author: BYRNES, Judge.

text:
    SUCCESSION OF Clemon BUTLER.
    No. C A 0073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Donald P. Conlay, New Orleans, for plaintiff-appellant.

      Gauche, Wegener & Oster, Stephen F. Babin, Robert Oster, New Orleans, for defendant-appellee.
    Before GULOTTA and BYRNES, JJ., and G. WILLIAM SWIFT, Jr., J. Pro Tem.
   BYRNES, Judge.

Plaintiff appellant, Peaks, sued the succession of Clemon Butler for payment of $32,514.80 allegedly due her for services rendered by her to the decedent. These services involved caring for the decedent for approximately the last three and one half years of his life. Mrs. Peaks has perfected this appeal, urging that the trial judge erred in his determination that the she failed to carry the burden of proof required to establish that a contract for services existed between herself and the decedent. After a careful reading of the record we believe that the trial judge was correct in his denial of appellants claim.

La.R.S. 13:3722 states that “When parol evidence is admissable under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.” (Emphasis ours) The appellant contends that she carried her burden of proof under this statute. In support of his contention she relies on two items of proof. The first item concerns the witnesses she produced to lend credence to her claim. The second involves her use of a statutory will, executed by the decedent, as the corroborating evidence required by R.S. 13:3722. This will was found to be invalid as to form and was never probated.

Appellant maintains that she started to come over to the decedent’s house to render services on or about December 15, 1976. At this time informed him that she could not do the work for free and she would have to be paid. She testified that she spent approximately six hours a day at the decedent’s house until August 26, 1977 when she increased the time she spent at the house each day to approximately twelve hours. This continued until March 16, 1979 when due to the illness of the decedent, she started staying at the house around the clock. Twelve days later, on March 28, 1979, a statutory will was executed, by the decedent leaving the appellant a certain piece of property located at 2331 Louisa St. in New Orleans as well as a washer and dryer. Clemon Butler signed this will by his placing an “X” on the signature line. The will was also signed by two “witnesses” and by the notary. At a pre-trial deposition and again at trial the notary who wrote the will testified that the decedent did not sign the will in the presence of either of the two witnesses. He testified that one of the witnesses was not even present in the house at the time of the signing of the will, but had signed as a witness some time afterwards. Appellant maintains that this will, although invalid for lack of form, is evidence of Mr. Butler’s intent to leave her property in payment for the services she had rendered. Peaks maintains that were it not for the will’s fatal defects as to form she would have been compensated for her services as the decedent wished. We disagree.

We question this will substantively. Even if the will were valid as to form there is a serious question as to whether testamentary intent existed. The record indicates that Mr. Butler never indicates his desire to leave property to Mrs. Peaks to anyone other than Mrs. Peaks herself. He had executed a will, valid as to both form and content, two years earlier, leaving all his property to his niece and his foster son. The notary who drew up the invalid will testified that he came to the decedent’s house at the request of Mrs. Peaks and drafted the will only after Mrs. Peaks had told him what to put in it. He then brought the will back to the decedent’s house and proceeded to question the decedent concerning his intentions. He testified that when he asked the decedent if he wanted to will the house and appliances to Mrs. Peaks the decedent nodded his head affirmatively. However testimony by the record indicates that at the time this will was signed the decedent his physical condition had so deteriorated that he could hardly raise his head from his chest. Communication was virtually impossible due to his physical infirmities.

“The law is well settled that claims made against a decedent’s estate based upon oral promises made by a deceased person should be received with great caution and close scrutiny, and rejected unless corroborated by strong and credible circumstances.” Story v. Story, 131 So.2d 913 (La.App. 1st Cir.1961). We further note that the will itself makes no mention of payments to the appellant for services rendered. It states that: “I hereby will and bequeath. . . to my housekeeper Virlee Peaks, who has rendered aid and assistance in taking care of me since 1975,...” The will establishes the alleged employee-employer relationship but nothing else. There is no indication that the will was intended to be anything but a purely gratuitious donation. Nowhere is there any hint that bequest might be remunerative in nature.' The record and testimony, taken as a whole, casts such serious doubt on the existence of testimentary intent that we feel the trial judge was correct in refusing to accept the statutory will as corroborating evidence of an alleged debt owed to appellant.

We next address the question of the existence of credible witnesses to prove the existence of the alleged contract. We note that appellant, by her own testimony, admits that no one else was present when the alleged oral agreement between herself and the deceased was made. Again we must examine the alleged contract’s existance very carefully.

Testimony indicates that no one else but the appellant believed that she was taking care of the decedent for any reason other than personal affection. Although the appellant denied it, evidence from other parties indicates that she was commonly known as “his woman” from approximately 1971 on. Evidence and testimony shows that Peaks signed a mortgage note as the decedent’s wife and that she disciplined the decedent’s foster child on occasion. Decedent’s foster child, Levi Arnold, testified that decedent had told him that Mrs. Peaks was “his woman” and Levi’s “auntee”. The record, when viewed as a whole, indicates that the relationship between appellant and decedent was not that of employer-employee but was of a close personal nature. None of the other witnesses testified that an employer-employee relationship existed. They did testify however to the close personal relationship which existed between the decedent and the appellant. Appellant would have us believe that by establishing that she was at the decedent’s house and performed some chores she has established the existence of the employer-employee relationship she alleges existed. We disagree, and find that the appellant did not present credible witnesses to substantiate her claims of an oral agreement between herself and the decedent as required by La.R.S. 13:3722.

For the above reasons the decision of the trial judge is hereby affirmed. All costs of this appeal to be borne by the appellant.

AFFIRMED.


source: Caselaw Access Project

author: GRISBAUM, Judge.

license: Public Domain

text:
    Jo Ann ROBLES v. Sherman Ulysses ROBLES.
    No. 5-344.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied March 25, 1983.

      Kenneth V. Ward, Jr., Metairie, for plaintiff-appellee.
    Richard A. Dowling, New Orleans, for defendant-appellant.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is an appeal by defendant Sherman Ulysses Robles contesting the award of child support in a case involving a petition for divorce, child custody, and child support. The trial court granted a divorce and the custody of the two minor children to plaintiff, Jo Ann Rearick Robles, and ordered defendant, Sherman Ulysses Robles, to pay $200 per week for support and maintenance of his two minor children. The sole issue is whether the trial court abused its discretion in making this support award. We affirm.

In Louisiana, a parent has an obligation to support, maintain, and educate his or her children. See, La.C.C. art. 227. Child support payments are determined by the needs of the child and the ability of the parent to pay. La.C.G. art. 231.

Defendant claims the alimony payment of $200 per week for his two children is excessive and beyond his capacity to pay. We disagree. Defendant Robles is an iron worker, a union member at the level of a journeyman. He is presently paid a union wage of $Í4.02 per hour. Defendant, therefore, has the potential of grossing $560 per week for a 40-hour week which would be approximately $2240 per month. His monthly expenses total $1136 per month; however, by his testimony, defendant worked only infrequently and submitted that his 1981 earned income was only $9483.63. The trial court held defendant was “capable” of making without overtime $2400 per month but recognized that he did not actually make that much. After taking into account defendant’s expenses, the court found that defendant should pay $200 per week for the maintenance and support of his two children. Because the trial court is vested with considerable discretion in fixing child support payments, its determination will not be disturbed unless there appears to be an abuse of discretion. Strickland v. Strickland, 377 So.2d 537, 538, 539 (La.App. 3d Cir.1979); Dupre v. May, 365 So.2d 1173, 1174 (La.App. 3d Cir.1978); Gravel v. Gravel, 331 So.2d 580, 583 (La.App. 3d Cir.1976). We find no such abuse.

For the above reasons, the judgment of the district court is affirmed at the cost of the appellant.

AFFIRMED.

PER CURIAM.

The appellant, in application for rehearing, suggests we did not consider certain contempt proceedings.

This court is fully aware of and did consider in toto the supplemental brief which was filed and after due consideration found that the contempt proceedings in the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson was not part of the appeal which was perfected in this case.

Accordingly, the application for rehearing is denied.


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

text:
    Charles Dane LEATHERS v. Thomas J. GARDNER, III, et al.
    Misc. No. 1317.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    William S. Lawson, Tupelo, for appellant. Alex A. Alston, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellees.
    Curtis E. Coker, Daniel, Coker, Horton & Bell, Jackson, Jack F. Dunbar, Holcomb, Dunbar, Connell, Merkel, Tollison & Kha-yat, Oxford, Claude F. Clayton, Jr., Mitchell, Eskridge, Voge, Clayton & Beasley, Tu-pelo, for intervenor Womack.
   ON PETITION FOR REHEARING

En Banc.

HAWKINS, Justice, for the Court:

Upon the petition of Charles Dane Leathers for a writ of mandamus, this Court, on July 28, 1982, ordered the circuit clerk of Lee County to enroll a Mississippi Workmen’s Compensation Commission order dated December 11, 1980, in the judgment roll of Lee County. Our Order was pursuant to an opinion by this Court.

The circuit clerk, Mrs. Fay Estes, joined by Honorable Thomas J. Gardner III, circuit judge, defendants to the petition for mandamus, have petitioned us for a rehearing, joined therein by Tupelo Coffee Company and Aetna Casualty & Surety Company, the original defendants in a workmen's compensation case in which Leathers is the claimant.

We sustain the petition for rehearing, our original opinion is withdrawn, and the order thereunder is set aside.

Charles Dane Leathers filed a motion to controvert before the Mississippi Workmen’s Compensation Commission on February 16, 1978, naming as defendants his employer Tupelo Coffee Company and its insurance carrier Aetna Casualty & Surety Company.

