author: HAWKINS, Justice,

text:
    Benjamin C. WRAY v. Sarah Dawn WRAY.
    No. 52584.
    Supreme Court of Mississippi.
    March 11, 1981.

      Virgil G. Gillespie, Gulfport, for appellant.
    Jimmy D. McQuire, Gulfport, for appel-lee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal by the appellant Benjamin C. Wray from a final decree or order of the Chancery Court of Harrison County construing a divorce decree theretofore rendered by the same court, and awarding certain alimony to the appellee Sarah Dawn Wray to have been a “lump sum” alimony provision as opposed to “periodic or continuing alimony.”

We reverse and render.

On August 10, 1979, a final decree for divorce was granted the appellee Sarah Dawn Wray from her husband the appellant Benjamin C. Wray, containing the following language:

“4. That the parties hereto have jointly and voluntarily entered into a property settlement agreement and that this Court has reviewed same and does hereby approve same. Consequently, the parties are hereby ordered and directed to abide by and be in compliance with the following awards:
“a. The complainant is hereby awarded alimony in the amount of $400 per month for the next 24 months, the first payment being due on the 1st day of September, 1979. At the expiration of the aforesaid 24 months, the complainant shall be awarded alimony until her remarriage at the rate of $200 per month.
“b. The complainant is hereby awarded the sum of $200 per month as child support for the minor child. Said award shall commence on the 1st day of September, 1979, and continue until further order of the Court. Additionally, the defendant shall be responsible for the educational expenses of the minor child.
“c. The aforesaid child support and alimony payments shall be made and paid into the registry of this Court and the Clerk is hereby directed to forward same to the complainant.
“d. There are four existing life insurance policies. The complainant is hereby awarded the ownership, use and possession, and full benefit of the State Farm Life Insurance Policy believed to be Policy No. 848,584 and also the Estate Life Insurance Company of Indiana Policy believed to be Policy No. 705,844. Said policies are awarded to her until her death. The defendant is hereby ordered and directed to be responsible for and to make the payments on said policies and in no way shall he encumber or otherwise dispose of said policies. Defendant shall further provide complainant with proof of payment on said policies. As to the other life insurance policies being with the Government Personnel Life Insurance Company, Mr. Wray is hereby awarded ownership of said policies and may dispose of them according to his wishes. Should the complainant remarry, her ownership and beneficiary status in the two policies awarded her shall not be affected.
“e. The Defendant is hereby ordered and directed to deed over to Mrs. Wray the house and contents thereof located at 76 Fleetwood Drive, Gulfport, Mississippi.
“f. Defendant shall be responsible for maintaining the youngest child on ID privileges through the military and shall be responsible for any of his medical, hospital, or other medically related bills over and above those not covered by military privileges.
“g. The defendant shall deliver to the complainant the sum of $2,000 alimony and additionally deliver to her the sum of $750 as attorney’s fees. Further, the cost of these proceedings shall be taxed against the defendant, Mr. Wray, for which let execution issue.
“ORDERED, ADJUDGED, and DECREED, this the 10th day of August, 1979.”

Wray paid three of the monthly installments of $400.00 beginning September 1, 1979, through November 1, 1979. Mrs. Wray remarried November 19, 1979.

The issue before the chancellor at the hearing held on May 7, 1980, was whether or not the above provision of the decree awarding alimony in the amount of $400.00 per month for 24 months was “lump sum alimony” or “periodic or continuing alimony.” The chancellor was of the opinion that the alimony award for the first 24 months in the amount of $400.00 per month was clearly lump sum. His opinion states:

“This is emphasized by the last sentence of Paragraph 4(a) of the Final Decree which explicitly states that at the expiration of the 24 months, the Complainant shall be awarded alimony until her remarriage at a different rate.”

The chancellor thereupon dismissed the petition of the appellant Wray to terminate the alimony payments on the ground that the appellee had remarried.

This appeal presents the sole question of whether the chancellor correctly interpreted the former decree rendered by himself in that court.

The interpretation of a Tennessee judgment was involved in the case of Gillum v. Gillum, 230 Miss. 246, 92 So.2d 665 (1957). In that case, quoting at length from CJS on Judgments, we made the following statements:

“As a general rule, the meaning, effect, and legal consequences of a judgment must be ascertained from its own provisions and language, if possible.”
* * * * * *
“A judgment should be construed with reference to the issues raised in the case and which are intended to be decided, and the scope of the judgment is not to be extended beyond the issues raised in the case, or the state of facts and situation of the parties existing at the time of the action. If there is ambiguity in the judgment, the entire record may be examined to determine the issues decided.”

In this case the chancellor found no ambiguity in the divorce decree, and interpreted the language of the decree itself in reaching his decision.

Was he correct? Or, was the provision above referred to periodic or continuing alimony?

This Court is firmly committed to the principle that periodic or continuing alimony is terminated upon the death or remarriage of the wife. Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933); Bridges v. Bridges, 217 So.2d 281 (1968).

As to lump sum or gross alimony, Bunkley and Morse’s Divorce and Separation in Mississippi, Section 6.07 states: “Where alimony is awarded in a lump sum, it is a final settlement between the husband and wife as to the extent of his duty to contribute to her support which cannot be changed or modified on the application of either party for any cause whatever.” This same authority, Section 6.06 states the court may, in its discretion, “... award a definite sum in gross, payable presently or in installments, or allow a reasonable sum to be paid continuously, at stated intervals, for such time as may be limited in the decree.” (Emphasis added) Lump sum alimony, due and payable in one installment is a fixed obligation just as accrued alimony payments. Guess v. Smith, 100 Miss. 457, 56 So. 166 (1911); Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959). Whether lump sum alimony due and payable in fixed installments is any different from continuous alimony payable in periodic payments, however, is not free from difficulty. In Aldridge v. Aldridge, 200 Miss. 874, 27 So.2d 884 (1946), the chancery court had awarded the wife $7,500.00 lump sum alimony, and on appeal this Court held it would be oppressive to require the husband to pay it in one sum. We permitted the husband to pay $1,500.00 in the first payment, and the balance payable quarterly in installments of $500.00 until the full sum of $7,500.00 was paid. We held there:

“It is the intent of such award to invest the entire allowance with the incidents of a lump sum award payable at all events by the appellant, any unpaid balance due and unpaid at his death to constitute a charge against his estate. It is provided, however, that despite its aspect as such award, all unmatured installments save the initial sum presently payable shall be cancelled and unenforceable in the event of the death or remarriage of appellee.” (Emphasis added)

See also, Sanford v. Cowan, 249 Miss. 685, 163 So.2d 682 (1964). These cases are to be compared, however, with Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958) involving the question of whether obligations of the husband to make monthly installment payments on the indebtedness due against the house of the divorced wife continued following her remarriage. In that case the parties entered into a separation agreement the provisions of which were incorporated in the divorce decree the following day. Upon appeal we held the obligation of the husband to make such payments on this indebtedness did not terminate with the remarriage of the wife.

Since Aldridge, this Court has not specifically addressed the issue of whether a provision for lump sum alimony, due and payable however in fixed installments for a definite period of time, is terminated by the death or remarriage of the divorced wife.

Despite the language of Aldridge, we think the rule in this state should be that the chancery court has discretionary authority and power to award lump sum alimony in a sum certain, or alimony in gross, as it is sometimes called, and permit the payment to be made in periodic, sum certain installments which will terminate on some future date, and having done so, these will become fixed obligations of the divorced husband, the same as any other indebtedness, and the death or remarriage of the wife will not terminate or alter the obligation to pay. This is the general law, and the law and practice we believe has been followed by the chancellors and practicing attorneys of our State. 24 Am.Jur.2d Divorce and Separation, Section 614 (1966), at pp. 735-736, states:

“Alimony in gross, or ‘lump-sum alimony’, is fundamentally the award of a definite sum of money; and if the sum is payable in installments the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect. The fact that the award is payable in installments is not determinative of the question whether it is gross alimony or periodic alimony. On the other hand, alimony in general, or installment alimony, contemplates periodic payments of a definite sum for the indefinite future, and terminates on the death of either party or the remarriage of the wife.”

Also, 27A CJS Divorce, Section 235, p. 1080:

“Vesting of right and finality of obligation as to gross sum. Where a decree awards an allowance in gross, the right to the amount so fixed, even though it is made payable in installments, becomes vested in the wife, and the obligation of the husband to pay it has every element of finality.”

Ordinarily, in a divorce case special circumstances must exist before chancery courts award a specific lump sum as alimony. Sometimes it substitutes for a division of property, or for periodic alimony, at others to take care of some special or immediate need of the wife. Generally, however, it is thought of as a fixed and certain sum of money which is awarded the wife, the payment of which may, because of the financial condition of the husband, be spread over a period of time, but nevertheless absolutely due and payable in fixed installments. See 27 CJS Divorce Section 235, pp. 1074-1080. Whether the award is periodic alimony or lump sum can also have substantial income tax consequences for the divorced parties, payments under the former being considered income to the divorced wife, and a taxable deduction to the husband, while the latter is not. Title 26, Section 71, U.S.Code.

In this case, therefore, if the chancellor was correct in his interpretation of the decree that the provision to pay $400.00 per month for 24 months was a lump sum alimony provision, the obligation to pay did not terminate with Mrs. Wray’s remarriage. If such provision was in reality alimony in the usual sense, however, the obligation to pay terminated upon her remarriage.

