author: BOWLING, Justice,

text:
    FRENCH DRUG COMPANY, INC. v. Rollie JONES.
    No. 50672.
    Supreme Court of Mississippi.
    Nov. 8, 1978.

      Bryant & Stennis, Thomas L. Stennis, II, Gulfport, for appellant.
    Boyce Holleman, Otto Albert Wusnack, Ben F. Galloway, III, Jim W. Rose, Gulf-port, for appellee.
    Before PATTERSON, SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal is from the Circuit Court of Harrison County, Mississippi. Appellee, Rollie Jones (plaintiff below), secured a jury verdict and judgment thereon in the sum of $135,000 against appellant.

The declaration of appellee charged that on June 11, 1974, his physician prescribed a drug known as “Ethatab.” It is then charged that the pharmacist who prepared the drug called for in the prescription negligently substituted “Estratab” rather than the drug called for in the prescription. It was alleged that appellee took the drug erroneously sold him until May, 1975, and that as a result thereof he suffered damages as hereinafter will be discussed in this opinion.

The principal facts to be considered in this opinion are not seriously disputed. Ap-pellee’s evidence was that he had sustained frost bitten legs and feet during the “Battle of the Bulge” in World War II, and since that time he had had circulation problems with his legs. In 1970, he had undergone an operation that severed certain nerves that affect the blood vessels of the legs but that these procedures did not relieve the pain he was having. In June, 1974, upon another’s recommendation, he was examined by Dr. William G. Jennings, a neurologist in Memphis, Tennessee. After being confined to a hospital for several days, during which time various tests and examinations were conducted, appellee was discharged to return home. At that time he was given prescriptions for two drugs by Dr. Jennings. Both of these drugs were to aid circulation in appellee’s legs. Upon returning home the prescriptions were taken to the drug store owned and operated by appellant. As charged in the declaration, the pharmacist substituted “Estratab” for the prescribed drug “Ethatab.” It is undisputed that “Estratab” is a female hormone. Shortly after beginning to take the prescribed doses of the drug, appellee began to notice certain troubles and changes. His breasts started to become enlarged; he suffered continuous nausea; physical and mental fatigue; and loss of memory. According to his testimony and that of the treating physicians and psychiatrists, he immediately became impotent, which caused certain psychological disorders. As hereinbe-fore stated, he continued taking the medication until the error was discovered in May, 1975. After discontinuing the erroneously filled prescription, it appears that ap-pellee’s physical problems such as tender and enlarged breasts, nausea, loss of hair, and certain other physical disabilities ceased.

During the period of time the female hormone drug was taken, appellee continued to suffer with his legs. According to appellee and his physicians and psychiatrists, he continued having the impotency problem. At the time of the trial in September, 1976, he was under the care and treatment of at least one psychiatrist, and, according to him, treatment for another year or two would be necessary. The evidence of appellee was that the entire situation had caused a deterioration in his family life and relationship with his wife.

Appellant alleges the following assignments of error:

1. The Court erred in granting Appellee a peremptory instruction.
2. The Court erred in granting Appel-lee’s instruction P14A, P15 and C17A by the court.
3. The Court erred in refusing Appellant’s instruction 21A on inference of unfavorable testimony from uncalled Drs. Culler and Hamilton.
4. The Court erred in granting certain other Court instructions and in refusing certain Appellant instructions.
5. The Court erred in requiring Dr. Jay Seastrunk to leave counsel table after Seastrunk had advised appellant at counsel table throughout most of trial as expert and the court erred in refusing to permit Dr. Jay Seastrunk to testify.
6. Mississippi’s medical privilege statute, section 13-1-21, Mississippi Code of 1972, is unconstitutional on its face and if not on its face because of the way it was applied to the instant facts because it violated appellant’s constitutional guarantees of fair trial, right of cross-examination, Fifth Amendment and Fourteenth Amendment to the Constitution of the United States because of violation of due process of law, deprivation of property and equal protection as well as Sections 14 and 24 of the Mississippi Constitution because as applied it promulgates injustice, suppresses the truth, encourages the denial of equal protection, due process and justice.
7. The Court erred in allowing testimony of Dr. Wade and Dr. Ball because (1) Wade and Ball received their history from nurses, other doctors, plaintiff’s attorney and appellee in violation of the hearsay rule; (2) they were employed by appellee’s attorneys during pendency of suit thus history received even from ap-pellee violated hearsay rule; and (3) no proper predicate was laid for their testimony through proper hypothetical.
8. The verdict is against the overwhelming weight of testimony, is wrong as a matter of law, and so excessive as to evince bias, passion and prejudice on behalf of the jury in favor of appellee and against appellant.

Upon conclusion of the evidence the lower court peremptorily charged the jury to return a verdict for appellee. We find that this was proper. As hereinbefore stated, it is undisputed that Dr. Jennings prepared a proper prescription and that it was filled erroneously by appellant. The evidence does not show a substantial disagreement with the charge that the error was made. All courts have held that a druggist is required to use a high standard of care in dispensing drugs on prescriptions of physicians, and that when he negligently supplies a drug other than the drug requested, he is liable for resulting harm to the purchaser. Edelstein v. Cooke, 108 Ohio St. 346, 140 N.E. 765 (1923); Knoefel v. Atkins, 40 Ind.App. 428, 81 N.E. 600 (1907); Tombari v. Connors, 85 Conn. 231, 82 A. 640 (1912); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Hoar v. Rasmusen, 229 Wis. 509, 282 N.W. 652 (1938); Fuhs v. Barber, 140 Kan. 373, 36 P.2d 962 (1934).

We agree with the authorities holding that a druggist or pharmacist is held to a high standard or degree of care in filling drug prescriptions. It is inescapable that appellant did not use the required degree of care by substituting the female hormone drug for the blood circulation drug called for in appellee’s prescription. The lower court correctly granted the peremptory instruction.

Appellant alleges error in the granting by the court of appellee’s instructions P14A, P15 and C17A. We carefully have studied all of the instructions. As heretofore seen, the issue of liability was settled by the peremptory instruction. The record reveals that the lower court gave full and complete instructions on all other phases of the case. Instruction P15 is a general damage instruction. It correctly admonishes the jury as to what elements of damage it should consider and we can find no error whatever in its language and plain instruction to the jury. It fully and completely follows the evidence regarding the elements of damage sustained by appellee and requires the jury to find those elements to be proven by a preponderance of the evidence.

Instructions P14A and C17A refer solely to guidelines regarding a jury finding of contributory negligence by plaintiff. Number C17A, given by the court, instructed the jury that if the plaintiff did not use reasonable care after securing the erroneous drug by seeking medical advice or attention or any act that a reasonable man should have done in the circumstances, then the jury could find the plaintiff guilty of contributory negligence and reduce the damages accordingly.

Instruction P14A was converse to C17A by instructing the jury that if plaintiff had no special knowledge of drugs or medicine and he was solely obeying directions for taking the prescription, and that in all actions after securing the wrong drug, plaintiff acted as a reasonable and prudent person similarly situated, then he was not guilty of negligence.

In the first place, it is extremely doubtful under the circumstances shown in the record that the evidence would authorize a finding by the jury that plaintiff was guilty of any contributory negligence in taking the erroneous drug. Regardless of this, the instructions are plain and unambiguous, and taken together, the jury in no way could have been confused or misled. They clearly set out the principles of contributory negligence that possibly might apply to the facts of the case.

Appellant alleges error by the court in refusing defendant’s offered instruction No. 21 A. This was the standard instruction informing the jury that by the appellee not offering testimony of Dr. O. Z. Culler and Dr. Ed Hamilton “in connection with the complaints and injuries alleged to have been suffered because of the wrongful taking of the drug ‘Estratab’ giving rise to this lawsuit,” then the jury may infer that the testimony of these doctors would have been unfavorable to plaintiff. There were three doctors who examined and treated the ap-pellee in 1970. Dr. Culler examined him, but was not qualified to treat the blood circulation condition so he referred him to Dr. Kirgis of Oschner Clinic in New Orleans. He did not perform any surgery. Upon appellee’s return to Gulfport, he conferred with Dr. Hamilton who performed the minor surgery of cutting nerves that affected the flow of blood in appellee’s legs. It is undisputed that this was not successful. Dr. Hamilton saw appellee only one time other than the time of the surgery. The erroneous drug was given in June, 1974. After that time appellee was examined and treated by his family physician, Dr. C. L. Klippenger and Dr. Catherine Pyron, both of Gulfport. The lower court granted appellant an instruction that because appellee did not offer either of these physicians, the jury might infer that their testimony would have been unfavorable to appellee.

There was no serious contention by any witness offered in the case that any damage suffered by appellee as a result of being given the female hormone was present in 1970. In fact, the evidence was otherwise. Of course, the appellant attempted to elicit on cross-examination of appellee’s physicians and the expert physician presented by appellant that there might have been a possibility of appellee having some trouble with potency in the past. At most, the evidence showed merely a surmise.