A hearing was held in Tupelo before an administrative judge of the commission on September 19,1978, and six months later on March 19, 1979, the administrative judge rendered his order. This order encompassed the evaluation of the testimony of three witnesses:' the claimant and his two treating physicians. The transcript consists of approximately 70 pages, of which the deposition of Dr. Ford taken September 13, 1978, consisted of approximately 25 pages.

On March 23, 1979, the employer-carrier filed a petition for review before the full commission. For our present purposes the next pertinent development was the entry by the commission of a Full Commission Order on July 18, 1979.

The order found as a fact:

1. Leathers had sustained a compensable injury October 7, 1976, temporarily totally disabling him until February 15, 1977, following which he had no loss of wage earning capacity.

2. Leathers sustained a compensable back injury on September 13, 1977. As to this injury, which is the only injury of any importance in this case, the commission disagreed with the administrative judge’s determination of the date of maximum medical recovery, and his award of permanent disability benefits, the commission finding instead, “... that a date of maximum medical recovery has not been authoritatively established by any of the expert medical witnesses and that as such, any award of permanent disability benefits is unwarranted.”

The order found as a fact that Dr. Buchanan, one of Leathers’ primary treating physicians, testified that Leathers should be able to return to his employment January 25, 1978, with certain lifting restrictions, and to his normal activities without restrictions following a six month period of light duty.

The commission found that Dr. Buchanan’s testimony established the date of Leathers’ initial recovery and the end of the period of his total disability. It also found that Leathers was temporarily and partially disabled, but that neither Dr. Buchanan nor Dr. Ford had expressed an opinion as to any degree of permanent impairment resulting from his injury.

The commission found that no date of maximum medical recovery had been assigned by either treating physician, nor had there been any determination of the degree, if any, of permanent disability, and lacking such, any award of permanent disability benefits was unwarranted. The commission concluded that Leathers remained in a state of temporary and partial disability following January 24, 1978.

For the period following January 24, 1978, Leathers’ compensation rate for temporary partial disability was determined to be 66%% of the difference between his average weekly wages at the time of his injury and his wage earning capacity thereafter in the same employment or otherwise.

The commission then directed Leathers to furnish the employer-carrier during the continuance of this period of temporary partial disability a bi-weekly statement of his earnings so as to enable the employer-carrier to accurately determine the rate of compensation owed under Mississippi Code Annotated section 71-3-17 (1972).

Paragraph 2 of the adjudicatory portion of the order to the employer-carrier reads as follows:

2. Temporary partial disability benefits commencing January 24, 1978, and continuing until such time as maximum medical recovery is obtained, at the rate of 66% percent of the difference between claimant’s average weekly wage at the time of injury and his wage earning capacity thereafter in the same employment or otherwise. The employer-carrier is to be given proper credit for any payment of compensation heretofore paid in connection therewith. There shall be added to each payment of compensation not timely made the equivalent of 10 percent thereof, as specified in Section 13(e) of the Act, being Mississippi Code Annotated (1972), Section 71-3-37.

It is thus apparent that the commission left open for later determination by it of the degree of and duration of Leathers’ temporary partial disability.

The employer-carrier appealed the commission order, which the circuit court of Lee County affirmed in a judgment rendered August 30, 1979. Paragraph 2 of the adjudicatory portion of this judgment reads as follows:

2. Temporary partial disability benefits commencing January 24, 1978, and continuing until such time as maximum medical recovery is obtained, at the rate of 66/3 percent of the difference between the claimant’s average weekly wage at the time of injury and his wage earning capacity thereafter in the same employment or otherwise. The employer-carrier is to be given proper credit for any payment of compensation heretofore paid in connection therewith. There shall be added .to each payment of compensation not timely made the equivalent of 10 percent thereof, as specified in Section 13(c) of the Act, being Mississippi Code Annotated (1972), Section 71-3-37.

The employer-carrier appealed the circuit court judgment to this Court. We affirmed this judgment on May 28, 1980, without an opinion, and on July 9, 1980, again without an opinion, we denied the petition for rehearing of the employer-carrier.

On July 28, 1980, the employer-carrier filed with the commission a motion to determine the accrued benefits and the date of Leathers’ maximum recovery. The motion recited the developments of the case including the appeals to and affirmance by this Court. The motion then alleged that Leathers had not provided the employer-carrier with any bi-weekly statements of his earnings as directed by the commission order of July 18, 1979, and that there had been no determination of the date that Leathers reached maximum medical improvement as well as no determination of his wage earning capacity since January 24, 1979 [sic].

The motion attached a copy of a letter, dated December 17, 1979, from Dr. Buchanan to counsel for the employer-carrier which reads as follows:

By restricting this patient (Leathers) January 24, 1978, he was not at maximum rehabilitation and did not attain that until June 1978 release to normal activity. By restricting his activities, he obviously was not back to full rehabilitation potential and we thought that by June he should be but certainly not by the January, 1978 date.

The motion further recited that the employer-carrier were unable to determine Leathers’ wage earning capacity subsequent to January 24,1978, through the date that he reached maximum medical improvement, without which determination the employer-carrier could not calculate the amount of benefits due through the date of the commission order.

The motion in conclusion requested a hearing to determine Leathers’ loss of wage earning capacity during the period of temporary partial disability; the date Leathers reached maximum medical improvement; and the amount due Leathers under the commission’s order of July 18, 1979.

On August 27, 1980, a hearing on this motion was held by an administrative judge of the commission. At this hearing Leathers and his wife testified, and a deposition of Dr. Buchanan, taken August 22, 1980, was offered by both parties.

On October 17, 1980, the administrative judge rendered an order finding among other things that Leathers, “.. . remains in a state of total disability and is still suffering a 100% loss of wage earning capacity as a result of the injury which he sustained on September 13, 1977.” We specifically refrain from rendering any declaratory opinion because Leathers’ claim is again on appeal before us, but we are constrained to state that the administrative judge’s findings appear at variance to the opinion of Dr. Buchanan, the only medical witness who testified.

The employer-carrier, on November 3, 1980, filed a petition for review before the full commission of the administrative judge’s decision.

A full commission order was rendered December 11, 1980. We again refrain from a declaratory opinion on the findings in the full commission order for the reason stated. It appears, however, that the commission was of the opinion that the primary (if indeed not the only) reason that the employer-carrier gave for not paying benefits ordered by this Court was, “... they had not been provided a bi-weekly statement of complainant’s earnings from January 24, 1978, to date of claimant’s maximum medical recovery.” The commission responded in its order that the employer-carrier could have readily ascertained the amount of any wages by contacting the claimant or his attorney;' and further, had the defendants requested computation of the amounts due under the award, the computation would have been supplied by the commission’s computist. It appears that the commission in its order neither fully nor precisely reflected the employer-carrier’s contention nor the record before it.

At some date subsequent to his injury of September 13,1977, Leathers was no longer employed by Tupelo Coffee Company. The December 11, 1980 order requiring the employer-carrier to obtain information from Leathers or his counsel ignores the specific direction of the commission’s own order of July 18,1979, to the claimant to furnish this information to the employer-carrier. Other than whatever evidence was given at the August 27,1980 hearing before the administrative judge, there is no record that Leathers gave the employer-carrier any information pertaining to his earnings following January 24, 1978.

Furthermore, there was another legitimate and pertinent inquiry that the employer-carrier was entitled to make: the duration of and the degree of the temporary partial disability of Leathers subsequent to January 24, 1978. This had been specifically left open for later factual determination in the July 18, 1979 order of the commission.

The December 11, 1980 order of the commission states:

Defendants’ liability has been determined as follows:

The employer-carrier on some day in December, 1980 (the exact date is not shown in the record) filed with the commission a petition for rehearing on its order dated December 11, 1980.

This petition first states that the employer-carrier had, since the rendition of the December 11, 1980 order, paid Leathers temporary total benefits from January 24, 1978, through July 24, 1978, at the rate of $91.00 per week plus a ten percent penalty. The petition further alleged that the commission had erred in the following respects:

(a) ordering payment for temporary total benefits that had already been paid;

(b) in ruling its July 18,1979 order established a definite or certain amount that was due claimant as of that date;

- (c) requiring the employer-carrier to pay benefits regardless of whether Leathers was suffering from any disability during the period for which the benefits were ordered;

(d) awarding any benefits and assessing any penalties after the date of maximum medical recovery on July 24, 1978; and

(e) assessing penalties and interest.

The petition concluded that the December 11,1980 order of the commission refusing to consider the merits of the appeal and requiring the payment of benefits after July 24,1978 was contrary to the Constitution of the United States and the laws and constitution of the State of Mississippi.

After this petition of the employer-carrier was filed, Leathers filed a petition with the commission on January 12, 1981, to reopen the case, alleging that there had been a change of condition of Leathers’ temporary partial disability to permanent disability. Attached to the petition was a copy of a report of Dr. Forrest T. Tutor of a surgical operation on Leathers in which a partial hemilaminectomy was carried out on the L4 lamina.

On February 24,1981, the full commission sustained Leathers’ petition to re-open his case and remanded the cause to the administrative judge for further proceedings to resolve the issue raised by this petition.

On June 25,1981, Leathers filed a motion to withdraw his petition to re-open and to strike the interlocutory order of the full commission thereon. On July 1, 1981, the full commission sustained this motion.

