text:
    STATE of Louisiana v. Antoine GREEN.
    No. 64217.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 268-019.

Writ denied. The bill of information was properly quashed. R.S. 40:1788 makes it a crime to obliterate, etc. a serial no. The bill only charges possession of an altered weapon. We do not reach the issue raised in this application.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Application of Cynthia Caroline Dawn Marie ANDERSON for Admission to the Louisiana Bar.
    No. 64215.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Cynthia Caroline Marie Anderson applying for admission to the Louisiana Bar.

Writ denied. This Court will not disturb the Commissioner’s conduct of the hearing in the absence of clear abuse of his discretion. The applicant has an adequate remedy by review of the Commissioner’s ruling, if adverse to her.


text:
    Diane ROUX v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 64208.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Diane Roux applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. No. 9697.

Writ denied.


text:
    STATE of Louisiana v. Frank JOHNSON, Jr.
    No. 64205.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Frank Johnson, Jr. applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Avoyelles. No. 42096.

Stay order set aside. Writ denied.

BLANCHE, J., would grant the writ.


text:
    Elaine LANDRY, Wife of Gordon T. Richard v. Gordon T. RICHARD.
    No. 64193.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Gordon T. Richard, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 9977.

Denied.


text:
    Thomas C. SWEARINGEN v. Darrow H. MOORE et al.
    No. 64192.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Thomas C. Swearingen applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. Court of Appeal No. 12373.

Writ denied.

BLANCHE, J. recused.

TATE, J., would grant the writ.


text:
    STATE of Louisiana v. Thomas A. BREWER.
    No. 64190.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Thomas Brewer applying for writs of certiorari and review. Parish of Rich-land.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. George JAMES, Jr.
    No. 64179.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re State of Louisiana, through the District Attorney, Lowen B. Loftin, applying for supervisory writs of review. Rich-land Parish.

Denied.


text:
    Sue Gilmer TONSMEIRE et al. v. The OCHSNER CLINIC et al.
    No. 64178.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Sue Gilmer Tonsmeire applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. Court of Appeal No. 9720.

Writ denied.


text:
    STATE of Louisiana ex rel. Jerry ALEXANDER v. Frank C. BLACKBURN, Warden.
    No. 64168.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Jerry Alexander applying for writ of mandamus. Parish of Orleans. No. 253— 940J.

Denied. Application moot. Trial judge has now acted and granted an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Paul C. WEATHERS v. Frank BLACKBURN, Warden.
    No. 64167.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Paul Charles Weathers applying for writ of mandamus. Parish of Terrebonne. No. 50414.

Denied. The trial judge denied the petition for habeas on March 21, 1979.


text:
    STATE of Louisiana ex rel. Isaac WINDOR v. Frank BLACKBURN, Warden.
    No. 64165.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Isaac Windor applying for writ of habeas corpus. Parish of West Feliciana.

Denied.


text:
    STATE of Louisiana v. Michael Alan DOGGETT.
    No. 64159.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Michael Alan Doggett, applying for writs of certiorari, prohibition, mandamus and review. Parish of Richland. No. 31117.

On the showing made the application is denied.


text:
    STATE of Louisiana v. Marlin ZIELMAN and Michael Zielman.
    No. 64158.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re State of Louisiana through the District Attorney, Marion Farmer, applying for writs of certiorari, prohibition and mandamus. St. Tammany Parish. No. 68-890.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    CITY OF NEW ORLEANS v. Leonard CREEKMORE.
    No. 64155.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Leonard Creekmore, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. No. 266-906.

Writ denied.


text:
    STATE of Louisiana v. Clarence NOBLIN.
    No. 64150.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    STATE of Louisiana v. Reginald McNEIL.
    No. 63942.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Reginald McNeil applying for remedial writ. Parish of Calcasieu. Nos. 10,-767-78 and 10,768-78.

Considering defendant’s appeal as an application for writs. Writ denied.


text:
    STATE of Louisiana v. Douglas F. ST. AMENT.
    No. 64280.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Douglas F. St. Ament applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of St. Charles. No. 35981.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Jerry L. GAUDET.
    No. 64264.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Jerry L. Gaudet, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 78,2434.

Writ granted. The trial court is ordered to rule upon the motion forthwith.

SUMMERS, C. J., dissents.


text:
    In re James E. SHIELDS, Attorney, Applying for Supervisory Writs, etc.
    No. 64218.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re James E. Shields applying for supervisory writs and order staying execution of sentence for constructive contempt. Parish of Orleans.

Writ granted. The record does not justify the conviction for contempt. Hence, the conviction and sentence are reversed and set aside.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana v. Anthony TRAVIS.
    No. 64181.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Anthony Travis, applying for writs of certiorari, prohibition and mandamus. Tangipahoa Parish. No. 43207.

Writ granted. The state is ordered to try this case within 90 days or release the defendant.


text:
    STATE of Louisiana ex rel. James A. BULLOCK v. Frank BLACKBURN, Warden.
    No. 64169.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re James A. Bullock applying for writs of habeas corpus, mandamus, certiorari and prohibition. Parish of Orleans.

Writ granted. Evidentiary hearing ordered limited to allegation of uncounselled conviction in 1945.


text:
    STATE of Louisiana v. Gerald AUSTIN.
    No. 64248.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Gerald Austin, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. No. 40,974.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable James N. Lee, Judge of the 12th Judicial District, Court for the Parish of Avoyelles, to transmit to the Supreme Court of Louisiana, on or before the 13th day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be determined by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    In re Charles F. HAYNES, Jr. v. Michael Ray MANGHAM.
    No. 64219.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Charles F. Haynes, Jr. applying for writ of certiorari, Second Circuit Court of Appeal. No. 13789. Parish of Caddo.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Dr. William C. SUPER v. Madeleine BURKE.
    No. 64207.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Madeleine Burke applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. No. 9763.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    AIR COMPRESSOR, INC. v. BIG CHIEF CONSTRUCTION CO., INC. v. JEFFERSON BANK & TRUST CO.
    No. 64162.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Jefferson Bank & Trust Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 367 So.2d 413.

Writ denied. While we disagree with the rationale and reasons assigned by the Court of Appeal in its interpretation of R.S. 9:3101 — 3109, the result is correct on the grounds of the facts found by the trial court.


text:
    STATE of Louisiana v. Danny L. BLANCHARD.
    No. 64164.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Danny L. Blanchard applying for writ of certiorari. Parish of Jefferson. No. 78-1191.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Wallace C. LeBrun, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 13th day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. S. J. PATTON.
    No. 64016.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re S. J. Patton applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of DeSoto. Nos. 37701, 37702 and 37703.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Charles Brown, Judge of the Eleventh Judicial District, Court for the Parish of DeSo-to, to transmit to the Supreme Court of Louisiana, on or before the 13th day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be determined by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Mr. and Mrs. Ernest FLOWERS v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 64196.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Mr. and Mrs. Ernest Flowers applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. Court of Appeal. 367 So.2d 107.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified. ■


text:
    Dr. William C. SUPER v. Madeleine BURKE.
    No. 64189.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Dr. William C. Super applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 367 So.2d 93.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES COMPANY et al.
    No. 64214.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Brownie Reed Hebert applying for writ of certiorari, First Circuit Court, of Appeal. Parish of East Baton Rouge. 369 So.2d 1104.

Denied.


text:
    STATE of Louisiana v. Peter BOUTEE
    No. 64311.
    Supreme Court of Louisiana.
    April 2, 1979.
   In re Peter Boutee, applying for writ of review. Parish of Terrebonne.

Denied.


text:
    STATE of Louisiana v. ENTERTAINMENT SPECIALISTS, INC. d/b/a Glenwood Theater.
    No. 64329.
    Supreme Court of Louisiana.
    April 3, 1979.
   In re Entertainment Specialists, Inc. applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 110,781.

Writ denied. Our review of the application discloses no reason to exercise our supervisory jurisdiction to disturb the seizure.


text:
    STATE of Louisiana v. Elmer S. LOUBENBACK.
    No. 64250.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Elmer S. Loudenback, applying for writs of certiorari, prohibition, and mandamus. Jefferson Parish. -No. 78 — 163.

Writ denied.


text:
    TRI-STATE MACHINERY, INC. v. JOHN MYERS PUMP SERVICE, INC., and Jerry H. Wolff. TRI-STATE MACHINERY, INC. v. Jerry H. WOLFF and Bobby Frank McDanell, d/b/a McDanell Dirt & Hauling Contracting.
    No. 64247.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Tri-State Machinery, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. Nos. 13781 and 13782.