The briefs of both parties discussed the prior cases of this Court on the instruction in question. As stated above, the instruction was given pertaining to the two physicians who saw appellee for damages sustained because of the incident regarding the drug. The jury was fully impressed and we feel reasonably certain that it was called to their attention that these doctors were not offered by appellee and the court was instructing the jury that it could infer their adverse testimony. The jury had this strong inference before it regarding the allegations of the declaration and the evidence in the case. In no case has this Court held that a litigant has the right to an indefinite selection of non-testifying experts to invoke the inference that their testimony would be unfavorable.

In addition to other cases, the appellant cites Killings v. Metropolitan Life Insurance Company, 187 Miss. 265, 192 So. 577 (1939). In that case, the Court, through Justice Anderson, clearly set out the rights of those requesting an adverse inference instruction such as that requested here. In Killings, however, the Court held that it should be shown that the absent witness was material. In our opinion, the lower court was clearly within its discretion in holding that the two doctors who saw ap-pellee in 1970 were too remote from the matters being tried. It is essential for the lower court to have some degree of discretion in these matters and we cannot say error was committed unless it clearly was error. We do not think the lower court abused its discretion here. As stated above, the instruction was given regarding the absent treating physicians in the matter before the court.

Appellant complains of the court’s instruction C02 regarding the burden of proof placed on the plaintiff. A reading of that instruction clearly shows that the court placed as heavy a burden as could be placed. It required the plaintiff to prove and establish any essential element of his claim by a preponderance of the evidence. This clearly was not error.

As hereinbefore stated, we have examined all of the instructions and we can find no error in any that were given or refused.

Appellant employed Dr. Jay Seastrunk, a psychiatrist from New Orleans. On order of the lower court and after contest by appellee, he was permitted to attend and take part in the pretrial deposition of appel-lee that lasted for many hours. He attempted to sit with appellant’s attorneys at the counsel table and assist them in presenting the case. Appellee’s attorneys objected to this being done in the event Dr. Seastrunk was going to be offered as a witness later by the defendant. The court sustained this objection but appellant’s attorneys chose to keep the doctor by their side for advice and counsel during the trial.

Appellant cites cases both civil and criminal where an expert was allowed to testify after being in the courtroom and hearing evidence. In the several cases, cited, the opinion was based on a discretion on the part of the trial court in allowing a witness to testify after the “rule” was invoked. In the criminal cases, it is permitted that a psychiatrist may sit in the courtroom and listen to testimony and then testify. In no case has a contention been granted as requested here. Dr. Seastrunk not only in effect was an “attorney” during the taking of appellee’s deposition, but he continued to act in that capacity at the trial. Certainly the lower court did not abuse its discretion in then prohibiting him from testifying as an expert. Appellants were permitted to use an expert, Dr. Hansel Janet, in the normal and usual manner without having participated in the trial procedures.

Appellant contends, as has been contended before, that the medical privilege statute, Mississippi Code Annotated section 13-1-21 (1972), is unconstitutional. The constitutionality of this statute has been settled by the Court in several cases, including but not limited to Killings, supra; Yazoo & M.V. Ry. Co. v. Decker, 150 Miss. 621, 116 So. 287 (1928), and U.S.F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115 (1920).

Appellant complains of the admission of testimony from Dr. David Wade and Dr. Leonard Ball. Dr. Wade testified as an expert in endocrinology and metabolism. There could be no doubt of his qualifications. He explained. the uses and results of the drugs in question and explained the results of a man taking the drug “Es-tratab.” We carefully have examined the record and studied his testimony, including the hypothetical questions propounded him. We do not find any error in those questions or in any part of his admitted testimony. Also we have carefully read all of the testimony of Dr. Ball. He examined and treated appellee and as a result thereof gave clear opinions as to his diagnosis and proposed treatment. Due to his specialty, Dr. Ball had referred appellee to Dr. Clifton Davis, a prominent psychiatrist in that area. Dr. Davis was later called as a witness, and his testimony, obviously believed by the jury, fully corroborated all of the testimony of Drs. Wade and Ball. Dr. Davis had been treating appellee prior to the trial and stated that this treatment would continue for approximately two years thereafter.

Appellant contends that the verdict of the jury is against the overwhelming weight of the evidence and is so excessive as to evince bias, passion and prejudice. We realize that the verdict appears to be large. This is an unusual case of damages. The jury found that the error of appellant resulted in severe damage to appellee. He continued to have pain in his legs for approximately a year prior to the discovery of the error. During this time his breasts were hurting and were enlarging continuously; he suffered pain, nausea, and loss of memory; he was subjected continuously to much physical and mental fatigue. The evidence of the attending physicians and psychiatrists was that appellee had undergone almost a complete personality change. Moreover, he had been rendered impotent because of the continual taking of the drug and had experienced psychological disorders after the error was ascertained that resulted in undisputed damage. Also, he had been under the continuous treatment of physicians and according to the evidence, as obviously believed by the jury, this treatment would continue for at least another two years. From a study of the entire record of eight volumes of evidence, we cannot say that the verdict of the jury was so excessive as to constitute bias, passion and prejudice.

This Court has discussed its duty in this regard in numerous cases — none of which need to be cited in this opinion. Even though had we been members of the jury we might not have rendered a verdict in the amount rendered here, this Court, however, cannot substitute its opinion for that of the jury unless the evidence meets the yardsticks and criteria heretofore set out by this Court. We find no reversible error and the cause is therefore affirmed.

AFFIRMED.

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

WALKER, J., took no part.

Appendix to follow.

APPENDIX

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT

ROLLIE JONES PLAINTIFF

VERSUS NO. 15,504

FRENCH DRUG COMPANY, INC. DEFENDANT

INSTRUCTION NO. P-14a

The Court instructs the Jury that a general customer of a pharmacy who has no special or definite knowledge concerning drugs or medicines is allowed by the law to rely upon the pharmacist who holds himself out as one having a peculiar learning and skill to fill prescriptions properly, and such a customer cannot be guilty of negligence if, having no such special knowledge of drugs or medicine, he obeys the directions regarding the taking of the drug or medicine, which accompanies the drug container received from the drug store. Thus, if you find from a preponderance of the evidence in this case that Plaintiff Rollie Jones has no special knowledge of drugs or medicines or of estratabs, and you further find that he obeyed the directions located on the label of the estratab container and took the estra-tabs in accordance therewith and he acted as a reasonable and prudent man similarly situated and similarly educated would have acted, then you cannot find the Plaintiff guilty of any negligence, and if your verdict be fore the Plaintiff you cannot diminish his damages, if any.

“GIVEN”

J.R.G.

INSTRUCTION NO. P-15

The Court instructs the Jury that damages to be assessed by a jury for a personal injury cannot be assessed by any fixed rule, but that you are the sole judges as to the measure of damages in any case; it is your duty, therefore, to award Rollie Jones such damages as will fairly and reasonably compensate him for enlargement and tenderness of the breasts, pains in the back, nausea, abnormal loss of hair, physical and mental fatigue, loss of memory, impotency, embarrassment, any and all psychological disorders, including personality change, depression, and medical bills, past and future, if any, that the Plaintiff, Rollie Jones, has shown by a preponderance of the evidence to have sustained as a proximate result of taking estratab placed in the prescription calling for ethatab; in determining the amount of such damages to which the Plaintiff, Rollie Jones, may be entitled, it is your duty to take into consideration his physical and mental condition prior to his taking of estratab, and after such time, whether or not his mental and physical injuries are temporary or permanent, and any medical expenses which he has shown by a preponderance of the evidence to have sustained as a result of his injuries, or will sustain in the future as a result thereof, if any, and proximately caused by the ingestion of the estratab, and in awarding damages to Plaintiff, Rollie Jones, you should award him such amount as will reasonably and fairly compensate him for enlargement and tenderness of the breasts, pains in the back and neck, nausea, abnormal loss of hair, dimunition of testicles and mental fatigue, loss of memory, impotency, and any and all psychological disorders, including personality change, depression, mental and emotional anguish, and medical bills, past and future, if any, which he has shown by a preponderance of the evidence to have sustained as a proximate result of the wrongful filling of the prescription by Defendant, French Drug Company, Inc., and the ingestion of estratab by the Plaintiff from said prescription.

“GIVEN”

J.R.G.

INSTRUCTION C-17-a

The Court instructs the jury that under the law of the State of Mississippi every person is under a duty to do that which a reasonable prudent man would do under the same or similar circumstances; if you believe from the evidence in this case that the Plaintiff, after taking the Estratab for a period of time experienced unusual and bizarre problems, including enlargement of the breasts, tenderness of the breasts, impotency, weakness, loss of hair, or other unusual symptoms, and if you further believe that the Plaintiff did not use reasonable care to seek medical advice or attention regarding the aforesaid conditions, if any, and if you further believe that a reasonable prudent man would have sought medical advice or assistance upon experiencing the aforesaid problems or conditions, if any, then the Plaintiff was guilty of negligence which contributed to the injuries and damages, if any, which he may have suffered; if you find the Plaintiff guilty of contributory negligence as defined in these instructions, then it is your sworn duty to reduce the damages you award him by that percentage which you may find his own negligence, if any, contributed to said damages, if any.

“GIVEN”

J.R.G.

       See Appendix.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    GUARANTY MORTGAGE COMPANY OF NASHVILLE d/b/a Nashville Guaranty Mortgage Company v. W. M. SEITZ, Day and Night Air Conditioning Company, West State Steel Co., Inc., et al.
    No. 50468.
    Supreme Court of Mississippi.
    Jan. 24, 1979.

