text:
    Joseph Jerry BATISTE v. POINTE COUPEE CONSTRUCTORS, INC., et al.
    No. 14274.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Richard T. Redd, Joseph A. Gladney, Baton Rouge, for plaintiff-appellant, Joseph Jerry Batiste.
    Charles W. Franklin, Baton Rouge, for defendant-appellees, Pointe Coupee Constructors, Inc. and Bituminous Casualty Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a workmen’s compensation case filed by the employee, Joseph Jerry Batiste, against his employer, Pointe Coupee Constructors, Inc., and its workmen’s compensation insurer, Bituminous Casualty Corporation, claiming total and permanent disability as a result of a back injury allegedly sustained in a job-related accident, and penalties and attorney’s fees due to failure to timely pay compensation benefits.

This case was consolidated with the plaintiff’s tort suit against Rodney Robillard, John L. Morrison, Jr., John L. Morrison and Vaneta Morrison, who are allegedly executive officers of Pointe Coupee Constructors, Inc. We are rendering a separate opinion in that companion case. See 401 So.2d 1267 (La.App. 1 Cir. 1981).

In the workmen’s compensation suit the trial court found that the plaintiff was entitled to compensation benefits of $85.00 per week from the date of the injury, February 19, 1976 through July 18, 1977, and certain medical expenses (subject to credit for payments made), and denied penalties and attorney’s fees. From this award, the plaintiff has appealed, claiming that he is totally and permanently disabled and entitled to penalties and fees.

At the time of the accident, the plaintiff was employed by Pointe Coupee Constructors, Inc. as a working carpenter foreman. His employer was a relatively small company, engaged as a contractor in construction work. Batiste had only recently become employed by the contractor, although he had worked more than 20 years as a carpenter, and had especially engaged in the activity of building and erecting manhole or construction forms, the type of work he was doing at the time of his accident. Rodney Robillard was the craft foreman and immediate supervisor of Batiste, and John L. Morrison, Jr. was a director of the construction company and general superintendent on the Ethyl construction job. John and Vaneta Morrison did not actively run the company, or participate in the particular construction job.

On the date of the accident Batiste was working on the job of constructing, transporting and erecting construction forms for catch basins, a job that he and his co-employees had worked on for some time. They had already built and installed 23 manhole forms for catch basins and were working on the last such form when Batiste sustained the injury of which he complains. The work job of plaintiff and his co-employees consisted of building these forms in a construction building some distance from the actual job site, loading them on a pickup truck for transportation to the site, and erecting the forms in the catch basin site. It was while Batiste and a co-employee were carrying the last form that plaintiff suffered his back injury, when the co-employee stumbled and dropped his side of the form, causing a wrenching injury to plaintiff’s back. The weight and size of the manhole forms were not definitely established by the record, but they were heavy and awkward to handle, about 200-300 pounds in weight. The accident happened about 10:00-11:00 o’clock in the morning, but Batiste continued to work for the remainder of the day and for five weeks thereafter. He reported the injury to his immediate supervisor that day after work.

Dr. Stephen M. Wilson, an orthopedic surgeon who was Batiste’s treating physician, saw Batiste for the first time on February 24. Plaintiff stated to the doctor that while working at Ethyl Corporation he picked up some wooden forms and strained muscles in his lower back. The patient complained of some pain on forward flexion. After examination, x-rays and the usual medical tests, Dr. Wilson felt that Batiste had sustained an acute muscle strain to the lower back; but, other than some muscle spasm, the doctor was unable to note any objective clinical findings of injury. Plaintiff was advised to avoid heavy lifting for a time, but no other restrictions were placed on his activities. Dr. Wilson saw the plaintiff again on March 15, 1976, and observed that the muscle spasm had gone away and that he was much improved. At that time, the doctor told the plaintiff that he could gradually return to his normal duties and activities. Parenthetically, Dr. Wilson also saw Batiste on July 18, 1977, and his examination was negative of any objective findings.

The trial judge gave great weight to the testimony of Dr. Wilson, as follows:

“On the comp suit, the Court finds — The Court’s findings will probably be set forth in the history of the visits to Dr. Wilson. February 24th, 1976, Dr. Wilson examined this man. The accident happened on February 19th, 1976. He found acute muscle strain to the lower back. On 3— 15-76, he was much improved. He said he could gradually return to his normal activities. Dr. Wilson saw him on July 18th, 1977. The Court felt that the examination was negative as to any objective findings. Neurologically everything was normal. He was advised to return to his normal activities. The Court feels that in the evidence in this case, the preponderance of the evidence shows that the workmen’s compensation should be awarded in the sum of $85.00 per week from February 19th, 1976 until Dr. Wilson’s report on January 18th, 1977 [examination of July 18, 1977], subject to a credit for the time which he worked after the accident.”

There is nothing in the record to indicate that Batiste did not return to his full duties on March 15, 1976, or that he was unable to work and perform his duties after his release by the doctor. Rather, the payroll records show that Batiste worked and was paid on a full-time basis during the immediate period following the accident; the testimony of Morrison and Robillard reveals that Batiste continued to perform the duties of carpenter foreman until such time as the work of the carpenters was completed and all of the carpenters left the job.

Batiste saw no physicians following his March 15, 1976 visit to Dr. Wilson until he was referred by his attorney to Dr. Gernon Brown, an orthopedic surgeon, on February 10, 1977. Dr. Brown’s examination produced minimal mechanical findings and no orthopedic deficit. Dr. Brown was of the opinion that the plaintiff “was not disabled and could work.”

He was then sent by his attorney to Dr. Byron Unkauf, an orthopedist, who first saw Batiste on February 14, 1977 (about one year after the accident), at which time the doctor felt the patient “had sustained a mild lower lumbar disc lesion.” Next, the patient was seen on April 1, 1977, when the doctor observed some muscular tightness and pain. Dr. Unkauf indicated that further investigative procedures would be necessary before he could tell whether or not surgery was needed.

Following that, he saw no doctors until he was referred back to Dr. Wilson by the insurer on July 18, 1977 for a reevaluation. Dr. Wilson’s examination again revealed normal findings and no disability. Batiste was advised to resume his normal activities.

Then, a period of more than two years elapsed without any treatment or consultation by a doctor until Batiste was referred by his attorney to Dr. Kenneth E. Vogel, a neurosurgeon.

He saw Mr. Batiste on August 2, 1979, and made neurological examinations. After seeing Dr. Vogel on August 2, 1979, plaintiff submitted to an EMG (a diagnostic test for nerve root interference), which was normal. He then returned to that physician on September 9, 1979. Dr. Vogel concluded that Batiste had a herniated disc and was unable to work as a carpenter and was “disabled, at this time, on a temporary basis” from doing construction work, but found no objective signs of any cervical problems. He recommended a myelogram, but Batiste declined to have one performed.

Batiste was referred back to Dr. Gernon Brown in October of 1979, who again found no objective evidence of back injury, but recommended further medical investigation.

On February 5, 1980, the plaintiff was seen by Dr. Richard Levy, a neurosurgeon, at the insurer’s request. Dr. Levy found a completely normal neurological examination, with no signs of nerve root injury, and no indication for further diagnostic tests. Dr. Levy found nothing to suggest a ruptured disc.

On May 15, 1980, Dr. George C. Battalo-ra, Jr., an orthopedic surgeon, saw the plaintiff. He found no objective findings from an orthopedic standpoint of any abnormalities or serious back problems. Dr. Battalora noted:

“A. My written opinion was, my initial impression was there was a large amount of exaggeration present when I evaluated the patient. Although he voluntarily restricted all back motion a good range of motion could be elicited while other maneuvers were being performed during the examination. I didn’t feel there was any true and constant spasm in the back musculature, and I did not feel there was any abnormal neurological signs. He is a difficult patient to evaluate, and the symptoms have been so prolonged, I felt it would be justifiable in admitting the patient to the hospital for further diagnostic studies basically a myelogram.”

Following the examination by Dr. Batta-lora, Batiste returned to Dr. Vogel on May 20 and June 5, 1980.

This evidence is sufficient to maintain the trial court’s determination that the injury was not such as to render the claimant totally and permanently disabled, and that the plaintiff had failed to prove disability beyond July 19, 1977. Having found no manifest error, we affirm the determination by the trial court that plaintiff is not totally and permanently disabled. See Torregano v. Home Insurance Company, 356 So.2d 457 (La.App. 1 Cir. 1977).

The trial court may accept or reject an opinion expressed by any medical expert, depending on what impression the qualifications, credibility and testimony of the expert makes on the court. In evaluating the testimony of medical experts, considerable weight must be given to the opportunities each physician had for observation and examination of the patient and to the expert’s familiarity with the patient and his history. In general, the testimony of a treating physician who has had the benefit of repeated examination, actual treatment of the patient, and sustained observation of the patient under his direct care, is entitled to greater weight and probative value than the testimony of a physician who has not undertaken the treatment of the patient but has merely examined him preparatory to giving expert testimony regarding his condition. In deciding whether an employee has proven his claimed disability, the totality of the evidence, medical and lay, must be considered. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

It is the trial judge’s function to determine the weight which is to be accorded the medical and the lay testimony. In carrying out this function the court below apparently gave greater weight to the medical evidence than it did to lay testimony, and greater weight to the treating physician than to the examining physicians.

It is well established that on appellate review, the trial court’s factual findings as to disability are entitled to great weight. They are not to be disturbed in the absence of manifest error. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Laborde v. Roy O. Martin Lumber Company, Inc., 316 So.2d 440 (La. App. 3 Cir. 1975), writ denied, 320 So.2d 207 (La.1975).

We conclude that a reasonable evaluation of the evidence supports the trial court’s finding that Mr. Batiste was no longer disabled after July 18, 1977. Therefore, this finding will not be disturbed.

