author: BROOM, Justice

text:
    NATURAL FATHER v. UNITED METHODIST CHILDREN'S HOME, et al.
    No. 53406.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Noel P. Giuffrida, Ridgeland, Chet A. Henley, Jr., Jackson, for appellant.
    Watkins, Ludlam & Stennis, Betty A. Morgan, Jackson, for appellees.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   BROOM, Justice

for the Court:

Parental rights (father’s) termination was decreed in this cause by the Chancery Court of the First Judicial District of Hinds County, Judge Paul Alexander, Chancellor, presiding. Subject of the action are the twin sons of appellant, the natural father, presented in two separate causes which are by agreement consolidated as one cause. The natural mother consented to the proceedings. Basic issues relate to (1) constitutionality of that portion of Mississippi Code Annotated § 93-15-109 (Supp.1981), which allows parental rights termination upon a “preponderance of the evidence ... ”, and (2) admissibility of evidence. We reverse.

Appellant is the natural father of the twin boys, who were born October 25, 1974, just ten days after appellant’s marriage to the natural mother. In 1978 the parents were divorced. The mother was granted child custody and appellant was ordered to pay child support, which he paid until January 1980, when the twins were placed in the care of the United Methodist Children’s Home (UMCH herein). In July of 1979, although she had legal custody of the twins, the mother surrendered their custody to their father (the appellant), and he kept the twins until he placed them in UMCH on January 4, 1980. Appellant’s stated reason for placing the twins in UMCH was that he was unemployed and had no money.

Testimony of UMCH personnel was that the behavior of the twins was very bad, evidencing potential emotional problems. As a result of these behavioral difficulties, UMCH “curtailed” appellant’s visitation, and two days later, on January 15, 1980, the twins were placed with a foster family. The twins remained with the foster family until some time in August of 1980. During this period of time appellant contacted UMCH on a number of occasions, both in person and by telephone, inquiring as to the twins’ wellbeing.

The foster parents gave testimony at the hearing regarding the behavior of the twins during the period of time they served as foster parents. According to the foster father, the twins’ behavior was replete with “gutter type” obscenities, sexually suggestive vulgarities, and was marked by extraordinarily hostile behavior directed against each other, against others, and against themselves. He testified that the twins had told him that appellant had sexually abused them. Likewise, the foster mother testified as to the hostile behavior of the children, and recounted incidents related to her by the twins to the effect that appellant had sexually abused them. During the time the twins were in the foster home, the foster parents employed Dr. Donald Matherne (a psychologist) for the evaluation and treatment of the twins, who remained under his care for approximately seven months. Dr. Matherne testified that the twins, while of normal intelligence, were functioning at a subnormal level of achievement, and that the mention of their biological father generated virtually no response whatever on the part of the twins. On the other hand, he indicated that the mention of their mother engendered extreme agitation, particularly in reference to the possibility of returning home. Dr. Matherne said that he had inquired of the twins as to the possibility of sexual abuse and testified that while he was convinced that “something of a sexual nature occurred”, that he was not able to “pin them down to specifics and names and events and times and places”. Dr. Matherne also indicated that appellant came by his office to inquire as to the health and well-being of the children. On the basis of this visit, Dr. Matherne indicated that he believed that appellant cared for his sons.

On May 14, 1980, appellant and his ex-wife met with' UMCH officials and discussed the possibility of placing the twins for adoption. At the time of this conversation, appellant refused to consider such a possibility and the natural mother said that she would think about it. She later informed UMCH that she, too, refused. In August of 1980, the twins were removed from the care of the foster parents, and on August 22, 1980, they were released to the custody of their natural mother. On September 5, approximately two weeks later, she returned the children to UMCH and signed a statement releasing custody of the children to UMCH for the purposes of adoption.

On February 10, 1981, appellant (natural father) met with the UMCH officials, stating that he wanted either the natural mother or himself to have custody of the twins. On February 19, 1981, UMCH filed a petition for the termination of appellant’s parental rights pursuant to Mississippi Code Annotated §§ 93-15-101 to 93-15-111 (Supp.1981).

Dispositive of the case is the single issue: Whether the standard of proof “preponderance of evidence” which authorized the termination of parental rights under Mississippi Code Annotated § 93-15-109 (Supp.1981) satisfies the requirements of due process as set forth in the Fourteenth Amendment of the United States Constitution. Pertinent language of § 93-15-109 is “if the chancellor is satisfied by a preponderance of the evidence . . . the court may terminate” a parent’s parental rights. (Emphasis added). UMCH, appellee, argues that appellant did not raise this issue in the lower court, and therefore is barred from raising it on appeal for the first time.

The general rule is that questions not raised at the trial level will not be considered here as grounds for reversal. Gale v. Lancaster, 44 Miss. 413 (1870); Stewart v. City of Pascagoula, 206 So.2d 325, 328 (Miss.1968). However, the general rule is not without exception. Williams v. Bailey, 174 Miss. 760, 165 So. 439 (1936), pointed out an exception where children’s rights are involved:

[W]e must declare that, whatever the operation of that rule may be as to adult litigants, it can have no effect to stay the hands of the court when one of the principal parties litigant is a minor of tender years, and when, in the attempt to make out the proof in her behalf upon one theory, sufficient facts consistent with that theory have been developed to disclose that the minor is entitled to recover upon a different, but consistent, theory. Id. at 767, 165 So. at 441.

This exception is consistent with the fundamental concept of this state as parens patri-ae over an infant. It is this basic concept, derived from a fundamental concern over the protection and guardianship of the interests of minors, which has given rise to certain parallel exceptions formulated for the protection of the minor’s interest. Some of these exceptions are set out in Griffith, Mississippi Chancery Practice, § 533 (2d Ed. 1950). An infant is not bound by the admissions of his guardian ad litem. Ingersoll v. Ingersoll, 42 Miss. 155, 163 (1868). As Khoury v. Saik, 203 Miss. 155, 33 So.2d 616 (1948), stated: “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them ... . ” Id. at 162, 33 So.2d at 618. The extent to which this Court has gone to protect the rights and interests of minors is seen in the following language excerpted from Price v. Crone, 44 Miss. 571 (1871):

The infant is entitled to every benefit which can be taken to the bill, although no exceptions are expressly taken. His answer cannot be excepted to for insufficiency, nor can any admission made by him be binding. The rights of an infant will not be permitted by the court to be prejudiced by any omission of the guardian ad litem. (Citations omitted).

44 Miss. at 577.

Upon the facts of this case where the basic issue involves the rights and destiny of small children, we now conclude that we should face the constitutional question even though not raised at the trial level. Thus we proceed to answer the question: Does the “preponderance of the evidence” standard of proof set by the Mississippi legislature by § 93-15-109, supra, authorizing the chancellor to decree the termination of the parental rights of an unfit parent, comport with the standards of due process required by the Fourteenth Amendment of the United States Constitution?

There is no doubt that a state legislature has the power to enact laws governing the termination of parental rights. In Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951), we stated:

There can be no doubt, under the doctrine of parens patriae, that the State has the sovereign power of guardianship over persons under disability, and it alone has the right and power to determine the recipient of the privilege to adopt one of its wards. To insure the best interest of a child, the power of the State transcends the rights of natural parents; and if they are unfit to have the custody, their children may be taken from them.

210 Miss. at 651, 50 So.2d at 366. See also, Reynolds v. Davidow, 200 Miss. 480, 27 So.2d 691 (1946).

Given that the state has the power to terminate parental rights as to custody of an infant, what are the limitations, if any, upon the exercise of this power by the state? Recently the United States Supreme Court addressed the issue in Santosky v. Kramer, -U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), while evaluating the constitutionality of the New York statutes providing for termination of parental custody rights as to an infant. New York Social Service Law §§ 384-b.4.(d), 384-b.7.(a), and the New York Family Court Act § 622 authorized termination of parental rights following a finding of appropriate grounds established by a “fair preponderance of the evidence". Our nation’s high court stated that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment, and that constitutional due process in such termination proceedings is essential. Cited in Santosky is Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), as holding that the nature of process due in a parental rights termination case is to be determined by balancing the three factors first enumerated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):

The private interests affected by the proceeding;
The risk of error created by the state’s chosen procedure;
And the countervailing governmental interest supporting use of the challenged procedure.

Justice Blackmun in speaking for the U. S. Supreme Court, quoted from Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), stating that:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfind-ing, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”

Santosky, - U.S. at -, 102 S.Ct. at 1395, 71 L.Ed.2d at 607.

