text:
    ARROW FOOD DISTRIBUTORS, INC. v. Lloyd F. LOVE, Conservator of the Estate of William F. Riley, Jr.
    No. 50287.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied Aug. 23, 1978.

      Upshaw, Dorizas & Ladner, Heber Lad-ner, Jr., Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Terry R. Levy, Joe H. Daniel, Jackson, Zuccaro, Riley, Pintard & Brown, William F. Riley, Sr., Natchez, for appellee.
    Before ROBERTSON, SUGG and BROOM, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Arrow Food Distributors, Inc., a Delaware corporation with its headquarters in New Orleans, Louisiana, appeals from a decree of the Chancery Court of Adams County, Mississippi, for $248,920, in favor of Lloyd F. Love, Conservator of the Estate of William F. Riley, Jr.

The injuries to Riley resulted from a head-on collision of Riley’s Pinto automobile with a large refrigerated tractor-trailer unit owned by Arrow and driven by Henry D. Alexander. About 4:45 A. M., August 1, 1975, William F. Riley, Jr. was driving south on U. S. Highway 61 north of Baton Rouge, Louisiana. Riley was on his way back to work as a roustabout on an oil rig off of the Louisiana coast. It was raining rather heavily and foggy in low places along the highway. Henry Alexander was driving Arrow’s refrigerated tractor-trailer unit north on U. S. Highway 61 at a speed of 45 to 50 miles per hour. He was en route to Natchez, Mississippi, to deliver refrigerated foods ordered by Mississippi customers of Arrow. Alexander testified that he thought he saw headlights in his lane. He blinked his lights and, according to Alexander, the headlights, instead of moving west, moved to the east side of the highway. Alexander continued:

“At this time I applied my brakes lightly, my truck went into a skid, and shortly after I went into a skid there was an impact.
Q All right. Now, as you approached that vehicle, tell the Court and Jury again what that vehicle did?
A It moved to the right shoulder.
Q What did you do at that time?
A At that time I looked and I saw that the left lane was available, there was no traffic coming, so I tried to move over to my left.
Q What were the weather conditions that day?
A It was raining.
Q Were there any other weather conditions that you took note of?
A It was slightly foggy in spots.”

Louisiana Highway Patrolman Joe White testified that the refrigerated van turned over and the dual rear wheels came to rest on top of the Pinto automobile. Riley’s Pinto was completely in the southbound lane. Arrow’s truck was partially in the southbound lane, partially on the west shoulder and partially in the northbound lane. Riley remained unconscious in a Baton Rouge hospital for 24 hours. He suffered a brain contusion, basilar skull fracture, sheared teeth, various bruises and cuts on the head requiring 175 stitches, burns to his fingers and hand, and a compression fracture of the sixth cervical vertebra with a narrowing of the disc between the fifth and sixth vertebrae. The force of the impact bent the frame of the defendant’s truck and totally demolished Riley’s automobile.

Arrow assigned 24 errors but briefed only 6. In its brief, Arrow argues:

1. The Chancery Court of Adams County did not have jurisdiction;
2. The United States District Court for the Southern District of Mississippi did have jurisdiction even though, after a hearing, that Court had remanded the case to the Adams County Chancery Court;
3. The trial court erred in sustaining a motion in limine and entering a protective order covering Riley’s medical records at Whitfield;
4. The court erred when it excluded the testimony of an expert “accidentologist”; and
5. The verdict was against the overwhelming weight of the evidence.

Nelson DeSoto, vice president of appellant, testified that Arrow had sold foodstuffs in Mississippi continuously since 1951. Sales in Mississippi averaged $2,000 to $3,000 a week. A salesman would come to Mississippi and solicit orders. The orders would be filled in Louisiana and shipped by truck to Mississippi purchasers. Sales in Mississippi of $104,000 to $156,000 annually, in our opinion, constitute a substantial amount of business. In April, 1976, $9,000 was owed Arrow by Mississippi purchasers. On June 23,1976, approximately $3,500 was still owed Arrow by Mississippi purchasers, and two delinquent accounts had been placed in the hands of attorneys for collection. Arrow had used Mississippi’s highways for 15 years in delivering foodstuffs sold to Mississippi customers, and now would use Mississippi’s courts in collecting debts due it.

Suit was begun as an attachment in chancery. The defendants were Arrow Foods, a non-resident corporation, and four Mississippi debtors of Arrow. Process was served on the Secretary of State of Mississippi for Arrow. All four attachment defendants answered admitting that they owed Arrow. Appellant moved to transfer to the United States District Court for the Southern District of Mississippi on the ground of diversity of citizenship between Arrow and the ward, William F. Riley, Jr., who was a Natchez resident, even though his conservator, Lloyd F. Love, was a Louisiana resident. After a hearing, the United States District Court remanded the case to the Chancery Court of Adams County. The pleadings transferred to the chancery court included Arrow’s Answer which asserted thirteen defenses.

Mississippi Code Annotated section 13-3-57 (1972) provides in part:

“Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee.
“The doing of such business, or the engaging in any such work or service in this state, or the making of such contract, or the committing of such tort in this state, shall be deemed to be a signification of such nonresident’s agreement that any process against it or its representative which is so served upon the secretary of state shall be of the same legal force and effect as if served on the nonresident at its principal place of business in the state or country where it is incorporated and according to the law of that state or country.” (Emphasis added).

Arrow contends that section 13-3-57 does not apply because the collision took place in Louisiana and the cause of action accrued there. The appellee answers that not only does section 13-3-57 apply but that Mississippi Code Annotated section 79-1-27 (1972) also applies. The appellee contends that section 79-1-27 complements 13-3-57 and that these sections must be read together and harmonized. Section 79-1-27 provides:

“Any corporation claiming existence under the laws of any other state or of any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not.” (Emphasis added).

In Vicksburg S. & P. R. Co. v. Forcheimer, 113 Miss. 531, 74 So. 418 (1917), in discussing section 79-1-27 (Chapter 123, Laws 1908), this Court said:

“The policy of our state is to open the door of our courts to all foreign corporations desiring to sue on any proper cause of action, and to subject foreign corporations to suit here the same as individuals. This is the express declaration of our statute, . . . .” 113 Miss. at 537-38, 74 So. at 419.

In our opinion section 13-3-57 and 79-1-27 must be read together, construed together and harmonized one with the other. When this is done and full meaning is given to the language used in each section, it is clear to us that 13-3-57 complements 79-1-27 in furthering the state’s avowed policy as expressed in Vicksburg S. & P. R. Co. v. Forcheimer, supra, to “open the door” of our Mississippi courts to foreign corporations found doing business in this State to sue and be sued here on all bona fide causes of action.

Besides being a bona fide attachment suit, the chancellor found that Arrow over the years had done and was still doing a substantial amount of business in Mississippi at the time this cause of action accrued. We cannot say that the chancellor was wrong in his finding.

We note that Arrow filed an Answer and asserted thirteen defenses in a full trial of this cause. By entering a general appearance, Arrow waived any asserted defect in the jurisdiction. Maupin v. Dennis, 252 Miss. 496, 175 So.2d 130 (1965); Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964).

In McMillan v. Tate, 260 So.2d 832 (Miss. 1972) this Court said:

“While an individual or corporation may appear specially for the purpose of objecting to the jurisdiction of the court over his person, he must do so before filing any other pleadings.” 260 So.2d at 833. (Emphasis added).

There is no merit in this assignment of error.

In its next assignment of error, Arrow attempts to relitigate the matter of federal court jurisdiction in a State court. This contention was long ago rejected by the Supreme Court of the United States in Missouri R. R. Co. v. Fitzgerald, 160 U.S. 556, 16 S.Ct. 389, 40 L.Ed. 536 (1896). In McLaughlin Bros. v. Hallowell, 228 U.S. 278, 33 S.Ct. 465, 57 L.Ed. 835 (1912), the United States Supreme Court again answered this contention:

“The supreme court of Nebraska rightly recognized the courts of the United States to be the exclusive judges of their own jurisdiction, ... As, under the statute, a remanding order of the circuit court is not reviewable by this court on appeal or writ of error from or to that court, so it would seem to follow that it cannot be reviewed on a writ of error to a state court, the prohibition being that ‘no appeal or writ of error from the decision of the circuit court, remanding such cause, shall be allowed.’ ” 227 U.S. at 286, 33 S.Ct. at 468, 57 L.Ed. at 839.

In Rath Packing Co. v. Becker, 530 F.2d 1295 (9th Cir. 1975) cert. granted 425 U.S. 933, 96 S.Ct. 1663, 48 L.Ed.2d 174 (1976), the Ninth Circuit, citing Missouri R. R. Co. v. Fitzgerald, supra, said:

“The decision of the district court that the case does not invoke the federal jurisdiction and must be remanded precludes further litigation of the issue of the forum in which the removed case is to be litigated.” 530 F.2d at 1303. (Emphasis added).

Appellant next contends that the verdict is against the overwhelming weight of the evidence.

Where the accident happened, Highway 61 is about 50 feet wide. There are two travel lanes, each approximately 12 feet wide, and beside each lane is an asphalt shoulder ten or twelve feet wide. Henry D. Alexander, the driver of appellant’s tractor-trailer, was the only eyewitness able to testify. He testified that when he thought he saw Riley in his northbound lane he blinked his lights but Riley moved further to the east. Then Alexander braked lightly and attempted to move into Riley’s southbound lane, but his truck “went into a skid and shortly after I went into a skid there was an impact.”

