first day (“if death had not ensued”) the decedent could have brought a claim. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Mississippi wrongful-death statute, Miss. Code Ann. §11-7-13, despite the Mississippi Legislature’s assigned nomenclature, encompasses all claims, including survival claims, which could have been brought by a decedent, wrongful-death claims, estate claims, and other claims resulting from a tort which proximately caused a death. And where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Under Miss. Code Ann. §11-7-13, wrongful death claims premised on negligence, strict liability, and breach of implied warranties were time-barred under the applicable three-year limitations period of Miss. Code Ann. §15-1-49, because the claims accrued at the time of diagnosis of the decedent’s latent disease and there were no allegations of a confidential or fiduciary relationship to establish a breach of duty of disclosure of toxic substances for a fraudulent concealment claim. Wells v. Radiator Specialty Co., 413 F. Supp. 2d 778, 2006 U.S. Dist. LEXIS 18082 (S.D. Miss. 2006).

Trial court erred in ruling that the minor’s savings statute, Miss. Code Ann. §15-1-59, did not toll the statute of limitations on a wrongful death action; however, once a wrongful death suit was filed in her behalf, the minor no longer enjoyed the protection of §15-1-59; since there could be but one cause of action under Miss. Code Ann. §11-7-13, the minor was governed by the same statute of limitations as the decedent’s administratrix. Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Provisions of the minor’s savings statute, Miss. Code Ann. §15-1-59, and the wrongful death statute, Miss. Code Ann. §11-7-13, conflict where there exists a person qualified under §11-7-13 to bring suit, as § 11-7-13 requires that one suit be brought for damages from wrongful death. Thus, the statute of limitations runs against both the personal representative of the deceased and the deceased’s children. Curry v. Turner, 832 So. 2d 508, 2002 Miss. LEXIS 391 (Miss. 2002), limited, overruled in part, Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

A wrongful death action arising in the context of medical negligence is not measured from the date the decedent knew or should have known about the act of negligence, but rather, the cause of action does not accrue until the death of the negligently injured person. Gentry v. Wallace, 606 So. 2d 1117, 1992 Miss. LEXIS 540 (Miss. 1992), overruled, Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923, 2006 Miss. LEXIS 208 (Miss. 2006).

Prescriptive periods applicable to claims brought by statutory heirs arising from alleged wrongful death of decedent were not tolled during pendency of prior wrongful death actions, inasmuch as wrongful death statute did not operate to bar any other action unless matter was decided on its merits, and in further view of fact that plaintiffs were active in state court litigation involving same subject matter before the court; plaintiffs’ active involvement in state court action and their filing of prior lawsuit in federal court absolutely destroyed their argument that they were prohibited by law from bringing suit, furthermore, their participation in such earlier lawsuits negated any suspension of limitation period applicable under state law. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

Cause of action based upon wrongful death statute (§11-7-13), being predicated upon defendant’s intentional torts, is governed by one year statute of limitations, rather than 6 year statute of limitations, as actions filed pursuant to wrongful death statute must be brought within corresponding prescription statute for which cause of action is predicated. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

In an action for wrongful death filed by the surviving spouse and children after the statutory limitation period had passed, §15-1-59, the savings statute, did not toll the limitations period in favor of the children, since the surviving spouse was a person in esse who had the right to file suit for wrongful death during the six-year limitation period after decedent’s death, and thus the action was barred. Arender v. Smith County Hospital, 431 So. 2d 491, 1983 Miss. LEXIS 2633 (Miss. 1983).

Where the death of a child which followed almost immediately its birth on December 16, 1964 was caused by the erroneous typing of its mother’s blood on April 4, 1958, and the cause of action for the child’s death against the infirmary which typed the mother’s blood was cast under the provisions of this section [Code 1942, § 1453], the cause of action arose as of the date of the child’s death and not as of the date the mother’s blood was typed, and the trial court erroneously sustained a plea of the six-year statute of limitations. Smith v. McComb Infirmary Ass'n, 196 So. 2d 91, 1967 Miss. LEXIS 1479 (Miss. 1967).

The limitation period does not condition the right of action under the statute. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Actions under the statute are, since the amendment of 1908, governed by the general statute of limitations. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

The saving in favor of persons under disability contained in Code of 1892 § 2746, does not apply to actions under this section (Code 1892 § 663), which must be brought within one year after the death, without any saving for those under disability. Foster v. Yazoo & M. V. R. Co., 72 Miss. 886, 18 So. 380, 1895 Miss. LEXIS 40 (Miss. 1895).

10. Actions in general.

Holding that wrongful-death suit filed in Mississippi was subject to dismissal during the pendency of a suit for the same wrongful death in a sister state, pursuant to Miss. Code Ann. §11-7-13, rested upon the wrongful-death statute’s one-suit requirement and the procedural rules developed to manage wrongful-death litigation consistent with that requirement. The decision did not erode the general rule that a previously-filed action in a sister state was no bar to an action in Mississippi. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589, 2010 Miss. LEXIS 93 (Miss. 2010).

Wrongful death action against medical defendants and a casino should not have been severed because such severance violated the requirement in Miss. Code Ann. §11-7-13 of “one suit for the same death,” and was also inconsistent with Miss. Code Ann. §85-5-7. Adams v. Baptist Mem'l Hospital-Desoto, Inc., 965 So. 2d 652, 2007 Miss. LEXIS 472 (Miss. 2007).

Since personal representative of decedent was expressly authorized by statute to commence wrongful death action for benefit of all heirs entitled to recover, personal representative had sufficient standing to determine heirship of testator’s reputed illegitimate children for purposes of wrongful death statute. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

Provision of wrongful death statute under which heirs may recover “whether an estate has been opened or not” allows heirs to bring wrongful death suit without regard to administration of estate, but is irrelevant to issue of elements which must be proven in order to recover for wrongful death. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

For purposes of venue, cause of action in wrongful death case may occur and/or accrue in both county where death occurred and county where alleged negligence took place, making either county, if they are different, permissible venue. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

Wrongful death action arising out of medical care and/or treatment rendered to decedent by physicians was properly venued either in county where alleged negligence occurred or in county where decedent died. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

In a medical malpractice action arising from the death of a child, the county where the wrongful death beneficiaries resided was the proper venue for the action, even though the cause of action accrued in another county in which all of the defendants resided at the time the cause of action accrued, where one of the defendants had become a resident of the state of Louisiana at the time the complaint was filed. Senatobia Community Hosp. v. Orr, 607 So. 2d 1224, 1992 Miss. LEXIS 604 (Miss. 1992), overruled, Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 2004 Miss. LEXIS 1329 (Miss. 2004).

Prescriptive periods applicable to claims brought by statutory heirs arising from alleged wrongful death of decedent were not tolled during pendency of prior wrongful death actions, inasmuch as wrongful death statute did not operate to bar any other action unless matter was decided on its merits, and in further view of fact that plaintiffs were active in state court litigation involving same subject matter before the court; plaintiffs’ active involvement in state court action and their filing of prior lawsuit in federal court absolutely destroyed their argument that they were prohibited by law from bringing suit, furthermore, their participation in such earlier lawsuits negated any suspension of limitation period applicable under state law. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

The Mississippi long-arm statute (Code 1972, §13-3-57) could be utilized in an action for the wrongful death, pursuant to Code 1972, §11-7-13, of a nonresident decedent, where the plaintiff was a Mississippi resident suing as administrator of the decedent’s estate pursuant to letters of administration granted by a Mississippi chancery court. McAlpin v. James McKoane Enterprises, Inc., 395 F. Supp. 937, 1975 U.S. Dist. LEXIS 12161 (N.D. Miss. 1975), disapproved, Estate of Portnoy v. Cessna Aircraft Co., 730 F.2d 286, 1984 U.S. App. LEXIS 23318 (5th Cir. Miss. 1984).

An instance where a suit by decedent dying after suit and revived by his executrix barred the recovery on suit by the executrix thereafter filed. Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 100 So. 12, 1924 Miss. LEXIS 85 (Miss. 1924).

A second suit cannot be brought under the same cause in behalf of a child unborn at the time first suit was instituted. Gulf & S. I. R. Co. v. Bradley, 110 Miss. 152, 69 So. 666, 1915 Miss. LEXIS 4 (Miss. 1915).

Where death results from an injury sued for, only one suit can be instituted. Foster v. Hicks, 93 Miss. 219, 46 So. 533, 1908 Miss. LEXIS 88 (Miss. 1908).

11. —Joinder of actions.

Trial court properly granted a joinder motion by a deceased child’s father in a wrongful death action brought by the child’s mother because both Long and the statute mandated such an outcome. Dooley v. Byrd (In re Dooley), 64 So.3d 951, 2011 Miss. LEXIS 297 (Miss. 2011).

Mississippi wrongful death action was properly dismissed due to the pendency of a prior-filed Louisiana wrongful-death action because under Mississippi’s wrongful-death statute–Miss. Code Ann. §11-7-13–there was to be one suit for the same death; under Long v. McKinney, 897 So. 2d 160 (Miss. 2005), all claims had to be joined in that single action. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589, 2010 Miss. LEXIS 93 (Miss. 2010).

Administratrix’s negligence claims against the healthcare providers and doctors was wrongful death case, and as such was a Miss. R. Civ. P. 19 compulsory joinder case and governed by Miss. Code Ann. §11-7-13; thus, the trial court erred by transferring venue as to each doctor to separate counties, and venue for the wrongful death claim was proper in Bolivar County. Rose v. Bologna, 942 So. 2d 1287, 2006 Miss. LEXIS 550 (Miss. 2006).

In a wrongful death action, a court erred by failing to consolidate beneficiaries’ separate suit filed one day after the decedent’s daughter’s suit because the daughter filed suit as the representative of all statutory beneficiaries, and all such beneficiaries should have received notice of the litigation. Because there was no apparent conflict of interest between appellee and the estate, and since the estate, through appellee as administratrix, employed a law firm to represent the estate, that firm should represent the estate, provided the pleadings were amended to assert a claim on behalf of the estate. Long v. McKinney, 897 So. 2d 160, 2004 Miss. LEXIS 1404 (Miss. 2004).

Where wrongful death action and action against uninsured motorist coverage for same death are simultaneously pending, uninsured motorist coverage is source of funds from which wrongful death heir who controls prosecution of wrongful death action may satisfy any judgment recovered on behalf of all wrongful death heirs; therefore first wrongful death plaintiff will not be preempted from choosing trial tactics or electing remedies by another wrongful death heir; consolidation of two such suits for purpose of ordering settlement is appropriate. Rampy ex rel. Rampy v. Austin, 718 F. Supp. 556, 1989 U.S. Dist. LEXIS 8463 (S.D. Miss. 1989).

Where death occurs to two persons at the same time under the identical facts, and beneficiaries are the same as to both persons, the action may be joined for damages for the death of both. Payne v. Moore, 126 Miss. 693, 89 So. 225, 1921 Miss. LEXIS 63 (Miss. 1921).

A suit for the death of the wife and daughter may be joined in one action where the death happened at the same time and due to the same facts of alleged negligence. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

12. —Removal of cause.

In a wrongful death case that had been removed to federal court and in which plaintiffs moved to remand, a car driver, who was a non-diverse defendant, had been improperly joined and had to be dismissed; with his dismissal the court had jurisdiction because the parties were diverse. While plaintiffs had asserted that the car driver was liable under the Mississippi Wrongful Death Statute, Miss. Code Ann. §11-7-13, which required that all defendants be brought before the court in one suit, they had testified, under oath, that the sole cause of the accident at issue was the action of truck driver and that the car driver did not cause the accident in any way. Morris v. P & S Transp., Inc., 2008 U.S. Dist. LEXIS 17287 (N.D. Miss. Feb. 29, 2008).

A wrongful death action brought by a resident of Maine as administrator against a Maine corporation was removable to the Federal court on the ground of diversity of citizenship in view of this section [Code 1942, § 1453] under which a decedent’s widow and children are alone entitled to the damages for his death, and such resident widow and children were the “real parties in interest.” Mississippi Power Co. v. Archibald, 189 Miss. 332, 196 So. 760, 1940 Miss. LEXIS 116 (Miss. 1940).

13. Pleading.

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damages to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

In an action against electric power association for death of the deceased as result of electrocution wherein the electric power association did not plead as an affirmative defense that the wife of the deceased who came to her death by electrocution on the same occasion survived her husband, the court properly refused an instruction that in event the jury should believe from preponderance of evidence that the wife survived her husband, the amount of the verdict, if any, should be for nominal damages only, or in such amount as would compensate for the loss of the companionship of her husband during the brief period of time that she survived him. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

In an action under this section [Code 1942, § 1453] it is not necessary to allege or prove that decedent left any relatives or creditors surviving. Yazoo & M. V. R. Co. v. Barringer, 138 Miss. 296, 103 So. 86, 1925 Miss. LEXIS 51 (Miss. 1925).

It must be alleged and shown how the injury complained of occurred and that negligence of the defendant caused it. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

14. Issues, proof and variance.

Wrongful death action is to compensate beneficiary for loss of companionship and society of decedent, pain and suffering of decedent between time of injury and death, and punitive damages and, thus, beneficiary need only establish some of those elements in order to recover for decedent’s wrongful death. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Variance between declaration alleging railroad’s failure to give statutory crossing signals and proof of failure to give common-law warning to trespasser on tracks after notice of danger held not to require reversal. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

A mother cannot recover damages for her son’s prospective earnings in the absence of proof. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

15. Parties.

In a wrongful death case, the tutrix of a minor child had been misjoined under Fed. R. Civ. P. 21 because she was not an indispensable party under the Fed. R. Civ. P. 19 factors. Under Mississippi’s wrongful death statute, Miss. Code Ann. §11-7-13 (Rev. 2002), the guardian of another minor child had fiduciary obligation to other beneficiaries who were not joined in the lawsuit, and the interests of the tutrix would be represented by counsel for the guardian. Walker v. Smitty's Supply, Inc., 2008 U.S. Dist. LEXIS 37226 (S.D. Miss. Apr. 23, 2008).

Miss. Code Ann. §11-1-60(2)(a) instituted a cap on noneconomic damages recoverable by “the plaintiff,” and under Miss. Code Ann. §1-3-33, words written in the singular were to be read in the plural; therefore, a cap on noneconomic damages applied to all plaintiffs who brought a wrongful-death action pursuant to Miss. Code Ann. §11-7-13. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 2007 Miss. LEXIS 649 (Miss. 2007).

Under Fed. R. Civ. P. 19(a), a widow and her children were indispensable parties to a wrongful death suit of a decedent’s former wife because Miss. Code Ann. §11-7-13 provided for a single wrongful death action that encompassed all related claims; thus, the former wife’s federal suit was dismissed because the widow’s presence destroyed diversity jurisdiction, but the former wife was permitted to join the widow’s state court wrongful death suit. Harpster v. Thomas, 442 F. Supp. 2d 349, 2006 U.S. Dist. LEXIS 46777 (S.D. Miss. 2006).

Trial court erred as a matter of law when it denied defendant equipment manufacturer’s motion for summary judgment; a wrongful death claim was not assignable by a wrongful death beneficiary to one tortfeasor to be asserted against another joint tortfeasor. Mississippi’s wrongful death statute did not confer upon a tortfeasor the right of assignment of a plaintiff’s wrongful death cause of action. Coleman Powermate, Inc. v. Rheem Mfg. Co., 880 So. 2d 329, 2004 Miss. LEXIS 1033 (Miss. 2004).

When the personal representative of a decedent person brings an action under Code 1942, § 1453 he is the real party in interest though not necessarily the person who will ultimately benefit from the recovery; and the fact that citizenship of some of the absent statutory beneficiaries is the same as the citizenship of the defendant does not destroy complete diversity. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

In an action brought under Code 1942, § 1453 the citizenship of the personal representative of the decedent is determinative of the diversity issue. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

In a wrongful death action the citizenship of the administrator for the decedent is determinative on the issue of diversity. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

By the use of the word “may” in the phrase “all parties interested may join the suit” it is apparent that it is not mandatory that all interested persons join a wrongful death action, and thus the fact that 2 survivors resided in Mississippi did not defeat total diversity required for federal jurisdiction, since they were not necessary parties to the action. Allen v. Baker, 327 F. Supp. 706, 1968 U.S. Dist. LEXIS 12798 (D. Miss. 1968).

Where the administratrix had made an election to sue for the death of her decedent under this section [Code 1942, § 1453], the mere reference to the Workmen’s Compensation Act did not serve to convert the case to one based upon tort and the Act, so that the next of kin and beneficiaries would become necessary and indispensable parties, and, the federal court was not deprived of jurisdiction based upon diversity of citizenship on the theory that such beneficiaries and indispensable parties were citizens of the same state as the defendant. Hordge v. Yeates, 157 F. Supp. 411, 1957 U.S. Dist. LEXIS 2520 (D. Miss. 1957).

Where administratrix did not institute suit for death of decedent, she was not necessary party to death action brought by widow and children of intestate. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

16. Evidence.

Under Miss. R. Civ. P. 50, the medical facility’s motion for judgment notwithstanding the verdict should have been granted where, under Miss. Code Ann. §11-7-13, the husband presented no evidence regarding any damages sustained from loss of society and companionship, and claims of the estate or other wrongful-death economic damages were not at issue. River Region Med. Corp. v. Patterson, 975 So. 2d 205, 2007 Miss. LEXIS 648 (Miss. 2007).

In the family’s wrongful death action, the treating nurses testified that prior to vomiting, the decedent was wearing an oxygen mask, not a bi-level positive airway pressure mask (BIPAP), and that after he vomited a nurse switched him to a nasal bi-prong which provided oxygen through the nose, rather than a mask of any type. One treating nurse, testified that a patient would not aspirate with a nasal bi-prong or a standard oxygen mask; since conflicts in the evidence were to be resolved in the prevailing party’s favor (in the trial court), a reasonable jury could have believed that the decedent was not wearing a BIPAP mask when he vomited, and that one issue undermined the family’s position that “overwhelming evidence” established the hospital’s liability. Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 2005 Miss. LEXIS 385 (Miss. 2005).

In a wrongful death action, the decedent’s “personal photo album” was admissible on the issue of damages where it was critical to the plaintiff’s case to humanize the decedent and to demonstrate to the jury that the 85-year-old decedent was well and healthy prior to the accident. Additionally, testimony of friends of the decedent was essential to determine the state of the decedent’s physical condition prior to his death, even though some of the testimony was duplicative of testimony given by the plaintiff and her son where the testimony of the plaintiff and her son was verified and corroborated by the testimony of the other witnesses who, unlike the plaintiff and her son, had no financial stake in the matter. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

It was reversible error to admit investigating officer’s testimony that no traffic citation was issued to tractor-trailer driver as result of incident resulting in death, of plaintiff’s son; trial court also erred in refusing to admit evidence that decedent, 2 or 3 months before his death had attempted suicide by lying down in highway in path of truck. Hughes v. Tupelo Oil Co., 510 So. 2d 502, 1987 Miss. LEXIS 2608 (Miss. 1987).

Trial court erred in refusing to admit evidence that decedent’s blood alcohol content, tested at request of investigating officer, was .15 percent, because statutory privilege in §63-11-43 [Repealed] prohibiting admission, in civil trial, of blood alcohol tests taken pursuant to state’s implied consent law, had been abrogated by adoption of Mississippi Rules of Evidence; officer who requested test did not have authority to do so, since implied consent law authorized blood alcohol test on dead or unconscious drivers whom investigating officer believed to have been operating motor vehicle while intoxicated, and there was no evidence that decedent had been operating motor vehicle; however, admission was proper because exclusion of this relevant evidence would have no deterrent effect on officer who ordered test, and would only penalize defendants. Hughes v. Tupelo Oil Co., 510 So. 2d 502, 1987 Miss. LEXIS 2608 (Miss. 1987).

Testimony of an expert in the field of economics as to the reasonable economic probability of a male similarly situated as was the decedent, was too speculative to be of any real value to the jury in making up a true verdict. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

In wrongful death action where decedent succumbed when a television antenna he was erecting came into contact with defendant’s power line, testimony of neighbor that some 6 years earlier her lights went off and she observed power company workers as they removed a television antenna belonging to another neighbor from the electric lines here involved, near the place where the second accident occurred, was admissible to show that antennas constructed since the power line was installed along the edge of the street, were likely to fall on the line and cause damage unless the power line was properly isolated, insulated or guarded so as to prevent injury upon contact with antennas along the street where defendant power company was licensed to operate. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Testimony showing any change in conditions on which a wrongful death action is based is competent as against the rights of the persons affected, and testimony may be introduced to show the remarriage of the widow after the death of the husband for which the suit is brought. Campbell v. Schmidt, 195 So. 2d 87, 1967 Miss. LEXIS 1436 (Miss. 1967).

Doctrine of res ipsa loquitur does not apply in an action against restaurant operator for death of customer allegedly caused by ptomaine poisoning. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

A directed verdict for the defendant in a malpractice suit was sustained and the doctrine of res ipsa loquitur held not to apply where the only witness for the plaintiff was the mother of the deceased child who testified that the defendant performed a tonsillectomy upon the child and that the child died in the hospital shortly thereafter. Sanders v. Smith, 200 Miss. 551, 27 So. 2d 889, 1946 Miss. LEXIS 322 (Miss. 1946).

Where, in action for death of child resulting from explosion of lamp predicated on negligence of defendant in supplying filling station with gasoline instead of kerosene, judgment in favor of plaintiff based upon testimony of twelve-year-old witness that he filled the lamp from the can which was brought from the filling station would impute wilful and corrupt perjury to nine adult witnesses, six of whom were disinterested and unimpeached, whose testimony exonerated defendant from any negligence, in the respect alleged, judgment was reversible as against the great weight of the evidence. Standard Oil Co. v. Henley, 199 Miss. 819, 25 So. 2d 400, 1946 Miss. LEXIS 250 (Miss. 1946).

To recover damages in death action for physical pain and mental anguish suffered by deceased between time of accident and his death, plaintiff must sustain burden of proof that deceased retained consciousness after the accident. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Dying declarations of decedent are not admissible in civil actions for wrongful death. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Where railroad company, defendant in action for death of pedestrian struck by train at crossing, took deposition of fireman because he was then in the armed forces, but did not introduce it, plaintiffs’ use thereof, as if it had been introduced, in the examination of other witnesses, was improper. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Evidence, in action for death of pedestrian struck by train at crossing, that the fireman was drunk immediately after the accident, was inadmissible in the absence of showing that anything done or omitted by the fireman had any causal connection with the injury. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

When a person is injured or killed on a public railroad crossing, the failure to ring the bell or sound the whistle as required by statute will raise the presumption prima facie that the injured person would have heard and acted upon the warning had it been given, and that if an opposite conclusion is to be reached the burden is upon the railroad company to meet the presumption by proof. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Plaintiff has burden of showing in action against employer for employee’s death that such was caused by the employer’s negligence. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

A motorist may be found by the jury to have been in the exercise of due care and hence not liable under this statute [Code 1942, § 1453] for the death of a child where there is evidence that other vehicles obstructed his view in such a way that he could not see the child until close upon it. Moser v. Hand, 81 F.2d 522, 1936 U.S. App. LEXIS 3478 (5th Cir. Miss. 1936).

Evidence that doctor was negligent in treating deceased for gunshot wound held insufficient to establish liability of doctor for wrongful death of deceased from pulmonary embolism. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 1935 Miss. LEXIS 6 (Miss. 1934).

Life expectancy of healthy men is competent evidence where the only infirmity of decedent was his deafness. Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

As to the competency of mortuary tables where the deceased was an asthmatic, and asthmatics were not embraced in such tables. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

In an action by an employee, claimed to have been injured by being thrown under a car while engaged in switching by stumbling over slag, it was competent for the railroad company to show that slag is commonly used by responsible railroad companies as ballast. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

In such actions evidence to show the poverty of the plaintiff is not admissible. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

Evidence that no previous accident had occurred at the same place was held admissible. And it was also held to be competent for defendant’s attorneys to comment on the absence of evidence of any previous accident at the same place. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

Evidence that the train was short on hands and that plaintiff, a flagman, was performing extra duties, was inadmissible, there being no claim that shortness of hands contributed to the injury. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

17. Questions for jury.

Circuit Court erred when it granted judgment for railroad notwithstanding verdict of jury where, while greater weight of credible evidence supported view that emergency whistle was sounded, there was in record some credible evidence that whistle never sounded. Maxwell v. Illinois C. G. Railroad, 513 So. 2d 901, 1987 Miss. LEXIS 2793 (Miss. 1987).

In a civil suit seeking recovery of damages for the deaths of two persons and injuries to three others as a result of being struck by gunfire laid down by a detachment of officers who were on a college campus as a result of student disorders, there was sufficient evidence to submit to the jury questions as to whether the respective officers were privileged to fire in self-defense or to suppress a riot, whether they employed excessive deadly force or fired without due regard to the safety of others, whether any one or more of them was an actual cause of harm to any plaintiff, and whether any supervisory or command officers were liable. Burton v. Waller, 502 F.2d 1261, 1974 U.S. App. LEXIS 6442 (5th Cir. Miss. 1974), cert. denied, 420 U.S. 964, 95 S. Ct. 1356, 43 L. Ed. 2d 442, 1975 U.S. LEXIS 847 (U.S. 1975).

Whether or not a defendant power company should have anticipated that person using due regard for their own safety in constructing, erecting and using television antennas in a congested area would likely come into contact with its dangerous powerlines so that it became its duty to isolate, insulate or guard its lines against the likelihood of such contact with its lines by the lawful use of the inhabitants and the issue as to the necessity of a warning and whether or not the power company failed to perform its duty in this regard were questions of fact for the jury. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

The question of whether a general contractor, in constructing a wooden scaffolding for use of employees of a subcontractor who installed steel beams in a corridor, had provided a safe place for subcontractor’s employees to work was one for the jury. Oden Constr. Co. v. McPhail, 228 So. 2d 586, 1969 Miss. LEXIS 1394 (Miss. 1969).

