author: PATTERSON, Chief Justice, COFER, Justice,

text:
    BIG “2” ENGINE REBUILDERS and Casualty Reciprocal Exchange v. Raymond W. FREEMAN.
    No. 51463.
    Supreme Court of Mississippi.
    Jan. 30, 1980.

      Bryant & Stennis, Rae Bryant, Gulfport, for appellants.
    O’Barr, Humbert & O’Barr, Bobby G. O’Barr, Biloxi, for appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

An administrative law judge, followed by the three-member Workmen’s Compensation Commission and the Circuit Court of the First Judicial District of Harrison County, decided this workmen’s compensation case in favor of the claimant, Raymond W. Freeman. The employer, Big “2” Engine Rebuilders, and its insurer, Casualty Reciprocal Exchange, appeal, contending that Freeman’s injury did not “aris[e] out of and in the course of [his] employment” within the meaning of Mississippi Code Annotated section 71-3-3(b) (1972). We affirm.

On Wednesday, September 3, 1975, the claimant, a route salesman, drove a one-seated unmarked van pursuant to his duties of calling on garages in Hancock County, delivering products and taking orders for parts or engine repairs. At about noon, he proceeded westerly on a service road paralleling Highway 90 enroute to Spiers’ Garage when he came upon a man who flagged him to stop beside an automobile with a raised hood. Responding to the distress signal of the apparently disabled motorist, the claimant pulled over and exited his van. The man pointed a gun behind his ear and told him not to turn around. The claimant, apparently from a blow, lost consciousness and recall at this moment, although the evidence shows he managed to recover sufficiently from the trauma of head injuries, to reach Spiers’ Garage, where he lapsed once more into unconsciousness in the presence of his employer’s customer. The forums below found that the roadside encounter rendered him permanently and totally disabled.

The singular purpose pervading the Workmen’s Compensation Act is to promote the welfare of laborers within the state. Miss.Code Ann. § 71-3-1 (1972); Nowlin v. Lee, 203 So.2d 493 (Miss.1967). As remedial legislation to compensate and make whole, McCluskey v. Thompson, 363 So.2d 256 (Miss.1978), it should be construed fairly to further its humanitarian aims. Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss.1977); L. B. Priester & Son, Inc. v. Dependents of Bynum, 244 Miss. 185, 197-98, 142 So.2d 30 (1962). Doubtful cases must be compensated. Evans v. Continental Grain Co., 372 So.2d 265 (Miss.1979); King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So.2d 209 (1957); Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872 (1954); National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723 (1953); Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951); see also Dunn, Mississippi Workmen’s Compensation §§ 31-32 (2d Ed. 1967).

The order of the administrative judge, the decision of two commissioners in affirmance, one commissioner dissenting, the comments of the circuit judge in affirming, and the disparate conclusions of the justices on this Court, indicate strongly the case is doubtful. This, coupled with the lack of controlling authority in this jurisdiction and the persuasiveness of the weight of authority from other jurisdictions, supports affirmance, in the opinion of a majority of the members of this Court. We decline, as urged by the appellant, to hold that a roadside stop of a traveling salesman upon being flagged down constitutes a “deviation” entailing forfeiture of compensation benefits.

The statutory language “arising out of” and “in the course of” creates a requisite for compensability. Broadly, “arising out of” calls for some causal connection between the employment and the injury. However, the employment need not be the sole cause of injury; it is sufficient if it rationally contributes to it. Prince v. Nicholson, 229 Miss. 718, 91 So.2d 734 (1957). Reasonable relation of employment and injury may involve minimal causation, less than needed for liability in the field of Torts. See, e. g., Charles N. Clark Assoc. v. Dep. of Robinson, 357 So.2d 924 (Miss.1978).

The decisions also display the breadth of the phrase “in the course of.” This phrase is satisfied whenever the injury resulted from activity which is (1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to the employment. Incidental activities have been held to include such personal pursuits as cleaning teeth, smoking and procuring tobacco, and going to the telephone. Dunn, supra, at § 178 (2d Ed. 1967). In Collums v. Caledonia Mfg. Co., 237 Miss. 607, 115 So.2d 672 (1959), we permitted compensation for emotional upset resulting from an employee’s purchase of a bottle of soft drink containing a mouse. The purchase of soft drinks was without doubt “purely personal,” but being rationally connected with the employment, customary and expectable, compensation was allowed.

With respect to traveling salesmen in particular, “ ‘[t]he test in brief is this: If the work . . creates the necessity for travel, [the employee] is in the course of his employment, though he is serving at the same time some purpose of his own.’ ” Durr’s Dependents v. Schlumberger Oil Well Surveying Co., 227 Miss. 606, 614, 86 So.2d 507, 509 (1956). We recently held the activity of a traveling salesman is not to be lifted from the perimeters of his employer’s mission and viewed “in isolation” but must be viewed in its context, “as a whole.” E & M Motel Management, Inc. v. Knight, 231 So.2d 179, 182 (Miss.1979) (injury on stop to see grandchild held compensable, citing the “dual purpose” doctrine). When we view the present claimant’s conduct “as a whole,” we think it sufficiently within the contours of his employment to affirm the award notwithstanding the involvement of a third party intentional tort.

Mississippi Code Annotated section 71-3-3(b) (1972), provides in part:

“Injury” means accidental injury . arising out of and in the course of employment . . . and also includes an injury caused by the wilful act of a third person directed against an employee because of his employment while so employed and working on the job . [emphasis added].

The statute employs inclusive, not exclusive, language and mandates recovery for injury caused by a third party whenever it can fairly be said that the employee was injured “because of” his employment. The words “because of,” like the other broadly-construed words of causation with the act, such as “arising out of,” express the necessity of a nexus between the injury and employment. The base line is simply a rational connection of employment and injury. In Barry v. Sanders, 211 Miss. 656, 52 So.2d 493 (1951), although denying compensation, we held the issue of whether a claimant was assaulted “because of his employment, while so employed and working on the job,” was factual and to be determined by the commission.

We have few compensation cases involving third party intentional torts. A review of those which deny compensation reveals none which compel reversal in the face of Barry, supra.

We have held no rational connection exists where the intentional tort is the result of a personal vendetta as easily committed at the place of employment as elsewhere. In Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 626, 59 So.2d 294 (1952), we denied compensation where an irate husband killed an employee laundry man, suspecting him to be his wife’s paramour. Similarly, in Ellis v. Rose Oil Co., 190 So.2d 450 (Miss.1966), we denied compensation where the employee’s death resulted from his affair with a married woman. In another case denying compensation, a jilted suitor murdered the employee. West’s Est. v. Southern Bell Tel. & Tel. Co., 228 Miss. 890, 90 So.2d 1 (1956). See also Dewberry v. Carter, 218 So.2d 27 (Miss.1969) (record reveals the deceased scuffled and met his death as a result of outrage flowing from a “conversation” with his assailant “about this woman”; compensation denied). We agree with these cases in their holdings that no public policy would be served by compensating an injury or death originating with the employee’s personal indiscretions, whether real or fancied. Risks associated with such escapades cannot reasonably be viewed as risks associated with employment. This case, in contrast, involves no such “frolic.”

Barry, supra, we find distinguishable also. We there denied compensation on a record devoid of proof as to why the claimant, a traveling salesman, was assaulted between his car and his lodging upon returning from his evening meal. In sum, this Court has never denied compensation to an employee injured as a result of a good faith attempt to render aid to a stranger actively soliciting such aid at a place the employment required the employee to be.

We are of the opinion the following facts make this case one of first impression, to be decided as such: (1) no personal vendetta arising from the claimant’s activities motivated his injury; (2) the claimant violated no instructions concerning the manner in which the work was to be carried out; and (3) the stop by the roadside upon being flagged down involved no significant deviation either spacially or temporally from the delivery route. We think an employer may reasonably foresee that his traveling employee will stop to aid a distressed motorist when implored to do so. Such conduct is an acknowledged incident of being on the road. These distinctive aspects here deprive the following cases of controlling effect: Breland & Whitten v. Breland, 243 Miss. 620, 139 So.2d 365 (1962); Earnest v. Interstate Life & Accident Ins. Co., 238. Miss. 648, 119 So.2d 782 (1960); Collier v. Texas Construction Co., 228 Miss. 824, 89 So.2d 855 (1956); Persons v. Stokes, 222 Miss. 479, 76 So.2d 517 (1954); Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582 (1953).