The impact was entirely in Riley’s southbound lane. When Trooper White arrived he found Riley’s Pinto underneath the right rear dual wheels of the trailer which had turned over. Arrow’s tractor-trailer stretched all the way from the west shoulder completely across the southbound lane and partially across the northbound lane. There were two-inch-deep gouge marks two feet west of the center line which stretched north in the southbound lane for 40 feet to the point of impact. The physical facts fully support and justify the jury’s verdict as to liability.

As to the jury verdict for $248,920 damages, the overwhelming testimony of the medical doctors who examined him was that 23-year-old Billy Riley was totally and permanently disabled. After carefully examining the photographs in the record showing the complete demolition of Riley’s Pinto it is hard to comprehend how Riley is even alive today.

He suffered a brain contusion, basilar skull fracture, sheared teeth and cuts on the head requiring 175 stitches. The doctors attributed his complete change of personality (causing him to threaten to kill his wife and child, his parents and even himself) to dead brain cells and the formation of scar tissue as a result of the brain contusion and basilar skull fracture.

Riley was making $10,800 a year with a good chance of advancement. Under the facts of this case, we cannot say that the unanimous jury verdict is excessive and that the chancellor was in error in adopting the jury verdict as the judgment of the court.

Even if the records on Riley at the Mississippi State Hospital at Whitfield were not privileged and were admissible in evidence, Arrow has not preserved this point because these records were never introduced into evidence, nor were they even offered into evidence. They are not, therefore, before this Court. We stated in Willenbrock v. Brown, 239 So.2d 922 (Miss. 1970):

“It was the duty of the appellant to perfect the record on appeal and we have stated many times that we will not consider anything on appeal that does not appear in the record.” 239 So.2d at 925.

There is no merit in the appellant’s contention that the chancellor erred when he excluded the opinion testimony of acci-dentologist Alvin Doyle, Jr.

We specifically answered this contention in Hagan Storm Fence Company v. Edwards, 245 Miss. 487, 148 So.2d 693 (1963), when we said:

“It should be observed that Mr. Doyle had no facts before him on which to reach his conclusions that the jury did not have. He testified from photographs that had been introduced in evidence, the location at which the two vehicles came to rest as necessarily related to him by witnesses, and testified as to the indicated speed of each automobile at the time of the accident, and of course he did not know the point of impact except from hearsay, and on the basis of his experience as hereinbe-fore set forth.” 245 Miss. at 492, 148 So.2d at 695.

His observations as to how the jury should interpret the pictures introduced into evidence invaded the province of the jury and should not have been admitted.

Finding no reversible error, we are of the opinion that the decree of the chancery court, adopting the jury’s verdict as its own, should be and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    USM CORPORATION v. Willie C. MOORE.
    No. 50491.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rehearing Denied Aug. 23, 1978.
    Watkins, Pyle, Ludlam, Winter & Stennis, William A. Pyle, Jackson, for appellant.
    James P. Cothren, Jackson, for appellee.
    Before ROBERTSON, P. J., SUGG and COFER, JJ., and DENNIS M. BAKER, Commissioner.
   AFFIRMED.


author: BROOM, Justice, for the Court:

text:
    Mittie Alice Cooper Rushing THREATT et al. v. Johnny Roy RUSHING et al.
    No. 50434.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rehearing Denied Aug. 23, 1978.

      Adams & Odom, Joe R. Odom, Walter T. Rogers, Meridian, for appellants.
    Thomas L. Goldman, Meridian, for appel-lees.
    Before PATTERSON, BROOM and LEE, JJ.
   BROOM, Justice, for the Court:

Whether one whose interest in lands consists of (1) a life estate plus (2) an undivided one-fourth in the fee interest may, without consulting the cotenants, cut and sell timber is the chief issue of this cause appealed from the Chancery Court of Lauderdale County. Johnny Roy Rushing, Andrew Ray Rushing, and Mittie Edna Rushing Foster (appellees) sued appellant, Mittie Alice Cooper Rushing Threatt (Mrs. Threatt herein), Henry Cornish and Glen Cornish, seeking to enjoin Mrs. Threatt and the two Cornishes from cutting timber and seeking a judgment for timber already cut. The lower court granted the injunction and entered a money decree against Mrs. Threatt and the two Cornishes for $9,344.26. We affirm.

Mrs. Threatt owns a life estate in the timberlands in question, and an undivided one-fourth interest in the fee interest. She previously owned the lands in fee simple but later deeded the lands to her children (appellees), reserving a life estate. Afterward one of her daughters deeded back a one-fourth interest to her, leaving the three remaining children, Johnny Roy Rushing, Andrew Ray Rushing, and Mittie Rushing Foster owning an undivided one-fourth interest each. She attacked her deed to the children but this court upheld the deed in Threatt v. Rushing, 355 So.2d 1096 (Miss. 1978), decided without a written opinion. According to Mrs. Threatt’s testimony, in 1976 she decided to “improve” the timber by cutting out mature trees, leaving a good stand “that could reseed,” and employed Henry Cornish (one of appellants) to selectively cut the mature trees. Whether she notified her children (remainder cotenants, appellees) is disputed. Cornish agreed to pay her $100 per thousand feet for the pine and $60 per thousand for hardwood (clear to her). The children sued Mrs. Threatt in December 1976 and, pending trial, the parties entered an agreed order to the effect that timber cutting would cease, timber on the ground would be removed, and Mrs. Threatt and the two Cornishes (timber cutters) would account for the timber already disposed of. Mrs. Threatt was to have two-fifths, and the children three-fifths of the proceeds.

Forester Goforth testified at trial that the lands had about 1,019,300 board feet of standing timber, of which 92,300 board feet of pine and 21,200 board feet of hardwood had been cut, the timber already cut being worth about $14,825.63. According to Go-forth, the land was primarily used for growing timber and needed to be thinned or “you’re taking a chance” on losing profit. Henry Cornish testified that his “thinning” made the smaller timber grow faster and improved the timber. Cornish explained that his method of timber removal did less damage than the method used by the big timber companies, but that his was more expensive. He admitted that the children had told him to quit cutting the trees. The timber (cut and standing) was checked and appraised by witness Goforth partly at the instance of appellees and additionally at the court’s direction. Included in the money decree against Mrs. Threatt is $460 for the services of Goforth in estimating and appraising the timber.

Did Mrs. Threatt, the life tenant, waste the interests of the remaindermen (her children) by cutting the timber? The correct test may be stated thusly: Do the acts of the life tenant in cutting the timber damage or diminish the value of the chief inheritance? If so, such acts are actionable waste. This was the meaning of Leonard v. Ogden, 80 Miss. 769, 32 So. 278 (1902), which stated that “the cutting down by the tenant of trees for sale is waste . an injury to the inheritance. . . . ” Cannon v. Barry, 59 Miss. 289, 306 (1881), an earlier case, held that acts dictated by “good husbandry” are not in law waste. Under the common law, a life tenant (as is Mrs. Threatt) may cut growing timber for estovers, making necessary repairs, for fuel, or to pay taxes, ’but cannot “lessen the value of the inheritance.” 1 Thompson on Real Property, § 104 (1964).

Here, Mrs. Threatt holds a life estate, and by virtue of the fact that one of the daughters had deeded back her (the daughter’s) one-fourth interest, Mrs. Threatt holds a one-fourth of the remainder interest along with her other three children (appellees). We cannot agree, given facts of this case, that the lower court erred in holding that Mrs. Threatt’s undertaking to cut the mature timber (leaving enough for reseeding) was simply not “good husbandry.” Testimony shows there was over one million board feet of mature timber on the lands; to cut such a large part of the timber would obviously reduce the value of the chief estate. The cutting of timber here was of great magnitude and not for “est-overs” or merely for the purpose of improving or maintaining the estate, but was in a large measure a commercial operation of Mrs. Threatt for profit and constitutes waste.

The second proposition argued on behalf of Mrs. Threatt is that as a cotenant, i. e., owner of an undivided one-fourth interest in the lands, she has a right, acting unilaterally, to harvest one-fourth of the mature timber and retain the proceeds. Mr. Goforth, appellees’ witness, indicated that Mrs. Threatt and the Cornishes had not cut one-fourth of the mature timber on the property in dispute, but only about 92,300 board feet of pine and 21,200 board feet of hardwood out of a total mature timber of 1,019,300 board feet.

There is conflict among authorities as to whether or not a cotenant may cut timber from common property without the consent of the other cotenant(s). 20 Am.Jur.2d Co-tenancy and Joint Ownership § 36 (1965) appears to recognize the right of one coten-ant to cut up to his fractional interest of such timber, but to the contrary is 86 C.J.S. Tenancy in Common § 54 (1954). This court has not, so far as we can find, clearly decided the issue but dealt with it to some extent in Leatherbury v. McInnis, 85 Miss. 160, 37 So. 1018 (1904). That dispute involved the defendant’s boxing of trees for turpentine on a tract of 1,040 acres in which he owned an undivided one-half interest. He had boxed 120 acres of trees and expressed the intention of boxing trees on the whole property, which was valuable only for its pine timber. Appellees obtained an injunction restraining him from boxing any more trees, and the lower court overruled a motion to dissolve the injunction. On appeal this court held that the injunction was properly granted, but that it should have only restrained the appellants from boxing more than one-half of. the trees in value and quantity.

The rule of foreign jurisdictions varies widely, as indicated by the contrasting views cited in 86 C.J.S. Tenancy in Common § 54 (1954). In Rhode Island, timber is treated like crop income from the land and thus may be sold without liability for waste. Conversely, in the State of Washington timber is considered part of the realty and thus subject to an action for waste. Rayonier, Inc. v. Poison, 400 F.2d 909 (9th Cir. 1968); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916).

