author: BEER, Judge: SCHOTT, Judge: SAMUEL, Judge, BEER, Judge,

text:
    Keith SVABODA and Dana Kemp v. Ogden MOVILLE, Santa Fe Engineering and Construction Company and Stonewall Insurance Company, Inc.
    No. 7915.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr., New Orleans, for defendants-appellants.
    Pitard, Pitard & Porobil, Robert P. Pi-tard, New Orleans, for plaintiffs-appellees.
    Before SAMUEL, SCHOTT and BEER, JJ.; added pursuant to LSA-Const. Art. 5, Sec. 8(B), GULOTTA and MORIAL, JJ.
   Before SAMUEL, SCHOTT and BEER, JJ.

BEER, Judge:

Keith Svaboda and Dana Kemp sued Ogden Moville, Jr., his employer, Santa Fe Engineering and Construction Company, and its insurer, Stonewall Insurance Company, Inc., for damages resulting from a vehicular collision on September 19, 1974. Trial on the merits resulted in judgment in favor of the plaintiffs, and defendants sus-pensively appeal. Appellants challenge the trial judge’s decision regarding liability and quantum. Svaboda and Kemp have not appealed, nor have they filed answer to the appeal.

On the date of the accident, at approximately 12:30 p. m., Svaboda, with Kemp as his guest passenger, was driving his motorcycle in a direction away from the river on St. Joseph Street, a two-way street in New Orleans. As they entered the controlled intersection of St. Joseph at St. Charles Avenue, the collision ensued with plaintiff’s motorcycle striking the left front side of an automobile owned by Sante Fe Engineering and Construction Company and being driven by Ogden Moville, Jr., in an uptown direction on St. Charles Avenue in the right hand lane. Moville was accompanied by his wife and mother, all of whom occupied the front seat of the car.

The plaintiffs, Svaboda and Kemp, testified at the trial that the traffic light was green in favor of traffic on St. Joseph Street just before the moment of impact. However, Ogden Moville, Jr., his wife and his mother all testified to the contrary: that the light favored the St. Charles Avenue traffic. Roger Ford, a claims adjuster by profession and the only completely disinterested witness to the accident, testified that he was traveling on St. Joseph Street “about a half or two-thirds of a block behind them (plaintiffs) for a couple of blocks.” As the plaintiffs approached the St. Charles Avenue intersection, Ford noted that the semaphore traffic light indicated green in favor of St. Joseph traffic. When he realized the imminence of the accident, he instinctively (as a trained accident claims adjuster) “looked back at the light” which he testified remained green for the plaintiffs. Immediately after impact, as Ford called over a Citizens Band Radio for assistance, he observed “the light was still green at that time.” On cross-examination, Ford admitted that he could not see the traffic light color indicated for St. Charles Avenue traffic at the time of the accident.

The trial judge, in written reasons for judgment, gave much weight to the testimony of Ford, whose testimony “seemed believable and sound.” We find no manifest error in the trial judge’s credibility call.

Appellants urge that plaintiffs failed to prove their case, contending that there is no evidence that Moville ran a red light. However, in our view, the plaintiffs’ burden of proof is not so onerous as, to disallow the method of deductive reasoning obviously exercised by the trier of fact.

Turning to the quantum issue, we note that several days after the accident, Svaboda was examined by Dr. Philip P. LaNasa, who diagnosed his injuries as cervical sprain; contusion, abrasion, right arm; low back sprain; contusion, right hip; contusion, right calf; sprain, left knee; contusion, ecchymosis, left hip: and abrasion, infection, left leg. (Exh. P-3.)

Svaboda is a marine engineer, and belongs to a union. Shipping companies routinely advise the union of their manning needs for licensed engineers. These jobs were posted at the union hall and members with numbered “shipping cards” bid to acquire a particular job. The longer a shipping card is held unused, the lower that card number becomes, thus increasing the holder’s chances of securing a particular job. At the time of the accident, Svaboda had not shipped out for 9 months. The last union job Svaboda held prior to the accident ended in January, 1974. Thus, as of that date, he began to accumulate seniority such that by the time of the accident, he was in an excellent position to successfully bid for any job then offered.

On September 23, 1974, four days after the accident in question, a desirable assignment became available aboard the vessel SAM HOUSTON. It was filled by one A. Roch, who earned $35,412.01 in the course of that voyage. Svaboda wished to but was unable to take this assignment because he was “still hurting from the accident” although he had seniority over Roch as far as choice of jobs was concerned. A handwritten note from Dr. LaNasa dated October 6, 1975, indicates that Svaboda “was advised not to work because of his injuries.” (Exh. P-5.) Nevertheless, if not for the accident, Svaboda testified that he would have taken the job aboard the S.S. SAM HOUSTON as a permanent “watch standing” third assistant engineer because of “more pay” and “better chance of getting chief engineer.” Svaboda explained that he did not take a job assignment aboard the GREEN VALLEY on September 5, 1974, nor on September 16, 1974, because he “didn’t want to work for that company” even though the wages and duties would have been essentially the same as those aboard the S.S. SAM HOUSTON. On redirect examination, Svaboda clarified that he knew the S.S. SAM HOUSTON “was going to crew up in the next several weeks” after the GREEN VALLEY job was made available.

On October 4, 1974, Svaboda relinquished his seniority status and accepted employment as third assistant engineer aboard the MASON LYKES for financial reasons, even though he felt that he had not fully recuperated from the accident. His job, as a third assistant engineer, required “minimal physical effort” relative to his previous first assistant engineering. After Svaboda’s employment aboard the MASON LYKES, he transferred to the ULTRA SEA and after-wards to the DELTA MAR until May 29, 1975. From then until June 23, 1975, he was on vacation, at which time he worked a non-union job aboard the CAPTAIN FRANCOIS LECLERQ for Euro-Pirates International for 18 days at $70 per day. Svaboda had not worked since then up to the date of the trial on October 9,1975. At the trial, Svaboda testified that he was physically capable of working. This testimony was corroborated by the stipulated medical report of Dr. LaNasa, dated April 4, 1975, indicating that “he (Svaboda) seemed to have made a good recovery from all his injuries. However, he has a resultant scar on his left leg.” (Exh. P-4.)

On the basis of this evidence, the trial court awarded damages as follows:

Medical expenses $ 155.00
Property damage 536.31
Loss of wages 14,155.40
Pain and suffering:
cervical sprain, injury to right arm, low back sprain, right hip contusion, right calf contusion, left knee sprain, left hip contusion and ecchymosis, left leg abrasion, infection and small scar 5.000.00
$19,846.71.

Regarding the loss of wages, the trial judge reasoned that:

“. . . Keith Svaboda would have obtained employment on the S/S SAM HOUSTON had he not been injured. The job actually went to A. Roch, who earned $35,412.01. During this period of employment, Keith Svaboda earned $21,256.61. The difference between these figures represent what the Court feels is a reasonable method of arriving at an amount which will compensate Keith Svaboda for his loss of wages. . . . The Court does not feel an award of future loss of wages is warranted because they are of a speculative nature.”

We find this method of determination of the alleged wage loss and the conclusions with respect to the other items of damages to be supported by the record.

Accordingly, the judgment in favor of plaintiff, Keith Svaboda, is affirmed.

Before SAMUEL, GULOTTA, SCHOTT, MORIAL and BEER, JJ.

SCHOTT, Judge:

Dana Kemp incurred an open laceration of the knee joint in the accident of September 20 necessitating immediate hospitalization and treatment at Charity Hospital. She was taken to surgery where the knee was irrigated and then closed. A splint was applied. She was transferred to Touro Hospital under the care of Dr. Kenneth N. Adatto, an orthopedic surgeon, and she was discharged from the hospital on crutches on September 26.

Plaintiff testified as follows: Although she was heavily sedated during her hospitalization she, nevertheless, experienced much pain and discomfort. During her stay at Touro the pain associated with her knee injuries significantly intensified. She used crutches as an out-patient and described her greatest difficulty as being her physical immobilization compounded by pain. With no elevator going to her third story apartment, she experienced difficulties ascending and descending the staircase. In order to develop ambulatory skills, she received physical therapy at Touro twice a week. In order to further rejuvenate the physical strength of her body she participated in exercise classes and yoga up to and including the day of the trial, but improvement was minimal in her opinion. This accident was disruptive for her in that it occurred when she was at the crossroads of her life between a teaching career and photography, writing and production of educational films. Since the accident she has been tired, exhausted and depressed, her activities have been interrupted, she talks incessantly and the level of her development has fallen back by three years with respect to her connections, traveling and friends. Her knee had progressively gotten better up to a point but she was still having difficulty at the time of the trial one year after the accident. Just one month and a half prior to the trial she knocked her knee on the edge of a table with the result that she “just crumbled to the floor in pain so bad and couldn’t breathe for about half a minute and aching very badly several hours and sore several days.” She went back to Dr. Adatto in July (seven months since she had last seen him and three months before trial) because her knee was painful, numb, and very sensitive and sore to touch. She was embarrassed because of a scar left on her knee from the accident. Nevertheless, she had returned to teaching on December 16, 1974, and was still teaching at the time of trial. A friend corroborated plaintiffs testimony regarding her emotional and physical conditions after the accident and their negative effect on her social and professional activities.

The dance and yoga instructor testified that plaintiff tried very hard to recover by means of exercises which were taken with great difficulty. However, the instructor thought the exercise had notably improved plaintiff’s knee condition.

