author: ROBERTSON, Justice:

text:
    John R. SPRUILL v. YAZOO VALLEY OIL MILL, INC.
    No. 48205.
    Supreme Court of Mississippi.
    Aug. 11, 1975.
    As Amended, on Denial of Rehearing Oct. 13, 1975.
    Liston & Upshaw, Winona, Fraiser & Burgoon, Greenwood, for appellant.
    Satterfield, Shell, Williams & Buford, Michael S. Allred, Cary E. Bufkin, Jackson, Whittington & Brock, Greenwood, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

John R. Spruill, individually and on behalf of the other heirs of Bobby Ray Spruill, deceased, appeals from the order of the Circuit Court of Leflore County, Mississippi, sustaining a general demurrer to the third amended declaration of the plaintiff.

Spruill brought suit against Yazoo Valley Oil Mill, Inc., for damages because of the death of his son, Bobby Ray Spruill, who died of injuries received when, as an employee of Greenwood Utilities, he was attempting to restore electrical current to the plant of Yazoo. Yazoo was engaged in the business of processing soybeans into oil and other related products for sale to the general public. It purchased electricity from Greenwood Utilities, which was owned and operated by the City of Greenwood.

In order to furnish electricity to Yazoo, Greenwood Utilities installed three 100 KVA overhead distribution transformers in a delta bank on the property of Yazoo about July 29, 1964. About September 1, 1967, Yazoo purchased from Greenwood Utilities all electrical facilities located on Yazoo’s premises “which theretofore had been utilized by Greenwood Utilities to serve the Defendant’s plant with electrical current, including the transformers herein-above mentioned.”

Contemporaneously with this purchase, Yazoo and Greenwood Utilities entered into an “Agreement for Electric Service” under the terms of which Yazoo as “Customer” requested and Greenwood as “Utilities” agreed to serve Customer’s needs for electricity to its Greenwood plant. Paragraphs 4, 5 and 12 of the agreement provide :

“FOURTH: As a condition for receiving service, Customer hereby conveys to the Utilities all rights-of-way and tree-trimming rights required for the installation of materials and equipment required for rendering service to the Customer hereunder, and shall allow the Utilities free access and entry to the Customer’s property and premises for the purpose of reading meters, making inspection of and repairs to Utilities’ property, of whatever kind, and for testing the amount and character of electric energy use.
“FIFTH: All transmission lines, distribution lines, switches, equipment,' materials and machinery up to the said division point, and all billing metering equipment, wherever placed, shall be owned and maintained by the Utilities, and shall at all times be subject to its inspection, repair, maintenance, replacement, alteration or removal at the option of the Utilities. All electric lines and electric facilities of whatever kind and character which are located beyond the said division point shall be owned, operated and maintained by the Customer.
“TWELFTH: When the Customer requests the Utilities to perform any work on facilities owned and 'operated by the Customer, or the installation of new facilities which will be owned and operated by the Customer, the Customer will reimburse the Utilities the actual cost of labor and materials used and furnished by Utilities in performing said work plus 25% for overhead and plus a reasonable charge for the use of all power operated equipment used in the performance of said work. If requested by Customer, Utilities shall, before performing said work, set the reasonable charge for use of such power operated equipment for performing that particular job.”

In the second amended declaration, which was made a part of the third amended declaration, Plaintiff alleged that prior to September 8, 1969, Yazoo contracted with Bowman and Bowman, electrical engineers of Greenwood, Mississippi, to test the three transformers for moisture content. Yazoo requested Greenwood Utilities to take samples of the insulating oil from the three transformers' and deliver these samples to Bowman and Bowman for testing. One of the transformers was found to be in need of repairs and Yazoo requested Greenwood Utilities to disconnect this transformer and deliver it to Bowman and Bowman for necessary repairs, and then when it had been repaired to reinstall the transformer in its original location.

Plaintiff further alleged that Bowman and . Bowman, an independent contractor, set the tap setting on the repaired transformer at 14,400 volts while the tap settings on the other two transformers remained at 13,200 volts; that Greenwood Utilities reinstalled the repaired transformer in its original location on Yazoo’s premises. Although alleging that the higher tap setting was a latent and hidden defect which would probably result in the overheating of the insulating oil surrounding the core and coil of the transformer, plaintiff charged that Yazoo “accepted the completed work product of its independent contractors, Bowman & Bowman and Greenwood Utilities” and negligently permitted the “bank of transformers to operate on uneven tap settings and negligently failed to conduct an inspection itself as to the tap settings.”

On November 22, 1970, about 3 o’clock p. m., Yazoo experienced a power failure or outage to a portion of its plant. Plaintiff alleged that Yazoo requested “the assistance of Greenwood Utilities in restoring power to that portion of the Defendant’s plant which had suffered the power outage.” Greenwood Utilities dispatched Bobby Ray Spruill and Dewey Watson, linemen employed by it, to Yazoo to do the necessary to restore power.

Plaintiff further alleged:

“Upon arrival at the Defendant’s premises, Plaintiff’s decedent and Watson discovered that the main disconnect switch on the metering pole adjacent to the property of the Defendant had blown and that the fused disconnect switches located approximately thirty (30) feet above the ground and directly over the aforesaid bank of three transformers had blown. Thereupon, Plaintiff’s decedent and Watson, following standard operating procedures of Greenwood Utilities, made an examination of said bank of transformers by visually inspecting them and by touching them to determine if the tanks thereof were hot, and as a result of said examination, found that no oil had up to that time escaped from the transformer tanks and that the transformer tanks were not overheated. After said examination, Plaintiffs decedent and Watson re-fused the main switch on the metering pole and then proceeded to a point underneath the said bank of three transformers for the purpose of re-fusing the said disconnect switches located directly over said bank of transformers. Plaintiff’s decedent, utilizing a lift bucket, removed the blown fuses from said disconnect switches and was in the process of replacing blown fuses with new fuses. While Plaintiff’s decedent was in the process of re-fusing said disconnect switches, the cover or lid on the second transformer in said bank of transformers was blown off the top of said transformer by exploding gases and oils inside of said transformer, which burning oil was sprayed over Plaintiff’s decedent’s entire body, thereby inflicting extremely painful injuries to Plaintiff’s decedent from which injuries he subsequently died.” (Emphasis added).

Plaintiff Spruill charged that the negligence of defendant Yazoo consisted of:

“(a) Failing to furnish Plaintiff’s decedent with a reasonably safe place to conduct his business and work upon the premises of the Defendant;
“(b) Failing to inspect the tap settings on said bank of transformers from the time of the re-installation of one of said transformers to November 22, 1970, so as to discover the hidden and latent dangerous condition created by the continual operation of said bank of transformers on incorrect tap settings;
“(c) Failing to discover the dangerous, latent, and hidden condition created by the continual operation of said bank of transformers from September, 1969, up to November 20, 1970, and to warn Plaintiff’s decedent of such condition.”

The demurrer to the first amended declaration was sustained by Circuit Judge B. B. Wilkes. The demurrers to the second and third amended declarations were sustained by Circuit Judge Arthur B. Clark.

Yazoo, engaged in processing soybeans and other agricultural products, depended on Greenwood Utilities, engaged solely in the business of selling and delivering electricity to its customers, for its source of energy.

Yazoo was willing to and did pay these independent contractors for services rendered in their chosen field. When Yazoo experienced a power failure on November 22, 1970, it called on Greenwood Utilities, its electrical expert, to do the necessary to restore electricity to its plant. All Yazoo knew was that for some reason it was not getting electricity; it did not know what was wrong. All Yazoo wanted Greenwood Utilities to do was investigate, find out what was wrong and remedy it, and to restore the flow of electricity.

In Jackson-Ready Mix Concrete v. Sexton, 235 So.2d 267 (Miss.1970), this Court quoted with approval from 41 Am.Jur.2d, Independent Contractors, section 28 (1968):

“ ‘As an exception to the general rule requiring the owner or occupier of premises (the contractee) to furnish a safe place of work to an independent contractor and the latter’s employees, the owner; or occupier is under no duty to protect them against risks arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair. Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees "assumed the risk.” ’ ” 235 So.2d at 271. (Emphasis added).

In Corban v. Skelly Oil Company, 256 F.2d 775 (5th Cir. 1958), the Circuit Court of Appeals said:

“It has been stated that ‘An employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous. The theory upon which the liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, non-delegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or, in other words, that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury’. 27 Am.Jur. 517, Independent Contractors, § 39. Thus it appears that the rule is designed to protect third persons. As we have shown Corban [plaintiff] was not in this class. We have seen no case where the inherently dangerous doctrine has been extended so as to permit an employee of an independent contractor to recover from the principal for a breach of the nondelegable duty.” 256 F.2d at 780.
(Emphasis added).

The circuit court was correct in sustaining the general demurrer to the third amended declaration, and the judgment of the lower court is affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


source: Caselaw Access Project

author: INZER, Justice.

license: Public Domain

text:
    James Charles EVERS et al. v. R. M. TRULY for the Use and Benefit of the TOWN OF FAYETTE, Mississippi.
    No. 48798.
    Supreme Court of Mississippi.
    July 14, 1975.
    Rehearing Denied. Sept. 9, 1975.

      Anderson, Banks, Nichols & Stewart, Jackson, for appellants.
    Adams, Forman, Truly, Ward, Smith & Bramlette, C. G. Smith, Jr., Natchez, for appellee.
   ON MOTION

INZER, Justice.

This cause is before the Court on motion of appellee to dismiss this appeal for the reason that the appeal was not perfected within the time allowed by Section 11-51-5, Mississippi Code 1972 Annotated (Supp. 1974).