Injuries resulting from similar well-intentioned humanitarian acts have been found compensable in other states. See, e. g., Baumann v. Howard J. Ehmke Co., 126 Pa.Super. 108, 190 A. 343 (1937). We note also that universally recognized, small, non-deviant charitable activities promote the employer’s interest and public relations. Larson, Workmen’s Compensation Law, § 27.22(b) (Cum.Supp.1979). Particularly is this true where, as here, the employer’s business includes the sale of rebuilt engines and parts, and the stop resulted from the signal of a distressed motorist.

In O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951), the claimant’s decedent, an employee of a government contractor, while waiting for his employer’s bus, saw two strangers off the coastline signaling for help. Disregarding signs forbidding swimming in the hazardous waters, he plunged into the channel and drowned in his rescue effort. The Court allowed compensation, stating, “[a]ll that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose. ... A reasonable rescue attempt . . . may be ‘one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.’ ” 340 U.S. at 507, 71 S.Ct. at 472.

We follow O’Leary in favoring compensation for injury or death incurred in the aid of strangers rendered at a time and place within the contours of the employment, and agree with Larson that compens-ability follows when “ordinary standards of humanity” call for rescue. Larson, Workmen’s Compensation Law, § 28.00 (Cum. Supp.1979); see also Quinney v. Maryland Cas. Co., 347 So.2d 921 (La.App.1977); Carey v. Stadther, 300 Minn. 88, 219 N.W.2d 76 (1974); Reilly v. Weber Engineering, 107 N.J.Super. 254, 258 A.2d 36 (Cty.Ct.1969); Texas Employer’s Ins. Association v. Thomas, 415 S.W.2d 18 (Tex.Civ.App.1967); Graves v. Central Electric Power Cooperative, 306 S.W.2d 500 (Mo.1957); Noble v. Zimmerman, 237 Ind. 556, 146 N.E.2d 828, 832-33 (1957); Scott v. Rhyan, 78 Ariz. 80, 275 P.2d 891, 894 (1954); Edwards v. Louisiana Forestry Comm., 221 La. 818, 60 So.2d 449 (1952); Denton v. Young, 203 Okl. 688, 226 P.2d 406 (1950); Glen Falls Indemnity v. Sockwell, 58 Ga.App. 111, 197 S.E. 647 (1938).

We nevertheless emphasize, as does Larson, that not “every rescue of a stranger by an employee is covered; [the rule here endorsed] refers [only] to a rescue the necessity for [the] making [of] which is thrown in the claimant’s path by the conditions of the employment. When [, for example,] claimant is . . a . . driver who is certain to encounter collisions along the highway, it is easy to see the connection between the work and the contact with the emergency.” Larson, supra, at § 28.22. See Puttkammer v. Industrial Comm'n., 371 Ill. 497, 21 N.E.2d 575 (1939) (truckdriver’s injury received while carrying injured child across a road from scene of accident at which he stopped to render aid held com-pensable, the Court reasoning that it would be wholly illogical to compensate injuries received on stop for a drink of water, but not injuries received on stop made out of laudable humanitarian impulses).

We think the present claimant’s injury resulted from a humanitarian act which was literally thrown into his path because of his employment. Compare In Re D’Angeli’s Case, 369 Mass. 812, 343 N.E.2d 368 (1976), in which an employee returning from his employer’s mission stopped to remove a coil of wire from a lane of travel rather than taking an unobstructed course around it. He did so not “for” himself or employer, but rather for the safety of subsequent motorists on the road. In the process a car struck him, and the Court held the injury compensable. See also Toro v. 1700 First Avenue Corp., 12 N.Y.2d 1001, 239 N.Y.S.2d 130, 189 N.E.2d 625 (1963) (compensation awarded where repairman was fatally injured by unknown assailant for unknown reasons in house in which he was to repair boiler).

In conclusion, no Mississippi case compels a decision against compensation on this appeal. It is at least a “doubtful case,” and as such we affirm it in favor of compensation. In our opinion, injuries caused by third party intentional torts should be compensated whenever it can be fairly said that they occurred “because of” the employment. Such was the present case.

AFFIRMED.

ROBERTSON, P. J., and WALKER, LEE and BOWLING, JJ., concur.

SMITH, P. J„ and COFER, SUGG and BROOM, JJ., dissent.

COFER, Justice,

dissenting:

Being of the strong conviction that the injury here involved was not in the course of Freeman’s employment and did not arise out of the employment, I, with deference, dissent.

A review of the proof and an examination of authorities hereinafter contained will, in my opinion, demonstrate error in the decision which warrants reversal and judgment here for appellants.

Appellee Raymond W. Freeman filed a motion to controvert with the Workmen’s Compensation Commission on February 26, 1976. As ground therefor he showed location of accident as “Spiers Body Shop, Bay St. Louis, Mississippi,” and description of accident or cause of injury as “fractured skill with subdural hematoma.” He filed motion to amend to show “that the alleged accident occurred on the service road next to U. S. Highway 90 west of Waveland, Mississippi, west of Our Shopping Center.” This motion to amend was sustained on April 28,1976. Appellants, Big “2” Engine Rebuilders, the employer, and Casualty Reciprocal Exchange, Big “2’s” carrier, answered with an affirmative defense, “The condition complained of by the claimant in his case did not arise out of or in the course of his employment and his condition is in no way related to his employment.”

On June 17, 1977, the administrative judge, after hearings, held the occurrence to be compensable under the Workmen’s Compensation Act, and appellants here appealed therefrom to the full Commission where, by the majority, the administrative judge was affirmed. Appellants took the case to the Circuit Court of the First Judicial District of Harrison County where the award was affirmed and the employer and the carrier have appealed here.

The assignment of error is that “The Circuit Court erred in finding that the order of the commission did not contain error of fact or law.”

Pertinent facts, and agreeing with those found by the administrative judge, are as follows:

Claimant was employed by Big “2” as a commission salesman on a route. He was furnished a truck, and on the day of the occurrence presently to be detailed, he was driving a van, with only one seat. For his driving he was paid vehicle expenses. His employment was to call on garages in the three coastal counties and Stone County, delivering products his customers had ordered and taking orders from them for parts or engine repairs. As he did so, he would occasionally collect on C.O.D. items, but infrequently received money for his employer. On the day of the occurrence in issue, his employer’s van which he was operating had no indication on it linking the employer with it, and he had no items of property to be delivered to customers, and had none of his employer’s money with him.

He was required to keep a daily record of his actions as employee and to turn this log into his employer.

On Wednesday, September 3, 1975, his duties and schedule were to have him in Hancock County. His daily record for that day reflected that he worked westward, and at roughly the noon hour, he had only one more call westerly to make, and that was past Bay Saint Louis, at Spiers’ Garage. He had lunch at a shopping center in Bay St. Louis, after which he proceeded westerly on a service road paralleling Highway 90. On the way to Spiers’ Garage he came upon a man with the hood raised on his car, and the man flagged him to stop.

Apparently assuming the man to be distressed because of car trouble, the claimant pulled to a stop and got out of the van. As he did so, the man pointed a gun behind claimant’s ear and told him not to turn around. That was the last thing he remembered until he regained consciousness in a Gulfport Hospital, and although he went to Spiers’ Garage where he fell out, and was carried from Spiers’ Garage to a Hancock County hospital, from whence he was removed to the Gulfport Hospital, he had no memory of these events. At the Gulfport Hospital he underwent surgery for a brain injury incurred in the incident and received treatment for other injuries to his face, forehead and the right side of his head.

His daily log was filled out to show the hour and minute of his arrival at Spiers’ Garage and the hour and minute of his departure therefrom, and the record contains testimony of Mrs. Spiers as to a conversation between her and him at that garage and likewise testimony of Dewey Holden, an employee at the garage, of a conversation with claimant and of claimant’s falling to the floor thereat.

There is no conflict in the facts before the administrative judge and before the commission.

The administrative judge found that as a result of that accidental injury, claimant is permanently and totally disabled and has been since September 3, 1975. He also found that on the date of the injury, September 3, 1975, claimant, “suffered an accidental injury which arose out of and in the course and scope of his employment of which the employer and carrier had notice and for which medical service and supplies were required.”

Under their general statement of the error, on the part of the lower court, appellants argue two propositions:

1. Claimant, in stopping under the circumstances, deviated from his duties and thereby rendered his action noncompensa-ble, and

2. The burden of proof was on claimant to establish the occurrence as meeting the requirements of Mississippi Code Annotated, section 71-3-3(b) (1972), for compensation.