      Butler, Snow, O’Mara, Stevens & Canna-da, Robert C. Cannada, George H. Butler, Jackson, J. Wilmot Thomson, Jr., Starkville, for appellant.
    Threadgill & Smith, Columbus, James E. Brown, Starkville, Ward & Ward, Stark-ville, David L. Sanders, Columbus, Stark & McAlpin, Starkville, Dolton W. McÁlpin, Starkville, William H. Ward, Starkville, John Paul Moore, Starkville, Fred A. Ross, Jr., Jackson, for appellee.
   SUGG, Justice,

for the Court:

ON PETITION FOR REHEARING

The petition for rehearing is denied. The original opinion is withdrawn and the following substituted as the opinion of the Court.

Guaranty Mortgage Company appeals from that part of a final decree of the Chancery Court of Oktibbeha County ordering a judicial sale of a shopping center constructed in the City of Starkville, Mississippi. At the trial, Guaranty Mortgage contended that it had expended $1,123,434.48 and its deeds of trust secured this entire amount; however, the chancellor found that only $583,795.48 of this amount actually went into the construction of the shopping center, and Guaranty Mortgage does not appeal from this finding.

Guaranty Mortgage does not appeal from that part of the decree imposing liens on the shopping center in favor of Day and Night Air Conditioning Company and eighteen (18) other concerns furnishing labor, services and materials which went into the construction of the shopping center, totaling $339,573.46, and a lien imposed in favor of W. M. Seitz and the other landowners in the amount of $160,000.

Guaranty Mortgage contends that, when it became the successful bidder at the foreclosure sale of its deed of trust on September 25, 1975, it obtained fee simple title to the shopping center free and clear of the liens of the materialmen and the landowners; and, at most, the materialmen and landowners are limited to claims against the surplus proceeds arising from the foreclosure sale, being the difference between its successful bid of $700,000 and its superi- or lien for $583,795.48.

A brief summary of the facts will be helpful in understanding the conclusions reached by this Court.

W. M. Seitz and others owned a tract of land in Starkville, Mississippi and on July 1, 1974, leased the land to Watkins Investments, a general partnership composed of Charles A. Watkins, general partner, and others, for a primary term of twenty-five years. Horace Henry, a prospective purchaser of the land under a contract of purchase, also executed the lease. Watkins Investments leased this land for the purpose of constructing a shopping center thereon. Under the terms of the lease, the improvements placed on the property by Watkins Investments were to become the property of the landowners upon the termination of the lease.

Watkins Investments desired to obtain interim construction financing from Guaranty Mortgage, but Guaranty Mortgage declined to make a construction loan on the project unless the landowners agreed to join in a deed of trust binding the fee simple ownership of the land. Accordingly, the landowners agreed to join in the execution of deeds of trust necessary to obtain interim construction and permanent financing.

Guaranty Mortgage made a construction loan commitment whereby it agreed to provide construction financing for the shopping center in the principal amount of $1,125,000, and Watkins Investments executed a promissory note for this amount. To secure this construction loan, on August 5, 1974, the Watkins partnership and W. M. Seitz and other landowners executed a deed of trust on the land in favor of Guaranty Mortgage. On September 27, 1974, a supplemental deed of trust was executed, the sole purpose being to add Mrs. Annie Sue Seitz Henry as an additional landowner to the August 5, 1974 deed of trust.

Thereafter, construction of the shopping center commenced in the name of Watkins Construction Company of Mississippi, Inc., a contracting corporation owned and controlled by Charles A. Watkins, the general partner of Watkins Investments.

At the time the Starkville Shopping Center was under construction, Watkins Investments had thirteen (13) other construction projects in varying stages of construction, all of which were financed through Guaranty Mortgage. The total commitment on these fourteen (14) projects was $11,750,000. Watkins Investments deposited all of the funds advanced by Guaranty Mortgage on these projects into one account at First American Bank, the parent company of Guaranty Mortgage, and all disbursements were made from this one account for the various construction projects. The chancellor found as a fact:

It is undisputed and undenied that these co-mingled funds were disbursed by Watkins to the knowledge of Guaranty, without control, supervision or limitation.

During the course of the construction of the Starkville Shopping Center, Watkins Investments encountered financial difficulty and Randall Travis, Chairman of the Board of Guaranty Mortgage, held two meetings with subcontractors involved in the construction of the shopping center. Travis proposed to the subcontractors that they recognize Guaranty Mortgage’s deed of trust as a first lien for all advancements to Watkins Investments on the project so the project could be completed. There was testimony that if they did not follow this procedure, he would wipe their names off the list. There was also testimony that Guaranty Mortgage proposed to advance an additional $225,000 on the Starkville Shopping Center project, but would not advance the funds unless its mortgage was “cleared up” so as to eliminate the subcontractors and materialmen.

During the period beginning December 3, 1974 and ending April 25,1975 the material-men involved in this case filed notice of their materialmen’s liens in the office of the Chancery Clerk of Oktibbeha County in accord with section 85-7-133 Mississippi Code Annotated (1972). Thereafter, in September, 1975, Guaranty Mortgage instituted proceedings to foreclose its construction money deed of trust by publishing notice of a trustee’s sale to be held on September 25, 1975. On September 24, 1975, Don Cook, d/b/a Cook Acoustics, and others, filed a petition to enforce mechanics’ and material-men’s liens in the Circuit Court of Oktib-beha County. The plaintiffs alleged that each one of them was entitled to a material-man’s lien against the land and the shopping center. In their petition, the plaintiffs requested the court to order a sale of the shopping center property and the proceeds applied to the payment of their claims. The petition further alleged that the construction lender, Guaranty Mortgage, was negligent in the disbursement and advancement of construction funds and that the liens claimed by the plaintiffs were superior to the interest of Guaranty Mortgage.

On September 23, 1975, W. M. Seitz and the other landowners filed a suit in the Chancery Court of Oktibbeha County against Guaranty Mortgage, the substituted trustee in the deed of trust of Guaranty Mortgage and all persons who had filed materialmen’s liens. On motion of the landowners the petition of the materialmen filed in the Circuit Court was transferred to the Chancery Court of Oktibbeha County on February 3,1976. Thereafter, the material-men who had filed the petitions in circuit court, filed answers to the Seitz bill of complaint and made their answers cross-bills, seeking enforcement of their liens. They also reformed their petition to enforce their liens by filing a bill of complaint. Guaranty Mortgage answered and the two cases were consolidated for trial.

In the meantime the substituted trustee sold the Starkville Shopping Center property on September 25,1975 to the highest and best bidder, Guaranty Mortgage, for the sum of $700,000.

From the above, we must determine the priority of the liens between Guaranty Mortgage, a construction money lender, the materialmen, and their respective rights to enforce their liens.

Section 85-7-131 Mississippi Code Annotated (1972) provides in part:

Every . . . building, or structure of any kind, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, . . . erected, constructed, altered, or repaired, . . . shall be liable for the debt contracted and owing, for labor done or materials furnished, and debt for such services or construction shall be a lien thereon. The laborers, and materialmen and/or contractors who rendered services and constructed the improvements shall have a lien therefor. . . . Such lien shall take effect as to purchasers or en-cumbrancers for a valuable consideration without notice thereof, only from the time of commencing suit to enforce the lien, or from the time of filing the contract under which the lien arose, or notice thereof, in the office of the clerk of the chancery court, as hereinafter stated;

Our cases construing the rights of laborers or materialmen under the above statute and the rights of a lender advancing funds for a construction loan may be summarized as follows: The lien of a deed of trust securing a construction loan has priority over mechanics’ and materialmen’s liens only to the extent that; (a) the funds disbursed actually went into the construction, or (b) to the extent that the construction lender used reasonable diligence in disbursing the construction loan. See Weiss, Dreyfous and Seiferth, Inc. v. Natchez Inv. Co., Inc., 166 Miss. 253, 140 So. 736 (1932); 80 A.L.R.2d 179, 247 (1961); First National Bank of Greenville v. Virden, 208 Miss. 679, 45 So.2d 268 (1950), 80 A.L.R.2d 248 (1961); Deposit Guaranty Bank & Trust Co. v. J. F. Weaver Lbr. Co., 215 Miss. 183, 60 So.2d 598 (1952); Southern Life Insurance Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So.2d 416 (1963); Wortman and Mann, Inc. v. Frierson Bldg. & Supply Co., 184 So.2d 857 (Miss.1966); North American Mortgage Investors v. Miss. Hardware Co., Inc., 360 So.2d 1203 (Miss.1978).

Guaranty Mortgage asserts that the rule announced in the cases cited in the preceding paragraph has no application here because they do not question the rule there announced. The holding of these cases cannot be so lightly disavowed because the lien of a deed of trust securing a construction loan has priority over mechanics’ and mate-rialmen’s liens only to the extent that the funds disbursed actually went into the construction or to the extent that it used reasonable diligence in disbursing the construction loan.

Guaranty Mortgage was able to trace only $583,795.48 of the construction funds advanced Watkins Investments into the construction of the Starkville Plaza project. The chancellor held that Guaranty Mortgage did not use reasonable diligence in disbursing the construction loan and was entitled to a lien superior to the material-men only in the amount that went into the construction of the project. This finding of the chancellor is in accord with the rule announced in the cases cited above. Moreover, no appeal was taken from this finding of the chancellor.