Denied.


text:
    STATE of Louisiana v. Glendell SHOWERS.
    No. 64242.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Glendell Showers applying for remedial writs. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana ex rel. Calvin DAMOND v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64238.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Calvin Damond applying for remedial writ. Parish of Orleans. No 264-001.

Denied.


text:
    STATE of Louisiana ex rel. Lionel McGRUDER, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64236.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Lionel McGruder, Jr., applying for writ of habeas corpus. Orleans Parish. No. 255-056.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Gerald Kent HOOD.
    No. 64234.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Gerald Kent Hood, applying for supervisory writ of certiorari. Parish of Ascension. No. 18,200.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Roy CHENIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 64231.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Roy Chenier, applying for supervisory and remedial writs. Parish of East Baton Rouge. No. 9-75 — 2079.

Denied.


text:
    STATE of Louisiana ex rel. Clarence COLE v. C. Paul PHELPS, etc., et al.
    No. 64228.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Clarence Cole applying for writ of habeas corpus. Parish of East Baton Rouge. No. 10-74-4563.

Denied.


text:
    STATE of Louisiana v. James Ray DYKES.
    No. 64227.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re James Ray Dykes, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 267-471.

Writ denied. Adequate remedy upon review in event of conviction.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 64226.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re McArthur Johnson, applying for writs of habeas corpus, certiorari, mandamus and prohibition. Parish of Bossier. No. 54,874.

Denied.


text:
    STATE of Louisiana ex rel. Roger Kent STERK v. 22ND JUDICIAL DISTRICT COURT.
    No. 64172.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Roger Kent Sterk applying for writ of habeas corpus. Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana ex rel. Henry STERLING v. Ross MAGGIO, Jr., Warden.
    No. 64171.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Henry Sterling applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied. Moot.


text:
    Charles R. TESSIER, Jr. v. Randall E. DAVIS et al.
    No. 64153.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Charles R. Tessier, Jr. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Derwin BOURGEOIS v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64113.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Derwin Bourgeois applying for writ of mandamus. Parish of Orleans.

Writ denied. The appeal was taken August 21, 1978, and the transcript has recently been received by the Orleans Indigent Defender Program. Assignments of Error are in the process of being prepared, and OIDP is instructed to send copy to relator when they are filed. The OIDP informs us that the transcript will be sent to the relator after conclusion of the appeal.


text:
    STATE of Louisiana v. Allen CARTER, Jr.
    No. 63843.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Allen Carter, Jr., applying for remedial writs. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. Allen CARTER, Jr.
    No. 63806.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Allen Carter, Jr., applying for writ of habeas corpus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. William DOYLE v. Honorable Israel AUGUSTINE, Judge et al.
    No. 64252.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re William Doyle applying for writ of habeas corpus and/or mandamus. Parish of Orleans. No. 242-169.

Writ granted. It is ordered that relator be released on his own recognizance unless the state shows cause in writing to the contrary on or before 10:00 A.M., Tuesday, April 17, 1979.

SUMMERS, C. J., dissents from the order.


text:
    STATE of Louisiana ex rel. Samuel PROCTER v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63499.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Samuel Procter applying for writ of mandamus. Parish of Orleans.

Writ granted. It is ordered that the trial judge act upon relator’s petition.


text:
    STATE of Louisiana v. Ronnie WILLIAMS.
    No. 64335.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re State of Louisiana applying for writ of certiorari, mandamus and prohibition. Parish of Orleans. No. 260-947.

Denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    HOUSEMASTER CORPORATION v. CITY OF KENNER.
    No. 64149.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Housemaster Corporation applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. Court of Appeal No. 10278.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Thomas M. Wicker, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be appointed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. James Earl SPIKES v. Frank BLACKBURN, Warden.
    No. 64140.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re James Earl Spikes, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Washington. Nos. 27,171 and 27,172.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Hillary J. Crain, Judge of the Twenty-Second Judicial District, Court for the Parish of Washington, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel (to be appointed) shall show cause, in this Court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Adam SMITH.
    No. 64057.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re State of Louisiana applying for writ of review. Parish of Jefferson. No. 70331 and 70332.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Patrick J. Carr, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be determined by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: SCHOTT, Judge.

text:
    Ernest MARKEY, Jr. v. ORLEANS PARISH SCHOOL BOARD.
    No. 9874.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., Larry Samuel, New Orleans, for plaintiff-appellant.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for back wages as a teacher for the period August 26 to October 11, 1974. The trial judge has favored us with extensive findings of fact, which are made an appendix to this opinion.

The facts found by the trial judge are borne out by the record. In this court, plaintiff acknowledges that LSA — R.S. 17:461 provides that in the absence of notification that he was discharged he automatically became a regular and permanent teacher, but he contends that it was reasonable for him to believe that after the Assistant Superintendent for Administrative Services recommended his termination a similar recommendation by the Superintendent and action by the School Board terminating his employment would follow as a matter of course and were mere formalities. Thus, he maintains that he was entitled to be notified that they did not terminate him.

We fail to find any support in the law or the facts for plaintiff’s position. As the trial judge noted, plaintiff is an educated person. He was given a copy of the School Board’s personnel hand book which contains provisions practically identical to those contained in R.S. 17:461. Throughout the period of time while the administrative steps were being taken until the final recommendation of the Assistant Superintendent for Administrative Services was made, plaintiff had the benefit of counsel from his Union representative. Yet, plaintiff did not even bother to inquire what happened to this recommendation at the School Board meeting of August 12 even though his whole career depended on the outcome. We have concluded that his impression was totally unreasonable and not at all befitting a person of plaintiff’s intelligence and education.

The circumstances which confront the School Board on the opening day of the school year do not allow for the kind of personal attention which plaintiff seems to require. By trying to reach him by phone at least twelve times for the first five days the School Board did quite enough to determine plaintiff’s intentions. The loss of two months’ pay was his own fault and the judgment dismissing his suit is affirmed.

AFFIRMED.

APPENDIX

THE DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA

NO. 580-228 DIVISION “F” DOCKET NO. 4

ERNEST MARKEY, JR. VS. ORLEANS PARISH SCHOOL BOARD

REASONS FOR JUDGMENT

Plaintiff, a teacher with the Orleans Parish public school system, instituted this suit on September 27, 1974, raising several issues, the majority of which have been resolved. The only issue before the court is whether or not plaintiff is entitled to back wages for the period from August 26, 1974 to October 11, 1974.

Plaintiff contends that he is entitled to be paid for said period, based upon a salary of $833.50, paid bi-weekly, because he was during that time a permanent teacher in the employ of defendant.

From the evidence presented the following facts were established:

On August 30, 1971 plaintiff was employed as a probationary teacher for the years 1971-72, 1972-73 and 1973-74. After three years a probationary teacher automatically enjoys the status of a permanent teacher, unless he is discharged or dismissed by written notification from the school board.

As a probationary teacher he was observed by the principal of the school to which he was assigned, and a progress report for the second semester of the 1973-74 school session, submitted by such principal was termed unsatisfactory. As a result thereof the district superintendent, who likewise observed plaintiff’s performance as a teacher, reached the same conclusion and also recommended that he be discontinued from service.

By letter dated June 18, 1974 plaintiff was advised by the assistant superintendent for Personnel, that a recommendation would be made to the Deputy Superintendent, that he be dismissed as a probationary teacher, and by said letter plaintiff was given five days in which to signify his desire for a hearing, and plaintiff did so request a hearing.

The Superintendent then appointed the Assistant Superintendent for Administrative Services to conduct a hearing, which was held on July 2, 1974, with plaintiff, his counsel and representative of the Teacher’s Union being present. The recommendation for dismissal was reviewed and the hearing officer concluded from the information presented to him, that same had merit, and accordingly, he sustained said recommendation that plaintiff’s service be discontinued. Plaintiff was then notified of this action by the hearing officer, with copies of the letter, dated July 11, 1974 being forwarded to his counsel and the Union representatives.

On July 18, 1974 the Assistant Superintendent for Personnel wrote to plaintiff, at his last known address, calling his attention to the letter of July 11th by the hearing officer and his recommendation that plaintiff’s services be discontinued and advising him that as the assistant Superintendent for Personnel, he was likewise recommending to the Superintendent, for action by the Board at its meeting on August 12, 1974 that plaintiff’s services be terminated.

