text:
    Carey L. McBROOM, Plaintiff-Appellant, v. ARGONAUT INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6918.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Writ Refused June 11, 1979.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a suit for workmen’s compensation benefits filed by Carey L. McBroom, the employee, against Glen D. Loe, d/b/a Glen Loe Drilling Company, the employer, and his workmen’s compensation insurer, Argonaut Insurance Company. The essential issue presented on appeal is whether the trial court erred in holding plaintiff not entitled to recover compensation benefits for a permanent partial disability.

Both parties have stipulated to the fact that plaintiff was injured while in the course and scope of his employment as a roustabout with the Glen Loe Drilling Company in LaSalle Parish, on June 17, 1976. The evidence indicates that when plaintiff and his crew were tightening a winch mechanism, his right hand became caught in a cable, thereby crushing his ring and little fingers.

The insurer paid compensation benefits of $85.00 per week from the time of the accident until July of 1976, at which time benefits were terminated. The insurer also paid medical expenses in the amount of $2,563.82.

After the termination of benefits, plaintiff filed this suit on April 5, 1978, in order to recover benefits for total and permanent disability and for penalties and attorney’s fees. After trial, the trial judge found that plaintiff was suffering from a percent loss of function of the right hand. Since defendants had already paid the amount of benefits due under La.R.S. 23:1221(4), judgment was rendered in favor of defendants, rejecting plaintiff’s demands. Plaintiff appeals.

On appeal plaintiff contends that the evidence shows that he is unable to return to his former position as a roustabout and that he should be found partially disabled under La.R.S. 23:1221(3). He also reiterates his demand for penalties and attorney’s fees.

Under the amended provisions of La. R.S. 23:1221, relative to disabilities, an injured employee is totally disabled, either permanently or temporarily, only if he is incapable of returning to any type of gainful employment whatsoever, or although capable, he is unable to return to any type of gainful employment because of substantial pain. Simmons v. Louisiana Department of Transportation and Development, 368 So.2d 770 (La.App. 2nd Cir. 1979); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied 358 So.2d 645 (La.1978); Phillips v. Dresser Engineering Company, 351 So.2d 304 (La. App. 3rd Cir. 1977), writ denied 353 So.2d 1048 (La.1978); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); Leblanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied 351 So.2d 174 (La.1977).

On the other hand, if an injured workman cannot return to his former employment because of his injury, but can perform gainful work in another position, he is partially disabled. Kilbourne v. Armstrong, supra; Leblanc v. Commercial Union Assurance Company, supra. Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could work in other categories of jobs without experiencing such pain. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979); Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3rd Cir. 1979).

In the instant case, plaintiff bases his argument for partial disability on both the physical inability to return to work as a roustabout and the inability to return to work as a roustabout without experiencing substantial pain.

At the outset, we repeat what has been stated many times previously. Physical inability to return to work and inability to return to work because of substantial pain are questions of fact. A determination of fact will not be disturbed when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless such findings are clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The reason for this rule of appellate review relates to both the application of trial and appellate functions and to the trial court’s better capacity to evaluate live witnesses. As we stated in Conlay v. Houston General Insurance Company, supra :

“The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcription of testimony contained in the appellate record.”

We now turn to the specific evidence of this case.

Immediately following the accident, plaintiff was brought to a hospital in Urania, Louisiana, where he was seen by Dr. B. D. Doughty. After going to Doctor Doughty on several occasions, plaintiff decided to consult an orthopedist. He went to see Dr. R. J. Beurlot in Alexandria, Louisiana, who referred plaintiff to a hand specialist, Dr. Daniel C. Riordan, of New Orleans, Louisiana.

Doctor Riordan, who testified by way of deposition, described plaintiff’s condition as a flexion contracture of the ring and little fingers of the right hand. He explained that this condition was a result of a loss of skin on these fingers. When the fingers healed, the skin was short, and, as a consequence, the fingers could not be straightened. In addition, the nerves in the little finger were not functioning, and this resulted in atrophy of the finger. There was also diminished sensation in the ring finger.

To help rectify the situation, Doctor Rior-dan recommended a two stage surgical procedure. In the first stage, the little finger would be partially amputated, but the skin from the dorsal side (fingernail side) would be retained and sutured to the volar side (palm side) of the ring finger. After approximately three weeks, the second stage would be undertaken, in which the grafted skin would be detached from the little finger so that it would be attached completely to the ring finger.

Plaintiff undertook this surgery in January and February of 1977. In March of 1977, Doctor Riordan released plaintiff from his care. At that time, Doctor Rior-dan assigned a disability of fifteen percent to plaintiff’s right hand, which was based upon the fact that his little finger was amputated, and that there was a sensory loss and limitation in extension of the ring finger.

In January of 1978, Doctor Riordan re-examined plaintiff at the request of plaintiff’s counsel. At that time, the doctor discovered that plaintiff lost an additional range of motion in his ring finger, which he attributed to lack of exercise, and he re-assessed plaintiff’s disability in the hand from fifteen to eighteen percent.

Doctor Riordan was firm and unwavering in his opinion that plaintiff could return to his work as a roustabout. With regard to pain, the doctor stated that if plaintiff was experiencing pain, it was of limited intensity. He based this conclusion upon the fact that the area of the ring finger which plaintiff alleged was producing pain consisted of a portion of the grafted skin and that, consequently, it had a less than normal sensation. He thought that the sensory response in this area was insufficient to cause pain which would be disabling or which would prevent a roustabout from performing his duties.

Plaintiff testified that he worked intermittently since he left Doctor Riordan’s care. He stated that he initially returned to work as a roustabout for his former employer, but that most of his work at that time was on the ground and did not require him to climb, nor did his work involve the ordinary heavy labor generally expected of a roustabout. Plaintiff said that during his pei'iods of employment with the drilling company, he had complained of pain and of an inability to do the job to his father, L. C. McBroom, a “pusher” of the roustabout crew. He further testified that he left his employment after a short period of time, when it became apparent to him that he would be unable to perform adequately in his job. He admitted that he also had been employed with the Louisiana Pacific Company as a “grader” after the accident. However, he explained that he had to quit that position because it required him to grip plywood sheets which emerged from a machine. According to plaintiff, this exercise caused a cramp in his hand.

George McBroom, plaintiff’s brother and a co-worker of plaintiff, also testified. He stated that plaintiff was unable to perform the duties of a roustabout after his accident because, as a result of his injuries, he was unable to grab or hold onto anything. Plaintiff’s father, L. C. McBroom, was also used as a witness. He indicated that plaintiff complained constantly about his hand and that he was unable to adequately perform his duties as a roustabout. Another witness, Michael Williams, also a “pusher” for the roustabout crew, testified that plaintiff seemed to be performing his duties slowly, a fact which Williams attributed to the condition of plaintiff's hand. However, he also stated that plaintiff had no trouble in performing the duties of a roustabout and had made no complaints of experiencing pain while performing his customary duties.

The defendants sought to use the testimony of two lay witnesses at trial, however, after objection, their testimony was taken only under a proffer of proof. In his written reasons, the trial judge specifically stated that these witnesses did not contribute anything of significance to the case. In view of this, as well as the decision reached below, it is unnecessary to discuss the admissibility or significance of their testimony.

After our careful consideration of the evidence in this case, we fail to find error on the part of the trial court in holding that plaintiff failed to prove a partial disability. In his very thorough written reasons, the trial judge carefully discussed the testimony of each of the witnesses. Only after consideration of both the lay and medical testimony, did he conclude that the lay testimony in this case simply did not outweigh the medical testimony. He was correct in considering the lay and medical testimony together, and he was not in error by attaching more significance to the medical than lay testimony within the context of this case. Tantillo v. Liberty Mutua] Insurance Company, 315 So.2d 743 (La.1975).

Since plaintiff has received the maximum benefits to which he is entitled for his percent impairment of his right hand, the insurer was justified in terminating benefits when it did. Accordingly, the claim for penalties and attorney’s fees is without merit.

