author: STOULIG, Judge.

text:
    Mark D. WEIL v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 7086.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, William W. Miles, New Orleans, for defendant-appellee.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   STOULIG, Judge.

This is an appeal from a judgment maintaining an exception of no cause of action and dismissing plaintiff's suit. The aver-ments of the petition set forth that the defendant, State Farm Fire and Casualty Company, had issued a policy of insurance to the plaintiff, Mark D. Weil, affording coverage against physical damage to plaintiff’s 40-foot houseboat, its engines, ancillary equipment, and gear. It is further alleged that the vessel was damaged while cruising in the turbulent waters of Lake Pontchartrain and that plaintiff was paid $1,966.70 for damage to the cabin or superstructure of the boat, but that defendant has arbitrarily refused to pay for the damage to the engine, related equipment and gear occasioned by the same incident and amounting to $2,142.20. Penalties and attorney’s fees are also sought.

Defendant filed a peremptory exception of “estoppel” and alternatively an exception of no right of action. In connection with these pleadings it attached a “sworn statement and proof of loss” signed by the plaintiff when he was paid for the property damage to the cabin of his boat. The trial judge maintained the exception of no cause of action and dismissed plaintiff’s suit.

The plea of estoppel may not be raised by exception. It is enumerated in C. C.P. art. 1005 as one of the affirmative defenses that must be specially pleaded. It is not one of the objections listed in C.C.P. art. 927 that may be raised by peremptory exceptions. One of the comments the reed-actors included under this article repudiated the prior practice of sometimes permitting estoppel to be raised by way of exception. Comment 5(c) provides:

“Though cases can be found in which estoppel has been treated as an exception, Coco v. Nolin, 56 So.2d 204 (La. App.1951), in the vast majority of instances when the defendant has pleaded estoppel, it is set forth as an affirmative defense. Further, estoppel is as available to a plaintiff as it is to a defendant, and hence cannot be treated exclusively as an exception. For these reasons this objection is not included in the enumeration of the above article, but it is required that estoppel be pleaded by the plaintiff in the petition, and by the defendant as an affirmative defense. See Art. 1005, infra.”

Nor can defendant’s alternative exception of no right of action prevail. This exception, designed to terminate at its inception a suit brought by plaintiff having no legal interest to assert it, may not be used to urge what is properly a defense on the merits. It deals with the right of the plaintiff to bring an action granted by law to a general class and is concerned with the plaintiff’s standing or lack of standing as a member of this class. It may also be used to raise plaintiff’s want of interest because of a transfer or assignment of his right to a third party prior to filing suit.

It is the latter situation defendant claims precludes plaintiff’s suit because it asserts plaintiff subrogated his rights to the defendant by executing the release, a copy of which it attached to the exceptions. We cannot agree with plaintiff’s argument that the document is not admissible under C.C.P. art. 931. The only exception for which evidence may not be introduced is that of no cause of action and while the judgment labels the one we now consider as such, clearly it is a misnomer since the only exceptions urged by the defendant were of estoppel and no right of action.

The pleadings and the attached release reflect that what is at issue is whether plaintiff did or did not sign the release as a full compromise of his entire claim against the defendant for boat damage. The petition acknowledges a partial payment. The release is a signed document reflecting plaintiff received the money he alleged was paid to him in his own petition. From the pleadings we are unable to discern the intent of the parties in executing this document and we cannot determine the validity of plaintiff’s claim for additional damages, or say he has none on the record as it is now constituted. A plea of compromise is also listed in C.C.P. art. 1005 and must be asserted as an affirmative defense.

Having concluded the record does not sustain the validity of the exceptions filed by defendant, the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views herein expressed. Costs of this appeal are to await the final disposition of this matter.

Judgment annulled; remanded.

      . The sworn statement and proof of loss also contained a full release in satisfaction in compromise settlement of the claim, together with an assignment of all the right, title and interest in and to the property for which the claim is made under the policy.

      . Wischer v. Madison Realty Company, 231 La. 704, 92 So.2d 589 (1956).

      . Maryland Casualty Co. v. Gulf Refining Co., 95 So.2d 734 (La.App.1st Cir. 1957).

      . Ritsch Alluvial Land Co. v. Adema, 211 La. 675, 30 So.2d 753 (1947); Younger v. American Radiator and Standard San. Corp., 193 So.2d 798 (La.App.3d Cir. 1967).

      . Bielkiewicz v. Rudisill, 201 So.2d 136 (La. App.3d Cir. 1967).


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Willard BURCH et al. v. ST. LOUIS FIRE AND MARINE INSURANCE COMPANY et al.
    No. 7108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Mack & O’Neal, Robert J. Mack, Hammond, for plaintiffs-appellants.
    Pitard, Pitard, Porobil, Robert F. Pitard, James G. Maguire, New Orleans, for defendants-appellees.
    Before STOULIG, SCHOTT and MO-RIAL, JJ.
   MORIAL, Judge.

This case is on appeal from a judgment expunging from the record an order of dismissal.

This court affirmed in part, amended in part, and reversed in part the decision of the district court and rendered judgment against all defedants on May 4, 1970. See 235 So.2d 218 (La.App. 4 Cir. 1970). On October 2, 1973 counsel for defendants transmitted to plaintiffs’ attorney a check of NOLA Cab Company (NOLA) in the amount of $5,725.21 in payment of that judgment together with a motion and order to dismiss. Plaintiffs’ counsel signed the motion to dismiss and returned it to plaintiffs’ attorney who filed it in the district court on December 14, 1973 at which time the district judge signed the order dismissing plaintiffs’ suit with prejudice. Plaintiffs’ attorney deposited NOLA’s check in his account with The Citizens Na- ♦ tional Bank in Hammond, Louisiana. Upon 'presentment for payment to the drawee bank the check was dishonored because NOLA’s account had been closed. Plaintiffs then filed a motion and order to have the previously granted order of dismissal expunged and set aside. The district court rendered judgment on February 1, 1974 expunging and setting aside the order of dismissal only as to defendant NOLA. Plaintiffs appeal contending that the order of dismissal should have been expunged and set aside as to the other soli-darily liable judgment debtors.

When the appeal in this case was perfected, the district court was divested of jurisdiction. LSA-C.C.P. Art. 2088. No application for rehearing nor application for writs to the Supreme Court having been applied for from our judgment of May 4, 1970, that judgment became final. LSA-C.C.P. Art. 2167. Thereafter the trial court’s function was limited to execution of our judgment. See LSA-C.C.P. Articles 2251-2254. The post appellate final judgment resort to the trial court to obtain an order of dismissal and the order of judgment of dismissal by the trial court were without foundation.

An order of dismissal is not a step in aid of execution of a judgment. See LSA-C.C.P. Articles 1671-1673, 1844, 2251 et seq. There is no basis for a trial court to render an order of dismissal in a case where an appellate judgment has become final. The trial judge acted in error when he signed the post appellate final judgment order of dismissal and subsequently rendered judgment expunging and setting aside that order.

For the foregoing reasons the order of the district court of December 14, 1973 and the judgment February 1, 1974 are hereby annulled, vacated and set aside.

Annulled, vacated and set aside.


author: BOUTALL, Judge.

text:
    Sidney THOMPSON, Jr. v. RESERVE INSURANCE COMPANY et al.
    No. 7122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Wayne C. Giordano, Belle Chasse, for Sidney Thompson, Jr., plaintiff-appellant.
    Christopher E. Lawler, Porteous, Tole-dano, Hainkel & Johnson, New Orleans, for Reserve Ins. Co., and others, defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Plaintiff, Sidney Thompson, Jr., seeks damages for personal injuries sustained in an automobile accident. The trial court denied plaintiff recovery on the grounds that he was contributorily negligent. Plaintiff has appealed and we reverse.

The facts are undisputed. Harry Cook was driving a taxi cab for Pel’s Cab when he entered Maplewood Drive to drop off a fare. Maplewood Drive is in a residential neighborhood in Harvey, Louisiana. Mr. Thompson lives on Maplewood Drive and on the day of the accident he got into his car intending to go to the grocery. Mr. Cook pulled into his fare’s driveway, dropped her off and backed out of the driveway. At approximately the center of the street the Cook and Thompson vehicles collided.

Mr. Cook testified that he looked to his rear before backing up, then backed out of the driveway and across half the street without ever looking again or stopping. It is clearly negligence to back into a trafficked street without first ascertaining if the street is clear. LSA-R.S. 32:124; Sykes v. Davis, 289 So.2d 199 (La.App. 1st Cir. 1973).

Mr. Thompson testified that he was headed down Maplewood Drive looking at the road ahead of him. He did not see the taxi backing out of the driveway until an instant before the collision. He testified his vision was not impeded, although there was a pick-up truck parked 2 car lengths from the driveway, and his only explanation for not seeing the taxi was that he was looking straight ahead.

The trial court found Cook guilty of negligence and Thompson guilty of contributory negligence. He based his finding of contributory negligence on the grounds that Thompson did not see the taxi backing into his path, he could have seen it if he were more observant and Thompson was familiar with the street since he lived on it. We do not agree with the reasoning of the trial court. In an instance such as this it is only negligence if the driver with the right of way did not see the other car when he should have and at that time could have avoided the collision. Driscoll v. Allstate Ins. Co., 223 So.2d 689 (La.App. 4th Cir. 1969).

