author: PATTERSON, Chief Justice,

text:
    PEPSI COLA BOTTLING COMPANY OF TUPELO, INC., and Federated Mutual Insurance of Atlanta v. Woodrow Wilson LONG.
    No. 50408.
    Supreme Court of Mississippi.
    July 26, 1978.
    As Modified On Denial of Rehearing Aug. 23, 1978.

      Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellants.
    Parker, Averill, Funderburk & Butts, Paul S. Funderburk, Tupelo, for appellee.
    Before PATTERSON, LEE and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is a workmen’s compensation appeal by the employer, Pepsi Cola Bottling Company of Tupelo, Inc. and the carrier, Federated Mutual Insurance of Atlanta, from a judgment of the Circuit Court of the First Judicial District of Chickasaw County.

At the time of an alleged accident on March 9, 1972, Woodrow Wilson Long, the claimant, worked for Pepsi Cola Bottling Company of Tupelo, Inc. as a route salesman. On that day he hurriedly jumped into his truck, striking his head against the cab door. He testified that something popped in his neck and later became sore and that ever since he has suffered neck pain. He reported the accident to his employer but never received compensation benefits.

Dr. Eugene M. Murphrey examined claimant on June 6, 1972, for complaints of head, neck and shoulder pain. X-rays indicated a narrowed disc space with some hy-pertrophic osteoarthritic changes in the cervical spine. Dr. Murphrey referred claimant to Dr. Forrest T. Tutor. Correspondence from Dr. Tutor dated June 16, 1972, indicated the patient’s symptoms did not coincide with the location of the narrowed disc, no nerve root irritation was found, and the patient was assured nothing was wrong with his neck. Dr. Tutor prescribed a muscle relaxant and instructed him to report if there was no improvement.

Claimant suffered a sprained back in August 1972 and received compensation for this injury which did not affect the alleged neck injury. Although he saw Dr. Mur-phrey subsequent to June 6, 1972, these visitations were not related to the neck injury.

Long testified that while driving the company truck in September 1974, he nearly experienced blackouts and had to stop on the side of the road. He nevertheless continued his work until September 8, 1974.

Dr. James T. Robertson, a neurologist, who first saw the claimant on October 4, 1974, diagnosed a sub-acute cervical disc syndrome, hospitalized him and later after more intense examination discovered cervical spondylosis or deterioration of a cervical disc. He testified the cause of the pain was one of two things, either a previous deterioration of the disc aggravated by an injury or the accident was the primary cause. Further, he stated maximum medical recovery had not been obtained and he was inclined to believe Long was disabled because of the painful nature of his neck. Dr. Robertson advised surgery if claimant failed to respond to conservative treatment.

In December 1974 claimant filed a motion to controvert which was answered and the cause was heard by an administrative judge who dismissed it for lack of jurisdiction because of failure to file for compensation benefits within two years of the accident on March 9, 1972. [Miss.Code Ann. § 71-3-35 (1972)]. Claimant appealed to the full commission, which affirmed the earlier decision and then appealed to the Circuit Court of the First Judicial District of Chickasaw County which reversed the commission’s order. In its opinion the trial court found claimant “acted as a reasonable and prudent person concerning his injury and that the injury caused a progressive deterioration of a disc which was not disabling until about 8th day of September 1974.”

Appellants assign as error that the trial court erred in (1) reversing the commission’s order dismissing the cause for lack of jurisdiction, (2) reversing the commission’s finding of fact which was based on substantial evidence, and (3) ordering that September 8,1974, was the date of injury and that the average weekly wage for the fifty-two weeks preceding this date be used to determine disability benefits.

As to appellants’ first contention, we agree with the trial court that claimant was not barred by the statute of limitations. Mississippi Code Annotated section 71-3-35 (1972), provides that if no payment for compensation is made other than medical treatment or burial expense, and no application for benefits is filed within two years from the date of the injury or death, the right of compensation shall be barred. Our decisions of Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974), and Tabor Motor Co. v. Garrard, 233 So.2d 811 (Miss.1970), have interpreted this statute relative to latent compensable injuries.

In Tabor, supra, the claimant, a garage foreman, was hurt on October 7, 1964, by a piece of slag which fell from his cutting torch. The company physicians who treated him did not regard his injury to be serious. Although he saw another physician within the month, he was discharged from medical care as cured on October 26, 1964. Claimant had recurring physical problems, but it was not until March 14, 1966, during surgery, that a piece of slag was discovered in his ear which the physician testified was the source of his physical problems. Claimant quit work on November 15, 1966, and applied for workmen’s compensation benefits on April 4, 1967, which was more than two years from the date of the accident. We held in pertinent part:

In short, the two-year limitation statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensa-ble injury has been sustained. 2 Larson, Workmen’s Compensation Law, § 78.41 (1969).

(233 So.2d at 814)

In Struthers, supra, the claimant suffered an insect bite while at work on December 2, 1968. A doctor determined it was a poisonous bite and at least one brown recluse spider was found on the premises. Claimant suffered recurrent medical problems and eventually developed an infected blood vessel. Her employer through its insurance carrier paid all medical bills prior to June 1970. In December 1971, more than three years from the time of the insect bite, claimant filed a motion to controvert their refusal to pay her later medical bills. We held it was virtually impossible in December 1968 for the claimant to know the bite, not compensable then, would later develop into a disabling injury. We stated that the word “injury” in the two-year statute referred to a compensable injury from which incapacity and its extent could reasonably be ascertained by medical evidence and upheld the Tabor case finding that the statute of limitations did not bar claimant’s recovery.

Presently, claimant was assured in 1972 there were no problems with his neck and it was not until 1974 that he learned of his true condition. In our opinion it was virtually impossible for him to know at the time of the apparently minor accident, then non-compensable, that it would develop into a compensable injury. We are of the opinion the claimant acted with reasonable care and diligence in pursuing compensation for his injury and that the Tabor and Struthers cases are applicable. Therefore, we affirm the trial court on this assignment of error.

It is next urged by the appellants that the trial court erred in reversing the commission’s finding of fact which they contend was based on substantial evidence. We are of the opinion, as was the trial judge, that the evidence was preponderant that claimant did receive a compensable injury while about his employment which resulted from striking his head upon the cab of his truck. Moreover, there is no medical testimony to the contrary. We conclude this assignment of error is without merit.

Lastly, appellants seek reversal of the date to be utilized in determining the average weekly wage from which compensation is computed. The trial court established September 8, 1974, as the time from which to calculate the average weekly wage for the fifty-two preceding weeks. Section 10 of the Mississippi Workmen’s Compensation Act [Miss.Code Ann. § 71-3-31 (1972)] provides in part:

Except as otherwise specifically provided, the basis for compensation under this chapter shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two .

Ordinarily the time of injury coincides with the accident, but in a latent injury case such as this, the time lapse can be extensive. Appellee urges that the average weekly wage should be determined from the time of the disability and the appellants from the time of the accident. Although there are no Mississippi cases to this effect, appellee cites Radecker v. Blue Plate Foods, 80 So.2d 875 (La.App.1955), Michna v. Collins Company, 116 Conn. 193, 164 A. 502 (1933), and Atamian’s Case, 265 Mass. 12, 163 N.E. 194 (1928).

In Radecker, supra, claimant hurt her waist on May 22, 1953, necessitating surgery on January 9, 1954. As a result of the surgery she quit work on February 19,1954. That Court held compensation was to begin as of January 9, 1954, the date of inception of her total disability.

In Michna, supra, the claimant worked as a grinder at which time he contracted a pneumoconiopic condition of the lungs, which did not result in disability until six years after he terminated his employment with the defendant. The statute on compensation provided that ascertainment of the average weekly wage for the purpose of fixing the amount of the award should be made by recourse to total wages received by a workman during the twenty-six weeks immediately preceding the injury. That Court held the term injury within the statute meant incapacity and determination of the average weekly wage should be made from the date of incapacity. See also Rousu v. Collins Co., 114 Conn. 24, 157 A. 264 (1931).

In our opinion Atamian’s Case, supra, does not support appellee’s position. In that case no exact date of the injury could be determined and the Court held the board was justified in using the date when the hernia caused the employee to quit work as the date of the injury.

Further persuasive to appellee’s view is the case of Phillips Petroleum Co. v. Malcolm, 175 Okl. 512, 53 P.2d 1113 (1936), in which the employee received a head injury on June 16, 1933, and continued working until March 1, 1934, when the resultant disability prevented his continued employment. It was held that where there is an accident which does not incapacitate but is progressive in nature, it is proper to consider the earnings of claimant between the date of the accident and the date of the disability.

