text:
    Virginia L. SURETTE et al., Appellants, v. Arthur GALIARDO, Jr., et al., Appellees.
    No. 74-928.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 30, 1975.

      Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Sepler & Sussman, Hialeah, for appellants.
    James E. Tribble of Blackwell, Walker, Gray & Powers, Miami, for appellee School Bd. of Broward County.
    William S. Gardella of Walton, Lantaff, Schroeder, Carson & Wahl, Fort Lauder-dale, for appellees School Bd. of Broward County and Pacific Indemnity Co.
   MAGER, Judge.

This is an appeal by Virginia L. Surette, plaintiff below, from a final judgment entered pursuant to a directed verdict in favor of the Broward County School Board and its liability insurer, Pacific Indemnity Company, defendants below.

The cause of action arose as a result of the death of plaintiff’s minor child who was struck by a car while waiting at a school bus stop site in Broward County. The complaint alleged, among other things, the school board’s negligence in its designation of the school bus stop site where the accident occurred and in routing the school bus to the specific location where plaintiff’s child was waiting; plaintiff further alleged, in part, that the school board did not properly mark the designated school bus location in question and was negligent in not providing a safe place for plaintiff’s child to stand while awaiting the school bus pick-up.

The plaintiff’s complaint further asserted that the school board had waived its sovereign immunity pursuant to sec. 455.06, F.S., by the purchase of general liability insurance from defendant Pacific Indemnity. Defendant filed an answer denying plaintiff’s allegations and moved to dismiss on the basis, among other things, that the doctrine of sovereign immunity was applicable. Thé action was tried before a jury and at the conclusion of plaintiff’s case the trial court granted a directed verdict in favor of the defendants school board and Pacific Indemnity primarily on the basis that the purchase of the liability insurance policy in question did not constitute a waiver of sovereign immunity within the contemplation of sec. 455.06, F.S.

As a basic observation and as a general proposition the county and its agencies are immune from tort liability in the absence of a general statute permitting suit as to such liability. 8 Fla.Jur. Counties § 100; Kaulakis v. Boyd, Fla.1962, 138 So.2d 505; Brandeis v. Dade County, Fla. App.1969, 226 So.2d 873; cf. Arnold v. Shumpert, Fla.1968, 217 So.2d 116. With the enactment of sec. 455.06, F.S., the legislature adopted a general law permitting the county, the school board and certain other governmental entities to purchase liability insurance for certain purposes and thereby waive sovereign immunity from tort liability in certain instances. Subsection (1) of sec. 455.06 provides as follows:

“(1) The public officers in charge or government bodies, as the case may be, of every county, district school board, governmental unit, department, board or bureau of the state, including tax or other districts, political subdivisions and public and quasi-public corporations, other than incorporated cities and towns, of the several counties and the state, all hereinafter referred to as political subdivisions, which political subdivisions in the performance of their necessary functions own or lease and operate motor vehicles upon the public highways or streets of the cities and towns of the state or elsewhere, or own or lease and operate watercraft or aircraft or own or lease buildings or properties or perform operations in the state or elsewhere are hereby authorized, in their discretion, to secure and provide for such respective political subdivisions, their agents and employees while acting within the scope of their employment, insurance to cover liability for damages on account of bodily or personal injury or death resulting therefrom, to any person, or to cover liability for damage to the property of any person or both, arising from or in connection with the operation of any such motor vehicles, watercraft or aircraft, or from the ownership or operation of any such buildings or property or livestock or any other such operations, whether from accident or occurrence; and to pay the premiums therefor from any general funds appropriated or made available for the necessary and regular expense of operations of such respective political subdivisions, without the necessity of specific appropriation or specification of expense with respect thereto. Provided, that in those instances where, by general law, provision has been made for the public officer in charge or governing body of such political subdivision to provide such insurance, this section shall not be construed to impair any such previous acts but shall be construed as cumulative thereto.” (Emphasis added.)

The record reflects that the school board purchased a comprehensive general liability insurance policy from Pacific Indemnity which provided for bodily injury and property damage liability coverage for an “occurrence” which was defined to embrace “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured . . .”.

The policy in question specifically excluded bodily injury or property damage liability arising out of the ownership, maintenance, operation or use of any automobile owned, leased or operated by the school board. Clearly, therefore, as the trial court correctly observed, the policy in question did not cover an accident resulting from an automobile (or bus) owned, leased or operated by the school board. However, the circumstances in the instant case do not involve the ownership, maintenance, operation, use, loading or unloading of a school bus. The plaintiff’s minor child was allegedly struck and killed by an automobile driven by one Joan Galiardo who had no relation to the school board or any of its activities. The presence of the school board and its insurer in the action below was not occasioned by the ownership, maintenance, operation, use, loading or unloading of a school bus but, rather, by the school board’s alleged negligence in its selection, designation, location and maintenance of school bus stop sites.

In this regard the provisions of section 234.03, providing for the purchase of liability insurance for bodily injury, damage or death resulting to pupils by reason of the ownership, maintenance, operation or use of school buses "while said pupils are being transported to or from a school or school activity” are not controlling. The fact that a liability policy is required under sec. 234.03 for the operation of school buses does not preclude the potential application of sec. 455.06 nor is it dispositive of the issue of whether the particular activity in question falls within the terms and conditions of said sec. 455.06.

A reading of sec. 455.06 reflects the clear intent of the legislature to authorize a district school board to purchase liability insurance, when, in the performance of a “necessary function” said school board "performs operations in the state”, i. e. operates a school bus .transportation system. The purchase of insurance to cover liability for damage on account of bodily or personal injury or death resulting from “such operations” constitutes a waiver of sovereign immunity. Section 455.06 additionally provides for the purchase of liability insurance and a corresponding waiver of tort liability where the agency, in performance of its necessary functions, owns, leases or operates motor vehicles, watercraft, aircraft or owns or leases buildings. However, we are not concerned here with the category of motor vehicles, watercraft, aircraft, buildings or properties—but, rather, we are concerned with the category of activity, i. e. “or perform operations in the state”.

A review of applicable statutes, rules and regulations pertaining to school bus transportation reflects a statutory duty, responsibility and obligation of school boards to provide bus transportation for pupils enrolled in public schools, such transportation operation encompassing not only the physical (safety) aspects of the vehicle and the driver qualifications but including such considerations as school bus routes, schedules and designated school bus stops. See sections 230.23(8), 234.01-11, F.S.; Rule 6A-3.17, 3.18, Rules and Regulations of Florida State Board of Education. If ever there was a vivid example of the performance of an “operation in the state” in furtherance of a “necessary function” it would be exemplified by school bus transportation, routing, scheduling and school bus stop site location designations.

It is our opinion therefore that the language of sec. 455.06 is sufficiently broad and descriptively flexible so as to encompass the necessary function of operating a school bus transportation system. The purchase of liability insurance pursuant to said section constitutes a waiver of the school board’s sovereign immunity from damages resulting from bodily injury or death arising from or in connection with such school transportation.

We have not overlooked the decision in Arnold v. Shumpert, supra. We find the factual circumstances in that case to be completely distinguishable from the instant situation; hence the specific holding in Arnold is inapplicable. See Buffkin v. Board of County Commissioners of Brevard County, Fourth District Court of Appeal, 320 So.2d 876 opinion filed October 17, 1975.

In Arnold, the court found that although the insurance policy covered the negligent operation of a traffic light, the statute, sec. 455.06, did not include a traffic light within the category of property for which insurance could be purchased and liability waived. By marked contrast, in the instant case we are, for example, not concerned with the category of school board “property”, but, rather, we are concerned with the category of a necessary “operation”. Moreover, there is a vast distinction between the permissive function of owning and operating traffic signals and the mandatory governmental function of operating a school bus transportation system. Cf. Gordon v. City of West Palm Beach, Fourth District Court of Appeal, 321 So.2d 78 opinion filed October 10, 1975; Clifton v. City of Fort Pierce, Fourth District Court of Appeal, 319 So.2d 195 opinion filed September 12, 1975.

It is important to point out, that our determination that the operation of a school bus transportation system falls within the category of subjects for which the purchase of liability insurance would constitute the” waiver of tort immunity, does not dispose of the issue of whether the particular policy in question provided coverage for the specific accident giving rise to the action below. It is unclear from a reading of the final judgment and the record of proceedings pertaining thereto whether the trial court reached this issue or intended to resolve it. The trial court’s entry of a directed verdict appears to have been predicated solely upon the language of sec. 455.06, as interpreted by Arnold v. Shumpert, supra. Without precluding further consideration by the trial court of this issue we are inclined to the view that by the very definition of the word “occurrence”, supra, the policy in question is sufficiently broad so as to include coverage for the subject accident. Cf. 18 Fla.Jur., Insurance, § 725; 44 Am.Jur.2d, Insurance, § 1433; Phoenix Insurance Company v. Branch, Fla.App.1970, 234 So.2d 396.

