author: BOWLING, Justice,

text:
    MID-SOUTH INSULATION COMPANY and Fireman’s Fund Insurance Company v. Dependents of Casey BUCKLEY, Deceased.
    No. 52403.
    Supreme Court of Mississippi.
    March 25, 1981.

      Michael L. Knapp and Gary Jones, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellants.
    Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves death benefits under the Mississippi Workmen’s Compensation Act sought by the widow of Casey Buckley, deceased. He died on September 26, 1975, primarily as the result of lung cancer precipitated and caused by breathing asbestos during the course of his employment. The paramount question in the appeal is whether or not appellant-carrier, Fireman’s Fund Insurance Company, the workmen’s compensation carrier for the deceased’s employer Mid-South Insulation Company, during a part of the period of exposure to asbestos, is obligated to pay workmen’s compensation benefits to the widow.

We first should place in mind certain dates. Casey Buckley began working for appellant Mid-South Insulation in 1957. Prior to that date, he had worked for various insulation companies since 1938. He worked regularly and solely for Mid-South from 1957 until August 1967, when his health condition required a complete stoppage of insulation work. From that time, until his health and bodily infirmities led to his death, he did odd jobs such as selling used cars.

From 1957, when Buckley began employment with Mid-South until March 30, 1967, the workmen’s compensation carrier was appellant, Fireman’s Fund Insurance Company. From March 30, 1967, until Buckley was forced to stop working in August 1967, the workmen’s compensation carrier was Employer’s Mutual Insurance Company of Wisconsin. The primary question is which of these companies has the obligation of paying all or part of the workmen’s compensation benefits undisputedly owed Buckley’s widow?

The evidence heard by the administrative judge and included in the appellate record practically is undisputed. A discussion of that evidence is necessary before considering the law applicable thereto. The first witness was the claimant and widow, Mrs. Evelyn Ellis Buckley. She and Mr. Buckley were married in August 1929, and lived together continuously until her husband’s death. She related the history of her husband’s employment with Mid-South during the ten-year period in question. She described his appearance when he would return home from work, stating that he would have white dust all over his clothes and face; that this situation existed every day, as he worked with asbestos every day. She testified that in the early 1960’s he started developing respiratory problems and breathing difficulty. He had developed shortness of breath and a lot of congestion in his chest and lungs. He did a lot of coughing. He started losing weight. The condition got no better and he was seen various times by physicians in Jasper County, the home of the deceased and his wife. He began to lose his strength and endurance. He would have extreme difficulty breathing and sleeping at night and would have to use items such as hard candy and cough drops to be able to sleep. Mrs. Buckley had not noticed her husband’s complaints until the early 1960’s. They both thought that during those years he was developing a severe case of bronchitis.

Witness James Vernon Baker testified that he had been an asbestos insulation worker since 1954. He had worked for long periods of time with the deceased. He described the working activities around asbestos and how the workers breathed it continuously, with it filling their noses and throats. They would continually have to be blowing their noses and coughing.

The records of the University Medical Center were introduced in evidence concerning the treatment of the deceased during his terminal illness. These records were interpreted by witness Dr. James D. Hardy, who had been head of the Surgery Department at the University Medical Center for twenty-two years. The first of 1975 he began examination and treatment ofBuck-ley for what obviously was a lung condition that could not be diagnosed at that time. He testified that Buckley was becoming increasingly short of breath and that the situation became so bad that he determined to recommend an operation to open the chest to try and diagnose the disease. This was done and Dr. Hardy found “a widespread lumpiness of his lung and a lot of whitish-looking scarring on the pleural surface, that is the lining outside the lung and we sent lots of this material over there [to the laboratory] thinking for sure it was cancer, but actually they did not see cancer but they saw asbestos bodies.” This operation was on June 23, 1975. Afterwards Buckley got no better and nothing attempted to be done for him was successful. He kept going down until his death, as stated. In a report to Mrs. Buckley, Dr. Hardy stated that Buckley had “severe and extensive lung disease, in addition to his malignant tumor and that this was related to exposure to asbestos dust.” In answer to a hypothetical question involving Buckley’s exposure over the years, heretofore set out, to asbestos dust and the history as previously related by Mrs. Buckley, Dr. Hardy stated “I believe if he was exposed to dust over that period, yes, I assume it would have an effect on him.” When asked0 about the causal relationship between the asbestosis and resulting death, and whether or not the asbestosis was a contributing factor to the death, Dr. Hardy stated, “I think it had a great deal to do. In fact, it was the cause of his demise.” Dr. Hardy testified that once asbestos was breathed into a person’s lungs, it tended to stay there and that it took “a long time, a good long time” for it to cause its maximum effects.

Appellants presented only one witness, Dr. Jon Michael Beall, who practices internal medicine in Jackson. He had never seen the deceased, but had seen and examined the medical records. He was first shown an x-ray report that was introduced in evidence by appellants. This was a report dated July 27, 1966, from the Jasper General Hospital, interpreting an x-ray taken of Buckley while a patient. The x-ray according to the report showed “interlobar pleural thickening on the right between the middle and lower lobes. There is a moderate amount of fibrosis in both lungs and there are a few scattered calcifications.” The x-rays were-introduced into evidence.

Dr. Beall was asked a lengthy hypothetical question that included testimony herein-before related and a more detailed history of Buckley’s work around asbestos most of his adult life. Dr. Beall was then asked whether or not, based on that question and the x-rays and reports introduced in evidence, he had an opinion as to “when Mr. Buckley had asbestosis?” His answer was “on the basis of the information that we have available, I think that the clinical diagnosis of asbestosis could have been made, at least by this x-ray, in July of 1966.” Dr. Beall then described the findings on the 1966 x-ray, although misinterpreted by the local doctors, that were compatible with a lung condition caused by asbestos. The doctor definitely made a clinical diagnosis of asbestosis present in Buckley’s body in July 1966, and in his opinion Buckley had asbestosis at that time.

Originally claims were filed against the employer and both carriers. A non-suit was taken and a settlement effected between the claimant and Employers Mutual Insurance Company of Wisconsin, who as stated, was the carrier from March through August 1967. The administrative judge, on motion of the claimant, refused to admit or consider details of this settlement, which reserved all rights against the appellants here.

The administrative judge found that from 1957 to March 30, 1967, the deceased was subjected to cumulative and repeated trauma from the inhalation of asbestos particles which resulted in asbestosis and his later death. He ordered payment of statutory compensation to the claimant by appellants.

On appeal to the full commission, the order of the administrative judge was reversed by two of the commissioners. This order found that although Buckley was exposed to asbestos for many years prior to August 1,1967, his “disability” only started on that date, and that the carrier who had the coverage on this “disability” date, was the sole carrier responsible for compensation payments. The commission based its order primarily on the case of Singer Company v. Smith, 362 So.2d 590 (Miss.1978), stating that “the Supreme Court emphasized its prior ruling that where occupational disease is involved, the carrier which provides coverage at the time the disability manifests itself is liable for the payment of benefits.” ,

On appeal to the circuit court, whose statutory duty required it to review all questions of law and fact, the order of the commission was reversed and the order of the administrative judge reinstated.

In our opinion, the final judgment of the Circuit Court of the First Judicial District of Hinds County is correct and should be affirmed. With deference, the Workmen’s Compensation Commission erroneously interpreted Singer, supra, as that opinion applies to the undisputed evidence in the case sub judice.

In Singer, the employee had been working for many years for Consolidated Furniture Industries, a division of Magnavox. His job was to operate a woodworking machine. Several months prior to September 1972, the plant began using a foreign wood named abiruana.. It developed that the dust from this wood is highly dangerous and causes chronic pulmonary .obstruction and disease. In September 1972 Smith was ill and did not work for approximately two weeks. There was no diagnosis of his condition that any way involved the foreign wood dust. Smith continued working until and after the ownership of the furniture factory changed on March 16, 1973, when Magnavox sold the factory to the Singer Company. Prior to the sale the workmen’s compensation carrier was Travelers Insurance Company. Subsequent to the sale the carrier for Singer was Liberty Mutual Insurance Company. Smith worked for Singer until April, 11, 1973, when his physical condition had deteriorated to such an extent that he was forced to stop working and his physical trouble after that time was diagnosed as being caused by the foreign wood abiruana dust. The question then was, which employer and which carrier was obligated to pay Smith workmen’s compensation benefits? The administrative judge, from the medical evidence presented, found that Smith was suffering from the poisonous dust in September 1972, when he was having his physical difficulties and contracted chronic lung disease at that time; even though, it was not medically determined then. It was held that nevertheless Smith’s “disability manifested itself at that time and that workmen’s compensation benefits were ordered solely by Magnavox and its carrier, The Travelers Insurance Company.” The administrative judge held for the Singer Company and Liberty Mutual Company and they were dismissed. On appeal to the full commission, this finding was affirmed. The circuit court on appeal reversed the commission and held that Mag-navox and Travelers were obligated for compensation benefits until the change of ownership (March 16,1973), and that Singer and Liberty Mutual were obligated to pay benefits incurred after the date ownership of the plant was changed.

This court in Singer reversed the circuit court on the issue being discussed and reinstated the order of the commission finding only Magnavox and Travelers responsible for compensation benefits. We discussed the question of “apportionment of damages” between successive carriers, reaffirming that this principle cannot apply under our statutes except in the case of pre-exist-ing handicap or disease. We should bear in mind that in the present case, we do not have a situation as in Singer; that is, two successive employers, as well as carriers. We have the same employer the entire time who undisputedly was responsible for all of the claimant’s benefits, leaving a decision only as to the change of carriers four months prior to Buckley’s having to stop work entirely.