For the above reasons, the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Rufus PALOMBO et al., Plaintiffs-Appellees, v. Joseph BROUSSARD et al., Defendant-Appellant.
    No. 6953.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      McBride & Brewster, Norman P. Foret, Lafayette, for defendant-appellant.
    Cooper & Sonnier, Silas B. Cooper, Jr., John E. Ortego, Abbeville, for plaintiffs-appellees.
    Ronald E. Dauterive, Allen, Gooch & Bourgeois, Paul J. Breaux, Voorhies & Labbe, D. Mark Bienvenu, Lafayette, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suit for damages resulting from an automobile accident which occurred on March 19, 1976, on Louisiana Highway 14 between Abbeville and Kaplan, Louisiana. Plaintiffs, Mr. and Mrs. Rufus Palombo, were passengers in a Buick automobile owned and being operated by Francis La-chaussee, whose wife was also in the vehicle. While traveling on Highway 14, La-ehaussee’s automobile was run into by a vehicle owned and being driven by defendant, Joseph Broussard, who had failed to yield the right of way when the highway he was traveling on (La. Highway 343) intersected Highway 14. Broussard’s negligence was the sole and proximate cause of the accident. These facts are not in dispute.

Made defendants in the suit were: (1) Joseph Broussard, (2) Fireman’s Insurance Company — the liability insurer of Brous-sard’s automobile with a $10,000 per person/$20,000 per accident (10/20) coverage, (3) Bellefonte Insurance Company — liability and uninsured motorist carrier of the Pa-lombos, two policies each with 5/10 coverage, (4) State Farm Mutual Automobile Insurance Company — Liability and uninsured motorist carrier of the Lachaussees’ two automobiles (the Buick and a Chevrolet) under two separate policies, both with 25/50 liability and UM coverages.

Prior to trial, plaintiffs settled their claims against Bellefonte; Fireman’s settled with the Lachaussees for $7,500, leaving $12,500 (which was ordered paid to the plaintiffs by the trial court’s judgment). The only substantial issue on appeal, as it was in the trial court, is the amount of coverage that State Farm has available for the four injured persons.

It is not seriously disputed that all four individuals received extensive injuries as a result of this accident: State Farm’s adjuster, John Soileau, settled with the La-chaussees for $35,000 and admitted that the Palombos’ injuries were more serious, with Mr. Palombo being the most severely injured (the trial court determined that the plaintiffs were entitled to $69,809.44 from the defendants, excluding Bellefonte). As the tortfeasor had only the 10/20 Fireman’s policy, the four victims are entitled, under La.R.S. 22:1406 D, to turn to their own uninsured motorist (UM) insurance carriers for compensation (with the right of the UM carrier to seek reimbursement from the tortfeasor).

As mentioned above, the issue before this Court involves the amount of coverage State Farm has available for the injured. State Farm claims that since it settled with the Lachaussees for $35,000 from the 25/50 UM policy on the Buick (the car involved in the accident), there remains but $15,000 for the Palombos, which amount it tendered to the Palombos prior to trial, but was refused. The Palombos contend that State Farm acted unreasonably and in bad faith in its settlement negotiations in that it purposely stalled the plaintiffs so as to settle first with the Lachaussees. The importance of settling first with the Lachaussees was that the total amount of coverage available from State Farm for the Palombos was the 25/50 UM policy on the Buick, while there was up to $100,000 UM available to the Lachaus-sees (“stacking” the State Farm policies on their Buick and Chevrolet).

The actual circumstances surrounding negotiations are essential to resolving the legal issues and we take the liberty of quoting, at some length, the trial court’s factual findings (as set forth in its reasons for judgment):

“A little over six months after the accident, the attorneys for the plaintiffs conveyed a settlement offer to State Farm through its adjuster on this particular case, John Soileau, which would have required State Farm to pay $40,000.00 and they asked for a response within two weeks. At this time, only State Farm was aware of the fact that the Lachaus-sees’ second policy was applicable to the accident, at least in favor of the Lachaus-sees. The latter were “insureds” under the uninsured motorist provisions of both policies; both could be “stacked” in their favor. However, the Palombos were “omnibus insureds” only under the policy on the car involved in the accident and could not “stack” both policies. Thus, State Farm had coverage of $100,000.00 applicable to the accident; $50,000.00 was available to the Palombos under the Buick policy and $100,000.00 was available to the Lachaussees under both policies. At the time of the plaintiffs’ settlement offer to State Farm, which was below the limits of the Buick policy, the latter had received no offer from the Lachaussees. During this period, John Soileau made an evaluation of the injuries of all the parties. He concluded, and so informed his immediate superiors, that Rufus Palombo had the most serious injuries and valued his claim at approximately $50,000.00. The other parties’ injuries were valued at approximately $25,000.00 each. With all other parties still unaware of the second policy, State Farm opened up reserves of $100,000.00 on the two policies and instructed John Soileau not to settle with the Palombos until he had first settled with the Lachaussees. Soileau then contacted the Lachaussees and received a settlement offer of $60,-000.00. However, at no time during the settlement negotiations were the La-chaussees [] informed of the applicability of the second policy. Soileau testified that the Lachaussees did ask if the second policy were applicable but that he told them State Farm wasn’t sure because of a pending case on the issue, Seaton v. Kelly, 339 So.2d 731 (La.S.Ct.1976), which was ultimately decided on November 8, 1976. However, Seaton did not involve the question of whether someone such as the Lachaussees could “stack” their policies but involved the question of whether someone in the position of the Palombos could “stack” both policies. The court concluded that they could not since, under the language of the insurance contract (which is the same as in the instant case), guest passengers were only “omnibus insureds” under the policy covering the car involved in the accident. Hence, State Farm knew, and withheld [this knowledge] from the Lachaussees, that both policies could be “stacked” by the latter. State Farm told the Lachaussees that only $50,000.00 was available “for all four parties”. Concerned for the Palom-bos, their close friends for years, aware of their serious injuries and believing only $50,000.00 was available for all parties concerned, the Lachaussees settled their claims for $35,000.00. State Farm then tendered $15,000.00 to the plaintiffs, whose suit had been postponed at the request of John Soileau who was under specific orders not to settle with the Pa-lombos until he had settled with the La-chaussees. Thus, despite the fact that plaintiff offered to settle for an amount lower than the limits of the first policy, and lower than State Farm’s own evaluation of the claims, the latter refused to settle with the Palombos solely for the purpose of reducing the insurance funds available.”

The trial court went on to find that State Farm had owed a duty to the Palombos to act reasonably, fairly, and in good faith and that State Farm had breached its duty. Upon determining the extent of injuries suffered by the Palombos, it then held State Farm liable to them in the total amount of the policy ($50,000.00).

Upon appeal, State Farm argues that its method of settlement was proper and that only the remaining $15,000 of the Buick policy should be available to the plaintiffs.

We are unable to find legislation or jurisprudence in which the duty of a UM carrier to its insured is delineated. However, there are cases in Louisiana in which the duty of a liability insurer in circumstances similar to the instant case are set out:

“It is generally accepted that an insurer must carefully consider the interests of its insured, instead of only consulting its own self-interests, when handling and settling claims in order to protect the insured from exposure to excess liability. While the nature of the insurer’s obligations toward the insured is not clearly defined, this Court has recognized that a liability insurer owes its insured a minimum duty to act in good faith and to deal fairly.” Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1977).

In a UM situation, the insured is also the claimant so that the duty owed by the insurance carrier is not the same as the duty owed by a liability insurer to its insured. In the liability situation, the insurer must be careful, in settling a claim, to protect its insured from excess liability (as well as considering its own self interest). Here, such a problem does not arise, however the duty of reasonableness and good faith should still apply as owed by the insurer to the claimants-insured under the policy. While agreeing with at least one scholarly writing, that the effect of UM is to provide excess coverage for the tortfeasor, (but without a corresponding duty to him), the public policy behind acquiring UM coverage is not to protect the tortfeasor but to protect an innocent victim of an accident who is unable to obtain sufficient compensation from the tortfeasor.

