author: DAN M. LEE, Justice,

text:
    Waddell LANEY v. STATE of Mississippi.
    No. 53690.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Dec. 8, 1982.
    John E. Shaw, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   DAN M. LEE, Justice,

for the Court:

Waddell Laney, appellant, was indicted, tried and convicted for the capital murder of Charles Busby Smith, deputy sheriff of Montgomery County who was acting within his official capacity. At the conclusion of the sentencing phase of Laney’s trial, the jury sentenced him to death. Finding error, we reverse and remand for a new trial.

The facts of this case are not disputed. On January 12, 1981, Sheriff Billy Costilow went to the residence of Waddell Laney to serve a lunacy writ issued by a chancery court and deliver Laney to the Region Six Mental Health Center in Greenwood. Sheriff Costilow was accompanied by Deputy Sheriff Charles Busby Smith. Upon arrival, the officers knocked on Laney's door. They also called out several times, but no one answered. Thinking nobody was home, the officers walked off the porch and into the yard. Once they were in the yard, Laney came from behind the house, carrying a .22-caliber rifle in his left hand and a Kaiser blade in his right. Sheriff Costilow and Laney walked toward each other. The sheriff informed Laney of the writ and their purpose, which was to take him to the doctor for some mental health treatment. Laney, replying that there was nothing wrong with him, turned and walked toward his house. He suddenly wheeled around and started shooting at the officers. Sheriff Costilow was seriously injured; Deputy Smith was killed. Following the shooting, Laney ran, dropping the Kaiser blade, but holding on to the gun. A short time later, Laney was arrested by Jerry Butler, a Mississippi highway patrolman.

On March 31, 1981, Laney was indicted for capital murder in the shooting death of Deputy Sheriff Smith. Laney invoked the insanity defense.

The issue presented in this case is whether Laney was afforded a fair trial in light of the fact that a juror, Mrs. Ruth Brister, did not completely and fully respond to questions asked during the voir dire examination. During this examination, defense counsel asked the following questions: “Is there anybody on the panel related by blood or marriage to any present law enforcement person in Montgomery County, or anywhere else?”; and, “Is there any other member related by blood or marriage to any law enforcement officer or has any member ever been employed by law enforcement, at any time in the past?” Two jurors answered affirmatively and were excused. Mrs. Brister did not answer.

During a hearing on the motion for a new trial, it was learned that one of Mrs. Bris-ter’s brothers had been Deputy Sheriff and Sheriff of Montgomery County approximately twenty years before the trial, and also had been employed by the State Fire Marshal’s office until a short time before the trial; that another brother was, at the time of trial, an investigator with the Mississippi Highway Patrol, and that her nephew was currently serving as a Mississippi highway patrolman. Despite this, the circuit court judge denied Laney’s motion for a new trial. This was error.

Because of the nature of this case, we must first deal with the standard of review to be employed. We recently stated in Irving v. State, 361 So.2d 1360 (Miss.1978), the following:

We recognize that thoroughness and intensity of review are heightened in cases where the death penalty has been imposed. Augustine v. State, 201 Miss. 731, 29 So.2d 454 (1947). What may be harmless error in a case with less at stake becomes reversible error when the penalty is death. Forrest v. State, 335 So.2d 900 (Miss.1976); Russell v. State, 185 Miss. 464, 189 So. 90 (1939). (361 So.2d at 1363) (emphasis ours).

With this guidepost, we now turn to the question of whether the court committed reversible error in failing to grant Laney a new trial upon undisputed proof of juror Brister’s law enforcement kinships.

In Odom v. State, 355 So.2d 1381 (Miss.1978), a rule was established to be used when a juror failed to respond to questions posed during voir dire examination. We held:

[Wjhere, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial and the court’s judgment will not be disturbed unless it appears clearly that it is wrong. (355 So.2d at 1383) (citations omitted—emphasis ours).

Application of this rule has been made since our decision in Odom. See Atkinson v. State, 371 So.2d 869 (Miss.1979) (reversal resulted because a juror, sitting on a case involving manslaughter by culpable negligence arising from automobile collision, failed to affirmatively answer inquiry concerning whether any members of a juror’s family had died as the result of an automobile accident, when in fact two close relatives of a juror had been killed in separate automobile accidents); Brooks v. State, 360 So.2d 704 (Miss.1978) (reversal caused by a juror failing to admit that a member of her immediate family was the recent victim of a crime); and Dase v. State, 356 So.2d 1179 (Miss.1978) (conviction for murder reversed due to a juror not responding to a question asked as to whether any members of the juror’s family had ever been a victim of a crime, and this juror’s son had been stabbed to death approximately one month prior to trial).

We also recognized in Odom that “it is readily evident that no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoc basis considering the facts then before the court.” 355 So.2d at 1383. In the instant case, the trial was held in the county in which Sheriff Costilow and Deputy Smith served. Because this is a rural county in which most of its residents were surely aware of the shooting of the sheriff and the killing of his deputy, the air was no doubt charged with emotion. Finally, the fact that Mrs. Brister was related to three law enforcement officers would, under the circumstances, be a very crucial issue. Defense counsel would certainly have exercised a challenge to her service on the jury.

It is clear that the three-pronged Odom test was answered in the affirmative. As to the fourth, it is inescapable that prejudice to Laney in selecting the jury reasonably could be inferred from Mrs. Brister's failure to respond when viewed in the light of the heightened review standard used in death penalty cases, which leads us to hold that a new trial should be ordered.

We deem it necessary, however, to discuss the insanity defense, another issue presented in this case. This Court has for many years adhered to the M’Naghten Rule as the test of insanity. Our earliest cases dealing with insanity are Bovard v. State, 30 Miss. 600 (1856); and Cunningham v. State, 56 Miss. 269 (1879). This test is as follows:

“[T]o establish a defense on the ground of insanity, it must be clearly proved that at the time of committing of the act the accused was laboring under such a defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it that he did not know that he was doing what was wrong.”
(Harvey v. State, 207 So.2d 108, 111 (Miss.1968), quoting M’Naghten’s Case, 8 Eng.Rep. 718 (1843).

In Hill v. State, 339 So.2d 1382 (Miss.1976), cert. den. 430 U.S. 987, 97 S.Ct. 1689, 52 L.Ed.2d 384 (1977), we recognized:

As has been done many times in prior criminal cases where the issue of the defendant’s sanity is raised, we are urged to abandon the M’Naghten Rule as to the determination of criminal responsibility. In place of the M’Naghten Rule, we are asked to accept and adopt the rule set forth in 4.01 of the American Law Institute’s Model Penal Code (1962). That section would relieve a defendant of responsibility for criminal conduct:
..; if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
Such a rule in effect would provide for the acquittal of those who commit criminal acts and assert that they did such act or acts because of so-called uncontrollable urges or irresistible impulses. Though the M’Naghten Rule may not be a perfect means to test criminal responsibility, as this Court (including this writer) has said before, it is the safest of the rules proposed. M’Naghten better protects society’s needs than the American Law Institute’s proposed rule, supra, which the court has examined in earlier cases and found to be unsatisfactory. In making our decision we have carefully read and considered the views expressed in United States v. Freeman, 357 F.2d 606 (2d Cir.1966), and do not consider it persuasive. Language in that opinion which says of M’Naghten that “the expert is thereby compelled to test guilt or innocence by a concept which bears little relationship to reality” is simply not an expression of logic. Though M’Naghten may have had “Victorian origins” as said in Freeman, supra, we reject the thesis that it is not “grounded in reason” though admittedly the subjective aspects of sanity or insanity present difficult problems. (339 So.2d at 1385-86) (emphasis ours).

