author: NEAL B. BIGGERS, Commissioner,

text:
    CITY OF JACKSON v. Linda C. SULLIVAN.
    No. 49571.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Sept. 14, 1977.

      John E. Stone, Davis H. Smith, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, for appellee.
    Before ROBERTSON, SUGG and BROOM, JJ.

       Bowling, J., took no part in this decision.

   NEAL B. BIGGERS, Commissioner,

for the court:

This tort action for personal injuries was filed by Linda C. Sullivan (appellee) against the City of Jackson (appellant) in the First Judicial District County Court of Hinds County. Trial without a jury resulted in a $1,220.84 judgment for appellee which, on appeal of the City to Circuit Court, was affirmed. Arguing that it was entitled to a directed verdict below, the City appeals here and we reverse.

The testimony before the trial court in this case basically was uncontradicted. The appellee was driving her automobile in a southerly direction on Belvedere Drive, a four-lane street in the City of Jackson, at approximately midnight. A slow moving vehicle was ahead of the appellee in the same lane of traffic, the western or right-hand lane of the southbound traffic. The appellee pulled into the left lane-to pass the vehicle and almost immediately upon getting into the left lane she saw a barricade in the left lane and crashed through it, going into a shallow excavation the appellant had dug earlier in the day to repair a water line leak. As a result of the collision, damages to the appellee’s car were sustained. ' The testimony further revealed that the appellant, after digging the excavation and before leaving it for the night, placed barriers around the perimeter of the excavation and placed smudge pots around the barricades and left the smudge pots burning. Further testimony of the appellee was that she saw a light near the barricades before the collision but stated it was not a sufficient warning to put her on notice of the existence of the barricades in time to avoid the collision.

The question before the Court, as it was before the trial judge who heard the case, is whether the accident in this- case was a result of inadequate warning devices placed in front of the excavation by the appellant or, as the appellant submits, was solely the result of the appellee’s failure to keep a proper lookout under the circumstances. Stated differently, should the appellant’s request for a directed verdict have been granted?

What is necessary in the way of warning devices to adequately and properly warn motorists using the public roads of obstructions in the traveled portion of the road is a question of fact to be determined from the evidence in each case. City of Meridian v. Moody, 185 Miss. 340, 186 So. 649 (1939); Graves v. Johnson, 179 Miss. 465, 176 So. 256 (1937). Whether advance or cumulative warnings should be placed some distance ahead of barricades in the road, or whether the barricades and warning devices at the point of the obstruction are sufficient alone, is to be determined by the triers of fact in accordance with the circumstances that exist in each case.

Under the circumstances that existed in this case, and the evidence is uncon-tradicted, the Court is of the opinion that the appellee failed to exercise that degree of care required of her by Mississippi Code Annotated § 63-3-603 (1972). This statute requires in effect that when a motorist is operating a motor vehicle upon any roadway divided into three or more clearly marked lanes for traffic (as Belvedere Drive was), the vehicle shall not be moved from the lane of traffic in which it is traveling until the driver has first ascertained that such movement can be made with safety. It is obvious that in this case the appel-lee did not first ascertain that the left lane of southbound traffic was clear before she proceeded to pass the vehicle in front of her. As held in Nobles v. Unruh, 198 So.2d 245 (Miss.1967), a violation of this section of the Code constitutes negligence as a matter of law. Appellant’s motion for a directed verdict should have been granted below.

For this reason, and since there is no contradiction in the record as to how the collision occurred, the judgment should be, and is, reversed and judgment entered here for the appellant.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.

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


source: Caselaw Access Project

author: WILLIAM NEVILLE, Commissioner,

license: Public Domain

text:
    James Rogers SMITH, III v. Stephanie Cortner SMITH.
    No. 49500.
    Supreme Court of Mississippi.
    Aug. 31, 1977.

      Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, for appellant.
    John L. Hatcher, Hatcher & Westerfield, Cleveland, for appellee.
    Before PATTERSON, C. J., SUGG and BROOM, JJ., and NEVILLE, C.
   WILLIAM NEVILLE, Commissioner,

for the Court:

This matter was tried in the Second Judicial District Chancery Court of Bolivar County upon petition of Stephanie Cortner Smith (appellee) for injunctive relief and modification of a prior decree, et cetera, and upon the answer and crossbill of James Rogers Smith, III (appellant). Mr. Smith appeals and Mrs. Smith cross appeals from the decree of the lower court. We reverse in part and affirm in part.

A divorce was granted to Stephanie Cort-ner Smith on June 26,1973, from the appellant, James Rogers Smith, III. Prior to said decree, appellant and appellee entered into a written agreement requesting the chancery court to incorporate the terms and provisions thereof in its final decree, which was done. Under terms of this written agreement, appellant was to pay appellee $1400 per month ($800 child support, and $600 alimony). As security for payment of the alimony and child support, appellant assigned to appellee by assignment dated June 29, 1973 the proceeds of two trusts (the J. R. Smith Trust and the Sarah George Smith Trust) established by his parents, wherein appellant and his sister were named beneficiaries.

In October 1974, by agreement among trustees and beneficiaries of the two trusts, appellant was made sole beneficiary of the J. R. Smith Trust and his sister sole beneficiary of the Sarah George Smith Trust. All of the assets of the J. R. Smith Trust were transferred to the Sarah George Smith Trust in exchange for payment by the Sarah George Smith Trust to the J. R. Smith Trust the sum of $312,759. This consideration was in the form of three promissory notes: one payable December 5,1974, in the amount of $30,000; a second payable January 2, 1975, in the amount of $32,759; a third in the amount of $225,000, bearing eight percent interest, payable in ten annual installments of $26,286, beginning on December 30, 1975, and subsequent payments due on the 30th day of December of each year until final payment on December 30, 1984. These notes then constituted the corpus of the J. R. Smith Trust.

At the time of the transfer of these trust assets and the receipt of the notes, an amendment to the agreement assigning security for payment of appellant’s child support was signed by appellee and appellant. This amendment read as follows:

NOW, THEREFORE, the said James R. Smith, III, as Trustee of the James R. Smith Trust, and individually, does hereby transfer, assign and deliver to Stephanie Cortner Smith any funds which he may receive as beneficiary of the aforesaid trust created by the aforementioned trust agreement, as security for the payment of the alimony and child support described in the original Assignment dated June 29, 1973. After application of said funds to the payment of the aforesaid alimony and child support, the remainder thereof shall be paid to James R. Smith, III, as previously provided, and this additional Assignment shall have no effect on the powers and rights of James R. Smith, III, as Trustee, and is given solely as security for the payment of the aforesaid alimony and child support.

The promissory note of $225,000 was delivered to the Cleveland State Bank for collection pursuant to a “receipt and agreement” wherein the Cleveland State Bank acknowledged receipt of said note for collection and agreement to abide by the terms of the said October 12, 1974, agreement. This instrument signed by the Cleveland State Bank stated, “the assignment as security for the payment of alimony and child support is intended to provide security for said period of ten years.” The instrument signed by the Cleveland State Bank further stated that in the event of prepayment, the bank would hold said sum for a period of time to give appellee and her attorney an opportunity “to work out an arrangement for investment of said sum for the J. R. Smith Trust so as to provide security for the intended period of time — or seek relief in court.”

The instrument signed by the Cleveland State Bank further stated:

No funds collected by the Cleveland State Bank in payment of said note shall be paid or distributed to James R. Smith III, individually or as Trustee of James R. Smith Trust, if any of the aforesaid installments of alimony and child support are due and unpaid.

The original J. R. Smith Trust stated in paragraph 111(b)(2):

If the Grantor’s said son should predecease him or should die before the terms of this trust with issue of his body him surviving, then such issue or descendants of such issue, shall succeed to the son’s interest per stirpes.

In other words, if the appellant should die before the expiration of the ten year period and before payment of the ten annual note installments is made, that part remaining unpaid would go to the issue of appellant’s body according to the original trust.

The agreement signed by appellant and appellee was security for payment of alimony and child support, but nothing therein could be construed to be agreement to bind any assets for future payments of alimony and child support should appellant die. In other words, this was no agreement for the payment after death, only security for payment while legally due. It is true that there was some language in the instrument signed by the Cleveland State Bank indicating otherwise, but this was in no way binding on appellant. The assignment could be effective only as long as the appellant was alive, and only gave protection up to ten years, the time in which payments of the note were to be made.

In May 1975 appellee sought modification of the original divorce decree and injunctive relief. After hearing on the petition, the lower court made certain modifications of the original final decree, including:

The final decree rendered on June 26, 1973, is hereby specifically modified to provide that alimony and child support payments shall not terminate by reason of the death of the defendant, but that they shall continue to be a charge against his estate .

The law of this state is (and always has been) that child support and alimony terminate upon the death of the father unless by written agreement he has made the same binding on his estate. Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, §§ 6.07, 9.00 (1957). This Court does not consider the said agreement and assignment signed by appellant and appellee to be of such a nature. We make no ruling as to what should happen to any unpaid payments on said note should appellant die before the expiration of the ten years.