Although there is authority to the contrary, we are of the opinion that the better rule in a latent injury case is that the average weekly wage should be determined from the date of the resultant disabling injury and not the accident. This is so because the claimant was not eligible for compensation other than medical examination/treatment until the onset of his incapacity. The measure of the earning power of an employee and his correlative loss relates, in our opinion, more to his earnings at the time the loss occurred when he was unable to work rather than at the earlier time of the accident when he was able to continue work, thereby receiving his earnings.

We hold that in latent injury cases the “date of injury” utilized in determining the average weekly wage means the date of the resultant disabling injury and not the date of the accident and affirm the trial court in that September 8, 1974, was the date of injury for compensation purposes.

In conclusion, the decision of the trial court is affirmed and the case is remanded to the Mississippi Workmen’s Compensation Commission for proper proceedings.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Claimant received compensation for medical examination/treatment, but did not request and did not receive compensation for disability.


source: Caselaw Access Project

license: Public Domain

text:
    Edgar Linwood ELLIS v. Veronica A. CANGEMI.
    No. 50556.
    Supreme Court of Mississippi.
    Aug. 16, 1978.
    Rehearing Denied Sept. 20, 1978.
    C. R. McRae, Pascagoula, for appellant.
    J. Elmo Lang, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before ROBERTSON, P. J., and SUGG and COFER, JJ.

AFFIRMED.


author: JAMES D. HESTER, Commissioner

text:
    Eugene BROWN et al. v. Billy M. McCOY.
    No. 50443.
    Supreme Court of Mississippi.
    Aug. 23, 1978.

      Donald Franks, Booneville, for appellant.
    Mitchell, Rogers, Eskridge, Voge & Clayton, W. P. Mitchell, Tupelo, for appellees.
    Before PATTERSON, C. J., BROOM and LEE, JJ., and HESTER, Commissioner.
   JAMES D. HESTER, Commissioner

for the Court:

Eugene Brown, et al., filed suit in the Circuit Court of Prentiss County against Billy M. McCoy for damages as a result of the traffic death of an eight-year-old child. After trial, the jury returned a verdict for the defendant and the plaintiffs appeal, assigning as errors:

(1) The trial court erred in refusing Instructions P-3, P-5 and P-6 requested by appellants.

(2) The Court erred in granting Instructions D-3, D-4 and D-6 requested by appel-lee.

U. S. Highway No. 45 runs in a north-south direction in the Town of Baldwyn and on the east side of said highway is located Baldwyn Elementary School. About 2:30 p. m., January 13, 1976, the eight-year-old child had crossed the highway to the west side and was returning to the east side when he was struck and killed by an automobile driven by appellee north on said highway. Appellee testified that he was driving the vehicle from fifteen to twenty miles per hour.

Did the trial court err in refusing Instructions P-3, P-5 and P-6 requested by appellants?

The requested instructions were to the effect that it is negligence for a person to operate a motor vehicle in excess of ten (10) miles per hour while passing a public school and that if a speed in excess of ten (10) miles per hour proximately contributed to the death of the child, the jury should return a verdict for the plaintiffs.

Mississippi Code Annotated section 63-3-515 (1972), the substance of which was originally codified in section 5776 of Hemingway’s Code of 1917, provides as follows:

SPECIAL SPEED REGULATIONS NEAR PUBLIC SCHOOLS AND CHURCHES AND UPON LEVEES AND CAUSEWAYS.
No person running or operating, or causing to be run or operated a motor vehicle, shall pass a public school, on school days, when school is held, between the hours of eight o’clock ante meridian and four o’clock post meridian, or pass a building of public worship on the Sabbath Day during the usual hours of service, or cross a levee or causeway where the traveled portion of the roadbed is less than sixteen feet wide, at a greater rate of speed than ten miles per hour. (Emphasis added).

The regulation of vehicular traffic, including speed restrictions, is peculiarly a function of the legislature, exercised under its police powers. This power to regulate motor vehicle speed has been delegated by the legislature in certain instances and under prescribed circumstances to one or more agencies of the state and to local political subdivisions.

The first Uniform Highway Traffic Regulation Act was adopted in Mississippi in 1938 (Chapter 200, Laws of 1938). The speed restrictions imposed by this enactment were codified as Section 8176, Code of 1942, and prima facie speed limits were established therein. Authority was delegated to the State Highway Commission to reduce the maximum speed limits thus fixed “upon the basis of an engineering and traffic investigation” when it was determined “that any speed hereinbefore set forth is greater than is reasonable or safe under the conditions found to exist.” Such reduced speed limit thus fixed by the Commission became “effective when appropriate signs giving notice thereof are erected . .” Significantly, there was not included the authority to increase the maximum speed limits fixed by the legislature. Subsequently, Chapter 200, Laws of 1938, was amended by Chapter 442, Laws of 1970, so as to grant unto the Commission the authority to increase maximum speeds on any portion of the Interstate Highway System.

The same Uniform Highway Traffic Regulation Act delegated to local authorities, within their respective jurisdictions, limited authority to reduce maximum speeds “fixed by this act.” Again, no power or authority was delegated to increase speed limits. (See Chapter 200, Laws, 1938, codified as section 8177, Code of 1942, and amendments thereto, Chapter 328, Laws, 1948, and Chapter 397, Laws, 1956).

A minimum speed regulation, codified as section 8178, Code of 1942, was also included in Chapter 200, Laws of 1938. This provision had limited application. The minimum speed of thirty miles per hour applied only “on federal designated highways where no hazard exists,” and the Act further provided:

[EJxception to this requirement shall be recognized when reduced speed is necessary for safe operation, or when a vehicle . is necessarily, or in compliance with law . . . proceeding at a reduced speed. . . . (Emphasis added)

It is not necessary to decide whether a public school situated adjacent to U. S. Highway 45 constitutes a place where a “hazard exists” as contemplated by Chapter 200, Laws of 1938. Suffice it to say the minimum speed of thirty miles per hour fixed for vehicular traffic on federally designated highways is subject to two exceptions which “shall be recognized,” namely, (1) “when reduced speed is necessary for safe operation,” and (2) “when a vehicle . is . . ., in compliance with law . . ., proceeding at a reduced speed . . . Driving on a federally designated highway at less than the minimum speed fixed by the statute is not only permitted when necessary for safe operation, but is specifically mandated by section 63-3-515, Mississippi Code Annotated (1972), when a driver is passing a public school during regular school hours, as was the case here.

Appellee has presented an exhaustive argument in support of his contention that Mississippi Code Annotated section 63-3-515 (1972), despite its successive re-codifications since its initial enactment in 1917, has been repealed by implication, more specifically by that provision of section 51, Chapter 200, Laws of 1938, which provides in part that:

No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

We fail to find any conflict in the two statutes. Instead of being repugnant each to the other, they can be harmonized and express a clear legislative intent to preserve the provisions of section 63-3-515. In addition to its survival from the infant days of automobile travel, it has withstood significant and comprehensive remodelings of this state’s traffic laws, and its purpose is still as salient as ever. Repeal by implication has never been favored judicially. Rather, repeal is limited to situations where later statutes are plainly, unavoidably, and irreconcilably repugnant to an earlier enactment. In the relatively recent case of Jackson Municipal Airport Authority v. Shivers, 206 So.2d 190 (Miss.1968), this Court, in citing Ascher and Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299 (1911), noted:

In 36 Cyc., p. 1073, the rule is thus laid down: “Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern, although it contains no repealing clause. But it is not sufficient to establish such repeal that the subsequent law covers some or even all of the cases provided for by the prior statute, since it may be merely affirmative, or cumulative, or auxiliary. Between the two acts there must be plain, unavoidable, and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto, to the extent of the re-pugnancy. If both acts can, by any reasonable construction, be construed together, both will be sustained.”

In Netterville v. Crawford, 233 Miss. 562, 103 So.2d 1 (1958), this Court held that it was reversible error for the trial court to refuse an instruction which (1) encompassed the provisions of the minimum speed restriction of Mississippi Code Annotated section 8187 (1942), and (2) stated that a violation thereof constituted negligence, and (3) permitted the jury to find from a preponderance of the evidence whether the statute had been violated and, if so, whether such negligence constituted the proximate cause, or contributory cause, of the accident. There the proof was not such as to permit the Court to conclude, as a matter of law, that the statute had been violated, and reiterated the rule as set forth in White v. Weitz, 169 Miss. 102, 152 So. 484 (1934):

It is the prima facie presumption of the statute that cannot be used on the issue of liability where the facts and circumstances are in evidence. That does not mean, however, that the court cannot instruct the jury for the plaintiff that a violation of the statute by the defendant is negligence, and where such negligence is the proximate cause of the injury, the plaintiff is entitled to recover, or, on the other hand, instruct the jury on behalf of the defendant that if the violation of the statute by the plaintiff was the sole proximate cause of the injury the plaintiff is not entitled to recover. It is the statutory presumption of negligence standing alone that neither party is entitled to use as a witness where all the facts and circumstances are in evidence.