At the meeting on August 12, 1974 the matter of considering the recommendation to terminate plaintiff’s employment was withdrawn.

Since no consideration was given to said recommendation plaintiff was never dismissed, and as of August 30, 1974 his status automatically changed to that of a permanent teacher.

Plaintiff was teaching at Warren Easton High School on June 1st, 1974 and following vacation he should have reported there on August 26, 1974 to commence the new school year. But instead of doing so he filed an application for return of accumulated contributions asserting in said application that his teaching service had been terminated on June 1, 1974 by dismissal from the system. Since the records of the school board reflected that plaintiff was still in the system and never dismissed, the application was not processed.

When plaintiff failed to report to Warren Easton in late August of 1974, more than a dozen attempts were made to reach him by telephone, but to no avail. These attempts to reach plaintiff were made between August 30, 1974 and September 6, 1974, at which time it was assumed that he had quit the system.

This suit was filed on September 27, 1974 and three days later, on September 30, 1974 plaintiff wrote a letter to the Assistant Superintendent for Personnel, which he testified was prepared at his attorney’s office but for his signature. The letter, in the court’s opinion is a poor effort to plead ignorance about not knowing that he was not dismissed as a teacher. Plaintiff is an educated man and certainly knows well the difference between a recommendation of dismissal and a severance from the system, which he testified he was aware could come about only by school board action.

In this letter plaintiff requested that his tenure be recognized and that he be assigned a teaching position immediately. The Assistant Superintendent for Personnel by letter dated October 4, 1974 assigned him to a teaching position at Karr Junior High School, as of October 11, 1974, at a salary of $833.50.

Plaintiff completed his three year probationary period without having received written notification by the school board that he had been discharged or dismissed. He therefore automatically became a regular and permanent teacher in the system, beginning with the 1974-75 school term. His tenure status has been recognized by the school board, he has been assigned to a school and he has been paid since October 11, 1974. For the period from August 26th, 1974 to October 11, 1974 plaintiff is not entitled to compensation. It was encum-bent upon him, since he was always in the system, to report to Warren Easton on August 26, 1974. The school board had no obligation to notify him to so report, the choice to do so or not do so was his alone.

Plaintiff has failed to establish any basis which would legally justify payment to him as a teacher for the period from August 26th, 1974 to October 11, 1974. He wasn’t working and consequently, he wasn’t entitled to be paid.

For the reasons stated, plaintiff’s suit is dismissed at his cost.

New Orleans, Louisiana December 21, 1977

(s) Henry J. Roberts. Jr. JUDGE


author: BOUTALL, Judge. STOULIG, Judge,

text:
    Ernest Joseph LAURENT v. Dorothy Estelle LAURENT.
    No. 9930.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Weber & Weber, Emile M. Weber, Baton Rouge, for Ernest J. Laurent, defendant-appellee.
    Daniel E. Becnel, Jr., Reserve, for Dorothy Estelle Laurent, appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Earnest Laurent sued his wife Dorothy Laurent for a separation based on abandonment. The wife reconvened for a separation based on mental and physical cruelty. Judgment was rendered granting, the separation in favor of the wife. This judgment was affirmed on appeal by this court.

More than a year after the judgment of separation, the wife filed this suit for divorce, based on the ground of having lived separate and apart for one year after a judgment of separation under Louisiana Revised Statute 9:302. The husband entered a general denial and filed a reconven-tional demand for divorce based on the alleged adultery of his wife. This adultery was alleged to have occurred before the judgment of separation in the prior suit. The trial judge found “mutual fault of both parties during the period of time from judicial separation until the trial on the merits for a final divorce.” The judgment granted a divorce under 9:302 and denied alimony due to the wife’s fault. It is clear from the reasons for judgment that the finding of fault on the part of the wife was based on the alleged adultery occurring before the original separation judgment. It is from this denial of alimony that the wife appeals.

Appellant argues that it was error for the trial judge to deny her alimony on the ground of pre-separation fault and, alternatively that the husband did not carry his burden of proof in showing fault on her part. The husband contends that since the alleged adultery occurred after the parties were separated in fact, the act should be considered post-separation fault, litigation of which is not barred in a subsequent divorce suit.

In Fulmer v. Fulmer, 301 So.2d 622 (1974) the Louisiana Supreme Court held that a judgment of separation in favor of a party is a conclusive determination of fault which precludes litigation of the fault issue in a subsequent divorce action, except as to post-separation fault. In the course of its decision, the court reviewed the legislative history of Civil Code Article 160 and made the following statement:

“We assume that the legislative choice is based on the judicial economy and consistency represented by having the separation-causing fault determined once and in the separation proceedings itself, rather than litigating (or re-litigating) it in the much later divorce proceedings— where, with different testimony or less recent recollection, the separation-causing fault might even be determined contrary to that determined at an earlier well-tried and hotly-contested separation adjudication.”

This reasoning forms the basis for our decision in this case.

We reject appellee’s contention that the alleged adultery actually constituted post-separation fault because it occurred after the parties began living separate and apart. This ignores the judicial economy and consistency considerations expressed by the court in Fulmer. Such a holding would conflict directly with Fulmer since the fault during the period in question has already been judicially determined in the separation proceeding. To relitigate fault based on an act which occurred before the judicial separation is to render that decree superfluous, a holding that the rationale of the former decision expressly prohibits.

Both sides refer us to the decision in Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977). That case allowed the husband to show post-separation (i. e. subsequent to the judgment of separation) fault on the part of the wife as a defense to the wife’s claim for alimony. In the course of the opinion, the court stated the following:

“Our holding in this case does not contravene the considerations of judicial economy underlying the Fulmer decision. Fulmer was aimed at stopping re-litigation of pre-separation fault. It was not intended to prevent litigation of post-separation fault, where such litigation occurs in the course of the husband’s defense against the wife’s alimony claim.”

Thus, we find that Moon is consistent with the Fulmer decision and supports the position of the appellant.

We find that it was error for the trial judge to deny alimony to the wife based on proof of fault prior to the separation decree. It is therefore unnecessary for us to consider appellant’s exception of res judica-ta filed with this court and appellant’s second contention that the husband did not meet his burden of proof. Further, there is sufficient evidence in the record for this court to set the alimony without remand to the trial court.

The ordinary monthly expenses of the wife as they appear in the record total slightly above $400. Additionally she owes several thousand dollars for dental bills and for household furniture she needed, and she is paying these bills in monthly installments of approximately $350. Her receipt of a back alimony payment and community settlement will assist with this amount, but presently we conclude she should receive some monthly alimony towards these payments.

Mrs. Laurent has a monthly net income of approximately $400 and Mr. Laurent has a monthly net income of approximately $1400. Considering all factors we fix a monthly alimony due appellant at $150 per month.

IT IS THEREFORE ORDERED that the judgment be reversed insofar as it denied alimony to the wife and that judgment be rendered granting alimony in the amount of $150 dollars per month. All costs of this appeal to be paid by the appellee, Ernest Joseph Laurent.

REVERSED AND RENDERED.

STOULIG, J., concurs.

STOULIG, Judge,

concurring.

I concur.

I am in accord with the finding expressed in the majority opinion that the judgment of the trial court decreeing Mrs. Dorothy Laurent to be at fault and denying her alimony after divorce must be reversed. However I am of the opinion that the alimony awarded Mrs. Laurent in the majority opinion should be substantially increased so as to be sufficient to meet her needs.


author: SAMUEL, Judge. LEMMON, Judge, LEMMON, Judge,

text:
    Edythe LILES v. Robert LILES.
    No. 9613.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, Charlotte A. Hayes and A. D. Freeman, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

Defendant appeals from judgments which dismiss his reconventional demand for a legal separation on the ground of cruel treatment and award plaintiff alimony pen-dente lite and child support. The wife was awarded the separation on- the ground of abandonment.

The cruel treatment of which plaintiff complains is that he suffers from hypertension, and is thus limited to working at a relatively low paying job, while his wife, a surgical nurse, refuses to return to work to assist with family expenses. The record reflects the parties have been married for 24 years and have an 11 year old daughter. Defendant, who had recently changed jobs and thus was unable to accompany his wife and daughter on their annual vacation to visit her parents in Florida, moved out of the family home prior to their return, taking with him various items of property and several thousand dollars which he withdrew from community accounts.