Therefore, the chancellor’s ruling that assignment and security agreement would be binding after death of the appellant is and should be reversed.

As to the remainder of the chancellor’s finding, this Court affirms finding no error therein.

REVERSED' IN PART, AND AFFIRMED IN PART.

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

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


author: BROOM, Justice,

text:
    DIXIE CONTRACTORS, INC. and Reliance Insurance Company v. Dewey ASHMORE.
    No. 49606.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Bryant & Stennis, Grier J. Gregory, Gulf-port, for appellants.
    Rushing & Guice, William Lee Guice, III, Biloxi, for appellee.
    Before SMITH, BROOM, and LEE, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation benefits were awarded Ashmore (appellee) concerning internal injuries received by him in 1971 while he was loading a heavy tractor onto a lowboy. His injuries caused internal bleeding, and the administrative judge awarded him only three days’ compensation. On review the entire Commission granted him medical benefits from October 8, 1971, through May 5, 1972, and compensation for temporary total disability at $40 per week from October 9, 1971, through May 5, 1972. The employer and carrier appealed from the award which the Circuit Court of Harrison County affirmed. We affirm.

I.

Was there substantial evidence to support the Commission’s finding that the benefits awarded the claimant-appellee were causally related to the October 8 injury? Claimant’s testimony shows that as he loaded heavy machinery he was thrown forward into the steering clutches, which struck him in the stomach and “popped” him back against the seat of the tractor. On impact he felt a “pop inside” and a burning sensation; within a few minutes he was dizzy, nauseated and vomiting blood. He stated that he had no pain or discomfort prior to the injury nor any vomiting of blood, but that after being taken directly home, he vomited blood twice more and then immediately went to the hospital. The circumstances and. testimony of witnesses who saw him at the time of the accident leave no real room for questioning causal connection as concerns the lay testimony. Appellants base much of their argument upon the following statement from the claimant’s physician, Dr. Wesson, when questioned about causal connection:

Q. Now Dr. Wesson, getting back to the accident that Mr. Ashmore described to you when you took his history. Would you state whether or not, in your opinion, this accident could have either directly or indirectly aggravated his condition causing the hemorrhaging and the subsequent surgery?
BY MR. BRYANT:
We would object to that question in the form it’s in.
A. I think that recognizing, first of all, that the man had a proven history of having had an ulcer and that recognizing that he did have recurrent ulcer disease that trauma, which he states he had and which was apparently witnessed that the trauma could have either directly or indirectly led to the hemorrhage that he had resulting in the hospitalization. (Emphasis added).

Appellant claims (1) that the answer speaks only of the original hospitalization, and (2) that the underlined language “could have” speaks only to possibility rather than probability. Careful reading of Dr. Wesson’s testimony shows that his answer was not limited to causal connection to the first hospitalization alone. We find no merit in appellants’ contention number one in this respect.

Objection of the appellants that the language “could have” speaks only to possibility rather than probability merits discussion because our rule is that medical testimony, to sufficiently support causation, must be more than mere conjecture. Pertinent to this aspect of the present case is the following excerpt from 3 A. Larson, The Law of Workmen’s Compensation, § 80.32 (1976):

The distinction between probability and possibility should not follow too slavishly the witnesses’ choice of words, as sometimes happens in respect to medical testimony. . A doctor’s use of such words as “might,” “could,” “likely,” “possible,” and “may have,” particularly when coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is in most states sufficient to sustain an award. It is a common experience of compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualified are his statements on the witness stand. .
The compensation process is not a game of “say the magic word,” in which the rights of injured workers should stand or fall on whether a witness happens to choose a form of words prescribed by court or legislature. What counts is the real substance of what the witness intended to convey .

From the whole of the doctor’s testimony, what is the real substance he stated concerning causal connection? From his deposition we perceive that he relied upon the claimant’s statement that he had vomited blood and the tarry stool primarily for his diagnosis of upper GI bleeding. Claimant’s hemoglobin was a normal 14.8, and no ulcer showed on the X ray. According to Dr. Wesson, there is nothing unusual when an ulcer in this situation is not made apparent from an X ray. The claimant did not vomit during the hospital stay and, in the doctor’s opinion, was not bleeding at the time of his dismissal from the hospital. Dr. Wesson stated that it is not unusual for an ulcer patient to have intermittent bleeding such as this. However, no physical indication (such as a bruise) would indicate on first examination that the claimant had been jarred. During claimant’s two days at home, his wife stated, he had total bed rest. On the 13th, claimant became very nauseated, and, while his wife had gone to call the doctor, he began vomiting blood again and was readmitted to the hospital. When counsel asked:

Q. Why was he readmitted, doctor? Was it a continuation of the same symptoms?
BY MR. BRYANT:
We object to leading the witness.
A. He continued to have tarry stools, but primarily weakness was the reason he came back to the hospital . primarily just progressive and increasing weakness and dizziness, and he did have tarry stools.

The most significant factor in reexamination on second admission was a low hemoglobin — 6.6—half of what it had been two days before, “indicating he had lost a considerable amount of blood since the previous laboratory tests were done.”

Q. Well, he had continued bleeding during this time from October 8 until the time when this other test was done?
A. He was having tarry stools, which indicates that he was bleeding.
Q. What treatment did you perform for Mr. Ashmore on this second hospitalization?
A. Well, we felt that since he had stopped on the initial hospitalization that he might stop again, as patients frequently do. He was started on really conservative therapy, plus he was given several blood transfusions. However, his problem was that he would bleed sporadically. He’d bleed for a day or two and then he’d stop, and we’d think that we were sort of ahead of the situation, and it was not until 10/25/71 that the decision was made to proceed with surgery.

Claimant Ashmore stated that in his previous troubles with an ulcer in 1967 and 1971 (the 1971 troubles resulting in surgery), he had never had any bleeding from that ulcer.

In view of the fact that there had been absolutely no history of bleeding prior to the trauma experienced by the claimant, despite the fact that his physician discharged him believing the bleeding had stopped, the medical evidence upon reexamination clearly showed it had not (the tarry stools and low hemoglobin). Even though the doctor used the language “could have,” the totality of his testimony indicates that he intended to convey the following thesis: Claimant was admitted with a bleeding ulcer; it is not unusual for an ulcer once bleeding to intermittently bleed; he released claimant from his first hospitalization thinking that the bleeding had stopped, but in two days, upon reexamination, tarry stools and low hemoglobin indicated he had been mistaken. Such expert testimony of the doctor, plus the corroborating evidence, constitutes substantial evidence to support the Commission’s finding. This is not the first case in which this Court upheld an award of compensation where it was contended that trauma aggravated a preexisting ulcer. Such a case was New Orleans Furniture Mfg. Co. v. Martin, 190 So.2d 863 (Miss.1966), and there the claimant’s doctor testified it was “possible that the back injury aggravated the ulcer and certainly precipitated it.”

11.

After the main hearing of the matter concluded, there was offered and introduced into the record an affidavit of claimant’s doctor (Wesson). We think this was improper but harmless error, for several reasons: (1) It, as counsel conceded, changes nothing which was in his deposition already in evidence, but merely restated his interpretation of the claimant’s condition; (2) after the affidavit went in, the employer made no effort to respond to or impeach the affidavit or to recross-examine Dr. Wesson; and (3) earlier the doctor was in fact cross-examined. We do not hold that trials may be conducted upon ex parte affidavits, but in this instance the error was not shown to have prejudiced the appellant.

In conclusion we point out that under Mississippi Code Annotated § 71-3-55 (1972), the Commission “shall not be bound by common law or statutory rules of evidence or by technical dr formal rules of procedure . . ..” Furthermore, we have long adhered to the rule that a broad and liberal construction shall be accorded the Workmen’s Compensation Law in order to accomplish the legislative purpose. This is a close case, but we cannot say that the decision appealed from is contrary to the law or not supported by substantial evidence which the Commission had the right to accept.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    COMMUNICATIONS IMPROVEMENT, INC. v. MISSISSIPPI STATE TAX COMMISSION.
    No. 49548.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Thomas W. Tardy, III, Jackson, for appellant.
    James H. Haddock, Joe D. Gallaspy, William N. Lovelady, Jr., Jackson, for appellee.

      Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court.

Communications Improvement, Inc. (CII), made application to the Mississippi State Tax Commission for exemption from the payment of state income taxes. The Commission denied the application, and assessed income taxes against CII for the years 1972, 1973 and 1974.

CII appealed to the Chancery Court of the First Judicial District of Hinds County, and that Court on March 18, 1976, affirmed the order of the State Tax Commission and decreed that CII pay $17,844.57 for state income taxes due for 1972, 1973, and 1974, and interest in the amount of $2,919.84, and legal interest from the date of the decree. CII appeals.

