author: PATTERSON, Chief Justice,

text:
    Emma Lou Miller KUHNE, et al. v. Ruth McClellan MILLER, Executrix; In the Matter of Last Will and Testament of Moses C. Miller, Deceased.
    No. 52106.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    Rehearing Denied Sept. 24, 1980.
    Fair & Mayo, James C. Mayo, Louisville, for appellants.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Emma Lou Miller Kuhne, Sara Evelyn Miller Savage, daughters of Moses Clark Miller, deceased, and Alan Lawrence Giffin, Keith Miller Giffin, Phyllis Adele Giffin Hobson, and Marilyn Renee Giffin, grandchildren of Moses Clark Miller, contested the probation of his will. They alleged, among other things, that Miller lacked testamentary capacity to make the will and was unable to comprehend its terms and effects. Mrs. Ruth McClellan Miller, widow of the testator, executrix of the will and the stepmother and stepgrandmother of the contestants, responded to the contest. by denying the lack of testamentary capacity and by pleading, among other defenses, that the contestants were estopped to bring the action because they had accepted a beneficial interest under the will. The estoppel issue is dispositive of the case since the other issues are dependent upon its resolution.

Miller’s will of November 23, 1976, devised to his widow the “maximum marital deduction allowable under the Federal Estate Tax laws with reference to my estate” and left the determination of the deduction to the “sole discretion of the executrix.” Subsequent provisions of the will devised “all the rest, residue and remainder of my estate” to his surviving daughters and to the children of his deceased daughter Marilyn Miller Giffin, subject, however, to a life estate devised to Ruth McClellan Miller, his widow.

Among the residue devised to the children and grandchildren of Miller was real properties in Winston and Jasper Counties of this state. This realty was not included in the marital deduction selected by the widow but was nevertheless burdened by the life estate devised to her. Thereafter, on September 14, 1977, Mrs. Miller formally disclaimed her life estate in the Winston and Jasper County properties and by separate instrument, a quitclaim deed, executed and delivered to the appellants her interest in them. In each instrument there is a reference to Mrs. Miller’s purpose in their execution. The disclaimer expressed the purpose as “an effort to carry out expeditiously as may be done, the will of Moses Clark Miller” and the deed stated the purpose to be “in pursuance of the last will and testament of the said Moses Clark Miller.”

There were two petitions contesting the will. In the first, a plea of estoppel was overruled because there was much doubt as to whether the contestants had accepted the quitclaim deed; however, a demurrer to the petition was sustained resulting in an amended petition contesting the will. Again a plea of estoppel was interposed which was sustained following hearing. The court concluded the contestants had accepted the deed and by retaining it were attempting to maintain a position inconsistent with their contest. The trial court gave the contestants five days in which to return the deed if they desired to contest the will. This offer was rejected by the contestants and the plea of estoppel was sustained.

We are of the opinion the trial court did not err in sustaining the plea of estoppel because the petitioners’ acceptance of the quitclaim deed with knowledge that it flowed directly from the terms of the will as evidenced by the recitals in the disclaimer and the deed, left the court no alternative under our authorities and the general law elsewhere.

In West v. West, 131 Miss. 880, 95 So. 739 (1923), it was held that where benefits or provisions of a will were accepted by the executor, he was estopped to assert the invalidity of the devise to him. The Court stated:

Having done this on the one hand, he could not on the other hand claim it to be invalid in any particular.

(131 Miss. at 892, 95 So. at 741)

The Court quoted with approval the following statement from Utermehle v. Norment, 197 U.S. 40, 25 S.Ct. 291, 49 L.Ed. 655, 3 Ann.Cas. 520:

“As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from, at the same time, attacking the validity of the very instrument under which he received the benefit.”

(131 Miss. at 892, 95 So. at 741)

This same theory is expressed in Fellows v. Baas, 213 Miss. 346, 56 So.2d 831 (1952), in a somewhat analogous situation, as follows:

Baas has accepted all benefits under the will. He cannot accept part of its provisions and renounce others. .

(213 Miss. at 355, 56 So.2d at 834)

More recently, in Monroe v. Holleman, 185 So.2d 443 (Miss.1966), we held with regard to the contractual obligations of a joint will, the following:

After having carefully considered the evidence in this case and the terms of the will here involved, we are convinced that the instrument is a mutual and reciprocal will and is contractual in nature. We hold, therefore, that Maggie Lou Holle-man was estopped to repudiate the agreement contained in the will, and that she could not defeat the clear intention of the will by giving a large part of the estate to her family in preference to that of her husband’s family.

(185 So.2d at 449)

The appellants contend, however, that their acceptance of the deed conveying the life estate was a gift from the widow and was not a devise of the will. While it may be true the appellants are technically the grantees of a devisee and as such are not direct devisees, we think it cannot be stated with practicality that the appellants are anything but direct beneficiaries under the will because the very instrument accepted by them referred to the will and stated the deed was made pursuant to it. Moreover, the disclaimer contained similar or stronger language of its purposes.

The life estate devised to the widow flowed directly to the remaindermen through the deed as the result of an effort by the executrix to carry out its meaning and import. Under the will the contestants received in their respective capacities a one-third remainder interest in the Winston and Jasper County property under the same instrument in which the widow received a life estate. Had there been no will, the contestants’ interest per stirpes would have been reduced to an undivided one-fourth interest to each of the surviving children, a similar one-fourth interest to the heirs of the deceased daughter with the widow also receiving a one-fourth undivided interest. However, if not estopped and the contestants pursue their petition with success, there will be a different result because the one-fourth undivided per stirpes interest would be enhanced by the terms of the quitclaim deed held by the contestants. In that event, the respective contestants would receive by the deed a one-third interest to each daughter and a one-twelfth interest to each of the grandchildren without, of course, being burdened with the life estate. We conclude, as did the trial court, that the appellants’ positions are inconsistent, and they are es-topped to contest the will, having received a benefit directly from it. Burnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla.1950), Pournelle v. Baxter, 151 Fla. 32, 9 So.2d 162 (1942), and Stone v. Cook, 179 Mo. 534, 78 S.W. 801 (1904). To hold otherwise would only be to invite an inequitable result.