A standard of proof was viewed by the Court as reflecting society’s judgment as to how the risk of error should be allocated between the litigants. At oral argument, suggestion was made on behalf of appellees that, even if the standard of proof established by the Mississippi statute is constitutionally defective, we need not reverse in this particular case because the proof of the natural father’s lack of fitness is much stronger than “a preponderance” of evidence. In response, it should be noted that the United States Supreme Court stated in Santosky:

Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.

- U.S. at -, 102 S.Ct. at 1396, 71 L.Ed.2d at 609.

Santosky went on to examine the consequences of such proceedings:

11. For a child, the consequences of termination of his natural parents’ rights may well be far-reaching. In Colorado, for example, it has been noted: “The child loses the right of support and maintenance, for which he may thereafter be dependent upon society; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period .. ., but forever.” In re K. S., 33 Colo.App. 72, 76, 515 P.2d 130, 133 (1973).
Some losses cannot be measured. In this case, for example, Jed Santosky was removed from his natural parents’ custody when he was only three days old; the judge’s finding of permanent neglect effectively foreclosed the possibility that Jed would ever know his natural parents.

Id. - U.S. at -, 102 S.Ct. at 1398, n. 11, 71 L.Ed.2d at 611, n. 11.

The court held that in a termination of parental rights proceeding, the process which is due under the Fourteenth Amendment of the United States Constitution as determined by an application of the balancing of the three Eldridge factors requires a standard of proof which is “at least clear and convincing” as opposed to one which is merely by a “fair preponderance of the evidence”.

Under Santosky, supra, the standard of proof established by Mississippi Code Annotated § 93-15-109 (Supp.1981), is obviously deficient and unconstitutional because it allows parental rights termination to be decreed based upon a preponderance of the evidence, rather than the standard of at least “clear and convincing” evidence. Of course the only portion of the statute which is affected by our decision today is the standard of proof required by § 93-15-109 (Supp.1981) in a termination of parental rights action. The standard of proof in any such action brought under the statute must be “clear and convincing” in accordance with Santosky, supra. Other than in this one aspect, the operation and application of the statute is unaffected.

Our decision in Beyer v. Harrison County Department of Public Welfare, 404 So.2d 1023 (Miss.1981), upon different facts, dealt with this issue as to the standard of evidence, but that case did not reach the constitutional issue here presented. In Doe v. Attorney W., 410 So.2d 1312 (Miss.1982), we upheld a termination of parental rights based upon Mississippi Code Annotated § 93-15-1 (1972), which is no longer in effect. Our decision noted that the evidence was “clear and convincing”, Id. at 1317. Section 93-15-1 (1972) did not set forth any standard of proof, but a mere “preponderance of the evidence” is required under present § 93-15-109 (Supp.1981).

Under our oath of office, we are sworn to uphold the Constitution of the United States as interpreted by the United States Supreme Court, and accordingly we are obliged to reverse. In view of this decision, we do not reach other issues (mostly eviden-tiary rulings) raised in the briefs. Of course, the appropriate court, upon proper application, may provide for custody of the children according to facts established by relevant testimony as indicated by the present circumstances and needs of the children. At any retrial of this cause in accordance with Santosky, supra, the requisite standard of proof must be “clear and convincing,” the standard which we required in Doe v. Attorney W., supra, rather than a mere preponderance of the evidence.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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

BOWLING, J., takes no part.

      . Since this case has features not unlike adoption, under Mississippi Code Annotated §§ 93-17-25, 93-17-29, and 93-17-31 (1972) the actual names of the children and parties are not used.

      . In a note the Supreme Court listed fourteen states which have, by statute, adopted the “clear and convincing evidence” or its equivalent standard. Additionally, sixteen states, the District of Columbia and the Virgin Islands, have adopted this standard by court decision. South Dakota requires a “clear preponderance of the evidence” and New Hampshire and Louisiana require evidence “beyond a reasonable doubt.” - U.S. -, 102 S.Ct. at 1392, 71 L.Ed.2d 604.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    James S. FERRIS v. C. H. HAWKINS, Sr., d/b/a Mid-State Motor Company.
    No. 53384.
    Supreme Court of Mississippi.
    Aug. 18, 1982.

      Morgan & Morgan, Clarence E. Morgan, III, Kosciusko, Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    John E. Shaw, Kosciusko, for appellee.
    Before PATTERSON, BOWLING and DAN M. LEE.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Attala County, sitting without a jury, wherein James S. Ferris, plaintiff/appellant, sought to replevy a 1978 International Harvester truck and a 1979 Trailmobile trailer from the possession of C. H. Hawkins, Sr., d/b/a Mid-State Motor Company, defendant/appellee. Hawkins had obtained possession of the equipment by paying off an alleged lien held by the Birmingham Trust National Bank which resulted from the equipment being pledged as security by Ferris’ agent for a bank overdraft. The Birmingham Trust National Bank assigned its security interest in the equipment to Hawkins upon payment of an amount equal to the overdraft. At the conclusion of the hearing, the trial judge directed a verdict for a monetary judgment only in favor of Hawkins in the amount of $8160. We reverse.

In December 1978 appellant executed a power of attorney appointing Forrest Lee Ferris, no relation to appellant, his agent and attorney in fact. Appellant, a New York resident, in connection with the power of attorney, issued Ferris $22,000 to disburse as he saw fit in the purchase and operation of the equipment in controversy. The equipment was evidently to be leased by Alabama Western, an Alabama corporation, with whom Forrest Ferris was also associated.

Ferris opened an account with the Birmingham Trust National Bank in appellant’s name. A check from Alabama Western, payable to appellant and endorsed for deposit only, was deposited into this account. The check proved to be of no value which resulted in an $8160 overdraft to appellant’s account. Ferris apparently pledged appellant’s equipment to secure this overdraft. Appellant denied any knowledge of the check from Alabama Western or the account at the Birmingham Trust National Bank. Appellant also denied he authorized Ferris to pledge his equipment as security.

Appellee contacted appellant in February 1979 concerning the removal of his (appellant’s) equipment from Alabama to Mississippi. When appellee discovered the lien held by Birmingham Trust National Bank, he related this information to appellant. Appellee paid the Birmingham Trust National Bank to have the liens extinguished from various pieces of equipment including that owned by appellant. Appellant was notified of the payment to the bank and relocation of the equipment in Mississippi. The Birmingham Trust National Bank assigned appellee its security interest in the equipment owned by appellant. Appellant subsequently executed a power of attorney appointing appellee his agent and attorney in fact to obtain title to the equipment in Mississippi. A Mississippi title was subsequently obtained which listed appellee as a second lienholder.

At the conclusion of the hearing, the trial judge granted appellee’s motion for directed verdict and monetary judgment, but did not dismiss the replevin or decide the question of possession of the truck and trailer. An order was entered accordingly.

1. Did the trial court err in granting appellee a monetary judgment?

Mississippi Code Annotated section 11-37-129 (Supp.1981) provides:

If the judgment be for the defendant, the plaintiff and the sureties on the plaintiff’s bond shall restore to the defendant the property, if to be had, or pay to him the value thereof and any damages for the wrongful suing out of the writ, as assessed upon writ of inquiry. If the defendant shall have made bond for such property, he and his sureties shall be fully discharged and he may recover any damages from the plaintiff and his sureties for the wrongful suing out of said writ. In case the plaintiff make default in prosecuting the replevin action, or be nonsuit-ed, after seizure under writ of replevin, the defendant may have a writ of inquiry to assess the value of the property, or the damages sustained by the wrongful suing out of the writ, or both, as the case may be; and like judgment shall be rendered upon the finding as upon an issue found for him.

This Court has interpreted Mississippi Code Annotated section 11-37-129 (1972) as a possessory action and judgment for money may not be granted except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ. In General Motors Acceptance Corp. v. Fairley, 359 So.2d 1386 (Miss.1978), we said:

After a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages. A replevin action is a possessory action for specific property and not a suit for monetary damages. No provision is made under the above law for a judgment of money, except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ. This Court held in the case of Carruth v. Easterling, 247 Miss. 364, 150 So.2d 852 (1963):
“Such a plea may be made in addition to the traditional defense that replevin does not lie for impounded or distrained animals if the proceeding is regular. Cobbey on Replevin, 2d Ed. § 348, p. 174. Facts amounting to a recoupment may also be alleged in the answer, under the foregoing amended statute, as an affirmative defense to the plaintiff’s right of possession or interest in the property, but facts may not be pleaded in the answer which amount to a counterclaim to set off or establish unrelated debts or demands. (Emphasis added). 150 So.2d at 858.” (359 So.2d at 1388 — emphasis ours.)