The sole legal issue to be decided by this Court is whether CII qualifies for exemption from the payment of state income taxes under Mississippi Code Annotated, section 27-7-29 (1976 Supp.), the pertinent part of which provides:

“(a) The following organizations shall be exempt from taxation under this article:
“(3) Cemetery corporations; religious, charitable, educational or scientific associations or institutions, including any community chest, funds or foundations, organized and operated exclusively for religious, charitable, scientific, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual.” (Emphasis added).

CII claims that it is an educational association or institution organized and operated exclusively for educational purposes.

CII is the interim licensee and operator of television station WLBT, Channel 3, a highly successful television station organized, developed and operated by the Lamar Life Broadcasting Company as a commercial television station for many years. The purpose for which CII was organized is succinctly stated in its charter of incorporation:

“6. This corporation is created for the purpose of encouraging and promoting the study, use, understanding, and development of all forms of communication in Jackson, Mississippi, and surrounding areas; to experiment with, promote, develop, operate, and advise any and all existing forms of mass communication media and to develop new forms of public communication and new applications of existing communications methods; to develop the communication skills of the general public and media personnel; to improve the understanding, relationship, and dialogue between all forms of communications media, the general public, and the governmental community.
“To raise funds to be used in the furtherance of the corporate purposes by engaging in publishing, printing, broadcasting, distribution of printed materials, operation of reading libraries, film libraries, and other lawful activities involving utilization of communication products skills and related activities.”

The charter of incorporation also provides:

“7. This corporation shall issue no shares of stock and shall not divide any dividends or profits among its members.”

Mr. Kenneth Dean, president of CII, testified that the main purpose of CII was to operate television station WLBT on an interim basis, that WLBT was a commercial television station and an affiliate of the National Broadcasting Company.

The Federal Communications Commission (FCC), in granting an interim license to CII, imposed these conditions:

“A. That Communications Improvement, Inc., shall submit on a semiannual basis, a balance sheet, a revenue statement, and a statement as to the disposition of net profits.
“B. That net profits shall be distributed within the State of Mississippi, as provided in paragraph 18, in Memorandum Opinion and Order, released September 8, 1970.”
“18. With respect to net profits, CII states: If Interim authority is granted, Improvement (CII) will donate the entire net profits of operation to nonprofit organizations engaged in activities relating to broadcasting, primarily in Mississippi. Plans include the donation of about one-half of the net profits to finance the development of educational television in the State of Mississippi. The allocation of funds for this .purpose will be arrived at in consultation with the organizations engaged in planning and operating non-commercial educational facilities in the State. Improvement will also seek to develop and support a communications training facility at a predominantly Negro college, preferably in Mississippi. Improvement intends to administer its grant program in such manner as to avoid any influence or control over the program content or staffing of either the educational television stations or the educational institution.”

Mr. Dean further testified that station WLBT is run just as any other commercial television station, and that the general manager of the station “is on a profit-sharing salary, so I don’t know exactly what it might be.” Dean testified, as to the educational grants made by CII:

“We made a grant to Mississippi Valley State College for a training program of a black engineer in 1972 for $448. . We made a grant in 1974 to Tougaloo College for the preplanning stage of a Department of Journalism for $26,500. We made a grant to Mississippi Educational Television for $26,000. Then in ’75 we made a $11,000 grant to Tougaloo College for the continuing development of the Department of Journalism. We made in ’75 a $37,000 grant to Educational Television for the development of scientific programs for public school children. We have further approved a grant of $10,200 to Tougaloo College which will be paid upon call from them sometime this month.”

Mr. Garland Coldiron, auditor for the State Tax Commission, testified that the net profits for CII for the three-year period 1972 through 1974 were $405,369.97, and that the total contributions during this period were $76,320.

Mr. Harold Boleware, the accountant for CII, testified that CII had no invested capital, and that the entire capitalization for the beginning of business in June, 1971, came from a $300,000 loan; that when CII as an interim licensee ceased to operate station WLBT that it would have to pay off this loan either from net profits or a complete liquidation of its assets.

As a rebuttal witness, Mr. Dean testified that, as he understood the FCC order, CII was required to distribute its net profits to two different areas:

“Development of educational television matter primarily to be consumed for education of underprivileged children in the Mississippi Delta. Secondly, to an institution of higher learning that is predominantly negro in this state for the purpose of developing a minority program in Journalism.”

Mr. Dean explained that it would be much better for the educational institution selected to develop a journalism program to receive a large block grant at the end of the interim period rather than to dribble it out in small contributions. He stated that there were at least three institutions of higher learning in the state developing program proposals for a minority program in journalism. He testified:

“One of the applicants, Tougaloo College, has said to us, ‘We would prefer to have a block grant made if we are chosen at the end of the interim operation so that we can set up an endowment program rather than create a situation where each year along the way we expand our program but at the end have no endowment.”

We think that it is abundantly clear from the language of the charter of incorporation of CII and the testimony of Kenneth Dean, its president, that the primary purpose for which CII was organized was to operate on an interim basis television station WLBT, a highly profitable commercial television station. As an incident of its operation, it was required by an order of FCC to disburse about one-half of its net profits to educational television and the rest (impliedly) to an educational institution which would develop a training program in journalism for minorities.

In our opinion, CII is just like any other taxpayer making contributions to a school, college, university, or educational television; it receives full credit for its contributions as deductions from its net income.

However, CII was not organized exclusively for educational purposes; neither is it being operated exclusively for educational purposes, as specifically required by Mississippi Code Annotated section 27-7-29 (1976 Supp.), in order to be exempt from taxation. The chancery court was correct in finding that CII was not exempt from paying state income taxes on its net profits.

The decree of the chancery court is, therefore, affirmed.

AFFIRMED.

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


text:
    Joe M. BLAKENEY et al. v. Herman E. SIMS et al.
    No. 49553.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    O. B. Triplett, Jr., Forest, for appellants.
    John M. Sims, Heidelberg, Robert H. McFarland, Bay Springs, for appellees.
    Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court.

Joe M. Blakeney and four other citizens and taxpayers of Jasper County filed a bill of complaint in the Chancery Court of the second judicial district of Jasper County against Herman E. Sims, and the other four members of the Board of Supervisors of Jasper County, individually, and as the Board of Supervisors, to enjoin them “from attempting to employ a Veterans Affairs Coordinator, or to do any act other than such acts as are expressly authorized by Section 35-3-21, Mississippi Code of 1972,

Complainants did not aver that they did not have an adequate remedy at law, nor did they aver that they would suffer irreparable harm and injury if the court did not grant the injunction. A general demurrer was sustained to the bill of complaint, and the complainants appeal.

The gravamen of the charge against the Board and the individual members thereof is that under Mississippi Code Annotated, section 35-3-21 (1972), the Board did not have authority to employ Warren M. Gunn as Veterans Affairs Coordinator but only had authority to pay a Veterans Affairs Coordinator selected in some way by the veterans of the county.

Complainants averred that the statute authorized the Board of Supervisors to pay personnel and to provide an office, but did not authorize or expressly provide for the selection and employment of personnel by the Board. Section 35-3-21 provides in part:

“In order to maintain offices and pay personnel for the purpose of assisting all residents of the State of Mississippi who served in the military or naval forces of the United States during any war, their relatives, beneficiaries, or dependents, to receive from the United States any and all compensation, hospitalization, insurance, or other aid or benefits to which they may be entitled under existing or hereafter enacted laws of the United States, the boards of supervisors in the various counties in the state are hereby authorized and empowered, in their discretion, to expend out of the general county fund, or special veterans’ fund herein authorized to be set up, or from both of said funds, the following sums:
“It shall also be the duty of the boards of supervisors to aid the United States to defeat all unjust claims for aid or benefit therefrom.
“Such expenditures may be made by the several counties acting alone, or in cooperation with other counties, and in cooperation with any federal or state agency carrying out such purposes.
“In the event that the general revenues of the county levied under and within the limits of existing taxing statutes is not sufficient to pay the expenses authorized herein, .the board of supervisors may, in its discretion, levy an additional tax not to exceed one mill on all taxable property in the county to defray such expenses or any part thereof.”

By amendment to the bill of complaint, it was charged that the orders of January 6 and January 16, 1976, terminating the employment of Waites McNeil as Veterans Affairs Coordinator, and employing Warren M. Gunn as Veterans Affairs Coordinator, have not been entered on.the Minutes of the Board of Supervisors, and that the Minutes of the January 1976 meeting of the Board have never been closed or signed.

We are of the opinion that the intent and purpose of the Legislature in enacting into law section 35-3-21 was to give the Board of Supervisors of each county the authority to select, employ, and pay a Veterans Affairs Coordinator or other employee to assist veterans and their families in securing the benefits to which they are entitled under the laws of the United States.

The authority to select and hire is by necessity implied when the authority is expressly granted to pay personnel and to provide offices for such personnel for the purpose of assisting veterans and their families in securing the benefits to which they are entitled under the laws of the United States. The fact that Section 35-3-21 places the additional duty on the Board of Supervisors to aid the United States in defeating “all unjust claims for aid or benefit therefrom” adds strength to our conclusion.