We held in Bernard v. Board of Supervisors, 216 Miss. 387, 62 So.2d 576 (1953), that timber of commercial size is part of the realty (the same as in Washington, but the opposite of Rhode Island.) Our decision in Learned v. Ogden, supra, indicates that trees when severed from the soil become personal property of the “reversioners” (co-tenant children here) who may maintain an action for possession. This is consistent with Shepard v. Pettit, 30 Minn. 119, 14 N.W. 511 (1883), where the Minnesota court said that timber, when severed, becomes the personal property of the cotenants. Each would own a proportionate share and be entitled to an accounting for his fair share upon conversion or sale.

The 9th Circuit, in construing the rights of an assignee of a cotenant to remove timber, in Rayonier, Inc. v. Poison, supra, stated:

[O]ne cotenant of real property may use and enjoy the entire property to the fullest extent consistent with the ordinary manner of deriving profits from property of like character . . . and he may grant to other persons freely and without the necessity of the consent of his coten-ants, his interest in the property and whatever rights he enjoys. .

But:

Courts generally hold that a cotenant has no right to remove substantial amounts of timber from land having a value primarily for its timber and that to do so constitutes waste for which he is liable. E. g., Provident Life & Trust Co. v. Wood, 96 W.Va. 516, 123 S.E. 276, 41 A.L.R. 570 (1924); Nevels v. Kentucky Lumber Co., 108 Ky. 550, 56 S.W. 969 (1900); Graybiel v. Burke, 124 Cal.App.2d 255, 268 P.2d 551 (3d Dist. 1954). See generally 2 H. Tiffany, Real Property § 651 (3d ed. B. Jones 1939); Annot., 2 A.L.R. 993 (1919); Annot., 41 A.L.R. 582 (1926). (400 F.2d at 919).

In some jurisdictions a cotenant may cut his fractional share of the timber (not merely stumpage, but determined by commercial and other considerations) without consulting with or being accountable to the other cotenants. Such a rule seems to allow co-tenants to vie or race with each other in the disposition of their estate, and could create a situation in which all the cotenants might descend on the property, taking what they individually seize upon so long as they limit themselves to their fractional share. How such a rule can be applied without pandemonium or chaos is not clear. We hold that the better rule which we now adopt is that a cotenant may not sever timber from the land without consent of the other coten-ant(s). If a cotenant cannot obtain such consent, he may have to resort to partition proceedings or some other form of litigation, but he may not unilaterally partition the property himself by simply cutting timber, even though he cuts only his own fractional interest of timber ownership. Leath-erbury v. Mclnnis, supra, has been interpreted to mean that a cotenant cannot complain if another cotenant cuts timber not in excess of his proportionate interest. Our decision there seems, however, to be limited to the extent that a cotenant may be enjoined from cutting timber where such cutting is “tending to the destruction of the chief value of the property.” In the present case, it is obvious that Mrs. Threatt’s timber cutting would likely damage the “chief property” — the value of the total estate — and to that extent Leather-bury is not authority to say that the injunction against Mrs. Threatt and the Cornishes was erroneously granted. Admittedly, the concluding language of Leatherbury is capable of being construed to mean that a eotenant may not be enjoined from cutting up to his fractional interest in the entire estate, but, to that extent, our decision there (if it be so understood) is modified.

Mrs. Threatt contends that the court misapplied the doctrine of waste to the facts of the case, and that the record is undisputed that she observed “good husbandry” in cutting the timber. She argues that, in issuing the injunction, the trial court mistakenly assumed that any cutting of trees, even for •the sake of “good husbandry,” constituted waste. Here, however, the magnitude of the cutting operation of Mrs. Threatt was far beyond the bounds of “good husbandry,” and it clearly appears that detriment was being done to the chief estate or inheritance. Our scrutiny of the record shows that the injunction was properly issued pursuant to Cannon v. Barry, 59 Miss. 289 (1881), in which the assignee of the life tenant was enjoined from committing further “acts of voluntary waste to the detriment of the inheritance.” See also, Hemphill v. Mississippi State Highway Comm’n, 245 Miss. 33, 145 So.2d 455 (1962).

Finally it is argued that the trial court erred in holding liable Henry Cornish and Glen Cornish (the ones doing the actual cutting for Mrs. Threatt). We find no merit to that contention, and hold that no reversible error has been established.

AFFIRMED.

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

      . When Mrs. Threatt arranged to have the timber cut, her attack on her deed to the children was on appeal here, rendering her interest in the land then unsettled. If said deed were held void she apparently would have been fee owner; otherwise she would have owned a life estate plus one-fourth of the remainder.


text:
    Ernest COLLINS v. STATE of Mississippi.
    No. 50557.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.

      Philip T. Dean, Billy J. Jordan, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., SUGG and BROOM, JJ., and LOGAN, Commissioner.
   FLOYD J. LOGAN, Commissioner for the Court:

Appellant, Ernest Collins, was indicted by the Lowndes County Grand Jury for the murder of his wife, Vieatrice. He was subsequently convicted of manslaughter in the Circuit Court of Lowndes County, Mississippi and sentenced to fifteen (15) years imprisonment with the Mississippi Department of Corrections.

Appellant assigns the following as error on his appeal to this Court:

1. The trial court erred in overruling appellant’s motion for a mistrial based upon the trial court’s exempting from the rule the State’s expert witness and denying appellant’s motion requiring the State to put the expert witness on the stand first.
2. Appellant urges the Court to abandon the M’Naughten Rule as to determination of criminal responsibility and to accept and adopt the rule of irresistible impulse stated in Parsons v. State, 81 Ala. 577, 2 So. 854 (1887).

The facts will be discussed as they relate to each assignment of error.

Assignment No. 1

Prior to the taking of testimony, the State moved the court to exempt Dr. Donald Guild, psychiatrist for the Mississippi State Hospital at Whitfield, from the rule of sequestration of witnesses from the courtroom. The State presented no grounds or basis for the motion. Appellant’s objection to the motion was overruled by the court. Appellant then made a motion for a mistrial which was overruled. Appellant’s counsel then moved the court to require Dr. Guild to testify first for the State since he was exempted from the rule. This motion was also summarily overruled by the court. Dr. Guild was eventually called as the final witness by the State in rebuttal. He apparently remained in the courtroom during the entire trial and heard all of the witnesses testify, including appellant’s experts on the issue of sanity. No objection to the testimony of Dr. Guild was made by appellant when he was called by the State.

The administration of the rule on the sequestration of witnesses has been held by this Court to be a procedural matter, the enforcement of which is within the sound discretion of the trial judge. Hollins v. State, 340 So.2d 438 (Miss.1976); Butler v. State, 320 So.2d 786 (Miss.1975). It is further recognized in this State that an expert witness may remain in the courtroom during the other witnesses’ testimony and base his opinion upon the prior testimony of other witnesses. Providence Washington Insurance Co. v. Weaver, 242 Miss. 141, 133 So.2d 635 (1961); Smith v. State, 95 Miss. 786, 49 So. 945 (1909). This method of presentation of expert witnesses’ testimony is especially useful in criminal cases where the defense is insanity. Generally, both sides offer lay witnesses who testify as to various actions of the defendant during his lifetime indicating sanity or insanity. Other experts also may testify as to facts or objective observations of the defendant which formed the basis of their opinions as to sanity or insanity. This testimony of other lay and expert witnesses is often helpful to the expert in forming his opinion. This method of presenting expert testimony is permissible providing the following rules are observed:

1. The jury must know on what facts the expert bases his opinion so that they may judge the value thereof.
2. The jury is also entitled to know whether the opinion is based on facts coming under the witness’ actual observation, or upon facts testified to by others.
3. The facts assumed by the expert must not be conflicting. 31 Am.Jr.2d, Expert and Opinion Evidence, §§ 39, 40 and 41 (1967); McCormick, Law of Evidence, § 14 Expert Testimony at p. 30-1 (1954); Prewitt v. State, 106 Miss. 82, 63 So. 330 (1913).

The expert witness may also base his opinion upon facts or observations made, by other experts, but not their inferences or conclusions. McCormick, supra.

In the state of the record, at the time the State made the motion to allow Dr. Guild to remain in the courtroom, there was nothing before the trial court to cause it to exclude him under the general rule. Although it would have been the better practice for the trial court to require the State to specify its reasons for requesting that Dr. Guild be exempted from the rule, the record does not demonstrate any error as a result of that failure. Appellant made no objection to Dr. Guild’s remaining in the courtroom when his psychiatric experts testified. An examination of Dr. Guild’s testimony demonstrates that he relied upon his observation, examination, and evaluation of the appellant, and not upon anything learned from appellant’s expert testimony. It cannot be said on the record before us that the trial judge abused his discretion in allowing Dr. Guild to remain in the courtroom during the other witnesses’ testimony.

Assignment No, 2

Appellant urges the Court to abandon the M’Naughten Rule as to the determination of criminal responsibility and to accept and adopt the Parsons Rule.

The facts relevant to this assignment are as follows: On May 21, 1976, appellant, 68 years of age, spent most of the day working in the sun in his garden along with his wife planting tomatoes. At approximately 7:00 p. m. that evening, the appellant and his wife were visited by Stanley and Elsie Mae Cherry, long-time friends. The two couples sat in the kitchen engaged in friendly conversation for approximately 20 minutes. At that time Mrs. Collins showed Mrs. Cherry a bruise on her leg. When Mrs. Cherry asked how it happened, Mrs. Collins said that Mr. Collins had struck her with a fence post. Appellant and his wife began to argue, and appellant stood up and told her, “I’m going to kill you.” He then went up the hallway toward the bedroom and obtained a single-barreled shotgun and loaded it. When appellant returned to the kitchen with the shotgun in hand, first Mr. Cherry and then Mrs. Cherry exited the house and watched through the window from outside. They observed appellant pointing the shotgun at Mrs. Collins’ stomach and heard Mrs. Collins call out, “Hon, Honey, don’t shoot me — Elsie, help me.” The sound of a shot and then Mrs. Collins’ body hitting the floor was heard. Appellant then came out of the house saying, “I did it, I did it, I did it.” Appellant then called his son-in-law, George Rose, and told him, “I killed her. Call the sheriff, call the ambulance.”