The commission is the trier of fact, of course. Its findings and order will not be disturbed on appeal, unless prejudicial error is found therein, but the court has the statutory duty to review all questions of law and fact in the record. Section 71-3-55 and the several decisions annotated thereunder.

As in other cases, the law governing workmen’s compensation hearings is that where there is no dispute as to the facts, the matter for decision is one of law. Wilson v. International Paper Co., 235 Miss. 153, 157, 108 So.2d 554 (1959). It has been observed above that there is no conflict in the testimony as to compensability or none.

It is argued, and supported by the record, that claimant’s employment was to call on places of business which might want automobile engine service or parts. No part of his business or duties was stopping to lend aid to one he unfortunately mistakenly supposed to be a stalled motorist.

While we do not have any decisions bearing directly upon the effect of his stopping to be of assistance to a stranded motorist, we have, again with deference to the majority, sufficient law to compel a decision that the deviation is noncompensable.

Mr. Dunn, in his monumental work, Mississippi Workmen’s Compensation, section 171 (2d Ed. 1967), sets out the rule thus:

If an employee steps aside from his employer’s business for some purpose of his own, which is disconnected from his employment, the relationship of employment is temporarily suspended and he ceases to be in the course of employment. And this is no matter how short the time. When an injury is sustained during such suspension, it is not compensable.
******
Instead of deviating on a mission of personal pleasure or necessity, the employee may step aside from his general employer’s work to perform work for a third party, and, in such cases, the same rule applies. If this is done without the knowledge and consent of the general employer and not as a part of his general employment, the general employer is not responsible for an accident in the course of such activity.

Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582 (1953), is cited in the footnote to the paragraph of Dunn next above. Kughn was production superintendent of appellee, and, as such, he was required to check the production of each oil well and make a daily report to his employer. In the discharge of his duties, he was furnished an automobile. He was an experienced cable splicer, and did cable splicing on the side. On a day after completing his daily rounds of inspection for Rex Drilling Company, he went to a drilling site of Zach Brooks Drilling Company and began a cable splicing job, during which he had a cerebral hemorrhage, from which, after completing the job and on the way to a doctor’s office, he died. The widow’s claim against both drilling companies was denied, the attorney-referee giving as reason therefor, “that he had temporarily left his regular employment and the area where he was required to work and was splicing a cable in Franklin County for the Zach Brooks Drilling Company without the knowledge or consent of the Rex Drilling Company.” The decision was affirmed by the commission, the circuit court, and the Supreme Court.

In Breland & Whitten v. Breland, 243 Miss. 620, 139 So.2d 365 (1962), this Court said that if the activity is purely personal and is disconnected from employment, the duration of that activity suspends the employment relationship, citing Dunn’s work, section 98.

In Bryan Bros. Packing Co. v. Dependents of Murrah, 234 Miss. 494, 106 So.2d 675 (1958), the Supreme Court said:

We have held that a traveling employee as being in the course of his employment from the time he leaves home on a business trip until he returns and the employment covers both time and place of travel except in deviation cases or where he was on a personal mission or errand of his own. M. E. Badon Refrigeration Co. v. Badon [231 Miss. 113], 95 So.2d 114, Dunn, Mississippi Workmen’s Compensation Law, Sec. 103. (234 Miss. at 500, 106 So.2d at 677).

M. & W. Construction Co. v. Bugg, 241 Miss. 133, 141, 129 So.2d 631, 633 (1961), held that, “[a]n injury arises out of the employment when there is a casual (sic) connection between it and the job.” (Citing Earnest v. Interstate Life & Accident Ins. Co., 238 Miss. 648, 119 So.2d 782 (1960)). Bugg was an around-the-clock employee of appellant, and was killed in a late afternoon by the falling of his panel truck upon him. There was some testimony that Bugg had been using the vehicle in furtherance of his master’s business and that he was preparing it for further use for his master. This Court further said,

The testimony for claimants had therefore made out a prima facie case, since it was admitted that deceased Mr. Bugg was a resident employee on 24-hour duty, —not only as to “arising out of” but also “in the course of employment.” It then became the burden of the employer to establish his defense that employee Bugg had “stepped aside” from his duty to his employer and temporarily abandoned the course of his employment. Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209, and cases there cited.
(241 Miss. at 144, 145, 129 So.2d at 635).

In Earnest v. Interstate Life & Accident Ins. Co., 238 Miss. 648, 119 So.2d 782 (1960), (cited in the Bugg case above), appellant was employed as an insurance salesman for appellee. He had written insurance on the lives of four children of O’Neal Brandon. O’Neal lived with his father Grover Brandon. Appellant had been undertaking to get a waiver for the issuance of a policy to Grover, and, being successful, he went to Grover’s rural home to take him for a medical examination looking to the issuance of insurance on him. Grover wanted to shave, and, while waiting for him, appellant saw Grover’s son Neal some distance away from the house, and started to approach him to talk about insurance on him, O’Neal, who could not qualify for insurance on account of an ulcer. Further facts are related in the opinion.

Claimant testified he was going to talk to O’Neal about a policy while waiting for Grover. He walked a short distance' toward him, and then returned to his car and picked up his shotgun. Claimant was interested in guns and carried one with him wherever he went, for the purpose of shooting any available birds. He lifted from his car his 12-gauge shotgun for the purpose of shooting some crows, which he had seen earlier flying in the vicinity. He liked to shoot a gun, and stated that if he saw a crow he intended to shoot him. He put a shell in the gun and walked about four steps toward where O’Neal was working when the gun accidentally discharged, hit him in the left ankle, as a result of which the lower part of that leg had to be amputated. (238 Miss. at 651, 119 So.2d at 783).

Claimant claimed that he was approaching O’Neal to tell him, if his father was approved, he would try to get an approval for him also. “However, he frankly said that he obtained the gun to shoot a crow.”

Grover testified that “Earnest [had] told him he had picked up his gun and was loading it to go down in the woods and shoot some crows. He did not remember him saying anything about going to see O’Neal.”

Appellee’s staff manager said Earnest “stated to him that while he was waiting for Grover Brandon, he (claimant) decided to get his gun and shoot a crow. He knew claimant carried the gun in his car and liked to shoot, but gave him no instructions about it one way or the other.”

Coverage was denied, the Commission finding that claimant had “deviated from his employment and obtained a dangerous instrumentality not connected with his work, for his own personal pleasure”, these being acts not. incident to his employment.

Appellant claimed that he was on the Brandon property for the only purpose to sell insurance, and “when injured, he was at a place where he was supposed to be, fulfilling his duties.” He asserted a dual purpose, in that the weapon was for his personal pleasure, but he was also performing his job in trying to sell insurance to both Bran-dons.

This Court said:

An injury arises out of the employment when there is a causal connection between it and the job. (Citing authorities). Claimant was not required to carry the gun. Its possession by him when it discharged was not connected with his employment. The injury did not arise out of the employment.
Earnest admitted he carried the gun for his own personal pleasure, and it had no connection with his job. The risk was unrelated to the employment, as distinguished from the mere increasing of hazards from employment by the employee using some article which proves to be dangerous, such as matches, defective clothing, etc. (citing authorities). In short, appellant’s injury did not arise out of his employment. (Emphasis added) (238 Miss. at 652, 653, 119 So.2d at 783, 784).

This Court said further:

Secondly, the claimant’s injury did not occur in the course of his employment, but at a time he had turned aside on a personal mission of his own. When claimant retraced his steps to his car for the purpose of getting his gun to shoot a crow, he turned aside on a personal mission, and was acting on that personal mission at the time he was injured, (citations). During this deviation from his employment, he was not in the course of his work activities, (authorities). (Emphasis added). (238 Miss. at 654, 119 So.2d at 784).

In Collier v. Texas Construction Co., 228 Miss. 824, 89 So.2d 855 (1956), T. C. Collier and two other boys were employed by ap-pellee to carry drinking water from one bank of the Pascagoula River to the other and while returning in a boat, with the operator of the boat and their foreman, the boat was carrying a pump to the far shore. As they were thus returning, the boys decided among themselves that they would dive into the water and swim to the bank in order to cool off. One of the boys, not T. C., asked the foreman’s permission to dive out of the boat and swim ashore, and. the foreman told him “if they did so they ‘would be on their own’, that is to say that it would be on their own responsibility.” No one before then sought such permission or engaged in such activity.