Dr. Adatto testified that he and his associate treated plaintiff from her admittance to Touro Hospital on September 19, 1974, until her initial discharge from their supervision on January 17, 1975. On July 2, 1975, plaintiff returned to him complaining about her knee. On examination, he found a small nodule mass on the inside of her knee which he diagnosed as a cystic medial meniscus. He stated that this condition “gives the person trouble” and while such a nodule frequently flattens on its own it “might flare up off and on.” He said the condition could be treated and cured surgically at an estimated cost of $2,000 but it would be better for the patient to live with it. He was asked when he would expect plaintiff to have an onset of degenerative arthritis and he replied: “She might get it at the age of 45 or 50, or as opposed to somebody 60 or 70. No way to predict it. When people have something wrong with the joint traumatically or surgically the changes are increased they will have trouble later on.” He gave her a permanent disability rating of 15% consisting of 10% for increased chances of arthritis and 5% for the cystic medial meniscus.

Dr. Robert J. Meade, a plastic surgeon, examined plaintiff’s scar on March 3, 1975, and noted the dimensions of the scar to be 2 inches long and Vi inch at the widest. He advised that the appearance of the scars can be improved with surgery estimated to cost $400.

The trial judge itemized his award as follows:

Medical Expenses $225.00
Hospital Expenses $707.50
Drugs $8.76
Cost of future cosmetic surgery $400.00
Lost Wages $2,880.00
Pain and Suffering:
contusion to right hip, injury to right knee resulting in scarring and a 15% permanent disability, future pain and suffering $40.000,00 $44,221.26

At least one of the issues present in the instant case, and universally present in all suits in which plaintiff is seeking compensatory damages for mental anguish, pain and suffering, is the factual question as to whether plaintiff told the truth on the witness stand or whether her testimony was designed to mislead and deceive the trial judge into thinking that the effect of the injuries was worse than it actually was. From a reading of this plaintiff’s testimony, it seems clear that she exaggerated and dramatized her complaints for the purpose, of influencing the trial court to make a generous award, but he had the opportunity to observe this plaintiff in person and evidently believed her. Under the prevailing jurisprudence of the Supreme Court we cannot say that the trial judge abused his “much discretion” under LSA-C.C. Art. 1934(3) in making this generous award. Coco v. Winston Industries, 341 So.2d 332 (La., 1977).

Accordingly, the judgment in favor of Dana Kemp is likewise affirmed.

SAMUEL and BEER, JJ., DISSENT FROM AFFIRMING THE JUDGMENT IN FAVOR OF DANA KEMP.

SAMUEL, Judge,

dissenting in part.

I agree with the majority conclusion that “it seems clear that she [Kemp] exaggerated and dramatized her complaints for the purpose of influencing the trial court to make a generous award”. In my view, Miss Kemp highly and grossly exaggerated her complaints. In this connection a portion of the testimony of the dance and yoga teacher is impressive. She testified the exercises had helped Miss Kemp’s knee and made a marked difference until a few months prior to trial, but that in the last few months before trial progress had been “ . slower,. I think since all this happened, this coming up, I guess I’m not supposed to say, seems like things are at a standstill, I think it has to do with the trial and all that

In addition, the actual existence of the cystic medial meniscus, which forms the sole basis for the claim for residual disability, is speculative and insufficiently proved. Dr. Adatto only testified that the cyst “may” exist.

A too literal following of Coco v. Winston Industries, La., 341 So.2d 332, effectively prevents us from exercising the mandate contained in Article 5, § 15(B) of our 1974 Constitution, which mandate not only authorizes but requires us to review both the law and the facts in this case. Jurisprudential rules regarding codal articles or other statutes are, or should be, subordinate to constitutional provisions.

With the exceptions of the above comment regarding the presence of a cyst and his conclusion that the award for Miss Kemp’s general damages should be $15,000 (I feel the award should be reduced to not more than $10,000), I agree with the reasons expressed in Judge Beer’s dissent. Accordingly,

I respectfully dissent from the affirmance of the $40,000 award to Miss Kemp for general damages.

BEER, Judge,

dissenting in part.

Dana Kemp incurred a laceration to the medial aspect of the right knee necessitating her hospitalization at Charity Hospital. Two days later, she was transferred to Tou-ro Infirmary, where she remained until her discharge on September 26, 1974, one week after the accident. Thereafter, her greatest difficulty was described as physical immobilization compounded by pain. With no elevator going to her third story apartment, she experienced difficulties ascending and descending the staircase. She received physical therapy at Touro twice a week and participated in exercise classes and yoga exercises. Connie Varóla, Kemp’s dance and yoga instructor both before and after the accident, generally corroborated Kemp’s testimony as it bears on her post-accident hardships and especially her overall immobility. However, the yoga exercises have notably helped improve her knee condition in Varola’s opinion.

Kemp returned to work on December 16, 1974, approximately three months after the accident. At the time of trial, she was teaching at Frederick Rivers Junior High School in Orleans Parish.

Dr. Kenneth N. Adatto, an expert orthopedic surgeon, testified that he and Dr. Stuart I. Phillips have followed Kemp’s medical history since her admittance to Touro Hospital on September 19,1974, until her final discharge from their supervision on January 17, 1975. Although initially assigned a 10% residual disability, this was increased to 15% by Dr. Adatto because of “a small nodule mass on the inside of the knee joint,” known as cystic medial meniscus.

Dr. Robert J. Meade, a plastic surgeon, examined the scar on Kemp’s knee on March 3, 1975, and noted the dimensions to be 2 inches long and Vi inches at the widest. He advised that the appearance of the scars can be improved with surgery estimated to cost $400. (Exh. Kemp-9.)

Dr. Phillips estimated a 10% disability of the knee joint, due to increased chances of degenerative arthritis. Dr. Adatto’s estimate is based as follows:

1) increased chances of degenerative arthritis
(Tr. 71,74) 10%
2) post-accident development of cystic medial meniscus
(Tr. 73,74) _5%
Total Estimated Disability 15%.

Dr. Adatto speculated on direct examination that the degenerative arthritis may now be expected “at the age of forty-five or fifty.” However, he qualified his statement by saying that there is “No way to predict it.” (Tr. 71.) That is about 15 or 20 years in the future.

This is unlike a situation where a pre-existing arthritic condition is definitely activated or aggravated by an accident. See Romero v. Flo-tel, Inc., 332 So.2d 596 (La.App. 3rd Cir., 1976); Mayeux v. Mock, 278 So.2d 591 (La.App. 3rd Cir., 1973); Davis v. Lesnack, 205 So.2d 77 (La.App. 4th Cir., 1967), and Kline v. Columbia Casualty Co., 155 So.2d 82 (La.App. 2nd Cir., 1963). The record discloses no evidence of existent arthritis caused or aggravated by the accident. See Mudd v. Travelers Indemnity Co., 295 So.2d 540 (La.App. 3rd Cir., 1974).

Speculative projection that Kemp may be more likely to experience arthritis when she áttains the stage of life between the “age of forty-five or fifty” (15 or 20 years in the future) can not, in my view, be the basis upon which a 10% disability is determined at the time of trial. This is also the case with respect to the 5% disability attributed to the cyst. Dr. Adatto testified that cysts (a small bubble inside the medial cartilage) often “flattens on their own if you leave them alone” (Tr. 71-72), although a “flare up” of the cyst can occur. The possibility of a flare-up is the only basis for the additional 5% disability rating, according to Dr. Adatto. The remoteness of the possibility of a flare-up casts doubt on the additional 5% permanent disability, obviously based only on this possibility. Nevertheless, it is obvious that Kemp’s so-called 15% disability was relied upon by the trial court in forming the basis for its bestowal of general damages.

There is nothing in the record to support a conclusion that Kemp has, in fact, suffered any functional impairment indicative of any percentage of disability at the time of trial. Quite the contrary, a fair consideration of the record would support the conclusion that, at the time of trial, Kemp was experiencing no residual disability that could be demonstrated by any functional impairment or restriction of motion. The only thesis upon which the so-called permanent disability is grounded is in conjectural prognoses that are, in both instances, highly speculative.

Certainly, physicians are as much entitled to make full use of their professional jargon as are engineers, accountants, lawyers, etc., and it would be presumptuous to take issue-with the observation on the part of a well-meaning physician that a projection of future possibilities can form the basis for a present assignment of permanent disability. But the fact that he reaches such a conclusion in good faith neither makes it so nor makes it, in my view, binding upon the judicial process. The very nature of the term “permanent disability” has such impact in the judicial process that trial courts and appellate courts must, if they are to do their full duty, examine carefully into the basis for such a determination.

In spite of the strong presumptions ascribed to the trial court’s findings, I conclude that Kemp has markedly exaggerated her alleged pain, suffering, disability, embarrassment, etc. I further conclude that the trial court, albeit in the best of good faith, has fallen into error by giving greater weight to Kemp’s testimony than that to which it is entitled and by accepting, for the purpose of damage evaluation, the so-called 15% permanent disability thesis.

I find no permanent disability ascribable to Kemp’s injury within my considered interpretation of the term. This is not to say that I ignore the unchallenged observations by Kemp’s medical witnesses regarding the possibilities of some future problems stemming from her injury. It would be as unfair to do this as it would be, in my view, to conclude that she is suffering from a 15% permanent disability. But even when I take into account that damage factor and consider it in addition to the other proven factors which support a general damage award, the amount awarded by the trial court causes me to conclude that it is manifestly erroneous and, albeit in the best of good faith, an abuse of discretion.

Having reached this conclusion, I would follow Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), and, accordingly, lower the award “to the highest point which is reasonably within the discretion afforded

In this instance, I find that amount to be $15,000.00, plus special damages.

Accordingly, I respectfully dissent from the affirmance of the Kemp award.

      . After the accident, Svaboda checked the operation of the traffic light facing St. Charles Avenue traffic, and, after two sequences of green, yellow and green, he concluded that the light was properly functioning.