When there are multiple claimants under a policy, a liability insurer may in good faith make reasonable settlements with some of the parties even if this has the effect of exhausting the insurance coverage to the prejudice of other claimants. Manieri v. Horace Mann Mutual Insurance Co., 350 So.2d 1247 (La.App. 4 Cir. 1977); Holtzclaw v. Falco, Inc., supra; Richard v. Southern Farm Bureau Casualty Ins. Co., 254 La. 429, 223 So.2d 858 (1969). We believe that this same duty should apply to settlement with claimants under UM coverage. What constitutes acting “reasonably” and “in good faith” in negotiating settlements with a claimant? Basically, one must look to the facts of the individual case. Here the trial court set out the facts as it found them (which findings we do not disturb, finding no reason to think them manifestly erroneous or clearly wrong). State Farm knew the extent of injuries suffered by the parties, and had a good estimate of the amount of compensation required. It knew the amount of coverage it had available to each individual, yet it did not convey to its insured this information (that all four persons were “insureds” under the express provisions of the Buick policy and the La-chaussees under the Chevrolet policy also). It stalled negotiations with the plaintiffs while requesting plaintiffs not file suit. After the judgment of the Louisiana Supreme Court in Seaton v. Kelly where it was established that a passenger (such as the Palombos) could not “stack” the UM coverage of a second automobile owned by the owner of the occupied automobile, State Farm knew that the maximum it would have to pay plaintiffs was $50,000 while the Lachaussees were still entitled to stack both of their policies to have a total of $100,000 available. Knowing this, State Farm, on November 22, 1976, settled with the La-chaussees, who the State Farm adjuster knew to be the less seriously injured couple, for seventy percent of the only policy available to the plaintiffs.

For this Court to call State Farm’s action “good faith” would be a mockery of those words. We note with interest the definition of “bad faith” from Black’s Law Dictionary which seems much more applicable to the present circumstances:

“BAD FAITH. The opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.”

Other persuasive definitions of “bad faith”:

“In its simplest form, bad faith means a breach of faith and a willful failure to respond to plain obligations.” Hernandez v. Employers Mutual Liability Insurance Co., 346 F.2d 154 (5th Cir. 1965). “Bad faith ... a designed breach [of the contract] . . . from some motive of interest or ill will.” La.Civil Code Article 1934(1).

Obviously State Farm engaged in practices which amount to “bad faith”. We have little difficulty in rejecting such practices as engaged herein by State Farm.

The amount of damages suffered by the plaintiffs was determined to be $69,809.44, which figure is not contested by State Farm on appeal.

For the foregoing reasons, the judgment of the trial court is affirmed, and all costs of this appeal are assessed against State Farm Mutual Automobile Insurance Company.

AFFIRMED.

      . Since the decision of the La. Supreme Court in Seaton v. Kelly, 339 So.2d 731 (La. 1976), the Palombos could not “stack” the State Farm policy on the Lachaussees’ Chevrolet.

      . Court of Appeal Footnote:
      The Lachaussees were not represented by counsel.

      . Legislative Symposium in 35 La.Law Rev. 618.

      . Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1968) wherein it was decided that a suit by an insured against his UM carrier is a suit ex contractu (and not ex delic-to) as is a suit against a tortfeasor’s insurance company under the La. Direct Action Statute.

      . 339 So.2d 731 (1976).

      . See Acts 1977 No. 623, Sec. 1 adding R.S. 22:1406 D(l)(c) which legislatively limits stacking.

      . Compare this to the definition of “good faith” given by Black’s:

      “GOOD FAITH. Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. . .


author: WATSON, Judge.

text:
    Harold Joseph BELLON et al., Plaintiffs-Appellees, v. Dr. Robert “Bobby” DESHOTEL et al., Defendants-Appellants.
    No. 7000.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Clanton & Johnson by John W. Johnson, Eunice, J. William Pucheu, Ville Platte and A. Bruce Rozas, Mamou, for defendants-appellants.
    Donald Soileau, Mamou, for plaintiff-ap-pellee.
    Tommy D. Teague, Baton Rouge, for plaintiff-intervenor-appellee.
    Before WATSON, CUTRER and SWIFT, JJ.
   WATSON, Judge.

The first issue presented by this suit is the validity under the United States Constitution of LSA-R.S. 42:31.1, specifically § B(2), which prohibits dual officeholding in the following language:

“No person shall at the same time hold more than one elective office in the government of the state of Louisiana, in the government of a political subdivision of the state, or in a combination of these.”

If the statute is constitutional, the second issue is its correct application.

LSA-R.S. 42:31.1, § C(2) provides:

“If the court declares that the person is holding offices in violation of this Section, the court shall declare the office whose term first will expire to be vacated and shall enjoin the person from further carrying out the duties of that office.”

The legislation was enacted pursuant to the mandate of Art. 10, § 22, of the La. Const, of 1974, which states:

“The legislature shall enact laws defining and regulating dual employment and defining, regulating, and prohibiting dual officeholding in state and local government.”

Plaintiffs, Harold Joseph Bellon and Russell Bertrand, asked for a declaratory judgment decreeing defendant, Dr. Robert “Bobby” Deshotel, to be in violation of the statute because of serving as a school board member of the Evangeline Parish School Board and at the same time as Mayor of the Town of Basile. Plaintiffs also prayed that the office of school board member of District 2, Ward 2, Evangeline Parish School Board, be declared vacant. The Attorney General of the State of Louisiana intervened as a party interested in upholding the constitutionality of the statute. Also intervening on behalf of Dr. Deshotel were three registered voters, Clement Courville, Conrad Marcantel and Wilfert LaFleur, who asked that the statute be declared unconstitutional, because it deprived them of the services of the candidate elected to the two offices.

The trial court concluded that the statute is constitutional; that defendant Deshotel violated it by holding the offices of school board member and mayor; and that the position on the school board was vacated when Deshotel took his last oath of office as mayor. Defendant Deshotel was ordered to return all compensation received after July, 1978, to the Evangeline Parish School Board and enjoined from performing any duties as a member of that board. The office of school board member for District 2, Ward 2, of Evangeline Parish was declared vacant.

The Evangeline Parish School Board was also named as a defendant but only Dr. Deshotel has appealed. He contends that the statute unconstitutionally deprives him of the fundamental right to hold public office. In the alternative, he contends that the office of mayor, rather than school board member, should be declared vacant under the terms of LSA-R.S. 42:31.1, § C(2), supra.

The facts are undisputed. Both the Town of Basile and the Evangeline Parish School Board are political subdivisions of the State of Louisiana. The effective date of the statute was August 17, 1977. Dr. Deshotel was appointed as a member of the Evangeline Parish School Board effective April 30, 1970. He was thereafter elected and took the oath again on January 1, 1971. He was elected Mayor of the Town of Ba-sile and took office July 1, 1974. He was subsequently reelected to a six year term on the Evangeline Parish School Board, taking his oath on January 17, 1977. He ran for mayor without opposition and took the oath of office on July 1,1978. Dr. Deshotel now holds both offices. His term as mayor expires July 1, 1982, and the term on the school board expires on January 17, 1983. The term of office as mayor will first expire. However, the trial court concluded that Dr. Deshotel vacated his office on the school board when he took his last oath as mayor and therefore declared the school board office vacant.

It was stipulated that both plaintiffs are residents and taxpayers of the Town of Basile and District 2, Ward 2, of the Evangeline Parish School Board. It was further stipulated that the town had 1,283 registered voters in 1974, and 1,166 in 1978, while the school board district had 2,151 voters in 1971, and 1,601 in 1977.

Dr. Deshotel testified that he was aware, when he commenced his current term as Mayor of Basile, that the dual officeholding statute had been enacted. He said that there was no conflict in the duties of the two offices. If forced to choose, he would select the office on the school board, which he considered more important. Dr. Desho-tel is a physician in Basile and the only one within an area of approximately thirteen miles. Dr. Deshotel said that the mayor’s job only requires two or three hours a month and the school board three to five hours a month.

The right to hold public office is not a fundamental right guaranteed by the Constitution of the United States. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Morial v. Judiciary Com’n of State of La., 565 F.2d 295 (5th Cir., 1977). State action which denies the right to state political office is permissible unless it is based on an invidious discriminatory classification. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). A state may give the right to hold state office to some and deny it to others if the distinction is based on a rational state interest. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). There is a presumption of statutory validity and such a statutory classification will be upheld unless it is completely without justification. McDonald v. Board of Election Com’rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

A West Virginia statute prohibiting dual officeholding was held to be constitutional in Wilson v. Moore, 346 F.Supp. 635 (1972). Wilson followed Snowden v. Hughes, supra, in holding that an elective post in state government does not constitute property or liberty protected by the due process clause of the Fourteenth Amendment. The court in Wilson judged the statute under the “rational basis” test and concluded that it did not deny equal protection. Compare Antonio v. Kirkpatrick, 453 F.Supp. 1161 (Mo. 1978). Cummings v. Godin, 377 A.2d 1071 (R.I.1977) involved a prohibition against public employees running for elective office, a different situation from that here.