There is nothing in the proof to indicate that these employees desired to cool off in the river so as to avoid being too hot to unload the pump from the boat when it reached the western shore of the stream. Nor is it shown whether or not the pump was of such size or weight as to require any exertion on the part of these employees to unload it.
In other words, it is clear that the boys merely decided to go in swimming while the motorboat operator and the foreman were crossing the stream with the boat, and that they were doing this for their own satisfaction in a course of action wholly unrelated to the performance of their duties within the area of their employment on the boat or the performance of their work on the bank of the stream. This recreation was not one which had been sanctioned or acquiesced in by the employer on any former occasion, even though not expressly forbidden. (228 Miss. at 828, 89 So.2d at 857).

Citing and quoting from Persons v. Stokes, 222 Miss. 479, 76 So.2d 517 (1954), presently to be noticed in this opinion, the Supreme Court said that, “Collier’s act of jumping into the treacherous current of the river involved a risk not incident to his employment.” (228 Miss. at 830, 89 So.2d at 858).

In the suggestion of error (228 Miss. 830, 90 So.2d 390), Collier’s claimants argued that the boys just took a different method of crossing the river; that Collier had not abandoned their objective, and “therefore this was only a temporary, insignificant deviation in the method of performing his employment, [and that he] was still performing an act related to the ultimate objective of his job, to reach the west bank of the river and continue work there.” (228 Miss. at 830, 90 So.2d at 390).

The Court said, in response thereto:

Here all the evidence shows that Collier got into the river with the other boys in order to cool off, and that they were doing this for their own satisfaction and for a reason wholly unrelated to the performance of their jobs. Chatham and Mann [the other two boys] testified that they all wanted to go swimming in order to cool off since the day was hot. There is no evidence that Collier and the other boys were adopting a different method of reaching the river’s bank which was the objective of performing their job. This was a turning aside from the employer’s business to engage in an activity wholly unrelated to the employment, and not in any manner incidental to it. (Emphasis added). (228 Miss. at 831, 832, 90 So.2d at 391).

Persons v. Stokes, supra, held that Stokes, whose job was to help round up his employer’s cattle, lost an eye from a ricocheted bullet or piece of tree bark when he and others left the cattle job temporarily to help kill a squirrel nearby, was not entitled to compensation, it being found that squirrel hunting was not part of his duties and the injury did not occur in the course of his employment. Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229 (1943), was cited and partially quoted therein as the Court said:

If a servant steps aside from the master’s business for some purpose of his own disconnected with his employment, the relation of master and servant is temporarily suspended and “this is so no matter how short the time, and the master is not liable for his acts during such time.” (Emphasis added). (222 Miss. at 486, 76 So.2d at 519).

Witness Bloss, claimant’s superior, was asked as to the employer’s rule, if any, about picking up hitchhikers, whereto he replied, “no, sir, we don’t pick up hitchhikers. The truck had one seat in it. It’s only for the driver.”

Dunn is quoted above that the deviation, regardless of how short in time, suspends the relation of employment and for that suspended period, he ceases to be in the course of employment.

Increased use of the roads by route salesmen is urged, with the attendant increase to exposure to the hazards of the road. Attention to needs of other users of the roads was not required by claimant’s employer, and it does not make a difference that there was no physical departure from claimant’s route other than probably maneuvering the van to the side of the frontage road. The employment put him along the road, true enough, but it did not cause or exact of him an employment duty to come to the aid of a real or apparent distressed motorist. In such an instance his gesture toward humanitarianism was at his own risk. It does not appear in the record that he was promoting or did promote the interest of his employer, directly or indirectly, by his deviation.

In this Court’s opinion on suggestion of error [now petition for rehearing] in Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294 (1952), it is said:

The fact that Watts was an employee of the Brookhaven Steam Laundry was a contributing cause of Watts’ being at the Garrett home that day, but it was in no sense a contributing cause of the willful shooting of Watts by Garrett.
(214 Miss. at 635, 59 So.2d at 300).

Under the undisputed facts and the authorities noticed above, the claimant, in stopping as he did, stepped aside from the duties assigned to him; was not engaged in any activity in the course of his employment; his injuries did not arise out of his duties, and his action was not incidental to or in furtherance of his employer’s interest.

I would reverse and render.

SMITH, P. J., and SUGG and BROOM, JJ., concur.


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    Mrs. Kathryn S. STEBBINS et al. v. Mrs. Lillian Mae HAYES.
    No. 51600.
    Supreme Court of Mississippi.
    Jan. 30, 1980.

      Cox & Dunn, Vardaman S. Dunn, Heidelberg, Woodliff & Pranks, George F. Wood-liff, III, Jackson, for appellants.
    McLaurin & McLaurin, John C. McLau-rin, Brandon, O. B. Triplett, Jr., Forest, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

“Joint venture” was the relationship decreed to have existed between J. Ray Steb-bins and R. E. Hayes, both now deceased, during the 1940’s when Hayes purchased various mineral rights (located in several counties) in Stebbins’ name. Hayes’ widow, appellee Mrs. Lillian Mae Hayes, filed suit in the Chancery Court, Second Judicial District of Jasper County against the defendants (appellants) Mrs. Kathryn S. Stebbins and two of her grantees, Mary W. Heidelberg and J. Ray Stebbins, Jr., identified jointly herein as Mrs. Stebbins. Theory of the suit is that the deceased oil operators J. Ray Stebbins and R. E. Hayes in their lifetimes had a joint venture to acquire minerals and share profits; that although title was taken in Stebbins’ name, the joint venture in truth owned the title. The decree appealed from (1) divested Mrs. Stebbins of a 50% interest in the minerals, (2) vested it in Mrs. Hayes, and (3) ordered an accounting for royalties collected. On appeal, Mrs. Stebbins contends that: the evidence is insufficient to support the decree, Mrs. Hayes’ claims are barred by limitations and laches, and the chancellor made erroneous evidentiary rulings. We reverse.

Actual acquisition of the minerals at issue occurred during the 1940’s by virtue of the activities of Stebbins and Hayes. Stebbins died in 1952 and Hayes died in 1970. The facts show that in 1944 and 1945, Stebbins was buying oil leases mainly for sale to Sinclair-Wyoming Oil Company. Hayes was also in the oil business and the two men had some sort of arrangement under which both of them would purchase oil leases from land owners. Their usual practice apparently was for Hayes to operate by drafting on Stebbins’ account, or purchase leases by using funds drawn from an account set up by Stebbins for such a purpose. When leases were acquired, most of them were sold to Sinclair after which Hayes and Stebbins divided profits. They continued to operate in this fashion until some time in 1945 when Hayes apparently returned to his home in St. Elmo, Illinois, never to return to Mississippi except for one visit in 1946. Suit was filed approximately thirty years after his last Mississippi visit.

The subject of this litigation is mineral interests under two tracts of land in Jasper County designated as the Heard and Perry-man tracts. Commercial production of oil on the Heard tract began in 1954 and began on the Perryman tract in 1971. As found by the chancellor in his opinion, the Heard tract consisted of 286 acres under which Hayes purchased a u/m interest in the name of Stebbins. The Perryman tract consisted of 320 acres under which Hayes purchased in the name of Stebbins a Vs interest. Evidence heard by the chancellor consists mainly of documentary items because both Stebbins and Hayes have long since been deceased. They operated without any written agreement, but the record discloses that there was a “joint account” and that Mrs. Stebbins kept the records. In the record is a so-called “joint account statement” compiled in 1944. Another set of figures appeared during 1946, but neither appeared to be a final accounting. Mrs. Hayes’ CPA was unable to discern from the records the actual status of the account between Steb-bins and Hayes.

The bill of Mrs. Hayes charges that during the years 1943, 1944, 1945 and 1946 the two men (Hayes and Stebbins) “entered into a joint adventure” pursuant to which Mr. Hayes would acquire “mineral interests, royalty interests, and leases” in Stebbins’ name for their joint benefit. It then charges that after title was taken in Steb-bins’ name to certain mineral interests and even though Hayes paid “his one-half of the consideration” and even though “title to the property” was in fact owned by the joint adventure, Stebbins and later Mrs. Stebbins (after Mr. Stebbins’ death) conveyed or attempted to convey portions of such properties and received royalties from production of such oil and gas. Upon such a basis, Mrs. Hayes obtained a decree below upholding her “joint venture” theory, adjudication “each co-adventurer” owned one-half the mineral interests in dispute, and requiring Mrs. Stebbins to account for “all receipts and disbursements” pertaining to the tracts of land involved.