In Edmond v. State, 312 So.2d 702 (Miss.1975), it was stated:

This Court has recently (as it has done many times in the past), rejected the argument that one may escape responsibility for criminal acts done under some so-called uncontrollable urge or impulse. Myrick v. State, 290 So.2d 259 (Miss.1974); Jones v. State, 288 So.2d 833 (Miss.1974). Admittedly the M’Naughten (sic) test of criminal responsibility may not be a perfect means to test sanity of one charged with crime, but no better solution has been offered. Thus the test in this state remains the ability of the accused to realize and appreciate the nature and quality of his deeds when committed and his ability to distinguish between right and wrong.... (312 So.2d at 704).

Finally, in Harvey v. State, 207 So.2d 108 (Miss.1968), this Court, in remaining bound to the M’Naghten Rule, concluded:

[Ujntil the troubled waters of legal tests for insanity have become more calm and until the courts have charted some safe course and have settled upon some acceptable solution for a better test, this Court has decided to continue, “for the time being,” to submit the question of criminal responsibility on the issue of insanity to the jury by the time-tested M’Naghten rule. The time-tested way is the safe way, and the safe way is the best way.... (207 So.2d at 115) (citations omitted — emphasis ours).

In the instant case, we are not swayed to abandon the use of the M’Naghten test of insanity, and we hold that M’Naghten remains the law in this state with regard to the insanity defense.

Because we have concluded that the lower court committed reversible error when it denied Laney a new trial, his conviction and sentence must be reversed. We decline to address the remaining assignments of error since Laney must be retried.

Based on the foregoing, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOY NOBLE LEE, BOWLING and PRATHER, JJ., concur.

HAWKINS, J., took no part.

      . It was learned at oral argument that defense counsel still had five peremptory challenges remaining after the jury was selected, in addition to the unlimited number of challenges for cause.


source: Caselaw Access Project

author: PRATHER, Justice, for the Court:

license: Public Domain

text:
    Charles WRIGHT, et al. v. MAYOR AND COMMISSIONERS OF the CITY OF JACKSON, MS & Dr. Michael R. Smith.
    No. 53849.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Rehearing Denied Dec. 1, 1982.

      R.E. Swindoll, Sr., Jackson, for appellants.
    Stennett, Wilkinson & Ward, James A. Peden, Jr., Gay Dawn Horne, Howard C. Ross, Jr., Jackson, for appellees.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice, for the Court:

This case involves an appeal by neighboring landowners who live adjacent to a 44.5 acre tract of undeveloped land on the south side of U.S. Highway 80 west within the City of Jackson, seeking to reverse a court order rendered by the Circuit Court of the First Judicial District of Hinds County. The court order upheld the Jackson City Council’s decision to rezone the 44.5 acre tract from R-2 (Residential, single and two-family) classification to C-3 (Commercial), C — 1 (Commercial Restricted) and R-3 (Residential-Townhouse and Zero lot line) classifications.

The assignments of error raised on appeal are:

(1) That the Circuit Court erred in failing to apply the doctrine of res judicata which would bar consideration of the rezoning request.

(2) That the Jackson City Council and the Circuit Court erred in not affirming the Jackson Zoning Committee and the City Planning Board’s recommendations to deny the application for rezoning.

(3) That the Circuit Court erred in affirming the Jackson City Council’s action to rezone the subject property since there had been no showing of both substantial change in the neighborhood and a public need for such rezoning.

The subject property of the present rezoning application was formerly owned by one Richard R. Stock. In 1978, Stock filed with the City of Jackson an application to rezone the subject property to classifications of C-3 (General Commercial) and R-3 (Townhouse and Zero Lot Line Residential). At that time, the City Planning Board’s recommendation that the application be denied was upheld by the Jackson City Council, and in turn, was affirmed by the Circuit Court of the First Judicial District of Hinds County.

The present case began when the appel-lee, Dr. Michael R. Smith, as the new owner of the subject property, filed a rezoning application with the other appellee, the City of Jackson, on June 15, 1981. On July 9, 1981, a fact-finding hearing was conducted by the Jackson Zoning Committee. On the basis of facts gathered at that hearing, the Zoning Committee and the City Planning Board recommended that the City Council deny the rezoning application. However, the Jackson City Council found that the proposed rezoning “would be in keeping with sound land use practice and to the best interest of the city”, and by a vote of two to one adopted an ordinance rezoning the subject property to Dr. Smith’s requested classifications.

I.

The appellant’s first contention is that the circuit court erred in failing to apply the doctrine of res judicata to the present case. The common law doctrine of res judicata is designed to prevent relitigation by the same parties of the same claims or issues. City of Jackson v. Holliday, 246 Miss. 412, 149 So.2d 525 (1963). See R. Khayat and D. Reynolds, Zoning Law in Mississippi, 45 M.L.J. 365, 390-91 (1974) (brief summary of law concerning doctrine of res judicata in zoning cases). Generally, four identities must be present before the doctrine of res judicata will apply to bar relitigation: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the action, and (4) identity of the quality or character of a person against whom the claim is made. Cowan v. Gulf City Fisheries, Inc., 381 So.2d 158 (Miss.1980). Thus, the doctrine has not been applied where the subsequent petition to rezone requests a different or more restrictive classification. See City of Jackson v. Ridgway, 261 So.2d 458 (Miss.1972) (material difference between subsequent request to rezone to Residential A-2 classification and first request to rezone to Residential A-3 classification); Yates v. Mayor and Commissioners of City of Jackson, 244 So.2d 724 (Miss.1971) (same).

In the instant case, Dr. Smith’s proposal included some rezoning of the subject property in the southeast area to C-l Restricted Commercial. Mr. Stock’s petition requested that the same area be rezoned to C-3 General Commercial. Thus, following the precedent of the Ridgway and Yates cases above, the doctrine of res judicata is inapplicable and does not bar consideration of Dr. Smith’s application to rezone.

II.

The appellants’ second contention is that the Jackson City Council and the Circuit Court should have been bound by the Zoning Committee and Planning Board’s, recommendations to deny the rezoning request. This precise legal question has been raised in our Court before in a similar factual situation. In City of Jackson v. Sheppard Investment Co., 185 So.2d 675 (Miss.1966) the Court stated:

The Zoning Committee of the City Planning Board is an advisory body only. It can recommend to the City Council what it thinks should be done, but it cannot pass finally on a petition to rezone. Zoning is an exercise of the police power by the governing authority, in this ease, the City Council of the City of Jackson. [185 So.2d at 676].

Thus, a City Council must ultimately have the final say in municipal zoning matters. See also City of Jackson v. McMurry, 288 So.2d 23 (Miss.1974) (ultimate legislative function of zoning remains in City Council despite existence of subordinate advisory committee); Delta Construction Company of Jackson v. City of Pascagoula, 278 So.2d 436 (Miss.1973) (City Planning Commission and Board of Zoning Adjustment and Appeals are advisers as to planning and zoning, but final decision is left to City Council); Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964) (City Commission has legislative function of zoning, and it may or may not accept recommendations offered by board of review). In light of this overwhelming precedent, it should be readily apparent that the Jackson City Council was not bound by its advisory committees.

III.

The appellants’ final contention is that there had been an insufficient showing of both substantial change and public need for the rezoning. On prior occasions, our Court has recognized the presumption that comprehensive zoning ordinances adopted by municipal authorities are well planned and adopted to be permanent. Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736 (Miss.1980); Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968). Therefore, to justify a rezoning, the burden of proof is upon the applicant to show either: (1) that there was a mistake in the original zoning, or (2) that the character of the neighborhood had changed substantially and that there was a public need for rezoning the property. City of Oxford v. Inman, 405 So.2d 111 (Miss. 1981); Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979). See generally J. Gladden, Jr., The Change or Mistake Rule: A Question of Flexibility, 50 M.L.J. 375 (1979) (general criticism of Court’s use of above test). Furthermore, the applicant must prove the requisite elements by clear and convincing evidence. City of New Albany v. Ray, 417 So.2d 550 (Miss.1982); Bell v. City of Canton, 412 So.2d 1179 (Miss.1982).