The compensation commission in the present case, in its discussion of Singer tied its opinion to a finding that the disability “manifested” itself on August 1, 1967, the last day of Buckley’s employment and during the time Employers Mutual of Wisconsin was the carrier. It is true that in Singer, the Court also directed itself to the date the disability had “manifested” itself, which was September 1972, during the ownership of Magnavox.

The crux of the commission’s error is that the undisputed proof, of both appellants and appellee was that the asbestosis in regard to Buckley manifested itself in the early 1960’s and according to appellants’ own witness definitely did so manifest itself on July 27,1966, at the time of the hospitalization and x-ray in Jasper General Hospital.

In comparing Singer and the case sub judice, we find similar situations. When the finding was made that Smith in Singer manifested his disability in September 1972, there was absolutely no thought that he was suffering from the foreign wood dust. This was diagnosed only after he stopped work entirely several weeks after Singer became the owner of the plant and Liberty Mutual became the compensation carrier. Likewise, it is the undisputed proof in the present case that Buckley’s disability and disease manifested itself in the early 1960’s and especially in 1966. Likewise, the cause of this disability manifestation was not determined until after the end of Buckley’s employment.

In Singer we state that we would not reach the “last injurious exposure rule,” saying, “in the absence of difficulty in locating a definite and certain time, the rule has no application.” In the case sub judice and in Singer, we have almost identical proof “locating a definite and certain time.” Singer, therefore, is authority for the decision necessary to be rendered here.

We have carefully considered all of the assignments of error and in view of the above findings have concluded there is no merit to them. It follows that the final judgment of the Circuit Court of the First Judicial District of Hinds County should be and it is affirmed. The cause is affirmed and remanded to the Workmen’s Compensation Commission for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED TO THE COMMISSION.

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


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Ernest Liddell ROACH et al. v. Ann Rosemary (Roach) LANG.
    No. 52545.
    Supreme Court of Mississippi.
    March 25, 1981.

      Paul B. Henderson, Pearl, E. Stephen Williams, Jackson, for appellants.
    William E. Spell, Jr., Clarksdale, for ap-pellee.
   SUGG, Justice,

for the Court:

This interlocutory appeal is from an order of the Chancery Court of Coahoma County overruling defendant’s motion to dismiss for lack of jurisdiction. We affirm.

Ann Rosemary Roach Lang filed an amended bill of complaint in two counts under section 93-11-65 Mississippi Code Annotated (1972) against Ernest Liddell Roach, Dan Roach, and Betty Roach for custody and support of the minor child of complainant and defendant, Ernest Liddell Roach. In count one complainant alleged that an Oklahoma divorce and custody decree was void because it was fraudulently obtained. In count two, complainant pled in the alternative, if the Oklahoma decree was not declared void, she be awarded custody of the child because of changed conditions and circumstances since the rendition of the Oklahoma decree.

Defendants filed an answer containing five affirmative defenses and a motion to dismiss for lack of jurisdiction contending that jurisdiction was vested in the Chancery Court of Rankin County. The motion was submitted to the judge on the pleadings which showed:

1. Ernest Liddell Roach and Rosemary Roach Lang were married August 6, 1971, in Winter Haven, California.

2. The parties moved to Mississippi where one child, Charles Ernest Roach was born on August 3, 1972.

3. The parties were divorced by final decree of the Chancery Court of Rankin County on February 26, 1974, and custody of the child was awarded to complainant.

4. The complainant married James Woodrow Lang on December 13, 1974.

5. James Woodrow Lang is deceased but the date of his death does not appear in the record.

6. The district court of Texas County, Oklahoma granted Ernest Liddell Roach a divorce from complainant and awarded him custody of the child of the parties on December 14, 1978.

7. The Chancery Court of Rankin County entered a final order granting a writ of habeas corpus on February 21, 1979, giving full faith and credit to the Oklahoma decree and awarded Ernest Liddell Roach custody of the child of the parties.

8. The Superior Court of Lee County, Georgia, in a proceeding under the Uniform Child Custody Jurisdiction Act, gave full faith and credit to the Oklahoma divorce decree and awarded custody of the child to Ernest Liddell Roach on July 13, 1979.

9. The amended bill of complaint alleged that the child was residing in Coahoma County, in the home of defendants Dan Roach and Betty Roach.

Defendants argue here the Chancery Court of Coahoma County had no jurisdiction under count one because the Chancery Court of Rankin County had continuing jurisdiction over the child because it had adjudicated custody of the child in a divorce case before the commencement of the present action. In support of this argument, defendants state, if the allegations of the amended bill that the parties were divorced by the Chancery Court of Rankin County in 1974 and custody of the child was awarded in the decree, and if the Oklahoma decree is void as alleged, the Chancery Court of Rankin County had continuing jurisdiction over the custody of the child. We agree and so held in Reynolds v. Riddell, 253 So.2d 834 (Miss.1971). In Reynolds the husband filed a petition under Mississippi Code 1942 Annotated section 1263.5 (Supp. 1971), now section 93-11-65 Mississippi Code Annotated (1972) for custody of his two minor children. The complaint was filed in the Chancery Court of Washington County and modified a decree of the Chancery Court of Sunflower County in which the wife was granted a divorce from the husband and awarded custody of their two minor children. We held that the Chancery Court of Washington County did not have jurisdiction to modify the decree of custody entered by the Chancery Court of Sunflower County since the latter court had continuing jurisdiction over the minor children.

We note, however, the Chancery Court of Coahoma County has not decided whether the Oklahoma decree is void and may decline to hold so after a hearing on the merits. If the Coahoma County Chancery Court holds the Oklahoma decree void, then it should transfer the case to the Chancery Court of Rankin County for further proceedings in accord with Reynolds v. Riddell, supra. If the trial court accords the Oklahoma decree full faith and credit, it will have jurisdiction to consider modification of the Oklahoma decree under count two.

Defendants also argue that the Chancery Court of Rankin County has continuing jurisdiction by virtue of the fact that it issued a writ of habeas corpus in 1978 awarding custody of the child to the father after according full faith and credit to the Oklahoma decree. Defendants’ argument that the Chancery Court of Rankin County has continuing jurisdiction because of this habeas corpus proceeding is based on Leggett v. Leggett, 202 Miss. 435, 32 So.2d 189 (1947).

In Leggett the parties were married in Jones County and lived there as man and wife until they separated three years later in Jones County. The mother moved to Hinds County and carried their only child with her. The next year the husband filed a petition “in the nature of a habeas corpus” in the Chancery Court of Hinds County for custody of the child. The chancellor denied the petition, granted custody of the child to the mother, granted the father visitation rights, and required the father to pay monthly support to the mother of the child. The decree recited that the parties had agreed to the custody and support provisions and the court found the agreement to be in the best interest of the child and incorporated the agreement in the decree. Two years later the husband filed another petition in the Chancery Court of Hinds County to modify the original decree and award him custody of the child and alleged that conditions had changed since the former decree which would justify the court in awarding him the custody of the child. The chancellor denied the relief requested by the father without prejudice to the father to renew his petition at a later time.

The mother then filed a bill for divorce against the father in Jones County. The father answered, made his answer a cross-bill, and sought custody of the child on the basis of changed conditions occurring since the original decree of the Hinds County Chancery Court.

The mother demurred, filed a plea in bar, and a plea of res judicata to the cross-bill raising the question of the jurisdiction of the Chancery Court of Jones County to determine the custody of the child. The chancellor overruled the demurrer, denied the pleas, and the mother appealed from that action. This Court reversed and stated:

Appellee further says that after final judgment on a petition for habeas corpus, the court loses jurisdiction of the subject matter and its jurisdiction cannot be again invoked “except by the issuance of another writ of habeas corpus.” That argument might have merit in a strictly legal habeas corpus matter involving merely the unlawful detention of a petitioner. It has no merit in a chancery court where the petition, while in the nature of a petition for writ of habeas corpus, is much broader than a mere legal petition involving unlawful detention, but which petition itself, as in this case, goes far beyond such strictly legal petition, and raises the issue of the best interest of the child, and who should have its custody, and the obligation of the parents. The technical name given the pleading is immaterial. Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289. (202 Miss, at 441, 32 So.2d at 190)

The ruling in Leggett is contrary to the general rule that a habeas corpus court is a special court convened to try a single cause, and when a final judgment is rendered, its functions and powers cease. Ledbetter v. Bishop, 210 So.2d 880 (Miss.1968); Mitchell v. Powell, 253 Miss. 867, 179 So.2d 811 (1965); Talley v. Womack, 249 Miss. 773, 163 So.2d 742 (1964). In other cases we have held that the only final judgment that can be rendered in a habeas corpus court involving custody of a child is to award its custody to the person entitled thereto. After awarding custody of a child to the person entitled thereto, the court may not by subsequent order require visitation rights or temporary surrender of custody. Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892 (1922); Gray v. Gray, 121 Miss. 541, 83 So. 726 (1920).

