                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 96-CT-01387-SCT
CAROL FAITH PIKE, EXECUTRIX OF THE ESTATE OF B. L. STRONG, DECEASED
v.
HOWELL BUILDING SUPPLY, INC., HOWELL CONSTRUCTION COMPANY, INC. AND
UNITED STATES FIDELITY & GUARANTY COMPANY
                                     ON WRIT OF CERTIORARI
DATE OF JUDGMENT:                                      08/30/96
TRIAL JUDGE:                                           HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                             LEAKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                               PATRICK MALONE RAND
                                                       ROBERT B. OGLETREE
ATTORNEY FOR APPELLEES:                                ROBERT BROOKS
NATURE OF THE CASE:                                    CIVIL - CONTRACT
DISPOSITION:                                           REVERSED-10/07/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                        10/28/99

     EN BANC.
     MILLS, JUSTICE, FOR THE COURT:
¶1. In her complaint, plaintiff alleged both breach of contract and simple and gross negligence in the
construction of a convenience store. At trial, defendants were allowed an "assumption of the risk"
instruction, in effect precluding recovery. The jury found in favor of the defendants, and judgment was
entered accordingly. The Court of Appeals reversed and remanded, finding the instruction to be improper,
but also finding that all of the factors of assumption of risk should be set out on re-trial. This was error.
Furthermore, the facts presented established that there was insufficient proof of negligence or breach of
contract to submit to a jury in this case, and a directed verdict should have been granted for the defendants.
Therefore, we reverse the judgment of the Court of Appeals with the result that the judgment of the Leake
County Circuit Court is reinstated and affirmed.

                                                  FACTS

¶2. On May 13, 1987, Doris Strong entered into a construction contract with Howell Building Supply, Inc.
and Howell Construction Company, Inc. This contract provided for the construction of a convenience store
on Highway 35 North in Leake County, Mississippi. The convenience store was to have gas tanks and
pumps. Construction and installation of these items were contracted separately by Doris Strong with
Winstead Petroleum Equipment Company. Howell subcontracted the pouring of the concrete for the store
to George "Bud" Burnside.

¶3. When the time came to pour the concrete directly above the gas tanks, Burnside expressed concern
about how the tanks had been installed. His opinion was the dirt placed around the tanks was not of the
right type to be sufficiently compacted to provide adequate support for the concrete on top. He expressed
his concerns to Doris Strong and her husband B.L. Strong, as well as Clark Howell, owner of Howell
Building Supply, Inc. and Howell Construction Company, Inc. B.L. Strong then asked Burnside if extra
steel in the concrete would make any difference. Burnside responded in front of Doris Strong that adding
extra steel would not hurt but in the end the concrete would still not hold up.(1) Howell was aware of the
problem and B.L.'s suggestion of extra steel.

¶4. Burnside went ahead and added the extra steel and poured the concrete, apparently with Howell's
knowledge. However, as predicted, over time the concrete gave way causing a gas line to rupture. As a
result, Doris Strong brought suit in the Leake County Circuit Court against Howell Building Supply, Inc.,
Howell Construction Company, Inc., United States Fidelity and Guaranty Company, and Winstead
Petroleum Equipment Company.(2) Doris Strong eventually assigned her interest in this case to the Estate of
B.L. Strong. After deliberations, the jury returned a verdict for the defendants, and judgment was entered
accordingly. On appeal, Doris maintains that the following instruction submitted by the defendants
improperly instructed the jury regarding the assumption of risk defense:

      If you find from a preponderance of the evidence in this case that Doris Strong, before the pouring
      and finishing the concrete, was informed of the fact that the underground fuel tanks had been
      improperly compacted and, that she chose to have the concrete poured and finished anyway, then
      Doris Strong assumed the risk of damage and Plaintiff cannot recover from the Defendants, Howell
      Building Supply, Inc., Howell Construction Company, Inc., for any damages resulting therefrom.

                                                ANALYSIS

¶5. The use of the language "assumed the risk" in this instruction was a poor choice of words, leading the
trial court and the Court of Appeals through an incorrect application of the law of assumption of risk. The
assumption of risk defense applies to personal injury tort actions. While the appellant did charge negligent
construction, this is primarily a contract action, and assumption of risk is inapplicable to this case.

