text:
    M. T. REED CONSTRUCTION COMPANY v. NICHOLAS ACOUSTICS & SPECIALTY COMPANY.
    No. 51562.
    Supreme Court of Mississippi.
    Jan. 23, 1980.

      Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.
    Young, Scanlon & Sessums, Brad Ses-sums, Jackson, for appellee.
    Before PATTERSON, P. J., and BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

From a decree of the Chancery Court of the First Judicial District of Hinds County, considered substantially against-it, appellant M. T. Reed Construction Company (Reed), and in favor of appellee, Nicholas Acoustics and Specialty Company, (Nicholas), appellant has taken this appeal and assigns numerous errors, which, in its brief, it has condensed into three points of argument:

1. The chancellor erred in finding that certain items of cost to Reed are not allowable under change order 3-A.
2. The chancellor erred in denying appellant’s claim for delay damages.
3. The chancellor erred in allowing prejudgment interest.

The suit was begun by declaration in circuit court, by which declaration Nicholas sought recovery' under a change order to a basic subcontract, to be noticed hereinafter, and prejudgment interest and punitive damages. The suit had contractual and tort features. In the circuit court it was determined that the contract feature contained, complicated mutual accounts, issues which made transfer to the chancery court proper. Mississippi Constitution, section 161 (1890). In the chancery court appellee complainant, complying with Mississippi Code Annotated, section 11-1-39 (1972), filed its bill of complaint, wherein it did not pray for prejudgment interest, but incorporated a prayer for general relief.

The appellant was the successful bidder to become the prime contractor for the construction of the Mississippi Methodist Rehabilitation Center, in Jackson, and entered into contract for that work on April 24, 1972. The contract included work in ceilings, partitions and floors, and Reed by subcontract dated May 24, 1972, contracted with Nicholas, a contractor skilled in the required ceiling, partitions, and floor installation, for the performance of that part of the contract.

The building was being built, for the housing and care of patients, and the specifications called for the use, in designated areas, of wall partitioning of non-combustible and sound resistant materials. The particular material specified was in such short supply that appellee substituted a material fire resistant but not fire proof, which was available at a small reduction in price under that required by the specifications. Whether appellee did this substitution after coordination with the architect, through the architect’s inspector on the job, was, to the extent of its materiality, a question for the trier of fact, being in conflict.

A fire broke out in a partition in the building, on October 2, 1974, when the building was 85 to 98 percent completed, and the conflagration brought into bright focus, if it was not from the beginning, the use of the substituted wall partition materials. (Some were able to testify that the materials were not fire proof because they saw them burning.)

Conferences ensued between the owner, the architect, appellant, and appellee, wherein the parties hereto undertook to escape the financial loss of replacing the substituted materials with specified materials. Finally, it was agreed, by a change order from the owner to appellant, that the materials would be torn out and replaced by materials mutually agreed upon and available, and that the owner would pay $70,000 toward the work entailed by the change order.

With this change order agreement, appellant and appellee agreed, reduced to their change order 3-A, (3-A), that they would do the work necessary under the owner’s change order (G-10), and that only “actual labor and material costs plus taxes,” would be charged, first against the $70,000 in change order G-10, and all above the $70,-000 would be paid in equal parts by appellant and appellee. G-10 gave to appellant 110 extra days in which to complete its contract; by 3-A appellant gave to appellee 89 days wherein to complete work under that change order. (As to who was at fault makes significant the owner’s agreement to pay $70,000 toward the remedial work, and Reed’s agreement to pay one-half of the balance of the cost thereof.)

Four monthly reports were given by ap-pellee to appellant covering its labor, material, and taxes costs on the 3-A work. Appellant Reed paid the first two of these, for November and December 1974, less 10 percent retained from their amounts, but never did pay the latter two reports.

The 3-A work was completed in March 1975 but Reed submitted to Nicholas its 3-A expenses summary on August 27, 1975, and in an amount re-examined and substantially increased in a summary tendered by appellant to appellee on November 5, 1975.

The parties were never able to agree on an account and a determination of which of them owed the other, and this suit resulted.

In answering Nicholas’ bill of complaint filed as noticed above, Reed incorporated a cross bill wherein it injected a prayer for delay damages, in the amount of $20,642.86, contending that this damage was suffered by Reed because of the arbitrary act of Nicholas in substituting the wall materials as shown above. Delay damages were sought in the circuit court, by way of a counterclaim before transfer of the case to the chancery court.

After a time, the chancellor, after conference with the parties’ attorneys, referred all issues and prayers in the pleadings, other than the delay damages matters in the cross bill, to a special master in chancery. Griffith, Mississippi Chancery Practice, Chapter 38 (2d ed. 1950). In her decree making the appointment, she recited that she had reviewed the pleadings, and held a pre-trial conference, and observed that “this case involves a complex mutual accounting to determine the respective costs to each of the parties in performing and completing ‘Change No. 3-A’ to the subcontract of Nicholas Acoustics and Specialty Company, prime contractor, . . . which accounting is to be followed by a calculation of the amount due from one party to the other, arising out of the sub-contract between the parties plus Change No. 3-A, and that a special master should be appointed to state the account between the parties and to make the aforesaid calculation.”

She appointed to that office an attorney and certified public accountant and made provision for the filing of itemized statements of claims supported by evidence of payments, on the part of each of the parties and for filing, by each party, of detailed exceptions to the claims of the other party, and that the master could take testimony in the hearing.

Pursuant to the appointment, hearing or hearings produced testimony and exhibits filling much of the ten volumes making up the appeal record herein. Within a reasonable and proper time after the conclusion of the hearing, the master filed his report of his findings of fact and including a statement of the account between the parties and a calculation of the amount he found to be due from either party to the other.

Exceptions were freely filed; these were examined by the master and he replied to them, giving explanation as to his reasoning in the case of particular exceptions.

In its appeal brief, Reed has condensed down to one item (with several parts) its assignment of error of the findings that certain claims of costs to Reed are not allowable under 3-A.

. It is manifest that the substituted material, rejected by the owner, had to be torn out and carted away from the premises. Impressive preparations were made for this action, and Reed claims that it did the trucking and disposal of this waste or debris, carrying it some ten miles to a dumping area where it was covered with earth. These several items of expense are for labor plus taxes and insurance, trash chute material, and equipment rental. Reed asserts that this expense was a “direct cost to Reed in removing and disposing of the debris generated by the removal of unspecified sound board as directed by change order G-10 and was a proper reimbursable cost item to Reed. Appellee and the master and the chancellor (in their turns) were of the view that disposal of this discarded material was not “actual labor and material costs plus taxes,” and the master disallowed it and the chancellor agreed with his finding.

It is, however, pointed out by appellant, that, notwithstanding a determination that reimbursement was not proper under the change order, the basic sub-contract between appellant and appellee provides that “cleaning up of rubbish and debris after this work and removal of same from premises . . . ” would be done by Nicholas.

During the hearing, appellee maintained that it, appellee, had moved to the site materials equal in amount to the waste hauled away by Reed, and that one cost would offset the other. On this state of the record, where strenuous conflict and contradiction existed, we cannot say that the master did not have substantial evidence upon which to base his decision. Our duty here, then, is to arrive at a determination of whether he should be upheld on the conflict.

We recently in Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978), repeated that where the chancellor is the trier of facts his findings of fact on conflicting evidence cannot be disturbed by us unless, with reasonable certainty, the findings are manifestly wrong and against the overwhelming weight of the evidence, and this is true even though we disagree with the finding and would have arrived at a different conclusion.

