author: WALKER, Justice,

text:
    DEER CREEK CONSTRUCTION COMPANY, INC. and William F. Brown v. Jewell B. PETERSON.
    No. 53049.
    Supreme Court of Mississippi.
    March 17, 1982.
    Rehearing Denied May 5, 1982.

      Guy Kenner Ellis, Jr., Nathan P. Adams, Jr., Greenville, for appellants.
    Robertshaw & Merideth, H. L. Merideth, Jr., Greenville, for appellee.
    Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.
   WALKER, Justice,

for the Court.

This is an appeal from the Circuit Court of Washington County wherein the dispute arose out of the construction of a home by Deer Creek Construction Company, Inc. and William F. Brown for Mrs. Jewell B. Peterson.

The contract to construct the home was entered into on or about July 18, 1977. There was no date mentioned in the contract as to when the home would be completed. The final completion date was September 28, 1978 (except minor items that were later taken care of). Mrs. Peterson immediately rented the property for the sum of $300.00 per month and continued to rent the property up to and including May 25, 1979.

The parties stipulated that $300.00 per month was the fair and reasonable rental value of the property.

Thereafter, on September 28,1979, Jewell B. Peterson filed suit in the Circuit Court of Washington County demanding punitive damages of $20,000.00 and compensatory damages of $12,300.00 including attorney’s fees. The declaration was filed in two counts:

Count I — charging that defendants breached their contract by failing to complete the house within ninety days, resulting in a loss of rental of $5,100.00.

Count II — charging that the defendants fraudulently represented to Peterson that no interest would be charged until the house was completed that defendants knowingly and willfully demanded interest notwithstanding that defendants had willfully or through gross neglect failed to complete the house; that defendants failed to cancel the deed of trust and destroyed merchantability of the property; and, finally, that defendants committed a deceptive act as defined in Mississippi Code Annotated section 75-24-5 (Supp.1981).

The defendants answered denying plaintiff’s allegations of wrongdoing and denied making any representation as to when the house would be completed. The defendants filed a counterclaim against Mrs. Peterson alleging that the construction price of the house was $34,300.00, together with interest on the construction price after ninety days at the rate of nine percent per annum; that this agreement was evidenced by a note and deed of trust executed by plaintiff; that Mrs. Peterson notified defendants she intended to rent the house and made an inspection of the house on September 28, 1978; that following said inspection, she accepted the house and paid defendants a partial payment of $33,100.00; that she rented the house on October 1, 1978, and continued to rent until the summer of 1979, and on September 26, 1979, sold the house for $45,100.00. The note and deed of trust were incorporated into the counterclaim and defendants demanded the balance due them under the note of $1,200.00 and interest of $4,223.75. Defendants also claimed reasonable attorney’s fees under the provisions of Mississippi Code Annotated section 75-24U15(2) (Supp.1981).

The jury returned separate verdicts. One was in favor of Mrs. Peterson against Brown and Deer Creek in the amount of $2,250.00. Mrs. Peterson filed a motion for an additur of $1,200.00 which was sustained by the court, and the judgment in favor of Peterson was increased to $3,450.00. This figure represented gross rentals of $300.00 per month (stipulated as reasonable rental) for the approximate period from October 16, 1977, (ninety days after the documents were signed by Peterson) until October 1, 1978, (when the house was rented) or a period of approximately eleven and one-half months. The other verdict was in favor of Deer Creek and Brown against Mrs. Peterson in the amount of $1,200.00.

The separate verdicts were based on Count I of plaintiff’s declaration and on Deer Creek’s counterclaim. The court had earlier directed a verdict in favor of Deer Creek against Mrs. Peterson as to Count II of Mrs. Peterson’s declaration which was based on fraud. The parties stipulated that the court could take up the question of attorney’s fees under section 75-24-15(2) without the assistance of a jury, but with the stipulation that Mrs. Peterson did not admit that this section of the Code was applicable to the facts of the case. The court heard evidence as to what would be reasonable attorney’s fees and granted Brown and Deer Creek attorney’s fees under the above section in the amount of $2,500.00.

A net judgment was entered by the court, after all offsets, in favor of Deer Creek and Brown against Peterson in the amount of $484.00.

The appellants assign the following as error:

The appellants contend that the court erred in considering the testimony of Mrs. Peterson, the effect of which was to alter or vary the terms of the note and deed of trust [by parol evidence.].

The deed of trust and note executed by Mrs. Peterson to Deer Creek and Brown were in the principal sum of $34,300.00 and provided “Note payable ninety days from date, with interest after maturity at 9% per annum until fully paid.” The deed of trust and note by Mrs. Peterson were to secure Brown and Deer Creek during the construction period of the house.

Mrs. Peterson was allowed to testify, over the objections of Brown and Deer Creek who invoked the parol evidence rule, that Mr. Brown told her the house would be finished within ninety days and that no interest would be due on the note until such time as the house was finished. It is evident from this record that Mrs. Peterson was ready, willing and able to pay for the house upon its completion and that she did in fact pay the same, less $1,200.00 and interest allegedly due when the house was completed (except for a few minor items) on September 28, 1978.

The construction proposal of Brown, accepted by Mrs. Peterson, dealing with the specifications and price contains no provision with reference to time of completion. However, a note and deed of trust executed by Mrs. Peterson for the purpose of securing Deer Creek and Brown for the construction price provided “Note payable ninety days from date, with interest after maturity at 9% per annum until fully paid.” These three instruments represent all of the written agreement with respect to the construction of this house. Therefore, they must be read together in order for us to determine whether there is an ambiguity as to when the house would be completed. Williams v. Batson, 186 Miss. 248, 187 So. 236 (1939); Wilson Industries, Inc. v. Newton County Bank, 245 So.2d 27 (Miss.1971). When a contract for the construction of a house contains no specific time in which the construction is to be completed, the general rule is that a reasonable period of time for construction is inferred. Smith v. Mavar, 198 Miss. 170, 21 So.2d 810 (1945); Boyd Construction Co. v. T. L. James & Co., Inc., 477 F.2d 34 (5th Cir. 1973).

However, where the contract is ambiguous or indefinite as to the construction period, then parol evidence is admissible for clarification. In the case sub judice, the proposal for building the home submitted by Deer Creek and Brown to Mrs. Peterson and accepted by her must be read together with the note and deed of trust which she executed to Deer Creek and Brown for the purpose of securing the construction price in order to determine the intent of the parties. When this is done, a clear ambiguity appears as to the length of time- for construction because the proposal submitted by Deer Creek and Brown to Mrs. Peterson was silent as to when the construction would be completed. Yet, the note and deed of trust given to secure Deer Creek and Brown during the construction period clearly states that it was due and payable in ninety days. That provision in a deed of trust and note would not necessarily mean, in every instance, that the construction would be completed by that time. However, it reflects a strong probability in this case that such was the agreement. Therefore, it was not error for the trial court to allow parol evidence, i.e., Mrs. Peterson’s testimony, that Brown told her that the house would be completed within ninety days, in order to shed light on the ambiguity. Clow Corp. v. J. D. Mullican, Inc., 356 So.2d 579 (Miss.1978). Brown testified that he did not make such a representation. The jury was properly allowed to resolve the question.

Appellants next contend that the court erred in granting Instruction No. P-4 to the plaintiff.

We have carefully considered this assignment of error and are of the opinion that when all of the instructions are read together that the jury was properly instructed as to the law.

We are of the opinion that the court did not err in not granting defendants’ motion for a mistrial on the ground that one of the plaintiff’s witnesses had violated “the rule.” In such cases, the trial court has much discretion and will not be reversed unless there has been a manifest abuse of that discretion. We find no such abuse here.

The appellants’ further assign as error that the final judgment of the court erroneously decreased attorney’s fees due appellants.

During the course of the trial, the parties stipulated and the court ordered that the question of attorney’s fees to be awarded the prevailing party pursuant to Mississippi Code Annotated sections 75-24-5 and 75-24-15 would be taken up by the court without a jury following the disposition of the case in chief by the jury and subsequent motions, etc.

In her declaration, Mrs. Peterson had charged fraud under section 75-24-5 and that she would be entitled to attorney’s fees if successful on that count of her declaration under section 75-24-15.

The trial court properly directed a verdict in favor of Deer Creek and Brown with regard to the fraud issue as no evidence of fraud was proven in violation of section 75-24-5.

After the case in chief, pursuant to the agreement of the attorneys, a separate hearing was held before the court with respect to what would constitute reasonable attorney’s fees for defending the allegations of fraud under Count II of the declaration. The Honorable J. Murray Akers, a duly licensed and qualified attorney of Washington County, testified that the fair and reasonable value of attorney’s fees to be paid an attorney in defense of the fraud issue was $5,000.00. There was no testimony or other evidence in rebuttal to this testimony. The trial Court found that a reasonable attorney’s fee was the sum of $2,500.00.

It is well settled in this State that what constitutes a reasonable attorney’s fee rests within the sound discretion of the trial court and any testimony by attorneys with respect to such fee is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney’s fees unless there is a manifest abuse of discretion in making the allowance. We find no such manifest abuse of discretion in this case.