¶6. Quite simply, this case deals with notice and waiver. Regarding this issue, we have previously said that

      [A] contractor who knows, or should know of a defect in a particular subsoil does not perform his
      contractual obligations in a workmanlike manner if he fails to notify the owner of the existence of the
      condition.

      Annotation, Duty of Contractor to Warn Owners of Defects in Subsurface Conditions, 73
      A.L.R.3rd 1213, 1215, (1976).

      "Mr. Lewis (the contractor) had a duty to volunteer information as to the contents of the fill and
      underlying soil." Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1198 (Alaska 1975);
      Rippy v. Phipps, 475 P.2d 646 (Colo.App.1970); Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268
      (1967); Greneaux v. Castle I, Inc., 404 So.2d 309 (La.App.1981) ("For the contractor has expert
      knowledge of such things, or should have, and he must bring these things to the attention of the
      owners, who have no knowledge of such affairs." 404 So.2d at 311) (quoting Wurst v. Pruyn,
      supra; Luxurious Swimming Pools, Inc. v. Tepe, 177 Ind.App. 384, 379 N.E.2d 992, 996 (1978)
      ; Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978).
George B. Gilmore Co. v. Garrett, 582 So.2d 387, 393 (Miss. 1995).

¶7. We have also found that

      In 17 C.J.S., Contracts, § 491, p. 992, it is said "A party to a contract may waive provisions for his
      benefit; and likewise there may be a waiver of conditions precedent or severable stipulations." See
      also Moore v. Yazoo & M.V.R. Co., 176 Miss. 65, 166 So. 395; Tower Underwriters, Inc., v.
      Culley, 211 Miss. 788, 53 So.2d 94; Oden Construction Co. v. Helton, 218 Miss. 41, 65 So.2d
      442; 12 Am.Jur. pg. 918, Sec. 354. A waiver may be inferred from the actions and conduct of the
      parties. Waiver usually results when there is an intentional relinquishment of a known right. 17 C.J.S.,
      Contracts, § 492, p. 995. . . .

Mariani v. Hennington, 229 Miss. 212, 226, 90 So.2d 356, 362 (1956).

¶8. In this case, a directed verdict for the contractor would have been appropriate under this notice and
waiver analysis. As previously pointed out in George B. Gilmore Co., supra, this Court held that a
contractor has a duty to warn as to the content of the fill and underlying soil. In the case sub judice, it is
clear that the contractor, via its subcontractor, warned the owners of the unstable soil fill around the gas
tanks, and that the concrete would not be adequately supported. The duty to notify the owners was fulfilled.
Thereafter, the actions of the Appellants in instructing the contractor to proceed constituted a waiver of any
defect in the pouring of the concrete caused by the insufficient fill and compaction of the underlying soil.
Judge McMillin, writing the Court of Appeals dissent in this case, aptly addressed this premise as follows:

      . . . In this case, we have an issue of an act by the contractor that, in itself, is neutral in terms of
      negligence. Pouring concrete over poorly compacted soil, knowing that the concrete will not last as
      long as it would if the underlying soil were better compacted, is not, in itself, a negligent act. It may be
      a poor decision from a business standpoint if one hopes to enjoy the use of the poured concrete for
      an extended period of time, but that does not necessarily make the act negligent.

      In the same context, an owner's decision, in the midst of a construction project, to forego the added
      expense of further soil compaction efforts and merely hope that adding steel reinforcement to the
      overlying concrete will provide the usability the owner desires -- even in the face of informed opinion
      that this is not the likely result -- does not invoke considerations of competing negligence that is a
      necessary consideration in a comparative negligence case.