In City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342 (1958), the driver admitted that he did not comply with Mississippi Code Annotated section 8189 (1942), which had been adopted by the City of Jackson, the Court said: “The court properly instructed the jury that he was guilty of negligence in this regard.” ■

The trial court committed reversible error in declining to grant an instruction to appellants that defendant was negligent as a matter of law. This leaves the question for the jury to determine if the negligence of the defendant proximately caused or contributed to the accident.

II.

Did the trial court err in granting Instructions D-3, D-4, and D-6 requested by appellee?

Appellants entered no objection to the instructions complained of and the assignment will not be considered by the Court on appeal. Standard Furniture Co. v. Wallace (Maxico, Inc.), 288 So.2d 461 (Miss. 1974); Berry v. State, 288 So.2d 457 (Miss. 1974); Jones v. State, 279 So.2d 594 (Miss. 1973); Gaines v. State, 272 So.2d 919 (Miss. 1973); Maness v. Illinois Centr. R.R. Co., 271 So.2d 418 (Miss.1972); Ferrill v. State, 267 So.2d 813 (Miss.1972); Moore v. State, 264 So.2d 414 (Miss.1972); and Clark v. State, 260 So.2d 445 (Miss.1972).

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ. and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: J. D. THAMES, Commissioner

text:
    Lottie Gaines HARALSON v. J. B. HARALSON.
    No. 50514.
    Supreme Court of Mississippi.
    Aug. 23, 1978.

      John M. Huff, Jerry L. Bustin, Forest, for appellant.
    O. B. Triplett, Jr., Forest, for appellee.
    Before SMITH, P. J., SUGG and BROOM, JJ., and THAMES, Commissioner.
   J. D. THAMES, Commissioner

for the Court:

In 1977, Mrs. Margret Gaines Gentry, the sister of J. B. Haralson, instituted two suits in the Chancery Court of Newton County, Mississippi in the name of J. B. Haralson as his temporary guardian against Mrs. Lottie Gaines Haralson, his wife. The first suit was to set aside a deed executed by J. B. Haralson January 24, 1966 to his wife, Lottie Gaines Haralson, which conveyed a one-half interest in their homestead. The second suit sought an annulment of the July 23, 1962 marriage of J. B.. Haralson and Lottie Gaines Haralson. A lack of mental capacity on the part of J. B. Haral-son was the basis of both suits. Mrs. Haral-son filed an answer in both suits denying that he lacked the mental capacity to enter into a valid marriage and to execute the deed. She also averred that the annulment action was barred under the provisions of Section 93-7-3, Mississippi Code Annotated (1972) because it was not brought within six months after the marriage.

The causes were consolidated for trial and a final decree was entered cancelling the deed and annulling the marriage.

The threshold question in the annulment suit is whether it was barred by provisions of Section 93-7-3, Mississippi Code Annotated (1972). For convenience the statute is quoted in full:

A marriage may be annulled for any one of the following causes existing at the time of the marriage ceremony, to-wit: (a)Incurable impotency.
(b) Insanity or idiocy of either or both parties. Action of an insane spouse may be brought by guardian or in the absence thereof by next friend, provided suit be brought within six (6) months after marriage.
(c) Failure to comply with the provisions of sections 93-1-5 to 93-1 — 9 when any marriage affected by such failure has not been followed by cohabitation.
Or, in the absence of ratification:
(d) When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shail be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.
(e) Pregnancy of the wife by another person, if the husband did not know of such pregnancy.
Suits for annulment under subsections (d) and (e) shall be brought within six (6) months after the ground therefor is or should be discovered, and not thereafter. The causes for annulment of marriage set forth in this section are intended to be new remedies and shall in no way affect the causes for divorce declared elsewhere to be the law of the State of Mississippi as they presently exist or as they may from time to time be amended.

The statute is plain and unambiguous. It provides a specific time limit for bringing actions for annulment for the causes set forth in subsections (b), (d) and (e).

The ceremonial marriage of J. B. Haral-son and Mrs. Lottie Gaines Haralson was consummated on July 23, 1962, and they continuously lived together until 1975, which was two years after J. B. Haralson suffered a paralytic stroke in 1973. This action was not instituted within six months after their marriage and is therefore barred by Section 93-7-3.

A careful review and study of the facts and the reasonable conclusion necessarily drawn therefrom as set forth in this record brings us to the conclusion that J. B. Haralson had sufficient mentality to know and realize the nature and effect of his marital act and his marital duties and obligations resulting therefrom. Let us illustrate. It is evidently true that Mr. Haral-son had some kind of congenital ailment or condition which he carried throughout his life and which did affect his I.Q. and limited his capacity in various ways, but did not interfere with his ordinary day to day life style. The record discloses, without conflict, that there was no mention or complaint of his mental capacity until after his paralytic stroke and his separation from his present wife. Mr. Haralson had been married previously and he and Myrtle, his first wife, had lived together for eighteen years until Myrtle died as a result of a heart attack. No one, not even his own family, ever questioned the validity of this marriage, nor complained of his lack of mental capacity, his ability to perform his marital duties and obligations, and his ability to support his wife.

Now let us look to his capacity to own and convey land. His father deeded sixty, sixty-one and sixty-two acres, respectively, of land in Newton County to Mr. Haralson, his brother and his sister, Mrs. Margret Gentry, who now questions his mental capacity. There was no question raised at that time of Mr. Haralson’s mental capacity to hold, own and possess this same land involved here. Sometime after he became the owner in possession of this land, a question arose about the descriptions in the aforesaid deeds, and it became necessary for these parties to interchange correction deeds. Mrs. Gentry and the brother all recognized the mental capacity of J. B. Har-alson to execute and deliver the necessary deeds, and no one has questioned these transactions to this day.

Mr. Haralson owned and possessed certain real and personal property, he farmed his own lands, raised cattle and hogs, and he and his wife lived a somewhat ordinary life. He had a driver’s license, he owned and drove a car, he owned and operated a tractor and fixed plow points for neighbors. He said he knew and performed his marital duties and obligations. About four years after their marriage, J. B. Haralson conveyed, at her suggestion, a one-half interest in the property on which they lived to his wife. There was nothing unnatural about this act and nothing was ever said or done by anyone until many years later after he had suffered his paralytic stroke and moved to his sister’s home.

Reluctant as we are to reverse a chancellor on a question of fact, we are constrained to hold that the chancellor in this case was manifestly wrong in setting aside the deed from J. B. Haralson to Lottie Gaines Haral-son and annulling the marriage of J. B. Haralson and Lottie Gaines Haralson.

Therefore, the judgment rendered in this cause is reversed and judgment is entered here for the appellant.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

LEE, J., took no part.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: LEE, Justice,

text:
    Ruth Dorgan MAYBERRY and Bobby Gene Mayberry v. PEARL RIVER FARMERS COOPERATIVE, A. A. L., and Homer T. Carroll.
    No. 50513.
    Supreme Court of Mississippi.
    Aug. 23, 1978.

      Smith, Smith, Tate & Stuart, E. C. Stuart, Jr., David R. Smith, Poplarville, for appellants.
    Dudley W. Conner, Hattiesburg, Sam P. Cooper, Jr., Picayune, for appellees.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Bobby Gene Mayberry and Ruth Dorgan Mayberry, husband and wife, filed separate suits in the Circuit Court of Pearl River County, Mrs. Mayberry seeking damages for personal injuries and Mr. Mayberry seeking damages for loss of consortium and for medical expenses incurred by his wife. The causes were consolidated for trial, the jury returned a verdict for the defendants, Pearl River Farmers’ Cooperative, A. A. L. [Co-op] and Homer T. Carroll, and judgment was entered for them. On this appeal, the Mayberrys assign the following errors in the trial below:

(1) The lower court erred in refusing to grant appellants a peremptory instruction as requested in Instruction No. P-1.

(2) The lower court erred in overruling appellants’ motion for a judgment notwithstanding the verdict, or, in the alternative, motion for a new trial.

(3) The lower court erred in granting ap-pellees’ Instruction D — 2 over the objection of appellants, since the instruction as granted omitted proper words of limitation and was confusing and misleading.