Our construction of the decree varies from the learned chancellor. The language of the decree indicates a different meaning, effect and legal consequence to us. The decree did not award a fixed and certain sum of money which was due and payable over a definite period of time. Had the decree awarded Mrs. Wray $9,600.00 in lump sum, due and payable, however, over a period of 24 months in fixed installments at the rate of $400.00 per month, such would have constituted a clear recognition the alimony to be in gross, or lump sum. We also hold that because lump sum alimony, or alimony in gross, as a general rule is awarded in special situations under the broad discretionary authority of the chancery court, a decree awarding alimony should be construed as providing for periodic alimony, subject to change or termination because of the future situation of the parties, unless the decree by clear and express language imports lump sum alimony, or alimony in gross. Simple draftsmanship on the part of attorneys in their preparation of divorce decrees can clearly differentiate between the two types of awards, and thereby obviate the necessity of courts having to pass upon this question.

The case is reversed and rendered, with judgment for appellant sustaining his petition to terminate alimony payments following November 1, 1979.

REVERSED AND RENDERED.

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

      . Logue in turn needs to be compared with East v. Collins, 194 Miss. 281, 12 So.2d 133. We held there upon remarriage husband’s obligation to continue mortgage payments ceased, and wife must re-assign life insurance policy on husband (upon which he had been obligated to pay premiums under decree) back to him.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    Milton TUTWILER, David Anderson, Willie Wilson, Mitchell Williams & Sarah Conwell, as Trustees of the Bolivar County School District No. 6 v. C. J. JONES.
    No. 52526.
    Supreme Court of Mississippi.
    March 11, 1981.

      Tyree Irving, Johnnie E. Walls, Jr., Walls, Buck & Irving, Greenville, for appellant.
    John Kirkham Povall, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of Bolivar County under the provisions of which the Board of Trustees of Bolivar County School District No. 6 was enjoined from proceeding with its proposed removal of its district school superintendent on a charge of misconduct.

Mississippi Code Annotated section 37-9-59 (1972), before being amended in 1978, provided for the “suspension or removal of superintendent, principal or teacher”.

This section specifically empowered the county superintendent of education or the superintendent of a municipal separate school district to remove or suspend any “superintendent, principal or teacher” in any school district for “incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause.”

It provided that “before being so removed or suspended” the employee in question was entitled to notice and to a hearing, if requested, at which the county superintendent of education should preside and have the same powers as a justice of the peace with respect to the issuance of subpoenas for witnesses and in compelling their attendance and in the reception of evidence. It is clear that the hearing contemplated by the former statute was to be conducted by the county superintendent of education, that it would be his decision to remove or not to remove at the conclusion of the hearing, with a provision for an appeal from his decision to the state board of education, and from that body to the chancery court, in the same manner as appeals from the state education finance commission. The section concludes by requiring the county superintendent of education to notify the district board of trustees following removal of its employee, whereupon “a superintendent, principal or teacher shall be selected to fill such vacancy....”

Section 37-9-59 was amended extensively in 1978. Like its predecessor, it provided that for “incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the county superintendent of education, superintendent of the consolidated district, or superintendent of the municipal separate school district, as the case may be, may remove or suspend any principal or teacher in any school district.” [Emphasis added].

No provision is made for the removal of a district superintendent. The statute, as now written, provides that the “removal” of a principal or teacher may be made by the county superintendent of education, and also by “superintendent of the consolidated school district, or superintendent of the municipal separate school district.”

The section, as amended, makes it clear, however, that the hearing now contemplated, and provided for in the section, shall be before the school board, not the county superintendent of education as formerly. The statute after providing for notice, continues:

The school board, upon a request for a hearing by the person so suspended or removed shall set a date, time and place for such hearing which shall be not sooner than five (5) days nor later than thirty (30) days from the date of the request. The procedure for such hearing shall be as prescribed for hearings before the board of hearing officer in section 37-9-111, Mississippi Code of 1972, as amended. From the decision made at said hearing, the principal or teacher shall be allowed an appeal to the chancery court in the same manner as appeals are authorized in section 37-9-113, Mississippi Code of 1972, as amended. Any party aggrieved by action of the chancery court may appeal to the Mississippi Supreme Court as provided by law. When a principal or teacher is removed as provided in this section, a principal or teacher shall be selected to fill such vacancy in the manner otherwise provided in this chapter.

In this situation, if anything is clear, it is that the power, formerly expressly vested in the county superintendent of education, to remove district school employees for misconduct and to conduct hearings for that purpose, has been completely withdrawn from that official by the amended statute. This obvious and fundamental change cannot be ignored or overlooked or be considered as an idle or a meaningless act on the part of the legislature. It is equally clear that the removal hearing is to be before the board of trustees, and the actual power to remove or not to remove rests with that body.

The amended statute vests in the board of trustees, the governing authority of the district, the power to conduct the hearing, and adopts for that purpose the same procedure set out in section 39-9-111, Mississippi Code Annotated (1972) which sets out the procedure to be followed in cases where a school employee’s contract is not to be renewed for the ensuing year.

The present or amended section 37-9-59, although it provides that the county superintendent of education, the superintendent of a consolidated school district or superintendent of the municipal separate school district “may remove” principals and teachers, the power to remove thus granted must be construed, if it can be given effect at all, as limited to cases in which the person proposed to be removed does not request a hearing. The remainder of the section provides in considerable detail that if a request for a hearing is made “the school board” handles the matter, conducts the hearing, and it is the school board that renders the decision to remove or not to remove the employee.

This is supported by paragraph (1) of section 37-9-111, referred to in section 37-9-59 which provides: “The hearing may be held before the board or before a hearing officer appointed ... by the board.... ” Section (4) of 37-9-111 provides that, following the hearing, the board is to decide whether to reemploy or not reemploy. A patent ambiguity exists in the provisions of section 37-9-59 (1972).

In construing a statute in such a case this Court has applied the rule stated in Hendrix v. Foote, 205 Miss. 1, 41, 38 So.2d 111, 117 (1948), wherein the Court said:

[T]his Court has repeatedly held that where the meaning of a statute is not clear, resort is had to the real purpose and intention of the Legislature in adopting the statute, which, when ascertained, the Court will give effect thereto, even though the letter of the statute be violated. What is within the intention is within the meaning of the statute, although not within the letter. Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844; Ken nington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A.,N.S., 541, Ann.Cas. 1914B, 392; Learned v. Corley, 43 Miss. 687; Bonds v. Greer, 56 Miss. 710; Adams v. Yazoo & M. V. R. Company, 75 Miss. 275, 22 So. 824. And, furthermore, the Court, in construing a statute, will not impute an unjust and unwise purpose to the Legislature when any other reasonable construction can save it from such imputation. Dunn v. Clinghan, 93 Miss. 310, 47 So. 503; Gunter v. City of Jackson, supra.

To the same effect see Aikerson v. State, 274 So.2d 124 (Miss.1973); Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745 (1947); Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768 (1936); Gandy v. Public Service Corporation of Mississippi, 163 Miss. 187, 140 So. 687 (1932); New Orleans, J. & G. N. R. Co. v. Hemphill, 35 Miss. 17 (1858).

Ordinarily, the power to employ imports a power to discharge for cause. The manifest legislative purpose in the enactment of the statute was (1) to afford due process protection for professional school district employees, performing services connected with the educational process, (as distinguished from employees engaged as caretakers and the like), and (2) to provide a means for the removal of such personnel who may be guilty of one or more of the derelictions enumerated in the statute.

We have concluded that the enumeration of school district employees who may be removed under amended section 37-9-59 was not intended by the Legislature to deprive this class of school employees (superintendents) from the protection afforded by the statute nor to withhold from them the rights granted in it. Nor can we attribute to the Legislature a purpose to leave the school district without remedy through removal of those guilty of one or more of the specified offenses, although such person be a district superintendent.

Considering the cited statutes together, and taking into consideration the totality of the circumstances, including the general right of an employer to remove an employee for good cause, we hold that it was the manifest purpose of the Legislature that the school district board of trustees have the right and power, as well as the duty, to proceed with removal of an employee who may have been found to have been guilty of one or more of the derelictions enumerated in section 37-9-59, although such employee may have been employed and be classified as a school district superintendent. We have further concluded that in such a case, the proposed removal of a district school superintendent, the employee shall have and enjoy the right to a hearing before the school board, if requested, together with all of the other rights to due process specified in that section for principals and teachers.

We invite the attention of the Mississippi Legislature to this matter so that, if it should see fit to do so, the patent ambiguity now existing may be removed or clarified by further legislation on the subject.

The decree appealed from is reversed and the injunction dissolved. Further proceedings, not inconsistent with this opinion, may be conducted in connection with the proposed removal of the district school superintendent.

REVERSED AND INJUNCTION DISSOLVED.

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


text:
    Corby Lee USRY v. MISSISSIPPI POWER & LIGHT COMPANY and Jackson Excavating & Leasing Company.
    No. 52399.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    Rehearing Denied April 1, 1981.
    John L. Clay, Stribling & Clay, Jackson, for appellant.
    Charles T. Ozier, Richard D. Gamblin, Wise, Carter, Child & Caraway, Jackson, for appellees.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

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

AFFIRMED.


author: ROBERTSON, Presiding Justice,

text:
    UNITED COMPANIES MORTGAGE & INVESTMENT OF SOUTHWEST MISSISSIPPI, INC., and C. Wayne Dowdy v. Homer E. LESTER et ux.
    No. 52356.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Rehearing Denied April 1, 1981.
    C. Wayne Dowdy, Guy, Dowdy & Whit-tington, McComb, for appellant.
    T. Patrick Welch, Roach, McMillan & Welch, McComb, for appellees.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

United Companies Mortgage & Investment of Southwest Mississippi, Inc., and C. Wayne Dowdy, Trustee, appeal from a decree of the Chancery Court of Amite County ordering that all interest and finance charges due from Homer E. Lester and wife, Norma Lester, under the terms of an installment promissory note and deed of trust executed by them on July 26,1978, be forfeited because inadvertently United had charged an annual percentage rate of 18.05% when the maximum annual percentage rate should have been 17.66%.