Leggett stands alone outside the mainstream of our decisions and is the only case we find holding that the chancery court in a habeas corpus proceeding retains continuing jurisdiction over minor children. Leggett was decided before the enactment of section 93-11-65 Mississippi Code Annotated (1972) which gives the chancery court original jurisdiction to entertain suits for the custody and support of minor children. The jurisdiction conferred by the statute is in addition to the right to have custody and support of minor children adjudicated under section 93-5-23 Mississippi Code Annotated (Supp.1980), in addition to the remedy of habeas corpus, and any other existing remedies. Before the enactment of section 93-11-65, the custody of children could be determined only in a suit for divorce, a suit for separate maintenance, a habeas corpus proceeding or in a suit to modify a decree awarding custody. Although custody of a child may be awarded in a habeas corpus proceeding, support for the child and visitation rights of the parties may not be determined in the habeas corpus court. Leggett represents an unwarranted extension of the writ of habeas corpus and has not been followed but was severely criticized in Mitchell v. Powell, supra. We overrule Leggett and hold that the Chancery Court of Rankin County does not have continuing jurisdiction over the child involved in this case by virtue of the decree rendered by it in the habeas corpus proceeding in 1978.

In count two of her declaration, complainant pleads for alternative relief in the event the Oklahoma decree is accorded full faith and credit, and prays for modification of the Oklahoma decree based on changed conditions and circumstances. Chancery courts have jurisdiction to modify foreign decrees involving custody and support of minors when conditions have changed justifying modification. Latham v. Latham, 233 Miss. 263, 78 So.2d 147 (1955).

The trial court had jurisdiction under the allegations of the amended bill of complaint and properly overruled the motion to dismiss. Accordingly, we affirm and remand for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

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

      . We apply the same rule in special courts of eminent domain. Mississippi State Highway Commission v. First Methodist Church of Biloxi, 323 So.2d 92 (Miss. 1975).


author: BROOM, Justice,

text:
    Doyle VALENTINE v. STATE of Mississippi.
    No. 52567.
    Supreme Court of Mississippi.
    March 25, 1981.

      Thomas Tucker Buchanan, Billie J. Graham, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Cross-examination limitations imposed by the trial judge to shield an undercover agent while on the witness stand from interrogation by defense counsel highlight this cause. Sale of marijuana is the offense for which Doyle Valentine (defendant) was convicted in the Circuit Court of the Second Judicial District of Jones County. Sentenced to twenty years in the custody of the Mississippi Department of Corrections with twelve years being suspended, he appeals. We reverse.

The state’s case rested largely on the testimony of undercover agent Earl Plymale of the Metro Narcotics Division, Jones County Sheriff’s Department. Plymale testified that on March 2,1979, he made a buy as directed from defendant Valentine. Plymale paid $300 to the defendant for the marijuana. Ply male’s testimony was corroborated by others, and we think the evidence was sufficient. To the contrary was the defendant’s denial that he sold Plymale the marijuana.

DID THE TRIAL COURT ERR IN GRANTING THE STATE’S MOTION IN LIMINE RESTRICTING IMPEACHMENT AND CROSS-EXAMINATION OF UNDERCOVER AGENT EARL PLYMALE? The trial court granted the state’s motion in limine and entered an order which required defense counsel

to refrain, by express or implied questions, from commenting on or attempting to solicit answers on the character of the State’s Witness Earl Plymale for anything other than his reputation for truth and veracity and then only specifically that reputation.

Somewhat pertinent here is Mississippi Code Annotated § 13-1-11 (1972) which provides for impeachment of a witness by showing past convictions for criminal offenses. Of course, such impeachment is frequently accomplished by means of cross-examination. Sanders v. State, 352 So.2d 822, 824 (Miss.1977) quotes, from Baker v. State, 307 So.2d 545 (Miss.1975), which states:

It has long been the law in this state that a witness may be cross-examined touching his conviction of a crime which may extend to misdemeanors as well as infamous crimes.

Recently in Broadus v. State, 392 So.2d 203 (Miss.1980), we reversed Broadus’s conviction in a case wherein the testimony of undercover agent Earl Plymale was presented by the state. In Broadus, Justice Sugg, writing for the Court, concluded: “On retrial defendant should be permitted to show all the convictions of the witness regardless of the age of the witness at the time of the convictions.”

In sustaining the motion in limine now before us, the lower court in effect ruled that no previous convictions of Plymale could be used for impeachment. The ruling encroached greatly upon other aspects of cross-examination by defense counsel. As stated in the Mississippi Law Journal’s Evidence Symposium, “The right to impeach or to attack a witness’ credibility is considered the most valid safeguard for providing the trier of fact complete access to the truth.” 48 Miss.L.J. 1059, 1070 (1977). In its brief appellee

readily admits to some reservation over entry of an order limiting inquiry solely and specifically to reputation for truth and veracity.

After alluding to “some reservation,” the appellee then argues that when such limitation is present the defendant has a duty to make a proffer outside the presence of the jury of “what is intended to be shown....” According to the appellee no such proffer was timely made, and further the cross-examination of Plymale was not in fact unduly restricted because he was cross-examined at length. In effect it is argued that the error was “harmless error.”

Our conclusion is that the prejudice or lack of prejudice to the defendant is not measurable on the record before us. No one can anticipate or make precise proffer of what he may develop by employing the important right of cross-examination. Restriction of defense counsel by sustaining the prosecution’s motion is too drastic to overlook as “harmless error.”

Our established law under § 13-1-11, supra, and our cases is that the defendant must not be substantially restricted in his right to examine a witness appearing against him. As we held in Myers v. State, 296 So.2d 695, 700 (Miss.1974), the right of cross-examination is not satisfied by “token interrogation” and includes the right to fully cross-examine the witness on any material matter which would bear on the credibility of the witness. Accordingly, the conviction must be reversed, and the case remanded for a new trial.

Another proposition argued is that under recently enacted Mississippi Code Annotated § 13-5-32 (Supp.1980) the trial judge erroneously sequestered the jury list. The statute reads:

§ 13-5-32. Names of jurors drawn from jury box to be made public, exception.
The names of jurors drawn from the jury box shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.

Reversal of the case is being ordered for reasons discussed above having to do with cross-examination limitations. Nevertheless, the Court sets forth its opinion that only in rare and exceptional cases should a presiding judge sequester or keep secret the names of jurors drawn from the jury box. Here the trial judge ordered that names of the jurors drawn would be kept confidential by the clerk “until the said Juror’s [sic] have reported to the Courthouse for Jury service.” Before the trial judge makes a determination not to make a jury list available to litigants or trial attorneys whose clients will have a cause for trial, he should cause the record clearly to demonstrate good and sufficient reason “in the interest of justice” as § 13-5-32 provides. Before making his determination to keep confidential or secret the names of the jurors drawn from the jury box, the litigants or counsel (in this case the defendant) should have notice that such action is being' considered by the trial judge. Then the court should make its decision only after a hearing is accorded the defendant on the issue.

Another argument made is that the trial court erred in allowing the testimony of former District Attorney Robert Sullivan who appeared and testified concerning surveillance procedures. He also testified about his involvement in hiring Plymale and the operations of the Narcotics Unit. Assertion is made by the defendant that the former district attorney was presented in order to bolster undercover agent Plymale’s testimony. At retrial of the cause upon proper objection such testimony by the former prosecutor should not be admitted into evidence.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: WALKER, Justice,

text:
    Fred J. LOEFFLER v. STATE of Mississippi.
    No. 52491.
    Supreme Court of Mississippi.
    March 25, 1981.
    Richard V. Dymond and Jimmy D. Alexander, Gulfport, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

Fred J. Loeffler was convicted in the Circuit Court of the Second Judicial District of Harrison County of the crime of rape and sentenced to life imprisonment. He has appealed and we reverse and remand.

Since we are remanding the case for a new trial it is unnecessary to comment on the facts, except to say that the totality of the evidence of rape against thé defendant was extremely weak. There is one assignment of error which requires that this cause be reversed and remanded, and that is that the lower court erred in permitting Detective Parham Bridges to testify during the prosecution’s .case in chief that it was necessary for him to file an affidavit and obtain a, warrant charging Loeffler with unlawful flight to avoid prosecution. An objection to this line of testimony was overruled. Although the objection was general in nature and not specific, as we have stated it must be, Stringer v. State, 279 So.2d 156 (Miss.1973), we take note of it, under the circumstances, as plain error. Mississippi Supreme Court Rules, Rule 6; McMullen v. State, 291 So.2d 537 (Miss.1974). Unlawful flight to avoid prosecution is, of course, a separate crime. 18 U.S.C.A. § 1073 (1976). Although evidence of other crimes is admissible under certain circumstances, see e. g., Wilborn v. State, 394 So.2d 1355 (Miss.1981), we find no authority which holds evidence to be admissible that a criminal defendant has been charged with another offense connected in some way with the crime for which he is on trial.

We would add that on retrial the prosecution should avoid reference to the fact that the State of Tennessee employed attorneys, at the expense of its taxpayers, to represent Loeffler in the extradition proceedings, unless first injected into the case by the defendant. Evidence of Loeffler’s flight, if there were any, may be established in other ways.

We find no merit in the other assignments of error.

For the foregoing reasons, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    GALBRAITH & DICKENS AVIATION INSURANCE AGENCY v. GULF COAST AIRCRAFT SALES, INC.
    No. 52334.
    Supreme Court of Mississippi.
    March 25, 1981.
    Jacob D. Guice and Robert Alan Byrd, Rushing & Guice, Biloxi, for appellant.

      Charles J. Weeks, Pascagoula, for appel-lee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

The issue in this appeal is whether or not a judgment obtained in the District Court for Tulsa, Oklahoma, is entitled to full faith and credit in the Mississippi courts. The County Court of Jackson County ruled that it was not so entitled; the Circuit Court of Jackson County affirmed. Hence, this appeal.