The record reflects that this suit concerns the alleged misuse of public funds. It was tried on September 24, 1974, being a day of the regular September 1974 term of the Circuit Court of Jefferson County. The trial resulted in a jury verdict in favor of appellee, plaintiff below. A final judgment was entered, on the same date. On September 26, 1974, appellants filed a motion for a new trial, apparently this motion was mailed to the clerk by counsel for appellants and on the following day, September 27, 1974, prior to adjournment of the September term of the court, the court considered the motion and entered an order overruling it. The order reads as follows:

This cause came on for hearing on motion for new trial or in the Alternative to Vacate Judgment and enter judgment for Defendants, and the Court having duly considered each and every allegation of said motion, is of the opinion that the relief sought in said motion should be and the same is hereby overruled and denied.

On October 8, 1974, after the September term of the court had adjourned, counsel for appellants filed. an amendment to the motion for a new trial. On October 11, 1974, counsel for appellants directed a letter to the circuit judge wherein he expressed surprise that the court had overruled his motion for a new trial. The letter then stated:

I am sure that this order was entered through some misunderstanding as to whether or not we desired a hearing on the motion. I am, therefore, enclosing an order for your approval vacating your previous order denying my Motion for New Trial.
In my previous letter accompanying the materials submitted on October 4, I requested that you set a date for final submission of my Motion for New Trial or Alternative Relief and that this motion be submitted, on that date, on the papers, without oral argument. I am awaiting a communication from you establishing such date. In the meantime, in order to keep the record straight, we request that you enter the enclosed order vacating the September 27 order rendered without notice or hearing.

This letter indicates that a copy was directed to the circuit clerk and to the appel-lee and his counsel.

On October 16, 1974, the court entered the following order:

This cause came on for hearing on defendants’ Motion to Vacate Order and it appearing to the court that its order of September 27, 1974, was inadvertently entered without notice to movants and before they were afforded a hearing and movants having desired a hearing and having submitted an amendment to their motion and memorandum in support thereof, it is therefore hereby
ORDERED that this court’s order dated September 27, 1974, overruling defendants’ Motion for New Trial or Alternative Relief is hereby vacated and rendered null and void.

Although the order recites that it was heard on defendants’ motion, no motion appears in the record and apparently the court considered the foregoing letter as a motion. The record does not reflect whether appellee or his counsel was present or that they were notified that the court was going to hear the matter. In any event, after the foregoing order was entered, counsel submitted memorandum briefs and on December 2, 1974, the circuit judge entered an order overruling the motion for a new trial. Thereafter on December 23, 1974, appellants filed an appeal bond, which was approved by the clerk of the court.

Appellee contends that when the court adjourned after having entered a final judgment and having overruled appellants’ motion for a new trial, the court no longer had jurisdiction of this cause and the order entered in vacation vacating the order overruling the motion for a new trial was a nullity. Appellee further contends that the amended motion for a new trial filed after the September term was adjourned came too late and the court had no jurisdiction to hear this motion. Consequently, the appellee urges that neither the order vacating the order overruling the motion for a new trial, nor the amended motion for a new trial, tolled the running of the statute relative to the time in which to perfect the appeal. Since the appeal bond was not filed until 80 days after the court adjourned, appellee contends this appeal must be dismissed.

In response to the motion to dismiss their appeal, appellants contend that by virtue of the provisions of Section 11 — 7— 121, Mississippi Code 1972 Annotated, the trial court had the power to hear and determine in vacation their motion to vacate the order overruling the motion for a new trial without the necessity of an order entered in term time taking the cause out for a hearing in vacation. Appellants cite and rely upon Hyde Construction Co., Inc. v. Highway Materials Co., 248 Miss. 564, 159 So.2d 170 (1963). Appellants contend that the order vacating the order overruling the motion for a new trial tolled the time to perfect the appeal until the motion for a new trial was overruled and that their appeal was timely perfected.

These contentions bring into focus the question of whether the order vacating the order overruling the motion for a new trial was a valid order. We hold that when the final judgment was entered and the motion for new trial was overruled and the court adjourned, the court no longer had jurisdiction of the subject matter of this cause. It is a general rule that when a final judgment is entered during a regular term and the court adjourns, the trial court no longer has jurisdiction over the subject matter of that case. Where, as here, a final judgment was entered and a motion for new trial was overruled and the court adjourned, the court rendering the judgment was without power to hear and determine a motion for a new trial filed after that time or to vacate an order overruling the motion for a new trial rendered in term time. After the court adjourned any error in the procedure in arriving at the final judgment could only be corrected by an appeal. The fact that the motion for a new trial was overruled without the appellants’ having an opportunity to be heard, did not invalidate the order. A motion is at issue when it is filed, and if appellants desired to be heard on the motion for a new trial it was their duty to appear and make such desire known to the court. Dyer v. State, 300 So.2d 788 (Miss.1974); National Casualty Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908 (1953).

We find no merit in appellants contention that the provisions of Section 11-7-121 authorized the court to hear and determine their motion to vacate the order overruling the motion for a new trial. The pertinent part of this section reads as follows:

(2) On motion of either party and written notice for ten (10) days to the attorney of record for the opposing party or parties all demurrers and motions may be determined in vacation, in the discretion of the court, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct.
■ When notice is given by mail, two (2) days shall be added to the prescribed period.

It ¡is apparent this section applies to pending cases and not to cases that have been finally disposed of as was this case. The purpose of this amendment was to expedite preliminary matters in pending cases so that a trial on the merits could be reached at an earlier date. It does not and could not apply to a case that had been finally determined, as was this case.

In Hyde Construction Co., supra, the motion for a new trial was filed prior to adjournment and the court adjourned without ruling on the motion. No order was entered taking the cause out for a hearing in vacation. Thereafter the court heard the motion and granted a new trial. We held that this action was authorized under the foregoing section. However, there is a marked distinction between that case and the case before us. Until the motion for a new trial is disposed of by the court, the case is still pending. Here the motion was disposed of during the term and there was nothing pending when the court adjourned. The judgment then became final and appellants’ remedy was by appeal.

We hold that neither the order vacating the order overruling the motion for a new trial, nor the amended motion filed after the court adjourned, tolled the running of the statute of limitations as to the time to perfect the appeal. Since this appeal was not perfected within forty-five (45) days from the adjournment of the September 1974 term of the court, this appeal must be dismissed.

Appeal dismissed.

All Justices concur.


text:
    Irene WEISSMER v. Bobbie Jean GLENN.
    No. 48117.
    Supreme Court of Mississippi.
    July 7, 1975.
    Rehearing Denied Sept. 9, 1975.
    Gordon, Henry & Mangum, Union, for appellant.
    Allen B. Couch, Southaven, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Affirmed.


author: ROBERTSON, Justice.

text:
    WESTERN CHAIN COMPANY v. Mrs. Nell BROWNLEE et al.
    No. 48140.
    Supreme Court of Mississippi.
    July 21, 1975.
    Rehearing Denied Sept. 9, 1975.
    Stennett, Wilkinson & Ward, James A. Peden, Jr., Jackson, Robert A. Holstein, Chicago, Ill., for appellant.
    Bowling, Coleman & Cothren, Jackson, Douglas M. Magee, Mendenhall, for appel-lees.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice.

On March 20, 1973, the Circuit Court of Simpson County entered an intelocutory default judgment, and then a final judgment, based on writ of inquiry, for $204,160 against Western Chain Company, a non-resident corporation, and in favor of Mrs. Nell Brownlee, widow of Billy Brownlee, and her four minor children. The March, 1973, term of court ended on March 30, 1973. On August 6, 1973, Western Chain Company filed a motion to set aside and vacate these two judgments.

In its motion to set aside, Western Chain contended that, under the peculiar facts of this case, there was a failure of due process, and that the interlocutory and final judgments offended traditional notions of fair play and substantial justice. After a hearing on the motion, the court took the matter under advisement, and on October 8, 1973, rendered a written opinion overruling the motion. In its opinion, the court found:

“[Sjaid briefs on behalf of the parties having been filed and the Court, after having examined the file in its entirety and particularly the matter pertaining to service of process in the manner and for the period of time required by law in such cases and all of the other evidence, is of the opinion and so finds that the Defendant has been afforded a fair and impartial hearing upon its Motion and, in view of the briefs filed and cases cited for and on behalf of the respective parties, the Court is of the opinion that there has been no fraud perpetrated upon the Defendant and that process in this case was served in the manner and for the period of time required by law; that Arthur W. Hill, President of the Defendant Corporation, actually received this process, studied its contents and placed thereon a question mark. The Court further finds that although Mr. Hill had lost a loved one, it was shown in the testimony adduced upon the hearing of this Motion that he has been President of the Defendant Company since its inception and was President of the original Corporation; that he appears to be unusually mentally alert and responsive to and understanding of legal and business terms. . . ■ . [Emphasis added].
“The Court further finds that, process was had in the manner and for the period of time required by law and it now appears that this process was received by the only one who had any authority, duty or obligation to act for and on behalf of Western Chain Company — its President, Arthur W. Hill; that he did read and keep, to the date of the hearing, the process from the Secretary of State.”

We list the chronology of pertinent events:

On'January 9, 1973, Mrs. Nell Brownlee, individually and for her four minor children, filed suit against Western Chain Company charging that her husband, 28-year-old Billy Brownlee, died on May 5, 1971, from injuries received on that day when a defectively made chain, manufactured and sold by Western Chain, broke and the front end of a wrecked car fell on him. The new chain had been purchased on April 27, 1971, from a retail hardware store in Magee, Mississippi, and was being used on a Berry Motor Company wrecker to hoist the front end of a wrecked automobile. After the front end of the car had been raised, Brownlee went underneath the car to check the transmission to see if the car could be moved without damage to the transmission. The chain broke, the car fell upon him, and he was fatally injured.