The State of Louisiana has a legitimate interest in preventing one person from holding multiple public offices. Even if the duties do not conflict, the consolidation of governmental functions in a single person could adversely affect freedom of expression by others. A pyramid of power, even one resulting from the elective process, should be avoided. It is apparent that the statute in question has a rational basis and does not deny equal protection of the law. As the dissent in Cummings, supra, correctly points out, a prohibition against dual officeholding does not infringe on the right to freedom of speech protected by the first amendment. LSA-R.S. 42:31.1, § B(2) does not interfere with Dr. Deshotel’s constitutional rights.

Therefore, LSA-R.S. 42:31.1 is a valid statute, not violative of the United States Constitution.

However, the trial court erred in its application of the statute. It is the office of mayor, not that of school board member, which expires first. Under the language of LSA — R.S. 42:31.1, § C(2), supra, the office of mayor should have been declared vacant.

For the foregoing reasons, the judgment of the trial court herein is affirmed insofar as it declared LSA-R.S. 42:31.1 to be a valid and constitutional enactment. The judgment of the trial court holding that Dr. Robert “Bobby” Deshotel is in violation of LSA-R.S. 42:31.1 by simultaneously holding the elective offices of school board member and Mayor of the Town of Basile is also affirmed. The judgment of the trial court declaring the office of school board member for District 2, Ward 2 of the Evangeline Parish School Board vacant and ordering return of all compensation received by Dr. Deshotel after July, 1978, to the Evangeline Parish School Board is reversed. Insofar as defendant was enjoined from performing his duties as school board member for District 2, Ward 2 of the Evangeline Parish School Board, the judgment of the trial court is also reversed.

It is ordered, adjudged and decreed that the office of Mayor of the Town of Basile is hereby declared to be vacant and defendant, Dr. Robert “Bobby” Deshotel, is hereby enjoined from performing any official acts or duties as Mayor of the Town of Basile.

It is further ordered that all allowances or other compensation received by Dr. Deshotel as Mayor of Basile after July 1, 1978, to date, be returned.

All costs of appeal are assessed equally against plaintiffs and defendant.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: BROOM, Justice,

text:
    DAMSON OIL CORPORATION v. SOUTHEASTERN OIL COMPANY, Fairchild Construction Company, Ltd. and Marion Corporation.
    No. 51073.
    Supreme Court of Mississippi.
    April 4, 1979.
    Leslie H. Southwick, John M. Grower, Brunini, Grantham, Grower & Hewes, Jackson, for appellant.
    Heidelberg, Woodliff & Franks, Luther M. Thompson, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Oil well drilling permits (pooling adjacent 40-acre tracts) proposed by competing petitions before the Mississippi Oil & Gas Board (the Board herein) are at issue. Damson Oil Corporation (Damson herein) appeals the circuit court’s reversal of the order of the Oil & Gas Board which order canceled a drilling permit issued to appellee, Southeastern Oil Company (Southeastern herein) to drill on an 80-acre unit consisting of the SW-Vi of SW-Vi of Section 22, Township 7 North, Range 17 West, in Wayne County, and the SE-Vi of SW-Vi of said section. In addition to canceling Southeastern’s permit, the Board awarded Damson a permit to drill on an 80-aere tract consisting of the SW-Vi of SW-Vi of said Section 22, and the adjacent NW-Vt of the NW-V* of Section 27. The 80-acre units are herein designated as AB (granted Damson by the Board), and AC as proposed by Southeastern which proposal was ordered by the Circuit Court of Wayne County, reversing the Board’s order.

Southeastern began the litigation by filing with the Board its application for a Tract AC drilling permit, which the Board approved. Southeastern’s application (Form 2) did not indicate (as called for in the instructions on its reverse side) the fact that a dry hole had previously been drilled on Tract C of the proposed AC unit. Southeastern owned virtually all the working interest in Tract C but owned only three-tenths of one percent (.003) of the working interest in Tract A and none in Tract B. Attached as Appendix A is a map representing the tracts in issue, proposed well sites, and the surrounding area. Southeastern’s proposed well site is identified on the appendix map by the small circle in Tract A, and Damson’s proposed well site is identified as “Proposed location” on Tract B.

The Mills-Cochran Well (in Tract C as per Appendix A) is a dry hole which was drilled over ten years before Southeastern filed its application (which made no notation of the dry hole). Shown also on Appendix A is the probable productive limits of the field, indicated by the dotted line running in a north-northeasterly direction pointed out by an arrow just to the left of the language “Probable Productive Limits,” which dotted line runs through the Mills-Cochran Well site.

Damson, upon learning of the issuance of the drilling permit, filed a petition with the Board not only to revoke Southeastern’s AC permit but also to obtain for Damson a drilling permit for the AB tract by force-pooling all the interests of all the owners of the AB tract under the force-pooling statute, Mississippi Code Annotated Section 53-3-7 (1972). Damson, in its petition, argued that Southeastern’s AC permit was issued in violation of the pooling statute, as there were separately owned tracts within the 80-acre unit whose owners had not agreed to pool their interests. In response to Damson’s petition, the Board conducted a hearing on February 16, 1977, to determine whether Southeastern’s permit to drill should be revoked and, if so, which one of the parties should be awarded its force-pooling drilling permit (Unit AC or AB).

Geologist Harold Karges, Southeastern’s expert, testified at the hearing before the Board that, in his opinion, the AC unit sought by Southeastern would better protect the co-equal and correlative rights of all the parties. Damson’s expert, Geologist Wood, testified in. favor of Damson’s proposed AB unit.

The Board, in its decision, accepted Damson’s argument and canceled the drilling permit previously issued to Southeastern on the ground (among others) that Southeastern’s unit would pool acreage proven unproductive in the eastern half of its proposal, and would not protect the equal and correlative rights of all owners of interests in the separately owned tracts. At the same time, the Board, upon Damson’s petition, awarded Damson a permit to drill under Tract AB, and force-pooled all interests in the eighty acres of AB, noting that Damson owns or represents approximately ninety-three percent of the drilling rights in the AB unit.

Southeastern appealed to the Circuit Court of Wayne County which reversed. Damson appeals here from the circuit court order contending that the Board properly canceled Southeastern’s permit for the AC unit, and that the circuit court erred in reversing the Board’s order. Damson asserts that the Board properly canceled Southeastern’s permit on the ground that under the permit separately owned tracts would have been pooled without notice and hearing. Accordingly, Damson says the circuit court erred in reversing the Board’s order which granted Damson the AB permit. The applicable portion of the pooling statute is as follows:

§ 53-3-7. Integration of interests; pooling agreements and orders.
(a) When two or more separately owned tracts of land are embraced within an established drilling unit, the person owning the drilling rights therein and the rights to share in the production therefrom may validly agree to integrate their interests and to develop their lands as a drilling unit. Where, however, such persons have not agreed to integrate their interests, the board may, for the prevention of waste or to avoid the drilling of unnecessary wells require such persons to integrate their interests and to develop their lands as a drilling unit. All orders requiring such pooling shall be made after notice and hearing, and shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense. (Emphasis added.)

This portion of the statute has been implemented by the following portion of Oil and Gas Board Rule 4:

(a) Before any person shall commence the drilling of any well in search of oil or gas, such person shall file with the Board on Form 2 his application for a permit to drill accompanied by a certified plat and by a fee of $100.00 payable to the State Oil and Gas Board. When two or more separately owned tracts of land are embraced within the unit for which the permit is sought, the application shall affirmatively show that owners of drilling rights in all such tracts have consented to the drilling of the well. ... If the application complies in all respects with the rules and regulations of the Board relating thereto, a permit shall be issued promptly by the Supervisor.
If the application for permit does not comply in all respects with the rules and regulations of the Board relating thereto, said application shall be disallowed, and the Supervisor shall promptly notify the applicant of the reason or reasons for said disallowance. (Emphasis added.)