Concluding as we do that the trial court erred in directing a verdict for the defendants and entering a final judgment thereon on the basis of its application of sec. 455.-06, F.S., the cause is reversed and remanded for a new trial. In this regard, some comment should be made regarding another appellate point raised by the plaintiff.

The plaintiff contends that the trial court erred in refusing to require the defendant school board to produce for admission into evidence an incident report (of the accident) prepared by the defendant board’s agents and employees. Except for the argument of counsel contained in the record concerning the privileged nature of the report the record is somewhat silent as to whether the incident report was, in fact, prepared and submitted (to the insurer) for use in connection with an anticipated settlement or defense of a claim in which instance such report would be privileged. See Sligar v. Tucker, Fla.App.1972, 267 So.2d 54.

The decision in Vann v. State, Fla.1956, 85 So.2d 133, 138, cited in Sligar, contains the following statement from 22 A.L.R.2d 659, 660:

“ ‘According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.’ ” (Italics added).

See also Grand Union Co. v. Patrick, Fla. App.1971, 247 So.2d 474. The record does not reflect that the incident report in question was a report by an insured to its insurer within the contemplation of the aforementioned authorities. Since the rules of discovery permit a party to secure the production of documents for trial, the burden of establishing that the particular document is privileged and precluded from discovery rests on the party asserting that privilege (unless it appears from the face of the document sought to be produced that it is privileged). 23 Am.Jur.2d, Depositions and Discovery, pp. 508-9. Our review of the present record does not reflect that the privileged character of the document was clearly established so as to bring the report within the protection recognized in Sligar v. Tucker, supra.

Accordingly, for the reasons heretofore stated the final judgment is reversed and the cause remanded.

CROSS and OWEN, JJ., concur.

      . The complaint below also named as defendants, Arthur Gallardo, Jr., the owner of the automobile which struck the child, and Joan Galiardo, the operator of the automobile, and their insurer, Liberty Mutual Insurance Company. Neither of these parties are involved in this appeal.

      . Examples of other statutes involving statutory waiver of immunity are sections 234.03 and 768.28, E.S. It might be well to point out that with the adoption of 768.28-30, F.S., which became fully operative on January 1, 1975, any question regarding the waiver of tort immunity will be moot and no longer determined by an interpretation of the language contained in sec. 455.06, infra.

      . In this regard the facts are clearly distinguishable from the decision in Arnold v. Shumpert, supra, discussed somewhat in more detail, infra.

      . Recent decisions of the United States Supreme Court and lower federal courts on the subject of school busing have caused school bus transportation to rise to such proportions within the school program so as to reflect not only the performance of a “necessary function” but a “required” one as well.

      . To illustrate the necessity of a consistency (and a distinction) between policy language and statutory language we would point out that it is possible for language in an insurance policy to clearly cover a particular risk or circumstance (such as a traffic light in the Arnold case) while the language of the statute would not embrace that risk or subject so that the purchase of insurance would not constitute a waiver of liability. Conversely, the language of the statute may clearly embrace the subject matter for which insuranee is desired (as in the instant case) while the language of the policy may not embrace that particular risk or even specifically exclude certain aspects thereof thereby precluding a waiver of tort liability.

      . It is important to point out that our decision does not resolve any issue pertaining to the negligence vel non of the school board as it clearly appears that the trial court never reached that issue.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    CITY OF TAMPA, a Municipal Corporation, Appellant, v. R. R. WALDEN, Tax Assessor, and K. C. Bullard, Tax Collector, Appellees.
    No. 75-54.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.

      Henry E. Williams, Jr., City Atty., and Peter J. T. Taylor, Asst. City Atty., Tampa, for appellant.
    Brooks P. Hoyt, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Walden.
   SCHEB, Judge.

The issue on this appeal is whether certain municipally owned lands in Tampa’s Lowry Park and the adjacent miniature golf course, leased to private enterprise but operated for public recreational purposes, are exempt from ad valorem taxation. The trial court held such lands taxable on the grounds they are used for nonpublic purposes. We reverse.

Tampa’s Lowry Park is a public recreation complex of approximately 105 acres. It includes a public zoo, band shell, baseball diamond, and other related park uses. Various amusement areas (Fairy Land Railroad, Fairy Land Gift Shop, amusement rides, birthday house, fish dispensing machines, and deer park) are leased to Howdel, Inc., and are interspersed throughout the park complex. Adjacent to the park is a miniature golf course also owned by the City, and leased to Henry Torres, Jr. In the aggregate, these leased areas comprise approximately five to seven acres. The arrangements between the City and the private interests are in the nature of concessions, with the City receiving revenue based upon a formula taking into consideration the gross revenue received by each concessionaire. The City retains control over prices charged by the concessionaires and exercises general supervision over the entire park complex. While the public has access to the entire park without charge, fees are charged by the concessionaires for use of the various leased facilities.

Undisputed testimony on behalf of the City indicated the City could operate the amusement facilities and miniature golf course utilizing municipal employees, but that such operation would entail a considerable capital investment as well as higher personnel costs. Moreover, the testimony revealed the leased uses to be complementary to the park and that without these entertainment features, park attendance would probably decline by fifty percent.

The only testimony on behalf of the ap-pellee was that of the appellee tax assessor. He testified his criterion for determining whether or not to exempt the City lands is whether a particular use is for profit and in competition with private enterprise, commenting, “. . . there isn’t any law that gives the city the right to go into competition with private enterprise. ” Having determined the amusement facilities and golf course were operated by pro-vate interests for a profit, he assessed taxes against them.

The starting point for review of municipal eligibility for exemptions from ad valorem taxes is' Article VII, Section 3(a), Florida Constitution of 1968, which in pertinent part provides :

“All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation ...”

Municipal property can qualify for an exemption as being used exclusively for public purposes even when leased to private enterprise. Dade County v. Pan American World Airways, Inc., Fla.1972, 275 So.2d 505. There the Supreme Court held:

. . . property can be used exclusively for public purposes if the private purpose has merged into the term ‘public purposes’ and if the property is used solely for such ‘public purposes.’ ”

The criteria for exemption of municipal property leased by the City to a nongovernmental entity is set out in Fla.Stat. § 196.199(2)(a), which provides:

“(2) Property owned by the following governmental units but used by nongovernmental lessees shall only be exempt from taxation under the following conditions :
(a) Leasehold interests in property of the United States, of the state or any of its several political subdivisions, or of municipalities, agencies, authorities and other public bodies corporate of the state shall be exempt from ad valorem taxation only when the lessee serves or performs a governmental, municipal or public purpose or function, as defined in § 196.012(5). In all such cases, all other interests in the leased property shall also be exempt from ad valorem taxation.” (Emphasis supplied)

and Fla.Stat. § 196.012(5) which in pertinent part provides:

“(5) Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interests created in property of the United States, the state or any of its political subdivisions, or any municipality, agency, authority, or other public body corporate of the state, is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit, or which is demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allo- ■ cation of public funds. ...” (Emphasis supplied)

In effect then this case simply devolves into a determination of whether the use of the lands under lease constitutes a public or municipal purpose or function within the statutory meaning.

No one questions that operation of a public park for recreational purposes is a proper municipal or public purpose. That portions of public parks may be leased to private enterprise for uses which are accessory or incidental to the overall recreational aspects of the park is also well established. See, e. g., Sunny Isles Fishing Pier v. Dade County, Fla.1955, 79 So.2d 667, where the Supreme Court of Florida upheld a lease as being an incidental use to a public park, stating in its opinion:

“The amount of oceanfront used is only a small fraction of the total oceanfront and the construction of the pier over that small portion of the beach for all practical purposes probably adds to rather than detracts from its availability to the public. It is certainly a use incidental to the main operation of this large public park. It is not only incidental to such operation but the type of operation so conducted under the lease is one clearly within the power of the County to carry on under the foregoing acts to accomplish the main purpose. ”

Again in Panama City v. State, Fla.1957, 93 So.2d 608, the Supreme Court held that establishment of various concessions to be rented to private operators for sporting goods wear, tackle shops, drug stores, travel agencies, etc. could not destroy the public nature of a marina project for which the city had issued certain improvement revenue bonds.