The chancery court was correct in sustaining the general demurrer to the bill of complaint as there was no equity on the face of the bill. The decree of the chancery court is, therefore, affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    L. C. RODGERS v. Jacqueline RODGERS.
    No. 50076.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Dyer, Dyer & Dyer, Howard Dyer, III, Greenville, for appellant.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jr., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

L. C. Rodgers filed a bill of complaint for divorce charging his wife, Jacqueline, with habitual cruel and inhuman treatment. In her answer she denied the allegations of the bill and filed a cross bill charging the complainant with habitual cruel and inhuman treatment and prayed for a divorce. These allegations were denied and thereafter, on the day of trial, the complainant dismissed his bill and the cause was heard upon the cross bill for divorce and the answer thereto.

At the conclusion of the trial, the court denied the cross-complainant a divorce, but awarded her a decree of separate maintenance, including $200 per month for support, and custody of an infant daughter with an additional $150 per month for the child’s support. These awards apparently resulted from a choice between a divorce and separate maintenance offered to the cross-complainant. The language of the court was:

The Court believes that under the prayer for general relief that they are living apart, and a decree for separate maintenance, if you would prefer that rather than a divorce suit, will be entered. .

The decree in pertinent part provides:

. [T]he Cross-Complainant, Jacqueline Rodgers, is not entitled to a divorce from the Cross-Defendant, L. C. Rodgers, on the grounds of Habitual Cruel and Inhuman Treatment but affirmatively finds that she is entitled to separate maintenance from the Cross-Defendant, L. C. Rodgers. .

This appeal challenges only the propriety of the decree of separate maintenance and if it is found proper, the amount of the award to the wife for her support is argued to be excessive. There is no question concerning the support or custody of the child.

In reversing this case we first observe that the cross-complainant did not pray for separate maintenance as an alternative to the divorce. We also observe there is no allegation in the cross bill that the cross-complainant was without fault in causing the separation. In Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603 (1951), we held that the jurisdictional basis of a separate maintenance decree in chancery is not outlined by statute, but by equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The power to grant separate maintenance to the wife was based on (a) separation without fault on the wife’s part, and (b) willful abandonment of her by the husband with refusal to support her. The Court pointed out that these jurisdictional requirements for separate maintenance had continued to the time of that case. And indeed they remain to the present. In Cox v. Cox, 279 So.2d 612 (Miss.1973), we held that a wife is not entitled to separate support and maintenance when her conduct materially contributed to the separation, and in King v. King, 246 Miss. 798, 152 So.2d 889 (1963), we were of the opinion that the law does not require the wife to be blameless, but that misconduct on her part which materially contributed to the separation which is equal to or greater than the fault of the husband, is a defense to her suit for separate maintenance.

A review of the uncontradicted testimony of the wife establishes that her conduct materially contributed to the separation. She admitted stabbing her husband some several minutes after an altercation between them. She continued a course of conduct that disrupted the marital tranquility by having a male companion against her husband’s wishes, although there was no evidence to indicate an adulterous relationship. Her course of conduct, by any fair reading of the record, was a material factor in the separation at least equal to if not greater than that of her husband. This is not to say that he was without fault because he admitted to striking her on one occasion and cursing her on others. Both testified that they could no longer live together as husband and wife. The separation being caused by the fault of both parties, a constant and continuing argument and battle, mandates the opinion that the decree awarding support and separate maintenance for the wife was erroneous.

The cause is therefore reversed and the cross bill of Jacqueline Rodgers is hereby dismissed, but without prejudice to either party to begin anew.

REVERSED AND RENDERED.

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


text:
    Harold TUCKER v. STATE of Mississippi.
    No. 50316.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

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

AFFIRMED.


text:
    Arthur M. GOODMAN and Chester Watson v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 50169.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Jacobs, Griffith & Povall, John Kirkham Povall, Cleveland, for appellant.
    Levingston, Jacks, Levingston & Land, Jeffrey A. Levingston, Cleveland, for appel-lee.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

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

AFFIRMED.


text:
    Alfred DONNELL, Jr. v. STATE of Mississippi.
    No. 49866.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.

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


text:
    Robert Lee HILL v. STATE of Mississippi.
    No. 50295.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Donald G. Kruger, Prentiss, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jefferson Davis County; R. I. Prichard, III, Judge.

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

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


author: LEE, Justice,

text:
    DEATON, INC. v. Ross BLAKENEY.
    No. 49579.
    Supreme Court of Mississippi.
    Sept. 7, 1977.

      Perry, Phillips, Crockett, Morrison & Herring, Lester F. Smith, Wells, Wells, Pittman & Wicker, Crymes G. Pittman, Jackson, for appellant.
    Eugene C. Tullos, Raleigh, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Deaton, Inc. filed suit in the Circuit Court of Smith County against J. W. Ashley and Ross Blakeney on an open account in the amount of four thousand one hundred and fifty-two dollars ($4,152.00). At the conclusion of Deaton’s evidence, the court directed a verdict in favor of Blakeney and overruled a motion of Deaton for judgment notwithstanding the directed verdict. Default judgment was entered against Ashley in the full amount of the claim. From the judgment in favor of Blakeney, Deaton, Inc. appeals.

The question here is whether or not the trial court committed error in failing to hold that under Mississippi Code Annotated § 13-1-133 (1972) the existence of a partnership between Ashley and Blakeney was established as a matter of law.

Appellant charged in its declaration that Ashley and Blakeney incurred the indebtedness acting as partners and exhibited its properly verified account. Blakeney filed an answer denying that a partnership existed between Ashley and him, denying that Blakeney owed Deaton any amount, and admitting that he had paid nothing on the indebtedness for the reason that he owed the appellant nothing. No special pleas or affirmative matter were set forth in the answer. Blakeney did not execute a counter-affidavit that the account was incorrect nor did he deny under oath the existence of a partnership between the defendants.

D. H. Moore, Jr., vice president of operations, Deaton, Inc., was the only witness who testified in the case. The appellant furnished trucks and drivers for the purpose of hauling eleven (11) truckloads of watermelons from Williston, Florida, to Farmers’ Market, Jackson, Mississippi. Eleven (11) invoices were verified and made exhibits to the testimony of Moore. They reflect that the loads were shipped by Ross Blakeney from Williston, Florida, to J. W. Ashley, Farmers’ Market, Jackson, Mississippi. Moore testified that Ashley telephoned him on several occasions from Jackson about shipping the produce via their truckline and Blakeney telephoned him a number of times from Williston, Florida about the contract. Also he telephoned Blakeney in Florida, but he never actually saw either Blakeney or Ashley.

Did the failure of appellee to deny under oath that he and Ashley were partners admit the existence of a partnership, and did appellant introduce evidence of the partnership which then entitled appellee to cross-examine Moore on that question?

Mississippi Code Annotated § 13-1-133 (1972) provides:

“In suits against one or more of several partners, founded on any written contract made in the partnership name, it shall not be necessary to prove the partnership signature, or that the defendant was a member of said partnership, unless the same be specially denied by plea, verified by the oath of the party pleading the same. It shall not be necessary in any case to prove the persons composing a partnership which may be set forth in the pleadings, unless the same be specially denied by a plea, verified by the oath of the party pleading the same, and this rule shall apply to all pleas and legal proceedings to which the same may apply.”

Appellee concedes that failure to deny under oath the existence of a partnership admits the existence of same under the above section and under cases decided pursuant thereto. Wilkinson v. Goza, 165 Miss. 38, 145 So. 91 (1932); Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143 (1917); Hirseh v. Shafer, Schwartz & Co., 66 Miss. 439, 6 So. 229 (1889).

However, appellee contends that the following questions and answers by appellant opened up the matter of the partnership and gave him the right to cross-examine Moore about it in rebuttal.

“Q. Mr. Moore, do you know who ordered these shipments?
A. Yes, Sir.
Q. Who ordered the shipments?
A. They were ordered through me by J. W. Ashley and Ross Blakeney.”

When appellant rested, appellee moved for a directéd verdict in his favor “for the reason that the plaintiff has solely and totally failed to show that Ross Blakeney was in any way whatsoever associated with this transaction.” In other words, appellee’s motion for a directed verdict was based on the contention that no partnership between Blakeney and Ashley had been proved.

Appellee relies upon the case of Crosby v. Keen, 200 Miss. 590, 28 So.2d 322 (1946), which held that although the defendant failed to deny under oath the existence of a partnership, when the plaintiff introduced evidence of the partnership in the trial of the case, the defendant was then entitled to make proof that there was no partnership by way of rebuttal. In the present case, the questions (above stated) were not asked for the purpose of going into the partnership relation, but were proper to establish the account and to identify the parties ordering the trucks. Since the allegations in the declaration as to the partnership relationship were not denied under oath, at the conclusion of the appellant’s case, the existence of the partnership was an established fact.