The remaining assignments of error are without merit.

Therefore, the judgment of the trial court is affirmed on direct appeal.

ON CROSS-APPEAL

The cross-appellant, Mrs. Peterson, appeals from that part of the trial court’s ruling dismissing Count II of the declaration which charged fraud within the scope of section 75-24-5.

When a litigant charges fraud or alleges acts to have been committed which are proscribed by section 75-24r-5 and is not successful under said count and charge, the party defending the charge is entitled to attorney’s fees by virtue of section 75-24-15(2). On the other hand, if the party making the allegations is successful and prevails on such charge, then that party is, as the prevailing party, entitled to attorney’s fees under the same section.

We are of the opinion first, that there was no fraud proven by clear and convincing evidence. Secondly, the alleged violation, i.e., that Deer Creek and Brown would complete the residence within ninety days when they well knew that it could not be completed within that time and that they did not intend to complete it within ninety days, does not fall within the purview of section 75-24-5(i) which proscribes: “Advertising goods or services with intent not to sell them as advertised.”

We are of the opinion and so hold that the term “advertising” used in that subsection was intended to mean advertising and offering to the general public and does not include representations made during the negotiation process for the purchase of a particular item or items. It is not necessary for us to consider other provisions of the statute which must be proved before recovery can be had.

The cross-appellant, Mrs. Peterson, next contends that since she prevailed on other counts of her declaration that she was in fact the prevailing party. However, there is no merit to this contention. We are of the opinion and so hold that where a party charges a violation under section 75-24-5 and is not successful in recovering under that charge, the opposing (prevailing) party is entitled to attorney’s fees for defending the allegation even though it is determined that the allegations did not in fact come within the purview of the section. Any party who charges fraud under section 75-24-5 does so at the risk of having attorney’s fees assessed against him if that charge is successfully defended on any ground by the opposing party, and it is immaterial that recovery is had on other counts of a declaration. Of course, the allowable attorney’s fees would only be the amount of attorney’s fees reasonably incurred during the litigation for successfully defending that count of the declaration.

Therefore, the judgment of the trial court is affirmed as to the cross-appeal.

AFFIRMED ON DIRECT AND CROSS APPEALS.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

APPENDIX I

§ 75-24-5. Prohibited acts or practices.

The following unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby prohibited:

(a) Passing off goods or services as those of another;
(b) Misrepresentation of the source, sponsorship, approval, or certification of goods or services;
(c) Misrepresentation of affiliation, connection, or association with, or certification by another;
(d) Misrepresentation of designations of geographic origin in connection with goods or services;
(e) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
(f) Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand;
(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(h) Disparaging the goods, services, or business of another by false or misleading representation of fact;
(i) Advertising goods or services with intent not to sell them as advertised;
(j) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(k) Making false statements of fact concerning the reasons for, existence of or amounts of price reductions.
§ 75-24-15. Action or counterclaim by individual suffering loss — class actions prohibited.
(l) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use of employment by the seller, lessor, manufacturer or producer of a method, act or practice prohibited by section 75-24-5 may bring an action at law in the court having jurisdiction in the county in which the seller, lessor, manufacturer or producer resides, or has his principal place of business or, where the act or practice prohibited by section 75-24-5 allegedly occurred, to recover such loss of money or damages for the loss of such property, or may assert, by way of setoff or counterclaim, the fact of such loss in a proceeding against him for the recovery of the purchase price or rental or any portion thereof, of the goods or services.
(2) In any action or counterclaim under this section of this chapter, the prevailing party shall recover in addition to any other relief that may be provided in this section a reasonable attorney’s fee.
(3) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.

      . (2) In any action or counterclaim under this section of this chapter, the prevailing party shall recover in addition to any other relief that may be provided in this section a reasonable attorney’s fee.

      . The full texts of both statutes appear in Appendix I to this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph M. MARR v. Jane W. MARR.
    No. 53098.
    Supreme Court of Mississippi.
    March 17, 1982.
    Rehearing Denied May 5, 1982.
    Zachary & Zachary, Dave A. Matison, III, Hattiesburg, for appellant.
    J. Robert Ramsay, Dan R. Wise, Hatties-burg, for appellee.
   Appeal from Chancery Court, Forrest County; Sebe Dale, Jr., Chancellor.

Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    In re ADOPTION OF A FEMALE CHILD. Hoyle L. MILLER v. E. K. ARRINGTON, Jr., and Judy Miller Arrington.
    No. 53043.
    Supreme Court of Mississippi.
    March 31, 1982.
    Rehearing Denied May 5, 1982.
    Charles R. Brett, Tupelo, for appellant.

      Sandusky, Bailey, Fortenberry & Stephenson, Robert W. Bailey, Meridian, for appellees.
    Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

E. K. Arrington, Jr., and his wife, Judy Miller Arrington, filed a petition for the adoption of Bridgette Samone Miller, the daughter of Judy Miller Arrington and Hoyle Miller, in the Chancery Court of Lauderdale County. Hoyle Miller, the natural father of Bridgette Samone Miller, did not consent to the adoption but vigorously opposed it. From a decree granting the adoption, Hoyle Miller appeals and assigns as error the following:

1. The trial court erred in overruling the respondent’s motion to amend the bill of particulars;

2. The trial court erred in finding the respondent had abandoned the minor child.

Hoyle Miller and Judy Miller Arrington were formerly husband and wife and Bridgette Samone Miller was born to this union on February 10, 1972. The Millers were divorced on February 19, 1974, with the mother being permanently granted the exclusive care, custody and control of the minor now sought to be adopted. By the decree of divorce, Hoyle Miller, the natural father, was enjoined from “bothering or molesting” either Mrs. Miller or the child of the parties in any manner whatsoever.

We are unaware of the facts leading to the divorce but from that stated in Miller v. Miller, 323 So.2d 533 (Miss.1975), and some testimony in this record we ascertain that intense rivalry between the mother and father for the child began during its infancy. This is evidenced by a suit for separate maintenance, reconciliation, subsequent separation, and finally divorce. Sometime during this period the father removed the child to New Mexico without the consent or knowledge of the mother. This led to the child being returned to this state by the paternal grandmother at the request of the mother. Thereafter the child was again taken by the father which led to his arrest in Texas and the return of the child to its mother by the father’s sister.

This rivalry for the child has continued subsequent to the divorce as is evidenced by a long series of court battles instituted by the mother for child support payments. The father has never voluntarily made these payments but has only done so under the compulsion of contempt proceedings including periods of incarceration. Under these circumstances it cannot be stated that the father has conducted himself in an exemplary or even normal manner reflecting affection or love for his child. Whether this conduct was the result of the decree enjoining him from “bothering or molesting” either the mother or the child we do not know, but it does appear that such mandate in conjunction with the exclusive custody being granted the mother has been interpreted by both parties as denying the father any right of visitation with the child.

Mrs. Arrington, presently resides in the City of Meridian with her husband, a teenage daughter by a marriage prior to her marriage to Miller, and Bridgette, whose custody she obtained in the divorce proceedings from Miller. Mrs. Arrington’s attitude toward the father of Bridgette can best be portrayed, we think, by quoting from her testimony in part. After stating the father had never paid any support for the child unless compelled by court order and had never taken any legal proceedings to obtain visitation rights she stated that he had not seen the child since 1973, when Bridgette was one year old. Additionally she complained the father had never contributed anything to medical or dental bills of the daughter but admitted that she had never advised him of any illnesses though she could have done so. In response to questions:

Q. Now, you stated that Hoyle Miller hasn’t seen his child since 1973. Tell the Court why he hasn’t seen her.
A. He did not have any visiting privileges according to the Court and I was always fearful for the child.
Have you ever permitted him to see that child since that time? &
No, I haven’t. <1
And you had no intentions of ever permitting him to see the child? ©*
Not unless the Court tells me he has some visitation rights.
You would have no objection to him seeing the child if the Court told you he could have visitation rights? o*
It would depend on his behavior. >•
Mrs. Arrington, you have let his mother, Mrs. Cooper, see the child, have you not? «€>
Yes, I have. <<
But you first had the understanding with her that she was not to mention the name of her father. a*
We have never had an understanding that she was not supposed to mention his name, no. I guess it was something we assumed. We didn’t talk about it.
And you also had the understanding with her that she was not to permit Hoyle to see this child at any time she had her. o*
That’s right, and she told me that she wouldn’t do that.
Has Hoyle Miller called you on many occasions over these many years you have spoken about and asked you about his child? o*
He probably called two or three times a year up until I remarried and would always talk vulgar and threaten, he was always going to kill me or my folks or someone and I would hang up the phone, and I have told him that he had no visitation rights and he would have to go back to court. I even told him if he wanted to talk about it to call Mr. Bailey.
You are telling the Court that you never had any intention whatsoever of letting Hoyle Miller see the child. <3*
A. If Samone ever asked to see her dad and I thought she was old enough, that would be a different thing, but Samone has never asked.
Q. Well, now, explain to this Court, she has no relationship with her father, of course not. Now tell the Court why she hasn’t.
A. Because her father has not supported her. Her father has not contacted her on holidays or her birthday.
Q. How could he have a relationship with his child when he was not permitted to see or visit with her?
A. I think if he has wanted to see her bad enough he would have gone back to Court and I think he would have kept his child support current to the best of his ability.
Q. Mrs. Arrington, even as late as last Christmas, didn’t Peggy Denton, the sister of Hoyle Miller, call you and ask you to please permit Hoyle to see his child and that she would come with him?
A. Yes, she did call.
Q. And didn’t you tell her that you would have to think about it and talk it over with your husband?
A. That’s correct.
Q. And then the next day your husband called the mother and the sister of Hoyle Miller and told them that Hoyle could not see the child.
Q. [sic] We didn’t think it was a very good time, it was holidays, and we couldn’t see any reason to upset Sa-mone.
Q. Was there ever a good time?
A. Not really.
Q. Don’t you think he has a right to see his child?
A. Not really. (R. 132-136)