On July 7, 1981, the employer-carrier filed with the commission a response to the motion to strike the interlocutory order of the full commission. In this motion the employer-carrier alleged among other things:

(a) The order of February 24, 1981 had not disposed of the employer-carrier’s petition for a rehearing of the December 11, 1980 order;

(b) The commission should enter a final order based on the record in the case resolving all disputed issues and not require the employer-carrier to pay any benefits for any period subsequent to July 24, 1978;

(c) Temporary total benefits had been paid Leathers from January 24, 1978, through July 24, 1978, at the rate of $91.00 per week plus a ten percent penalty, totaling $2,516.80;

(d) All medical and disability benefits ordered paid by the commission had been paid through .July 24, 1978, the date that the uncontradicted medical evidence showed the claimant had reached maximum medical recovery and was discharged to return to work without limitation or restriction;

(e) The July 18, 1979 order of the commission required the defendants to pay disability benefits only through the date of maximum medical recovery; and

(f) If the commission ordered the employer-carrier to pay temporary total benefits through July 18, 1979, regardless of whether the claimant was actually disabled, payment of $5,000.00 that could not be recovered would be required, and would force the employer-carrier to perfect an otherwise unnecessary appeal.

The response concluded with this paragraph:

That since the employer and carrier have paid benefits through July 24, 1978, the undisputed date that the claimant reached maximum medical recovery, and in order to promote judicial efficiency and avoid a piecemeal appeal the Commission should enter a final order adjudicating all issues in this cause including whether or not there is any proof of disability past July 24, 1978.

On July 20, 1981, the full commission rendered an order denying the employer-carrier’s petition for rehearing to its order of December 11, 1980.

On August 14, 1981, the employer-carrier gave notice of appeal to the circuit court of Lee County.

On January 27, 1982, Judge Gardner heard argument from counsel for both sides, following which he rendered an oral opinion, and rendered a judgment the same day. We think that the entire order should be set out in this opinion. It is as follows:

ORDER
This day this cause came on to be heard and was heard on appeal from the decision of the Mississippi Workmen’s Compensation Commission filed by the employer and carrier in this cause and after reviewing the record made before the Mississippi Workmen’s Compensation Commission and considering briefs, oral arguments and authorities cited by the parties in this cause the court finds as follows:
(A) That the decision of the Mississippi Workmen’s Compensation Commission dated July 18, 1979, which was affirmed by the Mississippi Supreme Court failed to provide any information on which the employer and carrier could make a determination of the amount actually due to the claimant under said order since it did not determine a weekly amount of permanent partial benefits due to the claimant or the date that the claimant reached maximum medical recovery;
(B) That the Commission decision of July 18, 1979, and the subsequent decisions of the Commission have left a number of issues unresolved, such as: duration of temporary partial disability; amount of weekly benefits due to the claimant during temporary partial disability; date of maximum medical recovery; permanent disability, if any; and permanent loss of wage earning capacity, if any;
(C)That since it is apparent from this record that this cause will need to be remanded to the Mississippi Workmen’s Compensation Commission for determination of the unresolved issues in this cause, a remand at this time would avoid piecemeal appeals to the Supreme Court, would promote judicial efficiency and would lead to the most expeditious final resolution of the issues in this cause.
It is, therefore, ordered and adjudged as follows:
(1) That this cause be, and hereby is, remanded to the Mississippi Workmen’s Compensation Commission;
(2) That the Mississippi Workmen’s Compensation Commission be, and hereby is, ordered and directed to make a determination of the duration of claimant’s temporary partial disability which commenced on January 24, 1978; weekly amount of compensation due to the claimant during such period of temporary partial disability; date of maximum medical recovery; extent of permanent disability, if any; and permanent loss of wage earning capacity, if any; and any other facts necessary to finally adjudicate the rights of the parties as much as possible including medical benefits due claimant.
(3) That the decision of December 11, 1980, and the subsequent decision denying the petition for rehearing be, and hereby are, held in abeyance and enforcement is stayed pending a final determination of all issues in this cause;
(4) That the rights of the parties on this appeal be, and hereby are, preserved and may be raised on any subsequent appeal from the decision of the Mississippi Workmen’s Compensation Commission after a final adjudication.

Leathers has perfected an appeal from the above judgment of the circuit court of Lee County in the workmen’s compensation case and this appeal is now pending in this Court.

On April 13, 1981, counsel for Leathers wrote Mrs. Estes, the circuit clerk, and apparently requested her to enroll the Decern-ber 11, 1980 order of the commission on the judgment rolls of Lee County. Counsel for the employer-carrier received a copy of this letter, and on April 14, 1981, wrote Mrs. Estes stating to her that a petition for rehearing had been filed after entry of the order, and also that there was a subsequent commission order dated February 24, 1981, in which the case had been remanded to the administrative judge. The last two paragraphs of this letter state:

Under the present status of the record no payment is in default, no final order has been entered and the rights of the parties to appeal the issues raised has been specifically preserved by the Workmen’s Compensation Commission.
Therefore, the order Mr. Lawson sent you is not one that can be enrolled under Section 71-3-49 and no execution can be issued.

Subsequent to this development, counsel for Leathers in either the latter part of April, or in May, 1981, filed a petition in the circuit court of Lee County in cause number 16,988 in that court for a writ of mandamus to compel the circuit clerk to enroll this judgment.

This petition summarized the procedural steps previously had before the administrative judge, commission, circuit court, this Court, and the request to the clerk to enroll the judgment. The petition went on to recite opposing counsel’s instruction to the clerk "to not enroll the judgment, that the petitioner was totally disabled, had incurred heavy medical expenses which remained unpaid, and that he had been threatened with lawsuits for collection of unpaid medical expenses. He alleged irrevocable injury, that the employer-carrier at no time offered any medical proof to dispute the medical proof of petitioner, and that he was severely injured and unable to hold any employment which he was capable of doing. He finally alleged that the employer-carrier’s appeals had all been frivolous, that “this matter is res judicata,” and that the judgment of the workmen’s compensation commission was not appealable. The petition concluded with a prayer for a writ of mandamus requiring the clerk to enroll his judgment in order that execution might be levied upon Tupelo Coffee Company and Aetna Casualty and Surety Company as provided by law.

The circuit judge heard the petition for the writ of mandamus on January 27, 1982, the same day that he heard the appeal in the workmen’s compensation case of Leathers, and rendered a final order denying the petition. The order recited that the purported judgment Leathers sought to enroll was not a judgment that could properly be enrolled.

No appeal was taken from this judgment of the circuit court denying the petition for the writ of mandamus. Instead, Leathers filed a new and original petition with this Court to compel the enrollment of this judgment. This petition was sustained by an order from a Justice of this Court on March 18, 1982. This order was in turn set aside upon a petition for rehearing because process had not been had upon the circuit clerk before issuance of the order. See Charles Dane Leathers, Petitioner v. Thomas J. Gardner III, et al., 413 So.2d 1390, en banc, Broom, J., for the Court (1982).

A second petition was filed in this Court May 17,1982, to compel the circuit judge to order the circuit clerk to enroll the December 11, 1980 order of the commission as a final judgment. On July 28, 1982, in an opinion by this Court, this second petition was sustained.

As we noted initially, we now withdraw the above opinion and set aside the order of this Court based thereon.

This Court is sustaining the petition made a “mistake of the head, and not of the heart.” At the time we had no record before us, as we now have, and relied upon statements of counsel in their motions and attachments made to their motions. Our concern was the exasperating and deplorably protracted events which have transpired in determining the rights of the parties in this case. Especially in a claim of an injured worker, lawyers, commissioners, and all judges have the strongest affirmative duty to hear, determine, and conclude the matter.

In this opinion we do not assess any blame upon any individual or officials, except, of course, admitting our own error in sustaining the petition. Suffice it to say in the case of an injured worker, justice delayed is most assuredly justice denied.

Leathers manifestly was not entitled to have the December 11, 1980 judgment enrolled, in any event, at a time when a petition for rehearing of that order was pending before the full commission.

The December 11,1980 commission order was transmitted to the circuit clerk in April, 1981, and the petition to compel her to enroll the judgment was filed in either late April, or some time in May, 1981. Not only was the petition for rehearing of the December 11, 1980 order of the commission pending before the commission, but the commission had upon Leathers’ own motion re-opened the case for further hearing. We can see no reason whatever why counsel for Leathers should have expected the December 11, 1980 order of the commission to be enrolled in this posture of the proceedings.

It is also clear that the July 18, 1979 order of the commission, later affirmed by the circuit court judgment, in turn affirmed by us, left open for subsequent decision the degree of the duration of the temporary partial disability of Leathers after January 24, 1978.

Following affirmance, the employer-carrier were entitled to a hearing for a factual determination on this matter. Roberts v. Junior Food Mart, 308 So.2d 232 (Miss.1975); Jackson Ready-Mix Concrete and Western Casualty & Surety Company v. Young, 236 Miss. 550, 111 So.2d 255 (1959). If they were dissatisfied with the decision of the administrative judge, the commission, or the circuit court, they were entitled to an appeal. Let us suppose the situation were reversed, and upon affirmance and rehearing before the administrative judge and commission there had been an order that Leathers had no further disability following January 24,1978, yet there was lay and medical proof indicating that he was totally disabled at all times following this date. Could the employer-carrier maintain for a second that Leathers had no right of appeal from such an order?

The circuit judge was eminently correct in denying the petition for a writ of mandamus filed in the circuit court. For the same reason we were in error in sustaining the petition filed with us. A valid appeal had been perfected from an appealable order of the commission, and therefore it was not subject to enrollment on a judgment roll.

We have stated that we direct no criticism in this opinion, except to ourselves. We do feel an obligation to exculpate the local counsel for the employer-carrier, however, for every development subsequent to our original affirmance. This record shows that the employer-carrier at no time asked for any continuance, or engaged in any post-appeal dilatory tactic, but to the contrary evinced a genuine effort to conclude the matter.