Appellants assign as error that:

1. The trial court erred in finding for the appellees, ordering that all interest and finance charges due the appellant be forfeited, after a finding, determination and adjudication by the court that the overcharge of interest was the result of a bona fide error, made in good faith.

On July 26, 1978, Homer Lester and his wife executed an installment promissory note in favor of appellant in the amount of $32,052.72, to be paid back over a period of seven years in monthly installments of $381.58, beginning September 1, 1978. The principal was $18,068.50, and the interest was $13,984.22. A deed of trust was executed to secure the payment of this note. The annual percentage rate (APR) of 18.05% was stated on the face of the note and disclosure statement.

Because of sickness, the Lesters became delinquent in their payments. The Lesters went to see John Graves, the manager of United, to see about refinancing the loan. Graves advised the Lesters that United would not be able to refinance the loan, but, thinking that the APR of 18.05% seemed a little high, he again ran the loan through the computer and discovered that he, Graves, had charged the Lesters too much interest. Graves was manager of United’s McComb office from February, 1976, until May, 1979, when he left United to go to work for Money Mart Mortgages, a competitor.

At the trial, Graves testified that he told the Lesters about his error in figuring the interest and finance charges in June or July, 1979, when they visited him at his new place of work. The Lesters employed an attorney, John Gordon Roach, Jr., to look into the matter, and he called D. C. Greer, the new manager of United’s McComb office, and he agreed to check on it.

On August 10,1979, Greer wrote the Les-ters:

Dear Mr. & Mrs. Lester,
As a result of a periodic review of your account, we have discovered certain errors in your disclosure statement.
A corrected copy of the disclosure statement is enclosed, and your account has been credited $394.80. Your new balance is $28,223.70 and the principal payments are as follows:
1 X $376.02
74 X $376.32

The corrected copy of the disclosure statement showed an annual percentage rate of 17.66%. The monthly payments were reduced from $381.58 per month to $376.32 per month.

The Lesters again becoming delinquent in their monthly payments, on September 25, 1979, C. Wayne Dowdy, United’s attorney, wrote the Lesters advising how much it would take to reinstate the loan and avoid foreclosure. The Lesters paid nothing and the loan was not reinstated. Foreclosure proceedings were begun. The Lesters, on October 24, 1979, filed their bill of complaint against United and Dowdy, Trustee, praying that the foreclosure sale be enjoined, and that the promissory note, the deed of trust and any and all other security instruments be canceled and declared void and of no effect because the annual percentage rate of 18.05% constituted a usurious rate of return. In their bill of complaint, the Lesters said, among other things:

“(10) Complainants would show unto the Court that they wish to avail themselves of Section 75-67-119 of the Mississippi Code of 1972, as amended, which states in part:
‘If any charges in excess of those expressly permitted by this article are charged, contracted for or received, except as the result of an accidental or bonafide error, the contract of loan shall be void and the licensee shall have no right to collect or receive any principal, interest, or other charges whatsoever, ...”

(Emphasis added).

The bill of complaint also contained a prayer for general relief.

After a full trial in which the former manager of United’s McComb office, John Graves, testified for the Lesters, the chancellor rendered his opinion, wherein he found, among other things:

“[I]n my opinion it is equally clear that the error made was an actual accidental and bonafide error. Now Mr. Graves was a witness for the Complainants. He was Complainants’ witness and he said it. Testimony is undisputed that he made a mistake. He was guilty of the error. He made the error because he didn’t correctly use his machine. He didn’t wait the four or five minutes needed it would take the machine to correctly compute the rate. He attempted to use the computer by some other means and that he and he alone made the error.
“As I review the record, it is absolutely uncontradicted that the error was an accidental error and that there was no question of intent to commit an error or defraud Mr. and Mrs. Lester whatsoever.” (Emphasis added).

The court ended its opinion with this language:

“So, I’m of the opinion that the evidence shows that this was an accidental and bona-fide error and that therefore, the Complainants have failed in their proof and that accordingly this Complaint should be dismissed at Complainants’ cost.” (Emphasis added).

On January 25, 1980, the Lesters filed a motion for a rehearing and/or a new trial. In their motion, the Lesters said:

“As brought to the Court’s attention during the trial of the above entitled action reference was made to Section 75-17-1 of the Mississippi Code of 1972, as amended, which, in part, provides in sub-paragraph nine of the said Section:
‘... If a greater finance charge than that authorized by this Section or by other applicable laws shall be stipulated or received in any case, all interest and finance charge shall be forfeited and may be recovered back, whether the contract be executed or executory
As per the findings of this court announced the Court affirmatively found that a greater interest rate than that allowed by law was charged.”

The court heard argument on the motion for rehearing, took the matter under advisement, and on February 25, 1980, rendered this opinion:

“Well, Gentlemen, of course you are presenting argument that was not presented at the conclusion of the case when we tried it in Liberty.
“It is just a simple issue of whether or not the defendant had to have a specific intent to defraud or whether .they are charged with what they did whether the intent to defraud was there or not. It appears to me the cases are conflicting on this. I am going to give the borrower the benefit of the doubt. If the mistake was made — I am going to give them the benefit of the doubt. I am holding that all interest and carrying charges be forfeited by the lender.”

The formula, for figuring interest and finance charges which together make up the annual percentage rate, is extremely complicated. Under this formula there is a graduated annual percentage rate. On the first $600 of unpaid balance, the rate is 36% per annum. The rate for that portion of the unpaid balance between $600 and $1800 is 33% per annum; the rate for the unpaid balance in excess of $1800 but not greater than $4500 is 24% per annum; and the rate for all in excess of $4500 is 12% per annum. MCA 75-17-1, as amended by 1974 General Laws, Ch. 564, Sec. 1(7). Although a skilled computer operator, former manager John Graves inadvertently made a mistake in figuring the annual percentage rate of return.

This short provision is buried in the middle of long and complicated section 75-17-1(9):

“If a greater finance charge than that authorized by this section or by other applicable laws shall be stipulated for or received in any case, all interest and finance charge shall be forfeited, and may be recovered back, whether the contract be executed or executory.”

This section must be harmonized with Mississippi Code Annotated section 75-67-119 (1972):

“If any charges in excess of those expressly permitted by this article are charged, contracted for or received, except as the result of an accidental or bona fide error, the contract of loan shall be void and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever; ...” (Emphasis added).

In Jones v. Hernando Bank, 194 Miss. 474, 13 So.2d 31 (1943), this Court stated:

“To constitute usury, there must be an intent to commit the act which results in the exaction of a usurious charge. When such act is the result of mistake or misapprehension, this necessary element is lacking. This does not mean that one may be held guiltless merely because he did not deliberately violate the statute or because he was ignorant of or misinterpreted the statute. It is necessary that he purposely do the thing which results in usury. That is to say, a mistake of fact purges the transaction of usury, whereas a mistake as to the legal effect of a purposeful act is a mistake of law and the actor is bound by the result. Smythe v. Allen, 67 Miss. 146, 6 So. 627.”
194 Miss. at 478, 13 So.2d at 32 (Emphasis added).

In view of the fact that the chancellor found “that the error made was an actual accidental and bonafide error” and that Section 75-67-119 exempts such an error from causing a forfeiture, we are of the opinion that the court erred in ordering that all interest and finance charges be forfeited and in providing that all the Les-ters owed was the principal, and that over the remainder of the 7-year term of the mortgage the Lesters would only pay back the principal.

The decree of the lower court is, therefore, reversed and judgment is rendered here for the appellants, dismissing the bill of complaint of the appellees.

REVERSED AND RENDERED.

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


author: PATTERSON, Chief Justice,

text:
    MISSISSIPPI AIR & WATER POLLUTION CONTROL PERMIT BOARD v. PETS & SUCH FOODS, INC.
    No. 52359.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.

      Bill Allain, Atty. Gen. by J. I. Palmer, Jr., Sp. Asst. Atty. Gen., Jackson, for appellant.
    Vardaman S. Dunn, Cox & Dunn, Stephen L. Beach, III, Beach, Beach, Luckett & Ross, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County wherein Chancellor J. C. Stennett enjoined the Mississippi Air & Water Pollution Control Permit Board from proceeding against Pets & Such Foods, Inc. (hereinafter Pets & Such).

Pets & Such is engaged in the business of purchasing eggs which are rejected as human food and converting them into powdered form for use as pet food. Pets & Such began production in September of 1974 on industrial land in Hinds County and subsequently, the Permit Board and plant personnel received complaints about unpleasant odors emitted from the plant. In an attempt to rectify the problem, Pets & Such purchased equipment at great costs from Hormel, Inc., which guaranteed the odor would be eliminated. However, the equipment, when installed, failed to eliminate the odor and on July 25, 1978, the Permit Board revoked the operating license of Pets & Such. Aggrieved Pets & Such sought redress.

The method of procedure from a permit revocation is set forth in Section 49-17-29 of the Mississippi Code Annotated (Supp. 1980) in pertinent part as follows:

Within thirty (30) days after the date the permit board takes action upon permit denial, modification or revocation, as shown on the minutes of the permit board, any permittee aggrieved by such action may file a written request for a formal hearing before the permit board.