The trial court found that “the absolute failure of this father to pay any money over the long period of time constitutes abandonment and desertion,” stating

If ever I have seen an absolute and total legal abandonment of a child by a father, this has been it. The fact that he paid $3,000 on a six thousand dollar delinquency has no bearing on this Court’s decision. Had he paid child support through the years, he wouldn’t be where he is today, and he would have been seeing his child all these years more than likely, everything else being equal, but he made the situation, he created it, and he is the absolute and total cause of the actions that this Court feels it must take under the circumstances.

Whereupon the adoption was granted.

Miss.Code Ann. § 93-17-7 (Supp.1981), sets forth the criterion for termination of unfit parents’ rights. In pertinent part it provides:

No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and 3(a), (b), (d) or (e) of section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted.

The 1980 amendment of Miss.Code Ann. § 93-17-7 with its additional requirements for abandonment or desertion did not alter the previous requirement of the older statute, Miss.Code 1942 § 1269-03, concerning abandonment and desertion. The preceding statutes were merely supplemented by additional requirements. The earlier statutes had been held by this court to require, in an adoption proceeding, either abandonment or desertion of the child preliminary to granting an adoption. In Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713 (1953), this Court stated:

It is therefore made clear that the court does not reach the issue of what is to the best welfare of the child or children sought to be adopted until it shall first appear from the evidence that the parent so objecting has abandoned or deserted the child or children, or is mentally or morally unfit to rear and train it or them, when the contest is between a natural parent and third persons.

We reiterated this premise in Ford v. Litton, 211 So.2d 871, 873 (Miss.1968), stating, “Before the best interests of the child are to be considered, the court must find that the parent objecting to the adoption has abandoned or deserted such infant, or is mentally or morally or otherwise unfit to rear and train it.” More recently, in the case of Yarber v. Dearman, 341 So.2d 108 (Miss.1977), we held that before passing on an adoption, the court must find abandonment or unfitness, moral or otherwise, on the part of the natural parent.

As indicated the appellant has not been an ideal father, but the record does not reveal that he is either mentally or morally unfit. Likewise, there is no evidence of abandonment, other than constant arrear-ages in child support payments, some of which were explained by his inability to pay following injuries in an automobile accident. Simply put there was no evidence that the father has evinced a settled purpose to forego all parental duties and relinquish all parental claims to the child. In the Matter of the Adoption of Hall v. Hall, 202 So.2d 641 (Miss.1967); Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945).

The circumstances portrayed by this record are unusual and regretable and possibly result from the arbitrary attitudes of both parents, but nevertheless the petitioners failed, in our opinion, to prove an abandonment of the child by the natural father. In view of this holding on the issue of abandonment, it is not necessary to address the question raised in appellant’s assignment of error concerning a bill of particulars directed to the suitability of Mr. Arrington as an adoptive parent.

REVERSED AND RENDERED.

SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    William Henry ODOM and Elaine Blades Odom v. Pat H. WATTS, Jr.
    No. 53119.
    Supreme Court of Mississippi.
    April 21, 1982.
    Pritchard & Ready, Robert A. Pritchard, William E. Ready, Jr., Pascagoula, for appellants.
    Watts & Bilbo, Charles B. Bratt, Pat H. Watts, Jr., Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

SUGG and WALKER, P. JJ., and BROOM, BOWLING, and DARDEN, JJ., concur.

DAN M. LEE, J., takes no part.


author: ROY NOBLE LEE, Justice,

text:
    Mrs. H. T. BELL and David H. Woodward v. CITY OF CANTON, Mississippi.
    No. 53150.
    Supreme Court of Mississippi.
    April 21, 1982.
    Fair & Mayo, James C. Mayo, Louisville, for appellant.
    Powell & Fancher, Joe R. Fancher, Jr., Canton, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Circuit Court of Madison County, Honorable Alfred G. Nichols, Jr., presiding, affirmed an order of the Mayor and Board of Aldermen of Canton, Mississippi [Canton] declining to approve rezoning certain property within the city from Class A-Residential to Class B-Commercial. The appellants, Mrs. H. T. Bell and David H. Woodward, have assigned four (4) errors in the judgment entered.

The question for decision presented by Assigned Errors I and III is whether or not Canton acted in an arbitrary, capricious, discriminatory and illegal manner in denying the rezoning, whether or not the order was supported by substantial evidence, and whether or not the lower court erred in affirming the order of Canton.

The appellant, David H. Woodward, proposed to develop a shopping center on 13.5 acres of land owned by appellant Bell and on which Woodward had obtained an option to purchase. The proposed shopping center would cover approximately one hundred thirty-four thousand (134,000) square feet, would cost approximately two million dollars ($2,000,000), and would include a large discount store, department store, food store, drugstore, and several smaller rental units for local merchants.

On October 7, 1958, Canton adopted a comprehensive zoning ordinance for property located within the corporate limits and provided that as land was annexed the same would be zoned residential. The subject property was annexed into the city on May 27, 1966, and was zoned residential. The appellants filed a petition, which originated this suit, to rezone the property from residential to commercial in order that the shopping center might be constructed thereon. There was no allegation of mistake in the original zoning ordinance and the petition presented the issue that there had been a material change in the area surrounding the subject property and that the public need required the property to be rezoned commercial. The applicable law is stated in Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979) and cases cited therein. The Court said:

The burden of proof was upon appel-lees to show that the character of the neighborhood had changed to such an extent that it justified rezoning and that there was a public need for rezoning the property. Unless the evidence is clear and convincing as to those requirements, the action of a rezoning board has been held to be arbitrary, capricious and discriminatory. Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974).
In Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968), the Court stated the principal as follows:
“It is a basic rule in the law of zoning that where a board of city or county officials, under authority conferred by the Legislature, has enacted a zoning ordinance, judicial review of action taken by the board is restricted and narrow in scope. An attack upon a zoning ordinance, to be successful, must show affirmatively and clearly that it is arbitrary, capricious, discriminatory, or illegal. The presumption of reasonableness and constitutional validity applies to rezoning as well as to original zoning. The courts presume that the original zoning is well planned and designed to be permanent. Accordingly it is a firmly established rule that before a zoning board reclassifies property from one zone to another, there should be proof either (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification. Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27; American Oil Co. v. Miller, 204 Md. 32, 102 A.2d 727; Temmink v. Board of Zoning Appeals of Baltimore County, 205 Md. 489, 109 A.2d 85.” 215 So.2d at 417. [375 So.2d at 1201].

See also Fowler v. City of Hattiesburg, 196 So.2d 358 (Miss.1967).

Evidence and exhibits in support of Canton’s decision reflect that directly across Mississippi Highway 16 from the proposed site is a large and well-established residential district. Adjacent to the site is the Madison County General Hospital. There has been no commercial development or change in the immediate area since adoption of the zoning ordinance. Expert testimony also disclosed that there is no public need for rezoning the area. Property owners across Mississippi Highway 16 from the site and the Madison County General Hospital have strenuously objected to the rezoning.

We are of the opinion that there has been no material change in the area surrounding the proposed rezoning site; that the Mayor and Board of Aldermen did not act arbitrarily, capriciously and discriminatorily in declining to rezone same; that the appellants did not meet their burden by clear and convincing evidence; and that the order is supported by substantial evidence.

It is understood that property owners may feel unfairly dealt with when they are unable to use or dispose of their property for a purpose such as is involved here. However, other people (the public) also have the right to enjoy their property without being offended or disturbed by the use of their neighbor’s property. This case presents strong reasons why governmental authorities should carefully and reasonably consider and plan zoning laws, and why property owners should acquaint themselves with such proposed laws, and should know, consider and foresee the effect of zoning upon them and their property if the same are adopted. After such laws have been adopted, the burden to change them is heavy.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.


text:
    Dwight Wayne BIRCHFIELD v. STATE of Mississippi.
    No. 53377.
    Supreme Court of Mississippi.
    April 21, 1982.