It is next argued that the interest received by the contestants did not exceed their intestacy share and by executing the disclaimer and quitclaim deed the widow relinquished nothing of substantial value. We are not impressed with this contention because the issue presented is not whether the widow deprived herself of something of value, though we think she did, but whether the contestants accepted a devise under the will, thereby acknowledging its authenticity. Whether that received was in excess of that which they would have received as heirs under the law is problematical because the dollar value to the remaindermen for the removal of an encumbering life estate is highly speculative inasmuch as it would fluctuate with the desires, needs and age of the life tenant. It must be considered also in conjunction with the alternative of there being no will, leaving the widow with an undivided interest which could be alienated or used as the basis for a partition suit. Undoubtedly, the elimination of such probability had value to the contestants although incapable of a specified amount.

Perhaps the best evidence of its value is the refusal of the contestants to return the deed whether it be deemed a gift or a devise. Had the status quo been revived by its return the trial court would have permitted the contest of the will as it had stated. In our opinion, sound policy requires a return of the benefits accepted through a will as a prerequisite to a contest of the same.

AFFIRMED.

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

APPENDIX

LAST WILL AND TESTAMENT OF MOSES CLARK MILLER

******

ITEM II.

I devise and bequeath to my beloved wife, RUTH McCLELLAN MILLER, all of my corporeal, tangible, personal property, including my clothing, books, jewelry, automobiles, and other items of personal use and adornment.

ITEM III.

I devise and bequeath to my said wife, RUTH McCLELLAN MILLER, property equal in value to the maximum marital deduction allowable under the Federal Estate Tax laws with reference to my estate, provided, however, that the amount so devised and bequeathed shall be reduced by the value of the property qualifying for said marital deduction which passes or has passed to my said wife either under other provisions of this Will or outside of this Will (including life insurance payable to her as named beneficiary, and bank accounts, bonds and real property owned by my said wife and me as joint tenants with full rights of survivorship). No assets shall be included within this devise and bequest which do not qualify for said marital deduction. The determination as to what property of my estate shall constitute this devise and bequest shall be left to the sole discretion of the executrix, but the cash and other property selected in satisfaction of such devise and bequest shall have an aggregate fair market value fairly representative of the distributee’s proportionate share of the appreciation or depreciation in the value to the date, or dates, or distribution of all property then available for distribution. All values shall be those finally determined for Federal Estate Tax purposes. The amount of assets comprising this devise and bequest shall be determined before there is a reduction of my estate by reason of inheritance, estate or transfer taxes due by reason of my death.

While testator recognizes that legally my wife has full and complete authority to dispose of said property as to her will and desire, yet it is my hope that she may see fit, to dispose of any remainder of this devise as follows: to my stepson, Dr. Charles Blue, Vi; Mrs. Emma Lou Miller Kuhne, Vi; Mrs. Sara Evelyn Miller Savage, Vi; and to the children of my deceased daughter, Mrs. Marilyn Miller Giffin, an undivided Vi interest collectively or a Vie interest each in said devise.

ITEM IV. .

I give, devise and bequeath all the rest, residue and remainder of my estate wheresoever located as follows:

To my wife, RUTH McCLELLAN MILLER, a life estate in said residue of my estate.

To my two daughters, Mrs. Emma Lou Miller Kuhne, and Mrs. Sara Evelyn Miller Savage, and to the children of my deceased daughter, Mrs. Marilyn Miller Giffin, the remainder interest in said residue of my estate in the following proportions:

To Mrs. Emma Lou Miller Kuhne, and to Mrs. Sara Evelyn Miller Savage, an undivided Vs interest each in the remainder of the residue of my estate; and to the children of my deceased daughters, Mrs. Marilyn Miller Giffin, an undivided Vs interest collectively in the remainder of the residue of my said estate, or an undivided V12 interest each in the remainder of said residue.

* * * * * *

      . See Appendix.


source: Caselaw Access Project

license: Public Domain

text:
    Larry D. JONES v. STATE of Mississippi.
    No. 52072.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    Rehearing Denied Sept. 24, 1980.
    Lee B. Agnew, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.


author: LEE, Justice,

text:
    Frank E. RICE v. Enoch J. WILLIAMS.
    No. 52123.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    Bobby B. DeLaughter, Alvin M. Binder, Binder & Moore, Jackson, for appellant.
    Al D. Eatmon, Jackson, for appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Frank E. Rice filed suit in the Chancery Court of the First Judicial District of Hinds County, Honorable J. C. Stennett, presiding, against Enoch J. Williams for a partnership accounting. Williams answered the bill of complaint, filed a cross-bill, and, after the hearing, the lower court awarded Williams the sum of seventy-one thousand five hundred twenty-three dollars twelve cents ($71,523.12) on the cross-bill, from which judgment this appeal has been taken.

General factual questions involved in the trial were whether or not a partnership existed between Rice and Williams, the salary and fees to be paid the parties, whether Rice deposited all fees received for architectural work into the partnership account, and dissolution of the partnership.

Without detailing the evidence, the chancellor held that a partnership existed between Rice and Williams based upon a verbal agreement, beginning in June, 1967; that Williams was to receive a salary of eight hundred sixty-six dollars ($866.00) per month plus twenty percent (20%) of the net profits of the firm; that, during such time, Rice was in exclusive possession of the firm’s books, Williams was not allowed .to examine them, and Rice did not pay Williams the proper percentage of the net profits; that fraud was perpetrated by Rice because of his failure to deposit fees payable to the firm; that in 1972, the parties agreed to share equally in profits and, in addition, Williams was to receive a draw of one thousand dollars ($1,000) per month; that said monthly salary was not always deducted from net profits prior to the division of income, resulting in an overpayment to Rice from 1972 to 1975 in the sum of twenty thousand three hundred eighty-three dollars twenty-seven cents ($20,-383.27); and that the partnership terminated December 31,1975, by retirement of Rice and his withdrawal from the firm.

The chancellor allowed the claim of Rice for some items and denied his claim as to others, and allowed the claim of Williams as to some and denied his claim as to others. The total judgment entered for Williams was $71,523.12, and, on this appeal, Rice argues only that the lower court erred in awarding Williams the sum of $20,383.27, representing the overpayment of profits to Rice during the years 1972 to 1975, and in failing to allow Rice rentals for use of the premises owned by him, which were occupied by the partnership. The chancellor’s finding on the facts was not manifestly in error and was supported by the evidence.

I.

Rice contends that the claim of Williams for overpayment of profits is barred by the statute of limitations, Mississippi Code Annotated Section 15-1-29 (Supp. 1979) which provides that actions brought on any unwritten contract, express or implied, shall commence within three (3) years after the cause of action has accrued.