The suit was brought under Mississippi Code Annotated section 13-3-57 (1972) which provides in part:

“Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee. [Emphasis added].
“Service of any process herein provided for' to be made upon the secretary of state shall be made in like manner and procedure, inclusive of notice of service, and with the same force and effect, as is provided by law for service on nonresident motorist defendants under section 13-3-63, . . . .”

That part of Mississippi Code Annotated section 13-3-63 (1972), having to do with the service of process provides:

“Service of such process or summons shall be made by the sheriff of Hinds County, upon prepayment of the fees to which he is entitled by law, by serving two copies of the process or summons for each nonresident defendant, with a fee of five dollars ($5.00) for each such defendant on the secretary of state or by leaving two copies of said process or summons with the fee in the office of the secretary of state, and such service shall be service upon said nonresident defendant with the same force and effect as if such nonresident had been personally served with such process or summons within the State of Mississippi. One of the copies of such process or summons shall be preserved by the secretary of state as a record of his office. Notice of such service, together with a copy of the process or summons, shall be mailed forthwith as certified or registered mail, restricted for delivery to addressee only and with postage prepaid, by the secretay of state to each such nonresident defendant at his last known address, which address shall be written on the process or summons upon the issuance thereof by the clerk of the court wherein the action is pending, or notice of such service and copy of process or summons actually shall be delivered to the said defendant. The defendant’s return receipt or evidence of defendant’s refusal to accept delivery of such certified or registered mail, in case such notice and copy of process or summons are sent by certified or registered mail, or affidavit of the person delivering such notice and copy of process or summons, in case such notice and copy of process or summons actually are delivered, shall be filed in the court wherein such action is pending before judgment can be entered against such nonresident defendant. The secretary of state, upon receipt of such return receipt or evidence of the refusal of such defendant to accept delivery of such certified or registered mail, shall promptly return same to the clerk of the court wherein such action is pending, and the said clerk of the court shall promptly file and preserve same among the records of such action or proceeding. ...” [Emphasis added].

On January 11, 1973, in strict accord with the statute, the Hinds County Sheriff served two copies of the summons for Western Chain Company, 1807 Belmont Avenue, Chicago, Illinois, which summons was returnable before the Circuit Court of Simpson County on the second Monday of March, 1973, on the Secretary of State in Jackson, Mississippi.

On that same day the Secretary of State mailed a copy of the summons, together with a letter giving notice of such service, to Western Chain Company by “REGISTERED MAIL DELIVER TO ADDRESSEE ONLY RETURN RECEIPT REQUESTED”. The letter giving notice of such service and the copy of the summons were delivered on January 15, 1973, and the return receipt was signed “Western Chain Company John R. Miller.”

On January 15, 1973, the letter from the Secretary of State and the copy of the summons were placed on the desk of Arthur W. Hill, president, general manager, and principal stockholder of Western Chain Company. Mr. Hill was 75 years of age, had lost his wife of 53 years on November 3, 1972, and, according to an affidavit of his doctor, was still suffering from depression, melancholy, anxiety and emotional upset well into the Spring of 1973. On January 15, 1973, Mr. Hill put a question mark on the letter from the Secretary of State, and placed the letter and the summons in a “pile” of correspondence on his desk.

There being no answer or pleading of any kind filed, on motion of the plaintiff, the Simpson County Circuit Court, on March 20, 1973, entered an interlocutory default judgment against Western Chain Company. On that same day, after a writ of inquiry, the trial court entered a final judgment against Western Chain Company for $204,160. The March, 1973, term of court ended on March 30, 1973.

On June 22, 1973, the plaintiff’s attorney wrote Western Chain Company:

“No answer was filed on behalf of your company, and a Default Judgment was entered by the Court. I enclose copies of the Interlocutory Judgment and the Final Judgment.”

Upon receipt of this letter, President Hill checked back and found the letter from the Secretary of State and the copy of the summons in the pile of correspondence on his desk. He contacted his Illinois attorneys, but it was not until August 6, 1973, that the motion to set aside default judgment was filed.

In Smith v. Temco, Inc., 252 So.2d 212 (Miss.1971), this Court held that Mississippi Code Annotated section 13-3-57 (1972), covered strict products liability suits. In Smith, the Court said:

“In our view, one of the fundamental objects of the Legislature in adopting the 1964 amendment was to extend the personam jurisdiction of the courts of this State to the nonresident who may commit a tort in this State, either in whole or in part, to the injury of a resident of the State so as to provide a practical means for the enforcement of rights accruing under the products liability doctrine.
“Under the amended statute, a nonresident manufacturer of a dangerously defective or unsafe product who places it in interstate commerce for the purpose of distribution and ultimate sale to consumers in other States, whether with a specific intent that it be distributed, sold and used in this State or not, may be subjected to a personam action for damages in the courts of this State by such consumer who may be injured in this State as a result of its defective or unsafe condition.” [252 So.2d at 216].

In Ellis v. Milner, 194 So.2d 232 (Miss.1967), this Court held that service of process under Mississippi’s long-arm statute [Mississippi Code Anotated section 13-3-63 (1972)], was personal service of process authorizing the entry of a default judgment at the return term of court. In Ellis, we said:

“In summary, personal process was had upon defendant through the Secretary of State on November 18, 1965, returnable •to the December term of court. It was properly executed for that return term. Miss.Code Ann. § 1848 (1956). Defendant failed to answer at the return term, although the process had been ‘served personally’ on him, in accord with the last sentence of Code Section 1519; Thus the trial court was authorized, on motion of plaintiff, to enter the default judgment. Cf. Miss.Code Ann. § 1547 (1956); Id. § 1519 (Supp.1964).” [194 So.2d at 236].

The trial court was correct in granting an interlocutory default judgment, the final judgment based on writ of inquiry and in overruling the motion to set aside and vacate these judgments.

The final judgment of the circuit court is affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


author: GILLESPIE, Chief Justice. SUGG, Justice

text:
    Louis James TAYLOR v. Viola TAYLOR.
    No. 48071.
    Supreme Court of Mississippi.
    Aug. 4, 1975.
    Statham & Watkins, Magnolia, for appellant.
    Roach & McMillan, T. Patrick Welch, McComb, for appellee.
    Before GILLESPIE, ROBERTSON and SUGG, JJ.
   GILLESPIE, Chief Justice.

Louis James Taylor was granted a divorce from Viola Taylor by the Chancery Court of Pike County on the ground that Viola Taylor was married to another person on April 30, 1955, when she entered into a purported marriage with Louis Taylor. The chancellor awarded Viola Taylor the sum of $75 per month for a period of thirty-six months, plus $175 for attorney’s fees. Louis Taylor appealed. We affirm.

The question for decision is whether the court erred in making the allowances of a monthly sum for thirty-six months when there had never been a valid marriage between the parties because of Viola Taylor’s previous marriage which had never been dissolved by death or divorce. The proof showed that James Taylor knew of Viola Taylor’s previous marriage at the time he entered into the purported marriage on April 30, 1955. The parties lived together as man and wife until about May, 1973. At the time of their separation, Viola Taylor was sick and unable to work. The chancellor stated that after the parties had lived together in a relationship of husband and wife for a long period of time that it would not be fair and equitable for him to walk out and leave her as if she were a perfect stranger and that under the circumstances he owed some obligation to her. He allowed her $75 per month for thirty-six months as support. It was not designated as alimony.

In Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150 (1918), the Court held that where there has been no valid marriage there is no foundation for the wife’s right to alimony. Aldridge is sound law and we do not intend to weaken its force as a general rule. The facts in this case demonstrate without question that the chancellor did what a decent regard for the sensibilities of humanity demanded. These people lived together and shared the vicissitudes of life for eighteen years. The separation cast her adrift just as surely as if she had been his lawful wife. The chancellor appears to have decided that the strict letter of the law ought not to require him to ignore that he was dealing with human beings. He did not make the allowance as alimony but as support. He felt the man had an obligation, and this Court is not disposed to reverse the manifestly just decree under the particular circumstances.

The action of the chancellor finds some support in the case of Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951). In Chrismond, there was no valid marriage but the Court applied the rule of equity and awarded the purported wife a share of the property accumulated by the joint efforts of the parties during their relationship.

The motion to dismiss on the ground that Louis Taylor had not paid the temporary support required by an order of this Court is overruled for the reason that the default has been remedied. The case has been duly considered on its merits by the Court en banc.

Motion to dismiss overruled; affirmed on merits.

RODGERS, P. J., and SMITH, ROBERTSON and WALKER, JJ., concur.

SUGG, PATTERSON, INZER and BROOM, JJ., dissent.

SUGG, Justice

(dissenting):

I dissent because the established law of this State requires a valid marriage as a prerequisite to the allowance of alimony.

In McFarland v. McFarland, 64 Miss. 449, 1 So. 508 (1886) this Court held, “ . . . marriage is the very foundation of the husband’s obligation to furnish a support.” In Reed v. Reed, 85 Miss. 126, 37 So. 642 (1904) the Court reversed an allowance of alimony pendente lite and stated:

It would be monstrous that the law should require payment of alimony pen-dente lite to one who clearly never was a wife. (85 Miss. at 128, 37 So. at 642).

In Aldridge v. Aldridge, 116 Miss. 285, 77 So. 150 (1918) this Court held:

Even if it be true that appellee aided appellant in accumulating what property he has, that fact would not render the allowance of alimony to her “equitable and just,” for under the facts here in evidence she not only was not appellant’s wife, but to all intents and purposes was simply his mistress. (116 Miss. at 397-398, 77 So. at 151).