In the case at bar, the applicant failed to show a public need. Dr. Smith claimed that he could improve the tax base of the City by constructing a new shopping mall and professional offices on the subject property. However, an architectural and planning expert testified as to several reasons why there was no public need for this rezoning. He stated that there were two shopping centers near the subject property, and that a third shopping center had recently been closed due to the competition. In fact, the Metro Center, approximately one and one-half miles from the subject property, is a “regional” center capable of serving 100,000 to 200,000 residents, a population which would encompass the entire metropolitan area of Jackson. Additionally, there were several other commercial areas near the subject property’s neighborhood which were not currently being used. The contestants also provided a petition containing 133 signatures of neighbors in opposition to the rezoning application. They argued that there was no need for an additional shopping center, nor did they believe that these residential areas could handle the additional traffic.

With regard to the claim of substantial change in the subject property’s neighborhood, the appellees have also failed to sustain their burden of proof. The only change of any consequence in the neighborhood was a doubling of an already existing industrial zone to the northwest of the subject property. (See attached map at end of opinion showing neighborhood in question). Another change, the construction of a fire station, was a compatible construction with residential or commercial areas, and does not constitute a substantial change. The other changes listed by the applicants’ counsel did not occur in the subject property’s neighborhood. The fact that Interstate Highway 220 had recently been constructed two miles away, or the fact that the nearby City of Clinton had doubled in population in the last ten years, has no relevance with regard to the neighborhood in question.

Since the applicant has failed to prove by clear and convincing proof that (1) there has been a substantial change in the neighborhood and (2) a public need for such rezoning, we must reverse the order of rezoning granted below.

REVERSED AND RENDERED.

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


text:
    Chester W. CRAIN v. PENDLETON DETECTIVES OF MISSISSIPPI, INC.
    No. 53473.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    Rehearing Denied Dee. 8, 1982.
    Thomas, Price, Alston, Jones & Davis, Thomas W. Tardy, III, James T. McCafferty, III, Jackson, for appellant.
    Nora Frances Stone McRae, William A. Pyle, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

AFFIRMED.


text:
    Herbert A. DOWNEY, Jr. and Frances Downey v. James R. ANDREWS, Sr.
    No. 53528.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Rehearing Denied Dec. 8, 1982.
    Varner, Parker & Sessums, David M. Ses-sums, Vicksburg, for appellant.
    Ellis, Braddock & Bost, William M. Bost, Jr., Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Nat Bullard, Chancellor.

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

AFFIRMED.


author: BROOM, Justice,

text:
    Robert EIDT v. CITY OF NATCHEZ.
    No. 53487.
    Supreme Court of Mississippi.
    Nov. 10, 1982.

      Johnson & Johnson, Forrest A. Johnson, Jr., Natchez, for appellant.
    Walter Brown, Joseph S. Zuecaro, Natchez, for appellee.
    Before WALKER, P.J., BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Back pay due Robert Eidt for the time he was improperly discharged as a fireman for the City of Natchez is featured by this case appealed from the Circuit Court of Adams County, the Honorable Edwin 0. Benoist, Jr., circuit judge. Previously on Eidt’s first appeal, our decision was that his discharge was improper and that he should be reinstated with back pay less what he “has or reasonably should have earned” while discharged. Eidt v. City of Natchez, 382 So.2d 1093 (Miss.1980). Upon remand, based upon our decision, the Natchez Civil Service Commission heard the matter and found that had Eidt not been terminated as a fireman, his earnings would have been $26,-452.84. The commission further found that during the period of his wrongful discharge he reasonably should have earned $13,-100.00. Thus the commission ordered $13,-100 be deducted from the $26,452.84, and awarded him the difference between the two figures: $13,352.84. Eidt appealed to the circuit court, which court affirmed the award upon condition of a $3,000 additur, making a total judgment of $16,352.84. Eidt appeals here the second time, and we reverse as to the amount of Eidt’s recovery.

Arguments asserted by Eidt may be summarized as follows: (1) the circuit court erred in ordering remand of the ease to the Natchez Civil Service Commission in the event the additur was not accepted, (2) the commission erred in making a determination of the amount of income that Eidt had or reasonably should have earned from March 18, 1978, through October 11, 1978, (3) the commission erred in taking judicial notice of and accepting as evidence certain “factual data” not properly in the record, and (4) the commission’s findings were not supported by substantial evidence but were arbitrary, capricious and contrary to all the evidence presented at the hearing.

Natchez cross-appeals and argues that the circuit court erroneously ordered the $3,000 additur.

On the first appeal we ordered the case remanded and subsequently the following events have transpired: Eidt continued attending college (nights) as he previously did while a fireman with consent of his fire chief.

On May 19, 1980, Eidt’s attorney wrote the Natchez Civil Service Commission requesting Eidt’s reinstatement and payment of back wages owed by the City in accordance with our prior decision, Eidt v. City of Natchez, supra. Approximately one month later, on June 12, 1980, the Commission requested that all of Eidt’s pay records be forwarded to the city attorney’s possession. On July 8, 1980, the city notified Eidt to return to work at 6 o’clock the following morning and placed him upon six months’ probation. The next day, following a vigorous complaint by Eidt’s attorney with regard to the lack of notice and the unwarranted six months’ probation, the city modified their return-to-work order. On July 17, the city attorney requested that Eidt, through his attorney, submit a proposal with regard to the subject of back wages owed Eidt by thq city. On August 18, 1980, Eidt complied with this request and furnished supporting documentation (income tax returns).

After waiting another month, Eidt wrote a letter to the Civil Service Commission demanding a hearing, and noting that approximately five months had elapsed since this Court’s April 30, 1980 mandate. On September 23, counsel for the commission notified Eidt’s counsel that a hearing would be held September 29, 1980. This notice described the purpose and function of the hearing:

At that time you were asked to attend, to have your client present and to present evidence or testimony as you see fit.
It will be the function of the Commission at this hearing to determine how much income Eidt had or reasonably should have earned since his discharge on April 18, 1978 until his reinstatement on July 9, 1980, which amount, shall be deducted from the back pay which he would have earned from the City of Natchez during the same period. (Emphasis added).

At the hearing, the only witness for the commission was city clerk Martha Brown. She testified that for the period between March 18, 1978, and June 30, 1980, Eidt’s wages from the Natchez Fire Department would have totaled $26,188.91. No other witnesses or evidence were adduced by the commission.

Eidt presented testimony of three witnesses. Mr. William C. McGehee, Eidt’s attorney during the original litigation on the subject of his wrongful discharge, testified that Eidt had asked him for assistance in finding work during the period of time involved. McGehee testified that he had indeed tried to help Eidt through various contacts in the business community, but had no success. According to McGehee, adverse publicity on the subject of Eidt’s discharge had placed Eidt in a bad light for employment purposes.

Eidt himself took the stand next and introduced his tax records for the years in question showing a total reportable income of $3,999. He testified as to his efforts to find employment during the period of time and indicated a notable lack of success. Eidt further testified that the only way he and his wife had been able to survive was by borrowing money from his parents and the bank.

Eidt’s wife then took the stand and confirmed her husband’s efforts at finding work. After Mrs. Eidt’s testimony, Eidt rested his ease and the hearings were adjourned. On October 14, 1980, the commission issued an order finding:

(1) Eidt’s actual earnings for the period of time in question totaled $3,999.50 (per income tax returns); (2) Eidt had not checked with the State Employment office, but had put in applications at various places of employment and had cheeked the want ads in the newspaper; (3) Eidt was of excellent health and above average intelligence; (4) Adams County, Mississippi, is a highly industrialized urban county in which average wage data secured from the Mississippi Employment Security Commission showed the following:

AVERAGE WAGES PAID 1978
Annual Weekly
Adams County $11,040 $212
Statewide $ 9,320 $179
AVERAGE WAGES PAID 1979
Annual Weekly
Adams County $12,160 $233
Statewide $10,200 $196

(5) In Adams County, Mississippi unemployment for white males for the year 1978 was 4.8%, and for the year 1979 was 3.9%; (6) Salary Eidt would have earned with the Natchez Fire Department totaled $26,-452.84; (7) The amounts Eidt should have earned during the period of his wrongful discharge were as follows: (a) from March 19, 1978 through December 31, 1978 — $60 a week; (b) from January 1, 1979 through December 31, 1979 — $140 a week; (c) from January 1, 1980 through May 27, 1980— $160 a week; Total Robert Eidt should have earned $13,100 during the period of time of his wrongful discharge from the Natchez Fire Department.