      . The original panel of the court was unanimous in affirming the judgment in favor of Keith Svaboda, but Judge Schott dissented from a proposed judgment which would have reduced the amount of the judgment in favor of Dana Kemp. Hence, pursuant to LSA-Const. Art. 5, Sec. 8(B), the case was reargued before a panel of five, consisting of the original panel and Judges Gulotta and Morial. Since the added panelists agreed with Judge Schott, he became the author of the majority opinion insofar as it applied to the judgment in favor of Dana Kemp.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY and James Broome v. Richard R. BOOKOUT.
    No. 48847.
    Supreme Court of Mississippi.
    Sept. 21, 1976.
    Rehearing Denied Nov. 23, 1976.
    M. M. Roberts, S. Wayne Easterling, Hat-tiesburg, for appellant.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ON PETITION FOR REHEARING

LEE, Justice,

for the Court.

PETITION FOR REHEARING DENIED.

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


text:
    Gerald DONALD and Cottonbelt Insurance Company v. Franklin O. WHATLEY.
    No. 49406.
    Supreme Court of Mississippi.
    May 25, 1977.
    Butler, Snow, O’Mara, Stevens & Canea-da, Dan McCullen, Jackson, Jon A Swartz-fager, Laurel, for appellants.
    John L. Jeffries, Henry S. Davis, Jr., Laurel, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and MORGAN, C.
   CLARENCE E. MORGAN, Jr., Commissioner for the Court:

The appellants appeal from a judgment of the Jasper County Circuit Court rendered January 9, 1976, which affirmed the order of the Mississippi Workmen’s Compensation Commission. This order had established as the fact that appellee, Whatley, was an employee of the appellant, Donald, and that the appellant, Cottonbelt Insurance Company, was Donald’s carrier at the time of the appellee’s accident.

In September, 1973, Gerald Donald was engaged in the pulpwood business. In that month he contracted with Colonial Contractors to build a residence for him. In January, 1974, Donald terminated the contract with Colonial Contractors at a time when the house was approximately two-thirds complete. One of the carpenters, Ernest Laurendine, approached Donald with the request that Donald continue the construction of the house utilizing the workmen who had been working on it. This Donald proceeded to do under an arrangement whereby Donald would furnish the materials for the house construction and pay union wages to the workers for finishing the residence. Laurendine acted in'no supervisory capacity other than keeping time on the workmen. The workmen were all paid by Donald by means of his personal check every Friday. The workmen furnished their own carpenter equipment, however, Donald furnished some equipment from his wood-yard for the construction of the house.

On February 18, 1974, while working on the roof of the Donald house, the appellee, Whatley, fell and was severely injured. The extent and severity of his injuries are not controverted on this appeal. He filed a claim for workmen’s compensation which was granted by the administrative judge, and affirmed by the Workmen’s Compensation Commission. On appeal to the circuit court the action of the Commission was affirmed.

Gerald Donald was engaged in the pulpwood business. Prior to his contract for the erection of his residence, and the subsequent injury, he was insured by Cottonbelt Insurance Company as an employer under the Mississippi Workmen’s Compensation Law. That policy was in full force and effect at the time the appellee was injured. The policy was issued to Gerald Donald personally and not to his pulpwood corporation, which was known as Hickory Timber Corporation. He owned another corporation called Ger-Don, Inc., which was also a pulpwood business. The record shows that he had a total of four employees in these corporations at the time the policy was issued by Cottonbelt but it also showed that his work force varied from time to time. The classification of operations entry on the policy is as follows: “Tie, post or pole yards — including drivers.” The record is clear that at no time during the construction of the residence subsequent to the discharge of Colonial Contractors was there less than five persons engaged in that construction.

Both appellants make the following assignments of error:

(1) The court erred in finding that the construction of Donald’s residence was a business activity subject to the Mississippi Workmen’s Compensation Act; and
(2) The court erred in finding that the appellee was an employee of Donald subject to the Mississippi Workmen’s Compensation Act.

The appellant Cottonbelt makes the following additional assignments of error:

(1) The court erred in finding that the construction of Donald’s residence was a business activity subject to the Mississippi Workmen’s Compensation Act;
(2) The court erred in finding that the alleged employer-employee relationship was subject to the Mississippi Workmen’s Compensation Act; and
(3) The court erred in finding that the policy issued by Cottonbelt to Donald covered the appellee’s injury.

We address ourselves first to the question of whether Whatley was an employee of the appellant Donald. Under the rule established by this Court in Laurel Daily Leader, Inc. v. James, 224 Miss. 654, 80 So.2d 770 (1955) and Boyd v. Crosby Lumber and Manufacturing Company, 250 Miss. 433, 166 So.2d 106 (1964), the appellee clearly was an employee of Donald.

Appéllants rely on several cases from other jurisdictions in their argument that to be covered the endeavor must be a business for profit and that the construction of a residence dwelling by the owner is not within the purview of the Mississippi Workmen’s Compensation Law. The workmen’s compensation laws of the various states were adopted at different times and are not uniform in provisions. We, therefore, look to the relevant Mississippi statute, which is Mississippi Code Annotated, Section 71-3-5 (1972), and which states in part as follows:

The following shall constitute employers subject to the provisions of this chapter: every person, firm and private corporation, including any public service corporation but excluding, however, all nonprofit charitable, fraternal, cultural, or religious corporations or associations, that has in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.

It is apparent from the language of this statute that any person having in his employ the service of five or more workmen or operatives regularly employed in the same business or in or about the same establishment under any contract of hire is within the provisions of this statute. The section excludes from coverage only “non-profit charitable, fraternal, cultural or religious corporations or associations.” Donald does not come within any of these exclusions. Therefore, this contract of hire was within the purview of the Mississippi Workmen’s Compensation Law, and the employment of Whatley was within the purview of the Workmen’s Compensation Law.

Cottonbelt contends that even if the ap-pellee was an employee of Donald and his employment within the purview of the Workmen’s Compensation Law, that neither the employment nor the employee was covered by the policy of insurance it issued to Donald. When the policy was issued Donald had only four employees, although there is some evidence that the number of employees varied in his business, and we note that the policy was issued to him individually rather than to the corporation through which he handled his pulpwood business. Donald stated on the hearing before the administrative judge that he intended for the policy to cover all of his employees. In any event, since it was issued to him personally it had the effect of covering all of his employees in any activity which was within the purview of the statute.

Appellant relies upon the fact that the policy of insurance listed as a classification of operations only “tie, post or pole yards— including drivers.”

Larsen, Workmen’s Compensation Law, § 93.20, states as follows:

However, the routine statement of classification on the policy, which is relative to the assigning of rates as between insurer and employer, should not out-, weigh the unqualified language of a full coverage statute specifically designated to deal with the problems caused by incomplete insurance coverage discussed at the outset of this section.

The fact that Donald’s policy was rated or that his premiums were based on a type employment that the claimant was not engaged in at the time of his injury, bears little effect on the question of the application of the full coverage statutes.

Larsen, supra, states in section 93.42 of his work that:

. It may be pointed out that the company’s payrolls are open to the insurer’s inspection; it can, therefore, be said to be up to the insurer, if there is any controversy about coverage, to bring an action for any premiums the employer refuses to pay .

The facts of this case are that the claimant, appellee Whatley, was an employee of appellant Donald, and that appellee was employed on an endeavor within the purview of the statute; further, Donald had a good and valid policy of insurance issued by the appellant Cottonbelt Insurance Company, at the time of appellee’s injury, and the appellee is, therefore, entitled to Workmen’s Compensation benefits under Mississippi law.

For the reasons stated, this case should be and is affirmed.

AFFIRMED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    RALSTON PURINA COMPANY v. M. S. ROOKER, Jr. and John M. Childs.
    No. 49050.
    Supreme Court of Mississippi.
    May 25, 1977.
    Sharp & Fisher, William L. Sharp, Corinth, for appellant.
    Fred B. Smith, Ripley, for appellee.
    Before PATTERSON, P. J., SMITH and LEE, JJ. and WELDY, Commissioner.
   JACK B. WELDY, Commissioner for the Court:

Ralston Purina Company sued M. S. Rooker, Jr. and John M. Childs, two farmers, in the Circuit Court of Tippah County for $5,875.41 in damages sustained by their failure to deliver 4,500 bushels of soybeans in breach of a written sale contract. After hearing all the evidence offered by both parties, the trial court directed a verdict for the defendants entering judgment limiting Purina’s damages to $899.62. The issue is whether testimony of the defendants, which changed the terms of the written contract, should have been admitted in evidence in violation of the parol evidence rule. We hold this to be error and reverse and render judgment here for the appellant.

M. S. Rooker, Jr. made a telephone call to appellant’s plant in Memphis, Tennessee and talked to Mr. R. M. Joiner, Buying Manager for Purina Soybean Division on August 5, 1972, inquiring about the market price for the sale of soybeans. The conversation resulted in Purina agreeing to buy and appellees agreeing to sell 4,500 bushels of soybeans. A written contract entitled “Confirmation of Purchase” was prepared and mailed by Purina to appellees at their address, Route 1, Ripley, Mississippi. In the contract appellees sold 4,500 bushels of # 1 yellow soybeans at $3.33 a bushel, to be delivered by truck to Purina’s Memphis plant in October and November. The last line of the contract stated: “Wire us immediately if any error or omission in this contract. Failure to do so constitutes acceptance of all terms thereof.”

Appellees agreed to the contract dated September 5, 1972, and caused their signatures to be affixed to it. R. M. Joiner signed the contract for Purina. Appéllees delivered only two loads, totalling 609 bushels, claiming in defense of failure to deliver 3,891 bushels (1) the agreement was for the sale and purchase of soybeans actually grown on their farm at the time of the contract, and (2) impossibility of performance due to unprecedented rain and flooding during the harvesting season. Both defenses have their basis in appellees’ testimony of the telephone conversation with Joiner prior to the execution of the written contract and not in the provisions of the written contract of sale.