Was the open account stated and proved according to law?

The account was properly verified and no counter-affidavit was filed by appel-lee. Consequently, he could not object to the correctness of the account and his only defense was payment, which he admitted had not been made, or no contractual liability. Pioneer-Hydrotex Industries v. Barfield, 247 Miss. 845, 157 So.2d 489 (1963); Sanders and Alexander, Inc. v. Jones, 221 Miss. 143, 72 So.2d 240 (1954).

The record reflects without dispute that Ashley was the consignee of the produce and that it was delivered to him at the Farmers’ Market, Jackson, Mississippi. Ap-pellee does not contend otherwise. Appel-lee’s defense was that Ashley and Blakeney were not partners and that Ashley, rather than Blakeney, was the person responsible for the indebtedness. However, as a matter of law from the pleadings, a partnership existed between Ashley and Blakeney and they were both jointly and severally liable for the acts of each other. No additional proof could have been offered by Blakeney and appellant was entitled to the full amount sued for. When the trial court directed a verdict for Blakeney, appellant’s only alternative was to move for a judgment notwithstanding that directed verdict. It was error to direct a verdict for appellee and to overrule appellant’s motion.

The judgment of the trial court is reversed and judgment entered here for appellant.

' REVERSED AND RENDERED.

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


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Addie O. HURST et al.
    No. 49599.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Whittington, Brock & Swayze, H. D. Brock, Greenwood, for appellant.
    No brief filed for appellees.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

A Special Court of Eminent Domain of Leflore County entered judgment in favor of Addie O. Hurst, et al., in the sum of two thousand dollars ($2,000.00) as just compensation for taking certain lands by the Mississippi State Highway Commission, and the Commission appeals. It is contended that the trial court erred (1) in admitting testimony relating to damages resulting from a proposed median strip, and (2) in not excluding testimony of appellees’ appraiser on elements of damage.

Appellees declined to file a brief in response to that of the Commission, and, under Westinghouse Credit Corporation v. Deposit Guaranty National Bank, 304 So.2d 636 (Miss.1974), and Burt v. Duckworth, 206 So.2d 850 (Miss.1958), their failure so to do is tantamount to a confession of error, if appellant’s brief makes out an apparent case of error. We do not apply that principle here and have examined the record in order to make a final disposition of the case.

The Hurst property, consisting of 2.01 acres, is located on U.S. Highway 82 east of the city limits of Greenwood, and the acreage condemned is .08 of an acre. The purpose of the acquisition (30-foot strip across the front of the Hurst property) was to provide drainage from the highway. An additional lane was to be constructed on each side of the two-lane highway in order to convert it into a four-lane highway. The original right-of-way would contain the additional paved area. The Hurst home was approximately one hundred fifty (150) feet from the edge of the pavement before new construction. Appellant proposed to construct a median dividing the four lanes and, although appellees had access to the westbound lane, they would be required to travel approximately six hundred twenty-four (624) feet to cross over into the eastbound lane.’ Proof for the Commission indicated a damage of five hundred fifty dollars ($550.00) with no severance damages, and proof for appellees indicated damages of twenty-nine hundred fifty dollars ($2,950.00) of which amount eight hundred dollars ($800.00) was compensation for the actual take with twenty-one hundred fifty dollars ($2,150.00) severance damage.

The trial court permitted appellees to introduce, over objection, testimony of damages sustained by reason of the construction of the median and damages for inconvenience resulting from increased noise, pollution, and dust. Such damages, if any, were general to the neighborhood and public, were not specific damages to appel-lees, and testimony thereasto should have been excluded. Daniels v. Board of Supervisors of Clarke County, 323 So.2d 748 (Miss.1975); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 (1958).

With the above-mentioned evidence being excluded, the only credible evidence remaining for appellees was the value of the .08 acre of land at $800.00. The statement of values filed by the Commission showed the fair market value of the property condemned to be $550.00 with no damages to the remainder, and the statement of appellees showed the fair market value of the property to be condemned at $800.00 with a severance damage of $2,150.00. Under Mississippi Code Annotated § 11-27-7 (1972), statements of value are considered as pleadings in an eminent domain case. We are of the opinion that the statements of value and the proof justify an award of eight hundred dollars ($800.00), and the judgment of the trial court is reversed and judgment is entered here in favor of appel-lees in the sum of $800.00.

REVERSED AND RENDERED.

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


text:
    Thomas MALLETTE v. STATE of Mississippi.
    No. 49882.
    Supreme Court of Mississippi.
    Sept. 7, 1977.

      Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Thomas Mallette was indicted and tried for murder in the Circuit Court of Jackson County. From a conviction of manslaughter and sentence of eighteen (18) years, he appeals here.

Appellant assigns the following errors in the trial of the case:

(1) The trial court erred in failing to grant appellant’s motion to dismiss for the reason that two mistrials had resulted because of hung juries, and the trial court erred in failing to allow proof of that fact on behalf of appellant.

(2) The trial court erred in allowing the State to impeach its own witness by improper means.

(3) The trial court erred in failing to sustain appellant’s motion for a directed verdict.

(4) The trial court erred in admitting in evidence photographs of the deceased’s nude body.

(5) The trial court erred in granting State’s Instruction S-4 (a manslaughter instruction) which was not supported by the evidence.

(6) The trial court erred in refusing to grant appellant’s Instructions 1-D, 4-D, 6-D, 8-D, 9-D and 11-D.

On March 27, 1974, the Jackson County Sheriff’s Office received a call at approximately 3:00 or 3:30 p. m. indicating that there had been a suicide at the Thomas Mallette residence (a small house trailer). Officers responded to the call and, upon arriving at the scene, appellant met them in the front yard and told them that his wife, Betty Jean Mallette, had committed suicide by slipping in the bathtub. Appellant appeared to be upset, his clothes were wet, a pocket was torn, there were some bloodstains on his clothing,, and he was intoxicated. When the officers entered the trailer, they found the nude body of Mrs. Mallette on a sofa in the front room. She had been brutally beaten, bruises and cuts appearing over most of her body. Bloodstains were found on clothes and pillowcases and in all the rooms except the bathroom, which contained a shower, lavatory, and commode, but no bathtub. There was no evidence to indicate the deceased had been in the bathroom. Clothes and broken glass were scattered around the trailer, a bloodstained 2X4 with hair on it, wrapped in a newspaper, was found in the front room under a pile of clothes. In the same room, a broom was found with blood and red hair (the victim was red-headed) on it. Marks on the floor of the front room indicated it had been swept with a broom. The body appeared to have been wiped or cleaned up, and four-inch marks (bruises) could be seen on it. Autopsy of the body indicated that the causes of death were punctures and collapse of the lungs (by broken ribs) and hemorrhages of the brain. Alcohol content of the body was .265 mg. percent. Appellant gave no statement other than the initial statement that his wife committed suicide by slipping in the bathtub, nor did he testify on the trial. There were no eyewitnesses to the homicide.

I.

Did the trial court err in refusing to dismiss the case because of two previous mistrials?

At the outset of the trial, appellant filed a motion to dismiss the cause on the ground that it had been tried twice before, that both trials resulted in mistrials (hung juries) and that he had been placed in double jeopardy. Appellant attempted to introduce proof of such facts, but the trial court declined to permit same. The record reflects that there were two mistrials and, therefore, there was a proffer of that evidence. Jones v. State, 306 So.2d 57 (Miss. 1975).

Appellant argues that permitting the State to try a defendant twice or more enables the State to “shop” for a jury until an accused is convicted and circumvents the constitutional prohibition against double jeopardy. However, this is a two-way street. Experienced practitioners sometimes refer to the “sinker juror.” If this contention were sound, defendant might be able to impanel a sinker on the jury during two trials, and the State could never proceed to a final judgment in the case.

Art. 3, § 22, Miss.Const.1890 provides:

“No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.”

Suffice it to say, in order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Bounds v. State, 271 So.2d 435 (Miss.1973); Smith v. State, 158 Miss. 355, 128 So. 891 (1930); State v. Moor, 1 Miss. [Walk.] 134 (1823).

II.

Did the trial court commit error in allowing the State to impeach its own witness by improper means?

The State introduced as a witness, Mary Ellen Mallette, the eleven-year-old daughter of appellant and deceased, who testified that she left the trailer on the morning of the homicide at about 7:00 a. m., that her mother and father.were in the trailer, and that she did not return during the rest of the day. In the absence of the jury, a stipulation, which was introduced at a previous trial, was placed in the record to the effect that after Mary Ellen Mallette left the trailer at 7:00 a. m., she returned around noon and her mother (deceased) was asleep on the sofa and her father was asleep in bed. Subsequently, the district attorney, who participated in the previous trials but not in this trial, testified to facts fold him by Mary Ellen Mallette. They were substantially the same as those contained in the stipulation. The State did not claim surprise or that she was a hostile witness, and no predicate was laid for the testimony. However, no objection was made, and, since failure to enter timely objection constitutes a waiver of the objection, there is no merit in this contention. Kelly v. King, 196 So.2d 525 (Miss.1967).