The majority holds that Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951) lends some support to the action of the chancellor awarding Viola Taylor alimony for three years. However, the issue in Chrismond w,as entirely different from the issue in the case at bar. The issue in Chrismond was stated by the Court in the following language:

We have here presented the question whether a woman who has entered into an arrangement with a man whereby she has lived in his home, cared for him and kept house for him, worked and assisted him in the accumulation of property, and has subsequently married him in good faith, when in fact he was incapable of contracting a legal marriage with her because of his prior marriage to another woman, and who thereafter has continued to work and assist him in his business, is entitled to an equitable division of the property accumulated by their joint efforts during the time they were living together.
We think that the equity powers of the court are sufficient to protect the rights of the putative wife, where the supposed marriage which she entered into in good faith turns out to be void, and that she is entitled to an equitable division of the property accumulated by their joint efforts during the time they lived together as man and wife. (52 So.2d at 628-629) (Emphasis supplied).

Chrismond adjudicated the rights of a woman who attempted to enter into a marriage in good faith, but Viola Taylor did not act in good faith because she knew she had a living husband when she attempted to marry Louis James Taylor. She was guilty of bigamy and does not fall within the class entitled to equitable relief.

In Chrismond, the purported wife helped her husband, who was an invalid, build up a profitable business from which they accumulated a sizeable estate. The Court held that, since she acted in good faith, she was entitled to an equitable division of the property accumulated by the joint efforts of the parties. Neither 'good faith nor contribution toward accumulation of property was shown in the case at bar, nevertheless the chancellor awarded defendant all of the personal property which she purchased with her funds. This was all she was entitled to recover.

Viola Taylor knowingly entered into a bigamous relationship. This being true, there is no legal, moral or equitable basis to support an allowance of alimony to her. Bigamy should never be rewarded, but denounced.

PATTERSON, INZER and BROOM, JJ., join in this dissent.


text:
    CLAIBORNE COUNTY LUMBER CO., INC., and Employers Mutual Liability Insurance Co. of Wisconsin v. George Howard COOPER.
    No. 48231.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for appellant.
    John E. Mulhearn, Natchez, for appellee.
    Satterfield, Shell, Williams & Buford, K. Hayes Callicutt, Jackson, Representing on Motion, J. H. Madison, Inc.
    Before RODGERS, P. J., and SMITH and WALKER, JJ.
   Affirmed.


text:
    Charles R. WILLIAMS v. Flora Ellen Roberts WILLIAMS.
    No. 48235.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Hugh L. Bailey, Winona, for appellant.
    Levingston & Jacks, Cleveland, for ap-pellee.
    Before RODGERS, SMITH and WALKER, JJ.
   Affirmed.


text:
    CITY ELECTRIC, INC. v. CITY OF LAUREL.
    No. 48224.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Holifield, Harper & Sumrall, Laurel, for appellant.
    Pickering & McKenzie, Laurel, for ap-pellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


text:
    Grady W. WILSON v. Carolyn M. WILSON.
    No. 48242.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Charles “C.” “Cliff” Finch, D. Briggs Smith, Jr., M. Collins Bailey, Thomas H. Hadley, Batesville, for appellant.
    McClure, McClure & May, Sardis, for appellee.
    Before RODGERS, P. J., and SMITH and WALKER, JJ.
   Affirmed.


author: BROOM, Justice. SMITH, Justice

text:
    Freddie Lee WILLIAMS v. STATE of Mississippi.
    No. 48516.
    Supreme Court of Mississippi.
    Aug. 4, 1975.

      John W. Land, Rosedale, Boyd P. Atkinson, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice.

Previously a majority of the Court reversed the decision on appeal here. An opposite result was reached on petition for rehearing, and the prior majority opinion and dissenting opinion are withdrawn.

Armed robbery was the offense for which appellant, Williams, was convicted in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. After the jury found him guilty, the court sentenced him to a term of three years in the state penitentiary. We affirm.

The thesis of the appellant’s defense is that he took the money in question in “good faith” and that the evidence was insufficient to establish his criminal intent.

FACTS

On February 9, 1974, appellant selected and purchased a pair of size 10}/2 shoes from Jay’s Department Store in Cleveland but declined to try them on though invited to do so. He paid $25.15 for the shoes. According to him, he was told by the sales clerk (Coccilova) that if the shoes were not satisfactory or did not fit they could be returned and the matter adjusted. Other testimony indicated that it was the store’s policy not to accept for exchange or refund shoes that were “scuffed.” Unfortunately the shoes did not fit. Two days later the appellant returned them (worn and scuffed) to the store and asked that they be exchanged for other shoes or that the $25.15 be refunded. A store employee then unsuccessfully attempted to stretch the shoes and the appellant demanded a refund. When the appellant’s demand for return of the money was refused, he left but stated that he would return and get his money.

Later that day (February 11th), he returned the shoes in a “scuffed up pretty bad condition”, and again demanded a refund but again his demand was unavailing. Appellant then drew a .38 caliber pistol which he pointed at Mr. Reynolds (not the clerk who sold the shoes but the shoe department manager), and demanded $25.15. Appellant told Reynolds, “I ain’t joking, man, I want my money back don’t try anything.” He then placed the sales slip (for $25.15) on the counter and told the cash register lady, “I want that much money . . . .” These facts are admitted but there is some dispute as to whether or not the appellant also said, “this is a take back.” At gun point, Mr. Reynolds (having no money on him) directed the cashier to take the money out of the cash register. In that manner the appellant obtained $25.15.

I.

We find no merit in appellant’s argument that the court erroneously refused to grant him his instruction No. 11. Other instructions, No. 1 for the state and No. 8 for the defendant, properly advised the jury of the necessity to find “felonious intent” on the part of the defendant as a prerequisite to his conviction. The jury also had before it another instruction (requested by appellant) to the effect that it might find him guilty of the lesser offense of unlawfully pointing and aiming a deadly weapon (a misdemeanor) but the jury rejected that theory of the case.

II.

We cannot accept appellant’s argument that his alleged “good faith” taking of a sum of money entitled him to a peremptory instruction. Robbery under Mississippi Code Annotated section 97-3-79 (1972) is established if the proof shows that the defendant took or attempted to take the personal property of another from his presence against his will by violence or by putting him in fear of immediate injury to his person by exhibition of a deadly weapon. Bell v. State, 259 So.2d 118 (Miss.1972).

The three essential elements of robbery are: felonious intent, force or putting in fear as a means of effectuating the intent, and by that means a taking and carrying away of the property of another from his person or in his presence. Sykes v. State, 291 So.2d 697 (Miss.1974). According to Sykes, a jury finding that “[T]he particular intent of the accused must be one in which substantial gain in money or property was the dominant or primary purpose . . .” (emphasis added) is not a prerequisite to a robbery conviction. Thus it is of no controlling significance that appellant took only a sum equal to that which he paid for the shoes.

In Thomas v. State, 165 Miss. 897, 148 So. 225 (1933), this Court rejected the argument that the collection of unliquidated damages by force was not robbery. A later case, similarly styled, Thomas v. State, 278 So.2d 469 (Miss.1973) is cited by appellant. In that case a robbery conviction was reversed, but it was because of a deficiency in jury instructions. Our decision there pointed out that the issue to be decided by a properly instructed jury was whether the appellant took the property involved (a pistol and a police car) from the policemen with the intent to steal.

67 Am.Jur.2d Robbery section 61, at 63 (1973), on the matter of intent in a robbery prosecution, states the following rule:

The issue of felonious intent is one of fact, and its determination is therefore within the exclusive province of the jury, under appropriate instructions from the court. Consequently, the jury may find, if the facts justify it, that a defendant’s expressed intent to retake money lost in an illegal game, or to collect a debt, was a mere pretext resorted to as a cover for an attempt to steal.

In Herron v. State, 176 Miss. 795, 170 So. 536 (1936), the appellant (charged with robbery) argued that he took a mare under the belief that he had a right to do so, and that the mare was his property. There we said that had the accused taken the mare from the premises of Morris “in his absence” without his knowledge or consent with intent to deprive Morris of his property rights, he would have been guilty of larceny and “not mere trespass.” This Court affirmed his conviction of robbery, and held that the issue (intent) was a question for the jury to resolve upon the proof which showed that the mare was taken by appellant at pistol point.

The record before us reveals, no evidence that the money which the appellant obtained from the cash register was the identical property or the same cash which he had given for the shoes at the time of the purchase. Neither does it show that what he took at gun point was in fact his own property, or that what he took was not worth more than the value of the shoes at that time. In view of the admitted scuffing damage to the shoes which appellant had worn down the street, his claim was unliquidated because the value of the shoes in their depreciated condition was not fixed or certain.

McDaniel v. State, 16 Miss. (8 Smedes & Marshall) 401 (1847), relied upon by appellant, was a murder case resulting from a dispute about a pony. There is language in McDaniel that “if there be a fair, bonafide claim of property or right in the prisoner, the offense amounts to but a trespass.” In the instant case the appellant admitted forcibly taking money to satisfy a claim for money which he may have believed was owed him, but upon the facts and circumstances this falls short of a “fair, bonafide claim” and did not justify his taking the law into his own hands. The following well reasoned cases from other jurisdictions support our holding. State v. Ortiz, 124 N.J.Supr. 189, 305 A.2d 800 (1973); People v. Uselding, 107 Ill.App.2d 305, 247 N.E.2d 35 (1969). Our judgment is that the evidence made out a case sufficient for submission to the jury.