PETITION FOR REHEARING SUSTAINED.

SUGG and WALKER, P.JJ., and BROOM and PRATHER, JJ., concur.

ROY NOBLE LEE, J., PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ., dissent.

ROY NOBLE LEE, Justice,

dissenting:

I dissent from the majority opinion.

This matter is before the Mississippi Supreme Court for the third time. It originated when claimant Leathers, by his attorney, Honorable William S. Lawson, filed a petition for writ of mandamus in the Circuit Court of Lee County against the circuit clerk to compel the enrollment of a judgment of the Mississippi Workmen’s Compensation Commission awarding compensation benefits. The Circuit Judge, Honorable Thomas J. Gardner, III, declined to issue the writ and, on the hearing, stated that previously he orally had instructed the clerk not to enroll the judgment. Thereupon, Leathers filed a petition for writ of mandamus in this Court for a writ directing the clerk to enroll the judgment and to prohibit the judge from interfering with the entry of same. A justice of this Court ordered issuance of the writ, as prayed for.

The respondents, Thomas J. Gardner, III, Tupelo Coffee Company [Tupelo], employer, and Aetna Casualty and Surety Company [Aetna], carrier, the latter two parties being intervenors, filed a petition for rehearing. The petition was heard by the full Court and the order was vacated on May 12, 1982. The Court stated in the opinion that it was addressing only the narrow issue as to whether or not the Mississippi Supreme Court order should be vacated because no process or summons was issued for the circuit clerk. The opinion specifically set forth that no other aspect of the case was considered.

On May 17, 1982, Leathers filed a second petition for writ of mandamus before this Court. That cause was briefed by the parties, which included the litigants, the presiding circuit judge, and the circuit clerk, and was decided here by a unanimous Court on June 28, 1982. The opinion was handed down July 28, 1982, with two (2) justices shown as not participating, directing issuance of the writ of mandamus, commanding the Circuit Clerk of Lee County, Mississippi, to enroll the Mississippi Workmen’s Compensation Commission order dated December 11,1980, in the judgment roll of Lee County.

Petition for rehearing was filed by the respondents/defendants and brief was called for from the claimant. Again the matter was considered by the full Court, including the two justices who declined to participate in the original decision. The petition for rehearing was sustained.

The majority opinion apologizes for the original decision on the question here, and compliments and exculpates the respondents (petitioners on rehearing) on their participation in the matter. I disagree and emphasize that neither apology nor compliment is due from this Court to any participant in the cause.

The question sub judiee was initiated in this Court and presented on May 17, 1982, by an instrument entitled “Petition for Writ of Mandamus to Compel the Circuit Judge to Order the Circuit Court Clerk to Enroll Judgment.” The circuit judge and circuit clerk filed answers. Tupelo Coffee Company and Aetna Casualty and Surety Company, employer/carrier, intervened and filed briefs.

The only exhibits to that petition were (1) full Commission order dated December 11, 1980; (2) letter from attorney and employer/carrier dated May 14, 1981; (8) final order of the circuit court dated January 27, 1972; and (4) mandate of the Mississippi Supreme Court in Cause No. 51,878, affirming the orders of the Mississippi Workmen’s Compensation Commission and Circuit Court of Lee County, granting compensation and medical benefits to Leathers. The respondents and intervenors filed answers but no part of the. record in Cause No. 51,898, except as abovementioned, was exhibited. None of the parties filed as a part of their pleadings any record on the facts or the issues. A copy of the full Commission order dated July 18, 1979, the basis of our affirmance in Cause No. 51,898 was not made a part of the record. Actually, the issues presented were (1) authority of this Court to issue a writ of mandamus for enrollment, and (2) res adjudicata.

Appellate courts decide questions and issues on the record before them. They are not required to search into records of other cases and should not decide one case on the record made in a different case.

Although no party made the July 18, 1979, Commission order a part of the record in this Mise. No. 1317 cause, since the case arises from' Aetna Casualty & Surety Company and Tupelo Coffee Company v. Leathers, No. 51,898 (mandate July 18, 1980), which was heard on that order, and the circuit court order affirming it, I have examined same. That order finds:

(1) Claimant sustained a compensable injury to his back on October 7, 1976, and on September 13, 1977.

(2) Claimant was temporarily totally disabled from October 7, 1976, until February 15, 1977.

(3) Claimant sustained a compensable injury on September 13, 1977, and, according to Dr. Buford Buchanan, maximum recovery had not been obtained as of July 18, 1979.

(4) According to Dr. Buchanan, claimant should be able to return to work with lifting restrictions on January 24, 1978.

(5) Claimant was entitled to temporary partial disability from January 24, 1978, to July 18, 1979, date of the order, and claimant was directed to furnish the employer/carrier a biweekly statement of his earnings so as to enable the employer/carrier to determine the rate of compensation payable under the statute.

After the affirmance of the above order on May 1, 1980, the Commission entered its December 11, 1980, order, calculating the benefits due the claimant to July 18, 1979, the date of said order (penalties and damages were added).

As to fixed compensation benefits, the December 11, 1980, order stated them to be as follows:

It is uncontradicted that under the Commission order of July 18, 1979, the sum of thirteen hundred twenty dollars ($1,320.00) was due; that from September 13, 1977, until July 18, 1979, temporary partial disability benefits were due, no maximum recovery date having been established to that time; that medical benefits were fixed, due and unpaid; that no wage had been earned by claimant to that time. The matter of calculating benefits was simply administrative procedure, which the Commission performed and stated in its December 11, 1980, order; that all other proceedings were for the purpose of determining the date of maximum medical recovery and benefits subsequent to July 18, 1979.

The Commission order of December 11, 1980, stating those parts of the July 18, 1979, Commission order, which became the order of this Court, was, in my opinion, an order entitled to be enrolled. Mississippi Code Annotated § 71-3-49 (1972) provides:

§ 71-3-49. Enforcement of payment in default.
In case of default by the employer In the .payment of any compensation due under an award for the period of thirty (30) days after payment is due and payable or, where the employer has failed to secure the payment of compensation to his employees as required, where there is such default in payment for a period of ten (10) days after same is due, any party In interest may file with the county clerk for the county in which the injury occurred or the county in which the employer has his principal place of business a certified copy of the decision of the commission awarding compensation or ending, diminishing, or increasing compensation previously awarded, from which no appeal has been taken within the time allowed therefor or, if an appeal has been taken by an employer who has not complied with the provisions of section 71-3-75, where he fails to deposit with the commission the amount of the award as security for its payment within ten (10) days after same is due and payable, and thereupon judgment must be entered in the circuit court by the clerk of such county in conformity therewith immediately upon the filing of such decision. If the payment in default be an installment, the commission may declare the entire award due and judgment may be entered in accordance with the provisions of this section. Such judgment shall be entered in the same manner, have the same effect, and be subject to the same proceedings as though rendered in a suit duly heard and determined by the circuit court, except that no appeal may be taken therefrom. The court shall vacate or modify such judgment to conform to any later award or decision of the commission upon presentation of a certified copy of such award or decision. The award may be so compromised by the commission as in its discretion may best serve the interest of the persons entitled to receive the compensation or benefits. Neither the commission nor any party in interest shall be required to pay any fee to any public officer for filing or recording any paper or instrument or for issuing a transcript of any judgment executed in pursuance of this section. (Emphasis added)

Long after affirmance of Leathers v. Tupelo Coffee Company and Aetna Casualty & Surety Company, No. 51,898, and rendition of the mandate on July 18, 1980, and after the case sub judice had been unanimously decided on June 28, 1982, in favor of the petitioner/claimant for enrollment of the judgment, but before the opinion was handed down on July 28, 1982, unknown to this Court, additional proceedings had been held in regard thereto. On July 13, 1982, the record of those proceedings, styled Leathers v. Aetna Casualty & Surety Company, et al., No. 54,083, was filed with the Clerk of this Court. When the petition for rehearing in the cause sub judice was filed, the writer of the majority opinion on rehearing discovered the record in No. 54,083, and such majority opinion is decided and written largely upon that record.

The respondents/defendants in their briefs on the petition for rehearing state that this Court made an error of fact in finding that only four hundred thirty-five dollars ($435.00) had been paid in compensation benefits since October 7, 1976, after five (5) years and nine (9) months; whereas, their brief recites that twenty-five hundred sixteen dollars eighty cents ($2,516.80) had been paid. With deference, the record before this Court shows that only $435.00 was paid as indicated in the December 11, 1980, Commission order and in our opinion. The record in No. 54,083, referred to by the majority on the petition for rehearing, reflects that subsequent to the December 11, 1980, Commission order, the respondents/defendants filed an instrument designated “Petition for Rehearing on Order Dated December 11, 1980.” In that instrument, the employer/carrier stated:

(1) That since the rendition of the order of December 11, 1980, the employer and carrier have paid unto claimant temporary total benefits from January 24,1978, through July 24, 1978, at the rate of $91.00 per week plus a ten percent penalty as provided by Section 71-3-37, Mississippi Code of 1972, which total amounts was $2109.80 $2516.80

Reference is made to the above record only to indicate that, in deciding the Mise. No. 1317 originally, we decided the case on the proper record, while on petition for rehearing an entirely different record and case were used.

In my view, the December 11,1980, Commission order covering the period to July 18, 1979, is final because of our judgment and is entitled to enrollment. This does not prohibit Tupelo Coffee Company and Aetna Casualty from questioning the accuracy of the computation of benefits, interest and penalties, by appropriate procedures, such as motion to vacate, modify or correct judgment.