In support of its argument, Damson argues that Southeastern could not pool the two forty acre tracts under common law cotenancy principles. Damson concedes that one cotenant may exploit the common minerals without the consent of other co-tenants. Anderson v. Butler, 203 Miss. 512, 35 So.2d 709 (1948). Damson further argues that the two forty acre tracts, A and C, had “separate ownership” under the common law dealing with cotenancy. The argument is based on the fact that although Southeastern has an undivided interest over the entire proposed eighty acre AC unit, the cotenants as to Tract A differed from the cotenants in Tract C. Although Southeastern could have drilled on either of the forty acre tracts (A or C) without the consent of the remaining owners of that one tract, says Damson, they could not pool them both and produce jointly from one well without consent of all cotenants.

According to Damson, under the common law principle that a cotenant is entitled to a proportionate share in the minerals which he owns, pooling would affect his proportion of that share. In its brief Damson asserts: “For example, if one individual owns an undivided one-half mineral interest in one forty acre tract that is pooled with an adjacent forty acre tract in which that individual owned no minerals, his interest in any production from the entire drilling unit is one-quarter.” Therefore, according to Damson, such an individual cotenant does not have the right to reduce another coten-ant’s interest from one-half to one-quarter without the required notice and hearing under the statute.

Southeastern asserts, to the contrary, that Damson’s analysis is invalid because it is based upon the faulty premise that the common property is not the eighty acre production unit established by the special field rules. In its brief, Southeastern contends:

We are not here considering two separate forty acre tracts, but one eighty acre tract, which is the only size drilling unit allowed. Considering the tract as a whole, which must be done, Southeastern is a cotenant with every other party within the tract as to all lands within the tract. Furthermore, considering the tract as a whole, it is the majority interest owner.

We cannot accept the argument of Southeastern in this regard, that its ownership of an undivided interest throughout the entire tract takes the property out from under the pooling statute. Our view is that there are separately owned tracts within Tract AC as contemplated by § 53-3-7, supra, and Board Rule 4. When Southeast-era filed its petition, Tract AC was two separate tracts even though they were contiguous. Southeastern contends that when the Board in this case established eighty acre spacing, the effect was to erase traditional governmental forty acre survey lines insofar as “separately owned tracts” are concerned. Although such an interpretation of “separately owned tracts” may seem to have a measure of technical logic, our conclusion is that on the facts of this case (as to the minerals), there are two “separately owned tracts” within the AC area. Therefore, foree-“pooling” them under § 53-3-7 requires “notice and hearing” which was not done when Southeastern applied for its AC permit. It follows that Southeastern, confronted with “separately owned tracts” in the eighty acres comprising its proposed AC unit, is not administratively entitled to a drilling permit without adhering to notice and hearing under Mississippi Code Annotated § 53-3-7(a) (1972). There being: (1) separately owned tracts of land within the proposed AC unit, and (2) failure of the owners of these separate tracts to agree to the formation of the unit, Southeastern should not have been granted the AC permit. We conclude that the Board’s cancellation of Southeastern’s permit on the basis that separately owned tracts existed within Tract AC was with justification and not arbitrary or capricious.

Next, Damson contends that the Board properly approved its application for a drilling permit after canceling Southeastern’s permit. As to this issue, Damson cogently makes three contentions:

1. Southeastern’s AC unit “would not protect the co-equal and correlative rights of all owners of interest in the separately owned tracts and would result in the drilling of unnecessary wells.”
2. The AB unit proposed by Damson should be approved and, in order to prevent waste and avoid the drilling of unnecessary wells, force integration should be granted.
3. The owners of a larger percentage of the drilling rights in Tract A have consented to Damson’s AB unit than have consented to Southeastern’s AC unit.

Damson correctly asserts that even the testimony of the Southeastern petroleum geologist indicated Southeastern’s AC unit would include within its boundaries substantial acreage not underlain by oil or gas. At best, according to the testimony, twenty-five to thirty acres of the proposed AC unit is not underlain by producible quantities of oil and gas, and this incorporation into a drilling unit of substantial non-productive acreage will dilute the rights of the owners of the productive acreage. Furthermore, if the proposed AC unit were approved, then to pool Damson’s B forty with the forty acres directly to the east would also incorporate substantial acreage not underlain by producible minerals, thus diluting the interests of the owners of the B forty.

Southeastern, in reply, asserts that “the only testimony in this record concerning co-equal and correlative rights is that of Mr. Harold Karges.” When Karges was asked his opinion as to whether the co-equal and correlative rights of all parties in interest would best be protected by the unit proposed by Damson or the unit for which the permit has already been issued to Southeastern, he replied: “In my opinion, the rights of all parties involved would be best protected by the granting, or the continuation of the permit as issued to the Southeastern Oil Company rather than Damson.”

Michael Wood, geologist for Damson, testified that he did not agree with the map presented by Karges. On the contrary, oil had moved through the area but was no longer present, from an analysis of the Mills-Cochran well. Wood testified that: “It would be my judgment that that would be considered a high risk proposition to state there was oil in that vicinity of that bore hole.”

Confronted with conflicting expert testimony (as is often the case), the Board found:

[Tjhat the unit proposed by Southeastern Oil Company would pool acreage proven unproductive in the SE-Vi of the SW — Vi of said Section 22 by a dry hole drilled thereon to a sufficient depth to test the producing horizons of the subject field, and that said proposed unit would not protect the co-equal and correlative rights of all owners in interest in the separately owned tracts included in said unit and would result in the drilling of unnecessary wells.

Damson correctly points out that pooling of productive acreage with unproductive acreage dilutes the rights of the owners of interests in the productive acreage. Southeastern answers that Damson established the special field rules for the field and included the eastern half of the proposed Southeastern unit within the area covered by the special field rules, which is indicative of the fact that Damson must have considered this acreage to contain producible hydrocarbons. Faced with the competing petitions of the parties and the complicated geological aspects of the surrounding area, the Board was called upon to decide the issues raised. We hold that the Board’s finding, that the AC unit proposed by Southeastern would not protect the coequal and correlative rights of the parties in interest and would result in the drilling of unnecessary wells, was made upon substantial evidence. It cannot be said, therefore, that the Board erroneously canceled Southeastern’s AC permit or that it erroneously approved Damson’s application for its AB drilling permit.

It follows that the circuit court erred in finding that there was insufficient or unsubstantial evidence supportive of the Board’s order in favor of Damson.

The applicable standard for judicial review is:

[T]he Court to which the appeal is taken shall only inquire into . . . whether or not its decision is supported by substantial evidence or is arbitrary or capricious, or beyond the power of the Board to make, or whether it violates any constitutional right of the complaining party.

California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542 (1946). See also, State Oil & Gas Board v. Mississippi Mineral & Royalty Ass’n, 258 So.2d 767 (Miss. 1972).

Contrary to the applicable standard, the circuit court in effect conducted a trial de novo on issues initially raised before the Oil & Gas Board, and substituted its own opinion in place of that of the Board. Southeastern’s argument (that the invalidation of its previously issued permit by the Board on the grounds that part of the unit contains unproductive acreage is inherently arbitrary) is without persuasion upon the record as made. The court stated its basic reason for reversing the Oil & Gas Board as follows:

As in court proceedings, the burden of proof in this controversy is on the party seeking to have the drilling unit changed. (Damson). In the opinion of this court the evidence presented by the record simply does not meet this burden and it does not constitute a good cause to alter the unit and cancel Southeastern’s previously approved permit.

Presented by the record was a complicated set of facts, but the circuit court failed to properly apply the substantial evidence test, which here requires “the acceptance of the factual conclusions of the Oil & Gas Board.” This is true because the Board’s conclusions were at least based upon substantial evidence. It follows that reversal is required, and the order of the Oil and Gas Board is reinstated.

REVERSED, AND THE ORDER OF THE OIL AND GAS BOARD REINSTATED.

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

Appendix to follow.

      . The Board’s rules were not actually put in the record but Rule 4 appears in the briefs on file without dispute.


author: WALKER, Justice, BROOM, Justice, PATTERSON, Chief Justice,

text:
    William H. MORGAN v. STATE of Mississippi.
    No. 50967.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 16, 1979.
    Terry L. Jordan, Thomas L. Booker, Jr., Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Special Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Neshoba County, Mississippi, wherein William H. Morgan was convicted of aggravated assault on a fireman. From that conviction and sentence of fifteen years in the custody of the Department of Corrections, he prosecutes this appeal. We reverse.