Our careful examination of the entire record reveals that the plaintiff has failed to carry his burden of proving that his injury has caused total and permanent disability to him, or any disability beyond the time allowed by the trial judge. Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La. App. 1 Cir. 1977).

Furthermore, the trial judge’s denial of penalties and attorney’s fees can not be disturbed. LSA — R.S. 22:658 provides for the imposition of penalty and attorney’s fees only when the failure to pay is “arbitrary, capricious, or without probable cause.” This statute, being penal in nature, must be strictly construed; the burden is on the claimant to prove lack of probable cause, arbitrariness or capriciousness. Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1 Cir. 1975), writ refused, 320 So.2d 911 (La.1975). We find no manifest error in the trial judge’s determination that the evidence does not indicate that an award of penalties and attorney’s fees should have been made.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Joseph Jerry BATISTE v. Rodney ROBILLARD, et al.
    No. 14275.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Richard T. Redd, Joseph A. Gladney, Baton Rouge, for plaintiff-appellant Joseph Jerry Batiste.
    Charles W. Franklin, R. Michael Caldwell, Baton Rouge, for defendants-appellees Rodney Robillard, Bituminous Casualty Corp., John L. Morrison, Vaneta D. Morrison and John L. Morrison.
    James M. Ross, Baton Rouge, for defendant-appellee Rodney Robillard.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This suit involves a tort claim for damages against Rodney Robillard, John L. Morrison, Jr., John L. Morrison and Vaneta Morrison, who are allegedly executive officers of Pointe Coupee Constructors, Inc., the plaintiff’s employer. Plaintiff, Joseph Jerry Batiste, alleges that defendants are personally liable to him for damages he sustained when he injured his back on February 19, 1976, while doing carpentry work on a job for his employer at the Ethyl Corporation in Baton Rouge, Louisiana.

This case was consolidated with plaintiff’s suit for workmen’s compensation against his employer, Pointe Coupee Constructors, Inc. We are rendering a separate opinion in that companion case. See 401 So.2d 1263 (La.App. 1 Cir. 1981), No. 14,274 on the docket of this Court.

In the tort suit, the trial court found that none of the defendants were negligent and, therefore, rendered judgment in favor of defendants dismissing the plaintiff’s suit. Plaintiff has devolutively appealed this judgment.

On February 19, 1976, while employed by Pointe Coupee Constructors, Inc., Batiste and a co-employee were carrying a heavy manhole form from the place where it had been built to a pickup truck to transport it to the place where it was to be erected, when the co-employee slipped and dropped his end of the form, causing a wrenching back injury to the plaintiff. The form they were carrying was the last one needed for this particular job (a catch basin); they had already transported three forms that day and four on the day before. (There were eight forms to a catch basin; and, 23 manhole forms had already been erected.) Rodney Robillard was the craft foreman and immediate supervisor of Batiste; John L. Morrison, Jr. was a director of the company and the general superintendent on the Ethyl construction job. John and Vaneta Morrison did not actively participate in the operation of the construction company, and were dismissed by the trial court from the suit. Batiste was an experienced carpenter, having worked as such for about 20 years; he was also experienced in building, moving and erecting manhole forms of the kind he was moving at the time he got hurt, and was the carpenter foreman when the accident happened. Although the accident happened about 10:00 or 11:00 o’clock in the morning, Batiste continued to work the rest of the day; and worked for five weeks after the injury.

The basis for the executive officer tort suit was that the general superintendent (Morrison) and the supervisor (Robillard) failed to carry out their respective duties to provide Batiste a safe place to work.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Louisiana Supreme Court set forth the criteria for imposing executive officer liability, as follows:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances—whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance of mal-performance and has nevertheless failed to cure the risk of harm.”

The Canter v. Koehring Company opinion also makes it clear that whether there is actionable negligence is to be determined under general tort principles:

“The failure to act as required by the employment duty may deprive the third person of a protection owed him by the principal or employer, and such risk of harm because of the breach may have been reasonably foreseeable. Thus, the breach of the duty imposed by the employment or agency relationship may, under general tort principles, be actionable negligence because of the creation or maintenance thereby of an undue risk of harm to others.”

Applicable general tort principles, developed within the scope of the fault concept established by LSA-C.C. Art. 2315, include the following:

(1) Actionable negligence results from the creation or maintenance of an unreasonable risk of harm to others.
(2) Statutory violations may be guidelines for the court in determining standards of negligence by which civil liability is determined, although they are not in and of themselves definitive of civil liability.
(3) Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances.
(4) Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution and foresight does not constitute negligence or contributory negligence.

See Smolinski v. Taulli, 276 So.2d 286 (La.1973); Galliano v. Lirette, 339 So.2d 378 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 416 (La.1977).

A statutory guideline in determining the duty owed by an employer to an employee is found in LSA-R.S. 23:13 which provides:

“Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

The record reflects that Pointe Coupee Constructors was a closely-held family corporation with defendant Morrison as a part owner and acting in the capacity of secretary-treasurer of the corporation and general superintendent of the particular job on which the accident to the plaintiff occurred. The chain of command was that Morrison would set out the day’s work for Robillard, the crafts foreman or overall supervisor, and Robillard would in turn tell the foreman of each craft, such as Batiste (the carpenter foreman), what work was to be done that particular day, leaving it up to the respective foreman to see that the particular work was done by his workmen. On the day in question the plaintiff was working as carpenter foreman, having recently replaced a man who had quit.

Batiste testified that he had been working as a carpenter for more than 20 years and had been a member of the carpenter’s union for many years. He was asked to be carpenter foreman on this job because he could read blueprints and knew how to build and erect manhole forms; the reason he gave was, “I had been on many other jobs building manhole forms.” In general, his duties were to perform some work as carpenter, to see that the carpentry work by other carpenters and laborers was done, and to tell the other carpenters and laborers what work was to be done and how it was to be done after getting the daily work-orders from Robillard.

The record shows that Batiste got his work-orders on February 19,1976, from Ro-billard, before the accident; he did not receive any direct instructions from Morrison as to how to erect or move the forms; he was not ordered by Robillard to take one employee, and for the two of them to carry or move the form. Defendants Morrison and Robillard were not actually present at the time of the accident. Robillard testified that it was the duty of the carpenter foreman, Batiste, to actually supervise the carpentry work and to utilize the carpenters and laborers and equipment available to him for the particular tasks that had to be performed.

The testimony at the trial indicates that the manhole form being carried by Batiste and his co-employee was about seven feet by seven feet and weighed between 200-300 pounds, although the size and weight was not definitely established. The evidence also shows that there were several workers available to help carry the form: a carpenter and five laborers. Therefore, Batiste, as carpenter foreman, had the laborers available to assist him. Twenty-three similar forms had already been set by hand on this job; and Batiste and his helper had already moved three such forms to the truck for transporting to the catch basin that day without difficulty.

Considering the fact that some twenty-three similar forms had been moved without incident, and that the job of moving these forms had been assigned to a carpenter-carpenter foreman with some 20 years’ experience in his field and with actual experience in building, erecting and moving such forms, we find no negligence or breach of duty on the part of Morrison and Robillard in leaving a job within the plaintiff’s job description and experience up to him to properly perform the necessary work. Placing an experienced workman, such as the plaintiff, in charge of building, transporting and erecting construction forms does not constitute negligence or a breach of the employer’s duty to provide the plaintiff with a safe place to work.

Appellant’s counsel has cited numerous cases in support of his position. They are inapposite. Among them are: O’Keefe v. Warner, 288 So.2d 911 (La.App. 1 Cir. 1973), writ denied, 293 So.2d 170 (La.1974); Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977), writ denied, 346 So.2d 213 (La.1977). They are distinguishable from the instant case. In O’Keefe, the employee was injured when a crane he was operating tipped over because of a defect which caused the load to get out of balance. There was no proof of assumption of risk or contributory negligence on the part of the plaintiff in O’Keefe. The appellant in the instant case is dissimilar to the inexperienced youth in the Walker case.

Further, this case is easily distinguishable from Talluto v. Patchen, 370 So.2d 618 (La. App. 4 Cir. 1979), where the immediate superior directly ordered the employee to move a heavy object in an obviously unsafe manner.

In Laborde v. Martin, 316 So.2d 437 (La. App. 3 Cir. 1975), writ denied, 320 So.2d 207 (La.1975), and Richardson v. Heyd, 323 So.2d 507 (La.App. 4 Cir. 1975), the courts held the employee had sufficient knowledgeable control over his situation at the time of the injury to make a reasonable evaluation of his conduct, a pertinent factor in considering negligence which contributed to cause the harm.

We thus agree with the trial judge’s conclusions regarding the defendants, that they were not negligent under the circumstances. Batiste was not ordered by Morrison or Robillard to move the form in the manner in which he chose to move it; as carpenter foreman, he personally selected this manner. Ample labor-help was available, yet the plaintiff chose to move the form in that particular way.

Moreover, in the event that it can be said that either Morrison or Robillard was negligent, then the record clearly establishes Batiste’s contributory negligence.

The situation in the instant case is similar to that of the plaintiff in Miller v. Employers Mutual Liability Insurance Company of Wisconsin, 349 So.2d 1353 (La.App. 2 Cir. 1977). In Miller, the injured employee was experienced in his craft of millwright and his work was such that he was expected to exercise his own judgment as to the manner in which his assigned work was to be done. Miller, too, had the authority to call on laborers, as well as other members of his own craft, to assist him in his work. After reviewing the employee’s situation vis a vis the supervisory personnel, the Court stated as follows concerning the contributory negligence of an employee:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.” (349 So.2d at 1362)

The Court then went on to conclude that the criteria had been met and to find that the plaintiff was contributorily negligent.