60 Am.Jur.2d Partnerships § 274, at 177-178 (1972) states the following:

“No hard and fast rule can be laid down as to the time from which the statute of limitations runs on the right of a partner to have an accounting; rather, the time when the right of action to sue for the settlement of partnership affairs accrues depends upon the circumstances of each particular case.
On the ground that partners, as between themselves, are trustees, it has been held that the statute of limitations will not run against their liability to account to each other during the continuance of the partnership. The statute of limitations may begin to run from the time that nothing remains to be done except to settle the affairs of the partnership, or from the date when it is the duty of the accounting partner to have the firm in a condition for its complete settlement.”

60 Am.Jur.2d Partnerships § 275, at 178 (1972) provides with reference to limitations: “It is, however, well settled that the statute does not in any event begin to run until after the dissolution of the partnership." See also Evanovich v. Hutto, 204 So.2d 477 (Miss.1967).

Since Rice and Williams operated as partners, a fiduciary relationship existed between them, which tolled the statute of limitations until a full and final accounting could be had. The accounting was instituted within three (3) years from and after dissolution of the partnership, and the statute does not bar the action.

II.

Rice next contends that the chancellor’s refusal to allow him rental for the use and occupancy of the building by the partnership constituted error.

On this question, there was a factual issue as to whether or not the partnership was to pay rental to Rice. The latter testified that the partnership was obligated to pay rental, while Williams denied same, claiming that the rental was a part of the agreement to offset services performed by Williams.

The chancellor decided the issue in favor of Williams, and, again, we cannot say that he was manifestly wrong. Richardson v. Riley, 355 So.2d 667 (Miss.1978).

Appellee Williams states that his judgment should be increased by the sum of the three thousand one hundred eighty-two dollars eighteen cents ($3,182.18) because there was a miscalculation in the amount thereof. The appellant does not admit the alleged miscalculation, there was no cross-appeal, and the matter may not be considered here.

The judgment of the lower court is affirmed.

AFFIRMED.

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

BOWLING, J., took no part.

      . “Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-29 (Supp. 1979).


author: WALKER, Justice,

text:
    Earl WRIGHT v. STATE of Mississippi.
    No. 52081.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    James H. Arnold, Jr., Durant, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

Earl Wright appeals from his conviction in the Circuit Court of Holmes County of the charge of burglary under Mississippi Code Annotated section 97-17-21 (1972). He received the maximum sentence for that crime, ten years in the penitentiary. He assigns as error the following:

(1) The court erred in overruling his motion for a new trial.

(2) The court erred in refusing to grant his requested peremptory instruction.

The State put on a convincing case against the appellant. Robert Hugh Spivey testified that he and his mother live in a house located one mile south of Cruger, Mississippi, in Holmes County. On Friday, July 13, 1979, he returned home from work at about six o’clock p. m. He discovered his home had been burglarized. Specifically, he stated, “I found a bathroom window broken — the glass knocked out — and some mud and tracks around the tub, that somebody had entered — broke the window and entered — and had walked around in the house, opened some drawers, and opened some closet doors, and more or less ransacked through the house.” He stated that various items of jewelry were missing, including a silver bracelet, a ring, a necklace, and a gold cross.

Deputy Josh Leonard investigated the incident. He testified that he was able to obtain five identifiable fingerprints from the broken bathroom window. He compared these fingerprints to those he had on file and discovered they matched those of Earl Wright. He labeled the prints and sent them to the Crime Lab in Jackson.

The unimpeached testimony of Edgar Ronald Smith, a fingerprint examiner at the Mississippi Crime Laboratory, was that the prints from the window matched those of Earl Wright.

The defendant asserted an alibi in defense of the charge. He testified that on Friday the thirteenth he was with his brother, Lawyer Wright, from eight o’clock a. m. until about ten-thirty a. m. He watched television until about noon, then went to Cruger with his brother and a friend, Larry Smith. They returned to his home about two o’clock p. m., he helped his brother work on his car for an hour, then he went to sleep until after dark. He stated his mother and brother were with him the entire time.

The alibi was corroborated to some extent by the testimony of the defendant’s two brothers and Larry Smith. However, none of these witnesses stated he was with the defendant after two o’clock p. m.

The testimony of the State’s witnesses presented sufficient evidence upon which the jury could find beyond a reasonable doubt that a crime had been committed and that the accused had committed it. Peremptory instructions should be refused if there is enough evidence to support a verdict. Warn v. State, 349 So.2d 1055 (Miss.1977).

The jury chose to accept the State’s evidence and reject the alibi defense. The verdict is not contrary to the overwhelming weight of the evidence, and the lower court did not err in overruling the motion for a new trial.

Consequently, the verdict and sentence in the circuit court should be affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    CLOVERLEAF MALL, LTD. et al. v. D. B. CONERLY et al.
    No. 52065.
    Supreme Court of Mississippi.
    Sept. 3, 1980.

      Currie & Currie, Overton A. Currie, Samuel E. Farris, Pope & Van Slyke, J. B. Van Slyke, Jr., George G. Currie, Hattiesburg, for appellants.
    Heidelberg, Sutherland & McKenzie, R. W. Heidelberg, Gray, Montague & Pittman, R. A. Gray, III, Wallace R. Gunn, Hatties-burg, for appellees.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

Cloverleaf Mall, Ltd., a limited partnership, and Mrs. Terry Anderson Currie, Edward Alexander Currie, Jr., Overton A. Currie and Daniel McMahon Currie filed a petition to rezone 10.6 acres of land from R-l, single family residential, to C-2 general commercial. Petitioners alleged that Cloverleaf Mall had a leasehold interest in the land which was owned by the individuals named above. A petition opposing the requested rezoning was filed by protestants who reside in the residential area immediately north of the property sought to be rezoned.

Following a hearing, the City Planning Commission made its written recommendation on April 11, 1978 to the Mayor and Commissioners that rezoning be granted if petitioners would agree to restrictions for protection of the residential neighborhood. The recommended restrictions were: (1) Owners to place a residential protective covenant on lands between Cloverleaf Mall and the residential area adjoining the mall on the north. (2) Petitioners should properly landscape and maintain visual and sound protection on the northern and western boundaries of the mall property to be rezoned. In addition the Planning Commission recommended that the city request petitioners to give serious consideration to proper landscaping and maintenance of neutral zones of existing and proposed parking lots within the mall and that the City request petitioners to maintain the existing mall area in a better condition. The protestants, being aggrieved at the recommendations of the Planning Commission, filed written requests for a public hearing before the Mayor and Commissioners. The hearings were held on May 30, 1978, the rezoning petition was taken under advisement, and Ordinance No. 1948 rezoning the property was adopted on August 9, 1978.