The commission’s order concluded:

The findings made herein are based on the evidence adduced at the hearing ... at which time Mr. Eidt and his counsel testified and offered evidence, upon the factual data obtained from the Mississippi Employment Security Commission, and upon the facts and other data weighed by the Commission as to the age, race, educational level and general background of Robert Eidt and of the job opportunities, wage scale and business climate in Adams County, Mississippi prevailing during the period of time in question.

On October 24, 1980, Eidt notified the commission of his intentions to appeal its decision to the circuit court, and requested transmission of the record of the hearings before the commission. On February 10, 1981, Eidt filed a petition for a writ of mandamus to compel the certification and filing of the requested transcript with the circuit court. On March 2, 1981, the transcript of the proceedings before the commission was supplied to the circuit court.

On August 14, 1981, the circuit court issued an order affirming the decision of the Natchez Civil Service Commission upon the condition of an additur of $3,000. The court indicated that in the event the addi-tur was not accepted, the cause was to be remanded for hearings before the Natchez Civil Service Commission “for further deliberation and determination and for the specific purpose of the formal admission of evidence concerning official statistics of the Mississippi State Employment Service and to allow the appellant to make such cross-examination as he deems appropriate with respect thereto.”

DID THE COMMISSION ERR IN CONSIDERING BY JUDICIAL NOTICE DATA NOT INTRODUCED INTO EVIDENCE AT THE HEARING? In essence, Eidt contends that the findings of the commission should have been based solely upon evidence adduced at the September 29, 1980, evidentiary hearing. He asserts that the commission’s findings of fact as to the average wage and the level of unemployment in Adams County have no basis whatsoever in the record, and accordingly he contends that the findings of the commission are arbitrary, capricious and unsupported, by substantial evidence.

Natchez responds to this charge by contending that the statistical information as to unemployment levels and average weekly wages were subjects which were appropriate for judicial notice by the commission. Because such facts are capable of being judicially noticed, Natchez asserts that such facts were properly included in the formulation of the basis for the commission’s determination of the amount of money that Robert Eidt earned or should have earned.

In weighing the respective validity of each of these positions, we briefly review the nature and function of “judicial notice”. In his revision of Wigmore’s treatise on Evidence, Professor Chadbourn offers the following description of what is meant by the term:

There are various senses in which the term judicial notice is used. In the orthodox sense noted it signifies that there are certain facta probanda (§2 supra) or propositions in a party’s case, as to which he will not be required to offer evidence; these will be taken for true by the tribunal without the need of evidence, either because they are notoriously known or capable of unquestionable demonstration (§ 2571 infra). This general view of judicial notice is simple, natural enough, and traditional.

9 Wigmore, Evidence § 2565 (Chadbourn rev. 1981), at 694.

In essence judicial notice is a “judicial shortcut, doing away, in the case of evidence, with the formal necessity for evidence, there being no real necessity for it.” 31 C.J.S. Evidence, § 6, at 823. This view of judicial notice has found frequent application in the courts of this state. Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7 (1945), states that judicial notice takes the place of evidence and is of equal force with evidence- formally presented at the trial. Basically when a court takes judicial notice of a fact, that notice dispenses with the necessity of adducing proof as to matters of common knowledge. Gulf, M & N R. Co. v. Weldy, 193 Miss. 59, 8 So.2d 249 (1942). In view of this preemptive nature of judicial notice as dispensing with the necessity for the production of evidence (generally thought to be the main purpose of any trial or hearing), this Court has recognized a responsibility, which is coextensive with this power, of exercising judicial notice with extreme caution:

But the courts are in general agreement that the power to take judicial notice is to be exercised with caution and with particular care to see to it that the fact to be noticed comes safely within the allowable limitations, and that doubts upon the subject must be resolved in the negative. 23 C.J., p. 173.

Luckett v. La. Oil Corp., 171 Miss. 570, 158 So. 199 (1934), at 575.

Also to be noted are the types of facts susceptible of being “judicially noticed.” Turning again to Professor Chadbourn:

2. Specific Kinds of Pacts Noticed
§ 2571. Scope of principle. The scope of facts that may be noticed includes:
(1) Matters which are actually so notorious to all that the production of evidence would be unnecessary;
(2) Matters which the judicial function supposes the judge to be acquainted with, in theory at least;
(3) Sundry matters not included under either of these heads; they are subject for the most part to the consideration that though they are neither actually notorious nor bound to be judicially known, yet they would be capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
It is hardly feasible, however, in enumerating those matters to follow strictly this or any other classification.

9 Wigmore, supra, § 2571.

It is this third category which has seen particularly frequent application in Mississippi courts. McGill v. City of Laurel, 252 Miss. 740, 173 So.2d 892 (1965), recognized that judicial notice was properly taken of “that which is commonly known.” Id., at 764, 173 So.2d 892. This category of the “commonly known” has been held to include statistical facts of reliable origin, such as a federal or public census. Dow v. Town of D’Lo, 169 Miss. 240, 152 So. 474 (1934); Brown v. Reeves, 129 Miss. 755, 92 So. 825 (1922).

Judicial notice has been employed in the courts of this state with considerable liberality as regards the type of facts which may be judicially noticed. Atlantic Life Insurance Company v. Klotz, 182 Miss. 243, 181 So. 519 (1938). In the instant case, Natchez contends that the unemployment figures and average wage data obtained from the Mississippi State Employment Service, an arm of the Mississippi Employment Security Commission, represented facts of such common knowledge, or were so readily susceptible of rapid verification and unquestioned authenticity as to be appropriate for judicial notice. Thus it would seem reasonable that the statistics themselves, as a type of information, normally would be appropriate for judicial notice. However, we have concluded that the procedural aspects of the method by which the Civil Service Commission sought to take “judicial notice” of the data in question constitutes reversible error.

Armstrong v. Jones, supra, held that the judicial shortcut of judicial notice must give way at the point at which such a “shortcut” impinges upon the procedural safeguards inherent in our judicial process. “The right of a court to act upon that which is in point of fact known to it must be subordinate to those requirements of form and orderly communication which regulate the mode of bringing controversies into court and of stating and conducting them.” Id., at 639, 22 So.2d 7, quoting 20 Am.Jur. § 17, at 48.

The two devices which form the irreducible minimum necessary to comport with our traditional notions of due process are (1) meaningful notice, and (2) a hearing before a neutral tribunal where one may present his side in a controversy. Here the commission’s actions in taking judicial notice of such facts by such means as to effectively preclude any response from Eidt, clearly impinges upon both these requirements of due process and fairness. Eidt had no meaningful notice that the data was to be considered, and was precluded from questioning the accuracy of the board’s transcription of the data. He was not allowed to question the relevance of this particular data to the issue at hand. He was cut off from putting on evidence to show that his situation sufficiently differed from the “average” figures so as to render them inapplicable. He was precluded from knowing the criteria which were being employed in the determination of how much he should have earned during the period of his wrongful discharge.