As said in Herron, supra, which with approval quoted from Fanin v. State, 51 Tex.Cr.R. 41, 45, 100 S.W. 916, 918, 10 L.R.A. (N.S.) 744, 748, 123 Am.St.Rep. 874, 879-80 (1907):

“[W]e are not willing to lay down the proposition that if a man collects a debt by force and threats, and putting in fear, he will not be guilty of robbery.” (Herron v. State, 176 Miss. at 801, 170 So. at 538.)

The record shows that the appellant brazenly entered the store, cocked his pistol, disturbed the peace, harassed the store employees, aimed the loaded pistol at Reynolds, called him a son-of-a-bitch and in “wild-west” fashion took at gun point money — the property of another. Such violent self-help as a means of obtaining redress for grievances concerning property rights is inimical to order and the appropriate administration of justice. It would be most unjudicious to accept his argument that such a caper was done in good faith without animus furandi, and that, therefore, the case should not have gone to the jury.

The robbery statute, supra, was applied by the grand jury and prosecutors in accordance with our system of jurisprudence. As is often the case, other statutes carrying lesser penalties could have been applied, but that is no reason to hold that the robbery statute was inapplicable when it precisely covers the acts of the appellant. Those charged with prosecutorial duties and responsibilities must be allowed to exercise reasonable discretion in deciding which of applicable statutes will be used as a basis for a criminal prosecution.

The trial of appellant was fair in every respect and the decision must stand.

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

Affirmed.

GILLESPIE, C. J., and ROBERTSON. SUGG and WALKER, JJ., concur.

RODGERS, P. J., and PATTERSON, INZER and SMITH, JJ., dissent.

SMITH, Justice

(dissenting):

Freddie Lee Williams, a student at Delta State University, was indicated for the crime of armed robbery as defined by Mississippi Code Annotated section 97-3-79 (1972). He was tried upon that charge in the Circuit Court of Bolivar County and convicted. The jury failed to fix his penalty at life imprisonment, however, and he was sentenced to serve three years in the penitentiary.

There is little dispute as to the material facts in the case. Nor is there any contention that the acts of Williams, which gave rise to the indictment, were not unlawful and criminal. A serious question is presented, however, as to whether the evidence was sufficient to support a finding, beyond a reasonable doubt, that Williams acted with larcenous intent on the occasion in question, an intent to steal the property of another being universally held to be an indispensable element of the crime of robbery. Stated differently, was the evidence sufficient to show beyond a reasonable doubt that Williams committed the capital crime of armed robbery, as charged in the indictment, or only that he was guilty of one of the lesser statutory criminal offenses ?

The essential facts were these: Wil= liams, a college student, went to Jay’s Department Store in Cleveland, for the purpose of purchasing a pair of shoes. He selected a pair, but chose not to try them on, explaining to the clerk that he was wearing “gym” shoes and two pairs of athletic socks at the time.

Williams testified that, notwithstanding this, the clerk told him: “If they don’t fit, if they hurt your feet, if they tear up or anything goes wrong with them within a reasonable amount of time, bring them back, we will exchange them, fix them, or give you your money back.” The clerk did not dispute this but said he did not know whether he told Williams this or not.

In any event, Williams paid $25.15, the price of the shoes, in cash, and was issued a sales slip which showed his name, that he was a student at “St U.”, and the amount of the purchase. Printed on the slip was the following: “All claims and returned goods MUST be accompanied by this bill.”

That -evening, in his room, Williams tried on the shoes, intending to wear them, started to go down the street, but instead returned and changed shoes because the new pair hurt his feet. The following Monday he returned to Jay’s Department Store with the shoes, where another salesman in the shoe department, one Reynolds, waited on him, the man from whom he had bought the shoes having been absent. Williams explained the situation and asked to return the shoes for another pair or for his money back. Reynolds offered to stretch the shoes and Williams left them with him for that purpose. When Williams returned later, after the stretching had been done, the shoes still would not fit. Williams again sought to return the shoes in exchange for another pair or for his money back. The salesman refused, saying the shoes were scuffed up. After considerable argument, Williams sought the store manager and was told that the manager was out. He was directed by another employee of Jay’s to see Reynolds again. He did this, and a further refusal by Reynolds to do anything about the matter resulted. He refused either to exchange the shoes or return Williams’ money. By this time, it is obvious from the record, some heat had been generated between Reynolds and Williams. Finding that he could get no relief for his problem from anyone at Jay’s, Williams left the store and sought out and consulted an attorney about suing Jay’s to recover his money. The lawyer declined to take the case, however.

Frustrated at every point, Williams then went back to his room and got a pistol, put it in his pocket, and returned to the store, taking the shoes. He went up to Reynolds, the salesman, and handed him the shoes, saying “here’s your shoes, I would like to have my money back.” Reynolds again rejected the request to exchange the shoes or refund the money, and a heated conversation ensued, in the course of which Williams, at least, lost his temper and cursed Reynolds. According to a State’s witness, there were “25 or 30” people present at the time. The argument continued unabated, with no progress either way until finally Williams turned to leave, telling Reynolds “all right, forget'about it, I’ll get it back.” When Reynolds asked how he would get it back, Williams, who had started to leave, turned around, pointed his pistol at Reynolds’ stomach, and said: “Like this.”

The upshot was that Reynolds accompanied Williams, at gun point, to the cash register, on which Williams placed his sales slip, and “told the lady” that he wanted “th^t much money, that’s my money.” Reynolds told her to give Williams the money and this she did, giving Williams the $25.15, requested, the amount shown on the sales slip, and which was the amount he had paid for the shoes. No attempt was made by Williams at any time to take anything else although, obviously, he could have done so if he had wished. As Williams left the store someone asked what was going on and he replied, “this is a take back.” He had at last succeeded in forcing the store to take the shoes back and return the money.

It is a fundamental principle of law in this state and elsewhere, that an intent to steal (commit larceny) is an indispensable element of the crime of robbery.

In Thomas v. State, 278 So.2d 469, 472 (Miss.1973) the Court said:

This Court has consistently reminded the Bench and Bar that specific intent to steal must be shown by the testimony in robbery cases.

The proof in this case shows beyond question that Williams on a number of occasions over a period of days had sought to return the shoes for exchange or for a refund of his money. There is no real dispute that he had been told when he bought them: “If they don’t fit, if they hurt your feet, if they tear up or anything goes wrong with them within a reasonable amount of time, bring them back, we will exchange them, fix them, or give you your money back.” There was implicit in this statement permission that Williams might try the shoes for “a reasonable amount of time.” When he laid the sales slip on the cash register and asked for “my money back,” and no more, he made no attempt to take anything else; the whole affair was open, public and took place as the culmination of a heated quarrel and clearly was the result of anger and frustration on part of a foolish and angry young man who felt that he had been grievously wronged. His actions may have been stupid and criminal, and he may have been in error on a point of law as lawyers (and even judges) sometimes are, but the evidence, rather than establishing an intent to steal the property of Jay’s Department Store actually negatives the existence of such an intent on the part of Williams.

For more than 100 years, from time to time, the Mississippi Legislature has enacted statutes dealing with the unlawful use of deadly weapons in cases other than those involving homicide, assault and battery with intent to murder and armed robbery. The acts of Williams in this case seem to fall more clearly within the contemplation of certain of these statutes, examples of which are quoted (in part) below :

97-37-19
If any person, having or carrying.any dirk, dirk-knife, sword, sword-cane, or any deadly weapon, or other weapon the carrying of which concealed is prohibited, shall, in the presence of three or more persons, exhibit the same in a rude, angry, or threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or qitarrel, the person so offending, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars or be imprisoned in the county jail not exceeding three months, or both.
(Miss.Code Ann. § 97-37-19 (1972)).
97-3-11
Any person who shall intentionally point or aim any gun, pistol, or firearm at or toward another, except in self-defense or in the lawful discharge of official duty, shall be punished by a fine of not more than five hundred dollars, or imprisonment in the county jail not longer than six months, or both; . (This statute was repealed, effective July 1, 1974, with a “saving clause” as to acts committed prior thereto).
(Miss.Code Ann. § 97-3-11 (1972)).
97-3-7
A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
(Miss.Code Ann. § 97-3-7 (Supp.1974)).

The above statutes appear to reflect a consistent legislative view that acts, such as committed by Williams in this case, while of a grave criminal character, are misdemeanors and properly punishable as such. On the other hand, armed robbery, the capital offense with which Williams was charged, defined by Mississippi Code Annotated section 97-3-79 (Supp.1974), clearly contemplates the action of a thief who acts with the deliberate design and intention of stealing the property of another, from his person or presence, by the use of a deadly weapon. At the time of the incident here involved the death penalty was authorized upon conviction of armed robbery. (The amendment of the above statute changed the maximum penalty from death to life imprisonment and was effective April 23, 1974).

The trial court granted an instruction authorizing conviction of Williams under Mississippi Code Annotated section 97-37-19 (1972). The record shows, too, that the district attorney made no objection to the granting of this instruction. It is not necessary, of course, to express any opinion in this dissent as to whether the giving of that instruction was proper under the indictment, although in my view simple assault may be a constituent included offense of armed robbery.

In a number of jurisdictions it has been held that the taking, by force or threats, of what is honestly and reasonably believed by the taker to be reightfully his, cannot be robbery because of the absence of larcenous intent.