The determining factor then is whether or not the leasehold interests are uses which are accessory to the operation of the public park. Here the very nature of the uses persuades us of their accessory character to the successful operation of Lowry Park, almost as utilities and refreshments would be. Not even the appel-lee tax assessor disputes this. The City of Tampa was entitled to and did determine that these uses are reasonably necessary to operation of its public recreational park for benefit of its residents and visitors. It should not be penalized for its determination that these entertainment functions can be more efficiently performed by private enterprise than by being municipally operated. Whether a profit is made from the operation is not the statutory criterion, but rather whether or not the leased or concession type uses are reasonably incidental to the predominant public and municipal purposes of the park and serve purposes which could otherwise be properly accomplished through use of municipal funds.

The appellee argues the lands it seeks to tax are not governmental within the purview of Fla.Stat. §§ 196.199 and 196.-012(5). While acknowledging that the Supreme Court adopted a liberal approach to what constitutes public purposes in Dade County v. Pan American World Airways, Inc., supra, the appellees, nevertheless, contend such approach has been tempered by a later decision of the Supreme Court in Straughn v. Camp, Fla.1974, 293 So.2d 689. Straughn, however, is not persuasive to ap-pellees’ position in this case because there the court merely held that certain leaseholds admittedly occupied as private dwellings on Santa Rosa Island did not serve a “public purpose.”

Although exemptions under the tax laws must be strictly construed against a party seeking an exemption, the term “public or municipal purpose” cannot be given an unduly restricted meaning if local government is to function effectively. While we are reluctant to disturb the findings of the trial court, we recently found it necessary to do so in Hertz Corp. v. Walden, Fla.App.2d 1974, 299 So.2d 121, aff’d, Fla.1975, 320 So.2d 385, where we reversed the trial court and held that certain facilities used by a rental car agency, although privately operated, were actually of such a predominantly public nature as to be exempt from ad valorem taxes under Fla. Stat. § 196.199(2) (a).

We hold that where, as here, the fact that portions of municipally owned park lands are leased to private entities and operated on a profit basis does not impair the City’s right to an ad valorem tax exemption as long as such leaseholds are accessory to the overall public purpose of the park complex and serve a function which could otherwise be accomplished by municipal funds.

Accordingly, we reverse for further proceedings consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.


author: PER CURIAM. SMITH, Judge

text:
    Chris ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. X-452.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    On Rehearing Dec. 2, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    • Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was convicted on all counts of a three count information. Count I charged robbery; Count II charged use of a firearm during the commission of a felony; and Count III charged aggravated assault. Appellant contends and the evidence shows that all three charges were part of the same transaction or crime involving the robbery of Kathleen Copeland; and, thus, the sentences for the lesser of the three offenses cannot stand. The State agrees. See Cone v. State, Fla., 285 So.2d 12 (1973).

Appellant also contends that the trial court erred in denying his motion to dismiss Count II in that it charged use of a firearm during the commission of a felony without alleging the felony that appellant was allegedly perpetrating; that each count of an information must be complete within itself. Appellant moved initially to dismiss Count II (mistakenly referred to as Count III, though the body of the motion makes it clear that he was referring to Count II). If this were a single count information charging use of a firearm during the commission of a felony, there would be merit to appellant’s contention but as part of the three count information, it is clear that the felony was the robbery charged in Count I or the lesser included offense of the robbery which was charged separately in Count III. If appellant had any doubt of this, he could have requested a statement of particulars, which he did not do.

The cause is remanded with directions that the sentences below to 15 years imprisonment for use of a firearm during the commission of a felony and five years imprisonment for aggravated assault be vacated.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.

ON PETITION FOR REHEARING GRANTED

In our opinion released on September 23, 1975, in this cause we remanded with directions that the sentences to 15 years imprisonment for use of a firearm during the commission of a felony (Count II) and five years imprisonment for aggravated assault (Count III) be vacated because such offenses, together with appellant’s conviction of robbery (Count I), were all part of the same transaction or crime involving the robbery of Kathleen Copeland. We noted that the state agreed with the contention of the appellant in that regard. Now on petition for rehearing the state has called our attention to its error which was compounded by our acceptance thereof. Appellant was convicted of Count I which charged him with the robbery of one Kathleen Copeland. Count III of which appellant was convicted charged appellant with aggravated assault upon a different person — Quinn Waldron. While both offenses were committed in the course of a robbery of an S & S Food Store in White Springs, Florida, they were each separate and distinct crimes perpetrated on two different persons. The charge against appellant for use of a firearm during the commission of a felony, however, was a part of the same transaction or crime involving both the robbery and the aggravated assault.

Our foregoing opinion is modified to such extent and the cause is remanded with directions only that the sentence below to 15 years imprisonment for use of a firearm during the commission of a felony be vacated.

RAWLS, Acting C. J., and McCORD, J., concur.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

On further reflection and rehearing, I consider that count two, charging in the generic terms of § 790.07(2), F.S., 1973> that Robinson and others, on June 12, 1974, in Hamilton County, “did then and there unlawfully while committing a felony use a certain firearm, to-wit: a pistol,” is insufficient to inform the defendant of the nature and cause of the accusation against him and should have been dismissed on Robinson’s motion. The fatal vagueness of the charge in this case is demonstrated by the existence of an identical charge, in another case against Robinson disposed of today, of the same or a similar offense committed on the same day in adjoining Suwan-nee County. Except for the difference in venue, the generality of the charging language would permit the prosecutor to charge appellant for one claimed offense and to convict him for another. Because the charging language did not descend to the particulars of the offense for which conviction was sought, the information did not protect Robinson from exposure to double jeopardy. In my view count two of the information was insufficiently vague, and it could not have been saved by a bill of particulars. Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143 (1945); State v. Hazellief, 148 So.2d 28 (Fla.App.2nd, 1962); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Van Liew v. United States, 321 F.2d 664 (5th Cir., 1963).


author: PER CURIAM.

text:
    Darrell P. GODFREY, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Mid-South Manufacturing Co., Respondents.
    No. 75-365.
    District Court of Appeal of Florida, Third District.
    July 10, 1975.
    Rehearing Denied Dec. 2, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Richard H. OLSEN, Appellant, v. Saul GOODMAN, Appellee.
    No. 75-699.
    District Court of Appeal of Florida, Third District.
    July 15, 1975.
    Rehearing Denied Dec. 2, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    In re ESTATE of Eurith Dickinson RIVERS, Sr., Deceased. E. D. RIVERS, Jr., as the Co-Executor-testamentary trustee-residuary legatee in the above styled Estate, Appellant, v. The FLORIDA NATIONAL BANK AND TRUST CO., Appellee.
    No. 75-350.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    EUROPEAN CAMP ASSOCIATION, INC., and American International Underwriters Corp., Appellants, v. Shauna DALY, a minor, by and through her father and next friend, Les Daly, and Les Daly, individually, Appellees.
    No. 75-669.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Dec. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Alan RECHTMAN, a minor, by and through his parents, and next best friends, Ralph Rechtman et al., Appellants, v. GRAY LINE SIGHTSEEING TOURS, INC., et al., Appellees.
    No. 74-1777.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Dec. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Clyde C. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 75-1479.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Orange County; W. Rogers Turner, Judge.

Appeal dismissed.


text:
    Lionel J. HANNA, Appellant, v. STATE of Florida, Appellee.
    No. 75-1540.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Palm Beach County; Russell G. McIntosh, Judge.

Appeal quashed.


text:
    ATLANTIC ENGINEERING AND MANUFACTURING CORPORATION, a Florida Corporation, Appellant, v. JOHN T. MINNEMA, INC., a corporation, and the School Board of Broward County, Florida, a body corporate, Appellees.
    No. 75-1843.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Broward County; Wm. C. Johnson, Judge.

Appeal dismissed.


text:
    Kenneth Bernard LAVAN, Relator, v. The Honorable Oliver L. GREEN, Jr., Respondent.
    No. 75-1564.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1975.
   Prohibition denied.


text:
    George VEGA et al., Appellants, v. SOUTHEAST SERVICES, INC., et al., Appellees.
    No. 75-1570.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1975.
    Rehearing Denied Dec. 1, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Leon TRAINER, Appellant, v. Frank PAYNE and Ruth Payne, Appellees.
    No. 75-377.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Palm Beach County; Robert S. Hewitt, Judge.

Appeal dismissed.


text:
    Virginia F. STAUDACHER, a/k/a Virginia F. Haley, Appellant, v. Robert F. STAUDACHER, a/k/a Robert W. Haley, Appellee.
    No. 75-1139.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Broward County; George Richardson, Judge.

