author: BROOM, Justice,

text:
    BECHTEL CONSTRUCTION COMPANY and the Travelers Insurance Company v. Fay O. BARTLETT.
    No. 51306.
    Supreme Court of Mississippi.
    May 23, 1979.
    Daniel, Coker, Horton, Bell & Dukes, Walter W. Dukes, Jackson, for appellants.
    Loyacono & Field, Paul Kelly Loyacono, Vicksburg, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Hernia related workmen’s compensation benefits are at issue in this cause. Initially the administrative judge ruled that the hernia sustained by Fay 0. Bartlett (claimant) was compensable, but the Workmen’s Compensation Commission (with one dissent) reversed the administrative judge’s order. Claimant then appealed to the Circuit Court of Claiborne County, which court reversed the commission and reinstated the administrative judge’s order awarding claimant benefits. We affirm.

Interpretation of Mississippi Code Annotated § 71-3-23 (1972), upon the facts presented, is dispositive of the action. The parts of the statute applicable here are the following:

In all cases of claim for hernia, it shall be shown by a preponderance of the evidence;
(b) That there was severe pain in the region of the hernia or rupture;
(e) That the physical distress following the descent or protrusion of the hernia or rupture was such as to require the attendance of a licensed physician or surgeon within five (5) days after the injury for which compensation is claimed.' Postoperative hernias shall be considered as original hernias.

On June 12, 1975, claimant (in the scope of his employment with Bechtel) and his co-workers were carrying some heavy pipe. One of the co-workers dropped his part of the load, causing the weight to shift to claimant. Promptly a knot (hernia) popped out on his left side just above the waistline, and he fell to the ground. A few minutes after pushing the knot in, claimant went to see Bechtel’s company nurse (Hildebrand) and reported to her the facts concerning the knot. According to claimant, the nurse responded “if it happened again they would send me to the doctor.” Claimant did not miss any time from work on account of the hernia until November of 1975, when the hernia popped out again while he was employed (still by Bechtel) in the State of Washington. After the hernia popped out again in November, claimant came home to Vicksburg, Mississippi, and consulted Dr. Kellum, who referred him to Dr. Marascal-co. The latter diagnosed the hernia, and had the claimant hospitalized (he was given surgery April 30,1976) for the hernia. Several weeks later, the claimant returned to his employment fully recovered.

Some argument is made that the claimant failed to establish that his pain “was severe” under sub-section (b) of § 71-3-23, supra. According to claimant, however, when the hernia popped out, he was unable to straighten up for a while. Considering the testimony, our view is that it would be unrealistic to say that his pain was not “severe” under the statute.

The dispositive issue is: Was the physical distress following the sudden protrusion of claimant’s hernia in compliance with subsection (e) of § 71 -3-23, supra, “such as to require the attendance of a licensed physician or surgeon within five (5) days after the injury . . Argument of the employer and carrier is that the commission’s order denying compensation was supported by substantial evidence, and therefore, reversal by the circuit court was error. Claimant’s position is that he required medical treatment at the time the hernia occurred, and that accordingly he presented himself for the necessary medical treatment to the most appropriate place, the First Aid Station of Bechtel. He argues further that employer Bechtel should be estopped from pleading that claimant Bartlett failed to require treatment by a physician when it was the act of Bechtel (through its nurse) which prevented claimant from seeing a physician at that time. Claimant correctly notes that the proof is clear and sufficient that when consideration is given to the episode of June 12, 1975, and the operation of April 1976, the existence of a hernia on the earlier date is confirmed. In like manner, he says his requirement of the services of a physician on June 12, 1975, is established.

Our decisions in three previously decided cases focused upon the meaning of sub-section (e), supra. In Meador v. Dollar Store, 217 Miss. 447, 64 So.2d 574 (1953), an employee (claimant) incurred a hernia when he lifted a case of shoes in a warehouse. Mea-dor did not notify the Dollar Store of his injury until ten or eleven days afterward when he sent a verbal message of his injury by way of the store’s porter. Two days before he notified the Dollar Store, he became sick with the flu and remained so for eight days. While Meador was thus home in bed, a doctor came to his house to examine him and during his examination Meador complained of severe pain in his right side. After recovering from the flu, Meador went to the physician’s office, whereupon the hernia was discovered, approximately seventeen days after it had occurred. Upon such facts, we held that the claimant did not comply with the statutory test governing the basic compensability of hernias because, even assuming the physician’s examination constituted the “attendance” of a physician within the statute, that event did not occur within five days after the appellant’s injury as the statute requires. Our decision in Meador recognized, however, that there may be conceivable circumstances “[which] might constitute an excuse for the attendance of a physician occurring after the five-day period.”

In Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872 (1954), shipfitter Lindsey sustained a hernia on June 9, 1952, while engaged in helping to remove some heavy brackets from a bulkhead. Lindsey reported his injury to a foreman, and, after arriving home, attempted to get in touch with a doctor who unfortunately was out of town. As a result, Lindsey was not attended by a licensed physician or surgeon until June 16 after the doctor returned. We held that the statute does riot require that the claimant prove that he was actually attended by a physician or surgeon within five days after the injury. Our decision was to the effect the claimant may establish his claim by proving that the physical stress following the descent of the hernia was such as to require (not that he actually received) the attendance of a physician or surgeon within five days.

More recently, Biloxi Motor Co. v. Barry, 192 So.2d 403 (Miss.1966), another hernia case, was before us. Barry, the claimant, was injured June 10, 1964, and did not see a doctor until fifty-five days later: August 4, 1964. With regard to Lindsey, supra, Robertson, J., writing for the Court, stated:

The Lindsey case is clearly distinguishable from the instant case: The evidence is undisputed that the claimant in the instant case not only was not confined to his bed after his injury on June 10, 1964, but that he continued to work for 57 days after his injury, that is, until noon on August 6, 1964. By his own testimony, he did not consider his injury sufficiently serious to consult a doctor until 55 days after the injury, on August 4, 1964. (192 So.2d at 407).

Obviously, Barry and the present case have factual similarities, but there are significant differences. Bartlett, the present claimant, immediately after his injury, went to see his employer’s staff nurse, who obviously possessed medical knowledge superior to the layman claimant. It was she who advised him that if it happened again she would send him to a doctor. In Barry, the claimant merely informed his employer on several occasions of his complaint, but saw no medical doctor, nurse, or the like. Here, the claimant reported the incident to Bechtel’s medical representative whose response can fairly be said to have steered claimant away from literally consulting a physician.

Other jurisdictions in the United States have statutes similar to our sub-section (e), supra. In Dorval v. United Piece Dye Works, 15 N.J.Misc. 21, 189 A. 62 (1936), the New Jersey Court had under consideration a statutory requirement very similar to our sub-section (e):

“[T]hat the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.” Ibid.

In Dorval, the claimant, while lifting a barrel, experienced sudden pain in the right groin and walked some fifteen or twenty feet to a toilet. He noticed a lump in his right groin, which he reported to his foreman. For about two hours he continued to engage in light work until his regular quitting time. He walked to his nearby home, and, upon reporting to work the next day, visited the mill clinic. The nurse in charge, after taking a history without making an examination, told Dorval to take it easy and return the following day when the doctor would be there. In upholding Dorval’s claim, the New Jersey Court held:

The fact that the employee actually reported to the clinic for treatment, in the light of surrounding circumstances and after consideration of all the testimony, is to me persuasive evidence that his physical distress was such that the attendance of a licensed physician was required within the statutory period. He, in fact, sought such assistance. The statute does not use the word “obtained,” it pointedly employs “required,” which implies necessity, and doubtless for the very good reason that a situation might arise where the necessity for a physician’s services might be extreme and yet the circumstances conceivably preclude his actual attendance within the required time.
The petitioner below undoubtedly was not aware of the statutory requirements, he acted honestly, was unintentionally, of course, lulled into a sense of security by the nurse in charge of the clinic, and, in these circumstances, it would certainly be contrary to the purpose and intent of this beneficial legislation to penalize the employee. (189 A. at 63).