Whether bus driver was negligent in failing to ascertain whereabouts of passenger who alighted from bus before starting bus and fatally striking her, was for the jury. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In action for death of five-year-old child by driver of car on highway, it was for jury to say whether child climbed over curb or entered highway through vent and if driver of car could have seen it in time to avoid accident if he had been keeping constant lookout and anticipating presence of pedestrians in highway as required by law. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Whether operators of locomotive failed to give warning signals after they became aware of danger of pedestrian killed on tracks held, under evidence, for jury. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

18. Instructions.

This section does not require that jury know identity of beneficiaries, therefore court need not have informed jury that plaintiff’s children would have been primary beneficiaries of any wrongful death damages it awarded; court properly rejected plaintiff’s argument that jury assumed that plaintiff would be sole recipient of damages and thus the interests of the children were unfairly prejudiced. Munn v. Algee, 924 F.2d 568, 1991 U.S. App. LEXIS 3050 (5th Cir. Miss.), cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 229, 1991 U.S. LEXIS 4951 (U.S. 1991).

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court’s error in refusing a jury instruction that the defendant truck driver was negligent as a matter of law due to intoxication was cured by the jury finding in favor of the plaintiff. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court erred in granting a comparative negligence instruction where the only act of negligence claimed by the defendant truck driver was that the decedent drove her car onto his side of the highway since, if the jury had found the decedent negligent in driving onto the wrong side of the road, they would have been duty bound to find for the defendant. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

Instruction misrepresenting law concerning duty to stop train when trespasser’s position of peril is recognized in time to stop train was unsupported by law; instruction failing to make clear that railroad’s duty of reasonable care arose only when its engineer and firemen first saw decedent on railroad tracks was error; and, instruction should further tell jury that railroad’s duty was to exercise reasonable care under particular circumstances with which it was confronted. Maxwell v. Illinois C. G. Railroad, 513 So. 2d 901, 1987 Miss. LEXIS 2793 (Miss. 1987).

Electric power company’s instruction to the effect that decedent was presumed to have seen an electric power line and to have known of its presence, was properly refused since there was no presumption to that effect, and moreover, such instruction was an attempt to instruct on the weight and worth of the evidence by adding an inference in violation of Code 1942, § 1530. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Plaintiff’s instruction to the effect that an electric power company was required to maintain its lines in such a manner as to prevent it from being dangerous to the public, was erroneous since if it were required so to do, a power company would be an insurer against all injuries to persons and property. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

In view of this provision, it is erroneous to give an instruction the effect of which is to permit one beneficiary’s contributory negligence to be imputed to all the beneficiaries. Delta Elec. Power Ass'n v. Burton, 240 Miss. 209, 126 So. 2d 258, 1961 Miss. LEXIS 451 (Miss. 1961).

Instructing jury in death action that they may consider the present net cash value of deceased’s life at the time of death is not error. Ashcraft v. Alford, 236 Miss. 25, 109 So. 2d 343, 1959 Miss. LEXIS 289 (Miss. 1959).

In suit to recover for death of passenger killed while passing in front of bus after alighting, instructions when taken collectively that no liability attached until jury found that passenger’s death was caused by driver’s failure to keep a reasonable lookout, was proper. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Instruction authorizing jury to consider on question of damages the value of services of deceased to her husband, and the value of her association, society, and companionship to her husband and children, was proper. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In determining right of defendant to peremptory instruction to recover for death of customer allegedly caused by ptomaine poisoning, the court must assume as true everything which the evidence establishes either directly or by reasonable inferences which the jury might reasonably draw from such evidence, subject to the limitation, however, that a presumption cannot arise from another presumption. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

In action for death of child caused by negligent act of defendant, an instruction authorizing jury to take into consideration “any negligence on the part of the deceased child” is properly refused as the instruction fails to set forth elements of such negligence, if any, and its proximate contribution to injuries. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

An instruction allowing jury to find negligence without giving a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence, is erroneous. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Roving instructions, in action for wrongful death of pedestrian struck by train at crossing, authorizing recovery if jury believed from preponderance of the evidence that defendant railroad company was guilty of any negligence which proximately caused or contributed to the injury, was erroneous, which error was not cured by other instructions charging jury that unless they believed from the evidence that decedent was struck at the crossing they must find for the defendant. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Where there was no evidence as to how accident occurred resulting in death of mechanic’s helper allegedly caused by mechanic throwing can of flaming gasoline on him, trial court erred in refusing defendant employer’s motion for directed verdict, but judgment would be reversed for a new trial rather than for a judgment notwithstanding the verdict in view of the confusion at the trial as to the status and effect of the pleadings. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Instruction, in action by parents to recover for wrongful death of their two minor sons, that jury could also find for the plaintiffs for such “amount of money that the evidence shows that these boys might have voluntarily contributed to their parents after they reach 21 years of age,” constituted reversible error, where there was no evidence to justify the instruction. Alabama G. S. R. Co. v. Johnson, 140 F.2d 968, 1944 U.S. App. LEXIS 4090 (5th Cir. Miss. 1944).

In view of the provisions of the statute that the “parties suing shall recover such damages as the jury may determine to be just” it is error to charge the jury that the damages to be awarded for the death of an infant “can never amount to what might be said to be substantial damages” and that unless the verdict should exceed the sum of $2500 or $3000 it would not be considered substantial damages. Wood v. Morrow, 119 F.2d 776, 1941 U.S. App. LEXIS 3831 (5th Cir. Miss. 1941).

Instruction that plaintiffs were entitled to reasonable compensation for damages as proximate result of negligence of defendants in death of brother and son held not erroneous. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In action for death of brother and son, instruction excluding loss of society and companionship as element of damages held properly refused. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In action for death refusal of instruction that evidence did not authorize damages for loss of pecuniary profits to be derived after decedent became twenty-one held harmless error. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

Instruction authorizing recovery by mother and brother of deceased minor for present value of deceased’s life expectancy held erroneous. Gulf & S. I. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345, 1928 Miss. LEXIS 182 (Miss. 1928).

Peremptory instruction requested by defendant railroad company in action against it for running over and killing plaintiff’s child was properly refused where there was evidence of defendant’s negligence to go to the jury. Alabama & V. R. Co. v. Lowe, 73 Miss. 203, 19 So. 96, 1895 Miss. LEXIS 128 (Miss. 1895).

19. Execution on judgment.

In execution on a judgment for the death of the father obtained by the widow, the children are co-plaintiffs with the widow and the sheriff owes them the same duty he does the widow if he knows of their interest. Kelly v. Howard, 98 Miss. 543, 54 So. 10, 1910 Miss. LEXIS 93 (Miss. 1910); Howard v. Kelly, 111 Miss. 285, 71 So. 391, 1916 Miss. LEXIS 287 (Miss. 1916).

19.5. Attorney fees.

While the Court of Appeals properly affirmed a chancellor’s determination that a decedent’s half-siblings were entitled to an equal distribution under the wrongful-death statute and that the proceeds were to be equally divided, because the Supreme Court of Mississippi was split on whether the administratrix’s attorneys had an actual conflict of interest with the half-siblings and acted adverse to their interests with respect to the issue of attorney fees, the Court of Appeals’ opinion and holding on that issue, reversing in part and remanding, had to stand. Huber v. Eubanks (In re Estate of Eubanks), 197 So.3d 861, 2015 Miss. LEXIS 83 (Miss. 2015).

In a wrongful death case, the original judge properly ordered that the decedent’s two heirs join their lawsuits pursuant to Miss. Code Ann. §11-7-13, but the adult heir was allowed to retain the attorneys the adult heir had chosen, and their work substantially contributed to the wrongful death settlement; thus, the adult heir’s attorneys were entitled to attorneys’ fees, and the appellate court rendered judgment holding that the attorneys would be paid for their work. Franklin v. Franklin, 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

Because there was no evidence that the decedent’s widow gave informed written consent to the representation and fee arrangement between the decedent’s son and his attorney in the wrongful death action, the attorney was entitled to contingency fees based on the son-attorney contract only with respect to the son’s portion of the settlement proceeds. Willing v. Benz, 2006 Miss. App. LEXIS 873 (Miss. Ct. App. Nov. 21, 2006), sub. op., op. withdrawn, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App. 2007).

Appellant attorneys were entitled to compensation based upon their contribution to the wrongful death case and their justifiable reliance on the first judge’s order granting all attorneys a fee based on their contracts with their respective clients; thus, the second judge improperly denied them attorneys’ fees. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

Attorney who substantially contributes to a wrongful death settlement should be compensated for the attorney’s time and effort. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

There is no authority for the proposition that the wrongful death statute, Miss. Code Ann. §11-7-13, does not allow heirs to be individually represented by counsel of their choice. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

An attorney who successfully prosecutes a wrongful death claim without representing all of the heirs must prove that the attorney has earned a fee from the proceeds distributed to all the heirs. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

20. Damages.

While wrongful death beneficiaries were entitled to share equally in the damages awarded to decedent’s estate (funeral expenses) and those suffered by the decedent (loss of income), they were not entitled to share equally in the amount of damages awarded for loss of society and companionship; instead, each beneficiary was entitled to recover for himself any loss of society and companionship he might prove, so the court did not err by submitting a verdict form that allowed the jury to award each beneficiary separate amounts in non-economic damages. Thus the court denied the beneficiaries’ motion for new trial on that ground. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Recovery of emotional distress damages is not permitted under the Mississippi Wrongful Death Statute and damages awards cannot be enlarged on account of the horror and terrible shock of a tragedy; as photographs of the accident scene and testimony regarding the manner in which the decedent died were not relevant to the claims of loss of society or companionship, and were otherwise highly prejudicial, the court found it did not err by excluding this evidence during the second trial in this case; thus the court denied the beneficiaries motion for new trial on this ground. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Court’s charge given in a second trial that disclosed the amount awarded for funeral expenses and lost income in the first trial was necessary and reasonable in order to explain that the second trial was limited to the beneficiaries’ claims for non-economic damages as the issues of liability and economic loss had already been decided; additionally, beneficiaries failed to show that the charge affected their substantial rights. Accordingly, the court did not err by disclosing the amount of damages awarded in the first trial in its charge to the jury during the second trial of this case an a new trial was not warranted. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Trial court did not err in awarding hedonic damages in a wrongful death suit arising out of a collision between the decedent’s vehicle and the corporation’s tractor-trailer when death was instantaneous. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 2002 Miss. LEXIS 181 (Miss. 2002).

Trial court properly distributed insurance settlement proceeds in wrongful death action to decedent’s father, mother, half-sisters and half-brother, equally, without separate hearing in which each beneficiary could attempt to prove individual damages, and therefore, right to receive larger or smaller portion of insurance proceeds, since statute required that funds “shall be equally distributed.” Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

In a wrongful death action brought by the parents of a passenger who was killed in a motor vehicle accident, the parents were entitled to receive only the uninsured motor vehicle (UM) coverage provided by their own policies and the policy covering the accident vehicle, and were not entitled to the UM coverage provided by 2 other insurance policies issued to the owners of the accident vehicle which covered 2 other automobiles; the parents were entitled to stack the UM coverage provided by the policies in which the passenger met the definition of an “insured” either under the terms of the policy and/or the UM statute, and the passenger was an “insured” only under the policy covering the accident vehicle since she was a guest passenger in that vehicle but was not a guest passenger in either of the other 2 vehicles covered under the other policies issued to the owners. State Farm Mut. Auto. Ins. Co. v. Davis, 613 So. 2d 1179, 1992 Miss. LEXIS 829 (Miss. 1992), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

This section does not require that jury know identity of beneficiaries, therefore court need not have informed jury that plaintiff’s children would have been primary beneficiaries of any wrongful death damages it awarded; court properly rejected plaintiff’s argument that jury assumed that plaintiff would be sole recipient of damages and thus the interests of the children were unfairly prejudiced. Munn v. Algee, 924 F.2d 568, 1991 U.S. App. LEXIS 3050 (5th Cir. Miss.), cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 229, 1991 U.S. LEXIS 4951 (U.S. 1991).

A trial court erred in declining to grant a motion for a new trial on the issue of damages in a wrongful death action where the jury had failed to return any damages for the value of the decedent’s life expectancy, the decedent’s pain and suffering, and the loss of the decedent’s companionship and society where an expert testified that the decedent’s lost net income was $70,495, the evidence was overwhelming that the decedent was alive and asking for help when he was inside the cab of a truck after the accident which caused his death, and the decedent’s brother and sister testified as to the closeness of their family. Jones v. Shaffer, 573 So. 2d 740, 1990 Miss. LEXIS 893 (Miss. 1990).

In an action to recover under the uninsured motorist provisions of a decedent’s policy brought by the decedent’s 2 personal representatives, each representative was not entitled to recover “per person” limits under the policy since the representatives’ status as insureds was due to their status as wrongful death beneficiaries under §11-7-13, which provides a derivative action by the beneficiaries. Thus, the representatives’ total recovery was limited to that amount to which the decedent would have been entitled, to be shared equally between them. Wickline v. United States Fidelity & Guaranty Co., 530 So. 2d 708, 1988 Miss. LEXIS 448 (Miss. 1988), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

Although automobile of tortfeasor who carries liability insurance in amount less than amount of coverage available to injured person under that person’s uninsured motorist provisions of injured person’s policies is “uninsured motor vehicle” by statutory definition (§83-11-103), uninsured motorist coverage may be reduced by offset for sums paid by another company on behalf of under-insured driver where uninsured motorist provision so provides; furthermore, although insurer’s maximum liability is aggregate of all uninsured motorist policies under which injured person is covered, “per person” limitations in policies refer to injured person only, not to persons who may make claim under policy. State Farm Mut. Auto. Ins. Co. v. Eubanks, 620 F. Supp. 17, 1985 U.S. Dist. LEXIS 17700 (N.D. Miss. 1985), aff'd, 785 F.2d 1346, 1986 U.S. App. LEXIS 23704 (5th Cir. Miss. 1986).

A railroad employee leaving only a widow and minor children, a suit for damages may be brought by them only for damages for his death. Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 1907 Miss. LEXIS 213 (Miss. 1907), aff'd, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910).

21. —Elements of damages.

Survival claims described in Miss. Code Ann. §11-7-13, the wrongful-death statute, are, by specific statutory language, limited to damages which a deceased person could have pursued if death had not ensued. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Hedonic damages are not available in a wrongful death action absent proof that the decedent survived long enough to suffer such damages. Choctaw Maid Farms, Inc. v. Hailey, 2001 Miss. LEXIS 302 (Miss. Oct. 31, 2001).

The trial judge erred in finding that the plaintiff established no right to recover for loss of society and companionship arising from the death of her 23-year-old son, even in the absence of evidence of her own life expectancy, as she should have been allowed to recover for her past loss of society and companionship in the years between her son’s death and the date of trial. Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 2000 Miss. LEXIS 244 (Miss. 2000).

The trial judge erred in refusing to allow the plaintiff to introduce evidence of funeral expenses for her son based on the fact that she could not establish that she had paid those expenses personally; such a showing is not a prerequisite for recovering funeral expenses in a wrongful death case. Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 2000 Miss. LEXIS 244 (Miss. 2000).

Wrongful death action is to compensate beneficiary for loss of companionship and society of decedent, pain and suffering of decedent between time of injury and death, and punitive damages and, thus, beneficiary need only establish some of those elements in order to recover for decedent’s wrongful death. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Momentary anxiety caused by anticipation of an accident does not support an award of damages for pain and suffering under the wrongful death statute. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615, 1988 Miss. LEXIS 437 (Miss. 1988).

Under §11-7-13, recoverable damages include the present net cash value of the life expectancy of the deceased, the loss of the companionship and society of the decedent, the pain and suffering of the decedent between the time of injury and death, and punitive damages. McGowan v. Estate of Wright, 524 So. 2d 308, 1988 Miss. LEXIS 50 (Miss. 1988).

Wrongful death statute (§11-7-13) does not provide for prejudgment interest on estimated earnings from time of decedent’s death to time of trial. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damage to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by one of such persons, there can only be one suit for the benefit of all entitled to share in the distribution, and the damages recoverable in such suit are punitive damages, pain and suffering of the deceased and damages that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

In an action by an administratrix to recover for the wrongful death of her eight-year-old decedent, who was killed when struck by a truck, the trial court’s instruction that if the jury should find for the plaintiff, they might consider as a proper element of damages the present net cash value of the life of the deceased, if any, at the time of her death, was approved. Reed v. State, 232 Miss. 432, 99 So. 2d 455, 1958 Miss. LEXIS 290 (Miss. 1958).

In an action to recover damages for death of a son, the elements which the jury may consider appear to be medical, ambulance, doctor and hospital expense paid, or incurred, by plaintiff, loss of companionship, the present net cash value of the life of deceased at the time of his death, and such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all the damages of every kind to the mother. Boroughs v. Oliver, 226 Miss. 609, 85 So. 2d 191, 1956 Miss. LEXIS 437 (Miss. 1956).

In an action for wrongful death of a twenty-year-old boy in fixing the amount of the damage the jury should consider the present net cash value of the life of deceased at the time of his death. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

A husband is entitled to the services and earnings of his wife. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Surviving husband and children are entitled to recover for loss of society and companionship in death of their wife and mother, excluding damages by way of solatium. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In suit for death of five-year-old child brought by parents and the brothers and sisters, recovery may include value of services of child from time of death to majority, such damages as jury may fairly award as compensation for physical and mental anguish endured by such child between time of injury and death, such gratuities as parents had reasonable expectation of receiving before or after majority and whatever sum child might have recovered as present value of his own expectancy. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Value of husband’s support of wife and his association, society and companionship are proper elements of damage in death action. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

In death action, value of decedent’s life expectancy is not proper element of damages. Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, 1931 Miss. LEXIS 173 (Miss. 1931).

In action under statute for death, proper parties may recover value of loss of decedent’s companionship and society. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In a suit where the claim for damages is limited to those of the decedent the net value of life expectancy cannot be recovered. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

Damages for life expectancy and for the amount decedent would have expended in the support of his children during minority and for support of his wife during her lifetime and for loss of his society, protection and companionship cannot all be recovered. New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104, 1920 Miss. LEXIS 565 (Miss. 1920); Hines v. Moore, 124 Miss. 500, 87 So. 1 (Miss. 1921).

The surviving brothers and sisters may recover damages for loss of companionship. Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

They may also recover the present value of his life expectancy. Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

There can be no damages for pain and suffering where death was instantaneous. Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

In determining damages a jury may consider the loss of companionship, protection and society of the deceased but not solatium. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 1911 Miss. LEXIS 164 (Miss. 1911).

The value of life expectancy is an element of damages in an action by parent to recover damages for her son’s death. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

Four elements of damages proper to be considered in an action by a parent to recover for the death of a minor child: (1) the value of the child’s services from the time of its death until majority, (2) such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child between the time of injury and death, (3) such gratuities as the parent had a reasonable expectation of receiving before or after majority, and (4) whatever sum the child might have recovered as the present value of his own expectancy. Cumberland Tel. & Tel. Co. v. Anderson, 89 Miss. 732, 41 So. 263, 1906 Miss. LEXIS 2 (Miss. 1906).

In a suit by a parent, loss of the child’s society and comfort the parent would have had in rearing him are not elements of damages. Mobile & O. R. Co. v. Watly, 69 Miss. 145, 13 So. 825, 1891 Miss. LEXIS 162 (Miss. 1891).

22. —Measure of damages.

In a personal injury products liability lawsuit, an award of damages to the decedent’s estate was not inflammatory because, considering the actual damages and the testimony of the decedent’s mother as to the family’s loss of society and companionship of a young son and brother on the verge of manhood, and the pain and suffering that he must have experienced between the time of the tire’s rupture when he was alive and when the rolling automobile stopped against a tree and he was dead, the jury’s award was proper. There was evidence to support the damages, and the jury award to the estate was not based upon hedonic damages. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

In death action, plaintiff may recover present value of any pecuniary advantage which evidence discloses plaintiff might reasonably have expected from continuance of decedent’s life. Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, 1931 Miss. LEXIS 173 (Miss. 1931).

The present life expectancy of a decedent should be discounted six per cent, per annum for the period it has to run and there should be taken into account the living expenses of the deceased which must be deducted in determining damages for life expectancy of deceased. Louisville & N. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, 1922 Miss. LEXIS 90 (Miss. 1922).

Recovery for services of a child would not extend beyond his minority. Davis v. McCullers, 126 Miss. 521, 89 So. 158, 1921 Miss. LEXIS 61 (Miss. 1921).

Where the employment of a minor without his mother’s consent constitutes an actionable wrong, her measure of damages can be no greater than if the master were guilty of negligence in the killing of the boy. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803, 1917 Miss. LEXIS 364 (Miss. 1917).

23. —Amount of damages.

In a wrongful death action arising from the death of an 85-year-old man in an automobile collision, a jury verdict in the amount of $150,000 comported with the evidence and, therefore, a remittitur was not warranted where the damages awarded were not just for the wrongful death of the decedent because the decedent suffered severe pain, suffering and mental anguish for 2 months prior to death as a result of the injuries he sustained in the collision, the decedent had at least 7.3 years of life remaining according to life tables in effect at the time of his death, the plaintiff was the decedent’s only child, and the plaintiff and the decedent were extremely close and communicated daily. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

Wrongful death award based on future earnings of deceased should be reduced by amount of income tax deceased would have paid on earnings. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

A jury verdict for $100,000 for the wrongful death of decedent who was 41 years of age, with a life expectancy of 31.29 years, who earned $200 a week, and left surviving him a widow and two young children who were dependent upon him, and the youngest of which was approximately two years old at the time of his death, was not so excessive as to indicate it was the result of passion or prejudice on the part of the jury. Oden Constr. Co. v. McPhail, 228 So. 2d 586, 1969 Miss. LEXIS 1394 (Miss. 1969).

Where deceased was, during his lifetime, a healthy, strong operator of a caterpillar tractor, skilled and earning an average wage of between $55 and $60 per week, was a good husband, and supported his wife and family, and had a life expectancy in excess of 40 additional years, and award of $4500 to his wife was inadequate. Campbell v. Schmidt, 195 So. 2d 87, 1967 Miss. LEXIS 1436 (Miss. 1967).

A jury award of $150,000 for the injuries and death of a woman 44 years old at the time of the accident, with a husband and four children, who received hyperextension injury to her neck and a trauma to her left breast which caused the metastasis of a dormant cancer from which she died three years after the accident, and who was hospitalized for 222 days, was grossly excessive, and the affirmance of the judgment against the defendant was conditioned upon the acceptance of a remittitur of $35,000. New Orleans & N. R. Co. v. Thornton, 191 So. 2d 547, 1966 Miss. LEXIS 1223 (Miss. 1966).

A verdict for $75,000 for the wrongful death of a five-year-old child, with a life expectancy of 64 years, was excessive by $35,000, and the Supreme Court would reverse the cause for new trial on issues of damages only unless plaintiffs entered a remittitur of $35,000. Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So. 2d 900, 1964 Miss. LEXIS 469 (Miss. 1964).

Award of $5000, for death of man of 55, with a life expectancy of 17.78 years, who suffered excruciating pain for 3 days before his death, held grossly inadequate. City of Corinth v. Gilmore, 236 Miss. 296, 110 So. 2d 606, 1959 Miss. LEXIS 319 (Miss. 1959).

$17,500 damages for death of 67 year old mother, held not excessive. Ashcraft v. Alford, 236 Miss. 25, 109 So. 2d 343, 1959 Miss. LEXIS 289 (Miss. 1959).

A verdict in an action under this statute [Code 1942, § 1453] will not be set aside for inadequacy where its amount may be attributed to comparative negligence. Matheny v. Illinois C. R. Co., 235 Miss. 173, 108 So. 2d 589, 1959 Miss. LEXIS 415 (Miss. 1959).

An award of $3000 for the death of a 10-year-old boy killed in a highway accident was inadequate, even though that amount was probably uncollectible. Green v. Hatcher, 236 Miss. 830, 105 So. 2d 624, 1958 Miss. LEXIS 281 (Miss. 1958).

An award of $40,000 for the wrongful death of an eight-year-old child was not so excessive as to represent passion, prejudice and bias on the part of the jury. Reed v. Eubanks, 232 Miss. 27, 98 So. 2d 132, 1957 Miss. LEXIS 441 (Miss. 1957).

In determining whether the damages awarded for wrongful death are excessive, the test on review is whether the verdict is so excessive as to be the result of bias, prejudice, or passion on the part of jury. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

An award of $15,000 for the wrongful death of the decedent who had a life expectancy of thirty years and eight months was not so large as to evince passion or prejudice on the part of the jury. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Where the deceased at the time of his death was forty-two years of age and left surviving him his widow and two children and where he spent in the support and maintenance of his family $7,000 to $8,000 a year, a verdict of $47,000 by the jury is not so grossly excessive as to evince, bias, prejudice or passion. Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So. 2d 443, 1951 Miss. LEXIS 353 (Miss. 1951), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Verdict of $25,000 in favor of husband and three adult children for wrongful death of seventy-two year old woman was held excessive by $7500. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Supreme Court in considering size of verdicts may take notice of inflationary conditions in the country with the consequent decrease in the purchasing value of money. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In action by parents and brothers and sisters for death of five-year-old child, verdict for $2,000 is not adequate damages. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Verdict for $7,500.00 in action for death of child killed by truck on highway is excessive. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

Verdict awarding widow $15,000 for death of husband earning $45 per week was excessive by $10,000, where the husband had deserted the wife and had refused to support her. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

An instance of excessive verdict $10,000.00 reduced to $5,000.00. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

An instance of inadequate damages awarded. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

An instance of a verdict being grossly inadequate. Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306, 1917 Miss. LEXIS 328 (Miss. 1917).

On the question of excessive verdict see Yazoo & M. V. R. Co. v. Farr, 94 Miss. 557, 48 So. 520, 1909 Miss. LEXIS 352 (Miss. 1909).

24. —Exemplary or punitive damages.

In a wrongful death action arising out of automobile collision occurring when defendant truck operator pulled out of the lane to pass a truck on a curve where he could not see an automobile approaching from the opposite direction, the question of whether the truck driver’s conduct was gross or reckless negligence was a question for the jury in considering recovering of exemplary damages. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

If trespasser’s death on railroad tracks resulted from engineer’s failure to give warning signals after becoming aware of trespasser’s danger, trespasser’s administrator was entitled to have submitted to jury question of punitive damages, even if no actual damages were proved. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

In proper cases exemplary as well as compensatory damages may be allowed. Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

Punitive damages are properly disallowed in the absence of wantonness or gross negligence. Carrier Lumber & Mfg. Co. v. Boxley, 103 Miss. 489, 60 So. 645, 1912 Miss. LEXIS 200 (Miss. 1912).