Fairness and due process require that whenever a court at the trial level is contemplating taking judicial notice of a particular fact or facts as a basis for calculations and fact findings, notice must be afforded to the party or parties who will be affected by the taking of such notice. Such a position finds compelling support in both the federal rules of evidence and in the majority of our sister states. See Federal Rule of Evidence 201(e); See also, Arizona Rule of Evidence 201(e) 1977); Ark.Stat. Ann. § 28-1001, Rule 201(e) (1979); Colorado Rule of Evidence 201(e) (1980); Maine Rule of Evidence 201(e) (1976) (see advisor’s note); Michigan Rule of Evidence 201(d) (1978).

Affording a party the opportunity to be heard whenever a tribunal is contemplating taking judicial notice of a fact is of particular importance in the realm of administrative proceedings. Britton and Koontz First National Bank v. Biglane, 285 So.2d 181 (Miss.1973); Game and Fish Commission of the State of Mississippi v. Marlar, 206 So.2d 628 (Miss.1968). This can be seen in the broad discretion which administrative agencies have in the areas of both factfinding and of the development of criteria to be used in making administrative decisions. The importance of the opportunity to be heard with respect to judicial notice is emphasized in the Federal Administrative Procedures Act, 5 U.S.C. § 556(e) (1976). Likewise, the Revised Model State Administrative Procedures Act (1961), 14 U.L.P.A. § 10(4) (1981) states:

Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise, of the material noticed including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed.

This basic concept of notice and an opportunity to be heard with regard to the use of judicial notice in administrative proceedings is consistent with the fundamental notion, long recognized by this Court, that the only evidence which will be considered by this Court on appeal is evidence which has a substantial basis in the record. Recognizing the peculiar expertise of administrative agencies when acting within their proper sphere, we have consistently refused to overturn any administrative agency’s finding based upon substantial evidence. Mississippi State Tax Commission v. Package Store, Inc., 208 So.2d 46 (Miss.1968); Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351 (1959); Cobb Brothers Construction Company v. Gulf, M. & O.R.R. Co., 213 Miss. 706, 57 So.2d 570 (1952); Mississippi Unemployment Compensation Commission v. Avent, 192 Miss. 85, 4 So.2d 296 (1941).

Accordingly, the scope of judicial review of the findings and actions of an administrative agency is limited to the four aspects set forth in Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969):

The appeal is a limited one, however, since the courts cannot enter the field of the administrative agency. The court will entertain the appeal to determine whether or not the order of the administrative agency (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. This rule has been thoroughly settled in this state.

Id., at 665.

We have imposed one pole-star requirement upon administrative agencies when hearing a “contested case” [See Miss. Code Ann. § 25-43-3(b) (Supp.1981)]: any decision of any administrative board or agency must be based upon substantial evidence appearing in the record.

In Love v. Miss. St. Bd. of Veterinary Examiners, 230 Miss. 222, 92 So.2d 463 (1957), the Board of Veterinary Examiners in considering an application for a veterinary license heard testimony from the applicant, four witnesses, and the applicant’s attorney, supported by additional affidavits. No evidence was offered at the hearing in opposition to the granting of such license. After the board refused to grant the applicant his license, the chancellor set aside the board’s order denying the applicant’s license. This Court affirmed the chancellor’s position that he could consider only evidence legally before the board. We stated that the chancellor correctly rejected a committee report

which contained statements and conclusions decidedly unfavorable to the granting of a license to the appellant. The report was filed on June 21,1955, the day on which the Board entered its final order rejecting the appellant’s application. It was not shown that a copy of the report had been delivered or mailed to the appellant or his attorney prior to the filing of the report; and it was not shown that the report was presented to the Board in open session, or that the appellant was afforded an opportunity to examine the report or to offer any rebuttal evidence to refute the statements contained in the report.
The right to hearing in a case of this kind embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.
... But the evidence obtained by the committee and the committee’s report should have been filed with the Board’s secretary, and should have been presented to the Board in open session, during the hearing on the appellant’s application, and a reasonable opportunity should have been allowed to the appellant to examine the report and the affidavits and other exhibits filed with the report, and offer rebuttal evidence to contradict the statements contained in the report and the exhibits, if he desired to do so.

Id., at 230-31, 92 So.2d 463.

See also, State Board of Psychological Examiners v. Coxe, 355 So.2d 669 (Miss.1978); Thornton v. Wayne County Election Commission, 272 So.2d 298 (Miss.1973); Talley v. Board of Supervisors, 323 So.2d 547 (Miss.1975).

The City contends that in the case of Britton and Koontz First National Bank v. Biglane, 285 So.2d 181 (Miss.1973), this Court held that the only prohibition against the use of evidence not adduced at a hearing is a prohibition against the use of “secret knowledge” of an agency. Hence it is contended that publicly available information does not fall within this category.

In Britton, the comptroller’s report to the State Banking Board that a proposed bank met the “public necessity” requirement was challenged since the comptroller’s investigators were not make available for examination. Britton is distinguishable from the instant case in that the real “evidence” in question there was the comptroller’s “expert” opinion. That opinion, required by statute, was to be based on specific statutorily specified criteria. The appellant was offered the opportunity to introduce any evidence with respect to these criteria and declined. In Britton, the evidence being used in reaching a decision (the comptroller’s opinion and the criteria upon which it was based) was introduced at trial and the opportunity was afforded to offer evidence to the contrary. In the instant situation, no such opportunity was afforded.

In the instant case, there was no notice or any indication of any evidence to be considered by the Natchez Civil Service Commission other than that which was adduced at the hearing. Those facts adduced at the hearing are as follows: (1) Eidt’s salary with the Natchez Fire Department would have been approximately $26,000; (2) Eidt actually earned approximately $4,000; (3) Eidt made efforts at seeking employment; (4) Eidt did not go to the State Employment Office in search of employment.

This evidence is the only evidence which was adduced at the hearing, and such, is undisputed. Long recognized by this Court is the basic principle that undisputed evidence in the record is taken as true on appeal. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148 (1950), on sugg. of error 53 So.2d 69 (1951). The statistical data placed in the record after the hearing concluded was erroneously considered as basis of the commission’s order appealed from. Even if the statistical data were properly in the record, Eidt’s proof removed him from the “average” situation or “norm” of Adams County as asserted by the Commission.

Eidt also argues that the circuit court erred in its order modifying the civil service commission’s decision by entry of an additur or remand to the commission. In essence, Eidt argues that it was the circuit court judge’s responsibility to “affirm or reverse the judgment. If the judgment be reversed the circuit court shall render such judgment as the board or municipal authorities ought to have rendered... ”, pursuant to Miss.Code Ann. § 11-51-75 (1972). In so claiming, Eidt contends that the additur statute, Miss.Code Ann. § 11-1-55 (Supp. 1982) is inapplicable to an appeal from an administrative agency. By cross-appeal, Natchez also contends that the additur was error. We do not hold that an additur cannot be ordered in any or all cases appealed from an administrative tribunal, but § 11-51-75, supra, mandates the judge hearing the appeal to “affirm or reverse”. The additur cannot be upheld here because, absent the inadmissible judicially noticed statistical data erroneously considered by the commission, Eidt’s evidence as to his earnings and what he reasonably should have earned is not substantially contradicted. Thus the circuit court pursuant to § 11-51-75, supra, should have reversed the civil service commission’s order and rendered Eidt a judgment for his back pay due him less the total of what, according to relevant and properly adduced evidence, he earned and reasonably should have earned after he was terminated. Not only is the record devoid of substantial evidence supportive of the commission’s finding that Eidt reasonably should have earned $13,-100.00, the finding is lacking of any eviden-tiary support. Therefore, we must reverse the decision of the Adams County Circuit Court and render Eidt a judgment here for $26,452.84, the amount of the wages (back-pay) he would have been due as a member of the Natchez Fire Department, less $3,999.50, the amount, according to properly admitted evidence, of actual earnings and what he reasonably should have earned as shown by the evidence during the period. Accordingly, judgment will be rendered here for the net sum of $22,453.34.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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

      . It is interesting to note that the authority relied upon in the writ of mandamus to compel the transmission of the transcript is Miss.Code Ann. § 21-31-23, which provides that the commission “shall, within ten days, after the filing of such notice, make, certify and file such transcript with such court.” On appeal to this Court, Eidt steadfastly maintains in his brief that the previously cited section of the Miss. Code is applicable only in the proceedings directly involving wrongful discharge. Eidt maintains that the instant case is not controlled by the aforementioned section since it is an action solely for the determination of wages owed rather than for wrongful discharge. See also, Miss.Code Ann. § 11-51-75 (1972), which Eidt is presently asserting as the authority for his appeal in the instant case.


text:
    Edward B. CRUMPLER v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 53975.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    Rehearing Denied Dec. 8, 1982.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Christian T. Goeldner, Southaven, for appellant.