It is our opinion that the instant case falls under the rule in Lindsey rather than that of Barry. As happened in Dor-val, the claimant here sought medical help within five days by reporting to his employer’s staff nurse who in the words of the New Jersey Court “lulled [him] into a sense of security . . . The black letter of the law does not require that for a hernia to be compensable the claimant must be incapacitated from working at some time during the specified period, but only that he requires the attendance of a physician. Granted, claimant Bartlett (not shown to be a malingerer in any sense) did not find it necessary to stay off work or immediately go to bed because of his condition, but he did seek medical help from his employer’s staff nurse who encouraged him not to go to a doctor. Arguably, it is very likely that Bartlett would have gone to see a physician except for the suggestion of his employer’s nurse on the scene. We adopt the reasoning of the New Jersey Court in Dorval, supra, which is squarely on point. To deny Bartlett (the present claimant) compensation upon the record as made would be to penalize him by invoking a hypertechnical construction of sub-section (e).

The substantial evidence rule, well established in this jurisdiction, does not require a circuit judge to act as a rubber stamp every time a workmen’s compensation case is appealed to circuit court. Of course, circuit judges and this Court must (as we do) give great weight to the fact findings of the Workmen’s Compensation Commission. Nevertheless, Miss.Code Ann. § 71-3-51 (1972), entitled “Court review of compensation award” in its second paragraph provides: “The Circuit Court shall review all questions of law and fact” (emphasis added). In using the word “shall”, the lawmakers specifically and mandatorily require circuit judges to act in a meaningful but responsible fashion in acting upon appeals of this sort. Here, we think that the action of the circuit court in reversing the majority of the commission was in accord with the spirit and letter of the quoted portion of § 71 -3 • 51, supra. Accordingly, we must affirm his action, which reinstated the award according to the order of the administrative judge.

AFFIRMED.

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


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,-

license: Public Domain

text:
    James KIRKLAND v. STATE of Mississippi.
    No. 51163.
    Supreme Court of Mississippi.
    May 23, 1979.
    Stanfield, Holderfield, Brown & Hall, Percy Stanfield, Jr., John R. Poole, Jackson, for appellant.
    A. P. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and LEE, JJ.-
   ROBERTSON, Presiding Justice,-

for the Court:

Appellant, James Kirkland, was indicted in the Circuit Court of Simpson County, Mississippi, for the crime of rape of his three-year-old daughter, Erin, on December 10, 1976. A Motion for Change of Venue was sustained, and the case was transferred to the Circuit Court of Smith County. After a full trial, a guilty verdict was returned by the jury and Kirkland was sentenced to life imprisonment in the Mississippi State Penitentiary.

Appellant has assigned as error:

1. The trial court erred in overruling appellant’s motion for a directed verdict, and in refusing appellant’s requested instruction for a finding of “Not Guilty”, because

A. The State failed to prove the corpus delicti;

B. The evidence was insufficient to sustain a conviction.

2. The trial court erred in allowing hearsay testimony.

3. The trial court refused appellant compulsory process to secure the attendance of a witness.

Kirkland picked up his minor daughter from her mother, from whom he was divorced. He took her with him to his place of work and worked until 2:30 p. m., when he left with his daughter and proceeded to get very drunk.

Homer Pierce testified that he saw appellant lying on the ground outside of Booth’s Store and drove him and his daughter home about 3:30 p. m. Pierce stated that when Kirkland tried to get out of the pickup truck with the little girl in his arms, he fell on top of her and she was crying when Pierce picked her up and put her on the porch. Kirkland crawled up the steps to the porch.

About 6:30 p. m. Kirkland phoned his sister, Geraldine Creason, in Braxton, and asked her to come to his house because Erin was hurt. Mrs. Creason testified that she could tell that her brother had been drinking, that she didn’t believe him, and did not go. At 9:30 that night, he called again, asked her if she was coming and again told her that the baby was hurt. Not believing him, she didn’t go.

About 8 o’clock the next morning, Margaret Garner, another sister, called Mrs. Crea-son and told her to meet her at their mother’s home where Kirkland lived. When they arrived they found that the baby had been hurt and they, together with Kirkland, took the child to the Voice of Calvary Clinic in Mendenhall. Dr. Dennis Adams hastily examined Erin and, finding that she had bruises around her left eye and on her chest, and a laceration and tear between her vagina and rectum, and suspecting possible sexual molestation, he called the University Hospital in Jackson and sent Erin there for a more thorough examination.

Dr. Carole Mangrem, a pediatric’s resident at the University Medical Center, testified that she examined Erin around noon, Saturday, December 11th, that she found some bruising on the left side of her face, a tear in the vaginal area extending toward the rectum, and “a lot of subcutaneous or under the skin bleeding and bruising in that area.” Because the little girl was sore, she didn’t make an internal examination.

Dr. Mangrem further testified:
Q And from your examination could you make any determination as to what other things could have caused this injury?
A Well, you know, there are a couple of possibilities that would come to mind. You know, first, that there was attempted sexual molestation, and the other possibility would be a straddle injury.
Q All right. Now when you talked to the defendant and when you talked to the other people there, did they make any indication that she had received a straddle injury anywhere?
A No, sir. We asked specifically if anyone had seen her fall at any time and no one knew that she had.
Q All right. And the nature of this particular straddle injury that you’re indicating — if it could be that — would that be that just a fall on the ground could cause that?
A Not likely. It would usually be on something such as a board or rail.

Dr. Mangrem stated that the little girl was friendly to her father and to others around her, that she made no physical complaints and that when asked “who had hurt her” she said “Mike”.

On cross-examination, Dr. Mangrem testified:

Q And you have seen straddle-stride or straddle:split injuries in young children three and four years old, have you not?
A Yes, sir.
Q And they are very much the same as this laceration that you saw in this child, are they not?
A Yes, sir.
Q That’s why you’re telling this Jury and this Court that in your opinion you cannot determine whether there was a straddle-stride injury or an attempted rape, can you?
A No, sir.
Q And it’s just as reasonably probable that this child suffered a straddle-stride injury as it is reasonably probable that the child was a victim of an attempted rape, is that not correct, Doctor?
A From my examination.

Erin’s mother, Peggy (Kirkland) Tur-nage, arrived Saturday afternoon and was with her Saturday, Sunday and Monday. Over objection, she testified that late Saturday afternoon, when questioning Erin about what happened to her, Erin said:

A She just told me — well, she told me at first that James had hurt her. She said, “Daddy” and then she said, “No, it’s not my Daddy. James did it. James hurt me.”
Q All right. And do you know what James she was talking about?
A I just assumed when she said “Daddy” it was—

Only the witness was there when the little girl made that statement.

Over objection, Deputy Sheriff Norris Matthews of Simpson County testified that on Monday afternoon, December 13th, (after he had seen Erin on Sunday and she had said nothing), when asked “Who made your bottom sore?”, Erin said, “Daddy.” Only her mother was present. Sheriff Lloyd Jones of Simpson County testified, over objection, that when he saw Erin on Monday afternoon in the presence of her mother:

A We asked her who did this to her and she said her daddy did.
BY MR. CRAWFORD:
Q All right," sir. And what did she have reference to? Did what?
A To her face and her bottom.

Erin slept on her father’s bed Friday night, December 10th, and spots of her blood were found on the bed sheet as well as blood on her panties, which were also found on the bed. No blood of the defendant was found on the bed sheet, nor was any of Erin’s blood found on defendant’s clothes.

The Latin words “corpus delicti” mean literally, “the body of the crime”. In order to prove the corpus delicti, there are tw.o elements which must be proved beyond a reasonable doubt: One, the existence of a certain act or result forming the basis of the criminal charge; and, two, the existence of criminal agency as the cause of this act or result. Spears v. State, 92 Miss. 613, 46 So. 166 (1908); Pitts v. State, 43 Miss. 472 (1871).

29 Am.Jur.2d, Evidence, § 149, at page 182 (1967), has this to say:

“It is a well-settled principle of criminal law that a conviction for crime cannot be had unless the corpus delicti — that is, the fact that a crime has actually been perpetrated (the fact of injury or harm and the existence of some person criminally responsible therefor) — -is first established by the prosecution. In other words, the prosecution must establish the actual commission, by someone, of the particular offense charged. The accused is not required in any case to answer a charge against him in the absence of evidence upon the part of the prosecution sufficient to establish the corpus delicti; and if an accused is found guilty despite the failure of the prosecution to establish the corpus delicti, the verdict may be set aside and a new trial ordered.”

