author: LEE, Justice,

text:
    Mary Lou MORGAN v. Cleo Clyde WARDEN.
    No. 51606.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Rehearing Denied April 2, 1980.
    Cecil G. Johnson, Biloxi, for appellant.
    Page, Mannino & Peresich, Ronald G. Peresich, Lyle M. Page, Biloxi, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

This suit involves a dispute over 29.6 feet of land along Popps Ferry Road in Harrison County. Mary Lou Morgan filed suit against Cleo Clyde Warden to establish her title to said property, the court declined to hold she owns same, and she has appealed.

The question involved is whether or not the chancellor erred in declining to cancel the claim of Warden to the disputed property, in declining to enjoin Warden from interfering with and obstructing the use of the property' by Morgan and in enjoining him to remove his fence from the property.

Title to the respective properties of the parties is deraigned from a common source, viz, the Hosli family, which acquired the west twenty (20) acres of a forty (40) acre tract. About the same time, Mr. Kornman acquired the east twenty (20) acres of said forty, and a surveyor was obtained to divide the 40-acre tract. A fence was placed for some distance between the divided acreage and the Hoslis and Kornman were satisfied, and agreed that the fence was on the line, and that each party had his twenty acres of land.

Mrs. Muriel Hosli testified that the deed from Hosli to Warden was executed April 27, 1976, conveyed to him by metes and bounds the east one hundred ten (110) feet of the Hosli property, and specified that the land conveyed was the east 110 feet of the property conveyed to Hosli by Arthur F. Johnson. She further testified that the 29.6 feet in dispute comprised her driveway under which was located a septic tank, that she permitted Warden to use said property, but same was not conveyed to Warden, who so recognized.

On April 11, 1978, the Hoslis conveyed to Mary Lou Morgan a lot 159'4" fronting Popps Perry Road, and 330 feet deep, said lot running east along Popps Ferry Road 159' 4" to the property conveyed to C. W. Warden (Mary Lou Morgan already owned a lot adjacent to the aforementioned lot extending 200 feet west of said lot to the Klein property). Mrs. Hosli further testified that, by the above deed, the Hoslis intended to, and did, convey, unto Morgan the 29.6 feet in dispute, and that same had not been conveyed to Warden.

Mr. M. E. Thompson, Jr., a qualified surveyor, testified for Morgan that he surveyed the property after examining the original field notes. He began at the Northeast corner of Section 13, following the original survey, and ran to the northwest (NW) corner of said section, thence back 1,320 feet to the quarter section line, thence 654.33 feet to the old Kornman-Hosli fence, thence west 110 feet to the east line of the disputed property, thence north 330 feet to Popps Ferry Road, thence east 110 feet to the Kornman-Hosli fence, thence south 330 feet to the point of beginning. Thompson’s survey delineated the Warden property which contained 110 X 330 feet off the east end of the original Hosli property. Referring to the clause of the Morgan deed “to the property conveyed to C. W. Warden,” Thompson’s survey showed Morgan to be the owner of the 29.6 feet in dispute.

Warden obtained the services of one Owen C. Hines to survey his lot. The record reflects that Hines went to the property, obtained Warden’s deed, someone pointed out a corner to him, and he chained off 110 feet to Warden which included the 29.6 feet under dispute and placed Warden’s east line 29.6 feet from the old Kornman-Hosli fence (west of).

Warden also obtained the services of James R. Clarke to verify Hines’ survey, and Clarke admits that he did little more than to run around the lines established by Hines. By comparison, the survey of Thompson is the more accurate, better and more reliable survey of the property. John-stone v. Nause, 233 Miss. 584, 102 So.2d 889 (1958); Lankford v. Magee, 222 Miss. 770, 76 So.2d 845 (1955); Perry v. Wright, 216 Miss. 652, 63 So.2d 40 (1953); Boyd v. Durrett, 216 Miss. 214, 62 So.2d 319 (1953); Buckwalter Lbr. Co. v. Wright, et ux., 159 Miss. 470, 132 So. 443 (1931).

During the trial of the case, Morgan testified on cross-examination that she was claiming 359.6 feet frontage along Popps Ferry Road. However, it goes without saying that she was claiming the property from the Klein fence on her west boundary, which she acknowledged to be correct and over which there was no dispute, to the Warden west line, which claim included the disputed 29.6 feet. In view of Morgan’s testimony to the effect that she claimed 359.6 feet, the chancellor entered an interlocutory decree, directed the parties to agree upon a surveyor, then ordered the surveyor to begin at the Klein fence as Morgan’s west boundary, run thence east 359.6 feet, thence south 330 feet, thence west 359.6 feet to the Klein fence, thence north along the Klein fence to the point of beginning. That description, of course, ran to the west boundary of the disputed 29.6 feet and did not include the property involved in .this suit.

We hold that the chancellor was manifestly in error in failing, or declining, to cancel the claim asserted by appellee to the disputed 29.6 feet, and that his action in so doing was manifestly against the weight of the evidence. Therefore, the judgment of the lower court is reversed and judgment is rendered here for appellant cancelling as clouds in her title to said land all claims asserted against same by Warden, and enjoining appellee from interfering with or obstructing the use of said property by appellant, and requiring appellee to remove his fence from the property.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Dianna Angelic NAVEDA, by Next Friend, Annie Mae Lane et al. v. Barbara Jean Naveda AHUMADA.
    No. 51642.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    As Corrected On Denial of Rehearing April 2, 1980.
    Laurel G. Weir, Terry L. Jordan, Philadelphia, for appellants.
    Robert L. McHaney, Jr., Starkville, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Petition for adoption was filed in the Chancery Court of Neshoba County by Annie Mae Lane, Next Friend of Dianna Angelic Naveda, Annie Mae Lane, Individually, and John Bryant Lane, Jr., seeking to adopt Dianna Angelic Naveda, eight-year-old child, to Annie Mae Lane and John Lane, Jr., maternal grandparents of said child. Decree was entered ordering the adoption on December 19, 1975. Barbara Jane Naveda Ahumada,'mother of the child, subsequently filed a petition to set aside the adoption decree and, after a full hearing, the chancellor granted the prayer of said petition and vacated the decree. Thereafter, a hearing was held in the cause to determine custody of the child and same was granted to the mother with visitation rights to the Lanes. They appealed the order setting aside the adoption decree and Mrs. Ahumada cross-appeals from that part of the decree granting the Lanes two (2) months visitation rights (custody) in the summer time. Appellee has filed a motion to dismiss the direct appeal for the reason that Mrs. Lane spirited away the child and concealed her since rendition of the decree in the lower court. We overrule that motion since the interest and welfare of the minor child, who is a party to this proceeding, is involved.

The sole question on direct appeal is whether or not the • lower court erred in setting aside the adoption decree and in granting custody of the child to her mother.

In order to resolve the question presented, it is necessary for this Court to determine whether or not the Chancery Court of Neshoba County acquired jurisdiction of the person of appellee in the adoption proceed-, ing. The sworn petition for adoption averred that

“Petitioner, DIANNA ANGELIC NAVEDA, is a minor without legal guardian, who files this Petition by her adult grandmother and next friend, ANNIE MAE LANE, and is joined in said Petition by ANNIE MAE LANE, individually, and by her adult grandfather, JOHN BRYANT LANE, JR. individually, and shows the Court that the adult Defendants are BARBARA JEAN NAVE-DA and LUIS MIGUEL NAVEDA, the adult mother and father of said minor, and shows the Court that Petitioners are all resident citizens of Neshoba County, Mississippi, and have made diligent search and inquiry for the place of residence, post office address, and street address of said Defendants, and after having made said diligent search and inquiry aforesaid, that they do not know and cannot ascertain the place of residence, post office address and street address of said Defendants, and they so abscond and conceal themselves that they cannot be served with legal process in the State of Mississippi.”

Upon the foregoing averment that the petitioners did not know the place of residence, post office address and street address of appellee and the father of the child, publication was made for them. (Appellee and Luis Naveda were divorced and appel-lee was granted custody of the child).

The petition for adoption was filed November 24, 1975. On, and prior to, that date, appellee had been, and was, a student at the University of Southern Mississippi. For some period of time, Dianna lived there with her mother and, during other times, when she was residing with her grandparents (appellants), appellee visited her and communicated with her. Appellee testified that, while a student at the University of Southern Mississippi, she left Hattiesburg on the 14th of November, 1975, for the purpose of going to Mexico to act as godmother to a friend’s child. She returned to Hattiesburg on November 29, 1975 and immediately communicated with the Lanes, inquiring as to the welfare of the child. She also testified that while in Mexico, she telephoned the Lanes to inform them that she had arrived there safely, but the Lanes declined to talk with her. She stated that she wanted to see the child, that Mrs. Lane told her not to come to Neshoba County, since the Lanes were leaving town, and Mrs. Lane suggested that they and Dianna meet her in Jackson at another daughter’s home on December 6, 1975. That meeting occurred, appellee spent the day with the child, and Mrs. Lane never told her that an adoption petition had been filed by them, that publication had been made in the paper for her to answer the petition, and that the trial date on the petition had been set for December 19, 1975. Appellee did not learn of the adoption until some time after December 19, 1975, and she began taking steps to obtain legal representation for the purpose of setting aside the adoption decree and to obtain custody of Dianna.

Appellants argue that the lower court erred in setting aside the adoption decree in that Mississippi Code Annotated Section 93-17-15 (1972) bars the action after the elapse of a six-month period. The section states: "

“No action shall be brought to set aside any final decree of adoption, whether granted upon consent or personal process or on process by publication, except within six (6) months of the entry thereof.”

