author: BROOM, Justice:

text:
    NORTH MISSISSIPPI MEDICAL CENTER, and United States Fidelity & Guaranty Co. v. Vivian Veneil HENTON.
    No. 48107.
    Supreme Court of Mississippi.
    July 7, 1975.
    Scribner, Brewer & Soper, Tupelo, for appellants.
    William S. Lawson, Tupelo, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice:

The Medical Center, employer, and its carrier, United States Fidelity & Guaranty Company, appeal from a judgment of the Lee County Circuit Court. The judgment reversed an order of the Mississippi Workmen’s Compensation Commission and reinstated the attorney referee’s order, dated April 24, 1973, awarding Workmen’s Compensation benefits to Vivian Venell Hen-ton. We reverse.

The chief issue is: Was there sufficient evidence of a change in conditions to warrant the reopening of the case and the issuance of a new compensation award?

Appellee, claimant, Vivian Venell Hen-ton, filed an application for Workmen’s Compensation benefits against the appellants on August 20, 1971. In her application she claimed that on December 21, 1970, she was employed by North Mississippi Medical Center, and while working as a nurses’ aide (transferring a patient from a bed to a stretcher) suffered a ruptured disc. Responding to the claimant’s application, appellants denied that the claimant sustained any permanent disability, and averred that the claimant’s disability, if any, was due, solely, to a preexisting condition or, in the alternative, that the preexisting condition was a material contributing factor to the disability alleged.

A hearing was held and medical testimony was received that the appellee (claimant) had sustained back injuries and had a fifteen percent permanent partial disability. According to the order of the attorney referee, dated April 26, 1972, appellants were ordered to pay appellee temporary total disability compensation for the period of January 13, 1971, to March 28, 1971. No award for permanent disability was allowed because no loss of wage earning capacity was shown “as a result of her said injury,” although permanent, partial disability was, according to the attorney referee’s finding, established by the medical evidence. Upon appellee’s petition, the commission reviewed and affirmed the order of the attorney referee, and no appeal was taken from the final order of the commission.

On February 1, 1973, the appellee (claimant) filed a petition with the Workmen’s Compensation Commission to reopen on the ground of change in conditions, pursuant to Mississippi Code Annotated section 71-3-53 (1972), often referred to as section 21 of the Mississippi Workmen’s Compensation Act. In her petition to reopen, she alleged that at the previous hearing testimony was received that her job at the North Mississippi Medical Center was open to her, and that after the hearing her application for resumption of her employment with the Medical Center was refused. She also alleged that she is unable to obtain any employment commensurate with her work experience, education, and training, because of her history of back surgery. The appellants’ answer to the petition generally denied the allegations of the petition, and stated that there had not been any material change of conditions since the date of the Workmen’s Compensation order.

At a hearing on the petition to reopen, several lay witnesses (including, appellee) testified in appellee’s behalf regarding the type of work required to be performed by a nurses’ aide. It was shown that the ap-pellee had called regarding job applications at various places of potential employment, and she was told that her position at the Medical Center was no longer open to her for immediate employment.

An order requiring the payment of compensation for permanent partial disability was issued by the attorney referee. The appellants petitioned the commission for review of the attorney referee’s order and the appellee cross-appealed alleging that the attorney referee erred in not awarding her total disability benefits. The commission overruled the attorney referee, and held that there was no error in the determination of fact in the attorney referee’s original order, dated April 26, 1972. It further held that there had not been any change in conditions subsequent to the attorney referee’s order. The appellee (claimant) appealed the order of the Workmen’s 'Compensation Commission to the circuit court, which reversed the Workmen’s Compensation Commission and reinstated the order of the attorney referee, dated April 24, 1973.

I.

Appellants contend that there was not sufficient proof of a change in conditions to warrant the circuit court’s reversal of the commission’s findings denying the ap-pellee’s claim to benefits in her petition to reopen. The commission’s order held that a change of conditions must be supported by an actual physical change in the condition of the injured employee, and that the term was not intended to include “merely a change in the employment status or change in position of the employer as to the disability or value of the continued employment of the injured employee.” The circuit court, in its reversal of the commission’s order, noted that the term “change of conditions” encompassed more than just a change in physical conditions, and that the term could also include a change in employment conditions.

Decisions and awards of the Mississippi Workmen’s Compensation Commission may be reviewed by the commission within its sound discretion pursuant to Mississippi Code Annotated section 71 — 3— 53 (1972). Upon proper proof of “change of conditions” or “mistake in the determination” of facts, the commission must not abuse its discretion or arbitrarily refuse to reopen and review a case pursuant to that statute which provides, in part, that:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in the determination of facts, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or any time, prior to one (1) year, after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. (Miss.Code Annot. § 71-3-53 (1972)).

A change in conditions is usually considered to mean a change in physical conditions due to the original injury which affects an employee’s earning capacity or ability to work. 101 C.J.S. Workmen’s Compensation § 854c (1958). A change in the claimant’s ability to get or to hold employment or to maintain prior economic levels is by one outstanding text writer also considered to be a change in condition, even though the physical condition may remain unchanged. 3 Larson, Workmen’s Compensation Law §81.31 (1973).

II.

The burden of proof for showing a change in conditions is on the party, whether claimant or employer, asserting the change. Larson, supra, at § 81.33. If a party cannot establish by a preponderance of the evidence that the claimant’s condition has changed, then the petition to reopen should be denied and the original order maintained.

In examining the record in this case, it is noted that at the hearing on the claimant’s petition to reopen, no additional medical evidence was presented which would support a finding that there had been a change in the claimant’s physical condition. Additionally, the claimant did not establish that she had been refused employment because of her disability. Testimony was presented which showed that she had called about job applications with various employers in her area, but the testimony did not establish that she had actually been rejected by these employers, or (more importantly) that she had been rejected because of her disability. Moreover, the testimony presented concerning her job or position at the Medical Center did not establish that she was refused employment because of her back condition. The appellee was merely told that there were no positions available at that time, and that her position which had been vacated for over a year since the hearing, was no longer open to her for immediate employment.

Counsel for appellant orally argued that the mere fact that there had been no award of compensation by the commission when the record showed a fifteen percent permanent partial disability makes it transparent that the commission abused its discretion by refusing to reopen the case. We reject this argument and point out that an application to reopen a Workmen’s Compensation case under Mississippi Code Annotated section 71-3-53 (1972), is not to be used as a substitute for the right of appeal as was attempted here. If such a procedure were to be allowed, a claimant would in effect have two trials rather than one. Our interpretation of the act is that the legislature did not intend that a claimant could employ this statute as a strategy or device to gain a second day in court.

Without substantial proof to establish that the claimant was rejected for employment or refused employment because of her disability, we are unable to say the commission abused its discretion when it denied the petition to reopen due to a change in conditions, pursuant to Mississippi Code Annotated section 71-3-53 (1972). Therefore, the order of the circuit court should be reversed, and the order of the Mississippi Workmen’s Compensation Commission which reinstated the attorney referee’s order, dated April 26, 1972, should be reinstated.

Reversed on direct appeal and order of commission reinstated; affirmed on cross-appeal.

GILLESPIE, C. J., RODGERS, P. J., and INZER, ROBERTSON, SUGG and WALKER, JJ., concur.


source: Caselaw Access Project

author: RODGERS, Presiding Justice.

license: Public Domain

text:
    STANDARD PRODUCTS, INC. v. Myrtis L. PATTERSON, Administratrix of the Estate of Melvin Witherspoon, Deceased.
    No. 48139.
    Supreme Court of Mississippi.
    July 14, 1975.

      Megehee, Brown, Williams & Corlew, Pascagoula, A. Clay Rankin, III, Mobile, Ala., for appellant.
    Johnston, Pritchard & Wright, Pasca-goula, for appellee,
    Before RODGERS, ROBERTSON and BROOM, JJ.
   RODGERS, Presiding Justice.

Melvin Witherspoon drowned while employed as a fisherman aboard a vessel owned and operated by Standard Products, Inc. He was a young single man living with his parents, to whom he was said to have contributed a part of his earnings. His mother, Mrs. Myrtis L. Patterson, was appointed administratrix of his estate and filed suit against the appellant under the authority of the Jones Act, 46 U.S.C. § 688 (1970) for the alleged negligent death of her son, Melvin Witherspoon.

The case was tried in the Circuit Court of Jackson County, Mississippi, resulting in a judgment in favor of the claimant/appellee in the sum of four thousand dollars ($4,000.00). The appellee promptly made a motion for a new trial based on the claim that the damages awarded by the jury were inadequate. The trial judge sustained the motion, and entered an order granting a new trial, unless appellant, Standard Products, Inc., agreed to accept an additur to the amount of damages awarded by the jury in the sum of six thousand dollars ($6,000.00), making a total of ten thousand dollars ($10,000.00). The appellant refused to accept the suggested additur and has appealed to this Court, as authorized by Mississippi Code Annotated § 11-1-55 (1972).

The applicable section of the admiralty and maritime law for merchant seamen, known as the Jones Act, found in 46 U.S. C. § 688 (1970), is in the following language :

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

State and federal courts have concurrent jurisdiction to entertain actions brought under the above federal statute. Boudreau v. Boat Andrea G. Corp., 350 Mass. 473, 215 N.E.2d 907 (1966). See the collection of many cases under 46 U.S.C.A. §688, n. 258 (1958).