(4) The lower court erred in granting ap-pellees’ Instruction D — 4 over the objection of appellants, because the instruction contained statements of facts not in evidence.

On October 22,1975, Homer T. Carroll, an employee of Pearl River Farmers’ Cooperative, A. A. L., had driven a pickup truck from the loading dock of the Co-op to a point about fifty (50) feet in front of the office. He then started backing to the front door for the purpose of unloading a crated lawnmower to be displayed inside the building.

Carroll testified that before backing up he looked to the right and left and looked around back of the pickup truck and, except for one blind spot where he could not see, the lot was clear. Donnie Penton, another employee, testified that he saw the Mayber-ry car (Mayberry was driving and Mrs. Mayberry was sitting beside him) turn off the main street into the Co-op lot and at that time both vehicles were moving. He did not actually see the collision. Sylvester Lewis, manager of the Co-op, was looking out the window. He testified that the area was clear when Carroll began to back the truck and that the Mayberry vehicle was driven into the path of the truck and stopped just before the time of impact. Evidence for the appellees also indicates that damage to the Mayberry vehicle was a small dent in the left rear fender approximately ten (10) inches in diameter and two (2) inches deep.

Assignments 1 and 2, dealing with refusal of the court to grant a peremptory instruction to appellants on liability and with refusal of the court to sustain a motion for judgment notwithstanding the verdict on behalf of appellants, or, in the alternative, for a new trial, will be discussed together.

All the parties agree that the law as expressed in Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) applies to this case, but both appellants and appellees contend that the principle expressed is authority for them, respectively. In Fowler the Court said:

“This Court has long held in passing upon a motion for a directed verdict, the trial court must concede to be true all evidence supporting the view of the party against whom the motion is made, giving him the benefit of all legitimate inferences that may be drawn from the testimony introduced. [Citing cases].” 244 Miss. at 142, 141 So.2d at 229.

See also Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

Mississippi Code Annotated Section 11 — 7— 17 (1972) provides: “All questions of negligence and contributory negligence shall be for the jury to determine.” The principle expressed in that statute has been upheld repeatedly by the decisions of this Court. See Employers Mutual Casualty Co. v. Ainsworth, 249 Miss. 808, 164 So.2d 412 (1964), where the Court said:

“At last, the question is: Can the Court say with confidence that the verdict is manifestly against all reasonable probability; that manifestly it has not responded to reason upon the evidence produced? Unless the Court can so say, the verdict must stand, for otherwise there would be only a matter of conflict in the evidence, in which case, if the issues have been fairly submitted to the jury on proper instructions, the verdict is irreversible. Goodyear [Yellow Pine Co.], etc., Co. v. Anderson, 171 Miss. 530, 536, 157 So. 700; Cox v. Tucker, 133 Miss. 378, 385, 97 So. 721; and see the long list of cases from this Court gathered under Note 16 in 5 C.J.S. Appeal and Error p. 616, § 1648.” 249 Miss. at 824, 164 So.2d at 419.

In Tallahatchie Valley Electric Power Ass’n. v. Clinton, 347 So.2d 348 (Miss.1977), the Court reiterated the rule:

“We are, of course, aware that a court should not substitute its judgment for a jury’s verdict and we acknowledge the principle with great respect. Employers Mutual Casualty Co. v. Ainsworth, 249 Miss. 808, 164 So.2d 412 (1964).” 347 So.2d at 351.

When we consider all facts in evidence, together with reasonable inferences flowing therefrom favorable to appellees, we conclude that they were sufficient to constitute a jury question and that the first two assignments of error are without merit.

The appellants contend (3) that the lower court erred in granting Instruction D-2 over objection of appellants. That instruction follows:

“The court instructs the jury that the mere fact there was a collision of vehicles does not, of itself, establish negligence on the part of anyone.
The court instructs you this is a damage suit that has been consolidated for trial purposes and which is permitted by law. That in a damage suit the burden of establishing negligence on the part of the defendants rests upon the plaintiffs, and even if you should believe from a preponderance of the evidence in this case the defendants were negligent still this [alone] does not [of itself] entitle the plaintiffs to recover, but the plaintiffs must prove by a preponderance of the evidence in this case, this does not entitle the plaintiffs to recover until the plaintiffs have established by a preponderance of the evidence that as a direct or contributing cause of such negligence, if any, the plaintiff suffered injuries or damages, and, unless the plaintiffs have so established by a preponderance of the evidence in this case, it is your sworn duty to find for the defendants.”

In the middle of the Instruction No. 2, language was repeated, probably from typographical error. However, the part of the instruction about which appellants complain was the failure to include the words “alone” and “of itself.” Appellants contend that the language of Tombigbee Electric Power Ass’n. v. Gandy, 216 Miss. 444, 62 So.2d 567 (1953) and Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403 (Miss.1971) should have been followed in the instruction. That part of the opinion in Tombig-bee is as follows:

“But even where negligence is shown that fact alone affords no basis for the recovery of damages unless it further appears from direct evidence or reasonable inference that such negligence proximately contributed to the damage.” 216 Miss. at 452, 62 So.2d at 569.

Pargas stated:

“As is true in the case of danger, so negligence of itself is not sufficient to permit a recovery because of injuries sustained by another. The injury must have been caused by the negligence complained of.” (Emphasis added) 249 So.2d at 406.

Instructions do not necessarily have to follow verbatim the language of an opinion. Failure to include the words set out does not constitute reversible error, particularly when the instruction is read together with all other instructions, and more particularly Instructions P-10, P-11 and D-3. See American Creosote Works, Inc. v. Smith, 233 Miss. 892, 103 So.2d 861 (1958); Neely v. Charleston, 204 Miss. 360, 37 So.2d 495 (1948); and Meridian Sanitorium v. Scruggs, 121 Miss. 330, 83 So. 532 (1919).

Appellants contend in Assignment No. 4 that the lower court erred in granting appellees Instruction D-4 which follows:

“The Court instructs the jury that the defendant were not negligent per se in backing the defendants’ truck, if you believe from a preponderance of the evidence in this case the defendant, Homer T. Carroll, could not see over the back of his truck so as to know what might be in his way, provided, you believe from the evidence, that Homer T. Carroll took reasonable precaution before starting to back, and made proper observations by looking to the right and to the left of his truck and by looking over the back, and while backing his truck, the plaintiff Bobby Gene Mayberry suddenly drove his automobile into the direct path of the backing truck of the defendants, and that such act on the part of Bobby Gene May-berry was the sole proximate cause of the collision of the vehicles, then it is your sworn duty to find for the defendants.”

Appellants argue that there is no evidence to support the part of Instruction D-4 “that Homer T. Carroll took reasonable precaution before starting to back, and make proper observations by looking to the right and to the left of his truck and by looking over the back, . . . ”

Appellee Carroll testified that he looked to the right and to the left and he could see all the parking area in the general direction in front of the store, that he could see part of the box that was in the back of the pickup truck, and he could see between the truck (top of back glass) and the box about a twenty-foot area and there was nothing in the way. He further testified that there was only a blind spot where the rounded part of the cab was between the back glass and the door glass. The instruction sufficiently followed the evidence in the case, and the instruction did not constitute reversible error.

Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: BROOM, Justice,

text:
    William H. LOVORN, d/b/a Lovorn Plywood Sales v. IRON WOOD PRODUCTS CORPORATION.
    No. 50518.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    H. A. Courtney, Jackson, for appellant.
    Binder & Howell, William B. Kirksey, Jackson, for appellee.
    Before SMITH, P. J., and BROOM, and LEE, JJ.
   BROOM, Justice,

for the Court:

Accord and satisfaction based upon a check (with a restrictive endorsement thereon) negotiated by appellant Lovorn was successfully asserted by appellee, Iron Wood Products Corporation (Iron Wood herein) in the lower (circuit) court. Lovorn sued Iron Wood first in the County Court of the First Judicial District of Hinds County, where he received a judgment. Iron Wood appealed to the Circuit Court of the First Judicial District of Hinds County which reversed, holding that Lovorn’s acceptance of the check containing the restrictive endorsement constituted an accord and satisfaction. We affirm.

Lovorn had been a sales representative for Iron Wood several years when a dispute developed between them as to amount of commissions owed Lovorn by Iron Wood. After considerable correspondence between the parties, Iron Wood tendered to Lovorn two checks dated March 10,1976, one in the amount of $7,707.87 and the other in the amount of $664.93. The former contained the following statement on the reverse side:

Endorsement of this check constitutes payment in full and without recourse for the period ending December 27, 1975.