Mississippi Code Annotated Section 93-17-17 (1972) provides:

“For all purposes of this chapter, the chancery court shall be a court of general jurisdiction and it is declared to be the public policy of the state that no adoption proceedings shall be permitted to be set aside except for jurisdictional defects and for failure to file and prosecute the same under the provisions of this chapter.”

Appellants cite Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778, 83 A.L.R.2d 941 (1960), which was decided on a five-year statute of limitations under California law. That case is not authority here, particularly since there is no provision in the California statutes that an adoption may be set aside because of jurisdictional defects.

The opinion of the lower court in the present case stated:

“I think you can look at this case in either of two aspects: Whether or not this jurisdiction was obtained fraudulently or whether the jurisdiction was obtained without proper understanding of what is required. In either event, this Court is of the opinion that the Court did not have jurisdiction of this party to begin with. There is much testimony, much documentary evidence, that the mother of this child was temporarily out of this country for a week or two, that the Petitioners could have determined a post office and street address very easily out of the country or could have located her. There is just too much communication back and forth between these parties immediately before the defendant left the country and after she came back to support any sort of non-resident publication; therefore, it is the opinion of the Court that this Court did not have jurisdiction of the defendants; and, therefore, the prior decree is void. ...”

We hold that the chancellor must b.e affirmed on the issue of whether or not the Lanes knew the whereabouts, place of residence, post office and street addresses of appellee, which goes directly to the jurisdiction of the lower court, since he was not manifestly wrong in his finding of fact. Further, the lower court was eminently correct in exercising its power to set aside the adoption decree. Krohn v. Migues, 274 So.2d 654 (Miss.1973); City of Starkville v. Thompson, 260 So.2d 191 (Miss.1972); Whiteway Finance Co. v. Parker, 226 So.2d 903 (Miss.1969); Bunkley & Morse, Amis on Divorce and Separation in Mississippi, § 12.-20, at 256 (1957).

The next question presented is whether or not the chancellor erred in granting custody of the child to appellee and, on cross-appeal, whether or not the court erred in granting visitation rights to the Lanes.

Again, the first part of the question is controlled by the chancellor’s finding on conflicting evidence. We cannot say he was manifestly wrong in granting custody to the mother, who, unless unfit to have custody of the child, was entitled thereto. The second part of the question as to whether or not the chancellor erred in granting visitation rights to the Lanes of two (2) months during the summer vacation is controlled by applicable law. In 67A C.J.S. Parent and Child § 41(c), at 296 (1978), the general law is stated as follows:

“Generally, where custody of a child has been awarded to a fit parent, grandparents and third persons are not entitled to visitation privileges. Grandparents have no commón-law right to visitation; their rights are derivative through the natural parent, and any obligation of a custodial parent to permit visitation of a grandchild by the grandparent is a moral obligation and not a legal right.”

In 59 Am.Jur.2d Parent and Child § 45, at 130 (1971), it is stated:

“The right of visitation derives from the right of custody and is controlled by the same legal principles. Thus, as in custody cases, the best interest and welfare of the child is the controlling consideration. . . . But where an award of custody to a nonresident or a person about to leave the jurisdiction has been determined upon, this conclusion has not been affected by the fact that the visito-rial rights of the other parent would thereby be impaired or destroyed, since visitorial rights must give way when in conflict with the child’s welfare.
Parents who have custody have the right to determine with whom the child will associate. Accordingly, where a parent or parents have custody, the courts will not undertake to give visitation rights to a nonparent — a grandparent, for example — over the parents’ objection.”

This Court set forth the rule in Mississippi in Gray v. Gray, 121 Miss. 541, 83 So. 726 (1920) as follows:

“After awarding the custody of a child to the party entitled thereto, the judge in a habeas corpus trial is without power to direct the manner in which such party shall exercise his lawful authority over such child, or to direct that he shall thereafter surrender, though temporarily, the custody thereof to another person. The judge does not merely, because he presided in a habeas corpus trial in which the right to the custody of a person was determined, thereby acquire perpetual jurisdiction over the custody and welfare of such person.” 121 Miss. at 545, 83 So. at 726-727.

Most cases involving custody between parents and grandparents arise through ha-beas corpus proceedings, which deal solely with right of custody as stated above. We recognize that the chancery court has the authority and duty to grant children’s custody to those individuals, where the best interest of the child requires, but always preferring parents, if possible.

Without question, the Lanes were concerned with the welfare of their grandchild, loved her very much and desired to care for, support and look after her. However, in Turner v. Turner, 331 So.2d 903 (Miss.1976), quoting from Pace v. Barrett, 205 So.2d 647 (Miss.1968), this Court said:

“ ‘The ' paternal grandparents have no right to the custody of their grandson, as against the mother, until they have charged and proved that she has forfeited her natural right to the custody of her minor son by abandonment or by immoral conduct, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another. Bunkley & Morse, Amis on Divorce and Separation in Mississippi, Section 8.01 (1957). The burden of proof is squarely on their shoulders . . . .’ (205 So.2d at 649).” 331 So.2d at 906.

And, further, quoting from Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973):

“ ‘[I]t is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the* child, or (2) the conduct of the parent is so immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. . . . ’ (274 So.2d at 673).” 331 So.2d at 906.

We conclude that the chancellor erred in granting visitation rights, or part-time custody, of Dianna Naveda to the Lanes, and that the judgment of the lower court in that respect should be reversed and judgment rendered here in favor of appel-lee/cross-appellant.

AFFIRMED ON DIRECT APPEAL, REVERSED ON CROSS-APPEAL AND RENDERED.

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


author: SMITH, Presiding Justice,

text:
    James L. SEGO and Naomi R. Sego v. Irby H. ATKINSON, Jr. d/b/a Picks Truck Stop and Olympic Manufacturing Company.
    No. 51691.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Rehearing Denied April 2, 1980.
    Graham, Segrest & Johnson, Thomas L. Segrest, Columbus, for appellants.
    Lumpkin, Holland, Ray & Upchurch, Ralph Holland, Tupelo, Joe O. Sams, Jr., Columbus, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

James L. Sego and his wife, Naomi R. Sego, brought suit in the Circuit Court of Lowndes County against Irby H. Atkinson, Jr., operator of a truck stop and car wash, and Olympic Manufacturing Company, manufacturer of a product called Magnum 44, demanding damages alleged to have occurred to their 1972 Silver Eagle Bus through use of said product by Atkinson in washing it.

In their declaration, the Segos described the damage:

“The aluminum finish of said bus had been so severly (sic) marred, burned, and damaged that it had completely lost its original lustrous appearance.”
They demanded judgment for: “$16,613.60, said sum being the amount reasonable and necessary to restore plaintiffs’ bus to the condition which it was in immediately before being washed by defendant Atkinson.”

The proof was uncontradicted that the bus was turned over to Atkinson by the Segos for washing and that Atkinson had used Magnum 44 in the process. It is admitted that those portions of the bus made of annodized aluminum were, in fact, marred, burned and damaged and had lost their lustrous appearance by the application of Magnum 44 which contained the chemical sodium hydroxide.

On Atkinson’s behalf there was testimony to the effect that Atkinson had been unaware of the dangerous propensities of Magnum 44 when used in cleaning anno-dized aluminum, and that there had been no warning label to that effect upon the containers in which he had received it from its manufacturer, Olympic. Testimony for Olympic was to the opposite effect, proof having been made that the containers had been carefully labeled with plain warnings of the effects of its use and that Atkinson personally had been warned by an agent of Olympic against using it on annodized aluminum surfaces. Olympic’s defense in the case was submitted to the jury by the court in the following instruction to which no objection was made.

If you find from the evidence that Olympic Manufacturing Company used reasonable care in warning Defendant Atkinson and his employees against the use of “Magnum 44” on annodized aluminum or on vehicles with bright finishes by placing warning labels on the “Magnum 44” containers or by warnings given Defendant Atkinson and his employees through Olympic’s salesman, Larry Do-nelson, then you must return your verdict for Olympic Manufacturing Company.

A witness for the Segos testified as an expert as to the cost of necessary repairs to the bus, estimating that it would require $16,000 to place it in the condition in which it had been in 1974 when the damage had occurred. There was no rebuttal testimony as to the cost of necessary repairs.

The trial judge instructed the jury to find for the Segos and the jury returned a verdict for them against Atkinson for $2,500 but declined to find against Olympic.

The Segos moved for (1) a judgment against Atkinson for $16,000, notwithstanding the verdict, (2) a new trial on damages only or an additur of $12,000, and (3) for a new trial on damages against Atkinson and Olympic. Each of these motions was denied.

From the action of the trial court, the Segos appeal, concluding their brief as follows:

CONCLUSION

It is earnestly submitted that the verdict of the jury is wholly without support in the record and that the plaintiffs, having been given a directed verdict, from which no appeal was taken, are entitled either to judgment against Appellee Atkinson in the sum of $16,000.00, or to a new trial on the issue of damages only against Appellee Atkinson.

It will have been noted that the Segos, in their declaration, demanded $16,613.60 for the repair of their bus and that the uncon-tradicted testimony of their expert witness fixed the cost of the repairs at $16,000. Also, the motion made by the Segos following the return of the verdict was for a judgment for $16,000 against Atkinson, notwithstanding the verdict. We have concluded, that, considering all the circumstances, and upon the pleadings and proof, this motion should have been sustained and a judgment entered for the Segos in the amount of $16,000 against Atkinson. Teledyne Exploration Company v. Dickerson, 253 So.2d 817 (Miss.1971).