In Buford v. State, 219 Miss. 683, 69 So.2d 826 (1954), it is stated that the reason the state is required to prove the corpus delicti is to satisfy the mind that there is a real and not an imaginary crime for which the accused stands charged.

Dr. Mangrem, the only pediatric’s expert to examine Erin, testified that her injuries could have been caused either by attempted sexual molestation or a straddle-stride accident. She testified that she couldn’t determine which it was, and that one was as “reasonably probable” as the other “from her examination.”

The strictly hearsay testimony of Erin’s mother, Peggy Turnage, Sheriff Jones and Deputy Sheriff Matthews that three-year-old Erin finally” said “Daddy did it” should not have been admitted into evidence. It was not stated in the defendant’s presence.

In reversing a conviction of rape, this Court stated in Jeffries v. State, 89 Miss. 643, 42 So. 801 (1907):

“It was reversible error to admit what the assaulted girl said, the day after the assault, as to who committed it, in the absence of the accused.” 89 Miss. at 647, 42 So. at 802. (Emphasis added).

This kind of pure hearsay testimony was also condemned in Simmons v. State, 105 Miss. 48, 61 So. 826 (1913); and Frost v. State, 100 Miss. 796, 57 So. 221 (1912).

In Redding v. State, 211 Miss. 855, 53 So.2d 7 (1951), this Court again stated this rule of evidence:

“[N]o statements made by the prosecutrix are admissible except her complaint that she had been ravished. The details of the transaction, the name of the party accused, the place where it is said to have occurred, the time of the alleged offense cannot be proven by a repetition of the words of the prosecutrix.” 211 Miss. at 863, 53 So.2d at 11. (Emphasis added).

Because it is just as reasonably probable, according to Dr. Mangrem, that Erin’s injuries could have been caused by a straddle-stride accident as by sexual molestation, the corpus delicti has not been proved beyond a reasonable doubt, and the conviction and sentence must be reversed. Also, because the State put on all of its evidence and this circumstantial evidence is not sufficient to convict beyond a reasonable doubt and to a moral certainty, this Court is of the opinion that not only should the conviction and sentence be reversed but also that the appellant should be discharged.

REVERSED AND APPELLANT DISCHARGED.

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


author: PATTERSON, Chief Justice,

text:
    Hal T. HART, Claimant-Appellant, v. JACKSON CARTAGE COMPANY and Travelers Insurance Company, Defendants-Appellees.
    No. 51087.
    Supreme Court of Mississippi.
    May 23, 1979.
    Dixon L. Pyles, Pyles & Tucker, Jackson, for claimant-appellant.
    Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for defendants-appellees.

      Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is a workmen’s compensation case which is affirmed under the authority of Georgia-Pacific Corporation v. Charles L. McLaurin, 370 So.2d 1359 (1979).

However, the reversal on appeal to the circuit court was on the basis that the testimony of a medical doctor was erroneously permitted into evidence because it was “hearsay.” Had the same testimony been given by the doctor in person, it would have been competent, leaving the probability the case would have been affirmed by the circuit judge on appeal, thereby entitling the claimant to compensation. In our opinion the claimant is entitled to his day in court to develop his claim through competent testimony.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION FOR REINSTATEMENT OF CLAIM AND HEARING.

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


text:
    In the Interest of Jerry RAY, a minor.
    No. 51233.
    Supreme Court of Mississippi.
    May 23, 1979.
    Garner & Garner, H. R. Garner, Hernan-do, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J. and BROOM and BOWLING, JJ.
   Appeal from Youth Court, DeSoto County; D. Pace Branan, Youth Court Referee and Leon E. Hannaford, Sr., Chancellor.

REVERSED AND APPELLANT DISCHARGED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER and LEE, JJ., concur.

COFER, J., takes no part.


text:
    In the Interest of Jill WINSTEAD, a child.
    No. 51208.
    Supreme Court of Mississippi.
    May 23, 1979.
    Laurel G. Weir, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Youth Court, Winston County; Edward C. Prisock, Chancellor.

AFFIRMED.


text:
    Charles Mike ROBERTS v. STATE of Mississippi.
    No. 51204.
    Supreme Court of Mississippi.
    May 23, 1979.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Jr., Judge.

AFFIRMED.


text:
    Joseph C. WHITE v. INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY.
    No. 51218.
    Supreme Court of Mississippi.
    May 23, 1979.
    John G. Corlew, Robert P. Krebs, Pasca-goula, for appellant.
    Stanford E. Morse, Jr., George M. Morse, White & Morse, Gulfport, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.


text:
    Augustus “Chip” DANIELS v. STATE of Mississippi.
    No. 51138.
    Supreme Court of Mississippi.
    May 23, 1979.
    Thomas A. Coleman, Ackerman, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Jerry D. COLEMAN v. STATE of Mississippi.
    No. 51157.
    Supreme Court of Mississippi.
    May 23, 1979.
    William B. Sullivan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Eugene RHODES v. STATE of Mississippi.
    No. 51107.
    Supreme Court of Mississippi.
    May 23, 1979.
    A. Vincent Blackwell, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

AFFIRMED.


text:
    Beatrice GILBERT v. BORDEN, INC., et al.
    No. 51221.
    Supreme Court of Mississippi.
    May 23, 1979.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, W. Scott Welch, III, Roger C. Landrum, Jackson, Jerry L. Yeager, Raleigh, for ap-pellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

AFFIRMED.


author: LEE, Justice,

text:
    Minnie T. MOODY v. STATE of Mississippi.
    No. 51201.
    Supreme Court of Mississippi.
    May 30, 1979.
    William Thames Bailey, Jr., Lucedale, for appellant.

      A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Minnie T. Moody was indicted, tried and convicted in the Circuit Court of George County, Honorable Darwin M. Maples, presiding, for the crime of arson and was sentenced to five (5) years in the Mississippi State Department of Corrections. We reverse the judgment of the lower court and discharge the appellant on the ground that the verdict was against the overwhelming weight of the evidence.

On December 14, 1977, at approximately 11:45 a. m. the Rocky Creek Volunteer Fire Department received a fire call to the home of Ford Moody and his wife, Minnie T. Moody, the appellant. When the firemen arrived, the house was in flames, mainly in the center, and the fire had burst through the roof. After the fire was extinguished, examination indicated that most of the fire was around the hot water heater in the bathroom area which was its apparent origin.

At 6:10 a. m. on December 15, the next day, the fire department received another call to the same property and, upon arriving at the house, the firemen found a mattress smoldering in the front bedroom. The mattress was pulled from the house, the fire was put out and the firemen left about 7:15 a. m., at which time there was no smoke or fire remaining in the house, according to fireman Smith. A third call to the Moody home was received at 9:15 on the same morning and when the firemen arrived, the house had burned practically to the ground.

At the time of the first fire, Ford Moody was in Jackson. He was notified of the fire around 2:00 p. m. on December 14, and he left for Rocky Creek and arrived there about 5:30 or 6:00 p. m. He did not go to the house that night.

It was undisputed that on December 13, around 8:00 a. m. Minnie Moody went from Lucedale to Alabama to visit a friend. She was accompanied by Ruby Moody, Joyce Baxter, Debbie Ainsworth, David Wayne Shoemaker, Ernest Lavern Moody, Johnny Moody and Herbert Ray Christian. They spent the night in Alabama and about 6:00 p. m. the next day, learned that the house had burned and they returned to Lucedale (near the home). Appellant arrived there around 9:00 or 9:30 p. m. that evening, spent the night with Ford Moody; the next morning they drove to the burned home and viewed same around 7:00 to 7:30 a. m., went to Lucedale and then they returned to the house about 11:00 a. m. It had burned to the ground.