The appellant, Galbraith and Dickens Aviation Insurance Agency, Inc. (hereafter G & D) is a corporation organized and doing business under the laws of the State of Oklahoma. The appellee, Gulf Coast Aircraft Sales, Inc. (hereafter Gulf Coast) is a corporation organized and doing business under the laws of the State of Mississippi. On October 16, 1978, G & D brought suit in the District Court for Tulsa, Oklahoma, against Gulf Coast, seeking to recover earned but unpaid insurance premiums alleged to be due and owing. G & D’s petition also contained an allegation that Gulf Coast had “solicited from [G & D] in Tulsa, Oklahoma, certain policies of aviation insurance which policies are numbered RTA 716175 and RTO 720561.” The petition also alleged that Gulf Coast had wrongfully stopped payment on a check it mailed to G & D in Tulsa and demanded that Gulf Coast pay the check indebtedness.

Thereafter summons was delivered to Gulf Coast by certified mail. Gulf Coast declined to file an answer and did not otherwise make an appearance in the Oklahoma suit. On December 26,1978 the Oklahoma court rendered a judgment by default in favor of G & D. In rendering its judgment the Oklahoma court found, inter alia, “that on or about November 22, 1976, defendant solicited from plaintiff in Tulsa, Oklahoma, certain policies of aviation insurance.... ” (Emphasis added).

Seeking to enforce the Oklahoma judgment, G & D filed its declaration in the County Court of Jackson County, Mississippi. Gulf Coast filed an answer and plea in bar. The plea in bar was premised on an assertion that the Oklahoma court lacked jurisdiction over its person. The County Court held a hearing on the plea, at which hearing Ronnie Hogue, President of Gulf Coast, testified that he had not personally gone to Oklahoma to solicit the insurance upon which the Oklahoma suit was based, but that G & D had come to Mississippi for that purpose. Hogue also testified that Gulf Coast had dealt with G & D for a period of several years, that he had sent numerous checks and had made numerous phone calls to G & D, that he had filed claims with G & D and that G & D had sent him checks, based on said claims, from Oklahoma. Hogue also admitted that he sent the check on which payment was stopped to G & D in Oklahoma.

Hogue was the only witness before the County Court. After both sides rested, that court ruled that the default judgment rendered by the Oklahoma court was obtained by a misrepresentation as to Gulf Coast’s solicitation of insurance at the office of G & D, and that Gulf Coast was not present, nor did Hogue, its President, solicit the insurance [on property located in Mississippi] at the office of G & D in Tulsa, Oklahoma.

The County Court sustained the plea in bar, declined to grant judgment on the Oklahoma judgment and dismissed G & D’s declaration. An appeal was taken to the Circuit Court which affirmed the County Court.

We do not find it necessary to address the question whether G & D obtained jurisdiction by fraudulently misrepresenting jurisdictional facts to the Oklahoma court. The petition filed in Oklahoma is ambiguous in that regard and so is the recital of jurisdictional facts in the Oklahoma judgment. The allegation in the petition filed in Oklahoma as well as the recital of jurisdictional facts in the judgment, that Gulf Coast had “solicited from [G & D] in Tulsa, Oklahoma, certain policies of aviation insurance ... ”, could be interpreted to mean simply that G & D had offices in Tulsa, Oklahoma, rather than that the defendant Gulf Coast, through its agent, was personally in Tulsa, Oklahoma, soliciting the policies. However, it is undisputed in the record before us that Gulf Coast did not, through Hogue, solicit the insurance in Tulsa but, to the contrary, G & D solicited the insurance from Gulf Coast in Mississippi and came here for that purpose.

On appeal to this Court, G & D contends the Oklahoma judgment is entitled to full faith and credit under Article IV, Section 1 of the United States Constitution.

It is well settled that a judgment rendered by a court of competent jurisdiction in a sister state is entitled to a presumption of validity as to that court’s assumption of jurisdiction, and the burden is on the party attacking the judgment to affirmatively show its invalidity. Marsh v. Luther, 373 So.2d 1039 (Miss.1979).

It is also a general rule that judgments entered in courts of a sister state, when sought to be made the judgment of another state, may only be attacked for lack of jurisdiction, otherwise they must be given the same effect as a domestic judgment. See generally 50 C.J.S. Judgments § 889 (1947); 47 Am.Jur.2d Judgments §§ 1214 et seq. (1969).

Other general rules are that the full faith and credit clause applies only where the judgment of a foreign state is founded upon adequate jurisdiction of the parties and subject matter, Restatement 2nd, Conflict of Laws, §§ 104, 105, pp. 315-316 (1969); extrinsic evidence is admissible in a collateral attack upon a foreign judgment to show that it is void, Restatement, Judgments, § 12, p. 69 (1942); and a judgment which is void is subject to collateral attack both in the state in which it is rendered and in other states. Id. § 11, p. 65.

In Ratner v. Hensley, 303 So.2d 41 (Fla. App.1974), the principle was stated thusly:

The courts of this State are bound to give full faith and credit to a judgment of a sister state. This rule is subject to the principle that the courts of this State are not required to recognize the judgment of another state where the judgment was rendered by a court without jurisdiction or where it has been obtained by extrinsic fraud. This principle is in turn subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional question or the matter of fraud that the determination becomes res judicata on this point and is, itself, protected by the full faith and credit clause of the Constitution of the United States, Article IV, § 1. Therefore, a jurisdictional question cannot be relitigated a second time in another state. (Citation omitted). (303 So.2d at 44).

In the present case, the Oklahoma court assumed jurisdiction over the defendant pursuant to its long arm statutes, Oklahoma Statutes Title 12, §§ 187, 1701.03 (1971). The Oklahoma courts have interpreted these statutes to extend jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the due process requirements of the Fourteenth Amendment of the United States Constitution. Jem Engineering & Mfg, Inc. v. Toomer Electrical Co., Inc., 413 F.Supp. 481 (D.C.Okl.1976); Hines v. Clendenning, 465 P.2d 460 (Okl.1970).

A test of that limitation is known as the “minimum contacts” rule and was pronounced by the United States Supreme Court in the case of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1942) and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). In International Shoe Company, the Court said:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad responden-dum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ (326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 101-102).

Just what amounts to minimum contacts must be decided by the facts of each individual case. One test of what constitutes “minimum contacts” is whether subjecting a person to in personam jurisdiction under a given set of circumstances offends traditional notions of fair play and substantial justice.

As a general rule, one must look to the law of the state which rendered the judgment sought to be enforced to determine its validity. 47 Am.Jur. Judgments § 1236 (1969).

A study of the Oklahoma cases makes it clear to us that the Oklahoma court, if it had been advised of the jurisdictional facts now before us, would not have asserted in personam jurisdiction over Gulf Coast.

In Architectural Bldg. Components Corp. v. Comfort, 528 P.2d 307 (Okl.1974), the Oklahoma court held that a foreign corporation which ordered goods from a domestic corporation by telephone and by mail was not subject to in personam jurisdiction of the Oklahoma court after receiving service of process under § 187 in a suit brought by the domestic corporation demanding payment for a shipment of a quantity of goods substantially less than that ordered.

Further, in CMI Corp. v. Costello Const. Corp., 454 F.Supp. 497 (D.C.Okl.1978), that court noted that while an out-of-state seller is easily made subject to actions brought on behalf of resident purchasers or users, courts generally have been reluctant to assert jurisdiction over non-resident buyers. See also, Henderson v. University Assocites, Inc., 454 F.Supp. 493 (D.C.Okl.1978).

In Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Okl.App.1974), after discussing the due process question in relation to its “long arm statutes,” the Court said:

... Oklahoma has made it clear that the Oklahoma long arm statutes were intended to extend the jurisdiction of Oklahoma courts over, nonresidents to the outer limits permitted by the due process requirements of the Fourteenth Amendment of the United States Constitution. There is no question but that in personam jurisdiction will be upheld in Oklahoma where the nonresident defendant is a seller who has shipped goods into Oklahoma, even if such shipment was an isolated or infrequent occurrence. See Vemco Plating, Inc. v. Denver Fire Clay Co., [496 P.2d 117 (Okl.)] supra. However, Oklahoma has apparently not interpreted the statute under facts similar to the case at bar, that is, where the defendant is a nonresident buyer.
Other jurisdictions, however, have dealt with the problem with varying results, depending on the facts. In general, the courts have expressed a reluctance to assert jurisdiction over a nonresident buyer. See ‘Automatic” Sprinkler Corp. v. Seneca Foods Corp., [361] Mass. [441], 280 N.E.2d 423 (1972); Geneva Indus., Inc. v. Copeland Constr. Corp., 312 F.Supp. 186 (N.D.Ill.1970); Oswalt Indus., Inc. v. Gilmore, 297 F.Supp. 307 (D.Kan.1969); Chassis-Trak, Inc. v. Federated Purchaser, Inc., 179 F.Supp. 780 (D.N.J.1960). See also Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079 (1st Cir. 1973). The reason most often given for this buyer-seller distinction is that the seller is the aggressor or initiator in the forum and by selling his product in the state he receives the benefit and protection of the forum state’s laws, and hopefully profits from its business therein. Further, allowing jurisdiction over “passive” buyers would tend to extinguish state lines and also to discourage out-of-state purchasers from dealing with resident sellers. See McQuay, Inc. v. Samuel Schlosberg, Inc., 321 F.Supp. 902 (D.Minn.1971).

In the case sub judice, Gulf Coast was a passive purchaser of insurance from G & D — receiving coverage over several years and payments for losses under the policies and, it can be assumed, paying the premiums due until now. This is not enough, under Oklahoma law, to subject a citizen of this State to in personam jurisdiction of the courts of that state.