The burden of proving contributory negligence rests upon defendants in this case. We hold that the circumstances of this case, as evidenced by the record, do not support a finding of contributory negligence. Thompson was not under a duty to see the taxi until it first began to roll into the street. Any movement of the taxi in the driveway itself imposed little or no duty on Thompson since he could reasonably expect the taxi to obey the law and yield the right of way before backing into the street. Cole v. Maryland Casualty Co., 205 So.2d 863 (La.App. 3rd Cir. 1968). Defendants elicited neither evidence as to where the Thompson vehicle was when the taxi entered the street, nor evidence as to the speed of either vehicle. Considering the lack of evidence on these vital points we find that defendants have failed to show by a preponderance of the evidence that the relative positions and motions of the automobiles were such that Thompson could have avoided the accident. The evidence simply does not support a finding of negligence against Thompson.

The trial court placed too great a burden or duty upon Thompson. We cannot agree with the trial court that a driver must observe everything that is taking place in the driveways of a residential neighborhood. Neither do we agree that Thompson is somehow under a greater duty towards others because he is familiar with the street. We simply find that defendants have failed to carry their burden of proof.

Having found plaintiff free of contributory negligence we reach the issue of damages. The record discloses that certain stipulations were entered into before trial on the issue of damages; these are:

1) The market value of plaintiff’s car on the day of the accident was $300.-00 and the repair estimate was $606.-00.
2) Emergency room treatment, including hospital and physician fees, was $56.-00.
3) Drug bills totaling $11.12.
4) Wrecker bills totaling $30.00.

Granting plaintiff the market value of his car on the day of the accident ($300.-00) -these items of damage total $397.12.

Plaintiff received as injuries a lacerated nose, which was incurred by striking his head on the steering wheel. He also incurred a muscle strain of the cervical region, ecchymosis over the right del-toid muscle and post traumatic headaches. Plaintiff’s physician treated these injuries conservatively and the injuries resolved themselves after a short period. The physician’s charges totaled $104.40.

Viewing the relatively modest injuries that plaintiff received we find that an award of $1,500.00 is just compensation for his pain and suffering. This award totaled with the $397.12 in special damages and the $104.40 in doctor bills results in plaintiff’s total recovery of $2,001.52. Additionally we set expert’s fee of $100.00 for Dr. Serio, taxable as costs.

For the foregoing reasons the judgment of the trial court is reversed. It is now adjudged, ordered and decreed that there be judgment against defendants, Harry Cook, Pel’s Cab and Reserve Insurance Company, in solido, and in favor of plaintiff, Sidney Thompson, Jr., in the amount of $2,001.52 with legal interest from date of judicial demand. Expert fees of $100.-00 are fixed, taxable as costs. Defendants are to pay all costs of these proceedings.

Reversed and rendered.


author: BEER, Judge. LEMMON, Judge

text:
    Clarence W. BRAZELL v. Eric L. GROH et al.
    No. 6969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      George J. Kambur, New Orleans, for plaintif f-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James R. Murrell, III, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL, and BEER, JJ.
   BEER, Judge.

This litigation results from an intersec-tional collision on April 1, 1971 at about 11:00 a. m. between plaintiff-appellant and third party driver, Hugh Mountain, who is not before the court due to the inability of both parties to serve him. Plaintif f-appellant, Clarence Brazell, was proceeding toward Canal Street on Royal Street when he was broadsided by Hugh Mountain’s vehicle (allegedly owned by Eric L. Groh) at the controlled intersection of Royal and Ursuline Streets. Mountain apparently failed to observe the stop sign controlling traffic on Ursuline Street at this intersection. Brazell contends that South Central Bell Telephone Company’s (hereafter, Telephone Company) parked trucks prevented Mountain from seeing the stop sign located on Ursuline Street and thus was the cause of the collision. From a judgment in favor of defendant-appellee dismissing Brazell’s claim, he appeals.

Brazell testified he was proceeding down Royal Street at 15 to 20 miles per hour. Nearing the intersection in question he noticed defendant’s parked vehicles. He alleges that two of the Telephone Company’s vehicles were located partially on the sidewalk in a no parking area on the left side of Royal Street. A third vehicle belonging to the Telephone Company was allegedly parked approximately one foot from the stop sign facing Ursuline Street, also in a no parking zone. Brazell does not remember seeing Mountain’s vehicle before impact. A hearsay objection was properly sustained as to what Mountain told him about the cause of the accident.

John Maher, a co-employee of plaintiff-appellant at Checker Cab Company was not listed on the pretrial order but was allowed to testify at the trial. Summoned by Bra-zell right after the collision because he investigated accidents for the cab company, he allegedly arrived at the scene after Bra-zell and Mountain had moved their cars from the intersection. He testified that two of the Telephone Company’s trucks, one on Royal Street and the other on Ursuline Street, were still in place when he arrived. His description of their respective locations is substantially the same as that of Brazell. At the scene Maher copied the license numbers and other identifying features of the Telephone Company’s trucks and states that he contacted the drivers and asked that they remain at the scene, but they left before the arrival of the police. Pascal Drago and Joseph Mat-tio, Jr., the apparent drivers of two of the Telephone Company’s vehicles, testified at the trial. Neither had any recollection of parking their vehicles at the intersection in question and deny any knowledge of the accident and any discussion whatsoever with Brazell or Maher.

The police report (if any there was) was not introduced into evidence.

Maher also testified that the day after the accident he had put the Telephone Company on notice of a claim for damages by Checker Cab Company but the Telephone Company denies the claim, or knowledge of such claim, and no copy of an alleged demand letter could be produced by Maher even though the trial court granted time to search for same.

The record contains no written reasons for judgment but we conclude that the trial court, having correctly excluded the hearsay testimony sought to be admitted, determined that plaintiff-appellant had not carried his burden of proof with respect to the Telephone Company’s liability. The court heard the testimony of Brazell and Maher on one hand and Drago and Mattio on the other and was in the best position to make a credibility determination with respect to the alleged location and effect of the Telephone Company vehicles. Finding no manifest error in the court’s conclusion, we affirm, at appellant’s cost.

Affirmed

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurring).

I hesitantly concur in the result on the basis that the trial court may have rejected the testimony of plaintiff and his investigator that the Telephone Company’s trucks were illegally parked at the intersection, since some factual implications in the record would support this rejection. Since I believe the illegal parking (if proved) would have constituted a legal cause of the accident, I would otherwise hold the Telephone Company liable.

Cause-in-fact is determined by application of the “but for” test. But for the telephone company’s illegal parking which (as described) obstructed Mountain’s view of the stop sign and of the traffic approaching from his right, the stop sign would have been in plain view. Since the vast majority of motorists stop for such signs or at least exercise additional caution at the controlled intersection, it is more probable than not that the accident would not have occurred except for the Telephone Company’s illegal parking.

Thus, on the legal issue of the duty-risk determination of tort liability, I would hold the Telephone Company liable. But since I cannot say the trial judge erred manifestly if he rejected the testimony necessary to establish facts upon which to base the duty-risk determination, I concur in the affirmation.

      . Arguably, if the stop sign was illegally obstructed, Mountain still should have considered this an uncontrolled intersection and should have refrained from entering until the crossing could be made safely. This argument, however, would have principal applicability if Mountain were seeking damages. If illegal parking had been proved, I would have concluded that the Telephone Company breached its duty to both Mountain and plaintiff not to obstruct • the sign and the intersection and that the Telephone Company’s illegal parking harmed plaintiff by preventing Mountain from determining that he should accord plaintiff the right of way, thus causing the accident.


author: PATTERSON, Justice:

text:
    Hoyle L. MILLER, Defendant-Appellant, v. Judy L. MILLER, Complainant-Appellee.
    No. 48402.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Roy Pitts, Walter Rogers, Meridian, for defendant-appellant.
    Daniel P. Self, Jr., Robert W. Bailey, Meridian, for complainant-appellee.
    Before RODGERS, PATTERSON and SUGG, JJ.
   PATTERSON, Justice:

This is an appeal from the Chancery Court of Lauderdale County wherein Judy L. Miller was granted a divorce and other awards against her husband, Hoyle L. Miller. He did not demur, answer or otherwise contest the proceeding at the time of trial, but subsequent to the entry of the decree filed a motion to dismiss for lack of jurisdiction. This motion was overruled and is now the basis for this appeal.

The parties had previously resided in Lee County and there remains on the court docket in that county a suit for separate maintenance filed by the appellee. The testimony reveals the suit was abandoned on the reconciliation of the parties and their resumption of cohabitation. However, it has never been formally dismissed.

Subsequently, the parties again separated and the appellant, a traveling man, was absent from this state and his whereabouts unknown a great portion of the time from the second separation until the filing of the present suit. Meanwhile, the appellee had moved from Lee to Lauderdale County where she resided more than eight months prior to filing this action.

Process was obtained upon the appellant in this proceeding by publication in the manner and time prescribed by law. The directive for publication of process was the appellee’s affidavit which contains, in addition to the normal requisites for divorce, the following:

Your complainant further states that the defendant, Hoyle L. Miller, is a nonresident of the state of Mississippi and would show that after diligent search and inquiry, the defendant is not to be found in the state of Mississippi, and his whereabouts, place of abode and post office address are unknown to this complainant after having made diligent search and inquiry to ascertain the same.

The trial court indulged a full-blown hearing on the motion to dismiss for lack of jurisdiction. The evidence conflicted sharply as to the appellant’s place of residence, but there was no material dispute that he was absent from the state and constantly traveling among other states with no permanent address during the interval of the separation and the filing of this proceeding. The chancellor found from this testimony that the defendant was probably a resident of this state, but was absent so that process could not be served upon him. He therefore concluded that the complainant had the right to file for divorce in the county in which she resided and to proceed by publication of process. We are of the opinion the chancellor was correct in both his finding of fact and conclusions of law.