Initially, Pets & Such followed this statutory method for a formal hearing. However, this hearing was never concluded because Pets & Such applied for and received a temporary injunction from the chancery court stopping the administrative proceeding. Following a petition by the Permit Board to modify or dissolve the temporary injunction, the chancellor permanently enjoined the Permit Board from proceeding against Pets & Such.

Section 49-17-29 of the Mississippi Code Annotated (Supp.1980) makes provision for the establishment of air quality standards by the commission:

In order to carry out the purposes of sections 49-17-1 to 49-17-43, the commission may set standards of air and water quality for the state or portions thereof. Such standards of quality shall be such as to protect the public health and welfare and the present and prospective future use of such air and of such waters....

As admitted by Dwight K. Wylie, the Chief of Air Quality Control for the Mississippi Air and Water Pollution Control Commission, the only guideline promulgated which relates to the emission of odors is found in Section 5(2) of the Commission’s Air Quality Regulations which states:

Miscellaneous Chemical Emissions. No person shall cause, permit, or allow the emission of toxic, noxious, or deleterious substances, in addition to those considered in these regulations, into the ambient air in concentrations, sufficient to affect human health and well-being, or unreasonably interfere with the enjoyment of property or unreasonably and adversely affect plant or animal life beyond the boundaries of the property containing the air pollution source.

As is apparent, this section does not specifically mention the word odor. Also, it sets no objective standard with which to measure concentrations of odors in the ambient air. In delegating powers to the Commission, the legislature prescribed the rule for their guidance in Section 49-17-19. This section established the broad guidelines from which the Commission should have established definitive standards. Since this was not done, Pets & Such was entitled to an injunction.

As stated in State v. Allstate Insurance Co., 231 Miss. 869, 97 So.2d 372, 375 (1957):

Legislative power or functions may be delegated to an administrative agency only in the limited sense that the statute must set forth the legislative decision and must prescribe adequate standards or rules for the agency’s guidance. It cannot be vested with arbitrary and uncontrolled discretion. 73 C.J.S. Public Administrative Bodies and Procedures § 29. In other words, constitutional theory legitimizes the situation by taking the position that constitutional provisions do not force upon the legislature and courts a monopoly of legislating and adjudicating; and that these functions in a restricted manner may be delegated to executive or administrative agencies by the acts of the legislature if the latter prescribe limits within which the administrative grantees are to operate.

See also, Broadhead v. Monaghan, 238 Miss. 239, 117 So.2d 881 (1960).

The appellant Permit Board places heavy reliance on its argument that Pets & Such should be required to exhaust its administrative remedies. In our opinion this doctrine is not applicable to a case such as the instant one where no definite standards have been set. As stated in Campbell Sixty-Six Express v. J & G Express, 244 Miss. 427, 440, 141 So.2d 720, 726 (1962):

We do not think this is a proper case for applying the doctrines of exhaustion of administrative remedies, and of primary jurisdiction. Under the averments of the bill, the complainants’ remedy before the commission is not adequate. Where no adequate administrative remedy is provided, the exhaustion doctrine is not applicable. Moreover, there is reasonable doubt as to the availability and adequacy of the administrative remedy.

The Mississippi Air and Water Pollution Control Commission failed to set definable, objective standards with respect to the emission of odors. The chancellor below did not err in permanently enjoining the Permit Board from proceeding against Pets & Such Foods. This case is therefore affirmed.

AFFIRMED.

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

      . “The words ‘Mississippi Air and Water Pollution Control Commission’ wherever they may appear in the laws of the State of Mississippi shall be construed to mean the Mississippi Commission on Natural Resources.” Miss. Code Ann. § 49-17-7 (Supp. 1980).


author: WALKER, Justice, PATTERSON, Chief Justice, BROOM, Justice,

text:
    Hal WILBORN v. STATE of Mississippi.
    No. 52301.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied March 18, 1981.

      G. Jyles Eaves, Eaves & Eaves, Henry Lee Rodgers, Louisville, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Noxubee County, Mississippi, wherein the appellant, Hal Wilborn, was convicted of unlawfully possessing marijuana in an amount greater than an ounce, but less than one kilogram, with the intent to deliver same; and, under Count 2 of the same indictment was convicted of unlawfully possessing phencyclidine. On Count 1 he was sentenced to five years in the custody of the Department of Corrections and fined $3,000. On Count 2 he was sentenced to three years in the custody of the Department of Corrections and fined $2,000. Being aggrieved, Wilborn perfects this appeal. We affirm.

The appellant did not object in the lower court to being tried on the two separate counts and that issue is not on appeal here.

The appellant briefs four assignments of error. However, only two warrant discussion.

I.

The appellant first contends that “The Trial Court erred in failing to sustain the Defendant’s motion requesting the court to quash a search warrant and the evidence of the fruits of an illegal search based upon an affidavit fatally defective.”

On December 4,1978, Cecil Russell, Sheriff, James L. Barnett and Wiliam V. Holley, Deputy Sheriffs, went to Justice Court Judge J. S. Dinsmore and presented him with an instrument styled “affidavit for search warrant,” sworn to and subscribed by them before the said Judge Dinsmore and properly attested by the Judge. Judge Dinsmore also heard the officers testify under oath. The appellant does not challenge that the additional facts testified to would have enabled the judge to fairly ascertain from the affidavit and testimony that probable cause existed for the issuance of the warrant. However, the appellant does challenge the authority of a judicial officer to supplement a written affidavit for a search warrant, which is insufficient in itself to show probable cause for the issuance of a search warrant, with oral testimony under oath from the officers who executed the search warrant.

The question presented is whether an affidavit for a search warrant, which does not state sufficient facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of a search warrant, may be supplemented by sworn testimony of the officers concerning facts and circumstances which are sufficient to show that probable cause exists for the issuance of a search warrant?

This Court spoke to the question of supplementing an otherwise defective affidavit for a search warrant with oral testimony, made under oath to a judicial officer, in Prueitt v. State, 261 So.2d 119 (Miss.1972). In Prueitt, this Court stated that “Oral testimony is admissible before the officer who is requested to issue a search warrant.” Id. at 123. In commenting on this particular oral testimony, the Court stated: “We think the affidavit is sufficient to show probable cause; but if it is not, certainly it, with the evidence before the judicial officer issuing the warrant, was sufficient.” Id. at 124.

In Walker v. State, 192 So.2d 270 (Miss.1966), the Court held a defective affidavit was not cured by the following language in the warrant:

And the undersigned having examined and considered said affidavit and also after having heard and considered evidence in support thereof, doth find that probable cause for the issuance of a search warrant in the premises doth exist. (Emphasis added). (Id. at 273).

It is clear from the holdings in Prueitt and Walker, supra, that if there is a challenge to the sufficiency of the underlying facts and circumstances in the affidavit for issuance of a search warrant, a mere statement in the affidavit that the judicial officer also heard and considered evidence in support thereof and that probable cause for the issuance of a search warrant exists is not sufficient. However, it is also clear that when the officer who testified, or the judicial officer who heard the testimony, is able to recall that testimony when the affidavit is challenged, we will consider this sworn unrecorded oral testimony, along with the affidavit, in our determination as to whether probable cause existed for issuance of the search warrant.

II.

The appellant next assigns as error that “The trial court erred in permitting the State to introduce evidence of a crime other than that for which the defendant was charged.”

The relevant facts to this assignment of error are as follows: Before the search warrant was issued, the officers had concealed themselves near Wilborn’s property and had observed known drug users coming and going from his house. While approaching Wilborn’s house to serve the search warrant, the officers observed two men getting into an automobile and starting to leave. They stopped the car and arrested the occupants for possession of marijuana. The officers then went to Wilborn’s house, served the search warrant, searched the house, found marijuana and arrested Wilborn. One of those arrested in the automobile was Robert Maxwell, who testified at the trial of Wilborn that he had been in Wilborn’s house on the night in question, that he had seen marijuana there, and had purchased marijuana from Wilborn at that time.

Wilborn contends that Maxwell’s testimony that he purchased marijuana from Wilborn that night was evidence of another crime and, therefore, inadmissible and reversible error. Ordinarily, in a criminal prosecution, evidence of offenses other than charged in the indictment is not admissible. However, this rule does not apply when the evidence of the other offense is so closely connected with the offense charged as to show the defendant’s intent. Thompson v. State, 309 So.2d 533 (Miss.1975), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 150 (1976); Younger v. State, 301 So.2d 300 (Miss.1975).

Here, Maxwell’s testimony with reference to purchasing marijuana from Wil-born a few minutes prior to the officers going into Wilborn’s house and his having seen marijuana there and having marijuana handed to him was so closely related in point of time as to have a material bearing on Wilborn’s intentions with reference to the remaining marijuana in his possession, which is the subject of the conviction sub judice.

We are of the opinion that the testimony of Maxwell with reference to his purchase of marijuana from Wilborn was properly admitted for the purpose of showing that Wilborn had the remaining marijuana in his possession with intent to deliver it as charged in the indictment.

Finding no reversible error, the judgment and sentence of the lower court are therefore affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BOWLING and LEE, JJ., concur.

PATTERSON, C. J., and HAWKINS, J., dissent.

BROOM, J., joins Part I of this opinion and joins the dissent as to the testimony of Robert Maxwell.

PATTERSON, Chief Justice,

dissenting:

I respectfully dissent from the majority opinion.