There exists a division of opinion among the courts of this country. As to this, however, in People v. Gallegos, 130 Colo.Rptr. 232, 274 P.2d 608 (1954), the Colorado Supreme Court, sitting en banc, dealt with the subject. Gallegos was charged with aggravated robbery and, a jury having been waived, on motion of counsel for Gallegos at the conclusion of his trial, he was found not guilty on the ground that intent to steal had not been established beyond a reasonable doubt. From this action of the trial court The People appealed. The trial court’s action was affirmed by the Colorado Court. The opinion of the Court in Gallegos, supra, reflects the following:

The facts are not in serious dispute. Joe Gallegos was a sheepherder employed by one D. A. McPherson at a monthly wage of $180 with a provision that if he would take the herd of sheep onto the forest reserve and stay with them until fall, his wages would be $200 a month. Gallegos later quit his employment and demanded his wages upon the basis of $200 per month, and this led to a dispute with his employer.
Later, and during the same day of the dispute, defendant drew a gun and pointed it at his employer to enforce his demand, and McPherson, being “under force or intimidation,” complied. Whereupon, defendant departed. He later was arrested, and, as we have said, charged with aggravated robbery.
Our statute, section 84, chapter 48, ’35 C.S.A., provides, inter alia, “Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation.” It is undisputed that defendant used a gun in demanding and receiving a check for wages, the payment of which he honestly believed to be due him.
Counsel for defendant does not contend that in thus securing the payment of his wages no crime was committed, nor did the trial court so determine. The only question presented on this review is whether, under the facts, defendant was guilty of aggravated robbery as to which the trial court held him guiltless.
We are aware of the fact that there is a divergence of opinion in robbery cases, and in Moyers v. State, 186 Ga. 446, 197 S.E. 846, 847, 116 A.L.R. 981, there is a nicety of distinctions which we are disinclined to adopt in this jurisdiction. However, it is to be noted that in that case is the statement, “If the animus furandi is lacking in the taking, there can be no robbery. So our courts have held the taking of propery under a fair claim of right of title or possession does not constitute robbery.” Also it should be observed that in the Georgia case the word “fraudulent” is used in the definition of robbery, and its absence in our jurisdiction is to be noted.
It may generally be said that the offense of robbery is but an aggravated form of larceny, and, therefore, the intent to deprive an owner of his property and to convert it to the use and benefit of the accused is an essential element of the offense and must be established beyond a reasonable doubt by competent evidence. In the present case it is undisputed that the intent to steal is absent, and this being a substantive element in the commission of the crime of robbery, its absence precludes a successful prosecution therefor. The following are but a few of the decisions supporting the trial court’s action in the instant case: People v. Hughes, 11 Utah 100, 39 P. 492; Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764; Bauer v. State, 45 Ariz. 358, 43 P.2d 203; Johnson v. State, 24 Okl.Cr. 326, 218 P. 179; 46 Am.Jur., p. 145, sec. 13; 77 C.J.S., Robbery, § 22c, page 464; State v. Sawyer, 95 Conn. 34, 110 A. 461, 13 A.L.R. 139; Tipton v. State, 23 Okl.Cr. 86, 212 P. 612, 31 A.L.R. 1074; People v. Rosen, 11 Cal.2d 147, 78 P.2d 727, 116 A.L.R. 991.

(274 P.2d at 609-610).

In State v. Trujillo, 7 Or.App. 236, 489 P.2d 977, (1971), the Court dealt with the following factual situation. Trujillo, an employee of a store, was usually paid his wages on Friday. On the Friday evening preceding the robbery Trujillo was charged with having committed, the store manager informed him and other store employees that their checks would be delayed until Monday. The next day, Saturday, defendant appeared at the store three times, each time asking to speak to the manager about “getting his money.” On the first trip, about noon, he argued twenty minutes with the cashier, but left and was told that the manager would be in at 1:00. When he returned at 1:00 the manager had not arrived. Further argument with the cashier ensued. The cashier promised to ask the manager about defendant’s money. When the manager returned she left again without taking any action as to Trujillo’s wages. On his final return, Trujillo “argued or pleaded” at length with the cashier. It is undisputed that, not having gotten the money due him, Trujillo threatened the cashier with a knife, opened the cash register and, without counting it, took all of the money there was in it, except the coins, stuffed it in his pocket and walked out. At the conclusion of the trial, a motion to dismiss the armed robbery charge and submit the case on a lesser and included offense was denied. The Oregon Court, reviewed the matter and affirmed, stating:

The majority view as stated in an ALR Annotation is that the intent to collect or secure a debt, if under a bona fide belief that the taker is entitled to possession of the property, negates the requisite “animus furandi.” The few cases holding contrary are unpersuasive. In adopting the majority view, we note in particular the qualification that the defense is not available when more than is believed due is taken.
(489 P.2d at 979).

The Court then said:

It was established that $17.35 was due defendant from the store. [The cashier] testified that defendant took all of the money in the cash register, with the exception of $6 in coins, and that he did not count it as he took it.
(489 P.2d at 980).

There follows a discussion of the competency of certain evidence relating to the exact amount taken from the cash register by defendant. It appeared, however, that in any event the amount taken was considerably more than the $17.35 due the defendant for wages.

The Court, in affirming the conviction and finding the case not to come within the rule, said:

From the evidence related above we think that a reasonable inference can be drawn from evidence properly before the court that defendant took more than the sum due him, and that he had no intention of limiting himself to such sum as he took the money during the robbery.
(489 P.2d at 980).

This, of course, is the significant distinction between Trujillo and the case now before us.

In People v. Butler, 65 Cal.2d 569, 421 P.2d 703, 55 Cal.Rptr. 511 (1967), the Court said:

Although an intent to steal may ordinarily be inferred when one person takes the property of another, particularly if he takes it by force, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. ... [55 Cal.Rptr. at 514, 421 P.2d, at 706].

In the present case it is not suggested that Williams had a right, either legally or morally, to act as he did. On the contrary, Williams’ conduct was not only reprehensible in the extreme but constituted a serious criminal offense under applicable Mississippi statutes. On the whole record, however, the intent to steal Jay’s property was not established by evidence beyond a reasonable doubt. On the contrary the evidence negates such an intention. In that situation, the crime he committed was not robbery.

Obviously, no hard and fast rule can be enunciated in this area. Every case must be determined with reference to its own peculiar facts but it is foreseeable that cases in which the defense is available will be rare.

No case has been cited, and we have found none, where the circumstances were precisely, or closely approximated, the peculiar facts disclosed by the present record. Unanimity is lacking among the courts of this country as to the availability of the defense in cases where robbery is charged. In some cases holding the defense unavailable, the courts seemed to have proceeded as if defendants would escape all punishment unless the convictions of robbery were affirmed. The rejection of the defense seems to have been, principally, in cases involving unliquidated claims or where the evidence has left a factual question as to the existence of the intent to steal. Also, in some cases, the decision to affirm a conviction of robbery seems to have turned upon a feeling, implicit from the opinion, that since the act of the defendant was unlawful, violent and involved a danger to another, affirmance was justified as a matter of public policy. The fact that the defendant may have been guilty of a different offense, rather than that of armed robbery, for which he might have received appropriate punishment, seems to have received slight consideration in reaching the court’s conclusion. The view of the majority in this case seems to be compounded of all of the above factors. Even in those cases where the rule has not been followed, courts have not rejected or criticized the rule that, in order to convict of robbery, the existence of an intent to steal must be established by evidence beyond a reasonable doubt. There seems to be a tendency in some cases to consider that the “claim of right” to property taken, held by a defendant, must be viewed as a precise legal question and restricted to “legally enforceable rights,” and this seems to be the view adopted by the majority here. Elsewhere, however, it has been pointed out that “specific intent (to commit larceny) depends upon a state of mind” and not upon a precise and accurate interpretation of the relative legal rights of the parties at the moment.

In Thomas v. State, supra, this Court fully committed itself to the indispensability of proof beyond a reasonable doubt of an intent to steal in order to sustain a conviction of robbery. Thomas, however, presented no question of a claim of ownership or of entitlement on the part of the defendant to the property taken.

It appears that this Court has never before dealt specifically with the precise question now presented.

In Buchanan v. State, 5 So. 617 (Miss.1889), facts were stated as follows:

The lessor of land to Buchanan, the appellant, sold him two calves with the understanding that the title to the calves be retained by the lessor until same were paid for. Some dispute arose as to the debt due by Buchanan to his lessor. Buchanan nailed up his corncrib, which was broken open by lessor, and the corn appropriated, whereupon, after consultation with an attorney, he openly, and in the day-time, took the two calves, and sold them. Buchanan was then indicted for grand larceny, was convicted, and appealed.

The Court reversed and remanded saying:

Per Curiam. The motion for a new trial should have been sustained. If it be conceded that the calves had ever been delivered to, or were in the possession or custody of, Mrs. Poore, or her agents, Hawkins or Cockrell, it was shown, and not denied or contradicted, that appellant took the calves openly and publicly, in the day, in good faith, under a claim of right and title in himself. The testimony was not sufficient to convict of larceny. The felonious intent necessary to constitue larceny was not proved. 2 Bish.Crim.Law, § 851; McDaniel v. State, 8 Smedes & M. 401; Littlejohn v. State, 59 Miss. 273; Watkins v. State, 60 Miss. 323. (Emphasis added).
(5 So. at 618).

Whether Buchanan was guilty of some other offense such as selling property subject to a lien, was not decided. However, he was not, the Court said, guilty of larceny.

In Thomas v. State, 165 Miss. 897, 148 So. 225 (1933), the facts were as follows: Thomas was indicted for robbing at gun point one Minyard of a cow and yearling. The prelude to the robbery involved the ownership by Thomas of a “suck-egg” dog which had been going upon Minyard’s premises destroying eggs laid by his hens. Minyard shot the dog and killed it. When Thomas learned of this, he armed himself with a shotgun, confronted Minyard and ordered him to throw up his hands. In that position Minyard was searched by Thomas’ sons. Thomas ordered Minyard to pay him $20 or turn over to him a cow and yearling as damages for the killing of the dog. Unable to pay the $20 Minyard turned over to Thomas a cow and yearling which Thomas drove away to his home. Thomas was convicted of robbery and appealed.