Appeal dismissed.


text:
    Francisco VELEZ, Appellant, v. MELL LEONARD & ASSOCIATES, INC., a Florida Corporation, Appellee.
    No. 75-1190.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    LaWanna Kay McCRANIE a/k/a Kay Dooley, Appellant, v. STATE of Florida, Appellee.
    No. 75-1260.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   Appeal dismissed.


text:
    Jackie Leroy SMITH, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 75-1451.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   Habeas corpus denied.


text:
    O. B. WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1231.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   Appeal dismissed.


text:
    Alejandro BRIONES, Appellant, v. MIAMI TOYOTA, INC., a Florida Corporation, et al., Appellees.
    No. 75-622.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Irvin Lee BRISTOW, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 75-1923.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1975.
   Habeas corpus denied.


text:
    Darion Northrup CASTLE, a/k/a Sam H. Castle, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1915.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1975.
   Habeas corpus denied.


text:
    In re ESTATE of John Patrick SCHILP. Anne S. AUGUSTINE, as Administratrix, C.T.A. D.B.N., of the Estate of John Patrick Schilp, Deceased, Appellant, v. Hubert G. ROBERTS, Appellee.
    No. 75-368.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    James R. DENMARK, Appellant, v. STATE of Florida, Appellee.
    No. 75-748.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Russell H. McIntosh, Judge.

Appeal dismissed.


text:
    Hubert McCORMICK, Appellant, v. STATE of Florida, Appellee.
    No. 75-1781.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1975.
   Appeal from Circuit Court. Brevard County; Robert B. McGregor, Judge.

Appeal dismissed.


text:
    Julian Harry CAMACHO et al., Petitioners, v. Honorable Charles T. CARLTON, Circuit Judge, Twentieth Judicial Circuit in and for Collier County, Florida, or his successor, Respondent.
    No. 75-1597.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1975.
   Prohibition denied.


text:
    John Scott ROSS, Petitioner, v. Louie L. WAINWRIGHT, as Secretary of the Department of Offender Rehabilitation, Respondent.
    No. 75-1484.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1975.
   Habeas corpus denied.


text:
    Charles Richard BENNETT, Appellant, v. CITY OF HIALEAH and Chester Webb, Appellees.
    No. 75-1017.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    KELLER INDUSTRIES, INC., and Hank Keller, Appellants, v. Alex McWILLIAM, Appellee.
    No. 75-988.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    Doris PERSH, Appellant, v. Celia ARNOLD, Appellee.
    No. 75-1040.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    The SOCIETY FOR the WELFARE OF ANIMALS, INC., Appellant, v. David B. WALRATH, D.V.M., Appellee.
    No. 75-1030.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    Edward G. STRAUSS, Appellant, v. Jimye Helen STRAUSS, Appellee.
    No. 75-1167.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1975.
   Appeal quashed.


text:
    Richard Paul DAPORE and Margie A. Dapore, Appellants, v. AMERICAN STEEL FENCE COMPANY, INC., OF ORLANDO, a Florida Corporation, and John Polk, Sheriff of Seminole County, Florida, Appellees.
    No. 75-594.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Seminole County; Virgil B. Conkling, Judge.

Appeal dismissed.


text:
    DEVELOPMENT CONCEPTS CORPORATION, a Florida Corporation, and Norwood Enterprised, Inc., a Florida Corporation, d/b/a Regatta at Rosemont, a joint venture, Appellants, v. PROJECT SCHEDULING COMPANY, a Florida Corporation, Appellee.
    No. 75-1485.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Orange County; Thomas E. Kirkland, Clerk.

Appeal dismissed.


text:
    James E. HIGGINBOTHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1924.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Habeas corpus denied.


text:
    Dewey GODBY, Jr., Petitioner, v. James GODWIN, Superintendent, Reception & Medical Center, Division of Corrections, State of Florida, Respondent.
    No. 75-1994.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Habeas corpus denied.


text:
    Harold Huston FRIERSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1093.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Russell H. McIntosh, Judge.

Appeal quashed.


text:
    Gerald HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-1593.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Broward County; Hume T. Lasher, Judge.

Appeal dismissed.


text:
    Elliot S. KRAVETZ and Ruth Ann Kravetz, his wife, Appellants, v. GARDEN INTERIORS, INC., a Florida Corporation, Appellee.
    No. 75-738.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh MacMillan, Judge.

Appeal dismissed.


text:
    Lonnie MATHEWS et al., Appellants, v. Elmore WILLIAMS, Sr., etc., Appellee.
    No. 75-328.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Culver Smith, Judge.

Appeal dismissed.


text:
    ROBINO LADD OF FLORIDA, INC., a/k/a Robino-Ladd Co., Appellant, v. O’BRIEN CONSTRUCTION COMPANY, a Florida Corporation, Appellee.
    No. 75-989.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Orange County; Thomas E. Kirkland, Clerk.

Appeal dismissed.


text:
    The SCHOOL BOARD OF PALM BEACH COUNTY, Florida and Joseph M. Carroll, Appellants, v. Helen PINK, Appellee.
    No. 75-1857.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Thomas E. Sholts, Judge.

Appeal dismissed.


text:
    Frederick W. SMITH, Appellant, v. Georganne M. SMITH, Appellee.
    No. 75-933.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    James H. STEPHENS, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1640.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
   Habeas corpus denied.


text:
    WITHERS VAN & STORAGE OF WEST PALM BEACH, INC., Appellant, v. Milton HOFF, Appellee.
    No. 75-1787.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh McMillan, Judge.

Appeal dismissed.


text:
    Thelma Jo WOLLNER, Appellant, v. Martha B. MEEHAN, formerly Martha B. Carolin, as Administratrix of the Estate of Lyne E. Carolin, Deceased, Appellee.
    No. 75-1133.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   Appeal from Circuit Court, Palm Beach County; John R. Beranek, Judge.

Appeal dismissed.


text:
    Raymond A. HAAS, and Cliff B. Gosney, Jr., P.A., d/b/a Gosney, Haas, Cameron & Parsons, Petitioners, v. The Honorable Claude R. EDWARDS, Respondent.
    No. 75-2043.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 1975.
   Prohibition denied.


text:
    The STATE of Florida ex rel. Alan Nelson DIAMOND, Relator, v. Honorable George ORR, Judge of the Circuit Court, Criminal Division, In and for Dade County, Florida, Respondent.
    No. 75-1335.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Jessie Neal WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1656.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 1975.
   Habeas corpus denied.


text:
    Anabel WODDROP, Appellant, v. HOMOSASSA SPRINGS, INC., a Florida corporation, d/b/a Nature’s Own Attraction, Appellee.
    No. 75-1393.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Walter R. HAYS, Appellant, v. STATE of Florida, Appellee.
    No. X-431.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Dewitt JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. Z-9.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas W. SHARTZER, Appellant, v. STATE of Florida, Appellee.
    No. W-529.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Ulysses F. SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. Y-126.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Perry WHITE, Appellant, v. STATE of Florida, Appellee.
    No. Y-422.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Admiral E. TULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1422.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   Appeal dismissed.


text:
    Betty BERNSTEIN, Appellant, v. Max BLANCK and Sheldon Lelchuk, as Executors of the Estate of William Bernstein, Deceased, Appellees.
    Nos. 75-1321, 75-1322 and 75-1323.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    GALLOWAY THEATERS, INC., etc., et al., Appellants, v. William B. LYDEN, etc., Appellee.
    No. 75-1652.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Nancy Postal HURWITZ, Appellant, v. L. E. GOLDKIN and Lillian Spector Goldkin, jointly and severally, Appellees.
    No. 75-156.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    James J. JAMES, Appellant, v. George W. DUBREUIL, Appellee.
    No. 75-1770.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    KENDALL EAST ESTATES, INC., Appellant, v. YALE OGRON BUILDERS SALES, INC., Appellee.
    No. 75-1660.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Doris WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1439.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Evelyn WILLIAMS, Appellant, v. RANDLE EASTERN AMBULANCE SERVICE, Appellee.
    No. 75-1724.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Evelyn WILLIAMS, surviving spouse of Charles H. Williams, Deceased, Evelyn Williams, as administratrix of the Estate of Charles H. Williams, Deceased, Appellant, v. Michael WITLIN, D.O., et al., Appellees.
    No. 75-1725.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. Ian L. MATHESON, Appellee. William G. TAYLOR, M.D. and Commercial Union Insurance Company, Appellants, v. Ian L. MATHESON, Appellee.
    Nos. 75-1279, 75-1298.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    In re ESTATE of W. P. PAWLEY, Deceased.
    No. 75-905.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    Kathy Lynn HOWARD, Appellant, v. Charles Russell HOWARD, Appellee.
    No. 75-1411.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    Sheila E. JONES, a minor, by her mother, natural guardian and next friend, Iris G. Jones, and Iris G. Jones, individually, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., an Insurance Corporation, Appellee.
    No. 75-449.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.