After the decision in General Motors, this Court in Finance American Private Brands, Inc. v. Durbin, 370 So.2d 1356 (Miss.1979), stated:

The language used in General Motors is susceptible to the interpretation that we have authorized filing a counterclaim or recoupment along with the answer of the defendant. The statute does not permit filing a counterclaim or recoupment with the answer, but damages may be awarded to a defendant only on a writ of inquiry after judgment for the defendant on the question of possession of the property. In order to clarify our language in General Motors we hold that if a defendant or a plaintiff seeks damages, such damages must be sought after judgment on the issue of possession on a writ of inquiry, and not by way of counterclaim or re-coupment filed with the answer. It was error for the trial court to submit the issue of possession and the issue of damages to the jury at the same time. (370 So.2d at 1358 — emphasis ours.)

Appellee contends the point was not preserved for review on appeal due to appellant’s failure to specifically allege error in the granting of the directed verdict for a monetary judgment in his motion for new trial. We are of the opinion that the granting of the directed verdict is properly before the Court in that appellant alleged in his motion for new trial error in the trial court’s finding that appellee had a valid security interest in the property and further urged the trial court to reconsider appellant’s motion to strike which went to the very heart of the propriety of the trial court’s action in directing a verdict.

The foregoing authorities clearly hold it was error for the trial court to grant a monetary judgment against appellant for the amount of appellee’s alleged lien. Re-plevin is a possessory action only, the gist of which is the right of possession in the plaintiff. Deposit Guaranty National Bank v. Ellzey, 222 So.2d 680 (Miss.1969). The trial court in the case sub judice made no finding as to who was entitled to possession of the property. The issue of appellee’s alleged security interest in the property was relevant to the case only as to whether the appellee was entitled to immediate possession of the property.

Because the trial court erred in failing to make a finding as to who was entitled to possession of the property and further erred in granting appellee a monetary judgment in a possessory action only, this case must be reversed. Since we are reversing the case, we do not decide those assignments of error relating to the validity of appellee’s lien.

Based on the foregoing, this case is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

HAWKINS, J., takes no part.


author: PATTERSON, Chief Justice,

text:
    John Wayne HEDGPETH v. Freeman HAIR, Deceased, Dependent.
    No. 53367.
    Supreme Court of Mississippi.
    Aug. 18, 1982.

      Joe R. Odom, Meridian, for appellant.
    Eppes & Shannon, John E. Howell, Barbara Holley Reid, Meridian, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Freeman Hair was killed in a logging accident on November 16, 1979, while employed by John Wayne Hedgpeth. At the time of the accident Hair was working within the scope of his employment. The appellant, Hedgpeth, did not have insurance in compliance with the Mississippi Workmen’s Compensation Act nor was he a self-insurer within the defines of the act. Appellant had, however, procured a Key Life Insurance policy for which he paid the premiums to secure insurance for himself and his employees. It is stated in bold face at the bottom of the policy, “THIS POLICY DOES NOT EFFECT WORKMEN’S COMPENSATION. ...” The policy was in effect at the time of Freeman Hair’s death and it was stipulated that the proceeds of $5,000.00 were paid to his estate.

Lizzie Hair, widow and administratrix of deceased, filed a motion to controvert workmen’s compensation death benefits and a hearing was held whereupon the administrative judge ordered appellant to pay Lizzie Hair among other amounts, all benefits due her pursuant to Miss. Code Ann. § 71-3-25 (1972), subject to the maximum limitation. The administrative judge’s order, which was affirmed by the full commission and the circuit court, further denied appellant credit for the $5,000 paid by Key Life Insurance Company, hence this appeal.

Appellant contends that because he voluntarily purchased the policy, the payment of the insurance company constituted an advance payment of compensation within the purview of Miss. Code Ann. § 71-3-37(11), (1972), which provides, “If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.”

We are of the opinion, however, the proceeds paid by Key Life Insurance Company were not advance payments of compensation, and therefore, such credit was properly denied.

In Riddell v. Cagle’s Estate, 221 Miss. 305, 85 So.2d 926 (1956), the employer had not procured workmen’s compensation insurance or qualified as a self-insurer under the act, but had purchased an insurance policy which paid $5,000 accidental death benefits to the employee’s widow. The employer contended on appeal, as he had in the trial court, that the payment was an advance of compensation which should be credited against workmen’s compensation benefits then due in the death claim. This court, in holding the employer’s act in voluntarily purchasing the policy did not diminish his liability under the Workmen’s Compensation Act, noted, “The Commission did not approve Riddell’s unorthodox method of protecting himself against liability for workmen’s compensation benefits; and obviously would not have done so if it had been called on for that purpose. The policy did not purport to pay workmen’s compensation benefits.” 227 Miss, at 308, 85 So.2d at 927.

The appellant argues however, that Western Electric, Inc. v. Ferguson, 371 So.2d 864, 868 (Miss.1979), controls the present case because of our language wherein we stated:

Western Electric, through its pension plan, affords immediate continuity of income to an injured employee or to his dependents in the case of his death. Employers who willingly adopt this practice should be commended and encouraged rather than penalized. Employers should be permitted to claim the benefits of payments made voluntarily. To refuse credit would inevitably cause employers to be less generous.
If. Western Electric cannot receive credit for the death benefits paid to the dependents of Ferguson in this case, it will result in employees or their dependents being penalized because employers would seek a determination of compensa-bility in order to avoid double payments for the same injury or death.

We think, however, that Western is distinguishable because it was a self-insurer under the act and its pension plan was complementary to the compensation act. In this case and contrary to Western, the appellant was neither a self-insurer nor otherwise within the act which distinguishes it from Western. We therefore affirm under the directives of Riddell.

AFFIRMED.

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


text:
    Willie Merle SKUDLAREK v. Walter R. SKUDLAREK, Sr.
    No. 53385.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Adams & Odom, Joe Odom, Meridian, for appellant.
    Self & Jordan, Daniel P. Self, Jr., Meridian, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

AFFIRMED.

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


text:
    Terry Wayne SHOFFNER v. STATE of Mississippi.
    No. 53646.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Moore, Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.

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


text:
    Robert MARTIN v. STATE of Mississippi.
    No. 53658.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Alford, Mars, Thomas & Kilgore, Donald L. Kilgore, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

AFFIRMED.


text:
    DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY v. Alvin HOOD.
    No. 53376.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellant.
    Cunningham, Smith & Ferrell, John A. Ferrell, Booneville, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

AFFIRMED.


text:
    Clyde CAMPBELL v. STATE of Mississippi.
    No. 53665.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Jr., Judge.

AFFIRMED.


text:
    Cleo LOFTON v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 53701.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Suzanne Griggins, Mendenhall, for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   Appeal from Circuit Court, Simpson County; L. D. Pittman, Judge.

AFFIRMED.


text:
    Henry E. LOPER v. George E. LOPER.
    No. 53105.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Gordon, Myers & Gordon, Rex Gordon, Sr., Pascagoula, for appellant.
    Richard W. Hamilton, Pascagoula, for ap-pellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

AFFIRMED.


text:
    Joe GRISSOM v. STATE of Mississippi.
    No. 53383.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   Appeal from Circuit Court, Clay County; Joe O. Sams, Sr., Judge.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Paul David WEAVER v. STATE of Mississippi.
    No. 53700.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    John E. Gregg, Raymond, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Simpson County; L. D. Pittman, Judge.

REVERSED AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS and PRATHER, JJ., concur.


text:
    William Hershell RUSSELL v. STATE of Mississippi.
    No. 53702.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
   Appeal from Circuit Court, Simpson County; L. D. Pittman, Judge.

Tullos, Tullos & Tullos, John Raymond Tullos, Raleigh, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    William Hershell RUSSELL v. STATE of Mississippi.
    No. 53703.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Tullos, Tullos & Tullos, John Raymond Tullos, Raleigh, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   Appeal from Circuit Court, Simpson County; L. D. Pittman, Judge.

AFFIRMED.


author: BOWLING, Justice,

text:
    Johnny C. BLACK v. STATE of Mississippi.
    No. 53635.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    John E. Shaw, Kosciusko, for appellant. Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

Appellant Johnny C. Black was indicted and convicted in the Circuit Court of Attala County of the crime of burglary. The lower court sentenced him to ten years with the Mississippi Department of Corrections. With enhanced sentencing the entire term would be served without parole, since appellant had been convicted of two previous felonies, each of which resulted in sentences of separate terms of more than one year. (Mississippi Code Annotated, Section 99-19-81 (Supp.1981).