The latter cheek contained the following words on the back:

Endorsement constitutes acceptance of final payment through the first four weeks of January ending January 24.

Lovorn received and endorsed the check for $7,707.87, but returned to Iron Wood the check for $664.93.

DID THE CIRCUIT COURT CORRECTLY RULE THAT LOVORN’S ACCEPTANCE OF THE CHECK IN THE AMOUNT OF $7,707.87 CONSTITUTES AN ACCORD AND SATISFACTION: The four basic conditions of an accord and satisfaction are: (1) something of value offered in full satisfaction of demand; (2) accompanied by acts and declarations as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item. Cooper & Rock v. Yazoo & M.V.R.R., 82 Miss. 634, 35 So. 162 (1903).

We point out that the language of the restrictive endorsement on the reverse side of the check in question could arguably be considered ambiguous and interpreted to mean that it covered commissions owed only for a period of time ending December 27,1975, and would not necessarily be related to some period earlier than the pay period ending on that date. However, the endorsement must be considered along with other facts with which Lovorn was confronted and had knowledge. The stub on the check clearly stated that it covered “sales commissions earned through December 27, 1975.” Accompanying the check in question was a letter advising Lovorn that the check “represents the back commissions owed Mr. Lovorn through 12/27/75.” Additionally, the record shows that Lovorn admitted that he had already been paid for the period of four weeks ending December 27, 1975. Having already been paid for the four week period ending on that date, Lo-vorn’s receiving another check far in excess of what he actually earned (as was the case here) operated to put him on notice that the restrictive endorsement on the check covered not only the four weeks of the pay period immediately preceding December 27, 1975, but a greater period of time. Lovorn testified at trial that: “They were trying to attack that restrictive endorsement on that check to where if I did cash the check . that would be the end of what they owed.”

Based upon the testimony, including the documents made part of the record, we hold that Lovorn was sufficiently put on notice that the check was offered in full payment of all disputed claims for sums owed him as commissions prior to December 27, 1975. He should have understood, upon such circumstances, that Iron Wood was contending that the amount of the check constituted the entire balance due him to that date. On these circumstances, Lovorn cannot be allowed to assert his claim for additional sums after having accepted, endorsed, and negotiated the check which was obviously tendered in full settlement. Having dealt with the check in such a manner and accepting the proceeds of the check, Lovorn is now precluded from recovering further sums related to dates prior to the date of the cheek.

Although we conclude that the circuit court correctly upheld the contention of Iron Wood as to accord and satisfaction (reversing the county court judgment), at oral argument counsel for both litigants stated that William H. Lovorn, d/b/a Lo-vorn Plywood Sales, is entitled to judgment against Iron Wood in the sum of $2700 rather than $1780 as adjudged by the circuit court. Therefore, the judgment of the circuit court is modified and an order entered here so as to fix the amount of the judgment in favor of Lovorn to be $2700 rather than $1780 as stated. In all other respects the judgment of the circuit court is affirmed.

AFFIRMED AS MODIFIED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.


author: WALKER, Justice, PATTERSON, Chief Justice,

text:
    Frankie Lee LIAS v. STATE of Mississippi.
    No. 50444.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Sept. 20, 1978.

      Banks & Nichols, Fred L. Banks, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction of murder after a jury trial in the Circuit Court of Jefferson County, Mississippi. Appellant was sentenced to life imprisonment.

The sole issue is whether the jury was justified in finding the defendant understood the nature and quality of the act he was doing and was able to distinguish between right and wrong at the time of the murders. The facts with regard to the occurrence of the murders are uncontradict-ed.

Sometime between the evening of February 17,1974 and the early morning hours of February 18, 1974, Frankie Lee Lias shot and killed his wife, daughter, sister-in-law and brother-in-law.

The only defense argued was that of insanity. This defense was predicated primarily on the testimony of a psychiatrist from the Mississippi State Hospital at Whitfield. He testified that in his opinion Lias suffered from paranoid schizophrenia and could not tell right from wrong at the time the crime was committed. Additionally, it was stipulated that another psychiatrist from Whitfield would testify to the .same effect if called as a witness. Other testimony by lay persons indicated Lias professed to be deeply religious, had adopted the nickname Black Moses, and professed to be able to communicate with God. According to his brother and another relative, on the night of the crime, Lias stated “The Lord told me to come to him and bring all those around me.”

The state presented no medical expert testimony on the issue of sanity, other than the statement by the medical doctor who had pronounced the victims dead, that a day or two after the crime he saw Lias in jail and Lias appeared “solemn and remorseful.” There was however lay testimony and other documentary evidence. The three lay witnesses presented in the case were defendant’s two brothers and a life-long acquaintance. All three testified both for the state and for defendant. William Lias testified that on the night of the crime, Frankie appeared at his trailer driving his mother-in-law’s car. He stated that Frankie had a .22 rifle in his possession and when he asked for the rifle Frankie refused, stating that the rifle had blood stains on it and he had just “blooded Hairston with it.”

Martin Lias testified that when he arrived with the two deputy sheriffs who arrested Frankie, Frankie told the deputies he had already been to the sheriff’s office to surrender but that the office was closed. He further testified that he had no trouble communicating with Frankie on the night of the occurrence, that he understood Frankie and vice versa.

Dolores Jean Brown testified that on the night in question William Lias came to her home to use the telephone because Frankie had had a disturbance with his in-laws. Later she testified that on the same night Frankie told her “I’ve been into it with my neighbors, with my family, in-laws.” He then told her he killed all except one, Francesca. Most significantly at that time, Frankie asked her to call the sheriff to come get him the next morning. Finally, like Martin Lias, she testified Frankie was able to carry on a regular conversation. When asked if he was fully coherent and fully capable of talking to her and understanding her conversation, her reply was, “Seemed to be.”

Other witnesses corroborated that Frankie stated he had gone by the sheriff’s office earlier to surrender. Deputy Stringer testified that Frankie told him how to get into one of the homes where the murders occurred, i. e., through the same window Frankie used. Sheriff Wallace who had known the defendant for six to ten years previously testified that on the night involved Frankie appeared normal except that he was slightly nervous.

The final significant document which was given by Frankie to the sheriff at the time of his arrest was a handwritten “confession.” The document stated:

CONFESSION:
February 17, 1974
Sunday 2:01 p m
To Whom It May Concern:
Dear God,
I love you, and if I havn’t [sic] been living a desent [sic] life, I expect to pay for my mistakes. Father I wanted to live a happy life and I also wanted to make people happy. And as I pass alone [sic] if I can cheer somebody with a word or a song then my living would not be in vain. Farther [sic] I know I’ve done wrong things in my life, some was to benifit [sic] me and some was to benifit [sic] others. Farther [sic] I’ve always asked and be-lived [sic] in you. Farther [sic] you’ve showed me my death many times. I believe what you showed me. Maybe I’m one of a kind but I can’t feel sorry for anyone not even my self. I remember seeing my Mother’s death a few times, but every time I cried as [sic] begged you to let it be me instead. Well it really doesn’t matter now, it really doesn’t matter what happens now, because I lived my life. I don’t even live for the future I only live for the present. I don’t have any friends, because they all have betrayed me but still I go on treating them like they are outstanding. Well when I have to meet my day I don’t want a long funeral and if and who delivers the news, I don’t want them to talk too long. Pleas [sic] don’t give me flower [sic]. I don’t want a flower. I don’t want anyone to weep for me. Theres [sic] a verse I once heard, rejoyce [sic] to the income and joyce [sic] to the outgo. The world owe me nothing and I owe the world nothing. Theres [sic] only two peoples [sic] in this world that I know and believed [sic] love me besides God, and that My Mother and Farther [sic]. After them you’ve got no one else to love you. I have two brothers that I’ll be joining real soon. Let my body rest in Rose Hill Cemitery [sic] beside by brothers. Please tell my mother, weep not for me, but for those that are around her. When I’ve done the best I can, and I can’t do no more, I ask you God, Please, Please come and take me. Take me as I am, because I’m your servant. I’ll like to go farther, I’ll like to say something about my family. I loved them very much cared for all of them then Saturaday [sic] morning about 9:20, 2-16-74, my Wife Carol Eve told me that Kenyatta is not my daughter. That she’s Dr.’s [sic] Reed baby. All that time after April 23rd she now tell me that. I wish Donna Carol, my little daughter grows up and live a different life from her mother. My mother Mrs. Lenora Lias asked me to let her adopt Donna, and now I’d like her to do that. I want my every body to be happy. Frankie Lee Lias.
St. Matthew 21:32
And Jesus stood still, and called them, and said, What Will ye that I shall do unto you?
St. Luke 12:8
Also I say unto you, whosoever shall confess me before men, him shall the son of Man also confess before the Angels of God.
A-MEN.
God I still love you, but you’ll Never forgive me.