In the case of American Barge Line Co. v. Leatherman’s Administratrix, 306 Ky. 284, 206 S.W.2d 955 (1947), and other cases collected under n. 440 of the Jones Act, 46 U.S.C.A. § 688 (1958), it has been decided that evidence of payment of contributions by a deceased son to his mother during his lifetime entitled her to bring an action with respect to expected future contributions.

However, in an action under the Jones Act the measure of damages is the loss of pecuniary benefits reasonably' expected to be given to the parent by the deceased seaman. There can be no recovery under the Jones Act for grief, wounded feelings, or loss of society or companionship. The case of Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913), interpreted the Federal Employers’ Liability Act, as stated above, and is referred to in the Jones Act. Igneri v. CIE. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964), is also to the same effect.

Such factors as the age of the deceased, his health, the age of the parents, their health, the financial condition of the parents and the reasonably expected contributions of the seaman to the parents are matters of evidence to establish proper damages for the jury’s determination.

The testimony of the mother of the deceased seaman in this case was to the effect that her son customarily exhibited his paycheck to her, and that he gave her one-half of the amount shown. The evidence further shows that the seaman was eighteen (18) years of age. There was no evidence showing that Melvin Witherspoon was likely to have married at any time within the near future at the time of his death.

The record further shows that the deceased seaman had made approximately two thousand six hundred and sixty dollars ($2,660.00) during the year prior to his death, and in view of the testimony of Mrs. Myrtis Patterson, it is contended that he must have contributed one-half of this sum, or one thousand three hundred and thirty dollars ($1,330.00), to his mother.

The appellee states: “It is apparent that the jury considered that he would have contributed $1,330.00 per year during his age of minority or three years at $1,330.00 and then added $10.00 and rounded it off at $4,000.00 for their verdict.”

The appellee argues that the mother “could reasonably expect to have contributions from her son throughout her life expectancy of 27.61 years.”

In the case of Biloxi Electric Co., Inc. v. Thorn, 264 So.2d 404 (Miss.1972), this Court quoted from Section 1686.5, Mississippi Code 1942 (Supp.1971) [now Mississippi Code Annotated § 11-1-55 (Supp.1974)], and stated with reference to this Code section:

“It is provided that the section applies in two situations, viz: (1) If the court finds that the jury (or trier of fact) was influenced by bias, prejudice, or passion; or (2) If damages awarded were contrary to the overwhelming weight of credible evidence.” 264 So.2d at 405.

The Court then quoted from 22 Am.Jur.2d Damages § 366, at 473 (1965), with reference to excessive damages and stated that by substituting “inadequate” for “excessive” damages, the following applied:

“The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.”

This means that the trial court should determine, before allowing an additur to a jury verdict for damages, that the jury verdict was so inadequate under the facts in the case as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption.

Under the authority of a long line of cases, it is a general rule of this Court to respect and follow the holding of the trial judge with reference to his order in granting a new trial since such an order is not a final disposition of the case. Dendy v. City of Pascagoula, 193 So.2d 559 (Miss.1967). However, where it is evident that the trial judge failed to follow the general rule in the light of the testimony, this Court will not hesitate to set aside the order improvidently granted and to reinstate the verdict of the jury. Biloxi Electric Co., Inc. v. Thorn, supra.

In the instant case, we feel that the jury verdict was correct. A young man can reasonably be expected to marry, and it is unreasonable to expect that he would give his mother one-half of his earnings during his entire life. This is especially true in this case where it is shown that both parents are gainfully employed.

The judgment of the trial court granting an additur to the jury verdict will be hereby set aside and the original verdict of the jury reinstated.

The jury verdict of four thousand dollars ($4,000.00) is hereby reinstated.

Judgment reversed and rendered.

GILLESPIE, G. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ-, concur.


author: PATTERSON, Justice.

text:
    L. V. WILLIAMS v. STATE of Mississippi.
    No. 48549.
    Supreme Court of Mississippi.
    July 7, 1975.

      John C. Webb, Tom Roy Trout, Green-ville, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and . BROOM, JJ.
   PATTERSON, Justice.

L. V. Williams was convicted of murder by the Circuit Court of Washington County. He was sentenced to life in the State Penitentiary and, on appeal, contends the trial court erred by permitting the state to introduce incriminating testimony against him through the use of leading questions.

On the morning of April 5, 1973 the body of Dalton Day was found lying near the intersection of two public roads in Washington County. An autopsy disclosed that he had been shot and killed by a small caliber weapon. The bullet which had caused the death was recovered during the autopsy and was kept by the sheriff.

In May, 1974, the appellant was charged with the murder of Day as the result of information supplied to the authorities by Frances Hartman and Charles Smith, her brother. Smith had been arrested on a charge of burglary and apparently his sister hoped to aid him by identifying the appellant as the murderer of Day. Smith, without having an opportunity to confer with his sister, also implicated the appellant with the death of Day.

According to the testimony of Frances Hartman, she and the appellant were at her home on the evening preceding the murder where they were later joined by her brother. During the course of the evening, she observed the appellant cut the nose of a bullet from a cartridge with his knife. Thereafter, about 3:00 a. m., the appellant left, telling her that he “had to go do something.” He returned about 6:00 a. m., remained for a few minutes and departed.

She testified the appellant returned the following evening and told her he had killed Dalton Day for his money. He related some of the details to her and threatened to kill her if she told anyone of the shooting.

Smith testified that he lived with his sister and corroborated the essential details of her testimony. He related that on the evening preceding the murder he observed the appellant cut the nose off of six bullets and that the appellant left the house sometime after 2:00 a. m. He stated that about a month after the shooting he overheard the appellant tell his sister that she was the only one who knew about Day’s death and if she told anyone he would kill her.

A firearms expert from the Federal Bureau of Investigation testified that he had examined the bullet recovered from Day’s body. Although there was insufficient evidence to identify the weapon from which the bullet was fired, it was nevertheless determined to be a .22 caliber pistol. Moreover, he testified the nose of the bullet, submitted to him for examination by the sheriff, had been cut off prior to its being fired.

The appellant’s defense was an alibi. He offered witnesses, including his wife and brother-in-law, to testify that he was not at the Hartman residence on the night of the murder or the following night. He also offered testimony that Charles Smith did not live with his sister, Frances Hartman, at the time of Day’s death. He testified in his own behalf and denied that he had shot Day and denied the testimony of both Frances Hartman and her brother. He admitted that he owned a .22 caliber pistol but denied ownership of it in 1973.

The jury was thus presented with a conflict of evidence which it resolved by its verdict of guilty. A review of the record reveals ample evidence to support the jury’s verdict.

The appellant contends, however, that the trial court erroneously permitted the state to introduce some of its evidence through Frances Hartman by the device of leading and suggestive questions to the prejudice of the appellant.

He argues that before the state may cross-examine its own witness, it must first establish as a predicate two elements, hostility and surprise. He suggests the record fails to disclose that Frances Hartman was either hostile to the state or that it was surprised by her testimony. He contends also that permitting the state to lead the witness cannot be justified by way of recalcitrance or reluctance on her part since the record is devoid of either propensity.

The thrust of the appellant’s contention is that the use of leading questions by the state destroyed the effectiveness of the defendant’s cross-examination in that it was introduced in such a manner that it became difficult for the defendant to impeach her by illuminating the contradictions and inconsistencies in her testimony by his cross-examination.

The appellant concedes that a trial court does have discretion in allowing the state to lead witnesses under certain circumstances. He submits however there was no present basis permitting the court to exercise its discretion and this indulgence was prejudicial to the extent that the appellant was denied a fair trial.

A review of the record indicates that Ms. Hartman was a reluctant and recalcitrant witness. Oftentimes she did not answer questions propounded to her until directed to do so by the court. Even when she did answer, the court many times had to repeat her answers for the benefit of the attorneys and the jury. We note that many questions were leading and a few could probably be construed as suggestive, but we are unable to discern any reversible prejudice therefrom. We think, under the circumstances, the obvious reluctance and recalcitrance of the witness, whether or not caused by the appellant’s threats of death, were sufficient for the lower court to indulge leading questions in its judicial discretion. The trial court had the opportunity to observe the demeanor of the witness and the circumstances of the trial, and this being so, we surely cannot state the discretion was manifestly abused.

In Summerville v. State, 207 Miss. 54, 41 So.2d 377 (1949), we held the discretion exercised by a trial judge is reviewable on appeal but that reversal will not follow unless the judicial discretion has been manifestly abused and the defendant thereby deprived of a fair trial. We stated:

. . . “To justify a reversal because of the allowance of a leading question, not only is it necessary that there should have been a manifest abuse of discretion, but it is also necessary that the question shall have influenced the answer and that injury resulted.” 207 Miss, at 64-65, 41 So.2d at 379.

Under the present circumstances we think the trial court was in the best position to judge the necessity and propriety of allowing leading questions. It had the opportunity to observe the witness and to determine the best course of conduct necessary to elicit the truth and yet safeguard the rights of the accused. After reviewing the record, we cannot say the discretion was abused or that the accused was deprived of a fair and impartial trial.