The defense interposed was that of a failure to prove an intent on the part of Thomas to steal. This Court rejected Thomas’ contention and affirmed the conviction, saying:

It has been held that the rule that the taking under a claimed right is not robbery should not be extended so as to protect one who by force or intimidation collects unliquidated damages. The Supreme Court of Oklahoma in the Tipton Case, in discussing this question, used this language, in a prosecution for robbery, “where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated damages as compensation for an alleged felonious assault on the taker’s wife, such forcible taking may constitute robbery and does not come within the rule that the forcible taking and rentention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery.”
We are not called upon to decide in this case whether or not the collection by force or intimidation of a liquidated debt honestly believed to be due constitutes robbery, for a debt of that character is not involved. Here, if appellant had any claim at all against Minyard it was for unliquidated damages for the killing of his dog.

(165 Miss, at 903-904, 148 So. at 226).

The trial court should have sustained the motion made at the conclusion of the evidence that the jury be instructed peremptorily to return a verdict of not guilty of the charge of armed robbery.

Therefore, the conviction of armed robbery should have been reversed and Williams discharged upon that charge as laid in the indictment, to be held under the same appearance bond under which he had been at liberty during the present appeal, to await the action of the next grand jury of Bolivar County.

RODGERS, P. J., and PATTERSON and INZER, JJ., join in this dissent.


text:
    James L. WILLARD v. O. T. HILL et al.
    No. 48211.
    Supreme Court of Mississippi.
    Aug. 11, 1975.

      Darden & Sumners, New Albany, Charles A. Neale, Memphis, Tenn., for appellant.
    B. N. Knox, Jr., New Albany, for appel-lees.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice.

Defendant, James L. Willard, appeals from an order of the Circuit Court of Union County, Mississippi, overruling his motion to set aside default judgments entered against him and in favor of O. T. Hill and B. N. Knox, Jr., in one case, and T. J. Hill in the other case. In its order of January 30, 1974, the court found:

“[T]hat there has not been a sufficient showing of diligence on the part of the defendant and of a meritorious defense on the part of the defendant, and that the motion should therefore be overruled, . . . .”

The declaration of O. T. Hill and B. N. Knox, Jr., prepared and signed by B. N. Knox, Jr., Attorney, alleged that they orally leased 400 acres of land in Union County, to the defendant for the year 1972 for “standing rent of $4,000.00.” The declaration referred to a memorandum prepared by defendant Willard. The memorandum said:

“I James L. Willard agree to pay $4,0000 Dollars, for crop land
the govment pay will go own Bill.
and the first come off place goes own Rent, till the Rent is paid.
James L. Willard” [jtc].

The plaintiffs received a total of $1,903.-67 from government programs, which they applied on the rent leaving a balance of $2,096.33 unpaid.

The declaration of T. J. Hill, prepared and signed by B. N. Knox, Jr., Attorney, alleged that he had orally leased to the defendant 35 acres of crop land for 1972 for a total rent of $425, being at the rate of $25 per acre for 17 acres of feed grain lands.

Summons was issued in each case returnable before the circuit court on July 23, 1973, the first day of the July term, and personally served on defendant June 21, 1973.

Defendant did not employ an attorney but came personally to the court and was present in the courtroom all day July 23 and July 24, 1973. While defendant was present in the courtroom, on written motion of B. N. Knox, Jr. for judgment by default, the following judgment was rendered :

“The motion of plaintiffs for judgment by default having been sustained, it is therefore:
“Ordered and Adjudged that the plaintiffs, O. T. Hill and B. N. Knox Jr. do have and recover judgment against the defendant, James L. Willard, in the amount of $2,096.33, together with all costs herein and legal interest from date, for all of which let execution issue. ■
“Ordered and Adjudged this 24th day of July, 1973.”

A similar default judgment was taken in the T. J. Hill case for $425.

On July 31, 1973, while the July term of court was still in session, Willard filed a motion to set aside default judgments. His attorney, Charles A. Neale, attached his affidavit to the motion, which said, among other things:

“The affiant further states that defendant, acting on misunderstanding of what was due by him, did appear at the July, 1973 term of said Circuit Court of Union County, Mississippi, and was present on the first and second days thereof. Defendant expected to tell his own story about the case, that is, he expected to represent himself. He did not understand that written pleadings were required. His name and case were not called and he was not aware that his case had been heard and disposed of until after judgment was entered. Immediately upon finding this had happened he sought legal assistance. Defendant acted with diligence in seeking counsel, soliciting attorneys in Union County and even going to Ashland, Mississippi for help.
“Affiant was employed to represent defendant at approximately 1:30 p. m. on this date.
“The affiant avers that he has a good and meritorious defense to said cause, and he submits in support hereof his answer in this cause this day filed. The affiant charges that the default of the said defendant was not due to negligence on defendant’s part, and that the same was not due to a lack of regard for the Circuit Court of Union County, Mississippi, on his part, but that the same was due to his honest misunderstanding as to what was needed to make response to said process. Affiant further shows that the July, 1973 term of the Circuit Court of Union County, Mississippi, is still in session, and that the defendant is willing and ready immediately to proceed to trial in the cause, if the court shall allow and accept the answer of this defendant, so that the plaintiff shall not be delayed of his trial.
“This motion is not made for delay, but that justice may be done.” (Emphasis added).

The answer referred to in the affidavit, which answer was contemporaneously filed with the motion and affidavit on July 31, 1973, stated:

“Defendant admits plaintiffs own the said land but denies there -was any agreement for standing rent or fixed rent in the amount of $4,000.00 or in any amount. Defendant admits the agreement was oral and that it was the agreement of the parties that defendant was to pay a rent of $4,000.00, less credit for government payments and contingent upon the crop harvest, that is that plaintiffs would receive the first proceeds of the crop up to the balance of $4,000.00 and defendant would receive the remainder of the crop. There was no agreement to pay other than from crop proceeds. Defendant would show that due to no fault of his there was a total crop failure on this land.” (Emphasis added).

The court term was closed on July 31, 1973, the 8th day of a statutory 12-day term. Before the term was closed, the circuit court entered this order:

“Defendant having applied to the Court in term time to have the default judgment against him set aside and to allow him to answer the Court takes said matter out for vacation hearing on a date, time and place to be designated by the Court.”

A memorandum brief was filed by the defendant with the circuit court on January 8, 1974, 20 days before the January, 1974, term of court was scheduled to convene on January 28, 1974. The defendant outlined in his memorandum brief his frantic attempts to secure legal counsel:

“Prior to the default judgments taken against him, defendant had made a number of futile attempts to obtain legal assistance. The defendant sought the assistance of North Mississippi Rural Legal Services in Holly Springs. While Mr. John J. Brothers of that office conferred with defendant, his case was not accepted. ‘Exhibit A’ and ‘Exhibit B’ and defendant was referred to a private attorney, Mr. James O. Ford of Tupelo. Mr. Ford also consulted with defendant ‘Exhibit C’ but took no affirmative action pertaining to his defense other than to call the Oxford office of North Mississippi Rural Legal Services. Mr. Stanley L. Taylor of that office ‘Exhibit D’, because of prior committments was unable to accept defendant’s case. Defendant then sought to enlist the services of Mr. William R. Lamb of Oxford. Mr. Lamb made some telephone calls on defendant’s behalf, ‘Exhibit E’ but he too was unable to assist defendant. Defendant then sought to employ Miss Peggy Jones of Ashland, ‘Exhibit F’ who referred defendant to this firm on July 24, 1973.
“This firm accepted defendant’s case on July 31, 1973, when it became apparent that defendant would not be able to obtain any other legal aid.”

On January 28, 1974, the opening day of the term, approximately one hour before oral arguments on the motion to set aside were to be heard, appellees O. T. Hill, B. N. Knox, Jr., and T. J. Hill, filed a memorandum brief dealing solely with the issue of the jurisdiction of. the court. After oral arguments were heard, the court was of the opinion that Willard’s motion to set aside default judgments should be denied “not on the jurisdictional issue but on the discretion of the Court in regard to defendant’s diligence in protecting his right and seeking to employ counsel.”

On January. 29, 1974, the court heard the testimony of defendant Willard that the “war got” him while he was in the eighth grade; that he had gone to seven lawyers in seeking legal counsel, that the first he went to was Mr. Farese, who turned him down because he was going on vacation.

Miss Lela Garrison, circuit clerk of Union county, testified that she had written and given to defendant Willard the following note:

“Mr. Farese, a default judgment was entered this morning on these 2 cases but you can make a motion to set aside this judgment — so says the Judge — but it will have to be done before this court term is over.
Lela Garrison”

She stated that it was addressed to Mr. Farese because Willard “had made the statement he was going to see him and wanted to know what to tell him.”