Mississippi Code Annotated section 93-5-11 (1972) provides:

The bill must be filed in the county in which the complainant resides, if the defendant be a non-resident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a decree against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the bill shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the complainant be still a resident of such county when the suit is instituted.

In Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752, 81 So.2d 695 (1955), and Price v. Price, 202 Miss. 268, 32 So.2d 124 (1947), the statute prescribing where the suit must be instituted has been construed to be jurisdictional and not venue that may be waived. Moreover, the authority or jurisdiction to grant a divorce depends solely upon the statute since it is not derived from the common law. Price, supra. This brings into focus the rule that where a statute creates a right of action which did not exist at common law and also prescribes the condition upon which the right may be asserted, the conditions become an integral part of the right granted, the observance of which is essential to the assertion of the right. Price, supra.

The appellee’s right to file this suit and the authority of the Chancery Court of Lauderdale County to decide it are totally dependent upon Mississippi Code Annotated section 93-5-11 (1972). The first portion dictates that the bill must be filed in the county in which the complainant resides (Lauderdale County) if the defendant be a nonresident of the state (inapplicable —appellant was a resident of this state) or be absent, so that process cannot be served (applicable — appellant was absent from the state and personal process could not be served upon him). The legislative intent, in our opinion, was to make provision for suit against a resident of this state, but who was physically absent so the personal service of process could not be had. It provided the same manner of service of process on a nonresident or absent party defendant so as to authorize a decree against him.

It being established that the appellant was a resident of this state, but absent so that process could not be served, Section 93-5-11, supra, became viable, permitting the appellee to file suit in Lauder-dale County where she resided. It also authorized use of “the manner of making such parties defendant . . . as in other chancery cases,” thereby invoking Mississippi Code Annotated section 13-3-19 (1972). It follows:

Summons by publication for nonresident or absent defendant.
If the defendant in any proceeding in a chancery court be shown by sworn bill or petition, or by a filed affidavit, to be a nonresident of this state, or not to be found therein on diligent inquiry and the post office of such defendant be stated in the bill, petition or affidavit, or if it be stated in such sworn bill or petition that the post office of the defendant is not known to the complainant or petitioner after diligent inquiry . . . the clerk, upon filing of the bill shall promptly prepare and publish a summons to the defendant ....

In our opinion these statutes must be read in pari materia and when this is done, the legislative intention of providing for suit against a resident, but absent, defendant is completed. We are of the opinion that the lower court properly overruled the motion to dismiss for lack of jurisdiction unless the pending suit in Lee County obstructed its jurisdiction.

There remains upon the docket of Lee County a suit for separate maintenance filed by the present appellee which has never been formally dismissed. However, it is undisputed that during its pen-dency the parties were reconciled and resumed cohabitation as man and wife. In our opinion this was the equivalent of a formal dismissal of the suit and it afforded no barrier to the jurisdiction of the Chancery Court of Lauderdale County. In Weathersby v. Weathersby, 39 Miss. 652 (Miss.1861), this Court held that a gift to the wife in consideration of, and as a provision for, separation was extinguished by the restoration of the conjugal relation of the parties. By analogy we think the jurisdiction of the Chancery Court of Lee County was invoked by filing the bill after the separation of the parties and when that separation ceased by restoration of the conjugal relation, the jurisdiction terminated.

The appellee has moved for an attorney fee for her representation on this appeal. The motion is sustained and an attorney fee of $250 is hereby awarded.

Affirmed.

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


author: ROBERTSON, Justice:

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Mary ROBERTS, Guardian of Estate of Drexell Ray Roberts, a minor.
    No. 48386.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Heidelberg, Woodliff & Franks, W. Swan Yerger, Robert T. Gordon, Jr., Jackson, for appellant.
    Liston & Upshaw, Winona, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

The principal question raised on the appeal of this case is whether the $10,000 coverage afforded by the uninsured motorist endorsement to three separate policies issued by the same insurer, Southern Farm Bureau Casualty Insurance Company, to the same insured, Henry Roberts, the father of Drexell Ray Roberts, minor, can be aggregated or stacked to cover damages for bodily injuries suffered as a proximate result of the negligence of an uninsured motorist.

The Circuit .Court of Montgomery County sustained a motion by the Plaintiff, Mary Roberts, mother and guardian of Drexell Ray Roberts, to strike the affirmative defense included in the insurer’s answer, that its liability, if any, was limited to $10,000, the coverage afforded by only one uninsured motorist endorsement, even though a separate endorsement was included in each of three separate insurance policies.

About 7:15 p. m. on March 9, 1973, 17-year-old Drexell Ray Roberts was riding as a passenger on the front seat of a panel truck driven by his cousin, 16-year-old Michael Roberts. As they proceeded south on State highway 407 near Winona, Mississippi, they overtook Robert White, who was also driving south on highway 407 in his 1963 Chevrolet. As Michael Roberts started to pass, White attempted to turn left into Milligan Springs Road. White saw Roberts’ panel truck too late to get back in his southbound lane and White’s car hit the right front of Roberts’ truck, causing it to go off of the east side of highway 407 and wreck. Passenger Drexell Roberts was badly injured.

Appellee Mary Roberts settled the claim of her minor son, Drexell Roberts, against Michael Roberts, the driver of the panel truck in which Drexell was riding, with Michael Roberts’ insurance carrier for the sum of $10,500, and executed a covenant not to sue.

Robert White was an uninsured motorist, and Mary Roberts, mother of Drexell, brought suit against Southern Farm Bureau Casualty Insurance Company, who had issued three separate policies, each on a different automobile, to Henry Roberts, father of Drexell Roberts. Suit was brought for $30,000, inasmuch as an uninsured motorist endorsement was included in each policy. The jury returned a verdict for $30,000.

Although there are 15 assignments of error, most of them are encompassed in these two issues:

1. Whether the uninsured motorist clause in three separate and distinct contracts of insurance can be aggregated, and

2. If such endorsements can be aggregated, is the insurer entitled to a credit of $10,500, the amount recovered in a settlement with the other tort feasor, Michael Roberts?

Mississippi Code Annotated section 83-11-101 (Supp.1975), provides:

“No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance; . . . .” (Emphasis added).

It was stipulated at the trial that three separate policies of insurance on three separate motor vehicles had been issued by Southern Farm to Henry Roberts, father of Drexell Roberts; that the three policies were in effect at the time of the accident; and that each of the three contracts of insurance contained an uninsured motorist endorsement, providing:

“4. Limits of Liability, (a) The limits of liability for bodily injury under this endorsement shall not exceed the minimum limits required by the Uninsured Motorist statute of the state in which this endorsement is issued.” (Emphasis added).

$10,000 was the minimum limit set by statute for each uninsured motorist endorsement. [Mississippi Code Annotated Section 63-15-43(2)(b) (Supp.1975)].

It is clear to us under the specific language of each endorsement to each separate policy and under the specific requirement of the statute, as to what' each “automobile liability insurance policy or contract" shall contain, that the appellee can aggregate the $10,000 coverage under each endorsement until her ward and son, Drex-ell, has recovered “all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle.”

As mandatorily required by statute, each policy of insurance contained the uninsured motorist endorsement and each policy was complete within itself.

This same question was before the Supreme Court of Minnesota in Van Tassel v. Horace Mann Mutual Insurance Company, 296 Minn. 181, 207 N.W.2d 348 (1973). That Court answered the contention of the insurer in this way:

“It seems to us that, in spite of the attempt by the insurer to limit its liability to one policy or to the amount recoverable under one policy, the fact that the legislature required an uninsured-motorist provision in all policies, added to the fact that a premium has been collected on each of the policies involved, should result in the policyholder’s receiving what he paid for on each policy, up to the full amount of his damages. It is true that such holding results in permissible recovery exceeding what he would have received if the uninsured motorist had been insured for the minimum amount required under our Safety Responsibility Act. But if the question must be resolved on the basis of who gets a windfall, it seems more just that the insured who has paid a premium should get all he paid for rather than that the insurer should escape liability for that for which it collected a premium.” 207 N.W.2d at 351-52.

This is sound reasoning and is applicable to the case before us.

Talbot v. State Farm Mutual Automobile Insurance Company, 291 So.2d 699 (Miss.1974), is not in conflict. In Talbot there was only one insurance policy with one uninsured motorist endorsement covering a fleet of four automobiles. The statute (§ 83-11-101), requires an uninsured motorist endorsement to each policy.

In the case at bar, there were three separate policies and, as required by statute an uninsured motorist endorsement in each policy. A separate premium was paid for each policy, and each policy with its uninsured motorist endorsement was complete within itself. The fact that all three policies were issued by the same insurance company to the same insured makes no difference. The insurer was paid a separate premium for each policy, the same as if there were three separate policies issued by three separate insurance companies.

Appellant contends that it should be given credit for the $10,500 paid by the liability insurer of Michael Roberts under this language of its policy:

“(c) Any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is an Insured under this coverage shall be reduced by:
“(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization who may be liable together with such owner or operator for such bodily injury including all sums paid under the Bodily Injury Liability Coverage of the policy, . . . .”