III.

Did the trial court commit error in overruling appellant’s motion for a directed verdict?

All the evidence introduced on the trial was circumstantial evidence except the statement of appellant that his wife slipped in the bathtub and committed suicide. There was no proof that any persons had been in the trailer other than appellant and the deceased, and all the evidence was sufficient to present a question for the jury to determine whether or not appellant killed his wife. Burrill v. State, 328 So.2d 334 (Miss.1976); Brown v. State, 293 So.2d 425 (Miss.1974); Sanders v. State, 286 So.2d 825 (Miss.1973); Pryor v. State, 239 So.2d 911 (Miss.1970). The trial court correctly overruled the motion for a directed verdict.

IV.

Did the trial court err in admitting photographs of deceased’s body?

The State offered in evidence eight color photographs taken of the victim’s body. They were admitted over objection that they were cumulative. Appellant now contends that the photographs were gruesome, that they served no evidentiary purpose and were introduced solely to inflame the jury.

Without question, the photographs depicted a brutal beating of the deceased and were gruesome. However, we are of the opinion that the photographs had evi-dentiary value. Appellant was convicted of manslaughter and that part of the manslaughter statute which applies here sets forth the words, “killed in a cruel and unusual manner.” The photographs show better than testimony (certainly in corroboration of the testimony) that the deceased was killed by being beaten in a cruel, unusual and savage manner. There was admitted in evidence a 2X4 stained with blood. It was not identified as the murder weapon, but, upon viewing the body, together with the marks and bruises on it (some were four inches in width) the jury had a right to decide whether or not, in its opinion, the 2X4 was used in beating the victim. Admission of photographs in evidence is within the sound discretion of the trial judge, and, unless he abuses that discretion, it is not reversible error. Curry v. State, 328 So.2d 328 (Miss.1976); West v. State, 218 Miss. 397, 67 So.2d 366 (1953).

V.

Did the trial court commit error in granting State’s Instruction S-4, a manslaughter instruction?

Appellant objected to Instruction S^4 on the ground that the evidence did not support it. On appeal, he argues that an essential part of the instruction “in a cruel or unusual manner or by the use of a dangerous weapon” was not included and that it was fatally defective. In Robinson v. State, 223 Miss. 303, 78 So.2d 134 (Miss. 1955), the Court held that omission of the words “by the use of a dangerous weapon,” did not constitute reversible error. In that case, it was not controverted that the murder weapon, a 28-gauge shotgun, was a deadly weapon. In the present case, it is uncontroverted that the deceased was killed in a cruel and unusual manner. The same rationale that applied to the Robinson case applies here. A defendant cannot complain of a manslaughter verdict where the evidence would support a conviction of murder. King v. State, 251 Miss. 161,168 So.2d 637 (1964). The trial court did not commit error in granting the instruction.

VI.

Did the trial court err in refusing to grant appellant’s Instructions 1-D, 4-D, 6-D, 8-D, 9-D and 11-D?

The Instruction 1-D is lengthy, but it simply sets forth the principle of presumption of innocence, and the two-theory principle. Instructions 5-D and 13-D cover the two-theory principle and C-13 covers the presumption of innocence principle, and it was not error to refuse that instruction.

Instruction 4-D was not supported by any evidence, and it was properly refused.

Instruction 6-D was repetitive of principles covered in other instructions and was properly refused.

Instruction 8-D, likewise, was covered by other instructions, and Instruction 11-D was a peremptory instruction and both were properly refused by the court.

Instruction 9-D is the one-juror instruction. This Court has held that, in proper cases, it should be granted. Easter v. State, 191 Miss. 651, 4 So.2d 227 (1941); Cartee v. State, 162 Miss. 263, 139 So. 618 (1932). However, Instruction S-l, although it did not go into length on the principle stated in Instruction 9-D, did instruct the jury that twelve jurors must agree upon the verdict. With that instruction, and considering all instructions together, we are of the opinion that it was not error to refuse Instruction 9-D.

There being no reversible errors in the record, the case must be and is affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Ralph R. JACKSON v. BOARD OF EDUCATION OF OKTIBBEHA COUNTY, Mississippi.
    No. 49988.
    Supreme Court of Mississippi.
    Sept. 7, 1977.

      Threadgill & Smith, Gary L. Geeslin, Columbus, for appellant.
    William Ward, Starkville, for appellee.
    Before PATTERSON, ROBERTSON and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of Oktibbeha County, Mississippi, which was made pursuant to a finding that the defendant Board of Education violated the provisions of the Public School Fair Dismissal Act by failing to give the plaintiff timely notice of its decision not to renew his contract for the school year 1975-1976 as provided by Mississippi Code Annotated section 37-9-105 (1972). The decree ordered that the plaintiff, Ralph R. Jackson, be “reinstated as an employee of the Board of Education of Oktibbeha County, Mississippi, to the first available position for which he is qualified and licensed.” Jackson has appealed this order, contending that it does not go far enough in that it does not also provide for an award of back pay and attorney’s fees. The Board of Education has filed a cross-appeal contending that the chancellor’s finding that its action violated the notice provision of the Public School Fair Dismissal Act is erroneous.

Ralph R. Jackson was employed as a drug education specialist by the Oktibbeha County Board of Education under one-year contracts for the years 1973-1974 and 1974-1975. These contracts ran from July to July each year. It was Jackson’s job to go to the various elementary schools and high schools in Oktibbeha County and conduct drug education classes. As a result, his immediate supervisor was not a school principal but was John R. Ware, the superintendent of education of Oktibbeha County. The Board of Education decided that it would not renew the drug education program on July 7, 1975, and therefore no application was initiated by the Board to the State Department of Education for the funding of said program. The chancellor found that on August 5,1975, the plaintiff’s job was eliminated. On August 19,1975, by regular mail, the plaintiff received a letter dated August 18, 1975, giving him notice of the board’s action. A hearing was requested before the school board and was conducted on September 22, 1975. The board declined to reemploy Jackson and he appealed under the provisions of the Mississippi Public School Fair Dismissal Act to the Chancery Court of Oktibbeha County which found that the board had violated the notice provision of the Public School Fair Dismissal Act and which ordered the board to reinstate the plaintiff to the first available position for which he is qualified and licensed.

The chancellor’s final decree was dated September 27,1976, and did not provide for an award of back pay for the year of employment which the plaintiff was denied, nor did it provide for any award of attorney’s fees to the plaintiff.

This appeal presents two questions: (1) Whether the plaintiff was entitled to notice pursuant to Mississippi Code Annotated sections 37-9-103 through 37-9-107 (1972); and (2) If the plaintiff was entitled to notice pursuant to those sections, whether he was entitled to be awarded back pay for the year which he lost?

Appellant, Ralph R. Jackson, was the holder of a Class “A” teaching certificate issued by the Board of Education of the State of Mississippi. Mississippi Code Annotated section 37-9-103 (1972) reads as follows:

As used in sections 37-9-101 through 37-9-113 the word “employee” shall include any teacher, principal, superintendent elected by a board of trustees, and other professional personnel employed by any public school district of this state and required to have a valid certificate issued by the state department of education as a prerequisite of employment.

Jackson fell within this definition and was an employee within the meaning of the Act.

Mississippi Code Annotated section 37-9-105 (1972) reads, in part, as follows:

Any employee of a school district who has been employed by such district during the entirety of the preceding school year, shall be given notice within seven (7) days of the decision that he not be offered a contract for reemployment for the succeeding school term when:
(c) by April 1 the principal does not recommend to the . superintendent the reemployment of a teacher, or by May 1 the principal does recommend the reemployment of a teacher and the superintendent does not approve the recommendation for the teacher’s reemployment, or by May 1 the principal and superintendent both recommend the reemployment of a teacher and the board of trustees of the district declines the recommendation.

Mississippi Code Annotated section 37-9-107 (1972) reads, in part, as follows:

Except in the case of nonreemployment of the superintendent, notice shall be tendered by the superintendent to any employee within seven (7) days of the date when the recommendation to reemploy would have been made under the terms of sections 37-9-15 and 37-9-17 and amendments thereto.
The notice shall be mailed by certified mail, return receipt requested.