The cause is therefore affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and INZER, ROBERTSON, SUGG and WALKER, JJ., concur.


author: SMITH, Justice.

text:
    Clemert BARRETT et ux. v. Jessie PILGRIM et ux.
    No. 48108.
    Supreme Court of Mississippi.
    July 7, 1975.
    Laurel G. Weir, Philadelphia, for appellants.
    .Clayton Lewis, Philadelphia, for appel-lees.
    Before PATTERSON, SMITH and BROOM, JJ.
   SMITH, Justice.

The suit, out of which the present appeal arises, was begun in the Chancery Court of Neshoba County by Clemert Barrett and his wife, against Jessie Pilgrim and his wife, and sought an injunction to prevent the latter from closing a certain road which traversed the property of the respective parties. Complainants alleged in their bill that the road was a public road and defendants denied this, alleging that it had been abandoned by the public and was a private way which they had a right to close. A temporary injunction was issued as prayed for in the bill but, following the trial of the case on the merits, the chancellor entered a “Solomonic” decision to this effect: The Pilgrims were granted the “right” to

[S]top the traffic from going in upon this road and he may place an obstruction across it and he may do so by a lock and a key, but will not deprive Mr. Barrett or those who go in through this way to their properties for legitimate purposes. Then Mr. Pilgrim, if he locks it and puts a lock upon it, will be required to give Mr. Barrett a key so that he may continue to use this portion of the highway down to his property. This is being done not to try to deprive Mr. Barrett as to the right of this passageway, but is done, which the Court thinks should be done, to restrict the use of this property by the general public for the use for which it is now being put which is unlawful and unreasonable when the property is being damaged by deprivation [jic] and other unlawful acts.

The “deprivation” and “other unlawful acts” of the “general public,” to which the chancellor had reference and which formed the basis of his decision to close the road, consisted of its use by certain members of the public as a “lovers’ lane, garbage dump” or as a place “to stash whiskey.”

The evidence indicated, and the chancellor appears to have found (certainly there was no finding to the contrary), that the road in question had been a public road in the past which had lost that character because it had been abandoned by the public for any lawful or moral use. The road appeared on the “inventory” of the Mississippi State Highway Department as a public road. Also, the Board of Supervisors had worked the road for years prior to 1972, although there is some dispute on this point. In the course of his opinion, the chancellor said:

The question arises in this case as to whether or not the road leading northward from Highway 16 to some approximately more than half a mile, which appears from some of the testimony, is a public road.

The court said further:

It seems to the court in determining whether or not there is a public road that there must be a determination as to what extent that particular road has been used by the public.

There was no evidence of any kind that the road had been closed or abandoned by any official action of the Mississippi State Highway Commission or of the Board of Supervisors of Neshoba County and this phase of the matter does not appear to have received consideration. It is in that posture that the case now comes before •• this Court for review.

While the decision of the chancellor may have been a practical and reasonable resolution of problems confronting the individuals who were the only parties to the litigation, we are constrained to conclude the case must be reversed and remanded.

There was unequivocal evidence that the road had been a public road, either as part of the state highway system or as a county road. However, no evidence whatever was offered that the Board of Supervisors of Neshoba County at any time had closed it by an order on the official minutes of the Board or that the State Highway Commission had taken any official action removing it from the highway system. The chancellor proceeded to his conclusion of “abandonment” upon a finding that the public in general had ceased to use the road and that those members of the public who continued to use it did so for purposes which were not “legitimate” or “moral.” Therefore, the court concluded, it could be considered as having been abandoned and as having lost its public character.

The Court is without power, however, to close a public road in private litigation between individuals unless such action is predicated upon a finding that there has been a valid order of the Board of Supervisors closing the road, spread upon its minutes, if it is a county road, or that similar official action has been taken by the Mississippi State Highway Commission and is reflected by its official records if it is a state road or highway.

The State Highway Commission, under mandate from the Legislature, controls the highways which comprise the state highway system. Mississippi Code Annotated section 65-1-59 (1972) and related statutes. Authority of the Board of Supervisors over roads, ferries and bridges is granted by section 170 of the Mississippi Constitution of 1890. Mere non-user by a part or all the general public of a public road, or use by some members of the general public of a public road as a “lovers’ lane, whiskey cache or as a place for dumping garbage,” will not constitute such an abandonment as to deprive it of its public character or justify its closing by a court in private litigation between individuals. As early as 1878 this Court, in a case involving a county road, held: “ . . . Until an unequivocal surrender by the Board of Supervisors of the right of the public to the road, the owner of the fee had no right to close it.” Hatch v. Board of Supervisors, 56 Miss. 26 (1878).

Mississippi Code Annotated section 65-7-7 (1972) prohibits the obstruction of any public highway or road. Section 65-7-5 makes it unlawful for any person to alter or change any public road except by order of the Board of Supervisors. See also section 65-7-57 and section 65-1-59 and related statutes.

The case must, therefore, be reversed and remanded to the trial court, without prejudice.

Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and INZER, ROBERTSON, SUGG and WALKER, JJ., concur.


author: ROBERTSON, Justice,

text:
    STATE of Mississippi v. Charles HOGARTH.
    No. 48405.
    Supreme Court of Mississippi.
    July 21, 1975.
    Maurice Dantin, Dist. Atty., Columbia, for appellant.
    Burgm, Gholson, Hicks & Nichols, Columbus, William E. Andrews, Jr., Purvis, M. M. Roberts, S. Wayne Easterling, Hat-tiesburg, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

Charles Hogarth was indicted by the grand jury of the Circuit Court of Lamar County on July 9, 1974, for the unlawful sale of marijuana on September 6, 1973.

On July 15, 1974, defendant filed a motion to quash the indictment alleging that under the provisions of Mississippi Code Annotated section 99-11-19 (1972), exclusive jurisdiction was vested in the Circuit Court of Forrest County, Mississippi, because the grand jury of the Circuit Court of Forrest County had previously indicted the defendant for the same offense in March. 1974. Defendant further alleged that on June 7, 1974, the Circuit Court of Forrest County, on its own motion, dismissed the indictment in that county for lack of jurisdiction.

On July 22, 1974, a hearing was held on the motion to quash and the Circuit Court of Lamar County found that under the provisions of section 99-11-19 supra exclusive jurisdiction was vested in the Circuit Court of Forrest County where defendant was first indicted.

The Lamar County Circuit Court found that Coleman v. State, 83 Miss. 290, 35 So. 937 (1903), was controlling, and the motion to quash the Lamar County indictment was sustained and the cause dismissed for lack of jurisdiction.

Section 99-11-19 first appeared in the Code of 1857. Over the 118-year span from 1857 to 1975 this statute has remained unchanged and is still the law. Section 99-11-19 provides:

“When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall he in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun." [Emphasis added].

In Coleman this Court said:

“Section 1334 provides that where an offense is committed partly in one county and partly in another, or where the acts, effects, means or agency occur in whole or in part in different counties, the jurisdiction shall be in either county where the offense was commenced, prosecuted, or consummated, ‘where prosecution shall be first begun.’ That provision controls the case at bar. The state can begin its prosecution in any of the counties in which any of the criminal agencies operate — anywhere that any act is committed in prosecution of the criminal design — but, having chosen the tribunal before which the party accused shall stand trial, it cannot, of its own motion, divest that court of jurisdiction, and begin another prosecution before another court in another jurisdiction. It is in accord with the familiar rule prevailing everywhere, that, where courts have concurrent jurisdiction, the court whose jurisdiction first attaches must retain the case for final disposition. The circuit court of Quitman county, having first acquired jurisdiction of the crime with which the appellant stands charged, must maintain it throughout. The entering of the nolle prosequi in that court does not prevent the grand jury of that county, if it so chooses, from now presenting an indictment against appellant, charging him with murder in slaying of Ella Coleman.” [83 Miss. at 297, 299, 300; 35 So. at 939-40].

Coleman was cited with approval in Parker v. State, 244 Miss. 332, 141 So.2d 546 (1962).

Coleman and Parker are dispositive of this case and the judgment of the Circuit Court of Lamar County is affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ-, concur.


text:
    J. W. GRIMES v. SUPERIOR TRUCKING COMPANY, INC.
    No. 48214.
    Supreme Court of Mississippi.
    July 28, 1975.
    Rehearing Denied Aug. 18, 1975.
    Charles Rayford Wilbanks, Corinth, for appellant.
    Price & Krohn, Corinth, for appellee.
    Before GILLESPIE, C. J., and SMITH and SUGG, JJ.
   Affirmed.


author: RODGERS, Presiding Justice;

text:
    Robert CHURCH v. STATE of Mississippi.
    No. 48614
    Supreme Court of Mississippi.
    July 14, 1975.
    Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   RODGERS, Presiding Justice;

Robert Church was indicted, tried and convicted in the Circuit Court of Neshoba County, Mississippi, for the crime of receiving stolen property. He was sentenced to serve five (S) years in the state penitentiary.

The defendant requested the trial court to direct a verdict in favor of the defendant at the conclusion of the testimony offered by the state. This motion was overruled and the defendant rested without offering any testimony.