• The declaration demanded, in addition to the costs of repair, compensation for loss of use of the vehicle. The trial court declined to submit that issue and there is no cross-appeal from the trial court’s action in this regard.

The judgment appealed from will be reversed and a judgment will be entered here for appellants in the amount of $16,000 against Atkinson.

REVERSED AND JUDGMENT HERE FOR $16,000 AGAINST ATKINSON.

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


author: WALKER, Justice,

text:
    MARSHALL DURBIN, INC. v. Archie TEW.
    No. 51701.
    Supreme Court of Mississippi.
    Feb. 27, 1980.

      Watkins, Pyle, Ludlam, Winter & Stennis, Richard G. Cowart, David B. Grish-man, Jackson, for appellant.
    Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is the second appeal in a personal injury action brought by the appellee, Archie Tew, against Marshall Durbin, Inc. as a result of the collision of a truck owned by Marshall Durbin with an Illinois Central Gulf Railroad Company train in Mize, Mississippi, on June 20, 1975.

The collision resulted in the spilling of chicken waste around the area of the collision, and Tew, as police chief of Mize, was required to work in this area, thus exposing him to the putrid odor of the chicken waste. Tew’s basis for damages was his allegation that being exposed to this odor caused injury to his sense of taste and smell as well as other ailments and that these injuries were a result of the negligence of Illinois Central and Marshall Durbin.

At the first trial, the trial judge directed a verdict for Illinois Central and submitted Marshall Durbin’s liability to the jury. The jury returned a verdict against Marshall Durbin for $18,000.00. Marshall Durbin appealed the jury verdict on several grounds, and on March 1, 1978, this Court by written opinion, Marshall Durbin, Inc. v. Tew, 362 So.2d 601 (Miss.1978), affirmed on the issue of Marshall Durbin’s liability, but reversed and remanded the cause for retrial on the issue of damages, stating that the verdict of $18,000.00 was excessive and unreasonable where the medical bills totalled only $252.00, where there was no hospitalization required, no time was lost from Tew’s employment, and where there was no permanent disability.

On November 7, 1978, a new trial was held on the issue of damages only and the jury returned a verdict for $20,500.00.

Following the verdict of the jury, Marshall Durbin alleged in his motion for a new trial that the defendant was prejudiced by the presence of a juror on the jury who had been recently represented by Tew’s attorney. Durbin filed a motion and an amended motion for a remittitur, or in the alternative, for a new trial, assigning this and other errors. In support of the motion, Durbin presented sworn statements from its corporate representative and from all its counsel present during the trial that each did not have knowledge of the juror’s relationship with Tew’s attorney and that if they had known of this relationship, the juror would have been challenged either peremptorily or for cause.

Counsel for Marshall Durbin, who was present during voir dire, also stated for the record that, during voir dire, the jury was questioned as to past and present representation by counsel for the parties and that this particular juror remained silent.

Counsel for Mr. Tew testified that he had represented the particular juror in the past, but was not representing him at the present time, stating that the case in which he represented the juror had. been settled and that the release in the matter was executed on October 21, 1978, which was approximately two weeks prior to this trial. Tew’s counsel further testified that he did not recall if the court’s voir dire had included past and present representation by counsel for the parties. At' the conclusion of the evidence, the trial court considered the motions and found the jury to be fair and impartial, and that the verdict of the jury was not grossly excessive. The court then overruled the post-trial motion. We reverse.

Marshall Durbin assigns as error, inter alia, that:

The trial court erred in refusing to grant a new trial where defendant was prejudiced in selecting an impartial jury because a juror, being recently represented by counsel for the appellee, failed to respond when questioned on voir dire about such representation.

Mississippi Constitution Article III, section 31 states that “The right to a jury trial is an inviolate right,” and this provision has been interpreted in Mississippi Power Company v. Stribling, 191 Miss. 832, 3 So.2d 807, 810 (1941), and other cases too numerous to mention to mean that: “It is the duty of the court to see that a competent, fair and impartial jury is empaneled.”

In Mississippi Power Company v. Stribling, supra, the defendant’s attorney discovered for the first time, after the case had been on trial for four days and was about ready for argument before the jury, that one of the jurors, and the plaintiff’s attorney were first cousins. Mr. Lewis, the plaintiff’s attorney, knew of that fact and said nothing about it to any of defendant’s attorneys. Thereupon the latter made a motion that the jury be discharged on that ground and another trial be granted. The motion was overruled. On appeal to this Court, we stated:

This action of the court was error. A lawyer’s duties are not confined alone to serving his clients. He is an officer of the Court and as such is called on to do and say whatever is necessary to promote the fair administration of justice. Mr. Lewis should have called the court’s and opposing counsel’s attention to his relationship to the juror.

As to appellant’s deprivation of constitutional or statutory guarantees of a trial of his case before a fair and impartial jury, the general established principle has been stated in 58 Am.Jur.2d New Trial section 348 (1971), as follows:

It seems generally agreed that when matters which might establish prejudice or work a disqualification of a juror are actually gone into upon the voir dire examination and false answers are given or deception is otherwise practiced, as a result of which a juror, although disqualified in fact, is accepted, the party misled or deceived thereby, upon discovering the fact of the juror’s incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though, it has been held, the bias or prejudice is not shown to have caused an unjust verdict; it is sufficient that a party, through no fault of his own, has been deprived of his constitutional or statutory guarantee of a trial of his case before a fair and impartial jury.

In Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla.App.1972), the Florida appellate court was faced with a situation where one of the jurors had previously been represented by the partner of one of the plaintiff’s attorneys and had not disclosed this representation during general voir dire questioning. In determining that the trial court correctly granted a new trial, the court said: “That there is a ‘miscarriage of justice’ when a party is precluded from the opportunity of having a juror excused for cause or excusing such juror peremptorily by reason of a material concealment by the juror of a fact sought to be elicited on voir dire where the failure to discover concealment is not through want of diligence by the complainant.” We agree with this rationale. See also Atkinson v. State, 371 So.2d 869 (Miss.1979); Dase v. State, 356 So.2d 1179 (Miss.1978) and Odom v. State, 355 So.2d 1381 (Miss.1978).

The record in this cause being silent as to any valid reason why appellee’s attorney, failed to disclose that he had represented the juror approximately two weeks before this trial, leads to the inescapable conclusion that the defendant was prejudiced.

Plaintiff’s attorney, as an officer of the court, was under a duty to disclose his relationship with the juror, and his failure to do so, under the facts presented, causes us to reverse this case. In order to avoid any suggestion of impropriety, counsel should always disclose and bring to the attention of the court and opposing counsel this type of relationship with prospective jurors.

The judgment of the trial court is reversed and this cause remanded for a new trial on the question of damages only.

REVERSED AND REMANDED FOR A NEW TRIAL AS TO DAMAGES.

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


author: BOWLING, Justice,

text:
    Gary Wayne GRIFFIN v. STATE of Mississippi.
    No. 51709.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.

      Mounger & Mounger, Breed 0. Mounger, Sr., Tylertown, Casey & Casey, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Gary Wayne Griffin, was indicted, tried and convicted of the crime of rape in the Circuit Court of the Second Judicial District of Jones County. The jury was unable to agree on punishment, resulting in the trial court sentencing appellant to serve a term of thirty years with the Mississippi Department of Corrections. In seeking a reversal of his conviction, appellant alleges the following errors:

1. & 2. The trial court erred in overruling appellant’s motion for a directed verdict, and in refusing to grant his request for a peremptory instruction.

3. The trial court erred in granting state’s instruction No. 3.

4. The verdict was vague and uncertain and the trial court erred in sentencing appellant based on such a verdict.

5. The prosecution failed to prove venue.

6. The trial court erred in overruling appellant’s motion for a new trial.

The first two assignments of error contend that under the evidence presented to the jury the trial court should have sustained appellant’s motion for a directed ver'dict of acquittal at the conclusion of the state’s case in chief, and should have granted appellant’s request for a peremptory instruction at the conclusion of all the evidence. It would serve no useful purpose to relate in this opinion a detailed summary of the evidence presented by the state as opposed to the contentions of appellant. The testimony of the prosecuting witness as supported by the other evidence is completely contradictory to appellant’s version of what occurred at the apartment of the prosecuting witness early in the morning of March 3, 1979. We do not sit as jurors. That fact-finding body, while being overseen by the trial court, has the constitutional duty to decide which witnesses are relating an accurate account of the occurrences giving rise to the trial. The jury had ample evidence to find that appellant forcibly entered the apartment and committed the crime of rape as defined by the applicable statute hereinafter discussed, after and while putting the prosecutrix in fear of great bodily harm, and, in fact, in fear of her life. Although appellant’s version contradicts that fear, it is clear from a careful and painstaking study of the entire record that there was an abundance of evidence for the jury to find appellant guilty of the crime of rape as charged in the indictment. We cannot say, as contended by appellant’s attorneys, that extraordinary circumstances existed which would require appellant to be given other chances without incarceration. The jury has spoken on the facts and the court was correct in overruling both the motion for a directed verdict and the motion for a peremptory instruction.

Appellant contends that the granting of the state’s instruction “S — 3” was reversible error. This instruction reads as follows:

The defendant, Gary Wayne Griffin, has been charged by an indictment with the crime of rape for having had unlawful sexual intercourse with . . ., a female over the age of 12 years, by actual penetration of her private parts against her will by the use of force and threatening her with personal injury. If you find from the evidence in this case, beyond a reasonable doubt, that . . . was a female over the age of 12 years, and that the defendant had sexual intercourse with her by actual penetration of her private parts without her consent, by using force and threating (sic) her life with a metal object, then you shall find the defendant guilty of rape. However, if the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty.