We would first point out that the evidence in this case as to criminal intent was extremely close and has given this Court much concern. Moreover, there is a serious question concerning the verdict itself. When the jury returned its verdict into open court, the jurors were polled and the following exchange took place between the court and Prentiss Boone, one of the jurors:

COURT: Is this your verdict? Yes.
BOONE: I guess so. . . .1 did not want to be the one to hang the jury.
COURT: Do not say anything else. Is this your verdict?
BOONE: Yes.

The court accepted the verdict of “guilty” and discharged the jury. Subsequently, defendant filed his bill of exceptions to include the above exchange in the record and he made a motion for a mistrial and a motion for leave to inquire of the juror pertaining to his answer during the polling of the jury, both of which motions were overruled.

We are of the opinion that when the individual juror expressed a doubt as to whether he was voting his convictions in response to the instructions of the court or whether he was voting the way he did, contrary to his convictions, so as not to be unpopular with his fellow jurors, the judge should not have cut the juror off from expressing his feelings. The judge should have allowed the juror to express himself and then inquired whether the juror desired additional time in which to consult with his fellow jurors, or he could have declined to poll the jury further and returned the jury for further deliberation. In either event, additional instructions appropriate to the circumstances could be given if requested by the attorneys in writing or if deemed necessary by the court.

We are of the opinion that the questionable verdict in this case requires us to rule that no verdict either of acquittal or conviction was reached and that the case must be tried anew.

By our holding, we are not saying that a dialogue between the court and jury is to be encouraged except in those unusual circumstances such as the one presented in this case. Ordinarily, as little verbal exchange as possible initiated by the jurors is desirable.

For the foregoing reasons, the judgment of the lower court is reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED.

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

PATTERSON, C. J., and BOWLING, J., specially concur.

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

BROOM, Justice,

dissenting:

With deference and reluctance, I must express my feelings about this unusual case which the majority has voted to reverse on a matter usually left to the discretion of the trial judge.

In addition to the facts set out in the majority opinion, I think that there are other facts equally noteworthy. An altercation developed between Morgan and a fireman named Coleman as to whether Morgan should go into the “Sporthouse” which was on fire. Fireman Coleman testified that Morgan grabbed the fire chief’s light and started to enter the building when Coleman told him, “Wait a minute . let us go in there,” whereupon Morgan became violent. Other testimony was that Morgan hit Coleman on the cheek with his fist and cursed him. According to the testimony, not only did Morgan then threaten to kill Coleman, but actually hit him with a pistol, necessitating Coleman’s hospitalization for several days. Coleman’s attending physician, Dr. Bondurant, testified that Coleman was lacerated on his forehead and his skull was fractured to some degree. Morgan’s version was that he was trying to save his friend, one “Pieshot,” whom Morgan thought was inside the burning building, and that Fireman Coleman was the aggressor in the affray. He admitted that he was armed with a Magnum pistol but denied using it.

Upon such conflicting testimony, the trial jury accepted the state’s version and convicted Morgan, which I believe it had a right to do. The majority opinion seems to be based in part on the premise that the evidence “was extremely close.” My careful study of the record indicates that the evidence at least preponderates in favor of the state, and, in any case, raised a classic jury question.

The majority opinion quotes a dialogue between a juror and the court, which occurred when the court polled the jurors. Sitting as Monday morning quarterbacks, we at the appellate level may reflect that had we been presiding, we would have acted differently, but the actions of the trial court, in my judgment, did not rise to reversible proportions. The correct rule stated in 25 A.L.R.3d 1149, § 2[b] (1969), is that:

[Cjourts have generally held that any defect in a verdict which was given subject to a juror’s conditional assent was cured where the juror, on further questioning, removed the condition and assented to the verdict.

That same authority, in § 4 at page 1157, states:

Where a juror answered “I reckon so” to the question whether the verdict of guilty was his, but on further questioning he stated that the verdict was the verdict of the jury and that he agreed to it, the court, affirming a conviction in Martin v. State (1929) 23 Ala.App. 281, 124 So. 392, cert. den. 220 Ala. 149, 124 So. 393, held that although the first answer was evasive, the trial judge was fully authorized to find that the verdict represented the juror’s convictions.

In my view the real issue before this Court is: Did the trial judge manifestly abuse his discretion when confronted with the juror who indicated some concern about the verdict? In response to the last question of the court, the juror gave a positive, unequivocating, and unambiguous answer, “Yes,” indicating that the guilty verdict was his verdict. Whatever reservation the juror initially had about the verdict, there was none indicated by the last words uttered by him. Yet the majority has held that the trial judge committed reversible error by not inquiring further as to the feelings of the juror. It escapes me how, on this record, it can be said that the trial judge abused his discretion in accepting the verdict of guilty.

There is another aspect of this case which I think should be discussed — it pertains to Morgan’s request for a jury instruction on The instruction requested by Morgan was faulty because it included language that the presumption of innocence “stands as a witness for the defendant, proclaiming to you throughout the trial . . that the defendant is wholly innocent . . . and . it is your sworn duty to listen to this witness . . . .” Instructions of this nature have been condemned by this Court a number of times and we cannot say that the trial court erroneously rejected it. Carr v. State, 192 Miss. 152, 4 So.2d 887 (1942). the presumption of innocence.

According to the record, when the trial court rejected the presumption of innocence instruction, neither the defendant, the prosecution, nor the court offered or suggested a correctly worded instruction on the presumption. Had the defendant, Morgan, requested a proper instruction on the subject, it is very likely that the court would have granted it, or would have permitted him to modify the refused instruction. The question arises, whether or not, upon the facts presented in the instant case, it was the affirmative duty of the trial judge, though not requested, to give a correct instruction on the presumption of innocence. This situation was somewhat foreshadowed by Newell v. State, 308 So.2d 71 (Miss.1975), where we held that the trial judge “shall not be put in error for his failure to instruct on any point of law unless specifically requested” to do so. The record in the instant case presents the anomalous situation in which a faulty instruction was actually requested (but rejected) and no correct instruction sought on the subject, resulting in the jury not being instructed on the presumption of innocence even though the court was requested to instruct on the subject.

It appears to me that we should speak to the question: What is the duty and responsibility of a trial judge when confronted with the dilemma created by failure of the prosecution and defense counsel to request a correct instruction on the presumption of innocence? Under our past practice, the trial judge could have rightly concluded (as it appears he did) that he could not give an instruction on the presumption unless a correct instruction were requested in writing. Because such has been the practice and philosophy in past years, I would not reverse in this case for failure on the part of the trial judge (who followed past practice) to grant an instruction on the presumption of innocence. Nevertheless, I think it appropriate to call to the attention of trial judges and prosecutors that care should be taken in the future to see that jurors are properly instructed on the presumption of innocence.

The importance, status, and history of the presumption of innocence in American and English jurisprudence is cogently set forth in Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1894). Coffin states:

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. .
[Tjhis presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman

Morgan’s conviction here was appropriate because credible evidence accepted by the jury established that he: (1) was armed with a pistol absent any justifiable reason being shown; (2) interfered with firemen trying to do their duty; (3) refused to obey them; (4) cursed a fireman; and (5) brutally wounded Fireman Coleman with the pistol. Reversal is ordered because the trial judge accepted Juror Boone’s word (“Yes”) that the verdict was indeed his verdict. The trial judge was there where he could (but we cannot) observe the expression on the juror’s face, hear the tone of his voice, and scrutinize his demeanor. My studied opinion is that the judge acted within his sound judicial discretion in accepting the jury verdict, but the majority holds that the judge should have “inquired whether the juror desired additional time in which to consult with his fellow jurors . . . .” In so holding, the majority has substituted its judgment for that of the trial judge and usurped a function which belongs to him. The majority has presumed the trial judge’s action was wrongful. Previously the rule has been that action of a trial judge is presumed to be correct unless manifestly shown to be otherwise.

The conviction should be affirmed.

ROBERTSON, P. J., joins in this dissent.

PATTERSON, Chief Justice,

specially concurring:

I concur in the result of the majority opinion but do so for a different reason. The colloquy between the trial judge and the juror, in my opinion, was probably the result of the jury not being instructed upon the presumption of innocence.