In Merchants Fertilizer and Phosphate Co. v. Standard Cotton Gin, 199 Miss. 201, 207-208, 23 So.2d 906, 907-908 (1945), a master was appointed to take and state an account and did so after a long hearing laden with contradictions, as here involved. The chancellor, when the master’s report had been submitted, proceeded to decide the issue or issues involved in disregard of the report. This Court reversed the chancellor enunciating principles concerning hearings before masters:

The law of this state through the years has uniformly been that the report of a master in chancery has the effect of the verdict of a jury in the circuit court, and the chancellor could not vacate or set it aside, unless manifestly wrong as against the overwhelming weight of the evidence. Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650; Daniel v. Klein, 149 Miss. 135, 115 So. 193; Sadler v. Glenn, 190 Miss. 112, 199 So. 305; Goodyear Yellow Pine Co. v. Anderson, 171 Miss. 530, 536, 157 So. 700.
* * * * * *
The report of the master was based on involved statements, invoices, credits, adjustments, prices, and interest. He had most of the witnesses before him in person, saw and heard them testify. He was in a better position, therefore, than the chancellor or this Court to appraise the credibility and the weight of the testimony, as the chancellor, like ourselves, had to depend alone upon the mere letter of the written transcript. However, on the filing of the master’s report, which found the amount claimed by appellant to be correct and due from appellees, and that no tonnage agreement had, as a matter of fact, been made between the parties, as claimed by appellees, appellees excepted only to the latter finding. Thereupon, the chancellor, in his opinion in the record of the case, said that since only one controverted issue was then presented or remained, he would decide the issue himself, independently of the master’s report. The performance of the function of a master, whereby he reduces order out of confusion, simplicity from multiplicity, and certainty from uncertainty complies with the purpose for which he is appointed, and because his report is challenged by a party as to only one phase of his findings, such single challenge cannot retroactively overrule the original adjudication of reference, and authorize the chancellor to ignore the master’s findings, with their characteristics of the verdict of a jury. However, that is what was done in the trial court, and in so doing the chancellor committed reversible error, since he did not adjudge the master’s findings to be manifestly wrong, but merely ignored the report although using the evidence therein. Griffith’s Mississippi Chancery Practice, section 605; Daniel v. Klein, 149 Miss. 135, 115 So. 193 (Emphasis added). (199 Miss. at 207, 208, 23 So.2d at 907, 908).

In Broadhead v. Stack, 244 So.2d 382 (Miss.1971), the pronouncements in Merchants Fertilizer and Phosphate Co. v. Standard Cotton Gin, supra, were noted and under different facts, the standing of the master’s actions is brought into review.

This Court stated there that “The chancellor may confirm, modify, reject, reverse or recommit all or a portion of the master’s report, just as a trial judge may set aside the verdict of a jury and enter a judgment notwithstanding the jury verdict,” and then said;

The report of the master on facts revealed from evidence taken before him is given great weight by the chancellor in determining the case presented for his decision. The master’s decision is necessarily based upon involved accounts, credits, adjustments, values and interest, all of which must be added or subtracted, as the case may be, in order to strike a balance. (244 So.2d at 384).

Appellant cites Mississippi State Highway Comm. v. Dixie Contractors, Inc., 375 So.2d 1202 (Miss.1979), and quotes therefrom as follows:

. We note also that the manifest error rule has little, if any, application in cases such as this resting upon construction of documentary evidence. S & A Realty Co. v. Hilbum, 249 So.2d 379 (Miss.1971). (375 So.2d at 1206).

There are involved in the record presently before us many questions not decided by an interpretation of documents in evidence and we consider the manifest error rule is clearly inapplicable here where the master and the chancellor have agreed in all details on conclusions arrived at by the master and submitted to the chancellor in his report.

We do not find manifest error or a decision contrary to the overwhelming weight of the evidence, and, as to the asserted error in the findings that Reed was not entitled to claim certain items of costs, to-wit those having to do with disposal of the waste and debris from the tearing away of the substituted materials, we cannot say there was manifest error.

Reed bought substantially more vinyl than was necessary in the 3 — A work and strongly insisted and insists that it is enti-tied to the cost thereof, and that it was erroneously denied it. What we have just above said relative to the claim for debris disposal applies here, and we find the claim as to the vinyl is not an allowable one.

Reed asserts that the chancellor erred in denying to it delay damages claimed. It is here set out again that the claim for damages assertedly caused by delay was injected into the case by Reed’s cross bill. Through all the negotiations leading to change order 3-A, there was no intimation that Reed was about to be damaged by a delay caused by Nicholas. Delay must have been expected, if not anticipated, in the allowance of an extended period of time to Nicholas in change order 3-A.

Appellee asserts that, if otherwise allowable, such damages were waived by the parties’ entering into the change order, and argues the point with a substantial degree of plausibility. We regard the allowance of delay damages as being a matter to be determined on an ad hoc basis, and that, under the circumstances here, the chancellor (who decided this issue without reference to the master) correctly and equitably denied the delay damages.

The final argument presented by Reed to be noticed here is that it was error to allow prejudgment interest to Nicholas. Reed cites and largely relies upon our recent decision in West Center Apartments, Ltd. v. Keyes, 371 So.2d 854 (Miss.1979), wherein we held that it was error to allow such interest in the absence of a special prayer therefor, a prayer likewise absent here.

Reed also relies upon language found in O. J. Stanton Co. v. Dennis, 360 So.2d 669 (Miss.1978), and quotes therefrom, wherein it was said that where a legitimate dispute on the items of damages existed and the amount had to be determined by the Supreme Court, prejudgment interest was not proper.

We conclude that either the Keyes case or the Dennis case is sufficient authority to deny this interest, and we find the assignment of error to be well taken,

Nicholas has taken a cross appeal and assigns as error that it, Nicholas, being the successful party, was assessed with half the administrative cost of the master.

All of the court costs were assessed to Reed, the master’s costs being levied in equal parts against the parties.

It is elementary that the chancellor has wide discretion in the matter of assessing costs such as here at issue, but this discretion must not be abused. Owen v. Owen, 228 Miss. 534, 88 So.2d 100 (1956); Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442 (1944).

The appointment and services of the master were no doubt anticipated at least from the transfer of the matter from the circuit court. It is our view that, while the master may have resolved the issues largely in favor of Nicholas, he was called upon to decide legitimate issues tendered by both parties, and that the charges incurred in his services were properly charged to both parties.

Recapitulating, we reverse the chancellor’s decision as to the prejudgment interest, and on all other assignments of error, on direct and cross appeals, the decision is affirmed.

REVERSED AS TO ALLOWANCE OF PREJUDGMENT INTEREST; AFFIRMED AS TO ALL OTHER ASSIGNMENTS ON DIRECT AND CROSS APPEALS.

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

BOWLING, J., took no part.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Willis W. HOPKINS v. Mary Margaret HOPKINS.
    No. 51593.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Ladner & Emil, Gerald R. Emil, Gulfport, for appellant.
    Jim W. Rose, Gulfport, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Mrs. Mary Margaret Hopkins filed a petition in the Chancery Court of the First Judicial District of Harrison County, Honorable Jason H. Floyd, Jr., presiding, to modify a final decree of said court, seeking additional alimony. From a decree granting modification and ordering monthly alimony payments and attorney’s fees, Willis W. Hopkins appeals here.

The threshold question- involved is whether or not the trial court erred in awarding additional alimony payments, since the final decree specifically discharged appellant from all claims of the appellee, including claims for alimony.

On December 2, 1977, the chancery court entered a final decree divorcing Mrs. Hopkins from Mr. Hopkins, approving a property settlement of the parties, granting custody of a minor child of the parties to Mr. Hopkins, and awarding a lump sum alimony payment of two thousand dollars ($2,000.00) to Mrs. Hopkins, together with an additional payment of twelve hundred dollars ($1,200.00) payable in eight (8) monthly installments of one hundred fifty dollars ($150.00) each.

At the time of entry of the said final decree, Mrs. Hopkins had been injured as a result of a fall, and her physician estimated that she would be disabled for a period of eight (8) months. Mr. Hopkins was a member of the United States Navy, with an income of approximately nine hundred fifty dollars ($950.00) per month.

The chancellor entered a decree on January 29, 1979, modifying the December 2, 1977, decree and ordered that the appellant pay the sum of $150.00 per month to appel-lee as alimony, and he allowed appellee two hundred fifty dollars ($250.00) attorney’s fees. In his opinion, the chancellor found that the sum of $150.00 per month for eight consecutive months provided in the December 2, 1977, decree was not intended to be permanent but only temporary covering the months in which Mrs. Hopkins was disabled.