Revealed by the record is the fact that Stebbins acquired ownership of the Perry-man minerals to the exclusion of Hayes but that Hayes held a like interest in the same tract purchased from a different grantor, S. F. Thigpen, Jr. Another fact revealed by the joint account is that in 1945 there was an apparent division of the interest held on the Heard tract.

Evidence shows that Hayes and Stebbins acquired mineral interests in various counties but no pattern exists to establish that in every case the one taking title or ownership would convey an interest to the other. Hayes took title to three mineral interests in the Second District of Jasper County, but made only two transfers to Stebbins. Also in the Second District, there were four mineral deeds into Stebbins who then made two transfers to Hayes. As to the First District in Jasper County, there were two mineral deeds to Stebbins but no transfers from him to Hayes.

In 1952, Mrs. Stebbins leased the entire Heard tract to one Hunt and production was obtained on the tract on June 1954, after which.Mrs. Stebbins received and retained for herself all the royalty. She claims to have been in open, adverse possession of the Heard minerals since 1954 (over twenty years).

By deed dated May 10, 1944, recorded May 11, 1944, Perryman deeded to Stebbins a Vsth interest in the 320-acre Perryman tract (40 mineral acres). The original of this deed was located in Stebbins’ file after his death. Of these forty mineral acres, Stebbins deeded to Joe F. Snyder a Vknd interest (10 mineral acres), leaving vested in Stebbins s/s2nds (30 mineral acres). Fourteen days after Perryman executed the mineral interest conveyance to Stebbins, one Thigpen, who had previously bought from Perryman, deeded to Hayes a %2nds mineral interest (30 mineral acres) under the same Perryman tract. This conveyance, dated May 24, 1944, was found in the same file which contained the deed under which Stebbins was grantee. Appearing upon the original Perryman-to-Stebbins deed is the following language: “Make Vs2 to this deed to Joe ONLY”. (Obviously the “Joe” is the Joe F. Snyder referred to above). Of these minerals neither Stebbins nor Hayes conveyed any portion to the other, but under the Perryman tract each of them continued to hold record title to 30 mineral acres (%2 nds).

Stebbins died testate in 1952 and named his widow Mrs. Kathryn S. Stebbins as sole devisee. On August 26, 1952, she filed an inventory including by legal description the full 30 acres minerals under the Perryman tract as owned by her husband at the time of his death. By instrument dated May 29, 1964, Mrs. Stebbins leased the Perryman minerals in Section 4 to one Hitt. She executed a rental division order of the. same date which was recorded the following year. Subsequently, on June 22, 1970, she executed a mineral lease on the Perryman Section 4 minerals to Homer Lynn, which was recorded in July of that year. She leased the Section 9 Perryman minerals on September 29, 1971 to Homer Lynn, which lease was recorded October 15, 1971. A “rental division order” was executed by her on the last stated date.

Mrs. Stebbins executed several mineral deeds covering the entire mineral interest which her husband had obtained from Per-ryman. One was executed in favor of a Mr. Thurber in 1957, two to Mary Heidelberg in 1971, and one to J. Ray Stebbins, Jr. in 1971.

Since 1971 or 1972 there has been oil production on the Perryman tract, and production on the Heard tract since June 1954. The appellee, Mrs. Lillian Mae Hayes, in her bill of complaint, averred that Mrs. Steb-bins collected royalties on both tracts to the exclusion of Hayes, but the record shows no demand made upon Mrs. Stebbins for any pro-rata division of the royalties as between the parties.

Two letters were written by Mr. Heidelberg, attorney for Mr. Stebbins’ estate, pertaining to any claim that Hayes might have relating to the business association and activities of Hayes and Stebbins in 1944 and 1945. The first request to Hayes was by letter dated June 24,1954. The second was a follow-up letter by certified mail dated September 18, 1959. R. E. Hayes signed the certified mail receipt on September 24, 1959, but made no response to either letter. After his death in 1970, both letters were found among Hayes’ papers where they had remained unanswered, one for some sixteen years and the other for eleven years.

Mr. William M. Price, C.P.A., testified for Mrs. Hayes. He made an examination of certain records of the activities of Mr. Hayes and Mr. Stebbins, and the following is excerpted from his cross-examination:

Q. So you don’t know from what you examined, what the status of their account is at the present time?
A. That is correct.

The testimony shows that Hayes left Mississippi in 1945 but returned in 1946 for a brief visit. What agreements were reached at that time, if any, only Mrs. Stebbins knows, and her testimony was excluded on objection.

The first issue is whether or not Mrs. Hayes at the trial met her burden of proof sufficiently to support the decree that her husband and Stebbins were joint ven-turers. Deciding this issue requires adherence to the rule that one seeking to establish divestiture on the theory that record title is held for another requires the movant (Mrs. Hayes) to carry a heavy burden. In Dalsoren v. Olsen, 247 Miss. 778, 157 So.2d 60 (1963), we stated:

The record title owner of real estate is presumed to be the legal and equitable owner of the same. Jordan v. Jordan, 145 Miss. 779, 111 So. 102; Jones v. Jones, 226 Miss. 378, 84 So.2d 414; and 59 C.J.S. Mortgages § 48 a., p. 82. See also Conner v. Conner, 238 Miss. 471, 119 So.2d 240. These authorities sustain the view that the burden of proof is upon the person claiming the benefit of a resulting trust to prove by clear, strong, unequivocal and unmistakable evidence that the alleged beneficiary of the trust has paid for the property beyond any reasonable doubt. (157 So.2d at 62).

See also Harris v. Spearman, 359 So.2d 1381 (Miss.1978), wherein the claimant was silent for sixteen years and until death of the record title holder.

It is clear that Hayes and Stebbins worked together in some manner during the 1940’s, but the record fails to establish just what their working arrangement was. No clear pattern of how they were to deal with mineral interests acquired by either or both of them is made to appear. Our view of the record is that Mrs. Hayes did not produce evidence rising to meet the burden which she must bear, that is to prove her case by “clear, strong, unequivocal and unmistakable evidence” necessary under Dalsoren v. Olsen, supra, and Harris v. Spearman, supra. True enough, some of the documentary evidence appearing in the record is subject to lending credence to the contention that Stebbins in his lifetime and Mrs. Steb-bins after his death recognized that Hayes may have had some claim to the subject minerals in controversy. Such documents are an ad valorem tax exemption application of Mr. Stebbins, and an inventory of his estate filed by Mrs. Stebbins after his death. Other evidence more strongly negates that Mr. or Mrs. Stebbins recognized any such claim by Hayes. However, our view is that upon the peculiar record presented, it is conjecture and speculation to hold that the minerals to which Stebbins held record title are owned in part by Mrs. Hayes.

Regardless of whether Mrs. Hayes met her burden of proof, and should it be conceded for the sake of argument that when Stebbins became vested with record title to the mineral interest in controversy during the 1940’s, he held title for himself and Hayes, any claim asserted by Hayes is now barred by limitations and laches. Whatever claim Hayes may have had to the minerals would be by virtue of deeds vesting in Stebbins legal title no later than 1945. It is apparent that Hayes had actual or constructive knowledge of the deeds, each of which was recorded. There is no averment in the bill of complaint and no testimony of any concealment of anything by Mr. or Mrs. Stebbins. Likewise, there is no charge in the bill and no evidence that Stebbins bound himself to hold title for Hayes indefinitely or until some future occurrence.

Hayes departed Mississippi in 1945, and all indications are that at that time his business relationship with Stebbins ceased. When Stebbins died in 1952, and until oil production from the Perryman tract commenced in 1971 or 1972 (production on the Heard tract commenced in 1954) no action was taken on the part of Mr. or Mrs. Hayes concerning any interest he had in the subject minerals, although twice the attorney for the estate, by letters written to Hayes, called for Hayes to assert any claim he might have. It is strongly argued by Mrs. Stebbins that whatever cause of action ever accrued in favor of Hayes regarding the mineral interests at issue, the years 1944 or 1945 would be the time when such cause of action accrued. Since 1945, whatever cause of action Hayes had remained the. same.

Cited by Mrs. Stebbins is Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960), which held:

A cause of action “accrues” when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested . .. (120 So.2d at 437).