The Miller criteria have been met in the instant case: Batiste had more knowledge of the situation and any risk or danger than either Morrison or Robillard; he had control, as carpenter foreman in charge of this particular job, over the manner in which the work was performed; his conduct was voluntary; there were alternatives available to him as foreman; and any danger or risk could have been eliminated by him.

The plaintiff in the Miller case had claimed that his actions were not voluntary because of fear of losing his job. However, in Miller, as in the instant case, there was nothing in the record to indicate that the employee had any reason to be in a fear of losing his job if he called for additional assistance, or used alternative methods of accomplishing the work. Our careful examination of the record in the case at bar does not disclose manifest error in the conclusions of the trial court.

Accordingly, the trial court was correct in dismissing Batiste’s tort claim.

For the foregoing reasons, we affirm the judgment appealed at the appellant’s costs.

AFFIRMED.

      . This is an “executive officer” negligence action arising out of an accident that happened prior to the enactment of Act 147 of 1976, amending LSA-R.S. 23:1032, which now precludes such actions.

      . The plaintiff has not appealed this dismissal from the suit.


author: ELLIS, Judge:

text:
    Frank G. RIEGER v. Billy Gene NORWOOD.
    No. 14277.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Herschel C. Adcock, Adcock, Dupree & Shows, Baton Rouge, for plaintiff & appellant.
    Miriam T. Attaya, Attaya & Bell, Gonzales, for defendant & appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit by Frank G. Rieger, owner of an enclosed estate, to obtain a right of way across the property of Billy Gene Nor-wood to a public road. The properties belonging to the parties hereto form part of a larger tract formerly belonging to Cornelius Norwood, fronting about 700 feet on Nor-wood Road, a public road running east and west along the north line of the property. The original parcel had a depth of 989.66 feet.

Out of this parcel were sold four acres in a square in the northwest corner; a parcel in the southwest corner, now belonging to David Norwood, containing 1.305 acre; and a parcel in the southeast corner, now belonging to Dr. Rieger, also containing 1.305 acre. The David Norwood and Rieger properties each measure 225 feet on the north line and the south line, and 253 feet on the east line and the west line. In addition Dr. Rieger owns a 30 foot strip on the west side of the original tract, running up the west line to a point 110 feet from Norwood Road.

The remainder of the original tract is irregular in shape and is owned by defendant Billy Gene Norwood. He therefore owns the 110 foot strip between plaintiff’s 30 foot strip and Norwood Road, as well as a parcel 244 feet in width on the south line of the property between the Rieger property and the property of David Norwood. The David Norwood property is served by a parish road which terminates at the southwest corner thereof.

Plaintiff requests a right of way across defendant’s property 30 feet in width and 110 feet long, connecting his 30 foot strip to Norwood Road. Defendant objects to the location of the right of way sought by plaintiff, because it would take about half of his driveway, all of a row of shrubs planted by him, and would pass only 25 feet from his home, which faces Norwood Road. He objects to the dust, noise, and inconvenience which, he alleges, would result from the right of way being located so close to his home.

Defendant offers instead a right of way 20 feet in width, running west from plaintiff’s southwest corner, along the south line of the original tract, to connect with the parish road serving the David Norwood tract. There is filed in the record a right of way deed, executed by David Norwood and the defendant, conveying the proposed right of way to plaintiff. David Norwood is not a party to this suit.

The trial judge ruled that plaintiff would have to use the right of way tendered by defendant, and signed judgment accordingly. Plaintiff has appealed.

The following provisions of the Civil Code are relevant:

“Art. 689. The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.”
“Art. 690. The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.”
“Art. 692. The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.”

The term “generally” in Article 692 has been held to be an acknowledgment that there are exceptions to the general rule expressed therein, and it is recognized that the nature and location of the servitude are governed by the circumstances of the case. Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970); Morgan v. Culpepper, 324 So.2d 598 (La.App. 2d Cir. 1975); Finn v. Eoff, 368 So.2d 199 (La.App. 1st Cir. 1979).

It is clear from the record that the shortest distance from plaintiff’s property to a public road is across the 110 foot parcel which separates plaintiff’s 30 foot strip from Norwood Road. The distance from Norwood Road to the location of plaintiff’s house, following the above route, is well over 700 feet. No road has been constructed over either proposed location. The distance from plaintiff’s property to a public road across the property of defendant and David Norwood is 469 feet.

The trial judge found that the shortest distance over which plaintiff would have to construct a road was the 469 foot strip, and that the location for the servitude was the least injurious to defendant. He therefore rendered judgment locating the servitude as proposed by defendant.

We think it clear that, under Article 692 of the Civil Code, the distance to the nearest public road must be measured from the boundaries of the enclosed estate, and not from the improvements thereon. See Bandelin v. Clark, 7 La.App. 64 (1st Cir. 1927). We are therefore of the opinion that the inconvenience which will be suffered by defendant in this case is not sufficient to require plaintiff to construct a road over four times as long as the 110 foot distance, leading to a less convenient public road. See Littlejohn v. Cox, 15 La.Ann. 67 (1860).

However, we do not believe that plaintiff needs a 30 foot right of way for his driveway. We find that a 15 foot wide servitude will suffice for plaintiff’s needs. This will leave a distance of 40 feet between the servitude and defendant’s home, which should greatly decrease the inconvenience feared by defendant.

The judgment appealed from is therefore amended, so as to award to plaintiff a servitude of passage, 15 feet in width, beginning at Norwood Road, and running south along defendant’s west boundary a distance of 110 feet to the boundary of plaintiff’s property. Defendant shall pay all costs of this appeal. All other costs shall be paid by plaintiff.

AMENDED AND AFFIRMED.


author: LABORDE, Judge. FORET, Judge,

text:
    Linda Marie CARRON, Plaintiff-Appellant, v. Johnny JOHNSON, Jr., Defendant-Appellee.
    No. 8335.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Boagni & Genovese, Kenneth Boagni, Jr., Opelousas, for plaintiff-appellant.
    White & Pitre, Joshua J. Pitre, Opelousas, for defendant-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Linda Marie Carrón, appeals a trial court judgment ordering her to pay her husband, Johnny Johnson, Jr., alimony pendente lite in the amount of $75.00 per month. The only issue on appeal is whether the trial judge should have made the award. We affirm. We find no abuse of discretion by the trial judge in awarding defendant monthly alimony in the amount of $75.00.

After having been married for several years, plaintiff filed suit for separation on the grounds of cruel treatment. The suit for separation was filed July 15, 1980. A hearing on rule was held August 1, 1980, and a judgment on rule was signed August 25, 1980, awarding plaintiff custody of the three minor boys born of the marriage; defendant liberal visitation privileges; and further ordering defendant to turn over to the plaintiff monthly Social Security benefits due the children in the sum of $114.00 and similar benefits due plaintiff in the sum of $38.00. Both parties were enjoined from disposing of community property without the consent of the other.

A legal separation was never obtained by the parties. With new counsel, defendant, an invalid as a result of a work accident, filed an answer and reconventional demand on September 24, 1980, praying for alimony for himself and custody of his two older children. The rule was heard by the trial judge on October 31, 1980 — limited to the question of alimony. We quote from the trial judge’s reasons for judgment:

“THE COURT: From the testimony I have before me this is a case that I am sure no judge would like to try, but there is no question that the husband needs assistance and no question that his income is not sufficient for his needs. Also, there is no question that the expenses shown on the wife’s affidavit on file at the present time are not correct. 1 also have no doubt that if such a situation changes there may be need but at the present time also I envision the fact that what the husband needs is help, and he can get that in one of two ways, either by someone physically helping him or having additional income within which to do it, as well as to eat more properly than he has been doing. There’s not a lot of leeway that I can take either way and what I am going to do I feel reasonably certain is not going to alleviate the situation any. I think that the wife can pay the husband $75.00 per month, with which amount he can use to hire some assistance.
Judgment will be prepared and submitted to the court for signature.”

The record reflects that the undisputed monthly income of the parties is as follows:

1. Defendant
Social Security_$418.00
2. Plaintiff
Opelousas General Hospital Wages
(Gross earnings)_ 800.00
Social Security (wife)- 38.00
Social Security (3 boys)-114.00
$952.00

After deducting income tax, social security, hospitalization and credit union charges, plaintiff’s net monthly check from Opelou-sas General Hospital is $525.00. To that sum is added the social security benefits she and her three sons receive totaling $678.00 per month.

Plaintiff has outlined the monthly expenses incurred by the litigants which are not disputed by defendant in his brief. In our opinion the following expenses are supported by testimony in the record.

HUSBAND’S EXPENSES
1. Bent_$150.00
2. Utilities_100.00
3. Food_ 90.00
4. Doctor bills
a. Dr. Buller $1,000.00 -0-
b. Dr. Fredericks $50.00 -0-
c. Dr. Fontenot — per month _ 5.00
d. Dr. Aswell — per month _ 5.00
e. Ville Platte General Hospital (?)
$350.00
WIFE’S EXPENSES
(Wife and three boys)
1. Food. $250.00
2. Drugs_ 25.00
3. Mother (Utilities & Bent)_ 50.00
4. Dentist_ 30.00
5. Doctor_ 60.00
6. Clothing.. 100.00
7. Entertainment — children_ 60.00
8. Schiff Furniture. 38.99
9. Smith Furniture_ 44.68
10.Hospitalization; Income tax; Social Security; Credit Union bill (deducted from Opelousas General Hospital check) -0-
$758.67

Plaintiff contends she is not financially able to support or contribute to the support of her invalid husband. She contends that her husband’s care should be entrusted to the social agencies of our state. She further contends that defendant is not interested in money, but is only interested in reconciliation of the marriage. Plaintiff quotes defendant’s testimony in support of her argument when defendant testified that, “I’m not really here for no money. . . I’m not here to try to drain blood out of a turnip. I need help.”