Plaintiff had worked for 13 years prior to the birth of their child, but had not worked since that time. She states she would have to take a refresher course before returning to work and she does not drive an automobile, which would make transportation to and from work extremely difficult. She does not wish to return to work at this time, preferring to remain at home to take care of the child, especially when the child leaves for and returns from school.

The husband is resentful of the fact that his wife frequently tries to get him to obtain a better paying job and occupies her time doing volunteer work at a Baptist Mission, attending homemaking meetings and bible classes, and playing cards one afternoon per week. Although he admits she was an immaculate housekeeper until a few years ago (before she became engaged in bible study), he finds the house is not as neat as it used to be. The wife denies nagging him to get a better job and states she had always managed to “make do” on his income.

Considering that the wife, instead of continuing to work, remained home to take care of the child and house, together with the fact that the family could and did live within the family income, we agree with the trial -court that her conduct did not constitute cruel treatment.

Relative to the question of alimony and child support, plaintiff was awarded a total of $475 per month, $300 for alimony and $175 for the support of the minor child. The wife submitted a monthly expense list of $593, exclusive of an additional 10% tithe to her church. The expenses to which she testified were joint expenses for herself and the child, and not otherwise specifically enumerated. She itemized these expenses as follows:

Food .$175.00
Clothing. 150.00
Medical and Dental (in addition to that supplied by insurance). 40.00
Transportation . 20.00
Drugs. 20.00
School Expenses (for the child) .... 10.00 House Insurance and Termite Expense. 20.00
Entertainment. 20.00
Miscellaneous (Child care, newspapers, books, gifts, and contributions). 30.00
Checking Account. 3.00
Pet Food. 5.00
Church (10% of income $593) . 59.30
TOTAL .$652.30.

The defendant earns $6.50 per hour as a salesman. He receives two checks per month for wages, $408 and $366, respectively. Thus, his 'monthly net earnings total $774. He itemized his expenses as follows:

Rent .$150.00
Garage (for a boat) . 25.00
Pood . 150.00
Utilities. 25.00
Laundry . 25.00
Doctor. 20.00
Drugs . 21.00
Insurance (house). 20.00
Life Insurance . 20.00
Car Insurance. 50.00
Car Expenses . 50.00
Recreation . 20.00
Clothes and Shoes. 20.00
Tish (whatever that is). 30.00
Miscellaneous (not otherwise identified) . 25.00
Phone . 10.00
TOTAL.$626.00.

In addition to his income, before moving from the family home the husband withdrew a $6,500 bank deposit, with which he paid approximately $1,000 in outstanding bills. He also has a bond in the sum of $1,000 and a mutual fund of from $5,000 to $6,000. However, he has been enjoined from using any of this money.

Louisiana Civil Code Article 148 provides:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.” LSA-C.C. Art. 148.

Generally, alimony pendente lite under Article 148 is a judicial enforcement of the husband’s obligation under LSA-C.C. Art. 120 to support the wife during the marriage.

In making an award of alimony pen-dente lite in a suit for separation, the actual needs for support and maintenance of the wife (and child) must first be ascertained, and if the amount needed is proportionate to the husband’s means, that amount should be awarded; if her needs exceed the husband’s ability to pay, alimony pendente lite should be fixed at a sum which will as nearly as possible be just and fair to all parties involved.

We are aware of the fact that the trial court, especially in this matter concerned with alimony and child support, has a wide discretion and his conclusion thereon should not be disturbed except for manifest error.

We are not impressed by the amounts of some of her needs as expressed by the wife, and we are impressed by some of the basic needs for himself as expressed by the husband. We note the wife is living in the home owned by the community, which is fully paid for, at no cost to her. We also note she and the child are covered by hospitalization insurance deducted from her husband’s salary.

On the other hand, the husband must pay $115 monthly for the rental of an apartment, $41 as a recurring expense for medical and medication purposes (primarily due to his hypertension), $20 for insurance premiums on the house occupied by the wife, $20 for premiums on an insurance policy on his life (in which policy his wife and daughter are beneficiaries),' $50 for car insurance on the vehicle he is required to have in order to perform his work, and $10 for a telephone also required in his work. These amounts total $256, all of which must be taken out of his take-home pay.

After subtracting only the alimony and child support of $475 awarded to the wife from the husband’s take-home pay of $774, he has only $299 remaining for his own living expenses. If we subtract the above figure of $256 (which we feel the husband should pay and which in part consists of unavoidable living and working expense, with the remainder being solely for the benefit of his wife and child) from $299, this leaves him with only $43 per month to pay for all of his other living expenses, including such essentials as food and clothing. It appears clear to us that the husband simply cannot live on this amount.

While we understand it is difficult and often (as here) impossible.to stretch one salary, which may be barely sufficient to support one household, to the point where it can support two households, the burden of trying to do this impossible task should be shared by both the husband and the wife. Accordingly, we are of the opinion that, under all of the circumstances, the alimony award should be reduced to $225 per month and the child support award should be reduced to $150 per month. We amend the judgment to reflect this view. While we realize the monthly difference of $100 added to what the husband retains and subtracted from what the wife receives in alimony and child support under the trial court judgment may be a relatively small amount insofar as manifest error is concerned, under the facts of this case it appears to us that every dollar counts.

For the reasons assigned, the judgment appealed from is amended to reduce the award for alimony from $300 per month to $225 per month, and to reduce the award for child support from $175 per month to $150 per month. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

LEMMON, J., concurs in part and assigns reasons.

LEMMON, Judge,

concurs in part and assigns reasons.

I fully agree, as to the judgment of separation, that the evidence most favorable to the prevailing party establishes abandonment without lawful cause.

As to the alimony, more than one year has passed since the judgment of separation, and either party may obtain a divorce which would terminate the alimony penden-te lite obligation. Therefore, any modification of that portion of the judgment will have little practical significance (although the thorough analytical treatment by the writing judge achieves substantial justice on the facts existing when the trial court judgment was rendered).

The most difficult issue is child support. The Ward rationale does not apply to the child support obligation, which neither parent can avoid by unreasonably refusing to work. However, since the wife has begun a hospital refresher course in nursing, and since there was about $6,000.00 in cash owned by the community but not yet distributed, the issue of child support will probably be in an entirely different perspective at the time a demand for alimony under C.C. art. 160 is presented and decided. I therefore simply concur in the result at this time.

LEMMON, Judge,

concurs in the denial of the application for rehearing and assigns reasons.

I concur in the denial of the application for rehearing for the reasons assigned in Hingle v. Hingle, 369 So.2d 271, La.App. 4th Cir., 1979.

      . On the list as $25.00, but identified as $125.00 in the testimony.

      . Ward v. Ward, La., 339 So.2d 839.

      . Shepard v. Shepard, La.App., 334 So.2d 745; Lewis v. Lewis, La.App., 329 So.2d 778; Thomas v. Thomas, La.App., 281 So.2d 471.

        .Hall v. Hall, La.App., 348 So.2d 707; Shepard v. Shepard, supra, note 3; Johnson v. Johnson, La.App., 317 So.2d 691.

      . The facts in this record (an experienced registered nurse refusing to work, while her partially disabled husband earns meager income), if unchanged at the time of any demand for alimony under C.C. art. 160, cry out for a reconsideration of the rationale of Ward v. Ward, 339 So.2d 839 (La.1976).


text:
    Haney WARREN v. STATE of Mississippi.
    No. 50927.
    Supreme Court of Mississippi.
    March 7, 1979.
    Rehearing Denied April 25, 1979.

      Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Haney Warren was indicted, tried and convicted in the Circuit Court of Lauder-dale County of murdering Ruth Helen Leg-gett. The court sentenced him to life imprisonment.

Shortly after 3:00 A.M. on August 24, 1977, Meridian Police Officers Booker and Gooden received a radio message from the police dispatcher to proceed to Apartment A-2, Magnolia Courts, where a disturbance and possible burglary had been reported. Officers Covert and McKinion, in car number 7, which was back-up car for car number 4, also received the radio message and proceeded toward Apartment A-2, Magnolia Courts.

About two blocks from Apartment A — 2, Officers Booker and Gooden noticed Warren walking at a fast pace. They stopped and questioned him and then proceeded on toward Apartment A-2. A minute later, Officers Covert and McKinion, in car number 7, stopped Warren. Covert testified that Warren was wet from head to toe, had blood spattered on his white T-shirt, and had a torn piece of red, white and blue shirt wrapped around his scratched and bleeding hand. Warren told Officer Covert that he had been in a fight at the Paradise Club, that his hand was scratched in the fight, and that he had wrapped a piece of cloth that he had gotten at his uncle’s house around his hand to stop the bleeding. Warren also told Covert that he was going home to the George Reese Apartments. Warren was about 10 blocks away from the direct route from the Paradise Club to the George Reese Apartments, so under all these circumstances, Covert called for car number 4 to return, and asked Warren to get on the back seat of car number 4.