Mr. Cherry then assisted his wife, who had become ill, across the street to the home of Mrs. Zada Bailey to seek assistance. Upon telling Mrs. Bailey of the events at the Collins home, Mrs. Bailey called appellant on the phone. Appellant told Mrs. Bailey he had killed his wife. She asked if he needed help, and he replied that he had already called the sheriff and the ambulance.

Later, on the evening of May 21, appellant gave a full statement of the events surrounding the shooting to the Lowndes County Sheriff.

Both Mr. and Mrs. Cherry testified that two weeks prior to the shooting, appellant had stated to them that he was going to kill Mrs. Collins and himself.

Appellant testified at trial that he suffered from diabetes and hypertension and took insulin for the diabetes and other medication for his hypertension. He stated he could not remember the events of the night in question at the time of the trial.

Dr. Bernard H. Ellis, a practicing psychiatrist in Columbus, was called as an expert witness by appellant. He found appellant to be borderline mentally retarded with an I.Q. of 79, and a third grade education. Appellant told Dr. Ellis he had no recall of the events of the night in question. It was Dr. Ellis’ opinion that appellant was suffering from organic brain syndrome due to arteriosclerosis or hardening of the arteries. It was also his opinion that under stress or pressure appellant could act impulsively, very aggressively without forming any intent. From an examination of appellant, it was Dr. Ellis’ opinion that appellant did not understand the nature and qualities of his act and was unable to distinguish between right and wrong.

Dr. Carmen Simon, a psychiatrist with the Regional Mental Health Complex, was also called by appellant to testify. Appellant denied to him that he had any recollection of the events of the night in question, other than being questioned at the police station. Dr. Simon found appellant to be suffering from organic brain syndrome, secondary to aging or hardening of the arteries. It was Dr. Simon’s opinion, based on the examination of appellant, that at the time of the alleged offense he did not know the nature or quality of the act he was doing.

Dr. James Lane, III, a clinical psychologist, was called by appellant. He also diagnosed appellant as suffering from organic brain syndrome. Appellant also denied to him any recall of the events of the day in question after walking from the tomato patch to his house.

Dr. Donald Guild, director of Forensic Psychiatry at Mississippi State Hospital, Whitfield, Mississippi, was called in rebuttal for the State. Dr. Guild found appellant to be functioning at an eighth grade educational level. He did not diagnose any major mental disease or disorder in appellant. It was Dr. Guild’s opinion based on a reasonable medical certainty that appellant understood the nature and quality of his acts and knew the difference between right and wrong on May 21, 1976. It was his opinion that appellant was suffering from a mild organic brain syndrome affecting his memory and concentration.

In this second assignment of error, appellant urges the Court to abandon the M’Naughten Rule as to the determination of criminal responsibility and to adopt the irresistible impulse modification of the M’Naughten Rule set forth in Parsons v. State, 81 Ala. 577, 2 So. 854 (1887).

As the Court pointed out in Jones v. State, 288 So.2d 833 (Miss.1974), in an opinion by Justice Inzer:

Appellant’s first assignment of error is in reality not an assignment of error. Appellant does not charge that the trial court committed any error in regard to the instruction granted on the issue of insanity. Appellant admits that what he is striving for under this assignment is an opinion of this Court abandoning the M’Naughten rule, or at least to follow what he contends is the true M’Naughten rule. 288 So.2d at 834.

In Jones v. State, supra, the rule of Parsons v. State was urged upon the Court as the “true M’Naughten rule.” This position was rejected by the Court at this time.

Numerous onslaughts have been made upon the M’Naughten Rule, the most recent being repelled in the cases of Hill v. State, 339 So.2d 1382 (Miss.1976); Myrick v. State, 290 So.2d 259 (Miss.1974); Harvey v. State, 207 So.2d 108 (Miss.1968). The most recent case, Hill v. State, had a specially concurring opinion written by Justice Robertson and concurred in by Justices Patterson and Inzer, wherein it was recommended that Section 4.01 of the American Law Institute’s Model Penal Code (1962) be adopted in Mississippi. None of the recent opinions have espoused the Parsons rule, Harvey v. State, supra, merely referring to it as representing the “irresistible impulse” rule.

The rule of the Parsons case is as follows: [T]he inquiries to be submitted to the jury, then, in every criminal trial where the defense of insanity is interposed, are these: First, Was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?
Second, If such be' the ease, did he know right from wrong, as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
Third, If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur:
(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose betweén the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed;
(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely. (2 So. at 866-7).

The first and second paragraphs of the quoted portion of the Parsons case are basically the M’Naughten rule. Appellant’s expert testimony was that the organic brain syndrome from which he suffered could make him confused, disoriented and exercise poor judgment. Certainly if he was able to exercise any judgment at all, his free agency was not at the time destroyed. There are many people who exercise poor judgment who are not medically or legally insane.

It further cannot be said that the alleged crime was so connected with the organic brain syndrome “as to have been the product of it solely.” Appellant’s experts testified that the condition of appellant was intermittent with the poor judgment, confusion and disorientation being present during periods of stress. There was no evidence of any periods of deviant behavior either before or after the incident in question. Gravitating against the argument that the killing was the result of an irresistible impulse was the fact that two weeks prior to the killing, appellant told Mr. and Mrs. Cherry that he intended to kill his wife and himself. This testimony was uncontra-dicted. Earlier that day appellant had struck his wife with a fence post. The record further reflects that appellant and his wife argued prior to the shooting and that appellant was in a rage of anger.

Appellant testified and said he could not remember the acts in question. However, appellant’s statement given to the police officers the night in question stated that:

My wife and I were arguing and I got mad and she was mad. Both of us were crazy mad. My wife was in the kitchen and I went to the frute [sic] closet and I got my 20 ga. single shot, shotgun and went to the bedroom and got the shell and put it in the gun. I don’t remember if I got the gun or the shell first. I went back in the kitchen with the shotgun. I don’t remember if we said anything or not. She wasn’t sitting down so she must have sat down after I shot her. After I shot her, I called my son-in-law, George Rose, and I told him to call the Sheriff and ambulance. .

Appellant, in his statement, attributes the killing to anger and not the duress of any mental condition. The testimony supports the verdict. Implicit in the verdict is the finding that appellant knew the difference between right and wrong when he shot and killed his wife.

The jury was given an instruction which allowed them to find that appellant killed his wife in the heat of passion and without malice aforethought, and if so, to find him guilty of manslaughter. The jury so found, and the appellant has received this benefit from this defense.

For these foregoing reasons, this cause should be and is affirmed.

AFFIRMED.

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

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


author: LEE, Justice, for the Court:

text:
    STATE of Mississippi ex rel. Hubert W. SMITH, D. C., Chairman, Mississippi State Board of Chiropractic Examiners, Relators, v. Tom MORGAN.
    No. 50534.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.

      Abe A. Rotwein, Jackson, for appellant.
    Harry N. Rayburn, Jr., Jackson, for ap-pellees.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice, for the Court:

The State of Mississippi, by and through the Attorney General and on the relation of Hubert W. Smith, Chairman of the Mississippi State Board of Chiropractic Examiners, instituted a quo warranto action against Dr. Tom Morgan for the purpose of removing him from said Board, charging that Dr. Morgan is illegally sitting on the Board because he is a member of the Board of Trustees of a chiropractic college and/or a member of the faculty of such college in violation of the statute setting forth the qualifications of Board members. The matter was heard in the Circuit Court, First Judicial District of Hinds County, Honorable William F. Coleman, presiding, and the court found that Dr. Morgan was not sitting in violation of the statute, that he was qualified and should not be removed. The State and relator appealed from the judgment entered and assigned four errors in the trial below.

The appellant contends (1) the final judgment and opinion were wholly against the weight of the evidence, the lower court erred in its conclusions of law and its finding of fact and failed to follow the statute [Mississippi Code Annotated Section 73-6-3 (1972)]; and (2) the appellant made out a prima facie case for which relief should have been granted, and the burden rested with the respondent to prove his entitlement to be a member of the Mississippi State Board of Chiropractic Examiners, and he failed to meet the burden.

Appellee has practiced the chiropractic profession in Verona, Mississippi, for fifteen (15) years. There is no contention that he is not a qualified member of his profession. In 1973 the Legislature enacted a statute regulating the practice of chiropractic which act became effective April 16, 1973. Mississippi Code Annotated Section 73-6-3, (1972), as amended, being a part of Chapter 501, Miss.Gen.Laws (1973), of said act, provides the following:

“There is hereby created a state board of Chiropractic Examiners. This board shall consist of six (6) members; one (1) of whom shall be the Executive Officer of the State Board of Health or his desig-nee, and one (1) from each congressional district as presently constituted to be appointed by the Governor with the advice and consent of the Senate. Each member except the Executive Officer of the State Board of Health shall be a qualified elector of the State of Mississippi having been continuously engaged in the practice of chiropractic for at least two (2) years prior to appointment. No member shall be a stockholder in or member of the faculty or board of trustees of any school of chiropractic. Each member appointed to the board shall serve for five (5) years and until his successor is appointed and qualified; except the terms of the initial members appointed by the Governor shall expire one each for five (5) years or until their successors are appointed and qualified. Vacancies on the board, except for the Executive Officer of the State Board of Health or his designee, shall be filled by appointment of the Governor only for unexpired terms. No more than three (3) members of the board shall be members of either the Mississippi Society of Chiropractors or the Mississippi Chiropractic Association.” (Emphasis added)

The part of said act which directly pertains to this action is that emphasized here-inabove.