Defendant’s claim for support and assistance arises under Article 119 of the Louisiana Civil Code. Defendant directs us to the case of Smith v. Smith, 382 So.2d 972 (La. App. 1st Cir. 1980), wherein the court interpreted Article 119 as follows:

“Article 119 of the Civil Code provides: “The husband and wife owe to each other mutually, fidelity, support and assistance.”
Although the word “support” therein is a mistranslation of the French “secours”, which means “help” or “aid”, we think that Article 119 evidences a legislative intent that, so long as a marriage persists, either spouse must come to the assistance of the other, if the other is in need thereof. Plaintiff herein is therefore obligated to render such assistance to his wife if she is in necessitous circumstances and unable to provide for herself.”

See also Hingle v. Hingle, 369 So.2d 271 (La.App. 4th Cir. 1979.)

We are not inclined to reduce or alter the award in view of the great discretion afforded the trial judge in setting alimony awards. Chauvin v. Chauvin, 282 So.2d 869 (La.App. 3rd Cir. 1973).

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

FORET, J., dissents and assigns reasons.

FORET, Judge,

dissenting.

I respectfully dissent from the majority opinion which affirms the trial court’s award of alimony pendente lite to the husband in the amount of $75.00 per month.

In my opinion, the husband is not in necessitous circumstances, nor does he lack sufficient means to support himself, when his income of $418.00 per month is compared to the wife’s income of $525.00 per month. The additional income which the wife receives as social security for herself in the amount of $38.00 per month, and for the three children in the sum of $114.00 per month, is certainly inadequate to support the children. A greater hardship will be imposed on the wife and the children if she has to contribute $75.00 per month to the husband. However, the main reason for my dissent is that the husband is not in necessitous circumstances to such an extent that the wife should suffer hardship by being compelled to supplement his income, which is totally derived from social security eligibility and which is completely tax-free and paid on a regular and permanent basis.


author: PATTERSON, Chief Justice, for the Court: WALKER, Justice, dissenting:

text:
    KERR-McGEE CORPORATION and Home Insurance Co. v. Tommy HUTTO, Deceased, Dependent of.
    No. 52333.
    Supreme Court of Mississippi.
    July 22, 1981.
    Rehearing Denied Aug. 12, 1981.
    James M. Anderson, McCoy, Wilkins, Noblin & Anderson, Jackson, for appellant.
    J. Brice Kerr, Rex Gordon, Sr., Pascagou-la, for appellee.
   EN BANC.

PATTERSON, Chief Justice, for the Court:

This is an appeal by Kerr-McGee Corporation and Home Insurance Company, hereinafter Kerr-McGee, from the Circuit Court of Jackson County’s decision awarding Cecil Hutto workmen’s compensation benefits for the death of his son, Tommy. Kerr-McGee contends the lower court erred (1) in finding that the death of Tommy Hutto arose out of and in the course of his employment; (2) in failing to find that the death of Tommy Hutto was the result of his wilful intention to injure or kill another; and (3) in finding that Cecil Hutto, father of the deceased, Tommy Hutto, sustained his burden of proving dependency.

Tommy Hutto was shot on June 24, 1978, on the premises of People’s Service Station on Chico Road in Pascagoula, where he was employed, by Robert Glenn Scruggs. Tommy Hutto, who died from the injury, was 21 years of age and single. The only dependent entitled to make claim for workmen’s compensation benefits was Cecil Hutto, Tommy’s father. According to the appel-lee’s brief, Cecil Hutto died on January 29, 1980.

Alice Scruggs was manager of the service station where Tommy Hutto was shot. At the time of Tommy’s death, Mrs. Scruggs was living with him, although she was married to Robert Glenn Scruggs, who shot Tommy. The fact that Mrs. Scruggs was involved in an affair with Tommy was known to her husband. Mr. Scruggs was the manager of another People’s Service Station which was located on Ingalls Avenue. Mrs. Scruggs testified Tommy had occasionally worked part-time for her husband, who also testified that Tommy had worked for him some two or three days. Also, Scruggs testified that he controlled Mrs. Scruggs’ station:

Q. Mr. Scruggs, you were the manager of one service station, were you not? —People’s Service Station—
A. Yes, sir, I was the manager of one, but I was also over the other one. I wasn’t a manager of both of them— the one Alice run, but I was over her too.
Q. You were over her too?
A. Yes, sir.
Q. And — Now she kind of ran the station where this took place, but you were over that station too?
A. Yes, sir.
Q. And you controlled her at that station, did you not?
A. Yes, sir.
Q. And the employees at that station?
A. Yes, sir. I never did, I could have. I never did—
Q. You had that right and authority to do so.
A. Yes, sir.

On the day young Hutto was killed, Scruggs arrived at the station and pulled to the side of it. He then motioned for Mrs. Scruggs to come out. Scruggs stated that he went to the station for the purpose of seeing Alice and after talking to Alice, asked her to send Tommy to his car. Alice testified:

Q. What did he [Mr. Scruggs] tell you with reference to Tommy Hutto?
A. Well, he didn’t say anything right then. We talked awhile about us getting back together and then I told him that we weren’t and he asked to speak to Tommy about us.
Q. Where was Tommy Hutto at that time?
A. Inside the station.
Q. What was he doing?
A. He was in the back room stock-ing_getting cigarettes and stock-
ing the shelves and ran the check-off. Q. Did you go back in the station?
A. Yes, sir.
Q. What did you tell Tommy to do? A. I told him that Glenn wanted to talk to him.
Q. In response to that did he go to Glenn’s car?
A. Yes, sir.

Tommy went to Scruggs’ car, and following a conversation, Scruggs shot Tommy. Mrs. Scruggs testified she did not hear any of the conversation. Scruggs testified his shooting of Tommy had nothing to do with his work at the service station and that he shot in self-defense because Tommy was pulling a knife. Furthermore, Scruggs testified Tommy had pulled a knife on him twice before and threatened to kill him. Prior to the hearing in this case, Scruggs had pleaded guilty in circuit court to the charge of manslaughter.

The Administrative Judge decided Cecil Hutto’s claim was compensable, stating:

While both Mr. and Mrs. Scruggs were aware that Mr. Scruggs’ mission was entirely personal, there is no showing as to Mr. Hutto’s knowledge, or his understanding with respect to same. The only evidence we have in this regard is that Tommy Hutto, an employee, was requested by his superior, Mrs. Scruggs, to talk to another superior, Mr. Scruggs. We know the state of mind of the Scruggs from the testimony herein. We do not know the state of mind of Tommy Hutto. The evidence on its face establishes a clear business purpose for Mr. Hutto being where he was at the time he was shot, and, while an award of benefits cannot be made on mere surmise, speculation and conjecture, we are dealing here with the state of mind of an individual whose voice is forever stilled. Benefits shall not be denied where it is reasonable to conclude that the deceased was acting under the instructions of superiors and that he was conducting the business of his employer. Because the conversation subsequently involved a personal matter does not, in my opinion, take Mr. Hutto out of his employment if Hutto’s purpose in going to Scruggs’ automobile was for the purpose of obeying the orders of a superi- or, and, if he, in part, at least thought he would talk to Mr. Scruggs on business related matters.

A majority of the Mississippi Workmen’s Compensation Commission affirmed the Administrative Judge’s award and stated in part:

[Tjhere is no evidence which would indicate that Mr. Hutto was aware of the fact that he and his superiors were engaged in anything other than the official acts of giving and receiving orders.

The Chairman of the Commission dissented, because in his opinion the uncontradict-ed evidence demonstrated that Mr. Scruggs shot Tommy for a purely personal reason.

The Circuit Court of Jackson County affirmed the decision of the Commission on the basis that the “employer, through its supervisors, created or caused the confrontation even though the basis for the confrontation was non-work related.”

The foregoing has been stated to explain the posture of the case before deciding the question of this Court’s jurisdiction to hear the appeal, and if jurisdiction has been established, then for a disposition on the merits. The following is the sequence of events leading to this appeal:

Administrative Judge’s Order allowing benefits_September 10,1979
Workmen’s Compensation Commission Affirmed Administrative Judge’s Decision_January 15,1980
Claimant Cecil Hutto’s death_January 29,1980
Affirmance by Circuit Court of Commission’s decision_March 10,1980

When the appeal reached this Court, there was no mention in the record of Cecil Hut-to’s death. At no time, until requested by this Court, had the attorney for Cecil Hutto filed a motion to revive. Claimant’s death came to our attention by a statement in the Brief for the Appellee. The Appellants state in their brief in response to the jurisdictional issue that the Appellee’s brief filed in the circuit court also contained a statement that the claimant, Cecil Hutto, had died on January 29, 1980. This Court, after discovering that Cecil Hutto had died, entered an order abating this cause pending its revival. See Mississippi Sup.Ct. Rule 6.

This is not a case where a party died between verdict and judgment. That situation is covered by Section 11-7-25 of the Mississippi Code Annotated (1972):

If there be two or more plaintiffs or defendants in any suit, and one or more of them die, if the cause of action survive to the surviving plaintiff or against the surviving defendant, the suit shall proceed in the name of the surviving plaintiff against the surviving defendant. Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living. If, on the death, before verdict, of any plaintiff in actions which survive, the heir, legatee, or devisee, executor, administrator, or other legal representative, of such deceased party, shall not appear and become a party to the action, on or before the second term of the court next after the death of such party shall have been suggested on the record, the action shall be dismissed, unless good cause be shown to the contrary.