25. Compromise, settlement and release.

On a petition by a decedent’s husband to pay over escrow funds, a chancery court properly held that remaining settlement proceeds in a wrongful death action were wrongful death proceeds because Mississippi courts regularly distributed the proceeds of wrongful death settlements to the wrongful death beneficiaries; an antenuptial agreement between the decedent and her husband had no bearing on the settlement of the wrongful death claim. In re Estate of Burns, 31 So.3d 1227, 2009 Miss. App. LEXIS 482 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 176 (Miss. 2010).

Benefits payable under uninsured motorist insurance policy due to injuries resulting in death of insured need not be paid to persons designated under wrongful death statute (§11-7-13), but may be paid to surviving spouse in accordance with “facility of payment” clause. Overstreet v. Allstate Ins. Co., 474 So. 2d 572, 1985 Miss. LEXIS 2195 (Miss. 1985).

Where a decedent’s administrator settled a wrongful death suit against the tortfeasor without consideration of the rights of two minor children of the decedent who had been adopted by their paternal grandparents, the settlement did not bar the children from asserting their rights against the tortfeasor. Alack v. Phelps, 230 So. 2d 789, 1970 Miss. LEXIS 1562 (Miss. 1970).

A decree on an ex parte petition to settle an alleged doubtful claim for wrongful death is not res judicata in a death action brought by a next of kin. Evans v. Cheatwood, 329 F.2d 583, 1964 U.S. App. LEXIS 5932 (5th Cir. Miss. 1964).

Administrator can compromise and settle claim for death and execute valid release, where authorized by chancery court’s decree. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Settlement by administrator of claim for wrongful death properly authorized by chancery court’s decree, is binding on all interested parties. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Settlement for claim for death of 16-year-old boy for $2,000 cash and house and lot, by administrators under chancery court’s decree, held not inadequate. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Provision that determination of one suit for wrongful death shall not bar another action, unless decided on merits, does not apply where all parties interested acquiesced in settlement. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Widow’s release of railroad from liability for death of husband and property damage did not bar action by lien creditor to recover balance of purchase price of automobile destroyed. General Motors Acceptance Corp. v. New Orleans & G. N. R. Co., 156 Miss. 122, 125 So. 541, 1930 Miss. LEXIS 138 (Miss. 1930).

When the suit is brought by the widow for the death of a husband or father, she can compromise and thereby bind her children. Natchez Cotton-Mills Co. v. Mullins, 67 Miss. 672, 7 So. 542, 1890 Miss. LEXIS 125 (Miss. 1890).

26. Res judicata.

Earlier federal lawsuit by survivors of workers who were killed in propylene gas explosion against manufacturer and bulk distributor of gas, in which defendants had been granted summary judgment, operated under doctrine of res judicata to bar state court action by survivors against downstream distributors of gas; subject matter in both actions was identical, causes of action were the same even though federal suit was labeled products liability case and state action was wrongful death action based on manufacturing defect, and downstream distributors were privies of bulk distributor and were of same quality or character. Little v. V & G Welding Supply, 704 So. 2d 1336, 1997 Miss. LEXIS 782 (Miss. 1997).

27. Unborn child.

Father and his children failed to provide the Attorney General with notice of their constitutional challenge at the trial level because they notified the Attorney General of their challenge to the constitutionality of Miss. Code Ann. §91-1-15 in their notice of appeal; thus, the father and children did not comply with the requirements of Miss. R. Civ. P. 24(d), and their challenge to the constitutionality of the wrongful death statute’s incorporation of §91-1-15(3) was procedurally barred. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

Doctrine of unclean hands was inapplicable because a mother’s failure to give a father notice of a wrongful death acton did not amount to a willful act that transgressed equitable standards of conduct; the mother and the father were never married, the father consistently denied paternity of the deceased child, and the father failed to meet the statutory requirements to constitute a wrongful death beneficiary of the child. Perkins v. Nelson (In re Estate of Nelson), — So.3d —, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. July 26, 2018).

From Miss. Code Ann. §11-7-13 it was clear that in order for a father to be entitled to proceeds from a wrongful death action for an illegitimate child, he had to establish his right to inherit from the child under Miss. Code Ann. §91-1-15, which included the §91-1-15(3)(d)(i) requirements; therefore, the father’s argument was without merit where the father made no effort to be a parent to the child, suffered no loss as a result of the child’s demise, and any part of the settlement received by the father and his kindred could only have been termed a windfall and unjust enrichment. Williams v. Farmer, 876 So. 2d 300, 2004 Miss. LEXIS 760 (Miss. 2004).

Miss. Code Ann. §11-7-13 includes a nonviable fetus who is “quick” in the womb (i.e, has developed so that it moves within the mother’s womb) as a “person”; the cause of action dates from the death of the fetus, and the determination of whether a fetus is “quick” in the womb is assigned to the jury. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104, 2003 Miss. LEXIS 374 (Miss. 2003).

Where plaintiff sued defendants for causing her to miscarry while she was five months pregnant, the trial court properly denied partial summary judgment to defendants on her wrongful death claims, as (1) under Miss. Code Ann. §11-7-13, a nonviable, unborn child who was “quick” in the womb was a “person”; and (2) whether the child was “quick” was for the jury to decide. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104, 2003 Miss. LEXIS 374 (Miss. 2003).

A non-viable fetus can recover for the death of a parent under the wrongful death statute. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

Wrongful death action can be maintained for death of unborn child who reaches prenatal age of viability. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

Child who at time of his brother’s death was unborn fetus, at six and one-half months gestation, was “living” at that time for purposes of wrongful death statute, and thus, he was beneficiary under that statute after his birth; medical evidence showed that, at time of his brother’s death, child had reached prenatal age of viability when destruction of his mother’s life would not necessarily mean end of his life. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

29. Adopted child.

Termination of a deceased father’s parental rights to a natural son and the son’s adoption in Michigan did not bar a chancery court from naming the son as the father’s sole wrongful death beneficiary because, under governing Mississippi law, a natural son could nonetheless be so designated, despite contrary Michigan statutes. Alexander v. DeForest (In re Determination of Wrongful Death Heirs of Underhill), — So.3d —, 2019 Miss. LEXIS 54 (Miss. Jan. 31, 2019).

Finding that the half-brother of the decedent, who was adopted by another man, was entitled to a one-third share of the decedent’s wrongful death settlement proceeds was proper where an adopted child had full rights to inherit from his natural family, just as if there had been no adoption; thus, the half-brother, as the natural half-brother, was a statutory heir-at-law and wrongful death beneficiary of the decedent. Estate of Yount v. McKnight, 845 So. 2d 724, 2003 Miss. App. LEXIS 427 (Miss. Ct. App. 2003).

30. Jurisdiction.

Trial court properly dismissed a daughter’s wrongful death actions against a doctor and a medical center because it took jurisdiction over her first lawsuit against another physician to the exclusions of the lawsuits against the doctor and medical center, and those subsequently filed actions were of no effect; so long as the first lawsuit was pending, the subsequently filed actions for the same death were of no effect. Estate of Davis v. Blaylock, 212 So.3d 755, 2017 Miss. LEXIS 2 (Miss. 2017).

Dismissal of a wrongful death suit against a hospital was error because, although an earlier wrongful death suit arising from the same incident had been filed against a nursing home, that suit had been dismissed by the time the motion to dismiss was addressed by the trial court, thus it was null and void, and the second suit against the hospital was the only suit pending for Miss. Code Ann. §11-7-13 purposes. Briere v. S. Cent. Reg'l Med. Ctr., 3 So.3d 126, 2009 Miss. LEXIS 89 (Miss. 2009).

The first court to properly take jurisdiction of a wrongful death action in Mississippi courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently filed action for the same death shall be of no effect. Long v. McKinney, 897 So. 2d 160, 2004 Miss. LEXIS 1404 (Miss. 2004).

31. Collateral source rule.

In a wrongful death action, none of the attorneys or witnesses discussed which particular bills Medicare paid, and the hospital made no attempt to persuade the jury that payments from Medicare should have served to reduce the amount of damages awarded. Consequently, the collateral source rule did not apply; additionally, since the decedent’s widow mentioned Medicare in her direct testimony and the only use of Medicare in the hospital’s cross examination was to clear up the amount of lost monthly income, the trial judge did not abuse his discretion in allowing said testimony. Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 2005 Miss. LEXIS 385 (Miss. 2005).

Cross References —

Liability of railroad company for negligence and mismanagement, see §§77-9-435 et seq.

Exemption of personal injury judgment from execution for debt, see §§85-3-3 et seq.

RESEARCH REFERENCES

ALR.

Contributory negligence as defense to action by state, United States, municipality, or other governmental unit. 1 A.L.R.2d 827.

Contributory negligence of one or more of the beneficiaries in an action for death as affecting the right of other beneficiaries who were not negligent. 2 A.L.R.2d 785.

Contributory negligence of parent as bar to an action by parent or administrator for death of child. 2 A.L.R.2d 785.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Contributory negligence as a defense to a cause of action based upon violation of statute. 10 A.L.R.2d 853.

Contributory negligence of driver of motor vehicle as imputable to owner under statute making owner responsible for negligence of driver. 11 A.L.R.2d 1437.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death. 12 A.L.R.2d 611.

Application of last clear chance doctrine in comparative negligence case. 59 A.L.R.2d 1261.

Modern trends as to contributory negligence of children. 77 A.L.R.2d 917.

Comment Note–The doctrine of comparative negligence and its relation to the doctrine of contributory negligence. 32 A.L.R.3d 463.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence. 37 A.L.R.3d 1438.

Construction of “good Samaritan” statute excusing from civil liability one rendering care in emergency. 39 A.L.R.3d 222.

Modern development of comparative negligence doctrine having applicability to negligence actions generally. 78 A.L.R.3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively. 78 A.L.R.3d 421.

Choice of law as to application of comparative negligence doctrine. 86 A.L.R.3d 1206.

Automobile occupant’s failure to use seat belt as contributory negligence. 92 A.L.R.3d 9.

Nonuse of automobile seatbelts as evidence of comparative negligence. 95 A.L.R.3d 239.

Applicability of comparative negligence doctrine to actions based on strict liability in tort. 9 A.L.R.4th 633.

Effect of adoption of comparative negligence rules on assumption of risk. 16 A.L.R.4th 700.

Liability of theater owner or operator for injury to or death of patron resulting from lighting conditions on premises. 19 A.L.R.4th 1110.

Contributory negligence and assumption of rish in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 20 A.L.R.4th 517.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child. 26 A.L.R.4th 396.

Effect of plaintiff’s comparative negligence in reducing punitive damages recoverable. 27 A.L.R.4th 318.

Exterminator’s tort liability for personal injury or death directly resulting operations. 29 A.L.R.4th 987.

Modern trends as to contributory negligence of children. 32 A.L.R.4th 56.

Personal liability of public school teacher in negligence action for personal injury or death of student. 34 A.L.R.4th 228.

Liability of wharf owner or operator for personal injuries to invitees or licensees resulting from condition of premises or operation of equipment. 34 A.L.R.4th 572.

Personal liability of public school executive or administrative officer in negligence action for personal injury or death of student. 35 A.L.R.4th 272.

Personal liability in negligence action of public school employee, other than teacher or executive or administrative officer, for personal injury or death of student. 35 A.L.R.4th 328.

Liability for injury to customer or other invitee of retail store by falling of displayed, stored, or piled objects. 61 A.L.R.4th 27.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors. 71 A.L.R.4th 1108.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury. 75 A.L.R.4th 443.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury. 75 A.L.R.4th 538.

Rescue Doctrine: applicability and application of comparative negligence principles. 75 A.L.R.4th 875.

Modern status of rule imputing motor vehicle driver’s negligence to passenger on joint venture theory. 3 A.L.R.5th 1.

Comparative negligence: judgment allocating fault in action against fewer than all potential defendants as precluding subsequent action against parties not sued in original action. 4 A.L.R.5th 753.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation. 22 A.L.R.5th 464.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim. 69 A.L.R.5th 625.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 83 A.L.R.5th 589.

Contributory Negligence or Comparative Negligence Based on Failure of Patient to Follow Instructions as Defense in Action Against Physician or Surgeon For Medical Malpractice. 84 A.L.R.5th 619.

Am. Jur.

22A Am. Jur. 2d, Death §§ 82-87.

57 Am. Jur. 2d, Negligence §§ 272-437.

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 291, 292 (Instruction to jury defining comparative negligence).

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 293, 294 (Instruction to jury as to comparative negligence of multiple defendants).

21 Am. Jur. Trials, Trial of a Personal Injury Case in a Comparative Negligence Jurisdiction, §§ 1 et seq.

35 Am. Jur. Trials 349, The Seatbelt Defense.

20 Am. Jur. Proof of Facts 2d 667, Contributory Negligence of Passenger Accepting Ride With Driver Suffering from Drowsiness, Illness, or Physical Defects.

49 Am. Jur. Proof of Facts 2d 191, Damages for Wrongful Death of Child.

49 Am. Jur. Proof of Facts 2d 379, Strict Products Liability: Misuse of Product.

3 Am. Jur. Proof of Facts 3d 71, The Seatbelt Defense.

CJS.

25A C.J.S., Death §§ 141-147.

65 C.J.S., Negligence §§ 253-329.

Law Reviews.

Spell, Stemming the tide of expanding liability; the coexistence of comparative negligence and assumption of risk. 8 Miss. C. L. Rev. 159, Spring, 1988.

1 Am Law Prod Liab 3d, Overview of Products Liability Law § 1:81.

3 Am Law Prod Liab 3d, Contributory Negligence; Comparative Fault § 40:26.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L. J. 563, September 1982.

Wade, Multiple Tortfeasor Liability in Products Liability Suits. 55 Miss. L. J. 683, December 1985.

Comment, Fair Apportionment of Fault Among Joint Tortfeasors – A Mississippi Perspective. 55 Miss. L. J. 709, December 1985.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

JUDICIAL DECISIONS

1. In general.

2. Construction and application, generally.

3. Contributory negligence in general.

4. Pleading and proof.

5. Effect of negligence of defendant.

6. Extent of recovery.

7. Evidence.

8. Questions for jury.

9. Instructions.

10. — Peremptory instruction.

11. Damages.

12. —Amount of damages.

1. In general.

The “open and obvious” defense to negligence actions would be abolished, and damages would be determined through application of the true comparative negligence doctrine; thus, a trial judge erred in construing the open and obvious defense as a complete bar to the recovery of damages, since it should only be used to mitigate damages on a comparative negligence basis under §11-7-15. Tharp v. Bunge Corp., 641 So. 2d 20, 1994 Miss. LEXIS 358 (Miss. 1994).

Under the comparative negligence doctrine, negligence is measured in terms of a percentage, and any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is sought; where negligence by both parties is concurrent and contributes to the injury, recovery is not barred, but the plaintiff’s damages are diminished proportionately, and therefore a plaintiff, though negligent, may still recover from a defendant whose negligence contributed to his or her injuries. Burton v. Barnett, 615 So. 2d 580, 1993 Miss. LEXIS 90 (Miss. 1993).

A court should not, by its decree, fail to give effect to the statute. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

A common-law rule as to contributory negligence may be modified or abolished by statute. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

This statute [Code 1942, § 1454] is not unconstitutional. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

2. Construction and application, generally.

In order to recover damages under this statute, a plaintiff would first have to prove by a preponderance of the evidence that a defendant’s negligent conduct was both the cause-in-fact and the proximate cause of the resulting injuries, and in this case, plaintiffs failed to meet this burden of proof; the law is neither manifestly wrong nor mischievous and the Mississippi Supreme Court declines to overturn Mississippi’s longstanding causation standard. Norman v. Anderson Reg'l Med. Ctr., — So.3d —, 2019 Miss. LEXIS 40 (Miss. Jan. 24, 2019).

Comparative-negligence analysis was not necessary because appellant was the sole proximate cause of his electrocution, and assuming that a defendant in the underlying suit was negligent in the design or construction of the runway lighting system, that alleged negligence was not a cause in fact of his electrocution. McDaniel v. Ferrell, 232 So.3d 814, 2017 Miss. App. LEXIS 646 (Miss. Ct. App. 2017).

In a negligence case, an owner’s motion for a new trial under Miss. R. Civ. P. 59 should have been granted because the evidence showed the owner did not exercise substantial control over a worksite, despite having control over safety and specifying a daily or hourly rate; moreover, it was undisputed that the injured party’s actions were negligent for comparative negligence purposes. Coho Res., Inc. v. Chapman, 913 So. 2d 899, 2005 Miss. LEXIS 266 (Miss. 2005).

Comparative negligence is applicable to an action sounding in strict liability. Pickering v. Industria Masina I Traktora, 740 So. 2d 836, 1999 Miss. LEXIS 175 (Miss. 1999).

From the points of view of both civil justice and economic efficiency, comparative negligence, as an approach to the effect that ought to be given a plaintiff’s contributory fault, is demonstrably superior to the traditional common law contributory negligence bar. Thus, although Tennessee law controlled several other liability issues in a wrongful death action, the effect of the decedent’s negligence, if any, would be governed by §11-7-15 to the exclusion of the Tennessee contributory negligence rule. McDaniel v. Ritter, 556 So. 2d 303, 1989 Miss. LEXIS 501 (Miss. 1989).

In a wrongful death action brought by a minor decedent’s parents, defendant was not entitled to contribution from the child’s father, even though he was a joint tortfeasor, where the child could not have sued his father for damages had death not ensued; further, a diminution of damages was available only when the injured party, not a statutory beneficiary, had been contributorily negligent. Hood v. Dealers Transport Co., 472 F. Supp. 250, 1979 U.S. Dist. LEXIS 12939 (N.D. Miss. 1979).

In an action arising out of a train/car collision at a railroad crossing, a finding that the train crew had a “better chance” to avoid the collision did not preclude consideration of plaintiff’s contributory negligence in failing to stop at a stop sign which should have been visible to him. Newman v. Missouri P. R. Co., 421 F. Supp. 488, 1976 U.S. Dist. LEXIS 12706 (S.D. Miss. 1976), aff'd in part and rev'd in part, 545 F.2d 439, 1977 U.S. App. LEXIS 10550 (5th Cir. Miss. 1977).

Code 1942, § 1454, has no application where the negligence of the injured person is the sole proximate cause of the injury, or where the sole proximate cause of the accident is the defendant’s negligence. Salster v. Singer Sewing Machine Co., 361 F. Supp. 1056, 1973 U.S. Dist. LEXIS 12810 (N.D. Miss. 1973).

Settlement by the railroad company of an action for damages brought by the estate of the driver of a petroleum tank truck, killed as the result of a railroad crossing collision, was no more and no less than a non-litigated, court-approved compromise effectuated to avoid the risk of litigation and did not establish, conclusively or otherwise, that the negligence of the railroad far exceeded that of the truck driver so as to collaterally estop the railroad from collecting property damages from the driver’s principals. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

Although the question of contributory negligence was not involved in an action for the wrongful death of a passenger in an automobile, it was an issue in a subsequent case arising from the same collision brought for the wrongful death of the driver of the automobile in which the passenger was riding. Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

The fact that the defendant railraod had previously recovered in federal court a judgment for damage sustained by its locomotive as a consequence of a collision with a truck driven by the plaintiff is no bar, under this section [Code 1942, § 1454], to plaintiff’s recovery of a judgment for the personal injuries he sustained in the accident. New Orleans & N. R. Co. v. Gable, 252 Miss. 605, 172 So. 2d 421, 1965 Miss. LEXIS 1132 (Miss. 1965).

Motion to correct judgment. Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So. 2d 2, 1963 Miss. LEXIS 392, 1964 Miss. LEXIS 266 (Miss. 1963).

This provision [Code 1942, § 1454] includes the question of proximate cause as well as negligence. Massengale v. Taylor, 246 Miss. 521, 150 So. 2d 859, 1963 Miss. LEXIS 473 (Miss. 1963).

Plaintiff’s voluntary intoxication having contributed to accidental fall down dangerous steps. Fournier v. United States, 220 F. Supp. 752, 1963 U.S. Dist. LEXIS 7401 (S.D. Miss. 1963).

The comparative negligence statutes does not apply where the only negligence shown is that of plaintiff. Camurati v. Sutton, 48 Tenn. App. 54, 342 S.W.2d 732, 1960 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1960).

The right to take comparative negligence into account may justify an otherwise inadequate verdict. Matheny v. Illinois C. R. Co., 235 Miss. 173, 108 So. 2d 589, 1959 Miss. LEXIS 415 (Miss. 1959).

This section [Code 1942, § 1454] is not in conflict with the statute which provides that where each party is found to have a claim against the other, verdict shall be rendered for the excess. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

Under this section [Code 1942, § 1454] and Code 1942, § 1456 abolishing doctrine of assumption of risk, when negligence once has been shown on part of master followed by injury to servant, the only way master can entirely escape liability is to show his negligence was not a proximate cause of the injury or that the servant’s own negligence, or negligence of fellow-servant, was the sole proximate cause of the plaintiff’s injury. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

The doctrine of assumption of risk, not that of contributory negligence, was applicable where the deceased rode in the front seat with the drunken driver of a truck, which he knew was not equipped to haul passengers, without objection or effort to leave the truck. Saxton v. Rose, 201 Miss. 814, 29 So. 2d 646, 1947 Miss. LEXIS 451 (Miss. 1947).

When the proximate cause of employee’s injuries is the failure of the employee to use an instrumentality in the normal or proper way, such failure goes to the entire cause of action, and not to a mere diminution of damages. Stewart v. Kroger Grocery, etc. Co., 198 Miss. 371, 21 So. 2d 912, 1945 Miss. LEXIS 207 (Miss. 1945).

This statute [Code 1942, § 1454], when invoked, does not leave it to the option of court or jury to disregard or absolve contributory negligence when shown, but the duty of the jury in such cases is made mandatory. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Where defendant’s driver was grossly negligent in entering intersection at 50 miles per hour without stopping, and collided with plaintiff’s driver who, in entering the intersection on a through street at unabated speed of 30 miles per hour, was prima facie negligent, the negligence of plaintiff’s driver was a contributing factor to the accident and warranted application of the comparative negligence statute. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Code 1930, §§ 511 and 512, Code 1942, §§ 1454 and 1455, abolished contributory negligence as a defense and makes negligence and contributory negligence questions for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

This section [Code 1942, § 1454] is not applicable to a depositor’s action against the bank for damage to credit and reputation resulting from improper dishonoring of checks. Weaver v. Grenada Bank, 180 Miss. 876, 179 So. 564, 1938 Miss. LEXIS 47 (Miss. 1938).

This statute [Code 1942, § 1454] is part of the substantive law of Mississippi and must be followed by the Federal Court sitting in that state. Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928, 1934 U.S. App. LEXIS 5027 (5th Cir. Miss. 1934); Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

This statute [Code 1942, § 1454] does not deal with degrees of contributory negligence, but merely with contributory negligence of every character. Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013, 1912 Miss. LEXIS 238 (Miss. 1913); Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

Common-law rule that master is not liable to servant for defects in simple tools held not changed by this section [Code 1942, § 1454]. Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652, 1933 Miss. LEXIS 155 (Miss. 1933); Middleton v. National Box Co., 38 F.2d 89, 1930 U.S. Dist. LEXIS 1837 (D. Miss. 1930).

In an action for the death of a bus passenger resulting from a collision between the bus and a train, negligence of the bus driver could not be imputed to the passenger. Gulf & S. I. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168, 1924 Miss. LEXIS 210 (Miss. 1924).

This statute [Code 1942, § 1454] does not repeal other statutes regulating the conduct of a railroad company. Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

This statute [Code 1942, § 1454] does not deal with degrees of contributory negligence, but merely with contributory negligence of every character. Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013, 1912 Miss. LEXIS 238 (Miss. 1913); Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

3. Contributory negligence in general.

Trial court properly granted a limited liability company (LLC) summary judgment in wrongful death beneficiaries’ action because the LLC could act only through a pilot since he was its sole member, and the beneficiaries were barred from recovering for the pilot’s negligence; if the pilot had survived the crash, he would have been unable to recover from the LLC for his own negligence, and the beneficiaries stood in the pilot’s shoes and also could not recover for his negligence. Howarth v. M&H Ventures, LLC,—So.3d—, 2017 Miss. LEXIS 429 (Miss. Nov. 2, 2017).

Trial court erred in granting private contractors summary judgment on the basis that a widow’s wrongful death claim would require it to question military decisions because they failed to show that adjudication of a ballistic wall’s failure would implicate a political question; the contractors did not show that they would put forward a viable contributory negligence defense because the claim that the wall failed could stand without implicating a decision committed to the military’s discretion. Ghane v. Mid-South Inst. of Self Def. Shooting, Inc., 137 So.3d 212, 2014 Miss. LEXIS 32 (Miss.), cert. denied, — U.S. —, 135 S. Ct. 108, 190 L. Ed. 2d 41, 2014 U.S. LEXIS 5713 (U.S. 2014).

Motel guests who sustained damages as victims of an armed robbery at the motel did not have a duty to mitigate their damages by abiding by the robbers’ demands and, therefore, the trial court did not abuse its discretion in denying the motel owners’ request for a comparative negligence jury instruction. Intown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 2011 Miss. LEXIS 336 (Miss. 2011).

Where an injured motorist, who was experiencing chest discomfort, pulled his vehicle partly off the highway, but partly obstructed the right-hand lane of travel in violation of Miss. Code Ann. §63-3-903, the motorist’s act was a proximate and contributing cause an accident, and the trial court did not err by allowing the jury to apportion fault. Meka v. Grant Plumbing & Air Conditioning Co., 67 So.3d 18, 2011 Miss. App. LEXIS 402 (Miss. Ct. App. 2011).

Mississippi law does not require apportionment of fault, Miss. Code. Ann. §85-5-7(1), (7), to a plaintiff absent evidence sufficient to show, at least, negligence on the plaintiff’s part, Miss. Code. Ann. §11-7-15. Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 2008 U.S. App. LEXIS 19168 (5th Cir. Miss. 2008).

Summary judgment in favor of a landlord was proper because under Miss. Code Ann. §11-7-15, the tenant’s familiarity with the condition of the slick surface of the carport which caused her to fall and break her ankle constituted contributory negligence, and the landlord could not be contributorily negligent for a condition of which he was unaware. Dulin v. Sowell, 919 So. 2d 1010, 2005 Miss. App. LEXIS 464 (Miss. Ct. App. 2005).