      Ben F. Hilbun, Jr., Starkville, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Dwight Wayne Birchfield, alias “Bull-box”, was indicted and tried for rape of a female over the age of twelve years. He was found guilty by the jury and sentenced to life imprisonment by the Circuit Court of Oktibbeha County. Birchfield assigns numerous errors of the trial court on appeal, but since he fails to cite any authority on several, only two assignments require consideration by this court.

Juanita Davis, 22 years of age, left her home during the evening of January 3, 1981, to walk a short distance to the home of Larry Poe. As she was walking she met a man known to her as “Bullbox” who asked her to “come here.” She ignored his request and continued on her way. He then seized her, putting his hand over her mouth. He pulled her around behind a house, threw her to the ground, and ripped her clothes off. Miss Davis testified that she screamed and struggled but was told if she did not “shut up” he would stab her. She testified that she resisted her assailant’s advances by kicking and pushing, but her resistance was to no avail. She testified “Bullbox” then raped her and ran away. Immediately thereafter Miss Davis ran for help and encountered a friend who took her to the Starkville Police Department and later, she was taken to a hospital and examined. Although upset and nervous, she nevertheless identified “Bullbox” as her assailant from photographs shown her.

Karen Outlaw, a witness for the state, testified that she lived in close proximity to the area where the rape occurred and heard Miss Davis scream and glanced out her window and saw Miss Davis struggling with someone. She also stated that when the screams subsided she returned to bed. Another witness for the state, Carol Davis, testified that she heard Miss Davis scream, looked out her window, but seeing no one she returned to bed.

The appellant testified that he had intercourse with Miss Davis but with her consent. He stated that Juanita became upset and reported him for rape because he had offered to pay her but did not do so.

A medical examination shortly after the incident disclosed seminal fluid in Miss Davis’ vagina as well as in her underclothes. The examination also revealed bruises on her face and a slight cut on her finger. Later, pursuant to a judicial warrant, a blood sample was taken from the appellant’s body and compared through medical process with the seminal fluid found in the victim’s underclothes. The blood-semen analysis disclosed the semen specimen was compatible to the blood type of the appellant. From this conclusion there was testimony that the appellant fell within a group of male persons, about 36%, who could have secreted the semen specimen.

The appellant argues the trial court erred in permitting into evidence the results of the analysis of the blood-semen test. He first contends that he had previously been indicted and that jurisdiction for the issuance of the warrant for a blood test was exclusive to the circuit court and therefore, the municipal judge who issued the warrant was without authority to do so. No authority is cited for this postulate and neither is it contended by the appellant that he was prejudiced by the warrant’s issuance from a municipal judge instead of the circuit judge. Moreover, there is no contention the issuing judge was not a neutral and detached magistrate as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Section 21-23-7 of the Mississippi Code Annotated (Supp.1981), provides the authority and duties of a municipal judge, including the following:

The municipal judge may . . . issue ... warrants for arrest . .. under seal of the court to any county or municipality, in a criminal case, to be executed by the lawful authority of the county or the municipality of the respondent, and enforce obedience thereto.

We are of the opinion the municipal judge had the authority to issue the warrant upon sufficient evidence of probable cause. Additionally, we do not think the appellant was prejudiced because his attorney was not notified of the warrant and the subsequent withdrawal of blood. No contention is made of counsel’s ability to assist the petitioner in protection of his legal rights had he been present. We, therefore, think this assignment of error is without merit.

The greater question is whether the blood test violated the appellant’s fourth amendment constitutional privilege, “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IY (Emphasis added). Of course, the fourth amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified or which are made in an improper manner.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), blood was drawn, in an emergency situation, so that its alcoholic content could be measured as close in time to an automobile accident as reasonably possible. Although Schmerber involved a warrantless search, the Supreme Court of the United States held the drawing of blood was permissible and not violative of the fourth amendment principle under those circumstances. This indicates rather positively, we think, that bodily intrusions are not prohibited by the constitution but rather depend upon their reasonableness under the particular circumstances of each case. Although the facts of Schmerber are different from the present, we nevertheless agree with the principle there laid down:

Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367 [368-69] 92 L.Ed. 436, 440; see also Aguilar v. Texas, 378 U.S. 108, 110, 111, 84 S.Ct. 1509 [1511, 1512] 12 L.Ed.2d 723, 725, 726. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great. 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919.

Modern technology in the detection of crime cannot be ignored and if pursued within the reasonable standards of the fourth amendment, there is no constitutional infringement. We, therefore, are of the opinion this assignment of error is without merit.

Incidental to the above, we also observe the blood-semen test could have been a protection to the appellant had the analysis disclosed the appellant was within a group of persons who could not have secreted the specimen. In any event, the appellant’s argument loses much of its force because his identity was not in question as he testified that he had intercourse with the prosecuting witness, thus leaving only the issue of whether the prosecuting witness was forcibly ravished or whether she consented.

The final assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence. The record has been studied in detail and reveals ample testimony by the victim and corroborating witnesses to sustain the jury’s verdict. We, therefore, affirm.

AFFIRMED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.


author: SUGG, Presiding Justice,

text:
    Alvin CULBERSON v. STATE of Mississippi.
    No. 50802.
    Supreme Court of Mississippi.
    April 21, 1982.
    Albert Sidney Johnston, Jr., Biloxi, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Presiding Justice,

for the Court:

ON PETITION FOR WRIT OF ERROR CORAM NOBIS

Petitioner has twice been convicted of capital murder and sentenced to death. On his first appeal, Culberson v. State, 348 So.2d 1025 (Miss.1977) his conviction was reversed because he was not given a bifurcated trial as required under our decision in Jackson v. State, 337 So.2d 1242 (Miss.1976). On the second appeal, Culberson v. State, 379 So.2d 499 (Miss.1979) Culberson’s conviction and sentence of death was affirmed with three justices dissenting on the sentencing phase.

Culberson was convicted primarily on the testimony of his co-defendant, Alvarese Pittman, who testified that he and Culber-son met in a restaurant on January 31,1975 and planned a robbery. They left the restaurant seeking the victim, and as they walked along the highway Culberson picked up a table leg. The victim left a place of business and moved toward his truck which was parked nearby and as the victim passed Pittman and Culberson, Culberson hit him on the back of the neck with a stick intending to render the victim unconscious. The victim fell to the ground, begged for help, whereupon Culberson pulled out a pistol and shot the victim.

Nearby witnesses heard the shot, saw the two defendants fleeing, were able to describe their appearance and clothing, but could not identify either Pittman or Culber-son. At the first trial Culberson attempted to establish an alibi by the testimony of his girl friend and another witness. The alibi witnesses did not testify at the second trial, but did testify on the motion for a new trial.

In the latter case Culberson assigned as error that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. His claim of denial of effective counsel was predicated on the refusal of his counsel to permit him to testify. In disposing of this assignment of error, we stated:

Here, appellant’s counsel intentionally kept Culberson off the stand, not an unwise trial tactic it would seem, in view of appellant’s several prior convictions which could have been exposed had he become a witness.
Culberson’s family retained an attorney of considerable trial experience and good judgment to represent him. We have previously held that one who retains his own attorney waives his right to complain of his competency. Rogers v. State, 307 So.2d 551 (Miss.1975); Miller v. State, 231 So.2d 178 (Miss.1970). We think this particularly true when, as here, the record discloses competent representation on behalf of the defendant. (379 So.2d at 505, 506)

We followed the rule that one who retains his own attorney waives his right to complain of the competency of the attorney. However, since our decision, the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) held there was no basis for drawing a distinction between retained and appointed counsel in the following language:

A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. (466 U.S. at 344, 345, 100 S.Ct. at 1716, 64 L.Ed.2d at 344)

The rule announced in Cuyler has been followed in the Fifth Circuit in the case of Washington v. Watkins, 655 F.2d 1346 (1981).

On the motion for a new trial Culberson testified on direct examination as follows:

Q. Directing your attention to 31 January, 1975, in which the State charges that the Potato Chip man was killed or murdered?
A. Yes, sir.
Q. You have had two cases already, previous trials on the merits of the case, is that right?
A. That’s right.
Q. The second one was after it was returned from the Supreme Court, are you aware of that?
A. Yes, sir.
Q. Have you ever taken the stand in your own defense in either of these two cases?
A. No, I haven’t.
Q. Have you desired to take the stand in your own defense?
A. Yes, I have.
Q. Did you discuss it with your lawyer?
A. Yes, I did.
Q. Why did you not take the stand?
A. The first time he told me it wasn’t necessary, and the second time he said “well, just hold on,” and I never did get a chance to talk.

The state introduced the attorney who represented Culberson as a witness on the motion for a new trial, but did not ask him if Culberson requested to testify in the case. In view of the holding in Cuyler v. Sullivan, supra, we conclude that Culberson is now able to raise the question of the effectiveness of his retained counsel to ascertain if Culberson told his attorney he wanted to testify either at the guilt phase or the sentencing phase of his trial.

Article 3, section 26 of the Mississippi Constitution of 1890 provides the following:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.