In reviewing this instruction, we do not invoke the well-known rule that this Court will not consider an instruction as reversibly erroneous if there is no objection thereto before the lower tribunal. No objection was made to this instruction; however, we consider it fully. It is evident that the instruction follows the charge in the indictment and this charge clearly was under Mississippi Code Annotated section 97-3-65(2) (1979). Appellant contends that reversible error was committed by including in the instruction a requirement that the jury find appellant’s alleged actions were done while threatening the prosecutrix’s life “with a metal object.” In the first place, the testimony of the prosecutrix was clear that at the beginning of the actions for which appellant was indicted she felt “a metal object” by the side of her throat. This was described during her testimony regarding her fear for life or bodily injury. It appears that in telling the jury it should find the fear of the witness to be caused by “a metal object,” the instruction placed a greater burden on the state than was required. In addition to this object allegedly causing fear, there was ample testimony for the jury to find this element of fear to have been present notwithstanding any mention of a metal object. Appellant cannot complain of an instruction that required the party requesting it to prove more than was necessary.

The verdict of the jury found the defendant “guilty of rape.” Appellant complains that the handwritten verdict should have said, “guilty as charged,” and because of this the verdict was not responsive to the charge in the indictment. An inspection of the indictment clearly shows it, as hereinbefore stated, to have been drawn under the provisions of Mississippi Code Annotated section 97-3-65(2) (1979). Although the indictment did not use the word “rape,” it followed the part of the above numbered statute applicable to the charge as presented by the evidence. The statute includes a charge of forcibly ravishing a female of the age of twelve years or upward. It would not take a juror of extraordinary intelligence to know that the appellant was being tried for “rape.” It so found and did so under the specific charge in the indictment and the evidence relating to that charge. The words “forcibly ravish” in the statute are synonymous with “rape” according to terms used by laymen. Moreover, the word “rape” was used in the instructions without objection.

Appellant challenges the sufficiency of proof of venue. This indispensable part of a criminal trial may be proved by direct or circumstantial evidence. Sanders v. State, 286 So.2d 825 (Miss.1973); State v. Fabian, 263 So.2d 773 (Miss.1972), after remand, 284 So.2d 55 (Miss.1973); Jackson v. State, 246 So.2d 553 (Miss.1971).

The prosecuting witness testified that the .rape took place at West Hill Apartments in her apartment B-6. Appellant also testified that his version of the occurrence was at that location. The police officers testified that they found the prosecuting witness at that location and that it was in the City of Laurel, Second Judicial District of Jones County, Mississippi. There is no merit to the challenge regarding the proof of venue.

In his assignment of error regarding the lower court overruling his motion for a new trial, appellant advances matters to which either there was no objection or that do not appear in the record. Appellant charges that the prosecuting attorney made certain improper and prejudicial remarks in his argument to the jury. It is elemental that we cannot take notice of this statement as it was not preserved for our review.

As hereinbefore stated, we have closely studied the record .and allegations of error before us. We find no legal error in the record, and recognize that the jury determines questions of conflicting evidence. We can only apply legal principles to that evidence and we have done so here.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice, COFER, Justice,

text:
    George B. COWAN et al. v. GULF CITY FISHERIES, INC., et al.
    No. 51579.
    Supreme Court of Mississippi.-
    March 5, 1980.
    Rehearing Denied April 2, 1980.

      159
    Karl Wiesenburg, William T. Reed, Pas-cagoula, for appellants.
    Frank J. Hammond, Jr., Moss Point, Charles W. Ford, Melvin L. Mitchell, Pasca-goula, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The Pascagoula City Council, on application of Gulf City Fisheries, Inc., and/or Graham Boats, Inc., after proper notice and hearing, passed Ordinance No. 11 — 1976, rezoning from residential to industrial a lot fronting 193 feet on the west side of Cedar Street and extending west for a depth of 150 feet. Protestors, George B. Cowan and Frieda S. Cowan, husband and wife, and Denise H. Wiesenburg, appealed to the Circuit Court of Jackson County. That court, by order dated September 8, 1978, “affirmed in its entirety” the action of the Pascagoula City Council. In its Order of September 8, 1978, the Court found:

“The above styled and numbered case having been fully briefed by attorneys for all parties and argued in open Court during a regular term of Court and the Court having taken the same under advisement and now having fully considered said case, is of the opinion and does now find that said appeal should be affirmed in its entirety.”

George B. and Frieda S. Cowan, husband and wife, and Denise H. Wiesenburg appeal.

The four assignments of error can be briefly summarized as follows:

I. The City Council erred in rezoning the property on the basis of a mistake in the original zoning plan.
II. The appellee’s application to rezone was barred under the doctrine of res judicata.
III. The Circuit Court erred in setting aside its August 16, 1977, judgment, and upholding the ordinance.
IV. Ordinance No. 11 — 1976 constituted illegal spot zoning.

Gulf City Fisheries and/or Graham Boats, Inc. purchased an option to buy the Tapper property, a parcel of land approximately 736 feet long from east to west, and 193 feet wide from north to south. This parcel extends west from the western boundary of Cedar Street to the Pascagoula River. All, except the eastern 150 feet of this parcel, was zoned “Industrial” many years ago, and the Tappers have been and are now using their property as a boat marina and a bait shop. In the past, they also operated a restaurant on their property. South of the Tapper property is Gulf City Fisheries’ processing plant and Graham Boats’ shipbuilding and repair yards.

The parcel rezoned is the east 150 feet of the 736-foot tract, the other 586 feet having been zoned “industrial” and so used for many years. This small portion of the larger tract is bounded by Cedar Street on the east, by industrially zoned and used property of the appellee on the west, by a makeshift gravel road on the north, by industrially zoned and used property on the northwest, by industrially zoned and used property of the appellee on the southwest, and by a vacant lot of the appellee on the south. The colored photos introduced into evidence show this parcel cut by a large drainage ditch or boat slip extending diagonally from southwest to northeast up to Cedar Street, with large boats docked in this boat slip.

As to the vacant land — opposite the parcel rezoned — on the east side of Cedar Street, Charles Graham testified:

“Q. Mr. Graham across the street from the R-l-A area that you have just discussed in these photographs of the Tapper property what is the land terrain across the street, immediately from the Tapper property? What sort of land is it?
A. It’s marsh. Except on the . directly across from the north edge of it there is a small portion of the property that belongs to Mr. Cowan.
Q. Mr. Who . . . ?
A. George Cowan.
Q. What’s the elevation above the north line of the area that you speak of Mr. Cowan’s property that’s in line with the Tapper property?
A. Well his property was apparently filled and the area directly across from the marina property just south of that is owned by Gulf City Fisheries for a distance of about eight hundred feet east that is East of Cedar Street and it is marsh and there is a piece there seventy-seven feet wide that is owned by Gulf City Fisheries. And the piece next south, next to that one just south is owned by C. A. Carrier and it’s approximately a hundred feet front and that all faces . it’s also marsh. That’s all that faces this property on the east side of Cedar Street across which the sewer line runs above the street.”

Protestants Cowans’ home is thus located across Cedar Street and to the northeast of the parcel rezoned.

The home of the only other protestant, Denise Wiesenburg, built in 1961, is located in a heavily wooded section on the east side of Cedar Street, some distance from the Tapper parcel. Exhibit No. 8, a colored photo, shows Cedar Street rising noticeably as it proceeds northward and in none of the many exhibits can the Denise Wiesenburg home be seen; it is insulated by distance and shielded by trees from the Tapper parcel.

Since 1964, Gulf and/or Graham Boats, Inc. has operated a seafood processing plant and boatbuilding and repair business on its property to the south of the Tapper property. Walker Shipyard is to the south of Gulf’s facilities and Flechas Shipyard to the north.

The small part of the Tapper property rezoned (193 feet from north to south and 150 feet from east to west) in the case at bar is about 6 inches above mean sea level, and is diagonally divided by a large drainage ditch, or boat slip. The new comprehensive zoning ordinance of the City of Pascagoula passed in 1973 provides:

“REGULATORY FLOOD PROTECTION ELEVATION: The elevation of 12.5 feet mean sea level to which uses regulated by this section are required to be elevated or flood proofed.
(b) . . . The lowest floor of new residential construction must, at a minimum, be elevated to the level of the regulatory flood protection elevation (12.5 feet MSL).
(a) All new construction or substantial improvements of residential structures within the special flood hazard areas must have the lowest floor (including basement) elevated to or above 12.5 feet mean sea level.”

The uncontradicted testimony was that a house built on the parcel rezoned would have to be built on 11-foot stilts or posts. This testimony clearly shows why no residence of any kind has ever been built on this flood-hazard lot.

Graham testified about the need to rezone so that this parcel can be included in a much needed expansion of Graham Boats, Inc. He expected to add an additional 50 employees with an anticipated payroll increase of $9,000 to $10,000 per week. Graham’s plans are to continue to operate the Tapper Marina.

After extensive grading and filling, Graham Boats would use the first 65 feet of the rezoned parcel for automobile parking. The next 30 feet would be primarily for storage, with the entrance to the proposed main building back about 95 feet from Cedar Street.

On June 8, 1976, Ordinance No. 11-1976 was passed by the Pascagoula City Council by a six to one vote. That ordinance provides in part:

“WHEREAS, the City Council hereby finds and determines that the original zoning of the subject property as Residential R-1A was done by mistake and that a change in zoning classification of Residential R-1A to industrial is warranted in the public interest, convenience and necessity.”