In order to decide the question presented here, it is necessary to interpret the provisions of the December 2, 1977, decree, the pertinent parts of which follow:

“ORDERED, ADJUDGED AND DECREED, that the care, control and custody of the hereinabove named minor child, be and the same is hereby granted unto the Defendant; further, at this time the Court does not award child support to the Defendant and will leave the matter of child support open until further order of the Court. That the Complainant should be awarded reasonable rights of visitation with said child at all reasonable times and places, and he with her. It is further,
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay unto the Complainant the sum of $2,000.00 on or before Jan. 1, 1977, thereby discharging him from any and all claims of the Complainant. That in addition to the lump sum payment, Defendant is hereby ordered to pay unto Complainant, beginning on January 1, 1978, the sum of $150.00 per month, temporary alimony, for eight (8) consecutive months, in the full sum of $1,200.00 . . .”

We note that the decree did not retain jurisdiction in the court to grant future alimony, and no appeal was perfected from that final decree. Temporary alimony may not be awarded in a final decree, and if lump sum permanent alimony is allowed, it is a final settlement between the parties to the extent of the husband’s duty to contribute to the wife’s support, and cannot be changed or modified on the application of either party. Bond v. Bond, 355 So.2d 672 (Miss.1978); Bunkley & Morse, Amis on Divorce and Separation in Mississippi, § 6.08 (1957).

In Gatlin v. Gatlin, 248 Miss. 868, 161 So.2d 782 (1964), the lower court awarded the wife two hundred dollars ($200.00) per month alimony for a period of eighteen (18) months, and, on appeal here, this Court ordered that the chancery court retain jurisdiction of the question of alimony. As stated, no appeal was taken from the final decree in this case.

The December 2, 1977 decree specifically retained jurisdiction for authority to consider in the future the amount of child support, and, the fact that no such provision was entered as to alimony indicates that the trial court considered the lump sum payment of $2,000.00 and the additional $1,200.00 payment in monthly installments of $150.00 per month for eight consecutive months was a final payment and settlement of all claims, including alimony.

We hold that the chancellor was in error in modifying the decree of December 2, 1977, and in ordering monthly payments of alimony, and the judgment of the trial court as to same will be reversed and judgment entered here for appellant. The judgment is affirmed as to allowance of attorney’s fees.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

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


author: LEE, Justice, for the Court:

text:
    Ena Smiley PASCHALL, Ina Smiley Clayton, Yvonne Smiley Jones, Elsie Smiley Tatum, Eloise Smiley Blackwell, Oscar Cortez Smiley and Reuben James Smiley v. Barbara Neal POLK, Administratrix of Estate of Oscar Reuben Smiley, Deceased, et al.
    No. 51599.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Gambrell, Anderson & Gambrell, Andrew M. Gambrell, Hattiesburg, for appellants.
    Tom Tullos, Bobby L. Shoemaker, Bay Springs, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Barbara Neal Polk Smiley petitioned for letters of administration in the Chancery Court of the Second Judicial District of Jasper County, alleging that she and her four (4) children are the sole surviving heirs at law of Oscar Reuben Smiley, who departed this life April 1, 1977. Subsequently, Ena Smiley Paschall, her six (6) brothers and sisters and Leverett Jones Smiley, her mother, filed a petition to establish themselves as heirs at law of Oscar Reuben Smiley. After a hearing in the cause, the chancellor found Barbara Neal Polk Smiley and her children to be the lawful heirs at law of the said deceased and entered judgment accordingly, from which judgment the other parties appeal.

The sole question presented here is whether or not a valid common-law marriage was consummated between Leverett Jones and Oscar Reuben Smiley prior to the time that Oscar Reuben Smiley and Barbara Neal Polk entered into a ceremonial marriage, and whether or not the chancellor erred in finding that Barbara Neal Polk Smiley and her children are the sole surviving heirs at law of Oscar Reuben Smiley.

Evidence relating to the alleged common-law marriage between Leverett Jones and Oscar Reuben Smiley is in conflict. Without detailing same, the record indicates that Leverett Jones first became acquainted with Oscar Reuben Smiley when she was nine (9) years old, and when she became thirteen (13) years of age, he was her “play-daddy” and “professor.” During, and subsequent to, those times, Smiley was principal of the Spring Hill School in Montrose, Jasper County. Leverett Jones testified that in 1921, she began living with Smiley. At that time, she was a young girl in her teens and he was a mature, adult man. In 1922, Leverett Jones bore twins, Ena and Ina, whose father was Smiley. While Lev-erett Jones was pregnant, or shortly after the children were born, Smiley was “kicked out” of the Spring Hill church, and Lever-ett Jones’ brother caused him to be arrested, apparently hoping that such action would result in the marriage of Smiley and Leverett Jones. At any rate, Smiley was released from jail and the children were taken into the home of Frank and Caroline Smiley, parents of Oscar Reuben Smiley, and were supported in that home by all the Smileys, although there was no marriage ceremony. Leverett Jones bore the following additional children, viz: Reuben James, 1926; Eloise, 1930; Yvonne, 1933; Oscar Cortez, 1936; and Elsie Louise, 1940. She testified that Smiley was the father of all those children.

About 1938, Barbara Neal Polk, a young graduate from Rust College in Holly Springs, applied for a teaching position at Spring Hill School, and she was employed on the faculty there. She and Smiley began to go with each other and, on August 21, 1940, they were ceremonially married in Jasper County, Mississippi, pursuant to a marriage license issued by the Circuit Clerk of Coahoma County (County of Polk’s residence). On December 24, 1940, Willie Clarence Smiley was born to the marriage in the Newton Infirmary, Newton, Mississippi, and, in succession, were born Barbara De-verne Smiley, March 8, 1942, Coahoma County; Tommy Jeff Smiley, March 23, 1946, Coahoma County; and Cassandra Smiley, August 8, 1959, John Gaston Hospital, Memphis, Tennessee. The birth certificates, which appear in the record, indicate Oscar Reuben Smiley to be the father of the children and that he and Polk were married. The record further reflects that the information on the certificates of Willie Clarence Smiley and Barbara Deverne Smiley (children born in Newton and Coahoma Counties) was given to the registrar by Oscar Reuben Smiley.

Leverett Jones testified that, after Smiley was ceremonially married to Barbara Neal Polk and a child was born to her of the 1940 marriage, she (Jones) never bore any more children by Smiley, nor did she resume intimate relations with him. Barbara Neal Polk resided for approximately two (2) years in the Montrose area, became pregnant with her second child, and went to her parents’ home in Clarksdale where the child was born. According to her, she returned on occasions to the Montrose community, and Smiley often came to see her in Clarks-dale when she was living there. Smiley contributed to the support of his children by Leverett Jones, and, to his credit, six (6) of those seven (7) children acquired college degrees. Ena and Ina obtained Ph.D. degrees, and were living in California at the time of the trial. Smiley died there in 1977 at the age of ninety-two (92). None of said children received Social Security benefits on account of their relationship to him, while the four (4) children of Barbara Neal Polk Smiley did qualify for and receive such benefits. He also supported those children.

Witnesses for the appellants testified that there was an oral agreement between Leverett Jones and Smiley in 1921 to become husband and wife, and that, pursuant to such agreement, they lived together and consummated a common-law marriage. The evidence is in direct conflict on that point. Certified copies of the marriage license issued to Barbara Polk and Smiley and certificates of birth issued for their four (4) children were introduced into evidence. There is no serious conflict as to the validity of the ceremonial marriage, if the common-law marriage is not sustained.

In Whitman v. Whitman, 206 Miss. 838, 41 So.2d 22 (1949), the Court said, in quoting from 55 C.J.S. Marriage § 45, at page 911:

“ ‘A claim of common-law marriage is regarded with suspicion and will be closely scrutinized. Thus, in order to establish a common-law marriage, all the essential elements of such a relationship . must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead.’ ” 206 Miss. at 845, 41 So.2d at 25.

And, quoting from 55 C.J.S. Marriage § 43, at page 896:

“ ‘The presumption of the validity of the last marriage has been held to be the strongest presumption known to the law; and in the absence of additional facts or circumstances it must prevail over all conflicting presumptions, such as presumptions as ... to the validity of a prior marriage.’ ” 206 Miss. at 845, 41 So.2d at 25.