Section 26 gives an accused the right to testify in his own behalf. The denial of the right of an accused to testify is a violation of his constitutional right regardless of whether the denial stems from the refusal of the court to let a defendant testify as in Warren v. State, 174 Miss. 63, 164 So. 234 (1935), or whether the denial stems from the failure of the accused’s counsel to permit him to testify.

The question remains unanswered in the record before us as to whether Culber-son’s attorney prevented him from testifying. Accordingly, we grant the petition for a writ of error coram nobis and remand the case for an evidentiary hearing to determine whether Culberson told his attorney he wanted to testify as a witness in his own behalf and whether the attorney disregarded the request and refused to permit Cul-berson to testify at either the guilt phase or the sentencing phase of his trial.

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about defendant’s waiver of his right to testify should ever arise in the future.

We have considered the other grounds of the writ of error coram nobis and are of the opinion that no evidentiary hearing should be held except on the narrow question heretofore authorized. The petition for writ of error coram nobis is granted.

GRANTED.

PATTERSON, C. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.


author: WALKER, Justice, HAWKINS, Justice,

text:
    Charles Edward EMANUEL v. STATE of Mississippi.
    No. 53175.
    Supreme Court of Mississippi.
    April 21, 1982.

      Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

Charles Edward Emanuel was convicted and sentenced to life imprisonment for the murder of Michelle Pino in the Circuit Court of Jackson County. Feeling aggrieved, he appeals. We affirm.

The first question which we address is whether the court erred in refusing to grant a jury hearing to the defendant on the question of his mental competency to stand trial.

The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until the defendant’s mental condition has been investigated and it appears that he is sufficiently rational to make a defense. Barr v. State, 359 So.2d 334 (Miss.1978); Pace v. State, 218 Miss. 614, 67 So.2d 521 (1953); Shipp v. State, 215 Miss. 541, 61 So.2d 329 (1952); Williams v. State, 205 Miss. 515, 39 So.2d 3 (1949); Carter v. State, 198 Miss. 523, 21 So.2d 404 (1945); Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205 (1919).

In Williamson v. State, 330 So.2d 272 (Miss.1976), we commented:

Ordinarily, where there is a serious question of an accused’s sanity or competency to stand trial, that issue should be submitted to a separate jury prior to a trial on the merits of the charges against the accused. (330 So.2d at 275).

When the competency of a defendant to stand trial is raised, the trial court should preliminarily, prior to trial, conduct a hearing to determine whether there is a probability that defendant is incapable of making a rational defense.

It naturally devolves upon the defendant to go forward with the evidence to show his probable incapacity to make a rational defense.

After hearing all the evidence, the trial judge should weigh the evidence and make a finding as to whether there is a probability that defendant is incapable of making a rational defense. If the evidence shows such a probability, then the trial court should impanel a jury to decide that issue prior to trial on the merits.

If the trial court is of the opinion, after weighing the evidence both for the state and the defendant, that there is not sufficient proof to show a probability that defendant is incapable of conducting a rational defense, he should make such finding a matter of record. The case may then proceed to trial on the merits.

When the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, we will not overturn that finding unless we can say, from the evidence, that the finding was manifestly against the overwhelming weight of the evidence. The evidence must show more than a possibility that defendant is incompetent to stand trial — the evidence must go further until it appears to the trial court that there is a probability that defendant is incapable of making a rational defense. In this initial inquiry, the trial judge must weigh the evidence and be the trier of the facts.

In the case sub judiee, the defendant filed his motion containing a suggestion of insanity and requested a mental examination. That motion was sustained, and an examination was conducted. Later, the defendant was sent to Whitfield for further mental examination.

Thereafter, the trial judge conducted a preliminary hearing on the question of whether there was a probability that the defendant was incapable of aiding and assisting his attorney in conducting a rational defense. At the hearing, he heard the testimony of Dr. Kent Walter Andrews, PhD, a psychologist, also Dr. Malcolm Latour, a psychiatrist, and Dr. William D. Bridges, a psychiatrist. Additionally, the court heard the testimony of the defendant’s mother, Mrs. Barbara Emanuel. After hearing extensive testimony from these witnesses, which included a probing, lengthy cross-examination as well as a series of questions propounded by the court, observing the witnesses, and weighing the evidence before it, the court found that there was no probability that the defendant, Emanuel, was insane or incompetent to aid and assist his attorneys in presenting a rational defense.

The court summed up its findings as follows:

BY THE COURT: Alright. Well, all three doctors have testified that he knows right from wrong, Mr. Fondren. So, I think that there is not even a remote possibility of insanity, based on the testimony before the Court that two psychiatrists and one psychologist have examined him and determined that he does know right from wrong at the time they examined him and at the time the crime was committed. They all agree that he is in the average to low-normal — and I’ll just take low-normal as the testimony— range of intelligence.- All have testified he has ability to recall events that have happened in the past and to relate them; so there is no probability or reasonable probability that the Defendant is insane. Quite the contrary from all three doctors’ testimony. All three have unequivocally stated that he is, in fact, sane. In fact, Dr. Andrews said he has concrete understanding of the charges against him and various factors and facts that pertain thereto. The only discrepancy is whether he is suffering from schizophrenic personality or not, or whether it’s drug influenced. He told Dr. Bridges about his drugs. But all three have agreed that, even if he had a schizophrenic personality, this, in itself, would not prevent him from being of assistance. That is a character or personality defect which has certain trends and characteristics. All three have testified that this defendant could tell you the facts that occurred and could help you, as attorney, to prepare for trial before trial. They have all three indicated that he would be emotional and have problems reacting under stress, but the most intelligent person in the world ... in fact, some of the geniuses that we have can’t handle stress very well and, in varying degrees, some of them handle it very poorly. So, that’s nothing abnormal, or certainly, nothing to prevent him from aiding you in the trial. This is normal, depending on the various individuals. I think all three doctors have indicated that, during trial, whether you should put him on the stand or not may be a question that needs to be resolved by you, and how much assistance he can be, and so forth. But that's a matter for the attorney to determine — what’s the best way to use his witness. And that’s not unusual, and certainly it’s not because of any mental condition. It’s a question of personality and his own character. So, there’s nothing to give this Court any reasonable probability to suspect that the defendant is insane or incapable of aiding the preparation of his trial. I think what all three doctors have indicated, he will probably make you a very poor witness should you decide to put him on the stand. And of course, that is true that people of high intelligence make a poor witness at times, so that’s no grounds for saying that he can’t stand trial. But, anyhow, on your motion to have a jury trial, there is simply no evidence. Even his own doctor has testified that he is sane. Two of them indicate they feel like he has some schizoid personality defect. The thing that concerns this Court most is that all of them have indicated that this defendant, placed under the same or similar circumstances, could be expected to commit the same crime again. Some of them have indicated that it is progressive; he can be expected to kill again in the future. Now, this is a great deal of concern, I think, to this Court and to everyone who happens to have to deal with matters of a criminal nature. But it certainly doesn’t mean that he can’t stand trial or aid in the preparation of his defense. That’s the only issue that is before the Court now. Based on the three doctors’ testimony, it’s undisputed that he is sane; and there is no jury issue presented by this testimony for me to submit to a jury on a separate trial. So, I’ll overrule the motion for a jury trial on the issue of insanity or ability to stand trial....
Based on all the doctors’ testimony, however, during the trial, should you need to consult with your defendant, since they’ve said he does have a tendency to become emotional, I will allow you certainly, in order to consult with your client if you feel it necessary and can’t do it in the courtroom, I will allow you ample time to have a recess and take your client out to a room where you can sit down and talk to him if that becomes a problem. And I will assure you that I’m going to do everything to see that he receives a fair and impartial trial. I will not rush the trial in any way, in view of the doctors’ testimony about his problems in handling emotional situations and stress situations; but I will give you that benefit. So, if you feel during the trial that you need some extra time to talk to him, you can bring it to the Court’s attention and I’ll take care of it at that time. Okay? BY MR. FONDREN: Thank you, Your Honor. (Emphasis added).

We have carefully reviewed this record, including the testimony of the above named witnesses, much of which was conflicting, and are unable to say that the findings of the trial judge with reference to whether there appeared to him a probability that Emanuel was insane or incompetent to aid and assist his attorneys in presenting a rational defense were manifestly against the overwhelming weight of the evidence.

Therefore, the trial court properly denied Emanuel a preliminary jury trial on that question.

The appellant, Emanuel, next assigns as error that the court denied him an instruction which informed the jury that if Emanuel was found not guilty by reason of insanity and that he was dangerous to the community, that he would be confined in a mental institution.

The appellant cites Pouncy v. State, 353 So.2d 640 (Fla.App.1977), which approves this type instruction. However, it is well settled in this State that, in cases of this nature, the jury’s role is to find the defendant guilty or not guilty by reason of insanity stating whether the accused has since been restored to his reason and whether he be dangerous to the community. The possible consequences of either of such verdicts are not a matter upon which the jury should be informed. Miss.Code Ann. § 99-13-7 (1972); Hill v. State, 339 So.2d 1382 (Miss.1976); Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960).

The jury’s verdict of guilty and judgment of the court were amply supported by the evidence and law.

