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Mississippi Power & Light Co. v. Cook12/5/2002
reason for not disclosing this information to the bankruptcy court, and the jury was allowed to take this into consideration in determining the credibility of Cook. It is for the jury, not a reviewing court, to determine the credibility of a witness. See Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983); Independent Life & Acc. Ins. Co. v. Mullins, 252 Miss. 644, 173 So. 2d 663, 651 (1965). The jury has the opportunity to observe the witness, whereas, a reviewing court does not have that luxury. Cook stated, "My attorney said as far as he was concerned the case was dead. He recommended it not be included."
. Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite. Mauck v. Columbus Hotel Co., 741 So. 2d 259, 264 (Miss. 1999); Skipworth v. Rabun, 704 So. 2d 1008, 1015 (Miss. 1996). This Court stated the following in Beyer v. Easterling, 738 So. 2d 221, 227 (Miss. 1999):
Clearly, testimony given in a prior action does not estop the witness from testifying to the contrary in a subsequent action against one not a party to the prior action, where the former testimony was given by mistake or inadvertence or without full knowledge of the facts and is so explained by the witness in a subsequent action. In other words, the oath, to be binding as an estoppel, must be willfully false, or must have the effect of misleading the other party to his injury ....28 Am.Jur.2d Estoppel and Waiver ยงยง 71, at 702 (1996)(footnotes omitted).
Cook explained his actions in the bankruptcy proceeding, and it was correctly left to the jury to determine his credibility. Cook did not make a willfully false statement that led MP&L;to injury . On the advice of counsel, Cook did not disclose the present lawsuit because he thought it was dead. Additionally, MP&L;was not a debtor to whom Cook owed money in the bankruptcy proceeding. This issue is without merit.
VII. WHETHER THE COURT ERRED IN FAILING TO GRANT JURY INSTRUCTION D-14 REGARDING MP&L;S QUALIFIED PRIVILEGE TO COMMUNICATE WITH CIGNA REGARDING THE ADMINISTRATION OF A CLAIM MADE UNDER THE CIGNA POLICY.
. Cook testified that his signature on a CIGNA authorization form gave MP&L;authority to process his long-term disability payments. Based on this testimony it is clear that the jury could decide if they felt that MP&L;acted with bad faith in notifying CIGNA of Cook's pastor job that was in the newspaper. Certainly MP&L;had an interest in keeping its payments down to CIGNA. It is clear from the release that Cook signed that MP&L;had the authority to release to CIGNA any information regarding employment or income about Cook.
. As stated previously herein, when reviewing jury instructions on appeal, they must be read as a whole. See Rials v. Duckworth, 822 So. 2d 283, 286 (Miss. 2002); Sentinel Indus. Contracting Corp., 743 So. 2d at 968. It is not certain that taken as a whole the failure of the trial court not to include an instruction focusing on the relationship between CIGNA and MP&L;would have affected the outcome of this trial. The jury was in a position to determine whether the actions made by MP&L;in regards to CIGNA were made in bad faith. The testimony regarding the release was clearly in the record and there for the jury to consider in reaching its verdict.
VIII. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED COOK TO CROSS-EXAMINE MP&L;S ROBERT HEMPHILL ABOUT THE APPORTIONMENT STATUTE.
. The portion of the statute that MP&L;argues should not have been brought bef
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