Carnathan & Malski, Michael Malski, Amory, for appellee.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


author: ROY NOBLE LEE, Justice,

text:
    Denise Mary Segrest ROSS v. David H. SEGREST.
    No. 53482.
    Supreme Court of Mississippi.
    Nov. 17, 1982.

      Thomas, Price, Alston, Jones & Davis, John H. Price, Jr., Mary C. Henkel, Jackson, for appellant.
    Minor F. Buchanan, Jackson, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

David H. Segrest filed a petition in the Chancery Court of Claiborne County, Honorable Frank W. Walden, presiding, to obtain child support for John Christopher Seg-rest from Denise M. Segrest Ross, his former wife. Mrs. Ross filed a cross-petition, seeking additional visitation rights with said child (12-year-old) and attorney’s fees. The lower court ordered Mrs. Ross to pay unto Mr. Segrest two hundred dollars ($200.00) per month for the support of John Christopher Segrest, declined to modify the custody decree, but defined visitation rights of Mrs. Ross with the child, and required the respective parties to pay their own attorney’s fees. Mrs. Ross appeals and assigns the following errors in the trial below:

(1) The chancery court erred in declining to grant more extensive visitation rights between appellant and John Christopher Segrest.

(2) The chancery court erred in ordering appellant to pay child support.

(3) The chancery court erred in permitting appellee to call appellant as an adverse witness and then remain in the courtroom to hear her testimony.

(4) The lower court erred in denying appellant counsel fees and in taxing costs against her.

Segrest was granted a divorce in the Chancery Court of Claiborne County from appellant, July 23, 1980, on the ground of adultery, and he was awarded custody of John Christopher Segrest, who was born May 26, 1970. Another child, Rebecca Elizabeth Segrest, was born of the marriage, but was not mentioned in that decree. We assume that at said time she was in custody of the appellant in the State of Texas. Appellant married Dr. Scott K. Ross in August, 1980, and they reside in Garland, Texas.

On January 6, 1981, a trial was held in the State of Texas for the purpose of fixing custody, visitation rights and support for Rebecca Elizabeth Segrest, and her father, David Segrest, was appointed her Managing Conservator and appellant was appointed Possessory Conservator of said child with certain specific visitation rights. Appellant was ordered to pay three hundred dollars ($300.00) per month for the support of that child.

Subsequently, in February, 1981, Segrest filed the petition in the Chancery Court of Claiborne County seeking support for John Christopher Segrest on the ground that appellant’s husband, Dr. Scott K. Ross, is a practicing physician in Rockwall, Texas, and makes an income of six thousand dollars ($6,000) to nine thousand dollars ($9,000) per month, and that, since Texas is a community property state, half of all such income received by appellant’s husband is considered to be the income and property of appellant and is subject to a claim for child support.

I.

Did the chancery court err in declining to grant more extensive visitation rights between appellant and John Christopher Segrest?

The record reflects that there had been previous difficulty between the parties over custody and visitation rights between appellant and Christopher. He testified in the absence of his parents and the chancellor had the opportunity to observe the child’s demeanor and personally hear what he said. The child expressed a fear to leave the State of Mississippi with his mother and stated that he preferred not to leave until he attained the age of fifteen (15) years or above, when he could protect himself. There was shown to be animosity between the child and Dr. Ross.

The chancellor granted appellant visitation rights with the child one weekend per month, to be exercised in the Segrest home, along with other visitation periods during holidays. No rights were granted for the child to visit appellant in Texas. While we are mindful that a court is not bound by the wishes of a child as to visitation rights with a parent, we are unable to say that the chancellor was manifestly wrong from the entire record in the fixing of visitation rights. Gladney v. Hopkins, 233 Miss. 342, 102 So.2d 181 (1958); Latham v. Latham, 233 Miss. 263, 78 So.2d 147 (1955); Kinnaird v. Lowery, 102 Miss. 557, 59 So. 843 (1912).

II.

Did the chancery court err in ordering the appellant to pay child support?

The appellant testified that, although she assisted Dr. Ross in his office at times, she was paid no salary and that she had no income. The record is absent any proof that she had a monthly or yearly income, and the appellee bases his claim for support on the community property law of the State of Texas. Appellant does own a one-half (Vá) interest in the home of the parties in Port Gibson, Mississippi, and owns certain items of personal property which the court ordered delivered unto her.

Texas Family Code Annotated § 5.22 (Vernon 1975) provides the following:

§ 5.22. Community Property: General Rules
(a) During marriage, each spouse has the sole management, control, and disposition of the community property that he or she would have owned if single, including but not limited to:
(1) personal earnings;
(2) revenue from separate property;
(3) recoveries from personal injuries; and
(4) the increase and mutations of, and the revenue from, all property subject to his or her sole management, control, and disposition.
(b) If community property subject to the sole management, control, and disposition of one spouse is mixed or combined with community property subject to the sole management, control, and disposition of the other spouse, then the mixed or combined community property is subject to the joint management, control, and disposition of the spouses, unless the spouses provide otherwise by power of attorney in writing or other agreement.
(c)Except as provided in Subsection
(a)of this section, the community property is subject to the joint management, control, and disposition of the husband and wife, unless the spouses provide otherwise by power of attorney in writing or other agreement. (Emphasis added).

Texas Family Code Annotated § 5.61 (Vernon 1975) states the areas of marital property liability:

§ 5.61. Rules of Marital Property Liability
(a) A spouse’s separate property is not subject to liabilities of the other spouse unless both spouses are liable by other rules of law.
(b) Unless both spouses are liable by other rules of law, the community property subject to a spouse’s sole management, control, and disposition is not subject to:
(1) any liabilities that the other spouse incurred before marriage; or
(2) any nontortious liabilities that the other spouse incurs during marriage.
(c) The community property subject to a spouse’s sole or joint management, control, and disposition is subject to the liabilities incurred by him or her before or during the marriage.
(d) All the community property is subject to tortious liability of either spouse incurred during marriage. (Emphasis added)

Segrest argues that, although appellant testified she was not paid income for assisting in her husband’s office, she should be considered as having earned income by reason of her presence there and that such earnings were co-mingled with earnings of her husband.

We have not been cited a Texas case deciding this particular question. Of course, Mississippi is not a community property state, and we must look to the Texas statutes and decisions for guidance. In our view, the Texas statutes exempt the personal earnings and income of Dr. Ross, although community property, from claims for support of appellant’s child by a former marriage. Therefore, we are of the opinion that the lower court erred in requiring appellant to pay $200.00 per month support for John Christopher Segrest.

III.

Did the chancery court err in permitting appellee to call appellant as an adverse witness and then remain in the courtroom to hear her testimony?

When the cause came on for trial, the sequestration rule was invoked and Segrest proceeded to present his case. He called the appellant as an adverse witness. The chancellor ruled that Segrest could remain in the courtroom, hear the testimony of appellant, and then be permitted to testify. Appellant contends that the chancellor erred in following such procedure and that Segrest should have testified first, or should have been removed from the courtroom while appellant was testifying.