In an action to recover for injuries sustained on a construction site, even if the plaintiff was contributorily negligent in attempting to walk across a dark basement, that would not bar recovery under the comparative negligence statute if the defendant also failed in its obligations to someone in the plaintiff’s status. Jackson v. W. G. Yates & Sons Constr. Co., 1998 Miss. App. LEXIS 827 (Miss. Ct. App. Oct. 13, 1998).

A minor child between the ages of 7 and 14 years is prima facie presumed not to be possessed of sufficient discretion to make him or her guilty of contributory negligence, and thus the defendant who raises the defense of contributory negligence has a greater burden to prove the defense than in a case where the plaintiff is not a minor child. Glorioso v. YMCA, 556 So. 2d 293, 1989 Miss. LEXIS 18 (Miss. 1989).

A loss of consortium action is derivative, and contributory negligence applies, because the action lies on account of injuries to the other spouse. Thus, an award to a wife for loss of consortium should have been reduced by the contributory negligence of her husband. Choctaw, Inc. v. Wichner, 521 So. 2d 878, 1988 Miss. LEXIS 120 (Miss. 1988).

Contributory negligence of plaintiffs’ decedent, if any, would only diminish the amount of damages to be awarded plaintiffs. Norris v. Board of Trustees, 300 So. 2d 913, 1974 Miss. LEXIS 1647 (Miss. 1974).

Where assumption of risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply. Braswell v. Economy Supply Co., 281 So. 2d 669, 1973 Miss. LEXIS 1498 (Miss. 1973).

Where two Mississippi motorists were killed in an automobile collision which occurred in Louisiana, their estates were being administered in Mississippi, and their administratrices had respectively filed in a Mississippi court an action and counterclaim for damages as a consequence of the deaths of the decedents, the issues of liability under both the declaration and counterclaim should have been submitted to the jury by appropriate instructions under the Mississippi comparative negligence statute, despite the fact that the law of Louisiana, where the fatal collision occurred, barred a recovery where contributory negligence is established. Mitchell v. Craft, 211 So. 2d 509, 1968 Miss. LEXIS 1266 (Miss. 1968).

Where the court properly instructed the jury in accord with the Mississippi statute of comparative negligence, it must be assumed that the jury considered the effect of any contributory negligence in reaching the amount of its verdict. Bill Hunter Truck Lines, Inc. v. Jernigan, 384 F.2d 361, 1967 U.S. App. LEXIS 4789 (5th Cir. Miss. 1967).

Code 1942, § 8215 should be construed in a practical manner, and it does not mean that a motorist forced to stop momentarily upon the paved portion of a highway because the vehicle in front of him stopped and oncoming traffic prevented him from passing is guilty of negligence in not immediately driving from the highway onto the shoulder. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

In view of this statute, contributory negligence does not absolutely bar recovery of damages. Arnold Services, Inc. v. Delta Motor Lines, Inc., 325 F.2d 860, 1963 U.S. App. LEXIS 3327 (5th Cir. Miss. 1963).

Where the negligence of the railroad and plaintiffs’ decedent were concurring causes, each being a proximate cause of the accident, the negligence of plaintiffs’ decedent did not bar recovery, but only served to diminish the damages of his next of kin. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

Although contributory negligence is a ground for reduction of damages, it will not bar recovery. Illinois C. R. Co. v. Farris, 259 F.2d 445, 1958 U.S. App. LEXIS 4753 (5th Cir. Miss. 1958).

That driver of pulpwood truck, in which plaintiff was riding, was violating Code 1942, § 8181, by having a portion of the truck on the left side of the highway at the time of colliding with a pickup truck which was coming out of a driveway, would under the comparative negligence statute only constitute contributory negligence which would cause damages to be reduced, and a mere violation of the law in the operation of a motor vehicle would not entitle the opposite party to a peremptory instruction. Winfield v. Magee, 232 Miss. 57, 98 So. 2d 130, 1957 Miss. LEXIS 443 (Miss. 1957).

It is well settled that a child between the ages of 7 and 14 years is prima facie presumed not to be possessed of sufficient discretion to make him guilty of contributory negligence in failing to exercise due care for his own safety. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

Even if the farm equipment mechanic had been guilty of contributory negligence, still if the owner had failed to warn the mechanic of the dangerous condition of the owner’s cotton picker, about which owner knew or should have known, prior to the mechanic’s beginning work thereon, and the mechanic sustained injury while working on the machine, a jury issue was presented in an action by the mechanic against the owner. Cole v. Tullos, 228 Miss. 815, 90 So. 2d 32, 1956 Miss. LEXIS 569 (Miss. 1956).

In an action for personal injuries where the plaintiff’s car ran into defendant’s truck parked on the highway the court did not err in refusing to give an instruction to the defendant that the plaintiff, as a matter of law, was guilty of contributory negligence, as the instruction was not based upon the contributory negligence statute. Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So. 2d 578, 1951 Miss. LEXIS 309 (Miss. 1951).

Master is liable to servant when servant is injured in carrying out negligent order of foreman when danger is not so imminent that no person of ordinary prudence would have encountered it, even under orders, and there is no assumption of risk by servant where master is negligent, and contributory negligence is not bar to a recovery, such negligence being only for proper consideration in mitigation of damages. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Contributory negligence is not a defense to action based on fraud. Reed v. Charping, 207 Miss. 1, 41 So. 2d 11, 1949 Miss. LEXIS 312 (Miss. 1949).

Municipality’s duty to keep the streets in a reasonably safe condition for use by persons exercising reasonable care and caution for their own safety does not imply that contributory negligence of an injured person would bar recovery, for such implication would be in violation of this section [Code 1942, § 1454]. Owens v. Booneville, 206 Miss. 345, 40 So. 2d 158, 1949 Miss. LEXIS 266 (Miss. 1949).

An action in this state by a passenger against a foreign corporation, operating a motor transportation line in this state, to recover for injury sustained in Louisiana, would not be enjoined on the ground that contributory negligence is a complete defense in Louisiana and only a pro tanto defense in this state, since the courts of this state will apply the substantive law of Louisiana, including that of contributory negligence, in the trial of the case in this state. Tri-State Transit Co. v. Mondy, 194 Miss. 714, 12 So. 2d 920, 1943 Miss. LEXIS 85 (Miss. 1943).

The fact that the negligence of the plaintiff in a negligence action against a municipality contributed to the accident would not wholly bar him from recovery under this section [Code 1942, § 1454]. Birdsong v. Clarksdale, 191 Miss. 532, 3 So. 2d 827, 1941 Miss. LEXIS 169 (Miss. 1941).

Under this statute [Code 1942, § 1454] contributory negligence is not an absolute defense. C. C. Moore Constr. Co. v. Hayes, 119 F.2d 742, 1941 U.S. App. LEXIS 3825 (5th Cir. Miss.), cert. denied, 314 U.S. 642, 62 S. Ct. 82, 86 L. Ed. 515, 1941 U.S. LEXIS 445 (U.S. 1941).

Under this statute [Code 1942, § 1454] contributory negligence is not a defense to suits by employees. Montgomery Ward & Co. v. Lindsey, 104 F.2d 882, 1939 U.S. App. LEXIS 4249 (5th Cir. Miss. 1939).

Contributory negligence will not bar recovery, irrespective of degree. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

Under this provision [Code 1942, § 1454] contributory negligence is not a total defense. Southern Kraft Corp. v. Parnell, 65 F.2d 785, 1933 U.S. App. LEXIS 3157 (5th Cir. Miss. 1933).

Damages on account of unsafe place to work are permissible notwithstanding contributory negligence. Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857, 1917 Miss. LEXIS 164 (Miss. 1917).

Circumstance under which a minor is not guilty of contributory negligence. Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143, 1917 Miss. LEXIS 199 (Miss. 1917).

Trial court properly granted a limited liability company (LLC) summary judgment in wrongful death beneficiaries’ action because the LLC could act only through a pilot since he was its sole member, and the beneficiaries were barred from recovering for the pilot’s negligence; if the pilot had survived the crash, he would have been unable to recover from the LLC for his own negligence, and the beneficiaries stood in the pilot’s shoes and also could not recover for his negligence. Howarth v. M&H Ventures, LLC, 237 So.3d 107, 2017 Miss. LEXIS 429 (Miss. 2017).

4. Pleading and proof.

One not pleading contributory negligence is not entitled to an instruction thereon, though the proof shows contributory negligence sufficiently for consideration by the jury. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Contributory negligence of the person injured or killed is an affirmative defense which must be pleaded and proved, and if a defendant wishes to have a jury instructed with reference thereto, he should request such an instruction. Jefferson v. Pinson, 219 Miss. 427, 69 So. 2d 234, 1954 Miss. LEXIS 350 (Miss. 1954).

Under Mississippi law a defendant may not have the advantage of this section [Code 1942, § 1454] unless he pleads contributory negligence and requests an instruction on comparative negligence and diminution of damages. Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

A defendant neither pleading nor requesting instruction as to contributory negligence cannot rely on contributory negligence as a defense on appeal. Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 1925 Miss. LEXIS 162 (Miss. 1925).

A defense of contributory negligence must be specially pleaded and the burden of proving same is on the defendant. Yazoo & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393, 1925 Miss. LEXIS 5 (Miss. 1925); Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

5. Effect of negligence of defendant.

Plaintiff may still recover from defendant whose negligence proximately caused or contributed to plaintiff’s injury even though plaintiff was himself negligent. Blackmon v. Payne, 510 So. 2d 483, 1987 Miss. LEXIS 2522 (Miss. 1987).

Although a plaintiff may be guilty of negligence he may still recover from a defendant who is guilty of negligence which proximately caused or contributed to plaintiff’s injury, but such recovery may not be had where plaintiff’s negligence is the sale proximate cause of the injury. Evans v. Journeay, 488 So. 2d 797, 1986 Miss. LEXIS 2463 (Miss. 1986).

A defendant in an automobile collision case would not be absolved from liability altogether, if both parties were negligent equally, but plaintiff’s damages would be reduced by 50 percent. First Nat'l Bank v. Mississippi State Highway Com., 227 So. 2d 118, 1969 Miss. LEXIS 1336 (Miss. 1969).

Gross negligence of plaintiff in jumping from train while it was running at rate of speed which he judged to be fifteen miles per hour instead of remaining on train until carried to next station is not bar to recovery of damages for injuries sustained, if negligence of defendant railroad, or its violation of duty owed to him in starting train before he had reasonable time to get off, was continuing as a contributing cause of his jumping off moving train and sustaining such injuries. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

A verdict should have been directed against the driver of an automobile, the windshield of which was covered with snow except for a small place which provided only vision straight ahead, who stopped before going onto a highway and then proceeded to run into a vehicle traveling the highway after the other driver had sounded his horn within 300 feet of the intersection upon seeing the stopped car. Trewolla v. Garrett, 200 Miss. 563, 27 So. 2d 887, 1946 Miss. LEXIS 323 (Miss. 1946).

This statute [Code 1942, § 1454] had no application to sustain recovery against a railroad for the death of a truck driver resulting from the collision of his truck with an unlighted railroad car standing on the railroad crossing where the negligence of the driver was the sole proximate cause of his death. Mississippi E. R. Co. v. Summers, 194 Miss. 179, 11 So. 2d 429, 1943 Miss. LEXIS 21 (Miss. 1943).

Conduct of plaintiff’s gin foreman in failing to extinguish grass fire adjacent to plaintiff’s premises, which had been started on railroad premises and negligently left without complete extinguishment by railroad employees, constituted contributory negligence which would not bar recovery by the owner of the gin premises for destruction of the gin in view of this section [Code 1942, § 1454]. Yazoo & M. V. R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 1940 Miss. LEXIS 56 (Miss. 1940).

Under this section [Code 1942, § 1454] contributory negligence does not bar the right to recover if negligence chargeable against the defendant also proximately contributed thereto. T. A. Pittman, Inc. v. La Fontaine, 68 F.2d 469, 1934 U.S. App. LEXIS 4883 (5th Cir. Miss. 1934).

Notwithstanding the statute requiring auto drivers in approaching a crossing to stop, a driver or person who fails to observe this law is not precluded from recovering damages where negligence of the R. Co. is the proximate cause of the damage. Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 1925 Miss. LEXIS 162 (Miss. 1925).

Negligence of the plaintiff in driving upon a railroad track which contributed to his injury will not bar his recovery where the negligence of the defendant railroad company was a proximate cause of the injury. Davis v. Elzey, 126 Miss. 789, 89 So. 666 (1921).

Contributory negligence is no bar where defendant contributed to the injury. Tallahala Lumber Co. v. Holliman, 125 Miss. 308, 87 So. 661, 1921 Miss. LEXIS 125 (Miss. 1921).

Where injury to employee was due solely to an obvious hazard incident to the employment, employer was not liable and there could be no recovery. Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15, 1920 Miss. LEXIS 125 (Miss. 1920).

However, where there is no negligence shown by the defendant and contributory negligence is the sole cause of the injury, there can be no recovery. Ragland v. Native Lumber Co., 117 Miss. 602, 78 So. 542, 1918 Miss. LEXIS 202 (Miss. 1918).

Fact that plaintiff was negligent in fighting a grass fire, set out wrongfully by the railroad company, does not exonerate the company from liability. Illinois C. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773, 1915 Miss. LEXIS 191 (Miss. 1915).

Where the killing occurred within the corporate limits of a city and the proximate cause was the speed of train exceeding six miles per hour, the defendant is responsible for at least part of the damages. Illinois C. R. Co. v. Handy, 108 Miss. 421, 66 So. 783, 1914 Miss. LEXIS 210 (Miss. 1914).

6. Extent of recovery.

A jury has the duty and prerogative to make a decision as to contributory negligence and to reduce the award of damages, if any, in accordance with any contributory negligence. City of Jackson v. Copeland, 490 So. 2d 834, 1986 Miss. LEXIS 2483 (Miss. 1986).

Plaintiff, who sustained permanent injuries in diving into extremely shallow water from a negligently maintained municipal pier, was guilty of contributory negligence in not first determining the depth of the water, and the jury should have diminished his damages in proportion of the amount that his negligence contributed to the total negligence. Dendy v. Pascagoula, 193 So. 2d 559, 1967 Miss. LEXIS 1548 (Miss. 1967).

Where the negligent acts of two persons precipitate an emergency followed by an accident, and one of the parties is injured as a direct result of the prior acts of negligence of both, the other party is liable in damages to the injured party in proportion to his acts of negligence which contributed to the accident under the same rule as if the injury were caused by his negligence without an intervening emergency. Peel v. Gulf Transport Co., 252 Miss. 797, 174 So. 2d 377, 1965 Miss. LEXIS 1148 (Miss. 1965).

In an action against a city on behalf of an eight-year-old child injured when he fell into a drainage ditch, even if the plaintiff could have been guilty of contributory negligence, this was not a bar to recovery, but could be considered by the jury in determining the amount of damages, which presumably the jury did in arriving at the amount of the verdict. Shows v. Hattiesburg, 231 Miss. 648, 97 So. 2d 366, 1957 Miss. LEXIS 549 (Miss. 1957).

Since under the defendant’s own admission he was guilty of negligence in proceeding into a through street without continuing to look for the hazard of plaintiff’s approaching automobile, plaintiff was entitled to a peremptory instruction, and even though plaintiff may have been guilty of contributory negligence there would be an issue for the jury and, after plaintiff had been found guilty of contributory negligence, it would only diminish the amount of damages to be awarded to him. Wells v. Bennett, 229 Miss. 135, 90 So. 2d 199, 1956 Miss. LEXIS 594 (Miss. 1956).

In an action for injury sustained when a plaintiff’s coal truck struck defendant’s pick-up truck which was making a left turn in front of plaintiff’s vehicle to enter an intersecting county road, even if plaintiff was contributorily negligent in driving at an excessive speed while visibility was poor, and failing to blow his horn, and in failing to slow down as he approached the intersection, under this section [Code 1942, § 1454] he was not barred from recovery, although the amount of damages which he might otherwise have been entitled to recover would be diminished in proportion to the amount of negligence, if any, attributable to him. Cobb v. Williams, 228 Miss. 807, 90 So. 2d 17, 1956 Miss. LEXIS 568 (Miss. 1956).

Plaintiff’s negligence can be urged in mitigation of damages but not as bar to recovery, unless constituting sole, proximate cause. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

Even though a mechanic’s helper, who died as result of a can of gasoline used in priming an engine being thrown on him after the gasoline therein had become ignited when the engine backfired, was contributorily negligent in choosing the particular can and in standing in a dangerous position, the jury could properly reduce the damages, if it should find that the employer was liable in negligently failing to furnish a safe priming can. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

City’s negligence in construction and maintenance of streets is to be determined from its own conduct, without regard to whether the injured person was using reasonable care, and its liability becomes fixed when such negligence becomes the proximate cause of the injury; the negligence of the injured person becomes a relevant factor under this section [Code 1942, § 1454] as to the extent of such liability. City of Meridian v. King, 194 Miss. 162, 11 So. 2d 205, 11 So. 2d 830, 1942 Miss. LEXIS 168 (Miss. 1943).

If negligence of motorist in failing to have his automobile equipped with rear red light contributes to rear end collision, motorist is liable under concurrent negligence statute for his proportion of damages sustained by motorist who ran into automobile. Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732, 1935 Miss. LEXIS 162 (Miss. 1935).

In actions for personal injuries, or for death resulting therefrom, contributory negligence is not a bar to recovery, but the damages are diminished in proportion to the amount of negligence attributable to the person injured or killed. Louisville & N. R. Co. v. Wickton, 55 F.2d 642, 1932 U.S. App. LEXIS 3779 (5th Cir. Miss. 1932).

Where a city maintains a zoo as a public park with wild and dangerous animals therein, it is responsible for damages caused by such animals, due to the negligence of its officers and agents, to persons visiting the park; but damages for the injury should be reduced on account of contributory negligence of the party injured. Byrnes v. Jackson, 140 Miss. 656, 105 So. 861, 1925 Miss. LEXIS 302 (Miss. 1925).

Contributory negligence of a servant who is injured goes to diminish his damages. Hardy v. Tuner-Farber-Love Co., 136 Miss. 355, 101 So. 489, 1924 Miss. LEXIS 142 (Miss. 1924).

Contributory negligence is no longer a defense for personal injuries, but goes only to the amount of damages. Mississippi C. R. Co. v. Lott, 118 Miss. 816, 80 So. 277, 1918 Miss. LEXIS 136 (Miss. 1918), cert. denied, 249 U.S. 616, 39 S. Ct. 391, 63 L. Ed. 803, 1919 U.S. LEXIS 2042 (U.S. 1919); Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

Under this statute [Code 1942, § 1454] contributory negligence does not bar a recovery but will cause a reduction of damages for the injury. Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824, 1913 Miss. LEXIS 241 (Miss. 1913); Tombigbee Mill & Lumber Co. v. Hollingsworth, 162 F.2d 763, 1947 U.S. App. LEXIS 2188 (5th Cir. Miss.), cert. denied, 332 U.S. 824, 68 S. Ct. 165, 92 L. Ed. 399, 1947 U.S. LEXIS 1630 (U.S. 1947).

7. Evidence.

In a product liability suit, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence under Miss. Code Ann. §11-7-15. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

Where an employee was mounting a moving locomotive when a foot slipped due to mud, causing employee to fall and sustain serious leg injuries, the railroad was liable to the employee for damages; the trial court did not err by refusing to instruct the jury on comparative negligence under Miss. Code Ann. §11-7-15, and the jury’s rejection of the claim was not against the weight of the evidence, and while the employee testified that employee did not check his boots prior to mounting the locomotive, the employee also testified on acting in compliance with the railroad’s safety rules. Canadian Nat'l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084, 2007 Miss. LEXIS 208 (Miss. 2007).

Court’s finding of contributory negligence on the part of plaintiff was proper where defendant bus driver testified that he came to a complete stop at the stop sign, he looked both ways for oncoming traffic before entering the intersection, both parties had a clear unobstructed view of the intersection as they approached from their respective directions, and defendant’s bus was hit by plaintiff’s truck, thus indicating a lack of evasive action on the part of plaintiff. Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So. 2d 57, 2006 Miss. LEXIS 50 (Miss. 2006).

The jury may not reduce plaintiff’s damages where the evidence fails to prove contributory negligence. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Evidence warranted jury in automobile collision case in finding negligence and contributory negligence. Hawkins v. Hillman, 245 Miss. 385, 149 So. 2d 17, 1963 Miss. LEXIS 526 (Miss. 1963).

In an action for injuries sustained by plaintiff who was struck by an automobile while standing on the shoulder of a highway waiting for a ride, a finding that the plaintiff had stepped into the highway in front of an automobile was not supported by evidence and therefore did not warrant the jury in employing the comparative negligence doctrine, and a new trial would be granted on the issue of damages alone when all the facts should be presented to the jury on the question of negligence and the jury will have the right to apportion the damages under the comparative negligence statute. Vaughan v. Bollis, 221 Miss. 589, 73 So. 2d 160, 1954 Miss. LEXIS 567 (Miss. 1954).

Evidence that excessive speed of train directly and proximately contributed to pedestrian’s death, in that pedestrian was unable to get out of the way, supported verdict allowing recovery, notwithstanding evidence of pedestrian’s contributory negligence. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

In trial of damage issue after judgment was reversed as to amount of damages and was remanded for trial on that issue only, evidence as to negligence of defendant and contributory negligence of plaintiff held admissible, since such negligence entered into fixation of damages under statute. Mississippi C. R. Co. v. Smith, 176 Miss. 306, 168 So. 604, 1936 Miss. LEXIS 129 (Miss. 1936).

8. Questions for jury.

Extent to which negligence defendant may escape liability by arguing that condition causing damage to plaintiff was open and obvious is question for jury. Bell v. Bay St. Louis, 467 So. 2d 657, 1985 Miss. LEXIS 2020 (Miss. 1985).

In accordance with the provisions of this section [Code 1942, § 1454], contributory negligence on the part of a pedestrian struck and killed by an automobile is not a bar to a recovery if there is negligence proved on the part of the defendant motorist, but all questions of contributory negligence or comparative negligence should be submitted to the jury for the jury’s determination where there is such a question. Hogan v. Cunningham, 252 Miss. 216, 172 So. 2d 408, 1965 Miss. LEXIS 1092 (Miss. 1965).

The right under this section [Code 1942, § 1454] to apportion damages is for the jury, in the light of the circumstances and reasonable bounds. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

In bowler’s action to recover for damages for injuries sustained in fall allegedly due to the negligence of the bowling establishment proprietor, questions as to assumption of risks and contributory negligence should have gone to jury under proper instructions. Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So. 2d 558, 1962 Miss. LEXIS 543 (Miss. 1962).

Where a judgment in an action arising out of an intersectional motor vehicle collision was reversed and remanded for retrial on the question of the amount of damages alone, upon the retrial all the facts should be presented to the jury on the question of the negligence of all parties, and a jury would have the right to apportion damages under the comparative negligence statute. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

On retrial of personal injury action on issue of damages only, the evidence should not be limited to the question of damages, but all of the facts should be presented for the jury’s consideration as to the negligence of all parties, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960).

Although motorist’s failure to stop before attempting to cross railroad tracks was negligence contributing to the collision with a railroad switch engine, trial court properly refused railroad’s requested peremptory instruction where the evidence presented questions for the jury as to whether the proximate cause of the collision was failure of the railroad to ring the bell on its engine, or the negligence of the railroad’s engineer in failing to stop the engine when the engineer saw that motorist’s automobile was not going to stop. New Orleans & N. R. Co. v. Ready, 238 Miss. 199, 118 So. 2d 185, 1960 Miss. LEXIS 396 (Miss. 1960).

In an action against a railroad and its engineer for damages to a tractor trailer caused by a crossing collision, where the evidence established that the railroad and its engineer was liable as a matter of law, but also raised jury questions as to the contributory negligence, if any, of the truck driver, whether under the comparative negligence statute plaintiff’s damages sustained should have been diminished, whether the negligence of the engineer was the sole, proximate cause of the collision, and the applicability of the last clear chance doctrine, the case was reversed and remanded for submission to a jury on issues of damages alone. New Orleans & N. R. Co. v. Dixie Highway Express, Inc., 230 Miss. 92, 92 So. 2d 455, 1957 Miss. LEXIS 348 (Miss. 1957).

In a death action arising out of a collision between decedent’s truck and defendant’s train at a railroad crossing, the conflicting testimony as to the speed of the train and as to the giving of statutory signals, when considered in connection with the alleged obstruction of decedent’s view by a packing shed, depot building, and two box cars along the west side of the packing shed, all tending to show that the decedent could not have seen the train by exercising reasonable care until he was in the act of crossing the track, presented an issue for the jury. Illinois C. R. Co. v. Sanders, 229 Miss. 139, 90 So. 2d 366, 1956 Miss. LEXIS 595 (Miss. 1956), overruled, Sheffield v. Sheffield, 405 So. 2d 1314, 1981 Miss. LEXIS 2053 (Miss. 1981).

It is for the jury to decide whether it will diminish the damages in proportion to the amount of negligence attributable to the plaintiff when under all the testimony and circumstances thereby shown a part of the negligence contributing to plaintiff’s injuries was attributable to his own negligence, even if no instruction to this effect is requested by either party. Mutual Life Ins. Co. v. Rather, 221 Miss. 527, 73 So. 2d 163, 1954 Miss. LEXIS 559 (Miss. 1954).

In an action by a bicyclist against a cab company for injuries suffered when he jumped off the bicycle to avoid being crushed by the cab against a van type truck ahead, the question of excessive speed of the cab and the proximate cause of the negligence was for the jury. Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So. 2d 356, 1951 Miss. LEXIS 412 (Miss. 1951).