This same contention was made in Harthcock v. State Farm Mutual Automobile Insurance Company, 248 So.2d 456 (Miss.1971). We answered:

“There is nothing in our statute to suggest that the existence of Roark’s liability insurance limits or extinguishes the coverage of the uninsured coverage provided by the State Farm and Universal policies. An injured person may recover damages only once, and one joint tort-feasor is released pro tanto upon payment by another joint tort-feasor of less than full damages. If plaintiff had been paid the full amount of her damages by Roark’s insurer, she could not recover further damages from anyone. But the Roark settlement does not extinguish the coverage of the uninsured motorists insurance because plaintiff sustained uncollected damages of $10,000, after crediting the amount received from‘‘Roark.” 248 So.2d at 459.

The same reasoning holds true in the case at bar. The jury, apprized of the fact that Drexell Roberts had already recovered $10,500 damages, found that he was entitled to $30,000 more in order to make him whole.

We have carefully considered the other assignments of error and the appellant’s arguments thereasto. We feel that under the particular circumstances of this case that the trial court was correct in its rulings. All of the other assignments of error were merely incidental to the decision of the main question: Whether the coverage of the uninsured motorist endorsement included in three separate policies of insurance could be aggregated. Having answered that question in the affirmative, the other assignments of error become unimportant and fall by the wayside.

The judgment of the trial court is affirmed.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


author: SUGG, Justice:

text:
    Micky Carl NELSON, a minor, by his mother and next friend v. Lavell TULLOS and James L. Spencer.
    No. 48800.
    Supreme Court of Mississippi.
    Dec. 8, 1975.

      Joe M. Ragland, Jackson, for appellant.
    W. E. Gore, Jr., Robert G. Nichols, Jr., G. Garland Lyell, III, Jackson, for appel-lees.
    Before RODGERS, PATTERSON and SUGG, JJ.
   SUGG, Justice:

This is an appeal from an order of the County Court of the First Judicial District of Hinds County denying- a petition for writ of habeas corpus filed on behalf of Micky Carl Nelson, a minor, by Margie Nelson, his mother. The issue is whether the imprisonment of the minor for failure to satisfy his traffic fines denied him equal protection of the laws guaranteed by the Fourteenth Amendment to the U.S. Constitution. Secondary questions involve the legality of imprisoning a minor with adult offenders and the right to court-appointed counsel where there is a possibility that an indigent’s conviction may result in imprisonment.

On February 15, 1975, Micky Carl Nelson, a 17-year-old child, was ticketed by officers of the Jackson Police Department for leaving the scene of an accident, failure to keep his vehicle under control and driving without a license. All of these of- • fenses were punishable under an alternative sentencing ordinance by a fine, jail sentence or both. When petitioner failed to appear at a court hearing scheduled for February 21, 1975, a bench warrant issued for his arrest. Petitioner was arrested on February 22, 1975, and taken before a Jackson traffic court. The police justice knew that petitioner was an indigent minor and considered appointing counsel for him, but then decided to impose only a fine thus obviating the need for counsel. Petitioner pleaded guilty and was fined $250. While questioning petitioner about his ability to pay the fine, the court was informed of petitioner’s past traffic offenses, his tardiness in paying the fines from those offenses, and the existence of three delinquent fines from a previous conviction.

A review of petitioner’s driving record showed that between November 1971 and March 1974 he had been convicted of and fined for eight traffic offenses. The court’s investigation revealed that although these fines were ultimately paid, petitioner had been arrested on two separate occasions for failure to satisfy the fines after a reasonable period of time. Further investigation disclosed that on August 3, 1974, petitioner was fined $225 by a Jackson traffic court for three offenses committed during June and July of 1974. At the time of the February 22, 1975, court appearance these fines remained unpaid.

After reviewing these facts, it was the court’s opinion that petitioner’s failure to pay the fines was not due to his indigency but to indifference and disregard for law enforcement. The court told the petitioner that he would not be given an opportunity to pay any of the fines in installments because that opportunity had been afforded him in the past. Petitioner was ordered incarcerated in the Jackson city jail to work off the fines totalling $475 at the rate of $3 per day.

On April 2, 1975, petitioner filed a petition for writ of habeas corpus in the County Court of the First Judicial District of Hinds County. The petitioner set forth the fact of his imprisonment, alleged that he was confined because of his inability to pay his traffic fines, and contended that such confinement violated the Eighth and Fourteenth Amendments to the U.S. Constitution. After a hearing, the court denied the petition on the ground petitioner’s past conduct indicated that he would be a “bad risk” with regard to the payment of his traffic fines on an installment basis.

Once again this Court must address itself to the misconceived function of the writ of habeas corpus in this state. Unlike the boundless federal habeas corpus, the writ of habeas corpus in Mississippi is narrow in its scope and applicability. See Keller v. Romero, 303 So.2d 481, 483-84 (Miss.1974). In this state a writ of habeas corpus has the principal function of testing the legality of a petitioner’s detention prior to his conviction. Habeas corpus may be utilized as a post-conviction remedy to release a petitioner from imprisonment only where the petitioner was convicted under an invalid statute or by a court lacking jurisdiction. Keller v. Romero, supra at 482; State v. Ridinger, 279 So.2d 618, 619 (Miss. 1973); Young v. State, 264 So.2d 821, 823 (Miss.1972); Ledbetter v. Bishop, 210 So. 2d 880, 882 (Miss.1968); Allred v. State, 187 So.2d 28, 30-31 (Miss.1966); Mississippi Code Annotated section 11-43-3 (1972). See also “1965-66 Mississippi Supreme Court Term — Some Significant Cases,” 38 Miss.L.J. 1, 11 (1966).

In this jurisdiction relief for a defendant who claims to have been convicted as the result of a deprivation of his constitutional rights is by writ of error coram nobis. As this Court pointed out in Botts v. State, 210 So.2d 777 (Miss.1968):

The function of a writ of error coram nobis is to bring to the court’s attention some matter or fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment. The violation of defendant’s constitutional right to be represented by counsel constitutes ground for granting a writ of error coram nobis to correct a former judgment. 18 Am.Jur.2d Coram Nobis § 17 (1965). (210 So.2d at 779).

Accord Clayton v. State, 254 So.2d 874, 875 (Miss.1971); Allred v. State, supra at 30.

We have held, however, that where a petition is filed seeking post-conviction relief the court should look through the form and to the substance of the petition. Where a case for relief under a writ of error coram nobis is stated the court should treat it accordingly. Young v. State, supra at 823; Allred v. State, supra at 32. Because the instant petition falls within the Young rule, we treat the proceeding as an appeal from a denial of a petition for writ of error coram nobis. This is not to be construed as an abrogation of the rule that habeas corpus does not lie as a general post-conviction remedy in Mississippi. The Young pronouncement is grounded in equitable considerations and should not become the target of abuse by members of the bar. One purpose for requiring the proper denomination of pleadings is to apprise the respective parties as well as the court of the nature of the suit presented and the relief sought.

Coming then to the constitutional question presented, we hold that the imprisonment of the petitioner denied him the equal protection of the laws guaranteed by the Fourteenth Amendment to the U.S. Constitution and violated the directive laid down in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), pertaining to imprisonment of an indigent for inability to pay a fine.

Tate held that an indigent may not be jailed because of his inability to make immediate payment of a fine under a fines only statute. This rule applies with equal force where the statute authorizes a fine, imprisonment or both, and the imprisonment does not exceed the statutory maximum sentence. 401 U.S. at 398, 91 S.Ct. at 670-71, 28 L.Ed.2d at 133. The procedure condemned as constitutionally deficient in Tate is the same procedure that was followed in the lower court as to the $250 fine of February 22, 1975. We hold, therefore, that a court may not first fine a defendant and then, because of his indigency, convert the fine into a jail sentence for failure of the defendant to make immediate payment. Reasonable alternatives to incarceration must first be resorted to in an attempt to afford the indigent an opportunity to satisfy his fine. For some suggested alternatives see Tate v. Short, supra at 400 n. 5, 91 S.Ct. 668; Williams v. Illinois, 399 U.S. 235, 244-45 n. 21, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1969); Note, 44 Miss.L.J. 556, 559 (1973). This is not to say that an indigent defendant may never be imprisoned for his inability to satisfy his fine in spite of a good faith effort to pay the fine. Indeed, Tate left open the possibility that imprisonment may sometimes be the only “enforcement method” available to a court: *

We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so. Nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means ; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case. (401 U.S. at 400-401, 91 S.Ct. at 672).

See Smith v. State, 223 N.W.2d 775 (Minn.1974), affirming the imprisonment of an indigent convicted of a traffic offense where the defendant defaulted in the payment of his fine after being given a reasonable period of time in which to satisfy the fine.

Certainly, we do not take lightly the imprisonment of an indigent for inability to pay his fine. Admittedly, it smacks somewhat of the discarded practice of imprisoning one who is unable to pay his debts. However, when faced with a habitual offender or recalcitrant defendant who is without resources to pay yet evinces a callous disregard for law enforcement, imprisonment may often be the only enforcement method left.

In ordering that petitioner be released and given a reasonable opportunity to satisfy his fines, we are not unmindful of the fact that petitioner was delinquent in the payment of his August 1974 fines of $225, and exhibited no good faith efforts to satisfy these fines prior to his incarceration. However, as the case must be remanded as to one of the fines, we feel that the interests of justice are best served by first affording petitioner an opportunity to satisfy all of his fines before resorting to imprisonment.