The protestants perfected an appeal to the Circuit Court of Forrest County which entered an order reversing the Mayor and Commissioners, held Ordinance No. 1948 was invalid, and ordered the property be reclassified to its original R-l, single family residential classification. The circuit court held:

The petitioners have the burden of proving a substantial change of conditions and public need for rezoning. Material to this examination are new or additional facts which have occurred since original zoning. The record clearly shows no change in the character of the neighborhood from R-l Single-Family Residential. Further development and use of property according to existing zoning classification is not sufficient to support rezoning. The findings of the municipality that merely “parrot” legal requirements not supported by facts are not binding on the courts. The petitioners failed to meet the burden of proof necessary for zoning change. Absent this proof, the Court must assume the original zoning is valid and permanent.
Rezoning subject to “. . . conditions, stipulations, and covenants in April 11, 1978, Planning Commission recommendation . . .’’is illegal. “Contract zoning” is an unconstitutional bargaining away of municipal police power. Zoning is an exercise of the police power to serve the common good and general welfare. It is elementary that this legislative function may not be surrendered or curtailed by bargain or its exercise controlled by the considerations in the law of contract.
The record also reflects that the rezoning ordinance was the product of a meeting convened after adjournment of the regular public meeting. By statute and city ordinance “public business” is to be performed in an “open and public manner” in “open meetings.” Specifically, “all ordinances shall be read and considered . . . at a public meeting of the governing authorities . . . ”
Based on the record the rezoning was arbitrary, capricious, discriminatory, and abuse of discretion, and illegal.

We hold that the circuit court was correct in finding that petitioners failed to prove a sufficient change of conditions and a public need for rezoning of the 10.6 acres; therefore, it is not necessary for us to consider whether the rezoning constituted contract zoning or whether the rezoning ordinance was adopted at a meeting convened after adjournment of the regular public meeting.

In order to put the issues involved in this case in proper perspective, it is necessary to review the history of the zoning of the property located north of and adjacent to the cloverleaf intersection of U. S. Highways 49 and 11 in the City of Hattiesburg. Five cases involving the individual petitioners’ land north of the intersection and one case involving petitioners’ land west of the intersection were consolidated and disposed of in Currie v. Ryan, 243 So.2d 48 (Miss.1971). The land of the petitioners lying north of the cloverleaf was called “Currie North” in Currie v. Ryan, supra, and consisted of approximately 55 acres between 17th Avenue on the east, Highway 49 on the west, the cloverleaf on the south and, for the most part, Fuller Street on the north. When the first petition (No. 45,982) was filed, that portion of Currie North located north of Mclnnis Street was an unoccupied pine forest and contained several platted . but unopened streets. These streets, from the cloverleaf to the north, were: Mclnnis Street, Eddy Street, Arcadia Street, Frisco Street and Fuller Street. That part of the Currie North lands lying south of Mclnnis Street had been zoned commercial and the remainder of the tract, comprising all land north of Mclnnis Street, had been zoned residential.

The first case, No. 45,982, considered in Currie v. Ryan, supra, was commenced in 1967 by petitioners who sought commercial zoning from Mclnnis Street on the south to Frisco Street on the north. The City Council granted commercial zoning on May 17, 1967 as far north as Eddy Street but declined to extend the commercial zoning to Frisco Street.

The second case, No. 45,983, was filed two days before the action of the City Council on the petition involved in No. 45,982. The City Council dismissed the petition and the action of the Council was affirmed by the Circuit Court of Forrest County May 21, 1969.

In 1967 the City of Hattiesburg began considering a new comprehensive zoning ordinance and held various public hearings before Ordinance No. 1614 was adopted on November 15, 1967 which extended the commercial zone north to Eddy Street.

In cases numbered 45,981 and 45,985 petitioners appealed from the adoption of the new comprehensive zoning ordinance, No. 1614, which retained the commercial zone at Eddy Street.

The fifth case, No. 46,125, was commenced by petition filed on December 12, 1968 requesting rezoning of the land from Eddy Street on the south to Arcadia Street on the north from residential to commercial. The City Council granted the petition and extended the commercial zoning as far north as Arcadia Street. The protestants appealed to the circuit court which reversed the City Council and all five cases were then appealed to this Court. In Currie v. Ryan, supra, this Court upheld the City Council in granting the rezoning between Eddy Street and Arcadia Street in No. 46,-125 and dismissed Nos. 45,982,45,983,45,981 and 45,985 as being moot because of the decision reached in No. 46,125. The decision in Currie v. Ryan, supra, upheld the extension of the commercial zone north to Arcadia Street giving the petitioners a 34 acre commercial site for the shopping center known as Cloverleaf Mall.

The other case considered in Currie v. Ryan, supra, was No. 45,984 and dealt with the rezoning of 35 acres of land west of Highway 49 referred to in the opinion as “Currie West.” The Curries petitioned the City for rezoning of Currie West from residential to commercial. Protests were filed and the City Council denied the petition for rezoning. Petitioners appealed to the circuit court where the order of the City Council was affirmed, and petitioners appealed to this Court. On appeal, the City of Hat-tiesburg confessed error in its brief, and in the oral argument, it was announced in open court that the protestants had no objection to rezoning Currie West to Bennett Street on the west. This Court then stated:

There being no opposition to the rezoning of this property to the extent stated, and the City of Hattiesburg having confessed error to such extent, the order of the City Council is vacated and annulled and the matter of rezoning Currie West to Bennett Street is remanded to the City Council for the adoption of a rezoning ordinance with such provisions as the municipal authorities deem appropriate. (243 So.2d at 49)

Currie West was subsequently rezoned commercial and was owned by the Curries at the time the case under consideration was tried. The Currie West land is not involved in the present appeal except for the arguments of protestants that the Cur-rie West land is vacant, unoccupied and available for commercial development, which indicates a lack of public need for further commercial zoning north of the cloverleaf between Highway 49 and 17th Avenue.

Before reviewing the evidence in this case, we restate the requirements set forth in our cases which must be met by one seeking rezoning of property. The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Watts v. City of Wiggins, 376 So.2d 1072 (Miss.1979); Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979); Jitney Jungle, Inc. v. City of Brookhaven, 311 So.2d 652 (Miss.1975); Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974); Patterson v. City of Jackson, 285 So.2d 466 (Miss.1973); Board of Supervisors of Jackson County v. Roberts, 287 So.2d 436 (Miss.1973); City of Jackson v. Husbands, 233 So.2d 817 (Miss.1970); Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968); Moore v. Madison County Board of Supervisors, 227 So.2d 862 (Miss.1969); City of Jackson v. Wilson, 195 So.2d 470 (Miss.1966) and City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660 (1962).

Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above. Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979); Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974); Hinds County Board of Supervisors v. Covington, 285 So.2d 143 (Miss.1973).

It is also well established that the use of property in accordance with an original zoning plan is not a material change of conditions which authorizes rezoning. Jitney Jungle, Inc. v. City of Brookhaven, 311 So.2d 652 (Miss.1975); Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968).

In this case, petitioners do not contend that there was a mistake in the original zoning. They were then faced with proving by clear and convincing evidence, (1) that the character of the neighborhood had changed to such an extent as to justify rezoning, and (2) that a public need existed for rezoning.

With respect to the first proposition, petitioners’ evidence showed extensive commercial development within the Cloverleaf Mall, within the other quadrants of the cloverleaf intersection of U. S. Highways 49 and 11, and along U. S. Highway 11. However, all of the commercial development shown by petitioners was in areas which had been zoned for that purpose. Their evidence merely showed that the property had been developed for commercial uses in accordance with the comprehensive zoning plan and the ordinance rezoning additional property adjacent to the Cloverleaf Mall.

The residential area immediately north of Cloverleaf Mall has remained unchanged since the adoption of the comprehensive zoning ordinance and the ordinance extending the commercial zone north to Arcadia Street. The 10.6 acres involved in this case are owned by the individual petitioners who also own additional property north of the 10.6 acres lying between the existing residential area and the Cloverleaf Mall. The property presently zoned residential located between Cloverleaf Mall and the developed residential area to the north is currently vacant. It cannot be developed as residential property without the consent of the individual petitioners because they own the property.

The evidence of petitioners only shows that the use of the property within the commercial zone in this area was in accordance with the comprehensive zoning plan. Development in accordance with a comprehensive zoning plan is not a material change of conditions which authorizes rezoning. Jitney Jungle, Inc., supra.

Not only were petitioners required to prove changed conditions which would authorize rezoning, but they were also required to prove that a public need existed for rezoning.

On this question, petitioners presented evidence that the purpose for expanding Cloverleaf Mall was to increase the size of the covered mall from 325,000 square feet to 425,000 square feet, thereby qualifying it as a regional mall with the ability to attract quality tenants. Considerable evidence was introduced to show the economic impact in the city generated by the development of the mall with reference to taxes, improvements, employment, and pay rolls with increases if the mall was increased in size.

The protestants countered with evidence that, of 1,000 acres centered around the cloverleaf of U. S. Highways 49 and 11, 479.6 acres are zoned for residential use, 397.5 acres zoned for commercial and light industrial use with the remaining 122.9 acres being located within the rights of way of the highways and railroad. Of the 397.5 acres zoned for commercial and light industrial use a total of 185.55 are vacant and not being used for commercial purposes. Included in the 185.55 acres is the 35 acre Currie West tract located on the west side of U. S. Highway 49 which is owned by the individual petitioners and is available for commercial development.

With respect to the allegations of petitioners that expansion of the mall will require additional parking area, the evidence shows that any additional parking required by increasing the size of the covered mall can be provided on the existing site without expanding the present commercial zone. The zoning ordinance of the City requires at least two square feet of parking area in a commercial zone for every square foot of store area. If the additions to the mall which petitioners propose are in fact made, there would remain a surplus parking area available after enlargement of the covered mall without rezoning in excess of 124,000 square feet. The official city planner of the City of Hattiesburg recommended to the Mayor and Commissioners that the petition be denied, verified that the proposed rezoning was not needed to comply with parking requirements, and commented upon the inefficient layout of the parking area of the Cloverleaf Mall.

Protestants also showed that 1,592 acres are presently zoned commercial in Hatties-burg but only 780 acres were actually being used for commercial purposes, leaving 812 acres available for commercial purposes. There is presently available a sufficient quantity of vacant property now zoned commercial to accommodate the need for commercial expansion in the City of Hat-tiesburg for many years. We therefore conclude that petitioners failed to show by clear and convincing evidence a public need for rezoning with the resultant encroachment in the residential area north of the Cloverleaf Mall. We affirm the judgment of the circuit court and vacate the ordinance rezoning the property in question.

ON MOTION TO DISMISS APPEAL

The Mayor and Commissioners of the City of Hattiesburg adopted an ordinance rezoning certain property on August 9, 1978. The minutes were read, approved and signed by the mayor and clerk on August 16, 1978. On the same day the appel-lees filed their notice of and petition for appeal with the mayor and commissioners and included a motion to grant additional time to prepare and submit a bill of exceptions. An order was duly entered granting appellees thirty days from August 16 within which to prepare and submit a bill of exceptions. On September 13, 1978 the board of mayor and commissioners adopted another order granting appellees thirty days from September 13 within which to complete and file a bill of exceptions. Six days later, on September 19,1978, appellees completed the bill of exceptions and presented it to the mayor who signed it. The city clerk transmitted the bill of exceptions to the Circuit Court of Forrest County where it was filed on September 20, 1978.

Appellants filed a motion to docket and dismiss in this Court for lack of jurisdiction, to vacate order of the circuit court and to reinstate the ordinance of the City of Hat-tiesburg rezoning certain property. Appellants argue that under section 11-51-75 Mississippi Code Annotated (1972) that the circuit court failed to acquire jurisdiction because the bill of exceptions was filed more than ten days after the ordinance was adopted.

In McGee v. Jones, 63 Miss. 453 (1886) this Court affirmed the judgment of the Circuit Court of Holmes County striking a bill of exceptions and dismissed the appeal, but held that the time for taking a bill of exceptions could be extended by agreement of the parties or by an order of the court. This Court stated:

We can perceive no reason why a different rule should apply to bills of exception taken to the action of a board of supervisors than that which was announced in the case of Savings Bank v. Johnson, 56 Miss. 125, in reference to those taken in the circuit courts, viz.; that they must be taken during the term unless by consent of parties, or under an order of the court, to be evidenced by the record proper or by a recital in the bill itself, the time for presenting it is extended into the following vacation. The bill in this case was not taken during the term nor was there any permission of the court or consent of parties that it might be taken in vacation. (63 Miss. at 455)

This case authorizes filing a bill of exceptions after the time within which the statute requires the bill of exceptions to be filed either by agreement of the parties involved or by an order of the board which adopted the order appealed from. The rule announced represents a liberal policy toward reviewing actions of the boards involved and is a practical solution of the problem of preparing a bill of exceptions.