Also, citing Powell v. Powell, 27 Miss. 783 (1854), the Court said:

“ ‘The law favors marriage, and, when once solemnized according to the forms of law, will not declare its nullity upon anything less than clear and certain testimony, especially after it has been dissolved by the death of one of the parties.’ ” 206 Miss. at 843, 41 So.2d at 25.

Oscar Reuben Smiley supported and reared children of two women, one of whom claimed marriage to him by common law, the other by a subsequent ceremonial marriage. In U.S.F.&G. Co. v. Smith, 211 Miss. 573, 52 So.2d 351 (1951), the Court cited 35 Am.Jur. Marriage § 199, at page 311:

“ ‘The presumption of marriage from cohabitation and reputation is rebutted or overcome by proof of a subsequent ceremonial or actual marriage, since the presumption of the validity of such marriage is stronger than the presumption of the previous marriage from cohabitation and reputation, especially where the ceremonial or actual marriage occurs after a long separation following the cohabitation and reputation relied upon to establish the competing marriage.’ ” 211 Miss. at 580, 52 So.2d at 353-354.

Smiley was an educated and intelligent man. He owned valuable property in Jasper County, Mississippi, yet he died in the State of California residing in the home of his older daughter(s) by Leverett Jones, without executing a will for any of his children’s benefit. The chancellor found on conflicting evidence that there was no common-law marriage between Smiley and Leverett Jones, that the ceremonial marriage between Smiley and Barbara Neal Polk in 1940 was a valid marriage, and that the children of that marriage were entitled to inherit from Smiley, along with his wife, Barbara Neal Polk Smiley. We cannot say that the chancellor was manifestly wrong in his finding of fact, and, therefore, we must accept same and apply the law thereto. Potts v. Bryant, 194 So.2d 495 (Miss.1967). The judgment of the lower court is affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Charles Gordon PHILLIPS v. STATE of Mississippi.
    No. 51659.
    Supreme Court of Mississippi.
    Jan. 30, 1980.

      Farese, Farese & Farese, John B. Farese, Ashland, W. A. Grist, Pontotoc, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

The appellant, Charles Gordon Phillips, was indicted by the grand jury of Lafayette County, Mississippi, on a charge of involuntary manslaughter by culpable negligence. He was tried, convicted and sentenced to serve a term of twelve years in the Mississippi State Penitentiary with six years suspended. From that conviction and sentence, Phillips prosecutes this appeal. We reverse and discharge appellant.

We would first point out that there is not a scintilla of evidence in this record, nor does the state suggest, that Phillips intentionally killed Christina Ann Hegler. To the contrary, the uncontradicted evidence was that the young couple were in love and planned to get married.

On November 22, 1977, the appellant and Miss Hegler were living together in appellant’s house in rural Lafayette County, Mississippi. The couple had been cleaning house, it being close to Thanksgiving. About midafternoon, appellant took a break to go deer hunting with a friend. He returned about dark. The couple had supper and resumed cleaning the house. The appellant heard an unusual noise outside, loaded his shotgun and went to investigate. Finding nothing suspicious, he returned and put the shotgun against the wall behind a recliner chair in the living room. Later, while sitting in the recliner, he attempted to unload the gun. Miss Hegler was sitting on the arm of the couch directly in front of the appellant. Appellant had the gun pointed toward the ceiling. As he was unloading the pump gun, he pulled the trigger believing there was no shell in the chamber, but the gun discharged. Misfortune would have it that Miss Hegler, at that moment, stood up into the path of the projectile which struck her in the eye.

Appellant testified that he threw the gun down and immediately called the telephone operator in an attempt to summon help. The operator put him in contact with the police. Soon thereafter, Sheriff F. D. East of Lafayette County, Coronor Murray Sutherland, and an ambulance arrived.

The uncontradicted testimony and exhibits show that the shotgun was pointed toward the ceiling of the house. The photographs of the ceiling depicted blood, hair, tissue, and a hole therein. There were only two witnesses for the state, one being the county coroner and the other Sheriff East. Neither saw the fatal shot. The version of the unfortunate incident given by the defendant is not contradicted by other witnesses, the physical facts, or facts of common knowledge and is not unreasonable. It must, therefore, be accepted as true. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

This Court on numerous occasions has pointed out that involuntary manslaughter by culpable negligence within the meaning of Mississippi Code Annotated section 97-3-47 (1972) may be defined as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt. See Butler v. State, 375 So.2d 1039 (Miss.1979); Latiker v. State, 278 So.2d 398 (Miss.1973); Sullivan v. State, 213 Miss. 14, 56 So.2d 93 (1952).

In Latiker v. State, supra, the facts were similar to the case sub judice. There, Perry Latiker was charged with manslaughter by culpable negligence in the death of a friend. The proof disclosed that Latiker, the deceased, and some other man were engaged in idle conversation when the subject of guns came up. He replied that he had a gun in the truck. He was then told he had better get the gun out of the truck or face paying a fine if the weapon were found. Whereupon, Latiker retrieved the gun and stuck it in his pocket. A Mr. Bates then boasted that he had a better gun than La-tiker and asked to see Latiker’s gun. La-tiker maintained that as he pulled the pistol from his pocket, it discharged killing Bates instantly. Latiker offered to take Bates to the hospital but was told not to move him. Thereupon Latiker left in his car, but turned himself in two days later. None of the witnesses for the state saw the fatal shot and none could shed any light on how it happened.

This Court in holding that the evidence was insufficient to sustain a conviction of the defendant stated:

The evidence in this case is skimpy as none of the witnesses actually saw the firing of the fatal shot. The appellant and the deceased were longtime friends. There was no motive shown for the killing. There was no testimony of horseplay with the pistol, drunken brawling or any other reckless conduct that could be interpreted to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life. The testimony of appellant is not unreasonable and is not contradicted by any of the physical evidence or the testimony of the witnesses. Therefore, we have concluded that the evidence presented shows, at most, an act of simple negligence which resulted in the unfortunate death of the deceased.

In Latiker, we also cited Gant v. State, 244 So.2d 18, 19 (Miss.1971), where we observed that:

* * * “Experience has shown that under that statute (the culpable negligence statute) juries are overinclined to convict on proof of what is in fact no more than simple negligence, and as a result there have been more reversals in this class of cases than perhaps in any other that comes before us.” * * *

That is precisely the case we have here, an act of simple negligence which resulted in the most unfortunate death of Miss Hegler. The record fails to show any horseplay with the shotgun, drunkenness, brawling or any other reckless conduct tantamount to a wanton disregard of, or utter indifference to, the safety of a human life.

Phillips’ negligence does not reach that degree required to establish culpable negligence within the meaning of Mississippi Code Annotated section 97-3 — 47 (1972), and the decisions of this Court.

The motion for a peremptory instruction in favor of the defendant should have been sustained.

It is not necessary that we discuss the remaining assignments of error.

The judgment of the trial court will, therefore, be reversed and appellant, Charles Gordon Phillips, discharged.

REVERSED AND APPELLANT DISCHARGED.

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

      . Mississippi Code Annotated section 97-3-47 (1972) provides: “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.


author: PATTERSON, Chief Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. J. W. ROBERTS.
    No. 51474.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Bryan, Nelson, Allen, Schroeder & Back-strom, John W. Chapman, Pascagoula, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
    Befoe PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Jackson County, J. W. Roberts received as an award for breach of an insurance contract $20,000 punitive damages and $5200 actual damages in excess of $4000 offered him before trial for the value of his automobile. Roberts’ insurer appeals. We reverse and remand for an award limited to the actual cash value of the automobile at the time of the accident.

On March 20, 1974, the son of J. W. Roberts was involved in an accident while driving his father’s 1974 Oldsmobile Cutlass automobile. A truck of Kitchenaids, Inc. totally demolished the automobile at the intersection of Highway 90 and Chicot Road.