Appellees’ first defense, that the contract was for the sale of soybeans grown on their land in an amount up to 4,500 bushels, must be considered under the provisions of Mississippi Code Annotated, Section 75-2-202 (1972), which provides:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) [§ 75-1-205] or by course of performance (Section 2-208) [§ 75-2-208]; and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

This Court, in dealing with a factually similar situation, applied the above cited code section in resolving the case as stated:

We ascertain the legislative intent from this enactment to be that parol evidence may not be used to contradict the terms of confirmatory memoranda of a written agreement intended as a final expression of a contract, but that it might be explained or supplemented by evidence of consistent additional terms unless there be an adjudication the writing was intended as an exclusive statement of the agreement. . . .
Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652, 657 (Miss.1975).

In Paymaster, as in this case, plaintiff brought suit for breach of contract when the defendant, a farmer in Covington County, failed to deliver the contracted quantity of soybeans. The trial court, after hearing all of the evidence, directed a verdict for the defendant based upon the “force maj-eure” statute of the Uniform Commercial Code, Mississippi Code Annotated, Section 75-2-617 (1972). An oral agreement was reached between the plaintiff, purchaser, and the defendant, seller, which was reduced to a written confirmation prepared by plaintiff and executed by both parties. That written contract contained the requisite language concerning the amount, price and time of delivery, and in addition contained the following language: “We confirm the purchase from you, as per our conversation Dennis Mitchell/Benny Franklin.”

Covington County suffered a severe drought and defendant was unable to deliver the entire 4,000 bushels of soybeans to plaintiff. Plaintiff sued for the loss incurred because of the greater price it had to pay for soybeans on the open market to make up for the shortage in the defendant’s contract. The issue on appeal was whether testimony which showed that the soybeans were to be delivered from the defendant’s own crop was admitted in violation of the parol evidence rule. That evidence, if admissible, brought the contract within the operation of the rule that when parties contract for the purchase and sale of a particular crop to be grown in the future from particular land and the seller fails to perform because of conditions beyond his control, the non-performance is excused. Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788, 792 (Miss.1974).

This Court affirmed the trial court in Paymaster, supra, finding that the contract language “as per our conversation” itself indicated that the written confirmation was not the entire contract between the parties, since the conversation between the parties was incorporated into it. In this case, there is no such language. We hold the terms of the written contract were intended as the exclusive statement of the agreement between the parties.

This Court stated in Noble v. Logan-Dees Chevrolet-Buick, Inc., 293 So.2d 14 (Miss.1974), that, where the parties, without any fraud or mistake, have deliberately put their contract in writing, that writing is not only the best, but the only evidence of their agreement. To be admissible, the testimony of appellees must come within the provision of Exception (b) of Section 75-2-202, supra, and obviously, that testimony concerning purchase of soybeans produced off a particular farm, up to 4,500 bushels, is inconsistent with the contract provisions for buying and selling of 4,500 bushels of soybeans. Without this parol evidence, the rule stated in Dunavant, supra, is inapplicable and there is no basis for appellees’ defense of impossibility of performance under force majeure, Mississippi Code Annotated, Section 75-2-617 (1972).

The case is reversed and judgment entered here for appellant in the sum of five thousand eight hundred seventy-five dollars forty-one cents ($5,875.41), the difference between the contract price and the market price ($1.51 per bushel) on three thousand eight hundred ninety-one (3,891) bushels of soybeans.

REVERSED AND RENDERED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: WALKER, Justice,

text:
    Sammy Joe HODGES, Sr. v. Rebecca HODGES.
    No. 49936.
    Supreme Court of Mississippi.
    May 25, 1977.

      Barry H. Powell, Jackson, for appellant.
    Before PATTERSON, WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi, which granted a divorce to the appellee and awarded her custody of the children, child support, and attorney’s fees. The final decree further impressed a lien against the appellant in favor of the appellee upon the funds of appellant, a former state employee, in the Public Employees’ Retirement System of Mississippi “to insure compliance with Decrees of this Court.”

The sole question presented is whether the chancery court had authority to impress a lien upon state retirement funds of appellant on deposit in the Public Employees’ Retirement System of Mississippi.

The appellant argues that impressing a lien upon a state employee’s retirement funds is prohibited by law, and cites Mississippi Code Annotated section 25-11-129 (1972), which provides:

The right of a person to an annuity, a retirement allowance, or benefit, or to the return of contributions, or to any optional benefit or any other right accrued or accruing to any person under the provisions of articles 1 and 3, and the moneys in the system created by said articles, are hereby exempt from any state or municipal tax, and exempt from levy and sale, garnishment, attachment, or any other process whatsoever, and shall be unassignable except as in the cited articles specifically otherwise provided.

The Code section leaves little for us to decide. The Legislature, when setting up the retirement system, saw fit to exempt the moneys accumulated in the system from any state or municipal tax, levy and sale, garnishment, attachment, or any other process whatsoever. It therefore follows that if the funds are not subject to execution, etc., that it is not subject to the imposition of a lien. An unenforceable lien would be of no value.

The provision of the decree of the chancery court impressing a lien upon the retirement funds of the appellant is therefore reversed and the decree modified accordingly-

REVERSED, DECREE MODIFIED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ.., concur.


author: SMITH, Justice,

text:
    In the Matter of Enlargement of Corporate Boundaries of the CITY OF PASCAGOULA, Mississippi.
    No. 49632.
    Supreme Court of Mississippi.
    May 25, 1977.

      Melvin L. Mitchell, Robert H. Oswald, Pascagoula, for appellant.
    Frank J. Hammond, Jr., Moss Point, Me-gehee, Brown & Williams, Carl A. Megehee, Raymond L. Brown, Pascagoula, W. F. Goodman, Jr., John C. Satterfield, Michael S. Allred, Jackson, A. Vincent Blackwell, Pascagoula, for appellee.
    Before-INZER, SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

The case, which has resulted in this appeal, originated in the Chancery Court of Jackson County with the filing by the City of Pascagoula of a petition requesting ratification of a municipal ordinance extending its boundaries so as to annex additional territory. A date was fixed by the chancellor for a hearing upon the petition and such objections as might be interposed thereto and notice was published as required by Mississippi Code Annotated section 21-1-31 (1972).

In response to the notice, numerous written objections were filed by various persons and corporations within the area proposed to be annexed, as well as by Jackson County and other governmental entities to be affected. The City of Pascagoula then filed motions to strike various portions of certain of the written objections and to strike others entirely. These motions were all overruled by the chancellor who, nevertheless, granted the City of Pascagoula an interlocutory appeal to this Court.

The record here consists of the petition and exhibits, the written objections, the motions to strike referred to, and the orders of the court overruling the motions and granting the appeal. What proof the objectors may or may not have been prepared to offer at the hearing bearing upon the question of the reasonableness of the proposed expansion is, of course, impossible for us to know or foresee with any degree of accuracy-

Under the circumstances of the proposed expansion, affecting, as it must, the interests of a great many persons and corporations as well as functions and activities of Jackson County and other governmental entities within the area proposed to be annexed, it is impossible to predict at this stage of the proceedings what facts or circumstances may be developed in evidence having a bearing upon the reasonableness or unreasonableness of the proposed expansion. Obviously, the nature of the question is such thfct many factors may bear upon it, and disadvantages as well as advantages will be relevant and properly considered, as the expansion hardly could be considered« reasonable if it should develop that the former outweigh the latter.

We cannot accept the appeal in the present state of the record and must hold that it was improvidently granted. For that reason, nothing in this opinion is to be considered as indicating or foreshadowing any particular decision by this Court when' the matter is finally reached upon the merits. The entire case may be reviewed when the matter has been fully heard and the chancellor has made his findings and has entered a final degree.

The present appeal is dismissed as having been improvidently granted.

APPEAL DISMISSED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    James R. FLOWERS and Mrs. Bettye Claire Debter v. Mrs. Anna B. FLOWERS, Admrx. of the Estate of James C. Flowers, Deceased.
    No. 49461.
    Supreme Court of Mississippi.
    June 1, 1977.
    Terry M. Haimes, Gene Stringer, Louisville, for appellant.
    Troutt & Moore, Nat G. Troutt, Senato-bia, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   Appeal from Chancery Court, Tate County; L. E. Hannaford, Sr., Chancellor.

AFFIRMED.


text:
    RYDER TRUCK LINES, INC. v. Birl WINFREY.
    No. 49476.
    Supreme Court of Mississippi.
    June 1, 1977.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellant.
    Pyles, Cupit & Maxey, Dixon L. Pyles, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.


text:
    L. A. EASTERLING COMPANY, INC. and United States Fidelity and Guaranty Company, et al. v. HAWKINS ELECTRIC SUPPLY COMPANY, INC.
    No. 49450.
    Supreme Court of Mississippi.
    June 1, 1977.
    Billy F. Brown, George R. Blackman, Biloxi, for appellants.
    Dudley W. Conner, Hattiesburg, for ap-pellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   Appeal from Circuit Court, Harrison County Leslie B. Grant, Judge.

AFFIRMED.


text:
    The HERMITAGE HEALTH AND LIFE INSURANCE COMPANY v. Buford MOORE.
    No. 49729.
    Supreme Court of Mississippi.
    June 1, 1977.
   Appeal from Circuit Court, Prentiss County; Neal Biggers, Judge.

James N. Godwin, Booneville, for appellant.

Eugene B. Gifford, Jr., Fred C. Per-menter, Jr., Booneville, for appellee.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Jessie C. McMILLIAN v. STATE of Mississippi.
    No. 49731.
    Supreme Court of Mississippi.
    June 1, 1977.
    Patrick Dale O’Rourke, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and JOE N. PIGOTT, Commissioner.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concurring.


text:
    Danny PHILLIPS v. STATE of Mississippi.
    No. 49738.
    Supreme Court of Mississippi.
    June 1, 1977.
    Swartzfager & Swartzfager, Paul G. Swartzfager, Sr., Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concurring.


text:
    Rolland L. YANCEY and Zelia S. Yancey v. Robert BOWEN.
    No. 49451.
    Supreme Court of Mississippi.
    June 1, 1977.
    M. Collins Bailey, William E. Trusty, Thomas W. Belleperche, Thomas H. Hadley, Batesville, for appellants.
    Johnson & Adams, David E. Adams, Sen-atobia, for appellee.
    Before PATTERSON, P. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Panola County; Dick R. Thomas, Judge.