The sole issue presented on appeal is whether or not the testimony offered by the state was sufficient to show that the defendant had actual possession of the stolen goods.

The testimony reveals that the appellant called the witness Joe Lee Jones and advised him that he had some boots he wanted to sell him for five dollars ($5.00) a pair. He later went to the home of Jones and advised him that he would have the boots brought to him after dark. Later, appellant called the witness and advised him that the boots were on the way; that he had arranged for J. D. Ladd and Percy McCullough to deliver the boots. The boots were delivered by the two named persons. Mr. Jones agreed to count the boots and pay for them the next day. Mr. Jones notified the sheriff that he had the boots.

The evidence further revealed that the Triple D Western Store had been burglarized and burned; that prior to the delivery of the boots the sheriff had been to the home of Joe Lee Jones, and as he left he passed and spoke to Robert Church. Later he was notified that the merchandise had arrived at the home of Joe Lee Jones. The boots were identified as the merchandise stolen from the Triple D Western Store. Were these facts sufficient to show possession of stolen property?

The appellant in a carefully written brief points out that in order to sustain a conviction for receiving stolen property, the accused must have control or dominion over the property stolen. He cites Daniel v. State, 212 Miss. 223, 54 So.2d 272 (1951). We agree with this postulate, and we also agree that the crime is not committed until the stolen property is received by the accused. 76 C.J.S. Receiving Stolen Goods § 6, at 8 (1952).

On the other hand, it is not necessary for the state to show that the accused actually manually held the stolen property. Constructive possession of stolen goods is sufficient to satisfy the essential element of having “received” the goods.

It is said in 66 Am.Jur.2d Receiving Stolen Goods § 5, at 298 (1973), as follows:

“It is not necessary that there be a manual possession or touching of the stolen goods; exercising any control or dominion over them is sufficient to constitute a receiving. But the buying, receiving, or aiding in concealment of stolen property, knowing it to have been stolen, is not established by mere possession of such property. One is guilty of so receiving as soon as he obtains a measure of control or dominion over the custody of the goods; such receiving may be by an agent or through the instrumentality of another; nor is it necessary that the accused should have actually seen the goods.”

The text writer in 76 C.J.S. Recéivmg Stolen Goods § 6b, at 9 (1952), has the following to say on this subject:

“He has such constructive possession where the goods are in the possession of someone over whom he has for the time being direction and control, such as his authorized servants or agents, or the thief himself, so that the goods will be forthcoming when he orders, and also where by his direction the goods are deposited in a place subject to his control, or where they are concealed on his premises by others with his knowledge or consent.”

We are of the opinion that the acts and statements of the appellant in this case are sufficient to establish the charge that he received the stolen goods. The judgment of the trial court must be affirmed.

Affirmed.

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


author: SUGG, Justice,

text:
    Lethie BARNES v. Ivory BARNES.
    No. 48182.
    Supreme Court of Mississippi.
    July 28, 1975.

      Clay B. Tucker, Woodville, for appellant.
    Johnson & Walker, Jackson, for appel-lee.
    Before GILLESPIE, SMITH and SUGG, JJ.
   SUGG, Justice,

The complainant, Ivory Barnes, was granted a divorce from his wife, Lethie Barnes, by the Chancery Court of the Second Judicial District of Hinds County. Complainant was also awarded exclusive possession of 5(4 acres of land located in Wilkinson County owned by complainant and defendant.

The defendant appeals from the award to complainant of possession of the land as being beyond the scope of the pleadings and proof.

Complainant did not, in either the original or amended bill of complaint, submit the issue of possession of the land for decision to the trial court. Complainant prayed for a divorce and for general relief, but did not seek possession o<f the land.

The only reference to the land is contained in the sixth paragraph of the original bill of complaint which states :

The parties hereto jointly owned land on which there are buildings in Wilkinson County, Mississippi.

It is a well settled rule that a party complainant may have relief only on the case made by his bill of complaint and that the allegations of the pleadings and proof must correspond. In Griffith, Mississippi Chancery Practice, § 565, page 587 (2nd Ed.1950) the author states:

It will not avail to establish a different case by the proof. — It is therefore a matter fundamental in its nature; and so being, it is one that must be kept uppermost in mind in the final hearing of a cause, as well as in all the preparations therefor theretofore made: — That a party complainant can have relief only on the case made by his bill of complaint, and that it will not avail him to establish another and a different case by his proof. .

Likewise, in § 612, pages 653-654 (2nd Ed.1950) of the same work, the rule is stated in slightly different language:

[T]he relief to be decreed must conform to, and come within, both the pleadings and the proof, including as proof those things which are judicially admitted; and no valid decree can go outside of the boundary prescribed by the pleadings and proof.

An exception to the general rule, that relief not asked for in the bill of complaint may be granted, is stated in Griffith, Mississippi Chancery Practice, § 567, pages 589-590 (2nd Ed.1950) as follows:

[Wjhere evidence not within the pleadings has been received without objection and no point on it is raised before submission, the chancellor will not be expected to scrutinize the pleadings to raise himself merely doubtful points on this question, and the rule will then operate only when the proof is quite obviously beyond the scope of the pleadings.

In the case at bar, the issue of possession of the property was not presented by the pleadings and no proof appears in the record to bring the case within the exception to the general rule. There was no proof to substantiate the chancellor’s holding that complainant was entitled to possession of the land.

We reverse and modify the decree by striking therefrom the award of possession of the land to complainant. There being no appeal from the judgment of the court granting complainant a divorce, the decree of divorce is affirmed.

Affirmed in part, reversed in part and rendered.

RODGERS, P. J., and PATTERSON, INZER, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Howard RICHBURG, Sr. v. BOARD OF SUPERVISORS OF HARRISON COUNTY, Mississippi.
    No. 48296.
    Supreme Court of Mississippi.
    Aug. 11, 1975.
    Stewart & Burks, Picayune, for appellant.
    Boyce Holleman, Philip S. Weinberg, Gulfport, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


author: BROOM, Justice.

text:
    Lindbergh McLEOD, Jr. v. STATE of Mississippi.
    No. 48506.
    Supreme Court of Mississippi.
    July 14, 1975.

      Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice.

Forcible rape was the charge for which appellant was indicted and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Aggrieved at his conviction and sentence of life imprisonment without parole, he appeals. We reverse.

The chief issues before us relate to the questions of admissibility of a confession into evidence, and the refusal of the trial court to permit the appellant during the trial to rely upon the defense of insanity.

Only a few of the salient facts need be related and they are as follows. On July 23, 1973, a female person above the age of twelve years was violently raped by a tall, black, fluffy-haired male person. The assailant gained admittance into her house on the pretense that he desired to use the telephone. While inside the house he forced the victim at knifepoint into her bedroom where he raped her after blindfolding her and securing her arms with a cord.

I.

It is argued that the case must be reversed because the state failed to satisfactorily establish that appellant’s confession (admitted into evidence) was voluntarily made and signed. Upon the record we cannot hold that the trial judge erred in finding that the confession was voluntarily executed.

However, the case must be reversed on another ground. We therefore point out that on retrial, in developing vol-untariness of the confession, the state should use care to establish that all witnesses who were present during the events leading up to the confession and at the time the confession was signed testified on this issue. Also, we point out that in trying this issue, after the state presents its proof and then the accused presents his version that he was forced, coerced, induced, or intimidated to confess — it would not be inappropriate for the state to reintroduce witnesses to thereby with desirable clarity deny any charge of mistreatment. This is particularly true where in the first instance the state’s witness in general terms negated any violence, force, et cet-era, and then the accused in different language gave specific details that he was offered inducements, “slapped,” and “hit in the eye,” in the presence of named officers and “these other deputies” as occurred in the instant case.

II.

During the trial of this cause and after the state rested, the appellant sought to change his plea of not guilty to a plea of “not guilty by reason of insanity.” The trial judge would not permit changing of the plea and stated that the court “has observed his demeanor and conduct, and this being over a period of eight to nine hours, and further, the report of the psychiatrist, Dr. Gene G. Abel of the University Hospital, was presented to this Court yesterday, and considered by the Court on the motion for continuance, which reflected that the defendant knows the difference between right and wrong, and was without psychosis.”

When the court rejected the change in plea, counsel for the appellant dictated into the record testimony which he desired to show to the court and jury on the question of insanity. He stated that he would offer testimony of appellant’s mother and others that the appellant was unable to distinguish between right and wrong. Counsel also stated that he would offer several witnesses who would testify that the appellant had a history of abnormal sexual activities since he was five years of age.

It is the general rule in this state that (with certain exceptions) a defendant under a plea of not guilty may make any defense that he has. Tanner v. State, 196 Miss. 822, 18 So.2d 300 (1944). When the defense is insanity, either general or partial, the door is thrown wide open for the admission of evidence of every act in the accused’s life relevant to the issue of insanity and is admissible in evidence. The trial court is to be liberal in allowing the introduction of evidence or examination of witnesses which tends to show the insanity or sanity of the accused. Warren v. State, 285 So.2d 756 (Miss.1973); Tarrants v. State, 236 So.2d 360 (Miss.1970), cert. denied 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); McGarrh v. State, 249 Miss. 247, 148 So.2d 494 (Miss.1963), cert. denied 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963); Waycaster v. State, 185 Miss. 25, 187 So. 205 (1939).