For the above reasons, the plea in bar to G & D’s declaration was properly sustained.

AFFIRMED.

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

      . (a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person’s:
      (1) transacting any business in this state;


text:
    Earl DYCUS v. STATE of Mississippi.
    No. 51781.
    Supreme Court of Mississippi.
    March 25, 1981.

      Ronald Reid Welch and Mary Carroll Henkel, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

Murder conviction and life imprisonment sentence resulted from Earl Dycus’s (defendant’s) trial in the Circuit Court of Ya-zoo County sitting in Warren County following a change of venue. Most serious legal proposition argued here by the defendant is his contention that his handwritten inculpatory statement was erroneously admitted into evidence under the rationale of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Trial was upon a capital murder indictment charging the defendant with the capital murder of Rhonda McBride. After the guilt phase of the trial was completed, the trial judge imposed the life sentence without proceeding to a punishment phase of the trial. We reverse.

When driving around in Yazoo County at about 8:45 a. m. on Saturday, April 23,1977, David Kirk observed smoke coming from the LeRoy McBride house. Kirk pulled in front of the McBride driveway where he met the defendant (in another vehicle) backing away from the house. Kirk testified that the defendant told him “he had just got there and the house was on fire.” For some time residents of the house had been LeRoy McBride and his family: his wife, Martha; his 16-month old daughter, Rhonda; his wife’s sister, Mary Jackson; and his wife’s brother-in-law, defendant Earl Dycus. Upon discovery of the smoke, Kirk, after a brief discussion with the defendant, went to a nearby house and telephoned the Yazoo City Fire Department while the defendant remained at the burning house. Shortly after 9 a. m., Yazoo City firemen and county sheriff’s deputies arrived at the scene and were told by the defendant that he thought someone might be in the house because he could hear “hollerin.” Defendant Dycus then used one of the deputies’ car radio to notify family members of the fire.

After the fire was under control, Fire Department Captain Stewart discovered two bodies in the front room of the house where the fire’s hot spot was centered. Rhonda’s body was in the closet; the body of her mother, Martha, was under some bed springs. Fire Chief Woodward investigated the cause of the fire and testified that he found neither combustible material such as gas or kerosene nor electrical outlets in the area where the fire originated. His conclusion was that the fire began in some clothing or parts of debris.

Shortly after the child’s (Rhonda’s) father, LeRoy McBride, and grandmother, Mrs. George McBride, arrived, the defendant took them back to the George McBride home in Yazoo City before the fire was brought under control. After the defendant took his in-laws into Yazoo City, Sheriff Hood arrived at the fire. He caused a coroner’s jury to be assembled at the fire scene where the bodies were identified as Martha and Rhonda. When the sheriff learned that the defendant had been present at the fire scene, he ordered Deputy Woods to pick up the defendant. Defendant Dycus was picked up at the McBride home and taken to the sheriff’s office for questioning, and it is conceded that he was under arrest as a matter of fact — without a warrant. Sheriff Hood testified that Deputy Woods gave the defendant his Miranda rights when he picked him up and again at the sheriff’s office. Deputy Jennings testified that in the sheriff’s office he had heard Woods read the defendant his Miranda rights. Sheriff Hood arrived back at his office around mid-morning and questioned the defendant about his recent release from Parchman Penitentiary. After this brief conversation, Sheriff Hood contacted Yazoo County Prosecutor Norquist and requested permission to take the defendant to the funeral home to identify the bodies of Martha and Rhonda. The finding of the circuit judge at trial was that the defendant was taken to the funeral home for a dual purpose: “to confirm who they were and to persuade him to come clean.... ” Following his conversation with the county prosecutor, Sheriff Hood handcuffed the defendant and took him to view the bodies. There, according to the record, defendant Dycus made an oral confession followed by his written confession and a tape recorded confession a short time later in the sheriff’s office. The indictment before us charged Dycus with the murder of Rhonda while engaged in the commission of arson without intent to effect her death.

Dr. Forrest Bratley, a pathologist, performed an autopsy on Rhonda’s body. He testified that her death was due to carbon monoxide poisoning and lack of oxygen due to burning in the room.

As a result of pre-trial suppression hearings, the circuit judge disallowed both the oral and tape recorded statements. He admitted into evidence the defendant’s handwritten inculpatory statement (sandwiched in between the other two) which the record establishes was made one to two hours after the oral statement. Except for the defendant’s statement, there is no testimony of incendiary origin of the fire.

WAS THE WRITTEN STATEMENT INADMISSIBLE AS AN EXPLOITATION OF AN ILLEGAL ARREST FOLLOWED BY ILLEGAL DETENTION AND CUSTODIAL INTERROGATION IN CONTRAVENTION OF DEFENDANT’S RIGHTS UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION? (Dunaway v. New York, supra).

Clearly established by the record is the fact that the defendant was taken into custody at the McBride home when no evidence indicated (to the law officers) his participation in the fire or that he was connected with it. At oral argument the state took the position that the sheriff had a right to arrest Dycus because the sheriff knew Dycus had not completed a previous penitentiary sentence (it was apparently unknown to the sheriff that Dycus had been legally given an early release). The record shows that the first officer to contact Dycus after the fire was discovered was Deputy Sheriff Stanley who stated that he asked Dycus no questions when he came in contact with Dycus at the scene of the fire. It was an hour or more after Dycus was picked up that anyone discussed with him or questioned him about his being out of the penitentiary. The argument of the state is that the defendant spontaneously admitted to the officers at the funeral home that he “did it” and would admit what they wanted to know. He then made the written statement after being advised of his rights and signing a written waiver. Dycus’s version is that he had gone to the house from his employment to obtain some clothes and found the house burning. He testified that after being taken to the funeral home, his head was pushed by the officers against the genital area of Martha (his sister-in-law) and told to kiss her as he had done before. He further testified that the officers threatened to make him stay there and watch tests (autopsy, etc.) to be performed upon the bodies of the two dead females until he confessed, all of which he says made him sick and coerced him into giving the statement. The state contends that the trial judge correctly determined that the statement admitted into evidence was voluntary after hearing all the officers testify as to what occurred when the writing was made. Agee v. State, 185 So.2d 671 (Miss. 1966).

We cannot accept the state’s contention that the defendant failed to press for a ruling as to the inadmissibility of the handwritten statement and therefore waived his objection. To have “pressed” any harder could hardly have been done in prudence. On March 17, 1978, defendant filed a motion to suppress challenging the admission of all written and oral statements as violating the Fourth and Fourteenth (U. S. Constitution) Amendments, i. e., fruits of an illegal arrest made without probable cause. During the proceedings on the motion, the appellant objected to the introduction into evidence of the three statements for lack of probable cause and therefore fruit of a poisonous tree. On April 14, 1978, the circuit judge rendered his order suppressing the oral and taped statements. The written statement, however, was found to be voluntary and therefore admissible. Again, during the trial, defense attorneys objected to the introduction into evidence of the handwritten statement. The trial judge sustained the objection at that time because of the absence of proof of corpus delicti. Defendant (when the issue arose again) renewed his objection based upon an “illegal arrest from which the taint had not been removed ...” but the court nevertheless overruled the objection and admitted the statement into evidence. On at least four different occasions, the defendant objected to the admission into evidence of the handwritten statement. At the suppression hearing the court stated that since the jury was not present, the statement could be let in despite the fact that it might later be suppressed.

In arriving at our decision here, we must be made mindful of the context of the case which includes the aspect that the trial court disallowed both the oral admission of guilt and the tape recorded statement. No cross-appeal was taken by the state from the trial court’s action in disallowing these two items of evidence. Before us for our determination is the query: Was there probable cause for the seizure and detention of the defendant? We must also decide whether under Dunaway, supra, there were intervening events which severed any connection of the written confession accepted into evidence with the taint of circumstances surrounding the first disallowed confession.

In Dunaway, supra, a recent case, the proprietor of a pizza parlor was killed in an attempted robbery and an informant gave the police information which implicated Dunaway in the crime. At the time of Dycus’s arrest he had not made any admission as to his connection with any crime, and the arresting officer did not have information implicating him in any manner. In Dunaway, the officers checked out the “lead” but learned nothing that would be the probable cause basis of obtaining a warrant for arrest of the accused. There Detective Fantigrossi ordered other officers to “pick up” the accused and “bring him in.” Dunaway, 442 U.S. at 203, 99 S.Ct. at 2251, 60 L.Ed.2d at 829. Without telling Duna-way he was under arrest, he was taken to police headquarters and questioned after being advised of his rights. In that situation, Dunaway made incriminating revelations against himself which were admitted into evidence at his trial. Following his conviction and state court appeals, the United States Supreme Court, Dunaway, supra,, held that Fourth Amendment rights “cannot be compromised...” on the basis that an accused’s detention under a multi-factor balancing test of “unreasonable police conduct under the circumstances.” Dunaway, 442 U.S. at 213, 99 S.Ct. at 2256-57, 60 L.Ed.2d at 836. The High Court held that seizures “are ‘reasonable’ only if supported by probable cause.” Dunaway, 442 U.S. at 213, 99 S.Ct. at 2256, 60 L.Ed.2d at 837. There as in the instant case, when the accused was seized, no more evidence than “common rumor or report, suspicion, or even strong reason to suspect” connected him with the crime. Dunaway, 442 U.S. at 213, 99 S.Ct. at 2257, 60 L.Ed.2d at 836. Upon such state of the record, under Duna-way, we are bound to hold that the war-rantless arrest of Dycus was without probable cause, and not in the nature of the stop-and-frisk detention dealt with in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. at 1868, 20 L.Ed.2d 889 (1968).