MAY A CONSTRUCTION MONEY LENDER DEFEAT LIENS OF MA-TERIALMEN BY FORECLOSING A DEED OF TRUST AFTER NOTICE OF THE LIENS AND AFTER SUIT FILED TO ENFORCE THE LIENS?

It was settled in the cases of Smith and Vaile Co. v. Butts, 72 Miss. 269, 16 So. 242 (1894) and Smith and Vaile Co. v. Burns, 72 Miss. 966, 18 So. 483 (1895) that the purchaser at a trustee’s sale takes title pendente lite where suit to enforce materi-almen’s or mechanics’ liens on the property was commenced before the sale.

In Smith and Vaile v. Burns, supra, we held that the lien of plaintiff was derived from section 2698 Mississippi Code of 1892 [now section 85-7-131 Mississippi Code Annotated (1972)] and by the terms of the statute took effect against “purchasers or incumbrancers for a valuable consideration without notice thereof, from the time of commencing suit to enforce the lien.” The Court further held that Burns was a purchaser pendente lite and took title subject to the outcome of the appeal and subject to being divested because he took title “subject to all the contingencies to which the title of a vendor is ever liable.”

Guaranty Mortgage argues that the laborers and materialmen may look only to the excess of the proceeds of the foreclosure sale to satisfy their liens. This argument overlooks the holding of Smith and Vaile Co. v. Burns, supra, that the purchaser at a foreclosure sale, where suit has been instituted by laborers and materialmen to enforce a lien, takes title pendente lite, “subject to all the contingencies to which title of a vendor is ever liable.”

The laborers and materialmen filed their claims in the chancery clerk’s office more than six months before the trustee’s sale was advertised. Further, the material-men and laborers filed a petition in the circuit court to enforce their liens one day before the sale and filed notice of the suit on the lis pendens record. It therefore follows that when Guaranty Mortgage foreclosed the deed of trust, purchased the property at the trustee’s sale, it took title pendente lite subject to the contingency that the laborers’ and materialmen’s liens were valid.

If a mortgagee who advances money on a construction project could foreclose his deed of trust after laborers’ and materialmen’s liens are duly filed, and after suit is filed to enforce the liens, without the title conveyed at the sale being contingent upon the validity of the liens claimed, the rights of laborers and materialmen to their liens would be thereby destroyed.

Southern Life Insurance Co. et al v. Pollard Appliance Co., 247 Miss. 211, 150 So.2d 416 (1963) is another case which holds that foreclosure of a superior lien does not extinguish the rights of all materialmen.

Southwest Savings and Loan Association (hereafter Southwest) procured an assignment of a deed of trust for the purpose of securing construction funds. Southwest disbursed $10,000 to the contractor to build a house but did not use reasonable diligence to see that the advanced funds were used to pay materialmen and laborers. After the house was completed the owner executed a deed of trust to Southern Life Insurance Company (hereafter Southern). The attorney for Southern checked the records and discovered there were no claims of record on the property except the construction deed of trust owned by Southwest. He secured an affidavit from the owners and the contractor that no claims for labor or materials remained unpaid against the house, recorded the deed of trust, obtained a cancellation of the construction deed of trust from Southwest, and disbursed the proceeds of the loan. The amount of $10,-586 was disbursed to Southwest to pay off its construction loan deed of trust. In the meantime the owners had conveyed the property to Helen R. Embler, the wife of the contractor. A check for the balance of the loan, $3,148.01, was given to the owners who endorsed the check to Helen R. Em-bler.

Later, on December 21, 1960, Helen R. Embler executed a deed of trust to Southwest to secure a debt of her husband to Southwest in the sum of $25,000. This deed of trust was subordinate to the deed of trust of Southern which was dated and recorded on November 7, 1960. On March 10, 1961 the second deed of trust from Helen R. Embler to Southwest was foreclosed by the trustee and Southwest became the purchaser at the sale.

In the meantime the first monthly installment of the Southern deed of trust was not paid and Southern requested its attorney to foreclose. Southwest purchased the Southern deed of trust and the note on March 8, 1961. On November 22 and December 14, 1960 and January 11,1961 five materialmen filed notice of their liens. On June 16,1961, while the suits of the materialmen were pending, the Southern deed of trust owned by Southwest, was foreclosed and the property bought by it at the trustee’s sale.

The opinion in this case stated there were two questions presented for decision:

(1) Was Southern Life a bona fide purchaser of the deed of trust on the property without notice? (2) If Southern Life was, when it assigned this deed of trust to Southwest, did Southwest also take the status of a good faith holder? Or, in view of its prior dealings and the construction mortgage, is Southwest precluded from claiming as a good faith holder and asserting a first lien superior to those of materialmen? (247 Miss. at 220, 221, 150 So.2d at 420).

In answer to the first question we held that Southern took its deed of trust for value without notice of materialmen’s liens; therefore, its note and deed of trust were prior, superior liens to those of the materi-almen.

In answer to the second question we held that Southwest did not take the status of a good faith holder when it purchased the Southern deed of trust, and the liens of the materialmen reattached to the property in Southwest’s hands.

Foreclosure of a senior lien ordinarily extinguishes all junior liens; however, in Pollard we applied an exception to the rule. The construction money lender was not permitted to extinguish the liens of material-men by foreclosing a senior lien, but took title from the trustee subject to the lien of materialmen.

In the case before the Court, the landowners filed their bill of complaint against Guaranty Mortgage on September 23, 1975, two days before the trustee’s sale. Lis pen-dens notice was also filed on September 23, 1975. Guaranty Mortgage does not question the correctness of the chancellor’s finding that the landowners were entitled to a $160,000 lien on the land included in its deed of trust.

Guaranty Mortgage acquired title at the trustee’s sale subject to any relief that the landowners might obtain in their pending suit. This is the holding in Jones v. Jones, 249 Miss. 322, 161 So.2d 640 (1964) where we considered the effect of lis pen-dens on a pending suit and stated:

Lis pendens simply means a pending suit, and the doctrine denotes those principles and rules of law which define and limit the operation of the common-law maxim: ‘pendente lite nihil innovetur’, or that is to say, pending the suit nothing should be changed. 34 Am.Jur., Lis Pen-dens, § 2, p. 361.
The object of the doctrine of lis pen-dens is to keep the subject in controversy within the power of the court until final decree and to make it possible for courts to execute their judgment. All property which is the subject matter of the suit under this doctrine is res litigiosa and is in custodia legis. Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436, 138 A.L.R. 1438; Thompson on Real Property, Vol. 8 (1963), § 4308, p. 331.
Our lis pendens statute is section 755, Miss.Code 1942, Rec. The pertinent parts of this section are as follows: ‘When any person shall begin a suit in any court * * to enforce a lien upon, right to, or interest in any real estate * * * such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right or interest sought to be enforced * * *.’
It is said by Judge Griffith in his work on Mississippi Chancery Practice that: ‘The doctrine of lis pendens is that every person, including a stranger to the suit and whether bona fide or not, who acquires from a party to the litigation any interest in property real or personal during the pendency of a suit respecting a right, title or interest in such property takes subject to, and is conclusively bound by, the decree in such litigation * * See § 527, Griffith’s Miss. Chancery Practice (2d ed. 1950), p. 541.
In the case of Bank of Tupelo v. Motley, 127 Miss. 674, 90 So. 438, this Court pointed out that where a bank acquired a deed of trust on property described in a lis pendens notice in a suit to set aside a deed, the bank was bound by the decree entered in the suit, because the decree cancelling the deed related back to the filing of the bill and lis pendens notice. Cf. Smith v. Munger, 93 Miss. 627, 47 So. 676, occurring before the lis pendens statute. (249 Miss. at 329, 330, 161 So.2d at 643).

When Guaranty Mortgage purchased the property at the trustee’s sale, it took title subject to the outcome of the pending suit of the landowners and could not defeat their claim by foreclosing its deed of trust. If this were permitted, the effect of our lis pendens statute, section 11-47-3 Mississippi Code Annotated (1972), could be avoided by the simple expedient of a litigant disposing of property which is the subject matter of a suit before trial.

Our holding may be summarized as follows: Guaranty Mortgage did not use reasonable diligence in disbursing the construction loan to Watkins Investments for the construction of the Starkville Shopping Center and was entitled to a lien superior to the materialmen only in the amount that went into the construction of the project. Application of this rule is equitable because both Guaranty Mortgage and the material-men contributed to the cost of constructing the Starkville Shopping Center. When Watkins Investments defaulted, both Guaranty Mortgage and the materialmen could look only to the property which was enhanced in value by reason of their expenditures of money, time, effort and materials. They are entitled to receive the benefit of the contribution they made toward enhancing the value of the property. As to the landowners, the chancellor held that they were entitled to a lien, and no appeal was taken from this finding. Their suit to establish the lien was filed before the sale and notice of the suit was filed on the lis pen-dens record. When Guaranty Mortgage became the purchaser at the trustee’s sale it took title subject to the liens of the laborers, materialmen, and the landowners. We therefore affirm the chancellor with the exception next noted.