My interpretation of the question in this case is different from that of the majority wherein the issue is stated:

The question presented is whether an affidavit for a search warrant, which does not state sufficient facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of a search warrant, may be supplemented by sworn testimony of the officers concerning facts and circumstances which are sufficient to show that probable cause exists for the issuance of a search warrant? (emphasis added).

The affidavit in this case states none of the underlying facts and circumstances which establish probable cause. Therefore, in my opinion, it does not fall into the cases in Mississippi which state an affidavit for a search warrant may be supplemented by-sworn oral testimony. In this case there was nothing in the affidavit showing probable cause. All it contained was a description of the place to be searched, a statement that the location was occupied and controlled by Hal Wilborn, a description of the thing to be seized, and a statement that possession of the thing to be seized was in violation of Section 41-29-139 of the Mississippi Code Annotated (1972). Part 5 of the affidavit stated in part:

The facts tending to establish the foregoing grounds for issuance of a Search Warrant are shown on a sheet headed “Underlying Facts and Circumstances” which is attached hereto, made a part hereof and adopted herein by reference.

However, no underlying facts and circumstances sheet was attached. Therefore, none of the facts establishing probable cause was included in the written affidavit. Prior decisions of this Court have only allowed sworn oral testimony to supplement an affidavit where some of the underlying facts and circumstances are included in the affidavit. In O’Bean v. State, 184 So.2d 635, 638 (Miss.1966) we stated:

The standard required by Aquilar, which we are obliged to follow, is that an affidavit seeking a search warrant, though it may be based on hearsay information and need not reflect the direct personal observations of the affiant, must contain some of the underlying facts and circumstances from which a detached and neutral judge can fairly ascertain that probable cause does exist for the issuance of the warrant. (emphasis added).

Moreover, in Prueitt v. State, 261 So.2d 119, 124 (Miss.1972), relied on by the majority for their decision that the oral testimony alone was sufficient to establish probable cause, the Court pointed out that the affidavit alone was sufficient to show probable cause; but if it was not, “certainly it, with the evidence before the judicial officer issuing the warrant, was sufficient.” (emphasis added). Therefore, in my opinion, Prueitt is applicable to those cases where the affidavit contains some of the facts showing probable cause, and not to the instant case where none of the facts establishing probable cause were in the affidavit.

Furthermore, the Mississippi Legislature has required that the affidavit contain the grounds for issuing the warrant.

Section 41-29-157 of the Mississippi Code Annotated (Supp.1980) provides in pertinent part:

(2) A search warrant shall issue only for an affidavit of a person having knowledge or information of the facts alleged, sworn to before the judge or justice of the peace and establishing the grounds for issuing the warrant.... (emphasis added).

The Fourth Amendment to the United States Constitution and the Mississippi constitutional provision differ from Section 41-29-157 inasmuch as they only require an oath or affirmation, while the statute mandates an affidavit.

Section 23 of the Mississippi Constitution states:

The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized, (emphasis added).

An affidavit is defined as a sworn statement in writing made before an authorized official. See Black’s Law Dictionary 80 (Rev. 4th ed. 1968). Therefore, by requiring a written instrument, the statute dictates more protection to the individual than the constitutional provisions. This position was taken in Louisiana in State v. Case, 363 So.2d 486, 488 (La.1978):

The Constitution establishes the outer limit of governmental action with respect to individuals; beyond a specified point the state may not interfere in the lives of the citizens in the exercise of the police power. For this reason a warrant may not issue on mere suspicion or, even if based on probable cause, if the probable cause is supported only by a statement not made under oath. Yet nothing in the Constitution prevents the legislature from increasing the limitations on governmental action. This the legislature has done by enacting Article 162 requiring that affidavits be submitted to a judge to decide whether probable cause exists to issue the search warrant. To argue that the intent of the law is best found in the State Constitution is to disregard the legislature’s authority to enact legislation to increase the rights held by the people under the Constitution.

I conclude the trial court erred in permitting probable cause to be established in the absence of a written statement supported by affidavit of the underlying facts and circumstances supporting a finding of probable cause. In allowing probable cause to be established solely by sworn testimony with none of the underlying facts in the affidavit, this Court has returned to the dictates of the constitutional provisions thereby overlooking the statutory requirement of an affidavit.

Furthermore, in light of decisions allowing a defendant to challenge the truth of the sworn statements which comprise probable cause, it is essential that a record be preserved for the defendant’s review. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). When the underlying facts and circumstances are written down, and attached to the affidavit, the record is preserved. In contrast, when oral testimony is given under oath and not transcribed, as in the justice court system in Mississippi, then the defendant is forced to rely on the memory of the officers and judge who were present when such testimony was given. Moreover, the underlying facts and circumstances are not revealed to the defendant until such persons testify at a hearing challenging the issuance of the warrant which prevents a review of the underlying facts and circumstances when evaluating the need for a preliminary suppression motion. As pointed out by the Louisiana court in State v. Case, 363 So.2d 486, 488 (La.1978), it prejudices the rights of the defendant too greatly for the prosecution to be able to rely on the testimony of the issuing magistrate, because his testimony suffered from the “passage of time and vagaries of memory.” The Wisconsin Supreme Court, in Glodowski v. State, 196 Wis. 265, 271-72, 220 N.W. 227, 230 (1928) stated:

It is an anomaly in judicial procedure to attempt to review the judicial act of a magistrate issuing a search warrant upon a record made up wholly or partially by oral testimony taken in the reviewing court long after the search warrant was issued. Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made. This record of the facts presented to the magistrate need take no particular form. The record may consist of the sworn complaint, of affidavits, or of sworn testimony taken in shorthand and later filed, or of testimony reduced to longhand and filed, or of a combination of all these forms of proof. The form is immaterial. The essential thing is that proof be reduced to permanent form and made a part of the record, which may be transmitted to the reviewing court.

See also State v. Fariello, 71 N.J. 552, 366 A.2d 1313 (1976).

I also dissent from the majority’s decision that the testimony of Robert Maxwell was admissible. He testified over objection that he purchased marijuana from Wilborn, the appellant, and detailed the circumstances of the purchase. In my opinion, this testimony misled the jury and thus, it is not clear whether Wilborn was tried for the sale of marijuana or for the possession of marijuana with intent to deliver. The charge laid in the indictment in pertinent part follows:

did unlawfully, wilfully & feloniously, possess a certain controlled substance, to-wit: Marijuana, in an amount greater than one ounce, but less than one kilogram, with the intent to deliver same, in violation of Section 41-29-139, Mississippi Code 1972, as Amended;

By its testimony the State developed the time of the search as, “between 6:30 and 7:00 I’d say” by one witness and, “approximately 6:30; about 6:30.” by another. Maxwell testified that he and Hugh Nabors left about 6:00 to go to the appellant’s house to buy some pot and that about ten minutes later he, “went in the house and bought the pot." An objection was interposed to this testimony because the indictment did not charge the defendant with the sale of marijuana or other drugs and because the defendant was prejudiced by such questions. The objection was overruled and the State’s attorney developed the sale of marijuana to the 20 year old witness by the following questions and answers:

“Q. All right, once you got into the back of the house, what did you do?
A. We asked him for the pot.
Q. And then what did he do?
A. He weighed us up some.
Q. Where did he go to get it?
A. Outside.”
And then the following was asked:
“Q. And when he came back in, what did he have in his hand?
A. Something in a paper sack all wet.
Q. And what did he do with that, and would you describe what it looked like?
A. Well it was a green leafy substance after he unwrapped it.
Q. What did he do with it?
A. Spread it out on the table; chopped it up.
Q. He chopped it up. And after he chopped it up, what did he do with it?
A. He put some in a bag and weighed it on the scales, put some more in it and weighed it again, and then he sold it to us and we left.
Q. Is the — Did he actually hand this to you and deliver it to your hand?
A. Not to my hand, no, sir.
Q. Into Hugh Nabors’ hand?
A. Yes, sir.
Q. Is that man who delivered that substance into Hugh Nabors’ hand in the courtroom today?
A. Yes.
Q. Would you point him out for us, please?
A. Sitting right there. (Witness pointing).

THE COURT: Let the record show the witness identified the defendant.”

The witness then testified that he was arrested and pled guilty to having marijuana. This leaves the burning question of whether the defendant was prejudiced by this testimony or, more seriously, whether he was convicted of a crime of which he was not indicted.

As early as 1889, this Court recognized the rule that evidence of other crimes, those not charged in the indictment, is inadmissible because it “tends to divert the minds of the jury from the true issue, and to prejudice and mislead them; and the defendant, being informed by the charge against him that he is to be tried for a specific offense, is not prepared to defend against other offenses.” Whitlock v. State, Miss., 6 So. 237, 238 (1889). See also Floyd v. State, 166 Miss. 15, 148 So. 226 (1933). From the testimony it is obvious the sale of marijuana to Maxwell occurred some 20 or more minutes before the search of the appellant’s house. Moreover, it was removed in distance from the house as the Maxwell arrest occurred “down the road”. In my opinion it was a separate and distinct crime from that charged in the indictment, testimony of which should not have been permitted into evidence.