Appellee was familiar with the chiropractic act, he worked on same before its enactment and was helpful toward its passage. After the adoption of the legislation, appel-lee was appointed to the State Board of Chiropractic Examiners in 1973 and was confirmed by the Mississippi Senate. The appointment was for a period of five (5) years, his term to expire April 20, 1978.

Appellee was interested in an organization known as Life Foundation which was established as a non-profit organization for the purpose of promoting chiropractic research, education and goodwill. He joined Life Foundation in 1970, became a member of its Board of Trustees, and is still serving on that board. Life Chiropractic College in Atlanta, Georgia was founded and established largely because of the efforts of Life Foundation, which subleased a building to house the college. Life Chiropractic College is governed by a Board of Directors and an Advisory Board of Trustees, whose sole function was to advise with the Board of Directors. Life Foundation exercised no control over the college.

Life Chiropractic College was organized in September, 1974, and its first session convened in January, 1975. Prior to opening, a college bulletin was published, and the name of appellee as a “Member of the Board of Trustees” and a “Visiting Lecturer” appeared in same. Appellee was not advised that he was selected, or designated, on the college board of trustees and his first knowledge of same was when he received a bulletin from the college. Immediately, on February 5, 1975, he wrote to Dr. Sid E. Williams, President of Life Chiropractic College, that he appreciated the honor inviting him to become a member of the Board of Trustees, but that he was serving on the Mississippi State Board of Chiropractic Examiners for a five-year term, Mississippi law prohibited such members from serving on any chiropractic college board and that the letter was to be regarded as his resignation from said board. Dr. D. D. Humber, Chairman of the Board of Trustees of Life Chiropractic College, testified that the letter was received, that since appellee was designated as being on the Advisory Board only, it was not thought that any action was necessary on the letter and the same was placed in a personal file. In July of 1976, appellee wrote another letter to the college requesting that his resignation be accepted. That action was taken, and the fact of acceptance was entered on the minutes of the Board of Trustees.

The evidence is uncontradicted that ap-pellee knew the chiropractic act prohibited him from serving on the board of trustees or faculty of a chiropractic college, that when he learned of his name being designated as a member of the board of trustees he declined the invitation to serve in such capacity and requested that the letter be considered his resignation, that he never attended any meetings of the board of trustees of said college (he did attend one meeting of the Advisory Board) nor did he participate as a member of the faculty or deliver any lectures to classes. It is also uncon-tradicted that after Dr. Humber received appellee’s letter of February 5,1975, he was not considered to be a member of the Advisory Board of Trustees, although the bulletin, which had been printed previously, indicated him to be such a member and a visiting lecturer, and although appellee distributed copies of the bulletin without changing that information.

In those cases where the State is the relator instead of an individual claimant to the office, the burden of proof te upon the officeholder to prove his right and qualification for the office. State v. Land, 231 Miss. 529, 95 So.2d 764 (1957); Jones v. State, 207 Miss. 208, 42 So.2d 123 (1949).

The appellee proved by uncontra-dicted evidence that he did not violate the statute and that he was qualified to serve on the Board of Chiropractic Examiners. The great weight of the evidence sustains the judgment of the trial court. Shelton v. Kindred, 279 So.2d 642 (Miss.1973).

(3) Appellant next contends that the trial court erred in admitting in evidence the Attorney General’s opinion of April 26, 1977.

Dr. Hubert W. Smith convened the Mississippi State Board of Chiropractic Examiners for the purpose of considering the qualifications of appellee to serve on the board. Four (4) of the six (6) Board members were present, of whom two (2) voted that appellee was not qualified, and two (2) abstained. On October 13, 1976, Dr. Smith entered judgment for the Board which indicated that appellee had violated the chiropractic act, that he was disqualified from serving on the Board and that the Governor be requested to replace him.

Appellee called a meeting of the Board of Chiropractic Examiners for February 8, 1973, and four (4) members of the Board met at that time. (Dr. Smith was not present). The Board voted to rescind the judgment of October 13, 1976, hereinabove referred to. The petition for quo warranto was filed March 28, 1977. Subsequently, Dr. Smith obtained an opinion from the Attorney General of the State of Mississippi on April 26, 1977, as to the legality of the meeting which rescinded the October 13, 1976 judgment.

Mississippi Code Annotated Section 7-5-25 (1972) pertaining to opinions of the Attorney General, concludes with the following sentence: “No opinion shall be given or considered if said opinion is given after suit is filed or prosecution begun.”

Although appellant assigns as error the introduction of the opinion by appellee, in its brief, appellant states that “The appellants do not say that this opinion, in any way affects this lawsuit. . . The opinion was not relevant to the proceeding, but it was not prejudicial to appellant and constitutes harmless error. There is no merit in the assignment.

(4)Appellant last contends that its motion for a new trial should have been sustained on the' ground of newly-discovered evidence.

Appellant says that, after the trial, there was received a book entitled “Who’s Who in Chiropractic International — 1976-1978” wherein appellee’s name and biography appeared. In the biography, appellee was indicated to be a member of the Board of Directors, Life Foundation, Inc., and Board of Directors, Life Chiropractic College. Appellant further contends that this was material evidence and that a new trial should be granted in order to introduce same.

The procedure for obtaining a new trial on the ground of newly-discovered evidence is stated in Black v. Stone County Lumber Company, 216 Miss. 844, 63 So.2d 405 (1953). Among the requisites set forth, it must be shown that the new evidence would probably produce a different result, if a new trial were granted. Newly-discovered evidence which is merely cumulative or which tends to impeach a witness is not ground for a new trial. It is difficult to see how the introduction of the biographical sketch, even though it may have been forwarded to the publication by appellee, would result in a different judgment, if a new trial were granted. Also, such evidence would be merely cumulative of evidence already in the record. We are of the opinion that the trial court properly declined to sustain the motion for a new trial.

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

AFFIRMED.

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

      . Although appellee’s term expired April 20, 1978, his successor has not been appointed and he still serves on the Board.


text:
    In the Interest of Wendy RIVERS, a minor by Frances Rivers Ansley v. Larry RIVERS, W. D. Moore, Jr., County Prosecuting Attorney and Youth Counselor, Neshoba County Department of Public Welfare.
    No. 50753.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    James O. NEWMAN et ux. v. Johnny M. McKAY et ux.
    No. 50503.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Carr & Goodman, Dudley R. Carr, Tupelo, for appellants.
    Carnathan & Davidson, Douglas M. Wright, Tupelo, for appellees.
    Before SMITH, P. J., BROOM and LEE, JJ., and J. D. THAMES, Commissioner.
   AFFIRMED.


text:
    D. K. WALKER et ux., Maggie Sue J. Walker v. Marion HAMRICK.
    No. 50498.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    James B. Everett, Decatur, for appellants.
    John M. Sims, Heidelberg, for appellee.
    Before SMITH, P. J., BROOM and LEE, JJ., and J. D. THAMES, Commissioner.
   AFFIRMED.


text:
    Will MARSHALL et ux. v. SULLIVAN CONSTRUCTION COMPANY, INC., et al.
    No. 50782.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Rehearing Denied Aug. 23, 1978.

      Laurel G. Weir, Philadelphia, for appellants.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellees.
    Before WALKER, BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    Twymus FLEMING v. STATE of Mississippi.
    No. 50855.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Stephen S. Cooke, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    Hollis SWANINGTON v. STATE of Mississippi.
    No. 50735.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Guy & Dowdy, William S. Guy, McComb, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    McKinley NELSON, Jr. v. STATE of Mississippi.
    No. 50580.
    Supreme Court of Mississippi.
    Aug. 9, 1978.

      Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and GOFER, JJ.
   SUGG, Justice, for the Court:

This appeal is from a conviction of aggravated assault and a judgment of the Circuit Court of Leflore County sentencing defendant to six years imprisonment, with four years suspended.

On November 13,1976, the defendant and Willie C. Green, while at a local nightspot in Morgan City, Mississippi, engaged in a short argument. A shoving match ensued, during which the defendant removed a .22 caliber pistol from his pocket and shot Green in the shoulder.

Defendant contends that the pistol accidentally discharged and his only purpose in drawing the pistol was to ward off Green. The defendant is pictured .as an 18-year-old youth who foolishly and unwisely exhibited a deadly weapon during an altercation which subsequently discharged wounding his adversary. As such, the defendant submits his conduct was an act of simple negligence rather than conduct prohibited by subsection 2(a) of section 97-3-7 Mississippi Code Annotated (1972). The facts of this case require us to define the acts proscribed by the statute and which constitute aggravated assault. The statute provides:

A person is guilty of aggravated assault if he . . . causes such injury . recklessly under circumstances manifesting extreme indifference to the value of human life.

We hold these words are analogous to our definition of culpable negligence in homicide cases set forth in Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945) as follows:

[Cjulpable negligence should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful (sic) creation of an unreasonable risk thereof. (197 Miss. at 817, 20 So.2d at 705).