Under our statutory and case law, the applicable statutes of limitations barred Mrs. Hayes’ claim at least as early as 1962 which was ten years after Mr. Stebbins’ death in 1952. These statutes are the following Mississippi Code (1972) sections:

§ 15-1-7 — Limitations applicable to action to recover land.
A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same. .
§ 15-1-9 — Limitations applicable to suits in equity to recover land.
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such estate, interest, or right in or to the same as he shall claim therein in equity. . . .

There is no way under these statutes and our case law whereby Mrs. Hayes’ claim could be asserted in an action such as she brought here over twenty-four years after Stebbins’ death in 1952. Our study of the bill brought by Mrs. Hayes leads to the conclusion that its theory is in the nature of an implied trust or the right to a partnership accounting. Obviously, we are not presented any express trust which must be in writing under Mississippi Code Annotated § 91-9-1 (1972). In addition to the limitations statutes of our state already referred to, there is Mississippi Code Annotated § 15-1-39 (1972), providing in part:

Bills for relief, in ease of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue and not after, .

As we stated in Barrett v. Turner, 229 So.2d 563 (Miss.1969),

. where the purchaser of property buys it with the money of another the trust there created in favor of the party whose money is used is an implied resulting or constructive trust and it is not an express trust. It is, therefore, subject to the statute of limitations. See cases cited in Sullivan v. Nobles, 211 Miss. 330, 51 So.2d 736 (1951).
(229 So.2d at 567).

Ordinarily the right to enforce something in the nature of an implied or constructive trust accrues at the time of performance of the act from which the trust results. In other words,

. the statute runs from the time when the act was done by which the party became chargeable as trustee by implication, which is to say, from the time when the cestui que trust could have enforced his right by suit. 34 Am.Jur. p. 143. . . . (Rimmer v. Austin, 191 Miss. 664, 4 So.2d 224 [1941]).

Prewett v. Buckingham, 28 Miss. 92 (1854) and Sullivan v. Nobles, 211 Miss. 330, 51 So.2d 736 (1951) both upheld the foregoing statement of the law.

The lower court issued its “Finding of the Court”, stating that: “ . . . the law seems clear that such a joint adventure will continue until terminated by one or both of the parties.” Under this ruling of the chancellor, it would appear that the “joint adventure” could continue forever. Under such a view, Mrs. Hayes or her future successors could have very well waited until the year 2000 or even 3000 and then brought their suit, which in effect would nullify the meaning of our limitations statutes. Although no Mississippi case directly in point has been cited, the general rule is that ordinarily a joint venture terminates as a matter of law upon the death of a member especially “if the agreement creating the venture calls for participation of such member in the conduct of the venture.” 46 Am.Jur.2d (1969), § 31, Joint Ventures. See also 48 C.J.S. Joint Adventures § 4 (1947). Terms of the joint venture (if such existed between Hayes and Stebbins) are not well defined in the record but, assuming such a venture did exist, it would not be reasonable to conclude that “participation” by each of them was not called for, or that a surviving spouse would be substituted when one of the venturers died. Therefore, we hold that the death of Mr. Stebbins in 1952 terminated anything in the nature of a “joint venture” between him and Mr. Hayes. This is particularly true here on this record absent any indication of any intent that any “joint yenture” arrangement would continue subsequent to the death of either party. As stated in C.J.S., supra, general law is that the surviving member of a joint adventure is under a duty to “wind up its affairs.” Twenty-four years elapsed after Stebbins’ death before the suit was filed, and accordingly the suit is barred by our limitations statutes.

To uphold the ruling of the lower court here would be to rule that the understanding or arrangement between Hayes and Stebbins survived the passage of more than thirty years time during which Hayes was not only absent, but demonstrated no interest whatever in the interests said to have been acquired by the joint venture arrangement. Such an order would allow survival of the arrangement in face of the absolute lack of activity in the parties’ account since 1945, and since Stebbins’ death in 1952, during which time, according to the land records, either Mr. or Mrs. Steb-bins were dealing with the minerals in dispute as record fee simple owners. Surely upon the facts of this case it cannot be said that Stebbins’ death, of which Hayes had knowledge, did not terminate any possible status of Stebbins as Hayes’ joint adventurer. This is especially true here where it was not charged and not proven that Mrs. Stebbins was somehow substituted as a joint adventurer in the place of the deceased Mr. Stebbins. Whether the claim of Mrs. Hayes is in the nature of a resulting trust or for a partnership accounting, pursuant to our limitations statutes such a claim cannot be viable as of the date of the filing of this suit twenty-four years after Stebbins’ death. Not only was the suit’s filing date twenty-four years after Steb-bins’ death, it was filed thirty-one years subsequent to the execution of the deeds to Stebbins in 1945, thirty years after Hayes last visited Mississippi, twenty-two years following attorney Heidelberg’s first letter to Hayes requesting him to do something with any claim which he might have, seventeen years after Heidelberg’s second letter, and twenty-two years after commencement of production from the Heard tract. We must reverse because prosecution of the suit filed in 1976 is barred by our statutes of limitations, supra, statutes of repose. Additionally, laches as pled would require reversal.

REVERSED AND RENDERED.

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

LEE, J., took no part.

      . “Joint venture” and “joint adventure” seem to be synonymous and interchangeable.


author: COFER, Justice, ROBERTSON, Presiding Justice,

text:
    Eugene WARE v. STATE of Mississippi.
    No. 51398.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Edmund Lee Baugh, Jr., Aberdeen, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen. and Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
   COFER, Justice,

for the Court:

The opinion and the dissenting opinion hereinbefore entered are withdrawn after consideration of appellee’s Petition for Rehearing, and the following is the controlling opinion.

Eugene Ware entered plea of guilty in the Circuit Court of Monroe County to two charges (1) aggravated assault and (2) attempted armed robbery, to which charges he had earlier pleaded not guilty. In the proceedings leading to his change in his plea, the court meticulously explained the results of his plea and made sure he understood the consequences and that his plea was voluntarily and understanding^ chosen. He was not advised, until it was made a part of his sentencing proceedings, that the sentence for attempted armed robbery was without parole.

Mississippi Code Annotated, section 47-7-3 (Supp.1978), provides in part:

(d) No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm.

Appellant’s plea of guilty took place on October 25, 1978, and his sentence was imposed on November 3, 1978, at which time the sentencing court informed him the sentence would be served without parole.

Promptly after the sentence was imposed appellant filed petition for writ of error coram nobis. The petition, with appellant faltering to some small degree in its prosecution, was heard fully and denied by the circuit court.

This appeal from that denial is upon two assignments of error:

1. The trial court committed reversible error in denying appellant’s petition for writ of error coram nobis.

2. Appellant was not afforded effective assistance of counsel.

A careful search- of the record fails to reveal an actual reliance on any hope of parole while deliberating on whether to enter his guilty plea. There is not shown any effort to procure a delay before the actual sentencing when, thereat, he learned for the first time that there would not be any parole available.

Unless the trial court’s judgment amounts to a clear abuse of judicial discretion or that the court’s decision on the coram nobis petition is incorrect, the court’s denial of the writ, after full hearing as here shown to have taken place, will not be disturbed on appeal.

In Botts v. State, 210 So.2d 777 (Miss.1968), this Court said:

The function of a writ of error coram nobis is to bring to the court’s attention some matter of fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment. .
The burden of proof is upon the petitioner on an application for a writ of error coram nobis to establish to a reasonable probability facts upon which he relies for relief. (Authorities omitted).
The question as to whether or not a new trial should be granted on an application for a writ of error coram nobis is largely within the sound discretion of the trial court, and where the record discloses the full hearing on the petition, the judgment of the trial court should be sustained unless it appears on appeal that the judgment is a clear abuse of judicial discretion or that the order of the trial court on the hearing upon a petition for writ of error coram nobis is incorrect as a matter of law. (Emphasis added). (210 So.2d at 779).

We are without precedent in this jurisdiction by which to be guided in resolving the question as to whether the bar against parole in this case should have been explained to appellant before his plea.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), spoke thus:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. . . . (Emphasis added). (395 U.S. at 244, 89 S.Ct. at 1712, 23 L.Ed.2d at 280).

In Alexander v. State, 226 So.2d 905 (Miss.1969), we said:

Of equal importance, in a crucial stage of a criminal proceeding, is the decision of an accused to plead guilty to a felony charge. The trial court should not accept a guilty plea or a change from a not guilty to a guilty plea without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequence of the plea. (Emphasis added). (226 So.2d at 909).

As mentioned above, we have not addressed the question as to whether deprivation of parole is one of those consequences necessarily to be known and understood by a pleading defendant. There is not unanimity on the issue among the courts.