Orders for the issuance of mandamus writs from this Court are common. At times, they are necessary and required to enforce our judgments and for maintaining the orderly appellate judicial process.

Although the Workmen’s Compensation Commission, the Circuit Court of Lee County, and the Mississippi Supreme Court have adjudicated that claimant has been entitled to compensation benefits, under the law, since October 7, 1976, five (5) years nine (9) months have elapsed and he has not been paid those benefits, except for $435.00. This graphically points out an injustice in the workmen’s compensation law, which cries out for remedy.

PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ., join in this dissent.

      . Leathers’ motion to controvert alleged only one injury, which occurred on September 13, 1977, and named his treating physicians as Dr. John M. Ford of Baldwyn and Dr. Ben Buchanan of Tupelo. Dr. Buchanan is an orthopedist.
      The answer of the employer-carrier, filed March 17, 1978, admitted a compensable work related injury, but specifically flagged the problem with the following affirmative statement typed into the answer: “Temporary disability is alleged to be undetermined, however, defendants deny any temporary disability for any period except the period from 9-13-77 through 1-29-78.” The answer also alleged that permanent disability was undetermined, and it denied that there was any permanent disability for any period.

      . For this six month period following January 24, 1978, Dr. Buchanan was of the opinion that Leathers should not lift more than 25 pounds.

      . The order did not direct the employer-carrier to make any payments from September 13, 1977, until January 24, 1978, the reason for which is not stated.

      . The commission order makes no reference to a later determination by it of permanent partial disability benefits. We only surmise that the commission was of the opinion, based on a review of Dr. Buchanan’s testimony, that there would probably be no permanent partial disability, and the temporary partial disability would extend for a period of approximately six months following January 24, 1978.

      . There are dates and perhaps other factors subject to conjecture on the writ of mandamus proceedings in the circuit court of Lee County. As will be noted in this opinion, no appeal was taken from the circuit judge’s denial of the petition for the writ, and we have no record of the pleadings or orders, except those which have been made exhibits or attachments to motions made in this Court.

      . Presumably the petitioner was referring to the December 11, 1980 order of the commission as not being appealable.

      . Although the author of this particular opinion abstained from that opinion, it was not because he did not fully agree with the result then reached.

      . Leathers v. Gardner, 413 So.2d 1390 (Miss.1982).

      . Justices Hawkins and Prather from the Northern District. Justice Prather came on the Mississippi Supreme Court on July 15, 1982.

      . Record upon which majority relies.

      . Part of the amount fixed in the January 18, 1979, and December 11, 1980, Commission order.

      . Miss.Code Ann. § 71-3-49. This does not suggest, or mean, delay or dilatory methods in enforcement of the judgment. Compensation benefits have not been computed subsequent to July 18, 1979, on the Mise. No. 1317 record.

      .According to the proper record before us, but $2,516.80, according to the record in another cause, No. 54,083.


author: PATTERSON, Chief Justice.

text:
    Charles Dane LEATHERS v. Thomas J. GARDNER, III and Mrs. Fay Estes.
    Misc. No. 1317.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Alex A. Alston, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellees.
    Claude F. Clayton, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for inter-venor.
   PATTERSON, Chief Justice.

Motion for clarification of Court’s opinion, 425 So.2d 1336, overruled.

BOWLING, J., dissents.

ROY NOBLE LEE and DAN M. LEE, JJ., took no part.


author: DAN M. LEE, Justice,

text:
    James Douglas BRADY v. STATE of Mississippi.
    No. 53569.
    Supreme Court of Mississippi.
    Jan. 19, 1983.
    Rehearing Denied Feb. 16, 1983.

      McGee & Bogen and Edward J. Bogen, Jr., Leland, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Washington County wherein James Douglas Brady, appellant, was indicted and tried upon a charge of murder for the August 29, 1980, shooting of William Lucas. Brady was convicted of manslaughter and thereafter sentenced to serve a term of eighteen years in the Mississippi Department of Corrections. We affirm.

Appellant and his wife, Cynthia Brady, were living in Greenville. Approximately one week before the shooting, appellant’s wife left him with their three-year-old daughter, Tomeka. Mrs. Brady did not inform appellant that she was leaving him or where she was going.

While Mrs. Brady was staying at the home of Cathy Howard, a friend with whom she worked, appellant learned of her whereabouts and called her throughout the week. Appellant asked his wife to return home; however, she refused.

A meeting was arranged between appellant and his wife at the Elks Club in Green-ville on the night of August 28, 1980. There, appellant continued to tell his wife of his desire for her to come home to no avail. Appellant had been and continued drinking, also claiming he had taken sleeping pills and smoked dope before the night was over.

When Mrs. Brady returned to the home of Mrs. Howard at approximately 2:45 a.m., appellant followed her there and forced his way into the house. Mrs. Howard was awakened by a discussion between appellant and his wife, whereupon she asked appellant to leave, which he did. Brady returned to Mrs. Howard’s home shortly thereafter. He forced his way into the house and immediately began firing shots from a pistol. Inside the house at the time of the shooting were Mrs. Brady, her daughter, Mrs. Howard, her two children, William Lucas and Herman Sanders, Mrs. Howard’s stepfather. Appellant shot and killed both Lucas and Sanders. Mrs. Howard was wounded.

Appellant took his wife and child to Louisiana where he subsequently attempted to commit suicide. He was taken into custody after his wife notified the police in Delhi, Louisiana.

Appellant did not deny that he shot and killed Lucas nor did he contend that Lucas was armed or threatened him in any manner. Appellant rather relied upon the sole defense of insanity at the time the offense was committed.

The jury found appellant guilty of manslaughter. On appeal, he challenges the sufficiency of the evidence to support his conviction and the state’s failure to bring him to trial within 270 days of arraignment.

I. Was the verdict of the jury against the overwhelming weight of the evidence?

Appellant contends that the overwhelming proof offered at trial through the testimony of his wife, two clinical psychologists and a psychiatrist indicates that at the time of the commission of the offense appellant was psychotic and did not know the difference between right and wrong. A psychiatrist testified for the state that appellant did know right from wrong at the time of the commission of the offense.

We find appellant’s argument unpersuasive. The evidence surrounding his mental condition at the time the offense was committed was conflicting. It is well settled that the issue of sanity or insanity is for determination by the jury. Cole v. State, 405 So.2d 910 (Miss.1981).

Juries and trial judges are not bound to accept the testimony of expert witnesses but may accept or reject parts of that testimony. Matthews v. State, 394 So.2d 304 (Miss.1981). See also Lias v. State, 362 So.2d 198 (Miss.1978); Pounders v. State, 335 So.2d 904 (Miss.1976); and Herron v. State, 287 So.2d 759 (Miss.1974). In Sadler v. State, 407 So.2d 95 (Miss.1981), we stated:

Among the alleged errors assigned is that the trial court should have sustained Sadler’s motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss.1973). In Spikes v. State, 302 So.2d 250 (Miss.1974), this Court said:
On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969). [302 So.2d at 251],
The resolution of such conflicts as there were in the evidence in this case, was peculiarly for the jury. In Hankins v. State, 288 So.2d 866 (Miss.1974), it was said:
In Evans v. State, 159 Miss. 561, 132 So. 563 (1931), we stated:
We invite the attention of the bar to the fact that we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury. (159 Miss, at 566, 132 So. at 564) (407 So.2d at 97)

There is no merit in appellant’s contention that the verdict of the jury was against the overwhelming weight of the evidence.

II. Did the trial court err in overruling appellant’s motion for dismissal pursuant to Mississippi Code Annotated section 99-17-1 (Supp.1982)?

Mississippi Code Annotated section 99-17-1 (Supp.1982) provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Appellant contends that the trial court erred in overruling his motion for dismissal because the state failed to bring him to trial within 270 days of his arraignment. The record discloses that 272 days elapsed between appellant’s arraignment and trial. Therefore, this Court is faced with the question of whether good cause was shown for the two-day delay in bringing appellant to trial. The sequence of events with regard to this claim is as follows: •

(1) On September 24, 1980, prior to his arraignment, appellant filed a motion for mental examination. On that same day an order was entered directing that he be examined by a competent psychiatrist and/or psychologist. The order further provided that a copy of the diagnosis insofar as the competency of appellant was concerned should be delivered to the court and attorney for the appellant with an opinion as to whether appellant could assist his attorney, whether he understood the charges against him and whether he was insane at the time of the alleged commission of the offense.

(2) On November 24, 1980, appellant was arraigned, at which time he entered a plea of not guilty.

(3) On May 14, 1981, the state filed its motion for psychiatric examination of appellant pursuant to Rule 4.08 of the Uniform Criminal Rules of Circuit Court Practice. In support of its motion, the state offered to show that it had been notified that appellant intended to rely upon a defense of insanity at the time of the alleged crime. Pursuant to said motion, an order was entered to transport appellant to the Mississippi State Hospital at Whitfield for examination and evaluation as to appellant’s mental ability to commit the criminal act with which he was charged, whether any insanity still existed and whether appellant was mentally competent to stand trial and rationally able to assist his attorney in his defense.

The order further provided that if it was determined that appellant was suffering from a mental disease or condition from which past or present insanity resulted, or was incompetent to stand trial, he was ordered committed to the Mississippi State Hospital at Whitfield for the purpose of treatment and further evaluation until such time as the court was notified that appellant was cured of his insanity, restored to reason and competent to stand trial. The cause was ordered continued for good cause shown until the examination ordered was completed and the court notified.

(4) On June 5,1981, a letter dated June 2, 1981, from Dr. Robert S. McKinley, staff psychiatrist at the Mississippi State Hospital at Whitfield, was filed in the cause. The substance of the letter revealed the findings of the staff at Whitfield that appellant was without psychosis, responsible for his actions at the time of the alleged crime and competent to stand trial.