Petitioner’s next contention is that his imprisonment in the city jail with adult offenders is contrary to state law and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Article X, Section 225 of the Mississippi Constitution provides in part that “[The legislature] may . provide for keeping of juvenile offenders from association with hardened criminals.” To an extent, this invitation has been accepted. Mississippi Code Annotated section 43-21-13 (1972) provides in part:

No child shall be placed in or committed to any jail or other place of detention of adults unless, in the opinion of the court, he be a child whose habits or conduct are deemed such as to constitute a menace to other persons, or it is necessary to insure the attendance of such child at court; but he shall not be placed in a room or ward with adults. Any county or municipality may separately or jointly establish and maintain a suitable detention home or detention room for children awaiting hearings under the provisions of this chapter; for said purpose the county or municipality may acquire the necessary land by purchase or donation, and may expend the necessary funds out of its general fund to build and maintain same.

Regretfully, this section is not of general applicability, but is limited to children whose cases are in youth court.

Mississippi Code Annotated section 43-21-33, as amended (Supp.1975), provides that:

In cases where the child is charged with a traffic violation, whether the same be a state law or a municipal ordinance, the justice of the peace court or the municipal court, as the case may be, may proceed to dispose of the same in the same manner as for other offenders and it shall not be necessary to transfer the case to the youth court of the county.

By providing that a municipal court or justice of the peace court may exercise jurisdiction over a youthful traffic offender and dispose of the case “in the same manner as for other offenders” without first consulting the youth court, the legislature has given these courts the concomitant powers to pronounce judgment and execute that judgment upon the child. The only limitation placed directly upon the power of execution is the directive that the youth court “shall have full power to stay the execution of such sentence. . . .’’Id. In this case no such relief was sought from the youth court.

We hold, therefore, that a municipal court or justice of the peace court may sentence a child convicted of a traffic offense to imprisonment in a facility with adults in either of two contingencies: (1) where a child is sentenced to imprisonment under a statute authorizing a jail sentence upon conviction, or (2) where a child, originally fined under an alternative sentencing statute, defaults in the payment of the fine after the failure of reasonable methods designed to aid the child in the payment of the fine. We further hold that such imprisonment does not constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. It is a sentence within the limits of the statute. Clanton v. State, 279 So.2d 599, 602 (Miss.1973), and cases cited therein.

We emphasize that our holding does not mandate that a youthful traffic offender who is sentenced to jail must be imprisoned with adults. We hold only that such imprisonment is permitted by the statute. In those localities where separate juvenile detention facilities are available, the court is free to choose such a facility. The more viable solution to the problem, of course, is for the legislature to accept the invitation of Article X, § 225 of the Mississippi Constitution and provide that youthful offenders and adults be incarcerated in separate facilities.

Petitioner’s final contention is that he was denied his Sixth Amendment right to counsel because the trial court failed to advise him of the right or to appoint him counsel prior to his trial. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972) held that:

[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.

Under Argersinger it is the imprisonment and not the conviction that is vitiated by the uncounseled misdemeanor conviction. The conviction itself survives. Morgan v. Juvenile & Domestic Relations Court, 491 F.2d 456, 457 (4th Cir. 1974); State v. Love, 312 So.2d 675, 678 (La.App.1975); Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447, 450 (1975).

A number of jurisdictions have interpreted Argersinger as forbidding .any imprisonment resulting from either the direct or collateral consequences of an uncoun-seled misdemeanor conviction. Morgan v. Juvenile & Domestic Relations Court, supra; Cottle v. Wainwright, 493 F.2d 397, 399 (5th Cir. 1973); Marston v. Oliver, 485 F.2d 705, 707-08 (4th Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974); State v. Guillote, 297 So.2d 423 (La.1974); Whorley v. Commonwealth, supra. However, Florida has held that where an uncounseled misdemeanant is sentenced to a fine with the condition that default will result in imprisonment, any loss of liberty resulting from default involves only Tate v. Short considerations, and not Argersinger. The rationale is that the imprisonment is for failure to comply with the original sentence (a fine) and is, therefore, tantamount to imprisonment for civil contempt. Rollins v. State, 299 So.2d 586 (Fla.1974), cert. denied, 419 U.S. 1009, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). We feel that the correct answer to the imprisonment of an uncounseled misdemeanant for failure to pay a fine lies somewhere between these two extremes and involves both Tate and Argersinger considerations. See generally State v. Sanchez, 110 Ariz. 503, 516 P.2d 1226, 1229-30 (1973), holding that imprisonment may follow upon conviction of driving after revocation of license even though the revocation was based upon a prior un-counseled misdemeanor conviction; State v. Love, supra at 678-79 holding that an uncounseled misdemeanor conviction may be used as the basis for a habitual offender declaration even though the declaration may possibly lead to imprisonment at some future date.

At the outset, we note that the local courts are literally inundated by a never-ending flood of traffic tickets for violations ranging from overtime parking to no inspection sticker to drunken driving. Most of these offenses, if not all, are punishable by a fine, imprisonment, or both. Because the usual sentence meted out is only a fine, local courts rarely, if ever, appoint counsel to represent a traffic offender where the usual punishment is a fine only. In accordance with the requirements of Argersinger, most judges review the charges pending against the offender and decide to impose only a fine, thus obviating the need for counsel. Under Tate, if the defendant is not able to make immediate payment of the fine, the court must resort to reasonable alternatives designed to aid the defendant in paying the fine. It is only after the failure of these alternatives that an indigent may be jailed for non-payment of his fine. But, if the defendant was not represented by counsel when the fine was first imposed, does Argersinger direct that he may never be imprisoned as a collateral consequence of a conviction without counsel? We think not. In considering this admittedly difficult problem we have been guided by Mr. Justice Powell’s prescient discussion in Argersinger of the effect that such an inflexible rule would have on the criminal justice system.

We hold, therefore, that in any case in which a court desires to preserve its discretion to impose a jail sentence as a direct result of a conviction of an indigent misdemeanant under an alternative sentencing statute, the court must make such a decision before the accused formally pleads and, in the absence of a valid waiver, appoint counsel to represent the indigent. If, however, a court decides that only a fine will be imposed in the event of conviction, the court need not appoint counsel for the indigent. Deaton v. State, 227 So.2d 827 (Miss.1969) is modified to the extent it conflicts with this holding. Such a decision should then be dictated into the record or otherwise preserved for appellate purposes. We hold that there will be no violation of the indigent’s Six,th Amendment right to counsel under Argersinger if such a fine is later converted into a jail sentence because of the defendant’s failure to pay the fine after reasonable measures designed to aid payment prove unsuccessful. Such imprisonment may not exceed the maximum imprisonment authorized by the statute under which the defendant was convicted. McKinney v. State, 260 So.2d 444 (Miss.1972).

In holding that there is no absolute right to court-appointed counsel in a misdemeanor case where only a fine is levied, we do not preclude the appointment of counsel if in the opinion of the trial judge, because of the gravity of the offense, the age of the defendant, or other factors, fundamental fairness necessitates the appointment of counsel.

It follows therefore that the trial court’s failure to appoint counsel for the petitioner invalidated only his imprisonment and not his conviction. Petitioner will be released and alternative procedures ordered in an effort to permit him to pay his fines.

Petition for writ of error coram nobis granted and case remanded for proceedings consistent with this opinion.

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


author: WALKER, Justice.

text:
    Joe H. TALLY, Superintendent of Education of Smith County v. BOARD OF SUPERVISORS OF SMITH COUNTY.
    No. 48232.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.

      Larry E. Clark, Taylorsville, for appellant.
    L. D. Pittman, Raleigh, for appellee.
    Before RODGERS', SMITH and WALKER, JJ.
   WALKER, Justice.

This is an appeal from the Circuit Court of Smith County, Mississippi, which consolidated for hearing two cases appealed from the Board of Supervisors involving the leasing of sixteenth section lands.

The circuit court affirmed the action of the Board of Supervisors in granting a 25-year lease of 96 acres of sixteenth section lands to one Joe D. Stringer, and from this judgment of the circuit court, Joe H. Tally has appealed.

In the second case, the circuit court affirmed the action of the Board of Supervisors in granting a 25-year lease of 15 acres of sixteenth section lands to Eula Mae Brown.

From this judgment, Joe Tally has appealed that part of the order affirming the granting of the lease to Eula Mae Brown; and, the Board of Supervisors has cross-appealed from a part of the order requiring it to give notice to specified officials ten days prior to the execution of any renewal leases on sixteenth section lands in Smith County, which will bq discussed in a separate part of this opinion.

ON DIRECT APPEAL

I.

The first question presented on direct appeal in both cases is whether the appellant, Joe Tally, as an individual and taxpayer of Smith County was entitled to notice that the two leases were to be renewed. We hold that he was not. Mississippi Code Annotated section 19-3-11 (1972) prescribes the time and place for meetings of the Boards of Supervisors (in counties comprising one judicial district, such as Smith County), that being on the first Monday of each month. The statute furnishes constructive notice to the general public as to all regular meetings of Boards of Supervisors and no other notice is required, except where specifically required by statute or in unusual circumstances, in order for the Boards to conduct their business. Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510 (1942).

This statutory notice of the regularly scheduled meetings satisfies the constitutional guarantees of due process. See North Larmie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953, 957 (1925), where it is said:

All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it.

The cases of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); First Jackson Securities Corp. v. B. F. Goodrich Co., 253 Miss. 519, 176 So.2d 272 (1965); and Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949), requiring personal notice and cited by appellant Tally, are clearly distinguishable from the facts of the instant case. In each of those cases the aggrieved party had a personal interest in the object of the litigation, not shared by the general public, as distinguished from the appellant here whose interest is no different than that of every other citizen and taxpayer of Smith County.

II.