By analogy I think the case of Coleman v. State, 198 Miss. 519, 23 So.2d 404 (1945) is apropos wherein it was stated:

As to the remaining assignment, appellant has good grounds for her complaint. It was competent for the State to show the motive of appellant in attempting to burn the house, if she did so, and it was competent, therefore, to show that appellant was intensely enamored of a man believed by her to be in the house with another woman and that her purpose, driven by her jealousy, was to burn him out of there, as two or three witnesses say she threatened at the time. When this motive was shown it was enough, so far as her relations with this man and his relations with her were concerned; but the cross-examinations by the prosecuting attorney both of the defendant and of the man in the case, who was one of her witnesses, were permitted to descend into inquiries which were put and stressed in such manner as to introduce incidental or collateral matters of a highly inflammatory nature and which had no place in the trial either as a matter of propriety or of fairness.
We do not pursue the details except to say that at points in this record it is difficult to tell whether the prosecution was for the attempted arson laid in the indictment, or whether for unlawful cohabitation, or whether the arraignment was for immorality in general.
Appellant’s counsel vigorously objected to all this collateral and excessive matter, and repeatedly did so without avail. Incompetent evidence pressed upon the jury . as this was, especially if of an inflammatory character, is presumed to have been harmful, and it is only when we can say with confidence that it had, in all probability or likelihood, no such effect that we may decline to reverse on account of it....

Likewise it is difficult here to tell whether the prosecution was for possession of marijuana as laid in the indictment, or for the sale of marijuana, or whether the arraignment was for drugs in general. Indeed, I find it impossible to determine whether Wilborn was by the jury’s verdict convicted of possession of marijuana or for its sale.

I would reverse.

HAWKINS, J., joins in this dissent.

BROOM, J., joins in this dissent as to the testimony of Robert Maxwell.

BROOM, Justice,

concurring in part and dissenting in part:

I concur with the majority decision written by Justice Walker as to that part of his opinion designated as Part I dealing with the question of the search warrant’s validity. As to that part of his opinion designated as Part II, I differ from the majority opinion as written by Justice Walker. As to this aspect of the case, I concur with the views expressed by Chief Justice Patterson as to his opinion that the testimony of Robert Maxwell was inadmissible.

      . Although a record or tape recording of the sworn oral testimony does not meet the affidavit requirement of Section 41-29-157, nevertheless such would alleviate the danger of the oral testimony being lost by faded memories, removal of witnesses or death.


author: BROOM, Justice,

text:
    AUTO OWNERS INSURANCE CO. and H & H Construction Co. v. Billy Joe DUNAWAY.
    No. 52472.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.

      William C. Murphree, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellants.
    Gary L. Carnathan, Carnathan, Davidson & Wright, Billy W. Shelton, Tupelo, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation jurisdiction is the pivotal issue here where claimant Billy Joe Dunaway seeks benefits under coverage his employer purchased in Alabama. The Administrative Judge (AJ) ordered the carrier, Auto Owners Insurance Co., to pay benefits. After the full commission and the Circuit Court of Lee County affirmed the award, the carrier appeals here contending jurisdiction is lacking in Mississippi. We affirm.

Claimant received an injury in April 1972 while employed by Paul Harrelson, d/b/a H & H Construction Co., general contractor in the construction of a sanitary sewer system for the Town of Saltillo, Mississippi. Previously the employer had obtained a certificate of workmen’s compensation coverage from Lillie Pearl Johnson, the carrier’s agent in Vernon, Alabama. Language in the certificate indicated that the work was to be done in Mississippi. Harrelson testified that he told the Alabama agent (Johnson) that the work for which he sought coverage was in Saltillo, Mississippi. The agent was not produced to deny Harrelson’s testimony. Harrelson stated that he did not know whether the policy was a Mississippi workmen’s compensation policy.

Testimony of Nyle Clawson, the carrier’s claims manager, was that the policy applied only to the State of Alabama. Upon notice of Dunaway’s claim, the carrier for a time paid him benefits and filed its reports with the Alabama Department of Industrial Relations; no reports were filed in Mississippi. Reason given by the carrier for making payments under the Alabama Compensation Act was because the employer indicated that Dunaway was hired in Alabama and then transported to work in Mississippi. There were several claimants, and upon further investigation the carrier learned that Dunaway and other claimants were hired in Mississippi and did not work in Alabama. Therefore, the carrier discontinued compensation payments.

The carrier’s branch underwriting manager, Eugene Lee, testified as to issuance of the compensation policy upon the employer’s signed application. Language in the application was that the policy applied to workmen’s compensation law only in the State of Alabama, and admittedly the policy issued was an Alabama policy. According to Lee, the carrier did not do business in Mississippi and was not authorized to do such business. According to Lee’s testimony, the insurance certificate issued to the employer was not a policy, and the certificate contained a provision that it was subject to the terms, conditions, and exclusions of the policy. Lee denied that the carrier had issued a Mississippi workmen’s compensation policy to the employer, and his opinion was that acceptance of the application conferred coverage only in the State of Alabama. Upon the testimony outlined above, the AJ ordered payment of compensation by the carrier, and his order was affirmed by the full commission which held it had jurisdiction over the carrier. On appeal, affirmance of the commission’s order was ordered by the circuit judge.

DID THE MISSISSIPPI WORKMEN’S COMPENSATION COMMISSION LACK JURISDICTION OP CLAIMANT’S APPLICATION FOR WORKMEN’S COMPENSATION BENEFITS? The carrier relies mainly upon Mandle v. Kelly, 229 Miss. 327, 90 So.2d 645 (1956). Our analysis causes us to conclude that Mandle is factually vastly different and not controlling here. More in point is Hartford Acc. & Indemnity Co. v. Dalati, 340 So.2d 732 (Miss.1977), which held that workmen’s compensation in Mississippi was payable where the claimant was injured on a Mississippi job even though the policy in question stated that it applied to Louisiana. In that case we upheld Mississippi coverage largely because the Louisiana insurance agent told the employer, a Louisiana resident, that the employer was covered for the job in Mississippi.

In the instant case, the employer Harrel-son testified. Excerpted from his testimony are the following questions and answers:

Q. You don’t know whether or not your Alabama policy applies to this accident or not, do you?
A. I’m supposing it would. That’s what I went to see the agent about. That’s what I told her that I wanted [sic] for.
Q. Well, I mean if this case is filed in Alabama under the Workmen’s Compensation Act of Alabama, you don’t know—
A. I don’t know anything about filing. All I know is what my agent told me. That’s what I paid her my money, for what I want. And I relied on her to give me the correct insurance.
* * * * * *
Q. Were you aware of the fact that your insurance company actually accepted liability under the Alabama act and had you pay?
A. I don’t know anything about that. All [sic] I went to her and told her what I wanted, and she issued it. I paid her, and I relied on her ability to issue the right thing.

The above excerpts of his testimony show what he said on cross examination. His direct examination shows the following:

Q. Did you indicate to the agent of Auto Owners where the work was to be done?
A. Yes. I went to her on two separate occasions, maybe three separate occasions, to discuss this particular job. It was before the time it was bid, and during the time I was bidding, and after the contract was awarded.
Q. And where did you indicate the work was to be done?
A. Saltillo, Mississippi.

In the carrier’s rebuttal brief, the statement is made that “There was no verbal agreement that Auto Owners Insurance Company would provide coverage under the Mississippi Act.... ” We think the above testimony when considered along with the certificate establishes such an agreement, and we find no testimony that the Alabama agent lacked authority to bind the carrier.

The testimony in the case shows that when Harrelson (the employer) purchased the workmen’s compensation insurance in Alabama, he made it clear to the carrier's agent that the work was to be performed within Mississippi. This is shown on the certificate of insurance given to Harrelson. It is also true that the insurance certificate stated that it was subject to the terms, conditions, and exclusions of the policy. No testimony in the record indicated that the employer was advised of any exclusion that would apply on account of the work being done in Mississippi. Other testimony in the record is to the effect that on different and previous occasions Harrelson purchased insurance from the same agent for workmen’s compensation coverage “relative to workmen’s compensation in Mississippi.... ” There can be no doubt here that at the time the employer purchased the insurance, it was his understanding which was accepted and agreed to by the carrier’s agent that the coverage would extend to coverage of the employer’s workmen while they worked in Mississippi.

The State of Mississippi has a profound interest in injuries which occur within this state. Inasmuch as the carrier’s agent in Alabama agreed to and actually issued a certificate of insurance showing, on its face, that it would apply to the Mississippi work, the carrier should not be heard to say, based upon a separate instrument (the actual policy), that benefits under Mississippi Workmen’s Compensation Law are not available here to claimant Dunaway. From the testimony and circumstances revealed by the record, it is clear beyond all doubt that the specific purpose of the employer obtaining the insurance coverage was to provide protection for his employees while they were working in Mississippi. Aware of this the carrier’s agent issued the certificate which was paid for and relied upon by the employer. After receiving notice of the claimant’s injuries, the carrier made certain payments, and we think the award was rightfully made below. Affirmance ordered by the circuit judge was entirely correct requiring affirmance here.

AFFIRMED.

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


text:
    EMPLOYERS INSURANCE OF WAUSAU v. J. F. WEEMS, Sr.
    No. 52560.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.
    Bobby J. Garraway, Lumberton, for appellant.
    Leon Mangum, Decatur, for appellee.
   Appeal from Chancery Court, Newton County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.


text:
    GULF STATES MANUFACTURERS, INC. v. DEPENDENTS OF FRANK SCHEFFER, JR., Dec'd.
    No. 52471.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

John W. Crowell, Gholson, Hicks & Nichols, Columbus, for appellant.

Philip T. Dean and Billy J. Jordan, Columbus, for appellee.