Bruce v. State, 349 So.2d 1068 (Miss.1977) involved the killing of a human being in a game of Russian Roulette. In affirming the conviction we stated:

In Jernigan v. State, 305 So.2d 353 (Miss.1974), a murder trial where the defendant claimed accidental discharge of a gun and a manslaughter verdict was returned, we stated, in holding that a fact question for determination on culpable negligence was presented for the jury, the following:
The evidence in this case establishes that defendant pointed a loaded gun at Clarence Bowers, and that the gun discharged, killing Bowers. Defendant’s actions unequivocally show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk. The evidence overwhelmingly supports the jury’s verdict of manslaughter. See Frazier v. State, 289 So.2d 690 (Miss.1974); Campbell v. State, 285 So.2d 891 (Miss.1973); Gant v. State, 244 So.2d 18 (Miss.1971). In Robertson v. State, 153 Miss. 770, 121 So. 492 (1928) this Court stated:
If the pointing of a loaded pistol at a human being is not culpable negligence under the above definition, then it would be difficult for the mind of mortal man to conceive of stronger facts which would constitute such negligence. (153 Miss. at 776, 121 So. at 493). [305 So.2d at 354], (349 So.2d at 1070, 1071).

In our case the evidence shows that Green stepped on defendant’s foot and, after a short argument, defendant invited Green to go outside with him. Once outside a pushing match ensued and ended when the defendant pulled his pistol and shot Green. Regardless of what defendant intended when he pulled the pistol and pointed it at Green, his act of pointing a loaded pistol at Green manifested an extreme indifference to the value of human life, and clearly brings the act of defendant within the statutory crime of aggravated assault.

AFFIRMED.

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

      . Followed in Jolly v. State, 269 So.2d 650 (Miss.1972).


text:
    Roscoe Gene NEIGHBORS v. STATE of Mississippi.
    No. 50197.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Caldwell, Lee, Richardson & Vance, L. Joe Lee, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice, for the Court:

The defendant, Roscoe Gene Neighbors, was convicted of murder and sentenced to life imprisonment by the Circuit Court of the First Judicial District of Hinds County. The primary question for decision is whether the homicide constituted murder or manslaughter.

The indictment charging defendant with murder was drawn under the provisions of section 99-7-37 Mississippi Code Annotated (1972) which provides in part the following:

In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloni-ously, wilfully, and of his malice aforethought, kill and murder the deceased.

The indictment charged defendant with murder in the following language:

That Roscoe Gene Neighbors in said District, County and State on the 20th day of September, A.D., 1976 did then and there wilfully, unlawfully, feloniously and of his malice aforethought kill and murder Mary Anne Azevedo, .

In Carroll v. State, 183 Miss. 1, 183 So. 703 (1938) we held that section 99-7-37 covers all homicides, both statutory and at common law, and under an indictment drawn in accordance with the statute any facts that evidence murder or manslaughter may be introduced. In Sessums v. State, 221 So.2d 368 (Miss.1969) we held that an indictment for a homicide does not have to set forth the manner in which, or the means by which, the death of deceased was caused, but it is sufficient to charge murder in the language of the statute, whether it was a premeditated killing or a homicide resulting from the commission of the crime of arson. In Sessums we held that the state’s instructions could properly set forth both theories of murder and reaffirmed the holding of Carroll, supra, that any facts which evidence murder or manslaughter may be introduced.

Mrs. Azevedo, the mother of four-year-old Mary Anne Azevedo, testified that she, defendant, and her children moved to Jackson from Bakersfield, California about three months before the fatal beating of Mary Anne. She testified that for the two weeks preceding the death of Mary Anne she had asked the defendant not to strike Mary Anne and that she was going to leave him if he did not stop hitting the child. She further testified that on the night of Mary Anne’s death she was outside hanging clothes about 8:30 or 9:00 o’clock p. m. Mary Anne came out of the house crying and told her mother that “Daddy had kicked her in the stomach.” The defendant came out of the house and shortly all three went back inside the house. She saw defendant double up his fist and shove Mary Anne because, “she had messed in her pants.” Mrs. Azevedo went into the kitchen and when she returned to the bedroom about twenty minutes later she saw Mary Anne lying on the floor unconscious with the defendant bending over her. The child died two or three hours later.

An autopsy was performed by Dr. Forrest G. Bratley, a pathologist, who testified as follows:

There were numerous bruises of the body, face, chest, legs and arms. Some of them recent. By that, I mean within two or three days and others that were a week or so of age and this was on external examination.

In discussing the two most important considerations as to the cause of death, Dr. Bratley testified:

One is the hemorrhage into the cranial cavity, pressing on the brain. I might add that this hemorrhage is due to a blow on the head, either a person falling or a blow actually delivered to the head, which causes the brain to you might say shake or go from one side of the head cavity, cranial cavity to the other and causes rupture of small blood vessels, veins and arteries and this is the source of that hemorrhage.
A. Well, there were bruises over, well, almost any part of the body, the buttock and the back and the chest and the head, arms and legs.
Q. Did you find a very recent hemorrhage other than in the head or cranial area?
A. Well, the recent hemorrhage is the one inside the abdominal cavity, on the surface of the intestine and in the mesen-tery, this membrane which carries the blood vessels to and from the back part of the abdominal cavity to the intestines. This was a recent hemorrhage and would have to be due to a good, heavy blow to the abdomen.
Q. All right. So then in your opinion, you found a recent blow to the stomach, found a recent blow to the right side of the head and numerous other older bruises or blows, is that correct?
A. That’s correct.
A. I can state that the death is due to either a combination of or to either one of two things. One is the hemorrhage in the cranial cavity pressing on the brain, which would cause pressure on the vital centers and cause death or it could be from the aspiration of the gastric content into the air passageways and thereby obstructing the flow of air into the lungs. It could be that either one of those were sufficient, in my findings, to cause death, and the combination of them could very readily be the cause of death, but the— the chain of events is the hemorrhage into the cranial cavity, which in turn produced nausea and vomiting.
Q. In either event, it would be from external blows, is that correct?
A. External blows, yes, sir.

The question for decision is whether the evidence is sufficient to support the verdict finding defendant guilty of murder. Section 97-3-19 Mississippi Code Annotated (Supp.1977) provides in part the following:

(1) The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.

We hold that the proof was sufficient to support a conviction of murder under subsection (b) of section 97-3-19. The defendant, who is an adult, kicked the defenseless four-year-old child in the stomach hard enough to cause hemorrhages inside her abdominal cavity, on the surface of the intestine, and in the mesentery, and in addition, delivered a blow to her head hard enough to jostle her brain and cause a massive hemorrhage inside her cranial cavity. The defendant was guilty of murder because he killed the child by striking her, and this was “done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life ...”

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Willie James HOLT v. STATE of Alabama.
    SC 2792.
    Supreme Court of Alabama.
    March 31, 1978.
    John L. Cole, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State of Alabama.
   FAULKNER, Justice.

Holt appeals from the Jefferson County Circuit Court’s judgment of paternity under Tit. 27, § 12(1), et seq., Code of Ala. (1973 Supp.) The appeal is dismissed.

After entering a plea of guilty to the charge of paternity in Family Court, Holt appealed de novo to the Circuit Court and was given a jury trial. He was once again found guilty of paternity and appeals from that judgment. The State filed a motion to dismiss the appeal on the grounds of untimely appeal and inadequate bond.

TIMELINESS OF APPEAL

The jury verdict of paternity and judgment rendered in accordance therewith was entered on May 11, 1977. Holt’s motion for new trial, filed on June 1, was overruled on July 5. On August 12 (38 days later) Holt filed notice of appeal.

Under ARAP 4, notice of appeal must be filed within 42 days. However, Tit. 27, § 12(7), Code of Ala. (1973 Supp.) allows only 30 days for filing notice of appeal from the Circuit Court’s judgment in a paternity proceeding. The State argues that Tit. 27, § 12(7) is controlling. We do not agree.

Although § 12(7) was not explicitly modified or superseded by ARAP 4, see Alabama Rules of Appellate Procedure, Appendix II, Statutes and Rules Superseded, and Appendix III, Statutes Modified, “[t]he time within which review of a lower court decision may be sought is procedural” and, therefore, controlled by ARAP 4. Strickland v. National Gypsum Co., 348 So.2d 496, 497 (Ala.Sup.Ct.1976). Cf. Alabama Power Co. v. Hamilton, 342 So.2d 8 (Ala.Sup.Ct.1977). Holt’s notice of appeal was timely filed.

SUFFICIENCY OF BOND

On July 28, 1977, Holt procured a bond denominated as an “Appeal Bond — Hard Labor Sentence” in the amount of $2,500. It was filed with and approved by the clerk of the Circuit Court on August 12.

The bond states:

“KNOW ALL MEN BY THESE PRESENTS, That we Willie James Holt principal, and A-Bonding Co. Inc. as sureties, are held and firmly bound unto the State of Alabama in the sum of Two Thousand Five Hundred ($2,500.00) Dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents; and we and each of us waive our rights of exemption under the Constitution and laws of the State of Alabama as against this bond.
“THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That whereas, the above bounden Willie James Holt was on the-day of May, 1977, convicted in the Circuit Court of Jefferson County, Alabama, for the offense of parenting an illegitimate child and had assessed against him a fine of One Hundred and no/100 ($100.00) Dollars, per month for child support together with the cost of this prosecution, . . . and as additional punishment imposed the defendant was sentenced to pay all back child support, from which sentence the said Willie James Holt has this day prayed and obtained an appeal to the Court of Appeals of Alabama.
“NOW IF THE SAID Willie James Holt shall appear and abide such judgment as may be rendered by the Court of Appeals, and if the judgment of conviction is affirmed, or the appeal is dismissed, the said Willie James Holt shall surrender himself to the Sheriff of Jefferson County, at the County Jail, within fifteen days from the date of such affirmation or dismissal, then this obligation to be null and void, otherwise to remain in full force and effect.
“Given under our hands and seals, this the 28th day of July, 1977.
“Willie James Holt (L. S.)
“A-Bonding Co. Inc. (L. S.)
“By Wendell P. Dowdy Pres. (L. S.)”