On March 21, 1974, Oren Haddock, a claim adjuster of the insurer, learned of the accident and began an investigation. Prior to the March 20 accident, Haddock had been, and continued, investigating for State Farm some claims of J. W. Roberts arising from an accident of January 30, 1974, which also involved the appellee’s son.

The appellee employed attorney Frank J. Hammond to represent him concerning the January 30 accident and again retained him concerning the March 20 accident. Attorney Hammond and adjuster Haddock on several occasions discussed both accidents. Hammond testified that from the time of the March 20 accident until just before trial neither Haddock nor any representative of the insurer had ever “made an offer of settlement for this automobile to me.”

The record reveals that during negotiations to settle the automobile claim, Hammond insisted that the insurer pay the amount owed by Roberts to the Merchants & Marine Bank on the car. The evidence discloses this amount exceeded the policy coverage. The policy insured the actual cash value of the automobile while the amount owed the bank' exceeded that sum by about $1000.

On cross-examination appellee Roberts was asked if he knew of an offer communicated by the insurer to attorney Hammond:

Q. Let me refresh your memory. Do you remember giving a deposition back in March of this year, and Mr. Chapman asked you on Page 33 “Did Mr. Hammond ever tell you that State Farm had offered to pay you any money in regard to the car?” Answer — “Yes, but it was not like near enough.” Question — “Did he tell you how much they offered to pay you?” Answer — “Now, off the record I can’t say for sure, but it seems to me like it was around in the amount of $3700 and there was $4700 owed on it.” Do you remember making that statement under oath in the offices of your attorneys on March the 21st?
¿í. Right; right.
Q. Would you like to contradict that or confirm that here today?
A. I would like to confirm that.

The file lay dormant, except for a letter of May 9, 1974, from attorney Hammond to the insurer concerning another claim and containing the statement, “At your convenience, I would appreciate your calling by my office to discuss the various matters that we have pending in connection with Mr. Roberts.” In 1976 Hammond suffered a heart attack, and time passed with nothing being done about the claim, either by the insurer or the insured. Eventually, with Hammond’s consent, Roberts sought representation from other attorneys, and this suit followed,

The appellant’s several' assignments of error may be disposed of by a resolution of the cardinal issue of whether the evidence establishes an independent tort, a prerequisite to an award of punitive damages. We find the evidence insufficient as a matter of law to establish this essential element. We therefore hold the trial court erred in granting the punitive damages instruction. A research of the record reveals nothing other than a legitimate pocketbook dispute between the parties as to the amount that was due for the demolished automobile, one claiming the sum owed the bank on the automobile and the other admitting coverage in the amount of its policy, specifically, the actual cash value of the automobile. In our judgment, these differences of opinion did not rise to the level of wanton, gross or intentional conduct in the nature of an independent tort. In the absence of such conduct, a punitive damages award cannot stand. Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829 (Miss.1979); Bellefonte Ins. Co. v. Griffin, 358 So.2d 387 (Miss.1978); New Hampshire Ins. Co. v. Smith, 357 So.2d 119 (Miss.1978); Standard Life Ins. Co. v. Indiana v. Veal, 354 So.2d 239 (Miss.1978); Lincoln National Life Ins. Co. v. Crews, 341 So.2d 1321 (Miss. 1977); Progressive Casualty Ins. Co. v. Keys, 317 So.2d 396 (Miss.1975); D. L. Fair Lbr. Co. v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); Am. Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); Hood v. Moffett, 109 Miss. 757, 69 So. 664 (1915); see also A Perspective Look at Punitive Damages in Mississippi, 1 Mississippi College L.Rev. 21 (1978).

We reverse and render as to the award of punitive and actual damages and remand for an award of the actual cash value of the automobile at the time of the accident as provided in the policy.

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

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


author: SMITH, Presiding Justice,

text:
    Charles Eugene HAMMOCK v. STATE of Mississippi.
    No. 51461.
    Supreme Court of Mississippi.
    Jan. 30, 1980.

      Joe Ben Hawkins, Biloxi, Shannon E. Waller, Jr., Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Charles Eugene Hammock appeals from his conviction of murder in the Circuit Court of Harrison County and the imposition upon him of a sentence to life imprisonment.

He assigns for reversal four alleged errors: (1) the admission of his confession; (2) the admission of certain photographs of the homicide victim; (3) the admission of references to his refusal to take a polygraph examination and (4) the refusal of the trial court to instruct the jury that, upon the evidence, it might find Hammock guilty of manslaughter.

Evidence at the trial established that in the early morning hours of August 14,1977, Hammock’s stepfather, one Williams, was found brutally slain in North Biloxi, death having resulted from several gunshot wounds. It was developed that these wounds had been caused by slugs fired from a shotgun at close range. Hammock was arrested for the crime.

1. THE ADMISSION OF HAMMOCK’S CONFESSION.

Hammock made statements on August 17, 18 and 23, 1977 in which he denied having committed the crime. Each of these statements was preceded or accompanied by a written waiver of his Miranda rights, signed by Hammock. In each of these he was informed that he had a right to remain silent, anything that he said might he used against him in court, he had a right to talk to a lawyer before being questioned and to have him present during questioning, that if he could not afford a lawyer and wanted one a lawyer would be appointed, that if he decided to answer questions without a lawyer present he would have the right to stop the questioning at any time until he had talked to a lawyer. The consent to speak signed by Hammock in each instance, was in these words “I have read this statement of my rights and it has been read to me, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

On August 24, 1977, Hammock signed a printed form in which this statement appears. “I do not have sufficient funds to employ an attorney. I therefore request that the court appoint an attorney for the purpose of representing me in connection with the charge of murder.” The blanks provided for inserting the name of the court, the county and the judicial district were left blank. In Hammock’s brief, it is stated that this petition was “filed” on August 24, 1977. However, the xerox copy appearing in the record, which includes the order granting the petition signed by the trial judge, reflects August 29, 1977, as the date it was filed with the clerk and is the only filing date appearing on the document. It is stated in Hammock’s brief that the petition was signed by Hammock before a notary public “who was an employee in the sheriff’s office.” There is no evidence in the record that this paper was filed with the clerk of the court on August 24, 1977, the day of its date, and it is conceded that it was not brought to the attention of the trial court in any way until August 29,1977, three days after Hammock had signed a full confession.

This confession, signed on August 26, 1977, with a waiver of rights, (at one point Hammock said he knew them “almost by heart”) consisted of twelve single-spaced typewritten pages, a xerox copy of which appears in the record. Also filed with, and made a part of the record, is the tape recording of the confession as given by Hammock.

A pretrial evidentiary hearing was conducted for the purpose of determining whether the confession had been freely and voluntarily given, at which the court heard the testimony of all of the officers who had been present to the effect that the statement had been freely and voluntarily given by Hammock, and had not been the product of any improper inducement and no promises or threats had been made and no pressure or coercion of any kind had been used. Hammock did not testify at the hearing and the officer’s testimony was not rebutted. On the evidence adduced, the trial court ruled that the confession had been free and voluntary and that it was admissible in evidence.

At the trial, the statement was admitted in evidence as part of the State’s case. After the State had rested, Hammock took the stand as a witness in his own behalf.

The direct examination of Hammock by his counsel opened with Hammock’s statement that he had just been released from the penitentiary where he had served five years for robbery. He stated that his mother had asked him to kill Williams, his stepfather, and that he had declined to do so. He admitted that he had accompanied his mother to purchase the shotgun shells about which testimony had been given and said that these shells had been bought for protection.

Asked by his counsel:

Q. Okay. After you were arrested, you subsequently made the four statements introduced here today; is that not correct?
A. It is.
Q. Okay. I believe the, uh, you only signed the fourth statement (which was the inculpatory statement); is that correct?
A. That’s correct.
Q. Okay. Would we be correct in saying you did not confess to the commission of this crime in the first three statements.
A. They was (sic).
Q. Okay. When you made the fourth statement, would you please tell the Court the reason for changing your story and, uh, signing that fourth statement, the one dated August 26? (the confession)
A. Well, the first three was just kind of like a, uh, like a game like, uh, and then, uh, the fourth one, I just had to come on out and tell the truth about it.