Councilman Levy, before voting for the ordinance, commented: “Can I say one thing? That property is not good for anything but commercial. ... so I will vote for that.”

Before casting the lone vote against, Councilman Curry commented:

“I feel like the ordinance says that the area was zoned mistakenly, and I can’t accept that. There’s no doubt in my mind, in my own mind, but what the area is gravitating toward industrial, but that’s not what we’re voting on. . I want to express my appreciation to, I believe that Mr. Graham made possible the transcript, and I’ve got a better, I think all of us have a better overview of the whole spectrum than we’ve ever had in this whole matter, . . . but I can’t see how the mistake was made in 1939 or 1946. I think it was done that way purposely and if the order had read because it narrowly conforms to useage around it that might have been something else, but that’s the reason I voted that way.” (Emphasis added).

The testimony, and color pictures introduced as exhibits, make it crystal clear that the remaining portion of this 736-foot tract (the 193-foot by 150-foot lot on the west side of Cedar Street) is incapable of being used for anything but industrial property, that this parcel should be rezoned and thus added to the industrially zoned and used property adjacent to and contiguous to it on the west.

It should also be kept in mind that Gulf is not trying to change the zoning of anybody else’s property, but merely trying to change the zoning of a small parcel of a larger tract that it has recently purchased, so that it can be used at all.

The 3-volume, 461-page record and exhibits clearly depict the changing character of the lands on the west side of Cedar Street. The testimony and exhibits amply support the finding of the Pascagoula City Council that it would be in the public interest, convenience and necessity to rezone this 193-foot by 150-foot lot from residential to industrial. Both the Pascagoula City Council, and the Circuit Court in affirming the Council’s action, reached the right decision because of the change of conditions in this section of Pascagoula.

The mere fact that City Council said “that the original zoning of the subject property as Residential R-1A was done by mistake” is not fatal to the rezoning ordinance.

In Paine v. Underwood, 203 So.2d 593 (Miss.1967), this Court said:

“It was not intended and we did not hold that the order of the zoning authority must specifically say that there has been a change of conditions. The essential thing is that there be evidence of a change of conditions. It is clear from the record now before us that the issue of whether there had been any change or changes to justify rezoning of the property was the issue that the Board determined. We are of the opinion that the finding by the Board that the change w,as proper and to the best interest of the county and particularly to this area, was sufficient since there was proof of change of conditions.” 203 So.2d at 597.

In City of Jackson v. Ridgway, 261 So.2d 458 (Miss.1972), we said:

“The Court has repeatedly stated that zoning is essentially a legislative function and the scope of judicial review is limited. It is not what Judges of this Court individually believe would be a proper zoning of property but whether we are justified in reversing the order of the duly constituted authorities whose function is to decide such questions. We find no justification for a reviewing court to overturn the order of the City Council.” 261 So.2d at 460.

In Fowler v. City of Hattiesburg, 196 So.2d 358 (Miss.1967), this Court quoted with approval from Ridgewood Land Company v. Simmons, 243 Miss. 236, 137 So.2d 532 (1962), as follows:

“This Court will not pass upon the wisdom or poliqy of a rezoning order because that is a question for the determination of the Board * * (Emphasis added). 243 Miss. at 248-249, 137 So.2d at 536-537.

In Fowler, the Court went on further to hold:

“On appeal to this Court from a zoning ordinance of a municipal council, or board of mayor and aldermen, the presumption is in favor of the reasonableness of the ordinance, and although this presumption must, of course, yield to facts to the contrary; still every intendment is to be made in favor of the reasonableness of the exercise of municipal police power in making regulations. Unless the ordinance is clearly invalid, the courts will not so declare." 196 So.2d at 362. (Emphasis added).

We are of the opinion that the Pas-cagoula City Council and the Circuit Court reached the right result for the reason that there had been a material and substantial change in the character of the use of the lands on the west side of Cedar Street and the record reflected this change of conditions. There is, therefore, no merit in the first assignment of error.

II.

This assignment of error, that the appel-lee’s application to rezone was barred because the matter was res judicata, is without merit.

Generally four identities must be met for the doctrine of res judicata to apply: (1) Identity of the subject matter of the action, (2) Identity of the cause of action, (3) Identity of the parties to the action, and (4) Identity of the quality or character of a person against whom the claim is made. Standard Oil Company v. Howell, 360 So.2d 1200 (Miss.1978); Murray v. Murray, 358 So.2d 723 (Miss.1978). Furthermore, a judgment is “res judicata only to the facts and legal rights of the parties as they existed at the time the judgment was rendered.” Walls v. Hammond Ford Company, 220 So.2d 347, 349 (Miss.1969).

The easternmost 150 feet of the Tapper property was not the subject of any rezoning request or litigation until the present Petition to Rezone was filed on April 23, 1976. So the four identities have not been met. Furthermore, property is always subject to rezoning when there has been a substantial change in the character of a neighborhood. McKibben v. City of Jackson, 193 So.2d 741 (Miss.1967). The evidence, both oral and documentary, showed sufficient change in the area to justify the Pascagoula City Council in rezoning this parcel from residential to industrial, and in finding that the- change “is warranted in the public interest, convenience and necessity.”

III.

The third assignment of error, that the Circuit Court did not have the authority to vacate and set aside its August 16, 1977, judgment, is without merit.

On August 16, 1977, the court, without notice to the appellee, vacated and set aside ordinance No. 11-1976 of the Pasca-goula City Council. By motion, filed September 1, 1977, during the same term of court, appellee asked that the judgment of August 16, 1977, be set aside and assigned sound reasons for its request. By order entered September 1, 1977, the Court took the matter under advisement and on September 8, 1978, the Court entered two separate orders: one setting aside the illegal order of August 16, 1977, and the other affirming the action of the Pascagoula City Council in passing Ordinance No. 11-1976. Inasmuch as the Court did not have authority to enter its order of August 16, 1977, and inasmuch as the Court took this matter under advisement at the same term of court, the Court had jurisdiction to later act in the matter and correct its error by setting aside the illegal and unauthorized order of August 16, 1977.

IV.

The fourth assignment of error, that Ordinance No. 11-1976 constituted spot zoning, is not well taken.

2 Yokley, Zoning Law and Practice, 4th Ed. (1978), Section 13-3, defines spot zoning in this way:

“Spot zoning amendments are those which by their terms single out a particular lot or parcel of land, usually small in relative size, and place it in an area the land use pattern of which is inconsistent with the small lot or parcel so placed, thus projecting an inharmonious land use pattern.”

The parcel rezoned (193' X 150') is actually a small part of a larger parcel (736' X 193'), the larger portion having been zoned industrial and used as industrial property for many years. The parcel rezoned is surrounded by industrially zoned and used property or by vacant land good for nothing but to hold the world together. Under no stretch of the imagination could this rezoning be considered spot zoning under the definition of Yokley.

The Order of the circuit court, upholding and affirming the action of the Pascagoula City Council in rezoning this 193-foot X 150-foot parcel of land on the west side of Cedar Street from residential to industrial, is affirmed.

This case was considered by a conference of the judges en banc.

AFFIRMED.

PATTERSON, C. J., SUGG, WALKER, LEE and BOWLING, JJ., concur.

COFER, J., SMITH, P. J., and BROOM, J., dissent.

COFER, Justice,

dissenting:

I am constrained to dissent.

The issue before the planning commission, the city council, and the circuit court was mistake or none in the original zoning. The proposed rezoning ordinance included in the newspaper notice of the hearing on the petition to rezone, contained language reading,

Whereas, the City Council hereby finds and determines that the original zoning of the subject property as Residential R — 1A was done by mistake and that a change in zoning classification of Residential R— 1A to Industrial is warranted in the public interest, convenience and necessity. (Emphasis added).

Thus, the only factual question submitted to the public was the mistake in the original zoning. Acting upon this pleading, objections were made and a hearing was had. Attorneys and clients appeared and the issue remained whether a mistake was made in the original zoning.

The planning commission did not agree with the petitioners, but the city council, to which the proposed ordinance and the record went, adopted the ordinance, which granted the change in the zoning, based upon the determination that a mistake had been made in the original zoning. In the city council hearing, one of the councilmen declined to vote in favor of the ordinance because it was founded on a mistake in the original zoning.

The objectors carried the issue to the Circuit Court of Jackson County, where the action of the city council waá affirmed.

The objectors then have appealed here, and the appellees’ briefs are addressed to the issue of mistake or not in the original zoning — not to a change warranting the rezoning.

Only now has the issue of change since the original zoning entered the case, and the public has not had an opportunity to meet and to rebut the issue we inject here (if, indeed, there is any proof in the record that calls for rebuttal). We, as an appellate body only, have made an original finding of fact, the existence of a material change.

Thus, this Court is amending the petitioners’ pleadings, briefing their case, and deciding the case upon our own pleadings and brief. This, in my opinion, ought not so to be.

Once property is zoned- it may only be rezoned on sufficient allegation and proof of fact warranting the rezoning, which fact may be a mistake in the original zoning or a change in the character of the neighborhood clearly warranting the proposed change.

Board of Supervisors of Jackson County v. Roberts, 287 Sp.2d 436 (Miss.1973), involved proceedings on petition for rezoning. This Court said, in part:

The judgment of the circuit court must be reversed for the reason that the record in this case does not establish, nor did the original petition to rezone allege that there had been any change in the character of the neighborhood whatsoever since the original zoning ordinance was adopted.
In order to justify the rezoning of property from one classification to another, there must be proof either (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification. (Authorities omitted).
In this case Roberts,failed to carry the burden which rested upon him to establish that there had been a mistake in the original zoning of the property or that there had been a change in the character of the neighborhood to an extent which would justify or require reclassification. (Emphasis added). (287 So.2d at 437).