Nor is it a case where a party died after judgment in the lower court but prior to a decision by this Court. That situation is covered by Section 11-3-17 of the Mississippi Code Annotated (1972):

If either the appellant or the appellee die after the case has been removed to the supreme court, and before the decision thereof, the suit shall not abate, but the legal representatives of the deceased parties may voluntarily make themselves parties, and have the cause revived; and, if they should fail to do so, they may be brought in by scire facias; and in like manner the representatives of any co-plaintiff or codefendant, who may die pending the suit, may be brought in or come in, and make themselves parties, and the cause shall proceed for or against them jointly with the surviving plaintiff or defendant; but if two terms of the court elapse after the death of the party shall have been suggested on the record of the court, the appeal shall be dismissed, unless good cause be shown to the contrary; and, if there be an appeal bond, judgment may, on the dismissal, be entered against the sureties, as in any other cases.

In this case, Cecil Hutto died between the decision of the Workmen’s Compensation Commission and the circuit court’s affirmance of that judgment. We are of the opinion the decision in Burton v. Redmond, 211 Miss. 158, 51 So.2d 210 (1951), rev’d on other grounds 220 Miss. 704, 71 So.2d 772 (1954), governs the instant case. In Burton, as in the present case, one of the parties in the ejectment action in county court, Dr. Redmond, died prior to a circuit court’s decision on appeal. At the time of the circuit court’s affirmance of the county court’s decision, Dr. Redmond’s death was not pointed out by either side. On appeal to this Court, the appellants argued the circuit court erred in affirming the judgment because Dr. Redmond was dead. The response was a revivor motion by the heirs and devisees of Dr. Redmond. We held:

If a suggestion had been made to the circuit judge, he no doubt would have caused a proper order of revivor. But he can not be put in error for nonaction on a matter not even presented to him. Those who stepped to the shoes of Dr. Redmond are entitled to the rights inuring to his benefit, and must likewise suffer the liabilities adjudged against him. With all proper parties now before the Court, it would be a vain thing to remand the cause to the circuit court for correction of a mere defect in the judgment. 211 Miss. at 165, 51 So.2d at 212. (emphasis added).

We, therefore, are of the opinion that all parties are now properly before this Court. This case is distinguished from Owen v. Abraham, 233 Miss. 558, 102 So.2d 372 (1958). In Owen, the chancellor, who originally tried the case on the merits, took the case under advisement on November 30, 1956, and rendered a written opinion on March 19, 1957. Meanwhile, the defendant, who was being sued for divorce, had died on December 4,1956. This Court, after motion by the appellee that the court was without jurisdiction because an appeal bond cannot be executed by a dead man, held the appeal should be dismissed and stated:

This court has no jurisdiction because the final decree and subsequent proceedings amount to a nullity. 233 Miss. at 561, 102 So.2d at 373.

Owen is distinguishable from the instant case for two reasons. First, in Owen the deceased died prior to a finding by the original trier of the facts, whereas here, Cecil Hutto died during an appeal and review process. Second, and more importantly, the Owen case is distinguishable because it involved a divorce proceeding and the general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce. Pittman v. Pittman, 375 So.2d 415 (Miss.1979). But see Thrash v. Thrash, 385 So.2d 961 (Miss.1980). In contrast, the Burton and instant case involved property disputes which allow the heirs, devisees, or legatees to step into the shoes of the deceased. As pointed out by this Court in discussing its original opinion when Burton reached it a second time for a consideration of whether the filing of a suggestion of error suspends the time for performance of a condition in the judgment:

Redmond had died, and his heirs, devisees and trustees having entered their appearances in the cause, were recognized as his successors in interest for the purposes of the above mentioned appeal. Burton v. Redmond, 220 Miss. 704, 71 So.2d 772, 773 (1954).

Griffith, Mississippi Chancery Practice § 620, at 667 (1950), states in part:

A valid decree cannot be rendered in favor of two persons, one of whom at the time is dead. Such a degree is void. And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit — although the interlocutory decree was rendered while he was alive, (emphasis added).

In the instant case, assuming Cecil Hutto was entitled to benefits, the compensation, accrued but unpaid prior to death, becomes an asset of his estate. Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So.2d 541 (1962). See also Dunn, Mississippi Workmen’s Compensation § 191, at 259-260 (1967). Therefore, Cecil Hutto’s heirs have “stepped into his shoes” and are asking for a revival of this action. Because we are of the opinion the Burton case is applicable and the cause is properly before the Court, we proceed to the merits of this case.

We are of the opinion that compensation benefits were properly allowed by the administrative judge, Commission, and circuit court. We think so because Tommy Hutto’s death occurred as a result of being about his business at his place of employment. Miss.Code Ann. § 71-3-7 (1972). Specifically, Tommy Hutto was injured while responding to a directive from his immediate superior, Mrs. Scruggs, that her husband, also his superior, wanted to speak to him. As previously observed, Mr. Scruggs had some managerial capacity over Mrs. Scruggs, who managed the station where Hutto was employed. Hutto responded to a directive, and was shot and killed as a result. In our opinion, the employee’s death was so strongly connected to the directive of his superior that it cannot be completely disassociated from his employment, and compensation should be allowed.

Section 71-3-7 of the Mississippi Code Annotated (1972) provides in part:

Compensation shall be payable for disability or death of an employee from injury . . . arising out of and in the course of employment.. . . (emphasis added).

Section 71-3-3(b) of the Mississippi Code Annotated (1972) defines injury as:

Injury means accidental injury or accidental death arising out of and in the course of employment .. . and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job....

Perhaps the issue presented can best be illustrated by the following from Dunn, Mississippi Workmen’s Compensation, 2d Ed. § 161, at 207 (1967):

§ 161. SAME; ASSAULT BY FELLOW EMPLOYEES.—
Assault by a fellow employee may be malicious and wilful or may result from friendly horseplay. The two situations have been considered as involving the same rule of liability. Compensation for resulting injuries has been awarded in both types of cases.
Casual connection has been found by reference to the general risk assumed by industry. The reasoning is that when the employment and nature of the work bring employees in close contact with each other, one of the natural hazards— normal risks — is an assault, and this is a risk assumed by the employer. Emphasis is here directed to the assumption of risk by the employer as a general concept. The assault need not be directed toward the employee because of his employment, as in the case of an assault by a third person. The application of the rule assumes that the employee is in the general course of his employment, but if this be found, the claim is not defeated merely because the injury occurs during a lull in the work or is prompted by animosity of the assaulting party or by a desire of the participants to gratify their personal fancies.

It is our opinion the facts of this case are unique and that the usual coemployee and third party eases heretofore decided are not directly applicable. The coemployee cases are somewhat distinguishable because the present injury was not occasioned by a coemployee but rather by a superior, the employer. Also, we cannot determine whether young Hutto and Mrs. Scruggs became enamored of each other because of their physical proximity to each other brought about by their employment, or whether they were romantically involved prior to the employee-employer relationship. Again, the facts are unusual but see Mutual Implement and Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547 (1952), generally as to injuries between coemploy-ees. Those cases concerning injury caused by a third party, although somewhat analogous on the facts, are not applicable, because none of the injuries or death were caused by a fellow employee or employer. See Ellis v. Rose Oil Company of Dixie, 190 So.2d 450 (Miss.1966); Estate of West v. Southern Bell Telephone & Telegraph Co., 228 Miss. 890, 90 So.2d 1 (1956); Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294 (1952).

In sum, Section 71-3-7 requires that the death of an employee from injury arise out of and in the course of employment before it is compensable. The administrative judge, Commission and circuit court all held this requirement was met because Tommy Hutto, when requested by his immediate superior, went to the parking lot to talk to another superior. It is our opinion this was not error; and therefore, the allowance of compensation benefits is affirmed. Since Cecil Hutto, the claimant, is deceased, the compensation, accrued but unpaid prior to this death, becomes an asset of his estate.

AFFIRMED.

SUGG, LEE, BOWLING and HAWKINS, JJ., concur.

WALKER, J., SMITH and ROBERTSON, P. JJ., and BROOM, J., dissent.

WALKER, Justice, dissenting:

I must respectfully dissent from the opinion of the majority of the Court which holds that workmen’s compensation benefits must be paid for the death of a service station attendant who was shot and killed because he was engaged in a love affair with the wife of the service station owner (the wife managed the station where the deceased worked).

I firmly believe in the concept of workmen’s compensation for the protection of workers who are killed or injured from the hazards of their work. However, to allow benefits for injuries or death arising out of a love affair, as in the present case, seems to me to stretch the workmen’s compensation concept too far and certainly far beyond the intent of the legislature which provided that benefits would only be payable for injuries or death arising out of and in the course of a workman’s employment. I fail to see how Mr. Hutto’s employment had anything to do with his death except to afford the amorous couple the opportunity to meet.

It seems significant to me that no case from this or any other state is cited as allowing recovery of benefits under similar circumstances. In this instance, Mississippi deserves no award for being “first.” Uncalled for awards, such as this, must ultimately be paid by the general public through higher-priced goods in the market place.

SMITH and ROBERTSON, P. JJ., and BROOM, J., concur in this dissent.


author: LEE, Justice, for the Court: HAWKINS, Justice,

text:
    John Wesley PARKER v. STATE of Mississippi.
    No. 52655.
    Supreme Court of Mississippi.
    July 29, 1981.

      John E. Gregg, Raymond, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   LEE, Justice, for the Court:

John Wesley Parker was convicted in the Circuit Court of Claiborne County, Honorable John W. Prewitt, presiding, of shooting into an occupied building, and was sentenced to serve ten (10) years with the Mississippi Department of Corrections, five (5) years to be served, and five (5) years suspended, with three (3) years on supervised probation. He appeals from the sentence and judgment of the lower court and assigns three (3) errors in the trial.