The court in this case should have permitted the appellant to present evidence of his insanity and to question his witnesses as to past acts (relevant to insanity) of the appellant. Then the state would have been permitted to rebut such testimony and the question of insanity would have been for the jury to determine. For an excellent treatise and collation of authorities on trial court procedure when confronted with the question of insanity, see the dissenting opinion of Justice Rodgers in Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963).

Therefore, the conviction cannot be allowed to stand.

Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and INZER, ROBERTSON, SUGG and WALKER, JJ., concur.


text:
    EAST FORD, INC. v. Albert TILLMAN.
    No. 48159.
    Supreme Court of Mississippi.
    July 28, 1975.
    Rehearing Denied Sept. 2, 1975.
    W. F. Selph, Jr., Michael R. Medley, W. F. Goodman, Jr., Jackson, for appellant.
    Don H. Evans, Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   Affirmed.


author: GILLESPIE, Chief Justice.

text:
    Brenda Sue GREEN v. David Monroe GREEN.
    No. 47968.
    Supreme Court of Mississippi.
    July 14, 1975.
    Maynard, Fitzgerald, Bradley & Chaffin, Clarksdale, for appellant.
    Appellee did not file brief.
    Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice.

Brenda Sue Green sued her husband, David Monroe Green, in the Chancery Court of Coahoma County wherein she sought a divorce, custody of the two-year-old child, Connie Renee Green, support money for the child, and a reasonable allowance for attorney’s fees and court costs. The husband filed an answer denying the essential averments of the bill of complaint and incorporated a cross-bill for divorce wherein he requested the permanent custody of the child.

After a full hearing the chancellor held that there had been a reconciliation of the parties in March, 1973, and that the proof was insufficient to establish cruel and inhuman treatment on the part of the husband, that the proof failed to establish adultery on the part of the wife as claimed by the husband in his cross-bill. Thereupon the chancellor denied both parties a divorce and awarded the custody of Connie Renee Green to Mrs. John Green, the paternal grandmother of the child.

The wife appealed to this Court and supported her appeal with a brief. The husband failed to file any brief in this Court or otherwise make any appearance.

Two questions are raised by the wife’s brief. She contends that the trial court erred in awarding the care and custody of the child to the paternal grandmother. This assignment of error is well taken.

The failure to file a brief is tantamount to a confession of error on the part of the husband and ordinarily would be accepted as such and the judgment of the court below would be reversed under the authority of Transcontinental Gas Pipe Line Corp. v. Rogers, 284 So.2d 304 (Miss.1973). However, this is a case involving the custody of a child and a divorce, and we have carefully examined the evidence as was done in Hale v. Hood, 313 So.2d 18, 19 decided by this Court on May 26, 1975. In so doing, we find there is no lawful authority for awarding the child to the paternal grandmother. In Hale v. Hood, supra, the Court said:

The well-settled rule in a child custody case between a natural parent and a third party is that it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. In order to overcome this presumption there must be a clear showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so immoral as to be detrimental to the child', or (3) the parent is mentally or otherwise unfit to have custody of the child. Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973).

We hold that the trial court erred in his decree concerning the custody of the child because there was no finding that the mother abandoned the child, or that her conduct was so immoral as to be detrimental to the child, or that she was mentally or otherwise unfit to have custody.

The second question raised by the wife is her contention that the court erred in determining that the proof established by the appellant was insufficient to establish grounds for a divorce based upon cruel and inhuman treatment. We are of the opinion that the chancellor erred in this respect and that the evidence offered by the wife of the conduct of her husband after the reconciliation in March, 1973, when considered in the light of the previous marital history, was sufficient to establish habitual cruel and inhuman treatment.

For the reasons stated, the decree of the chancery court is reversed and the case is remanded to the trial court for entry of a decree (a) awarding the wife a divorce, (b) granting the wife custody of the minor child, Connie Renee Green, and (c) fixing the amount of child support to be paid by the husband.

Reversed, rendered and remanded with directions.

RODGERS, P. J., and PATTERSON, INZER, ROBERTSON, SUGG and BROOM, JJ., concur.


author: ROBERTSON, Justice.

text:
    Mae Alene Rish HARTLEY v. Clyde Allen HARTLEY.
    No. 48193.
    Supreme Court of Mississippi.
    Aug. 11, 1975.
    Sekul, Hornsby & Wallace, Biloxi, for appellant.
    Strickland & Owen, Gulfport, for appel-lee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice.

Mrs. Mae Alene Rish Hartley appeals from a decree of the Chancery Court of the First Judicial District of Harrison County, Mississippi, reducing the child support payments for her thirteen-year-old son from $200 a month to $170 per month, and allowing $200 attorney's fees to be paid by Clyde Allen Hartley toward her attorney’s fees.

She contends that since a material change of circumstances was not proved, that the monthly allowance for child support should not have been reduced. She also contends that the allowance of $200 toward her attorney’s fees was totally inadequate.

The final decree awarding Hartley a divorce and ordering the payment of child support was rendered July 24, 1972. The petition to modify was filed on November 27, 1973.

In the final decree of July 24, 1972, the Chancellor found, among other things:

“6. The parties have effected a property settlement agreement between themselves which property settlement agreement is hereby now incorporated in this Decree and made a part of the same [and] is binding on both the Complainant and the Defendant.
a. The Complainant agrees to pay unto the Defendant for the support and maintenance of their minor child the sum of $200.00 per month child support, and to further furnish said child with a college education as long as the child remains in college and maintains passing grades. The Complainant further agrees to pay any and all medical bills incurred by said child.
d. The Complainant agrees, binds and obligates himself to pay the monthly house payments due on the home conveyed unto the defendant until DAVID becomes of age, or until the Defendant remarries at which time the Defendant shall make the house payments due thereon.
e. The Complainant agrees, binds and obligates himself to pay unto the Defendant towards her attorneys fees the sum of $200.00 payable in two installments, the first installment due on August 1, 1972 and the second installment due on September 1, 1972.”

The proof showed that Mr. Hartley was employed at Keesler Air Force base at $19,246 a year; that soon after the agreed property settlement he had received a $900 per year increase; that he had married again, had given up his apartment and was living in the home of his second wife and had started making the mortgage payments on this home. The first Mrs. Hartley was unemployed at the time of-the divorce, was now making $50 to $75 per month as a seamstress, but by experience and training was capable of making much more.

In our opinion, the proof does not bear out the finding of the Chancellor that there had been a material change in circumstances, and the Decree of the Chancellor reducing the agreed child support payments from $200 to $170 per month is reversed and the child support payments restored to $200 per month.

Mrs. Hartley’s counsel contended vigorously, both in his brief and in oral argument, that this Court should set specific and detailed guidelines for the fixing of attorney’s fees in divorce matters and subsequent related matters.

It is impossible for this Court to lay down any hard and fast rules with reference to the fixing of attorney’s fees in this type of case, and any attempt to do so would be most inappropriate and unwise. It is especially true in divorce cases that circumstances alter cases and that the chancellor should have wide authority and discretion in setting appropriate attorney’s fees after carefully considering the facts of each case.

In Klumb v. Klumb, 194 So.2d 221 (Miss.1967), this Court said:

“The matter of fixing attorney’s fees for services rendered in the trial court is appropriately entrusted to the sound discretion of the Chancellor.” 194 So.2d at 225.

We note that in the divorce decree of July 24, 1972, the parties themselves agreed that the right amount for Mr. Har-tley to pay toward her attorney’s fees was $200. We cannot say that the chancellor abused his discretion when he ordered Mr. Hartley to pay the same amount, $200, toward her attorney’s fee for representation on the petition to modify. The decree of the chancellor is, therefore, affirmed in this respect.

In accordance with the usual custom of this Court, we set the amount to be paid by appellee to appellant to apply on her counsel’s fee for representation in this Court at $100 (one-half of the amount allowed in the lower court).

Reversed and rendered as to child support; affirmed as to allowance of attorney’s fees, and an additional $100 allowed for representation here.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ-, concur.


text:
    PROGRESSIVE CASUALTY INSURANCE COMPANY and General Adjustment Bureau, Inc. v. Elijah KEYS.
    No. 48196.
    Supreme Court of Mississippi.
    Aug. 11, 1975.

      Bryant & Stennis, Roger T. Clark, Gulf-port, for appellants.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   RODGERS, Presiding Justice.

This is a unique case. It has afforded the members of this Court considerable exhilarating mental gymnastics. It came to this Court from the Circuit Court of Jackson County, Mississippi, in which the jury returned two verdicts. After the usual motion for judgment notwithstanding the verdict and motion requesting a new trial, the defendants, Progressive Casualty Insurance Company and the General Adjustment Bureau, Inc., have appealed to this Court. Another defendant, Chesley Price, was removed and released from the suit by a directed verdict. There is no cross-appeal as to this order.