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

AFFIRMED.


text:
    Harl "Bud" O'NEAL v. Sylvester REED.
    No. 52492.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.
    Larry R. Jennings, Corr, Carlson & Fleming, Sardis, William P. Dulaney, Dulaney & Dulaney, Tunica, for appellant.
    Robert E. Buck, Walls, Buck & Irving, Greenville, for appellee.
   Appeal from Circuit Court, Quitman County; Webb Franklin, Judge.

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

AFFIRMED.


text:
    Rebecca Jackson COOPER v. Johnny Ray JACKSON.
    No. 52530.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.
    Philip T. Dean, Billy J. Jordan, Columbus, for appellant.
    Gilford F. Dabbs, III, Riddell & Dabbs, Quitman, for appellee.
   Appeal from Chancery Court, Clarke County; Howard R. Pigford, Chancellor.

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

AFFIRMED.


text:
    Eugene Oliver DIRR, Jr. v. Suzanne DIRR.
    No. 52423.
    Supreme Court of Mississippi.
    March 11, 1981.
    Rehearing Denied April 1, 1981.
    Eugene Oliver Dirr, Jr., pro se.
    Earl B. Stegall, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

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

Affirmed.


text:
    Paul T. SMITH, Jr. v. STATE of Mississippi.
    No. 52548.
    Supreme Court of Mississippi.
    March 11, 1981.
    Rehearing Denied April 1, 1981.

      Michael Adelman, Andalman, Adelman & Steiner, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Murder is the offense for which defendant Paul T. Smith, Jr. was convicted in the Circuit Court of Leake County and sentenced to life imprisonment. The five issues raised relate to: “Miranda warnings,” the “Weathersby Rule,” manslaughter jury instructions, and prosecutors’ jury arguments. We affirm.

On December 12, 1979, at approximately 9 or 9:30 p. m. the defendant arrived at the home of his ex-wife, Margaret Ann Smith (Margaret herein), at Walnut Grove in Leake County. In the house were Paul Renaud Smith, Margaret, and Joe Nathan Longmire. Apparently, he came to visit Paul Renaud Smith (his and Margaret’s son) and was armed with a pistol. Margaret testified that the defendant said something like, “All of you son of bitches just get up and leave or I’ll kill you.” Following the threat, Longmire, whom the defendant slew the next night, left. The defendant remained overnight with Margaret, drove her to work the next day, and spent that day with their small son, whom he left at the grandparents’ house during the afternoon. Shortly after midnight the defendant returned again to Margaret’s house, and an altercation erupted between the defendant and Longmire. Just how the killing occurred is in dispute, but basically the defendant’s theory is that Longmire attacked him. He says that during a struggle he pulled his gun out of his pocket and shot Longmire to death. In contradistinction, he advances the theory in another portion of his testimony that the shooting was accidental. After shooting Longmire, the defendant took him to the hospital where it was determined that he died of a gunshot wound to the head. A city policeman came to the hospital and asked the defendant what had happened; the defendant told him that a man was shot. Shortly thereafter, Deputy Sheriff Bobby Brown arrived, read Smith his Miranda rights, and questioned him. According to the officers, the defendant gave an oral and written statement the morning of the shooting which was inculpatory and contradictory of the defendant’s testimony at trial that Long-mire tore his shirt and struggled with him for a few minutes before he shot Longmire in self-defense. Other facts will be given as appropriate herein.

WERE THE WARNINGS GIVEN THE DEFENDANT PRIOR TO HIS MAKING STATEMENTS AGAINST HIS INTEREST ADEQUATE UNDER MIRANDA v. ARIZONA, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)? Before the defendant made the statements against interest, the following warnings were read to him at the Leake County Memorial Hospital:

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.

(Emphasis supplied).

At the jail, Smith read a printed voluntary statement form advising him of the four warnings required by Miranda. Two additional warnings were included:

That I can refuse to answer any questions or stop making any statements at any time I choose.
That no law enforcement officer can prompt me what to say in any statement or write it out for me unless I choose for him to do so.

Argument is made that the police officers questioning defendant should have advised him that he could “request that the questioning cease at any time.” In making his argument, the defendant places reliance upon Rule 1.03, Mississippi Uniform Criminal Rules of Circuit Court Practice which sets forth six (6) warnings:

Prior to any questioning, a person must be warned that:
(1) He has the right to remain silent;
(2) Any statement he does make may be used as evidence against him;
(3) He has the right to the presence of an attorney;
(4) If he cannot afford an attorney, the court will appoint one for him;
(5) He may request that the questioning cease at any time; and

(6) He may waive any of these rights. This Court approved the Mississippi Uniform Criminal Rules of Circuit Court Practice by our Order dated August 15, 1979, which Order contains a finding that the Rules “... will assist the Circuit Court Judges of the state in the efficient and expeditious disposition of the business of the circuit courts.... ” In Interest of Wilder, 347 So.2d 520 (Miss.1977) states that “[a]n individual has a right to stop the interrogation at any time he wishes, but it is not required that he must be so informed.” The record shows that the defendant was given the four warnings required by Miranda to the effect:

(1) that he has the right to remain silent,
(2) that anything he says can be used against him in a court of law,
(3) that he has the right to the presence of an attorney, and
(4) that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
(384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726).

He was also advised that if he decided at any time to exercise any of his rights, one of which was that he did not have to talk but could remain silent, the interrogation would cease. We stated in Robinson v. State, 228 So.2d 373, 376 (Miss.1969) that the “four-fold” warning, required by Miranda, “comprehends and includes the right of a suspect to terminate his questioning at any time he wishes.”

We think that the warnings given in this case were adequate and there is no indication in the record that the defendant’s statements given to the law enforcement officers were not voluntary. Accordingly, we hold that the oral and written statements were properly obtained.

DOES THIS CASE FALL WITHIN THE “WEATHERSBY” RULE, THEREBY ENTITLING THE DEFENDANT TO A DIRECTED VERDICT OR PEREMPTORY INSTRUCTION? Argument of the defendant here is that he was the only eyewitness to the crime and therefore entitled to be acquitted under the Weathersby Rule, which states that if the defendant or his witnesses in a criminal case are the only eyewitnesses, their version, if reasonable, must be accepted unless substantially contradicted by other testimony, physical facts, or common knowledge. Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).

Here it is pertinent that we set forth some of the testimony. The defendant’s version which he gave in court was that when he stepped inside his ex-wife’s house, Longmire (his victim) attacked him, struck him in the face, and reached back behind him as if going for a v/eapon, at which time the defendant says that he shot Longmire. In several respects, this version given by the defendant is substantially contradicted. The two statements given by him to the law officers made no mention of the struggle between him and Longmire and made no mention that Longmire attacked him, or that he (the defendant) thought Longmire was reaching for a weapon. Therefore, the Weathersby Rule is not applicable. Sartain v. State, 311 So.2d 343, 345 (Miss.1976). Additionally, according to the defendant’s version, during the struggle his shirt was “ripped apart” and the struggle left marks about his body. Again this version is contradicted by the investigative officers who testified that the defendant’s clothes were not torn and that they found no marks, bruises, or scratches on his body. Petty v. State, 332 So.2d 413, 414 (Miss.1976). There are other contradictions, substantial in nature, as to the defendant’s version of the episode, and clearly this is not a case for application of the Weathersby Rule.

DID THE LOWER COURT ERR IN FAILING TO LIMIT THE JURY ISSUE TO MANSLAUGHTER? Our answer has to be negative because the testimony raised a classic issue of murder to be resolved by the jury upon conflicting evidence. The defendant’s version was that his victim without any reason whatever just attacked him upon his arrival at the house making it necessary that he slay his attacker, Long-mire. To the contrary is the testimony of Margaret that on the evening of December 12, 1979, the defendant came to the house where he found her, her son, and Longmire (apparently Longmire was having some sort of an affair with her). The ex-wife Margaret stated that the defendant exhibited a pistol and threatened to kill all of them after which Lpngmire left the place. According to her the defendant returned the following night after midnight and began beating on the windows of the room where she and Longmire were sleeping. She testified that the defendant kept yelling that he would break the door down if they did not let him in and that this prompted Longmire to go to the door where he told the defendant that he could not come in; then she heard a shot. On this testimony, the issue of murder was properly submitted to the jury. Interestingly enough, at the defendant’s request the jury received instructions on manslaughter.

DID THE LOWER COURT COMMIT ERROR BY REFUSING TO GRANT THE DEFENDANT HIS REQUESTED INSTRUCTION D-10? The instruction was clearly improper because it contained language that the state had the burden of proving the charge not only beyond a reasonable doubt but

to the exclusion of every other reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence ....

There is no merit to this argument because the state’s case was not based entirely on circumstantial evidence but partly upon his confessions. Additionally, the instruction could have been properly refused because it contained confusing language. Accordingly, there is no merit to this part of the argument.

DID THE REMARKS OF THE PROSECUTORS IN CLOSING ARGUMENT CONSTITUTE REVERSIBLE ERROR? In his closing argument, one of the prosecutors stated to the jury that the “Defendant has asked for some manslaughter instructions.” Objection was made to the prosecutor’s statement, and the lower court sustained it, after which the prosecutor stated to the jury, “They seem to want manslaughter.” Then the defense objected and moved for a mistrial which objection and motion were overruled. The prosecutor’s statement that the defendant asked for “some manslaughter instructions” has similarities to that which we condemned in Forrest v. State, 335 So.2d 900 (Miss.1976). In Forrest, we ordered reversal but in the instant case it is to be noted that the evidence is not close or not nearly so close as it was in Forrest. Another feature of Forrest which makes it different from the present case is that in Forrest there are three separate episodes in which the prosecutor asked questions inferring that the defendant had committed other offenses. One of these indiscretions was committed by the prosecutor after the trial court had sustained an objection. Reversal was ordered in Forrest because of several errors, none of which when considered separately would have been reversible error.