The house was a seven-year-old frame building and was financed for ten (10) or fifteen (15) years by Mid-State Homes of Tampa, Florida, with mortgage payments of sixty-seven dollars and twenty cents ($67.20) per month. It was insured against fire loss. After the fire, Mr. Moody continued to pay the notes on the mortgage and was doing so at the date of trial. He was told by the insurance adjuster following the first fire not to bother anything on the premises. He complied with the directive, and, as a result, all personal property of him and appellant was destroyed.

The only evidence which connects appellant with the fire was the testimony of two co-indictees, Larry James Malone (age not shown) and David Wayne Shoemaker (age 19 years). Malone was a great nephew of appellant. He testified that he set the house on fire December 14 by setting a towel with a candle at the hot water heater and that he did so upon the promise of appellant to pay him one hundred dollars ($100.00). He stated that about a week and a half before the fire appellant had made the offer to him.

David Wayne Shoemaker went to Alabama with appellant and her children on December 14, and he was there at the time of the first fire. He testified that he set a fire in the back bedroom on December 15 around 6:00 or 7:00 a. m. upon the promise of Minnie Moody to pay him one hundred dollars ($100.00); that he started the fire by lighting tar paper which was hanging on the wall; that appellant and her husband were waiting for him in the car near the house and that Ernest Moody, appellant’s son, was with him at the time he set the fire. No money was ever paid Malone or Shoemaker by appellant. She, her husband and Ernest Moody all testified that on the morning appellant and Moody went to the house (December 15), Shoemaker accompanied them but that he and Ernest Moody never left the automobile. Appellant denied any knowledge of, or involvement in, the crime.

Larry James Malone was indicted for arson and indicated that he would enter a plea of guilty. Shoemaker had been indicted for arson and stated that he would plead guilty and that he also had entered a plea of guilty to burglary. He had not been sentenced at the time of this trial. The following testimony of Malone shows that he may have been influenced by officers who interrogated him:

“Q. You don’t really know where you are in this thing do you—
A. That’s what I’ve been trying to tell everybody, but nobody don’t seem to listen.
Q. You are just pushed from pillow [sic] to post, aren’t you?
A. About that a way, yes, sir.
Q. When somebody tells you which way to go, you go?
A. If it is a law enforcement officer, or counsel, or somebody like that, I try to listen. I figure they know what is best.
Q. What they tell you to do, this is what you do?
A. Yes sir.”

Malone’s testimony consumes approximately two (2) pages of the record without any cross-examination. There is no detail as to when, where, or the occasion, the alleged offer of appellant was made to get him to burn the house or whether anyone else was present.

Shoemaker stated that appellant made her offer to him in the car, that he got out, went to the house and set fire to some tar paper in the back bedroom, that Ernest Moody was with him and that the other Moodys remained in the car. Fireman Smith testified that this fire started on a mattress, that the mattress was pulled out of the house and was wetted down. As stated, Minnie Moody, Ford Moody, and Ernest Moody testified that Shoemaker remained in the car.

The principle is well settled that an accused may be convicted on the uncorroborated testimony of an accomplice, but that such testimony must be viewed with great caution and suspicion. In the arson case of Mister v. State, 190 So.2d 869 (Miss.1966), this Court quoted Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953) which stated:

“ ‘This Court has adopted a rule that a defendant can be convicted on the uncorroborated testimony of an accomplice, but it has carefully restricted the scope of that doctrine by holding that such uncorroborated testimony should be viewed with great caution and suspicion, and that it must be reasonable and not improbable or self-contradictory, or substantially impeached.’ ” 190 So.2d at 870.

Shoemaker had either entered a plea of guilty or indicated his guilt to burglary and arson during the same term of court at which appellant was convicted. His testimony was contradicted, was not reasonable and was impeached.

The testimony of Malone, absent detailed facts, indicates that he had an interest in the case from the standpoint of his own guilty plea, and that he was influenced by practically anything an officer mentioned. Appellant and her husband lost their home and all contents with no apparent gain to be obtained from the fire insofar as the record shows. Although no motive is required for conviction of an accused, the absence of motive in the present case reflects upon the credibility of the two co-indictees.

We are of the opinion that the verdict of the jury is contrary to the overwhelming weight of the evidence and that the defendant should be discharged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND APPELLANT DISCHARGED.

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


text:
    James Lamar WALLS v. STATE of Mississippi.
    No. 51243.
    Supreme Court of Mississippi.
    May 30, 1979.
    Farese, Farese & Farese, Anthony T. Farese, Ashland, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Murder conviction (and life imprisonment sentence) resulted from James Lamar Walls’ trial in the Circuit Court of Lee County, Mississippi. Appealing here, Walls argues that one of the jurors should have been replaced because of information revealed after both the prosecution and defense accepted her. We reverse.

Walls was tried in December 1977 for murdering Glen Ford on October 16, 1976. That night, Walls and his female companion, Shirley Ann Pennington, were at Bill’s Lounge in Tupelo, where the deceased, Glen Ford, along with his wife and other friends, was also present. Both men danced with their ladies. After a while, Walls and Pennington left the lounge and went to Walls’ truck in the parking lot. They were still there when the deceased, Glen Ford, and his party emerged from the lounge, got in Ford’s automobile and drove across the parking lot to a place directly behind Walls’ truck. Janice Ford (who identified herself as the deceased’s wife), testified that she remarked to Ford as they started to leave the parking lot: “It looks like Lamar is stuck.” Her testimony was that her husband, thinking Walls was stuck, drove over to Walls’ truck and offered to help him, whereupon Walls displayed a gun. When Ford asked him what he was doing with the gun, Walls replied: “It’s to kill you, if I have to.” Ford then turned around and was walking away from Walls when Walls fatally shot him in the back for no reason whatever. It is uncontested that Ford was unarmed.

The state’s case summarized above was accepted by the jury even though Walls testified that he killed Ford in self-defense after Ford had beaten him up on previous occasions. According to Walls, Ford threatened to kill him while they were inside the lounge and later out on the parking lot where he again cursed Walls and threatened to kill him..

Several of the arguments advanced by Walls deal with the sufficiency of the evidence. Suffice it to say that the jury, upon conflicting evidence, accepted the state’s case, and we reject Walls’ assertion that the evidence failed to support the verdict of guilty.

Walls cogently argues that the trial court erred in allowing one Mrs. Christian to serve as a juror after it was disclosed that her son had been the recent victim of a homicide in Tennessee, his killer soon to be tried. After twelve jurors (including Mrs. Christian, and two alternates) had been selected to try the case, the following events transpired concerning Mrs. Christian:

(At this time there was conference at the bench between all counsel and the Judge. Judge Biggers retired to Chambers, along with the Official Reporter and Deputy Blake and a female member of the jury in this cause, and the following was had).
BY JUDGE BIGGERS: I understand that your son was killed in Memphis sometime ago.
BY THE JUROR: Back in June, Yes, sir.
BY JUDGE BIGGERS: The trial is coming up next week?
BY THE JUROR: No, sir, sometime in January.
BY JUDGE BIGGERS: All right. Well, the only thing I know is, you have answered the question whether or not you can be objective about this case, is there any doubt in your mind as to whether or not that is true?
BY THE JUROR: None whatsoever or I would have said so. I feel I can give my honest opinion. It won’t influence me that way. If you had rather I wouldn’t serve, I will be glad not to.
BY JUDGE BIGGERS: I take you at your word, believe me.
(At this time, counsel for both sides were called into Chambers, and the following was had, with the Bailiff and the juror, the Court reporter, the Judge and counsel present).

Then in the presence of counsel for both sides, Mrs. Christian, the female juror, again indicated that she could serve as a juror and would not be influenced by her feelings about her son having been killed by another, with the trial to be some few weeks later. Counsel for the defendant then moved the court:

[T]o dismiss Mrs. Christian from the jury for the reason that regardless of what she has said, we think it would be humanly impossible to separate her emotional involvement in the trial of a person accused of murdering her son from this case which is a murder ease. And the Defendant, we think, is entitled to a jury of twelve people who are not involved by personal emotional involvement in things of this matter, so we would request the Court, and so move that this lady, since the trial has not gotten underway, be excused and, since two alternates were chosen, that the first alternate be put in her place. Just for the record, I would like to state that this lady didn’t answer any questioning on Voir Dire indicating that she was involved in this trial of someone accused of murdering her son, and neither one of the attorneys was informed of the fact until after the jury was selected and all challenges had been made, and we understand that the Court was aware of this fact prior to the jury selection, and for those reasons we ask the Court to excuse her.