In McGee v. Beall, 63 Miss. 455 (1886) a bill of exceptions which was not signed during the term of the board of supervisors was not stricken because it was presented to the president of the board who withheld his signature until the following day in order to allow an examination by attorneys for appellee. He signed it after adjournment on the mutual understanding that no point would be made on the time of signing. The court held that although the objection to the bill of exceptions was not made in the trial court, it was jurisdictional and could be made in the Supreme Court for the first time. This Court declined to dismiss the bill of exceptions stating that the appellants had done all that was in their power by preparing and tendering a proper bill of exceptions to the proper officer and ought not to suffer by reason of the neglect of the officer to promptly sign it.

In Hawthorne v. Town of Woodville, 107 Miss. 589, 65 So. 643 (1914) the mayor and board of aldermen of Woodville passed an order at the June term but the aggrieved parties did not prepare a bill of exceptions and submit it to the mayor until the end of September. The mayor refused to sign the bill of exceptions because it was not timely submitted. On appeal, we held that the bill of exceptions was not timely submitted and should be dismissed for that reason, but recognized that the time for preparing and perfecting a bill of exceptions could be extended into vacation following the term of the municipal board. We stated:

Section 80 of the Code provides that any person aggrieved by judgment or decision of the board of a city, town, or village may appeal to the next term of the circuit court of the county, and may embody the facts and decisions in the bill of exceptions, which shall be signed by the person acting as president of the municipal authorities. It appears that the bill of exceptions was not taken and signed during the term of the municipal board at which the order complained of was passed, and it does not appear that the time for preparing and perfecting the bill was extended into the vacation following the term. The mayor’s reason for his refusal to sign the bill is sufficient. . (107 Miss. at 594, 595, 65 So. at 644)

An appeal from an order of the board of supervisors pertaining to a school board issue was involved in Board of Supervisors of Marshall County v. Stephenson, 160 Miss. 372, 134 So. 142 (1930). On August 9, 1929 the board of supervisors ordered bonds to be issued, set forth in its order that the “objectors and protestants . . . excepting in open court, prayed an appeal from the said order to the Circuit Court of Marshall County, Mississippi, which appeal was granted.” On September 3 the president of the board signed a bill of exceptions setting forth the evidence before the board at its August meeting. The record was filed by the clerk of the board of supervisors with the clerk of the circuit court on February 10,1930. When the case came on for trial a motion was made to dismiss the appeal for the reason it was not perfected within the time provided by law. The motion was overruled, and on appeal to this Court, was assigned as error. We noted that the next term of the circuit court, after the meeting of the board of supervisors at which the order directing issuance of the bonds was entered, convened on the fourth Monday of August, 1929. This was before the bill of exceptions was signed and filed. Appellants contended that the bill of exceptions should have been dismissed. The parties agreed, before entry of the August 9 order authorizing issuance of the bonds, to the following:

“That whichever side loses before the board of supervisors may have thirty days from the final decision of said board in which to prepare, file, and have signed by the president thereof a bill of exceptions, to cover points raised before said board on said matters, up to and including said final decision, and to file petition for appeal.” (160 Miss. at 380, 134 So. at 143)

We held that the bill of exceptions was properly filed and stated:

While the question is not without difficulty, it seems reasonably clear, when the statute is construed as a whole, that the next term of the circuit court to which an appeal from a decision of the board of supervisors must go is the term thereof next after the appeal has been perfected by the signing of the bill of exceptions by the president of the board of supervisors. This bill of exceptions should ordinarily be signed during the term of the board of supervisors at which the decision complained of was rendered, but may be signed after the adjournment of the board by agreement of the parties to the controversy in which the decision was rendered. McGee v. Jones, 63 Miss. 453.
It may be that the time within which the bill of exceptions may be signed by agreement after the adjournment of the board must be reasonable; but if so, as to which we express no opinion, thirty days is not an unreasonable time for the perfecting and signing of such a bill of exceptions. The court below committed no error in overruling the motion to dismiss the appeal from the board of supervisors. (160 Miss. at 380, 381, 134 So. at 144)

From the foregoing case, it is apparent that this Court has adopted a liberal attitude toward permitting parties to file bills of exception when an appeal is taken from the orders of the board of supervisors or municipal authorities, in this case the bill of exceptions consisted of more than 250 pages and it appears that it would have been practically impossible to prepare such a lengthy and detailed bill of exceptions within ten days. The cases cited above recognize that the time for filing a bill of exceptions may be extended by agreement of the parties or by order of the board from which the appeal is taken.

In this case, time for preparing and filing the bill of exceptions was extended by orders of the Mayor and Commissioners. We are of the opinion that the Mayor and Commissioners were authorized to extend the time for preparing and filing the bill of exceptions so that appellees could have sufficient time to have the ordinance in question reviewed by an appellate court.

Appellants rely on the case of Shannon Chair Company v. City of Houston, 295 So.2d 753 (Miss.1974) where the bill of exceptions was not presented to the mayor within ten days after the adjournment of the October, 1971 meeting of the mayor and board of aldermen. The time for appeal had expired and the fact that the mayor signed the bill of exceptions at a later date was of no effect. This case is distinguished from the case at bar because no request was made for an extension of time within which to prepare the bill of exceptions within the ten days allowed by statute. For the reasons stated, we overrule the motion to docket and dismiss filed by appellants, and hold that a board, under section 11-51-75, may extend the time for filing a bill of exceptions if the order of extension is signed within ten days of the order appealed from.

AFFIRMED, AND MOTION TO DISMISS APPEAL OVERRULED.

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

      . Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities. Costs shall be awarded as in other cases. The board of supervisors or municipal authorities may employ counsel to defend such appeals, to be paid out of the county or municipal treasury. Any such appeal may be heard and determined in vacation in the discretion of the court on motion of either party and written notice for ten (10) days to the other party or parties or the attorney of record, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct.
      Provided, however, that no appeal to the circuit court shall-be taken from any order of the board of supervisors or municipal authorities which authorizes the issuance or sale of bonds, but all objections to any matters relating to the issuance and sale of bonds shall be adjudicated and determined by the chancery court, in accordance with the provisions of sections 31-13-5 to 31-13-11, both inclusive, of the Mississippi Code of 1972. And all rights of the parties shall be preserved and not foreclosed, for the hearing before the chancery court, or the chancellor in vacation. Provided, further, nothing in this section shall affect pending litigation.


text:
    H. F. (Hardy) McCORMICK, Sr. v. STATE of Mississippi.
    No. 52110.
    Supreme Court of Mississippi.
    Sept. 3, 1980.
    Rehearing Denied Sept. 24, 1980.
    Thomas D. Lee, Forest, for appellant.
    Bill Allain, Atty. Gen., Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

AFFIRMED.


author: BOWLING, Justice,

text:
    Mark J. RAMON v. STATE of Mississippi.
    No. 52064.
    Supreme Court of Mississippi.
    Sept. 10, 1980.