(5) On the second Monday in July, the July court term began which ran for twenty-four days thereafter.

(6) On August 10, 1981, appellant filed a motion for production of documentary and physical evidence for inspection and copying and a motion for special venire.

(7) On August 20, 1981, appellant filed a motion for subpoena duces tecum as well as his motion to dismiss for failure of the state to comply with section 99-17-1.

(8) On August 24, 1981, appellant’s motion to dismiss was overruled. The trial judge assigned no reason for the denial of said motion.

(9) The cause proceeded to trial on August 24 and concluded on August 25, 1981, with appellant being found guilty of manslaughter.

A review of the foregoing events reveals that the trial court’s order dated September 24, 1980, was never complied with by the appellant in that a copy of his diagnosis after psychiatric examination was never delivered to the court.

On May 14, 1981, the state filed its motion for psychiatric examination after being notified by appellant that he intended to rely on the defense of insanity at the time of the alleged commission of the offense. An examination was ordered and the cause continued for good cause shown until said examination was completed and the court notified. On June 5,1981, a letter from the state mental hospital at Whitfield was filed with the court which rendered an opinion that appellant was sane at the time of the alleged commission of the act and competent to stand trial.

In State v. Davis, 382 So.2d 1095 (Miss.1980), this Court, in construing our 270-day rule, held:

The order entered by the court on August 29, 1978, must be considered, in the absence of any objection or protest thereto, because of the “overcrowded condition of the court docket” to have been for “good cause.” The filing by the defendants of the demurrer and motions to quash on the eve of trial on this date, 81 days after arraignment, would have displaced the cases on the overcrowded trial docket of the court and made a new setting at the term difficult, if not impossible. This becomes evident when it is borne in mind that the motion to quash the indictment because of alleged racial discrimination in the selection of the foreman presented a factual issue, requiring an evidentiary hearing and was filed without notice on the day set for trial. The delay resulting from this continuance cannot be considered as having been without good cause, especially in the absence of any showing in the record to the contrary. In the complete absence of any protest or objection, or any request by defendants for trial, the continuances of June 23, 1978, August 29, 1978 and February 7, 1979 were entered for “good cause." Even if it is assumed that other delays were not justified, nevertheless, there must be deducted from the 340 days: (1) 45 days attributable to the continuance granted on defendant’s own motion, (2) the 34 days delay following the filing of the several motions by defendants on the eve of trial on August 29 and due to the overcrowded condition of the docket, and (3) 62 days attributable to the continuance granted because of the absence of the State’s witness, the toxicologist.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set out what is sometimes referred to as a “balancing test,” to be used in determining whether a defendant in a criminal case had been denied his constitutional right to a speedy trial. In that case the Court said that in making such a determination that the factors to be considered were: length of the delay, reason for the delay, the defendant’s assertion of his right, and prejudice resulting to the defendant.
These criteria were used by this Court in Harrington v. State, 336 So.2d 721, 723-724 (1976):
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the United States Supreme Court announced a balancing test which takes into consideration the conduct of both the prosecution and the defendant in determining whether or not the accused’s right to a speedy trial has been violated. The test is expressed as follows:
A balancing test necessarily compels courts to approach speedy trial cases on an ad-hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. 407 U.S. 514 at 530, 92 S.Ct. 2182 at 2192, 33 L.Ed.2d 101 at 116-17 (Emphasis added).
In the present case clear justification for 141 days of the delay following arraignment appears from a consideration of the record. At no time on any of the occasions when the trial court entered orders for continuances were there any requests by the defendants for trial or assertion of their right to a speedy trial or objection or protest at the delay. Moreover, no prejudice is shown to have resulted to the defendants from the delays. (382 So.2d at 1097-98) (emphasis ours).

In State v. Sistrunk, 404 So.2d 564 (Miss.1981), we also found there was good cause shown for the state’s failure to bring two defendants to trial within 270 days of their arraignment:

The record discloses that delay in three distinct instances was due to granting a continuance in the prosecution of the case.
On August 17, 1979, the trial court granted a continuance at the request of the State, since two material witnesses of the State would be absent from the jurisdiction until the latter part of September. The continuance extended over a 27 day period, and no protest or objection was made to it by the defendants and there was no request by them for trial.
On December 13,1979, the circuit judge entered an order of continuance, with the agreement of both parties involved, that trial was to be reset in January at the request of either party. This continuance extended over a period of at least nineteen days.
The court also made a general order, to carry over all cases from the January term to the February term, which was three days later.
These continuances are similar to continuances which State v. Davis, supra, held must be deducted from the amount of time elapsing after arraignment, in determination of whether there has been a violation of Mississippi Code Annotated section 99-17-1 (Supp.1981). The Court in Davis, supra, noted that a delay resulting from a continuance cannot be considered as having been without good cause, if there has been a complete absence. of any protest or objection, or any request by the defendants for trial.
Since Sistrunk and Hammons in no way protested or objected to the continuances of August 17, 1979 and December 13,1979, or ever requested trial, it is clear under Davis, supra, that the motion to dismiss by the defendants pursuant to Mississippi Code Annotated section 99-17-1 (Supp.1981), was premature. This is especially true, since it is undisputed, that trial was set on March 18, 1980, and that such a trial would have been a timely one under Mississippi Code Annotated section 99-17-1 (Supp.1981). It would be timely, because March 18, 1980 was 316 days after waiver of arraignment, and after considering the delay caused by the continuance of August 17, 1979, and December 13, 1979, which, as mentioned above, were duly ordered by the trial court without objection or request for trial by defendant, the trial was actually set 270 days after waiver of arraignment. (404 So.2d at 564-65)

In the case at bar, the cause was continued for good cause shown from May 14, 1981, until June 5, 1981, a period of 23 days. The court’s September 24, 1980, order was not complied with until the notice of the plea of insanity was first raised on May 14,1981. The late filing of appellant’s notice of insanity defense necessitated a continuance until the state could obtain a mental examination to determine whether it agreed with the insanity plea or could produce expert testimony to the contrary. This is no different than granting the state a 27-day continuance because prosecution witnesses were outside the jurisdiction. Sistrunk, supra. Appellant made no objection to the delay nor did he ever request a trial date. A review of the record leads us to the conclusion that appellant acquiesced in this delay. When these 23 days are deducted from the period from appellant’s arraignment to his trial, appellant was tried well within 270 days of his arraignment.

Turner v. State, 383 So.2d 489 (Miss.1980), is distinguishable from the present case in that in Turner the state failed to obtain any continuances but simply allowed 270 days to elapse after the date of arraignment without bringing Turner to trial. The delay resulting from this non-action on the part of the state prejudiced Turner in that a material witness in his behalf had become unavailable. In Turner, this Court also noted that the state had wholly failed to respond to the question presented and that this was tantamount to a confession of error.

Based on the foregoing, appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

ROBERTSON, J., took no part.

      . The July term was extended on August 24 and 25, 1981, for appellant’s trial.


text:
    Mary Lou Windham BOREN v. Bobby N. WINDHAM.
    No. 53957.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Mounce, Soper & McElroy and Thomas M. McElroy, Tupelo, for appellant.
    Langston & Lott and Duncan Lott, Booneville, for appellee.
    Before WALKER, DAN M. LEE, and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Prentiss County wherein Bobby N. Windham, appellee, petitioned for modification of a final decree of divorce whereby he sought termination of alimony payable to his former wife Mary Lou Windham Boren, appellant. Windham alleged in his petition a material change in circumstances had occurred subsequent to the rendition of the divorce decree in that Mary Windham Boren had remarried and alternatively, engaged in sexual misconduct, thereby forfeiting her right to future payments of alimony. The proof at trial established that the marriage entered into between Mary Lou Windham Boren and Jim Boren was void and subsequently annulled as being a bigamous marriage. The chancellor terminated appellant’s alimony, finding that she had chosen to look to Jim Boren for her support by marrying him, and upon other grounds as alleged in appellee’s petition. Mary Lou Windham Boren appeals. We affirm.

The parties to this appeal were divorced on February 23, 1977. The final decree for divorce provided, among other things, that appellee pay unto appellant alimony in the amount of $75 per week for as long as appellant was able to work on a parttime basis only. In the event appellant’s health improved to the extent she was able to resume work on a fulltime basis, the weekly payment of alimony was to be reduced to $40 per week until further order of the court or appellant’s remarriage.

Following the divorce, appellant moved to Baldwyn, Mississippi, and obtained parttime employment at Arnold’s Restaurant. She worked at Arnold’s for approximately three years until she broke her foot. When appellant was ready to return to work, Arnold’s did not have an opening to accommodate her. In September or October of 1980, appellant obtained a parttime job at Mr. Quick; however, her employment there ended after approximately one month due to the following circumstances.

In August 1980 appellant met Jim Boren. Four days later appellant and Boren were married in Alabama. Appellant contends the marriage was not consummated, whereupon Boren departed the following day for approximately three months. It was after Boren’s departure that appellant became employed at Mr. Quick. While Boren was gone, appellant learned that he was previously married to another woman in Alabama from whom he was not divorced. She began dating a man named Swift. Prior to Boren’s return, appellant broke up with Swift; however, when Boren came to see her, Swift also appeared and a fight erupted. Swift then beat appellant and forced her to go to Tennessee where she remained for approximately eight days. A missing ' person report was 'filed by appellant’s daughter on November 20, 1981.

Upon her return to Mississippi, appellant was hospitalized. When she was released from the hospital, she confronted Boren who had been staying at her house while she was hospitalized, about his other wife in Alabama.