We have stated on several occasions that expert opinions of psychiatrists are not conclusive upon the issue of insanity but rather insanity is a question to be resolved by the jury. Hollins v. State, 340 So.2d 438 (Miss.1976); Pounders v. State, 335 So.2d 904 (Miss.1976); Myrick v. State, 290 So.2d 259 (Miss.1974); Jones v. State, 288 So.2d 833 (Miss.1974); Blackwell v. State, 257 So.2d 855 (Miss.1972); Smith v. State, 245 So.2d 583 (Miss.1971); and Kearney v. State, 224 Miss. 1, 79 So.2d 468 (1955). See Williams v. State, 354 So.2d 266 (Miss.1978). We do not retreat from that position.

On the other hand, in each case we have reviewed the record to determine if the state’s evidence was sufficient to support a finding by the jury of sanity beyond a reasonable doubt, and have reversed the case where no such sufficiency existed. Holloway v. State, 312 So.2d 700 (Miss. 1975); Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960).

The instant record presents a close question of fact with a psychiatrist testifying that in his opinion, the defendant was unable to distinguish right from wrong at the time of the crime. Balanced against this is testimony of laymen who knew the defendant both before and after the crime and had opportunity to personally observe him before and after the crime. While admitting the closeness of the factual determination, we also acknowledge that such determination is the purpose for which juries exist. We are unwilling on an appeal to overturn a jury determination unless such determination is unsupported by the facts.

Here, the state’s theory of the ease was that the murder was a planned, deliberate and purposeful slaughter based on a revenge motive. The handwritten confession alludes to the wife’s infidelity and the defendant’s awareness shortly before the crime that his baby daughter was not his but that of another man. The defendant’s own actions and responses made on the night in question indicate an awareness of what he was doing and the wrongfulness of the act. He related to two witnesses that he had attempted to turn himself in to the sheriff but the office was closed. He asked another witness to call the sheriff “in the morning.” Furthermore, the handwritten “confession” itself indicated a knowledge of wrongdoing in its conclusion, “God I still love you, but you’ll never forgive me.” William Lias, his own brother, stated that the defendant knew the meaning of sin. Further, shortly after the time of the crime he was aware that he had “blooded Hair-ston,” and that the rifle he held was loaded and lethal.

As to the psychiatric testimony, it is conceded that the doctor’s opinion that defendant was insane and could not tell right from wrong was clear and unequivocal. However, the jury also had before it the benefit of cross-examination of the doctor where he admitted that an attempt to “turn oneself in” is evidence of knowledge that the person has done something wrong. The state also put forth the theory that the insanity could have been induced by the incident rather than preexisting the crime, to which possibility the psychiatrist agreed. It was also noted in the presence of the jury that the psychiatric examination necessarily occurred after the crime had been committed.

Based upon these considerations, we are unable to say the jury’s determination was arbitrary or against the overwhelming weight of the evidence. Particularly where, as here, the determination of sanity was expressly made in writing by the jury.

For the stated reasons, the case is affirmed.

AFFIRMED.

SMITH, P. J., ROBERTSON, P. J., SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., specially concurring.

PATTERSON, Chief Justice,

specially concurring:

I concur in the result reached by the majority which is to say only that it is my opinion the appellant should be institutionalized for the protection of the public.

The evidence of the medical witnesses is overwhelming, indeed uncontradicted, that Lias was insane at the time he killed seven individuals. These doctors also gave evidence, again uncontradicted, that Lias was incapable of distinguishing right from wrong at the time of the slayings (the McNaughton rule). From this evidence I am of the opinion the appellant was mentally incapable of forming a premeditated design (malice aforethought) to kill and therefore is not guilty of murder.

This is not to say, however, that he did not slay those named in the indictment because the record indisputably reveals that he did so albeit, in my opinion, without criminal intent. Under this circumstance I think the proper procedure for the protection of the public which I am convinced does not violate constitutional due process, is: In the event it is established in a criminal proceeding that an act of violence has been committed, dangerous to the public and likely to be repeated, which would have been a crime if committed by a sane person, and additionally, there is evidence of insanity, this is sufficient for judicial commitment to a mental institution for the welfare of the individual and for the protection of the public.

I am of this opinion because our present statutes and case law delineate no clear provision for a case of this category. A review of the jury instructions reveals this deficiency. The jury (1) could have found the defendant guilty of premeditated murder, (2) it could have found the defendant not guilty, (3) it could have found the defendant not guilty by reason of insanity but certify that he is dangerous because “still insane,” or (4) it could have found the defendant not guilty because of insanity and certify that he has since been restored to reason. These instructions, when considered with another which states in part, “Insane people cannot be criminally punished for what they do; and this is true, regardless of whether such mental condition is temporary or permanent,” left the jury with no realistic alternative to a verdict other than murder.

This is so, in my opinion, because it is very unlikely that a jury by its verdict would return a multiple killer to the streets even though criminal intention to commit the act was absent. I would avoid the “murder” result which I believe contrary to the overwhelming weight of the evidence and the law, by the procedure suggested above so that a person found not guilty by reason of insanity, but who is presently restored to reason, could be confined to a mental institution for his welfare and for the protection of the public.

Although Lias was previously adjudged incompetent for trial, his reason has been restored by medication and his present ability for trial is not an issue. His condition is diagnosed as schizophrenia, paranoid type, in remission. The record discloses Lias suffers from residuals of schizophrenia with the potential to again become psychotic and moreover, is capable of further acts similar to those for which he was tried. Only daily medication abates such occurrence. This contingency presents a dangerous situation to which society should not be exposed. In Holloway v. State, 312 So.2d 700 (Miss. 1975), we stated:

Like other cases of this nature the courts are confronted with the absolute necessity of protecting society from the acts of the dangerously insane. There is no ready or perfect answer to the question as to what should be done with these wretched and unfortunate people. Mississippi Code Annotated Section 99-13-7 (1972) is a reflection of a legislative effort to provide a formula to meet the requirements of such cases. It appears that the evidence in this case presents serious questions as to (1) whether Holloway was not guilty by reason of insanity, on November 23, 1963, and if so, (2) whether he is, or is not, now dangerous to the community.
(312 So.2d at 702)

And compare Caffey v. State, 78 Miss. 645, 29 So. 396 (1901).

I am of the opinion the jury’s verdict of murder, including a finding of sanity at the time of the slayings, was contrary to the overwhelming weight of the evidence. The evidence is clear, unequivocal and certain that Lias was insane at the time of the slayings. It is uncontradicted that he is now sane due to medication with the potential of a return to a psychotic state absent daily medication. I think this Court should commit the appellant to a mental institution for an indefinite period, commensurate with his dependence upon medication for his reason.

I am of the opinion this procedure does not violate due process because the appellant was afforded a fair trial in accord with his defense. Moreover, the evidence of the slayings, insanity at the time, and present sanity, is uncontradicted. The weighing of these facts for the protection of the public demands judicial commitment to a mental institution, in my opinion, whether the procedure be called civil or criminal. I do not understand either Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), or O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), to command the release of a person with propensities of this appellant. Each of these cases may be distinguished from the present.

A quote from the syllabus in Jackson, supra, is sufficient to distinguish the posture and issue of that case from this. It states:

Indiana’s indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process. Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime, or release the defendant. Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412, distinguished.
(406 U.S. at 716, 92 S.Ct. at 1847, 32 L.Ed.2d at 438.)

And, somewhat similarly, O’Connor, supra, condemned the incarceration of an incompetent and nondangerous individual over a protracted period of time for treatment. It held:

In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. .
(422 U.S. at 576, 95 S.Ct. at 2494, 45 L.Ed.2d at 407.)

In my opinion these cases do not prohibit civil commitment of a dangerous person for the protection of the public.

The violent propensities of Lias are amply illustrated by his past acts which are presently moderated only by medication. Although I think he is without guilt of a crime and not subject to punishment, nevertheless, his dangerous propensities are such that he should be confined to a mental institution for the protection of the public.

With this modification I concur in the result reached by the majority.

      . The incident involved eight victims, seven dead, but the indictment in the instant case embraced only four.

      . Hairston was the community where Frankie and his in-laws lived.

      . “We the jury find the Defendant to have been sane at time of commission of the crime, and guilty as charged.”

      . The four designated in the indictment and others established by the record.