In Patterson v. City of Jackson, 285 So.2d 466 (Miss.1973), it was said:

Petitioner failed to meet the burden which rested upon him of showing that, since the previous order declining to rezone, there had been substantial or significant changes in the character of the neighborhood or in the immediate vicinity which justified a change in classification. (Emphasis added). (285 So.2d at 467).

See also Jitney-Jungle, Inc. v. City of Brookhaven, 311 So.2d 652, 653-654 (Miss.1975).

In Westminster Presbyterian Church v. City of Jackson, 253 Miss.495, 176 So.2d 267 (1965), this Court said:

The council was correct in holding that the burden of proof was upon appellant [petitioner praying the rezoning] to allege and prove a material change of circumstances. (Emphasis added). (253 Miss. at 504, 176, So.2d at 271).

This Court said in City of Jackson v. Husbands, 233 So.2d 817, 820 (Miss.1970), that: “It should be borne in mind that the city council’s order is prima facie correct and the presumption is in favor of its reasonableness. (Authorities omitted).” and “We have said over and over again that the burden of proving the need for a change in zoning rests squarely on those property owners requesting the change. (Authorities omitted)” (Emphasis added).

In holding, as the majority does, that there has been a change in the neighborhood or vicinity warranting the rezoning which we would legislate for Pascagoula, the majority engages in a disputation with appellees’ positions as reflected in their briefs.

Appellees there assert as true,
The physical condition of the Tapper property has been absolutely unchanged for many years, at least since 1953. (Emphasis added),

and further

The record indicates that the physical condition of the property and its immediate vicinity have remained substantially unchanged from the condition as shown by the photographs and maps presented by Gulf City to the City in considering the adoption of Ordinance No. 11-1976 [challenged in this appeal], since 1953, and probably earlier. From 1953, there has been a 1954, 1968 and 1973 zoning ordinance, two out of three of which zoned the subject property residential. (Emphasis added).

Thus, appellees, although seeking the zoning reclassification, disclaim, or otherwise refrain from asserting, change in the neighborhood as the basis for the rezoning they pray.

Appellants assert res judicata, which, in my opinion, is a complete defense on this record. The majority opinion says that “The easternmost 150 feet of the Tapper property was not the subject of any rezoning request or litigation until the present Petition to Rezone was filed on April 23, 1976.” With deference, I disagree.

The property was zoned residential in ordinances adopted in 1939, 1946, 1954, and 1973. The east 100 feet of it was zoned residential in a zoning ordinance adopted in 1968 [9-1968], the west 50 feet of it being zoned industrial in that ordinance. However, on appeal from that ordinance, the Circuit Court of Jackson County, on August 8, 1969, found and adjudged as follows:

The Court further finds that the findings and recommendations of the City Planning Commission of the City of Pas-cagoula to the City Council [which were rejected by the City Council] as to the zoning of this area are supported by substantial evidence, such findings being that the zoning of the property fronting on the west side of North Cedar Street from a westerly projection of Mill Road north to Krebs Lake should be for a depth of 150 feet and should be zoned Residential 1-A, and that such recommendation is hereby made the judgment of this Court . . . . (Emphasis added).

In 1972, the city council again undertook to zone the property as industrial, and, on appeal to the circuit court, it was decided that (1) the Court’s action next above was res judicata of all matters before the court in the 1972 appeal, (2) that appellees [city of Pascagoula, Gulf City Fisheries, Inc., et al.] admitted that there was not mistake in the original zoning of the property in controversy; (3) there had not been any material change in circumstances requiring a rezoning thereof, and (4) the record then before the court was conclusive as to these matters.

After the 1969 and 1972 judgments of the Jackson County Circuit Court there is not shown to have been any appeal to this Court. When the property was again zoned as residential in the comprehensive zoning ordinance of 1973 [25-1973] there was no appeal from that zoning.

In Westminster Presbyterian Church v. City of Jackson, supra, this Court said:

We hold that the City Council and the circuit court correctly applied the doctrine of res adjudicata (sic) to the adjudication of past facts, and in zoning cases it is not necessary that any formal plea of res adjudicata (sic) be filed. The Council must apply the doctrine in proper cases. (Emphasis added). (253 Miss. at 504, 176 So.2d at 271).

There is here and in the proceedings to which reference has been made above identity of subject matter within the meaning of authorities on which the majority rely, Standard Oil Co. v. Howell, 360 So.2d 1200 (Miss.1978), and Murray v. Murray, 358 So.2d 723 (Miss.1978).

Identity of the subject matter being present, then it seems to me elementary to conclude that any change warranting revision of the zoning of that property must be shown (1) to have taken place, and (2) to have taken place since the adoption of the 1973 ordinance. So far as such showing and within such time-frame is concerned, the record is void of any such proof.

The majority opinion calls attention to the location of a large ditch running diagonally through the Tapper property, with large boats docked in it (in one of the photographic exhibits); vacant land east of Cedar Street and south of the Cowan’s residence; marshy land east of Cedar Street, and low elevation of the land, and of it says that it is crystal clear that it cannot be used for anything but industrial property; a sewer line above and on the east side of Cedar Street; since 1964, a seafood processing operation has been carried on south of the property, and there have been a boat repairing business, a marina, and two shipyards, near or on the Tapper property, and the opinion asserts that a house built on the property would have to be erected on eleven foot stilts, and that no residence has ever been built on the flood-hazard lot.

There is no showing in the record which of these are changes, and, if changes, when they were effected, or which of them have been there since the beginning of time. There is nothing in the record that shows that every one of these conditions did not exist in 1973, when the comprehensive zoning ordinance was under consideration nor that each of them was not separately considered by the planning commission and the city council and rejected by them, in classifying this property as residential.

I would reverse the proceedings and dismiss the petition here.

SMITH, P. J., and BROOM, J., join in this dissent.


text:
    George B. COWAN et al. v. GULF CITY FISHERIES, INC., et al.
    No. 51580.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.
    Karl Wiesenburg, William T. Reed, Pas-cagoula, for appellants.
    Frank J. Hammond, Jr., Moss Point, Charles W. Ford, Melvin L. Mitchell, Pasca-goula, for appellees.

      Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The decision in this case is controlled by our opinion this day rendered in “Cowan, et al v. Gulf City Fisheries, Inc., et al.”, Miss., 381 So.2d 158 insofar as the parcel (193' X 150') is concerned.

As to that parcel, the order of the Circuit Court of Jackson County of September 8, 1978, affirming the action of the Pascagou-la City Council in granting a use permit and variance, is affirmed.

This case was considered by a conference of the judges en banc.

AFFIRMED.

PATTERSON, C. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.

COFER, J., SMITH, P. J., and BROOM, J., dissent.

COFER, Justice,

dissenting:

I am constrained to dissent.

For the reasons stated in my dissent in Cowan, et al., v. Gulf City Fisheries, Inc., et al., Miss., 381 So.2d 158, 1980, I dissent in this case.

SMITH, P. J., and BROOM, J., join in this dissent.


text:
    George B. COWAN et al. v. GULF CITY FISHERIES, INC., et al.
    No. 51581.
    Supreme Court of Mississippi.
    March 5, 1980.
    Karl Wiesenburg, William T. Reed, Pas-cagoula, for appellants.
    Frank J. Hammond, Jr., Moss Point, C. W. Ford, Melvin L. Mitchell, Pascagoula, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The decision in this case is controlled by our opinion this day rendered in “George B. Cowan, et al. v. Gulf City Fisheries, Inc., et al.”, Miss., 381 So.2d 158.

The Order of the Circuit Court of Jackson County of September 8, 1978, affirming the action of the Pascagoula City Council in granting a building permit on the parcel involved in 381 So.2d 158, is affirmed.

This case was considered by a conference of the judges en banc.

AFFIRMED.

PATTERSON, C. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.

COFER, J., SMITH, P. J., and BROOM, J., dissent.

COFER, Justice,

dissenting:

I am constrained to dissent.

For the reasons stated in my dissent in Cowan, et al. v. Gulf City Fisheries, Inc., et al., 381 So.2d 158 (1980), I dissent in this case.

SMITH, P. J., and BROOM, J., join in this dissent.


author: ROBERTSON, Presiding Justice,

text:
    NESHOBA COUNTY GIN ASSOCIATION (AAL) v. BLACKWELL CHEVROLET COMPANY.
    No. 51603.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.
    Alford, Mars, Thomas & Kilgore, Herman Alford, Philadelphia, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Appellant, Neshoba County Gin Association (AAL), brought a suit for damages for the negligent repairing of its truck against Appellee, Blackwell Chevrolet Company, in the Circuit Court of Neshoba County. On motion for change of venue, the Neshoba County Circuit Court transferred the cause to the Circuit Court of the First Judicial District of Hinds County.

After the Association had put on its proof and rested, the court sustained Blackwell’s motion for a directed verdict and dismissed with prejudice Plaintiff’s declaration.

The principal assignment of error is that the court erred in sustaining Defendant Blackwell’s motion for a directed verdict.