We have previously held that whether a prospective juror is fair and impartial and qualified to sit as a member of a trial jury is a judicial question. No general rule can be. stated which would control every conceivable situation with respect to a juror’s qualifications. Each case must be decided on its own merits in light of the facts before the court. Odom v. State, 355 So.2d 1381 (Miss.1978). Here it is admitted that the trial judge learned on a prior day of the term that the juror, Mrs. Christian, had a son who was a recent homicide victim in Tennessee, and that the trial on account of the homicide would be commenced within a few weeks. Such facts (known to the judge) were unknown to the defense until after twelve jurors and two alternates were selected and empanelled. It is true that counsel could have elicited these peculiar facts by inquiring during his voir dire if a juror or juror’s child had ever been involved in a homicide but we do not think failure to ask such a question upon this record operated so as to waive the defendant’s right to have the juror in question excused. Indeed, it is a rarity that a juror will have a child or other relative lose his life in a homicide, with a trial for the homicide soon to follow the present trial.

In the instant case, defense counsel, we think, should have been granted his request that Mrs. Christian (who had volunteered to step down) be excused and replaced by some other juror. In Dase v. State, 356 So.2d 1179 (Miss.1978), a prospective juror on voir dire examination was asked a question which called upon the juror to reveal the fact that the juror’s son had been fatally stabbed a few weeks prior to Dase’s trial. The juror, however, failed to respond with any revelation about the stabbing, and, in ordering reversal, Justice Walker, writing for the Court, stated:

We find it impossible to believe that the juror could have forgotten so shocking an event as her son’s violent death in a month’s time. (356 So.2d at 1182).

In commendable honesty, candor, and forthright frankness, the trial judge in the instant case made the facts of the homicide regarding Mrs. Christian’s son a matter of record, and fully advised all of the attorneys about the unique situation.

One of the purposes of having alternate jurors is to be able to fill the gap created by some contingency such as occurred here, where an alternate could have replaced Mrs. Christian without any delay of the trial, and without prejudice to either side. We conclude that a conviction cannot be allowed to stand where, as in the present case, the defense was compelled to proceed with the case, confronted by a juror whose son had recently been the victim of a homicide for which a trial was soon to transpire. Although we are reluctant to set aside the jury verdict, fairness and justice require reversal and a new trial.

Other assignments of error, relating mainly to procedural and post-trial matters, we find to be without merit.

REVERSED AND REMANDED.

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


text:
    W. J. TIERNEY v. Archie G. COURREGE, Jr., et ux.
    No. 51296.
    Supreme Court of Mississippi.
    May 30, 1979.
    Williamson & Williamson, Lee Williamson, Bay St. Louis, for appellant.
    John C. Chevis, Jr., George H. Lipscomb, Jr., Bay St. Louis, for appellee.
    Before SUGG, BROOM and COFER, JJ.
   Appeal from Chancery Court, Hancock County; William G. Hewes, Chancellor.

AFFIRMED.


text:
    Weber W. PHARIS and Shirley L. Pharis v. William B. COMPTON.
    No. 51226.
    Supreme Court of Mississippi.
    May 30, 1979.
    Leslie C. Gates, Meridian, for appellants.
    Deen, Cameron, Prichard & Young, R. B. Deen, Jr., Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

AFFIRMED.

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


text:
    Dwight MONROE v. STATE of Mississippi.
    No. 51081.
    Supreme Court of Mississippi.
    May 30, 1979.
    . Hays, Williams & Jackson, Curtis L. Hays, Moss Point, Solomon C. Osborne, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

AFFIRMED.

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

BOWLING, J., took no part.


text:
    John PARKER and Leonard Parker v. Alease CALVIN et al.
    No. 51278.
    Supreme Court of Mississippi.
    May 30, 1979.
    Morris & Coats, Thomas Morris, Cleveland, for appellants.
    Cox & Moore, Dana C. Moore, Jr., Cleveland, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

AFFIRMED.


text:
    Charlene Stratton DUNN v. BANK OF MISSISSIPPI.
    No. 51284.
    Supreme Court of Mississippi.
    May 30, 1979.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Jeremy J. Eskridge, Tupelo, for appellant.
   Appeal from Chancery Court, Lee County; Fred P. Wright, Chancellor.

Riley & Weir, Frank A. Riley, Tupelo, for appellee.

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

AFFIRMED.


text:
    Ralph Barletta PAZ v. BOARD OF POLYGRAPH EXAMINERS of the State of Mississippi.
    No. 51137.
    Supreme Court of Mississippi.
    May 30, 1979.
    Charles E. Morris, Jr., Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.


text:
    Richard Eugene MALICOAT v. Charla Jean MALICOAT.
    No. 51242.
    Supreme Court of Mississippi.
    May 30, 1979.
    Patricia C. Champagne, Gulfport, for appellant.
    Jimmy D. McGuire, Gulfport, for appel-lee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

AFFIRMED.


author: MADDOX, Justice.

text:
    Fred MORGAN, Tyre Pugh, C. E. Gunnin, Jesse Napper, James White, Erby Pezent, Lloyd Ireland, George Owen, Donald Bingham, Philip A. Joullian v. Robert M. HOPE, Director, State Docks, T. A. Steeley, Personnel Manager, State Docks, Jerry Tew, Operations Manager, State Docks.
    78-69.
    Supreme Court of Alabama.
    April 27, 1979.
    Rehearing Denied May 25, 1979.
    C. Tom Payne, Montgomery, for appellants.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellees.
   MADDOX, Justice.

Appellants are guards at the Alabama Department of State Docks. They filed suit in which they asked the court to determine that they were “law enforcement officers” within the meaning of Code 1975, § 36-21-3 (Act No. 206, Third Special Session 1975) and, therefore, entitled to the lump sum payment, or “longevity pay” authorized by that section.

The trial court granted defendants’ motion to dismiss, holding that “the State Docks guards are not included under Act 206.” Are the docks guards “law enforcement officers” within the meaning of the longevity pay statute? We hold that they are not and affirm the judgment of the trial court.

Code 1975, § 36 21 3, provides, in part: “(a) Each law enforcement officer and all police communications officers employed by the state of Alabama, including law enforcement officers. of the department of industrial relations and the department of revenue, and including state fire marshals, shall be entitled to and receive in a lump sum the first pay period of December each year [different sums depending on total years of service]. . . ”

The term “law enforcement officer” as used in this chapter is defined in Code 1975, § 36-21-6 as “a full-time state employee who has the power of a peace officer and who is sworn to uphold the laws and Constitution of the state of Alabama and has the power of arrest and who complies with the Minimum Standards and Training Act.”

It is agreed that the docks guards are “full time state employees.” Whether they are “sworn to uphold the laws and Constitution of the state of Alabama” or whether they have complied “with the Minimum Standards and Training Act” is not shown by the record. The determinative question, however, is whether the docks guards possess “the power of arrest.” Construing legislative intent in passing the “longevity pay” statute, we conclude that the State Docks guards were not included as “law enforcement officers” because they do not possess the “power of arrest.”

State Docks guards may possess authority to arrest in certain situations. Private persons are sometimes authorized to make arrests. Code 1975, § 15-10-7. We do not hold that State Docks guards possess no authority to arrest, only that they are not “law enforcement officers” within the meaning of the longevity pay act. In short, we find that the legislature did not intend to include them.

We affirm the judgment entered by the trial court.

AFFIRMED.

JONES and SHORES, JJ., concur.

TORBERT, C. J., and BEATTY, J., concur in result.


author: SHORES, Justice.

text:
    FIRST ALABAMA BANCSHARES, INC. v. Hayse McGAHEY, et al. Hayse McGAHEY, et al. v. FIRST ALABAMA BANCSHARES, Inc.
    78-70, 78-70X.
    Supreme Court of Alabama.
    May 25, 1979.
    Lawrence B. Clark and Reid B. Barnes, Birmingham, for appellant and cross-appel-lee, First Ala. Bancshares, Inc.
    Ralph Smith, Jr., Guntersville and T. J. Carnes, Albertville, for appellees and cross-appellants.
   SHORES, Justice.