In attempting to clarify this statement, under questioning of his counsel, Hammock said that only parts of the inculpatory statement had been true. Under subsequent questioning by his counsel and also by counsel for the State it developed from Hammock’s testimony that most of the significant statements contained in the confession were true except for the ultimate fact that he had killed his stepfather. This part of the statement, he said, was false and had been made in order to protect the interests of his mother in her prosecution for her alleged part in the murder and to prevent his wife from being prosecuted as an accessory. Hammock freely admitted making the statement but seemed to indicate that he was “playing a game” with the officers and also that he had been induced to make it by promises by the officers of prosecuto-rial favors to his mother and wife. Hammock testified:

A. All right. Regarding to anything in here, uh, what I am saying, the statement itself is true, but anything to my, uh, to me killing him is not true.
Q. Everything in this statement is true?
A. Except the part about me killing him.
Q. Except the part about you killing him?
A. Right.
Q. And you say it’s not true, but you described it in very vivid detail?
A. I did.
Q. Didn’t you?
A. I did.
Q. And you had gotten a gun from Randy for protection?
A. I bought a gun from Randy. Yes, sir.
Q. You bought it or you traded for it?
A. Traded.
Q. For protection?
A. I did.
Q. And you went and bought two boxes of shotgun shells?
A. I didn’t. My mother did.
Q. Well, you went with her and charged it on her account, didn’t you?
A. Yes, sir.

The tape recording of Hammock’s confession is before this Court on appeal, and supports the testimony of the officers. Hammock talked to them freely, at great length and in very considerable detail. He admitted his participation in the disposal of the gun but insisted at trial that he had nothing to do with killing Williams.

When the defense had rested, in rebuttal, the State recalled the three officers who had participated in the taking of Hammock’s statements, including the inculpato-ry statement, and each of these officers rebutted the testimony that Hammock had given to the effect that he had made the statement to protect his wife from threats of prosecution and because of promises made that it would help his mother in connection with her prosecution as an accessory-

At the conclusion of the State’s case there was an oral motion for a directed verdict, no grounds stated, which was denied. There was no motion to exclude the inculpatory statement which had been previously admitted in evidence on the basis of the testimony at the suppression hearing.

Following his conviction, a motion for a new trial was made in Hammock’s behalf, assigning several grounds, but nothing relating to Hammock’s statement was among them.

We have examined all of the testimony relating to the confession, including that of the witnesses at the suppression hearing, the inculpatory statement itself, given by Hammock, and the testimony of Hammock given as a witness in his own behalf at his trial, including his admission that he made the statement and his acknowledgment of the truth of a great part of the statement, as well as the rebuttal testimony of the officers, we have listened to the tape recording, and have concluded that the ruling of the trial court that the statement had been freely and voluntarily given was amply supported by the evidence and that he correctly ruled that it was admissible.

Nor is this altered by the “Request for Appointment of Counsel.”. The printed form signed by Hammock requesting appointment of counsel, notwithstanding that it was sworn to before a notary public “who was an employee in the sheriff’s office,” even if it could be assumed without support in the record, that it was filed with the trial court clerk on August 24, 1977, it is undisputed that it was not brought to the attention of the trial judge, or even marked filed by the clerk, until August 29, 1977, three days after Hammock had given his statement. We cannot assume a filing date earlier than that shown by the clerk’s stamp, nor assume that the trial judge had knowledge of this petition prior to August 29, 1977, the date on which he granted it, as there is nothing in the record to so indicate and no contention that he did.

Hammock’s admissions as a witness, the testimony of the officers as well as the tape recording, all combine to convince us that Hammock’s statement was freely and voluntarily given with a full understanding of his rights. Moreover, in its description of the circumstances of the killing it corresponds in detail with the undisputed physical facts of the case.

Hammock showed himself to be an intelligent person and seemed to take keen pleasure in sparring with prosecuting counsel. He was repeatedly informed of his rights (although he knew them “almost by heart”) and repeatedly waived his right to have counsel present.

No evidence whatever challenging the voluntariness of the confession was adduced on the motion to suppress, or at all until after the confession had been introduced and the State had concluded its case and rested. It was not until the presentation of Hammock’s defense on the merits, that Hammock, called as a witness in his own behalf, testified to alleged facts now said to have rendered the confession involuntary. At that stage, the trial court had correctly permitted the introduction of the confession in the State’s case in chief and it was properly in evidence. Hammock, as a witness, freely admitted giving the statement and admitted that in large part the facts stated in it were true, challenging only the truth of the ultimate fact that it had been he who had shot Williams. His possession of the gun, the purchase of the shells, the disposition of the gun after the killing, the request by his mother to kill Williams, were among those facts admitted by Hammock from the witness stand. In this situation, in order to preserve the question on appeal, it was necessary to move to exclude the statement if it should then be considered that Hammock’s belated testimony had shown it not to have been voluntary. No such motion was made. Moreover, Hammock’s testimony as to its voluntariness was rebutted by the testimony of all three of the officers who were present when it was given and who were recalled for that purpose.

We hold that there was ample evidence supporting the trial court’s finding that Hammock’s confession had been freely and voluntarily given to fulfill the requirements and to meet the standards established and laid down in the following cases: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jordan v. State, 365 So.2d 1198 (Miss.1978); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Agee v. State, 185 So.2d 671 (Miss.1966).

We find no merit in the contention that the trial judge committed error in admitting Hammock’s confession into evidence.

2. THE ADMISSION OF PHOTOGRAPHS OF THE VICTIM’S BODY.

At the trial, certain photographs of the victim’s body, showing its condition and location and the wounds which had been inflicted upon it, were admitted into evidence. There was no objection to the admission of the first of these photographs. Objection was made to the introduction of the others and it is argued on appeal that their purpose and effect were to inflame and prejudice the jury and that they were without evidentiary value. The competency, relevancy and materiality of photographs in homicide cases ordinarily are matters to be determined by the trial court within his judicial discretion. In the case before us, the photographs supplied some corroboration of the facts and circumstances related by Hammock in his account of the slaying contained in his confession. They also served the purpose of confirming the identity of the victim and identifying the place where the body was found as the place where Hammock said he had left it after the killing. We are unable to say that the pictures served no substantial or legitimate evidentiary purpose or that they were so inflammatory that their prejudicial effect outweighed their value as evidence. We find no error in the admission of the photographs. Voyles v. State, 362 So.2d 1236 (Miss.1978); Irving v. State, 228 So.2d 266 (Miss.1969).

3. REFERENCE TO REFUSAL OF HAMMOCK TO SUBMIT TO POLYGRAPH EXAMINATION

The fact that several references were made in the course of the trial to Hammock’s refusal to submit to a polygraph examination is now assigned as error, requiring reversal. An examination of the record, however, shows that such references were in response to questions by defense counsel as well as by prosecuting counsel. Moreover, in no instance was there any objection whatever to such questions or testimony elicited in response thereto. Neither the taking of a polygraph examination nor its result is admissible in evidence, but there was no such examination in this case, and no objection having been interposed at the trial, an objection to these questions and answers may not be raised on appeal for the first time. Martin v. State, 354 So.2d 1114 (Miss.1978); Williamson v. State, 330 So.2d 272 (Miss.1976).

We find no prejudicial error as to the result of the references to a proposed polygraph examination.

4. REFUSAL OF TRIAL COURT TO INSTRUCT THE JURY IT MIGHT FIND HAMMOCK GUILTY OF MANSLAUGHTER.

The trial court declined to grant an instruction informing the jury that, if it found that the defendant had committed the homicide, it might find him guilty of manslaughter rather than of murder.

Manslaughter has been defined as the killing of a human being in the heat of passion by use of a dangerous weapon without authority of law and not in necessary self-defense. Jones v. State, 58 So.2d 655 (Miss.1952). The distinction between murder and manslaughter is that the homicide in the case of murder must have been committed with malice and after deliberation. Goldsby v. State, 226 Miss. 1, 78 So.2d 762 (1955), certiorari denied, 350 U.S. 925, 76 5.Ct. 216, 100 L.Ed. 809.