text:
    Joe MARTINEZ, Appellant, v. The GRAND UNION CO., Appellee.
    No. 75-707.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    Donald REGAR et al., Appellants, v. Alfred S. AUSTIN, Appellee.
    No. 75-1424.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    Nancy E. ROBINSON, Appellant, v. James Frank ROBINSON, Jr., Appellee.
    No. 75-1270.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    SEARCH PROPERTIES X, LIMITED, a Florida limited partnership, Appellant, v. HUGHES SUPPLY, INC., a Florida Corporation, Appellee.
    No. 75-1563.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


text:
    STATE of Florida, Appellant, v. Donald BATES, Appellee.
    No. 75-1623.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1975.
   Appeal dismissed.


author: GILLESPIE, Chief Justice:

text:
    MFC SERVICES, a Mississippi Corporation v. Jerry A. LOTT.
    No. 48350.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Rehearing Denied Dec. 22, 1975.
    M. M. Roberts, S. Wayne Easterling, Dorrance Aultman, Hattiesburg, for appellant.
    Holmes, Dukes & Sullivan, Hattiesburg, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice:

Jerry A. Lott (plaintiff) sued MFC Services, a Corporation (defendant), for property damage, medical expenses and personal injuries. The jury returned a verdict for $175,000. Defendant appeals.

Plaintiff stopped his automobile in obedience to a highway traffic light. Defendant’s automobile, driven by its employee, Quick, struck plaintiffs automobile in the rear, knocking it forward over fifty feet. Plaintiff’s automobile was destroyed and plaintiff injured.

The only question requiring discussion is whether the verdict was so excessive that it was palpably against the preponderance of the evidence.

Lott’s health was excellent before the accident. Dr. Clayton S. Cook treated plaintiff at the hospital emergency room about 2:30 A.M., which was about two hours after the accident, and plaintiff was complaining of severe headache, neck pain, lower back pain, and pain in his right ankle where there was an abrasion. Dr. Cook stated that X-rays of plaintiff’s skull, cervical spine, lumbar spine, and right ankle revealed no fracture or dislocation. Dr. Cook referred plaintiff to Dr. Francis R. Conn, an orthopedic surgeon. Plaintiff was then put in traction but continued to have headaches and neck pain. A brain scan and electroencephalogram were interpreted as normal. After six days in the hospital plaintiff was discharged.

Dr. Cook’s final diagnosis was cerebral concussion, acute cervical and lumbar strain, contusion of the head and right ankle. A week after plaintiff left the hospital he was still having considerable pain and his feet tended to go to sleep. About this time, plaintiff told Dr. Cook that he was seeing floating objects as he looked out and he was referred to an ophthalmologist. There is no testimony as to what, if anything, was found by the ophthalmologist.

Dr. Francis R. Conn, an orthopedic surgeon, first saw plaintiff while he was in the hospital being treated by Dr. Cook. He made the same complaints to Dr. Conn that he had made to Dr. Cook. Dr. Conn found limited motions of his neck and marked spasms of the posterior neck muscles, but the upper extremities did not reveal any abnormal reflexes. He found limited motion of plaintiff’s back in the lumbar region, with positive straight-leg-raising tests on the right side, indicating that something was pressing on the nerves in the back. Nineteen days after the accident, Dr. Conn saw and examined the plaintiff in his office and there was marked limited motion of his neck and lower lumbar spine. More X-rays were taken and no fractures were revealed. The doctor’s main finding at this time was marked limited motion of the back and neck, and plaintiff was given muscle relaxing drugs and also drugs for nervousness.

About a month after the accident, Dr. Conn again saw the plaintiff and he showed outward signs of nervousness and still complained of headaches and back pain. Two weeks later, he saw plaintiff, who made the same complaints, including the fact that his feet were going to sleep and some numbness in his hand. He was unable to get plaintiff to bend his back and he prescribed a back brace. At that time plaintiff held his back in a hyperextended (or swayback) position. Dr. Conn was of the opinion that plaintiff either had a continued nerve pressure or enough of a hy-perextension and flexion injury to cause some permanent scarring in the nerve route. Because of the generalized nature of the plaintiff’s physical complaints, Dr. Conn decided against doing a myelogram. Dr. Conn stated that plaintiff was unable to drive a large tractor-trailer truck, fly an airplane, or do farm work, and he thought his condition was permanent. Dr. Conn also stated that plaintiff might undergo surgery or a myelogram at a later date.

Plaintiff and his wife testified that after the accident the plaintiff stayed in bed a large part of the time; their lives changed completely; his personality changed; he was unable to do farm work, and he had not had a good night’s sleep since the wreck; that after the accident he had trouble swallowing; his back acted as if he had just played a football game; he was completely down in his back, and his condition grew worse; that he had black dots in his vision and occasionally suffered double vision; that after he got out of the hospital he had tremendous pain, could not turn his neck, and his feet would go to sleep. Plaintiff testified that his condition got worse as time went on, and when driving his truck, his legs would be paralyzed when he got out, and at night he would be extremely nervous, upset and in bad pain; that he was not able to drive a truck after August 26, 1973, because of the pain and physical disability.

The accident occurred on February 3, 1972. At the time of trial, plaintiff was 35 years old, had a B.S. degree in mathematics, married, and had two children. He was in the Naval Service from 1961 to 1970, and remained in the active reserve after leaving the Navy as a qualified pilot. As an active Reservist, plaintiff received $174 per month, and it was necessary for him to request a release from the Navy after his accident. At the time of his injury, plaintiff was an independent truck operator, owned a 1971 GMC-6500 series truck, and made approximately $600 per month profit out of his trucking operation. He testified he was in the cattle business on a partnership basis with his father, worked on the farm in this connection, and earned about $2,000 a year from the business. He sold his cattle in order to have funds to live on after the .accident. On May 16, 1972, three and one-half months after the accident, plaintiff returned to the trucking business and drove a smaller truck for one month; during this time he was unable to make two trips per day as he had done before the accident. After reaching his destination, he would have to lie down while the truck was being loaded because his back and legs would become numb. He operated about a month and earned approximately $250.

He bought a larger truck for $35,500, and began driving it on June 17, 1972. It had sleeping accommodations where he could rest. He was only able to drive four days .a week, whereas before the accident he had driven six days a week, and for the fourteen months that he operated this large truck, he realized from $100 to $150 less profit per month than before he was injured. During this fourteen-month period, his physical condition grew worse. After several hours of driving his leg would be paralyzed, and sometimes he fell when he got out of the truck, and when he got home at night, he would be nervous, upset and in pain. He said that after the fourteen-month period he was unable to do any farm work. In August, 1973, five or six months before the trial, he gave up driving the big truck and sold it for $18,000.

Dr. Cook’s bill was $65.00; the hospital bill was $625.25; the pharmacist’s bill was $167.42; the bill for the back brace was $73.50; and Dr. Conn’s bill was $760.00, or a total of $1,691.17 medical expenses. His automobile was damaged to the extent of $875.00.

The Court is of the opinion that, considering the present value of the dollar, the extent of the plaintiff’s injuries, his special damages, and the probabilities of his future disability, the proof does not justify a verdict of $175,000. We find that the verdict is palpably against the preponderance of the evidence. This Court has said many times that it is reluctant to disturb a jury verdict, especially where pain and suffering are involved. Nevertheless, in Employers Mutual Casualty Co. v. Ainsworth, 249 Miss. 808, 164 So.2d 412 (1964), this Court said:

Throughout our history the Court has found it necessary from time to time to set aside verdicts of the jury in order to preserve the integrity of the right to trial by jury and to see to it that litigants have the kind of jury trial contemplated by the Constitution, for every Constitutional Convention has adopted the same language used in the Constitution of 1817 with full knowledge that in the cases under the Constitution of 1817 the Court construed the guarantee of the right to jury trial as subject to the rule that a verdict would be set aside when “found palpably against the preponderance of evidence.” 249 Miss. at 824-25, 164 So.2d at 419.