On the morning of January 3, 1980, an altercation took place in front of the Claiborne County Courthouse between Fred N. Tisdale and Eddie Ray Parker, brother of appellant. The State’s evidence was to the effect that appellant had gone to the courthouse to obtain a car tag while appellant’s evidence indicated that he had gone there for the purpose of collecting four hundred fifty dollars ($450.00) in back wages owed by Board Member Roosevelt Yarbrough to appellant’s wife. At any rate, appellant and Eddie Ray Parker met Tisdale after they left the courthouse, angry words were exchanged, and Tisdale threatened appellant with a gun. The Parkers and Tisdale met again at the police station where they each had gone to make an affidavit against the other. After the meeting at the police station, the Parkers went to the courthouse for the purpose of having a property examination made in order to execute an appearance bond. There, they once again encountered Tisdale across the street from the courthouse, and an argument ensued. Eddie Ray Parker had a .38 caliber pistol in his coat and gave his car keys to appellant, telling him that there was a 30-30 rifle in the trunk of the car. Tisdale fired two shots at Eddie Ray Parker from inside his truck, one of which struck him in the leg. Eddie Ray Parker returned the fire and wounded Tisdale who fled on foot into the courthouse. At this juncture, appellant returned from Eddie Ray Parker’s car carrying a 30-30 rifle and proceeded toward the courthouse after Tisdale. He fired two (2) shots through one of the courthouse windows, apparently at Tisdale.

I.

Did the trial judge err and subject appellant’s counsel to unduly harsh treatment which deprived appellant of his legal and constitutional right to a fair trial?

In commenting upon the influence a trial judge has on the jury during the trial of a case, the Court said in Green v. State, 97 Miss. 834, 53 So. 415 (1910):

“It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.” 97 Miss. at 838, 53 So. at 416.

The Court also in Garrett v. State, 187 Miss. 441, 193 So. 452 (1940) stated: “Should a case arise in which it is obvious that a judge had been partial, biased or prejudiced, and that his attitude and conduct had brought about an unfair trial, the Court would reverse the case and grant a new trial.” 187 Miss. at 455, 193 So.2d at 455.

Some of the comments complained about by appellant as prejudicing the jury were made outside the presence of the jury. Those remarks could not have been the basis for prejudice as stated in Merchants Co. v. Hutchinson, 186 So.2d 760 (Miss. 1966):

“There are other errors in the record, the most serious of which involves statements the trial judge made in the presence of the jury, which could have prejudiced the jury against appellants.” 186 So.2d at 764.

The appellant contends that four (4) comments were made by the trial judge in the presence of the jury which influenced the jury and prejudiced him. They follow:

(1)“BY THE COURT: I have previously asked the Jury if they would follow the law as given by the Court and I’m satisfied that this Jury under their oath has answered that question. Now, counsel is trying to ask in a different way the same question and I’m going to permit counsel to put that of record.
BY MR. McFATTER: The question that I have proposed is that if the Court should later instruct this Jury that there is a defense to shooting into the Courthouse could the Jury follow that instruction regarding a defense for shooting into the Courthouse.
BY THE COURT: Allright, I’ve let you put that in the record and I’d ask you to move on to another question. And put that in the record.”

(2) During cross-examination of Fred Tisdale, the following comment was made:

“BY MR. McFATTER:
* * * * * *
Q. Okay, Mr. Tisdale, where can I start? What’s the earliest point you’re going [to] testify about, please, sir? You tell me. I’m tired of hunting for it?
A. I don’t know what you want to know.
BY THE COURT: Counsel, I’m going to help you a little bit. He started testifying when he started backing in the Courthouse and you — I don’t think I have to rehash the testimony, but I believe you’re sufficiently intelligent, at least I respect you as such, you know what he’s testified about and I permit you to cross examine him to that extent.”

(3) The following comment occurred during the rebuttal testimony of Daniel Lucas:

“BY MR. McFATTER: Your Honor, at this point I would request that — it was only about one question on re-cross and Mr. Lucase—
BY THE COURT: (Interposing) You go ahead. I think you can ask him any question you want to. And go ahead. We’re not going to take up any time now to go back and look at any question. You use your memory. You’ve got him on cross examination. You ask him any question.
BY MR. McFATTER: Am I not being allowed to impeach him Your Honor?
BY THE COURT: You’re being allowed to cross examine him as fully as the Court deems it necessary to cover your point, but we are not going back in the record."

(4) The final comment came during the rebuttal testimony of Daniel Lucas on cross-examination. The colloquy follows:

“BY MR. McFATTER: Your Honor, at this point, I would request that the Jury be allowed to make a view from that landing.
BY THE COURT: That will be overruled. I might tell counsel, you’ve been practicing law a good while and you know when to make a motion to view a scene.
BY MR. McFATTER: I’m pleading surprise, your Honor, I stood down there and locked at it myself—
BY THE COURT: (Interposing) Now, wait a minute. I don’t want any speeches. I’ve ruled. Go ahead.
BY MR. McFATTER: Your Honor, I’m pleading surprise and I would again make my motion for a view from that landing by the Jury at this time.
BY THE COURT: Take the Jury out. (THE JURY WAS RETIRED FROM THE COURTROOM AND THE FOLLOWING PROCEEDINGS WERE HAD IN THEIR ABSENCE)”

In Vail v. City of Jackson, 206 Miss. 299, 40 So.2d 151, 41 So.2d 357 (1949), the Court said, quoting 64 C.J., at page 92:

“ ‘Counsel may properly be directed to refrain from delay, or to get on with the trial, or the judge may comment upon a waste or excessive consumption of time in the trial so long as counsel is not unduly restricted or his knowledge challenged, or his motives impugned; and remarks expressing impatience with counsel, even though perhaps unwarranted, are not fatal where not such as to cause material prejudice. Ordinarily counsel may not complain of slight or not seriously prejudicial impropriety in remarks or comments by the court where they are provoked by himself.’ ” 206 Miss, at 328, 41 So.2d at 361.

The motion by appellant’s counsel in the presence of the jury for a view of the scene was clearly prejudicial to the State’s case and not warranted under the law. Armstrong v. State, 179 Miss. 235, 174 So. 892 (1937). It was calculated to provoke the comment made by the trial judge.

We have carefully considered the comments and actions of the trial judge in his statements to the attorney for appellant and, while the trial judge must always be patient and fair, we think the appellant was not denied a fair trial by those exchanges between the trial judge and counsel for appellant and there was no reversible error therein.

H.

Did the trial court err in grating State’s Instruction S — 4 and in refusing appellant’s Instructions D-2, D-3, D-4 and D-5?

The Instruction S-4 follows:

“The Court instructs the jury that self-defense is not a defense to the crime charged in the indictment in this case, and self-defense should not be considered by you in determining your verdict.”

The Instructions D-2, D-3, D — 4 and D-5, requested by appellant, were self-defense instructions. The appellant contends that his sole defense was self-defense and, since the trial court gave a peremptory instruction that self-defense could not be interposed in the case and declined his requested instructions on self-defense, he was practically denied any defense in the case.

The question which arises from the instructions mentioned is whether or not, taking all the facts favorable to appellant, together with all reasonable inferences, there was an issue for the jury to determine on self-defense. The trial judge, in granting the Instruction S-4 and denying the defense instructions requested by appellant, stated:

“It is the court’s opinion that the defendant did not have reasonable grounds to believe from the evidence of this case that Fred Tisdale was about to fire at the defendant or that the defendant acted under the facts of this case in necessary self-defense nor do the facts make an issue on the defense of self-defense.”

The proof is uncontradicted that the altercation originated between Eddie Ray Parker and Tisdale, and when they met the second time at the courthouse, Tisdale shot Eddie Ray Parker, who returned to fire and wounded Tisdale. At that point, Tisdale fled into the courthouse while appellant went to his brother’s automobile, obtained a 30-30 rifle, and pursued Tisdale toward the courthouse.

Appellant was asked why he shot at Tis-dale and he said, “Because he had pointed a gun at me earlier, shot my brother and had shot at me when he was coming toward the courthouse and I was pursuing him.”

If a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor, and deprives himself of the right of self-defense. Woods v. State, 183 Miss. 135, 183 So. 508 (1938).

Admittedly, with few exceptions, the right of self-defense should not be excluded where the evidence indicates a violent situation and harm to the parties. In Coleman v. State, 179 Miss. 611, 176 So. 714 (1937), the Court said:

“The law is that she must have armed herself for the purpose of provoking the difficulty and overcoming opposition if necessary. If the purpose to overcome opposition arose after the arming, the right of self defense is not cut off. [Citations omitted]. 179 Miss. at 664-665, 176 So. at 714.

In Pulpus v. State, 82 Miss. 548, 34 So. 2 (1903), the Court stated the rule with reference to an aggressor who withdrew from the fray as follows:

“One may provide himself with a deadly weapon and hunt another, with design to kill him with it, and provoke and be the aggressor in the encounter in which he kills the other, and still, in the progress of the difficulty should not be denied the right of self-defense, if the killing be not pursuant to the original purpose to kill. If he abandon the conflict, and is fleeing from it in good faith, and not for vantage, he may defend, himself from threatened death or great bodily harm. Lofton v. State, 79 Miss. 723, 734, 31 South. 420.” 82 Miss. at 555, 34 So. at 3-4.

Although the trial judge should be extremely cautious in denying the defense of self-defense, on the facts of this case, we are of the opinion that the lower court correctly instructed against self-defense.

We have examined the other assignment of error and find no merit in it. Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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

HAWKINS and BROOM, JJ., dissent.

HAWKINS, Justice,

dissenting:

The dissent which I respectfully register is based upon the refusal of the trial judge to grant any of the quite proper instructions requested by the defendant that he fired his weapon in lawful self-defense, and even before more serious, in positively instructing the jury:

... self-defense is not a defense to the crime charged in the indictment in this case, and self-defense should not be considered by you in determining your verdict.