Ed Rehak, M. D., performed an autopsy on the body of Williams. Death occurred on August 13, 1977, and there were three gunshot wounds on the body although it could not be determined with any certainty which wounds were entry wounds and which were exit. It was the doctor’s opinion that Williams had been shot twice, once in the front and once in the back.

In his confession, Hammock related how, pursuant to a preconceived purpose, he lured Williams to a lonely spot, induced him to get out of the automobile for the purpose of killing him and how he then shot him as he lay on the ground, returning to “make sure” that Williams was dead by shooting him again.

In addition to Hammock’s confession, one Randy Waldrop, a convicted burglar, testified as a witness for the State. He said that two weeks prior to the murder he had delivered to Charles Hammock a sixteen gauge shotgun in exchange for an automobile tape player. Waldrop and Hammock visited each other from time to time and on August 14, 1977, Hammock told Waldrop that he had killed Williams, his stepfather, with the shotgun and asked Waldrop to dispose of the weapon. Waldrop said that, using a hacksaw provided by Hammock’s mother, he destroyed the gun and took the pieces to her house where they were hidden in the washing machine. Waldrop testified that he reported these facts to the sheriff at Wiggins.

The record in this case contains no evidence capable of supporting a conviction of manslaughter. Hammock’s defense is that he did not commit the homicide. His confession shows both deliberation and malice. Hammock was guilty of murder or nothing. The trial court did not err in refusing to instruct the jury that it might find Hammock guilty of manslaughter as there was no evidence capable of supporting such a finding. Presley v. State, 321 So.2d 309 (Miss.1975). In order to justify the giving of a manslaughter instruction in a homicide case there must be competent evidence tending to show that the killing was in the heat of passion and without deliberation or malice. Newell v. State, 209 Miss. 653, 48 So.2d 332 (1950); Caldwell v. State, 347 So.2d 1389 (Miss.1977); Ruffin v. State, 227 Miss. 204, 85 So.2d 821 (1956).

No prejudicial error having been shown to have occurred in the trial of Hammock, and the evidence fully supporting the verdict of guilty returned by the jury, the conviction and sentence appealed from must be, and are, affirmed.

AFFIRMED.

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


text:
    Steve COPELAND v. STATE of Mississippi.
    No. 51522.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Ralph W. Pringle, T. Larry Wilson, Pas-cagoula, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.

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


text:
    William BREWER, Jr. v. STATE of Mississippi.
    No. 51668.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Burdine & Austin, Curtis H. Austin, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey S. Buck, Judge.

Before PATTERSON, C. J., and BROOM and CÓFER, JJ.

AFFIRMED.

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


text:
    Edward Earl STEWART v. STATE of Mississippi.
    No. 51676.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Robert W. Lawrence, Crystal Springs, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

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

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and COFER, JJ., concur.


text:
    Lamar ABERNATHY et al. v. Mattie Marian SMYTHE et al.
    No. 51640.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    John M. Huff, Jerry L. Bustin, Forest, for appellants.
    Tom S. Lee, O. B. Triplett, Jr., Forest, for appellees.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.

LEE, J., took no part.


text:
    Guy LOWE, Jr. and Lloyd D. O’Quinn, d/b/a L. O. Enterprises v. DEPOSITORS SAVINGS ASSOCIATION.
    No. 51598.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    James W. Newman, III, Lawrence L. Little, Jackson, for appellant.
    Bacon, Stone, Jernigan & Goodman, William A. Bacon, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; George William Haynes, Chancel-

Before PATTERSON, C. J., and BROOM and LEE, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BOWLING and COFER, JJ., concur.


text:
    Paul Ellis SANDERFORD et al. v. Arlene MITCHELL et al., and City of Richland.
    No. 51634.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Harry L. Kelley, Jackson, for appellants.
    Nicols & Henderson, Paul B. Henderson, Pearl, for appellees.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Patricia Satterfield SINGLETON v. Robert Jackson SINGLETON.
    No. 51641.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Jerry L. Bustin, Forest, for appellant.
    Thomas D. Lee, Forest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before- SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.

LEE, J., took no part.


text:
    J. C. MARTIN, Jr. v. Guy L. WALKER.
    No. 51649.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    J. C. Martin, Jr., Waynesboro, Guy M. Walker, Laurel, for appellant.
    Louie M. Bishop, Waynesboro, for appel-lee.
   Appeal from Circuit Court, Wayne County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    Lattis Inez ECKROTE v. Solomon W. ECKROTE.
    No. 51660.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, Cothren, Pittman & Ferrell, Crymes G. Pittman, Jackson, for appellant.
    Aleita M. Sullivan, Mendenhall, for appel-lee.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

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

AFFIRMED.


text:
    Dicie DAVIS v. NEHI BOTTLING COMPANY et al.
    No. 51645.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Andalman, Adelman & Steiner, Alison R. Steiner, Hattiesburg, for appellant.
    Riddick & Carpenter, Robert M. Carpenter, Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    James A. BROCK v. RAY TRACTOR COMPANY, INC.
    No. 51700.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Langston, Lott & Cadle, Tommy D. Ca-dle, Booneville, for appellant.
    Robert T. Cornelius, New Albany, for ap-pellee.
   Appeal from Circuit Court, Union County; W. W. Brown, Judge.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


author: HOLMES, Judge.

text:
    Stephen PRESCOTT, suing by and through his next friend, Paul R. Prescott, and Paul R. Prescott v. Floyd Mason FLETCHER.
    Civ. 1818.
    Court of Civil Appeals of Alabama.
    Nov. 28, 1979.
    Rehearing Denied Dec. 19, 1979.
    William H. Saliba, Mobile, for appellants.
    Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for personal injury as a result of defendant’s negligence and wantonness. The jury returned a verdict in favor of the plaintiff and against the defendant. The amount of the jury’s verdict was $10,000 and judgment was entered for that amount.

The plaintiff appeals, contending that the trial court erred to reversal regarding certain evidentiary rulings. We affirm.

At the outset, we note there was no motion for new trial by either party.

It is the law in this state that a party in whose favor a verdict and judgment are rendered and entered can bring an appeal only to question the amount of damages. See, DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973); Beatty v. McMillan, 226 Ala. 405, 147 So. 180 (1933); Bates v. General Steel Tank Co., 36 Ala.App. 261, 55 So.2d 213, cert. dismissed, 256 Ala. 466, 55 So.2d 218 (1951); 2 Ala.Digest Appeal & Error <3= 151(5).

Additionally, it is the law in Alabama that an appellate court cannot review the inadequacy of a judgment in cases where no motion for new trial is made. See, Fallaw v. Flowers, 274 Ala. 151, 146 So.2d 306 (1962); 2 Ala.Digest Appeal & Error o=>293. As noted above, no such motion was made in the instant appeal.

In view of the above, this court has no alternative other than to affirm the judgment below.

However, for interested parties, this court has carefully reviewed the complained of evidentiary rulings by the trial court. Our review reveals that if there be any error such error is without injury to the plaintiff. See Rule 45, ARAP.

The case is due to be affirmed.

AFFIRMED.

WRIGHT,-P. J., and BRADLEY, J., concur.


author: JONES, Justice.

text:
    Ex Parte Stephen PRESCOTT, etc. In re Stephen PRESCOTT, suing by and through his next friend, Paul R. Prescott, and Paul R. Prescott v. Floyd Mason FLETCHER.
    79-264.
    Supreme Court of Alabama.
    Jan. 25, 1980.
   JONES, Justice.

Writ denied.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: CLARK, Retired Circuit Judge.

text:
    James Edward THOMAS v. STATE.
    6 Div. 446.
    Court of Criminal Appeals of Alabama.
    Oct. 16, 1979.
    Rehearing Denied Dec. 4, 1979.
    Arthur Parker, Parker & Garrett, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen. for the State, appellee.
   CLARK, Retired Circuit Judge.

The only issue expressly raised by appellant is as to the refusal by the trial court of charge 19, requested in writing by defendant:

“19. The Court charges the jury that if the jury, upon considering all the evidence, has a reasonable doubt that the Defendant is guilty, .arising out of any part of the evidence, you should not convict the Defendant.”