The relatively small amount of the hospital and medical expenses is one factor that must be taken into consideration. Others include the generalized nature of the plaintiff’s physical complaints, the absence of any fracture, and the fact that a myelogram was not done. The Court also must consider that the plaintiff is not dependent upon manual labor to earn a living. He is an educated man, obviously capable of performing work other than heavy manual labor. The $600 that the plaintiff stated he made from his trucking operation included the value of his services and the profits made on his investment in the truck. The Court fully realizes that some of these matters can not be made more definite, and that the plaintiff undoubtedly received some permanent injuries.

In order to provide some possible basis for the disposition of this case without a new trial on the issue of damages, the Court suggests a remittitur of $75,000. It is appropriate for the Court to again emphasize that it is not undertaking to fix the damages but is only giving the plaintiff the option of entering a remittitur and accepting a final judgment in this Court of $100,000, or receiving a new trial on the issue of damages only.

If the plaintiff exercises his option to enter the remittitur of $75,000 within fifteen days from the date this judgment becomes final, judgment will be entered here for $100,000, and the case affirmed for that amount, otherwise the case will be reversed and remanded for a new trial on the issue of damages only.

Affirmed on condition of remittitur.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: ROBERTSON, Justice. GILLESPIE, Chief Justice

text:
    James Rex BRYAN v. Baremore BRYAN, Jr.
    No. 48344.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Rehearing Denied Dec. 22, 1975.
    Cunningham & Smith, John A. Ferrell, Booneville, for appellant.
    Darden & Sumners, New Albany, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice.

A bill of complaint was filed by James Rex Bryan against his brother, Baremore Bryan, Jr. in the Chancery Court of Union County, Mississippi. In his answer, Bare-more asserted several affirmative defenses, one of which was the three-year statute of limitations against actions “on any/unwritten contract, express or implied.” [Miss. Code Ann. § 15-1-29 (1972)].

After a separate preliminary hearing, the Chancellor sustained this affirmative defense. Complainant appeals.

In his bill of complaint filed June 15, 1973, complainant averred that defendant:

“[E]ntered into an oral contract with complainant wherein the defendant agreed to deed to complainant an undivided one-half interest in one acre of land owned by defendant and included in the above described property for the consideration of the complainant’s constructing a building approximately 32 feet by 100 feet upon said one acre plot. In said building the defendant was to locate a grocery store in one-half and complainant was to locate a laundrymat and restaurant in the other half.
“Following the completion of the building, defendant opened a grocery store in one side of the building and complainant opened a laundrymat in the other side. Complainant, after consulting with the defendant, and with his consent, decided not to install a restaurant in the remaining part of the building because such installation of a restaurant would cause the fire insurance on the entire building to be much higher than if the restaurant were not installed.
“The complainant and the defendant then extended their original contract to include terms whereby the defendant would deed to the complainant fee simple title to one acre of land adjoining the original one acre on which the building had been constructed for the consideration of the complainant trading to defendant the part of the original building in which the complainant’s restaurant was to have been located.”

Complainant charged that defendant never executed a deed to him of an undivided one-half interest in the original one acre, or a deed to the one acre of land adjoining the original one-acre tract. Complainant averred that defendant in October, 1969, put him off of the property and threatened him with death if he attempted to “set foot on the property again”.

Complainant charged that thereafter defendant wrongfully began to use his machinery and equipment and “refused and continues to refuse to allow complainant upon the premises to claim said property or pay complainant for same.”

Complainant averred that he bought and paid for materials, equipment and labor in constructing the building, and itemized these expenses, totaling $10,031.31, in Exhibit A to the bill of complaint.

Complainant’s prayer was:

“[T]hat on the final hearing a Decree be entered against said defendant for the recovery of $10,031.31, together with the cost of this suit, and that an equitable lien be declared in favor of the complainant for the payment of said sum against the building and the above land on which it stands, or on one acre of land on which the said building is located, and that the same be foreclosed and complainant be reimbursed for his aforesaid investment expenses!’ (Emphasis added).

After finding that this was an oral contract for the sale of lands, falling under the statute of frauds [Miss.Code Ann. § 15-3-1 (1972)], the chancellor sustained the affirmative defense of the three-year statute of limitations set forth in Mississippi Code Annotated section 15-1-29 (1972). That Section provides:

“Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after.”

(Emphasis added).

We think that the chancellor was correct in his findings of fact and conclusions of law.

Although complainant by his own admission was ousted in October, 1969, he waited until June IS, 1973, approximately three years and eight months later, to bring suit for the recovery of his expenses in constructing the building on his brother’s property.

In Carter v. Witherspoon, 156 Miss. 597, 126 So. 388 (1930), this Court held that parties entering into an oral contract for the sale or conveyance of land were not without remedy, but that their remedy was in quantum meruit or quantum valebant. In Carter, the complainant averred that he:

“[E]ntered into an oral agreement with the defendant, by which the complainant agreed to live with, care for, and provide for the financial support of, the defendant as long as she lived; for which the defendant was to bequeath and devise to him all of her property, both real and personal; that the complainant complied with his agreement, lived with, cared for, and supported the defendant for a number of months, when she forced him to leave her home, and served notice on him that she did not intend to comply with her promise to devise and bequeath her property to him.
“The bill then set forth the value of the services rendered to defendant by the complainant, the amount which he had spent in her support, and asked for a judgment therefor.” 156 Miss. at 601, 126 So. at 388.

The lower court overruled a general demurrer. This Court affirmed and remanded, saying:

“It will not be necessary for us to decide the first of these propositions [‘an oral promise to devise land is void under the statute of frauds’]. If the agreement is within the statute of fraud, and, therefore, not binding on the defendant, the complainant nevertheless has the right to recover the value of his services, and the money advanced by him to the defendant under the agreement. Ellis v. Berry, 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; 27 C.J. 363.” 156 Miss. at 602, 126 So. at 389.

Somewhat analogous is the case of Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360 (1948), wherein this Court said:

“Appellee could not sue for specific performance, since the oral contract was unenforceable under the statute of frauds, but his remedy was recovery of the money he paid on the consideration for the broken contract. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Ellis v. Berry et al., 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820.
“This Court has passed specifically upon the point upon which this issue turns, saying: ‘It is a familiar principle of law that, where payments are made by a purchaser under a parol contract for the sale of land, and the vendor refuses to complete the transaction by the execution of the necessary deed, the purchaser may recover the amount or amounts paid as for money had and received . . . ’ Milam v. Paxton, et al., 160 Miss. 562, 134 So. 171, 172. This is the kind of case, according to the original bill, which is before us, since the demurrer admits the facts therein set forth. The charge of fraud, it will be seen, is therefore immaterial and surplusage.” 204 Miss. at 332, 37 So.2d at 361.

The decree of the chancery court, sustaining the defense of the three-year statute of limitations, is affirmed.

This case was considered by a conference of the Judges en banc.

Affirmed.

PATTERSON, SMITH, SUGG and BROOM, JJ., concur.

GILLESPIE, C. J„ RODGERS, P. J., and INZER and WALKER, JJ., dissent.

GILLESPIE, Chief Justice

(dissenting):

The majority decided this case as if it were merely a suit to recover for labor and material furnished in the construction of the store building. This is understandable in view of the lack of suitable verbiage in the bill of complaint, but, in my opinion, the majority has reached the wrong result when substance rather than form is considered. Moreover, if the facts averred are true, the majority decision is manifestly unjust.

I propose to demonstrate in this dissent that (1) the facts stated in the bill of complaint stated a classic case of a joint venture, which necessarily meant that the relationship between complainant and defendant was fiduciary in character, (2) the property and funds dedicated to the accomplishment of the purposes of the enterprise belonged to both co-venturers, even though the title to the land was in only one, (3) the three-year statute of limitations is not applicable, and (4) that substance, not technical form, is to be considered in determining whether the bill of complaint reveals enough to show equitable merit.

1.

The facts that must be present to constitute a joint venture are succinctly stated in 46 Am.Jur.2d, Joint ventures section 7 (1969), as follows:

It may be stated in general terms that the relation of joint venturers is created where two or more persons combine their money, property, or time in the conduct of some particular line of trade, or for some particular business deal, agreeing to share jointly, or in proportion to the capital contributed, in the profits and losses, assuming that the circumstances do not establish a technical partnership.