Appellee learned of appellant’s ceremonial marriage to Boren in January of 1981, at which time, upon the advice of his attorney, he ceased making alimony payments and instituted the present proceeding. Appellant having lost her job at Mr. Quick, was without funds once the alimony payments were terminated. To help defray expenses, appellant allowed Wallace Keys, a third cousin, to live at her house during January, February and March of 1981. Although Keys paid no rent, he helped buy a few groceries. Both Keys and appellant denied any sexual relationship, asserting they occupied separate bedrooms while he resided at appellant’s home. William Myhand also lived in appellant’s home for approximately one month. Myhand likewise paid no rent but did contribute for groceries and bills. Appellant denied any sexual relations with Myhand.

At the conclusion of the hearing, the chancellor found that appellant, by marrying Boren, even though such marriage had been annulled, had elected to whom she wished to look for support. The chancellor therefore terminated appellant’s alimony.

Where a wife who is drawing alimony from her divorced husband enters into a second marriage which is void, and the second marriage is annulled, may she draw alimony from the first husband after the annulment of the second marriage?

In Bridges v. Bridges, 217 So.2d 281 (Miss.1968), this Court refused to adopt a rule that every ceremonial second marriage would automatically cut off the wife’s right to alimony from her first husband and likewise refused to adopt the rule that if a voidable second marriage is annulled and the laws of the state of annulment do not provide for alimony in the case of annulment, the right to alimony from the first husband may be revived unless it would be inequitable under the facts and circumstances.

The parties to this appeal contend that this is a case of first impression because Bridges involved a voidable marriage rather than a void marriage. While we have not previously addressed the issue of whether a revival of alimony would occur where a wife’s subsequent marriage is void, we decline to differentiate between a void and voidable marriage for this purpose. In Bridges we held:

We are unwilling to adopt the rule in Keeney, supra, to the effect that every ceremonial second marriage automatically cuts off the wife’s rights to alimony from the first husband. We are also unwilling to adopt the rule adhered to in New York and Massachusetts that if a voidable second marriage is annulled and the laws of the state of annulment do not provide for alimony in the case of annulment, the right to alimony from the first husband may be revived unless it would be inequitable under the facts and circumstances. Ordinarily in the case of a voidable marriage, the innocent party may elect to either have the marriage annulled or treated as valid. If appellant had treated the marriage to Ferrell as valid, she would probably have the right to receive alimony from him. She also had the right to have the marriage annulled. This reveals the weakness of the rule applied in New York and Massachusetts.
The duty of the husband to pay, and the right of the wife to receive, alimony should not depend upon whether the divorced wife decides to treat her subsequent marriage as voidable or valid.
Appellant was mentally competent when she undertook to marry Ferrell. She was under no compulsion, except the misrepresentations already mentioned. When she undertook to enter into this marriage she made an election to look to Ferrell'ás the man from whom she would receive her support, and relinquished her right to receive further alimony from Bridges. If she had been forced to marry Ferrell under duress that made her act wholly involuntary or if she had been mentally incompetent to enter into a contract of marriage, we would have a different kind of case, and undoubtedly would reach a different result. We are of the opinion that the chancellor correctly decided the case and that appellant was not entitled to any further alimony from Bridges after the date of the ceremonial marriage to Ferrell, (emphasis ours). (217 So.2d at 283-84).

We see no reason why our holding in Bridges should not be extended to encompass a situation where the subsequent marriage of a wife is void rather than voidable. Regardless of whether the subsequent marriage is void or voidable the revival of alimony from a wife’s first husband upon annulment of the second marriage will depend upon the facts and circumstances of each case.

Turning to the facts in the present case, appellant married Boren in August of 1980. Appellant subsequently learned of Boren’s previous marriage while he was on a three-month trip which began the day after their marriage. Appellant then began dating Swift. When appellee discovered that appellant had remarried, he instituted the present action for termination of her alimony on January 9, 1981. Appellant did not file suit for annulment until March 13,1981. Both causes were later heard on the same day. The annulment was heard first and was not contested by Boren.

Alimony is not a bounty to which appellant became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to appellee. Beacham v. Beacham, 383 So.2d 146 (Miss.1980).

From the totality of the circumstances as evidenced by the record, we cannot say the chancellor was manifestly wrong in terminating appellant’s alimony. Appellant was mentally competent when she undertook to marry Boren. She was under no compulsion,. When she undertook to enter into this marriage, she made an election to look to Boren as the man from whom she would receive her support. In Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933), this Court held:

In this case there was a question as to whether a wife divorced from her husband, and who has remarried, is entitled to alimony after her remarriage. In our opinion, when a wife remarries, a new status is created which relieves the former husband from further duty to support her. She, in effect, elects to take support from her second husband, and we do not think the law contemplates that she shall marry again, and then have her former husband support her and relieve her last husband from that duty. (167 Miss, at 755, 150 So. at 211).

The loss of alimony may give rise to a separate cause of action against Boren for his alleged misrepresentations which caused appellant to forfeit her right to receive alimony.

As stated in Bridges, under a different set of facts and circumstances we may reach a different result. We cannot say, however, that here the chancellor erred in terminating appellant’s alimony.

Based on the foregoing, this cause is hereby affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    David Paul PEDEN v. STATE of Mississippi.
    No. 53563.
    Supreme Court of Mississippi.
    Feb. 2, 1983.

      Binder, Kirksey & DeLaughter, Alvin M. Binder, William B. Kirksey, Jackson, John E. Gregg, Raymond, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

David Paul Peden was convicted in the Circuit Court of the Second Judicial District of Hinds County of arson and shooting into an occupied dwelling. He was sentenced to serve five years for the arson conviction, with three years suspended, and one year for shooting into the dwelling which was to run concurrent with the arson sentence.

Although Peden was separately indicted on the two charges, the two were consolidated for trial. The first issue presented is whether the trial court erred in denying Peden’s motion for a directed verdict at the close of the state’s case on the indictment charging him with shooting into an occupied dwelling. We are of the opinion this assignment is without merit because Peden presented evidence in his own behalf following the overruling of his motion for a directed verdict and failed to renew this motion at the conclusion of all the evidence by requesting a peremptory instruction of not guilty or by moving for a judgment notwithstanding the verdict thereby waiving any error in the denial of the motion for a directed verdict. Harris v. State, 413 So.2d 1016 (Miss.1982); State v. Russell, 358 So.2d 409 (Miss.1978).

Peden’s second contention for reversal is that the trial court erred in permitting testimony of an alleged confession into evidence for the reason that it was not shown to be voluntarily given or that Peden understood the Miranda warning prior to making the confession.

Without detailing the evidence concerning the Miranda warning, we think we need only say that there was ample evidence to support the trial court’s finding that the warning was given and was understood. It is necessary however, that the pertinent facts concerning the alleged confession be related.

On the evening of November 24, 1980, at about 9:00 o’clock p.m., Tom Black returned to his home from his employment and found that someone had attempted to break in through the front door. After opening the door and entering his home, he heard a gun shot ring out' whereupon he called the Hinds County Sheriff’s Department. Officer Sylvester arrived at Black’s home about fifteen minutes later and encountered Pe-den, a stranger to Black, who had arrived on the premises shortly after the gun was fired, stating that he was there looking for some dogs.

An investigation by Officer Sylvester revealed a shot had been fired into a bedroom of the house and a projectile had gone through the house and was lodged in the back wall. The investigation also revealed that.an area around a back window, which smelled of diesel fuel, had recently been on fire. Officer Sylvester observed that Pe-den, who was still on the premises, smelled of diesel and had mud and soot on his hands. Shortly thereafter Officer Bryant arrived and because of Peden’s appearance, the presence of a jug of diesel fuel and a high powered rifle, which had been recently fired, in Peden’s truck, he was arrested and taken to the Hinds County Sheriff’s office. While enroute Peden was given the Miranda warning by Bryant.

During the trial Officer Sylvester attempted to give testimony of an alleged oral confession given by Peden after questioning at the sheriff’s office. An objection was interposed to it based upon the grounds that it was not freely and voluntarily given and that Peden was not advised of his constitutional rights pursuant to Miranda. A suppression hearing was then conducted outside the presence of the jury.

Officers Sylvester and Bryant were the only witnesses for the state. According to Bryant Peden confessed in the lounge of the sheriff’s office approximately 30 to 45 minutes after he had been brought there. Bryant testified he left Officer Sylvester with Peden for approximately twenty minutes, following which he was requested to return to the lounge because Peden had agreed to tell them of his involvement in the arson.

Bryant testified in part as follows:

“BY MR. PETERS:
Sf« * * * 5(5
Q. At any time when you and Deputy Sylvester were present, did anyone else come into the room to make any form of interrogation or get involved in the investigation?
A. There was Officer Bullock of the Clinton Police Department that had been there earlier but during the statement, I don’t believe, to the best of my recollection, that he came into the room during the statement.
Q. So you and Officer Sylvester would have been the only two people there during the taking of this statement?
A. Right.”

Officer Sylvester was not questioned as to whether any other officers were present in the lounge when Peden was questioned or when he was alleged to have confessed.