The only error committed by the chancery court was in ordering a judicial sale in the first instance without giving Guaranty Mortgage the right to pay off the materialmen in the amount of $339,573.46, plus interest from September 24, 1975 and the landowners in the amount of $160,000, plus interest from February 18, 1977, the date of the decree in the trial court.

In the event Guaranty Mortgage does not exercise its option of paying off the laborers, materialmen and landowners within thirty days after the judgment of this Court becomes final, then a judicial sale will be held in accordance with the requirements of the statute, and the proceeds of this sale used to satisfy the lien of Guaranty Mortgage in the sum of $583,795.48, plus interest as provided in the note from Watkins Investments from the date of disbursement to date of sale, then in satisfaction of the liens of materialmen, laborers and the landowners in the total sum of $499,573.46, plus interest as set forth in the preceding paragraph, any balance remaining to be paid to Guaranty Mortgage.

Court costs will be paid by Guaranty Mortgage, if it exercises its option, or from the first proceeds of the judicial sale, in the event Guaranty Mortgage does not exercise its option.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: SMITH, Presiding Justice,

text:
    Charles Earl DAVIS v. STATE of Mississippi.
    No. 50978.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Oscar P. LaBarre, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

In this case, Charles Earl Davis was tried in the Circuit Court of Warren County upon an indictment charging him with having committed the “crime against nature” in that he had engaged in unnatural sexual intercourse with a female child. Mississippi Code Annotated section 97-29-59 (1972). He was convicted and sentenced to eight years imprisonment. At the time of the trial, the victim was a female child, eleven years of age, in the fifth grade at school. Appellant’s conviction rests largely upon the testimony of this child.

It is first assigned as error that the trial court erred in allowing the child to testify, “When she demonstrated on examination by the court that she did not understand or appreciate the sanctity of the oath or the obligation to tell the truth.”

We have carefully examined the record as it relates to the assignment and have concluded that the trial judge was justified, following examination of the youthful witness, in finding that (1) she was competent to testify and (2) understood her obligation to tell the truth. There was no abuse of discretion in permitting her to testify. Moreover, a review of her testimony, in response to both direct and cross-examination, gives no support to the contention that she was mentally or otherwise incapable of testifying rationally and understandingly. On the contrary, her testimony was clear and the jury was within its prerogative in accepting it as true. There is no merit in this assignment of error.

The second assignment advances the proposition that Mississippi Code Annotated section 97-29-59 (1972) is unconstitutional in that (1) it discriminates against persons engaging in sexual practices of the kind alleged to have been employed by appellant and (2) the trial judge has an unconstitutionally wide discretion in the range of punishments he may impose. We find no merit in either of these propositions. State v. Mays, 329 So.2d 65 (Miss.1976).

In the third assignment, appellant contends that it was error to permit the victim to testify that appellant had subjected her to the same thing on former occasions. Under the circumstances and in view of the nature of the offense, it was not error to admit this testimony. Brooks v. State, 242 So.2d 865 (Miss.1970), Engbrecht v. State, 268 So.2d 507 (Miss.1972), Wansley v. State, 339 So.2d 989 (Miss.1976).

The final assignment, embodying the argument that appellant was entitled to a peremptory instruction directing the jury to find him not guilty, is also without merit. The evidence was ample to support the jury’s verdict of guilty.

The judgment and sentence will, therefore, be affirmed.

AFFIRMED.

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


text:
    REBEL MOTOR FREIGHT, INC. by Milton R. Starnes, President v. John L. KERR, G. O. Kerr, Jr., d/b/a Shippers Express, Merchants Truck Line, Inc. and J. & G. Express, Inc.
    No. 50827.
    Supreme Court of Mississippi.
    Feb. 7, 1979.

      James G. McIntyre, Jackson, James N. Clay, III, Memphis, Tenn., for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Harold D. Miller, Jr., John A. Crawford, Sullivan, Sullivan & Blount, Jerry H. Blount, Jackson, for appellees.
    Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

The present proceedings were begun in 1972 before the Public Service Commission by Rebel Motor Freight, Inc., a Tennessee Corporation, appellant here, with the filing of its petition for a certificate of public convenience and necessity authorizing it to operate as a motor vehicle common carrier of freight over specified routes and in designated areas under “the provisions of the Motor Vehicle Carrier Regulatory Act of 1938, as amended,” and by “rules and regulations adopted by the Commission.”

Appellees, Shippers Express, Merchants Truck Line, Inc., and J. & G. Express were named in Rebel’s petition as “existing qualified motor . . . carriers serving the route or territory proposed to be served (by Rebel) . . . that will be effective [sic] by proposed service.”

Rebel’s application lay dormant from 1972 until 1976, when it was revived, and a date was set by the Commission for a hearing upon it. Formal notice was given ap-pellees that they might file objections to the granting of the certificate to Rebel. The notice contained no specification of alleged inadequacies in the service being rendered by appellees under their existing certificates. Appellees responded, objecting to the certification of Rebel, and set up, among other things, that each of them currently possessed a certificate of authority to operate as a motor truck common carrier of freight over parts of the routes and areas specified in Rebel’s application, and that they specifically relied upon the Tri-State Transit rule, asserting that the existing service, presently being provided by them, was reasonably adequate to meet any alleged need; that they had been notified of no alleged deficiency in such service, that they were entitled to appropriate notification of any such alleged deficiency and to a reasonable opportunity to remedy it before any new certificate for services might be authorized between the points and in the areas set out in Rebel’s application.

After several delays, the Commission heard the matter and granted Rebel’s application, subject only to certain restrictions, and Shippers Express, Merchants Truck Line and J. & G. Express appealed to the Circuit Court of Hinds County. The circuit court, after a hearing, reversed the Commission and remanded the case for further proceedings. The circuit court judge found that Shippers Express, Merchants Truck Line and J. & G. Express were duly certificated common carriers of freight by motor truck, authorized to operate over routes and in areas sought to be served by Rebel under the application. The judge found that proof heard by the Commission had established that no complaint had been filed with the Commission of the services being rendered under the existing certificates held by appellees, and that there was no substantial evidence that such services were inadequate. In reversing the Commission’s order, however, the judge, in deference to what he termed the Commission’s “expertise” in such matters, did not base his action upon the question of whether there had been substantial evidence to support a finding by the Commission that existing services were inadequate. He held that the Commission had failed to comply with or follow what is known as the Tri-State Transit rule laid down by this Court in Tri-State Transit Co. of Louisiana, Inc. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441 (1944). Under the so-called Tri-State Transit rule, upon a finding by the Commission in a case such as this, that existing services by a certificated carrier are inadequate, reasonable notice of such inadequacy must be given to such carrier by the Commission, stating the nature of the inadequacy which it had found to exist, and granting a reasonable opportunity for the correction of such inadequacy. The court found that the Commission had failed to follow and had wholly ignored the Tri-State Transit rule, that the rule controls in this case, necessitating a reversal and remand. The court pointed out that the rule — laid down by this Court in 1944 — has not since been abrogated, changed or amended by the Mississippi Legislature, and that it has been consistently followed since 1944 in the cases decided by this Court dealing with the subject. See: Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584 (1950); Southern Bus Lines v. Mississippi Public Service Commission, 210 Miss. 606, 50 So.2d 149 (1951); Campbell Sixty-Six Express, Inc. v. Delta Motor Line, 218 Miss. 198, 67 So.2d 252 (1953); West Brothers, Inc. v. H & L Delivery Service, 220 Miss. 323, 70 So.2d 870 (1954); F & W Express, Inc. v. Delta Motor Line, Inc., 223 Miss. 726, 78 So.2d 887 (1955); Garrett v. Delta Motor Line, Inc., 224 Miss. 559, 82 So.2d 577 (1955).

The rule, the circuit court judge held, requires a two-step procedure before the Commission may grant a new certificate authorizing an additional carrier on existing certificated routes. The Commission found, in general terms, that existing service was inadequate, without specifying in what respect it was inadequate and without affording the existing certificated carriers an opportunity to correct such inadequacy as the Commission may have found existed in their service.

On appeal here from the judgment of the circuit court, reversing and remanding the case to the Commission for proceedings in accordance with the Tri-State Transit rule, the principal contention of Rebel is that the Tri-State Transit rule does not apply under the facts here, but if it does, the rule is outmoded and antiquated and should be abandoned, or, if not totally abandoned, it should be substantially altered so as not to require that the carrier allegedly rendering inadequate service be given an opportunity to remedy such inadequacy before a new certificate may be granted to another carrier authorizing it to serve the presently existing certificated routes.

We have carefully considered the arguments advanced by Rebel and have concluded that the result reached by the circuit court was correct. The Tri-State Transit rule has been in existence since 1944, there has been no material or substantial change in the applicable statutes since then, and the rule has been followed consistently by this Court in each of the eases, cited above, decided subsequently by this Court in which the question has been involved. The circuit court was correct in reversing the Commission for failure to follow the Tri-State Transit rule.

ON CROSS-APPEAL. Appellees have cross-appealed, contending on cross-appeal that, while the circuit court correctly reversed the Commission, it was error to remand for further proceedings. They argue that there was no substantial evidence of inadequacy of service on the part of cross-appellants, the presently certificated carriers, and that Rebel’s petition should be denied here.