Therefore, the judgment of the circuit court of Jackson County is affirmed.

AFFIRMED.

SMITH, P. J., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

HAWKINS, J., PATTERSON, C. J., and SMITH and SUGG, P. JJ., specially concur.

HAWKINS, Justice,

specially concurring:

I concur in the result reached in this case, but I would clear the air of solemn pronouncements which have proved meaningless and are never applied.

Is an accused entitled to a jury trial on the sole issue of his present mental competency to stand trial? In my view this is a question addressed solely to the discretion of the circuit judge, and it is unnecessary and inappropriate to empanel a jury to try this one issue. This question has nothing to do with his guilt or innocence, only with his present ability to go to trial.

Beginning with Shipp v. State, 215 Miss. 541, 550, 61 So.2d 329, 331 (1952), this Court stated:

If the showing before the trial judge is insufficient to engender a reasonable probability that the defendant is then insane, that issue must be preliminarily submitted to a jury. 'But if there be any doubt whether the party be compos or not this shall be tried by a jury.’ (emphasis added).

The right to trial by jury on the sole issue of present mental competency to stand trial was set out again in Robinson v. State, 223 Miss. 70, 77 So.2d 265 (Miss.1955); Olsen v. State, 224 Miss. 226, 79 So.2d 841 (Miss.1955); and Pace v. State, 218 Miss. 614, 67 So.2d 521 (1953). In 1960, however, the Legislature enacted 1960 Miss. Laws, ch. 262, codified at Miss.Code Ann. § 99-13-11 (1972), which set forth the procedure for determining whether an accused is mentally able to stand trial:

In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist selected by the court to determine his ability to make a defense .... (emphasis added).

Nothing is said in this section about the right to a jury determination. In McGinnis v. State, 241 Miss. 883, 893, 133 So.2d 399, 402 (1961), this Court construed the statute, stating:

The said Chapter 262, Laws of 1960, providing for the trial judge to order an examination of the accused by a psychiatrist when he is shown to be probably insane and incapable of conducting a rational defense has the effect of supplementing the former rule requiring the trial judge to impanel a jury to try such an issue preliminarily to the trial on the merits.

Departure from this rule of requiring a jury to try the present competency of a person to stand trial was further evidenced in Brown v. Jaquith, 318 So.2d 856 (Miss.1975). Finally, Rule 4.08 of the Uniform Criminal Rules of Circuit Court Practice specifically and in detail sets forth the procedure to be followed by the circuit judge when present mental incompetency is brought to the attention of the court. There is no requirement whatsoever for a jury in this Rule.

I would, therefore, expressly overrule all previous holdings by this Court that a defendant is entitled to a jury, under any circumstances, to try the sole issue of his present mental competency to stand trial. The matter should not be left to future argument, conjecture and confusion.

The instant case affords an excellent example wherein this issue, because of the conflicting evidence before the trial judge, should have gone to the jury. The accused, though not mentally retarded, was classified as a slow learner suffering with a progressive schizoid personality.

The trial judge was not manifestly wrong in his finding that the defendant was competent to stand trial. Conflicting evidence warranting a jury determination was before him, however. For example, Dr. Kent W. Andrews, a psychologist, testified that the defendant:

... is not capable of fully assisting in his own defense ....
******
My opinion is that he’s probably not capable of providing the information that would enable his attorney to deal with the safeguard ... legal safeguards ....
******
I think that there is information concerning his behavior on that evening that he is not capable of presenting. And if his inability to present that information to his attorney interferes with his defense, then I would say that it would interfere.

Dr. Malcolm Latour, a psychiatrist, testified:

Under the real, adverse situation in a court setting where there would be additional stresses put . . . brought to bear, where there would be confrontations, where there might be severe distortions presented, I think he would become more disorganized and really could not effectively aid in his own defense. That is my opinion.
******
He didn’t actually know what the proceeding was for today. He did not know.

As to his ability to assist his counsel, Dr. Latour stated:

A. I think it will be very negligible . . . negligible. I think if he becomes — and I think it’s predictable that he will become disorganized or that he will be withdrawn, apathetic, sort of looking around, not staring blankly, grinning maybe, not caring. I don’t think he can be of much help.
Q. So, he would not contribute to his own defense at trial.
A. Not adequately.
He can’t handle new situations; and believe me, being tried for murder is not only a new situation, but it’s a very stressful situation.
* * * * * , *
And I believe if he is apathetic or if he is decompensating, that he will not be able to help his attorney. He just won’t.
Q. But, of course, under stressful situations such as a court trial, what would be the effect?
A. He would become more disorganized and less able, less functional.
Q. And so that his regression would become more obvious in a court trial as time goes by?
A. Yes.

This testimony relates evidence showing his inability to stand trial. There was other testimony to the effect he was capable to stand trial. If the matter had been left solely to the discretion of the trial judge, as it should in these cases, I do not think the trial judge abused his discretion. On the other hand, if this Court is going to adhere to the rule that an accused is entitled to a jury trial to determine his present mental competency to stand trial, sufficient evidence was adduced, in my view, to make a jury issue on this point.

By approving the trial judge’s finding, this Court has de facto overruled precedent requiring a jury determination of mental competency to stand trial, where conflicting testimony has been presented to the trial judge. I think we should so state.-

PATTERSON, C. J., and SMITH and SUGG, P. JJ., join in this specially concurring opinion.


text:
    James O. BARR v. CONOCO CHEMICALS, INC., and Hartford Insurance.
    No. 53083.
    Supreme Court of Mississippi.
    April 21, 1982.
    Roy 0. Parker & Associates, Nora J. Hall, Tupelo, for appellant.
    Sumners, Hickman & Rayburn, S. T. Rayburn, Richard C. Coker, Oxford, for appel-lee.
   ROY NOBLE LEE, Justice,

for the Court:

This is an appeal by James 0. Barr from the Circuit Court of Monroe County, Honorable Thomas J. Gardner, III, presiding, involving a workmen’s compensation claim.

Barr received an injury August 28, 1975, which resulted in the loss of his lower right leg. There was no dispute as to the accident being work-related and in the scope of his employment. He was fitted with a prosthetic device (artificial leg) and a lump-sum settlement was entered into under Mississippi Code Annotated Section 71-3-37 (1972).

Prior to the 13(j) settlement, on June 6, 1976, Barr filed a motion to controvert, which was not answered by the employer until November 26, 1979. After the settlement, Final Report and Settlement Receipt (Form B-31) was filed September 6, 1977.

On October 8,1979, Barr filed a motion to require the employer to provide medical treatment to obtain a substitute prosthesis, the original having become unserviceable. In a letter dated October 24, 1979, a representative of the Commission required the employer to reply to the motion and advised that the order approving the lump-sum payment had not dismissed claimant’s motion to controvert and the matters raised in the motion to controvert were still pending.

The matter was heard by the Administrative Judge, who held that the claim for additional medical benefits, to-wit, the prosthesis, was barred by the one-year statute of limitations. On appeal to the Commission, the holding was vacated and the Commission ordered additional benefits on the ground that, no answer having been filed to the motion to controvert, the cause was still pending and the statute had not been tolled. The briefs of the parties did not address the basis of the Commission holding or the circuit court order reversing the Commission, which order did not state the reason for reversal.

The question now presented is whether or not the one-year statute of limitations bars a claimant who has required no medical treatment or service for a period of one year subsequent to the last treatment or payment of medical benefits, and has no need for medical treatment, in this case a new prosthetic device, until more than one year has elapsed since the last medical payment.

Mississippi Code Annotated Section 71-3-53 (1972) contains the one-year statute of limitations, which provides as follows:

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

Dunn’s Mississippi Workmen’s Compensation (2d ed. 1967) § 347, at 478-479, states:

§ 347. Claims barred by limitations. —While medical benefits are allowed without limit in nature, amount or cost, claims for such benefits are subject to the same statutes of time limitations as claims for compensation payments. Thus, after a compensation case is closed in a manner sufficient to start the running of the statute of limitations upon reopening the case, a claim for additional medical benefits filed after the statutory time has run is barred. If medical benefits are supplied or authorized after the case is closed and within the one year allowed for reopening the case, or if a claim for additional benefits is filed with the Commission within such time, this tolls the statute. On the other hand, once the claim has been barred, it will not be revived and a new period set in motion by the furnishing of medical services after the claim period has run.

The claimant here relies upon Mississippi Code Annotated Section 71-3-15 (1972), which provides for medical treatment and prosthetic devices, as follows:

The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require.