This Court stated in the leading case of Sample v. Romine, 193 Miss. 706, 8 So.2d 257 (1942):

A joint adventure has been broadly defined as an enterprise undertaken by several persons jointly, and, more particularly, as an association of two or more persons to carry out a single business enterprise for profit ... an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge. In Simpson v. Richmond Worsted Spinning Co., 128 Me. 22, 145 A. 250, 253, the Court said a “joint adventure” has been defined as an ‘association of two or more persons to carry out a single business enterprise for profit.’ ... A federal court said “ ‘Joint adventure’ exists when two or more persons combine in joint business enterprise for their mutual benefit with understanding that they are to share in profits or losses and that each is to have voice in its management.” Chisholm v. Gilmer, 4 Cir., 81 F.2d 120, 121, affirmed 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 63, rehearing denied 299 U. S. 623, 57 S.Ct. 229, 81 L.Ed. 458. Other definitions will be found in the notes in 48 A.L.R., beginning at page 1055, and in 63 A.L.R., beginning at page 910.
The contributions may be in money, materials, services — “something promotive of the enterprise.” Simpson v. Richmond Worsted Spinning Co., supra, 193 Miss. at 726, 8 So.2d at 260.

The relationship between complainant and defendant was fiduciary in character.. In Sample v. Romine, supra, the Court said:

The relationship between the joint adventurers is fiduciary in character and imposes upon all the participants the utmost good faith, fairness, and honesty in their dealings with each other as respects the enterprise. “This is especially true of those ... to whom the property involved therein is intrusted.” 30 Am.Jur., page 695, Sec. 34. 193 Miss. at 729, 8 So. 2d at 262.

2.

The property and funds dedicated by the parties to the joint venture belong to the co-venturers even though title to the land was in the name of only one. Again, Sample v. Romine, supra, speaks definitively as follows:

In such cases, although the title to the property is permitted to be taken in the names of some of the co-adventurers, the rights of the others are not impaired thereby, and the one holding the title becomes in equity a trustee for all. The trust thus imposed follows the property until it passes into the hands of innocent bona fide purchasers. 193 Miss. at 729, 8 So.2d at 262.

3.

The three-year statute of limitations does not apply. We have already noted that the property in the name of one co-venturer is held in trust for all co-ventur-ers. The applicable statute is Mississippi Code Annotated section 15-1-39 (1972), which states in pertinent part as follows:

Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue and not after, ....
4.
Substance, not technical form, is to be considered in determining whether the bill of complaint stated a case of joint venture. Mississippi Code Annotated section 11 — 5— 13 (1972) is authority for the foregoing statement. That section states, in pertinent part:
The bill must contain a statement of the facts on which the complainant seeks relief, in ordinary and concise language, without repetition or needless prolixity, and conclude with a prayer for relief.

See also, V. Griffith, Mississippi Chancery Practice sections 170 and 198 (2d ed. 1950).

The remaining question is whether the bill of complaint stated, in substance, facts showing the creation of a joint venture. In sum, these factors must be present: (1) A contract, expressed or implied, written or oral; (2) the contribution by the parties pursuant to the contract, of “money, property, effort, skill, or other assets to a common undertaking”; (3) “a joint property interest in the subject matter of the venture”; (4) an “expectation of profits, or the present of adventure,” and (5) a limitation of the objective to a single undertaking or ad hoc enterprise.” Romine v. Sample, supra; 46 Am.Jur.2d, Joint Ventures, §§ 7 and 8 (1969).

1. The contract. The bill of complaint states that defendant “entered into an oral contract with complainant wherein the defendant agreed to deed to complainant an undivided one-half interest in one acre of land owned by defendant and included in the above described property for the consideration of the complainant’s constructing a building approximately 32 feet by 100 feet upon said one acre plot. In said building the defendant was to locate a grocery store in one-half and complainant was to locate a laundromat and restaurant in the other half.” Record 3-4.

2. The contribution of the parties. The bill of complaint states:

After the contract was entered into, complainant secured various workmen to level the lot and construct the aforementioned building. Complainant and defendant consulted during the various stages of construction and defendant worked with the complainant in overseeing said construction. All the time defendant was leading complainant to believe by words and deeds that defendant was getting the one acre of land on which the building was being constructed released from a deed of trust to the Bank of Mississippi and was having a warranty deed prepared making complainant the owner of an undivided one-half interest in and to said one acre of land the improvements thereon.

3. Joint interest in the enterprise. The bill states that the land on which the building was located was to be jointly owned by defendant deeding complainant a half interest therein. The parties would then have a joint property interest in the subject matter of the venture — a building wherein each party would operate a business, and they did so operate until defendant f orceably ousted complainant.

4. An expectation of profits. The bill clearly shows that the parties each expected to profit from the venture by using the property acquired for operating their businesses. The bill of complaint states:

Following the completion of the building, defendant opened a grocery store in one side of the building and complainant opened a laundrymat [sic] in the other side. Complainant, after consulting with the defendant, and with his consent, decided not to install a restaurant in the remaining part of the building because such installation of a restaurant would cause the fire insurance on the entire building to be much higher than if the restaurant were not installed.

5. A limitation of the venture to a single enterprise. The bill of complaint shows that the only objective of the joint venture was to acquire a building wherein each party would operate his own business.

I am at a loss to see how it can be said that the parties to this suit did not create a joint venture. The complainant should not be denied the right to have his case heard simply because the bill of complaint failed to use the technical words associated with charging the creation of a joint venture. The prayer of the bill of complaint contains the following:

And if complainant has not prayed for the specific relief to which he is entitled, then he prays for such other, further, and more specific relief as the Court may seem mete and proper.

The prayer was sufficient to not only allow the court to grant relief, but it was of such nature so as to require the court to grant any relief not inconsistent with the bill of complaint. Dodge v. Evans, 43 Miss. 570 (1870).

RODGERS, P. J., and INZER and WALKER, J J., join in this dissent.


text:
    Elizabeth K. LEVER v. Emmett R. ATWOOD, Jr.
    No. 48439.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    Ramsey, Bodron & Thames, P. Kelly Loyacono, Dabney & Dabney, Vicksburg, for appellant.
    Prewitt & Braddock, Vicksburg, Satter-field, Shell, Williams & Buford, Cary E. Bufkin, Michael S. Allred, Jackson, for ap-pellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


author: PATTERSON, Justice.

text:
    Mrs. C. A. (Mae) SHELTON, Plaintiff-Appellant, v. James Cedrick COLEMAN et al., Defendants-Appellees.
    No. 48415.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Satterfield, Shell, Williams & Buford, Michael S. Allred, Sam S. Allred, Jackson, for plaintiff-appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for defendants-appellees.
    Before RODGERS, PATTERSON and SUGG, JJ.
   PATTERSON, Justice.

This tort suit arises from- the Circuit Court of Jefferson County, wherein Mrs. C. A. Shelton sought damages from James Coleman and James Embry, doing business as C and E Logging Company, and Luke Felton, their driver. The jury found against the plaintiff and she appeals, contending, among other things, that the verdict was against the overwhelming weight of the evidence and the trial court erred in entering a judgment in vacation.

The record demonstrates a jury question arising from conflicting testimony. The gist of the testimony of Felton, the driver of the log truck, and his witnesses was that the plaintiff came over on his side of a graveled road forcing him to leave the traveled portion to avoid hitting her automobile. He further testified that the plaintiff’s automobile struck the rear wheel of his truck.

To the contrary, Mrs. Shelton, the plaintiff, and her witnesses testified that the log truck was on her side of the road coming around the curve and that she was forced off the right side to avoid striking the truck, but, nevertheless, the truck struck her automobile, inflicting damages to her.

In order to overrule a jury verdict we have held that this Court must find it was contrary to the overwhelming weight of the evidence and not a product of reason, but, rather, the result of bias, passion and prejudice. Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963).

The rule was stated in Illinois Central Railroad Co. v. Harrison, 224 Miss. 331, 80 So.2d 23 (1955), as follows:

“The judge may not substitute his judgment for that of the jury merely because he would have decided the matter differently. . . . Conflicts in the testimony and the veracity of witnesses are for the determination of the jury, not the judge.” 224 Miss. at 338-39, 80 So.2d at 26.

We conclude the verdict of the jury was based upon evidence sufficient to support it and was not against the overwhelming weight of the evidence.