After submission of this case, the court received the appellant’s “Motion To Dismiss Cross-Appeal” with a “Conditional Motion To Dismiss Appeal” if we held that the cross-appeal was moot. We have concluded that the cross-appeal is moot.

The appellees and cross-appellants have not filed any objection to the appellant’s motion for dismissal of the appeals. Therefore, we think it is appropriate to dismiss the appeals.

Appeals dismissed.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., concur.


text:
    Tommie HULSEY v. PHILADELPHIA AND NATIONAL TRADE, INC., and Universal Vendors, Inc.
    78-106.
    Supreme Court of Alabama.
    May 25, 1979.
    Cada M. Carter for Byrd, Carter & Smith, Dothan, for appellant.
    Wm. G. Hause and Robert F. Northcutt, Dothan, for appellees.
   MADDOX, Justice.

Plaintiff sued two out-of-state corporations, alleging breach of contract and fraud and claiming over $10,000. One defendant (Philadelphia) was in default, and the other (Universal) was dismissed.

The record on appeal contains no default judgment against Philadelphia, but only an “entry of default.” The record reflects that the court, on October 10,1978, set a hearing for October 18, 1978, on the question of a default judgment as to the defendant Philadelphia.

After Universal was dismissed on August 8,1978, plaintiff filed a “motion to reconsider” that dismissal, which was denied on September 6, 1978.

On October 10, 1978, the trial court entered this order: “Motion to reconsider denied. Made final order by Court for purpose of appeal.” While this may have been intended to have the effect of a Rule 54(b) order, there was still pending a hearing on the default judgment against Philadelphia. The order entered does not expressly determine that there was no just reason for delay and does not expressly direct the entry of a judgment; therefore, it is not a final order under Rule 54(b).

We find that the order, therefore, does not contain a proper certification, and that the appeal must be dismissed because the order is not final. Even though appellee has not raised this issue, the order appealed from is not a final order; therefore, the appeal is due to be dismissed.

We dismiss the appeal. The trial judge may, if he is so inclined, vacate his original order from which the abortive appeal was taken, re-enter the order, and properly certify it. Then any further appeal may be timely filed from this new order. If an appeal is taken from the new order, that appeal may be heard upon the present record, with proper supplementation, and upon the present briefs, if the parties are so minded. Moore’s Federal Practice, Vol. 6, ¶ 54.41[4],

Appeal dismissed.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    Lawrence Grady WINSTEAD, Jr., Alias v. STATE of Alabama.
    78-111.
    Supreme Court of Alabama.
    May 25, 1979.

      Huel M. Love and Jim B. Embry, Jr., of Love, Love & Lawrence, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State of Ala.
   SHORES, Justice.

This is an appeal by a juvenile from an order transferring his case from the Juvenile Court of St. Clair County to the Circuit Court for criminal prosecution as an adult. A record of the proceedings having been made in the Juvenile Court, the appeal is properly before us under Rule 28(A)(1), ARJP. Walker v. State, 365 So.2d 668 (Ala.1978).

On or about June 24, 1978, 12:10 a. m., the body of seven-year-old Terrie Elizabeth Beasley was found in a wooded area of Pell City, in the southern division of St. Clair County, Alabama. The body was covered with pine straw, with spots of blood all around the immediate area. A five or six-inch pole was lying across her neck. A gash about an inch long was located in the forehead region of the child’s face. Her neck was bruised and appeared to have fingerprints on the neck. Coroner Jimmy Davis determined that the child was dead.

Clemons Roe, Sheriff of St. Clair County, arrived at the Police Department, City Hall of Pell City, around 1:00 a. m. on the morning of June 24, 1978. Sheriff Roe had been at the scene where the body was found, investigating the incident.

Upon his arrival, Sheriff Roe met the defendant and defendant’s mother and stepfather, Mr. and Mrs. James Saxon. Defendant’s mother told Sheriff Roe that she had something she wanted to tell him. One of her other sons had told Mrs. Saxon that the defendant had smashed somebody’s face in during a fight which was the reason for blood being all over defendant’s clothes. Mrs. Saxon washed these clothes. After hearing on the scanner that the girl was missing, Mrs. Saxon talked with her son, then brought him down to City Hall. At this point, Sheriff Roe broke off the conversation until the district attorney and investigators could arrive. Defendant made no statements during this time.

Sheriff Roe read the Miranda warnings from a card to the defendant and his parents as soon as they began telling him of the event. He asked them if they understood their rights, and having those rights in mind, did they wish to still talk to him. Defendant and his mother both answered “yes,” and waived their right to have an attorney present.

The defendant stated that he saw the girl at a store and she got on the back of the bike and rode with him to the wooded area. He got off the bike and carried the girl into the woods. He said he did not remember how he got blood on his clothes, but remembered choking the girl and dropping her. He then picked her up and carried her to a different location. She was still struggling at this time. He then covered her with straw.

The defendant was arrested the next morning and charged with first degree murder. The state filed a petition requesting transfer and certification of the defendant to the circuit court for trial as an adult. The court appointed counsel for the defendant and held a hearing on the state’s petition for certification of the defendant. At the conclusion of the hearing, the court ordered the defendant transferred to the circuit court for trial as an adult. He appealed.

The defendant first argues that the evidence was insufficient to sustain the court’s order transferring him to the circuit court.

The trial court correctly held that a transfer or certification hearing is not for the determination of the guilt or innocence of the defendant, but is in the nature of a preliminary hearing to determine whether there is probable cause “for believing that the allegations are true and correct.” Code 1975, § 12-15-34. Factors which are to be considered in making that determination are also set out in Act No. 1205, Acts of Alabama 1975. Code 1975, § 12-15-34(d), lists them as follows:

“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.”

There is ample evidence to support the trial court’s finding that there was probable cause for believing that the allegations are true and correct. The trial court set forth in writing those reasons as prescribed by the statute. Code 1975, § 12-15-35(f). In Brown v. State, 353 So.2d 1384 (Ala.1977), we set forth the standards to be applied in a transfer hearing, and stated that such hearings are in the nature of probable cause hearings. The guidelines were followed in this case.

The defendant next argues that reversible error occurred because the trial court received in evidence, over objection, the confession made by the defendant. He argues that the statement was made while he was in custody; and, because no attorney was present, the confession is inadmissible.

The defendant argues that it was error to admit the sheriff to testify about his confession, because the accused did not have an attorney present when he made the statement. Code 1975, § 12-15-66(b), provides in part:

“An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding shall not be received in evidence over objection. . . ”

And, Code 1975, § 12-15-67, also provides:

“Unless advised by counsel, the statements of a child . . . made while in custody to police or law enforcement officers . . . shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction.”

The Court of Criminal Appeals held in Watts v. State, 361 So.2d 1200 (Ala.Cr.App. 1978), that although the confession of a child was voluntary, it is inadmissible in a criminal prosecution under the above statutes, if he did not have counsel present. It has also held, however, that such voluntary confessions may be used in a transfer proceeding even though no attorney was present to advise the child. Lippold v. State, 365 So.2d 1015 (Ala.Cr.App.1978), cert. denied 365 So.2d 1022 (Ala.1978).

We find no fault with these holdings. We have repeatedly held that transfer hearings are in the nature of probable cause hearings and that being so, the strict rules of evidence do not apply. Vincent v. State, 349 So.2d 1145 (Ala.1977); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). This is so because the guilt or innocence of the defendant in a probable cause hearing is not at issue. Thus, greater latitude is permitted in admitting evidence which would be inadmissible in a criminal prosecution to determine guilt or innocence.