The evidence offered by Rebel, ostensibly directed toward establishing inadequacy of service by the certificated carriers, consisted, in the main, of. the testimony of witnesses who related one or more instances in which the witness had not received or been unable to obtain some desired service. None of the witnesses had considered his complaint of sufficient gravity to report it to the Commission. The “inadequacies” themselves, if they can be so termed, do not appear to be of a continuing kind, and either are such as may not reasonably be expected to recur, or which are capable of correction.

Questions of fact are, of course, for the Commission and, as stated by the circuit court judge, the Commission will be considered to possess a certain amount of expertise in passing upon factual questions in matters of this kind. While the evidence of inadequacy in this case is not strong, nevertheless we have concluded that the ends of justice will be better served by a remand to the Commission for a further hearing and proceedings according to the Tri-State Transit rule.

The cross-appeal will be dismissed without prejudice.

The action of the circuit court in reversing the order of the Commission granting the certificate to Rebel and in remanding the case to the Commission for further proceedings in keeping with the requirements of the Tri-State Transit rule, is affirmed. Having reached the conclusion that the case must be remanded to the Commission on all issues because of the total departure from the procedure required by the Tri-State Transit rule, the cross-appeal is dismissed without prejudice.

AFFIRMED ON DIRECT APPEAL. CROSS-APPEAL DISMISSED WITHOUT PREJUDICE, AND THE CASE REMANDED TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION.

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

BOWLING, J., took no part.


author: WALKER, Justice,

text:
    Edwin S. ALLGOOD, Administrator of the Estate of Wallace W. Allgood v. Aletha H. ALLGOOD et al.
    No. 51295.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Jack Amos, Bay Springs, for appellant.
   ON MOTION TO DISMISS APPEAL FOR WANT OF PROSECUTION TO PERFECT APPEAL WITHIN TIME-FRAME ALLOWED THEREFOR

En Banc.

WALKER, Justice,

for the Court.

This is a motion to dismiss an appeal for failure to perfect the appeal within the time allowed by statute.

The final decree in this action was filed in the Chancery Court of Jasper County on July 27, 1978. On August 2, 1978, appellant’s attorney filed a notice to the court reporter to transcribe the record for appeal. On August 8,1978 an appeal bond was filed in the Chancery Court of Jasper County. The next entry in the record is the clerk’s cost bill which is dated October 3,1978. On October 3, 1978 appellant paid the clerk bill plus a $50.00 filing fee.

The present issue arises due to the recent change of statutory law. Under the old appeals statute, the filing of the bond would have been sufficient to perfect the appeal, Mississippi Code Annotated section 11-51-25 (1972), and therefore the appeal would have been timely perfected under the forty-five-day requirement of Mississippi Code Annotated section 11-51-5 (Supp. 1978).

However, under the new code sections, while the forty-five-day time limit remains the same, an appeal is perfected by prepaying the court costs and a $50.00 filing fee.

Mississippi Code Annotated section 11-51-29 (Supp. 1978) requires:

On appeals from decrees overruling demurrers or other interlocutory orders or decrees, or where the appeal is granted to settle the principles of the case, or on appeals from final judgments of a circuit court in civil cases, or from final decrees of a chancery court including cases where the circuit court or chancery court has acted as an appellate court, the appellant shall prepay all of the costs in the lower court including the cost of the preparation of the record of the proceedings in the trial court, and fee prescribed in section 25-7-3, to the clerk of the court from which the appeal is taken.

Other sections which have been amended also carry the requirement that costs be prepaid in order to perfect the appeal. Mississippi Code Annotated section 11-51-25 (Supp. 1978) specifies:

A written petition for an appeal shall not be necessary to its validity, but filing in the office of the clerk of the supreme court a transcript of the record of the case in which the appeal is taken shall confer jurisdiction on the supreme court to try and dispose of the case. Where there is no petition for the appeal, it shall be considered to have been taken when the costs in the lower court and the fee required by section 25-7-8 were paid to the clerk of the lower court or from the time of filing the transcript of record in the office of the clerk of the supreme court. (Emphasis added).

Thus, it appears that the legislative intent was to require prepayment of costs as the means to perfect an appeal. Since appellant did not prepay costs until October 3, 1978, the appeal was not perfected within the required forty-five days from final judgment.

We have held, under prior law, that failure to timely perfect the appeal by filing the required bond deprives this Court of jurisdiction and the appeal must be dismissed. Kennedy v. Gervais, 345 So.2d 1039 (Miss.1977). We reassert that principle and hold that failure to timely perfect the appeal, which under the new law requires prepayment of costs and fees, is also jurisdictional and requires dismissal of the appeal.

However, we hold that under the unique factual circumstances of this case, e. g., (1) where the new statute had gone into effect shortly before final judgment was rendered; (2) where the appellant had made a good faith effort to timely perfect the appeal under the old method; and (3) where appellant was not timely presented with a bill of costs as required by the new statutes but prepaid the cost bill as soon as presented; there were sufficient acts to demonstrate a good faith effort to perfect the appeal and we will not dismiss. See Sabougla Drainage Dist. v. People’s Bank & Trust Co., 191 Miss. 331, 1 So.2d 219 (1941); Wallace v. State, 149 Miss. 198, 115 So. 342 (1928).

We note, however, the requirements of Mississippi Code Annotated section 11-51-61 (Supp. 1978):

The clerk of the trial court shall, within five (5) days of the rendering of a final judgment or a final decree, compile, certify and record in the official file of the case a complete cost bill, including all of the costs in the trial court. This shall include an estimate of the cost of the preparation and transcription of the proceedings in the trial court, furnished by the court reporter. If the actual cost exceeds the estimate the appellant shall pay the balance before the record is filed; if the estimate of cost exceeds the actual cost the excess shall be refunded to appellant at the time the record is filed.
When the appellant shall have complied with the law applicable to his appeal, the clerk of the court from which the appeal is taken shall immediately make and certify a transcript of the record of the case, and transmit it and the paid cost bill including the supreme court filing fee, and any bond taken except the bail bond in cases of misdemeanor, to the clerk of the supreme court; and in all civil cases, where the appeal is not perfected during the term of the court at which the judgment or decree complained of is rendered, he shall issue a summons to the opposite party to appear and answer the appeal in the supreme court. A copy of the cost bill and any bond taken shall be kept by the clerk as a part of the record of the case, and judgment may be rendered by the supreme court against the obligors in the bond without notice, or the representatives of any who have died after due notice. In cases remanded to the court below to ascertain the amount recoverable on any such bond, the copy kept in the clerk’s office shall be admissible in evidence, or the original may be obtained from the clerk of the supreme court for use in the court below.

We also hold that in future cases, if the clerk of the trial court fails to satisfy the statutory requirements as to the bill of costs, the attorney of record desiring an appeal must make a motion in writing to the trial judge, within the allotted forty-five days, compelling production of the cost bill from the trial court clerk. Absent such a written motion within the time for appeal, the appeal must be dismissed for lack of jurisdiction. See Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924 (1942).

MOTION TO DISMISS APPEAL FOR WANT OF PROSECUTION TO PERFECT AN APPEAL WITHIN TIME-FRAME ALLOWED THEREFOR OVERRULED.

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

PATTERSON, C. J., took no part.

      . Numerous statutes concerning appeals procedure were amended by House Bill No. 767 which became effective July 1, 1978. The act is entitled: “AN ACT to amend Sections 11-1-21, 11-3-5, 11-3-23, 11-3-33, 11-3-41, 11-3-43, 11-3-15, 11-27-29, 11-27-37, 11-51-7, 11-51-11, 11-51-15, 11-51-21, 11-51-25, 11-51-27, 11-51-29, 11-51-31, 11-51-33, 11-51-35, 11-51-37, 11-51-39, 11-51-45, 11-51-47, 11-51-51, 11-51-53, 11-51-61, 11-51-69, 11-51-71, 11-51-73, 11-51-99, 11-51-105, 11-51-107, 11-51-109, 13-3-121, 25-7-3, 99-35-105, 99-35-107, 99-35-109 and 99-35-121, Mississippi Code of 1972, to provide that the prepayment of lower court costs and a fee of $50.00 to the clerk of the lower court be required for perfecting an appeal to the Supreme Court; to repeal Sections 11-3-29 and 11-51-113, Mississippi Code of 1972, which provides for the posting of bond to secure the costs of appeal; and for related purposes.” (1978 Mississippi Laws, Chapter 335).


text:
    Mrs. Rosa PARKER v. GEORGE COUNTY BOARD OF EDUCATION.
    No. 50870.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellant.
    Hurt & Dickerson, Darryl A. Hurt, Luce-dale, for appellee.
   Appeal from Chancery Court, George County; Kenneth B. Robertson, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Clay Edward MAY v. STATE of Mississippi.
    No. 50975.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Caldwell, Lee, Richardson & Vance, Michael R. Medley, L. Joe Lee, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

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

AFFIRMED.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. C. E. FRAZIER CONSTRUCTION COMPANY.
    No. 50918.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Eaves & Eaves, John Arthur Eaves, V. T. Valias, Jackson, for appellant.
    Reynolds & Moekbee, David L. Reynolds, Richard C. Bradley, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William D. Coleman, Judge.