It is true, as mentioned in the dissent, that we held, among other things, in Newell v. State, 308 So.2d 71 (Miss.1975), the trial judge “shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so.” 308 So.2d at 78. Such language was not intended to diminish the duty or the initiative of a trial judge in conducting a trial that accords with the requirements of justice.

The basic concept of every criminal trial is that the defendant is innocent until proven guilty and he is entitled to an instruction informing the jury of this presumption. This defendant did not receive this instruction although his attorney specifically requested such albeit in an erroneous form. Under this circumstance I am of the opinion the trial judge should have corrected the presumption of innocence instruction presented to him or should have given a correct instruction of his own volition. No harm could possibly have resulted from it nor would the duty have been great, and very likely it would have saved the expense and time of a new trial. I do not think a defendant in a criminal case is accorded due process of law when he is not given an instruction upon the presumption of his innocence.

The suggestion that trial judges would be unduly burdened by giving basic noncontroversial instructions is without merit in my opinion. I would expand the language of Newell so the responsibility of giving the basic noncontroversial instructions would rest squarely upon the shoulders of the trial court. I would do so because the shared responsibility between the attorneys and the court has the likelihood that each might lean upon the other and the jury go uninstructed, as happened here. I speak only to the basic noncontroversial instructions such as the presumption of innocence, the form of the verdict and the number of jurors necessary for a verdict.

SUGG and BOWLING, JJ., join in this opinion.


author: SUGG, Justice,

text:
    Howard E. BERRY v. UNITED GAS PIPE LINE COMPANY.
    No. 51027.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 16, 1979.

      Eubanks, Temple & Hudson, Michael R. Eubanks, Purvis, for appellant.
    Brunini, Grantham, Grower & Hewes, Newt P. Harrison, Leslie H. Southwick, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

United Gas Pipe Line Company filed a petition to condemn an easement for the purpose of constructing a pipeline across three contiguous parcels of land. Howard E. Berry owned an undivided interest in each parcel, but did not own the same interest in each parcel. Before filing its petition to condemn Berry’s undivided interest, United acquired an easement from Berry’s cotenants and constructed a pipeline on the easement without acquiring an easement from Berry.

A final judgment was entered in which the parties agreed that Berry was damaged $1,600, by the acquisition of an easement across his property for public use. The final judgment reserved to Berry, by agreement of the parties, the right to bring appropriate actions on the issues reserved to Berry.

The principal issue is whether the value of United’s pipeline, placed on Berry’s land before institution of the eminent domain proceedings, should be considered in assessing Berry’s damages under the “before and after rule.” The general rule, that a trespasser who builds on another’s land dedicates his structure to the owner, does not apply against an entity having the power of eminent domain which enters as a trespasser and makes improvements for the public purpose for which it was created and given such power. This rule was adopted in Mississippi and the reason for the rule was first stated in L., N. O. and T. R.R. Co. v. Dickson, 63 Miss. 380 (1885). In that case a railroad company entered land as a trespasser and constructed its railroad upon land over which it had not acquired an easement. We held:

The railroad company was a trespasser in constructing its road upon land over which it had not acquired the right of way, but it still had the right to acquire the right of way unaffected by the liability incurred for its trespass. The trespass committed is not involved in the determination of the due compensation. The continuing right of the company to secure the right of way, in accordance with its charter, and the nature of its entry on the land and annexing chattels to the soil distinguish the case from that of a trespasser who affixes chattels to the freehold, and the rule of the common law, established when railroads were unknown, is not applicable. Answerability by the company for its trespass in the appropriate action, and “due compensation” in the proceedings for condemnation of the right of way, constitute the full measure of the right of the landowner. (63 Miss, at 385).

See also Illinois Central Railroad Co. v. Hoskins, 80 Miss. 730, 32 So. 150 (1902) and Illinois Central Railroad Co. v. LeBlanc, 74 Miss. 650, 21 So. 760 (1897).

In Railroad Co. v. Hoskins, after acknowledging the common law rule that a trespasser who builds on another’s land dedicates his structures to the owner, this Court did not apply the common law rule to an entity possessing the power of eminent domain, reasoning as follows:

“ . . . This case is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to the taking of the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him? In the case of a common trespasser the owner of the land may take and keep his structures nolens volens, but not so in this case; for, though the original entry was a trespass, it is well settled that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. Another evident difference between a mere tort feasor and a railroad company is this: the former necessarily attaches his structures to the freehold, for he has no less estate in himself; but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement. A railroad company can take no freehold title, and when its proper use of the easement ceases, the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have, therefore, these salient features to characterize the case before us, to wit: The right to enter on the land under authority of law to build a railroad for public use; the acquisition thereby of a mere easement in the land; the entire absence of an intention to dedicate the chattels entering into its construction to the use of the land; the necessity for their use in the execution of the public purposes; and, lastly, the power to retain and possess these chattels and the structures they compose by a valid proceeding at law, notwithstanding the original illegality of the entry. There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of the land because found upon it, . etc.” (80 Miss, at 738, 739, 740, 32 So. at 151).

In the case before the Court, United has the power of eminent domain, and although it was a trespasser on Berry’s land when it constructed its pipeline, Berry is not entitled to have the value of the pipeline added to the value of the easement in determining his damages for taking his property by eminent domain. However, Berry is entitled to maintain a separate suit for trespass against United which right was reserved to him in the final judgment. Berry’s damages for taking his property for public use in the condemnation proceedings, and his damages for the trespass by United in another action constitute the full measure of the right of Berry.

Berry also argues that the court erred in refusing to permit him to show that the method of construction of the pipeline would damage a non-producing gas well located less than 250 feet from the center line of the easement condemned.

The only issue for a jury in an eminent domain proceeding is to determine the amount the owner “will be damaged by the acquisition of his property for the public use . .” Section 11-27-23 Mississippi Code Annotated (1972). If damage to other property of the owner occurs in the construction on the property taken for public use, such damage is the subject matter of a separate lawsuit. The final judgment reserved this right to Berry. The court properly declined to hear evidence about damage to the abandoned gas well which could be caused by the construction of the pipeline.

Berry also contends that the trial court erred when it refused to require United to file three separate petitions to condemn the easement. He bases his argument on Section 11-27-13 Mississippi Code Annotated (1972) which provides:

Each different property, identified by separate ownership, shall constitute a separate cause of action and require a separate trial, unless otherwise agreed by all parties with the approval of the court.

The easement condemned embraced three contiguous parcels of land. Berry owned an undivided interest in each parcel in varying degrees; namely, one-fourth in one, one-eighth in another, and one-half in the remaining parcel. He then argues that three different properties, identified by separate ownerships, were involved requiring three separate actions.

We do not reach the question because Berry and United agreed on the damages for taking the easement, thereby causing the question to become moot.

Berry assigns other errors which have been considered, but we find no merit in them.

AFFIRMED.

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


text:
    Horace Eugene BISHOP v. STATE of Mississippi.
    No. 51062.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 16, 1979.
    Billy J. Jordan, Philip T. Dean, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

The 20-year-old prosecutrix testified that defendant came to a house trailer where she lived with her mother at approximately 12:15 a. m. on December 19,1977. Prosecu-trix was alone in the house trailer and said that defendant gained admittance by telling her that her mother was in the car and needed assistance to come into the house. She further testified that when she went outside defendant grabbed her by the arm and pushed her into the trailer. After moving to a back bedroom defendant ordered her to undress and when she refused the defendant stepped toward her. She said that the defendant forced her to commit oral sex with him twice and raped her twice. The house trailer was located about 15 feet from the nearest house trailer but prosecutrix did not cry out during the entire interlude. Prosecutrix also testified that while the defendant was raping her he told her that he had spent the night with her mother and every time he had intercourse with her mother that he dreamed of having intercourse with the prosecutrix because she had a beautiful body and he wanted it.

David Harmon, a witness for the state, was a former member of the police department of the City of Aberdeen and accompanied defendant to the prosecutrix’ trailer at the request of defendant. According to Harmon, the defendant entered the trailer, and after Harmon had dozed for a few minutes, he awakened, knocked on the trailer, and was invited to enter the back bedroom. When he entered the back bedroom, defendant turned on the light and the witness observed the defendant standing against the wall with his hands holding the head of the prosecutrix while she was performing oral sex on the defendant.