      George F. Bloss, III, Moretón, Woodfield, Raines & Bloss, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted the crime of manslaughter in the Circuit Court of the Second Judicial District of Harrison County and sentenced to serve a term of eleven years with the Mississippi Department of Corrections. On appeal, he assigns seven alleged reversible errors, as follows:

1. The court erred in admitting evidence resulting from an unreasonable search and seizure.
2. The court erred in admitting evidence in violation of the medical privilege.
3. The court erred in admitting certain physical evidence as the chain of custody was not established.
4. The court erred in refusing to grant defendant’s peremptory instruction.
5. The court erred in refusing to permit defendant to amend Instruction No. D-10 to submit his defense and theory of the case to the jury.
6. The court erred in refusing to grant Instruction No. D-8 defining “wilful” as it appeared in other instructions.
7. The court erred in permitting the State to question defendant concerning his use of drugs on occasions unconnected with the crime for which he is indicted.

This unfortunate case originated because of the excessive use of drugs and alcohol. We hope that the facts and testimony do not confirm a situation existing as testified to by appellant when, after being asked about his use of drugs and alcohol on the night in question, made the statement that “at a party of this generation, I mean, this goes on every day.” This writer does not believe that statement condemning the majority of young people. Unfortunately, however, such activity caused the death of Linda Lea Locke on the night of November 24, 1978.

The indictment resulted from an automobile collision between the vehicle owned by appellant and a palm tree in the median area of U.S. Highway 90 in the City of Biloxi. The car was traveling an easterly direction when the driver lost control and struck the palm tree “head-on,” resulting in the complete demolishing of the car and the death of Miss Locke. Eyewitnesses testified that the car was traveling at a very high rate of speed.

Admittedly appellant (24 years of age) and the deceased (18 years of age) had attended a party in an apartment in Biloxi. The testimony was undisputed that appellant was in a highly intoxicated condition while at the party between nine o’clock p. m. and approximately 10:30 p. m. He was in such a condition that he had to be placed on the bed by some of the party-goers. The testimony regarding the extent of intoxication of the deceased was conflicting. The only real issue in the case was whether or not when the vehicle left the party with its two occupants, the deceased or the appellant was driving. The jury found against appellant on this issue and had ample grounds to do so.

ASSIGNMENT OF ERROR NO. 1. Through his attorney, appellant filed a motion to suppress the results of a urine test secured in the emergency room of the hospital about one or one and one-half hours after the collision occurred. This test revealed that appellant had a significant amount of the drug “methaqualone” in his body. Also included in the motion was a request to suppress all medical records of the defendant and all testimony of doctors and medical personnel, all statements made by the appellant, any drugs found in appellant’s clothing, and any scientific tests performed in connection with the items secured either from appellant’s body or his clothing. There was a pretrial hearing on the motion to suppress.

The testimony in regard to what occurred in the emergency room of the hospital is undisputed except for the implications to be gained from the physical facts and the testimony of appellant, who stated that he remembered nothing from the time he left the party until approximately twenty-four hours later while in the hospital. The State first introduced the testimony of a Biloxi Police Captain with many years experience, and the testimony of a male nurse, one Steven Delahousey. The officer arrived at the scene of the collision shortly thereafter and, as stated, found the car to have struck the palm tree with the former being badly demolished. This officer and another Biloxi Police Officer took photographs and completed their investigation at the scene prior to going to the hospital to complete the investigation and file their report. They arrived at the hospital approximately one to one and one-half hours after the collision occurred and found the appellant to be unclothed on a table in one of the emergency rooms, with his clothing piled near the table in a corner of the room. At that time a Foley catheter already had been placed through the natural opening into appellant’s urinary tract.

According to the captain, the officers needed to secure appellant’s driver’s license in order to complete their investigation and secure proper identity. While looking in the clothing a “pill” was seen and secured by the officers. This was placed in a container for later examination. Without objection, the police captain testified that the pill was later identified as the drug “metha-qualone,” which had a street name of “qua-lude.” The driver’s license was secured. The officer talked with appellant, who advised that he was the only one occupying the vehicle at the time the collision occurred. The officer then testified that from observing appellant he suspected that he had been and was under the influence of some type of intoxicant. He then requested that Nurse Delahousey secure urine and blood samples for examination. The nurse stated that the policy of the hospital was that this could not be done without the consent of the patient. The officer requested that this consent be secured if possible. The nurse then prepared a consent form, placed it on a clipboard, and presented it to appellant at a time when the two officers and another registered nurse, Supervisor Audrey Lestrade, were present. The police captain testified that the securing of appellant’s consent was actually done by Nurse Delahousey; that the latter first read the form to appellant and asked him if he would consent to its execution. The officer testified that appellant agreed to execute the consent form but was not able to sign his name because he was in pain. Appellant then took the pen and made an “X” mark where his signature normally would be placed. The nurse then made a notation that the “X” mark was appellant’s mark and was made by him personally. The police captain testified that no threats of any kind were made to appellant in securing the consent for the urine and blood samples. He further testified that appellant, prior to the actual consent, was belligerent, argumentative and using profanity, but that in his opinion this did not prevent appellant from understanding what he was doing and that appellant clearly appeared to understand why the consent form was being secured.

The State then presented Nurse Dela-housey, who related the request of the police captain to secure the urine and blood samples. The nurse related his action regarding the preparation of the consent form and its presentation to appellant. The nurse recognized that any consent given by appellant under the circumstances necessarily would have to be an informed consent. He stated that he read the consent form to appellant and explained it to him; that no force or coercion whatever was used. He reiterated the officer’s testimony that appellant stated he could not sign his name because of pain from injuries sustained in the collision but that he used the pen to make an “X” on the signature line. It was the definite opinion of Nurse Delahousey that appellant comprehended the nature of the request and the matter to which he was consenting.

It is significant to note that prior to the officers reaching the emergency room, the Foley catheter was already in place and urine already had been withdrawn from appellant on the order of the emergency room physician. The testimony, however, does not reveal that this prior secured urine was used for the test that went to the police department or whether additional urine that came from the catheter was used.