The central thrust of the argument of the board of education is that while Ralph R. Jackson may have been a teacher within the definition supplied by Mississippi Code Annotated section 37-9-103 (1972), Mississippi Code Annotated section 37-9-105 (1972), only requires that notice be given when the principal of the school at which the teacher is employed does not recommend to the superintendent the reemployment of a teacher by April 1 or by May 1 the principal does recommend the reemployment of a teacher and the superintendent does not approve the recommendation. In essence, the board of education argues that section 37-9-105 only covers those teachers who are employed at a particular school and would be recommended for reemployment by a particular principal. The same argument applies to Mississippi Code Annotated section 37-9-107 and the section to which it refers, section 37-9-17. The plaintiff was not employed at any particular school in Oktibbeha County but worked out of the office of the county board of education where his immediate supervisor was the superintendent of education. Thus, the board of education argues that the plaintiff was not to be recommended by the principal of a particular school and therefore he does not come within the ambit of the foregoing Code sections. The issue can be formulated as follows: Notwithstanding the broad reference to “any employee” in section 37-9-105, which requires notice, is that section limited only to certain employees, namely teachers who work at a particular school, or does the section cover all employees of the school district regardless of whether or not they are employed at a particular school?

It is manifest that one purpose of the Act is to give those teachers who are not to be reemployed for the ensuing year early notice of that fact so that they might seek employment elsewhere. Prior to the enactment of the Public School Fair Dismissal Act, there was no procedure in Mississippi detailing the method by which minimal procedural due process would be afforded to a public school teacher regarding notice that he or she would not be reemployed for the succeeding school year. The Act serves a just purpose and was enacted by the Legislature to protect those persons enumerated in section 37-9-103 from unfair and sometimes vindictive practices of their superiors. It is clear that the Legislature intended that all of the classes of persons enumerated under section 37-9-103 are entitled to notice by virtue of section 37-9-105, if they have been employed by the school board during the entirety of the preceding school year, and that any person falling within that category must be given notice that he will not be offered a contract of reemployment. The subsections under that statute establish a time table fixing the latest date a school board can wait to make a determination regarding the reemployment of a person covered and were not intended to restrict the broad language in the body of the statute that “Any employee of a school district who has been employed by such district during the entirety of the preceding school year, shall be given notice within seven (7) days of the decision that he not be offered a contract for reemployment for the succeeding school term . . . The latest date which runs through all of the sections of the Act that a decision must be made that an employee will not be offered a contract of reemployment for the succeeding term is May 1. We have therefore concluded that seven days after May 1, 1975, was the latest date that the appellee school board could have notified appellant that he would not be reemployed for the 1975-1976 school term. We are of the further opinion that the failure of the school board to abide by the mandatory dictates of the statute and to afford the appellant notice that he would not be reemployed resulted in an automatic renewal of his outstanding contract for the ensuing year, including compensation specified therein, although the statute does not specifically so provide. Unless that were true, the Public School Fair Dismissal Act would have no meaning and school officials could ignore it with impunity. For us to hold that Jackson was entitled to a renewal of his contract without the compensation called for therein would be meaningless.

The school board’s contention that Jackson was not wrongfully dismissed, but that the board simply decided not to continue the drug education program and therefore there was no position for Jackson to return to is untenable. In either event — whether the board decided not to rehire Jackson or simply terminated his position — the result was the same, he was not to be reemployed for the succeeding term. Under the Act, he was entitled to timely notice of that decision and he did not receive it.

We have carefully considered appellant’s contention that he is entitled to attorney’s fees and are of the opinion that under the facts presented the fees are unjustified. First, the Act does not make provision for attorney’s fees; and, secondly, the facts of this case created a legitimate difference of opinion as to the interpretation of the statutes involved.

The decree of the chancellor holding that complainant, Ralph R. Jackson, be reinstated as an employee of the Board of Education of Oktibbeha County is affirmed, but is modified to provide further that the appellant is entitled to the compensation that he would have received under his renewed contract for the school year 1975-1976, and this cause is remanded for the chancellor to conduct such proceedings as are necessary to determine the amount of compensation owing to the appellant by the Board of Education of Oktibbeha County, Mississippi, under that contract.

DECREE IS AFFIRMED AS MODIFIED AND REMANDED.

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


text:
    Lester GORDON, Jr. v. STATE of Mississippi.
    No. 50198.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Pleas M. Norris, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the First Judicial District of the Circuit Court of Hinds County, Mississippi, wherein the appellant, Lester Gordon, Jr. was convicted of armed robbery and sentenced to twenty-five years in the custody of the Mississippi State Department of Corrections.

The only error urged by the appellant is that the trial court erred in allowing the complaining witness, Ada Britton, while testifying on direct examination by the State, to make an in-court identification of the defendant. The record reveals that as Ada Britton attempted to identify the defendant, counsel for defendant objected and asked that the jury be removed from the courtroom, and thereafter made the following objection:

I’d like to enter an objection to any in-court identification of the defendant by the complainant because there has been on a prior occasion a police lineup which was held after the defendant was indicted for a crime of armed robbery in this cause, and that the defendant was not afforded an attorney at that lineup.

That motion was overruled by the court.

The problem on appeal is that there is no proof which supports the appellant’s motion, nor any stipulation or concession by the state that the factual assertions of the motion were true. Therefore, the question now before this Court is who had the burden of going forward with evidence? The appellant seems to contend that the state had the burden of negating the allegations of his motion, or to bring the victim’s identification within the independent source doctrine approved in United States v. Wade, 388 U. S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Poole v. State, 216 So.2d 425 (Miss. 1968). On the other hand, the state contends that the burden of going forward with evidence to support the factual allegations of the motion was upon the appellant.

The general rule is that a motion is at issue without any further pleading, but the allegations thereof do not amount to any proof of the facts stated therein. Shaw v. State, 188 Miss. 549, 195 So. 581 (1940). It devolves upon the movant to support his motion by proof. Reed v. State, 143 Miss. 686, 109 So. 715 (1926). It is also the rule that in the absence of proof in support of a motion, the presumption in favor of the correctness of the action of the trial court must prevail. Walters v. State, 127 Miss. 324, 90 So. 76 (1921). We see no valid reason to deviate from the general rules under the facts presented. The appellant could have, with no prejudice to himself, taken the stand in the absence of the jury, for the sole and limited purpose of proving the allegations of his motion. This he failed to do and there is no record in that regard for this Court to review. This Court cannot, nor can the court below, take judicial notice that a lineup did in fact take place. An appellate court only acts on the basis of the contents of the record as made in the trial court and may not act upon statements of facts in briefs or arguments of counsel which are not reflected by the record. Saucier v. State, 328 So.2d 355, 357 (Miss. 1976).

We have carefully reviewed the evidence of appellant’s guilt in this record and are of the opinion that the jury was amply justified beyond a reasonable doubt in returning a verdict of guilty.

For the above reason, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    Roy C. SMITH v. Clifford GRANBERRY and Oliver Gregory.
    No. 50276.
    Supreme Court of Mississippi.
    Sept. 7, 1977.

      Dulaney & Dulaney, J. W. Dulaney, Jr., Tunica, for appellant.
    Leonard McClellan, Oxford, for appellees.
    Before SMITH, BROOM and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

This ease involves a contested election.

Appellant, Roy C. Smith, and appellees, Clifford Granberrg and one Gregory, were candidates for the office of member of the Tunica County Board of Education for Supervisors District Number Three in the General Election held November 2, 1976. This was, of course, the same election in which candidates for a number of other offices were voted upon the most notable having been the office of President of the United States.

In the race in which Smith and Granber-ry were involved, the Tunica County Election Commissioners, over the objection of Smith, certified the results as follows:

NAME OP CANDIDATE PRECINCT 5— PRECINCT 6— WESTSIDE DUBBS TOTAL
Clifford Granberry m 172 299
Oliver Gregory 4 11 16
Roy C. Smith 176 119 295

Those figures gave Granberry a plurality of four votes.

On November 22, 1976, Smith filed in the Circuit Court of Tunica County a petition to contest the election insofar as it affected his race for member of the Tunica County Board of Education for Supervisors District Number Three.

The contest was based upon an alleged total or radical departure by managers of the election at the Westside box in Precinct 5, from statutory requirements said to be mandatory.

Through inadvertence, (there is no charge of fraud or intentional wrongdoing), ballots printed for the Watsonville Precinct were delivered to the Westside election holders along with the ballot box, and those printed for the Westside box were delivered to Watsonville. No Board of Education election was being conducted in the Supervisors District in which the Watsonville Precinct is situated and consequently the Watsonville ballots did not have printed upon them the names of Smith, Granberry and Gregory, the candidates seeking the office of member of the Board of Education from Supervisors District Number Three. It is unclear whether this mix-up in the delivery of ballots was that of the printer or of a deputy circuit court clerk. It is, however, not suggested that any candidate was involved.

The Westside Precinct polls opened at about 7:00 in the morning and, after ten persons had voted, it was discovered that the ballots used by them were those which had been printed for the Watsonville Precinct and did not carry the names of the candidates for election to the Tunica County Board of Education. Therefore, at that time, no votes had been cast in the Board of Education race.