The State’s challenge to the sufficiency of the bond was rejected by the Circuit Court, and the State now renews its objection to the bond. The State claims the bond is insufficient to meet the requirement of an appeal bond under Tit. 27, § 12(7), Code of Ala. (1974 Supp.) which provides, inter alia:

“ . . .if the appeal is taken by the reputed father, he must give security for the cost of appeal, to be approved by the clerk of the circuit court who shall certify the names of sureties, together with the record, to the appelate [appellate] court, if the judgment of the circuit is affirmed.”

See also ARAP 7.

Although security for costs of appeal is not jurisdictional, “[t]he failure to file such security would be the subject of appropriate action upon notice on motion or notice by the court itself.” ARAP 7, Committee Comments.

In Ralston Purina Co. v. Pierce, 265 Ala. 365, 367, 90 So.2d 922, 924 (1956), the court dismissed the appeal unconditionally because “ . . . good and sufficient security for costs of appeal was not filed prior to submission on the merits, and no order of this court was obtained prior to such submission to permit the subsequent filing of security for costs . . . ” Carr v. Samuels, 285 Ala. 170, 229 So.2d 920 (1969). The State’s motion to dismiss the appeal was filed in this court on November 10, 1977 and served on appellant’s attorney by mail on the same date. The case was submitted on March 15, 1978. During this time, appellant’s only response to the motion came during oral arguments before this court, and even then appellant’s attorney made no effort to obtain the court’s permission for a subsequent filing of security for costs in the event we should find the original bond defective. The appeal must be dismissed.

APPEAL DISMISSED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

      . Section 26-12-9, Code of Ala. 1975, has extended the time for filing notice of appeal in such a case to 42 days. This extension, however, did not become effective until October 31, 1977.


author: BEATTY, Justice. MADDOX, Justice

text:
    Mary K. BYARS v. BAPTIST MEDICAL CENTERS, INC.
    77-88.
    Supreme Court of Alabama.
    June 9, 1978.
    Rehearing Denied Aug. 4, 1978.

      Lanny S. Vines and Donald G. Beebe of Emond & Vines, Birmingham, for appellant.
    Larry W. Harper of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellee.
   BEATTY, Justice.

The plaintiff appeals from a summary judgment for the defendant. We reverse and remand.

On June 23,1971 the plaintiff, Mrs. Mary K. Byars, filed her complaint against the Baptist Medical Centers, Inc., the pertinent portions of which follow:

Plaintiff claims of the defendants the sum of Five Hundred Thousand Dollars ($500,000.00) as damages, for that, to-wit, eighteen years prior to June 21,1971, the plaintiff was a registered nurse, working through the Nurses Official Registry, District One of The Alabama State Nurses. Association. Plaintiff avers that the said Association through which she works assigns registered nurses to patient cases in the Birmingham, Alabama area whenever the patient or hospital or doctor requires or requests private duty nursing care. Plaintiff avers that the registered nurses working through the Nurses Official Registry are assigned to patient cases in various hospitals in the Birmingham, Alabama area on a preferential basis. When patients in hospitals located in the Birmingham, Alabama area wish private duty nursing care and contact the Nurses Official Registry, a registered nurse working through said Registry is given a preference or first right of refusal to that particular patient case if said nurse graduated from a nursing school sponsored by that particular hospital. Plaintiff avers that she is a graduate of The Baptist Hospitals Nursing School. Plaintiff avers that due to said preference, she has worked almost exclusively in The Baptist Medical Center — Montclair, from the date it opened, to-wit, December, 1966, until June 21, 1971.
Plaintiff avers that on August 19,1968, while she was engaged as a private duty nurse on the premises of The Baptist Medical Center — Montclair, a corporation, plaintiff slipped in some slippery substance that was being placed on the halls and corridors of said hospital. Plaintiff avers that as a result of said slip, she was seriously and permanently injured. Plaintiff avers that sometime thereafter, she filed a suit against the said hospitals, claiming that they had been negligent or careless in not maintaining their hallways in a reasonably safe condition for use by nurses and other business invitees. . Plaintiff avers that on June 17, 1971, pursuant to said trial, a jury rendered a verdict in favor of the plaintiff, Mary K. Byars, and against the defendant Baptist Medical Center — Montclair, a corporation, in the amount of Twenty Thousand Dollars ($20,000.00).
Plaintiff avers that the following Monday morning, she informed the Nurses Official Registry that she was ready, willing and able to take assignment of cases since she was now out of court. On this date, June 21, 1971, the plaintiff was informed by Corinne McDonald, who is the Director of the Nurses Official Registry, District One of The Alabama State Nurses Association, that The Baptist Medical Centers — Montclair and Princeton were refusing to allow Mrs. Byars to work in either of said hospitals. Plaintiff avers that the said defendant hospitals willfully, maliciously and wrongfully interfered with plaintiff’s employment, trade or calling as a registered nurse in that said defendants prevented and continue to prevent plaintiff from going to either of said hospitals and rendering private duty nursing care to patients in said hospitals.
Plaintiff avers that the refusal by both of the said defendants to allow plaintiff to come upon their premises and engage in her employment in rendering private duty nursing care to patients in said hospitals is malicious, willful, and wrongful and is a direct result of the aforesaid lawsuit in which the plaintiff Mrs. Byars obtained a- verdict in the amount of Twenty Thousand Dollars ($20,000.00) against The Baptist Medical Center— Montclair, a corporation.
Plaintiff avers that as a proximate result of the said defendants wrongfully, willfully and maliciously interfering with plaintiff’s employment, trade or calling as a registered nurse, plaintiff has been injured and damaged in that plaintiff has been caused to lose time from her work and to lose earnings from her said employment and plaintiff will be caused in the future to lose much time from her work and to lose large sums of money in the nature of earnings from her said employment which she would have received had she not been prevented, as aforesaid, from going to the said defendants’ hospitals and engaging in her profession. .

In his order granting summary judgment against Mrs. Byars, the trial court emphasized certain facts contained in depositions:

1. That the physician who appeared on her behalf in the earlier action testified that she had sustained a twenty-five per cent permanent partial back injury, and that the injury disabled her;

2. That Mr. Houtz, the administrator of Baptist Medical Center — Montclair (whose decision it was to bar Mrs. Byars from practicing private duty nursing in the hospitals) testified that Mrs. Byars had undergone a laminectomy, was experiencing “female problems,” and was very obese;

3. That the defendant’s position not to have the Nurses Registry send Mrs. Byars on private duty to the Baptist Medical Centers was because (in the opinion of Mr. Houtz) the plaintiff’s disability rendered her unable to properly care for patients.

Citing Moore v. Andalusia Hospital, Inc., 284 Ala. 259, 224 So.2d 617 (1969) and Harper v. Baptist Medical Center—Princeton, 341 So.2d 133 (Ala.1976) as authority, the trial court concluded that as a private hospital (sic), the defendant might deny to the plaintiff the right to practice private duty nursing in its facilities.

The threshold issue on this appeal is whether the defendant may lawfully cause the plaintiff not to be referred by the Nurses Registry to patients being treated in the defendant’s facilities who have need of private nursing care.

It appears that the earliest case in which our Court has recognized a malicious interference with a contract right as a justicia-ble claim was Tennessee Coal, Iron & Ry. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909). There the plaintiff had been employed as a carpenter by a partnership operating a sawmill upon the defendant’s land. In certain correspondence with the plaintiff’s employer the defendant made accusations which, he alleged, procured his discharge from the partnership’s employ. In his action against the defendant the plaintiff claimed damages for wrongfully procuring his discharge and for libel. A judgment for the plaintiff was reversed on other grounds; however this Court recognized the plaintiff’s cause of action for the interference:

If the defendant without any lawful right, or by threats made not in the exercise of a lawful right, broke up the contractual relations existing between plaintiff and his employers, although such relations could have been terminated at the pleasure of his employers, with resultant damage to plaintiff, the defendant would be liable to him for the damages thus occasioned. .
One of the rights incident to many, if not all, contracts is to be protected from malicious interference. A contract between master and servant is one of these contracts, though the contract of employment be at will, and though the master be free from liability in discharging the servant; yet if the discharge were wrongfully or maliciously procured by a third party, such third party is liable to the servant, and the motive with which the discharge was procured may, . determine the liability vel non, as well as go to the amount of damages. .
It is a violation of a legal right to interfere with contractual relations recognized by law, if there be no sufficient justification or excuse for so doing. Losses thus willfully caused by another, from motives of malice, to one who seeks to exercise and enjoy the fruits and advantages of his own labor, or skill, will sustain an action. .

It is readily observable that Kelly and the principles it enunciated involved a situation in which employment existed. That is, the case did not involve a situation in which the defendant was alleged to have interfered with employment opportunities. One of the cases cited for the last paragraph quoted above, however, Curran v. Galen, 152 N.Y. 33, 46 N.E. 297 (1897), recognized that a cause of action might arise when one was prevented from obtaining employment as well as from taking away one’s means of earning a livelihood by procuring his discharge from employment. That was the principle also applied in Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 205 N.W. 630 (1925). There a commission salesman brought an action against a stockyards company for preventing him from obtaining employment as a yard salesman with commission firms doing business at the yards. Citing the legal principle that “one who has been prevented from securing employment by reason of the wrongful and malicious interference of another may recover damages from the wrongdoer,” that court added:

It being the law that a man who has employment and is discharged by his employer solely by reason of the wrongful interference of another, sustains an injury for which the intermeddler is liable, it follows logically that a man who is prevented from obtaining employment by the wrongful interference of another may also recover damages from the intermed-dler. There is no substantial difference between the loss of employment and the inability to secure employment when each is caused by the wrongful interference of a third person, for in each case the person injured is prevented from enjoying the fruits of his labor. 205 N.W. at 631.