On October 8, 1975, while operating its 1970 C-60 Chevrolet truck, equipped with a bulk feed body and augur, on Interstate 55 North of Jackson, the drive shaft, rear springs and rear axle shifted and caused the truck to become completely inoperable. Blackwell was called and pulled the disabled truck in to its facilities on Interstate 55 North. Blackwell repaired the drive shaft, the rear springs and replaced the U-bolts holding the rear springs in place on the rear axle.

Upon being advised about October 10, 1975, that the repairs had been completed and the truck was ready, the Association sent Bobby Jackson to Jackson to pick up the truck. He drove the truck back to Philadelphia, Mississippi, and continued to operate it until November 4, 1975, when it was wrecked in a one-truck accident. From October 10 to November 4, it had been driven about 600 miles. On November 4th, after picking up a normal load of cottonseed meal, Bobby Jackson was returning from Greenwood to Philadelphia, Mississippi, when he heard a popping noise and the rear end of the truck suddenly shifted to the right, causing the truck to run off of the right side of the highway and overturn in a ditch.

An examination of the truck after the accident revealed that the rear springs had shifted and twisted, the U-bolts holding the springs to the rear axle were bent, and one of the rear tires had blown out caused by a circular cut -on the inside of the tire by a leaf of one of the rear springs.

Plaintiff’s proof tended to show that, in less than a month, the repair work performed by Blackwell at a cost of $392.71 to the Plaintiff had given way causing the rear end of the truck to suddenly shift and go out of control and thus causing the truck to wreck.

Brown Gray, an experienced mechanic who repaired the rear end of the truck after the accident, testified that where new U-bolts are installed they need to be re-tightened after a full load has been placed on the truck, and that he always warns and advises truck owners to bring their trucks back to him for re-tightening the U-bolts or to re-tighten the bolts themselves.

Bobby Jackson, the driver who picked up the truck from Blackwell, testified that Blackwell was only concerned about being paid, the $392.71 repair bill, and that Blackwell gave him no instructions about re-tightening the U-bolts after it was fully loaded. Blackwell also assured Jackson that the rear end had been repaired and the truck was ready to go.

The facts as to whether Blackwell was negligent in making the repairs were thus in dispute. This presented a classic jury question, and the trial court was in error in directing a verdict for the defendant.

In Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562 (1957), this Court said:

“Section 1455, Code of 1942, provides that: ‘All questions of negligence and contributory negligence shall be for the jury to determine.’ We have held in cases too numerous to enumerate, that if reasonable men might have a difference of opinion as to whether or not the negligence of the actor constituted a substantial factor in bringing about the injury, then the question is for the jury. We have also held repeatedly in cases too numerous to mention that upon a motion for a directed verdict all the facts expressly testified to, and all inferences necessarily and logically to be deduced therefrom, are to be taken as true in favor of the party against whom the motion is asked, and that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish, and further that if more than one reasonable inference can be drawn from the facts the question of negligence is for the jury.” 230 Miss. at 382, 92 So.2d at 563. (Emphasis added).

The judgment of the lower court, sustaining the motion for a directed verdict and dismissing the cause of action, is reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    Calvin RANDALL, a Minor, by his Adult Friend James Randall v. Michael L. GUTHRIE.
    No. 51716.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.
    Laurel G. Weir, Philadelphia, for appellant.
    T. Kenneth Watts, Meridian, for appellee.

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


text:
    Louis N. RICO, Jr. v. PRECISION ENGINEERING AND MANUFACTURING COMPANY, INC.
    No. 51657.
    Supreme Court of Mississippi.
    March 12, 1980.
    Moretón, Woodfield, Raines & Bloss, George F. Bloss, III, Gulfport, for appellant.
    White & Morse, John H. Rice, Gulfport, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Louis N. Rico, Jr. sued his employer, Precision Engineering and Manufacturing Company, Inc. (Perneo), in the Circuit Court of Jackson County for damages sustained by him when he viewed his personal tool box left on the employer’s premises and broken into by his employer when Rico failed to show up for work. Perneo filed a motion to dismiss for lack of jurisdiction, stating in its motion:

“That the face of the Declaration shows that the alleged cause of action claimed by the Plaintiff herein is grounded solely on alleged benefits due pursuant to the Workmen’s Compensation Act of the State of Mississippi, and the sole and exclusive jurisdiction concerning benefits payable under the Act and pursuant to any workmen’s compensation policy issued pursuant to that Act rests with the Mississippi Workmen’s Compensation Commission of the State of Mississippi.”

The court sustained Pemco’s motion to dismiss, the order stating:

“[I]t is therefore,
ORDERED and ADJUDGED that this cause be, and hereby is, dismissed with prejudice on the grounds that the Plaintiff’s sole and exclusive remedy, if any, is the Mississippi Workmen’s Compensation Act.”

The facts, gleaned from the pleadings and exhibits, are rather unusual. Rico worked for Perneo as a machinist. On August 17, 1975, when Rico failed to show up for work, L. W. Zettler, vice president of Perneo, broke the lock on Rico’s personal tool box and removed blueprints of the job on which Rico was working so that Perneo could expedite the job. Plaintiff’s declaration states:

“Plaintiff charges that on the following day, on or about August 18, 1975, after having been informed of the aforesaid conduct of the said L. W. Zettler, Plaintiff went to the business premises of the Defendant Corporation for the purpose of determining the nature and extent, if any, of damages to his tool box inflicted by the said L. W. Zettler, and that upon confirmation of the aforesaid conduct, the Plaintiff developed severe and disabling mental and emotional instability, necessitating his immediate admission to a hospital for a prolonged period of time, and the subsequent continuing care and treatment thereafter to date, all as a direct proximate result of the conduct of the Defendant Corporation, by and through its agent, servant, and employee as aforesaid.
“Plaintiff charges that the Defendant Corporation, by and through its agent, servant, and employee, L. W. Zettler, was guilty of trespass against his personal property or chattels, as an independent cause of action, and without regard to whether said trespass also constitutes negligence, as alleged hereinabove, which trespass proximately caused or contributed to the damages and injuries suffered by the Plaintiff.”

Rico first filed a claim with the Workmen’s Compensation Commission but after Perneo answered, denying that Rico was injured on the job, and also filed its answers to interrogatories propounded to it, Rico moved for a voluntary dismissal or non-suit of his claim, and the administrative judge, on March 20, 1978, entered an order of voluntary dismissal, stating in part:

“[I]t appearing affirmatively in the record that all rights of the Employer, Pern-eo Manufacturing Company, are expressly reserved, and the Court having heard and maturely considered all of same, and being fully advised in the premises, if (sic) of the opinion that the Motion is well taken and ought to be sustained. It is therefore,
ORDERED AND ADJUDGED that this Claim, be, and it is hereby dismissed at the instance of the Claimant, and without prejudice.”
Rico has assigned as error that:
I. The court committed reversible error in dismissing appellant’s declaration and in holding that appellant’s sole and exclusive remedy, if any, is under the Mississippi Workmen’s Compensation Act.
II. The appellee failed to meet its affirmative burden of establishing that the injury sued on was an “injury arising out of and in the course of employment”.

The Mississippi Workmen’s Compensation law provides, among other things:

“Compensation shall be payable for disability or death of an employee from injury . . . arising out of and in the course of employment. . . .” [Miss. Code Ann. § 71-3-7 (1972)] (Emphasis added).
“The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee ... on account of such injury or death . . . ” [Miss. Code Ann. § 71-3-9 (1972)] (Emphasis added).

In Etchison v. State Accident Insurance Fund, 8 Or.App. 395, 494 P.2d 455 (1972), the Oregon Court of Appeals sustained a finding that the claimant’s injury was com-pensable, where the employee had hurt his back while moving a work' bench on a Saturday morning when he was not about his regular job. The court stated:

“The work bench in question was part of the tools of trade utilized by claimant in his employment, and its original use was for the benefit of the employer as were the other tools brought to the place of employment.” 494 P.2d at 457.

Perneo contends that the use of a tool box is just as much for the benefit of an employer as a work bench. Perneo also asserts that the case at bar is analogous to one where an employee is assaulted by a fellow employee. As stated in Dunn, Mississippi Workmen’s Compensation, § 161 (2nd Ed. 1967):

“Assault by a fellow employee may be malicious and wilful or may result from friendly horseplay. The two situations have been considered as involving the same rule of liability. Compensation for resulting injuries has been awarded in both types of cases.
Causal connection has been found by reference to the general risk assumed by industry. The reasoning is that when the employment and nature of the work bring employees in close contact with each other, one of the natural hazards— normal risks — is an assault, and this is a risk assumed by the employer. Emphasis is here directed to the assumption of risk by the employer as a general concept. The assault need not be directed toward the employee because of his employment, as in the case of an assault by a third person. The application of the rule assumes that the employee is in the general course of his employment, . . . .” (Emphasis added).

This further language from Etchison, supra, seems applicable:

“No positive formula determines with certainty every circumstance in which an accident may be considered to have arisen out of and in the course of employment.
‘Courts have repeatedly cautioned that the reading of other decisions is normally of little assistance when this issue is presented and that each case must be decided on its own particular facts. Some guides, however, have been set forth. It, of course, is true that the words “arising out of and in the course of his employment” should be given a broad and liberal interpretation so as to effectuate better the statute’s policy of evenly distributing the costs of injuries to workmen.’ (Citation omitted.)
Among the factors considered are whether the activity was for the benefit of the employer and whether it was contemplated by the employer and employe either at the time of hiring or later. (Citation omitted.) If a workman is required to furnish his own tools at his place of employment it is for the benefit of his employer. If he were injured while moving such tools onto the premises of employment there would be little question about the compensability of the injury. The same would follow if immediately upon the tools becoming no longer necessary he commenced to remove them and was injured. It is difficult to discern a rational basis for excluding coverage by reason of removal of the tools at a subsequent time, particularly when the incident which gave rise to a claim for compensation arose on the employer’s premises and while claimant was still employed by the employer. It was contemplated by both employer and employe that the terms of employment included having the employe bring necessary tools upon the premises. It follows that it was at least impliedly contemplated by both that when such tools were no longer necessary that subsequently they would be removed by the employe.” 494 P.2d at 457. (Emphasis added).