In determining the effect of or causal connection between an illegal seizure or arrest and a subsequent inculpatory statement, the facts of each case are to be determinative and no single factor is dispos-itive. As held in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975):

The temporal proximity of the arrest and confession, the presence of intervening circumstances ... and, particularly, the purpose and flagrancy of the official misconduct are all relevant.
(422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427).

We held in Jones v. State, 330 So.2d 597, 600 (Miss.1976), in excluding an accused’s statement given after an illegal arrest, that “the Miranda warning in and of itself” did not guarantee that the statement was not obtained by the exploitation of illegal detention. In Dunaway, supra, the U. S. Supreme Court clearly held that detention for custodial interrogation — regardless of its label — triggers the safeguards against illegal arrest within the purview of the Fourth Amendment, supra. As stated by Justice Inzer in State v. Smith, 278 So.2d 411, 415 (Miss.1973) in commenting on the law as announced by the U. S. Supreme Court: “In such cases it matters not whether we agree with such decisions, we must follow the law announced.... ”

In the instant case, the seizing of the defendant followed by taking him from the sheriff’s office to the funeral home and back to the sheriff’s office for interrogation was without probable cause. No significant event or combination of events transpired thereafter to sever the connection or stream of closely related events between his illegal detention and written statement. It is true that while detained he was allowed to telephone his employer who later came to the sheriff’s office. This cannot sever the connection especially in view of the fact that one of the officers present told Dycus he would have to hurry and hang up the phone. Two of the incriminating statements made by Dycus were ruled inadmissible; the statement allowed into evidence over defense counsel’s objection came within two hours after the first statement. In Brown, supra, the time interval was four hours, or double that present here. As held in Jones, supra, and Brown, supra, the mere fact that the Miranda warning was given does not of itself erase the effect of the illegal detention. Accordingly, the conviction cannot be allowed to stand. Our decision is not contrary to Smith v. State, 386 So.2d 1117 (Miss.1980). In Smith, there were entirely different facts upon which we held the accused was arrested with probable cause. There arrestee Smith was found in a high crime back alley shortly after midnight; police had heard breaking glass; Smith ran and while running threw away something held in his hand.

Argument that the state was guilty of racial discriminatory practices in selecting grand jurors, grand jury foreman, and in the striking of certain petit jurors is unsupported by evidence under the cited cases. These two aspects of the case on the record as made do not merit discussion.

As we understand it, the record reveals that defendant’s wife, Elizabeth Dycus, on the day of the fire went to the sheriff’s office to make inquiry about what happened, not knowing her husband was there. After she inquired about the fire, the sheriff allowed her to visit the defendant; Sheriff Hood exited the room (leaving the door open) and remained just a few feet away in the adjoining room with Lucy Davis who came with Mrs. Dycus to make inquiry. Both Sheriff Hood and Davis heard the defendant tell his wife in substance that “if you had been there, you would have been lying right beside her.” Outside the presence of the jury Mrs. Dycus testified that the defendant made such a statement; in the jury’s presence, however, all her testimony that the jury heard was, “Well, if you had been there — .”

The defendant argues that what Elizabeth Dycus heard her husband say, that quoted in the preceding paragraph, is inadmissible because "of the marital privilege.

The distinction between the marital communication privilege and spousal incompetency is often confused and blurred. Succinctly stated, competency to testify for or against the other spouse, absent any statutory guideline, depends upon the status of the parties, i. e., whether they are married or divorced at the time of the trial. The marital communication privilege, however, is unaffected by the status of the parties at the time of the trial and forever prohibits the disclosure of confidential information. Hesdorffer v. Hiller, 111 Miss. 16, 71 So. 166 (1916). Purpose of the privilege is to assure the husband and wife that their confidence and trust will not be misplaced. Two statutory exceptions limiting the competency and privileged communication prohibition have been enacted into law by our legislature. In certain matters, the husband-wife privilege is not “grounds for the exclusion of confidential communications between husband and wife.” Mississippi Code Annotated § 43-19-43 (Supp.1979). Legislative enactments not only allow but may compel one spouse to testify against the other. Mississippi Code Annotated § 13-1-5 (Supp. 1979) reads:

§ 13-1-5. Competency of husband and wife.
Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

This Court in Tapp v. State, 373 So.2d 1029 (Miss.1979) decided that divorced parties are competent to testify against each other. In Tapp, the defendant’s former wife voluntarily testified against him regarding circumstances surrounding the child abuse related death of her son. Although former spouses are not disqualified from testifying against each other as to events during the marriage, they may not reveal marital communications made with the expectancy of privacy.

In the case before us now, however, there is a question as to whether Earl Dy-cus had any expectation of privacy when he made the statement to his wife in the sheriff’s office with the door ajar. Dycus had no possible claim to any expectation of privacy with regard to the statements he made to his wife in the sheriff’s outer office before third parties. Since Elizabeth Dycus is now divorced from the defendant, she is competent to testify concerning any oral communication made in the presence of third parties provided he was without any reasonable expectation of privacy.

Additionally, the defense argument is that Davis and Hood should not have been allowed to testify as to what they heard Dycus tell his wife because of the hearsay rule. We note however, that an admission against interest constitutes an exception to the hearsay rule. In Brown v. State, 293 So.2d 425 (Miss.1974) we held admissible what the defendant said to the mother of the homicide victim. The mother went to the jail and asked the defendant why he killed her daughter — his reply “it was an accident” was held admissible in evidence because it was unrelated to custodial interrogation and not instigated by the law officers. At retrial, if what Davis heard Dycus say on the occasion at the sheriff’s office is presented after being properly qualified, it may be admissible for whatever worth the jurors would accord it.

In the event the state elects to re-try the defendant in this cause, adherence must be given to Poole v. State, 246 Miss. 442, 150 So.2d 429 (1963) as to establishing the corpus delicti. Other issues need not be discussed inasmuch as reversal is ordered.

REVERSED AND REMANDED.

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

BOWLING, J., takes no part.

      . See 98 A.L.R.3d 1285, 1287-8, Marital Privilege — Effect of Separation.


text:
    Wanda D. COOPER v. Florian WARE & Florian Ware, II, d/b/a Ware Motor Lines.
    No. 52644.
    Supreme Court of Mississippi.
    April 1, 1981.
    Gary L. Geeslin, Columbus, for appellant.
    Douglas C. Stone, Jack H. Hayes, Jr., Columbus, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Willie Earl SCOTT, Ricky Gaston and Johnny Lee Willis v. STATE of Mississippi.
    No. 52588.
    Supreme Court of Mississippi.
    April 1, 1981.
    J. W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Tallahatchie County; Andrew C. Baker, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Jo Ann W. BUCHANAN v. Irl Dean RHODES and the Rankin County Bank.
    No. 52606.
    Supreme Court of Mississippi.
    April 1, 1981.
    Thomas W. Crockett, Jr., Tommy E. Fur-by, Perry, Crockett, Morrison & Starling, Jackson, for appellant.
   Appeal from Circuit Court, Rankin County; Russell D. Moore, III, Special Judge.

John C. McLaurin, McLaurin & McLau-rin, Brandon, for appellee.

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

AFFIRMED.


text:
    Jean LIZANA v. PASS CHRISTIAN GOLF CLUB, INC. and Western Insurance Co.
    No. 52501.
    Supreme Court of Mississippi.
    April 1, 1981.
    Norman Breland, Breland & Barnett, Gulfport, for appellant.
    Rae Bryant, Bryant & Stennis, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

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

AFFIRMED.


text:
    MONROE ALLEN CONTRACTORS, INC., et al. v. DEPENDENTS OF John Henry MEADERS, Jr., Dec’d.
    No. 52688.
    Supreme Court of Mississippi.
    April 1, 1981.
    Joe Clay Hamilton, Hamilton, Williamson & Boling, Meridian, for appellants.
    Leon Mangum, Decatur, for appellees.
   Appeal from Circuit Court, Clarke County; Henry Palmer, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Robert BROOME v. Bennie Paul DEVINE.
    No. 52527.
    Supreme Court of Mississippi.
    April 1, 1981.
    Thomas E. Royals, Royals, Taylor & Epps, Jackson, for appellant.
    Billy J. Gilmore, Lexington, for appellee.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

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

AFFIRMED.


text:
    Frances BENNETT, Dependent of Melvin Bennett, Sr., Dec’d v. U. S. PLASTICS, INC. and New Hampshire Ins. Co.
    No. 52651.
    Supreme Court of Mississippi.
    April 1, 1981.
    James S. Gore, Houston, for appellant.
    Rexford T. Brown and John H. Downey, Wells, Downey & Wicker, Jackson, for ap-pellees.
   Appeal from Circuit Court, Choctaw County; Niles McNeel, Judge.

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

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Godfrey FAYARD v. SOUTHERN TRAILER DISTRIBUTORS, INC.
    No. 52674.
    Supreme Court of Mississippi.
    April 1, 1981.
    Ben E. Sheely, Greaves, Terry & Sheely, Gulfport, for appellant.
    Stanford E. Morse, Jr., White & Morse, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

REVERSED AND JURY VERDICT REINSTATED.

SMITH, P. J., ROBERTSON, P. J., BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Walter KNIGHT v. Katie Ruth MOORE.
    No. 52393.
    Supreme Court of Mississippi.
    April 1, 1981.