      . Miss.Code Ann. § 99-13-7 (1972). When any person shall be indicted for an offense and acquitted on the ground of insanity the jury rendering the verdict shall state therein such ground and whether the accused have since been restored to his reason, and whether he be dangerous to the community. And if the jury certify that such person is still insane and dangerous the judge shall order him to be conveyed to and confined in one of the state asylums for the insane. (Emphasis added.)

      .Miss.Code Ann. § 99-13-7 (1972). We note the underlined words of the statute above were not included in the instruction.


text:
    Frank PRICE, III v. STATE of Mississippi.
    No. 50624.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    J. W. Kellum, Sumner, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Spec. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Frank Price, III, appeals a conviction of capital murder pursuant to a bifurcated trial and jury sentence to life imprisonment by the Circuit Court of Coahoma County. The sole issue is whether a peremptory instruction requested by the defendant was properly refused.

At approximately 9:30 p. m. on March 3, 1975, appellant and another black male identified as Andrew Lee Henderson, entered the lobby of the Southern Inn Motel in Clarksdale. The desk clerk, Mrs. Marie Furniss, testified that appellant requested a room and began to scribble something on a registration card. Mrs. Grace Green, the 63-year-old manager of the motel, was seated at the corner of the desk. Appellant threw a $20 bill on the counter and while Mrs. Furniss was getting change, Mrs. Green suddenly exclaimed, “Oh, look out, Mrs. Furniss.” Mrs. Furniss then observed the appellant pointing a pistol at her. He grasped Mrs. Furniss’ left wrist, jerked her across the counter and struck her with the weapon. Dazed by the blow, Mrs. Furniss dropped behind the counter while appellant continued to clutch her by the arm. She was released after the appellant grabbed the money from the cash drawer.

Mrs. Furniss testified she remained behind the counter, hoping to escape and summon Mr. Green, who had retired for the evening. Immediately thereafter she heard a shot and Mrs. Green began screaming. Another shot was fired and the men left. Mrs. Furniss called Mr. Green who came to aid his wife and who then called the police. Mrs. Green expired from a bullet wound a short time later.

The perpetrators of the crime wore no masks, and Mrs. Furniss positively identified the appellant as the individual signing the registration card. However, she was unable to say who fired the fatal shot. It was determined that the sum of $150 had been taken.

The pathologist who performed the autopsy testified that Mrs. Green suffered several lacerations to the head as well as a gunshot wound which caused her death. A Federal Bureau of Investigation fingerprint specialist testified that the appellant’s fingerprints matched those on the registration card signed at the motel.

Appellant’s signed statement to a police officer was admitted into evidence without objection. He claimed he had driven Andrew Henderson and Bay Jerry Williams to the motel and remained in the automobile while they entered the premises. According to him, when he heard a shot, he entered the building and observed a lady on the floor. He stated that Henderson had shot her.

At trial defense counsel moved for a directed verdict at the conclusion of the state’s evidence and presented no evidence on its own behalf. The jury found appellant guilty of murder and at the second phase of the trial sentenced him to life imprisonment. At the sentencing determination, evidence was presented that appellant had been convicted of an armed robbery which occurred on March 12, 1975.

Appellant argues that the trial court improperly refused his motion for a peremptory instruction, but fails to assert in what regard the state’s proof was deficient. Of course, peremptory instructions are properly refused if there is sufficient evidence to support the verdict. Daniels v. State, 312 So.2d 706 (Miss.1975).

It is also familiar law that when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide. McNeer v. State, 228 Miss. 308, 87 So.2d 568 (1956). The fact that the accused did not fire the fatal shot does not relieve him from criminal responsibility for the death of Mrs. Green who was slain by the accused’s confederate in carrying out the common design to rob. Carrol v. State, 183 Miss. 1, 183 So. 703 (1938).

The evidence is overwhelming that Mrs. Green was killed in the commission of a crime of robbery in which Price was an active participant. Therefore, the conviction and sentence are affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: SHORES, Justice. MADDOX, Justice

text:
    Amy Jean EVANS v. Orville Eugene KENDRED et al. Floyd Wayne EVANS v. Orville Eugene KENDRED et al.
    77-195, 77-196.
    Supreme Court of Alabama.
    July 14, 1978.
    Rehearing Denied Sept. 8, 1978.
    M. Clay Alspaugh, of Hogan, Smith & Alspaugh, Birmingham, McCain & White, Tuscaloosa, for appellants.
    John A. Owens, of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellee, Hunt Oil Co.
   SHORES, Justice.

Floyd Wayne Evans was employed by Fish Engineering and Construction Company (Fish) when he suffered personal injuries during the course of his employment. Fish was constructing an addition to an oil refinery pursuant to a contract with Hunt Oil Company. Evans was a pipe fitter; and his duties included threading 40-foot sections of pipe into pipe racks which were constructed by Fish pursuant to the plans and specifications prepared for Hunt by Walk, Haydel and Associates. At the time of his injury, a section of pipe was being positioned on the rack upon which Evans was standing by a crane from the ground to the rack. The crane was being operated by another Fish employee, Fred Knight. In deposition, Evans said his injury occurred because Knight “boomed” the crane boom into him causing the pipe to slip, which knocked Evans to the ground.

Evans collected workmen’s compensation benefits from Fish, and brought suit against Knight, and other supervisory personnel of Fish, alleging that his injuries resulted from the negligence of the crane operator, the negligence of the supervisory people in employing the crane operator (who had only one arm, and allegedly had a drinking problem), in failing to provide him a safe place in which to perform his work and failing to provide him with proper safety equipment.

Evans alleged that Hunt negligently provided or approved the plans and specifications of the project, failed to provide a safety plan, failed to provide safe premises, tools, etc., and failed to provide properly trained and physically capable and competent fellow workmen. He also alleged that the process of erection of the pipe racks and placement of pipe in them created an imminently and inherently dangerous condition, making Hunt liable for any injury resulting from this process.

Evans’ wife filed a derivative suit against all defendants. The trial court granted motions for summary judgment in favor of all defendants. The court held that the actions against the co-employees of Evans were barred by Title 26, § 312, Code (now § 25-5-11, Code 1975), and by this court’s holding in Childers v. Couey, 348 So.2d 1349 (Ala.1977).

As to the case against Hunt, the court wrote:

“As to Hunt Oil Company, the plaintiff contends that the accident occurred upon Hunt Oil Company premises, that Hunt Oil Company thereby had some duty to supervise the construction or some duty to prevent Fred Knight [the crane operator] from working or some duty to inspect or supervise the preparation of the specifications of the job upon which Evans was working to insure that there was no negligent or improper design which might produce the injury to Evans. The contract between Hunt Oil Company and Fish is a part of the Court file in this cause. The Court having considered the contract, the testimony given in depositions and all other matters finds that there was no duty and that there is no scintilla of evidence of any duty on the part of Hunt Oil Company to supervise the Fish employees or to exercise any control over them or that it had any right to exercise control over the same and that Fish Engineering and Construction Company was purely an independent contractor of Hunt Oil Company. That Hunt Oil Company did not prepare the plans and specifications but that these were done independently of Hunt Oil Company and inspected independently of Hunt Oil Company by independent contractors. The Court further finds that there is not a scintilla of evidence in the case that there was any negligence in the design of the project or in the plans or specifications or that any problem with the plans or specifications proximately contributed to the accident made the basis of this suit. The Court finds that in all respects applicable to this suit, Fish Engineering and Construction Company, Inc., was an independent contractor of Hunt Oil Company, that not a scintilla of evidence to the contrary has been presented and that summary judgment in favor of Hunt Oil Company is due to be granted.”

The plaintiff argues that the trial court erroneously granted Hunt’s motion for summary judgment because the court made a fact finding in holding that there was no evidence of negligence in the design of the project. The court did hold that there was no evidence of negligence in this regard. It correctly did so.

The evidence was undisputed that the plans and specifications were prepared at Hunt’s request by an independent contractor, were submitted to Fish, which approved them, as did Hunt. However, there is no evidence from any source that the plans were defective or negligently prepared. Hunt is not shown by any evidence to have been negligent in approving the plans.