The appellant’s next contention that he was denied the right to present evidence as to the fair market value of the subject leases is also without merit. His request to be heard with reference to the Stringer lease was not transmitted to the Board of Supervisors until after adjournment of the term at which the lease had been granted and approved by the Board. His request, even if it had been sufficient in law, was not timely made; therefore, he cannot how be heard to complain. Keenan v. Harkins, 82 Miss. 709, 35 So. 177 (1903).

In the matter of the Eula Mae Brown lease, the appellant’s petition for a hearing and the affidavit in support of it with reference to the fair market value of the lease was couched in general terms and conclusions and wholly failed to recite facts which he intended to prove. If the appellant had proved that the fair rental value of the lands in question was greater than that called for in the lease, then he should have stated in his petition for a hearing that he intended to prove by certain evidence (detailing it) that the rental value of the lease was a particular amount. This Court could then determine whether such evidence would be material to the issues involved. Under the present state of this record, we are left to conjecture and surmise as to what appellant might have proven, and consequently are unable to say that he was prejudiced.

We do not reach the question of whether Tally had a right to present evidence before the Board if his requests had been timely and properly made.

III.

The, appellant’s next contention that the circuit court erred in refusing to allow appellant to present his evidence before the circuit court is also without merit. We have repeatedly held that an appeal from a Board of Supervisors or a City by a bill of exceptions, provided by Mississippi Code 1942 Annotated section 1195 (Supp.1972) [now Mississippi Code Annotated section 11-51-75 (1972)] is an appeal to an appellate court, and that the circuit court is bound by the record made before the Board. See Thornton v. Wayne County Election Commission, 272 So.2d 298 (Miss.1973) and Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968). Testimony is not admissible in the circuit court on such appeals unless the Board itself is charged with fraud, Thornton v. Wayne County Election Commission, supra; and, there is no intimation here that the Board of Supervisors acted fraudulently.

IV.

The appellant next contends that the Board of Supervisors breached its duty as trustee of the sixteenth section lands by leasing these lands for .the yearly sum of forty cents per acre which appellee contends is only a nominal charge; and, that the leases should be declared void for that reason. This contention has caused us great concern as it has much merit.

Sixteenth section lands are trust properties. In Jefferson Davis County v. James-Sumrall Lumber Co., 94 Miss. 530, 49 So. 611 (1909), this Court said:

The title to sixteenth section land is in the state; but it holds same in trust for the support of the public schools of the township wherein the same is situated . confers upon the several counties, through their respective boards of supervisors . . . jurisdiction and control of sixteenth section land, to be exercised, of course, within the terms of the original trust. ... A county is a political subdivision of the state, created for the purpose of acting for the state in local matters, whose powers are exercised by a board of superyisors. The state, in thus dealing with sixteenth section land, acts through one of its own, and most appropriate, governmental agencies. For such purposes, and within the power conferred upon it, the county is the state. (94 Miss. at 535-36, 49 So. at 612).

See also Holmes et al. v. Jones et al., Miss., 318 So.2d 865 (1975); Keys et al. v. Carter et al., Miss., 318 So.2d 862 (1975); Tally, Superintendent of Education of Smith County, et al. v. Carter et al., Miss., 318 So.2d 835 (1975); Daniels v. Sones, 245 Miss. 461, 147 So.2d 626 (1962); Lambert v. State, 211 Miss. 129, 51 So.2d 201 (1951); Washington County v. Riverside Drainage District, 159 Miss. 102, 131 So. 644 (1931).

This Court is committed to the proposition that these lands constitute property held in trust for the public schools and must be dealt with by boards of supervisors as such, and thus the rules applicable to trusts and trust property generally are to be applied. Keys et al. v. Carter et al., supra.

Boards of Supervisors, as trustees, are under a duty to lease sixteenth section lands for a reasonable rental and not a nominal one. 54 Am.Jur. Trusts section 471 (1945) states:

The implication and exercise of the power of a trustee to lease must be reasonable with regard to the rights of beneficiaries, the nature of the property, the uses to which it advantageously may be put, and the usual and customary methods of dealing with such property in the locality where it is situated. This rule is applicable to the determination of the rent, the period of the lease, and rights granted under the lease. (54 Am.Jur. at 374).

90 C.J.S. Trusts § 319 (1955) states:

Where trustees possess power to lease trust property they may lease it on such terms, conditions, and rentals as are reasonable and customary for that class of property in the particular vicinity. (90 C.J.S. at 497).
A trustee is required to charge a reasonable rental for property of the trust which has been leased, and a lease of trust property will be set aside where it is for a nominal rental. In determining whether or not a rent is reasonable, regard is to be had to the character of the property, values assigned to rental space, the purpose of the trust, the local custom with respect to similar property, and all the conditions attending the execution of the lease. (90 C.J.S. at 499).

Moreover, the Mississippi Constitution, Article 4, Section 95 (1890) provides that: “Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals . . . ”; and, where the consideration paid for a lease is so small as to amount to a donation of the property, the lease is void. Keys et al. v. Carter et al., supra.

The appellant contends that a yearly rental of forty cents per acre on the subject lands is grossly unreasonable. This argument is most persuasive and it is only by the exercise of a great deal of judicial restraint that we do not so hold. An annual rental of forty cents per acre on the leased lands would reflect a value of only $8.00 per acre, if a return of five percent per annum were considered reasonable. We can take judicial notice that little, if any, land in the State of Mississippi could have been purchased on the open market for its reasonable value at such a low price in 1973. However, in view of the vast disparity in the types, location, topography, demand for rental property and other facts too numerous to mention, we hesitate to hold as a matter of law that the rental was so grossly unreasonable as to amount to a donation of the leased lands.

However, appellant is not without a remedy. He may pursue the procedures outlined in Mississippi Road Supply v. Hester, 185 Miss. 839, 188 So. 281 (1939), and seek the relief alluded to by Justice Smith in the case of Keys, et al. v. Carter et al., supra, where he said:

The facts alleged in the bill, if supported by proof accepted by the chancellor as the trier of facts, would be capable of supporting a finding that the lease of this 320 acre tract for an annual rental of $170, although the fair value of the lease was $4,000 per year, amounted to an unconstitutional donation In that event, the lease was and is void and may be attacked,in this suit. See Saxon v. Harvey, 190 So.2d 901 (Miss.1966) and Coleman v. Shipp, 223 Miss. 516, 78 So.2d 778 (1955).
However, the remedy is the voiding of the lease rather than its continuation for the remainder of the 25 year period with damages prospectively figured for each year of its future existence. In the event that the unequivocal allegations of the bill should be sustained by the chancellor upon trial of the case, an immediate cancellation of the lease would ensue and a judgment against defendants for such damages as might be proved and be found actually to have resulted from the inception of the lease to the date of its cancellation as an unconstitutional donation would be justified. See Koonce v. Board of Supervisors of Grenada County, 202 Miss. 473, 32 So.2d 264 (1947).

A determination of whether the annual rental of forty cents per acre is so unreasonable as to amount to a donation of the property should only be made after a full evidentiary hearing at which all parties have had an opportunity to participate.

V.

Tally’s primary complaint leading to this appeal was that the sixteenth section lands were leased for sums less than their fair market value. In that regard, we would point out that the Legislature has enacted Mississippi Code Annotated section 29-3-1 (Supp.1974), which became effective March 14, 1974, and provides, inter alia, that no action of'any Board of Supervisors with regard to the leasing of sixteenth section lands, or lands in lieu thereof, shall be valid unless approved by a majority of the membership of the Board of Trustees of the School District or Districts in which the section or portion thereof proposed to be leased is located. Such vote shall be taken at a regular or duly called special meeting of the Board of Trustees and shall be entered on the minutes thereof; and that in the event the Board of Trustees of the School District or Districts in which the land is located declines to approve the rental value of the land set by the Board of Supervisors, the Board of Supervisors shall appoint one appraiser, the Board of Trustees shall appoint one appraiser and the two appraisers so appointed shall appoint a third appraiser whose duty shall be to appraise the land, exclusive of buildings, structures and fences and to file a written report with each Board setting forth a recommendation for the rental value of the land. That section also provides that in the event any party is aggrieved by the decision of the appraisers setting forth the appraised rental value, the party so aggrieved shall be entitled to an appeal to the chancery court in which the land is located. Fair and reasonable rental of six,-teenth section lands should be assured under this procedure.

ON CROSS-APPEAL

The Board of Supervisors has appealed from that part of the circuit court’s order with reference to the Eula Mae Brown lease which provides:

IT IS FURTHER ORDERED AND ADJUDGED that, in the interest of justice and in order to attempt to establish harmony and tranquility between elected officials and agents charged with their respective duties, ten days prior to the execution of any renewal lease on Sixteenth Section land, notice be given to the County Superintendent of Education and to the Mississippi State Forestry Commission, affording them the right to submit documentary proof as to their recommendations of the classification of the land as timber land or not, or their opinion of the projected reasonable value of the land, under the existing laws of the State of Mississippi.

The cross-appellant contends that the procedure for granting sixteenth section leases is prescribed by statute and that the circuit court was without authority to set additional procedures for the Board of Supervisors of Smith County to follow in the future when leasing these lands. We agree with cross-appellant’s contention. The procedure prescribed for the leasing of sixteenth section lands is set forth by statute and is applicable to the Boards of Supervisors generally, and the circuit court was without authority to order additional procedures to be imposed upon the Board of Supervisors of Smith County.

The judgment of the circuit court affirming the action of the Board of Supervisors with reference to the Stringer lease is affirmed.