Both police cars then proceeded to Apartment A-2, Magnolia Courts, where they found Ruth Helen Leggett dead on the kitchen floor in a pool of blood. She had been badly beaten about the head, and there was blood and water all around her body. In the living room they found two little children beaten about their heads, and two more young children in a bedroom off the hallway. One had been beaten and the other appeared uninjured.

Detective Flaherty was called to the scene to investigate. He arrived about 4:00 A.M. and, after checking the scene, placed Warren under arrest, explained his Miranda rights to him, and had him transported to the police station.

At the police station, Warren was given other clothes, and his clothes were sent to the F.B.I. Crime Laboratory for examination.

F.B.I. Agent Richard D. Watson testified that he found human blood on the shoes, blue jeans, white mesh T-shirt and undershorts of Warren. F.B.I. Agent Robert E. Neill testified that he found cloth fibers from the deceased’s jumpsuit and skirt on the blue jeans of Warren.

In his first assignment of error, defendant contends that the trial court erred in overruling his motion to suppress and to exclude from the evidence all the items of clothing and other articles taken from him on the morning of August 24, 1977, and all laboratory reports thereon, on the ground that he was arrested without probable cause and his clothing was, therefore, unlawfully taken from him.

Warren was first stopped and questioned by Officers Booker and Gooden, then about a minute later by Officers Covert and McKinion. Both conversations took place about 3:30 A.M., two blocks from the scene of a possible burglary which these officers had been requested to investigate. Warren was dripping wet, blood was splashed on the front of his white T-shirt, and his right hand was scratched and bleeding and partially wrapped in a torn piece of red, white and blue shirt. In our opinion, this was merely an investigative stop and temporary detention that any alert police officer would make under similar suspicious and ambiguous circumstances.

In Singletary v. State, 318 So.2d 873 (Miss.1975), this Court said:

“Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action: (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.” 318 So.2d at 876.

In Singletary, we also quoted with approval this language from United States v. West, 460 F.2d 374 (5th Cir., 1972):

“ ‘The local policeman ... is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.’ See also United States v. Allen, 472 F.2d 145 (5th Cir. 1973).” 318 So.2d at 876.

The trial court was correct in overruling appellant’s motion to suppress and exclude.

The appellant next contends that the trial court erred in admitting a picture of the partially clad, bloody body of the victim, and also in admitting evidence of the contemporary assaults on her small children. No objection was made to the testimony of the investigating officers as to the appearance of the victim’s body and the condition of the four small children. There was only a general objection when the picture was offered into evidence. This Court has said many times that a general objection will not do; the objection must be specific. Lay v. State, 310 So.2d 908 (Miss.1975); Boring v. State, 253 So.2d 251 (Miss.1971). It is largely a question for the trial court as to whether a particular picture has any probative value. In our judgment the picture did have definite probative value and the court was not in error in admitting it into evidence. The evidence of the children’s condition was admissible as being part of the res gestae. Brooks v. State, 242 So.2d 865 (Miss.1971); Ford v. State, 226 So.2d 378 (Miss.1969); Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962).

The appellant complains that the trial court erred in granting this instruction:

“The Court instructs the Jury that under the law each and every Juror must agree upon a verdict as the verdict of the Jury. In other words', all twelve of the Jurors must agree upon the verdict of this case.”

No objection was made to this instruction in the trial court; it is being questioned for the first time on appeal. Supreme Court Rule 42 provides in part:

“It is, therefore, the rule of this Court that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection.”

In Rayburn v. State, 312 So.2d 454 (Miss.1975), this Court said:

“The necessity for these rules is obvious. It is essential that specific objections to instructions be made to the trial judge, in order that errors and omissions may be corrected or supplied before any possible harm can result. A defendant may not tacitly reserve an objection at that point, or wait until after a guilty verdict is returned, meanwhile having availed himself of the chance to be acquitted, or call attention to an omission or error for the first time on appeal in order to have his conviction set aside.” 312 So.2d at 455.

Appellant contends that fatal error was committed when Detective Flaherty on cross-examination by defense counsel stated that Kevin Leggett, the young son of the deceased, when shown a picture of a lineup, first identified Johnny Windom and then later identified Haney Warren as his assailant.

The next day the Court instructed the jury to completely disregard the picture of the line-up and Detective Flaherty’s testimony on Kevin Leggett’s identification of defendant.

In Holifield v. State, 275 So.2d 851 (Miss.1973), we also said that when defense counsel elicits the testimony complained of any valid objections are waived by the defendant. So the trial court was correct in over-' ruling appellant’s motion for a mistrial.

Lastly, appellant contends that he was denied effective assistance of counsel at the trial level. We have carefully reviewed this voluminous record and are of the opinion that trial counsel effectively represented defendant in a very vigorous, aggressive and creditable manner. In Rogers v. State, 307 So.2d 551 (Miss.1975), we said:

“It is easy to be a Monday morning quarterback, and in retrospect to pick out defects and flaws in the way the game was played the preceding Saturday. The same is true in analyzing trial tactics and strategy of trial counsel, after the trial is over and the verdict in.” 307 So.2d at 552.

There being no reversible errors committed by the trial court, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    John FOSTER et al. v. Willie Fort FOSTER et al.
    No. 51039.
    Supreme Court of Mississippi.
    March 14, 1979.
    Rehearing Denied April 25, 1979.
    Laurel G. Weir, Philadelphia, for appellants.
    W. D. Moore, Jr., Joe Mulholland, Philadelphia, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


author:
COFER, Justice, for the Court: ROBERTSON, Presiding Justice,
      SMITH, Presiding Justice,

text:
    John H. McGEE et al. v. Wilburn L. BOLEN.
    No. 50831.
    Supreme Court of Mississippi.
    March 21, 1979.

      Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellants.
    Bryant '& Stennis, Grier J. Gregory, Gulf-port, Williams S. Murphy, Lucedale, for ap-pellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

The cause, a suit for damages for the wrongful death of a child, in the Circuit Court of George County, terminated in a jury verdict for the defendant Wilburn L. Bolen, from which the parents of the deceased child, John H. McGee; et ux., suing on behalf of themselves and the child’s minor brothers, have taken this appeal. They assign several errors, among them being the court’s failure peremptorily to instruct the jury to find for the plaintiffs. Concluding that this assignment is well taken, we do not reach a discussion of the other errors assigned.

Plaintiff parents and all three of their children, residents of Stone County, had gone on the morning of December 5, 1976, to visit plaintiff Mr. McGee’s sister, Mrs. Slade, and her family residing in George County south of Lucedale. After their lunch, the parents and their hostess, Mrs. Slade, left to go to the Pascagoula River to return Mrs. Slade’s husband, who was fishing there. They left the McGee children, including Jeremy, whose wrongful death is the subject matter of this suit, and two of the Slades’ children, with an older sister of the Slade children, Charlotte Elizabeth Ford, who was then thirteen years of age.

On that date, December 5, 1976, Jeremy McGee was about four and a half years old and his brothers Brian and Clay, were five years old and between seven and eight years old, respectively. They had a foster brother, Chuck Boone McGee, who was eleven years of age.

The Slades’ younger children, Kevin, Randy, and Kelly appear from the record to be of ages comparable to the McGee children.

As Charlotte was doing some house cleaning, Chuck, being also in the residence, the children had been playing in the yard area of the house, but moved down to, or to the edge of, Highway No. 63, described as a very busy highway about fifty feet from the Slade residence.

The area of the highway in front of the Slade residence is in a valley between downward slopes, south from Lucedale and north from Pascagoula.

It may be said at the threshold that ap-pellee’s driving experience, the safe condition of his tir.es and brakes, that the day of the accident was sunny, and that the highway was dry, are matters which are established by the uncontradicted evidence. That the paved portion of highway 63 is twenty-two feet wide and the shoulder of the highway, though varying in width, is around ten feet wide are facts likewise well established.