Rule 3.04, Uniform Chancery Court Rules, follows:

Where the rule is invoked on the trial of any cause, the interested parties or their representatives who may be excused therefrom must testify before any .other witness is offered in his or their behalf or must retire from the courtroom during the examination of his or their witnesses. In case there be several complainants or defendants, the rule shall apply to them while their cocomplainants or codefend-ants are testifying unless their interest is antagonistic. A party shall no longer be under the rule after he has testified.

Griffith’s Mississippi Chancery Practice, § 562, at 584-585 (2d Ed. 1950) states:

The witnesses are thereupon called and are sworn, and if “the rule be invoked,” they are sent into ante-rooms out of the hearing of the case,37 except, of course, a party to a suit although a witness cannot be excluded, the extent of the rule as to parties being only that they are required to testify first before calling any other witness on their respective sides.

See Commercial Credit Equipment Corp. v. Kilgore, 221 So.2d 363, 367 (Miss.1969) and Holcomb v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281 (1953).

We are of the opinion that a correct interpretation of the rule, which lawyers and judges with trial experience have followed through the years requires that the plaintiff or complainant, when the rule is invoked, must either testify first or remove himself from the courtroom in order to testify later. This covers and applies to adverse witnesses. A defendant is permitted to remain in the courtroom and hear all witnesses for the plain tiff/complainant, but he must testify first at the beginning of his defense or remove himself from the courtroom while his witnesses testify. This does not apply in a criminal ease where the defendant may listen to all witnesses for the prosecution and himself and then testify as the last witness.

We think that the lower court committed error in declining to exclude Segrest from the courtroom while appellant was testifying, but we have carefully reviewed the evidence and are of the opinion that the error was harmless.

IV.

Did the lower court err in denying appellant counsel fees and in taxing costs against her?

The record indicates that appellant had a sizeable amount of personal property and owned a one-half interest in the home of the parties. In fact, she had pledged a certain piece of jewelry for her attorney’s fees. We are of the opinion that the lower court did not err in denying attorney’s fees to either party. This conclusion effectively disposes of the cross-appeal for attorney’s fees by Segrest.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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

      . The child was two and one-half (2’A) years old at that time.

      . Under the January 6, 1981, Texas decree, appellant is paying appellee $300.00 per month for the support of Rebecca Elizabeth Segrest.

       A party to a suit may not be excluded during the taking of testimony, but he may be required to testify first among his witnesses and declining to do so he may then be excluded. French v. Sale, 63 Miss. 386; Smith v. Team, 16 So. (Miss.) 492; Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693; Kline v. Hazzlerigg, 21 So. (Miss.) 11; Wilson v. Peacock, 111 Miss. 116, 71 So. 296.. ..

      . We recognize that the trial court, in the exercise of its sound discretion, may permit a witness to testify, notwithstanding the rule, where no prejudice results.


author: BEATTY, Justice. JONES, Justice EMBRY, Justice

text:
    Jesse Lee BELL v. Harlan CHISOM, et al.
    80-555.
    Supreme Court of Alabama.
    July 16, 1982.
    Rehearing Denied Nov. 5, 1982.

      Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    G. Sage Lyons and Victor H. Lott, Jr. of Lyons, Pipes & Cook, Mobile, for appellees Harland B. Chisom, Linwood L. Driskell, William Ketchum, Jim Taylor and Walter E. Hines.
    Leon G. Duke of Sintz, Pike, Campbell & Duke, Mobile, for appellees Robert Hope and Jerry Tew.
   BEATTY, Justice.

This appeal presents questions concerning the scope of the limited immunity for state employees outlined in DeStafney v. University of Alabama, Ala., 413 So.2d 391 (1982). These questions arise out of a suit by Jesse Bell against seven supervisory co-employees for failure to provide a safe place to work. We reverse the summary judgment in favor of the state employee-defendants and remand for reconsideration in light of De-Stafney, supra, which was decided after the parties’ submissions to this court.

Jesse Bell was a laborer with the Alabama State Docks Department (State Docks). In the complaint and his answers to interrogatories, he alleged his supervisors negligently or wantonly failed to provide a safe place for him to work in that he had to lift heavy loads in a cramped space while on unstable flooring. As a result he fell and suffered permanent injury. He received workmen’s compensation for about ten months before filing suit in November 1980. Named as defendants, in their individual and official capacities, were two cargo movement supervisors, a gang foreman, a warehouse manager, a docks warehouseman or “checker,” an assistant wharves and warehouses manager, and the director of the State Docks.

' All of the defendants moved for summary judgment on the ground that they each acted within the scope of their state employment and therefore shared the state’s immunity from suit. Bell did not oppose their affidavits that they acted within their authority, and the trial court granted summary judgment against Bell without opinion.

After Bell appealed, we decided DeStafney v. University of Alabama, supra, which held that state employees acting within their authority are generally subject to tort liability, unless their actions are privileged, part of a “discretionary function” or simply not negligent. Under this standard the materials considered by the trial court are insufficient to resolve disputes on material facts and enable judgment as a matter of law. Therefore we reverse and remand for application of the DeStafney criteria to each of the defendants. They will, of course, carry the burden of proof on this issue since immunity is an affirmative defense. See Green v. James, 473 F.2d 660 (9th Cir.1973).

The rule of substantive immunity for state employees which we adopted in De-Stafney, supra, is that expressed in the Restatement (Second) of Torts, § 895D, Public Officers (1974). The Restatement makes public officers subject to tort liability as a general rule but creates certain broad exceptions noted above. The exception potentially applicable here is set out in § 895D(3)(a), which affords immunity to public officers acting within the general scope of their authority when engaged in the exercise of a discretionary function. Since in DeStafney the defendant’s actions were clearly nondiscretionary, we there had little occasion to discuss the meaning of that term. The present case differs considerably in that it involves co-employee defendants whose functions are not comparable to the defendant in DeStafney. The following discussion of discretionary function immunity is meant to give some guidance and explain its relation to co-employee tort litigation.

As the Restatement’s comments suggest, the courts have at times found the discretionary function standard difficult to interpret. Nevertheless, in many cases this standard’s proper application will be readily apparent. Two such cases will serve to illustrate the conflicting policy considerations the courts must apply. On the one hand, in DeStafney itself we had no difficulty in rejecting the immunity claim of the individual defendant, an aide at the University day care center who allegedly allowed the plaintiff’s child to fall off playground equipment. This defendant’s function clearly required due care rather than difficult decision making. On the other hand, we accepted the claim of immunity in Gill v. Sewell, Ala., 356 So.2d 1196 (1978), where the director of a work release center was sued for his decision to release a convicted felon who shot the plaintiff. That decision was an exercise of discretion central to the defendant’s function, and accordingly in DeStafney we noted, “unquestionably, Gill falls squarely within § 895D(3)(a) of the Restatement,” 413 So.2d at 394.

These two cases illustrate the governmental interest at stake in discretionary function immunity: the ability of public officers to “engage in making a decision by weighing the policies for and against it.” Restatement, supra, comment d at 413. Without some degree of immunity, public officers may decide not on the basis of policy but of avoiding personal liability or vexatious suits. Their motive for doing so may be larger than in the private sector, for governmental action often has unusual potential to injure or to affect large numbers of people. See G. Bermann, “Integrating Governmental and Officer Tort Liability,” 77 Columbia L.Rev. 1175, 1177 (1977). Discretionary function immunity, then, is called for when necessary to preserve the decision making function of government.

Considerable precedent has developed applying the concept of discretionary function in various contexts. The most common approach to the problem is to distinguish between planning and operational levels of action, with only the former being immune. Such terms, however, are only shorthand for a range of factors — discussed in the Restatement comments — that the courts may need to consider. The problem is not to define terms like “discretionary” or “planning” but to make a pragmatic assessment of what, if any, degree of immunity is necessary to enable the particular governmental function to be effectively performed. Thus, courts must determine not only the existence but the extent of an “immunity,” which may be absolute but is more commonly limited to good faith actions. See comments e and f from the Restatement.