REVERSED AND RENDERED.

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


text:
    H. L. STANTON, J. H. Stanton, O. J. Stanton and Company, Ltd., O. J. Stanton and Company, Inc. and Fidelity and Deposit Company of Maryland, Inc. v. T. M. COKER and Coker Trucking Service.
    No. 49458.
    Supreme Court of Mississippi.
    June 1, 1977.
    Young, Scanlon & Sessums, Pat H. Scan-lon, E. Stephen Williams, Jackson, for appellants.
    Wise, Carter, Child, Steen & Caraway, Natie P. Caraway, Pittman & Nobles, Crymes G. Pittman, Jackson, for appellees.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

REVERSED AND REMANDED.

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


text:
    Larry James YOUNG v. STATE of Mississippi.
    No. 49708.
    Supreme Court of Mississippi.
    June 1, 1977.
    Barrett, Barrett & Barrett, John W. Barrett, Lexington, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., and Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concur.


text:
    M. W. KELLOGG CONSTRUCTION COMPANY, Employer, and Travelers Insurance Company, Carrier v. Howard G. LITTLE.
    No. 49422.
    Supreme Court of Mississippi.
    June 1, 1977.
    Megehee, Brown & Williams, Larry A. Smith, Pascagoula, for appellants.
    Neil W. White, Jr., Gulfport, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   Appeal from Circuit Court, Jackson County Darwin M. Maples, Judge.

AFFIRMED AS MODIFIED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Kenneth C. DUCKSWORTH v. STATE of Mississippi.
    No. 49743.
    Supreme Court of Mississippi.
    June 1, 1977.
    Pack, Ratcliff & Thaxton, Kalford C. Ratcliff, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Pete J.. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J. and SUGG and LEE, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.

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


text:
    Pat Houston PATTERSON v. STATE of Mississippi.
    No. 49759.
    Supreme Court of Mississippi.
    June 1, 1977.
    E. Grant Tharpe, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.

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


text:
    Myra Ella STEVENS (Odom) v. Curtis Ray STEVENS.
    No. 49206.
    Supreme Court of Mississippi.
    June 1, 1977.

      William Vol Jones, Jr., Waynesboro, for appellant.
    Louie M. Bishop, Waynesboro, for appel-lee.
    Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and KELLNER, Commissioner.
   ERNEST KELLNER, Commissioner for the Court.

Appellant, Mrs. Myra Ella Stevens (Odom), appeals from the order of the Chancery Court of Wayne County, Mississippi, denying her motion to set aside void proceedings of the Wayne County Chancery Court.

On November 16, 1972, the Circuit Court of Mobile County, Alabama, granted Myra Ella Stevens a divorce from Curtis Ray Stevens. The Alabama Court decreed custody of Gail Lynn, Pamela Faye, and Kenneth Ray Stevens, minor children of the marriage, to the mother, Myra Ella Stevens “subject to reasonable rights of visitation on the part of the Respondent”. The decree of divorce also contained this language:

“Jurisdiction be and hereby is retained in this cause as to any further or future orders or decrees as to the care, custody and maintenance of said "minor children as to the Court may seem proper and as changed conditions may require.”

On December 4, 1972, Myra Ella Stevens filed her petition for a writ of habeas corpus against Curtis Ray Stevens in the Chancery Court of Wayne County, Mississippi, to obtain the custody of Kenneth Ray Stevens, minor, whom she contended was being illegally detained by his father. Stevens filed an answer to the petition in which he contended that the Alabama divorce decree was obtained by fraud, and that the Alabama Court was without jurisdiction to grant the divorce. He also averred in his answer that Mrs. Stevens was living with another man, was not a fit and proper person to have the custody of Kenneth Ray Stevens, and denied that she was entitled to the custody of their minor son.

Mrs. Stevens then filed an answer to the affirmative matter set up in the answer of defendant. Thereafter the parties entered into an agreed decree which the Wayne County Chancery Court signed on December 18, 1972. The agreed decree was personally signed by Myra Ella Stevens and Curtis Ray Stevens and by their attorneys.

This agreed decree, after reciting that the parties were divorced in Mobile County, Alabama, on November 16, 1972, and that the custody of all three children was awarded to Mrs. Stevens, found that she was a fit and proper person to have the custody of the three children and decreed custody of all three children to Mrs. Stevens. The agreed decree went further and spelled out in specific detail the visitation rights decreed generally by the Alabama court. It also reduced the weekly child support payment to be made by Stevens.

On October 8, 1973, Stevens filed in the Chancery Court of Wayne County a petition against Mrs. Stevens (Odom) to modify the agreed decree of December 18, 1972, of the Wayne County Chancery Court, to award custody of the three children to him because Mrs. Stevens had entered into a bigamous marriage with one James William Odom.

Although it was averred in the Petition to Modify that Myra Ella Stevens (Odom) was a non-resident of Mississippi, that her residence was 323 Barbour Drive, Prichard, Alabama, summons was issued by the Chancery Clerk of Wayne County to the sheriff of Wayne County, and the sheriff’s return shows that chancery summons was personally served on Mrs. Stevens (Odom) on October 26, 1973. On October 10, 1973, Mrs. Stevens (Odom) filed in the Chancery Court of Wayne County a Petition for Citation for Contempt against Curtis Ray Stevens' in which she contended that Stevens was in contempt of court because he had refused to return the three children to her as required by the agreed decree of December 18, 1972, of the Wayne County Chancery Court. Citation for contempt returnable at 9 A.M. on October 19, 1973, was personally served on Stevens on October 11, 1973.

The Wayne County Chancery Court held a hearing on both the Petition to Modify and the Petition for Citation for Contempt on October 19, 1973, and entered an order modifying the agreed decree of December 18, 1972, by awarding temporary custody of the three minor children to Curtis Ray Stevens. The chancellor found in his order that the question of a bigamous marriage by Mrs. Stevens created a serious doubt as to her fitness to have custody of the children.

On November 30, 1973, the Chancery Court of Wayne County entered a “Final Decree of Custody of Children” awarding permanent custody of the three minor children to Curtis Ray Stevens. In this decree the chancellor found that even though James William Odom had obtained a divorce from Marlene Odom in Mobile County, Alabama, on October 23, 1973, and Myra Ella Stevens had again attempted to contract a ceremonial marriage with Odom in Wayne County on October 26, 1973, that this second attempted marriage was not valid because the Alabama decree provided “in no event should either party contract a marriage before the expiration of 60 days after the rendition of the decree”. The court found that there had been a material change of circumstances since the agreed decree of December 18, 1972, and that permanent custody should be awarded to the father, Curtis Ray Stevens.

Thereafter, on March 14, 1974, Myra Ella Stevens (Odom) filed a Petition in the Chancery Court of Wayne County to modify the final decree of November 30, 1973, and to again award custody of the three children to her because her marriage to Odom had been made legal and that she had a “good, loving and proper home in which to rear the minor children.”

On March 21, 1974, Mrs. Stevens (Odom) filed in the Chancery Court of Wayne County a Petition for Writ of Habeas Corpus to obtain visitation privileges with the minor children as provided in the decree of November 30, 1973. In his answer, filed May 6, 1974, to this petition for writ of habeas corpus, Stevens included as exhibits an Ex Parte Petition for Instanter Custody, filed in the Circuit Court of Mobile County, Alabama, and an Order dated February 19, 1974, granting the Ex Parte Petition for Instanter Custody and awarding custody to Curtis Ray Stevens.

On May 8,1974, the Wayne County Chancery Court entered an order continuing this case until the June, 1974, term of court. On September 16, 1975, the new attorney for Myra Ella Stevens Odom, Honorable W. Vol Jones, Jr., filed a motion in the Chancery Court of Wayne County to set aside void proceedings, which motion was overruled by order entered the same day.

The appellant assigns as error that the Wayne County Chancery Court:

(1) Exceeded its jurisdiction in entering the agreed decree of December 18, 1972, which went beyond the prayer of the petition for writ of habeas corpus wherein only custody of Kenneth Ray Stevens was prayed for.
(2) Erred in not giving full faith and credit to the decree of divorce of the Circuit Court of Mobile County, Alabama, dated November 16, 1972.
(3) Erred in its failure to sustain the motion' to strike void proceedings.

All three of these assignments of error are well taken.

In Gray et ux. Gray, 121 Miss. 541, 83 So. 726 (1920), this Court said:

“After awarding the custody of a child to the party entitled thereto, the judge in a habeas corpus trial is without power to direct the manner in which such party shall exercise his lawful authority over such child, or to direct that he shall thereafter surrender, though temporarily, the custody thereof to another person. The judge does not, merely because he presided in a habeas corpus trial in which the right to the custody of a person was determined, thereby acquire perpetual jurisdiction over the custody and welfare of such person. When the order entered by him either freeing the person from restraint or awarding his custody to the party entitled thereto has been executed, the judge’s jurisdiction in the matter is at an end unless and until it is again invoked by the issuance of another writ of habeas corpus.” 121 Miss. at 545, 83 So. at 726-27. (Emphasis added).

The fact that the decree, entered on December 18, 1972, by the Chancery Court of Wayne County in the habeas corpus proceeding, was an agreed decree makes no difference. The continuing jurisdiction of the subject matter, namely, the custody and support of the three children of the marriage, was in the Circuit Court of Mobile County, Alabama, by virtue of the Decree of divorce and custody entered November 16, 1972, by that Court.

In Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752 (1955), this Court said:

“We consider the sole question of whether the court ha[s] jurisdiction of the subject matter.
“It is a universal rule of law, recognized by the text writers and every court dealing with the question, that parties cannot, by consent, give a court, as such, jurisdiction of subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be increased or diminished by the consent of the parties. [Citations omitted].
“It is equally well settled that a judgment rendered by a court having no jurisdiction of the subject matter is void, not merely voidable, and may be attacked directly or collaterally, anywhere, and at any time. Such a judgment is a usurpation of power and is an absolute nullity. [Citations omitted].” 224 Miss, at 552, 80 So.2d at 754.

The only part of the agreed decree of December 18, 1972, which was valid is that part finding that the petitioner, Myra Ella Stevens, was entitled to the custody of Kenneth Ray Stevens in accordance with the divorce decree of the Circuit Court of Mobile County, Alabama.

The order overruling the motion to set aside void proceedings is reversed, and an order will be entered here sustaining the motion to set aside as void all proceedings in the Chancery Court of Wayne County, Mississippi, with the single exception noted above.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Odell COOLEY v. STATE of Mississippi.
    No. 49737.
    Supreme Court of Mississippi.
    June 1, 1977.

      Buckley & Ford, Carl D. Ford, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and PIGOTT, Commissioner.
   JOE N. PIGOTT, Commissioner for the Court:

This is an appeal from a conviction of murder and life sentence. The facts are not set out herein as the case must be reversed and remanded for a new trial.

The testimony of the appellant and his witnesses made an issue of fact as to self-defense. Over timely objection of the defendant, the court granted Instruction No. 4 requested by the State, which is as follows:

The Court instructs the jury that while malice aforethought is a necessary ingredient to the crime of murder, still “malice aforethought” means the same as killing a human being with the deliberate design to effect the death of the person killed; and that this malice aforethought and deliberate design does not necessarily mean hatred or ill will, and need not exist in the mind of the Defendant for any definite time, nor for days or hours or even minutes, but if the deliberate design to kill exist at the time of the killing, this [sic] sufficient premeditation and deliberation to constitute the offense.

In Pittman v. State, 297 So.2d 888 (Miss., 1974), the Court considered this same instruction and held it to be reversible error in that form, stating on page 893:

The vice of the instruction is that it requires the jury to convict the defendant of murder if it finds that premeditation or deliberate design to kill the deceased existed at the time the killing occurred. The instruction fails to inform the jury that there are instances in which a deliberate design to kill may exist at the moment the fatal blow was struck and yet the homicide may be justifiable or excusable .
This instruction pared away the rights of the defendant and required the jury to find him guilty of murder even though the killing might have been justifiable by reason of self-defense. One may have a deliberate design to kill and yet not be guilty of murder.

See also Newell v. State, 308 So.2d 71 (Miss., 1975).

It is argued that the instruction is not erroneous when read with the other instructions. This argument was also made and answered in Pittman, supra, at page 893, wherein the Court said:

The instruction under consideration is in irreconcilable conflict with other instructions. The defendant’s self-defense instructions did not cure the error because they are in hopeless conflict with the last clause of this instruction. Hudson v. State, 295 So.2d 766 (Miss., 1974); Butler v. State, 177 Miss. 91, 170 So. 148 (1936).

The error in Instruction No. 4 is not cured by Instruction No. 8 for the State which, in itself, is erroneous as an abstract statement. Instruction No. 8 follows:

Deliberate design to kill is all that is required by Mississippi Law to make a homicide a murder. Deliberate design means intent to kill, without authority of Law and not being legally justifiable, legally excusable or under circumstances that would reduct [sic] the act to a lesser crime.

We find no merit in the other assignments of error.

REVERSED AND REMANDED FOR A NEW TRIAL.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Clyde McGEE and Evelyn McGee v. Raymond CLARK and Mary Clark.
    No. 49217.
    Supreme Court of Mississippi.
    June 1, 1977.

      Felts, Russell & Adams, Nathan P. Adams, Jr., Abraham, Gleason & Powell, Claude H. Powell, Greenville, Wells, Gerald, Brand, Watters & Cox, Martha W. Gerald, Jackson, for appellants.
    Campbell & DeLong, Roy D. Campbell, Jr., Claude L. Stuart, III, Greenville, for appellees.
   LEE, Justice,

for the Court:

ON MOTION FOR FIVE PERCENT (5%) DAMAGES PURSUANT TO MISSISSIPPI CODE ANNOTATED SECTION 11-3-23 (1972)

The decree of the Chancery Court of Washington County ordering specific performance of an option contract involving land valued at three hundred thousand dollars ($300,000) was affirmed by this Court on March 16, 1977 [McGee v. Clark, 343 So.2d 486 (Miss.1977)]. Appellees have filed a motion for the awarding of damages as set out in our Rule 19.

Mississippi Code Annotated Section 11-3-23 (1972) provides for damages on certain judgments and covers five (5) categories of cases:

“In case the judgment dr decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect, the supreme court . shall, render judgment against the appellant for damages, at the rate of five per centum and costs, as follows:
[1] If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum.
[2] If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property.
[3] If the judgment or decree be for the dissolution of an injunction or other restraining process at law dr in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained.
[4] If the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or
[5] be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree.”

Clearly, if appellees may recover five percent damages, they must come within Category No. 5.

Bancroft v. Martin, 144 Miss. 384, 109 So. 859 (1926), was a suit for specific performance on a contract to convey land. The trial court dismissed the bill and this Court affirmed. The appellee claimed five percent (5%) damages under the statute, contending that he had filed a lis pendens notice in the suit and that it involved a judgment to enforce or establish a lien or charge or claim upon or some interest in property. This Court said:

“The decree of the court below did not enforce or establish any lien or charge or claim upon or any interest in the property involved in the suit; it simply declined to enforce or establish a claim thereto asserted by the appellant.
The statute is highly penal, and must be strictly construed.” 144 Miss. at 392, 109 So. 859.

Subsequently, the case of McKendrick v. Lyle Cashion Company, 234 Miss. 325, 104 So.2d 295, 105 So.2d 480, 106 So.2d 509 (1958) sought to establish an interest in oil lands, which relief was refused, and damages were not allowed. The Bancroft and McKendrick cases indicated that had specific performance been granted and an interest in the oil lands established, the five percent damages would have been allowed.

In Antley v. Mississippi State Highway Commission, 318 So.2d 847 (Miss.1975), Antley appealed from an award of thirteen thousand dollars ($13,000) for land condemned by the Mississippi State Highway Commission. The award was affirmed and, in allowing five percent (5%) damages to appellee, the Court said:

“Antley stands before this Court as any other litigant. When he appealed he was faced with the possibility of being taxed with appeal costs and damages as a condition of his appeal. He is not entitled to an appeal free of the conditions imposed upon other appellants.” 318 So.2d at 851.

Damages follow affirmance of a case as a penalty for appealing from a proper judgment or decree. We hold that the decree of specific performance requiring appellants to convey the land involved to appellees established and enforced their claim upon the lands and that appellees are entitled to five percent (5%) damages as provided by Section 11-3-23, and judgment is entered accordingly.

MOTION SUSTAINED AND FIVE PERCENT (5%) DAMAGES OF FIFTEEN THOUSAND DOLLARS ($15,000) AWARDED.

All Justices concur.


text:
    ENGINEERING SERVICE COMPANY, INC. v. Carrie MINOR.
    No. 49472.
    Supreme Court of Mississippi.
    June 1, 1977.

      Watkins & Eager, Hassell H. Whitworth, George R. Fair, Jackson, for appellant.
    Wells, Tipton & Blalock, T. D. Blalock, Natchez, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

The action arose as a result of a fall suffered by Carrie Minor while she was visiting the home of her mother on July 28, 1970. Mrs. Minor alleges that agents of the defendant, Engineering Service Company, Inc., negligently stretched a metal tape or chain across her mother’s porch while they were conducting a survey on the land. The first trial in the Circuit Court of Adams County resulted in a mistrial because the jury failed to agree upon a verdict. The second trial resulted in a directed verdict for the defendant, which was reversed by this Court. Minor v. Engineering Service Co., 304 So.2d 45 (Miss.1974). This Court construed the defendant’s inartfully drafted pleadings as an admission “that its employees in fact did place the tape across the porch.” Id. at 48. We held that this admission, together with the evidence presented by Mrs. Minor, was sufficient to withstand the motion for a directed verdict, and consequently we remanded the case “for another trial.” Id.

On July 8, 1975, before the third trial of this case, the defendant asked for leave to amend its answer so as clearly to deny that its employees had stretched a tape or chain across the porch belonging to Mrs. Minor’s mother. On July 14, 1975, Mrs. Minor filed a motion in opposition to the defendant’s request for leave to amend. A hearing was held on July 15, 1975, and the trial court allowed the amendment. The case went to trial for the third time on December 9,1975. During Mrs. Minor’s testimony, the defendant objected to her attempts to recount the statements of one Lowery Martin, who allegedly admitted at the time of the accident that he was an employee of the defendant and that he had stretched the chain across the porch. At that point, Mrs. Minor moved to strike the defendant’s amended answer for being contrary to the testimony adduced in the previous trials. The court granted the motion to strike. The court proceeded with the trial of the ease, overruling defendant’s motion for a directed verdict, and the jury returned a judgment of $45,000 in favor of Mrs. Minor. In its appeal, the defendant assigns as error the granting of the motion to strike, the overruling of his motion for a directed verdict, and the admission of Mrs. Minor’s testimony that Martin had admitted that he worked for the defendant and had stretched the tape across the porch.