In Armstrong, supra, a majority of this court held that, in a probation revocation hearing, the uncorroborated testimony of an accomplice was admissible, although Title 15, § 307, Code 1940 (now Code 1975, § 12-21-222), would preclude its admission in a criminal trial. Armstrong was relied on in Vincent, supra, which preter-mitted the question now posed in this case. We hold that a voluntary confession of a defendant is admissible in a transfer proceeding, although no attorney was present at the time the confession was made. By virtue of the provisions of § 12-15-67, supra, such statements may not be used in the criminal proceeding on the issue of guilt or innocence. But, that is not the case before us. The holding here is limited to the admissibility of such statements in transfer proceedings, which is all that is before us.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Hershel HAGOOD et al. v. Waymon HENSLEY et al.
    78-190.
    Supreme Court of Alabama.
    May 25, 1979.
    James G. Speake, of Speake, Speake & Reich, Moulton, for appellants.
    W. H. Rogers, Moulton, for appellees.
   SHORES, Justice.

The Hensleys filed suit against the Ha-goods asking the court to fix the boundary line between their respective properties. After hearing the evidence offered by both sides, the trial court fixed the boundary as contended by the plaintiffs. Defendants appealed. We affirm.

The line as fixed by the court is consistent with a survey made by a competent surveyor. The accuracy of the survey is conceded by the defendants. They simply argue that they have obtained title to part of the plaintiffs’ property up to a fence which was built on the plaintiffs’ land by defendants’ predecessor in title 7 to 9 years ago. They necessarily concede that their claim to this property cannot rest upon adverse possession inasmuch as the evidence is without conflict that the fence has not been in place more than 9 years. Additionally, there was evidence that the plaintiffs permitted the defendants to use part of their property to dig a well on, but had, from time to time, requested that the fence be moved. In short, there was evidence before the trial judge from which he could conclude that the plaintiffs had permitted the defendants to place a well on their property, and had, for a time, permitted them to maintain a fence on the plaintiffs’ property; but this does not require that the court find that the plaintiffs have lost title to their land by acquiescing in the defendants’ use of it. To the contrary, it justifies the finding of the trial court that the boundary is as shown by the evidence. There being a wealth of evidence to support the trial court, we affirm. Terry v. Buttram, 368 So.2d 859 (Ala.1979); Smith v. Claybrook, 349 So.2d 1087 (Ala.1977); McGilberry v. Belcher, 347 So.2d 370 (Ala.1977); White v. Sims, 295 Ala. 244, 326 So.2d 733 (1976).

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Isaac Lassiter TODD v. Pearl Wren LACKEY.
    78-221.
    Supreme Court of Alabama.
    May 25, 1979.
    William A. Scott, Jr., Birmingham, for appellant.
    John F. DeBuys, Jr., Birmingham, for appellee.
   PER CURIAM.

Affirmed on the authority of Hubbard Brothers Construction Company, Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), and Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891).

Affirmed.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    GREAT SOUTHWEST FIRE INSURANCE CO., a Corp. v. Linda PETERS, as Administratrix of the Estate of Billy Eugene Peters, et al.
    78-234.
    Supreme Court of Alabama.
    May 25, 1979.
    Robert B. Huie of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellant.
    George C. Longshore, Birmingham, for appellee, Linda Peters.
    Clark Carpenter of Dixon, Wooten, Boy-ett, McCrary & Thornton, Talladega, and William J. Sullivan, Jr. of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee, American Cyanamid Co.
    Myron B. Waits, Talladega, for appellees, Mrs. G. W. Burch and Jimmy C. Walker.
   MADDOX, Justice.

Great Southwest Fire Insurance Company appeals from a declaratory judgment that it is liable to defend appellees, alleged insureds, in a tort action brought against them.

Great Southwest issued a policy of liability insurance through a broker, the Darden Agency, in which G. W. Burch, Sr., was named insured. G. W. Burch, Sr. was doing business under the name of Burch Construction Company. The policy was to be effective for two months while Burch Construction was under a contract with Coosa Welding Company to perform certain dredging operations on land owned by American Cyanamid.

At the time the policy was issued, G. W. Burch, Sr. was deceased. Burch Construction Company was being operated by Mrs. G. W. Burch, G. W. Burch, Jr. and Jimmy C. Walker. There was some evidence that the broker knew that G. W. Burch, Sr. was deceased at the time application, for the insurance was made.

During the performance of the dredging contract, Billy Eugene Peters was killed. There was a dispute whether Peters was an employee or an independent contractor of Burch. We need not decide that issue. Linda Peters, wife of the deceased workman, brought suit for wrongful death against Burch Construction, American Cyanamid and Coosa Welding. American Cyanamid brought in Mrs. G. W. Burch, Sr., G. W. Burch, Jr. and Jimmy C. Walker as third party defendants, who called upon Great Southwest to defend them..

Great Southwest filed this declaratory judgment action and sought a determination whether it was obligated to defend Burch Construction Company or any of the present owners, Mrs. G. W. Burch, G. W. Burch, Jr., and Jimmy C. Walker in relation to the Peters suit.

The primary issue presented by Great Southwest on appeal is whether the policy of insurance issued by Great Southwest to G. W. Burch, Sr. provides coverage to Mrs. G. W. Burch, G. W. Burch, Jr. and Jimmy C. Walker, as named insureds.

Great Southwest argues that there is no evidence to support the trial court’s finding that the policy should be reformed because of a mutual mistake or its finding that changing the named insured did not materially increase the risk of loss assumed by it. We disagree. We think that there was substantial evidence to support the trial court’s determination that the mutual intent of the parties was to insure the owner or owners of the contract rights for the specific dredging job and for a specific period of time.

We find this case is strikingly similar to Highlands Underwriters Ins. Co. v. Eleganté Inns, 361 So.2d 1060 (Ala.1978), where this Court held that the remedy of reformation is available to establish the true agreement between the parties by making the agreement express the real intent of the parties.

The judgment of the lower court is due to be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES • and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    Jane MARR v. Joseph M. MARR.
    Civ. 1634.
    Court of Civil Appeals of Alabama.
    May 30, 1979.

      James L. Hunt, Tuscumbia, Ala., for appellants; Preston Davis Rideout, Jr., Dan R. Wise, Hattiesburg, Miss., of counsel.
    John E. Higginbotham, Florence, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The wife petitioned the Circuit Court of Lauderdale County for divorce on the grounds of incompatibility. The husband filed a counterclaim alleging that because of mental illness, the wife was not fit to have custody of the parties’ child.

The trial court’s final decree awarded custody of the parties’ child to the husband for nine months of the year with the mother having the child during the three summer months. The wife appeals.

The dispositive issue on appeal is whether the trial court erred to reversal by holding an in camera examination of a witness without giving sufficient notice to the parties of its intent to conduct the proceeding. We hold that it did and reverse.

The record of the proceeding below reveals the following: At the trial, the husband attempted to show that the wife was an unfit person for custody due to severe emotional maladjustments. In his proof, the husband called a Dr. Leslie who testified that the wife in fact had a history of emotional problems which were indicative of a psychosis known as manic depression. During redirect examination of the doctor, the distinguished trial judge exhibited a well founded concern with regard to the wife’s ability to rear the child. After questioning Dr. Leslie, the court declared a recess and asked the attorneys and the doctor to see him in chambers.

After returning to the courtroom, the judge stated that questions had been asked of the witness, in the presence of the court and the attorneys in chambers, and that the attorneys could place any or all of these matters in the record. At this time the wife objected to conducting the proceedings in camera without the benefit of a court reporter and moved for a mistrial. The record further reveals that, in particular, the wife objected to questions propounded of the doctor as to whether the wife was emotionally fit to have custody of the child.

The court overruled the motion. The wife appeals contending that under Anonymous v. Anonymous, Ala., 353 So.2d 515 (1977), the court’s actions were reversible error. In a well reasoned brief, the husband maintains that Anonymous is distinguishable inasmuch as, unlike the instant case, the in camera proceedings in Anonymous were of an ex parte nature and thus were violative of the parties’ due process rights.

Although we are in agreement with the husband’s analysis of the distinguishing features between Anonymous, supra, and the case at bar, for the reasons set forth below, we are of the opinion that the express language in that case, as stated by our supreme court, compels reversal in this instance.

Our supreme court stated that a court may conduct an in camera interview under certain limited conditions. In camera examinations of witnesses are permitted where (1) the judge adequately notifies the parties of his intention to examine the witness and (2) the parties consent to the examination or fail to object to the proceeding after receiving notice that the court intends to conduct such an examination. Anonymous, supra.