On August 8, 1981, appellant was operating his vehicle on U.S. Highway 49 between Tchula and Lexington in Mississippi. One Katherine Abies Heffner was occupying the passenger side of the front seat of the vehicle. Mississippi Highway Patrolman Richard Williams stopped the car after ascertaining that it was being driven in an erratic manner. He found appellant to be intoxicated and determined it necessary that appellant be incarcerated in the County Jail at Lexington. The patrolman removed a loaded semi-automatic rifle from the front seat of the vehicle. He then called Ralph Scruggs, Regional Director for the Mississippi Bureau of Investigation, who was in the area, to come and take charge of the vehicle. While waiting for Scruggs, the female passenger, according to Williams, stated the appellant had forced her to be with him against her will; he had beaten her; and they had been in several houses. Williams testified that he saw articles on the back seat of the vehicle consisting of a television set, stereo and speakers.

Upon the arrival of Scruggs at the scene, Williams was directed to carry appellant and his passenger to Lexington, as appellant was intoxicated and the car was placed in charge of Scruggs. Both officers testified that an inventory of the car could not be made at that time and place as all patrolmen in the area were on special detail directing traffic between Tchula and Lexington, where a march was taking place. Due to this emergency situation all officers had to spend full-time on this detail. For this reason, Scruggs took the car to Tchula and placed it in a garage and locked the car. He then went back to the special work detail that was being performed by the patrolmen.

On the following morning, Scruggs and Officer Ronnie White went to Tchula for the purpose of making an inventory of the car which they were unable to do the day before. Attala County Deputy Sheriff William Hudson came to the car’s location as he had received information that a house owned by James Palmertree in Attala County had been burglarized the day before.

It is undisputed and there are photographs which are introduced in evidence showing a television set, stereo set and speakers sitting in plain view on the back seat of appellant’s car both at the time it was stopped by Officer Williams and when looked at by the other officers the following day.

Officers Scruggs and White unlocked the car and proceeded to inventory its contents. There is no dispute but that this was the first opportunity they had to make an inventory for the protection of the officers and the car owner, as is usually done under circumstances where it is necessary for the officers to impound a vehicle.

Articles other than the three mentioned above were secured from the vehicle and were taken in charge by the Mississippi officers. Later on, Mrs. Palmertree identified the television set, the stereo and speakers that were on the back seat of the car as being the articles stolen from the Palmer-tree home the preceding day.

Appellant assigns the following errors:

I. THE TRIAL COURT COMMITTED ERROR IN ALLOWING INVESTIGATING AND/OR ARRESTING OFFICERS TO TESTIFY ABOUT OTHER CRIMES OR EVIDENCE OF OTHER CRIMES.
II. THE TRIAL COURT COMMITTED ERROR IN REFUSING TO SUSTAIN THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE TAKEN BY OFFICERS OF THE MISSISSIPPI HIGHWAY PATROL AT THE TIME WHEN THE CAR OF THE APPELLANT WAS SEARCHED WITHOUT A VALID SEARCH WARRANT.

Appellant’s argument under the first assignment of error was that Patrolman Williams was allowed to testify about taking appellant to the Holmes County Jail. It is contended that this inferred that the appellant was involved in another crime. It is sufficient to say that this contention is wholly without merit. Of course, it is the general rule that evidence of other crimes perpetrated by the accused are generally not admissible. Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965). However, there are exceptions to this principle and one of them clearly is that it was proper for one of the officers to testify what happened to appellant after his car was impounded by the officers and to explain why it was impounded and not turned back over to appellant. Officer Williams did not testify that appellant was highly intoxicated and that his alcoholic blood content tested to be .260. It certainly was permissible for the officer to merely state what happened to Black because of the impounding of his vehicle.

Appellant contends that the alleged search of his car the morning after its im-poundment was an illegal search without a valid search warrant. This Court has held that it is permissible for officers to conduct an inventory search of the vehicle when the circumstances require it to be impounded by the officers, regardless of the reason for the necessary impoundment. The reason for this is abundantly clear. It is for the protection of both the vehicle owner and the impounding officers. See Florence v. State, 397 So.2d 1105 (Miss.1981).

It is contended that the inventory search should be done immediately. In the first place, we already have discussed the necessary delay. The United States Supreme Court has clarified this situation in a number of cases. In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the inventory search was not made until a week after the arrest and the car impounded in a garage. The Court approved the delay as being necessary under the circumstances of that particular case saying:

It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant but whether the search was reasonable.” United States v. Rabinowitz, 339 U.S. 56, 66, 94 L.Ed. 653, 660, 70 S.Ct. 430 [435]. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court again discussed inventory searches pursuant to standard police procedures. The Court in reviewing the history of inventory and search questions stated the following:

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:
“But the question here is not whether the search was authorized by state law. The question is rather whether the search was unreasonable under the Fourth Amendment.” Cooper v. California, 386 U.S. at 61, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790] (Emphasis added).
And in his last writing on the Fourth Amendment, Mr. Justice Black said:
“[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a war rant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” Coolidge v. New Hampshire, 403 U.S. [443] at 509-510, 29 L.Ed.2d 564, 91 S.Ct. 2022 [at 2059-60] (concurring and dissenting) (Emphasis added).
In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probably cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:
“It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” 386 U.S. at 61-62, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790-91].”
In the following Term, the Court in Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct. 992 (1968), upheld the introduction of evidence, seized by an officer who, after conducting an inventory search of a car and while taking means to safeguard it, observed a car registration card lying on the metal stripping of the car door. Rejecting the argument that a warrant was necessary, the Court held that the intrusion was justifiable since it was “taken to protect the car while it was in police custody.” Id. at 236, 19 L.Ed.2d 1067, 88 S.Ct. 992 [993].”
Finally, in Cady v. Dombrowski, supra, the Court upheld a warrantless search of an automobile towed to a private garage even though no probable cause existed to believe that the vehicle contained fruits of a crime. The sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community’s safety. Indeed, the protective search was instituted solely because local police “were under the impression that the incapacitated driver, a Chicago police officer, was required to carry his service revolver at all times; the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. 413 U.S. [433] at 436, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2525]. The Court carefully noted that the protective search was carried out in accordance with standard procedures in the local police department, ibid., a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretak-ing function. See United States v. Spitalieri, 391 F.Supp. [167] at 169. In reaching this result, the Court in Cady distinguished Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881 (1964), on the grounds that the holding, invalidating a car search conducted after a vagrancy arrest, “stands only for the proposition that the search challenged there could not be justified as one incident to an arrest.” 413 U.S. at 444, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2529]. Preston therefore did not raise the issue of the constitutionality of a protective inventory of a car lawfully within the police custody.
The holdings in Cooper, Harris, and Cady point the way to the correct resolution of this case. None of the three cases, of course, involves the precise situation presented here; but, as in all Fourth Amendment cases, we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in these prior decisions.
“[W]hether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case.. .. ” Cooper v. California, 386 U.S. at 59, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790].
The Vermillion police were undisputedly engaged in a caretaking search of a lawfully impounded automobile. Cf. United States v. Lawson, 487 F.2d 468 (CA 8 1973). The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.
On this record, we conclude that in the following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the Fourth Amendment.
The judgment of the South Dakota Supreme Court is therefore reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Without question the facts relating to the inventory search of appellant’s car clearly were not unreasonable and the inventory was authorized even though done the following morning after appellant’s arrest.

The main purpose of publishing this opinion is to clarify the warrantless inventory-search questions. The record clearly reveals that no impartial jury could have returned a verdict other than guilty as charged. Officer White related appellant’s confession of the crime in detail. Furthermore, the passenger in the car Katherine Abies Heffner testified for the state and related in detail the burglary of the Pal-mertree residence by appellant and his stealing the television, stereo and speakers. There is no reversible error and the cause is therefore affirmed.

AFFIRMED.

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

DAN M. LEE, J., concurs only in result.


text:
    David DOUBLEDAY v. BOYD CONSTRUCTION COMPANY.
    No. 53239.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    Rehearing Denied Sept. 8, 1982.

      Townsend, McWilliams & Holladay, Robert Lawson Holladay, Drew, Lawrence W. Vaughn, Southaven, for appellant.
    Lundy & Lundy, Mitchell M. Lundy, Sr., Grenada, for appellee.
   PATTERSON, Chief Justice,

for the Court:

David Doubleday filed a personal injury suit in the Circuit Court of Grenada County against Boyd Construction Company, a general contractor (hereinafter “Boyd”), and others. He alleged that Boyd failed to provide a reasonable means of warning traffic on the project in which he was engaged, which negligence proximately caused him to be struck and injured by an automobile.