Mississippi cases which discuss the question here follow:

Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss.1977), held Section 71-3-3(j) defines “compensation” but makes no reference to medical payments. It is clear from the language “other than medical treatment” in Section 71-3-35(1) that the Legislature construed medical payments to be within the meaning of “payment or compensation” unless specifically excepted therefrom. [342 So.2d at 318]

Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So.2d 735 (1959), sugg. of error overruled, 237 Miss. 702, 117 So.2d 469 (1960) held:

The general rule in the majority of the states is that the furnishing of hospital and medical services is equivalent to or is the payment of compensation to the employee. So, in the case of Oklahoma Furniture Mfg. Co. v. Nolen, 164 Okla. 213, 23 P.2d 381, a case where the claimant was not paid monetary compensation but was furnished medical treatment, the Court said that “ * * * the furnishing of medical treatment recognizes liability and constitutes the equivalent of the payment of compensation and is sufficient to toll the statute. We are unable to draw a legal distinction between the voluntary payment of compensation and the furnishing of medical treatment. The reasoning permitting the one to toll the statute of limitations is applicable to the other. Both are indicative of the same thing, the recognition of liability * *
******
For the reasons given above we are of the opinion that the payment of medical expenses is a part of and is equivalent to the payment of compensation. The Mississippi law was copied in large from the Arkansas act and as we have herein above indicated, the Arkansas Court in construing its act definitely placed medical and hospital services in the same category as the payment of monetary benefits to the injured party. We think that the same rule should prevail here and for the reasons given, the judgment of the lower court should be and it is hereby affirmed and the cause is remanded to the commission for supervision of the payment of the benefits due. [237 Miss. at 698, 702; 115 So.2d at 738, 740].

Graeber Bros., Inc. quoted numerous cases from other jurisdictions wherein the same holding was expressed.

Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786 (1958) stated:

It is our opinion that the legislature of Mississippi intended to put some limit on the time when a claim for medical benefits could be filed and it seems reasonable to us that they intended to put the same limit as they did put on a claim for compensation. Under this view the judgment of the lower court must be affirmed. If the Legislature intended to put a different period of limitation on the recovery of medical expenses, they should amend the compensation act and put such period on it as they think is fair and just. [232 Miss. at 859-860; 100 So.2d at 788-789].

The claimant subjudice relies upon Gibbs v. Bass, 237 Miss. 823, 116 So.2d 542 (1959). There, the claimant had drawn all compensation payments to which he was entitled, but he required medical benefits for the rest of his life. He was apprehensive that the one-year statute of limitations would bar him from those benefits and he filed a claim in the nature of a suit for declaratory judgment. The Court said:

[T]he furnishing of medical services and supplies will toll the statute of limitation so that the same will not take effect until the employer or carrier is in default, in the obligation to furnish the same “for such period as the nature of the injury or the process of recovery may require.”
... This case was argued on the day that the opinion was rendered in the case of Graeber Bros., Inc., v. Taylor, supra, [237 Miss. 691, 115 So.2d 735 (1959)] and from that case it will be found that the claimant is unduly fearful in regard to his future rights for medical services and supplies becoming barred at the time of the expiration of the statute of limitation from and after the last payment of monthly installments of compensation in May, 1957, since this statute will be tolled during such period as the appellees shall continue to furnish such medical services and supplies, . .. [237 Miss. at 827-828, 116 So.2d at 544-545].

Gibbs is distinguished from the case sub judice in that there the employer/carrier had been furnishing medical benefits and the claimant was fearful that, upon the last payment of compensation, such benefits would be barred one year hence. The Court held that refusal of the employer/carrier to pay further medical benefits would result in default and claimant had one year from that default to enforce the payments. In the present case, the employer/carrier was not in default during a period of one year since last furnishing medical benefits and claimant had no reason to request such medical benefits within that one-year period because he had no need for them.

The statute does not cover a situation such as is presented here. While a claimant may not require medical services or a prosthesis for a period of twelve (12) months, probably the device will become unserviceable and he will need a new prosthesis and medical treatment every two (2) or three (3) years. It is conceivable that a paraplegic, and persons sustaining various other types of injuries, may not need medical services for a period of two or more years from the last payment for same, but will require such benefits at intervals during the remainder of their lives.

Although the statute allows claimants medical benefits as long as they require them, they are also barred by the statute, when they have not requested and enforced payment of same within every twelvemonth period. Under present decisions, the only way claimants can protect themselves is to request medical benefits, or new (repaired) prosthetic devices, within every twelve-month period for the rest of their lives, or they will lose those benefits.

We think that the best rule would be for the claimant to petition for medical benefits when there is a need for same and to prove the connection between his injury and the necessity for benefits. In the event the employer/carrier decline to furnish same, this will amount to default, and the claimant will have one year from that default in which to enforce the payment of same. However, this is a matter which must be addressed by the Legislature through appropriate action.

The judgment of the lower court is affirmed, and the order of the Administrative Judge is reinstated as the order of the Commission.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ.,' concur.

      . We find no merit in this ruling of the Corn-mission.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    The MALL, INC. v. Merritt ROBBINS and Piggly Wiggly of North Huntsville, Inc., a corporation.
    80-262.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Rehearing Denied April 9, 1982.

      Michael C. Quillen and A. Inge Selden, III, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Gary C. Huckaby of Smith, Huckaby & Graves, Huntsville, for appellees.
   FAULKNER, Justice.

This case involves an action by a tenant against a landlord alleging that the landlord fraudulently induced the tenant to pay approximately $35,000 to obtain a release and termination of the lease. The jury below rendered a verdict in favor of the tenant and awarded damages of $137,500. We affirm conditionally.

Merritt Robbins entered into an agreement with Bruno’s on January 1, 1977, to sublease space for a supermarket in Madison Mall Shopping Center. The Mall is the landlord of the space sublet to Robbins. The supermarket space was first leased to National Food Stores, which assigned the lease to Bruno’s. Under the terms of the sublease agreement, Robbins became obligated to perform all of the obligations of Bruno’s under the original lease.

On June 25,1977, Robbins closed the grocery store because it was unprofitable. Robbins requested that The Mall assist him in subleasing the space or permit him to terminate the lease. The Mall agreed to release Robbins from the lease if a new lessee was found. On February 14, 1978, Robbins requested permission to sublet the space to Stonehenge, a discotheque. Unaware of Robbins’s negotiations with Stonehenge, agents of The Mall began negotiating with another tenant in Madison Mall, Lang Sporting Goods. When Robbins informed the agents of The Mall of his intent to sublet the space to a discotheque, the owners rejected Stonehenge as unsuitable. The Mall stated that Stonehenge would not be an acceptable tenant “under any circumstances,” and that the owners were opposed to the concept of a discotheque which would leave 120 feet of inactive frontage during the day. The negotiations between The Mall and Lang proved unsuccessful.

Robbins brought suit in April, 1978, against The Mall to cancel the lease. Robbins agreed to pay $35,710.57 to The Mall as a settlement and termination of the lease, $15,710.57 representing expenses already accrued. The Mall delivered a written release and termination of the lease.

A couple of days after the termination, an agent of The Mall contacted Stonehenge. One of the principals of Stonehenge explained that it would be willing to lease only one-half of the supermarket space, none of it fronting on the interior mall.

Stonehenge’s representatives allayed other fears of The Mali’s owners in renting mall space to a discotheque. On August 21, 1978, Stonehenge entered into a lease with The Mall.

On January 22, 1979, Robbins amended his complaint and asserted a claim for fraud in the termination of the lease. Robbins sought compensatory damages for the amount he paid to The Mall to terminate the lease and for lost profits, and punitive damages for misrepresentation or fraud. Robbins made a demand for jury trial. The Mall moved the court to strike the trial by jury on the basis of a clause in the original lease waiving the right to jury trial. The court denied the motion to strike and the action was tried before a jury. The jury rendered a verdict in favor of Robbins. The Mall appeals.

On appeal, The Mall asserts several points as error. First, The Mall contends that the trial court erred in submitting the action to trial by jury. Second, The Mall argues that the alleged fraudulent misrepresentations are not actionable as misrepresentations of an existing fact. Third, The Mall asserts that the trial court erred in submitting the issue of suppression of a material fact to the jury and improperly charged the jury on that issue. Fourth, The Mall contends that Robbins did not rely on the alleged misrepresentations and thus should be barred from recovery. Finally, The Mall asserts that the evidence does not support the award of damages to Robbins.

I. Right to Jury Trial

Art. 1, § 11, Constitution 1901, and Rule 38, ARCP, express a preference for trial by jury. Nevertheless, no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury. Rule 38, ARCP; Hood v. Kelly, 285 Ala. 337, 231 So.2d 901 (1970). This Court recently enunciated three factors in determining whether to enforce a contractual waiver of the right to trial by jury: (1) whether the waiver is buried deep in a long contract; (2) whether the bargaining power of the parties is equal; and (3) whether the waiver was intelligently and knowingly made. Gaylord Department Stores of Alabama v. Stephens, 404 So.2d 586 (Ala.1981). The contractual waiver in the lease is in section 10.4, which is entitled “Waiver of Trial by Jury: Tenant Not To Counterclaim.” Since the section is titled so as to call attention to the waiver of jury trial in the lease, the waiver is not inconspicuously buried deep in the contract. Furthermore, the parties were both businessmen. Robbins owned six or seven other grocery stores at the time he entered into the lease. It cannot be said that the parties had unequal bargaining power.