Where the place of work was not obviously safe, it was for the jury to determine whether the method was safe which an employee chose in the performance of an assigned task. Tombigbee Mill & Lumber Co. v. Hollingsworth, 162 F.2d 763, 1947 U.S. App. LEXIS 2188 (5th Cir. Miss.), cert. denied, 332 U.S. 824, 68 S. Ct. 165, 92 L. Ed. 399, 1947 U.S. LEXIS 1630 (U.S. 1947).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high powered wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power, or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

In an action by an employee against his employer for injuries sustained by reason of an explosion resulting from the use of gasoline, mistakenly thought to be kerosene, in starting a fire for the purpose of heating grease guns and warming the employees in connection with construction of a highway, questions with respect to the employer’s duty to furnish a reasonably safe place for its employees to work, reasonably safe instrumentalities to work with, and a reasonably safe method and rules under which to work, were for the jury, the comparative negligence statute answering to some extent the employer’s argument that it was entitled to a directed verdict. Curry & Turner Const. Co. v. Bryan, 184 Miss. 44, 185 So. 256, 1939 Miss. LEXIS 18 (Miss. 1939).

In an action against a railroad for injuries sustained in a railroad crossing collision by an automobile owner while riding as a passenger in his automobile driven by another with his permission and in his interests, questions of the negligence of the railroad in failing to give statutory signals at crossings and the negligence of the driver of the automobile, imputable to the owner, were for the jury, since under this section [Code 1942, § 1454] it is the duty of the jury to compare and allocate the negligence of the parties under instruction of the court. Flynn v. Kurn, 183 Miss. 413, 184 So. 160, 1938 Miss. LEXIS 256 (Miss. 1938).

Statute imposing duty of diminishing damages because of contributory negligence should be observed by juries. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Whether motorist whose automobile struck a gondolo car, spotted by railroad employees so that it extended partly across public highway, was contributorily negligent held for jury. Magers v. Okolona, H. & C. C. R. Co., 174 Miss. 860, 165 So. 416, 1936 Miss. LEXIS 201 (Miss. 1936).

Liability of railroad for death of motorist in crossing collision and question of damages in view of deceased’s contributory negligence were for the jury. Louisville & N. R. Co. v. Wickton, 55 F.2d 642, 1932 U.S. App. LEXIS 3779 (5th Cir. Miss. 1932).

Negligence of town in respect to injury to pedestrian stumbling on stake on sidewalk held for jury. Gould v. Newton, 157 Miss. 111, 126 So. 826, 1930 Miss. LEXIS 239 (Miss. 1930).

9. Instructions.

Finding against the operator in an action for negligence brought by the driver and passenger was proper because a jury instruction improperly stated that even if the jury found that the operator’s speed was excessive and that the excessive speed was the proximate cause of the accident, that the operator could avoid culpability due to the intervening negligence of another person. Denham v. Holmes, 60 So.3d 773, 2011 Miss. LEXIS 192 (Miss. 2011).

Denial of a driver and passenger’s motion for a new trial in their negligence action after the jury found in favor of the other driver was improper because the driver and passenger were denied their right to a fair trial. In part, Mississippi was a pure comparative-negligence state and because a jury instruction implied contributory negligence, it was a misstatement of the law and was potentially misleading to the jury. Denham v. Holmes, 60 So.3d 803, 2010 Miss. App. LEXIS 148 (Miss. Ct. App. 2010), aff'd on other grounds, 60 So.3d 773, 2011 Miss. LEXIS 192 (Miss. 2011).

In a suicide wrongful death case against a doctor, plaintiff waived her claim that the court should have given the jury an apportionment instruction due to the fact that the doctor put forth evidence that the decedent’s husband and other family members caused the decedent to commit suicide because plaintiff stated in a discovery response that no heir had exacerbated the decedent’s mental illness, and plaintiff provided no other theory as to how an heir could be held partially responsible for the suicide. Young v. Guild, 2008 Miss. LEXIS 548 (Miss. Oct. 30, 2008), sub. op., op. withdrawn, 7 So.3d 251, 2009 Miss. LEXIS 193 (Miss. 2009).

When a comparative negligence instruction is given, the jury should be instructed as to an alternative format for the rendering of a comparative negligence verdict which provides for an apportionment of fault or damages if both parties are found to be negligent. Burton v. Barnett, 615 So. 2d 580, 1993 Miss. LEXIS 90 (Miss. 1993).

When there is evidence to support a comparative negligence instruction, it is not error to give the instruction even though each party may contend that the other was entirely at fault. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

Instruction that would allow jury to find that plaintiff was independent intervening cause of accident, and therefore sole proximate cause, of accident merely because she was involved in accident, no matter how negligent defendant might have been, was error. Blackmon v. Payne, 510 So. 2d 483, 1987 Miss. LEXIS 2522 (Miss. 1987).

The giving of instruction on contributory negligence without stating the facts necessary to constitute contributory negligence is, unless cured by other instructions given, reversible error. City of Jackson v. Copeland, 490 So. 2d 834, 1986 Miss. LEXIS 2483 (Miss. 1986).

A jury instruction in an automobile collision case for the defendant to the effect that if the jury finds, after considering all of the evidence, that the evidence is evenly balanced for the defendant and for a plaintiff, they must find for the defendant, was erroneously granted. First Nat'l Bank v. Mississippi State Highway Com., 227 So. 2d 118, 1969 Miss. LEXIS 1336 (Miss. 1969).

An instruction is erroneous which would cut off any recovery by the plaintiff as a result of contributory negligence on his part. Bozeman v. Tucker, 203 So. 2d 795, 1967 Miss. LEXIS 1393 (Miss. 1967).

Instructions which fail to allow the jury the right to apply the comparative negligence statute are defective and erroneous. Bozeman v. Tucker, 203 So. 2d 795, 1967 Miss. LEXIS 1393 (Miss. 1967).

In action brought by house mover against electric company for injuries he received from coming into contact with live power line, an instruction for defendant that if jury believed plaintiff knew and appreciated dangers existing in connection with overhead power line and voluntarily placed himself in a position to come in contract with it he had assumed the risks incident thereto, including any negligence of defendant, defendant would not be liable for plaintiff’s injuries, was erroneously granted; for it prevented application of comparative negligence doctrine by jury and eliminated distinction between assumption of risk and contributory negligence, where there was evidence in record to the effect that an employee of defendant told plaintiff the wire was harmless and plaintiff should take hold of it and lift it up. Crouch v. Mississippi Power & Light Co., 193 So. 2d 144, 1966 Miss. LEXIS 1283, 1967 Miss. LEXIS 1546 (Miss. 1966).

To instruct the jury for the plaintiff in an automobile collision action that the jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

An instruction for the defendant in a wrongful death action that if the jury believes from the evidence that the injury and subsequent death of the plaintiff was proximately caused by the negligence, if any, of the plaintiff, then the jury should return a verdict for the defendant, is an erroneous instruction and in conflict with the provisions of this section [Code 1942, § 1454]. Hogan v. Cunningham, 252 Miss. 216, 172 So. 2d 408, 1965 Miss. LEXIS 1092 (Miss. 1965).

Although the defendant in a wrongful death action did not ask for or receive an instruction on contributory negligence, the jury had the right to apply the comparative negligence statute without an instruction to that effect. Winstead v. Hall, 251 Miss. 800, 171 So. 2d 354, 1965 Miss. LEXIS 904 (Miss. 1965).

Where facts constituting contributory negligence are pleaded and proved, a request to instruct on contributory negligence is not essential to enable the jury to consider it in assessing damages. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

To instruct jury that contributory negligence will defeat recovery is erroneous under this provision. Arnold Services, Inc. v. Delta Motor Lines, Inc., 325 F.2d 860, 1963 U.S. App. LEXIS 3327 (5th Cir. Miss. 1963).

Instruction in action for alleged negligent installation of machine that jury should find for defendant if they found that the machine was not being handled properly by plaintiff, held erroneous. Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So. 2d 847, 1962 Miss. LEXIS 418 (Miss. 1962).

In an automobile collision case, where the testimony as to the negligence of the respective parties, the drivers of the vehicles, was sharply conflicting, the court was warranted in giving an instruction on contributory negligence. Ferguson v. Denton, 239 Miss. 591, 124 So. 2d 279, 1960 Miss. LEXIS 327 (Miss. 1960).

The trial court was warranted in giving to the defendants a comparative negligence instruction in an action arising out of an intersectional motor vehicle collision. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

An instruction in an action by one who slipped on a wet floor in a store entrance that plaintiff assumed such risks as were obvious to a person of ordinary intelligence, and that if plaintiff saw, knew and appreciated the danger, or should have done so by the exercise of reasonable care, the finding should be for the defendant is erroneous as eliminating the distinction between assumption of risk and contributory negligence and as denying the jury’s right to weigh the respective negligence, if any, of the parties. Wallace v. J. C. Penney Co., 236 Miss. 367, 109 So. 2d 876, 1959 Miss. LEXIS 328 (Miss. 1959).

In an action against an automobile driver for injuries sustained by a bicyclist, instructions to the jury that the plaintiff could not recover if he did not keep his bicycle under control, failed to keep a proper lookout for others on the highway and did not use due care to avoid placing himself in a place of danger so as to create emergency, failed to take into account the provisions of comparative negligence statutes which provide that the plaintiff’s contributory negligence shall not bar a recovery, if the proof showed that the defendant was negligent and that the defendant’s negligence was the proximate contributing cause to the plaintiff’s injuries. Rivers v. Turner, 223 Miss. 673, 78 So. 2d 903, 1955 Miss. LEXIS 422 (Miss. 1955).

In an action for damages for personal injury alleged to have been sustained as the result of stepping into a hole or depression in a public walkway in which the defendant had laid its gas main, refusal of plaintiff’s instruction that contributory negligence of the plaintiff shall not bar recovery was error, even though the instruction did not contain a direction for diminishing damages in accordance with this section [Code 1942, § 1454]. Mason v. United Gas Corp., 222 Miss. 311, 75 So. 2d 736, 1954 Miss. LEXIS 647 (Miss. 1954).

In an action for damages sustained in an automobile collision an instruction to the jury to the effect that recovery could not be had if both parties were equally negligent and their negligence contributed equally to the proximate cause of the collision, was in violation of this section [Code 1942, § 1454]. Carruth v. Griffis, 220 Miss. 541, 71 So. 2d 478, 1954 Miss. LEXIS 469 (Miss. 1954).

If the defendant in a negligence suit had desired to avail himself of the statutory right to have the damages diminished in proportion to negligence, if any, of the plaintiff, it was his duty to request the court to so instruct the jury. Mason v. United Gas Corp., 222 Miss. 311, 75 So. 2d 736, 1954 Miss. LEXIS 647 (Miss. 1954); Alabama & V. R. Co. v. McGee, 117 Miss. 370, 78 So. 296, 1918 Miss. LEXIS 187 (Miss. 1918); Ouille v. Saliba, 246 Miss. 365, 149 So. 2d 468, 1963 Miss. LEXIS 450 (Miss. 1963).

An instruction to the jury as to age, intelligence, knowledge, experience and discretion of a child should be confined to the time of accident, not to the time of the trial. Johnson v. Howell, 213 Miss. 195, 56 So. 2d 491, 1952 Miss. LEXIS 349 (Miss. 1952).

An instruction to the jury that the plaintiff must prove the charge of negligence by a preponderance of credible evidence and that the jury find the evidence touching the charge of negligence against the defendant to be evenly balanced, after fairly considering it, it was their duty to return a verdict for the defendant, was conceptually correct where it was limited by another instruction which limited the above to element of negligence. Evans v. Jackson City Lines, Inc., 212 Miss. 895, 56 So. 2d 80, 1952 Miss. LEXIS 324 (Miss. 1952).

Instructions which are fundamentally in violation of this statute [Code 1942, § 1454] by absolving defendant from liability for negligence if plaintiff is also negligent are substantially erroneous and will not be cured by other instructions in record. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

Instruction that if jury believed from evidence that plaintiff and defendant were equally negligent, jury should find for defendant, is erroneous, for if both were negligent equally, defendant would not be absolved from liability altogether, but plaintiff’s damages would be reduced by fifty per cent. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In action for damages to automobile arising out of ramming by truck, instruction that even if jury believed from preponderance of evidence that defendant was guilty of negligence, if jury also believed that plaintiff was negligent, jury should find for defendant or diminish plaintiff’s actual damages in such proportion as plaintiff’s negligence may have contributed to accident is erroneous and should not have been given. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In employee’s suit against employer for personal injuries where evidence disclosed that injury resulted from negligence of fellow servants brought about by the direct order of the foreman, instruction eliminating entirely the question of whether or not the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and tending to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action, was error. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Speed of train when plaintiff, who had boarded train to assist passenger with luggage, alighted, has bearing in action for injuries sustained in getting off train only on question of whether railroad company is entitled to have jury instructed, as a matter of law, that plaintiff was guilty of negligence mitigating damages. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

In action for injuries resulting from automobile collision at intersection of cross road with through traffic lane, failure to give a comparative negligence instruction on behalf of plaintiff is not erroneous when instruction was not requested and plaintiff predicated liability on finding that defendant was negligent and defendant’s negligence was the sole, proximate cause of plaintiff’s injuries. Davidian v. Wendell, 37 So. 2d 570 (Miss. 1948).

In action for death of child caused by negligent act of defendant, an instruction authorizing jury to take into consideration “any negligence on the part of the deceased child” is properly refused as the instruction fails to set forth elements of such negligence, if any, and its proximate contribution to injuries. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

Under Mississippi law a defendant may not have the advantage of this section [Code 1942, § 1454] unless he pleads contributory negligence and requests an instruction on comparative negligence and diminution of damages. Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

The trial court could not voluntarily instruct the jury to apportion damages where the defendant did not request that the jury consider his rights in the matter of comparative negligence. Robinson v. Colotta, 199 Miss. 800, 26 So. 2d 66, 1946 Miss. LEXIS 248 (Miss. 1946).

Where contributory negligence on the part of plaintiff which contributed to the accident is shown, and the defendant has properly invoked the comparative negligence statute, it is reversible error for the trial court to instruct the jury, in effect, that they may disregard the statute. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Instructions for defendant in personal injury action that if the jury should find that both plaintiff and defendant were guilty of negligence, proximately causing the accident or proximately contributing to the cause of such accident, and the jury should return any verdict for the plaintiff, then under their oath the jury must lessen any damages, if any, awarded to the plaintiff to the amount of negligence attributable to the plaintiff, was not reversible error, although the court might better have followed the unambiguous language of this section [Code 1942, § 1454]. Clary v. Breyer, 194 Miss. 612, 13 So. 2d 633, 1943 Miss. LEXIS 106 (Miss. 1943).

In action against truck owner for death of truck driver caused by flat tire on truck, instruction that driver’s contributory negligence in driving truck after one tire had been repaired after blowout would not bar recovery, held not erroneous. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

Plaintiff’s instructions authorizing recovery despite contributory negligence and assessment of full damages in event of finding for plaintiff held violative of statutory requirement for proportionate diminution of damages. Graves v. Johnson, 179 Miss. 465, 176 So. 256, 1937 Miss. LEXIS 49 (Miss. 1937).

In view of this section [Code 1942, § 1454], automobile owner held not entitled to more than instruction directing jury to consider passenger’s contributory negligence. Watson v. Holiman, 169 Miss. 585, 153 So. 669, 1934 Miss. LEXIS 68 (Miss. 1934).

Instruction permitting jury to consider plaintiff’s contributory negligence, if any, in diminution of damages, where not pleaded, if error, held harmless where jury found plaintiff’s negligence was sole proximate cause of injury. White v. Weitz, 169 Miss. 102, 152 So. 484, 1934 Miss. LEXIS 9 (Miss. 1934).

That each motorist claimed collision was caused by the other’s negligence did not render instruction based on comparative negligence statute erroneous. Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356, 1929 Miss. LEXIS 288 (Miss. 1929).

This statute [Code 1942, § 1454] makes it proper to instruct the jury that they should apportion the damages. Hudson v. Louisville & N. R. Co., 30 F.2d 391, 1929 U.S. App. LEXIS 2415 (5th Cir. Miss. 1929).

Instruction based on comparative negligence statute held not erroneous because not instructing jury to diminish damages in proportion to negligence of plaintiff. Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356, 1929 Miss. LEXIS 288 (Miss. 1929); White v. Chicago Southern Transp. Co., 226 Miss. 294, 84 So. 2d 161, 1955 Miss. LEXIS 633 (Miss. 1955).

Instruction that contributory negligence of person in collision between automobile and train would not bar recovery held not erroneous, when considered with instructions as a whole. Gulf & S. I. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345, 1928 Miss. LEXIS 182 (Miss. 1928).

By reason of this provision, Hemingway’s Code 1917, § 502, it is proper to refuse a charge that a defendant is not liable if the plaintiff is guilty of contributory negligence. Reynolds-West Lumber Co. v. Kellum, 19 F.2d 72, 1927 U.S. App. LEXIS 2188 (5th Cir. Miss. 1927).

Unless the speeding of the automobile was the sole cause of the injury complained of, an instruction that if the speed exceeded ten miles per hour approaching defective bridge the plaintiff could not be allowed to recover, is erroneous. Dent v. Mendenhall, 139 Miss. 271, 104 So. 82, 1925 Miss. LEXIS 137 (Miss. 1925).

An instance of erroneous instruction as to diminution of damages. Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187, 1923 Miss. LEXIS 97 (Miss. 1923).

An instance of an erroneous instruction with reference to comparative negligence contributing to the injury. Yazoo & M. V. R. Co. v. Mullins, 125 Miss. 242, 87 So. 490, 1921 Miss. LEXIS 112 (Miss. 1921).

A jury may be instructed that mere contributory negligence does not bar a recovery of damages for death. Illinois C. R. Co. v. Archer, 113 Miss. 158, 74 So. 135, 1916 Miss. LEXIS 37 (Miss. 1916).

A party to the suit desiring that the jury be instructed as to the effect of contributory negligence must ask such instruction. Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459, 1914 Miss. LEXIS 279 (Miss. 1915).

10. — Peremptory instruction.

The trial court properly denied a peremptory instruction to defendant power company in an action by plaintiff injured when his television antenna, which he was negligently handling, came in contact with a high voltage line, where there was a question of fact as to whether defendant should have isolated, insulated, or guarded its lines and as to whether it should have issued a warning. Evans v. State Farm Fire & Casualty Co., 336 So. 2d 753, 1976 Miss. LEXIS 1524 (Miss. 1976).

Where a car collision was caused when the driver of a commercial vehicle swerved to avoid hitting an unknown driver, reasonable minds could have differed as to liability, and the jury’s verdict for defendant driver and his employer was supported by substantial evidence; the trial court erred by granting the plaintiff a new trial and ordering that the new jury be peremptorily instructed that defendant driver was negligent as a matter of law. White v. Stewman, 932 So. 2d 27, 2006 Miss. LEXIS 315 (Miss. 2006).

A peremptory instruction should have been granted in an action against an employer by an employee who was injured when a steel rim sprung out and struck him as he was changing a truck tire, the evidence showing that he was familiar with the proper method and that the employer had a right to so assume. Masonite Corp. v. Stevens, 201 Miss. 876, 30 So. 2d 77, 1947 Miss. LEXIS 459 (Miss. 1947).

Even if a fire, started by railroad employees to burn the grass on railroad property and left without complete extinguishment, had already reached the plaintiff’s premises when plaintiff’s foreman put out some of the fire but not all of it, plaintiff would still be entitled to at least nominal damages for destruction of the gin on her premises, which in itself was sufficient to avoid a peremptory instruction requested by the railroad in an action against it for damages. Yazoo & M. V. R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 1940 Miss. LEXIS 56 (Miss. 1940).

Under this statute [Code 1942, § 1454] contributory negligence does not bar a recovery, and therefore it is not error to deny a peremptory instruction for the defendant. Perez v. Fayard, 64 F.2d 667, 1933 U.S. App. LEXIS 4188 (5th Cir. Miss. 1933).

An instance where peremptory instruction should have been given for the admitted or proven negligence of defendant causing injury. Illinois C. R. Co. v. Archer, 113 Miss. 158, 74 So. 135, 1916 Miss. LEXIS 37 (Miss. 1916).

11. Damages.

In an action brought by a city against an architect-engineer and contractors for damages resulting from the failure of a protective levy surrounding the construction site of a waste water treatment plant in which both defendants counterclaimed and crossclaimed, the record supported an apportionment of liability in favor of the city for installation of a second slurry wall to be 50 percent against the architect-engineer and 50 percent against the contractor pursuant to Miss Code §11-7-15. Moreover, the architect-engineer was required to bear the sole responsibility to the city for damages resulting from the levy failures as well as repairs to the access bridge. Columbus v. Clark-Dietz & Associates-Engineers, Inc., 550 F. Supp. 610, 1982 U.S. Dist. LEXIS 15668 (N.D. Miss. 1982).

Under the Mississippi comparative negligence statute, the negligence of a father who took his 5-year-old son across a highway so that the son might buy milk and failed to take steps so that the son might return safely, when possible negligence on the part of drivers on the highway was or should have been foreseeable by the father, was twice as great as the negligence of a truckdriver who failed to see the child recrossing the highway, so that the whole damages sustained by the father must be reduced by two thirds, limiting the recovery against the defendant employer of the truckdriver to one third of the sum. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

Where on a new trial, granted because of an erroneous instruction on contributory negligence, damages alone should be submitted to the jury, but the defendant may assert, in diminution of damages, any negligence on the part of plaintiff’s decedent which can be shown to have contributed to the injuries sustained by the decedent. Glover v. Daniels, 310 F. Supp. 750, 1970 U.S. Dist. LEXIS 12400 (N.D. Miss. 1970).

Damages for personal injury will not be held grossly inadequate where jury, in determining amount, may have found contributory negligence. Ramsey v. Price, 249 Miss. 192, 161 So. 2d 778, 1964 Miss. LEXIS 385 (Miss. 1964).

Where a judgment in an action arising out of an intersectional motor vehicle collision was reversed and remanded for retrial on the question of the amount of damages alone, upon the retrial all the facts should be presented to the jury on the question of the negligence of all parties, and a jury would have the right to apportion damages under the comparative negligence statute. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

On retrial of personal injury action on issue of damages alone, the evidence should not be limited to question of damages, but all the facts bearing upon the issue of negligence of all parties should be presented, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960).

In rendering a verdict for cross-complainant, the respective amounts found for complainant and cross-complainant need not be indicated. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

In a proceeding on libel for collision, damages would be apportioned equally in a case where both parties had been at fault to the extent of twenty per cent and eighty per cent. In re Adams, 125 F. Supp. 110, 1954 U.S. Dist. LEXIS 2632 (D.N.Y. 1954), aff'd, 237 F.2d 884, 1956 U.S. App. LEXIS 4743 (2d Cir. N.Y. 1956).

Although no instruction was given concerning comparative negligence statutes, a jury was authorized to apply the statutes in determining award for injuries sustained in automobile collision. Gilliam v. Sykes, 216 Miss. 54, 61 So. 2d 672, 1952 Miss. LEXIS 613 (Miss. 1952).

Where neither the plaintiff nor the defendant in an automobile collision case requested instructions based upon the comparative negligence statute, the jury was not required to apportion and compare the damages on account of the negligence of the parties; the court could not voluntarily instruct the jury on the subject; and the reviewing court could not consider the comparative negligence of the parties in determining whether the verdict was excessive. Avent v. Tucker, 188 Miss. 207, 194 So. 596, 1940 Miss. LEXIS 28 (Miss. 1940).

Contributory negligence of one of statutory beneficiaries held not imputed to other beneficiaries, so as to reduce damages recoverable from tort-feasor for death. Nosser v. Nosser, 161 Miss. 636, 137 So. 491, 1931 Miss. LEXIS 286 (Miss. 1931).

Minor under 14 years employed in violation of law is not chargeable with contributory negligence requiring reduction of damages. Hartwell Handle Co. v. Jack, 149 Miss. 465, 115 So. 586, 1928 Miss. LEXIS 51 (Miss. 1928).

A jury must diminish damages in proportion to contributory negligence of the injured person, but a motion for a new trial in the court below is necessary to a review of the adequacy of damages in the supreme court. Tendall v. Davis, 129 Miss. 30, 91 So. 701, 1922 Miss. LEXIS 17 (Miss. 1922).

Plaintiff guilty of gross negligence, contributing to the injury, in crossing a railroad track at a private crossing is entitled to recover damages. Yazoo & M. V. R. Co. v. Williams, 114 Miss. 236, 74 So. 835, 1917 Miss. LEXIS 24 (Miss. 1917); Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

12. —Amount of damages.

Award of only $500 in actual damages to a motorcyclist who suffered severe injuries in a collision with automobile driven by unlicensed defendant was not erroneous, under showing that motorcyclist’s negligence contributed to the accident. Employers Mut. Casualty Co. v. Tompkins, 490 So. 2d 897, 1986 Miss. LEXIS 2489 (Miss. 1986).

Plaintiff is entitled to 50 percent of the damages arising from a pedestrian’s death where the pedestrian and the truckdriver who struck him were equally negligent in that the truckdriver failed to reduce the speed of his truck to avoid striking the decedent when the decedent came within range of the truck’s headlamps and the decedent, who was at a point in the roadway where there was not a marked crosswalk or an intersection, failed to perform his duty to yield the right-of-way to the truck. Hornburger v. Baird, 508 F. Supp. 84, 1980 U.S. Dist. LEXIS 16076 (N.D. Miss. 1980).

An award of $3000 damages to one who had sustained permanent and painful injuries in an automobile collision, and who in consequence had expended $3564, held grossly disproportionate to any contributory negligence imputable to plaintiff, and to justify the conclusion that it was either the result of passion or prejudice, or of a failure properly to evaluate plaintiff’s damages. Swartzfager v. Southern Bell Tel. & Tel. Co., 236 Miss. 322, 110 So. 2d 380, 1959 Miss. LEXIS 322 (Miss. 1959).

Twenty thousand dollars for the death of a lineman, resulting from his electrocution while working on a pole containing a high voltage wire, was not excessive since the jury was not required to apportion and compare the damages on account of the negligence of the parties, where the case was tried on the theory that either the power company’s alleged negligence was the sole proximate cause of the injury or the negligence of the deceased lineman was the sole proximate cause of his injury. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Award of one-sixth of the actual damages in a personal injury action did not represent a proper adjustment of responsibility under this section [Code 1942, § 1454] where there was no evidence that the plaintiff was negligent in any way; such verdict evinced passion and prejudice and should not be allowed to stand. Dixon v. Breland, 192 Miss. 335, 6 So. 2d 122, 1942 Miss. LEXIS 21 (Miss. 1942).