¶9. The case went to the jury. The jury found for the contractor. Even if the instruction which "caused" the
Court of Appeals to reverse was not proper, it was not reversible error. In Wallace v. J.C. Penney Co.,
236 Miss. 367, 109 So. 2d 876 (1959), this Court found that an assumption of risk instruction was error
because it eliminated any distinction between assumption of risk and contributory negligence. This Court
affirmed despite the error because "[N]o judgment shall be reversed on the ground of misdirection to the
jury ... unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a
miscarriage of justice." 236 Miss. at 373, 109 So. 2d at 878 (quoting Miss. Sup. Ct. R. 11). As the Court
explained, "[E]rror in instructions is not prejudicial as against an unsuccessful plaintiff who has no cause of
action, who is not entitled to recover in any event, or who fails in his evidence to support the cause of
action. . . ." 236 Miss. at 373, 109 So. 2d at 878 (quoting 3 Am. Jur. Appeal & Error § 1112). See also
M.R.C.P. 61.
¶10. In the instant case, the jury's verdict is not a miscarriage of justice. As also pointed out by Judge
McMillin in his dissent, what else could the subcontractor, and hence the contractor, do? The owner was
told - the duty was satisfied - and the owner chose to proceed. The owner failed to prove that the contract
was wilfully breached and failed to show that the contractor was negligent or grossly negligent.

¶11. For these reasons, we reverse the judgment of the Court of Appeals with the result that the judgment
of the Leake County Circuit Court is reinstated and affirmed.

¶12. REVERSED.

      PRATHER, C.J., PITTMAN, P.J., SMITH, WALLER AND COBB, JJ.,
      CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN
      OPINION JOINED BY SULLIVAN, P.J. BANKS, J., CONCURS IN
      PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
      OPINION.
      McRAE, JUSTICE, DISSENTING:
¶13. Because the trial court erred in giving the jury an instruction on assumption of the risk, this case should
be reversed and remanded for a new trial. The majority opines that while the instruction may have been
given in error, it matters not because the trial court should have granted a directed verdict to the defendants
because "there was insufficient proof of negligence or breach of contract" in this case. This issue was not
raised and is not properly before us. A careful examination of the testimony, however, demonstrates that the
majority is wrong; there was sufficient evidence to make out a jury instruction on the issues of negligence
and breach of contract. store. Most of the work was contracted to Howell Building Supply, Inc. and
Howell Construction Co., Inc. The installation of the gas tanks and pumps was handled by another
contractor, but the contract with Howell specified that it was Howell's duty to pour and finish the concrete
around the store. Clark Howell sub-contracted the concrete job to Bud Burnside. Clark testified that when
Burnside became concerned that the soil above the gasoline tanks was not properly compacted, Burnside
informed B.L. ("Bill") Strong and Howell of the problem, and Bill Strong stated that they would just add
extra steel. Howell was not positive that Doris Strong was involved in this discussion.

¶14. Howell was asked whether Doris Strong indicated that they were to pour the concrete in spite of the
problem with the soil.

      A. No, sir. The indication was that maybe we could add some steel to what he already had there. We
      had bar mesh. Add some steel, and Bud testified a few minutes ago about putting steel in, and we
      added 35 bars of steel.

      Q. I will ask you whether or not you led Doris Strong to believe that putting this steel in there would
      cure the problem?

      A. No, sir. We didn't know it would cure the problem, because, really, it needed to have been
      compacted a little better. We felt like this might help.

¶15. At Howell's deposition, however, when asked whether Burnside had informed the Strongs of the
problem with the soil, Howell responded "I don't know." Howell testified that he did not know why he
testified thusly at his deposition.

¶16. John Fair was hired to clean up the site after the concrete fall and caused the gas line to rupture. He
testified that the concrete did not contain any steel rebar only some wire reinforcement. In Fair's opinion,
use of steel rebar would have prevented the concrete from cracking as it did.

¶17. Burnside testified that he informed the Strongs and Howell that there was a problem with the dirt. Mr.
Strong asked whether reinforcing the steel with extra concrete would suffice. Burnside told him that it would
not hurt but that he still thought it would not work. Burnside stated that the next day he poured the concrete
because a fellow told him that "You are doing the concrete and I'm installing the tanks." Bill Strong ordered
35-40 bars of steel, and Burnside incorporated those into the job. It does not appear that Strong assumed
anything or authorized the work to proceed without it being properly done.(3)

¶18. The trial court gave the jury an instruction that directed the jury to find for the defendants if Doris
Strong was informed of the compaction problem and chose to have the concrete poured and finished
anyway because, in doing so, Doris Strong assumed the risk of damage.