In Alexander v. Hyland, 208 Miss. 890, 45 So.2d 739 (1950), the Chancery Court of Warren County refused to set aside a decree pro confesso and final decree. This Court, in reversing and remanding the case for a trial on the merits, said :

“The attitude of this Court has always been favorable to trials on the merits, subject, however, to certain limitations. We have, also, in some early cases been quite strict in requiring a motion of the kind involved here, to be accompanied by the answer of the defendant, or a showing why it could be done, and a prayer for further time. .
“ ‘But when the neglect is in the mere conduct of a suit, and its consequences do not operate injuriously, its condonation by the judge can do no harm except to deprive the adverse party of an advantage which he has secured in virtue of such neglect, and in that case the party guilty of the neglect should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of justice, not shackles to bind courts to the perpetration of wrong. When their nonobservance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause, the fault should be corrected, and the authority of the court maintained rather by the imposition of costs and the use of other disciplinary agencies than by depriving parties of the opportunity of a fair trial, to secure which such rules are instituted.
“ ‘It is true that diligence is to be encouraged and the want of it discountenanced, but these ends should never be attained by transferring to one suitor the estate of another, if there be other means of securing them. Nor should a lawsuit be allowed to become a mere game of skill and address, to secure to the successful litigant the fruits of his superior management.’ ”
208 Miss. at 894-96, 45 So.2d at 740-41.

In Alexander the Court also laid down a guide for the future in these words :

“However, it must be conceded that the preponderance of our decisions is to the effect that there must be more than an allegation of a meritorious defense,— there must be a showing of what that defense will be, for the consideration of the chancellor. So, as a guide for the future, and in order to harmonize our somewhat conflicting pronouncements on the subject of procedure in this behalf, we now lay down the rule to be that on a motion to set aside a decree pro con-fesso the affidavit and motion must set out not only that the defendant has a meritorious defense, but also sufficient details thereof so as to enable the judge to determine its meritoriousness vel non.”

208 Miss. at 899, 45 So.2d at 742.

The Court then closed out its opinion in Alexander by ruling:

“On the merits of the motion, we are convinced that the chancellor should have set aside the decree, and permitted appellant to answer, and continued the case until the next term of court, in order that the case be tried on its merits.”

208 Miss. at 899, 45 So.2d at 742-43.

In the case at bar, it is perfectly clear from the record that the defendant (a farmer all of his life and of very limited education) did all that he knew to do in his defense. He personally attended court all day on the first and second days of the July, 1973, term in response to the summons served on him. His name and case were not called, according to his attorney’s uncontradicted affidavit, and when he found out what was going on and that default judgments had been entered against him, he immediately sought counsel all over Union County and even in Ashland and Tupelo.

Both in his answer contemporaneously filed on July 31, 1973, with the motion to set aside and the affidavit, and in his direct testimony given on January 29, 1974, he stated the facts of his defense, which were that the lease contracts were oral, that he understood that it was a sharecropping contract where the plaintiffs O. T. Hill and B. N. Knox, Jr. would receive government payments to apply on the rent and that the remainder of the rent was contingent upon the crop harvest, and that the plaintiffs would receive the first proceeds of the crop until the rent was fully paid, and defendant would receive what was left. Willard, as a farmer and sharecropper all of his life, alleged in his answer “There was no agreement to pay other than from crop proceeds.”

We are of the opinion that justice requires that the defendant should have his day in court to present his defense, and that the circuit court was in error in finding that “there has not been a sufficient showing of diligence on the part of the defendant and of a meritorious defense . . . .”, and in refusing to set aside the default judgments.

The order of the lower court is reversed and this cause remanded for a trial on the merits.

Reversed and remanded.

GILLESPIE, C.J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


text:
    B. F. McKENZIE v. Mrs. James H. JORDAN et al.
    No. 48250.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Sebe Dale, Columbia, for appellant.
    James R. Hayden, Hattiesburg, for ap-pellees.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   Affirmed.


text:
    James C. BOGGAN, Petitioner, v. KAYBRO CONSTRUCTION COMPANY and Aetna Life and Casualty Company, Respondents.
    No. 46401.
    Supreme Court of Florida.
    June 23, 1975.
    Rehearing Denied Sept. 11, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    D & A EQUIPMENT COMPANY and U. S. Fidelity and Guaranty Company, Petitioners, v. Russell LONGACRE, Respondent.
    No. 46806.
    Supreme Court of Florida.
    June 24, 1975.
    Rehearing Denied Sept. 10, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Ray D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 46901.
    Supreme Court of Florida.
    June 24, 1975.
    Rehearing Denied Sept. 10, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    MAMBA ENGINEERING CO., INC. and U. S. Fidelity and Guaranty Co., Petitioners, v. Paul E. ANDERSON, Respondent.
    No. 46937.
    Supreme Court of Florida.
    June 25, 1975.
    Rehearing Denied Sept. 12, 1975.
   Certiorari denied.

ADKINS, C. J„ and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Mary Ann BLASCO et al., Petitioners, v. Margaret KRANTZ, Respondent.
    No. 46909.
    Supreme Court of Florida.
    June 26, 1975.
    Rehearing Denied Sept. 10, 1975.
   Certiorari denied. 305 S.W.2d 6.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ.; concur.


text:
    METROPOLITAN DADE COUNTY, Florida, et al., Petitioners, v. Diane DILLON, etc., Respondent.
    No. 46877.
    Supreme Court of Florida.
    June 26, 1975.
    Rehearing Denied Sept. 11, 1975.
   Certiorari denied. 305 S.W.2d 36.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    CITY OF ST. PETERSBURG and Niagara Fire Insurance Company, Petitioners, v. William H. MORRIS, Jr., and the State of Florida Industrial Relations Commission, Respondents.
    No. 46864.
    Supreme Court of Florida.
    June 30, 1975.
    Rehearing Denied Sept. 10, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

ENGLAND, J., dissents.


text:
    TRAFALGAR DEVELOPERS, LTD., etc., Petitioner, v. Nick MORLEY and Geneva Investment Limited, etc., Respondents.
    No. 46869.
    Supreme Court of Florida.
    June 30, 1975.
    Rehearing Denied Sept. 11, 1975.
   Certiorari denied. 305 So.2d 274.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    FLORIDA MORTGAGE FINANCING, INC., etc., Petitioner, v. FLAGLER PLAZA CORPORATION, etc., Respondent.
    No. 47128.
    Supreme Court of Florida.
    July 14, 1975.
    Rehearing Denied Sopt. 10, 1975.
   Certiorari denied. 308 So.2d 571.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


author: WALDEN, Judge. CROSS, Judge

text:
    Mary HORN, as Administratrix of the Estate of Cecil Westfall, Deceased, Appellant, v. I. B. I. SECURITY SERVICE OF FLORIDA, INC., a Florida Corporation, Appellee.
    No. 74-1006.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Rehearing Denied Sept. 18, 1975.
    Robert E. O’Neil, Tripp, Niles & O’Neil, Fort Lauderdale, for appellant.
    Richard A. Sherman, Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee.
   WALDEN, Judge.

Wrongful death action brought by Ad-ministratrix. Jury trial resulted in judgment for the defendant. Administratrix appeals. We reverse and remand for a new trial.

Erroneous jury instructions form the basis for our decision. They were:

“The issues for your determination on the claim of Cecil Westfall against IBI are: Whether IBI was negligent in the entrustment of the weapon to George David Lowe. And if you further find George David Lowe was negligent, whether such negligence of IBI and George David Lowe was a legal cause of the death of the decedent, Mr. Westfall.”
“Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.” (Emphasis added.)

The facts. Defendant employed West-fall and Lowe as security guards. Defendant entrusted Lowe with a revolver for use in the job.

While off the job and playing “quick draw”, Lowe shot and killed Westfall with the revolver, or with another which was missing from the job.

Please look back to the instructions. They clearly require as a basis for recovery four things:

1. A finding that defendant negligently entrusted the weapon to Lowe.
2. A finding that defendant’s negligent entrustment in 1 above was the legal cause (as defined) of Westfall’s death.
3. A finding that Lowe was negligent in the use of the weapon.
4. A finding that Lowe’s negligence in 3 above was the legal cause (as defined) of Westfall’s death.

It is the inclusion and imposition of number two requirement above that makes the jury instruction erroneous and causes us to reverse. For the owner of a firearm to be liable for injury negligently caused by the person to whom he has entrusted a gun, he need only be negligent in the en-trustment of that firearm. Langill v. Columbia, 289 So.2d 460 (3d DCA Fla.1974); see also Acosta v. Daughtry, 268 So.2d 416 (3d DCA Fla.1972); Brien v. 18925 Colline Ave. Corp., 233 So.2d 847 (3d DCA Fla.1970).

In Langill v. Columbia, supra, the court held there should not have been a summary final judgment for defendant, Wackenhut Security Corporation, when one of its off-duty security guards had shot and killed a man with a firearm provided the guard by Wackenhut. The court found there existed genuine -issues of fact as to whether Wackenhut negligently entrusted the weapon to its employee. The court held:

“[T]he owner of a firearm, a dangerous instrumentality, may be found liable for injury if there was negligence in the en-trustment of the firearm.” (Emphasis added.)

In this case, the additional requirement that the negligent entrustment, itself, directly and in natural and continuous sequence produced the death of Westfall constituted an almost impossible burden, particularly under the facts of this case. The jury instruction imposed a burden of proof on plaintiff that is erroneous under the law. As such, it is reversible error. See Bessett v. Hackett, 66 So.2d 694 (Fla. 1953); Ragland v. Clarson, 259 So.2d 757 (1st DCA Fla.1972); Pepin v. Retail Discount Association, 226 So.2d 145 (1st DCA Fla.1969); 32 Fla.Jur., Trial, § 163 (1960).

We reverse and remand for a new trial.

Reversed and remanded.

OWEN, J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge

(dissenting):

I respectfully dissent.

I agree the subject instruction given by the trial court is erroneous. However, the record on appeal contains no transcript of testimony of the trial proceedings, making it impossible to determine whether giving the erroneous instruction constituted harmful error. See City of Hialeah v. Robinson, 163 So.2d 523 (Fla.App.1964); 32 Fla.Jur., Trial § 165.

Accordingly, I would affirm the final judgment entered by the trial court.