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

AFFIRMED.


text:
    FREEMAN TRUCK LINE, INC. v. John L. KERR, G. O. Kerr, Jr., d/b/a Shippers Express, Merchants Truck Line, Inc. and J & G Express, Inc.
    No. 50883.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Wise Carter Child Steen & Caraway, James K. Child, Jr., Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Sullivan, Sullivan & Blount, Jerry H. Blount, Harold D. Miller, Jr., John A. Crawford, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED ON DIRECT AND CROSS-APPEALS AND REMANDED TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION.

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

BOWLING, J., took no part.


text:
    Lafayette WELLS, alias Travillion v. STATE of Mississippi.
    No. 51059.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

E. R. Arrington, C. A. Ray, Jr., Hazle-hurst, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.

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

SMITH, P. J., took no part.


text:
    Lafayette WELLS, alias Travillion v. STATE of Mississippi.
    No. 51060.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    E. R. Arrington, C. A. Ray, Jr., Hazle-hurst, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

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

Affirmed.

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

SMITH, P. J., took no part.


text:
    Rev. C. V. JOHNSON, Sr. v. Robert H. McCARTY.
    No. 50891.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Walker & Turner, Randolph Walker, West Point, for appellant.
    Ben F. Hilbun, Jr., Starkville, for appel-lee.
   Appeal from Chancery Court, Oktibbeha County; W. W. Brand, Jr., Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.

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

SMITH, P. J., took no part.


text:
    Virginia VAN TIENHOVEN v. STATE of Mississippi.
    No. 50917.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Oscar P. LaBarre, Jerry W. Campbell, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

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

AFFIRMED.

PATTERSON, C. J., and SUGG, BROOM, BOWLING and COFER, JJ.

SMITH, P. J., took no part.


text:
    In the Interest of William GILMORE, a Minor Child.
    No. 51005.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Parker, Averill & Butts, David 0. Butts, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Itawamba County; James E. Bost, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED AS MODIFIED AND REMANDED.

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

SMITH, P. J., took no part.


text:
    Johnnie H. WHEELER v. STATE of Mississippi.
    No. 50892.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Richard E. Stratton, III, Brookhaven, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

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

AFFIRMED.


text:
    Mrs. Effie J. POOLE, as Wrongful Death Beneficiary of Phil Atkins Poole, Deceased v. QUITMAN COUNTY.
    No. 50914.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Luckett, Luckett, Luckett & Thompson, W. O. Luckett, Jr., Clarksdale, for appellant.
    Caldwell & Lewis, Ben M. Caldwell, Charles W. Easterling, Marks, for appellee.
   Appeal from Circuit Court, Quitman County; J. C. Feduccia, Judge.

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

AFFIRMED.


author: ROBERTSON, Presiding Justice,

text:
    Willie Marvin PARKER v. STATE of Mississippi.
    No. 50928.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Thomas L. Booker, Jr., Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Willie Marvin Parker was jointly indicted with Phillip Norris and Walter Stephens in the Circuit Court of Neshoba County for the crime of armed robbery. Parker and Norris were jointly tried and a verdict of “guilty as charged” was returned against each defendant.

Phillip Norris was sentenced to serve a term of 35 years in the state penitentiary, but Willie Marvin Parker was sentenced to serve a term of life imprisonment in the state penitentiary. The court orally stated that the reason for the more severe Parker sentence was that he had been convicted “on a previous occasion of a felony.”

About 3:20 A.M., February 1, 1977, the Premier Service Station in Philadelphia, Mississippi, was robbed. Johnny Smith, a young employee, was sweeping the floor when two young black males entered the filling station. Both wore stocking masks over their heads. One pointed a brown-handled pistol at Smith, and told him to lie down on the floor. One of the robbers proceeded to take Smith’s billfold and money from his pocket and over $1100 from a desk drawer.

Smith testified that the robber later identified as Parker was wearing a beige coat and a red bandana on his head. After robbing the service station, both fled the scene and Smith reported the robbery to the city police.

On February 2,1977, the police picked up four suspects, which included Parker, but Smith was unable to conclusively identify any of them as the robbers. On February 3, 1977, Parker and Norris were arrested and charged with armed robbery.

At the trial, Johnny Smith identified the beige coat as the one worn by Parker.

Marion Haynes testified that Parker and Norris were at his apartment on two occasions during the early morning hours of February 1st. The first visit was about 1:30 or 2:00 A.M. Then Parker and Norris left, and returned a second time around 4:30 A.M. During the second visit, Parker and Norris told Haynes that they had just held up the Premier Service Station. Parker had the gun used, which was a brown-handled 22-caliber pistol, on a 32-caliber frame. Haynes identified the pistol exhibited to him as the one he’d seen on Parker. Haynes further testified that both Parker and Norris had stockings in their hands and a large quantity of money. Both went into Haynes’ bedroom and divided the money between them. Haynes identified the beige coat and red bandana as the ones worn by Parker on the second visit to his apartment.

Mrs. Shirley Peyton and Marvin Norris, the sister and brother of Phillip Norris, testified that Parker and Norris were sleeping in the living room of Mrs. Peyton’s apartment on the night of January 31st, 1977.

Mrs. Helen Norris, called as a witness by her son, Phillip Norris, identified the brown-handled pistol as her pistol, which she kept in the pocket of her car at night. When the police were searching for the gun, Mrs. Norris sent another son down to her car to get the pistol.

Parker has assigned as error:

I.The verdict of the jury is against the overwhelming weight of the evidence, and judgment should be reversed and a new trial granted.
II.The court erred in overruling appellant’s objection to rebuttal testimony of Officer Greg George as to prior inconsistent statements of Helen Norris and allowing the same into evidence.
III. The court erred in allowing Officer Greg George to testify to statements made by Phillip Norris which were inadmissible and allowed over objection.
IV. The court erred in sentencing the appellant to life imprisonment.
V.The court erred in overruling appellant’s motion for a new trial.

We have carefully reviewed and studied the record and are of the opinion that from the evidence adduced the jury was justified in finding beyond a reasonable doubt that Parker was “guilty as charged”.

The second assignment of error deals with the rebuttal testimony of Officer Greg George as to a remark that Mrs. Helen Norris had made when George went to her house to pick up the brown-handled pistol used by her son, Phillip, and Parker in the robbery. No specific objection was made to this testimony, and we have held many times that unless timely and specific objection is made that the objection is waived and may not be raised on appeal. Baker v. State, 327 So.2d 288 (Miss.1976), Norman v. State, 302 So.2d 254 (Miss.1974).

In assignment of error number 3, Parker complained that Officer George, in rebuttal, was allowed to testify that upon arrest Phillip Norris said that he had been at a party on the night of January 31,1977, and then went home with Parker. This appears to be valid impeachment testimony. Also, this was not a confession by Norris, and Parker has no standing to complain as to what Norris said. The United States Court of Appeals for the Fifth Circuit, in United States v. Dowdy, 486 F.2d 1042 (5th Cir. 1973), said:

“ ‘Some constitutional rights are personal and may not be vicariously asserted. Among these is the right against self-incrimination.’ Hall v. United States, 5 Cir. 1969, 413 F.2d 45, 48 (citations omitted). See Gissendanner v. Wainwright, 5 Cir. 1973, 482 F.2d 1293.” 486 F.2d at 1043.

The only assignment of error wherein there is merit is that “the court erred in sentencing the appellant to life imprisonment.” Mississippi Code Annotated section 97-3-79 (Supp.1978), provides:

“[U]pon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.”

In Lee v. State, 322 So.2d 751 (Miss.1975), we construed this provision of the statute:

“The statute before us places the imposition of a life sentence within the sole province of the jury and, in our opinion, no such sentence can be imposed by a judge unless he has the authority from the jury so to do. The statute presupposes, absent a jury recommendation of life imprisonment, that the judge will sentence the defendant to a definite term reasonably expected to be less than life. We therefore affirm and remand for proper sentence.” 322 So.2d at 753.

We, therefore, affirm the conviction of Parker, but reverse as to the life sentence imposed, and remand to the trial court for the imposition of a proper sentence.

CONVICTION AFFIRMED, BUT REVERSED AND REMANDED FOR RE-SENTENCING.

PATTERSON, C. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COF-ER, JJ., concur.

SMITH, P. J., took no part.


author: BROOM, Justice,

text:
    David JONES v. STATE of Mississippi.
    No. 50939.
    Supreme Court of Mississippi.
    Feb. 14, 1979.

      John W. Christopher, Canton, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Murder, resulting from an argument which erupted during a game of chance, is the offense for which David Jones (defendant below) was convicted in the Circuit Court of Madison County. Given a sentence of life imprisonment, he appeals. We affirm.

During the evening of September 4,1975, Jones and Robert L. Williams, the deceased, were gambling at the “Wiggle Inn” in Canton, Mississippi, when an argument ensued and Jones shot Williams. After being shot by Jones, Williams ran out of the “Wiggle Inn” and fell on the sidewalk, mortally wounded. Within a few minutes after the shooting, law officers came to the scene and found Jones, armed with a pistol, standing near the body of Williams.