Harmon testified that the defendant asked him if he wanted to have sex with the prosecutrix, spread her legs so that her private parts were exposed and the witness lay down on the bed with the prosecutrix. He stated that she was crying and did not appear to desire to perform a sexual act with him so he left the room.

The prosecutrix testified that the defendant raped her again after the witness Harmon left. The prosecutrix did not complain to Harmon that the defendant had raped her.

According to the doctor who examined her following the rape, no sperm was found, no bruises were found except a reddening around the vagina which the doctor stated could be attributed to a number of things, including sexual intercourse.

In Monroe v. State, 71 Miss. 196, 13 So. 884 (1893) this Court stated:

[W]e are unwilling to sanction a conviction on evidence which not only fails to satisfy the mind of the guilt of the accused, but rather suggests grave doubt of it. (71 Miss, at 199, 200, 13 So. at 885).

The evidence not only fails to satisfy the mind of the guilt of the accused but suggests grave doubt of it. No bruises or marks of violence were evident except reddening around her vagina. No weapons were used and the evidence does not show that the prosecutrix submitted because of a reasonable apprehension she would suffer injury if she refused.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Bobby Neil McFALLS v. STATE of Mississippi.
    No. 51010.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 16, 1979.
    Otto Wusnack, Jim W. Rose, Gulfport, for appellant.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.

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


author: WALKER, Justice,

text:
    Betty W. SHAEFFER v. George W. SHAEFFER.
    No. 51114.
    Supreme Court of Mississippi.
    April 18, 1979.

      Warren & Jones, Peggy A. Jones, Holly Springs, for appellant.
    Michael L. Kemp, Holly Springs, for ap-pellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal by Betty W. Shaeffer from a decree of the Chancery Court of Marshall County modifying a former divorce decree relative to alimony and child support.

George W. Shaeffer and Betty W. Shaef-fer were married on July 30,1966, and lived together for over ten years until they separated on September 20, 1976. One child, Scott Michael, was born of this marriage. Mrs. Shaeffer had another son from a previous marriage.

On September 27, 1976, Betty W. Shaef-fer filed her original bill for divorce and other relief in the Chancery Court of Marshall County. Process was had upon the defendant, George W. Shaeffer, in January, 1977. Mr. Shaeffer did not contest the proceedings and was in West Virginia at the time the divorce was heard.

In the decree of January 26, 1977, Mrs. Shaeffer was awarded a divorce, permanent custody of the minor child, exclusive use and occupancy of the residence of the parties, exclusive use of all household furnishings, furniture and fixtures, together with all yard tools, including lawnmowers and all other personal property located on the premises, $300.00 per month alimony and $300.00 per month child support. It was further ordered that beginning February 1, 1977, a lien was to be impressed on the house and two lots to secure payment of alimony and child support. Mr. Shaeffer was also ordered to pay all medical and dental bills of the child, all taxes, fire insurance and exterior repairs to the home. Mrs. Shaeffer was awarded use of a 1968 Chrysler automobile. Mr. Shaeffer was ordered to pay Mrs. Shaeffer $250.00 for attorney’s fees. This decree was not appealed.

In October, 1977, after having remarried, Mr. Shaeffer filed a petition seeking modification of the original divorce decree, alleging that there had been such a material change in the circumstances of the parties as to require modification of the alimony payments and child support payments.

The cause was heard in regular term on August 4, 1978, with testimony being given by both appellant and appellee. A decree was rendered reducing Mr. Shaeffer’s alimony payments from $300.00 to $150.00 and his child support payments from $300.00 to $200.00, although there was no proof of a material or substantial change in circumstances.

The issue before us is whether the chancellor erred in reducing the alimony and child support from that ordered in the original decree.

Mississippi Code Annotated section 93-5-23 (1972) provides:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

In Williams v. Williams, 127 Miss. 627, 635, 90 So. 330, 331 (1921), the Court, on construing the language of section 93-5-23, held that the statute “does not authorize the court to set aside a decree rendered at a former term and render another in lieu thereof, but only to change or modify the terms of a former decree in accordance with the after-arising circumstances of the parties.”

To justify changing or modifying the original decree there must be a material or substantial change in the circumstances of the parties. Spradling v. Spradling, 362 So.2d 620 (Miss.1978); Savell v. Savell, 290 So.2d 621 (Miss.1974). The material or substantial change is relative to only the after-arising circumstances of the parties following the original decree.

The chancellor’s decision to reduce the amount of Mr. Shaeffer’s alimony and child support payments was not founded on a material or substantial change in the after-arising circumstances of the parties. The chancellor felt that he had allowed too much alimony and child support in the first instance. This was error and the cause must be reversed for that reason.

The appellee contends, however, that the chancellor had authority to correct the decree under the principle that where through accident, mistake, or fraud a judgment or decree is incorrectly entered and is not the judgment or decree which would have been entered had not such accident, mistake, or fraud intervened, then in such case a court of equity will afford relief and correct such judgment or decree. Kemp v. Atlas Fertilizer & Chemical Company, 199 So.2d 52 (Miss.1967); Robertson, State Revenue Agent v. Aetna Insurance Company, 134 Miss. 398, 98 So. 833 (1924); Brown v. Wesson, 114 Miss. 216, 74 So. 831 (1917); Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845 (1911).

In Kemp, supra, the Court said:

A decree may be vacated and thereupon corrected by an original bill, in the nature of a bill of review, for fraud in its procurement, or upon any such state of facts as constitutes the legal equivalent of fraud; as for instance, surprise, accident and mistake, [Emphasis theirs] so long as these have reference to facts, as distinguished from mistakes and surprise touching the law or in the application of the law to a state of facts already actually presented and considered. It is laid down broadly that the jurisdiction and power of a court of equity to relieve against fraud and the legal equivalent thereof as respects judgments and decrees is as ample as it is to set aside a contract or other engagement procured or brought about by like means or under the operation of equivalent circumstances,— the dominant requirements being (1) that the facts constituting the fraud, accident, mistake or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence. * * * Griffith, Chancery Practice § 642 (2d ed. 1950). (Emphasis added) (199 So.2d at 55).

The principle of law relied upon by appellee is sound and still very viable in our jurisprudence; however, it has no application to the case now before the Court. First, there were no allegations of facts that were fraudulently or mistakenly made to the court at the first hearing and the record reveals no such proof. In fact, the chancellor specifically found that the appellant (original complainant in divorce action) did not misrepresent anything to him at the time of the original hearing. When the original divorce decree was rendered, the chancellor applied the law as to alimony and child support in the exercise of his best judgment at that time, based on the facts presented to and considered by him. The appellee (original defendant) had been personally served with summons, but chose not to answer and defend the bill of complaint for divorce which contained a prayer for alimony and child support. He cannot now complain that there was evidence relative to his ability to pay alimony and child support which he would have presented to the court had he been present.

We have carefully considered this record and are of the opinion that although the alimony and child support payments originally decreed by the chancellor were high, they are not so high as to be unconscionable and oppressive and thereby justify the court in affording extraordinary relief under its equitable powers.

If the original decree rendered in this cause were allowed to be modified on the facts presented by this record, there would be no substance left to the rule that decrees touching the care, custody and maintenance of children of a marriage and touching the maintenance and alimony of the wife, may only be made upon a showing of a material or substantial change in the after-arising circumstances of the parties.

For the reasons stated above, the decree of August 4, 1978, which modified the final decree of divorce granting alimony and child support dated January 26, 1977, is set aside and the original decree is reinstated.

REVERSED AND RENDERED.

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


text:
    Franklin BURNSIDE v. STATE of Mississippi.
    No. 51175.
    Supreme Court of Mississippi.
    April 18, 1979.
    Rehearing Denied May 16, 1979.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Sr., Ross R. Barnett, Jr., E. Hugh Cunningham, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

AFFIRMED.

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


text:
    Dennis Paul LIRA v. Earlie J. THOMAS, Jr.
    No. 51222.
    Supreme Court of Mississippi.
    April 25, 1979.
    Rehearing Denied May 16, 1979.
    Alfred Lee Felder, Pascagoula, for appellant.
    Megehee, Brown & Williams, John M. Kinard, Pascagoula, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.