The state, in support of its petition for rehearing, has cited United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Timmreck entered a guilty plea to an indictment for a drug offense, in which, by statute, there accompanies the sentence a special mandatory parole period of years. 21 U.S.C.A. section 841(b)(1)(A). The sentencing judge explained to Timmreck the consequences of his plea, but failed to include in his information that there would be the mandatory parole term at the conclusion of the sentence. Timmreck took no appeal, but moved to vacate the sentence on the ground that Rule 11 of the Federal Rules of Criminal Procedure had not been followed through the Court’s failure to apprise him of the parole time at the end of his imprisonment. That rule provides, and did when Ware was sentenced, in pertinent part: * * * * * *

(c) Advice to Defendant. Before accepting a plea of guilty or nolo conten-dere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; .

The United States Supreme Court, citing Hill v. U. S., 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), held:

The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can' any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed.2d 1982. (441 U.S. at 783-784, 99 S.Ct. at 2087, 60 L.Ed.2d at 638).

The United States Court of Appeals for the Fifth Circuit has treated the issue in several cases.

Trujillo v. U. S., 377 F.2d 266 (5th Cir. 1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), involved a defendant indicted on three counts: transporting and concealing marijuana, failure to pay transfer tax on the sale of marijuana, and unlawful sale of marijuana. On a sentence for unlawful sale of marijuana, the convict is ineligible for parole. [26 U.S.C., section 7237(d)]. Following his plea of guilty to the unlawful sale, appellant made a motion to vacate the sentence, on the ground that he should have been informed, prior to his guilty plea, that upon conviction, he would not be eligible for parole.

In upholding the judgment of the U. S. District Court, Southern District of Texas, the Circuit Court said:

The question for determination is whether a guilty plea may be accepted in a federal district court without the defendant first being informed that conviction upon a plea of guilty to the offense for which he is charged will render him ineligible for parole. We decide that the defendant need not be advised of the unavailability of parole, and affirm the judgment. (377 F.2d at 267).
* * * * * %

F.R.Crim.P. provides in pertinent part that the court “shall not accept [a plea of guilty] without first determining that the plea is made voluntarily with understanding of the nature of the charge.” This rule generally is interpreted to mean that the defendant should understand the “consequences of the plea.” (Authorities omitted). Thus the issue here is whether ineligibility for parole is a consequence of the plea about which a defendant must be informed.

* * * * * *

It is obvious that while a defendant is entitled to be informed to the end that he will understand the nature of the charge, it is not necessary to this end that he be advised of every “but for” consequence which follows from a plea of guilty. (Examples of consequences not required, and authorities.) (377 F.2d at 268).

The appellant was apprised of the mandatory minimum sentence, the maximum possible sentence and the maximum possible fine. Through this information he well understood “the range of allowable punishments,” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), and the consequences of his plea. See United States v. Cariola, supra, 2 Cir., 323 F.2d [180,] at 186. As to the contention that he should have been even further enlightened with respect to the unavailability of parole, we quote with approval from Smith v. United States, supra [(1963), 116 U.S.App.D.C. 404, 324 F.2d 436, cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964)]:

It will not be suggested by anybody that, before accepting a plea of guilty to an offense with respect to which parole is a possibility the judge must determine whether the defendant understands the nature of parole, his eligibility therefor, and the circumstances in which it may thereafter be granted. The reason is, of course, that eligibility for parole is not a “consequence” of a plea of guilty, but a matter of legislative grace. It is equally true that no-neligibility for parole is not a “consequence” of a plea of guilty * * * ; rather, it is a consequence of the withholding of legislative grace. (Emphasis added). ([116 U.S.App.D.C. at 409,] 324 F.2d at 441).
We therefore conclude that the judge was not required to inform appellant of ineligibility for parole upon conviction of the offense charged in count three. . (377 F.2d at 269).

This decision was followed in Fernandez v. U. S., 492 F.2d 771 (5th Cir. 1974), United States v. Farias, 459 F.2d 738 (5th Cir. 1972), and Rosas v. U. S., 505 F.2d 115 (5th Cir. 1974). See also Ladner v. Henderson, 438 F.2d 638 (5th Cir. 1971).

Appellant here received the full extent of that to which he was entitled. At his sentencing, on being belatedly advised that his sentence would be without parole, he could at least have undertaken to obtain a delay while he re-evaluated his guilty plea; and he was not, as a constitutional right, entitled to full parole information at or before his guilty plea.

The court reviewed the record, and denied the writ of error coram nobis. We cannot say its action was error.

AFFIRMED.

SUGG, BROOM, LEE and BOWLING, JJ., concur.

ROBERTSON and SMITH, P. JJ., PATTERSON, C. J., and WALKER, J., dissent.

ROBERTSON, Presiding Justice,

dissenting:

Being of the opinion that the Circuit Court of Monroe County erred when it denied Ware’s petition for writ of error coram nobis, I respectfully dissent.

This addendum to the Parole Law became effective on January 1, 1977:

“No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm.” [Miss. Code Annotated section 47-7-3(d) (1978 Supp.)].

When the court allowed Ware to withdraw his “not guilty” pleas and substitute “guilty” pleas to aggravated assault (count 1) and attempted armed robbery (count 2) of the indictment, this additional consequence and penalty was not explained to the accused because neither defense counsel, the district attorney, nor the court knew of this recent addition to the parole statute.

Ware’s guilty pleas were accepted on October 25, 1978, but it was not until November 3, 1978, the day set for sentencing, that the court informed the accused, just before sentencing him to 20 years on each count, that he would not be eligible for parole.

Ware promptly filed his petition for writ of error coram nobis. At the hearing on the petition, Ware testified:

“Q Now, if you knew at the time or before the time that you entered your plea of guilty, if you knew that you would not be eligible for parole under that twenty-year sentence, which was recommended by the State of Mississippi, would you have entered your plea of guilty to these charges?
“A No, sir.
“Q You might speak up.
“A No, sir.
“Q And you’re now asking the Court to set aside your guilty pleas based on the fact that you were unaware when you entered the guilty pleas that you would not be eligible for parole under your sentence?
“A Yes, sir.”

Honorable Edmund Baugh, Ware’s court-appointed attorney, took the stand and testified:

“Your Honor, I would just like to state under oath that I was the appointed counsel for Eugene Ware at the time he entered his plea of guilty. And that at the time I did not advise him concerning Section 47-7-3 of the Mississippi Code of 1972 for the simple fact that I was not aware of said section until he was sentenced when Your Honor advised him that he would not be eligible for parole. I did not advise him that he would not be eligible for parole under his recommended sentence of twenty years in the custody of the Mississippi Department of Corrections.
“That’s all I have to say.”

The trial court’s duty and responsibility was set forth in clear, forceful and unmistakable language by the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969):

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. . . .” 395 U.S. at 243-44, 89 S.Ct. at 1712, 23 L.Ed.2d at 280. (Emphasis added).

The Supreme Court of Mississippi, in Alexander v. State, 226 So.2d 905 (Miss.1969), said:

“Of equal importance, in a crucial stage of a criminal proceeding, is the decision of an accused to plead guilty to a felony charge. The trial court should not accept a guilty plea or a change from a not guilty to a guilty plea without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” 226 So.2d at 909. (Emphasis added).

This Court, on August 15, 1979, approved the Mississippi Uniform Criminal Rules of Circuit Court Practice, on the request of the Circuit Judges Section of the Mississippi Judicial Conference. Rule 3.03, among other things, provides:

“(3) Advice to the defendant
When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine :
A. That the accused is competent to understand the nature of the charge against him;
B. That the accused understands the nature and consequences of his plea, and the maximum and minimum penalties provided by law;
C. That the accused understands that by pleading guilty he waives his constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, the right against self-incrimination;”

(Emphasis added).

The matter is squarely before us because the first two assignments of error are:

1) The Court erred in not granting Appellant’s Petition for Writ of Error Cor-am Nobis because the guilty plea entered by Appellant was invalid since it was not voluntarily, intelligently, knowingly and understanding^ entered by Appellant.
2) The Court erred in not granting Appellant’s Petition for Writ of Error Cor-am Nobis because Appellant was denied his right to the effective assistance of counsel, in that Appellant’s counsel did not advise Appellant of Section 47-7-3 of the Mississippi Code prior to the time Appellant entered his plea of guilty to attempted armed robbery charge.