Nevertheless, we agree with Robbins that the waiver agreement is inapplicable to this case because this controversy arose outside and beyond the operative effect of the lease agreement. Indeed, the termination agreement and release discharged “all obligations with respect [to the lease].” Robbins does not seek to reinstate the lease; nor does he claim damages pursuant to any of the terms of the lease. Rather, by way of amendment to the original suit for cancellation of the lease, he sues for fraud allegedly perpetrated by the lessor in the procurement of the termination agreement and release.

While the public policy favoring jury trials subjects jury waiver agreements to strict construction, the application of that policy will not void every such agreement. If the bargaining positions of the parties are equal, ordinarily jury waiver agreements will be upheld. Gaylord Department Stores of Alabama v. Stephens, 404 So.2d 586 (Ala.1981), Franklin Discount Co. v. Ford, 27 N.J. 473, 143 A.2d 161, 73 A.L.R.2d 1316 (1958).

Yet, that same public policy that applies the rule of strict construction will likewise limit the scope of operation of a jury waiver agreement to those controversies directly related to and arising out of the terms and provisions of the overall agreement containing the jury waiver provisions. See International Roofing Corp. v. Van Der Veer, 43 Misc.2d 93, 250 N.Y.S.2d 387 (1964).

For example, if the controversy arose between the lessor and lessee over the payment of rent, a jury waiver agreement would be enforceable by either party regarding the right to a trial by jury in a suit for the collection of rent. But if this same controversy resulted in a personal confrontation in which an assault and battery occurred, a suit for personal injury would not come within the jury waiver provision.

Appellants acknowledge the general rule, but insist that the broad language of the waiver provision — “any way connected with this lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Leased Premises, and/or any claim of injury or damage, and any emergency statutory or any other statutory remedy” — clearly expresses the agreement of the parties to waive the right of trial by jury in the instant case.

We disagree, and hold that the agreement, out of which the relationship of these parties as lessor and sublessee arose, has no application to the relief sought in this case, which is based upon a claim independent of and outside of the lease.

Furthermore, while we reject Robbins’s argument that the relationship of the parties, that of lessor-sublessee, is too remote to carry the waiver provision, we embrace Moore’s summary of the remoteness of time rule stated in note 24, 5 Moore's Federal Practice, § 38-401:

“Since a party clearly may waive the right of jury trial shortly after the institution of a federal action, under Rule 38, there should be a strong presumption in favor of an otherwise valid contract to waive a jury and try the action to the court where it was entered into after the cause of action arose and shortly before and in contemplation of litigation, and the now objecting party was represented by counsel. The presumption would be less strong as the time of entry into the contract is more remote from the institution of litigation, especially if the party was not represented by counsel.”

See, also, National Acceptance Co. v. Myco Products, Inc., 381 F.Supp. 269, 19 F.R. Serv.2d 167 (W.D.Pa.1974).

II. Fraud

The second, third, and fourth contentions of The Mall, listed above, essentially attack the jury’s finding of fraud. We find no merit to these contentions. The trial court instructed the jury on the elements of four types of fraud: intentional fraud, reckless fraud, negligent fraud and deceit. Code 1975, §§ 6-5-100 through -103. The jury obviously believed The Mall committed intentional fraud. The trial judge instructed the jury that it could give punitive damages only if it first found The Mall to be guilty of intentional fraud. The jury awarded punitive damages. Whether The Mall suppressed a material fact, whether the misrepresentation was. made with the intent to injure, and whether Robbins relied on it are all questions of fact for the jury. See Big Three Motors v. Smith, 412 So.2d 1218 (Ala.1982).

Testing the propriety of the trial court’s overruling of The Mall’s motions for directed verdict and J.N.O.V. against a “sufficiency of the evidence” challenge, we find the jury could reasonably conclude that The Mall intentionally misrepresented the true facts, considering all of the circumstances surrounding its initial refusal to accept Stonehenge, as a tenant and its subsequent rental to Stonehenge. Despite the preponderance of the evidence indicating that The Mall rented to Stonehenge under different conditions than Robbins anticipated, there was some evidence which justified submitting the issue to the jury. That evidence supports the jury’s finding that The Mall possessed the requisite present intent to deceive with respect to a future event. See Shiloh Construction Co., Inc. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1981). The Mali’s letter rejecting Stonehenge as a tenant “under any circumstances,” coupled with its immediate contact of, and subsequent sublease to, Stonehenge following The Mali’s receipt from Robbins of the prepayment of rent settlement, amply supports the jury’s resolution of the factual dispute.

III. Damages

The jury awarded $137,500 to Robbins. Of this sum, $3,742.57 represents past-due area maintenance and incidental charges owed by Robbins; $6,368 represents sums Robbins paid to Bruno’s for two months’ rent; and $20,000 represents the amount of prepaid rent Robbins paid to The Mall as a settlement of the lease. Some portion of the $137,500 represents lost future profits and the remainder represents punitive damages.

The amount of damages awarded Robbins for debts already incurred, $3,742.57, and for two months’ rent to Bruno’s after the proposed sublease would have taken effect, $6,368, are not recoverable. In Amason v. First State Bank, 369 So.2d 547 (Ala.1979), this Court held that payment of a debt that a person is under a pre-existing duty to pay is not a legal injury for which one may be recompensed. Robbins asserts that the rental payments for the two months after The Mall committed the fraud are not preexisting debts. However, there is no evidence that Stonehenge could have taken possession of the premises at that time.

Robbins asserts that he may recover $36,800 in lost profits he might have made as a result of the proposed sublease. Generally, the rule in Alabama is that recovery of lost profits of collateral enterprises is not permitted, because the profits are too speculative. Wray v. Harris, 370 So.2d 974 (Ala.1977); Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So.2d 880 (1966); Blankenship v. Lanier, 212 Ala. 60, 101 So. 763 (1924).

The profits Robbins might have received as a result of the sublease to Stonehenge depended on the future success of an unestablished business. Robbins’s profits were further contingent on Stonehenge’s continued ability to meet its rental obligations. The evidence showed that at the time of trial Stonehenge was more than $31,000 in arrears on its rent. While subsequent business experience is not necessarily conclusive on the issue of lost profits, here, it demonstrates the wisdom of the rule which disallows such damages as too speculative. Thus, under the facts of this case, Robbins may not recover lost profits.

The evidence, then, supports an award for compensatory damages of $20,000. The award of $3,742.57 and $6,368 for pre-exist-ing debts and $36,800 for lost profits exceeds by $46,910.57 any permissible award of compensatory damages.

We, therefore, require a remittitur of $46,910.57 as a condition to an affirmance of the trial court’s order denying The Mall’s motion for a new trial. In the event Robbins declines to file the required remittitur with the clerk of this Court within twenty-one days from the date of this opinion, the judgment will be reversed and the cause remanded for a new trial. Otherwise, the judgment as corrected on remittitur will be affirmed.

AFFIRMED CONDITIONALLY.

JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX and AL-MON, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

“[T]he right of trial by jury shall remain inviolate.” Ala.Const. art. 1, § 11. This right, however, is a personal right which can be waived. Hood v. Kelly, 285 Ala. 337, 339, 231 So.2d 901, 904 (1970); Moore v. City of Mobile, 248 Ala. 436, 439, 28 So.2d 203, 205 (1946); Oliver v. Herron, 106 Ala. 639, 640, 17 So. 387 (1894).

An individual can waive his right to jury trial through a contract, including a lease. Gaylord Department Stores of Alabama, Inc. v. Stephens, 404 So.2d 586, 588 (Ala.1981).

Section 10.4 of the lease agreement between The Mall and Robbins is entitled Waiver of Trial by Jury: Tenant Not to Counterclaim and specifically provides:

“[I]t is mutually agreed by and between landlord and tenant that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the relationship of landlord and tenant [and] tenant’s use or occupancy of the leased premises.”

I believe that the action filed by Robbins was connected with the lease agreement. The majority concedes that none of the exceptions alluded to in Gaylord applies in this case. Robbins and The Mall were both experienced in business, and had equal bargaining power. The jury waiver provisions were obvious and clear and were not buried deep in the contract. Finally, any responsible businessman would read a lease before signing, thus eliminating the possibility that he might unintentionally or unknowingly waive the right to trial by jury in a case such as this. See, Gaylord, 404 So.2d at 588.

In spite of the obviously valid waiver of jury by Robbins and The Mall, which is consistent with Alabama law, the majority upholds the lower court’s decision to disregard the contract and allow trial by jury. The only rationale given is “public policy grounds.” While the policy decision by the majority is apparently limited to the facts in this case, I cannot agree with this deviation ' from Alabama law. I believe that when he signed the contract Robbins, as a businessman, was aware of his agreement to waive a jury trial if any dispute arose concerning the area leased from The Mall. Robbins was not entitled to a jury trial and I would reverse and remand the case for a non-jury trial. Because I do not believe a jury trial was warranted, I feel there is no need to reach the damage issue.

MADDOX and ALMON, JJ., concur.

      . As the opinion subsequently indicates, the evidence shows that $20,000 of this total amount represents prepaid rent, while the bal-anee represents rent and expenses already accrued.

      . As we understand the record, the award does not include the amount of the prepaid rent— $11,968.