The judgment of the circuit court in affirming the order of the Board of Supervisors in granting the lease to Eula Mae Brown is affirmed, but is reversed as to the provision of the judgment imposing additional procedures upon the Board of Supervisors to be followed in the granting of future sixteenth section land leases.

Affirmed in part and reversed in part.

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

      . Five percent is used for the purpose of example only.


author: PER CURIAM.

text:
    Petition of THE FLORIDA BOARD OF BAR EXAMINERS FOR AMENDMENT TO RULES.
    No. 46763-B.
    Supreme Court of Florida.
    Dec. 4, 1975.
    C. Graham Carothers, Tallahassee, and Edward A. Stern, Chairman, Miami, for the Fla. Bd. of Bar Examiners.
   PER CURIAM.

The Florida Board of Bar Examiners has filed a Petition requesting that we amend our rules relating to sequential testing and bar admission procedures which became effective after November 10, 1975. The Examiner’s proposed amendments would add to Florida bar examinations, beginning in 1976, a separate set of questions concerning professional and judicial ethics. Following their submission, the Examiners’ recommendations were discussed at an informal meeting of the Court, the deans of Florida’s law schools, representatives of the Examiners, representatives of The Florida Bar Board of Governors, and a representative of Florida law students.

The Examiner’s requests are generally approved. The following amendments to the rules relating to Bar admissions, as effective November 11, 1975, are adopted. (Except for wholly revised sections, new or changed material is underscored.)

I.The following amendments for an ethics portion of the bar examination shall apply to the July 1976 bar examination and all subsequent examinations:

1. The second sentence of Article I, Section 1 is amended to read: “All individuals who seek the privilege of practicing law in the State of Florida shall submit to Part I and Part III of the Florida Bar Examination and shall provide such score from . submission to Part II, as specified in Article II, Section 10(c) of these Rules.”
2. The third sentence of Article II, subsection 10(b) is amended to read: “Every machine-scored item of Part I and Part III as herein defined must specify authority for the best response, and every such item and authority should be analyzed and approved by the members of the Board preceding inclusion of the item in the bar examination.”
3. Article II, subsection 10(c) is amended in its entirety to read: “Each examination shall consist of three parts to be designated Part I, Part II and Part III. Part I shall be of six hours’ duration. Only the following subjects may be used in Part I of the examination which shall be promulgated by the Florida Board of Bar Examiners:
Florida Constitutional Law
Federal Constitutional Law
Wills and Administration of Estates Corporations
Florida Rules of Civil and Criminal Procedure
Trusts
Part II of the examination shall be that examination offered to the several states by the National Conference of Bar.Examiners and designated by that organization as the Multi-state Bar Examination (MBE).
Part III of the examination shall be of one hour’s duration and shall consist of not more than forty multiple-choice questions. These questions shall be designed to permit the applicant to demonstrate knowledge of the Code of Judicial Conduct and the Code of Professional Responsibility, including the Canons, Disciplinary Rules and Ethical Considerations as applicable in the State of Florida. Part III of the examination shall be clearly labeled as to subject matter.”
4. Article II, subsection 10(d) is amended in its entirety to read: “All examination papers produced by applicants for admission to The Florida Bar during their submission to Parts I, II and III of the examination shall be examined by the Board. Upon conclusion of the administration of Part III of the examination, a separate examination on Part I shall be administered. Each examination paper produced by an applicant on Part I or Part III of the examination shall be separately graded and credited with reference to a perfect score of 100%. All examination papers shall be graded and credited by number and not by the applicant’s name. Upon conclusion of Part I and Part III of each examination and a compilation of the grades received by all applicants submitting to ' Part I or Part III of each examination, the Board shall separately grade each paper from Part I and Part III. The passing score for each Part shall be determined by adding the grades received by the top 10% of those examined in the respective Parts and dividing the total thereof by the number of examinees comprising the top 10% in that Part. Those applicants who receive a grade above or within twenty points below such result shall be credited with a passing score for that Part of the examination. For those examinations administered in 1976, the Court will review and evaluate the results of Part III.
5. Article II, subsection 10(f) is amended in its entirety to read: “An applicant must successfully complete each of the three parts of the examination and all successfully completed portions must have been administered within a period of 37 months.”
6. Article II, subsection 10(h) is amended in its entirety to read: “On each date set forth in subsection (g) the Board shall advise all persons submitting to any part of the examination within the State of Florida at the last administration thereof, whether such person has passed or failed any or all parts of said examination. Those persons who have at such examination completed the requirement of having passed all parts of the examination but who have not been recommended to the Supreme Court for admission to The Florida Bar will be further advised of the status of their applications.”
7. Rule I, subsection 1 (2) and Section 4 of the Revised Rules and Regulations are amended by adding “and Part III” after the words “Part I” in the second line and first line, respectively.
8. Rule II, paragraph 10(b)(2) of the Revised Rules and Regulations is repealed, and subsequent paragraphs in Section 10 are renumbered accordingly.
9. Rule III, subsection 21(c) of the Revised Rules and Regulations is amended to read: “If an applicant shall fail five times to pass Part I or Part III, he shall not be re-examined except by special permission of the Board upon good cause shown.”
10.Rule III, Section 22 of the Revised Rules and Regulations is amended to read: “Every applicant who is qualified to and who desires to repeat any part of the bar examination or who has been admitted to an examination and has, of his own volition, postponed his submission to the examination, shall file a supplemental application on a form prescribed by the Board and such supplemental application shall be accompanied by the appropriate fee and shall be filed in the Board’s office within the deadlines as specified under the provisions of Rule I as they pertain to the examination which such applicant desires to take. Where such applicant desires to take a subsequent examination and such examination is given on a date in excess of one year from the date upon which his original application was filed, he shall file his supplemental application within the deadlines as specified under the provisions of Rule I and the fee which shall accompany such supplemental application shall be as prescribed under Section 49 of Rule V. In those instances wherein the running of the deadline under this section occurs prior to notification being given of the failure of any part of the examination, thus precluding compliance with the deadline by unsuccessful examinees, the Executive Director shall extend such deadline for a period not to exceed ten days from receipt of notice of failure on the examination by the affected examinees.”
11. Rule III, Section 23 of the Revised Rules and Regulations is amended by substituting the words “Code of Judicial Conduct” for the words “Canons of Ethics of Judges”.

II. The following amendments for processing Cuban American Lawyer applicants shall become effective upon adoption of this order:

1.In addition to the other requirements of these Rules, each applicant shall deliver to the Board within the deadlines established by the Rules:
A.A certificate of a law school dean evidencing the applicant’s successful completion of a course of study as provided by Order of the Supreme Court of Florida on July 31, 1973 in Case No. 43,040, on such form as is approved by the Board.
B.An affidavit duly executed by the applicant on a form supplied by the Board establishing his or her;
1. Graduation prior to December 31, 1960 from any of the following schools of law:
a. University of Habana (Havana)
b. Jose Marti University
c. St. Thomas of Villanova Law School
d. Ceriente University
2. Status as an attorney in good standing and in the active practice of law in the Republic of Cuba prior to December 31, 1960.
3. Absence of conviction or adjudication of guilt of a criminal offense in a court or tribunal of any state, territory, possession or protectorate of the United States, or of the United States, which constitutes a felony under the laws of the jurisdiction rendering such judgment.
C.Any variance from these requirements shall arise only through Order of the Supreme Court of Florida, a copy of which must be attached to the affidavit.
2. Each applicant seeking admission into the examination for the first time shall furnish to the Board, within the deadlines specified in the Rules Relating to Admission to The Florida Bar effective midnight November 10, 1975, an application fee in the amount of $60, fingerprints, a photograph and other identifying data, together with all other documents and forms required of all other applicants; except that the applicant need not provide proof of educational qualification as specified under Article IV, Section 21.
3. Each applicant who is repeating the examination shall furnish forms, fees and other data as is required of all other applicants in similar circumstances, except for the proof of educational attainment.
4. No application for admission to The Florida Bar need be filed until after the successful completion of all parts of the Florida Bar Examination. Upon receipt of a Bar admission application, the Board shall commence its investigation as is required under Article II, Section 12 of the Rules.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.


text:
    In the Matter of THE FLORIDA BAR, Petitioner. In re PETITION FOR AMENDMENT OF the CODE OF PROFESSIONAL RESPONSIBILITY AND the INTEGRATION RULE OF THE FLORIDA BAR.
    No. 46586.
    Supreme Court of Florida.
    Dec. 3, 1975.
    Norman A. Faulkner, Tallahassee, Staff Counsel, for The Florida Bar, petitioner.
   PER CURIAM.

By motion for an implementing order, The Florida Bar has requested our approval of a proposed form of contract between the Bar and American Express Company for the purpose of authorizing approved credit plans. The Bar’s motion is granted and the proposed agreement in the form annexed to its motion is approved with the following modification:

a paragraph should be added to the agreement which directs each attorney entering into an agreement with American Express to file with The Florida Bar an executed copy thereof. Any proposed news release with respect to the approval of this plan shall be submitted to this Court for prior approval.

It is so ordered.

ADKINS, C. J., ROBERTS, OVER-TON and ENGLAND, JJ., and CHAP-PELL and WILLIAMS, Circuit Judges, concur.


author: OVERTON, Justice.

text:
    Amos BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 45673.
    Supreme Court of Florida.
    Dec. 10, 1975.

      Steadman S. Stahl, Jr., of Varón, Stahl & Kay, Hollywood, and Archie Odom, Port Charlotte, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for ap-pellee.
   OVERTON, Justice.