The Minnesota Court characterized as a property right the means of gaining a livelihood, and recognized that an action would lie for a wrongful or malicious interference with that right, citing our own case of U. S. Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732 (1921).

The Millonas case, like Kelly, supra, concerned an interference by a third party with existing employment for which this Court allowed a recovery. The cases of Hill Grocery Co. v. Carroll, 223 Ala. 376, 136 So. 789 (1931); Evans v. Swaim, 245 Ala. 641, 18 So.2d 400 (1944), and Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962) are to the same effect. We have not been cited to nor has our research disclosed an Alabama case which deals with a wrongful interference with prospective, as opposed to existing, employment. We agree with the reasoning expressed in Carnes, supra, however that no substantial difference exists between wrongfully causing a loss of employment and wrongfully causing an inability to secure employment. In either case one is prevented from enjoying the benefits of the property right to earn a livelihood.

The cases relied upon by the defendant do not militate against the application of this principle to these facts. Messer v. City of Birmingham, 243 Ala. 520, 10 So.2d 760 (1942) and Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973) are cited for the proposition that a license is a personal privilege to do an act upon another’s land, and constituting such a character it is revocable at will by the landowner. Transposed to the facts of this case, the defendant argues that this principle would have allowed the hospital to deny to Mrs. Byars access to its facilities. Moreover, the defendant analogizes these facts to those contained in Hinrichs v. Tranquilare Hospital, 352 So.2d 1130 (Ala.1977). In the latter case this Court held that an employer might legally terminate an employee under a contract at will even though the employer’s motives for such action were bad.

But this is not a case wherein Mrs. Byars is merely attempting to assert property rights in the premises of the defendant. Indeed, that argument, if ever asserted, has never prevailed in cases of this kind in which the cause of action sounds in tort for the alleged wrongful interference with the right to earn a livelihood rather than in an interference with an alleged interest in land. This is not a case in which Mrs. Byars was a person whose relationship as a user of the hospital premises was solely with the defendant. . Her relationship to the defendant was based upon her membership in the Registry and through it to her prospective service to patients, and it is the defendant’s alleged interference with that relationship, rather than any interference with proprietary rights, which is the gravamen of her action, even though, of course, that alleged interference ultimately would result in the denial of her use of the defendant’s premises to pursue her employment with patients confined in those premises. The Messer and Camp decisions, therefore, are inapplicable here.

Likewise, Hinrichs and Advance Industrial Security, Inc. v. Wm. J. Burns Int'l. Detective Agency, Inc., 377 F.2d 236 (5 Cir. 1967) is inappropriate. This is not a case of an employer terminating an employee under a contract at will. Nothing contained in the Hinrichs'decision obviated consideration of a third party’s interference with prospective employment. In Advance, supra, the court was dealing with the allegation of an employment contract in being which was void, not with prospective employment contracts. That is a sufficient response, as well, to the citation of Twine v. Liberty National Life Ins. Co., 294 Ala. 43, 311 So.2d 299 (1975) which recites the general rule that a stranger to a contract cannot maintain an action for its breach, for as we have stated, the cause of action in question here sounds in tort rather than in contract.

Moore v. Andalusia Hospital, Inc., supra, upon which the trial court relied, is, perhaps, a closer analogy, but neither its facts nor the legal principle applicable to its facts furnish the solution to this case. In Moore, a private hospital corporation refused to allow a practicing physician the privilege of serving on its medical staff and thus denied his patients the use of the hospital. This Court upheld the right of the corporation’s action:

Being a private corporation, the appointment of members of the medical staff was solely within the discretion of the Board of Directors, and the refusal of the Board of Directors to appoint a particular physician or surgeon to the medical staff of the hospital is not subject to judicial review. . . . 284 Ala. at 262, 224 So.2d at 619.

The distinction between Moore and the present case is obvious. Mrs. Byars has based her action upon the defendant’s refusal to allow the Nurses Registry to place her in the employ of patients who have expressed the desire to employ a private nurse. Mrs. Byars’ employment relationship, in any such instances, would be with the assent of the patient whom she served, even at the patient’s will, but not with the hospital. What this Court decided in Moore was that a private hospital possessed the discretion not to enter into a continuing professional relationship with a physician. The opinion did not deal with whether or not a patient admitted to such a hospital has the right to contractually engage the services of a private duty nurse who is professionally qualified to serve in that capacity.

The trial court also relied upon Harper v. Baptist Medical Center—Princeton, supra, because “a patient may be denied the right to be admitted by a private hospital.” Whether that is a universally accepted proposition of law we need not decide. It is clear in any case that such a principle was not in issue in Harper, for the opinion proceeded upon the factual premise that the plaintiff was not accepted, and his not having been accepted, the opinion dealt with the duty owed to him when he was not a patient. Had Harper dealt with the rights of one who has been admitted as a patient, such as the right to employ a private duty nurse of the patient’s choosing, then it would be authority in the instant case. Because it did not involve any such facts, it cannot control the issue here.

Summary judgment is proper only in the absence of a genuine issue of material fact. First Nat. Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977); Rule 56(e), ARCP; 6 Moore’s Fed. Prac., par. 56.15 (2nd ed. 1971). In this case the plaintiff has alleged that the defendant’s conduct against her was prompted by her recovery of a money judgment against it. The defendant maintains that its refusal to allow her to serve patients in its hospitals was due to her physical inability to serve patients. The record as a whole contains evidence supporting the inference that the defendant’s conduct resulted solely from the exercise by the plaintiff of her legal right to seek recompense for negligent injury. She testified by deposition that she went back to work when her doctor released her following that injury, and that the injuries she had received in her earlier fall did not affect her ability to perform her nursing duties. “I performed my duties exactly after my surgery as I did before,” she stated, although she did have some periodic pain which got better, and she had very little pain in her back. Between the time she began working again after her accident and the time she was barred from the Medical Centers she worked exclusively at the Medical Center-Montclair. The evidence shows that following her doctor’s release she was allowed to practice her profession in the Center until four days after the jury verdict in her favor.

Her position is supported by the deposition of Mr. Robert Schooley for whom the plaintiff was a special nurse at Baptist-Montclair hospital in 1972 (after her accident) for approximately one week. He observed nothing physical which prevented her from performing her duties as a nurse, although he did not notice whether she was required to pick up anything that had weight to it. Mrs. Schooley also testified by deposition. Recovering from a hysterectomy performed at Baptist-Montclair hospital in 1970 (after Mrs. Byars’ accident) she had private nurses twenty-four hours each day for two and a half weeks. Mrs. Byars was one of these and worked the 7:00 to 3:00 shift seven days a week for that period. She was not ambulatory during the first part of her recovery, but never noticed that Mrs. Byars had any physical problems while ministering to her.

For the defendant, Mr. Duane Houtz deposed that he was a witness in the trial of the case brought by Mrs. Byars against Baptist Medical Center. Following the com elusion of the Byars’ case, Mrs. Bishop, the Director of Nursing, informed him that she had received a communication from the [Nurses] Registry in regard to Mrs. Byars’ desire to do nursing work, and he advised her that it would not be in the best interest of the patient, based upon his week of observing Mrs. Byars at the trial, and in view of her disability. Indeed, he testified that his “primary decision was based upon seeing her physical condition at the time of the trial,” although he acknowledged having received complaints about her talkativeness, her claim to have a twenty-five per cent disability, her overweight condition, and her difficult working relationship with the staff. In making his decision not to allow the plaintiff access to the Center’s patients he did not check with any of the doctors for whose patients she was a special nurse, nor did he ever have any complaints from any of those doctors.

When the trial court granted summary judgment in favor of the defendant, the effect of his judgment was to pronounce that the defendant was entitled to bar the plaintiff from serving the Center’s patients as a matter of law. But the defendant’s right to interpose with the Nurses Registry to preclude the plaintiff’s prospective service was not absolute. As this Court stated in Kelly, supra :

If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent does not give ... a right of action

Under this test, if the defendant’s act was not illegal, but wrongful and malicious as the plaintiff claims, a cause of action for wrongful interference would lie. If it is true that the defendant’s conduct was based upon a negative assessment of the plaintiff’s physical ability to perform her nursing duties, the defendant’s conduct would not be actionable, for the hospital would have a legal right to establish, publish and apply reasonable standards of fitness, including physical fitness, for private duty nurses. If, on the other hand, the defendant’s conduct was based upon the successful exercise by the plaintiff of her legal right to seek redress in the courts for injury due to the defendant’s negligence, that conduct would not justify the interference with plaintiff’s future employment opportunities with defendant’s patients, but would violate her right as one qualified under the Nurses Registry to be referred to patients seeking her services. Under the pleadings and the evidence, whether or not the defendant’s conduct was legal in itself and violated no right of the plaintiff was a genuine issue of material fact, therefore summary judgment was inappropriate. For this reason that judgment must be reversed and the cause remanded, and it is so ordered.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and BLOODWORTH and MADDOX, JJ., concur specially.

MADDOX, Justice

(concurring specially).

I concur in the result reached because the grant of summary judgment was inappropriate. The movant failed to meet the burden of showing that the plaintiff could prove no set of facts in support of her claim which would entitle her to relief. Watwood v. R. R. Dawson Bridge Co., Inc., 293 Ala. 578, 307 So.2d 692 (1975). Summary judgments are rarely appropriate in tort actions.

TORBERT, C. J., and BLOODWORTH, J., concur.