The facts leading up to the lawsuit may be summarized as follows. Elijah Keys purchased a 1969. Pontiac station wagon from Gulf Motor Company for the sum of twenty-two hundred and ninety-five dollars ($2,295.00). The automobile was insured by the appellant Progressive Casualty Insurance Company. The policy contained a collision coverage clause. Thereafter, on August 25, 1972, the plaintiff, Elijah Keys, had a collision with another vehicle on the highway in which his Pontiac was totally destroyed. The plaintiff was unable to secure a settlement with the insurance company,- and he turned the claim over to his attorney. The attorney testified that he had reached a firm settlement with the adjuster, General Adjustment Bureau, Inc., the agent of the insurance company for the sum of one thousand seven hundred and thirty-one dollars ($1,731.00), but that later the adjuster for the insurance company refused to pay the claim and requested a “readjustment of the claim.” After having failed to secure a settlement, the appellee sued (1) the insurance company for the alleged full value of the destroyed automobile under the terms of the contract, less one hundred dollars ($100.00) set out as deductible under the policy, and (2) the insurance company, General Adjustment Bureau Inc., and its agent, Chesley Price, for an alleged tort for having failed to carry out the settlement agreement, and sought punitive damages against the defendants.

The adjustment bureau and its agent filed a motion to dismiss the suit against them on the ground that the declaration stated no cause against them. The insurance company also filed a motion to dismiss the suit, because the declaration attempted to combine a suit on contract and a suit on tort. Both motions were overruled.

Upon the trial of the case, the testimony was in conflict as to the value of the destroyed automobile. The value evidence ranged from two thousand two hundred and fifty dollars ($2,250.00) to one thousand four hundred and twenty-five dollars ($1,425.00). The plaintiff, over the objection of the defendants, offered testimony as to the net worth of the insurance company and the adjustment bureau. Plaintiff also offered evidence, over the objection of the defendants, that the plaintiff was about to be sued because he had not paid the payments due a credit union on the automobile.

The adjustment bureau denied that it or its agent had any ill will toward the plaintiff or his attorney, and none was intended. It was admitted that the attorney for claimant had advised the adjustment bureau that they had sold the salvage of the wrecked automobile for two hundred and ten dollars ($210.00). The agent for the adjustment bureau testified that he was only authorized to pay one thousand four hundred and twenty-five dollars ($1,425.00) to the claimant, but that the automobile could have sold reasonably for two thousand dollars ($2,000.00).

After a careful examination of this record, we have reached the conclusion that the trial court committed the following obvious errors:

(1) The trial court should have sustained the motion of the General Adjustment Bureau, Inc. and Chesley Price to be dismissed from the case at the beginning of the trial because (a) the suit was based upon a contract of insurance and at the time this suit was tried, a suit on a contract (ex contracto) and a suit based upon a tort (ex delicto) could not be maintained in one cause of action [Delta Construction Company of Jackson, Mississippi v. City of Jackson, Mississippi, 198 So.2d 592 (Miss.1967); Nasif et al. v. Booth et al., 221 Miss. 126, 72 So.2d 440 (1954); Potomac Insurance Company v. Wilkinson, 213 Miss. 520, 57 So.2d 158 (1952); City of Jackson v. Cook, 214 Miss. 201, 58 So.2d 498 (1952); Home Insurance Company v. Tate Mercantile Company, 117 Miss. 760, 78 So. 709 (1918); Illinois Central RR. Co. v. Abrams, 84 Miss. 456, 36 So. 542 (1904)]; and (b) the declaration did not set out facts sufficient to sustain a tort action.

(2) (a) The testimony introduced by the plaintiff to show the net worth of the defendants was inadmissible, and the objection thereto should have been sustained. Testimony of the net worth of a defendant is not admissible where the jury is not warranted in awarding exemplary damages. Western Union Tel. Co. v. Cashman, 5 Cir., 132 F. 805 (1904); Pullman Palace-Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897).

(b) Punitive damages are not recoverable for the breach of a contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. D. L. Fair Lumber Company v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); Hood v. Moffett, 109 Miss. 757, 69 So. 664 (1915).

(c) The trial court erred in granting three instructions permitting the jury to find punitive damages against the defendants.

(3) The trial court erred in having failed to correct the judgment entered or to have granted a new trial on the motion of the defendants.

Notwithstanding all of the above stated errors, the jury nevertheless returned one proper verdict in the suit involving the insurance policy.

The jury had no authority to return a verdict against the Progressive Casualty Insurance Company and General Adjustment Bureau, Inc., for punitive damages. The last part of the jury verdict was therefore void. It is fortunate, however, that the jury verdict is divided so as to show that punitive damages were not considered by the jury in fixing the value of the automobile.

We hold, therefore, that the verdict of the jury and judgment of the court in favor of the insured Elijah Keys for the sum of two thousand dollars ($2,000.00) against the Progressive Casualty Insurance Company for the value of the automobile should be and is hereby affirmed.

The verdict of the jury against Progressive Casualty Insurance Company and General Adjustment Bureau, Inc., in favor of the appellee in the sum of two thousand five hundred dollars ($2,500.00) for punitive damages is not warranted and must, therefore, be set aside and held for naught.

Affirmed in part; reversed in part.

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

      . The law has now been changed so as to permit a suit in contract and in tort in one action. Ch. 315, § 1 [1974] Miss.Gen.Laws 355. We do not feel justified in reversing this case on the ground of improper procedure since the jury returned a proper verdict as to the suit on contract.


author: RODGERS, Presiding Justice:

text:
    Petition of John Bell WILLIAMS to Strike or Expunge Part of a Grand Jury Report in the January 1972 Term.
    No. 48240.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Zachary, Weldy & Ingram & Stroud, Jolly W. Matthew, III, Hattiesburg, for appellant.
    Rex K. Jones, Dist. Atty., Hattiesburg, for appellee.
    Before RODGERS, P. J., and SMITH and WALKER, JJ.
   RODGERS, Presiding Justice:

This is an appeal from an order issued in the Circuit Court of Forrest County, Mississippi, denying the appellant the right to expunge a grand jury report.

The final report of the January 1972 Grand Jury of Forrest County, Mississippi, contained therein certain derogatory statements and allegations concerning the release of inmates granted executive clemency by the then Governor, Honorable John Bell Williains. The verbiage of these statements is set out in the - petition to expunge.

This Court has already addressed itself to a similar issue as in this case when it handed down the decision in In re Davis, 257 So.2d 884 (Miss.1972). In Davis we held that the grand jury had broad powers to indict public officials for wrongful neglect of their duty. This power is granted to the grand jury under Section 175, Mississippi Constitution 1890. Section 175 reads as follows:

“All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.”

This Court pointed out in Davis, supra, that although the grand jury had the power to indict, it did not have the power to file a report charging no crime, but reflecting on or criticizing the conduct of specified officials and individuals.

We are of the opinion that In re Davis, supra, is dispositive of the issue in this case. We hold, therefore, that the order of the trial court refusing to expunge the derogatory statements with reference to Governor John Bell Williams from the grand jury record should be and the same is hereby set aside. The Clerk of the Circuit Court of Forrest County, Mississippi, is directed to physically expunge from the grand jury report herein the statements complained of by the appellant.

Reversed and rendered.

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


text:
    Frank TURMAN v. CLARKSDALE KING AND ANDERSON CO.
    No. 48239.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Holcomb, Dunbar, Connell, Merkel & Tollison, H. Hunter Twiford, III, Clarks-dale, for appellant.
    Maynard, Fitzgerald, Bradley & Chaffin, Clarksdale, for appellee.
    Before RODGERS, P. J., and SMITH and WALKER, JJ.
   Affirmed.


text:
    SOUTHERN SAW & MOWER DISTRIBUTORS, INC. v. DOLMAR NORTH AMERICAN CORPORATION.
    No. 48307.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Maxey, Clark & Casey, Laurel, for appellant.

      John L. Jeffries, Laurel, F. Kent Strib-ling, Jackson, for appellee.
    Before RODGERS, SMITH and WALKER JJ
   SMITH, Justice.

In this case Dolmar North American Corporation, a foreign corporation, as plaintiff, brought suit against Southern Saw & Mower Distributors, Inc., as defendant, in the County Court of Jones County upon an open account. Defendant interposed a plea in bar under provisions of Mississippi Code Annotated section 79-3-247 (1972). It was alleged that plaintiff was a foreign corporation, doing business in Mississippi without having qualified under the laws of Mississippi to do so, and thus was barred from using the Mississippi Courts to enforce its claims which had arisen out of its intrastate commerce. Following an eviden-tiary hearing, the plea in bar was sustained by the county court and the case dismissed. From that judgment Dolmar appealed to the Circuit Court of Jones County. The circuit court reversed the county court, holding that the plea was without merit and setting the case on its docket for trial. It is from that order of the circuit court that Southern Saw has attempted to appeal to this Court. No final judgment has been entered by the circuit court and the case has not been tried upon its merits.

This Court, in innumerable cases, has held that an appeal may be taken to the Supreme Court from any final judgment of the circuit court in a civil case but that no appeal to this Court may be entertained from an interlocutory order of the circuit court (with a few specific exceptions not here involved). Moreover, a judgment or order of the circuit court is not such a final judgment from which an appeal will lie which does not settle the case as to all parties or which does not finally dispose of all of the issues presented. See Mississippi Code Annotated sections 11-7-213, 11-51-3 and 99-17-47 (1972). Also, State Tax Commission v. Clinton, 267 So.2d 312 (Miss.1972), and cases there cited.