This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973). The appellant, Amos Baker, was charged in an information as follows:

“AMOS BAKER, did then and there riot, or incite a riot, or encourage a riot.”

The appellant moved to dismiss the information on the grounds that:

“ . . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines. . . . ”

The trial court denied the motion to dismiss. We have jurisdiction.

The appellant was tried by a jury, which returned its verdict of guilty to the offense charged in the information. The appellant was sentenced to five years in the state prison.

We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So.2d 750 (Fla.1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in this cause is insufficient to properly charge the offense of riot. The trial court is reversed, and the conviction and sentence are hereby vacated, without prejudice to the State to file an amended information.

This cause is remanded for proceedings not inconsistent herewith.

It is so ordered.

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

      . Article Y, Section 3(b) (1), Florida Constitution.


text:
    Thomas A. HALLIWELL, Appellant, v. STATE of Florida, Appellee.
    No. 45885.
    Supreme Court of Florida.
    Dec. 3, 1975.

      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Pursuant to Article V, Section 3(b)(1), Florida Constitution we are reviewing the first degree murder conviction and sentence of death imposed upon Appellant by the Circuit Court of Hillsborough County.

The facts are as follows.

On January 17, 1974, the dismembered body of Arnold Tresch was found in Cypress Creek at Thirtieth Street in Tampa, Florida. The upper torso was in a garbage can taken from a store known as “The Hearth,” the name of the business being marked on the container. (Appellant’s diving shop, where the crime occurred, is located next door to “The Hearth.”) The lower torso and the amputated legs were found nearby in Appellant’s footlocker which had been left with Appellant’s former wife until after the murder. Appellant had gone to her home and had gotten it to use in disposing of the body. After killing Tresch on the morning of January 9, 1974, Appellant confessed that he stored the body until he could find time to dismember it, conceal the pieces, and remove them to Cypress Creek the following day.

In the early morning of January 18, 1974, he was arrested at the scene of the crime by a Hillsborough County detective; his shop was searched with his written permission, the detective finding blood on the floor as well as bloody human flesh on a saw, a machete and a bloody breaker bar which Appellant said later was the death weapon. After being arrested at his shop and receiving and signing his constitutional Miranda warnings he was taken to an interrogation room for over two hours where he was twice given Miranda warnings. He was told by policemen that Sandra Tresch, the widow of his victim, and with whom he was involved in an illicit romantic affair, had confessed that she had killed her husband with a spear gun. Appellant requested a visit with her and then confessed that he alone was the killer, having become so angry over the victim’s bragging about having beaten Sandra that he beat him to death, unable to stop the fatal blows once he began. Arnold weighed almost two hundred pounds, and Sandra weighed slightly over one hundred pounds; Appellant, also a large man, was a diving instructor who often worked in diving with Arnold and socialized with him and Sandra.

In attempting to renounce his confession, Appellant claimed the officers tricked him by saying that Sandra had confessed. The record does not show whether she ever actually confessed, but the Assistant State Attorney told the jury in the penalty section of the bifurcated trial that he could not call Sandra as a witness because she was still a suspect in the crime and had been arrested twice but not formally charged. There is no basis to reject his confession because of her purported statements of guilt.

After Appellant was formally charged but later in the morning of January 18th, Officer Edward Brodesser of the Tampa City Police visited Appellant as a personal friend, during which visit the Officer inquired as to Appellant’s guilt. In answer to his friend’s questions Appellant, by nodding his head affirmatively and with a few words, admitted killing Arnold Tresch because of his love affair with Sandra.

Appellant tried to suppress the confessions made to the detective shortly after the arrest, but'since he had received Miranda warnings three times before his first oral confession, we see no sufficient basis to reverse the trial court’s refusal to grant the motion to suppress. Appellant also moved to suppress his oral confession to his friend Officer Brodesser on the grounds that he was a personal friend and that as a city policeman he had no jurisdiction in the Hillsborough County investigation. In State v. Oyarzo we held that friendly and courteous treatment of a prisoner after Miranda warnings did not invalidate the warnings nor taint a subsequent confession made with the belief that the defendant was among friends. After being warned of his rights, admissions of guilt made by a defendant to anyone not privileged (such as his attorney) may be used subject to proper legal objections, such as duress or mental incapacity.

Although soon after Appellant’s arrest he assumed full liability for the murder and tried to exonerate Sandra, he told a different story at the trial. Appellant testified that he left Arnold Tresch in charge of his diving shop on the morning of the murder while he took his truck to a garage for repairs, returning about two o’clock p. m. Appellant said that, when he entered the shop, Sandra was hysterical and had blood on her hands; that after seeing the dismembered body of her husband in the blood-soaked back room, he had her wash he hands and go home; that he then proceeded to arrange for the ultimate removal of the body to Cypress Creek. Sandra had not visited him during the 102 days he had been in jail, and his ardor for her appeared to have diminished.

Several questions remain unanswered. A bloody jacket with a name unknown to Appellant or the police was found with the body. Sandra, on advice of Appellant, did not report Arnold missing until the day before he was found. Appellant drove Arnold’s car and abandoned it at Lakeland, claiming Sandra followed him and returned him to Tampa. Appellant, a professional diver, was very strong and could have removed the body without the bloody dismemberment. It was inferred that perhaps a smaller person had done it because of inability to remove it as one unit.

Appellant also claimed that he did not confess and that he had asked for a lawyer before he confessed. At his request efforts were made by policemen, and the public defender visited him, but said he was not sufficiently in need financially to qualify for his representation. Appellant later got private counsel who represented him well at the trial.

The jury chose to believe the State’s witnesses about the oral confessions and that he had not timely requested a lawyer. The, record shows the jury was authorized to make such findings.

Appellant complained that the gruesome pictures of the victim’s body inflamed the jury and should have been excluded as evidence. We have carefully considered the matter and feel they assisted the jury, were relevant and were not unduly prejudicial to Appellant. Those who create crimes of violence often must face the record of their deeds in court.

At the end of the trial and too late for evidence to be admitted, the State informed Appellant that a pair of female shoes, which were covered with blood, had been found in the large tool box taken by officers from the murder scene. A motion for new trial based on this new evidence was filed after the filing of a notice of appeal, but it was not disposed of by the trial court. Taken in the light most favorable to Appellant, it would show that a woman was present during or after the murder, but the shoes alone would not vindicate Appellant. Although we are concerned over the matter, we find no basis for that evidence alone to cause a new trial. If subsequent related evidence should be discovered, this Court could take appropriate action in the interest of justice.

Appellant complains that certain records of proceedings against Sandra Tresch were included in this record. This Court has granted Appellant’s motion to strike that portion of the record, so that the matter has already been resolved.

Appellant attacks the Florida death penalty statute as unconstitutional by imposing cruel and unusual punishment. In State v. Dixon we held that statute valid. Other points raised by Appellant and not discussed herein have been considered, but we find them without merit.

Concerning the pictures and testimony of dismemberment, we note with interest that the jury was out of the courtroom only fifty-five minutes1 in order to find Appellant guilty of first degree murder, and only thirty-five minutes to recommend the death penalty in the bifurcated trial. We cannot read the minds of jurors, but it is reasonable to suspect that the hideous and gruesome conduct of Appellant in dismembering the body several hours after the murder probably was considered by the jury in recommending the death penalty.

Sections 921.141(5) and (6), Florida Statutes, require the jury and court to consider aggravated and mitigating circumstances. The court found the crime to have been committed “in an extremely hei-noiis, atrocious and cruel manner.” Our examination of the record shows the crime arose from a love triangle in which the Appellant flew into a violent rage after the husband of the woman he loved had beaten her. Appellant grabbed a 19-inch breaker bar and beat the husband’s skull with lethal blows and then continued beating, bruising and cutting the husband’s body with the metal bar after the first fatal injuries to the brain. That conduct alone justified a finding of premeditated murder, but we see nothing more shocking in the actual killing than in a majority of murder cases reviewed by this Court.

The attainment of a new depth in what one man can do to another, even in death, occurred several hours after the killing when Appellant used a saw, machete and fishing knife to dismember the body of his former friend and placed it in Cypress Creek. It is our opinion that when Arnold Tresch died, the crime of murder was completed and that the mutilation of the body many hours later was not primarily the kind of misconduct contemplated by the Legislature in providing for the consideration of aggravating circumstances. If mutilation had occurred prior to death or instantly thereafter it would have been more relevant in fixing the death penalty.

In mitigation the record shows no prior arrests and that Appellant was a highly decorated Green Beret in Special Forces in the Vietnam war. Police officers testified he was under emotional strain over the mistreatment of Sandra by the victim and that Appellant was greatly influenced by her. There is testimony that she had attempted suicide, that she had rushed to him previously for help in marital conflicts, and that he cancelled diving instruction trips when she was in trouble.

As required by statute, we have weighed both the aggravating and the mitigating circumstances as shown in the record, and we conclude that the death penalty is not warranted.

Accordingly, the judgment of guilty of first degree murder is affirmed, but this cause is remanded to the trial court with instructions to reduce the penalty to life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

BOYD, SUNDBERG. and DREW (Retired), JJ., concur.

ROBERTS, J., concurs in affirmance of conviction, but would also affirm penalty, with which ADKINS, C. J., and OVER-TON, J., concur.

ENGLAND, J., concurs in the result of opinion.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

      . 274 So.2d 519 (Fla.1973).

      . 283 So.2d 1 (Fla.1973).