The injury, if any, to Rico occurred when he was investigating the damaging of his tool box. The tool box was on Pemco’s premises when forced open by his employer, and still there when Rico investigated. According to Pemco, the break-in occurred when Rico failed to show up for work and it was necessary for Pemco to obtain the blueprints of the job on which Rico was working so that the job could be expedited.

We are of the opinion that the injuries, if any, did arise out of and in the course of his employment, and that his sole and exclusive remedy is under the provisions of the Mississippi Workmen’s Compensation Act.

For these reasons the order of the circuit court, dismissing with prejudice Rico’s declaration on the ground that plaintiff’s sole and exclusive remedy is in a proceeding before the Workmen’s Compensation Commission, is affirmed.

AFFIRMED.

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


text:
    Alvin CESSNA v. STATE of Mississippi.
    No. 51730.
    Supreme Court of Mississippi.
    March 12, 1980.
    Mark W. Prewitt, Everette Verhine, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Alvin Cessna was indicted, tried and convicted in the Circuit Court of Warren County of the murder of Phillip Morson on September 21, 1977. He was sentenced to life imprisonment in the Mississippi State Penitentiary. Cessna assigns as error:

I. The verdict is against the overwhelming weight of. the evidence.
II.The court erred in not allowing lay witnesses to testify as to their opinion of the appellant’s sanity.
III.The court erred in admitting photos of the deceased when commission of the homicide was not contested.

Cessna, at the time of the shooting of Phillip Morson was 29 years of age, had been drafted into the regular army when he was 19, had seen considerable combat duty in Vietnam and had served in the army for a total of four years.

Since his return home to Pattison, Mississippi, he had tried a number of jobs but, because he could not get along with his fellow employees or his employers, he would either quit or be fired after working a short time.

Cessna’s mother, father and younger sister testified that they noticed a definite change in him when he returned home from the army. He was irritable, depressed, would become angry easily, would appear spaced out at times and would just sit and stare at the wall. He threatened to kill his mother and father on one occasion, and then at another time threatened to kill his brother. Finally he threatened his younger sister with a pair of scissors. After this incident, he agreed to go to Mississippi State Hospital at Whitfield for treatment. He was admitted on September 17, 1975, and on October 27, 1975, the staff psychiatrist at Whitfield, Dr. Robinson, submitted his diagnostic summary, which closed with these words and this diagnosis:

“In summary, this is a 27 year old white male who comes in with delusions, hallucinations, unusual behavior, and threats of violence prior to coming into the hospital. Has been treated with ten electroshock treatments, is now on phenothiaz-ine medication, and is felt that he is chronically ill.
DETERMINED DIAGNOSIS: SCHIZOPHRENIA, PARANOID TYPE.”

On November 12,1975, Cessna was transferred to the Veterans Administration hospital in Gulfport, Mississippi, where he remained for about a year. He was on prescribed medication when he was discharged from the Veterans Administration hospital. He returned to the V.A. Hospital a number of times for further treatment.

In August, 1977, Cessna got a desk job at Presley’s Truck Stop in Vicksburg. His job was to write up charge tickets, receive cash, and make change from the cash register. He sat at a long counter in the truck stop office where customers came to pay their bills and to purchase accessories displayed there.

Cessna testified that before the shooting on September 21, 1977, he had not had much to do with Phillip Morson, who mainly worked outside waiting on gas customers and servicing trucks, but that Morson, who had worked at the truck stop for about a month, had on occasion irritated and nagged him.

On the morning of September 21st, Cessna had brought a 357 Magnum pistol with him. When he arrived at work he took the pistol out of his belt and put it in his green field jacket, folded his jacket, and put it in a chair at one end of the counter. About 9:30 A.M., 19-year-old Phillip Morson was inside the office on the customer side of the counter, talking to a customer, Ray McCoy. Cessna told Morson: “It’s time for you to get back to work,” and Morson’s reply was: “You’re not my boss, Mr. Presley is.” Cessna immediately got up, walked to the far end of the counter, reached into his field jacket and pulled out the 357 Magnum. He walked back up toward Morson, raised the pistol, pulled-the hammer back and said: “I tell you it’s getting time to get back to work.” Morson was about to turn around when Cessna shot him once in the head, the bullet entering just above the left ear and exiting above and toward the front of his right ear, killing him instantly.

Mr. Gene Presley came out of his office and asked: “Alvin, what the hell did you do?” and after Presley repeated his question, Cessna answered: “I blew Phillip’s head off just like I said I would.” Presley than saw Morson’s body for the first time and asked Cessna to give him the gun. Cessna turned toward Presley and when Presley again asked for the gun, Cessna replied “No, I’ll keep the gun, you call the police.”

The shooting of Morson by Cessna is not disputed. The appellant’s sanity at the time of the shooting is the only issue. The appellant argues that the evidence overwhelmingly established his lack of criminal responsibility because of insanity. The state responds that no doubt of sanity was raised but, assuming it was, the state’s rebuttal evidence removed any doubt.

In addition to the testimony of appellant’s family members and the documentary evidence (Whitfield’s medical records), appellant put on Dr. Samuel Feurst, a Vicksburg psychiatrist. Dr. Feurst was asked a lengthy hypothetical question and answered that in his opinion the appellant was psychotic or insane, suffering from schizophrenia of the paranoid type, and that he did not know the difference between right and wrong when he shot Morson. He had never examined Cessna and his opinion was based only on the hypothetical questions asked.

To rebut any evidence of the appellant’s insanity, Dr. Donald Guild, Psychiatrist in charge of the Forensic section at Whitfield, testified that in his opinion Cessna was sane at the time of the shooting and that Whitfield’s Board of Psychiatrists had reached the unanimous conclusion that Cessna was without psychosis and competent to stand trial, he having been sent to Whitfield on June 13, 1978, for an examination and evaluation of his sanity and his competency to stand trial. Dr. Guild explained the guidelines they use at Whitfield and his conclusions in this way:

“Q You are familiar with the legal term of M’Naghten and the definition?
A Well, I can tell you what we operate at the State Hospital. We operate at the State Hospital with guide lines that we have taken from the case law and that is M’Naghten. Does a person know the nature and quality of his act and if he knows the nature and quality does he know the difference in right and wrong. If the answer to either of those questions is no, he would ' be M’Naghten insane.
Q Yes sir.
A There is also another little thing and if he was suffering under a delusion, the logical resolution of which is legal, then he is also M’Naghten insane. Those are the three criteria that we use. We split hairs a little bit.
Q That is the legal definition of insanity insofar as the responsibility for a crime, in your opinion, is concerned?
A Correct. I think I’ve been over it a number of times and that’s what I — •
Q I’ll ask you then to state to this Court and jury what conclusion you reached as to the defendant, Alvin Cessna, in regard to his ability to know and appreciate the nature and consequences of his acts and his ability to distinguish between right and wrong?
A It’s my opinion that he knew the nature and quality of his act. That is, more specifically, that he had a pistol, that a pistol was a deadly . weapon and that it would inflict serious bodily injury or death. I think that he knew that. I think that he appreciated the wrongfulness of that act and could appreciate that and I also find no evidence of delusion, the logical resolution of which would have been illegal despite the case history of illness.”

This Court recently reaffirmed its adherence to the M’Naghten rule in Hill v. State, 339 So.2d 1382 (Miss.1976).

In our opinion, the state produced sufficient evidence to rebut any doubt of sanity raised by the appellant.

The second assignment of error has to do with the trial court’s refusal to allow Ben Cessna, appellant’s father, Doris Cessna, his mother, and Patsy Cessna, his sister, to give their opinion of Cessna’s sanity at the time of the shooting. All of these family members had been allowed to testify in great detail of appellant’s, at times, odd, unusual, violent and bizarre behavior, his periods of depression and his spaced out appearance, but when asked for their opinion the trial court would sustain the objection of the state.

It was stipulated that if Mrs. Cessna had been allowed to give her opinion she would have stated that “he was insane.”

On cross-examination of Ben Cessna, he answered once: “He was mentally unbalanced” and again: “He is mentally disturbed.”

We feel that the jury had the benefit of all of the family members’ testimony as to all instances of appellant’s unusual behavior, and, while they should have been allowed to give their opinion based on their personal observations, we do not feel that the court’s refusal to allow this constituted reversible error.

The third assignment of error is that the court erred in admitting one color photograph of the deceased and two color pictures of the pool of blood in the office of the truck stop where deceased was shot, when there was no issue as to appellant having committed the homicide.

This Court has examined the three photographs in question and, while they are rather gruesome pictures, we feel that they do have some probative value in showing the interior of the service station and the layout at the scene of the shooting. The picture of the victim does show his location in the office and where he was shot in the back of his head before he had a chance to turn around.

We have held many times that it is largely within the discretion of the trial court as to whether gruesome pictures have any probative value and whether they should be admitted. See Butler v. State, 320 So.2d 786 (Miss.1975). We cannot say that the trial court abused its discretion in admitting these three color pictures.

There being no reversible error, the conviction and sentence are affirmed.

AFFIRMED.

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