Appellee, with his mother in the passenger side, came southward over the crest of the hill about a half a mile from where the children were located. At his first observation of the children, he was not exceeding the fifty-five mile per hour speed limit, but, by means of brakes or other deceleration, he reduced the speed of the car to twenty-five miles per hour about a quarter, of a mile north of the children, and thenceforth maintained that speed until' he struck the child, Jeremy, applying his brakes about fifteen or twenty feet before the impact, and laying down skid marks approximately six feet in length. The child’s body was knocked by the impact approximately fourteen feet to the front and left of the point of impact and his shoes were found off his feet.

As appellee had come over the hill and they saw the children beside the road, his mother said to him, “Wilburn, there is little children on the side of the road; whatever you do, you be careful,” and, every now and then afterward, she would say to him, “Wilburn, be careful, son, whatever you do.”

Appellee said that, of the several children, three or four in number, on the right (driver’s) side of the highway, two were standing on the shoulder about a foot from the pavement of the highway, (elsewhere he had them two feet from the highway), and there was another child down the embankment from the pavement. He described these children as being a little girl about eleven years old, one little boy about eight or nine years of age, and the child down the embankment, a boy, was about seven or eight years of age.

There were two children, according to appellee, on the east shoulder of the highway, about nine or ten years of age and “maybe six” years old, and they were about two feet from the edge of the pavement and were almost directly across the highway from the children discussed in the paragraph next above.

He saw the children on his left side of the highway when he was about a quarter-mile away from them and, from then on, the children on both sides never passed from his view.

As appellee’s car approached, the small girl on the right side held out her hand in front of the child next to her as if to restrain him from entering the road. As appellee approached the site from the north, one Chambers was driving an automobile northward and the two cars (the latter traveling thirty to thirty-five miles per hour) met and passed each other, one to two car lengths north of where the impact took place.

We come directly to Jeremy. Appellee, as an adverse witness, testified that the child suddenly darted out in the road, first seen by appellee when he was eight or nine feet of the center line on the edge of the highway (shown above to be twenty-two feet wide), and that he was about one foot from the center line when he was hit, the impact being at the left headlight of the vehicle, which was burst by .the blow. He testified he fully applied his brakes the instant he saw the child and he made no effort to steer to the right or to the left. There was nothing to obstruct appellee’s vision, it was winter, and the road shoulders were bare. He testified that the shoulder dropped off in a deep bank, but he could see the child he earlier testified to seeing, down the embankment. He further testified:

Q. Mr. Bolen, I believe you previously stated that you assumed the children would let you pass? Is that correct?
A. Yes, sir. As I approached them, the little girl took and put her right arm in front of the little boy that was by her.
Q. And you assumed at that time that the children would let you pass?
A. Yes, sir.
Q. You, therefore, did not further decrease your speed?
A. No, sir.
Q. You did not apply the brakes when you saw her stick out her hand?
A. No, sir.
Q. You did not apply your brakes until you saw the child, for the first time, in the paved portion of the road? Answer yes or no.
A. Could you repeat the question?
Q. You did not apply your brakes until you saw the child standing in the paved portion of the road?
A. Fully, yes; that’s when I applied them fully.
Q. But you did not decrease your speed until you applied your brakes fully?
A. Yes, sir.

Later he testified as a part of his defense case. Asked on direct examination to tell again how the occurrence happened, he said:

A. . . . As I crested the hill at Hudson’s Store, I saw the children along the road playing. So I began to slow my car down. And as I got near the children ... I was going 50 whenever I was coming down that hill, so I slowed my car down to about 25. Whenever I got within distance of the children, I saw the little girl that was standing by the road with the little boy. I saw her put her hand out in front of him. And I kept going at the same pace. And as I passed them, that’s when this little child darted out.
Q. All right, did you put on your brakes?
A. When the child darted out?
Q. Yes, sir.
A. Yes, sir.
Q. Did you hit the child?
A. Yes, sir, I did.
Q. Do you know where the child came from?
A. No, sir, I do not.
Q. . How many children did you see on the right hand side of the highway?
A. I saw three.
* * * * * *
Q. Did you see the boy you hit?
A. No, sir, I did not.
Q. When did you first see the boy you hit?
A. Whenever he darted out to go across the road.
* * * * * *
A. Did I see the child I hit?
Q. Yes, sir.
A. No, sir, not until he darted out.
Q. When you say he darted out, which way was he going?
A. As you go south, he was going from - my right to my left.
Q. All right, that would have been from the .
A. . west to east.
******
Q. In relation to the pavement edge of the road on your right, where was Jeremy when you first saw him? Was he on the pavement portion?
A. He was on the outer portion.
Q. Of the paved highway?
A. Yes, sir.
Q. What was he doing when you first saw him?
A. He was darting, as I said, from right to left.
******
Q. All right. Now as you approached the children, let’s try to pinpoint my question. After you have left Hudson’s Store, you are going down the road . . . right along side of Hudson’s Store there. You are heading south. How fast are you going?
A. I was going 25.
Q. Was your foot on the gas pedal or was your foot on the brake pedal?
A. It was on the brake.
Q. Was it all the way on the brake pedal?
A. No, sir, it was not fully applied.
Q. Why was your foot on the brake pedal?
A. So if I had to make a sudden stop I could.

On cross examination, this exchange took place.

Q. You said you didn’t see Jeremy, the child that was killed?
A. No, sir, I did not.
Q. Why didn’t you see the child?
A. I don’t know.
Q. Was there anything that obstructed your vision from seeing the child?
A. No, sir.
* * * * * *
The child Jeremy McGee the child that was killed you said when you first saw him he was standing in the paved portion of the road? O*
Yes, sir. <i
At this location? ©•
Yes, sir. <¡
And he was running across the road over to the other side? <y
Yes, sir. <
Is there anything that could have obstructed your vision from either seeing the child up on the raised shoulder of the road or down in this swell that goes off to the side. <y
No, sir. ¡>
You keep using the words, “the child darted out,” and it leaves me with the impression that the child darted out from behind something. But, in reality there was nothing there for him to dart out from behind was there? <©
Yes, sir, he could have darted out from behind one of the other children.
If he was there, then he was there with the other children? Yes, sir. <©

Appellee s mother, Mrs. Voncille Bolen, testified that as they came to the top of the hill north of the fatal accident scene, she saw two children on the left side of the road and three children nearly about up the right side of the road and then, further on down, there was another one. As to Jeremy, she said:

A. Well, as we began a slowing down and we passed the little children — all that was seen. And where this young child appeared up from, I don’t know. But I said, “Oh, God, Wilburn, where did this child come from?” And just about the time we passed them — maybe a foot or a little bit less — he darted out ahead of us.
Q. All right, had you seen that particular child at any time?
A. No, sir, I sure hadn’t.
Q. All right, you saw the other children you have testified to?
A. Yes, sir.
Q. But this one you did not see?
A. No, sir.
Q. All right, let me ask you this. Could this child have been behind some of the other children there?
A. Well, he could have and we might not have seen him?
* ♦ Sfc * 5}C *
Q. You did not see this child?
A. No, sir.
& Jfc * Sfc ¡(S *
Q. All right. How far was he in front of the automobile when you first saw him?
A. Well, he was only just right on it. We didn’t have time to blink an eye or to have done nothing to avoid it.
On cross examination, she gave answers as follows:
Q. Now the three that you saw on the right side, how close were they to the hard surface of the road?
A. Well, they was pretty good, because the little girl was going this a way to mean for them to keep back because they could get hit.
Q. How far was the little girl from where the little boy was that got hit?
A. Well, they was about I would say two feet from him.
Q. The little boy that got hit was with the little girl, right?
A. Yes, sir.
Q. What would you estimate Wilburn’s speed at the time the car struck the child?
A. I would imagine about 25.
Q. Mrs. Bolen, was there anything in the way that kept you from seeing the child that ran into the highway?
A. Well, I just can’t imagine where he come from because we had seen them others and we didn’t see his appearance until he darted out in the road. I said, “Oh, God, Wilburn, where did he come from?”
Q. But he was one of the two or three that you saw there?
A. No, sir he just appeared up all at once.
* * iff * sis *
Q. How far was he in the road when you first saw him?
A. Well, he was about to the right hand car lights, and before we could make an escape to keep from hitting him, he was all the way to the left hand light.
Q. And he had moved from the right hand light to the left hand light — he had moved that far before the car struck him?
A. Yes, sir. It seemed like he had made an attempt to dart across the road to them little children on the other side of the road.
Q. Do you know whether or not the child was looking at the ear you were in?
A. No, sir, I don’t.