      Forrest A. Johnson, Jr., Johnson & Johnson, Natchez, for appellant.
    David W. Hall, Natchez, for appellee.
    Before SMITH, LEE and HAWKINS, JJ.
   SMITH, Presiding Justice,

for the Court:

Katie Ruth Moore, a thirty-nine year old woman, brought suit in the Chancery Court of Adams County on the 13th day of September, 1978, against Walter Knight, alleging that she was his natural daughter, born out of wedlock, and demanding that she be declared his heir, capable of inheriting from him under the Mississippi laws of descent and distribution. From an adverse decree, this appeal is prosecuted on behalf of Walter Knight by his guardian.

Walter Knight had become mentally incompetent prior to 1975, and in that year he was placed in the Mississippi hospital for the insane at Whitfield, where he remains. It is admitted that, because of his mental condition, he is unable to recognize Katie Ruth Moore or anyone else and is now hopelessly insane. The present suit was defended on behalf of Walter Knight by a court appointed guardian.

Katie Ruth Moore, who reached her majority some eighteen years prior to the filing of the present suit, and her present husband, testified that from earliest childhood and throughout her life Katie Ruth Moore and Walter Knight had maintained a daughter-father relationship, that she called him “daddy” and he called her “daughter.” Moreover, they testified, he “gave her away” as his daughter at both of her marriages. Upon this and other like testimony, the chancellor found, that Katie Ruth Moore was the natural daughter of Walter Knight, product of an illicit relationship between him and her mother, and that Walter Knight had acknowledged Katie Ruth Moore as his daughter. He held, moreover, that Mississippi Code Annotated sections 91-1-15 and 93-9-29(5) (1972) unconstitutionally discriminated against illegitimates and, consequently, were invalid and entered a decree for Katie Ruth Moore.

There is no question, from her own testimony, that all of the facts and circumstances relied upon to establish heirship were well and thoroughly known to Katie Ruth Moore throughout her minority and the eighteen years which elapsed between the time she became twenty-one years of age and before she brought the present suit.

The suit is based upon a charge that Mississippi Code Annotated sections 91-1-15 and 93-9-29(5) (1972) unconstitutionally discriminate against illegitimates. In support of this view Katie Ruth Moore cites Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

Trimble, supra, involved the constitutionality of an Illinois statute which contained a dual requirement for inheritance by an illegitimate child from his father. The statute required that the child be acknowledged by the father during his lifetime and legitimated by the subsequent marriage of the parents.

The Court began its analysis by stating that the statute would be held constitutional if it was substantially related to a permissible state interest. Two state interests were advanced by proponents of the statute: the promotion of legitimate family relationships and the efficient disposal of an intestate decedent’s property.

The Court recognized that the orderly disposition of intestate property was the stronger state interest stating that the statute bore “only the most attenuated relationship” to promoting legitimate family relationships. Id. at 768, 97 S.Ct. at 1464, 52 L.Ed.2d at 38.

The Court concluded that the Illinois statute was unconstitutional on equal protection grounds because the dual requirements eliminated a significant category of illegitimate children whose inheritance rights could be recognized without jeopardizing the orderly disposition of intestate property.

At the time of the conception of Katie Ruth Moore by her mother, thirty-nine years before the present suit was brought, Walter Knight was married to one Marguerite Perry Knight and continued married to her until her death on June 24,1978. For that reason, and because of his mental incompetency, he was incapable of entering into a valid marriage with Katie Ruth Moore’s mother.

In Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), the United States Supreme Court determined that New York’s statute on inheritance by illegiti-mates was constitutional. The New York statute contained no marriage requirement. Instead the statute required that the paternity of the father be declared in a judicial proceeding sometime before the father’s death in order for the illegitimate to inherit from his father. The Court found that the interest served by the statute — the just and orderly disposition of property at death— was a valid state interest and that the New York statute rationally promoted that interest.

It has been suggested that the legislative purpose in the enactment of the above Mississippi statutes was to discourage intercourse between the sexes outside of marriage. We cannot attribute to the Legislature a purpose of such obvious naivete. There are two recognized legitimate state interests which the statutes are designed to protect: the promotion of legitimate family relationships and the just and orderly disposal of an intestate decedent’s property.

In view of the conclusion we have reached, however, it is not necessary in this case to pass upon the constitutionality of the Mississippi statutes. No case has been cited, and we find none, where, the facts were directly on all-fours with the facts here. We believe that the reasoning of the United States Fifth Circuit Court of Appeals in Franklin v. City of Marks, 439 F.2d 665 (1971), in dealing with alleged unconstitutional discrimination presents a closely analogous situation. In that case the Court said:

We know, however, that when a municipality provides inadequate services to residents “on the other side of the tracks” that this deprivation constitutes unlawful discrimination. Hawkins v. Town of Shaw, Mississippi, 5 Cir. 1970, 437 F.2d 1286. Here the plaintiffs were residents of the City of Marks at the time of the de-annexation proceeding. Undoubtedly, the Town of Shaw could not escape its federal constitutional and statutory obligations by a de-annexation proceeding. We know too that a change in location of polling places as a result of changes in municipal boundaries by annexation may have discriminatory purposes and effects and require federal scrutiny under the 1965 Voting Rights Act. Perkins v. Mathews, 1970, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476. What might be regarded as a routine municipal ordinance or proceeding in state law is therefore subjected to thorough analysis and examination in federal law when the effect of the ordinance or proceeding is to deprive citizens of their federally protected rights.
Accepting the allegations of the complaint as true for purposes of the motion to dismiss and finding no analogue in state law, the court must resort to the state’s catch-all statute of limitations. Mississippi Code, Section 722 states: “All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.” It is the limitation to be applied to actions not otherwise explicitly covered by-a limitation.
We hold, therefore, that Section 722 of the Mississippi Code provides the appropriate limitation for this action.
(439 F.2d at 670).

While the defenses of laches, estoppel and the statute of limitations were not expressly raised by Walter Knight’s guardian, we think that all of these defenses are appropriate under the facts here.

Katie Ruth Moore, well aware of all of the facts and circumstances on which she now relies, waited, not until the actual death of Walter Knight, but for eighteen years after attaining her majority and until he was mentally dead, utterly incapable of defending himself and unable to dispose of his property by will or deed. -

The failure of the guardian to interpose these defenses cannot be visited upon the incompetent.

In Prudential Insurance Co. v. Gleason, 185 Miss. 243, 187 So. 229 (1939), this Court defined a guardian as follows:

A guardian, as the name implies, is a person appointed by the court to guard the interests of another person who, by reason of infancy, lunacy, or the like, is incapable of guarding his own interests without aid.
(Id. at 271, 187 So. at 232).

In Price v. Crone, 44 Miss. 571 (1871), this Court spoke of the chancellor’s duty with respect to litigation involving a guardian and ward.

It is the duty of the chancellor to protect the rights of minors, whether the proper defense has been made or not. The pro forma answer of the guardian ad litem, “submits the interest of the infant to the care and protection of the court.” Nothing is taken for confessed or waived by the minor or her guardian. The court must look to the record and all its parts, to see that a case is made which will warrant a decree to bind and conclude her interest, and of its own motion, give to the minor the benefit of all objections and exceptions, as fully as if specially made in pleading. (Emphasis added).
(Id. at 576).

The same principle applies in cases involving guardians of mental incompetents.

In 44 C.J.S., Insane Persons, § 148(b) (1945) appears the following statement:

Even in the absence of statute, the policy of the courts being to protect amply the rights of insane litigants, the failure to file a proper answer in behalf of an insane person is not necessarily fatal, and, where there is a formal defect in the pleading of the committee, the court should find the facts according to the proof as shown by the record.

Also, in 44 C.J.S., Insane Persons, § 144 (1945) the rule is stated thus:

No one may waive or admit away any substantial rights of, or consent to anything which may be prejudicial to, an insane litigant, and this rule embraces a general committee or guardian.

Mississippi Code Annotated section 9-5-83 (1972) provides:

The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to the execution of the trust of the executor, administrator, guardian, or other officer appointed for the administration and management of the estate, and all demands against it by heirs at law, distributees, devisees, legatees, wards, creditors, or others; ....

The Court finds that the present suit became barred by the six year statute of limitations set forth in Mississippi Code Annotated section 15-1-49 (1972), six years after Katie Ruth Moore became twenty-one years of age, and should be dismissed. We raise the defense of the statute of limitations on our own motion, based upon the plain and undisputed facts in the record, and dismiss the suit, holding that the appropriate statute of limitations barring the action is that set forth in section 15-1 — 49 supra, [section 722, Mississippi Code (1942)].

REVERSED AND DISMISSED.

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


author: PATTERSON, Chief Justice,

text:
    Everette G. LEWIS, et al., v. MASS APPRAISAL SERVICES, INC. (Formerly Hunnicutt & Associates, Inc.) et al.
    No. 52426.
    Supreme Court of Mississippi.
    April 1, 1981.
    Rufus Creekmore, W. E. Gore, Jr., Robert G. Nichols, Jr., Jackson, for appellants.
    Betty A. Morgan, Robert H. Weaver, Watkins, Pyle, Ludlam & Stennis, Paul H. Stephenson, III, W. F. Goodman, Jr., Watkins & Eager, Alex A. Alston, Jr., Marita Pace, Thomas, Price, Alston, Jones & Davis, Jerome B. Steen, Steen, Reynolds, Dalehite & Currie, Jackson, Lucien C. Gwin, Jr., Handy, Fitzpatrick, Gwin, Blough & Lewis, Natchez, for appellees.

      Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Everette G. Lewis, Joe M. Kirton, Jr., and Mary Wade, as individual taxpayers similarly situated, brought suit in the Chancery Court of the- First Judicial District of Hinds County seeking damages and/or an injunction against the Board of Supervisors of Hinds County and their sureties; Mass Appraisal Services, Inc.; Data-Aid, Inc.; L. Robert Kimball, d/b/a/ L. Robert Kimball and Associates; and the County Tax Assessor, David Warrington. The lower court sustained the general and special demurrers of appellees and dismissed the cause with prejudice. Appellants appeal, contending the court erred in sustaining the demurrers, and in dismissing the bill of complaint with prejudice.

The subject of this controversy is a contract entered into by the Board with Mass Appraisal, Data-Aid and Robert Kimball (assignee of the Mass Appraisal contract) for appraisal services for the assessment of ad valorem taxes.

Appellants allege the Board did not comply with statutory requirements in the letting of the appraisal contracts under MCA § 27-35-101 (Supp.1980).

More specifically they allege the following facts in their complaint. The Board adopted a resolution at its October 1977 term to advertise for bids for reappraisal services. The contract specifications were filed in the Chancery Clerk’s office in Hinds County. Notice of acceptance of bids was published in the Jackson Daily News on October 7, 14, and 21, 1977. This notice stated that sealed bids would be received up until 10:00 a. m., November 4, 1977, for a contract to appraise and valúate property in Hinds County in accordance with specifications on file with the Chancery Clerk’s office.

Four bids were received; and Mass Appraisal’s bid in the am.ount of $451,100.00 was accepted on November 7, 1977, as the lowest and best bid. Thereafter, on December 15, 1977, the Board’s president was authorized to execute on behalf of Hinds County a contract with Data-Aid to perform data processing services in connection with the initial contract with Mass Appraisal. The amount of this contract was $40,-000.00 which appellants assert as void because no notice of bids was published nor specifications filed for the second contract. Appellants further contend the county suffered actual loss of $40,000.00.

At the Board’s September 1978 term, the Mass appraisal contract was assigned to Kimball. Subsequently, the Board adopted a resolution to modify the contract at Mass Appraisal’s request, so the completion date was extended from April 1, 1979 to August 14, 1979; and for each day’s delay after August 15, a penalty of $500.00 would be imposed and for each progress payment for work completed, a 20% retainage.

Concerning the letting of the appraisal contracts, the appellants allege the following:

Complainants bring this action in their own behalf, as individuals, and as taxpayers suing to enjoin the collection of taxes levied, or attempted to be collected, without authority of law; and also as taxpayers, suing for the use and benefit of Hinds County ... to recover appropriations made by the Board of Supervisors of Hinds County ... for objects not authorized by law and for payments made from public funds on contracts made contrary to and without complying with, the laws of the State of Mississippi; and as such taxpayers, they invite all other taxpayers similarly situated to join in this suit.

We are of the opinion the chancellor correctly sustained the general demurrers; and since this is so, it is not necessary to reach the points of law raised by the special demurrers. Alexander v. Mayor and Board of Aldermen of City of Natchez, 219 Miss. 78, 68 So.2d 434 (1953).

In this state the right of a taxpayer to bring suit on behalf of the county or public is statutory only. Mississippi Road Supply Co., et al. v. Hester, 185 Miss. 839, 188 So. 281 (1939).

Pursuant to the provisions of MCA § 19-13-37 (Supp.1980) a taxpayer may bring a suit to recover appropriations made by the board of supervisors for an object not authorized by law. This statute states:

§ 19-13-37. Supervisors and other officials liable for illegal allowance; disposition of recovered funds.
(1) If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer suing for the use of the county, and such taxpayer shall be liable for costs in such case.
The individual members of all boards of supervisors, boards of trustees and directors of public water supply districts and all other special service districts, created and existing under the laws of the State of Mississippi, causing any public funds to be expended, any contract made or let, any payment made on any contract or any purchase made, or any payment made, in any manner whatsoever, contrary to or without complying with any statute of the State of Mississippi, regulating or prescribing the manner in which such contracts shall be let, payment on any contract made, purchase made, or any other payment or expenditure made, shall be liable, individually, and upon their official bond, for compensatory damages, in such sum up to the full amount of such contract, purchase, expenditure or payment, as will fully and completely compensate and repay such public funds for any actual loss caused by such unlawful expenditure.
(2) In addition to the foregoing provision, for any violation of any statute of the State of Mississippi prescribing the manner in which contracts shall be let, purchases made, expenditure or payment made, any public official who shall substantially depart from the statutory method of letting contracts, making payments thereon, making purchases or expending public funds shall be liable, individually and on his official bond for penal damages in such amount as may be assessed by any court of competent jurisdiction, up to the sum of five thousand dollars ($5,000.00).
(3)Any sum recovered under the provisions hereof shall be credited to the account from which such unlawful expenditure was made. (Emphasis supplied).

Before a taxpayer has standing to sue a public official under § 19-13-37, three prerequisites are required as we stated in Saxon v. Harvey, 190 So.2d 901, 904 (Miss.1966):

1. The suit must attack an appropriation to an object not authorized by law.
2. The suit must be brought on behalf of the public and the public must be invited to join therein.
3. The public official whose duty it is to bring suit must be presented with facts sufficient to convince the legal mind that the suit should be brought.

We are of the opinion appellants do not meet the first prerequisite because the Board of Supervisors appropriated funds for the appraisal of property for the purpose of assessing ad valorem taxes which they are authorized by law to do. § 27-35-101, supra.

This Court has construed the term “object not authorized by law” to mean “a diversion of money from its legitimate objects, and not for appropriation to a proper object, although in an irregular or unauthorized manner, that liability is imposed on members personally. It is what the money is appropriated to, and not how it is applied, that furnishes the test for liability for it.” State Ex Rel. Summer v. Denton, 382 So.2d 461 (Miss.1980), citing with approval Paxton v. Baum, 59 Miss. 531 (1882).

Application of this definition forces the conclusion the taxpayers could not bring suit against the Board for contracting for appraisal services, even though it digressed in minor detail from statutory directions in letting the contracts, because the Board is authorized by law to contract for survey and appraisal services.

Secondly, although the appellants sued on behalf of the public and invited the public to join, this, without more, is not sufficient to confer standing to sue under § 19-13-37, supra.

In reviewing the bill of complaint, we find no allegation that appellants first presented to the appropriate public officials sufficient facts to convince the legal mind a suit should be brought. Even though irregularities may have existed in the letting of the appraisal contracts, “such questions may be safely left to the discretion of officers elected by the public to challenge such irregularities, instead of being undertaken by the taxpayer, possibly of a litigious spirit, challenging whatever [does] not suit his personal views.” Hester, 185 Miss, at 859, 188 So. at 287.

Concerning the amendment to § 19-13-37, supra, which provides for penal damages against the Board in the event there is a substantial departure from the statutory methods of letting contracts, making payments, making purchases, or expending public funds, we are of the opinion the taxpayer-complainants’ failure to comply with the third prerequisite set forth in Saxon, supra, precludes their right to bring suit for penal damages. They do not allege that a public official was presented with facts sufficient to convince the legal mind that the suit should be brought. But in any event, we are of the opinion the Board did not substantially depart from the statutory methods so as to make them liable for penal damages.

Appellants also attempt to obtain injunctive relief pursuant to MCA § 11-13-11 (1972) which provides “The Chancery Court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain collection of any taxes levied or attempted to be collected without authority of law.” We are of the opinion the taxpayers had no standing to seek in-junctive relief because they did not allege an inadequate remedy at law; and moreover, equity cannot enjoin an assessment or appraisal of taxes.

Appellants primarily rely on Fondren v. State Tax Commission, 350 So.2d 1329 (Miss.1977) to support their standing to enjoin the appellees. There the court held a taxpayer to have no adequate remedy at law and thus could invoke equity jurisdiction to restrain the State Tax Commission from approving each county’s recapitulation of its assessment rolls unless and until the Tax Commission complied with its constitutional duty to equalize assessments. Here, no constitutional violation is in question, for the Board is undoubtedly authorized by law to contract for appraisal services and to use this appraisal data in assessing taxes.

Moreover, the taxpayer-complainants fail to allege, other than conclusions, that irreparable injury will befall them by the performance of the appraisal contract or the use of the appraisal data. Perhaps the taxpayers may be aggrieved in the future if their taxes are disproportionately high, but this is insufficient to invoke equity jurisdiction because “[cjourts of equity do not interfere to accommodate mere apprehensions of injury.” Griffith, Mississippi Chancery Practice § 436 (2d Ed. 1950). Also, “equity will not undertake to furnish a remedy when the only remedy it could furnish would itself be a subordinate or inadequate one. As for instance, since Chancery has no machinery to make an assessment of taxes it will not enjoin an assessment. It is only when the assessment has been fully made and taxes levied by the proper tribunals that an injunction will issue, and an injunction previously thereto is premature.” Griffith, supra at § 441; See also Thompson v. Kreutzer, 103 Miss. 388, 60 So. 334 (Miss. 1913); Yazoo & M.V.R. Co. v. Adams, 73 Miss. 648, 19 So. 91 (1895).

The taxpayers have a complete and adequate remedy at law through MCA § 27-35-119 (1972). It provides:

Any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right of appeal to the circuit court in the manner provided by law, within ten days after the adjournment of the meeting of the board of supervisors, at which the approval of the roll by the state tax commission is entered.

Since these taxpayer-complainants do not have standing to sue, have an adequate remedy at law, and their suit for injunctive relief is not ripe because no attempt to levy taxes had occurred at the time this suit was brought, we affirm the chancellor’s decision sustaining the general demurrers and dismissing the suit with prejudice.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.