There is no evidence by deposition or otherwise that Hunt exercised any control over Fish employees; and, in fact, the contract between Fish and Hunt precludes Hunt’s supervision. It, in part, provided: “. . . FISH shall furnish all detailed

engineering design, equipment, material, supplies, labor, supervision, tools and services . . . “Care, custody and control of the facilities shall pass to HUNT upon written ‘Ready-To-Purge’ acceptance of the facilities by HUNT; or five (5) days after ‘Ready-To-Purge’ notice unless FISH receives written notice as to why the facilities are not ready to purge; or when HUNT takes physical possession of the facilities for the purpose of operating the plant, whichever shall occur first.
“FISH shall be responsible, and shall provide all inspection services connected therewith, for inspection of all equipment, material and supplies used or to be used in the WORK and of all work performed by FISH.
“In prosecuting the WORK covered by this CONTRACT, FISH shall act as an independent contractor, maintaining complete control over and having full responsibility for FISH’S employees and the performance of all sub-contractors. . . ”

The undisputed evidence shows that Hunt’s only inspection of the premises was to insure against fire hazards. Plaintiff’s injury was not related to any fire hazard.

There is no dispute that the plaintiff was injured while performing his work as an employee of Fish, which was an independent contractor. He argues, nevertheless, that Hunt, which owned the premises, is liable for his injuries because the work which he was performing was inherently or intrinsically dangerous. There was no evidence before the court on motion for summary judgment that the work which the plaintiff was performing was inherently or intrinsically dangerous. Whether Hunt would be liable to an employee of an independent contractor had that been proved, we need not decide. Certainly, the work being performed by the plaintiff is not inherently dangerous as a matter of law and:

“Ordinary building operations or activities, including both construction and demolition, are generally not considered work of an inherently or intrinsically dangerous character rendering the employer-owner liable for injuries resulting from the negligence of an independent contractor in doing the work. . . .”41 Am.Jur.2d, Independent Contractors, §43.

In accord: Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832 (1919).

We have frequently defined the duty owed by an owner of premises to an independent contractor (and his employees). Chrysler Corporation v. Wells, 358 So.2d 426 (1978); Veal v. Phillips, 285 Ala. 655, 235 So.2d 799 (1970), where it was defined as follows:

“The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury. . .” (285 Ala. at 656, 235 So.2d 802)

We find no genuine issue of material fact and affirm the trial court in granting motion for summary judgment on behalf of Hunt.

We must, however, reverse the trial court in granting motions for summary judgment in favor of the other defendants, all co-employees of the plaintiff. Our recent decision in Grantham v. Denke, 359 So.2d 785 (1978), permits the plaintiff’s action against co-employees and holds unconstitutional the legislative prohibition against such actions.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BLOODWORTH, FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur in part and dissent in part.

MADDOX, Justice

(concurring, in part; dissenting, in part).

I concur with the opinion of the majority with the exception of that portion which permits a suit against a co-employee. I dissent as to that aspect of the opinion. See my dissent in Grantham v. Denke (1978), Ala.Sup., 359 So.2d 785.

TORBERT, C. J., concurs.


author: ALMON, Justice.

text:
    H. F. JOHNSON v. Margaret D. MORRIS et al.
    SC 2744.
    Supreme Court of Alabama.
    Aug. 18, 1978.
    Rehearing Denied Sept. 15, 1978.
    C. A. Poellnitz of Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellant.
    Jesse A. Keller of Keller & Cochran, Florence, for appellees.
   ALMON, Justice.

This is an appeal from a judgment granting a permanent injunction prohibiting Johnson from constructing a roadway across the Morris’ property. The issue is whether the trial court erred in its ruling that the alleged road was not a dedicated public street. We affirm.

The Morrises are the owners of Lot 81 in Spring Cove Addition No. 1 Subdivision in Lauderdale County, which they purchased from the appellant, Johnson. Johnson owned and developed the property on which this subdivision is located, selling the lots in reference to a plat he filed in the Probate Office of Lauderdale County. All the lots in this subdivision are waterfront property, bordering Shoal Creek. See Appendix I which is a portion of the plat filed for record. Appendix II is a copy of a plat which was included in the Morris’ abstract supplied by Johnson. Note the discrepancies between the two.

When the Morrises and the owner of Lot 80, Mr. William Harris, purchased their lots, Johnson Drive was a dirt road. The dirt road extended across Lots 79 and 80 to the common boundary of Lots 80 and 81. Later, Johnson Drive was paved by the County. At Mr. Harris’ request, the County paved the road about halfway across Lot 80. Although it is not certain, apparently the paved road extending across Lots 79 and 80 is a smaller road than the remainder of Johnson Drive. In their testimony, both Mrs. Morris and appellant, Johnson, refer to the road across Lots 79 and 80 as a “driveway.”

Mr. Harris and the Morrises, at their own expense, constructed a paved driveway south of the paved road, running from the western half of Lot 80 to the boundary line of Lots 80 and 81 and down that boundary line to the edge of the water. The Morrises and Mr. Harris use this driveway as their sole means of ingress and egress to Johnson Drive.

The controversy arose when Mr. Johnson began excavating and grading operations in an attempt to extend Johnson Drive across the Morris’ property. Mr. Johnson owned waterfront property beyond the Morris’ lots which he wants to develop.

Appellant maintains that the sole issue is whether the map or plat in question is in substantial compliance with the statutory requirements for dedication. To this end, appellant claims the plat was correctly certified, acknowledged, and filed.

On the other hand, the Morrises do not deny that the statutory requirements of a dedication were met. Rather, as viewed by the Morrises and the trial court, the issue is whether the dashed lines across Lots 79, 80 and 81 evidence an unequivocal intention to dedicate a public street. The Morrises contend that the dashed lines present an ambiguity. We agree.

It is not disputed that under Alabama law, filing a map or plat in substantial compliance with the statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places drawn on the map or plat. Akin v. Giddy, 219 Ala. 682, 123 So. 208 (1929); Stack v. Tennessee Land Co., 209 Ala. 449, 96 So. 355 (1923). However, it is begging the question to assert that substantial compliance with statutory requirements in this case is dispositive of the question of whether there is an unequivocal intention to dedicate a public street across the Morris’ property.

Dedication is an affirmative act and must be shown by affirmative evidence or its equivalent. If the acts and declaration of the owner are equivocal, they are insufficient to establish a dedication. Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956); Burleson v. Town of Hamilton, 213 Ala. 198, 104 So. 253 (1925).

In determining what property is dedicated to the public, the map or plat is to be construed in its entirety. City of Mobile v. Chapman, 202 Ala. 194, 79 So. 566 (1918); McQuillin, Municipal Corporations, § 33.26, p. 688 (3rd Revised Ed.).

The construction of a map or plat is generally for the court, at least when complete and unambiguous. However, if the map or plat is uncertain and ambiguous, parol evidence is admissible, and the question of dedication is for the trier of fact. McQuillin, supra; Elliott, Roads and Streets, § 131, p. 156 (4th ed.).

The plat gives rise to the question of the interpretation to be given the dashed lines across Lots 79, 80 and 81. The boundaries of Johnson Drive are not expressed in a consistent manner. In some places, Johnson Drive is outlined by two solid lines. In others, one boundary line is solid and (it appears) one is a dashed line. In reference to the rest of the plat, the dashed lines crossing Lots 79, 80 and 81 are unique unto themselves. The question of the interpretation of these lines is a factual one.

The testimony of two registered land surveyors, an abstractor, and an attorney familiar with real estate transactions and plats of subdivisions all support the trial court’s finding that the dashed lines across the Morris’ property presented an ambiguity. In addition, these witnesses further testified that the usual method of showing roads on a subdivision plat is by solid lines. Further, Mr. Johnson testified that he had developed and filed plats of other subdivisions, and on all other subdivision plats the roads were indicated by solid lines. The evidence supports the judgment of the trial court that there had been no dedication of a public street across the Morris’ property. Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924).

Appellant relies heavily on Manning v. House, 211 Ala. 570, 100 So. 772 (1924), wherein the court affirmed the trial court’s judgment that dashed lines across subdivided lots constituted a dedication of a street to the public. However, that case was so decided because of representations made to purchasers of lots in the subdivision that the dashed lines constituted a public street. The court held there was a common-law dedication, which is based on estoppel. See also, McQuillan, supra, § 33.03, p. 634-635; Elliott, supra, § 125, p. 143-145.

Appellant neither argued nor offered evidence to support a claim of dedication by estoppel. In fact, representations made by Mr. Johnson to the Morrises could be the basis of estoppel against Mr. Johnson’s claim that there is a dedicated public street across their property.

Also, a statutory dedication in Alabama conveys fee simple title of the dedicated land. Tit. 56, § 14, Code of Alabama 1940, Recompiled 1958. Such a dedication in this case would cause the Morris’ property to be divided into two lots, separated by a public street. Such an arrangement would violate State Health Department regulations of minimum square footage for waterfront property.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

Appendix # 1 to follow.

aPPEND1X #l

APPENDIX #2