Peden testified on the suppression hearing in part as follows:

“DIRECT EXAMINATION BY MR. GREGG:
Q. Were there other officers present at any time when you talked to him?
A. There was.
Q. Do you know who they were?
A. Well, the only other one besides the Captain that I knew was Mister Sylvester and it was another officer in the room there, too.
Q. There was another officer?
A. There was.
Q. When you say that these three were present, where did that take place?
A. That was in the lounge down there. Q. You say down there. Down there where?
A. At the County Sheriff’s Office.
Q. Who was doing most of the talking?
A. Well, it was Mister Sylvester doing the majority of the talking.
Q. Did Mr. Sylvester tell you he would do anything for you?
A. He did, sir.
Q. What did he tell you?
A. He told me if I would tell him what happened, he would help me out.... ”

As noted Officer Sylvester was not asked whether any other officers were present when Peden was questioned. Neither he, Bryant or Bullock, the officer mentioned by Bryant as being present, were recalled to rebut Peden’s testimony concerning Bullock’s presence when he was questioned.

Following the dictates of Agee v. State, 185 So.2d 671 (Miss.1966), and its progeny we are of the opinion that after Peden put in issue the question of involuntariness, it was incumbent upon the state to call as witnesses all officers present when Peden purportedly confessed, or, give an adequate reason for their absence. Agee provides in pertinent part as follows:

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the the confession was signed, or give an adequate reason for the absence of any such witness. See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).
185 So.2d at 673.

See also Kelly v. State, 414 So.2d 446 (Miss.1982); Smith v. State, 386 So.2d 1117 (Miss.1980); Scott v. State, 382 So.2d 1091 (Miss.1980); Craft v. State, 380 So.2d 251 (Miss.1980); Absten v. State, 361 So.2d 1384 (Miss.1978); Miles v. State, 360 So.2d 1244 (Miss.1978); Hicks v. State, 355 So.2d 679 (Miss.1978); Holt v. State, 348 So.2d 434 (Miss.1977); Rogers v. State, 338 So.2d 1005 (Miss.1976); Dickens v. State, 311 So.2d 650 (Miss.1975); McNeil v. State, 308 So.2d 236 (Miss.1975); Younger v. State, 301 So.2d 300 (Miss.1974); Nabors v. State, 293 So.2d 336 (Miss.1974); Evans v. State, 285 So.2d 786 (Miss.1973); Reid v. State, 266 So.2d 21 (Miss.1972); Myers v. State, 254 So.2d 891 (Miss.1971); Rowell v. State, 239. So.2d 917 (Miss.1970); Stevens v. State, 228 So.2d 888 (Miss.1969); Williams v. State, 220 So.2d 325 (Miss.1969).

No rebuttal testimony having been given for the absence of the third officer, Bullock, as testified to by Peden, we are of the opinion Officer Bryant’s testimony, that Bullock was not present at the time of the statement, does not negate the application of Agee, which includes the period of questioning within its ambit. See Scott v. State, 382 So.2d 1091 (Miss.1980); and Hicks v. State, 355 So.2d 679 (Miss.1978). To comply with the numerous cases on this subject the state should have called all three officers present when Peden was questioned and the alleged confession given. If adequate reason existed for any of the officers absence at trial, then one of the other officers should have been called on rebuttal to clarify the presence or absence of Bullock, who the evidence established, was present during at least a portion of the interrogation. It need be stated that although the third officer, Bullock, was never called as a witness Officer Sylvester gave testimony during the trial-in-chief that only he and Bryant were present when the confession was given. This testimony came too late to cure the error mentioned above in the suppression hearing. See Depreo v. State, 407 So.2d 102 (Miss.1981); Absten v. State, 361 So.2d 1384 (Miss.1978); and Agee v. State, 185 So.2d 671 (Miss.1966).

Although the oral confession in issue included only an admission of the arson charge and did not mention the charge of firing into an occupied dwelling house, we nevertheless are of the opinion that the case must be reversed on both charges. The confession, improperly permitted into evidence, very probably prejudiced the jury on both charges inasmuch as it placed the defendant on or near the premises when the shot was fired and as such portrayed him as an arsonist by virtue of the inadmissible evidence.

REVERSED AND REMANDED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Jimmy W. BASSETT v. Mattie BASSETT.
    No. 53597.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Robert C. Grenfell, Jackson, for appellant.
   Appeal from Chancery Court, Smith County; J.W. Walker, Chancellor.

Aleita M. Sullivan, Mendenhall, for appel-lee.

Before BROOM, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Emily Smith ROLLINS v. Blanche Terry ROLLINS, Executrix Estate of Sam W. Rollins, Dec’d.
    No. 54042.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Beach, Luckett & Ross, Stephen L. Beach, James J. Fougerousse, Jackson, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before BROOM, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Edmond SENTENO v. STATE of Mississippi.
    No. 53574.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before BROOM, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Billy W. HUGHES v. STATE of Mississippi.
    No. 54038.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Billy W. Hughes, pro se.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Chancellor.

Before PATTERSON, P.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    LILES CONSTRUCTION COMPANY, INC. v. JITNEY JUNGLE STORES OF AMERI-CA, INC., General Shopping Centers of Grenada, Ltd. and General Shopping Centers.
    No. 54076.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Perry, Crockett, Morrison & Starling, Thomas W. Crockett, Jr., Mark D. Herbert, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Christopher A. Shapley, Wells, Wicker, Cre-cink, Wells & Stubblefield, Calvin L. Wells, John C. Crecink, Jr., Jackson, for appellee.
   Appeal from Chancery . Court, Hinds County; James Arden Barnett, Chancellor.

Before WALKER, P.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Ira R. KYNERD v. Audrey Marcia KYNERD.
    No. 54029.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Jackson, for appellant.
    James W. Nobles, Jr., Jackson, for appel-lee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before BROOM, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Shirley Elaine DENSON v. Mackie Arthur DENSON.
    No. 53611.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Price, Krohn & McLemore, Gerald R. McLemore, Corinth, for appellee.
   Appeal from Chancery Court, Alcorn County; Fred P. Wright, Chancellor.

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

AFFIRMED.


text:
    Edward M. LOWICKI, M.D. v. Carol D. LOWICKI.
    No. 53598.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    Binder, Kirksey & DeLaughter, Alvin M. Binder, William B. Kirksey, Jackson, for appellant.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Watkins & Eager, James A. Becker, Jackson, for appellee.

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

AFFIRMED.


text:
    Betty Jean DAVIS v. STATE of Mississippi.
    No. 53994.
    Supreme Court of Mississippi.
    Feb. 2, 1983.
    William C. Thompson, Forest, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

REVERSED AND DEFENDANT DISCHARGED.

WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


author: BRADLEY, Judge.

text:
    James LANDRUM v. Franklin H. JAMES, Commissioner of the Alabama Department of Industrial Relations, and Montgomery Country Club.
    Civ. 3310.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.
    Rehearing Denied Oct. 20, 1982.
    Lawrence F. Gardella of Legal Services Corp. of Alabama, Montgomery, for appellant.
    George Cocoris, Gen. Counsel, and Harry A. Lyles, Asst. Gen. Counsel, State of Ala., Dept, of Indus. Relations, Montgomery, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

James Landrum worked as a cook for the Montgomery Country Club from September 10,1979 until May 13,1981. After work on May 13, 1981, Landrum was arrested and placed in the Montgomery city jail. The record reveals that Landrum’s arrest and incarceration were for failure to pay an accumulation of parking tickets. Landrum remained in jail for ninety days.

The morning after the arrest, Landrum called his supervisors to notify them of his inability to get to work as a result of his incarceration. He also asked for a $1,200 loan so that he could pay the fine and return to work. His employer refused the request.

During his incarceration, the Montgomery Country Club filled the position held by Landrum. In August 1981 Landrum was released from jail. He went to the country club with the intention of resuming his work. At the club, he was informed that his position was filled during his absence and that no other positions were available.

In October 1981 Landrum applied to the Department of Industrial Relations for unemployment compensation. The application was denied. After exhausting the administrative appeal procedures, Landrum appealed to the Circuit Court of Montgomery County for a de novo hearing. The case was presented to the court on cross-motions for summary judgment. The court held that Landrum had voluntarily left his employment without good cause related to his work and that he was not entitled to compensation benefits. Landrum appeals to this court.

In brief Landrum argues that he did not leave his work voluntarily and is thus not disqualified from receiving compensation benefits.

Section 25-4r-78, Code 1975, provides, in pertinent part, as follows:

“An individual shall be disqualified for total or partial unemployment:
“(2) Voluntary departure from work.— If he has left his most recent bona fide work voluntarily without good cause connected with such work.”

The sole issue before this court is whether Landrum left his work voluntarily.

Although incarceration in jail has never been construed by an Alabama appellate court to constitute voluntary departure from work, it has been held that unemployment compensation benefits are available only to those employees who leave their employment through no fault of their own. Department of Industrial Relations v. Stone, 36 Ala.App. 16, 53 So.2d 859 (1951). In Department of Industrial Relations v. Mann, 35 Ala.App. 505, 50 So.2d 780 (1950), the court said that: “[T]he Unemployment Compensation Law was enacted to relieve the consequences and vicissitudes of unavoidable and enforced unemployment which was not brought about by the voluntary creation of the worker.”

It is, undisputed that Landrum was incarcerated in the Montgomery city jail for a period of ninety days. The record suggests that the incarceration was for the failure to pay an accumulation of parking tickets. When Landrum failed to appear for work after May 13, 1981, his employer hired someone else to do his job.

Landrum’s failure to report for work after May 13,1981 at the Montgomery Country Club was due to his being in jail for violation of the law. Such absence from work was brought about solely through his voluntary act. The absence from work was the “fault” of Landrum. He could have avoided jail and also the loss of his job by not violating the law. His loss of work was directly attributable to his “voluntary” act. See Carter v. Caldwell, 151 Ga.App. 687, 261 S.E.2d 431 (1979); Michalsky v. Unemployment Compensation Board of Review, 163 Pa.Super. 436, 62 A.2d 113 (1948).

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.