Clearly, the notice of which the opinion speaks is notice to the parties of the nature and circumstances of the proposed conference. It is notice upon which the parties may make an informed choice as to whether to agree or timely object to the proceeding.

In the instant case, the record reveals that the learned judge did not provide the wife sufficient notice that the court would undertake an in camera examination of Dr. Leslie. Rather than inform the parties that the court intended to question the witness with respect to the mother’s emotional fitness as that bears on her right to custody of the child, the court stated.

Gentlemen, let’s be in recess for a few minutes and may I see the Doctor and the Attorneys in Chambers.
(At this point there is a conference in Chambers with Dr. Leslie and both Attorneys).

Under the test enunciated in Anonymous, supra, and with all deference to the trial court’s well intentioned effort to reach the truth in this case, it is clear that this statement is not notice of the nature and circumstances upon which a party could have made an informed choice to either assent or object to the proceeding. Put another way, the parties had nothing upon which to base an objection because they had no knowledge of the substance of what was to occur in chambers.

We would further note, as indicated by the record, that the wife objected to the proceedings on the record at the first possible moment, /. e., after court reconvened and the court reporter was present. Therefore, under the circumstances, there was in this instance no timely failure to object.

The wife additionally contends that the trial court abused its discretion in awarding primary custody of the child to the husband. We find no such abuse.

The law of this state provides that the trial court has wide discretion in matters of child custody and this court can only reverse for plain abuse. Sheffield v. Sheffield, Ala.Civ.App., 350 So.2d 1056 (1977). Furthermore, it is inappropriate for this court to substitute its judgment for that of the trial court. Sutton v. Sutton, 55 Ala. App. 254, 314 So.2d 707 (1975).

In the instant case, the record reveals that the wife has a well established history of emotional difficulties which apparently began shortly after the parties’ marriage. She has received professional help from a number of psychiatrists and from aught that appears, the trial court was properly concerned with her mental stability and the attendant emotional wherewithal necessary to properly raise and nurture a child. Thus we cannot say the trial court plainly abused its discretion in its award of custody.

In view of the above, however, this court has no alternative but to reverse.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Eleanor CHRISTESON v. NORTHWEST ALABAMA STATE JUNIOR COLLEGE.
    Civ. 1745.
    Court of Civil Appeals of Alabama.
    May 30, 1979.

      Joseph E. Carr, IV, Ala. Education Assn., Montgomery, for appellant.
    H. Neil Taylor, Russellville, for appellee, Northwest Alabama State Junior College.
    Charles S. Coody, Montgomery, for the Alabama State Bd. of Ed. and the State Superintendent of Ed.
   WRIGHT, Presiding Judge.

Plaintiff appeals from a summary judgment rendered in favor of defendants. We affirm.

Plaintiff was a teacher with rights of tenure at defendant college. Such rights arose from the provisions of § 16-60-111, Code of Alabama (1975) and rules and regulations duly adopted under authority of said statute by the Alabama State Board of Education.

The facts giving rise to the present controversy were stipulated below and are abbreviated as follows: On April 13, 1977, the president of the “college” informed plaintiff by letter that because of decreased enrollment, her contract as a teacher of music would not be renewed for the school year 1977-78. However, she was offered a part-time teaching position at a salary of forty-three percent of her present salary. Plaintiff responded by letter of June 1, 1977, accepting the new position with “sadness and protest.” On July 14, 1977, plaintiff accepted a full-time teaching position with another university effective August 22, 1977. She sent a letter of resignation to the “college” informing it that she had accepted another position.

On September 16, 1977, counsel for the Alabama Education Association requested of the State Superintendent of Education, on plaintiff’s behalf, that she be granted a hearing as to the cause of the non-renewal of her contract by the “college.” On November 10, 1977, plaintiff was notified that she would be afforded an evidentiary hearing on December 8, 1977 before an ad hoc committee established for such purpose by resolution of the State Board of Education.

The hearing was duly held with all parties appearing with counsel. The committee upheld the non-renewal of plaintiff’s contract because of a justifiable decrease in teaching positions. The Board of Education adopted the finding and report of the committee on May 10, 1978.

On the 15th day of June, 1978, counsel filed a class action on behalf of plaintiff and others seeking a declaration that the termination of plaintiff’s contract was unconstitutional for lack of due process and that the defendants be restrained from terminating her contract. After consideration of the stipulation heretofore cited, exhibits and the transcript of the hearing before the ad hoc committee, the trial court entered summary judgment in favor of defendants.

Plaintiff has failed to state an issue for appeal, but has submitted five propositions of law and presented argument thereon in brief and orally before the court. Of course, the primary issue is whether in light of the absence of dispute as to any material fact, plaintiff was not entitled to the relief she sought as a matter of law; /. e., did the court correctly grant summary judgment to defendants? Rule 56(c), ARCP.

In deciding that issue there are two questions to answer. First, did plaintiff accept her non-renewal or resign from the service of the “college” without requesting a hearing?

It has previously been shown that plaintiff responded to the notice of the non-renewal of her contract and the accompanying offer of a part-time position by a letter written forty-eight days later. She said in her letter that she accepted the offered position with sadness and protest and was sorry that her position of tenure had been abolished. There was no request for a hearing. Forty-five days later, plaintiff tendered her resignation as a member of the “college” faculty with notice that she had accepted full-time employment elsewhere. She still had requested no hearing. It was not until another sixty-three days had expired and she had entered the duties of new employment that plaintiff’s counsel requested a hearing. Thus a total of one hundred fifty-six days expired from notice of non-renewal until the request for hearing. In the interim plaintiff had accepted a part-time position with the “college,” resigned from the faculty of the “college” and accepted full-time employment with another institution.

As a teacher with tenure, plaintiff had a constitutionally protected property interest which could not be terminated without the opportunity of procedural due process. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Slochow er v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). However, it has been declared by the Supreme Court that due process does not require a pre-ter-mination hearing in most cases, only a post-termination opportunity to be heard. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975). There is no due process requirement other than providing opportunity for a hearing. It is the teacher desiring to challenge the termination who has the initiative to request a hearing. Arnett v. Kennedy, supra. Stewart v. Bailey, 556 F.2d 281 (5th Cir. 1977). Even under the state tenure statute § 16-24-10, it is the responsibility of a terminated teacher to file notice of an appeal within fifteen days after dismissal. There is no contention nor evidence presented that plaintiff was not aware of the resolution of the State Board of Education establishing the ad hoc committee for hearing administrative appeals. It may be said that a delay of over one hundred fifty days in filing a request for a hearing constitutes an unreasonable delay and was a waiver or abandonment of plaintiff’s due process rights. When coupled with the stipulated facts that plaintiff first accepted non-renewal through acceptance of the proffered part-time position and subsequently resigned from the employment of the “college” and accepted another full-time position, it is without legal question that waiver of a hearing had occurred. It is well settled that due process responsibilities of the employing authority need not be carried out if the teacher voluntarily terminates her employment. Hardy v. Porter, 546 F.2d 1165 (5th Cir. 1977); Jarrett v. Shelby County Board of Education, 349 So.2d 13 (Ala.1977); Stewart v. Bailey, supra.

The second question of whether in fact and as a matter of law the plaintiff received constitutionally required due process must be answered affirmatively. That affirmative answer is, in our opinion, further dispositive of the first question.

Plaintiff’s complaint in brief as to lack of due process appears premised upon an accusation of delay in providing a hearing. We have previously said that it is the responsibility of the teacher to request the process of hearing. The evidence is without dispute that plaintiff was granted a full evidentiary hearing within a short time after request in spite of her delay of more than one hundred fifty days and her notice of resignation and acceptance of other employment. It hardly seems reasonable that plaintiff can now complain that the “college” or the board of education failed to afford her a timely hearing. Neither does it seem that plaintiff, having received the hearing she requested and participated to an adverse conclusion, should have standing to challenge its constitutional sufficiency in a subsequent action. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936).

It is the opinion of the court that plaintiff received post-termination procedural due process even though she had previously waived her right to a hearing. The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.