Boyd was the prime contractor on a construction project for the Mississippi Highway Department in Grenada County and had subcontracted with W. T. Ratliff Co., Inc. (hereinafter “Ratliff”) to execute a portion of the construction work. /In the subcontract with Ratliff, Boyd required workmen’s compensation insurance to be carried for the protection of the subcontractor’s employees and compensation benefits were paid by Ratliff’s insurance carrier to Doubleday for the injuries he sustained while employed by Ratliff.

On motion, the trial court dismissed Doubleday’s declaration ruling that Boyd, the prime contractor, was a statutory employer of the employees of Ratliff, the subcontractor. Therefore the court held the exclusive remedy available to Doubleday against Boyd for his injuries was workmen’s compensation benefits. The other defendants were dismissed either voluntarily or on demurrer.

The issue we are called upon to decide is whether a general contractor may be sued as a third party in common law negligence by an employee of a subcontractor who has workmen’s compensation insurance. In dismissing appellant’s suit against Boyd, the trial court relied on Miss.Code Ann. § 71— 3-7 (1972) and Mosley v. Jones, 224 Miss. 725, 80 So.2d 819 (1955), in concluding that Boyd was the statutory employer of Doubleday and was immune from suit.

In Mosley, supra, one Jones brought a personal injury suit against B & M Construction Co. (Mosley) based on its negligence in the construction of a scaffold which fell, severely injuring Jones. Chaney, a subcontractor of Mosley, had hired Jones as a plasterer in furtherance of his subcontract. Chaney did not have workmen’s compensation insurance for its employees. Mosley argued that workmen’s compensation benefits was Jones’ exclusive remedy against it because Mosley had procured workmen’s compensation insurance for the employees of Chaney, the subcontractor. This Court held that Mosley was the statutory employer of Jones and that his exclusive remedy was workmen’s compensation benefits. This determination was stated to be dependent upon four factual issues:

This conclusion depends upon four ultimate factual issues: (1) Whether Chaney was a plastering subcontractor under Mosley and Bowers; (2) whether Jones was an employee of the subcontractor Chaney; (3) whether under Section 6998-OS Chaney had regularly in his business eight or more employees when Jones was injured; a: i (4) whether the subcontractor Chaney had failed to secure compensation insurance for his employees. 224 Miss. at 732, 80 So.2d at 821.

Mills v. Barrett, 213 Miss. 171, 56 So.2d 485 (1952), dealt with a similar factual situation in that the subcontractor did not provide workmen’s compensation insurance for the protection of its employees. We held the language of the statute was unambiguous and had the legislative‘intended effect of making the employees of a subcontractor, who did not carry compensation insurance, the employees of the general contractor for the purposes of the compensation act. The primary intention of the statute was held to be for the protection of employees of independent contractors or subcontractors who were not financially responsible and this laudable purpose was aided by preventing general contractors from relieving themselves of workmen’s compensation responsibility by shifting it to others.

The appellant argues there is a distinction between the present case and Mosley and Mills, supra, in that there is no dispute that Ratliff had “secured” compensation for its employees. He contends this relieved the appellee of the responsibility of procuring compensation, and thus, Boyd was not entitled to the status of a statutory employer.

Although Miss.Code Ann. § 71-3-9 (1972), dictates workmen’s compensation as an employee’s exclusive remedy against his employer, Miss.Code Ann. § 71-3-71 (1972), grants the employee or his dependents the right to sue at law “any other party.” The question thus becomes one of determining who is a “third party” within the meaning of the statute. The section which we must construe is Miss.Code Ann. § 71-3-7 (1972), which states in part:

Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

This Court has held in several cases that workmen’s compensation benefits are the exclusive remedy of an injured employee. We were of the opinion that immunity from a common law negligence suit extends not only to employers; but also to co-employees, McCluskey v. Thompson, 363 So.2d 256 (Miss.1978); corporate officers, Brown v. Estess, 374 So.2d 241 (Miss.1979); dual employment cases, Ray v. Babcock & Wilcox Co., Inc., 388 So.2d 166 (Miss.1980); agency cases, Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (Miss.1965); and situations where a subcontractor carries no insurance for the protection of their employees, Mosley v. Jones, 224 Miss. 725, 80 So.2d 819 (1955), Mills v. Barrett, 213 Miss. 171, 56 So.2d 485 (1952). The reason for extending immunity from suit in those particular situations was that the intention and philosophy of the workmen’s compensation act would be abrogated if the responsibility of carrying compensation insurance could be transferred from a general employer to another. McCluskey, supra. We stated in Stubbs v. Green Brothers Gravel Co., Inc., 206 So.2d 323 (Miss.1968):

Reason and consistency require that we apply the provisions of the act and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the statute are involved. Id. at 325.

In all states, workmen’s compensation laws are in derogation of the common law in that they replace traditional negligence actions for a no-fault system of payment to employees and their families for job-related injuries. By the exchange, the remedy of workmen’s compensation benefits, insofar as the right of the employee against certain classes of persons are concerned, is exclusive and the common law remedy is abrogated.

This Court has repeatedly held that “any construction given to the workmen’s compensation act must be sensible as well as liberal,” and “the intent of the legislature must be determined by the total language of the statute and not from a segment considered apart from the remainder.” McCluskey v. Thompson, 363 So.2d 256, 259 (Miss.1979).

With these rules in mind, we must ascertain the legislative intent of Miss.Code Ann. § 71-3-7. As stated, the obvious purpose of the statute is for the protection of employees of subcontractors who do not carry workmen’s compensation insurance. It would be paradoxical however, in our opinion, to hold as the appellant entreats that a general contractor risk personal injury judgments in common law suits if he complies with the statute by contractually securing compensation insurance by his subcontractor, but if he lets work to subcontractors who do not comply with the act, then his liability is limited to the sums provided by the act. We do not think the legislature intended such an improbable result.

Professor Larson speaks to this in 2A Larson, Workmen’s Compensation Law, § 72.31(b) (1982), pointing out:

... The object of the “contractor-under” statutes is to give the general contractor an incentive to require subcontractors to carry insurance. But if the general contractor does conscientiously insist on this insurance, his reward, under these cases, is loss of exemption from third-party suit. A sounder result would seem to be the holding that the overall responsibility of the general contractor for getting subcontractors insured, and his latent liability for compensation if he does not, should be sufficient to remove him from the category of “third party.” He is under a continuing potential liability; he has thus assumed a burden in exchange for which he might well be entitled to immunity from damage suits, regardless of whether on the facts of a particular case actual liability exists. ...

The question is whether the legislature intended to impose upon a general contractor the responsibility of securing workmen’s compensation benefits for employees of a subcontractor and if so intended, does this responsibility, when fulfilled, give the general contractor immunity from suit as a third party tortfeasor the same as if the insurance had been provided by the general contractor?

The Florida Supreme Court, deciding this issue in Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950), held:

We hold, therefore, that a contractor is liable for and shall secure compensation to the employees of his subcontractors, even though such contractors have the status of independent contractors, and that if such contractor has in fact, secured such compensation, either directly or indirectly through the subcontractor, the remedy under the Act is exclusive. Id. at 843.

We agree with this decision even though Fla.Stat.Ann. § 440.10 (West 1981) differs somewhat from Miss.Code Ann. § 71-3-7 (1972). It is our opinion the legislature did not intend to subject a general contractor to common law liability if he complied with § 71-3-7 by requiring the subcontractor to have workmen’s compensation insurance. It would defeat the purpose of the statute, we think, if such an improbable result followed.

Mosley, supra, reaches the same result. In it Mosley protected itself from common law tort liability by procuring workmen’s compensation insurance for the employees of its subcontractor. Boyd accomplished the same end by contractually requiring Ratliff to secure a policy of insurance on its employees. In doing so, we are of the opinion that the appellee “secured” compensation insurance for the benefit of Doubleday within the meaning and purpose of the statute. Therefore, appellee is not, under the circumstances of this case, “any other party” as designated by § 71-3-71, and thus is immune from a common law negligence action.

AFFIRMED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, and PRATHER, JJ., concur.

BOWLING and DAN M. LEE, JJ., dissent.

      . Fla.Stat.Ann. § 440.10 (West 1981). In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. (Emphasis added).


author: PRATHER, Justice,

text:
    Kirby Cortez JACKSON v. STATE of Mississippi.
    No. 53606.
    Supreme Court of Mississippi.
    Aug. 25, 1982.

      Kenneth C. O’Neal, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The appellant, Kirby Cortez Jackson, was found guilty by jury trial in the Circuit Court of Grenada County of burglary of a dwelling house. Since Jackson had previously been convicted and sentenced to serve terms of more than one year each for manslaughter and robbery, he was sentenced pursuant to the habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Supp.1981) for the maximum term of imprisonment prescribed for the felony of burglary, without parole or probation.