During the trial, law officer Sullivan testified that when he came to the scene of the killing to investigate the incident he heard a bystander say (referring to Jones), “he’s the one that done the shooting,” to which testimony defense counsel unsuccessfully objected. The defense now argues that Sullivan’s testimony constituted inadmissible hearsay, the admission of which was reversible error. In considering this proposition, we point out that when the bystander said, “he’s the one . . .,” the accused was present and replied, “Yeah, and I’ll get you as soon as I get out of this mess.” Allowing the jury to hear and consider the bystander’s testimony was not error, because the testimony is an exception to the hearsay rule. The bystander’s statement (he’s the one . . .) was made in the presence of Jones (the accused), who had a fair opportunity to deny, ignore, or otherwise respond to the statement that he shot Williams. Jones chose not to remain silent and voluntarily responded, in effect, that he did just what the bystander said he did and would “get” the bystander later “as soon as I get out of this mess.” The action of the trial court in overruling the defense objection was proper. Jones v. State, 228 Miss. 296, 87 So.2d 573 (1956).

Another argument advanced by Jones is that the trial judge erred in allowing into evidence the weapon used in the killing, when the state failed to establish a continuous chain. Officer Sullivan, however, testified that the .25 calibre pistol at issue was the one that he took from the possession of Jones at the scene of the killing. During his work on the case, Sullivan made a scratch mark on the gun, afterward placing it in a safe in the office of the chief of police. At trial Sullivan clearly identified the gun by his mark on it, and the evidence does not suggest or raise any inference of any tampering or substitution of the item which went into evidence. Upon careful reading of the record, we cannot say that the lower court erred in allowing introduction of the pistol. Grady v. State, 274 So.2d 141 (Miss.1973).

Admitted into evidence over Jones’ objection was a black and white photograph of the deceased (lying in front of the “Wiggle Inn”), taken after he was shot, admission of which is said to constitute reversible error. In his brief Jones cites several cases holding inadmissible gruesome photographs which could serve no useful purpose on any issue in the case. At trial, however, Jones’ objection to the photograph was not based on the gruesome aspect of the photograph or that the photograph was intended to inflame the jurors’ minds. Therefore, we will not reverse on account of the alleged gruesome or inflammatory qualities of the photograph because this ground of objection was not raised at trial. Stringer v. State, 279 So.2d 156 (Miss.1973). Our rule is that the admission of photographs is a matter vested within the sound judicial discretion of trial courts, and we will not reverse unless it is shown that the discretion was abused, which does not appear here. The photograph was a black and white print and does not appear to be inordinately gruesome.

The last argument made, that the verdict was against the great weight of the evidence and contrary to the law, is totally without merit. The conviction was supported by the uncontradicted testimony of a number of witnesses who heard the shot and then saw Jones with a pistol in his hand. According to these witnesses, the deceased immediately exited the building, fell on the sidewalk, and expired. The jury was justified in accepting the state’s testimony, which included Jones’ admission at the scene of the crime, made with the gun still in his hand. After the state rested its case, no testimony was offered by or in behalf of Jones.

Our judgment is that Jones’ conviction was adequately established by cogent evidence. No reversible error appears and af-firmance is required.

AFFIRMED.

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

SMITH, P. J., took no part.


author: TORBERT, Chief Justice.

text:
    Donald E. LUCAS v. AMERICAN MANUFACTURING COMPANY.
    CER 15.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Christopher E. Peters, Mobile, for plaintiff.
    William E. Johnston, Mobile, for defendant.
   TORBERT, Chief Justice.

Pursuant to Rule 18 of the ARAP, the United States District Court for the Southern District of Alabama, Southern Division, has requested this court to answer a certain question of law which that court deems determinative of an action before it and on which there is no clear controlling precedent in the decisions of this court. The federal district court submitted the following question:

Is a third-party beneficiary of a contract injured through a defect in the goods made the basis of that contract required to give notice of breach of warranty to the seller prior to the institution of a lawsuit against such seller arising out of such breach?

We accepted the certification. Subsequently, we answered this precise question as Certified Question No. 4 in Simmons v. Clemco Industries, 368 So.2d 509, 13 A.B.R. 394 (1979), where we held that a third party beneficiary of a warranty (a warranty beneficiary) is not required to give notice of the breach in order to maintain suit against the seller of the goods for breach of warranty. Since we have previously answered the question before us now, we pretermit further consideration and refer to the decision in the abovemen-tioned case.

CERTIFIED QUESTION ANSWERED.

All the Justices concur.


author: FAULKNER, Justice.

text:
    VINTERO SALES CORPORATION, a corp. v. MARSH & McLENNAN, INC., a corp.
    77-652.
    Supreme Court of Alabama.
    Feb. 9, 1979.

      Charles J. Fleming, Mobile, for appellant.
    Thomas S. Rue, Mobile, for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment. Costs that included insurance premiums of $52,052 and guard services of $19,-152.08, were taxed against Vintero. Vinte-ro appeals only the taxing of these costs. We reverse and remand.

Vintero insured a vessel, the BONAIRE STAR, through Marsh & McLennan, and when the premiums were not paid Marsh & McLennan instituted suit by attaching the vessel. Because the sheriff of Mobile County will not take actual custody of a vessel, and guard it while under attachment, Marsh & McLennan nominated Mobile Protective Service as bailee. No court approval of this arrangement was obtained. Mobile Protective Service guarded the vessel twenty-four hours a day for six months at a total cost of $19,152.08. Moreover, after attachment, Marsh & McLennan took out Hull and Machinery (Port Risk), and Increased Value insurance on the vessel in the total face amount of $5,600,000, and nominated itself the loss payee. This, also, was without prior court approval. The insurance, on a monthly basis, remained in effect for six months at a total cost of $52,052.

Marsh & McLennan’s motion for summary judgment was granted along with “all Court Costs in this cause created.” Vinte-ro’s motion for the court to review the taxation of costs, and to retax certain items was denied in a minute entry. On appeal, Vintero asserts that the cost of the guard services, and the insurance premiums while the vessel was under attachment were improperly taxed against it.

The taxing of costs is governed by Rule 54(d) ARCP which states in pertinent part, “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . .” [emphasis added]. This language parallels that of Rule 54(d) of the Federal Rules of Civil Procedure. Justice Black, in the leading case of Farmer v. Arabian American Oil Co., 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964), noted that the last phrase, “unless the court otherwise directs,” vests the court with power to tax costs in an appropriate fashion. He went on to analyze the federal rule as follows:

“We do not read that Rule as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny . [T]he discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.” 379 U.S. at 235, 85 S.Ct. at 416.

It is acknowledged by the parties that no statute expressly authorizes the taxing of insurance premiums, and guard expenses as costs.

The clear implication of Farmer is that a party should obtain prior court approval before incurring costs other than those routinely incidental to litigation. We opine that the requirement of prior approval of the court is the better rule. It has been applied in a variety of cases involving expenses not provided for by statute. See Wahl v. Carrier Manufacturing Co., Inc., 511 F.2d 209 (7th Cir. 1975) (models and charts); Johns-Manville Corp. v. Cement Asbestos Products Co., 428 F.2d 1381 (5th Cir. 1970) (models and charts); Euler v. Waller, 295 F.2d 765 (10th Cir. 1961) (maps); Specialty Equipment and Machin ery Corp. v. Zell Motor Car Co., 193 F.2d 515 (4th Cir. 1952) (models); Wade v. Mississippi Cooperative Extension Service, 64 F.R.D. 102 (N.D.Miss.1974) (computer time). This procedure allows the court to assure that only reasonable and necessary expenses are incurred. In addition, it enables the opposing party, who may ultimately bear the expense, to suggest less expensive alternatives. Consequently, we hold that under Rule 54(d), where costs are substantial, and will significantly increase the ultimate expense of a lawsuit, absent exigent circumstances, court approval must be obtained before the expenses are incurred if they are to be taxed as costs. This construction of Rule 54(d) comports with the avowed purpose of our rules “to secure the just, speedy and inexpensive determination of every action.” Rule 1(c) ARCP.

The problems inherent in allowing a party unilaterally to incur taxable costs are well illustrated by the situation here, where there appears to be a serious question of the propriety of Marsh & McLennan insuring the vessel for its full value and nominating itself as loss payee when its interest was for a much smaller amount. Apparently, they sought to shield themselves from any liability which they might possibly incur if the vessel were damaged or destroyed. By doing so they incurred expenses which rival the judgment itself, but Vintero was never accorded the opportunity to suggest alternatives or to object to the type or amount of insurance obtained.

The cost of the guard services presents a slightly different factual situation. There, it appears that Marsh & McLennan had no choice but to appoint a bailee to act as guard, otherwise, the sheriff would not have attached the vessel. Under these circumstances the failure to obtain prior court approval was understandable. Nevertheless, we consider it essential that the courts maintain control over custodial expenses incurred in the protection of property in custody. See Pyne v. Oil Screw Fishing Vessel Chrisway, 298 F.Supp. 1160 (S.D.Ga.1969).

Because this is a case of first impression, we remand it to the trial court to hold a hearing on the reasonableness of the insurance premiums, and guard expenses, and then determine which of the parties shall bear the entire burden of the costs, or a pro rata portion of them.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Justices concur.