The Westside managers of election suspended operations and were able to obtain the correct ballots from Watsonville which actually had been printed for use at West-side and which had been sent to Watsonville by mistake. Nine of the ten persons who had voted and used the Watsonville ballot on which the contest for the Board of Education, Supervisors District Number Three, did not appear, were located and these nine persons returned and voted, this time using the correct official Westside ballot. In effect, the Westside election managers, upon discovering the mix-up in the ballots, threw out the ten ballots already cast, on which the race for member of the Board of Education did not appear, and started over, using the correct official Westside ballots. At that time, as has been said, since the Board of Education election was not on the Wat-sonville ballots first used, no votes had been cast in that race.

At the request of appellant Smith the Circuit Court held a preliminary hearing in his contest of the election as to whether the election was invalid as a matter of law. At this hearing the circuit clerk testified as to the fact of the mistake which had been made in sending the official ballots for Watsonville Precinct to Westside Precinct and those for Westside Precinct to the Wat-sonville Precinct. He said that the ballots had been placed in the boxes for transmission to the various precincts by his deputy according to the way the designation of the precincts had been placed on the packages by the printer. There was testimony from the only one of the ten persons who had voted using a Watsonville ballot on which the Board of Education election did not appear who did not return and vote a proper ballot, that if he had voted in the Board of Education race he would have voted for appellant Smith. There was testimony from three of the first ten who had voted using the Watsonville ballot that afterward they had told others that the election for Board of Education did not appear on the ballot they had used. It is suggested but not shown that any person who had been so informed failed to vote although it does appear that there was a light vote and that many electors did not vote in the election.

The trial judge overruled Smith’s motion, rejecting the argument that the circumstances outlined above had been fatal to the election as a matter of law, and ordered that a jury be impanelled. Counsel for Smith then advised the court that the im-panelling of the jury would be useless as no more evidence would be offered on behalf of Smith in support of his contest. Thereupon the judge directed the jury peremptorily to find for Granberry. From the judgment entered pursuant to the verdict declaring Granberry to have received the greatest number of legal votes and to have been elected, this appeal has been prosecuted.

Mississippi Code Annotated section 23-5-187 (1972) provides the manner in which the election of county officers may be contested. This procedure seems to have been followed in the trial court and a peremptory instruction- given by the trial court appears to have been in order since appellant Smith declined to offer any evidence before the jury, unless it had been shown that there was such a total or radical departure from mandatory statutory requirements as to render the election invalid. It is the position of appellant that there was, indeed, such a total or radical departure by the managers of the election at Westside Precinct from, it is said, the mandatory provisions of section 23-5-143, which is as follows:

In case the official ballots prepared shall be lost or destroyed, the commissioners of election shall have like ballots furnished in place of those lost or destroyed, if time remain therefor. And if from any cause there, should be no official ballots or an insufficient number at a voting place, and not sufficient time in which to have them printed, the ballots may be written; but, if written by any one except the voter alone for himself, the names of all candidates shall be written thereon, without any mark or device by which one name may be distinguished from another, and such ballots shall be marked by the voter as provided for printed ballots. If the manager designated fail to have the ballots at the voting place at the proper time, or if he fail to distribute them, the managers, or those of them present at the election, shall provide ballots, and select some suitable person to distribute them, who shall take the oath required of the managers, and distribute the ballots according to law. [Mississippi Code Annotated, section 23-5-143 (1972)].

The official ballots prepared for the Westside Precinct must be deemed to have been “lost” within the meaning of section 23-5-143, Mississippi Code Annotated (1972), until their whereabouts were discovered and they were obtained by the managers at Westside. The legislative purpose in the enactment of the above statute was to provide against the failure of an election because official ballots had been lost or destroyed and contemplates improvisation in such cases in order to insure that the election will be held notwithstanding. In this case the lost official ballots were discovered and were the ballots, and the only ballots, actually used in the Board of Education election. Under the circumstances, it would be unreasonable to construe the statute as mandatorily requiring that additional identical ballots should have been printed or that ballots be written out in longhand. The action of the election managers at the Westside Precinct appears to have been practical, reasonable and justified and it has not been shown to have resulted in unfairness or prejudice to any candidate in the race for member of the Board of Education of Tunica County Supervisors District Number Three. There is no evidence that voters actually were kept away from the polls by reason of it. Only one of the ten persons who had voted before the mix-up was discovered, and thus had not voted in the race at all, failed to return and vote an official correct ballot. This one person testified that if he had voted in the race he would have voted for Smith and his vote should be added to the total received by Smith in the election. However, even so, Granberry received the greatest number of legal votes cast in the Board of Education election. There was nothing wrong with the ballots actually used and counted in that race in the Westside Election Precinct.

Appellant relies chiefly on Clark v. Rankin County Democratic Executive Committee, 322 So.2d 753 (Miss.1975) and Keller v. Toulme, 7 So. 508 (Miss.1890). There is little resemblance between the present case either to Clark or Keller. In Clark the election managers opened the boxes and began counting votes while the election was still in progress. In Keller the ballots themselves actually used in the election were printed in a manner which directly violated the terms of the controlling statute. In the present case, while there was some delay, only official Westside Precinct ballots were actually used.

A much greater delay would have resulted if, rather than using the official West-side ballots already printed, the managers of election had either had new ballots printed or had written out ballots in longhand.

In the race here under consideration, at most there was a delay before any ballots with this race upon them became available. In the course of this delay, ten persons voted at the Westside box but not, of course, in this race. Of these, nine returned after the correct ballots were available and cast ballots for the first time in this race. The only one of the ten early voters who did not return and vote in this race testified that if he had voted he would have voted for Smith. His vote, in fairness, must be counted for Smith. Thus, nine of the ten early voters, and all subsequent voters who voted in this race used correct official ballots. There is no charge of fraud and no prejudice to Smith’s rights has been demonstrated. The managers correctly chose to use the already printed official ballots when they had been obtained rather than to have more ballots printed or to write out ballots in longhand. No one was turned away during the delay nor was there anyone who offered to vote who was not permitted to vote. We do not have before us any question as to the validity of any other election held at the Westside Precinct that day. There is nothing upon which a finding can reasonably be based that the results certified by the Tunica County Election Commissioners in the Board of Education race do not reflect correctly the true will of the voters at the Westside Precinct, the single exception being that one vote should be added to the total received by Smith.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    No. 6.
    Supreme Court of Alabama.
    June 27, 1977.
   SENTELL, Clerk.

RULE 43, ALABAMA RULES OF JUDICIAL ADMINISTRATION TRANSFER OF FEES WHEN A CASE IS TRANSFERRED TO ANOTHER COURT

Mr. Charles Y. Cameron, Administrative Director of Courts, has submitted to me, as Clerk of the Supreme Court of Alabama, pursuant to Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, the following inquiry:

Rule 43 of the Alabama Rules of Judicial Administration provides for the transfer of cases to other jurisdictions. In such events, the clerk of the court in which the case was pending shall transfer any fees to the clerk of the court to which the case is transferred. As a practical matter, clerks disburse fees on a monthly basis. With the prepayment of fees in civil cases, what approach should a clerk take when transferring a case pursuant to Rule 43 when the fees have previously been disbursed? It would appear that it would be difficult for the clerk to attempt reimbursement from either the state or the county, so that, in the alternative, it would appear that the only workable approach would be to submit a cost bill indicating that the fees have been paid and disbursed.

It is my opinion that there is no alternative to the transfer of fees as provided in Rule 43, Alabama Rules of Judicial Administration; and in the event the clerk has made a distribution of fees prior to the transfer of the case, a procedure should be devised to reimburse the clerk of the court where the case was filed and to effectuate the transfer of the fees to the court to which the case is transferred.

Rule 43, supra, reads:

After January 16, 1977, the clerk of the court in which a case is filed shall collect and distribute all fees, including service fees and witness subpoena fees, as if service were made within the county, whether the service was made within the county or outside the county. All these fees shall be distributed by the clerk in the county in which the case is filed unless the case is transferred to another court. If the case is transferred to another court because of a change of venue or otherwise, the clerk of the court in which the case is pending shall transfer any fees which he has collected to the clerk of the court to which the case is transferred. Fees in a case which has been transferred shall be distributed by the clerk of the trial court which finally disposes of the case, as if the case had been originally filed in that court.

The effect of the second sentence of the rule is that there should not be a distribution by the court clerk of the county where the case is filed if the case is transferred to another court.

The second sentence of the rule requires the clerk of the court whore the case is pending to transfer any fees which he has collected to the clerk of the court to which the case is transferred.

The third sentence of the rule requires the clerk of the trial court which finally disposes of the case to distribute the fees as if the ease had been originally filed in that court.

Rule 43 should be read in connection with Rule 4(H), Alabama Rules of Judicial Administration, which provides as follows:

(H) The clerk and register shall, periodically, but in no event less than once a month, not later than the tenth day of each month, remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule; provided, that on September 25 of each year, the clerk or register shall remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule.

Thus, Rule 43, supra, does not contemplate a delay in distributing the fees until it has been determined that there will be no transfer. Therefore, it is necessary to provide a way to transfer and distribute the fees as provided by Rule 43 when the fees have been distributed prior to the transfer of a case.