The common denominator of all three assignments of error is the defendant’s contention that it has never been proved that its employees in fact placed the tape across the porch. On the contrary, that fact was proved by the defendant’s own witnesses. Lowery Martin, offered by the defendant, testified that he had been one of the defendant’s employees for six years. He further testified that his crew was surveying in the vicinity of Mrs. Minor’s home on the day of the accident. He said that they were using a 200 foot metal tape. John Williams, another of the defendant’s witnesses, testified that he had been a member of the crew that day. On cross-examination, he testified that his crew had indeed stretched its chain across the porch. Thus, the defendant’s own witnesses established beyond dispute the very facts which it claimed Mrs. Minor failed to prove.

It may very well be true that the court ought not to have stricken the defendant’s amended answer. It might likewise be true that Mrs. Minor’s testimony of Martin’s admission was improperly admitted. Finally, it might also be true that the defendant was entitled to a directed verdict at the close of the plaintiff’s evidence. However, the defendant waived its right to object to the overruling of its motion for a directed verdict by choosing to present evidence in its own defense. See, e. g., Watts v. State, 317 So.2d 715, 716 (Miss.1975). At the close of the defendant’s evidence, the court was obliged to consider all the evidence presented by both parties. See Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 656 (Miss.1975). Upon consideration of the testimony of Martin and Williams, it is uncontradieted that they acted as the defendant’s agents at the time of the accident. The court was fully justified in sending the case to the jury on the issues of negligence and damages alone. The conduct of a trial is primarily the search for truth, and we are satisfied that the truth has been discovered in this case. We therefore affirm the judgment.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    Charles Lee HOWARD v. STATE of Mississippi.
    No. 49744.
    Supreme Court of Mississippi.
    June 1, 1977.

      Hallie Gail Bridges, Belzoni, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER.
   WALKER, Justice,

for the Court:

On the afternoon of January 9, 1976, an automobile driven by Charles Lee Howard left the highway and collided with another car which was stopped at an intersection. Two witnesses testified that Howard’s car had been traveling at a speed of 90 to 95 miles per hour, and two law enforcement officers who had gone to the scene of the accident testified that they believed that Howard was extremely intoxicated. Howard himself admitted that he passed out before the accident. Three occupants of the other car, Angela Evans, also known as Angie Lee Winston, Richard Clayborne, and Debbie Whitacre, perished in the accident. Howard was indicted, tried, and convicted for manslaughter in connection with the death of Angie Lee Winston in the Circuit Court of Humphreys County. In his appeal, he objects to the admission of numerous pieces of evidence and contends that the State did not prove him guilty of culpable negligence, as required by Mississippi Code Annotated section 97-3-47 (1972).

Rachel Clayborne and her sister, Christine Clayborne Pinkston, were passengers in the car struck by Howard. Both of them testified, in addition to the death of Angie Lee Winston, though without detail, as to the deaths of Debbie Whitacre and their brother Richard, although only the death of Angie Lee Winston was charged in the indictment. Howard contends that their testimony amounts to evidence of crimes not charged. There is no merit in this contention. Similar facts were presented in the case of Ford v. State, 226 So.2d 378 (Miss.1969), in which two children were killed in an automobile collision, only one of whom was named in the indictment. The Court held that the testimony as to the death of the second child was part of the res gestae. “We hold in the present case that the death of the two children are so closely related and connected as to make it practically impossible in developing the facts to exclude any discussion as to the other.” Id. at 381. This case is indistinguishable from Ford and we conclude that the court made no error in allowing the testimony.

Howard also contends that Rachel Clayborne was incompetent to give her opinion as to the speed of Howard’s vehicle. The general rule is that “a witness who observed the moving object in question will be permitted to estimate its speed if he possesses some knowledge or experience, however slight, which will enable him to form an opinion.” 32 C.J.S. Evidence § 546(53) (1964). The rule that lay witnesses may be qualified to give their opinions as to speed has been approved in dictum by this Court in Ming v. City of Jackson, 202 Miss. 260, 267-68, 31 So.2d 900, 901-02 (1947). Miss Clayborne’s testimony clearly indicated that she, like most people had at least some prior experience in judging speed. Accordingly, her testimony was properly admitted.

Steve Coston testified that Howard’s car passed his truck less than a mile from the scene of the accident. Coston estimated Howard's speed at 90 or above. Lee than a minute later, Coston saw smoke rising from the scene of the accident. Howard contends that Coston’s testimony is too remote to have any probative value on the issue of Howard’s speed at the time of the accident. Even though Coston did not see the accident, his testimony is admissible “where the circumstances are such, because of the nearness of the prior speed to the collision and point of time and distance or because of other factors, that the prior speed has substantial evidential value as to speed of the vehicle at the time of, or immediately before, the collision.” Barrett v. Shirley, 231 Miss. 364, 373, 95 So.2d 471, 474 (1957). Whether the incident in question was near enough in time and space to the accident to have probative value is largely a question of degree, and is best left to the discretion of the trial judge. Baxter v. Rounsaville, 193 So.2d 735, 738 (Miss.1967). We cannot say that the trial judge abused his discretion in allowing this testimony.

Howard further contends that the opinions of the highway patrolman and the sheriff as to his intoxication should not have been admitted. Our law is clear that a layman’s opinion “based on observation and the surrounding facts and circumstances”, is admissible on the issue of intoxication. Hutson v. Continental Cas. Co., 142 Miss. 388, 395, 107 So. 520, 522 (1926). Both officers' testified clearly and in detail as to the facts on which they based their opinions. There was no error committed in allowing their opinions into evidence.

The trial court admitted into evidence a tape recording of an interview between Howard and the arresting officers made soon after the accident. Howard explicitly stated that he did not remember any of the events pertaining to the accident, and said, “Well, I think that I passed out before my accident.” Howard makes no contention that he was not advised of his rights, nor does he argue that he did not understand his rights. Rather, he argues that his admission that he passed out constituted an opinion on the ultimate issue in the case. He cites several cases on opinion testimony, but cites no relevant authority in support of the proposition that the defendant’s own admission of unconsciousness can conceivably be classified as an opinion. The trial judge committed no error in admitting the tape recording into evidence.

Finally, Howard contends that the evidence presented by the State does not support his conviction. To sustain a conviction for manslaughter on the grounds of culpable negligence, the evidence must prove the defendant’s “conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk thereof.” Frazier v. State, 289 So.2d 690, 692 (Miss.1974). The jury could reasonably conclude from the evidence presented that Howard wilfully created an unreasonable risk of fatal consequences to others by driving while extremely intoxicated at an unreasonable rate of speed vastly exceeding the posted limit. The jury was eminently justified in concluding that, after wilfully creating such a risk, that Howard wantonly and recklessly disregarded the threat it posed to human life. This Court can imagine no negligence more culpable than to drive in an extremely intoxicated condition at a rate of 90 miles an hour. The record manifestly supports the verdict of the jury.

There being no merit in any of the defendant’s assignments of error, his conviction and sentence of fifteen years in the custody of the State Department of Corrections are affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    Lola CROCKER v. SEARS, ROEBUCK AND COMPANY.
    No. 49987.
    Supreme Court of Mississippi.
    June 1, 1977.

      Laurel G. Weir, Philadelphia, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Lola Crocker brought this action for breach of warranty in the Circuit Court of Neshoba County, Mississippi, seeking to recover damages resulting from the destruction of her home by a fire allegedly caused by an alleged defect in a stove she purchased from \, Roebuck and Company. At the close of her evidence, the trial court directed a verdict in favor of the defendant. We affirm.

Mrs. Crocker contends that County Judge H. C. “Mike” Watkins of Lauderdale County, Mississippi, had no authority to sit as a special circuit judge of the Eighth Judicial District, and that the court’s judgment against her is therefore void. The source of Judge Watkins’ authority is not apparent on the face of the record. It is unclear whether he claimed his position by virtue of Mississippi Code Annotated section 9-1-13 (1972), which provides for the appointment of special judges, or by virtue of Mississippi Code Annotated section 23-5-247 (1972), which provides for the filling of vacancies in judicial offices. In any event, Mrs. Crocker cannot raise the question of Judge Watkins’ qualifications before this Court. Judge Watkins was at least a de facto circuit judge of the Eighth Judicial District, and Mississippi Code Annotated section 25-1-37 (1972) makes his acts valid against all persons affected thereby:

The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not .

It is clear to us that Judge Watkins was at least a de facto officer. This court adopted the following definition of a de facto officer in Adams v. Mississippi State Bank, 75 Miss. 701, 725, 23 So. 395, 398 (1898), most recently approved in Raper v. State, 317 So.2d 709, 711 (Miss.1975): “An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto.” There is nothing in this record from which we can conclude that Judge Watkins, a duly installed county judge, was without at least color of authority to sit outside his district, and we therefore conclude that he was at least a de facto judge.

A virtually identical situation appears in Bird v. State, 154 Miss. 493, 122 So. 539 (1929). In that case, the regular circuit judge had resigned after his election to Congress. The acting Governor appointed a special judge, who was not a resident of the district, to serve in his place. It is interesting to note that in that case the appellant objected at trial to the judge’s authority to hold court, and filed with this Court a bill of exceptions reciting the circumstances of the judge’s appointment. Neither one of those steps was taken in this case. Despite the appellant’s efforts, the court, relying on the statutory provision now found in Mississippi Code Annotated section 25-1-37 (1972), held that the appellant could not complain of having been tried before a de facto judge. We reach the same conclusion in this case as the Court reached in Bird:

It is well settled in this state that the acts of a de facto judge are valid, regardless of whether he was properly appointed or qualified or not, and we deem it unnecessary to pass upon the question as to whether the judge should have been appointed from the resident attorneys of the district, and whether or not the effect of his appointment, under the laws, was to hold until an election was held or only until the special term of the court was over. But the appellant was not in [a] position to challenge his right to hold office, the right to question his holding the office being for the state alone to raise in an appropriate proceeding. (Id. at 500, 122 So. at 540).