Part of the argument of the defense is directed at the prosecutor’s statement to the jury that “This is the strongest case of murder I have seen since I’ve been in office.” Our view as to this portion of the prosecutor’s jury argument is that what he said was within the bounds of legitimate argument. Peyton v. State, 286 So.2d 817, 819 (Miss.1973).

We do not find any merit to the argument made that reversible error occurred on account of what was said in the prosecutors’ closing arguments. Upon the totality of the evidence before the jury, the verdict was more than adequately supported by the evidence, and it would be difficult to see how any fair-minded jury could have arrived at any verdict other than that of guilty. Obviously at the time of the killing, the defendant had armed himself with a pistol and gone to his ex-wife’s residence shortly after midnight. There Longmire answered his knock and was killed. The defendant’s version of the incident that his clothes were torn and that he had marks on him was completely contradicted by the testimony of the investigating officers. Neither of his confessions contained his version given at trial that in a struggle between him and Longmire, he shot Longmire in self-defense. The trial record and excellent briefs make it clear that the defendant was ably and vigorously defended. Evidence of the defendant’s guilt was overwhelming and although he did not receive a perfect trial, he was fairly tried, and no reversible error is to be found.

AFFIRMED.

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


author: SUGG, Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. Kenneth R. SCITZS.
    No. 52437.
    Supreme Court of Mississippi.
    March 11, 1981.
    Gail A. Crowell, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellant.
    J. Robert Sullivan, Laurel, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The plaintiff, Kenneth R. Seitzs, filed a declaration in the Circuit Court of the Second Judicial District of Jones County seeking judgment against the defendant, State Farm Mutual Automobile Insurance Co., for the sum of $10,000. He alleged he was due this sum under the medical coverage provisions of two policies of insurance issued by the defendant on two vehicles which were not involved in the collision resulting in plaintiff’s injuries.

The case was submitted to the trial judge on the following stipulation of facts. On October 16,1977, the plaintiff, while driving his 1976 model Chevrolet one-half ton pickup truck, was injured in a collision with a vehicle driven by Ray Musgrove. Plaintiff incurred medical expenses totaling $18,-979.90 within one year from the date of the collision for treatment of injuries received by plaintiff in the collision. At the time of the collision, plaintiff owned, in addition to the Chevrolet pickup, two other vehicles, a Ford LTD and a Chevrolet Chevette. All three of the vehicles owned by plaintiff were covered by separate liability policies issued by the defendant containing medical payment provisions for which separate premiums were paid. The declarations in each policy described only one vehicle. Each of the policies was issued on a different date but were otherwise identical except for the description of the insured vehicle and the premium charged. The maximum medical payment coverage of each policy was $5,000.

The defendant, recognizing its liability under the policy covering the pickup truck involved in the collision, paid the plaintiff the maximum medical payment coverage of $5,000 provided for in the policy covering the pickup truck. Plaintiffs suit was for payment of a like and equal amount under each of the other two policies.

Plaintiff maintained the medical coverage of all three policies applied and he was entitled to “stack" the coverage under the policies. Defendant’s position was that the $5,000 paid plaintiff under the policy insuring the Chevrolet pickup was the extent of its liability, and the two policies insuring plaintiff’s vehicles which were not involved in the collision did not apply.

The trial court agreed with plaintiff and held that the medical payment provisions of. all three policies applied and entered judgment for $10,000. The $10,000 represented the aggregate of the maximum medical payments coverage under the two policies insuring plaintiff’s two vehicles which were not involved in the collision.

Defendant’s appeal presents the question of whether the medical coverage provisions of the three policies may be aggregated or “stacked.” This is a question of first impression in Mississippi. States which have considered the question hold that the question must be determined by construing the provisions of the policies involved in accord with the accepted rules for construing insurance policies. The rules for construction of insurance contracts are firmly established in our cases. See cases in Volume 9 Mississippi Digest, Insurance (1964) under key numbers 146.4, 146.5(1)(2), 146.-7(1)(6)(7).

Following are summary statements of these rules of construction:

1. Where an insurance contract is plain and unambiguous, it should be construed as written, like other contracts.

2. Insurance Contracts are construed most strongly against party drafting contract, and most favorably to the policyholder.

3. Where terms of insurance contracts are ambiguous or doubtful, contract must be construed most favorably to insured and against insurer.

4. Insurance contracts must be given a reasonable and sensible interpretation, and where policy is subject to two interpretations equally reasonable, that which gives the greater indemnity to the insured should be adopted.

5. Where there is no practical difficulty in making the language of an insurance contract free from doubt, any doubtful provision in the policy should be construed against the insurer.

6. Terms of insurance policies are construed favorably to insured wherever reasonably possible, particularly exclusion clauses.

7. Although ambiguities of insurance contract should be construed against insurer, court cannot alter or change contract where terms are not ambiguous, despite resulting hardship on insured.

With these rules of construction as a guide, we now turn to the provisions of the policies involved in this case. At the outset, it is noted that each policy insured only one automobile specifically described in the “declarations.” One policy described the Chevrolet pickup involved in the collision, another a Ford LTD owned by plaintiff, and the other a Chevrolet Chevette owned by plaintiff. In the declarations of each policy the limits of liability for medical payment under Coverage C was $5,000. Each of the policies contains the following insuring agreements:

COVERAGE C — MEDICAL PAYMENTS
To pay reasonable medical expenses incurred for services furnished within one year from the date of accident:
(1) while occupying the owned motor vehicle, or
(2) through being struck by a highway vehicle while not occupying a land motor vehicle . ..

The liability of defendant for medical payments is fixed by the insuring agreements in each policy as set forth in Coverage C(l) and (2). Under Coverage C(l) defendant is liable for medical expenses incurred by any person while occupying the owned motor vehicle. The word “occupying” and the words “owned motor vehicle” are precisely defined in each policy as follows:

DEFINITIONS
Occupying — means in or upon or entering into or alighting from.
Owned Motor Vehicle — means the motor vehicle or trailer described in the declarations, .. .

Coverage C(l) of each policy clearly limits the liability of defendant for medical expenses to occupants of the owned motor vehicle, namely, the motor vehicle described in the declarations of the policy. Coverage C(l) does not apply while occupying another motor vehicle. In this case, plaintiff was occupying his Chevrolet pickup. The Chevrolet pickup was described in the declarations of the policy insuring it, so it was the only owned motor vehicle under Coverage C(l) as defined in the policy. Defendant admitted liability for medical expenses on the policy insuring the Chevrolet pickup because it was the owned motor vehicle being occupied by plaintiff when he was injured.

Each of the other two policies of plaintiff described different motor vehicles. In one, plaintiff’s Ford LTD was described in the declarations and in the other, his Chevrolet Chevette was described in the declarations. Each of these policies limited liability of defendant for medical expenses under Coverage C(l) to occupants of the vehicle described in the declarations. Plaintiff was not an occupant of either of these vehicles so the insuring agreement of the policies insuring these vehicles did not apply.

We are of the opinion that the insuring agreements of each policy under Coverage C(l) are plain and unambiguous. Under each policy defendant agreed to pay the reasonable medical expenses incurred by an occupant of the owned motor vehicle defined as the motor vehicle described in the declarations. Coverage C(l) does not extend to any motor vehicle not described in the declarations.

Our conclusion that the medical expense coverage of each policy was limited to an occupant of the owned motor vehicle is fortified by the provisions of each policy setting forth exclusions under Coverage C. Each policy provides:

EXCLUSIONS
(j) COVERAGES C AND M. TO BODILY INJURY TO ANY PERSON:
(2) While occupying or through being struck by any land motor vehicle or trailer if such vehicle is owned by the named insured or, if residents of his household, his spouse or the relatives of either, and is not an owned motor vehicle.

The exclusion of Coverage C applies to occupants of any vehicle owned by the named insured which is not an owned motor vehicle. As heretofore stated, owned motor vehicle is defined as the motor vehicle described in the declarations. The Chevrolet pickup was the vehicle described in the declarations of the policy insuring the Chevrolet pickup. It was the owned motor vehicle occupied by plaintiff at the time of the collision.

The exclusions clause of the policy pertaining to Coverage C is not in conflict with the insuring agreements of the policy, but is simply another clear expression that Coverage C applies only to the vehicle occupied at the time of the collision and not to the other vehicles described in the declarations of plaintiff’s other policies.

We therefore hold that the policies must be construed as written because the provisions of the policies are plain and unambiguous. They limit recovery by an occupant of any one of the three vehicles insured in the separate policies to the vehicle being occupied at the time of the injury. The trial judge erred in stacking the coverage of the three policies.

We reverse and render holding plaintiff was not entitled to recover $10,000 under the two policies insuring the Ford LTD and the Chevrolet Chevette.

REVERSED AND RENDERED.

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

      . We are not concerned with Coverage C(2) because plaintiff was not “struck by a highway vehicle while not occupying a land motor vehicle.” This coverage would apply only if plaintiff was a pedestrian and was struck by a highway vehicle. Neither does this case involve the coverage afforded when being injured when occupying a non-owned vehicle as defined in other provisions of the policies because plaintiff was occupying an owned motor vehicle; to-wit, the Chevrolet pickup described in the declarations.

      . Coverage M involves major medical payments. Coverage M is not involved in this case because the premiums paid for each policy did not include a premium for Coverage M.