Mississippi Code Annotated section 11-51-79 (1972) provides, among other things:

. . . [W]hen on appeal from the county court a case has been reversed by the circuit or chancery court there shall be no appeal to the supreme court until final judgment or decree in the court to which it has been appealed. . . .

It follows that the present appeal is premature and cannot be entertained by this Court. The appeal is therefore dismissed and the case remanded to the circuit court for trial in due course.

Dismissed and remanded to Circuit Court.

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


text:
    W. M. DEAVOURS v. CITY OF LAUREL.
    No. 48223.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Deavours, Weems & Gilchrist, Laurel, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


text:
    Charles YOUNG v. STATE of Mississippi.
    No. 48651.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    A. K. Edwards, Mendenhall, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-j oleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and BROOM, JJ.
   BROOM, Justice:

Assault with intent to rape was the charge brought against appellant, Young, in the Circuit Court of Simpson County, Mississippi. He appeals from a sentence of ten years in the penitentiary. We reverse.

The controlling issue is: Did the proof show a completed offense of rape rather than mere assault with intent ?

A fourteen-year-old female was at home with her two sisters and a brother (all younger than she). After the appellant arrived, the episode developed out of which the state indicted him for assault with intent to rape, contrary to Mississippi Code Annotated section 97-3-71 (1972).

The state’s case consisted largely of the testimony of the victim of the alleged assault. There was corroboration. Without repeating the details, we point out that the testimony of the prosecutrix showed the completed act of sexual intercourse rather than an assault with intent. Her testimony positively established penetration, after which she escaped and shot appellant with a rifle. Another state witness, in describing what appellant did, stated that “he raped her.”

Mississippi Code Annotated section 97-1-9 (1972) enjoins courts from convicting one of assault with intent to commit a crime in cases where the offense is perpetrated to completion. Thompson v. State, 226 Miss. 93, 83 So.2d 761 (1955). Failure to consummate the crime of rape is an essential element of the proof where the charge (as in this case) is “assault with intent to forcibly ravish.” In the case before us the proof was conclusive that the sexual encounter was more than an assault with intent to ravish — it was actually perpetrated to completion. Therefore, under the rationale of Thompson, supra, it was error to prosecute and convict the appellant of assault with intent to ravish.

The judgment is reversed and rendered for appellant who is ordered held for further action of the grand jury.

Reversed and rendered.

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


author: WALKER, Justice:

text:
    George RATLIFF, Jr. v. STATE of Mississippi.
    No. 48490.
    Supreme Court of Mississippi.
    Aug. 11, 1975.
    McTeer, Walls & Bailey, Greenville, Carver A. Randle, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen. and John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   WALKER, Justice:

The appellant was indicted and tried for murder in the Circuit Court of Sunflower County, Mississippi. From a conviction of manslaughter and a sentence of fifteen years in the state penitentiary, he takes this appeal.

Appellant’s primary contention is that the trial court erred in denying appellant’s motion to suppress a written statement given by him detailing his involvement with the deceased on the night of the homicide. In his brief, he contends that the written statement which was introduced in evidence and considered by the jury was in fact “coerced, induced, and otherwise involuntarily given thereby rendering it unlawful and inadmissible at the trial court level. ...” The appellant testified on the motion to suppress that J. M. “Skeeter” Robertson, a close friend and former employer of appellant and also vice-mayor of the Town of Ruleville, stated “ . . .if you make a statement, you can go home, you can get out on bond and they can have the charge reduced to manslaughter and you can beg for mercy of the Court and you can go home . . . and that the reason he signed the statement was “ . . . Mr. Robertson had promised me that I would get out on bail, the charge would be reduced to manslaughter, that I can beg for mercy of the Court and I would be able to go home. . . . ”

A lengthy hearing on the motion to suppress appellant’s statement was had in the absence of the jury as required by Agee v. State, 185 So.2d 671 (Miss.1966), and there is no complaint that the hearing was not properly conducted. The officers who were present when the statement was signed, and J. M. “Skeeter” Robertson who allegedly made the promises to the appellant during interrogation, were placed on the stand and denied that any such promises were made. The trial court entered a finding of fact that the statement was freely and voluntarily given and was not the result of any threats, force, coercion or intimidation exerted against the defendant; and, that there were no promises or hopes of reward made to the defendant and particularly found that appellant was not told by Mr. Robertson that, “It is best to make a statement and maybe you can get out on bond and have it reduced to manslaughter.” The evidence presented on the motion to suppress by the appellant and the state was conflicting and was therefore for the court to resolve, which it did contrary to appellant’s contention. Moreover, the appellant submitted to the jury by his instruction number 15, the issue of whether the statement was freely and voluntarily given. That instruction reads as follows:

The Court instructs the jury for the defendant that if you believe from the evidence that the alleged confession was induced by Mr. J. M. “Skeeter” Robinson [sic] and Officer Willie Martin by a promise to the defendant that the charge of murder would be reduced to manslaughter; that if he confessed to a charge of manslaughter he could be released on bond and allowed to go home; or that leniency would be shown him, then you should disregard the alleged confession.

It is evident from the verdict that the jury also decided the issue of whether the statement was voluntary against appellant’s contention.

We would point out that having the issue of whether the statement was freely and voluntarily given submitted to the jury was more than the defendant was entitled. The voluntariness of a statement and its admissibility in evidence is a question for the court to determine and not a question for the jury. Norwood v. State, 258 So.2d 756 (Miss.1972); Rhone v. State, 254 So.2d 750 (Miss.1971); Buckler v. State, 171 Miss. 353, 157 So. 353 (1934); Whittaker v. State, 169 Miss. 517, 142 So. 474 (1932); Tyler v. State, 159 Miss. 223, 131 So. 417 (1930); Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687 (1930); Stubbs v. State, 148 Miss. 764, 114 So. 827 (1927); Brown v. State, 142 Miss. 335, 107 So. 373 (1926); Lee v. State, 137 Miss. 329, 102 So. 296 (1924); Hunter v. State, 74 Miss. 515, 21 So. 305 (1897); Ellis v. State, 65 Miss. 44, 3 So. 188 (1887); Lego v. Twomey, Warden, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

However, after the court has ruled that a defendant’s statement or confession is admissible in evidence, the defendant may nevertheless show all the attendant circumstances surrounding the taking of the statement that would have a bearing on its strength or weakness.

In Rhone v. State, 254 So.2d 750 (Miss.1971), this Court, speaking through Justice Inzer, said:

It has long been the law of this state, that before a confession can be received in evidence, it must be shown to be competent in that it was freely and voluntarily given. This is a legal question to be determined by the court on a preliminary investigation out of the presence of the jury. If, after hearing all the testimony pertinent to the inquiry, the court is satisfied beyond a reasonable doubt that the confession was freely and voluntarily given, it becomes competent evidence. However, after a confession has been held by the court to be competent evidence either party has a right [but is not required] to introduce before the jury the same evidence which was submitted on the preliminary inquiry as well as any other evidence relative to the weight and credibility of the confession. The jury does not pass upon the competency of the confession, but the jury does pass upon the weight and credibility of the confession. The jury has the same freedom of action in relation to confessions which they have in regard to other testimony. . . . Harvey v. State, 207 So.2d 108 (Miss.1968); Wright v. State, 212 Miss. 491, 54 So.2d 735 (1951); Fisher v. State, 145 Miss. 116, 110 So. 361 (1926); Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A.(N.S.) 1183 (1914); Ellis v. State, 65 Miss. 44, 3 So. 188 (1887). (254 So.2d at 754).

Appellant next complains of a statement made by the county attorney during his closing argument and urges that a mistrial should have been declared. The record reflects that during his closing argument, the county attorney made the following statement:

Now, when you go back in your jury room to deliberate on your verdict, then you will have with you these exhibits that have been introduced into evidence during the last few days. Now, the first exhibit you will see here is this Waiver of Rights Form. I think it is important for you to look at this. This defendant acknowledges having executed it and all, he acknowledges this in some of the earlier transcripts of earlier testimony that you have heard, and it is witnessed by not only the Sheriff, but by John White-side, III. You will recall I asked the sheriff who that was and he said a member of the FBI, and you heard the testimony that the FBI investigated this crime also.
Now, I submit to you that when we start talking about this confession, which is Exhibit 2, this confession that was given by this defendant, that with this defendant having the aunt that he has Fannie Lou Hamer, Mrs. Hamer, do any of you really believe, as nationally known as she is, that this confession could have been gotten from this defendant in any other way than how— (Emphasis added.)
MR. BAILEY:
We object, Your Honor, and we ask that the jury be removed from the Courtroom.
THE COURT:
All right, I will ask you to go back into the jury room.

After the jury left the courtroom, the appellant moved that a mistrial be declared contending that the emphasized portion of the above statement by the prosecutor had no relevancy, was not related to any evidence in the case, and was made solely for the purpose of prejudicing the case.

After argument of counsel on the motion, the court sustained the objection to the remarks, but overruled appellant’s motion for a mistrial. The jury then returned to the courtroom, and the closing argument was resumed by counsel.