Jackson assigns as errors, the following:

(1) That the circuit court erred by overruling the appellant’s motion to suppress all evidence concerning certain items seized pursuant to a warrantless search and incriminating statements made after the war-rantless search;

(2) That the circuit court erred in sentencing the appellant pursuant to Mississippi Code Annotated section 99-19-81 (Supp. 1981) when one of the appellant’s prior felony convictions was not final, but was on appeal at the time of sentencing.

On June 26, 1981 the house of Carter Bugg was broken into by thieves, who stole a Winchester shotgun and a television set. Bugg and his family were temporarily living with Bugg’s parents, approximately nine miles away, at the time of the burglary and there were no witnesses to the crime. Bugg did testify, however, that Kirby Cortez Jackson telephoned to his parents’ home after midnight on the day of the crime to ask Bugg, who was his prior employer, for work. Bugg advised him that he had no work for him to do at the time, and Jackson then remarked that he planned to make a trip to Chicago. When Bugg checked on his home later that night he discovered that a small back window had been broken into which enabled the thieves to unlock the back door.

Gerald Tilgham was one of two officers who investigated the scene of the crime, and he noticed two sets of shoe prints at the gate in front of the house. The larger set of prints had one set of circles in the sole of the shoe; the smaller prints had a V-mark impression down the sole of the shoe. Tilg-ham also observed tire impressions at the gate in front of the house. Officer Robert Shields testified that his investigation and discussions with neighbors near the scene of the crime indicated that a car with a “Continental looking deal on it” was seen pulling away from Carter Bugg’s home. Following the investigation of the scene of the crime Tilgham and Shields traveled to Jackson’s grandmother’s house in Tie Plant.

When they arrived they noticed tire impressions on a Lincoln Continental in front of the house which were similar to those seen at Bugg’s house. The time was approximately 3:30 to 3:45 a. m., but the lights in the house were still on. Tilgham stated in the suppression hearing that the officer’s purpose in visiting Jackson’s grandmother’s house was to investigate Jackson’s phone call to Bugg. The grandmother permitted the officers into the house. Thereafter they claimed to have seen two sets of shoes with prints comparable to those found at the gate. The officers asked Jackson and his wife, Myrtle, to step outside so that they could answer some questions. When outside, Jackson was asked to open the trunk of his car, which he did voluntarily. Inside the trunk of the car was Bugg’s shotgun. The two officers testified that they had in no way coerced Jackson to consent to this search but that it was purely voluntary on his part. During the suppression hearing Officer Tilgham stated that Jackson and his wife, Myrtle, appeared to be fairly drunk. Officer Shields added at the suppression hearing that Jackson claimed to know nothing about the gun and stated that he had loaned his car earlier that day to a friend. Jackson and his wife, Myrtle, were then read their rights and placed under arrest. The two defendants were placed in the officers’ cars separately to be transported to the Grenada County Sheriff’s office. About one mile down the road Myrtle Jackson told Officer Tilgham that she had seen Kirby take the television set behind the house. Officer Shields and Jackson were radioed to come back, and Jackson subsequently retrieved the television set from under a raincoat in a corn-patch behind his grandmother’s house. Jackson and his wife were taken to the sheriff’s office where they again were read their rights and where Jackson signed a waiver of rights form and a voluntary statement admitting that he had broken into Bugg’s home and stolen the property.

There was a motion to suppress evidence received by virtue of this warrantless search and at that hearing Kirby Jackson testified with regard to those matters only. His testimony was that he was offered a deal by the officers if he signed the statements and that he did so on their promise. He also claimed that he signed the statements before they were filled in and that he' in fact did not consent to the search of his car.

Kirby Cortez Jackson was tried on July 29, 1981, and the jury returned a verdict of guilty of burglary. At the sentence enhancement hearing the Circuit Clerk of Grenada County introduced court records showing that Kirby Jackson had been convicted and sentenced to a term of three years in the state penitentiary for manslaughter and that he had been convicted and sentenced to a term of seven years in the state penitentiary for robbery. The appellant objected to the introduction of the latter record since the conviction at that time was still on appeal to the Mississippi Supreme Court. The sheriff of Grenada County testified that he had known Jackson for practically all of Jackson’s life and that Jackson had been convicted and sentenced to the two above felony crimes and was the person identified in the judgments. The circuit court at that point sentenced the appellant to ten years in the state penitentiary and further ordered that the sentence should neither be reduced nor should the defendant be put on parole.

I.

The appellant’s first contention is that the circuit court erred in overruling the defendant’s motion to suppress all evidence seized pursuant to a warrantless search and any incriminating statements made thereafter. All searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Loper v. State, 330 So.2d 265 (Miss.1976), and the burden is on the officer to show that the search comes within one of the exceptions. Cutchens v. State, 310 So.2d 273 (Miss.1975); Luton v. State, 287 So.2d 269 (Miss.1973).

If a search is deemed unreasonable, then all evidence seized during that search is inadmissible for the jury or court to consider as evidence of the defendant’s guilt. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Joyce v. State, 227 Miss. 854, 87 So.2d 92 (1956). Furthermore, this exclusionary rule extends beyond the evidence directly seized in the unreasonable search to preclude consideration of subsequently acquired evidence which was gained indirectly as the result of the unreasonable search. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (confessions obtained during illegal detention inadmissible even if Miranda warnings given unless there is a sufficient break in causal connection between illegality and confession); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (information gained during illegal arrest led to discovery of evidence elsewhere); Vanderlin v. State, 267 So.2d 311 (Miss.1972) (error to admit in evidence admission of defendant when confronted with results of search that marijuana found as result of unlawful search belonged to him); Thompson v. State, 206 So.2d 195 (Miss.1968) (defendant’s confession which was a direct consequence of an unlawful search of her house was inadmissible as one of the fruits of the unlawful search). Thus, if the search of the appellant’s car trunk is held to be unreasonable, the shotgun, as well as the subsequently obtained television set and confessions, would be inadmissible.

The prosecution offers as justification for the warrantless search the fact that the appellant consented to the search of his car trunk. One of the specifically established exceptions to the requirements of both a warrant and probable cause to permit a search is a search conducted pursuant to consent. Matthews v. State, 394 So.2d 304 (Miss.1981); Brown v. State, 281 So.2d 924 (Miss.1973). When the prosecution attempts to justify a search on the basis of consent, it must demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Such voluntariness is to be determined from considering the totality of the circumstances surrounding the alleged consent.

In the instant case, both officers testified that Kirby Jackson not only consented to the search, but actually opened the car trunk himself. The officers further testified that there was no coercion of Jackson to force the consent to search. However, Officer Tilgham, during the pretrial suppression hearing, stated that both Kirby and Myrtle appeared to be fairly drunk, and during the hearing on motion to suppress the voluntary statement, Kirby Jackson denied that he gave the alleged consent to search the trunk. Myrtle Jackson, who was present at the time of the search, did not testify on these matters.

With regard to the conflicting testimony, it is apparent that the trial court judge accepted the testimony of the two officers and rejected that of Jackson. Insofar as this involved an evaluation of credibility, this Court is not in a position to hold that the trial court judge erred in that regard. As the Court stated previously in Luton v. State, 287 So.2d 269 (Miss.1974):

It was a classic question of fact to be decided by the judge himself who had the opportunity of seeing and observing each of the witnesses who testified. The trial judge gave to each bit of the testimony such weight and worth as he deemed proper under the existing circumstances. [287 So.2d at 272].

Thus, the Court accepts the lower court’s finding of fact with regard to the issue of consent. We, therefore, conclude that the consent exception to the warrant requirement permits the admission of the evidence in question.

II.

The appellant also contended that the circuit court erred in sentencing the appellant pursuant to section 99-19-81 of Mississippi Code Annotated (Supp.1981) when one of the prior felony convictions of the appellant was not final, but on appeal at the time of sentencing. Section 99-19-81 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Under the majority rule of the various jurisdictions, it is held that a judgment of conviction that is the subject of a pending appeal cannot support enhanced penalties. State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974) (error in habitual criminal proceedings to consider two convictions which were on appeal at time of hearing); Arbuckle v. State, 132 Tex.Crim.R. 371, 105 S.W.2d 219 (1937) (if appeal has been taken from judgment of guilty in trial court, conviction does not become final until affirmance); 39 Am.Jur.2d Habitual Criminals § 8 (1968). The contrary rule is followed in a healthy minority. United States v. Allen, 425 F.Supp. 78 (E.D.Pa.1977) (defendant was second offender even though appeal from prior conviction was pending at time second conviction occurred); People v. District Court, Etc., 192 Colo. 375, 559 P.2d 235 (1977) (phrase “prior conviction” as used in habitual criminal statute includes judgments of convictions that are on appeal); People v. Clapp, 67 Cal.App.2d 197, 153 P.2d 758 (1944) (person has been convicted even though the judgment has been suspended during appeal).