We hold that Mrs. Crocker cannot complain of having her case heard before Judge Watkins.

Mrs. Crocker’s other assignment of error is that the court erred in granting a directed verdict for Sears. She contends that her evidence was sufficient to reach the jury. In their briefs, the parties dispute whether Mrs. Crocker’s action was based on the implied warranty of merchantability found in Mississippi Code Annotated section 75-2-314 (1972), an express warranty as governed by Mississippi Code Annotated section 75-2-313 (1972), or a tort theory of products liability. It is unnecessary for us to determine the precise nature of Mrs. Crocker’s suit. Whether her action sounds in warranty or in tort, she still must prove that the defect in the product caused the damage of which she complained. Annot., 80 A.L.R.2d 598 § 18 (1961). Mrs. Crocker failed to introduce evidence from which the jury could have inferred that the destruction of her house was caused by a defect in her stove.

Mrs. Crocker testified that the stove would always be hot and would not cool down. It would make a racket and smoke when she turned it on. “It smelled like something that was going to burn.” We need not consider whether the jury could have determined from this testimony that the stove was defective, because there is no evidence from which they could have concluded that the alleged defect caused the fire. Mrs. Crocker’s testimony about the cause of the fire is reproduced at length:

A. I had lay down in my bedroom, which adjoins the kitchen, to the left of the kitchen. ... I was awakened by some kind of a racket.
Q. Where was the racket coming from?
A. From the kitchen.
Q. What part of the kitchen?
A. It sounded like the stove.
Q. Now, then, what did you do?
A. Well, I tried to get up. ... I pushed myself up off of the bed, and I saw the flames coming.
Q. Where was the flames coming from?
A. Through the window that — there was a window about two or two and one-half foot square over the stove that went in towards my bedroom, ■ and that’s where the flames was coming in, through there.
Q. Well, after you looked there, could you see where the flames began and started from?
A. All I could see the flames—
BY MR. CLAPP:
We object, Your Honor.
BY THE WITNESS:
—was coming from where the stove was, coming in my room, through the window, and it was smoke everywhere. You couldn’t see anything.
BY THE COURT:
Over-ruled.

Mrs. Crocker introduced no other evidence relating to the cause of the fire.

Furthermore, at least two other possible causes of the fire are revealed by the testimony. Mrs. Crocker testified that, at the time of the fire, the house was in the process of being remodeled and that it had been completely rewired. Moreover, Sears merely delivered the stove; they did not install it. The fire might well have arisen from negligent installation rather than defective manufacture. In the light of this evidence, the jury would have to engage in pure speculation to conclude that the fire was caused by the defective manufacture of the stove.

In the past, this Court has not hesitated to reverse awards in favor of buyers in warranty cases where there was no evidence connecting the damage to the defect. In Goyer Co. v. Henderson, 240 Miss. 709, 128 So.2d 569 (1961), the plaintiff contended that his cotton picker was ruined by the use of a faulty grade of oil recommended by the seller. In that case, the plaintiff introduced much more evidence than Mrs. Crocker did here, including the expert testimony of two mechanics. As to the cause of the damage, one mechanic testified: “It could be the lack of oil, or it could be a number of items that could cause it.” Id. at 715, 128 So.2d at 571. Thus, as here, the evidence revealed several possible causes of the damage, and this Court held it improper to allow the jury to guess which the cause might have been:

The jury necessarily had to resort to speculation, guess and conjecture as to the cause of the machine wearing out. This is not sufficient to sustain the judgment. The record reveals that plaintiff failed in his proof and the peremptory instruction should have been given appellant. (Id. at 716, 128 So.2d at 571).

See also Newton Coca-Cola Bottling Co. v. Shaw, 236 Miss. 890, 112 So.2d 374 (1959).

Since Mrs. Crocker failed to introduce evidence from which the jury could reasonably conclude that a defect in her stove caused the fire which destroyed her house, the trial court acted properly in directing a verdict in favor of Sears. There being no further assignments of error, the judgment must be affirmed.

AFFIRMED.

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

LEE, J., took no part.


author: SUGG, Justice, ROBERTSON, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. George O. PRESCOTT et al.
    No. 49340.
    Supreme Court of Mississippi.
    June 1, 1977.

      Talmadge D. Littlejohn, Rodney E. Shands, New Albany, for appellant.
    Darden & Sumners, Lester F. Sumners, New Albany, for appellees.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

This is an appeal from an order of a Special Court of Eminent Domain in Union County denying the petition of the Mississippi State Highway Commission to enroll a judgment against George 0. Prescott.

The Commission filed a petition to condemn 0.59 acres of land for highway purposes under the provisions of Mississippi Code Annotated sections 11-27-81, et seq. (1972). The petition named George O. Prescott and Evelyn Prescott, owners,' and North Mississippi Savings and Loan Association, mortgagee, as the persons with an interest in the property to be condemned. The judge of the Special Court of Eminent Domain appointed an appraiser to appraise the property and, after the report of the appraiser was filed, entered an order granting the Commission the right to immediate entry. The appraiser fixed the value of the property at $6,500 and the Commission deposited eighty-five percent ($5,525) of the amount of the appraisal with the clerk of the court. The amount deposited was paid on December 28, 1973 to “George O. Prescott et al.” as shown by the certificate of the circuit clerk. The case came on for hearing and the jury fixed the damages for taking the property at $2,700. Judgment was entered on the jury verdict on February 8, 1974.

The Commission filed a petition to enroll a judgment against George O. Prescott on January 27, 1975 and alleged that it was entitled to a personal judgment against George 0. Prescott for the difference between the deposit and the jury verdict. Mississippi Code Annotated section 11 — 27— 87 (Supp.1976).

The petition to enroll the judgment was properly denied for three reasons:

First, George O. Prescott was the only party against whom relief was sought while the record shows that the deposit was disbursed to George 0. Prescott et al.

Second, before a judgment, may be enrolled, there must be a judgment to enroll.

Third, an eminent domain court is a special court and when it is convened and concluded the matter or matters for which it was convened and a final judgment is entered, it automatically goes out of existence and no longer has jurisdiction to determine any matters filed thereafter, unless an order has been entered on its minutes granting additional time within which to file such matters. Mississippi State Highway Commission v. Gresham, 323 So.2d 100 (Miss.1975); Mississippi State Highway Commission v. First Methodist Church of Biloxi, 323 So.2d 92 (Miss.1975); Mississippi State Highway Commission v. Taylor, 293 So.2d 9 (Miss.1974). Therefore, the Special Court of Eminent Domain did not have jurisdiction to entertain the petition to enroll a judgment.

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

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, WALKER, BROOM and LEE, JJ., concur.

ROBERTSON, Justice,

specially concurring:

I concur in the decision reached that the petition to enroll judgment was properly denied.

The quick-take statute was superimposed by the Legislature on existing eminent domain law. It would be an understatement to say that the patchwork quilt of eminent domain law is not quite clear. However, I think that the intent and purpose of the Legislature, as expressed in its statutes, is quite clear and unambiguous as to the Commission’s responsibility and duty to pay over to the landowner the difference between the 85% deposit and the jury verdict where the jury verdict is larger, and as to the clerk’s and landowner’s responsibility, as the case may be, to pay over to the Highway Commission the difference between the 85% deposit and the jury verdict where the jury verdict is for less than the amount of the deposit.

I think that it was clearly the intent and purpose of the Legislature for all of this to be included in one comprehensive judgment rendered by the trial judge in the special eminent domain court.

In addition to the heavy responsibility resting squarely on the shoulders of the attorneys for the litigants to see that a proper and comprehensive judgment is prepared and presented to the trial judge, a measure of responsibility and duty rests upon the judge himself to see that the judgment which he renders is complete in all respects. After all, every step along the way is reflected in an order of the trial judge and is a matter of record in his court.

Mississippi Code Annotated, section 11-27-27 (1972), provides:

“§ 11-27-27. Transfer of title — procedure.
“Upon the return of the verdict and entry of the judgment, the applicant shall pay to defendants, or to the clerk if defendants absent themselves, the differences between the judgment and deposits previously made, if any; shall pay the costs of court, including the cost of jury service as is otherwise provided by law for the court in which the case is tried. Then, ownership of the property described in the petition shall be vested in petitioner and it may use said property as specified in the petition. If deposits previously made exceed the judgment, then the clerk or defendant to whom disbursement thereof has been made, as the case may be, shall pay such excess to the petitioner.” (Emphasis added).

Mississippi Code Annotated, section 11-27-29 (1972), styled “Appeals” again repeats the intent and purpose of the Legislature with this language:

“If the judgment be in excess of the sum, if any, deposited, and the petitioner, other than the state of Mississippi or any political subdivision thereof, desires an appeal, he shall deposit a sum, or a good and sufficient surety bond with a surety company authorized to do business in the state of Mississippi acceptable to the clerk, equal to double the amount of the judgment, less the amount of the deposit, if any, which shall be held exclusively to secure all damages assessed against petitioner. In any case where the deposit exceeds the compensation to be paid the defendants as determined by the final judgment, the excess shall be returned to the petitioner.” (Emphasis added).

In view of the fact that the special court of eminent domain had concluded the matter for which it was convened and a final judgment entered on February 8, 1974, the court of course had gone out of existence and could not consider and act upon a petition filed almost a year later on January 27, 1975.

It seems to me that the proper procedure now would be for the Commission to make demand upon the landowner that he pay the difference, between the deposit and the jury verdict, to the Highway Commission, as is clearly required under the provisions of Mississippi Code Annotated, sections 11— 27-27 and 11-27-29 (1972), and section 11-27-87 (1976 Supp.). If the landowner fails or refuses to promptly pay the difference to the Commission, then, according to my way of thinking, the Commission is clearly entitled to recover the difference in a separate suit brought against the landowner or landowners, as the case may be.

PATTERSON, P. J., joins in this opinion.