In making a determination as to the propriety of this action by the trial court, it is necessary to review from this record evidence supporting the justification of instructions based upon self-defense.

The defendant John Wesley Parker (Parker) was indicted by the grand jury of Claiborne County of the crime of feloni-ously shooting a rifle into the Clairborne County Courthouse, a building occupied by people, and being a building usually occupied by persons. This indictment was under Miss.Code Ann. § 97-37-29 (1972).

The jury returned a verdict of guilty, and recommended leniency. Upon this conviction, he was sentenced to serve a term of 10 years, with 5 years suspended. From this conviction he prosecuted this appeal.

Around noon on Thursday, January 3, 1980, the defendant Parker went to the courthouse in Port Gibson to find Roosevelt Yarbrough, a member of the Board of Supervisors, to talk about a debt of approximately $500.00 Yarbrough owed Parker’s wife, and which had been due about two and one-half years. Parker had already sought without success the assistance of three justice court judges to collect this debt. Parker at the time had been laid off from work, and was needing the money.

Parker and Yarbrough got into a heated argument, but apparently Yarbrough promised to pay him at the police station, where the justice court judge (also serving as a policeman in Port Gibson) maintained his office. Yarbrough left the building and got into a pickup truck with one Fred M. Tis-dale.

Following this conversation with Yar-brough, Parker — one of 12 children — met his brother Julius Parker in the courthouse. Julius Parker had come to the courthouse to see about a tag for his car.

The two brothers were leaving the courthouse together, and observed Yarbrough and Tisdale in the pickup. Parker turned from going to his car, and walked toward the passenger side of Tisdale’s truck where Yarbrough was seated to tell Yarbrough he would see him at the police station where Yarbrough was supposed to pay him.

Before Parker reached the truck, Tisdale stepped out of the truck with one foot on the ground, and pointed a revolver at Parker. At that moment Julius Parker stepped in front of Parker and Tisdale said, “Turn him loose, I’ll kill him.”

Parker’s mother, Lettie Parker, was also at or near the courthouse and saw Julius get in front of Parker. She yelled “J. W.,” following which Parker, his brother Julius, and Lettie Parker got into her pickup truck and drove off.

Parker told his mother he wanted to go by the “police office” because Tisdale had pulled a gun on him. Lettie Parker suggested they first go home and talk to Leroy Parker, the father. Following this conversation, Parker, Julius, and their mother Let-tie Parker drove to the Port Gibson police station. Tisdale was also there and again threatened Parker, calling him “nigger” and “bastard” and telling him he would kill him.

Parker made a criminal affidavit against Tisdale, for pointing and aiming a deadly weapon. While at the police station the Parkers were informed Tisdale was going to make a criminal affidavit against Parker. Parker and his mother then went to Sheriff Dan McKay’s office to get an evaluation of Parker’s property to use in posting bond for Parker. Julius Parker did not accompany the two, leaving instead for his job.

Eddie Ray Parker, another brother, had heard at his parents’ home about the prior difficulty that day, and went to the courthouse to see Mrs. Velma Barnes, a county official. He was armed with a revolver. After talking with Mrs. Barnes he met Parker and his mother in the courthouse, and his mother asked Eddie Ray to take Parker home, which he agreed to do. Eddie Ray heard someone yell, “Here come Fred Tis-dale and he’s mad.”

As the two brothers left the courthouse they observed Tisdale sitting in the right side of his pickup, the door opened, and his feet on the ground. Tisdale made a grossly obscene as well as threatening statement to them, and Parker (who was unaware Eddie Ray was armed) grabbed Eddie Ray by the shoulder and told him to come on because Tisdale had a gun. The police officer at Port Gibson had previously informed Parker he failed to take Tisdale’s gun at the police station, giving Parker as his reason therefor, “It was not loaded.”

The brothers headed for Eddie Ray’s car, and while Eddie Ray was attempting to find his keys, he told Parker that Parker’s rifle, which Eddie Ray had previously borrowed for hunting purposes, was in the trunk of the car.

The record is not clear whether the brothers had got into Eddie Ray’s car, but both testified Tisdale without provocation or warning shot three times, with one shot hitting Eddie Ray in the leg. Eddie Ray limped behind a truck and shot three times at Tisdale. The record is not clear whether either of the brothers knew Tisdale was wounded by one of the shots from Eddie Ray’s revolver.

Parker then attempted to locate the key to the trunk to get the rifle out of the car. As he was removing the rifle he saw Tisdale approaching the steps of the courthouse. Tisdale looked back, saw Parker and shot at him one time.

According to Parker, he “fell and ducked the shot.”

Parker started towards the window of the courthouse and saw Tisdale through a window, pointing the revolver at him. He heard a shot and then fired the rifle twice into the window where Tisdale was standing. He testified he was shooting at Tis-dale.

The majority opinion justifies the action of the trial court in removing from consideration by the jury the question of self-defense with the contention Tisdale had withdrawn and Parker was pursuing him. Here is all the record reveals on this issue:

Q Why were you shooting at Fred Tis-dale in the Courthouse?
A Because he had pointed a gun at me earlier, shot my brother and had shot at me when he was coming towards the Courthouse and I was pursuing him.
Q Did you see Tisdale when you first walked up there in front of that window?
A No, I couldn’t see him when I first walked up there.
Q And what happened then?
A I took a good — when I first see him I wasn’t exactly close to the window. So when I approached to the window I could see him at that window with that gun leveled on me.
Q All right. What did you do — did you do anything before he fired?
A No.

After shooting into the window where Tisdale was standing, Parker turned and went back toward the car. Asked if he was scared with his back to the courthouse, Parker replied, “I didn’t have no idea.”

Parker testified he was going towards the courthouse, and that Tisdale was going away from him, but he added, also that Tisdale shot at him at that time. He admitted he was angry, and testified the police would give no protection. He testified that after Tisdale shot at him and he fell, when he got up and saw Tisdale he started shooting. Parker clearly testified that before he ever shot at Tisdale through the window, he first observed Tisdale standing there with the revolver pointed at him, and heard a shot from within the building.

Tisdale likewise testified he was at the window when Parker fired. Sheriff Daniel Lucas observed Tisdale at the window through which Parker fired. Two disinterested witnesses, Flora Mays and Velma Barnes observed Tisdale at the window with the revolver pointed outside. Barnes thought she heard a shot fired from within the courthouse. Mays heard Officer Lucas yell, “Tisdale, Tisdale, don’t do that.” Barnes was asked the question was Tisdale lying in ambush for Parker, and replied, “Yes, he was.”

No one was injured from the shots fired by Parker. Tisdale and Eddie Ray Parker were separately indicted for aggravated assault by the grand jury of Clairborne County as a result of their activities that day, and both were convicted in the circuit court at that county.

As first noted in this dissent, the trial judge refused instructions based upon self-defense requested by Parker’s counsel. Far more egregious, he positively instructed the jury self-defense was not a defense, and should not be considered by the jury in reaching their verdict.

The beleaguered trial judge — faced with a most serious problem in establishing and maintaining law and order following a lamentable episode there at the seat of justice of a county in his district — understandably could err. Trial judges frequently lack the time as well as the means to give full deliberation on vital issues of law and fact.

This Court is not thusly handicapped.

With profound deference to my colleagues, I must asseverate the denial by this Court of this man’s right to have the issue of self-defense determined by a jury constitutes judicial usurpation of the lawful function of the jury, in my opinion, and is incomprehensible to me.

According to the defendant Parker, in testimony in which he received substantial corroboration in this record, he fired at Tisdale, standing behind the window in the courthouse, and who was the man who had:

(a) as an intermeddler pulled a revolver on Parker less than two hours previously, and threatened to kill him;
(b) shot Parker’s brother only moments previously;
(c) shot at Parker while he (Tisdale) was running to seek cover in the courthouse; and
(d) at that very instant was aiming the pistol at him from behind the window, and he heard a shot from within the courthouse.

Then Parker fired twice through that window beyond which he saw Tisdale.

This decision represents a radical departure from all past decisions.

I do not believe either Woods v. State, 183 Miss. 135, 183 So. 508 (1938), or Pulpus v. State, 82 Miss. 548, 34 So. 2 (1903), the two cases cited by the majority opinion, support the propriety of an instruction which tells a jury positively self-defense should not be considered by them as a defense, because in both these cases the jury, upon instructions given by the trial court, did consider the factual issue of self-defense. In neither of them was the defendant denied the right of having the jury consider whether or not he acted in lawful self-defense.

Rather, both these cases illustrate a long standing — and to me salutary — policy of this Court of being particularly chary, and especially reluctant to grant even so much as an instruction for the State that tells the jury that in its wisdom it may not, not that it should not (as in this case), consider self-defense as a lawful defense in the case.

For example, in Patrick v. State, 285 So.2d 165 (Miss.1973), this Court held that an instruction to the jury informing it, “. . . that you may find that the killing of Jerry Walley was not done in self defense” (emphasis added), was reversible error.

In Craft v. State, 271 So.2d 735 (Miss.1973), Ellis v. State, 208 So.2d 49 (Miss.1968), Tate v. State, 192 So.2d 923 (Miss.1966), Vance v. State, 182 Miss. 840, 183 So. 280 (1938), and most recently in McMullen v. State, 291 So.2d 537 (Miss.1974), this Court held similar instructions error.

I would also respectfully suggest that in each of the above cited cases, the conduct of the defendants as set forth in the opinions came nearer to justifying the instruction condemned than the facts of this case. But, at least in those cases the jury was permitted to consider the factual question of whether or not the defendant had acted in lawful self-defense. The issue was not extracted from their consideration by a positive instruction of the court.

In Patrick v. State, this Court stated, in order to justify such an instruction on behalf of the state, the evidence must show:

The unlawful act must be one that is calculated and intended to provoke a difficulty or encounter wherein the accused is afforded the opportunity to and does slay his adversary.... (emphasis added) 285 So.2d at 169.