The appellant relies upon the case of Williams v. State, 125 Miss. 347, 87 So. 672 (1921), where the defendant in that case had received an enhanced sentence for the unlawful sale of liquor due to prior convictions. However, the prior convictions were on appeal at the time of the more recent trial. The court ruled in that appellant’s favor by stating:

[I]t follows that these two cases are still pending in the circuit court and that the defendant has not been convicted and punished for two former offenses under this statute. His conviction under this indictment is therefore for a first offense and he should have been sentenced therefor under section 1(a) of this law.. .. [125 Miss. at 355, 87 So. at 673].

This Court is of the opinion that Williams v. State, supra, is distinguishable from the facts and statutory authority of the case at bar.

In Williams v. State, supra, Williams was prosecuted under a statute which provided for punishment “by imprisonment in the state penitentiary not less than one year nor more than five years, if the conviction is for an offense under this Act committed after the person convicted has been convicted and punished for two former offenses thereunder.” (Emphasis added). In the Williams case the two prior offenses from the justice of the peace court were on appeal to the circuit court at the time Williams was sentenced as a third offender. In remanding the case for sentencing the Court noted that the defendant in the two prior offenses had not been convicted and punished as the statute provided, and that, therefore, the last conviction must be sentenced as a first offense for sentencing purposes. Under our practice Williams was entitled to a trial de novo in the circuit court; therefore, before his trial de novo, he did not stand convicted. Mississippi Code Annotated section 11-51-91 (1972) (trial of cases on appeal from justice of the peace); National Hardwood Lumber Asso. v. Gilmore-Puckett Lumber Co., 210 Miss. 354, 49 So.2d 689 (1951) (appeals from judgments of justices of the peace are to be tried anew); Lucedale Comm. Co. v. Strength, 163 Miss. 346, 141 So. 769 (1932) (on appeal from justice court, circuit court’s jurisdiction is original, and is tried de novo).

The more recent case of Nicholson v. State, 254 So.2d 881 (Miss.1971) is a case of our jurisdiction more nearly analogous to the case at bar although it does not address the issue of former convictions on appeal for purposes of enhancement of a subsequent sentence. In Nicholson, supra, our Court held that a defendant may be impeached by the use of a previous conviction which is on appeal even though the earlier conviction was later reversed by the Supreme Court and remanded for a new trial.

The basis for so holding is that unless and until the judgment of the trial court is reversed, the defendant stands convicted, is no longer presumed to be innocent of the crime for which he is convicted, and may be impeached by that conviction.... When a jury in circuit court returns a verdict of guilty, it is a conviction of the crime charged, and unless and until it is reversed by this Court, the conviction stands, and may be used for impeachment purposes. . .. [254 So.2d at 884].

The Mississippi habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Supp.1981), was effective from and after January 1, 1977 and was enacted following the Supreme Court decision of Nicholson v. State, supra, which stated that when a jury and circuit court returned a verdict of guilty, it was a conviction of the crime charged. It is apparent that the legislative intent by the 1977 enactment was to adopt that interpretation of “conviction” in the Nicholson case. The intent of the Legislature in enacting an habitual criminal statute was to protect the public from those criminals who are apparently indifferent to the normal mode of punishment. If we accept the appellant’s contention, the Court will encourage frivolous appeals and provide insurance from habitual criminal status. Finally, we choose not to address the question of the appellant’s remedy if one of his convictions is reversed, since that issue is not before the Court.

AFFIRMED.

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

DAN M. LEE, J., takes no part.


author: WALKER, Presiding Justice,

text:
    Jerry JONES v. STATE of Mississippi.
    No. 53770.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    Robert L. Lancaster, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Lowndes County, Mississippi, wherein the appellant was convicted of aggravated assault and sentenced to serve a term of twelve years with the Mississippi Department of Corrections. Aggrieved with this judgment and sentence, he appeals. We affirm.

Appellant first assigns as error the lower court’s granting of State’s Instruction 4 which reads as follows:

The Court instructs the Jury that to make an assault justifiable on the grounds of self defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill, or to do him some great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished; and, hence, mere fear, apprehension or belief, however sincerely entertained by one person that another designs to take his life or to do him some great bodily harm, will not justify the former making an assault on the latter party. A party may have an apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the Jury may determine the reasonableness of the grounds upon which he acted.

He contends this instruction was erroneously granted as it is misleading and prejudicial in that, by its language, it suppresses his right to act upon reasonable appearances. He further argues the instruction adds to the requirement of either real or apparent danger, the additional element of imminent danger without the qualification that the imminency may be also apparent only.

Although the above instruction is not perfectly written, we find appellant’s argument lacks merit as similar instructions have been approved by this Court in many cases including: Bright v. State, 349 So.2d 503 (Miss.1977); Turner v. State, 220 So.2d 295 (Miss.1969); Coleman v. State, 22 So.2d 410 (Miss.1945); Bailey v. State, 174 Miss. 453, 165 So. 122 (1936); Callas v. State, 151 Miss. 617, 118 So. 447 (1928).

The inclusion of the adjective “apparent” preceding the term imminent danger may be desirable but its omission does not constitute reversible error in this case.

The remaining assignment of error is without merit, as we are of the opinion that when all granted instructions are read together, the jury was properly instructed. This case is, therefore, affirmed.

AFFIRMED.

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


text:
    Billy W. SCHOPPE, J. McDonald Williams, Trammel S. Crow, Lee Bean, and Durant Estates Corporation N. V., d/b/a the Refuge Plantation Company v. APPLIED CHEMICALS DIVISION, MOBLEY COMPANY, INC.
    No. 53371.
    Supreme Court of Mississippi.
    Aug. 25, 1982.

      Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellants.
    Upshaw & Ladner, Tommie Williams, Greenwood, for appellees.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Holmes County wherein Billy W. Schoppe, J. McDonald Williams, Trammel S. Crow, Lee Bean and Durant Estates Corporation N.V., d/b/a The Refuge Plantation, plaintiffs/appellants, brought suit against Illinois Central Gulf Railroad Company, Mobley Company, Inc., and Applied Chemicals Division, Mobley Company, Inc., defendants/appellees, for damages to soybean and cotton crops which resulted from the negligent application of chemicals along the Illinois Central Gulf Railroad tracks, for defoliant purposes, which drifted onto appellants’ crops, causing a reduction in yield in 1977.

Prior to trial, Illinois Central Gulf Railroad Company and Mobley Company, Inc., were nonsuited. Applied Chemicals Division, the sole remaining defendant and ap-pellee, admitted liability for the damage, however, denied the extent of the damages claimed. The jury returned a verdict for plaintiffs/appellants in the amount of $41,-000. However the trial court, upon the motion of Applied Chemicals Division, Mob-ley, Company, Inc., ordered a remittitur of $30,000 or a new trial on the issue of damages if plaintiffs declined to accept the re-mittitur, which reduced the award to $11,-000. Aggrieved of the trial court’s actions, plaintiffs appeal to this Court as authorized by Mississippi Code Annotated section 11-7-213 (1972) urging reinstatement of the jury verdict. We reverse and reinstate.

The Refuge Plantation consists of 2700 acres of farmland located in Leflore and Holmes Counties. This land was purchased by appellants in 1977 for the purpose of raising soybeans and cotton. The length of the plantation spans approximately 3½ miles. The property is bisected by the Illinois Central Gulf Railroad tracks and Highway 49 which traverse the property in a northeasterly direction.

In April 1977, approximately 1000 acres of soybeans and 600 acres of cotton were planted on the Refuge Plantation. On June 18, 1977, appellee applied Spike, Karmex, Paraquat and Banvel-720 on the Illinois Central Gulf Railroad right-of-way through the Refuge Plantation for defoliation of the railroad right-of-way. The chemicals were applied twenty-five feet from the track’s center line. On the day of the application, the wind was blowing from the west with a varied velocity of zero to six miles per hour.

Although appellee readily admitted liability for any damages caused by its application of the chemicals, it denied the extent of damages as claimed by appellants. Bill Schoppe, a partner in Crow Farms, compared the plants in five representative locations by making boll counts on the cotton plants and pod counts on the soybean plants. According to Schoppe, the area affected by the chemical spray was 275-300 yards east of and parallel to the railroad tracks. Schoppe testified that 225 acres of the cotton crop were affected by the spray which reduced the yield on that acreage by 75%. He also asserted that 102 acres of soybeans were affected which reduced the soybean crop on that acreage by 65%. Schoppe approximated their damages in the amount of $81,485.03.