In view of fact that plaintiff and others were pushing his stalled automobile off the highway when defendant, whose headlights had a range of 500 to 600 feet, crashed into the rear of plaintiff’s automobile, demolishing it and severely injuring plaintiff, an award of $100 damages was so inadequate as to evince prejudice justifying reversal. Lee v. Reynolds, 190 Miss. 692, 1 So. 2d 487, 1941 Miss. LEXIS 83 (Miss. 1941).

Ten thousand dollars to widow and two children, aged 1 and 3 years, for death of 24-year-old husband and father, earning $12 per week, held excessive by $2,500, decedent’s negligence having been greater than negligence of railroad. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Four hundred dollars for fractured skull and hip not inadequate under evidence authorizing damages proportionate to negligence of injured person. Pounders v. Day, 151 Miss. 436, 118 So. 298, 1928 Miss. LEXIS 324 (Miss. 1928).

An instance of the award of excessive damages. Yazoo & M. V. R. Co. v. Williams, 114 Miss. 236, 74 So. 835, 1917 Miss. LEXIS 24 (Miss. 1917).

Cross References —

Presumption of negligence for injury by railroads and motor vehicles, see §13-1-123.

Liability of railroad company for negligence and mismanagement, see §§77-9-435 et seq.

RESEARCH REFERENCES

ALR.

Libel and slander: necessity of expert testimony to establish negligence of media defendant in defamation action by private individual. 37 A.L.R.4th 987.

Malpractice: Physician’s liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient. 47 A.L.R.5th 433.

Am. Jur.

22A Am. Jur. 2d, Death §§ 194-234.

57 Am. Jur. 2d, Negligence §§ 69, 70.

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 291, 292 (Instruction to jury defining comparative negligence).

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 293, 294 (Instruction to jury as to comparative negligence of multiple defendants).

CJS.

65A C.J.S., Negligence §§ 958-993.

Law Reviews.

1979 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 887, December 1979.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L. J. 563, September 1982.

Practice References.

3 Am Law Prod Liab 3d, Contributory Negligence; Comparative Fault § 40:7.

JUDICIAL DECISIONS

1. In general.

2. Negligence generally.

3. Proximate cause.

4. Contributory negligence.

5. Comparative negligence and apportionment of damages.

6. Instructions.

1. In general.

Jury verdict defied all logic, as the evidence presented at trial established that the driver was negligent as a matter of law for failing to maintain a proper lookout and to yield the right-of-way by executing a turn across the insured’s lane of travel. A verdict should have been returned in favor of the insured because the violation of said statutory duties by the driver was the unequivocal proximate cause of the insured’s injury; even if the driver was not negligent per se, the facts presented at trial unconditionally demonstrated that the collision was the result of her negligence and the trial court committed reversible error in failing to apply Miss. R. Civ. P. 50, and by denying the insured’s motion for judgment notwithstanding the verdict. State Farm Auto Ins. Cos. v. Davis, 887 So. 2d 192, 2004 Miss. App. LEXIS 1065 (Miss. Ct. App. 2004).

On a motion for judgment notwithstanding the verdict, the trial court, under §11-7-17 and Miss. Const. Art. 3 § 31, must consider all the evidence in the light and with all reasonable inferences most favorable to the party opposed to the motion, and if the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable men could not have arrived at a contrary verdict, granting the motion is proper, but if there is substantial evidence opposed to the motion, such that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and it is no answer to say that the jury’s verdict involves speculation or conjecture. City of Jackson v. Locklar, 431 So. 2d 475, 1983 Miss. LEXIS 2608 (Miss. 1983).

In an action by the owner of an automobile for damages arising out of the theft of the vehicle while it was in the possession of a bailee for hire, the trial court properly refused to grant a directed verdict, peremptory instruction or judgment n.o.v. in favor of the bailee where a question of negligence existed over the bailee’s leaving the vehicle, with the keys placed above the sun visor, on a public street exposed to possible theft for one hour and five minutes. City of Meridian v. Webb, 387 So. 2d 85, 1980 Miss. LEXIS 2038 (Miss. 1980).

The violation of a traffic law or safety statute may constitute negligence as a matter of law, but in order to capitalize on the violation of a safety statute by a defendant, the plaintiff must establish, in addition to a causal relation between the violation of the statute and the harm suffered, that he is one of the class of persons which the statute was intended to protect, and that the harm suffered was of the kind the statute was designed to prevent, or in other words that the harm suffered resulted from the type of risk covered by the statute. U-Haul Co. v. White, 232 So. 2d 705, 1970 Miss. LEXIS 1635 (Miss. 1970).

A court should not, by its decree, fail to give effect to the statute. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

In litigation, growing out of death and injuries sustained in a collision of two automobiles, filed in the chancery court in the county where letters of administration on the decedent’s estates were issued, complainants charged that the accident was due to the negligence of a construction company, through its agent, in obstructing the highway, charged negligence in the operation of his automobile on the part of another defendant, who it was alleged was an agent of a nonresident insurance company, and also charged, on information and belief, that another defendant had money and effects of the nonresident insurance company, and prayed for an attachment, where, upon appeal from the decrees in favor of complainants, the Supreme Court found no reversible error in the record, the judgment would not be reversed in view of Mississippi Constitution § 147, and while the chancery court in his discretion might have directed the trial of the case by jury, error could not be predicated upon the refusal of a jury trial. Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 1957 Miss. LEXIS 512 (Miss. 1957).

This provision is not binding in a Federal court. Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928, 1934 U.S. App. LEXIS 5027 (5th Cir. Miss. 1934).

This provision does not have the effect in a Federal court of making it erroneous for the court to direct a verdict where the evidence is such that a verdict the other way would be set aside. Blass v. Virgin Pine Lumber Co., 50 F.2d 29, 1931 U.S. App. LEXIS 4398 (5th Cir. Miss. 1931).

This section [Code 1942, § 1455] does not apply in the trial of a matter of purely equity jurisdiction. Boyd v. Applewhite, 121 Miss. 879, 84 So. 16, 1920 Miss. LEXIS 128 (Miss. 1920).

2. Negligence generally.

In an action on behalf of an infant by her parents for injuries sustained by the child when the driver of an automobile drove over her while leaving a parking space in front of the child’s parents’ home, the trial court properly declined to give a peremptory instruction on liability favorable to the parents where the evidence, when viewed in a light most favorable to the verdict, portrayed circumstances from which reasonable minds could find that the driver had afforded the infant all of the care which was due under the circumstances, including the presence of her parents in the immediate vicinity, and where the evidence did not establish as a matter of law that the driver had violated the duty imposed by statute to “exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.” Haver v. Hinson, 385 So. 2d 605, 1980 Miss. LEXIS 2018 (Miss. 1980).

Questions of negligence are for the jury’s determination. Where, however, there is no issue of fact, then the court determines the negligence question. McGee v. Bolen, 369 So. 2d 486, 1979 Miss. LEXIS 2255 (Miss. 1979).

In action against bank for having negligently lost deposit made by plaintiff, the issue as to whether or not the bank exercised reasonable care in finding the lost deposit was a question for the determination of the jury. First Nat'l Bank v. Langley, 314 So. 2d 324, 1975 Miss. LEXIS 1678 (Miss. 1975).

Where plaintiff’s case was based on the negligence of defendant and the only answer of defendant was an affirmative defense, the county court erred in disposing of the case at a preliminary hearing on the motion to dismiss, thereby denying plaintiff the right to present his case to the jury on the facts. Gates v. Owen Chevrolet Co., 294 So. 2d 179, 1974 Miss. LEXIS 1818 (Miss. 1974).

All questions of negligence and contributory negligence are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Smith v. Walton, 271 So. 2d 409, 1973 Miss. LEXIS 1507 (Miss. 1973).

Where the evidence showed that the defendant’s vision, as she approached a smoke covered portion of the highway, slowing her automobile to approximately 30 miles per hour was restricted to approximately one and one-half car lengths in front of her automobile, it was never entirely obscured, the question of the defendant’s negligence in colliding with another vehicle traveling in the opposite direction in defendant’s lane while passing another vehicle was for the jury, precluding a peremptory instruction as to defendants liability in a suit for personal injuries. Butler v. Chrestman, 264 So. 2d 812, 1972 Miss. LEXIS 1366 (Miss. 1972).

When a motorist is driving at a reasonable rate of speed and is obeying the rules of the road, he is not liable for injuries to a child who darts out from behind a fence or a parked or stopped vehicle so suddenly that the motorist cannot stop or otherwise avoid injuring the child. Dorrough v. State, 245 So. 2d 188, 1971 Miss. LEXIS 1356 (Miss. 1971).

In an action by a passenger against the defendant of an automobile for personal injuries sustained when the driver lost control of the automobile on a curve, evidence as to the driver’s intoxicated condition and touching on the question of assumption of the risk by the passenger, presented an issue for the jury. Griffin v. Holliday, 233 So. 2d 820, 1970 Miss. LEXIS 1684 (Miss. 1970).

Assumption of the risk as a complete defense to an action for negligence is a viable doctrine in Mississippi in cases other than master and servant relationships, and ordinarily its application is for the trier of fact. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

Where a father did not have a conscious purpose or intention that his son should recross a highway unattended and be exposed to known danger in so doing, and had no actual knowledge of negligent vehicular operation by third parties which would increase the danger to his child beyond that posed by ordinary traffic hazards, it could not be said that he assumed the risk of the child’s injury under Mississippi law. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

In an action for injuries by one injured by an elevator while on defendant’s premises for the purpose of installing equipment, the defendant’s motion for judgment notwithstanding the verdict should have been sustained where the plaintiff failed to establish a causal connection between any defect in the elevator and the plaintiff’s injury, and thus there was no issue for the jury’s determination. General Tire & Rubber Co. v. Darnell, 221 So. 2d 104, 1969 Miss. LEXIS 1491 (Miss. 1969).

Where defendant driver of overtaken truck permitted his vehicle to drift across the centerline and speeded up when plaintiff attempted to pass on the left, the evidence was sufficient to raise a jury question on the issue of the truckdriver’s negligence. Lewis Grocery Co. v. Blackwell, 209 So. 2d 639, 1968 Miss. LEXIS 1465 (Miss. 1968).

Code 1942, § 8215 should be construed in a practical manner, and it does not mean that a motorist forced to stop momentarily upon the paved portion of a highway because the vehicle in front of him stopped and oncoming traffic prevented him from passing is guilty of negligence in not immediately driving from the highway onto the shoulder. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

To instruct the jury for the plaintiff in an automobile collision action that jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

The legislature has adopted, as a statutory policy, the general rule that the issue of negligence and contributory negligence are to be determined by the jury, and ordinarily such issues should not be disposed of by the court in a peremptory manner. De Laughter v. Womack, 250 Miss. 190, 164 So. 2d 762, 1964 Miss. LEXIS 455 (Miss. 1964).

A jury’s verdict for defendants may not be set aside because the evidence was sharply conflicting and the credibility of a witness was open to question. Gaskin v. Davis, 246 Miss. 166, 149 So. 2d 850, 1963 Miss. LEXIS 432 (Miss. 1963).

Evidence warranted jury in automobile collision case in finding negligence and contributory negligence. Hawkins v. Hillman, 245 Miss. 385, 149 So. 2d 17, 1963 Miss. LEXIS 526 (Miss. 1963).

Negligence in turning a corner rapidly into the entrance of a building while pushing a heavy hand cart, at a time and place where collision with a pedestrian might reasonably have been foreseen, is for the jury. Dr. Pepper Bottling Co. v. Bruner, 245 Miss. 276, 148 So. 2d 199, 1962 Miss. LEXIS 552 (Miss. 1962).

In bowler’s action to recover for damages for injuries sustained in fall allegedly due to the negligence of the bowling establishment proprietor, questions as to assumption of risks and contributory negligence should have gone to jury under proper instructions. Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So. 2d 558, 1962 Miss. LEXIS 543 (Miss. 1962).

In an action for damages predicated upon the negligence of an electrical power company in failing to cut off electric power after it had notice that eight of plaintiff’s cows had been electrocuted by a fallen wire, defenses suggesting that, since plaintiff could not possibly eat the flesh of eight cows, it was his intention to prepare the carcasses for illegal sale to the public for food, and also alleging that the power company had remedied the dangerous situation almost immediately, presented jury questions. King v. Mississippi Power & Light Co., 244 Miss. 486, 142 So. 2d 222, 1962 Miss. LEXIS 469 (Miss. 1962).

The operator of an airplane may be found to have been negligent where his take-off from a pasture in which he had landed caused the cattle grazing therein to stampede. Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607, 139 So. 2d 380, 1962 Miss. LEXIS 384 (Miss. 1962).

Negligence and contributory negligence are jury questions. Louisville & N. R. Co. v. Price, 243 Miss. 99, 137 So. 2d 787, 1962 Miss. LEXIS 319 (Miss. 1962).

A verdict on conflicting evidence in a negligence case will be set aside only if clearly against the weight of evidence or influenced by passion, prejudice or corruption. Schumpert v. Watson, 241 Miss. 199, 129 So. 2d 627, 1961 Miss. LEXIS 332 (Miss. 1961), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Responsibility for collision of truck and bus which entered intersection without stopping is for the jury. Greyhound Corp. v. Kindle, 240 Miss. 702, 128 So. 2d 567, 1961 Miss. LEXIS 500 (Miss. 1961).

Conflict of testimony as to the speed of a train presents a question for the jury. New Orleans & N. R. Co. v. Shows, 240 Miss. 604, 128 So. 2d 381, 1961 Miss. LEXIS 490 (Miss. 1961).

A typical jury question is presented where each party introduces evidence to show that the cause of an automobile collision was the negligence of the other. Ferguson v. Denton, 239 Miss. 591, 124 So. 2d 279, 1960 Miss. LEXIS 327 (Miss. 1960).

In an action for personal injuries sustained by a plaintiff when his automobile was struck from the rear by the defendant’s automobile, where the evidence presented jury questions as to whether the defendant was negligent in driving at an excessive speed, or following another vehicle too closely, or in failing to have his vehicle under proper control, or whether the sole proximate cause of the collision was the manner in which the plaintiff’s vehicle was driven into the intersection, the trial court erred in directing a verdict for plaintiff on the issue of liability. Buntyn v. Robinson, 233 Miss. 360, 102 So. 2d 126, 1958 Miss. LEXIS 391 (Miss. 1958).

In an action for personal injuries and property damages arising out of a collision between plaintiff’s automobile and that of the defendant when defendant allegedly drove, without stopping, from a private driveway into the highway upon which plaintiff was proceeding in such manner that plaintiff could not avoid striking him, conflicting evidence raised jury questions as to defendant’s negligence, and whether his negligence was the proximate cause of the accident. Stewart v. Madden, 233 Miss. 206, 101 So. 2d 353, 1958 Miss. LEXIS 372 (Miss. 1958).

In a wrongful death action arising out of defendant’s automobile colliding with a bicycle ridden by a nine-year old child upon the highway, jury’s verdict for defendant was against the overwhelming weight of the evidence where it appeared that the road in the vicinity of the accident was straight and defendant’s view was entirely unobstructed, and the defendant testified that he had seen the boy on the bicycle for a distance of several hundred feet before overtaking him, and yet had neither sounded his horn nor applied his brakes until he was within 12 or 15 feet of the boy, when it was too late to avoid hitting him. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

Upon a motion for a directed verdict, all the facts testified to, and all inferences necessarily and logically to be deduced therefrom, are to be taken as true in favor of the party against whom the motion is asked, and the case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery could be had upon any view which could be properly taken of the facts which the evidence tends to establish; but if more than one reasonable inference can be garnered from the facts, the question of negligence is for the jury. Mock v. Natchez Garden Club, 230 Miss. 377, 92 So. 2d 562, 1957 Miss. LEXIS 380 (Miss. 1957).

In an action by parents to recover for the death of their son who, while swimming at nighttime, drowned in defendant’s swimming pool which had been engaged by a church group, evidence as to the adequacy of the lighting at the swimming pool and the possible negligence of the defendant’s life guard raised questions for the jury as to defendant’s liability, and the trial court erred in peremptorily directing a jury verdict for defendant. Mock v. Natchez Garden Club, 230 Miss. 377, 92 So. 2d 562, 1957 Miss. LEXIS 380 (Miss. 1957).

Where a case turns upon circumstantial evidence it should rarely be taken from the jury. Cameron v. Hootsell, 229 Miss. 80, 90 So. 2d 195, 1956 Miss. LEXIS 588 (Miss. 1956).

In an action against a lumber company for injuries sustained when plaintiff was struck by a piece of lumber which allegedly fell off the lumber company’s truck while plaintiff was walking along the side of the street at a point where there were no sidewalks, circumstantial evidence presented questions of fact for jury’s determination as to whether the truck in question was that of the lumber company, and was being negligently operated on the occasion in question by the servant or agent of the lumber company acting within the scope of his employment, and in furtherance of his master’s business. Cameron v. Hootsell, 229 Miss. 80, 90 So. 2d 195, 1956 Miss. LEXIS 588 (Miss. 1956).

In an action for injuries incurred by plaintiff bicyclist when, approaching defendant’s truck from rear, he tried to pass it at an intersection, was hit by the truck as it also started to turn right, and was catapulted in the pathway of another car, the degrees of negligence were for the jury to determine. Cochran v. Peeler, 209 Miss. 394, 47 So. 2d 806, 1950 Miss. LEXIS 404 (Miss. 1950).

This statute [Code 1942, § 1455] does not change fundamental condition that in action to recover for negligence there must be negligence, and without it, there is nothing for jury. Mississippi Butane Gas Systems, Inc. v. Welch, 208 Miss. 637, 45 So. 2d 262, 1950 Miss. LEXIS 280 (Miss. 1950).

In advertiser’s action against publisher of newspaper for negligence in publishing advertisement that stock of clothing will be sold for greater discount than that intended by advertiser, it is for jury to say whether course followed by advertiser in selling at advertised price was so reasonable as to constitute foreseeable result of publisher’s negligence, whether such course was made reasonable by conduct and assurance of publisher as to his responsibility or was result of advertiser’s own independent judgment, and whether such judgment was exercised reasonably and without reasonably available mitigating alternative. Meridian Star v. Kay, 207 Miss. 78, 41 So. 2d 30, 1949 Miss. LEXIS 318 (Miss. 1949).

Danger and negligence are not synonymous, nor is the existence of a defect, of necessity, either danger or negligence. Ming v. Jackson, 202 Miss. 260, 31 So. 2d 900, 1947 Miss. LEXIS 269 (Miss. 1947).

In action by truck driver for oil company for injuries sustained while delivering fuel for defendant contractor’s tractors and other machines located between levee and river when caught between oil truck and defendant’s caterpillar tractor used in pulling the truck over the levee which suddenly rolled down the incline, whether the assistance intended to be given the plaintiff in attempting to pull the truck over the levee was in the course of the defendant’s business or merely an act of unselfish generosity, whether the caterpillar tractor had defective brakes or defective brake-locks which caused the tractor to roll against the plaintiff, and, if so, whether such defects amounted to failure on defendant’s part to exercise reasonable care for plaintiff’s safety, were questions for the jury. Sugg v. Hendrix, 153 F.2d 240, 1946 U.S. App. LEXIS 1906 (5th Cir. Miss. 1946).

3. Proximate cause.

In a wrongful death action arising out of a collision between an automobile in which decedent was riding and defendant’s train at a railroad crossing on a foggy night, under conflicting evidence, the question of whether the alleged negligence of the railroad company in blocking the crossing for a period of more than five minutes, in violation of Code 1942, § 7780, was the effective cause of the accident, or whether the accident was due solely to the negligence of the driver of the car, was for the jury. Green v. Gulf, M. & O. R. Co., 244 Miss. 211, 141 So. 2d 216, 1962 Miss. LEXIS 442 (Miss. 1962).

Since there was no substantial evidence of negligence on the part of the railroad, and the sole proximate cause of decedent’s death was his failure to look and listen prior to driving his automobile onto the crossing in front of defendant’s approaching train, judgment for plaintiff would be reversed and judgment entered in the Supreme Court for the railroad. Illinois C. R. Co. v. Smith, 243 Miss. 766, 140 So. 2d 856, 1962 Miss. LEXIS 406 (Miss. 1962).

Although motorist’s failure to stop before attempting to cross railroad tracks was negligence contributing to the collision with a railroad switch engine, trial court properly refused railroad’s requested peremptory instruction where the evidence presented questions for the jury as to whether the proximate cause of the collision was the failure of the railroad to ring the bell on its engine, or the negligence of the railroad’s engineer in failing to stop the engine when the engineer saw that motorist’s automobile was not going to stop. New Orleans & N. R. Co. v. Ready, 238 Miss. 199, 118 So. 2d 185, 1960 Miss. LEXIS 396 (Miss. 1960).

In an action against a driver by a share-the-expense guest for injuries allegedly sustained when the driver’s automobile foot brake failed to function properly so that the automobile collided into the rear of another which had come to a stop, the question of whether the driver was negligent in failing to exercise such care, after her foot brake failed to work, as a reasonably prudent and capable driver would have used under the unusual circumstances to avoid an accident, and whether such negligence, if any, was the proximate cause of the guest’s injury, were for the jury. Moore v. Taggart, 233 Miss. 389, 102 So. 2d 333, 1958 Miss. LEXIS 396 (Miss. 1958).

In an action for personal injuries and property damages arising out of a collision between plaintiff’s automobile and that of the defendant when defendant allegedly drove, without stopping, from a private driveway into the highway upon which plaintiff was proceeding in such manner that plaintiff could not avoid striking him, conflicting evidence raised jury questions as to defendant’s negligence, and whether his negligence was the proximate cause of the accident. Stewart v. Madden, 233 Miss. 206, 101 So. 2d 353, 1958 Miss. LEXIS 372 (Miss. 1958).

Where a motorist approaching an intersection with the signal lights flashing red in her direction, failed to stop before entering therein, the court properly submitted to the jury the issue of whether such negligence was the sole cause of the collision. Bates v. Walker, 232 Miss. 804, 100 So. 2d 611, 1958 Miss. LEXIS 333 (Miss. 1958).

In an action for the death of an eight-year-old child killed when struck by a large diesel trailer truck which was not equipped with service brakes, jury questions were presented, under conflicting evidence, as to whether the truck driver was negligent in driving at a speed in excess of 45 miles an hour, in failing to maintain a proper lookout and observing the movements of a child crossing the highway in time to avoid injuring her, in failing to maintain proper control of his vehicle after he saw or, by the exercise of reasonable care, should have seen the child on the highway, and the driver’s negligence, if any, was the proximate or contributing cause of the death of the child. Reed v. State, 232 Miss. 432, 99 So. 2d 455, 1958 Miss. LEXIS 290 (Miss. 1958).

In an action against a railroad and its engineer for damages to a tractor trailer caused by a crossing collision, where the evidence established that the railroad and its engineer was liable as a matter of law, but also raised jury questions as to the contributory negligence, if any, of the truck driver, whether under the comparative negligence statute plaintiff’s damages sustained should have been diminished, whether the negligence of the engineer was the sole, proximate cause of the collision, and the applicability of the last clear chance doctrine, the case was reversed and remanded for submission to a jury on issues of damages alone. New Orleans & N. R. Co. v. Dixie Highway Express, Inc., 230 Miss. 92, 92 So. 2d 455, 1957 Miss. LEXIS 348 (Miss. 1957).

In an action by a farm equipment mechanic, employed by defendant, to recover for injuries sustained when the arms of the defendant’s cotton picker flew up crushing his right arm, where it appeared that before the plaintiff had arrived at the farm the defendant had taken the head off of the cotton picker, without releasing the tension, leaving the machine in a dangerous condition to be worked on, it was for the jury to determine whether the defendant should have told the plaintiff that the tension had not been released, and whether his failure to apprise plaintiff of that fact constituted negligence, which proximately caused or contributed to plaintiff’s injury. Cole v. Tullos, 228 Miss. 815, 90 So. 2d 32, 1956 Miss. LEXIS 569 (Miss. 1956).

In an action by a bicyclist against a cab company for injuries suffered when he jumped off the bicycle to avoid being crushed by the cab against a van type truck ahead, the question of excessive speed of the cab and the proximate cause of the negligence was for the jury. Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So. 2d 356, 1951 Miss. LEXIS 412 (Miss. 1951).

It is for jury to determine whether defendant’s negligence in not raising trap door over train steps so as to permit plaintiff to alight from bottom step was direct, contributing cause of plaintiff’s injuries, where plaintiff had assisted passenger aboard train and those in charge of train permitted plaintiff to alight while train was moving. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high voltage wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power, or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

The negligence of the defendant complained of must be the proximate cause of the injury. Hines v. Moore, 124 Miss. 500, 87 So. 1 (Miss. 1921).

4. Contributory negligence.

In a product liability suit, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence, which was a jury question under Miss. Code Ann. §11-7-17. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

A plaintiff in a personal injury action was not entitled to an additur under §11-1-55 to increase a $2,000 damages award, even though the plaintiff had introduced medical bills incurred in the treatment of his injuries which totalled $2,085.90 and he claimed that the jury had failed to consider his claims for pain, suffering and lost wages, where it was apparent that the jury believed that the plaintiff was somewhat responsible for his own injuries and accordingly reduced his award of damages to the amount of $2,000; a determination that the jury was incorrect in assessing the plaintiff’s contributory negligence would be tantamount to holding that a jury is to be instructed that it must return a verdict for all alleged damages, which is not a proper statement of the law. Leach v. Leach, 597 So. 2d 1295, 1992 Miss. LEXIS 217 (Miss. 1992).

In medical malpractice case, court may not remove issue of contributory negligence from consideration of jury where defendant physician has introduced proof that patient did not seek follow-up treatment and had been neglectful of patient’s physical condition. Reikes v. Martin, 471 So. 2d 385, 1985 Miss. LEXIS 2101 (Miss. 1985).

Where on a new trial, granted because of an erroneous instruction on contributory negligence, damages alone should be submitted to the jury, but the defendant may assert, in diminution of damages, any negligence on the part of plaintiff’s decedent which can be shown to have contributed to the injuries sustained by the decedent. Glover v. Daniels, 310 F. Supp. 750, 1970 U.S. Dist. LEXIS 12400 (N.D. Miss. 1970).