The driver of the northbound vehicle, Willie Chambers, testified for appellee. He saw the children as he headed' northward down the long slope about three-fourths of a mile away and they were then running back and forth across the highway, but as he drew nearer some were on one side and some on the other.

A. They was — I seen two standing close to a mailbox to my left. And a little small one that was back there somewhere.
Q. You saw a small one?
A. Yes, a little small kid.
Q. What was he doing? Standing up, laying down or what?
A. The other ones were across the highway. It looked like he was trying to duck or hide or something.
Q. All right. So he was not up on the shoulder; he was on the embankment. Is that what you tell us?
A. Yes, sir.
Q. And he was a small child?
A. Yes.
Q. Do you reckon his head was up even with the top of the bank, or could you tell?
A. Well, I could see his head the way I was coming. I could see it.
;fc * * # *
Q. All right, did you observe anything there at that particular time?
A. Yes, when I passed I looked over to the side of the road and glanced. That’s when Mr. Bolen’s taillights come on, and I seen the little kid shooting and flying over. I turned around and went back.

Shown a photograph in evidence (Exhibit 6(b) of plaintiff), the witness pointed to a place where he answered that the child was lying down, “trying to hide or something. Trying to duck from the rocks or whatever they were throwing.” Then his attention was called to what appeared to be some bushes, and the witness did not remember observing them, but he answered that it was “between those two clumps of bushes” is where he was playing. An examination of this exhibit reveals that the road shoulder, the drainage area alongside the road, and a further space lay between these clumps of small bushes and the highway pavement.

On cross examination he said the child was not “flat out” but was squatting, not behind any trees, right down under the hill, appeared to be ducking from something being thrown at him; he guessed the child was four or five feet from the paved road. He said the child was right next to the mailbox appearing in the exhibit. He could testify to seeing only two children on the west side, the little child being one of them.

Thus, it is seen that there is no material conflict to be resolved by the jury on the issue of negligence. The eye witness testimony was all given by appellee and his witnesses.

The uncontradicted proof is that ap-pellee saw this group of children more than a quarter of a mile before he reached them, and from then they were never out of his sight before the tragic impact with Jeremy. In ample time and space before he reached them he reduced his speed to twenty-five miles per hour which speed he maintained until-the instant he saw Jeremy and then in the next instant as he hit the child, he skidded his wheels for approximately six feet. While there was no proof that he saw Jeremy until the matter of seconds before he struck him, Jeremy was one of the group of children alongside the road. To make more serious still the burden that was upon appellee, in the midst of these children some on one side of the highway and some on the other side, and them about two feet only from the paved portion of the busy highway, appellee was forced to meet a vehicle in the northbound lane, thereby further restricting his space of maneuvering his vehicle.

Speed is a relative thing. Under some circumstances, a reduction of speed to twenty-five miles per hour seems a snail’s pace speed has been launched upon. In other cases, the present being one, it becomes very fast, too fast. Appellee assumed these children would give him a clear path. This assumption proved error and, in addition, was an assumption constituting a luxury to which he was not entitled. Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957).

In 1917, when motor vehicles were scarce, this Court said in Ulmer v. Pistole, 115 Miss. 485, 76 So. 522 (1917):

Recognizing in the motor vehicle an instrumentality equally as dangerous in many respects as the locomotive and trolley car, the law exacts additional precautions from operators. The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets, and must anticipate their presence. To assume that the way is clear is not his right. The fact that he was unaware of the presence of others in no way extenuates conduct which would have been wantonly reckless, had he known that another person or vehicle was crossing his pathway. (Emphasis added). (115 Miss, at 492, 76 So. at 524).

This legal principle pronounced in the earlier days of automobiles has been cited a number of times since. It was noticed and quoted in Williams v. Moses, 234 Miss. 453, 106 So.2d 45 (1958), and we took note of this fact, and quoted the same from the Williams case, in Peel v. Gulf Transport Co., 252 Miss. 979, 821-22, 174 So.2d 377, 388 (1965).

Our jurisprudence, as reflected in decisions presently herein to be noticed, is that drivers of automobiles are charged with the duty to expect children to do the unexpected, to understand that they may do the ununderstandable and unpredictable, and will act upon a second’s impulse. Ap-pellee drove under this responsibility, and had he discharged the duty he owed to those he acknowledges he knew to be at the threshold of the lane on which he was advancing, it follows that this care toward them would have avoided the sad catastrophe reflected in the record. The facts here remove this case from those protecting the motorist from liability for injury to children suddenly darting from behind obstructions of view into the path of the driver; Although not himself visible to appellee he was among those who were visible to him and was entitled to the stern care and caution that belonged to those clearly within appellee’s view.

This Court, in Avery v. Collins, 171 Miss. 636, 157 So. 695 (1934), recognized the law in the following language:

It was the duty of the driver of the automobile in this case to keep to his right. As soon as he observed the pedestrian walking on that side, with his back to the automobile, it was the duty of the driver to sound his horn, and to continue at short and frequent intervals to sound the horn until he observed that the pedestrian had become aware of the approach of the automobile. And, when it was observed that the pedestrian continued unaware, it was the duty of the driver to apply his brakes and to slow down, and to come to a stop, if necessary, before the pedestrian was reached. There was adequate time and opportunity within the [one hundred fifty] to [one hundred seventy-five] feet mentioned for the driver to have met all the requirements above stated and thus to have avoided the injury or rendered it improbable, and no case of sudden emergency is presented by the facts.

(171 Miss, at 645, 157 So. at 697).

It is thus that it was the driver’s duty, if necessary, to come to a full stop, in protecting the pedestrian.

In McMinn v. Lilly, 215 Miss. 193, 205, 60 So.2d 603, 609 (1952), the pronouncement next above from the Avery case came under review, and was cited with approval, and we observed that it had also received this Court’s approval in Stevenson v. Robinson, 37 So.2d 568 (Miss.1948).

Then in Moak v. Black, supra, both the Avery and McMinn cases were noticed and followed.

Questions of negligence are for the jury’s determination. Mississippi Code Annotated, section 11 — 7—17 (1972). Where, however, there is no issue of fact, then the court determines the negligence question.

In Mercy Regional Medical Center v. Doiron, 348 So.2d 243 (Miss.1977), it is said: “There was no conflict in the evidence so the issue of negligence was for the court.” (348 So.2d at 244). In that decision, Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); City of Greenville v. Laury, 172 Miss. 118, 159 So. 121 (1935); and Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294 (Sugg, of Error Sustained), 1 So.2d 242 (1941) are cited and the following language is quoted from the Lau-ry opinion.

In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge (Citations omitted).

(172 Miss, at 122, 159 So. at 122).

Appellee sets out the ingredients of the test, if such there is, which must be present before a peremptory instruction may be granted, as follows:

The court is required to look only to the testimony given on behalf of the party against whom the peremptory instruction is requested, and taking that testimony or evidence as true together with all reasonable inferences which could be drawn from the evidence favorable to the prevailing party (against whom the peremptory instruction was requested) and can then decide if a verdict for the party would be sustained; if so, then, the trial court properly refused a peremptory instruction.

Accepting appellee’s test as governing this case, it is our opinion that the peremptory instruction requested should have been granted, there being according to our view no issue or question as to appellee’s negligence calling for determination of a jury.

The case is reversed and judgment here rendered in favor of appellants on appel-lee’s liability and remanded for a new trial on the issue of damages only.

REVERSED AND RENDERED AS TO LIABILITY AND REMANDED FOR TRIAL AS TO DAMAGES.

PATTERSON, C. J., and SUGG, LEE and BOWLING, JJ., concur.

ROBERTSON, P. J., and WALKER and BROOM, JJ., dissent.

SMITH, P. J., dissents in part.

ROBERTSON, Presiding Justice,

dissenting:

I am unable to agree with the majority that the judgment for Defendant Bolen, based on a jury verdict, not only should be reversed but also that a peremptory instruction on liability should be granted the plaintiffs.

The plaintiffs’ case was based solely on negligence. In their declaration, the plaintiffs alleged that the 22-year-old driver was negligent: in not maintaining a proper lookout, in not keeping his car under control, in not reducing his speed sufficiently under the circumstances, and in not foreseeing possible danger. The plaintiffs charged that defendant’s negligence was the sole proximate cause of the accident.

I differ with the 'majority wherein they say that “there is no issue of fact” to be decided by the jury, that as a matter of law the defendant is liable. I think that this was a classic case for the jury, and that we are substituting our judgment for that of the jury.