The appellant did not request the trial court to instruct the jury to disregard the county attorney’s reference to Mrs. Hamer. If the appellant had so requested, in all probability, the court would have sustained the motion.

We would also point out that Mrs. Fannie Lou Hamer was called as a witness by the appellant in an attempt to show that the incriminating statement given by him was not given freely and voluntarily; and, Mrs. Hamer revealed, while on direct examination, that she was appellant’s great-aunt. Her participation in the case was brought about at the instance of the appellant; and her presence and participation was well known to the jurors long before the county attorney’s reference to her was made in closing argument. We are at a loss to see how the county attorney’s statement, if error at all, in any way influenced the outcome of the case. The appellant states in his brief that Mrs. Fannie Lou Hamer is a very prominent person in this State and throughout the United States, and is known for her civil and human rights activities. If her identity and relationship to the appellant were prejudicial, which we do not think they were, the appellant cannot be heard to complain since he brought her into the case. We are therefore of the opinion that the , trial judge properly overruled appellant’s motion for a mistrial.

The appellant’s contention that the verdict is contrary to the overwhelming weight of the evidence is wholly without merit and warrants no discussion.

The judgment of the trial court is therefore affirmed.

Affirmed.

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


text:
    WILLIAM COOPER AND NEPHEWS, INC. v. Waddell PEVEY.
    No. 48212.
    Supreme Court of Mississippi.
    Aug. 11, 1975.
    Rehearing Denied Sept. 2, 1975.

      Watkins & Eager, Velia Ann Mayer, Jackson, for appellant.
    Mounger & Mounger, Tylertown, Jack A. Morris, Monticello, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice.

This products liability case tried in the Circuit Court of Lawrence County, Mississippi, resulted in a verdict and judgment for $8,600 in favor of Waddell Pevey. The suit was brought by Pevey to recover damages for the death of some of his cattle which allegedly resulted from being dipped in a solution manufactured by William Cooper & Nephews, Inc.

The controlling issue is whether the verdict is against the overwhelming weight of the evidence.

Appellee, desiring to dip his cattle for parasites (ticks, lice, etc.) employed his friend, Givens, to purchase several containers of the dip concentrate at $11.50 per container. Givens purchased the solution from the Branding Chute in Jackson, Mississippi, and delivered it to appellee. Ap-pellee obtained the expert assistance of Pullen, the County Agent for Lawrence County, who, relying on successive test kit results rather than instructions on the label, mixed and diluted the dipping solution with water in a vat through which the cattle were made to pass. By repeatedly adding dip concentrate, stirring, and testing, Pullen said he obtained the recommended proportion or strength of the diluted solution in the vat.

The cattle were dipped on the afternoon of April 10, 1965, and on the following day a number of them were dead. Others were suffering from problems which developed subsequent to the dipping.

Dr. C. W. Price, a veterinarian employed by appellee, took specimens from stomachs of several of the cattle. He also (assisted by Pullen) took samples of the diluted dip which was used from the vat and caused the specimens and samples to be analyzed at Mississippi State University. Other tests were made on samples of the dip solution.

It is argued on behalf of appellant that it should have been granted a directed verdict because the appellee introduced no evidence of any defect in the cattle dip concentrate manufactured by appellant, and that the verdict is against the overwhelming weight of the evidence.

Though Pevey’s pleadings were cast in the nature of a suit for breach of implied warranty and negligence, his case was submitted to the jury on the theory of strict liability in tort as shown by jury instructions granted at his request. State Stove Mfg. Co. et al. v. Hodges, 189 So.2d 113 (Miss.1966) is the landmark decision in this state, which adopted the theory of strict liability in tort. This Court said in State Stove:

“The extent of strict liability of a manufacturer for harm caused by his product is not that of an insurer. It is strict in the sense that there is no need to prove that the manufacturer was negligent. If the article left the defendant’s control in a dangerously unsafe condition, or was not reasonably safe, or was unsafe for its intended use, the defendant is liable whether or not he was at fault in creating that condition or in failing to discover and eliminate it. Ordinarily the phrase ‘defective condition’ means that the article has something wrong with it . . . .” (189 So.2d at 120-21.) (Emphasis added.)

As said by this Court in Ford Motor Company v. Matthews, 291 So.2d 169 (Miss.1974) in discussing the elements of a strict products liability case, “it is first necessary to prove” that the product left the manufacturer in a defective condition which “rendered it unreasonably dangerous.” Next, the element of causation, i. e., that the defect was the proximate cause of the injury, must be proven. Causation may be proven by direct evidence but this type of proof is not essential. As we said in Ford Motor Company v. Matthews, supra, the burden of proof to establish causation may be met by showing sufficient facts to allow a jury to infer defective quality and that such defective quality was a substantial element in producing the injury complained of.

The more recent case (involving a defective ketchup bottle) of Early-Gary, Inc. v. Walters, 294 So.2d 181 (Miss.1974), dealt with strict liability in tort as defined in Section 402A Second Restatement of Torts. That case restated the rule that:

“Before recovery can be had under this Section three elements must be established by the proof:
(1) that the plaintiff was injured by the product, (2) that the injury resulted from a defect in the product which rendered it unreasonably dangerous, and (3) that the defect existed at the time it left the hands of the manufacturer.” (294 So.2d at 186.)

In Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295 (1934), this Court recognized the desirability of proving facts capable of direct proof by chemical analysis if such proof is reasonably available to the party who has the burden of proof. Circumstantial evidence may be used to prove the defect in cases where there is no other way to establish it. Without deciding whether the lower court erred when it failed to grant a directed verdict for the appellant when the appellee rested, we do feel that there is merit to the argument that the verdict is contrary to the weight of the evidence.

In the present case scientific analyses of the product said to be defective were made. After carefully studying the testimony regarding chemical analyses performed by experts on the product in the light most favorable to the appellee, one cannot help but reach the conclusion that each analysis proved overwhelmingly that there was no defect in the product in question. The record also shows that experts examined samples of the diluted dip and stomach specimens. Results of the examinations (introduced by appellant after appellee rested) showed not only that the product was not defective, but also that it was safe for use if used according to instructions on the label.

To make out a case based on the theory of strict liability, the burden of proof was upon the appellee to prove the existence of a defect in the product. Of the several experts who tested the dip solution, not one of them said that there was any defect or anything wrong with the product. Obviously the dip solution contained arsenic and the cows died from arsenic poisoning. Admitted into evidence was the report of Dr. Ethridge which stated that he found “quite a bit of arsenic in the cows’ stomach contents.” Quite significantly, this same expert stated that this “proved beyond any reasonable shadow of a doubt that the cows or calves in question are bound to have ingested some of this material through the mouth.” Though the directions on the label of the dip made it clear that the solution was to be used for dipping, that it was poisonous, and might be fatal if swallowed, the appellee admitted on cross-examination as to whether the cattle drank any of it, “I don’t know. I just say that product killed them.”

Mere proof of damage following its use was not sufficient to establish liability, especially when the testimony adduced at the trial clearly and convincingly negated the contention that the dip was defective and unnecessarily dangerous.

The appellee argues that direct proof (in addition to circumstantial evidence) of a defect in the product is in the record. On cross-examination of Dr. Minyard, appel-lee’s counsel placed into evidence the written report of Dr. Ethridge who did not testify in person during the trial. Dr. Eth-ridge’s report stated, among other things, that “there might have been a trace” (emphasis added) of arsenic retained on the filters used by analysts (Tupper and Patterson) in making tests of samples submitted to them. It is noted that in his report Dr. Ethridge did not state as a fact that there was or was not any quantity whatever of crystalline (undissolved) arsenic found by him or any of his associates. Any question about the matter is cleared up by the testimony of analyst Patterson who testified subsequent to Dr. Minyard. Patterson positively and unequivocally established that no crystalline arsenic was filtered out or found. Thus the record is clear that the testimony of Dr. Minyard, or Dr. Ethridge by way of a written report, or analyst Patterson in no way shows or even suggests any defect in the subject product.

Ford Motor Company v. Cockrell, 211 So.2d 833 (Miss.1968) was a case involving strict liability in tort. There we affirmed a jury verdict against a manufacturer where there was “direct and circumstantial evidence” of a latent defect in the truck traced back to manufacture of the truck. By any criterion one may apply, the evidence against appellant in the instant case was not nearly so cogent. The instant case is controlled by State Stove Manufacturing Company v. Hodges, supra, because of the absence of evidence to show that the product (dip solution) was defective when it left the manufacturer’s control. Overwhelmingly demonstrated by the whole record is the inescapable conclusion that the product manufactured by appellant was within the range of United States Department of Agriculture regulations as safe and effective, and that if used as intended and according to directions it was safe for dipping cattle.

We have before us no evidence that (1) appellant was guilty of negligence, or (2) that it breached any warranty, or (3) that its product was defective. Such a state of the record together with the admission of appellee, Pevey, that he did not know whether or not his animals drank the solution during the dipping process, requires that the case be reversed and rendered. The verdict and judgment awarded appel-lee were contrary to the overwhelming weight of the evidence, and appellant should have been given the peremptory instruction it requested at the conclusion of all testimony.

Reversed and rendered.

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