In an action for injuries sustained by a trucker when his truck overturned, the question whether a fishery manager’s negligence in directing the truck to be driven on a wet levee was superseded by the plaintiff’s negligence, in undertaking to dump his truck there, was for the jury. Daves v. Reed, 222 So. 2d 411, 1969 Miss. LEXIS 1536 (Miss. 1969).

In an action for injuries sustained by a trucker when his truck overturned, the question as to whether the trucker fully appreciated the danger involved in driving his truck on a wet levee, and voluntarily assumed the consequences of his actions, was for the jury. Daves v. Reed, 222 So. 2d 411, 1969 Miss. LEXIS 1536 (Miss. 1969).

The fact that the plaintiff motorist may have been guilty of considerable contributory negligence does not per se bar him from the right of recovery. Lewis Grocery Co. v. Blackwell, 209 So. 2d 639, 1968 Miss. LEXIS 1465 (Miss. 1968).

The fact that the plaintiff was guilty of contributory negligence does not per se make the verdict of the jury contrary to the overwhelming weight of the evidence, assuming that the defendant was negligent. Philco Distributors, Inc. v. Herron, 195 So. 2d 473, 1967 Miss. LEXIS 1441 (Miss. 1967).

The legislature has adopted, as a statutory policy, the general rule that the issue of negligence and contributory negligence are to be determined by the jury, and ordinarily such issues should not be disposed of by the court in a peremptory manner. De Laughter v. Womack, 250 Miss. 190, 164 So. 2d 762, 1964 Miss. LEXIS 455 (Miss. 1964).

In an action for damages resulting when defendant’s truck-trailer unit ran into the rear end of plaintiff’s truck-trailer unit on the curved portion of the highway, the court did not err in refusing to charge the defendant’s driver with negligence in respect to speeding, overtaking on the right, and following too closely, particularly in view of this section [Code 1942, § 1455]. Green Truck Lines, Inc. v. Hooper, 233 Miss. 794, 103 So. 2d 443, 1958 Miss. LEXIS 441 (Miss. 1958).

In an action by an owner of a truck against a corporation for damages for property and personal injuries arising out of an accident allegedly caused by the negligence of the corporation’s agent in blocking a temporary bypass with his automobile and another that he had been towing, the question of whether the truck owner was negligent in failing to stop prior to the accident when he was blinded, or almost blinded, by the lights of the agent’s car, was for the jury. Commercial Credit Corp. v. Smith, 231 Miss. 574, 96 So. 2d 911, 1957 Miss. LEXIS 539 (Miss. 1957).

In an action for personal injuries sustained by plaintiff when the pickup truck which he was driving collided with a bus which was parked one-half thereof on a paved portion of highway to discharge passenger, where evidence showed that it was raining and visibility was poor and that the plaintiff was traveling only about twenty-five or thirty miles per hour and that the lights on the bus were so dim that the plaintiff could not see them until he was within twenty-five or thirty feet of the bus, the question of contributory negligence is for the jury to determine. Continental Southern Lines, Inc. v. Williams, 226 Miss. 624, 85 So. 2d 179, 1956 Miss. LEXIS 440 (Miss. 1956).

Code 1930, §§ 511 and 512, (Code 1942, §§ 1454 and 1455) abolished contributory negligence as a defense and makes negligence and contributory negligence questions for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Whether motorist whose automobile struck a gondola car spotted by railroad employees so that it extended partly across public highway was contributorily negligent held for jury. Magers v. Okolona, H. & C. C. R. Co., 174 Miss. 860, 165 So. 416, 1936 Miss. LEXIS 201 (Miss. 1936).

By reason of this provision (Hemingway’s Code 1917, § 503), it is proper to refuse a charge that a defendant is not liable if the plaintiff is guilty of contributory negligence. Reynolds-West Lumber Co. v. Kellum, 19 F.2d 72, 1927 U.S. App. LEXIS 2188 (5th Cir. Miss. 1927).

5. Comparative negligence and apportionment of damages.

A personal injury case would be reversed and remanded for trial in order for the jury to find liability, if any, under the comparative negligence principles of §11-7-17 where it was apparent from the lower court’s order granting summary judgment that the court found the existence of an “open and obvious” danger in making its determination, since the “open and obvious” defense has been abolished. Baptiste v. Jitney Jungle Stores of Am., 651 So. 2d 1063, 1995 Miss. LEXIS 122 (Miss. 1995).

The “open and obvious” defense to negligence actions would be abolished, and damages would be determined through application of the true comparative negligence doctrine; thus, a trial judge erred in construing the open and obvious defense as a complete bar to the recovery of damages, since it should only be used to mitigate damages on a comparative negligence basis under §11-7-15. Tharp v. Bunge Corp., 641 So. 2d 20, 1994 Miss. LEXIS 358 (Miss. 1994).

Under this jurisdiction’s comparative negligence statute, it is for the jury to decide not only all questions of negligence, but also whether it will diminish the damages in proportion to the amount of the negligence attributable to the plaintiff, even if no instruction to this effect is requested by either party. Medley v. Carter, 234 So. 2d 334, 1970 Miss. LEXIS 1407 (Miss. 1970).

The evidence created a question for the jury as to the comparative negligence of a westbound motorist whose vehicle came to rest in the center of the highway after colliding with an oncoming motorist, and an eastbound motorist who collided with the vehicle shortly after the first collision, and the trial judge erred in setting aside the jury verdict and rendering a judgment notwithstanding the verdict for the westbound motorist. Medley v. Carter, 234 So. 2d 334, 1970 Miss. LEXIS 1407 (Miss. 1970).

Where two Mississippi motorists were killed in an automobile collision which occurred in Louisiana, their estates were being administered in Mississippi, and their administratrices had respectively filed in a Mississippi court an action and counterclaim for damages as a consequence of the deaths of the decedents, the issues of liability under both the declaration and counterclaim should have been submitted to the jury by appropriate instructions under the Mississippi comparative negligence statute, despite the fact that the law of Louisiana, where the fatal collision occurred, barred a recovery where contributory negligence is established. Mitchell v. Craft, 211 So. 2d 509, 1968 Miss. LEXIS 1266 (Miss. 1968).

Although the defendant in a wrongful death action did not ask for or receive an instruction on contributory negligence, the jury had the right to apply the comparative negligence statute without an instruction to that effect. Winstead v. Hall, 251 Miss. 800, 171 So. 2d 354, 1965 Miss. LEXIS 904 (Miss. 1965).

Damages for personal injury will not be held grossly inadequate where jury, in determining amount, may have found contributory negligence. Ramsey v. Price, 249 Miss. 192, 161 So. 2d 778, 1964 Miss. LEXIS 385 (Miss. 1964).

Where there is evidence warranting the jury in finding contributory negligence, an appellate court may not set aside a verdict on the ground of inadequacy of damages. Gore v. Patrick, 246 Miss. 715, 150 So. 2d 169, 1963 Miss. LEXIS 497 (Miss. 1963).

Question of the extent to which recovery for negligence is reduced by the injured person’s contributory negligence is for the trier of the facts. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

On a retrial of a negligence action on the issue of damages alone, the evidence should not be limited to the question of damages, but facts should be presented as to the negligence of all the parties, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960); Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

It is for the jury to decide whether it will diminish the damages in proportion to the amount of negligence attributable to the plaintiff when under all the testimony and circumstances thereby shown a part of the negligence contributing to plaintiff’s injuries was attributable to his own negligence, even if no instruction to this effect is requested by either party. Mutual Life Ins. Co. v. Rather, 221 Miss. 527, 73 So. 2d 163, 1954 Miss. LEXIS 559 (Miss. 1954).

In an action for injuries sustained by plaintiff who was struck by an automobile while standing on the shoulder of a highway waiting for a ride, a finding that the plaintiff had stepped into the highway in front of an automobile was not supported by evidence and therefore did not warrant the jury in employing the comparative negligence doctrine, and a new trial would be granted on the issue of damages alone when all the facts should be presented to the jury on the question of negligence and the jury will have the right to apportion the damages under the comparative negligence statute. Vaughan v. Bollis, 221 Miss. 589, 73 So. 2d 160, 1954 Miss. LEXIS 567 (Miss. 1954).

In a proceeding on libel for collision, damages would be apportioned equally in a case where both parties had been at fault to the extent of twenty per cent and eighty per cent. In re Adams, 125 F. Supp. 110, 1954 U.S. Dist. LEXIS 2632 (D.N.Y. 1954), aff'd, 237 F.2d 884, 1956 U.S. App. LEXIS 4743 (2d Cir. N.Y. 1956).

6. Instructions.

In an action by an employee against his employer arising from an on-the-job injury, the trial court properly granted the employee peremptory instructions on contributory negligence and assumption of the risk, even though §11-7-17 provides that “all questions of negligence and contributory negligence shall be for the jury to determine,” where there was no proof indicating that any potential negligence or assumption of the risk by the employee led to the injury. Vicksburg v. Young, 616 So. 2d 883, 1992 Miss. LEXIS 779 (Miss. 1992).

When there is evidence to support a comparative negligence instruction, it is not error to give the instruction even though each party may contend that the other was entirely at fault. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

In an action for damages arising out of an automobile collision in which the plaintiff’s car was struck by that of the defendant, the trial court erred in giving a preemptory instruction that the plaintiff had been guilty of negligence in failing to keep a reasonable lookout to the rear of her vehicle before turning off a highway where the plaintiff’s testimony about her actions prior to the collision raised a question of fact for the jury as to whether she had taken all reasonable precautions prior to making the turn. Kennedy v. Reed, 393 So. 2d 480, 1981 Miss. LEXIS 1915 (Miss. 1981).

In an action for personal injuries, an instruction that the driver of a pickup truck, which ran over a motorcyclist after he had been thrown to the highway following a collision with the defendant’s automobile, was negligent in the operation of his truck, and if the jury believed from a preponderance of the evidence that the negligence of the truck driver contributed to the motorcyclist’s injury, then the defendant was not responsible for such of the motorcyclist’s injuries which were caused by the negligence of the truckdriver unless the jury should believe from a preponderance of the evidence that such negligence was foreseeable by the defendant, could not be construed as being in effect a peremptory instruction to find for the defendant. Ratliff v. Nail, 231 So. 2d 798, 1970 Miss. LEXIS 1611 (Miss. 1970).

It was erroneous to grant the “emergency instruction” where it raised an inference that if the driver of a truck had suddenly turned his vehicle across the center line into the left lane of the highway at the time when the defendant’s bus was about to pass, that then the defendant was not guilty of contributory negligence in driving at an unlawful speed and approaching the truck at an unreasonable rate in an unreasonable manner. Peel v. Gulf Transport Co., 252 Miss. 797, 174 So. 2d 377, 1965 Miss. LEXIS 1148 (Miss. 1965).

Where facts constituting contributory negligence are pleaded and proved, a request to instruct on contributory negligence is not essential to enable the jury to consider it in assessing damages. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Instruction in action for alleged negligent installation of machine that jury should find for defendant if they found that the machine was not being handled properly by plaintiff, held erroneous. Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So. 2d 847, 1962 Miss. LEXIS 418 (Miss. 1962).

In an action for injuries sustained by a 16-year-old motorcyclist in an intersectional collision with a truck, the driver of which had, contrary to Code 1942, § 8189(a), and a city ordinance, “cut the corner” in making a left turn, court properly instructed that the truck driver was guilty of negligence, and that plaintiff could recover on account thereof, if such negligence was a proximate, contributing cause of the collision, which question was for the jury. City of Jackson v. Reed, 233 Miss. 304, 103 So. 2d 6, 1958 Miss. LEXIS 380 (Miss. 1958), overruled, City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

Instruction permitting jury to consider plaintiff’s contributory negligence, if any, in diminution of damages, where not pleaded, if error, held harmless where jury found plaintiff’s negligence was sole proximate cause of injury. White v. Weitz, 169 Miss. 102, 152 So. 484, 1934 Miss. LEXIS 9 (Miss. 1934).

Amendment Notes —

The 2010 amendment added “in a sale to a consumer. . . 75-9-102(a)(23)” in the first sentence; and added the last sentence.

The 2014 amendment deleted “75-2-315.1” following “Sections 75-2-314, 75-2-315” in the first sentence.

Cross References —

Similar statutory provision embodied in the Uniform Commercial Code, see §75-2-719.

RESEARCH REFERENCES

ALR.

Validity of disclaimer of warranty clauses in sale of new automobile. 54 A.L.R.3d 1217.

Application of comparative negligence in action based on gross negligence, recklessness, or the like. 10 A.L.R.4th 946.

Unconscionability, under UCC § 2-302 or § 2-719(3), of disclaimer of warranties or limitation or exclusion of damages in contract subject to UCC Article 2 (Sales). 38 A.L.R.4th 25.

Law Reviews.

Alldredge, Uniform Commercial Code – Should the U.C.C. furnish rules of decision in equipment leasing controversies? 7 Miss. C. L. Rev. 209, Spring, 1987.

JUDICIAL DECISIONS

1. In general.

2. Preservation for review.

1. In general.

Miss. Code Ann. §75-2-315.1 [repealed] is specifically excepted from the non-disclaimer statute, Miss. Code Ann. §11-7-18; this fact, together with a plain reading of Miss. Code Ann. §75-2-315.1 itself, makes abundantly clear that the Mississippi Legislature intends to permit the disclaimer of implied warranties in contracts for the sale of late-model used vehicles. Therefore, a buyer’s act of signing an “as is” agreement when purchasing a used vehicle was sufficient to waive these warranties. Murray v. Blackwell, 966 So. 2d 901, 2007 Miss. App. LEXIS 705 (Miss. Ct. App. 2007).

Provision of contract for extermination of pests which limited homeowner’s remedy for breach of express warranty to reinspection and refumigation in event of reinfestation, was enforceable under Mississippi law. Facts did not fall within protections afforded by §§11-7-18 or75-2-315.1, and litigation not involve claim for breach of implied warranties. Moreover even if defendant had attempted to limit implied warranties, plaintiff did not seek remedies based thereon. In addition, contract was one primarily for service, whereas prohibition on limitation of express warranties applies only to manufacturer of consumer goods, thus there was nothing in Mississippi statutes forbidding limitation of remedies for breach of express warranty provided in service contract. Smith v. Orkin Exterminating Co., 791 F. Supp. 1137, 1990 U.S. Dist. LEXIS 19936 (S.D. Miss. 1990), aff'd, 943 F.2d 1314, 1991 U.S. App. LEXIS 21363 (5th Cir. Miss. 1991).

Implied warranty of merchantability may not be waived or disclaimed in Mississippi as result of §§11-7-18 and75-2-719(4). Beck Enterprises, Inc. v. Hester, 512 So. 2d 672, 1987 Miss. LEXIS 2712 (Miss. 1987).

Heat pump manufacturer’s attempt in its express limited warranty to limit its liability as to any implied warranty was invalid. Fedders Corp. v. Boatright, 493 So. 2d 301, 1986 Miss. LEXIS 2478 (Miss. 1986).

Mississippi Code §11-7-18 does not create warranties; it saves warranties otherwise existing. Language in a copier-equipment lease disclaiming implied warranties of fitness for purpose and merchantability is rendered inoperative by Mississippi Code §11-7-18. J.L. Teel Co. v. Houston United Sales, Inc., 491 So. 2d 851, 1986 Miss. LEXIS 2460 (Miss. 1986).

2. Preservation for review.

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners’ warranty claims were procedurally barred. The homeowners never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against the seller and that critical fact fundamentally distinguished the case from the warranty decisions relied upon by the homeowners. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

RESEARCH REFERENCES

ALR.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew or mechanic. 13 A.L.R.2d 1137.

Failure to furnish assistance to employee as affecting liability for injury or death. 36 A.L.R.2d 8.

Duty and liability of employer to domestic servant for personal injury or death. 49 A.L.R.2d 317.

Necessity and manner of pleading assumption of risk as defense. 59 A.L.R.2d 239.

Failure to warn servant of disease or physical condition disclosed by medical examination. 69 A.L.R.2d 1213.

Applicability of state employers’ liability act to action for death caused by maritime tort within a state’s territorial waters. 71 A.L.R.2d 1304.

Hammer as simple tool within simple tool doctrine. 81 A.L.R.2d 965.

Distinction between assumption of risk and contributory negligence. 82 A.L.R.2d 1218.

State or local governmental unit’s liability for injury to private highway construction worker based on its own negligence. 29 A.L.R.4th 1188.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Am. Jur.

27 Am. Jur. 2d, Employment Relationship §§ 310-339.

57B Am. Jur. 2d, Negligence §§ 759 et seq.

20 Am. Jur. Proof of Facts 2d 667, Contributory Negligence of Passenger Accepting Ride With Driver Suffering from Drowsiness, Illness, or Physical Defects.

40 Am. Jur. Proof of Facts 2d 603, Employer’s Tort Liability Under Dual Capacity Doctrine.

CJS.

30 C.J.S., Employers’ Liability for Injuries to Employees §§ 274-348.

65A C.J.S., Negligence §§ 386-390.

Law Reviews.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L. J. 563, September 1982.

Spell, Stemming the tide of expanding liability; the coexistence of comparative negligence and assumption of risk. 8 Miss. C. L. Rev. 159, Spring, 1988.

Montagnet, Assumption of Risk in Mississippi: Eliminating the Confusion While Retaining the Defense – Independent of Comparative Negligence Principles. Comment. 64 Miss. L. J. 753 1995.

JUDICIAL DECISIONS

1. In general.

2. Assumption of risk; application.

3. Simple tool doctrine.

4. Conductors and engineers.

5. Knowledge of danger or defect, effect of.

6. Questions for jury.

7. Instructions.

1. In general.

Assumption of the risk is governed by the subjective standard of the plaintiff himself whereas contributory negligence is measured by the objective standard of a reasonable man. McMillan v. McMillan, 262 So. 2d 781, 1972 Miss. LEXIS 1325 (Miss. 1972).

The statute [Code 1942, § 1456] abolishes the assumption of risk only as between master and servant where the master is negligent, and does not abolish the assumption of risk by an independent contractor. United Roofing & Siding Co. v. Seefeld, 222 So. 2d 406, 1969 Miss. LEXIS 1533 (Miss. 1969).

Under Code 1942, § 1454, limiting application of contributory negligence, and under this section [Code 1942, § 1456], when negligence has once been shown on part of master followed by injury to servant, the only way master can entirely escape liability is to show his negligence was not a proximate cause of the injury or that the servant’s own negligence, or negligence of fellow-servant, was the sole proximate cause of the plaintiff’s injury. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Where negligence of an employer is shown, this statute [Code 1942, § 1456] abolishes the defense of assumption of risk. Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202, 1946 U.S. App. LEXIS 2188 (5th Cir. Miss. 1946).

The common-law principles touching liability of master and servant are in force in Mississippi, with slight modifications. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Under this statute [Code 1942, § 1456], assumption of the risk is not a defense to suits by employees. Montgomery Ward & Co. v. Lindsey, 104 F.2d 882, 1939 U.S. App. LEXIS 4249 (5th Cir. Miss. 1939).

Under this provision an employee does not assume the risk resulting from his employer’s negligence. Southern Kraft Corp. v. Parnell, 65 F.2d 785, 1933 U.S. App. LEXIS 3157 (5th Cir. Miss. 1933).

Under this statute [Code 1942, § 1456], the doctrine of assumption of risk does not apply to risks of employment that are attributable in whole or in part to the employer’s negligence. Motor Wheel Corp. v. Dodson, 23 F.2d 282, 1927 U.S. App. LEXIS 3180 (5th Cir. Miss. 1927).

This section [Code 1942, § 1456] abolishes the doctrine of the assumption of risks. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

The common-law doctrine of assumption of risk is in full force in Mississippi, except as between master and servant. McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350, 176 So. 395, 1937 Miss. LEXIS 91 (Miss. 1937).

2. Assumption of risk; application.

Where an employee knew by past experience with an animal that the horse had thrown employee on two previous occasions, and knew of the dangerous character of the horse, and the employer required the employee to ride the horse in connection with his work and in compliance the employee was injured by the horse, in suit for injuries sustained by the employee, he is not barred of recovery on the ground that he assumed the risk. Grillis v. Patrick, 214 Miss. 747, 59 So. 2d 341, 1952 Miss. LEXIS 516 (Miss. 1952).

It was the duty of the foreman of an ax crew when handling a highly dangerous explosive to use reasonable care to see to it that one working under him both heard and understood his warnings in due time to reach a place of reasonable safety. Hercules Power Co. v. Palmer, 30 So. 2d 804 (Miss. 1947).

An employer who permitted a woman to lift heavy bundles without assistance when it knew that she was unequal to the task through its own physician who examined the woman after she complained of severe pain and who did not disclose her condition to her was negligent within the purview of this statute [Code 1942, § 1456]. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

A woman injured in the course of her employment which required that she lift heavy bundles did not assume the risk of that employment if she thought that she was physically fit, in spite of a previous hernia operation disclosed to her employer’s physician on preemployment examination, and her fitness was approved by that physician. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

Continuation at work by a woman injured while lifting heavy bundles after requesting assistance and being denied in words reasonably interpreted by a reasonable person as constituting a threat of discharge if she would not or could not lift the bundles without help did not constitute assumption of any risk of being strained. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

Although a servant assumes the ordinary risks inherent in his work, he does not assume the risk of his master’s negligence in not furnishing sufficient help to do the work which the servant is employed to do in concert with others. Herrin Motor Lines, Inc. v. Jarvis, 156 F.2d 276, 1946 U.S. App. LEXIS 2569 (5th Cir. Miss. 1946).

Master was not liable for injuries sustained by “off-bearer” on band-saw when a slab pinned him against the frame of the saw, where the danger out of which the injury arose grew out of the work itself and not because of any defect in the place of work or the master’s machine, even though the sawyer may have been negligent, since the “off-bearer” assumed the risk of the work. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Master is not responsible for negligence of a fellow servant unless the former has in truth appointed the latter to see after some one of the master’s absolute duties and the servant has failed therein. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Work around a band-saw mill is not so dangerous and complex as to require the making and enforcement of special rules by the master so as to render it reasonably safe. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Servant assumes the ordinary risks of the work he has undertaken, including the risk that his fellow servant may not always be careful. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

This section [Code 1942, § 1456] deals alone with risks caused by the negligence of the master, not risks incident to the employment. Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689, 1940 Miss. LEXIS 174 (Miss. 1940).

Injury sustained by laundry employee in charge of linen room allegedly from lifting twelve pound packages of linen to a shelf about five feet high was not the result of the employer’s negligence, but was the result of the assumed hazards of the employment as to which this section [Code 1942, § 1456] has no application, and the employer’s superintendent was justified in telling the employee, upon her complaint, that if she did not want to place the packages on such shelf, she could quit. Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689, 1940 Miss. LEXIS 174 (Miss. 1940).

A direction by a section foreman to an employee to do the work in which the the injury occurred in which the foreman told him that he would lose his job if he did not do what he was told to do, relieved the employee from any assumption of the risk. Goss v. Kurn, 187 Miss. 679, 193 So. 783, 1940 Miss. LEXIS 240 (Miss. 1940).

Where an employee sustained injury while engaged with others in loading a box car with fertilizer, by reason of his loaded “buggy” being struck by that of another employee, such employee did not assume the risk, nor was the negligence of the fellow-servant chargeable to him, in view of the employer’s negligence in ordering the particular work to be done in an unsafe and negligent manner and in depriving the servant of the only means known to him to protect himself from injury, the employer having ordered the employees to discontinue their method of having unloaded “buggy” wait until loaded “buggy” was placed in the car. Jefferson v. Virginia-Carolina Chemical Co., 184 Miss. 23, 185 So. 230, 1938 Miss. LEXIS 318 (Miss. 1939).

Where there was evidence showing that the falling beam which had injured an employee had fallen the week before from the same hoist, such employee did not assume the risk incident to its continued operation, if the employer was negligent in requiring its use. Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63, 1938 Miss. LEXIS 293 (Miss. 1938).

That employee voluntarily assisted in lifting mat did not preclude recovery for employer’s negligence in not furnishing sufficient number of employees to move mat. Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800, 1938 Miss. LEXIS 113 (Miss. 1938).

Bridge builder’s employee, injured in fall from temporary bridge consisting of parallel stringers, did not, by using that undecked bridge, assume risk incident to its use, since servant assumes only dangers incident to service remaining after master has exercised reasonable care for servant’s safety and does not assume risk of master’s negligence in not furnishing reasonably safe place to work. Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, 1938 Miss. LEXIS 101 (Miss. 1938).

Risk assumed by servant is danger incident to service which remains after master has exercised reasonable care for safety of servants. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

Servant, who was ordered to catch and hold heavy machine which was being moved up embankment to ledge cut therein 25 or 30 feet above road level when block and tackle holding machine was released and machine slipped down, held not to have voluntarily assumed risk of injury therefrom, since he was then confronted with emergency with no time for thought or deliberation. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

Employee held not precluded from recovering for injuries sustained when he was caused to fall thirty feet from trestle because of defect in rail over which hand car was being operated, on ground of assumption of risk. Randolph Lumber Co. v. Minchew, 172 Miss. 535, 159 So. 849, 1935 Miss. LEXIS 135 (Miss. 1935).

One operating cotton gin did not assume risk increased by employer’s negligence. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

Employee at gasoline service station held not to have assumed risk of injury from stumbling over exposed air pipe. Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798, 1933 Miss. LEXIS 134 (Miss. 1933).

Employee held not to assume risk of injury resulting from overexertion, when foreman, on threat of discharge, ordered him to do work alone, for which assistance was needed, since injury resulted from foreman’s negligence. Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792, 1933 Miss. LEXIS 188 (Miss. 1933).

Employee, not under duty of inspecting machinery operated by him to see whether it is safe, does not assume risk of master’s negligence; employee, not under duty of inspecting machinery operated by him, does not assume risk of negligence of another employee, whose duty it is to inspect. Planters' Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365, 1929 Miss. LEXIS 117 (Miss. 1929).

3. Simple tool doctrine.

In action against employer for injuries sustained by employee while holding a short chisel which was being struck with heavy maul by helper, on ground that chisel, which foreman negligently required employee to use, was dangerous tool, employer was not entitled to directed verdict on ground that chisel and maul were simple tools and that employee assumed risk, since under statute servant does not assume risk where master is negligent. J. J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571, 1937 Miss. LEXIS 21 (Miss. 1937).