Mississippi Code Annotated section 11 — 7-17 (1972) provides:

“All questions of negligence and contributory negligence shall be for the jury •to determine.”

We are violating one of our most time-honored and cardinal rules of appellate review when we ignore all the testimony and reasonable inferences to be drawn therefrom supporting the jury verdict, and substitute our judgment for that of the jury on questions of negligence.

In Shelton v. Coleman, 323 So.2d 90 (Miss.1975), we said:

“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.” 323 So.2d at 91 (Emphasis added).

In Gulf Oil Corporation v. Turner, 235 So.2d 464 (Miss.1970), this Court said:

“With regard to deciding a case as a matter of law which necessitates a finding that the evidence was insufficient to establish a jury issue, the oft-announced rule is that this Court must view the evidence in the light most favorable to the party in whose favor the jury returned the verdict. We must consider as true all evidence favorable to the successful party and assume that the jury drew every permissible inference in reaching its verdict. All conflicts in the evidence are resolved in favor of the prevailing party and this Court may not consider any evidence favorable to the other party except that which is uncontradicted.” 235 So.2d at 466. (Emphasis added).

See also: Sprayberry v. Blount, 336 So.2d 1289 (Miss.1976); Hubbard v. Morris, 275 So.2d 858 (Miss.1973); Maness v. Illinois Central Railroad Co., 271 So.2d 418 (Miss.1972); McCollum v. Randolph, 220 So.2d 310 (Miss.1969); Spell v. Ruff, 217 So.2d 7 (Miss.1968); Southern Pine Superior Stud Corp. v. Herring, 207 So.2d 632 (Miss.1968); Dendy v. City of Pascagoula, 193 So.2d 559 (Miss.1967).

The undisputed and uncontradicted testimony of the driver, defendant Bolen, and his mother, Voncille Bolen, a front seat passenger, was that they were proceeding south on busy state highway 63, shortly after noon on Sunday, December 5, 1976. As they crested a hill about V2 mile from the scene of the accident, they saw three children playing on the right side of the highway, and two children on the left side of the highway. Bolen slowed his car from 50 miles to 25 miles per hour, and proceeded cautiously, watching the children on both sides of the highway and also an approaching car going north. Willie Chambers, the driver of the northbound car, testified that he noticed some children on both sides of the highway; that he slowed his car to about 35 miles per hour at the time he passed Bolen going south. His testimony was that they passed about one or two ear lengths north of the accident scene. Chambers looked in his rearview mirror and saw Bolen’s brake lights go on.

Mrs. Voncille Bolen testified:

“A Well, as we began a slowing down and we passed the little children — all that was seen. And where this young child appeared up from, I don’t know. But I said, ‘Oh, God, Wilburn, where did this child come from?’ And just about the time we passed them — maybe a foot or a little bit less — he darted out ahead of us.
Q All right, had you seen that particular child at any time?
A No, sir, I sure hadn’t.
Q You did not see this child?
A No, sir.
Q Now,. were you looking down the road and paying attention to that that was in front of you?
A I sure was. And ever now and then I would say, ‘Wilburn, be careful, son, whatever you do’.
Q Was he careful?
A Yes, sir.
Q Do you know about how fast he was driving when you first saw the children until he slowed down?
A Well, he was about 40 or 45; approximately that. And then as we got closer to them, he commenced a slowing down to about 20 or 25.
Q This child — as you approached you did not see him as I understand you?
A No, not until he had darted out in the road.
Q All right. How far was he in front of the automobile when you first saw him?
A Well, he was only just right on it. We didn’t have time to blink an eye or to have done nothing to avoid it.”

In the majority opinion, contrary to our long-standing and oft-repeated rule of appellate review, all of the testimony supporting the jury’s verdict is ignored, and then from the vantage point of hindsight and the opportunity for cool deliberation in our cloistered chambers, we reach the studied conclusion that 25 miles per hour was too fast, and that defendant Bolen should have expected “children to do the unexpected, to understand that they may do the un-under-standable and unpredictable, and will act upon a second’s impulse.” It was Bolen’s duty, according to the majority, “if necessary, to come to a full stop, in protecting the pedestrian.”

The testimony was that four-year-old Jeremy was a very small child, and, according to witness Chambers coming from the opposite direction, was squatting down and attempting to hide from the other children. The pictures introduced into evidence show an embankment very close to the paved highway, and Chambers said Jeremy was on the embankment, not the shoulder of the highway.

Bolen and his mother testified that Jeremy could have suddenly darted from behind the other children in an attempt to cross the highway.

In other “darting child” cases, this Court has consistently ruled that it was a question for the jury and we have heretofore affirmed the jury’s verdict whether it be for the plaintiff or defendant.

In McMinn et al. v. Lilly, 215 Miss. 193, 60 So.2d 603 (1952), a 9-year-old bicycle rider was hit from the rear by a truck driven by defendant. After a full trial, the jury brought in a verdict for the plaintiff and this Court affirmed. In McMinn, we said:

“This rule does not impose liability if the motorist had used all reasonable precautions to avoid an accident and the sudden act of the child creates an emergency rendering it impossible for the motorist to avoid hitting the child, the accident in such case is said to be unavoidable and there is no liability. But in the instant case the facts presented an issue for the jury as to whether or not the truck driver had used all reasonable precautions to avoid the accident and whether any sudden act of the child had created an emergency such as to render it impossible for the motorist to avoid hitting the child.” 215 Miss, at 204, 60 So.2d at 608. [Emphasis added].

In Gordon, Minor; by Next Friend, v. Carr, 226 Miss. 836, 85 So.2d 490 (1956), a jury verdict for the defendant was affirmed by this Court. In Gordon, this Court said:

“The negligence charged against Carr is that he ‘negligently drove his truck in a wide swing to the left and caused said truck to collide with the plaintiff’; that Carr failed to anticipate that said minor would run across the street and collide with Carr’s truck, and that Carr was driving his truck at an excessive speed.
“Defendant, in his plea, denied he was guilty of any . . . negligence, but, on the other hand, averred that Billy ran from behind another automobile and across the road immediately in front of the truck being driven by Carr, and that this action was the sole and only cause of the accident.
“From the foregoing it is readily seen that the finding of the jury that Carr was guilty of no negligence producing the injury to Billy was amply supported by the testimony.” 226 Miss, at 839-42, 85 So.2d at 492-93.

In my opinion, it makes no difference whether a child suddenly runs from behind a parked car into the path of an approaching car, as in Gordon, or whether a child suddenly runs from a concealed position down an embankment or behind other children, as in the case at bar. In either case the child was hidden from the view of the approaching motorist.

In Morris, by Next Friend, v. Boleware, 228 Miss. 139, 87 So.2d 246 (1956), an eight-year-old child was injured when she ran in front of a car driven by the defendant at an intersection in Jackson. The jury returned a verdict for the defendant, and we affirmed. In deciding Morris, this Court said:

“Thus the evidence for the plaintiff and the defendant presented a sharp issue of fact as to whether Boleware had his automobile under reasonable and proper control, whether he was keeping a proper lookout, whether he was operating it at a reasonable speed, whether he negligently ran a red light, and whether he negligently failed to avoid injury to the child, or whether the child suddenly ran out into the path of his car at a time when he was guilty of no negligence, and whether he thereafter did everything in his power, as a reasonably prudent man would do in like circumstances, to avoid injuring her.
“Obviously this sharply disputed issue of fact was for the determination of the jury.” 228 Miss, at 144-45, 87 So.2d at 247. [Emphasis added].

In the face of our consistent holdings that the question of negligence vel non is for the jury to decide, and that unless the jury’s verdict is against the overwhelming weight of the evidence we will affirm, I can’t understand why in this case we ignore all of the evidence supporting the jury’s verdict and hold that the defendant is liable as a matter of law, because when confronted with an emergency situation not of his making he didn’t in some way completely avoid an unavoidable accident.

I would affirm the judgment of the trial court based on a jury verdict for the defendant after a full trial on all issues of negligence.

WALKER and BROOM, JJ., join in this dissent.

SMITH, Presiding Justice,

dissenting in part:

Whether the evidence in this case created an issue for the jury on the question of liability is, in my judgment, extremely close. In the situation reflected by the record, it is my view that a reversal upon the ground that the verdict was against the weight of the evidence is warranted. However, I consider that the facts and circumstances disclosed by the evidence require that the case be remanded for a retrial on all issues, not simply as to damages alone.