In Dillard v. State, Ala., 371 So.2d 947 (1979) and King v. State, Ala., 356 So.2d 1220 (1978), it was held that the refusal of a charge similar to charge 19 constituted reversible error, but on certiorari the Supreme Court in Dillard, v. State, Ala., 371 So.2d 947 and King v. State, Ala., 356 So.2d 1220, respectively, reversed this Court and held that the refusal of such a charge was not reversible error because the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury.

In a part of its oral charge to the jury in the instant case, the court said:

“When a Defendant is placed on trial charged with the commission of a public offense the law says that he is presumed to be innocent of the offense. This Defendant enters this trial with presumption of innocence in his favor, and it is a fact which is to be considered as evidence and should not be disregarded. And this presumption of innocence remains with the Defendant during the trial until overthrown by evidence which convinces the jury of the Defendant’s guilt beyond a reasonable doubt.
“The burden of proving that the Defendant is guilty as charged rests upon the State and before a conviction can be had the State must satisfy each and every member of the jury of the Defendant’s guilt. And unless the State satisfies you of the Defendant’s guilt beyond a reasonable doubt and to a moral certainty, then the Defendant is entitled to an acquittal. If after considering all of the evidence in the case you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict the Defendant. On the other hand, if after considering all of the evidence in the case your minds are left in such a condition that you cannot say that you have an abiding conviction to a moral certainty of the Defendant’s guilt, then you are not convinced beyond a reasonable doubt and the Defendant would be entitled to an acquittal.”

It is readily observable that the language of the oral charge quoted above compares favorably with the language of the oral charge quoted by the Supreme Court in King, supra, and in Dillard, supra. Furthermore, in the opinion of the Supreme Court of Alabama in Dillard, supra, it is stated:

“The effect of King is to hold that if the trial court, in the oral charge or by the giving of requested written charges, presents to the jury ‘a discussion of the reasonable doubt standard as applied to the evidence generally,’ then the failure to give a charge similar to charge 27 is not error to reverse. Code 1975, § 12-16-13.”

In accordance with what was said and held by the Supreme Court of Alabama in Dillard and King, we conclude that the refusal of defendant’s charge 19 does not constitute reversible error.

Linda Faye Bennett, a seventeen-year-old girl was present at a bootlegger’s house in West End, Birmingham, Alabama, where there was much drinking, dancing and music almost all of one night in June 1976. During the course of the night, appellant was present, and some trouble commenced outside of the house with persons involved other than the appellant; appellant, who had a pistol, came in the house and fired a shot in the floor. Another patron of the establishment, John Lewis Hawkins, had a pistol; Linda Faye Bennett commenced wrestling with Hawkins; they fell to the floor at which time the pistol of Hawkins was fired once. Shortly thereafter, Hawkins heard shooting on the outside, and he started shooting out the door of the house at the defendant, who, according to some of the evidence, was firing a pistol toward the inside of the house.

After the shooting stopped, Linda Faye Bennett was noticed lying in the house with a bullet wound in her head, which proved to be fatal. The bullet was removed from her head at the autopsy and was determined to be a bullet from a .38 caliber pistol cartridge. There was evidence that the weapon being fired by defendant was a .38 caliber pistol and that the weapon being fired by Hawkins was a .22 caliber pistol.

Defendant was indicted and tried for murder in the second degree. The jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment for eight years. He was sentenced accordingly.

There was ample evidence to justify the finding by the jury that Linda Faye Bennett was killed by a bullet from the pistol fired by defendant; that, although he was not knowingly shooting at the victim and did not intentionally kill her, he was at the time intentionally firing the pistol at another with the intention to kill him, and that the homicide was not justified on any theory of self-defense. Under such circumstances, the verdict of manslaughter in the first degree was well within the province of the jury. There is no contention to the contrary.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte James Edward THOMAS. Re James Edward THOMAS v. STATE.
    79-233.
    Supreme Court of Alabama.
    Jan. 25, 1980.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Tommy EDWARDS v. STATE.
    7 Div. 691.
    Court of Criminal Appeals of Alabama.
    Oct. 16, 1979.
    Rehearing Denied Nov. 20, 1979.

      Fred W. Thompson, Jr., Ashland, for appellant.
    Charles A. Graddick, Atty. Gen. and Anne Farrell McKelvey, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The defendant was convicted for robbery and sentenced to twenty-five years’ imprisonment. On appeal two' questions are presented: (1) Must an indictment for robbery described the denomination of the money taken in the robbery and (2) if objectionable may this defect be reached by a motion to exclude the State’s evidence, a motion for a directed verdict, or a motion for a new trial.

The indictment charged that the defendant

“did feloniously take, to-wit: $25.00 in the lawful currency of the United States of America, from the person of Mrs. T. A. Hallman, against her will, by violence to her person, or by putting her in such fear as being unwilling to part with the same.”

The defendant’s objection is based on the facts that this indictment does not specify the number and denomination of the currency which totaled $25.00 and does not recite that a more particular description or denomination was unknown to the grand jury.

I

An indictment for robbery must aver the denomination of the money taken or that the particular denomination is unknown to the grand jury. Barddell v. State, 144 Ala. 54, 39 So. 975 (1906); Owens v. State, 104 Ala. 18, 16 So. 575 (1893); Burney v. State, 87 Ala. 80, 6 So. 391 (1888); Croker v. State, 47 Ala. 53 (1872); Alabama Code Section 15-8-26, 1975.

Thus, while the present indictment is defective and insufficient because it does not aver the denomination of the money taken, this particular defect does not vitiate the indictment, Reed v. State, 88 Ala. 36, 6 So. 840 (1889), because the denomination or the kind of money taken is not a material ingredient of the offense of robbery. Wesley v. State, 61 Ala. 282 (1878). An indictment which does not specify the number and denomination of the money involved is merely voidable and not void; it is not so deficient as to deny the accused due process of law. Williams v. State, 49 Ala.App. 74, 76, 268 So.2d 855 (1972).

II

The defendant objected to this defect in the indictment by a motion to exclude the State’s evidence made at trial, by a motion for a directed verdict and by a motion for a new trial. There was no motion filed before trial attacking the sufficiency of the indictment.

Generally, a demurrer is the proper procedure to raise defects in an indictment. Andrews v. State, 344 So.2d 533 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977). Since a plea to the merits admits the validity of an indictment, a demurrer filed after arraignment and after a plea of not guilty is properly stricken. Underwood v. State, 248 Ala. 308, 27 So.2d 492 (1946). The right to file a demurrer is waived unless the demurrer is filed before a plea to the merits. Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, cert. denied, 258 Ala. 558, 64 So.2d 121 (1953). If an indictment is merely voidable and subject to demurrer, the failure to demur will prevent appellate review of the indictment’s shortcomings. Williams v. State, 333 So.2d 610 (Ala.Cr.App.), affirmed, 333 So.2d 613 (Ala. 1976).

The exception to this rule of waiver occurs when the defect involves an element of the offense, as where the indictment does not oh its face charge an offense, or where the accused is left unaware of the nature and cause of the charge against him. Under those circumstances the indictment is void and this Court is bound to take notice of such a defect even in the absence of an objection. Davidson v. State, 351 So.2d 683 (Ala.Cr.App.1977); Andrews, supra; Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974). Were the indictment in this case void and not merely voidable, the defect would have been reached by the defendant’s request for an affirmative charge, Coker v. State, 18 Ala.App. 550, 93 So. 384 (1922), or could have been preserved by a motion in arrest of judgment. Francois v. State, 20 Ala. 83 (1852).

Since the indictment in this case was merely voidable upon proper and timely demurrer, the failure to demurrer waives the defect.

At trial Mrs. Hallman, the robbery victim, testified that in the cash register were “two tens and a five and there were some ones, but I don’t recall how many ones there was and a good bit of change”. The only sum of money involved in this robbery was that taken from this cash register. Under these circumstances, the fact that denominations of the money taken were not stated in the indictment in no way prejudiced the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Tommy EDWARDS. (Re: Tommy Edwards v. State).
    79-195.
    Supreme Court of Alabama.
    Jan. 25, 1980.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.