The master is not relieved of liability for injury from use of unsafe tools, though servant may have been as competent as master to determine suitability thereof for performance of required work, where servant is bound to obey order or subject himself to discipline for insubordination, since statute abolishes doctrine of assumption of risk when master is negligent. J. J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571, 1937 Miss. LEXIS 21 (Miss. 1937).

An automobile is not such a simple piece of machinery as to free the master from liability, but is a machine which the master must keep in a reasonable condition of safety, and this duty is nondelegable. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 1933 Miss. LEXIS 330 (Miss. 1933).

The abolition of the doctrine of assumption of risk by employees does not affect the simple tool doctrine. Middleton v. National Box Co., 38 F.2d 89, 1930 U.S. Dist. LEXIS 1837 (D. Miss. 1930); Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652, 1933 Miss. LEXIS 155 (Miss. 1933).

4. Conductors and engineers.

Engineer, directed against own judgment to clean locomotive with defective hose, held not to have assumed risk, statute not applying. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

Comparative knowledge doctrine is unavailing where servant’s injury resulted from master’s negligence. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

It is only where the conductor or engineer voluntarily operates an unsafe engine or cars that they assume the risk of the employment. Durr v. Homochitto Lumber Co., 137 Miss. 442, 102 So. 257, 1924 Miss. LEXIS 217 (Miss. 1925).

This section [Code 1942, § 1456] does not prevent an engineer while repairing an engine from claiming damages from injury caused by the fireman putting the engine in motion against the orders of the engineer. Homochitto Lumber Co. v. Albritton, 132 Miss. 405, 96 So. 403, 1923 Miss. LEXIS 58 (Miss. 1923).

5. Knowledge of danger or defect, effect of.

The doctrine of assumption of risk has been abolished only as between master and servant in certain places and where there is a relationship between a bailor and a bailee, the bailee cannot recover for injuries resulting from a defect of which the bailee knew and continued to use the defective machine after knowledge of defect. Runnels v. Dixie Drive-It-Yourself System Jackson Co., 220 Miss. 678, 71 So. 2d 453, 1954 Miss. LEXIS 483 (Miss. 1954).

It was the duty of an employer to instruct an inexperienced seventeen-year-old boy in the operation of a rip saw. Bonelli v. Flowers, 203 Miss. 843, 33 So. 2d 455, 1948 Miss. LEXIS 327 (Miss. 1948).

Sawmill company’s employee, operating gasoline motorcar on such company’s railroad with full knowledge of defective condition of horn and brakes, assumed risk of injury in resulting collision with school bus at highway crossing. Eastman, Gardiner & Co. v. Caldwell, 177 Miss. 861, 172 So. 126, 1937 Miss. LEXIS 157 (Miss. 1937).

Driver did not assume risk of driving truck with knowledge of defect in steering wheel, especially when his employer through its agent had promised to repair. Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546, 1936 Miss. LEXIS 213 (Miss. 1936).

Experienced sawmill employee knowing and appreciating danger incident to running saw assumed consequences resulting from his own reckless act when he voluntarily placed his hand in position to be thrown into saw. Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556, 1934 Miss. LEXIS 335 (Miss. 1934).

Foreman’s order to employee running saw to keep trash out of rollers and keep mill moving was not order not to stop mill to remove trash, making employer liable for injuries to employee when he placed his hand in position to be thrown into saw. Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556, 1934 Miss. LEXIS 335 (Miss. 1934).

Employee held not to have assumed risk of injury from cranking employer’s truck, where he relied upon employer’s promise to have truck repaired. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 1933 Miss. LEXIS 330 (Miss. 1933).

6. Questions for jury.

Assumption of the risk is a jury question in all but the clearest cases. McMillan v. McMillan, 262 So. 2d 781, 1972 Miss. LEXIS 1325 (Miss. 1972).

Question of employer’s negligence is for jury where employee was working on an unsafe scaffold, the condition of which was called to the attention of the foreman. Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202, 1946 U.S. App. LEXIS 2188 (5th Cir. Miss. 1946).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high voltage wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Where an employee was injured in consequence of lifting a bundle of steel rods while in an awkward posture which he had assumed by direction of his foreman, the question of the employer’s negligence, the risk of which under the statute [Code 1942, § 1456] the employee does not assume, is for the jury. Pittman v. Schultz, 125 F.2d 82, 1942 U.S. App. LEXIS 4317 (5th Cir. Miss. 1942).

In action by an employee against his employer for injuries sustained by reason of an explosion resulting from the use of gasoline in starting a fire for the purpose of heating grease guns and warming the employees in connection with the construction of a highway, questions with respect to the employer’s duty to furnish a reasonably safe place for its employees to work, reasonably safe instrumentalities to work with, and reasonably safe methods and rules under which to work were for the jury. Curry & Turner Const. Co. v. Bryan, 184 Miss. 44, 185 So. 256, 1939 Miss. LEXIS 18 (Miss. 1939).

Question of master’s liability for injuries to servant, received when servant obeyed order of foreman to catch and hold heavy machine being pulled to ledge cut in embankment 25 or 30 feet above level of roadway when block and tackle holding machine was released, held for jury. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

7. Instructions.

In an action against a contractor by his laborer for injuries sustained during the construction of a chicken house when the contractor backed a truck into the laborer, and instruction that if the jury should find that the plaintiff laborer voluntarily and knowingly placed himself in a position of danger, then the plaintiff assumed the risk of injury and could not recover, was properly refused because the doctrine of assumption of the risk is not in force as between a master and servant. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

Where evidence disclosed that injury resulted from negligence of fellow servants brought about by the direct order of the foreman, instructions eliminating entirely the question of whether the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and tending to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action, were erroneous. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

In action against truck owner for death of truck driver caused by flat tire, refusal of instruction that owner was not liable if driver was fully aware of defect in tire and of danger therefrom, was not error under statute abolishing doctrine of assumption of risk, where there was no evidence to warrant such instruction. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

RESEARCH REFERENCES

ALR.

Privity of contract as essential to recovery in negligence action against manufacturer or seller of product alleged to have caused injury. 74 A.L.R.2d 1111.

Privity of contract as essential to recovery in action based on theory other than negligence, against manufacturer or seller of product alleged to have caused injury. 75 A.L.R.2d 39.

Privity of contract as essential in action against remote manufacturer or distributor for defects in goods not causing injury to person or to other property. 16 A.L.R.3d 683.

Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property. 61 A.L.R.3d 922.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Admissibility and effect of evidence of professional ethics rules in legal malpractice action. 50 A.L.R.5th 301.

Third-party beneficiaries of warranties under UCC § 52-318. 50 A.L.R.5th 327.

Am. Jur.

17A Am. Jur. 2d, Contracts §§ 416, 417-425 et seq.

40 Am. Jur. Proof of Facts 2d 603, Employer’s Tort Liability Under Dual Capacity Doctrine.

CJS.

17A C.J.S., Contracts §§ 836 et seq.

Law Reviews.

1987 Mississippi Supreme Court Review, Corporate, contract and commercial law. 57 Miss. L. J. 467, August, 1987.

1982 Mississippi Supreme Court Review: Contract, Corporation and Commercial Law. 53 Miss L. J. 141, March 1983.

1983 Mississippi Supreme Court Review: Abolition of privity requirement in action against homebuilder. 54 Miss L. J. 99, March 1984.

Practice References.

1 Am Law Prod Liab 3d, Privity of Contract §§ 13:2, 3.

2 Am Law Prod Liab 3d, Basic Elements of Strict Liability Case § 16:53.

2 Am Law Prod Liab 3d, Privity of Contract §§ 21:38, 40.

3 Am Law Prod Liab 3d, Defects in Real Estate § 38:23.

JUDICIAL DECISIONS

1. In general.

2. Flood zone determinations.

1. In general.

Because a plaintiff who is injured due to a breach of warranty may recover from each seller of the individual product which caused the injury (so long as the product was defective when each respective seller possessed it), and because privity is not a requirement for negligence, strict liability or breach of warranty, plaintiff’s negligence and breach of warranty claims against defendant manufacturer survived a motion to dismiss. Tellus Operating Group, L.L.C. v. R & D Pipe Co., 377 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 19159 (S.D. Miss. 2005).

In an action against a skilled nursing home facility on behalf of one of its patients for failure to protect him from a fire ant attack and for failure to provide adequate medical treatment after the attack, in which the plaintiff amended the complaint to add a pest control company on the basis that it owed a duty to the patient to discover and treat cracks and crevices, the lack of privity between the plaintiff and the pest control company did not preclude the possibility of its liability for negligence. Estate of Posey v. Centennial Health Care Props. Corp., 78 F. Supp. 2d 554, 1999 U.S. Dist. LEXIS 20206 (N.D. Miss. 1999), amended, 1999 U.S. Dist. LEXIS 20249 (N.D. Miss. Dec. 17, 1999).

In legal malpractice actions based on an attorney’s negligence in performing title work, there is no longer a requirement of an attorney-client relationship, but rather, the presence or absence of an attorney-client relationship is now merely one factor to be considered in determining the duty owed; an attorney performing title work will be liable to reasonably foreseeable persons who, for a proper business purpose, detrimentally rely on the attorney’s title work and suffer a loss proximately caused by the attorney’s negligence. Century 21 Deep South Properties, Ltd. v. Corson, 612 So. 2d 359, 1992 Miss. LEXIS 804 (Miss. 1992).

The purchasers of a home were not barred from bringing a negligence action against a pest control operator, even though a real estate agent engaged the operator’s services and the purchasers had no contract with the operator, since §11-7-20 removed the privity requirement for maintaining a negligence cause of action. However, the demise of the defense of privity removes only a formalistic barrier to recovery, and did not expose the pest control operator to liability to the whole world; the door opened by the demise of privity is limited by more realistic inquiries into foreseeability and detrimental reliance. Hosford v. McKissack, 589 So. 2d 108, 1991 Miss. LEXIS 599 (Miss. 1991), modified, 1991 Miss. LEXIS 864 (Miss. Dec. 11, 1991).

In an action against a construction company for breach of implied warranties and negligent construction of a building, the trial court’s granting of summary judgment based on lack of privity was improper; §11-7-20 abolished the requirement of privity for maintaining an implied warranty or negligence action. May v. Ralph L. Dickerson Constr. Corp., 560 So. 2d 729, 1990 Miss. LEXIS 202 (Miss. 1990).

Statutory rule in §11-7-20 removes privity requirement in all cases; however, loss of privity defense in no way removes any other defense that might be enjoyed were privity defense still applicable. Hicks v. Thomas, 516 So. 2d 1344, 1987 Miss. LEXIS 2949 (Miss. 1987).

Independent auditor is liable to reasonably foreseeable users of audit who request and receive financial statement from audited entity for proper business purpose, and who then detrimentally rely on financial statement, suffering loss proximately caused by auditor’s negligence; this rule protects third parties who request, receive, and rely on financial statement, while it also protects auditor from unlimited number of potential users who might otherwise read financial statement once published; auditor, however, remains free to limit dissemination of his opinion through separate agreement with audited entity. Touche Ross & Co. v. Commercial Union Ins. Co., 514 So. 2d 315, 1987 Miss. LEXIS 2705 (Miss. 1987).

Lack of privity between buyer and manufacturer of motor home is no bar to cause of action arising under UCC § 2-314, because privity requirement was statutorily abolished in Mississippi Code Annotated §11-7-20. Hargett v. Midas International Corp., 508 So. 2d 663, 1987 Miss. LEXIS 2550 (Miss. 1987).

Heat pump manufacturer’s attempt in its express limited warranty to limit its liability as to any implied warranty was invalid. Fedders Corp. v. Boatright, 493 So. 2d 301, 1986 Miss. LEXIS 2478 (Miss. 1986).

Since §11-7-20 removes privity as a requirement in all causes of action for personal injury, property damage, or economic loss brought on account of negligence, strict liability, or breach of warranty, it plainly carries the suggestion that the privity requirement has been removed in all cases, and thus, privity of contract between the builder and the purchaser of a permanent structure on real estate is no longer a prerequisite to a viable cause of action. Keyes v. Guy Bailey Homes, Inc., 439 So. 2d 670, 1983 Miss. LEXIS 2744 (Miss. 1983).

2. Flood zone determinations.

In a case in which a home owner sued a flood zone determination company because of an erroneous flood zone determination, the company had not shown its entitlement to summary judgment as was granted by the district court. While the home owner had not ordered the determination, privity was not the issue; the proper inquiry was whether it was reasonably foreseeable that she would receive and rely on the report and whether the company could have reasonably foreseen that the owner would rely on the flood determination, not whether she was a member of a limited group for whose benefit the determination was intended. Paul v. Landsafe Flood Determination, Inc., 550 F.3d 511, 2008 U.S. App. LEXIS 25297 (5th Cir. Miss. 2008).

Editor’s Notes —

Former §11-7-21 pertained to objections to nonjoinder or misjoinder of a plaintiff.

Former §11-7-23 pertained to objections to nonjoinder or misjoinder of a defendant.

Former §11-7-25 pertained to death of a party or coparty when there were two or more plaintiffs or defendants.

Former §11-7-27 provided that an action would not be abated by the death of a nominal plaintiff.

Cross References —

Execution of judgment after death of party, see §§13-3-149,13-3-151.

Rule relative to substitution upon death of party, see Miss. R. Civ. P. 25.

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 382, 386.

CJS.

49 C.J.S., Judgments §§ 854-864.

JUDICIAL DECISIONS

1. In general.

Where at the time the chancellor rendered his opinion the defendant was dead and the cause was not revived against the duly acting executor, the final decree and subsequent proceedings amount to a nullity, and the Supreme Court, having no jurisdiction, dismissed the appeal without prejudice to any right of the appellee to revive the action. Owen v. Abraham, 233 Miss. 558, 102 So. 2d 372, 1958 Miss. LEXIS 417 (Miss. 1958).

As to jurisdiction over defendant shown by the pleadings, see J. J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11, 1922 Miss. LEXIS 105 (Miss. 1922).

Editor’s Notes —

Former §11-7-31 provided that actions by or against certain public officers, trustees or commissioners would not abate on account of the change of the person occupying such position.

Former §11-7-33 provided that the manner of commencing an action in the circuit court was by filing a declaration.

Former §11-7-35 pertained to content of the declaration.

Former section 11-7-36 authorized the pleading of different grounds for relief in a single declaration.

Former §11-7-37 pertained to a statement of venue in pleadings.

Former §11-7-39 specified how names of unknown defendants should be stated.

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parties §§ 15-19, 21-23, 27.

CJS.

67A C.J.S., Parties § 204.

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parties §§ 66-68.

59A Am. Jur. 2d, Partnership §§ 200 et seq.

CJS.

67A C.J.S., Parties §§ 205, 208.

JUDICIAL DECISIONS

1. In general.

In action on notes brought against defendants as copartners, allegation that defendants were copartners by virtue of certain conveyance was unnecessary; it being sufficient to allege that defendants were copartners and executed notes by partnership name. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

The names of persons composing the firm should be set out in the pleadings. Ivy v. Evans, 132 Miss. 652, 97 So. 194, 1923 Miss. LEXIS 98 (Miss. 1923).

Partners cannot sue or be sued by their partnership name. Blackwell v. John Reid & Co., 41 Miss. 102, 1866 Miss. LEXIS 19 (Miss. 1866).

Editor’s Notes —

Former §11-7-45 required that a copy of the account or writing upon which the action is founded be filed with the declaration.

Former §11-7-47 required that a copy of any writing of which proffer was to be made be annexed to or filed with the pleading.

Former §11-7-49 required that in all actions on bonds with a condition, plaintiff state the condition and assign breaches thereof in his declaration.

Former §11-7-51 required that in actions of trespass to land, the place of the alleged trespass be described.

Former §11-7-53 provided that in actions for libel or slander, the plaintiff need only aver the defamatory sense of words or matter complained of, and that in certain cases, the declaration was sufficient.

Former §11-7-55 pertained to amendment of declarations.

Former §11-7-57 made all provisions in reference to declarations applicable to pleas of defendants and to all subsequent pleadings.

Former §11-7-59 abolished pleas in the circuit court, and provided that defenses be set up by way of answer.

Former §11-7-61 pertained to giving evidence of mitigating circumstances notwithstanding a plea of not guilty in certain actions.

Former §11-7-63 pertained to pleading and setting off against demand by plaintiff debts or demands defendant had against plaintiff.

Former §11-7-65 required defendant to file with his plea a statement of items or writings to be set off.

Cross References —

Rule relative to substitution upon death of party, see Miss. R. Civ. P. 25.

Rules providing that all claims be presented as claims, counterclaims, or cross-claims, see Miss. R. Civ. P. 8, 13.

JUDICIAL DECISIONS

1. In general.

The sale of a dairy farm and the subsequent shooting of the purchaser by the seller do not constitute mutual dealings as contemplated by this section [Code 1942, § 1483], for an unliquidated tort claim cannot be lawfully set off against certain promissory notes executed by the purchasers of the farm payable to the sellers and evidencing a portion of the purchase price. Weaver v. Mason, 228 So. 2d 591, 1969 Miss. LEXIS 1395 (Miss. 1969).

In suit to set aside decree approving executor’s account, balance actually due executor as an individual under personal account with testatrix should be ascertained pursuant to rule that entries in books of account are mere evidence of facts, and to statute requiring balance resulting from mutual dealings to be ascertained on death of one party. Howell v. Ott, 182 Miss. 252, 180 So. 52, 181 So. 740, 1938 Miss. LEXIS 139 (Miss. 1938), limited, Kent v. McCaslin, 238 Miss. 129, 117 So. 2d 804, 1960 Miss. LEXIS 387 (Miss. 1960).

An account distinct from mutual dealings with the parties must be probated against the estate of one dying. Cohn v. Carter, 92 Miss. 627, 46 So. 60, 1908 Miss. LEXIS 202 (Miss. 1908).

A debt due by a deceased person cannot be set off against a note given to the administrator for a part of the property sold by him. Mellen v. Boarman, 21 Miss. 100, 1849 Miss. LEXIS 146 (Miss. 1849); Bales v. Hyman, 57 Miss. 330, 1879 Miss. LEXIS 83 (Miss. 1879).

Editor’s Notes —

Former §11-7-69 pertained to the pleading of counterclaims.

Former §11-7-71 authorized the pleading of payments made at or after maturity.

Cross References —

Acts constituting criminal trespass, generally, see §§97-17-79 et seq.

Rule governing the forms of denial and defenses, see Miss. R. Civ. P. 8.

RESEARCH REFERENCES

Am. Jur.

75 Am. Jur. 2d, Trespass §§ 61, 64.

CJS.

87 C.J.S., Trespass §§ 83-85.

Editor’s Notes —

Former §11-7-75 provided that whenever any pleading concluded to the county, issue would be considered joined thereon, unless demurrer thereto was filed.

Former §11-7-77 pertained to the payment of costs when pleading was held to be insufficient.

Former §11-7-79 pertained to assignment of causes when demurrer interposed.

Former §11-7-81 pertained to judgment on overruling a demurrer to a declaration.

Former §11-7-83 specified the judgment when a demurrer to a plea matter of the defendant is sustained.

Former §11-7-85 authorized the court to refuse a frivolous demurrer.

Former §11-7-87 stated that a joinder in demurrer was not required in any case.

Former §11-7-89 stated that express color and special traverse were not required in any pleading.

Former §11-7-91 required that a pleading be signed by the party or his attorney.

Former §11-7-93 abolished special demurrers.

Former §11-7-95 specified how the court could deal with obscure, irrelevant or redundant matters in pleadings.

Former §11-7-97 pertained to bills of particulars.

Former §11-7-99 authorized the omission of allegations that were not material or traversable.

Former §11-7-101 provided that formal defense was not required in an answer.

Former §11-7-103 provided that is was not necessary to use allegations of actionem non and of precludi non.

Former §11-7-105 stated that if a private statute was pleaded, it was sufficient to refer to it by its title and the date of its passage.

Cross References —

Method of establishing private way, see §65-7-201.

Editor’s Notes —

Former §11-7-109 specified how to plead the performance of conditions precedent.

Former §11-7-111 specified how to plead a judgment or other determination of a court.

Former §11-7-113 pertained to defendant’s offer and payment of compensation or amends before trial.

Former §11-7-115 authorized the court to allow amendments to be made to pleadings at any time before verdict.

Former §11-7-117 specified what variance between allegations and proof were deemed material.

Former §11-7-119 pertained to the effect of one faulty count out of several counts.

Former §11-7-121 pertained to when a defendant should plead, when pleas would be tried, and judgments by default.

Former §11-7-123 pertained to affidavits for continuance.

Former §11-7-125 provided that every plaintiff desiring to suffer a nonsuit on a trial would be barred therefrom unless he did so before the jury retired to consider the verdict.

Former §11-7-127 pertained to the plaintiff suffering a nonsuit before the clerk in vacation.

Former §11-7-129 authorized the parties to waive trial by jury to an issue of fact in actions on contract.

Cross References —

Chancery proceedings in vacation, see §9-5-105.

JUDICIAL DECISIONS

1. In general.

There has been a vast expansion by statutory enactment of the times within which circuit judges are lawfully empowered to conduct court affairs. Although the Mississippi Constitution contemplates circuit courts being held at fixed, stated terms provided by statute, and the circuit courts of this State have had fixed terms, the legislature by various enactments-§§11-1-7,11-7-131 to 133,11-7-121,11-1-16, and9-7-3-has granted circuit courts wide latitude in taking official actions in vacation. [11-1-7,11-7-133 and11-7-121 were repealed] Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Where a circuit judge took under advisement the plaintiffs’ motion for leave to amend their declaration and it was not overruled until the next succeeding term of court had passed, the plaintiffs’ right to appeal from the court’s order to the Supreme Court remained, for until the order of dismissal was entered no statute of limitations ran against the parties’ right to appeal under Code 1942, § 753. McGill v. City of Laurel, 252 Miss. 765, 168 So. 2d 50 (1964).

Where a motion to set aside a judgment for a certain sum is continued and overruled at a subsequent term but the judgment allowed to stand for a less sum, a judgment recovered and enrolled during the interval is prior in lien. Crane v. Richardson, 73 Miss. 254, 18 So. 542, 1895 Miss. LEXIS 80 (Miss. 1895).

Motion for a new trial cannot be kept under advisement longer than the term next succeeding. The section [Code 1942, § 1522] does not apply to motions for new trials as to taking under advisement. Scarborough v. Smith, 52 Miss. 517, 1876 Miss. LEXIS 249 (Miss. 1876); Ross v. Garey, 8 Miss. 47, 1843 Miss. LEXIS 56 (Miss. 1843); Luther v. Borden, 48 U.S. 1, 12 L. Ed. 581, 1849 U.S. LEXIS 337 (U.S. 1849); Kane v. Burrus, 10 Miss. 313, 1844 Miss. LEXIS 149 (Miss. 1844); McClure v. Houston, 18 Miss. 392, 1848 Miss. LEXIS 98 (Miss. 1848); Coopwood v. Prewett, 30 Miss. 206, 1855 Miss. LEXIS 87 (Miss. 1855); Hudson v. Strickland, 49 Miss. 591, 1873 Miss. LEXIS 149 (Miss. 1873).

Editor’s Notes —

Former §11-7-133 authorized circuit court judges to decide cases in vacation, and, with consent of the parties, try cases in vacation.

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error § 315.

JUDICIAL DECISIONS

1. In general.

Where a minor and his parents were represented by counsel in a youth court, and counsel could have prepared and sent up on appeal a bill of exceptions reflecting proceedings or facts which transpired in that court but did not do so, the Supreme Court in deciding the appeal could consider only such record as was properly before it. In re Simpson, 199 So. 2d 833, 1967 Miss. LEXIS 1315 (Miss. 1967).

In such case a motion for a new trial is not contemplated by the statute; the bill of exceptions must be taken to the judgment. Quin v. Myles, 59 Miss. 375, 1882 Miss. LEXIS 120 (Miss. 1882).

Editor’s Notes —

Former §11-7-137 authorized the referral of all issues in an action to referees.

Former §11-7-139 authorized the referral to referees of all cases in which matters of account were in controversy.

Former §11-7-141 authorized either party to file exceptions to the report of a referee.

Former §11-7-143 specified the powers of the referee.

Former §11-7-145 pertained to peremptory challenges in civil suits.

Cross References —

Number of counsel to be heard in criminal case, see §99-17-11.

RESEARCH REFERENCES

ALR.

Propriety of trial court order limiting time for opening or closing argument in civil case-state cases. 71 A.L.R.4th 130.

Propriety of trial court order limiting time for opening or closing argument in criminal case-state cases. 71 A.L.R.4th 200.

Am. Jur.

75A Am. Jur. 2d, Trial §§ 429-439.

CJS.

88 C.J.S., Trial §§ 263-275.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 7:1.

JUDICIAL DECISIONS

1. In general.

On the inmate’s petition for post-conviction relief, the court held that counsel was not ineffective for failing to give an opening statement because opening statements were not mandatory under Miss. Code Ann. §11-7-147. Spicer v. State, 973 So. 2d 184, 2007 Miss. LEXIS 619 (Miss. 2007).

After the district attorney stated that the prosecution did not desire to make an opening statement, the trial court did not err in postponing defendant’s opening statement until immediately before he presented his evidence, where there was no showing of manifest abuse of discretion or that substantial prejudice resulted. Black v. State, 308 So. 2d 79, 1975 Miss. LEXIS 1831 (Miss. 1975).

Inasmuch as testimony of witness as to earlier occasion when television antenna fell on power lines causing damage was admissible, plaintiff’s attorney in a wrongful death action resulting from electrocution had a right to mention it in his preliminary statement to the jury. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Cross References —

Control of jurors by court, see §13-5-83.

View of place by jury, see §13-5-91.

Another section derived from same 1942 code section, see §97-9-57.

Provision that jurors must avoid all contacts with lawyers, litigants, witnesses, or spectators, see Uniform Circuit Court Rule 3.10.

RESEARCH REFERENCES

ALR.

Prejudicial effect, in criminal case, of communication between court officials or attendants and jurors. 41 A.L.R.2d 227.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors. 41 A.L.R.2d 288.

Am. Jur.

75B Am. Jur. 2d, Trial § 1330.

24 Am. Jur. Proof of Facts 2d 633, Jury Misconduct Warranting New Trial.

CJS.

89 C.J.S., Trial §§ 782-789.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 35:3, 35:12.