Robert Kennedy, an employee of the Refuge Plantation for some twenty-six years, asserted the crops were damaged halfway between the railroad tracks and the highway. Fred Grossman, who began managing the Refuge Plantation in July 1977, testified that 200-225 acres of cotton were affected by the spraying while 100-125 acres of soybeans were affected by the chemical defoliant. According to Gross-man, the reduction in yield on the affected acreage was substantially the same as that testified to by Schoppe.

The appellee produced two expert witnesses in crop damages and Bill Doyle, the plantation manager before Fred Grossman. These witnesses substantially undermined appellants’ damage estimates. Albert Lee Frazier, Jr., a crop-damage claim investigator, was contacted by Bill Doyle to investigate the crop-damaged area. According to Frazier, boll counts were not an accurate measure of determining what yield a crop would produce. Frazier asserted only thirty acres of cotton were affected by the chemical spray. Of the thirty acres, ten acres were affected moderately to severely, which would reduce yield, while twenty acres were only affected slightly, producing little or no yield loss.

As to the soybean crop, Frazier testified approximately twenty acres of beans were affected which would have produced a ten-bushel-per-acre loss. Frazier approximated appellants’ damages at $2850. Dennis F. Bouchard, who was employed by the Refuge Plantation as an entomologist, asserted the damage was mainly confined along the railroad track bed. Bouchard estimated ten acres of the cotton crop were severely damaged so that between 75% and 80% of that crop would be lost. Bouchard asserted another forty acres of the cotton crop suffered symptoms. However, the yield therefrom would only be affected some 0% to 10%. As to the soybeans, Bouchard asserted twenty-five acres were affected enough to see some response and possibility of slight yield reduction. Five of these acres were described as being hit pretty hard while the remaining twenty acres had symptoms ranging from 0% to 10%. Bouchard placed the total amount of damages at $5500.

Bill Doyle, employed at the Refuge Plantation as farm manager in 1977, testified the chemical spray damaged approximately twenty-seven acres of cotton and sixty acres of beans. Doyle estimated a 75% yield reduction on the twenty-seven acres of cotton and a 50% yield reduction on the sixty acres of soybeans.

At the conclusion of the trial, the cause was submitted to the jury which returned a verdict in favor of appellants, assessing their damages at $41,000. However, upon motion of the appellee, the trial court ordered a $30,000 remittitur or a new trial on the issue of damages if appellants chose not to accept the remittitur. Appellants declined to accept the remittitur and appeal to this Court, urging reinstatement of the jury verdict.

I. Did the trial court abuse its discretion in granting a new trial on the issue of damages conditioned upon appellants’ refusal of a remittitur?

The scope of review, when an appellant declines to accept a remittitur and appeals from an order granting a new trial because of excessive damages, is limited to the question of whether the trial court abused its discretion in granting a new trial. Cortez v. Brown, 408 So.2d 464 (Miss. 1981). Generally, this Court looks with favor upon the action of the trial court in granting an additur or remittitur pursuant to Mississippi Code Annotated 11-1-55 (Supp.1981). Mississippi State Highway Comm. v. Antioch Baptist Church, Inc., 392 So.2d 512 (Miss.1981). By appealing the trial court’s granting of a new trial due to inadequacy of damages, the appellants are asking that this Court reinstate the judgment and by their very act of appealing they must be willing to accept the verdict in all other respects, including the determination of liability. Screws v. Parker, 365 So.2d 633 (Miss.1978). Liability was admitted in this case and there is no question of contributory negligence. The sole question is whether the jury verdict of $41,000 was substantiated by the evidence or was excessive.

In Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972), this Court pronounced the guidelines for determining the excessiveness of damages:

As to any excessive verdict, it is said in 22 Am.Jur.2d Damages section 366, p. 473 (1965):
The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess. (264 So.2d at 405)

The question of the adequacy or inadequacy of damages is one of the most perplexing questions with which the courts must struggle. Dickey v. Parham, 295 So.2d 284 (Miss.1974). Awards fixed by juries are not merely advisory and will ordinarily not be set aside except where so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable, and outrageous. Mississippi State Hwy. Comm. v. Antioch Baptist Church, supra. Evidence of bias, passion, or prejudice on the jury’s part is an inference to be drawn from contrasting the amount of a verdict with the amount of damages. Walton v. Scott, 365 So.2d 630 (Miss.1978).

In the case sub judice, appellants alleged damages to their crops in the amount of $102,015.50. Liability was not disputed. At the time the chemical applications were made, the wind speed varied from zero to six miles per hour. It was undisputed that the railroad tracks traversed the farm for approximately 3½ miles. The remaining evidence as to the extent of damages was sharply in conflict. Appellants’ witnesses consisted of Bill Schoppe, Robert Kennedy and Fred Grossman. Schoppe was a partner in the ownership of Refuge Plantation while Kennedy and Grossman were employees thereof.

Schoppe, through his boll and pod counts in late August and early September, asserted a damage figure of $81,485.03. This figure was based on a 75% yield reduction to 225 acres of cotton affected by the chemical spray and a 65% yield reduction to 102 acres of soybeans affected by the spray. Grossman, who became farm manager in late July or early August, substantiated the amount of acreage affected by the spray as testified to by Schoppe. Kennedy, an employee of the Refuge Plantation for twenty-six years, asserted the damage to the crops extended from the railroad tracks midway to the highway.

Although none of the witnesses had any formal education in agriculture, the three witnesses had numerous years of experience in farming (Schoppe, 8 yrs.; Kennedy, 26 yrs.; and Grossman, all his life). Formal education is not the sole process of becoming an expert in a field. An expert witness may qualify to give an opinion through his experience only. Ludlow Corp. v. Arkwright-Boston Mfrs. Mut. Ins. Co., 317 So.2d 47 (Miss.1975).

Appellee’s witnesses consisted of Bill Doyle, the farm manager of Refuge Plantation during 1977, Albert Lee Frazier, Jr., a crop-damage investigator, and Dennis Ford Bouchard, the entomologist employed by the Refuge Plantation in 1977. Their witnesses approximated appellants’ damages as between $2850 and $5500, asserting a substantially lesser amount of acreage being affected by the spray. These witnesses denied that Schoppe’s method of computing his yield loss was accurate and also contended that the A.S.C.S. records of the Refuge Plantation were not compatible with the extent of loss claimed by appellants.

Appellee contends its witnesses were more credible because of their qualifications and lack of interest in the cause. Opinions of experts, however, are merely advisory and are not to be blindly followed by a jury. Rather they are to be weighed and judged in view of all the testimony in the case and the jury’s own general knowledge of affairs and are to be given such consideration as the jury believes they deserve. Mississippi State Hwy. Comm. v. Madison County, 242 Miss. 471, 135 So.2d 708 (1961). Nor can it be said that appellee’s witnesses were disinterested in the cause. The experts were hired by appellee, and Bill Doyle had previously been fired by appellants. The amount of time each witness spent on the plantation was an issue to be considered by the jury as to how much weight should be accorded the witnesses’ testimony.

The amount of damages awarded by the jury was certainly within the range of evidence presented by both sides. Although Schoppe’s computation of damages may not have been the most accurate method, his approximation remained in evidence. Nor can the A.S.C.S. records produced by the appellee be blindly followed. 1977 was the first year appellants farmed the Refuge Plantation. According to Schoppe, their farming methods were drastically different and better than those used by the previous owners. Since different methods were employed on the plantation during 1977, aside from different atmospheric conditions, these records were of little value to the jury as far as determining the amount of yield reduction appellants suffered as a result of the chemical spray.

After a careful examination of the entire record and the briefs, this Court is of the opinion that the trial court abused its discretion by granting appellee’s motion for a remittitur or, in the alternative, a new trial on the issue of damages. Appellants, through their numerous years of experience in farming, approximated their damages based upon their investigation and experience. Appellee’s evidence was in serious conflict therewith. However, it was not for the trial judge to choose in effect to disregard appellants’ evidence and remit the jury’s award of damages which was well below that testified to by appellants. The remittitur ordered by the learned trial judge reduced the jury award by approximately two-thirds and that testified to by appellants by approximately six-sevenths. The credibility of the witnesses was for the jury’s determination. Therefore, this case should be and is hereby reversed and the jury verdict reinstated.

REVERSED AND JURY VERDICT REINSTATED.

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