The appellant next contends that the judgment of the court was entered in vacation and is void. The trial concluded with a jury verdict for the defendants on an evening two days preceding the conclusion of the term. The appellant’s attorney requested and received leave from the trial court to present a motion for a judgment n. o. v. and for a new trial in vacation. The defendants’ attorney was in agreement with the above motion and thereafter, on the last day of the term, left a proposed form of the judgment in the circuit clerk’s office. This judgment was not presented to the court and, consequently, was not signed, but was nevertheless placed upon the minutes. Apparently, it was unsigned due to the court’s misunderstanding of the attorneys’ several motions and agreements. The judge, upon the omission being called to his attention, attempted to cure the error by a judgment nunc pro tunc in vacation. We think this was a technical error that in no way affected the outcome of the suit since the jury verdict, as mentioned, was proper. Indeed, we note in passing upon the matter that the appellant seeks reversal from a final judgment of the circuit court while at the same time maintaining there was no final judgment.

In Jackson v. Schwartz, 240 So.2d 60 (Miss.1970), this Court said:

“The rule which we adopt is that the date of rendition of the judgment of the circuit court in term time, as well as in vacation, is the date when the judgment is signed by the judge and filed with the clerk for entry on the minutes; or if the judgment is not signed by the judge, the rendition date is the date it appears on the minutes of the court.” 240 So.2d at 62.

We also held in McDaniel Brothers Construction Co. v. Jordy, 185 So.2d 450 (Miss.1966), that a judgment might be corrected by the trial court at any regular term of the court. We are of the opinion, in view of the doubt concerning the validity of the nunc pro tunc vacation order, that the judgment should be properly entered in the next regular term of the court.

The other assignments of error relating to the trial have been considered and, in our opinion, are without merit. To avoid prolixity, we do not burden this opinion with comment thereon.

Affirmed and remanded.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Donell WILLIAMS v. STATE of Mississippi.
    No. 48801.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    Forrest A. Johnson, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SMITH, ROBERTSON and SUGG, JJ., concur.


author: INZER, Justice.

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. FIRST METHODIST CHURCH OF BILOXI, MISSISSIPPI, INC.
    No. 48764.
    Supreme Court of Mississippi.
    July 7, 1975.

      Gillespie & Lenoir, Gulfport, for appellant.
    L. C. Corban, Jr., Louis Hengen, Daniel D. Guice, Biloxi, for appellee.
   QN MOTION

INZER, Justice.

Mississippi State Highway Commission has filed a motion to docket and dismiss the appeal of the First Methodist Church of Biloxi, Mississippi, Inc. from a judgment of a Special Court of Eminent Domain convened during the regular term of the County Court of Harrison County. The highway commission contends that the church failed to perfect its appeal within forty-five days from the date of the judgment in the Special Court of Eminent Domain and therefore, this appeal should be dismissed.

The application for the establishment of the Special Court of Eminent Domain was filed on January 29, 1974. On April 10, 1974, the application was amended to join proper parties. A fiat was later issued setting the matter for trial on October 28, 1974, but the matter was not heard on that date. No order was entered resetting the case, but by consent of the parties it was continued on two occasions. The final trial date agreed to by the parties was December 9, 1974, which was the first day of the December 1974 term of the county court. No regular jurors are drawn for the first week of the December term of the county court. On November 25 a venire of special jurors was drawn to serve during the first week in December 1974. At the same time a venire of regular jurors was drawn to serve for the second week of the term. The parties appeared, a trial was had, the jury returned its verdict on December 11, 1974, and it was filed on that date. The final judgment of the eminent domain court was entered on December 12, 1974. No motion for a new trial was filed prior to the date of this judgment and no order was entered allowing time within which to file a motion for a new trial. Appellant did file a motion for a new trial on December 20, 1974. The motion for a new trial was argued on January 10, 1975, during the regular December term of the county court, and an order was entered taking the matter under advisement for a decision at a later date. On February 7, 1975, an order was entered overruling the motion for a new trial. On February 13, 1975, counsel for the church gave notice to the court reporter to transcribe the notes. On February 17, 1975, the appeal bond was filed and approved by the clerk.

It is the contention of the highway commission that the jurisdiction of the special court of eminent domain ended when the final judgment was entered on December 12, 1974. Since no motion for a new trial was filed and no order was entered allowing additional time to file a motion for a new trial prior to the final judgment, the court had no jurisdiction to consider the motion for a new trial. Consequently, it is argued that the filing of the motion for a new trial did not toll the time for giving notice to the court reporter or the time within which to file its appeal bond. Since the appeal bond was not filed until 64 days from the date of the judgment of the special court of eminent domain, the commission contends that this appeal should be docketed and dismissed.

In response appellant contends that this matter was heard during the regular term of the county court and since there was no order adjourning the special court of eminent domain or adjourning the county court until well after its motion for a new trial was filed, the motion was timely filed and tolled the running of the statute until the motion was finally ruled upon by the court. The church also contends that the commission is estopped from raising this point in this Court for the reason that it failed to raise any objection to the trial court hearing the motion for a new trial, but in fact, appeared and argued the motion on its merits, never making any contention that the motion was not timely filed.

The procedure for trying eminent domain cases was changed by the enactment of Chapter 520, General Laws of Mississippi (1971), now appearing as Section 11-27-1 et seq., Mississippi Code 1972 Annotated. Section 11-27-3 reads as follows:

A special court of eminent domain is hereby created, to consist of a judge, jury, and such other officers and personnel as hereinafter set out, and it shall have and exercise the jurisdiction and powers hereinafter enumerated. The original powers and jurisdiction shall be and is hereby fixed in the county court in each county that has elected to come under the provisions of section 9-9-1 Mississippi Code of 1972, or that may hereafter come under the provisions of said section 9-9-1, and in every other county of this state, the original powers and jurisdiction shall be and Is hereby fixed in the circuit court of such county, which said powers and jurisdiction may be exercised in full either in termtime or vacation, or both.

In Mississippi State Highway Commission v. Taylor, 293 So.2d 9 (Miss.1974), we held that when a special court of eminent domain is convened in vacation that a motion for new trial or bill of exceptions must be filed before the court adjourns unless the time is extended by an order entered before the final judgment. We also held that the entry of the judgment in the case that the court was convened to try constitutes adjournment of the court without any formal order adjourning the special court of eminent domain. We followed this holding in Mississippi State Highway Commission v. Gresham, Miss., 323 So.2d 100, decided February 24, 1975, not yet officially reported. Consequently, when a final judgment is entered in a special court of eminent domain convened in vacation, the court is adjourned and the court does not have jurisdiction to hear and determine a motion for a new trial filed after that time and the filing of such motion does not toll the time within which to perfect an appeal.

The question here is does the same rule apply where the special court of eminent domain is convened during a regular term of the circuit or county court. We hold that it does. It is still a special court and the fact that it is convened during the time set for the holding of a regular term is purely coincidental. When, as here, it has only one case to try and it is tried and the final judgment is entered, the term of the special court has ended and the court no longer has jurisdiction to hear and determine a motion for a new trial filed after the date of the judgment. Counsel for appellant points out that the language used in Taylor, supra, indicates a different rule would apply where the court was convened in termtime. While we can see how appellant might be misled by this language, whatever was said in this regard was purely dictum. The only thing actually decided in Taylor was the rule relative to a special court of eminent domain convened in vacation. However, if an eminent domain court is a special court, which it is, then when it is convened and concludes the matter or matters for which it was convened and a final judgment is entered, it automatically goes out of existence and no longer has jurisdiction to hear and determine any matters filed thereafter, unless an order has been entered on its minutes granting additional time within which to file such matters. This being the rule, it follows that the rule is the same whether the court is convened in vacation or during a regular term of the circuit court or county court.

The next question is whether the commission is estopped by its failure to point out to the trial court that the motion for a new trial was not timely filed and appearing and resisting the motion. We find no merit in this contention. This same contention was made in Brown v. Thomas, 230 Miss. 308, 92 So.2d 878 (1957), and in answer thereto we said:

There is no merit in the argument of appellant that by participating in the hearing on motion for a new trial appel-lee should not now be heard to say that the motion was not timely filed. The matter goes further than the action of the parties. The court had lost jurisdiction of the case and the parties could not confer jurisdiction on the court to hear and consider the motion for a new trial either by waiver or express consent.

(230 Miss. at 310, 92 So.2d at 879).

We follow the rule that the time for perfecting appeals to this Court is jurisdictional. This being the rule it follows that neither this Court nor the trial court can extend the time for perfecting appeals. The burden is upon the parties desiring appeal to perfect the appeal within the time allowed by statute and if it is not so perfected, it is the duty of this Court to dismiss the appeal either on its own motion or on motion of the appellee.

For the reasons stated, we are constrained to hold that the motion to dismiss the appeal should be and is sustained.

Motion to dismiss appeal sustained.

All Justices concur, except, GILLESPIE, C. J., who took no part.