¶19. The use of the term "assumption of the risk" in the jury instruction was error. The assumption of the
risk doctrine has been subsumed into that of comparative negligence. No longer will assumption of the risk
operate as a complete bar to recovery. See Churchill v. Pearl River Basin Dev. Dist., No. 96-CA-
01384-SCT, 1999 WL 333433, at *4 (Miss. May 27, 1999).

¶20. This Court has previously held that a contractor who knows of a defect in the soil has a duty to warn
the owner of the problem. Parker v. Thornton, 596 So.2d 854, 858 (Miss. 1992); George B. Gilmore
Co. v. Garrett, 582 So.2d 387, 393 (Miss. 1991).

¶21. In this case, the evidence that the owner, Doris Strong, was given a warning of the soil defect was not
so overwhelming as to have required a directed verdict for the defendants. Howell was not positive that
Doris Strong was notified by Burnside. Moreover, Howell's testimony that Bill Howell was warned by
Burnside was impeached by Howell's deposition testimony when he stated that he did not know if Burnside
had warned the Strongs. Furthermore, after the warning may or may not have been conveyed to Bill and/or
Doris Strong, the evidence does not demonstrate that Bill Strong ordered the concrete to have
been poured despite the soil hazard. At most, Bill Strong suggested the addition of steel, and both
Howell and Burnside went along with this suggestion. Assuming that Howell and Burnside did not feel that
steel was a sufficient remedy for the problem, it is unclear that either man informed Strong of this opinion.
More importantly, it would seem from Burnside's testimony that he poured the concrete after having been
directed to by neither Strong nor Howell but by the contractor responsible for installing the gasoline tanks.
All in all, there was sufficient evidence to withstand a directed verdict for the defendants in this case.

¶22. Another reason I disagree with the majority's disposition in this case is the fact that this issue was not
raised in the Court of Appeals or on a petition for certiorari. Nor did the defendants file a cross-appeal
complaining that the trial court erred in failing to grant a directed verdict for the defendants. Because that
issue was never raised, it is not properly before this Court. Therefore, the majority errs when it opines that
the trial court should have granted a directed verdict for the defendants. See, e.g., Board of Trustees v.
Knox, 688 So.2d 778, 782 n.1 (Miss. 1997) (declining to consider "points of error" raised by appellee
who did not file cross appeal); Reynolds v. State, 585 So.2d 753 (Miss.1991) (refusing to address an
allegation of error raised by the State regarding the appellant's sentence when no cross-appeal had been
filed); Beck Enterprises, Inc. v. Hester, 512 So.2d 672, 678-79 (Miss. 1987) (Court will not consider
issues not raised on direct appeal or on cross-appeal).

¶23. In view of the above, a new trial is required. Therefore, I dissent.

      SULLIVAN, P.J., JOINS THIS OPINION.
      BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
      PART:
¶24. I concur in the result reached by the majority. I do not agree, however, that Howell Building Supply,
Inc., was entitled to a directed verdict. It is my view that the instruction in question, while inartfully worded,
adequately put the question to the jury whether the Strongs had notice of the potential soil problem and
elected to proceed. While the term "assumed the risk" was used rather than the language of notice and
waiver, the effect on lay jurors is, in my view, the same.

¶25. As Justice McRae points out, the facts of notice and waiver are jury issues. While I would not direct a
verdict, neither would I disturb the one reached by this jury.

1. B.L. Strong was not a party to the contract.

2. A "Suggestion of Bankruptcy" for Winstead Petroleum was properly filed with the trial court, leaving only
the remaining defendants to the action.

3. BL. Strong died in May, 1992, and, thus, did not testify at the trial which was held four years after his
death. The complaint was originally filed by Doris Strong in June, 1990. After her husband's death, Doris
conveyed her interest in the property to the estate of B.L. Strong, the executrix of which was the Strongs'
daughter, Carol Faith Strong Pike.