In Prine v. State, 73 Miss. 838, 19 So. 711 (1896), quoted with approval in Patrick v. State, stated the pre-requisites for such an instruction. We need only quote some of them:

He (the defendant) must have been the originator of the difficulty; he must have entered it armed, and he must have so brought it on and entered into it intending to use his pistol, and overcome his adversary, if necessary, in the course of the encounter, (emphasis added)

Where are the ingredients of Patrick and Prine in this case?

In Garner v. State, 93 Miss. 843, 47 So. 500 (1908), the defendant was convicted of assault and battery with intent to kill and murder. In that case the defendant and one Clark had a fight, and being separated, the defendant went home for his gun, and returned to the scene of the difficulty looking for Clark. Clark appeared from a restaurant and opened fire on the defendant. The defendant returned the fire, several shots were exchanged and Clark was wounded. This Court held an instruction reducing the right of the defendant to claim self-defense as a defense was “manifestly erroneous.” The Court further held the following instruction requested by the defendant proper:

The court instructs the jury that danger should apparently be imminent, yet it is not essential that it should be immediate and impending at the very moment of the shooting; so that, even though you may believe from the evidence in this case that the danger to the defendant was only apparent, and not imminent, yet if it appears to you that the danger was apparent to the defendant at the time of the shooting, then you must find the defendant not guilty, provided you believe that the shooting was not done in pursuance of his original intention to kill, if such ever existed, but shot because he was then in danger of losing his own life.

Id. at 844, 47 So. at 500-01. The Court went on to hold that the trial court’s addition of the words, “without fault in himself in bringing on the difficulty,” was erroneous.

One of the wisest statements on the question of even so much as giving the state an instruction which impinges on the right to claim self-defense is contained in Lofton v. State, 79 Miss. 723, 31 So. 420 (1901). In that case, following an argument with the deceased, the defendant told the deceased he would see him later, then went home a mile away and got his gun. Seeing the deceased in a wagon the defendant yelled at him, and the decedent jumped out of his wagon on the side toward the defendant, whereupon the defendant shot and killed the decedent instantly.

The state was given an instruction to the effect if they believed the defendant was the aggressor, then he could not plead self-defense.

The Court’s language on this question needs to be quoted entirely:

But the third instruction for the state is fatally erroneous, in attempting to inform the jury when the defendant would be estopped to plead self-defense, without including all the elements of fact essential to the estoppel. There is irreconcilable conflict between not only the defendant’s testimony and the state’s, but (as to the stick) between the other witnesses for defendant and those for the state. If the defendant and his witnesses are to be believed, then the killing was in self-defense; and the defendant had a right to have instructions presenting his theory of the case, and ought not to have been deprived of that right by a charge, based on part only, of the testimony, declaring him to be estopped from pleading self-defense. There is no evidence at all in this record as to what his purpose was in procuring the gun, except his own, and that shows a lawful purpose. There is none that he procured it with the intention of using it in a difficulty which he intended to provoke, if necessary to overcome his adversary in that difficulty, and that that purpose and intention he retained up to and through the combat. And yet the charge is framed as if there were facts proven on which the jury might so find, and hence hold him es-topped to plead self-defense. This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, as shown by cases cited in the very able brief of counsel for appellant. It can never be proper, save in the few very rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — not part of them, nor nearly all of them — essential to the estoppel. The old paths are the safe paths. The juries of the country can be safely trusted to find any defendant guilty whose case is really so bad as to estop him to plead self-defense, without resort — dangerous and unwise — to the metaphysical subtleties necessarily involved in the preparation of a proper charge of that sort. Once more we repeat (hoping that “here a little and there a little, line upon line, and precept upon precept” may at last do their work) that if prosecuting attorneys will ask few and very simple charges, and trust more to the common sense and sound judgment of the juries of the country, they will expose their circuit judges to far less risk of reversal, secure just as many convictions, and have far — very far — fewer cases reversed.

Id. at 733-34, 31 So. at 420-21.

In Coleman v. State, 179 Miss. 661, 176 So. 714 (1937), there was a card party attended by the defendant and the deceased. There was an argument, following which the defendant procured a pistol from another person’s suitcase and shot and killed the decedent. The defendant was also shot through the hand by someone else at the festivity. The opinion of the Court in that case is as follows:

The theory of the state was that appellant armed herself with the pistol for the purpose or provoking a difficulty with Sharp, and, if necessary to overcome him, to use, and therefore under the law, she was cut off from the right of self-defense. The court undertook to embody that theory in the following instruction: “The Court further instructs the jury for the state that if you believe from the evidence in this case beyond reasonable doubt that the defendant, Annie May Coleman, at a time when she was not in any immediate danger, real or apparent, of losing her life or suffering some great bodily harm at the hands of Ezekiel Sharp, armed herself with a deadly weapon and provoked a difficulty with Ezekiel Sharp and engaged in such difficulty in which the said Ezekiel Sharp was killed, then the defendant cannot plead self defense.”
The instruction is fatally defective in that there is left out of it appellant’s intention in arming herself. The law is that she must have armed herself for the purpose of provoking the difficulty and overcoming opposition if necessary. If the purpose to overcome opposition arose after the arming, the right of self-defense is not cut off. Thomas v. State, 61 Miss. 60; Long v. State, 52 Miss. 23; Allen v. State, 66 Miss. 385, 6 So. 242; Helm v. State, 67 Miss. 562, 7 So. 487; Ross v. State, 158 Miss. 827, 131 So. 367. The instruction was calculated to mislead the jury.

Id. at 664-65, 176 So. at 714.

Where is there any proof in this record that when the defendant procured the rifle from the truck he was doing anything other than attempting to protect both himself and his brother? Where is there any proof that in securing the rifle the sole reason therefor could only have been to search out and shoot Tisdale?

In the absence of such proof, the state was not even entitled to an instruction which restricted the claim of self-defense of the defendant.

Yet even in all the cases cited the defendants at least were granted jury instructions based upon self-defense. No defendant was totally denied all requested instructions based upon self-defense. Those defendants’ invariable complaints to this Court was an instruction given to the jury at the request of the state which informed the jury the circumstances under which the defendant could be estopped to plead self-defense.

This Court has said time and time again that it is only in an exceptional few and rare instances that such an instruction should be granted the state. The record in this case lacks the pre-requisites to grant even an instruction that the jury might consider the defendant estopped to plead self-defense.

A far more grievous error, in my humble judgment, is being committed.

The solemn right to have a jury consider whether or not an act was done in self-defense, vouchsafed to us by our forefathers, inexplicably has been denied this defendant in this case.

BROOM, J., joins in this dissent.

      . Defendant’s requested instruction D — i reads as follows:
      Self-defense is a defense to the commission of the crime of shooting into the Claiborne County Courthouse, an occupied building, provided that Fred Tisdale did make an unwarranted and unjustified attack upon the Defendant, John Wesley Parker, by shooting or aiming a pistol at him from the Clairbome County Courthouse, thereby giving the Defendant, John Wesley Parker, reasonable grounds to apprehend a design on the part of Fred Tisdale, to kill him or do him some great bodily harm, and there was imminent danger of such design being accomplished, and the Defendant, John Wesley Parker’s use of force in repelling said attack was no more than reasonably necessary for his own protection.
      If the State has failed to prove from the evidence in this case beyond a reasonable doubt that the Defendant did not act in self-defense, then you shall find the Defendant, not guilty.

      . Under the facts of this case, it is questionable whether Parker was indicted under the proper charge, aggravated assault upon one Fred M. Tisdale being the correct charge, assuming the state’s theory of the case was believed by the jury. Miss.Code Ann. § 97-3-7(2) (Supp.1980). This question is not before us, however.


text:
    Alfred T. LEGGETT, III v. STATE of Mississippi.
    No. 52771.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Robert W. Brumfield, McComb, for appellant.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

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

AFFIRMED.


text:
    Lynn PRATHER v. BOARD OF EDUCATION OF BALDWYN MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.
    No. 52765.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Rowland H. Geddie, Jr., Tupelo, for appellant.
    Glen H. Davidson, Carnathan, Davidson & Wright, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

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

AFFIRMED.


text:
    Willie Franklin DONALD v. STATE of Mississippi.
    No. 52769.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Kenneth W. Martin, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

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

AFFIRMED.


text:
    Jimmy Douglas WELCH v. Pamela Sue WELCH.
    No. 52761.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    William H. Smith, III, Williamson & Smith, Mendenhall, for appellant.
    W. Terrell Stubbs, Mendenhall, for appel-lee.
   Appeal from Chancery Court, Simpson County; J. W. Walker, Chancellor.

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

AFFIRMED.


text:
    Dwayne BULLOCK v. STATE of Mississippi.
    No. 52673.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Danny L. Lowrey, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Edna Marie BULLOCK & R. D. Bullock v. Leon FAIRBURN, et al.
    No. 52773.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Robert O. Allen, Allen & Allen, Donald B. Patterson, Brookhaven, for appellant.
    Joseph M. Stinson, Tylertown, George E. Dent, Aultman & Aultman, Hattiesburg, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

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

AFFIRMED.


text:
    Dan BOONE, et al. v. LEAKE COUNTY BOARD OF EDUCATION, et al.
    No. 52755.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Morris C. Phillips, Jr., Carthage, for appellant.
    Harold W. Davidson, Carthage, for appel-lee.
   Appeal from Chancery Court, Leake County; E. G. Cortright, Chancellor.

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

AFFIRMED.


text:
    George COLLINS v. STATE of Mississippi.
    No. 52726.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

Before SMITH and ROBERTSON, P. JJ., and BOWLING, J.

AFFIRMED.