To me, it is abundantly clear that the recently enacted “no eligibility for parole law” is a part of the maximum penalty and an additional consequence of pleading guilty to (and, therefore, being convicted of) attempted armed robbery. I can think of no more discouraging and depressing consequence than that, no matter how genuine and sincere the repentance, and no matter how good and exemplary the subsequent conduct of the convicted may be, there is no hope of reward or forgiveness. The prohibition against parole is absolute.

The majority’s reliance on United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), and Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), cert. den. 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), is misplaced.

First, and most significantly, Timmreck concerned a special mandatory parole period while here ineligibility for any parole is the issue. In Timmreck, two years after pleading guilty (as opposed to the prompt appeal here), Timmreck sought to vacate the sentence claiming that he had not been informed of the mandatory special parole term. The statute, 21 U.S.C. section 841(c), is worth quoting in full to highlight its difference from parole ineligibility:

“(c) A special parole term imposed under this section or section 845 of this title may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.”

A special parole term is unique because a special parole violator receives no credit for the time he has already spent on parole. Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977). A special parole term does not prevent a Federal offender from being eligible for parole after serving the minimum required time, but merely adds to his parole an additional number of years during which he will be under special parole supervision. If he violates that parole, he will be returned to prison without credit for time spent on parole.

The consequences of a special parole term are significantly different from the total ineligibility for parole involved here. Under a special parole term the defendant still has the expectation and possibility of parole after serving the minimum number of years for eligibility. Here the appellant is denied the possibility of parole he would normally be eligible for after serving one-third of his sentence. Ineligibility for parole, unlike the special parole term in Timmreck, is a significant consequence of a guilty plea of which petitioner Ware should have been informed.

A second reason why Timmreck does not apply is because the court in Timmreck specifically noted the defendant did not claim he would have changed his plea had he known of the special parole term.

“Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, but was not.” 441 U.S. at 784, 99 S.Ct. at 2087, 60 L.Ed.2d at 638.

Subsequent Circuit Court decisions have placed much emphasis on this language in denying relief where the defendant failed to argue he was unaware of the special parole term or would not have pleaded guilty had he known of it. United States v. Horsley, 599 F.2d 1265 (3rd Cir. 1979); United States v. Salas, 602 F.2d 215 (9th Cir. 1979).

Those circumstances are readily distinguishable from the facts here where the evidence supports Ware’s claim that he was unaware of his ineligibility for parole. Also Ware, unlike Timmreck, testified that had he known of his ineligibility he would not have pleaded guilty to attempted armed robbery.

A third point about the majority’s reliance on Timmreck must be noted for future cases dealing with this issue. The majority opinion incorrectly quotes Rule 11 of the Federal Rules of Criminal Procedure as amended on December 1, 1975, while the defendant in Timmreck pleaded guilty under Rule 11 prior to the 1975 amendment. The Supreme Court indicated it was dealing with the pre-1975 rule in footnote 1 as follows:

“1. At the time of respondent’s guilty plea, Rule 11 of the Federal Rules of Criminal Procedure provided:
‘A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo conten-dere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.’ ” 441 U.S. at 781, 99 S.Ct. at 2086, 60 L.Ed.2d at 637.

After 1975, the rule was changed to that quoted in the majority opinion, now requiring that a defendant personally be informed by the court and made to understand the mandatory minimum and maximum penalty provided by law.

Subsequent to the Timmreck decision, the amended F.R.C.P. Rule 11 quoted by the majority has been interpreted to require that a defendant be informed of the minimum special parole term and possibly of the maximum term if the court intends to give more than the minimum term. United States v. Sisneros, 599 F.2d 946, 948 (10th Cir. 1979). Since ineligibility for parole is a far more severe and onerous consequence of pleading guilty than a special parole term and significantly affects both the minimum and maximum penalty, under new Mississippi Rule 3.03 supra, there would appear to be no question that the defendant must be informed of his complete ineligibility for parole before the court could accept a guilty plea.

In Trujillo v. United States, supra, the 5th Circuit held that ineligibility for parole is not a consequence of a guilty plea about which a defendant must be informed. This is the minority view among the Federal Circuits, the soundness of this decision having been questioned by the 5th Circuit itself.

Eight of the Federal Circuit Courts directly addressing this issue have disagreed with the Trujillo decision, holding that ineligibility for parole is a consequence about which a defendant must be informed for him to voluntarily and knowingly plead guilty. Otero-Rivera v. United States, 494 F.2d 900 (1st Cir. 1974); Bye v. United States, 435 F.2d 177 (2nd Cir. 1970); Berry v. United States, 412 F.2d 189 (3rd Cir. 1969); Harris v. United States, 426 F.2d 99 (6th Cir. 1970); Gates v. United States, 515 F.2d 73 (7th Cir. 1975); Moody v. United States, 469 F.2d 705 (8th Cir. 1972); Munich v. United States, 337 F.2d 356 (9th Cir. 1964); Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970). Only the Fifth Circuit and the D.C. Circuit in the first case to address this issue have held that ineligibility for parole is not a consequence of a guilty plea. Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (D.C. Cir. 1963).

The “legislative grace” rationale in Trujillo which the majority opinion emphasizes has been firmly rejected by the eight Federal Circuits heretofore mentioned. The requirement of informing a defendant of the consequences of his plea is “not concerned with the legislative genesis of the ineligibility for parole, but with the extent to which ineligibility for parole could influence an accused’s decision whether to plead guilty.” Bye, supra, at 180. As the court in Harris, supra, at p. 100, explained:

“The First Circuit, in Durant v. United States, 410 F.2d 689 ([1 Cir.] 1969), rejected the rationale of Smith, supra, and Trujillo, supra, by observing that the contention that parole is merely a matter of legislative grace is inapposite in an inquiry whether parole eligibility is a ‘consequence’ of a plea within the ambit of Rule 11. This argument ‘fails to distinguish between availability and eligibility for parole. It may be “legislative grace” for Congress to provide for parole, but when it expressly removes all hope of parole upon conviction and sentence for certain offenses, * * * this is in the nature of an additional penalty.’ Id., at 691.” 426 F.2d at 100. (Emphasis added).

Even the Fifth Circuit in subsequent decisions questioned the soundness of the Trujillo decision. Spradley v. United States, 421 F.2d 1043 (5th Cir. 1970); Arrastia v. United States, 455 F.2d 736 (5th Cir. 1972). Finally, in United States v. Farias, 488 F.2d 852 (5th Cir. 1974), the court sitting en banc reconsidered Trujillo. The court decided against overruling Trujillo because the narcotics statute involved in these cases had since been amended to allow parole eligibility, and the amendment had been held to apply retroactively to petitioners such as Trujillo and Farias. Clearly the majority’s reliance on Trujillo in view of these decisions is misplaced.

Several jurisdictions have held that various restrictions on parole eligibility are consequences of a guilty plea about which a defendant must be informed for his plea to be voluntary. State v. Holbert, 114 Ariz. 244, 560 P.2d 428 (1977); People v. Tabucchi, 64 Cal.App.3d 133, 134 Cal.Rptr. 245 (1976); People v. Blackburn, 46 Ill.App.3d 213, 4 Ill.Dec. 784, 360 N.E.2d 1159 (1977); Ohio Criminal Rules 11(C)(2); State v. Harvey, 5 Wash.App. 719, 491 P.2d 660 (1971). In State v. Holbert, similar to the facts here, the defendant pleaded guilty to armed robbery but was not informed at the time of his ineligibility for parole until a minimum sentence was served. The Arizona Supreme Court held this was a consequence of his guilty plea and vacated the sentence.

Parole is the norm and ineligibility for parole the exception, an exception of which petitioner Ware should have been informed.

“The nature of parole is well understood, and its availability may be regarded as assumed by the average defendant.” Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).

Being of the opinion that Ware was not advised of the maximum penalty nor the full consequences of pleading guilty to attempted armed robbery, as specifically required by our case law and procedural rules in criminal cases, it inevitably follows (in my opinion) that he did not voluntarily and with full knowledge of the consequences plead “guilty” to attempted armed robbery.

I am, therefore, of the opinion that the petition for writ of error coram nobis should have been granted, and this cause remanded to the trial court so that petitioner Ware could withdraw his guilty pleas, again plead “not guilty” and assert his constitutional right to a trial by a jury of his peers.

Therefore, I respectfully dissent.

PATTERSON, C. J., SMITH, P. J., and WALKER, J., join in this dissent.