The present case differs from cases like DeStafney or Gill in that the defendants raise the immunity defense not against a member of the public but against a co-employee who was injured at work. This difference is not in itself relevant. “Any governmental immunity to suit that might otherwise exist is no less applicable because the suit takes the form of a third party action under a workmen’s compensation act.” 2A Larson, The Law of Workmen’s Compensation, § 72.70 (1982). Co-employee tort litigation, like any other, may implicate the decision making function of government in a way that requires some degree of immunity. For example, in Gill v. Sewell, supra, had the plaintiff been an employee at the work release center who was shot by the inmate the director decided to release, then the considerations favoring immunity would still apply. The state’s provision of workmen’s compensation to its employees cannot operate to waive co-employees’ discretionary function immunity, if any. For us to find waiver of such a fundamental principle as immunity, a clear indication of specific legislative intent would be necessary. See Duncan v. Rudulph, 245 Ala. 175, 16 So.2d 313 (1944).

Contrary to the appellant’s suggestion, no equal protection problem results from allowing a somewhat more limited remedy for state employees than for private employees doing similar work. Such classifications not involving a suspect class or fundamental right need only have a rational basis to withstand scrutiny under the Equal Protection Clause. E.g., G.D. Searle & Company v. Cohn, 455 U.S. 404, 102 S.Ct. 1137, 1141, 71 L.Ed.2d 250 (1982). The immunity defense itself provides the necessary rational basis, for that defense is only valid where the public officer’s function has special characteristics independently justifying protection from liability.

On remand, then, the trial court must determine which, if any, of the defendants are proximately responsible for Bell’s alleged injuries and which, if any, of those responsible are immune by virtue of exercising a discretionary function. Further' definition of the nature of “discretionary functions” must of necessity await a full record.

REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, SHORES and ADAMS, JJ., concur.

JONES, J., concurs specially.

FAULKNER and EMBRY, JJ., dissent.

MADDOX, J., not sitting.

JONES, Justice

(concurring specially).

I concur with the opinion completely. I write separately only to suggest that the co-employee defendants’ liability is to be tested by traditional tort principles. For a treatment of these principles in the co-employee context, see my concurring opinion in Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980).

EMBRY, Justice

(dissenting):

In this case all defendants moved for summary judgment, each offering in support of his motion an affidavit stating that he was acting within the line and scope of his authority as a state employee at the time Bell was injured. Bell opposed these motions on the basis of his pleadings and his answers to interrogatories propounded by defendants. However, neither his pleadings nor his answers to interrogatories contain the slightest suggestion that defendants were acting beyond the line and scope of their authority.

In reviewing these materials for the purpose of determining whether summary judgment was proper we should be guided by the principles enunciated in Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980), as follows:

“Under Rule 56 of the Alabama Rules of Civil Procedure, summary judgment is appropriate only when the moving party has demonstrated, by the pleadings, answers to interrogatories, depositions and affidavits, that there is no genuine issue of material fact and that the movant is entitled to the requested relief as a matter of law. Campbell v. Alabama Power Co., 378 So.2d 718, 721 (Ala.1979); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92, 94 (1976). Once the movant supports his motion by affidavits or other testimony, the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show that a material issue of fact does exist. Campbell v. Alabama Power Co., supra; Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). Evidence offered in response to the motion, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings, Morris v. Morris, 366 So.2d 676, 678 (Ala.1978); and must present facts which would be admissible into evidence. Morris v. Morris, supra; Oliver v. Brock, 342 So.2d 1, 4-5 (Ala.1976); Hunter v. Austin Co., 336 So.2d 203, 206 (Ala.Civ.App.1976); Wright & Miller, Federal Practice and Procedure: Civil 2738. In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence un-controverted. Mims v. Louisville Title Insurance Co., 358 So.2d 1028, 1029 (Ala.1978); Donald v. City National Bank, supra.”

It is well-recognized that Article 1, Section 14, of the Alabama Constitution generally prohibits suits in which the state is made a defendant. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). Recently, this court considered the extent to which Section 14 also bars suits against officers and employees of the state, in DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1982). Unless Bell has demonstrated a material issue of fact as to whether defendants are covered by the protective cloak of Section 14, within the guidelines enunciated in DeStafney, summary judgment in favor of defendants is due to be affirmed.

Included in the analysis in DeStafney were the following statements:

... [A] claim for personal injury based upon the alleged negligent conduct of a State employee, even when committed in the line and scope of employment, is not within the ambit of § 14’s protection. Such a claim, by virtue of its nature and the relief demanded, in no way seeks to circumvent the prohibition of § 14. Any state interest affected by the suit is far too incidental to supply the requisite nexus for extension of constitutional immunity to the individual employee defendant. This suit, and the legal effects incident thereto, are strictly between the named parties plaintiff and the individual defendant....
“This is not to say, however, that every act or performance of duty by a state official or employee, by virtue of its characterization as negligence, necessarily falls outside the immunity doctrine. Even absent the requisite identity between the State and the state official or employee defendant to invoke absolute immunity, the Restatement’s doctrine of substantive immunity may yet be invoked if the official or employee 1) is engaged in the exercise of a discretionary function; 2) is privileged and does not exceed or abuse the privilege; or 3) is not negligent in the performance of his responsibility.”

The first listed of these three bases for granting substantive immunity to a state official or employee is taken from Restatement (Second) of Torts, § 895D(3)(a), which reads:

“(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
“(a) he is immune because engaged in the exercise of a discretionary function,”

This provision of the Restatement was considered in DeStafney in connection with Gill v. Sewell, 356 So.2d 1196 (Ala.1980), an earlier decision often cited for the proposition that state officers and employees are protected from suit by Section 14 immunity. The view was expressed that Gill was consistent “with the overall concept of tort liability expressed in § 895 D of the Restatement.” Particularly, the following language from Gill was noted:

“There is no allegation in the complaint that J.C. Locke exceeded the authority given him by statute. The complaint at best alleges that he negligently performed his statutory duty. [Cite omitted.] Acting pursuant to such statutory authority, J.C. Locke acted as the State and the claim is barred by Section 14 of the Constitution.” Gill, 356 So.2d at 1198.

The majority then proceeded to say:

“Unquestionably, Gill falls squarely within § 895D(3)(a) of the Restatement."

The instant case presents a quite similar situation. By affidavits supporting their motions for summary judgment, all defendants have advanced facts tending to show they were acting within their authority as employees of the state during the relevant time period. Bell’s complaint contains no allegations that defendants exceeded their authority or that defendants’ acts which were claimed to constitute negligent or wanton conduct involved the performance of nondiscretionary functions. Neither do Bell’s answers to interrogatories, the only factual material presented by him to the trial court in opposition to the motions for summary judgment, even hint of such a contention.

As Bell has failed to advance any evidence tending to show that either of the defendants was acting beyond his authority or was exercising a nondiscretionary function, I would affirm the summary judgment in favor of all defendants, under authority of DeStafney and Gill.

In sum, I would place the burden of alleging and proving individual liability upon the state employees with the plaintiff.

FAULKNER, J., concurs.

      . This section of the Restatement is set out in DeStafney, supra, 413 So.2d at 393.

      . See the case law under the discretionary function provisions of the Federal Tort Claims Act, 28 U.S.C. § 2680, and similar state enactments.

      . Code 1975, § 33-1-25, authorizes the State Docks to obtain workmen’s compensation coverage for its employees.

      . We express no opinion as to the effect liability insurance or indemnification for state employees would have on immunity. See generally the annotations at 71 ALR3d 6 (liability insurance) and 71 ALR3d 90 (indemnification).

      .Immunity in this context does not conflict with Article I, § 13 of the Alabama Constitution. The rule that workers may not constitutionally be deprived of their remedies against co-employees, Grantham v. Denke, Ala., 359 So.2d 785 (1978), is inapplicable where no remedy against immune officials existed to begin with.