Appellant then was placed on the stand and as hereinbefore stated, testified that he remembered nothing from the time he left the party in an intoxicated and drugged condition until some twenty-four hours later. His denial of the consent for the urine and blood samples to be taken was based on this lack of memory.

In rebuttal the State again placed Nurse Delahousey on the stand and he reiterated his explanation of the request for consent that was made to appellant and testified positively that appellant indicated to him that he fully understood what he was doing.

Supervising Nurse Audrey Lestrade testified that she was present during the entire time of securing the consent from appellant and she signed the executed form as a witness. She testified that although appellant was asking for medication for pain and was obviously in pain, it was her opinion that he knew what he was doing when he gave his consent for the test.

The state presented the other Biloxi policeman who was present in the emergency room. He saw appellant take the pen and make his mark on the signature line of the form; that appellant seemed to understand everything that was said. He reiterated the testimony of the other state’s witnesses that prior to this particular consent form being executed, the appellant had executed a consent form to the hospital for his hospital treatment.

This police officer’s testimony is very significant when he testified that he asked appellant where his driver’s license was and appellant told him it was in his clothes. This officer found the driver’s license in the pocket of appellant’s pants.

Considering the foregoing recitation of the material evidence on appellant’s motion to suppress, it is clear that a question of fact was presented to the trial judge for his decision. Under the evidence and the authorities, it is impossible for this Court to say as a matter of law that the lower court was in error in overruling appellant’s motion to suppress. In Cutchens v. State, 310 So.2d 273 (Miss.1975), the facts were similar to those in the case sub judice. As contended by appellant here, Cutchens alleged that the securing of the blood and urine samples was an unreasonable search and seizure at a time when the accused was not under arrest and was in violation of appellant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, section 23 of the Mississippi Constitution.

Cutchens, supra, discussed the prior opinion of this Court in the case of Luton v. State, 287 So.2d 269 (Miss.1973). It was reiterated that the State must prove consent to the warrantless search beyond a reasonable doubt and that the issue is to be resolved by the trial judge rather than the jury. The Cutchens opinion was further based on the United States Supreme Court case of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). There that Court set out guidelines as to what constitutes a search by consent. Several quotes from Schneckloth are of significance. The Court said:

The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused.
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.
As with police questioning, two competing concerns must be accommodated in determining the meaning of a “voluntary” consent-the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence .

The United States Supreme court further stated:

Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.

The Court, in Schneckloth, and as quoted by this Court in Cutchens, further stated:

Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent

As was indicated in Cutchens, supra, the same constitutional principles apply whether the question deals with a search of personal property or the person, including taking a substance from the body.

We hold that it clearly was a question of fact for the trial judge to decide whether or not under the evidence presented appellant gave his “informed consent” to the securing of urine and blood samples. As can be seen from the testimony of the four persons present, this informed consent was given. Everyone present testified that appellant knew and understood what he was doing. The only dispute was appellant’s testimony of nonremembrance.

There was no error in admitting into evidence the pill found in appellant’s clothing. In the first place, as before stated, one of the officers testified that upon his request, appellant told him where to find his driver’s license. This was implied consent. Secondly, it was well established that the officers needed the license to complete their investigation and for identity purposes. While carrying out this duty, the pill came in plain view. All courts hold that an officer has a right to seize an illegal object that is in plain view when incident to a proper activity being performed by the officer. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

ASSIGNMENT OF ERROR NO. 2: Appellant, both on the motion to suppress and during the trial in chief, objected to the testimony of Nurses Delahousey and Lestrade, contending that their testimony was privileged communications under Mississippi Code Annotated section 13-1-21 (1972), commonly known as the privileged communication statute. As we heretofore have seen, the two nurses in question were employees of the hospital and were on duty in the emergency room. No physician, according to this record, had anything to do with the securing of the consent from appellant. No physician testified at the hearing in regard to appellant’s treatment or condition. On the question of privileged communications heard or received by nurses, this Court clearly laid down rules to be followed in Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483 (1932). We do not recede from our pronouncement that if a nurse at the time of receiving medical information was an agent of the physician attending the patient and the nurse’s presence was in connection with the physician’s treatment, that knowledge is privileged and the testimony would be excluded upon objection.

Here, as stated several times, the two nurses in question were supervising nurses of the emergency room and employed by the hospital. The objectionable testimony was not in connection with treatment by a physician and the record does not show that a physician even knew of the procedures being taken. This assignment, therefore, has no merit.

ASSIGNMENT OF ERROR NO. 3: Appellant objected to the introduction of the results of the urine test which showed the drug methaqualone in appellant’s system. It is alleged that the continuity chain of the urine getting to the laboratory for its tests and its return was not established sufficiently. The fallacy of this alleged assignment of error is so clear that we see no need to make a detailed discussion except to say that the record is abundantly clear that the chain of custody resulting in the testimony regarding the drug being present in appellant was entirely sufficient.

ASSIGNMENT OF ERROR NO. 4: Appellant mainly argues under this assignment that sufficient evidence was not submitted by the state to prove that appellant and not the deceased was operating the vehicle. It is sufficient to say that there was ample testimony for the jury to so find. The photographs of the physical situation after the collision occurred constituted strong evidence for the jury’s consideration on this issue. The eyewitnesses who were at the scene immediately saw appellant crawling from the area where the driver’s seat was located after the collision. A witness testified positively that the last time the car was seen before it left the “party” appellant was sitting in the driver’s seat. There is no merit to this contention.

ASSIGNMENT OF ERROR NO. Si-Defendant’s refused instruction D-10 was to the effect that if the jury believed the collision was caused solely by the blowing of sand across the highway, then the verdict should have been for the accused. After the court’s statement that there was no evidence of sand being blown, appellant’s attorney requested that the instruction be amended merely to state that if sand was on the highway, the accused, in effect, should be acquitted. In the first place, the testimony of the eyewitnesses clearly showed that the proximate cause of the collision was speed and loss of control of the vehicle from inability to operate it rather than sand. Furthermore, the giving of the amended instruction would have constituted a comment on the evidence by the trial court. There is no merit in this assignment.

ASSIGNMENT OF ERROR NO. 6: Appellant’s submitted Instruction D-8 was an attempt to define the word “wilful.” A number of instructions were given for both the State and the defendant. The word “wilful” as used in the instructions was a matter for interpretation by the jury. Furthermore, in a prosecution for manslaughter, the charge is the action of “culpable negligence” which is a lesser term than “wilful.” All the instructions adequately informed the jury as to its duties under the law as applied to the evidence in the case.

ASSIGNMENT OF ERROR NO. 7: There is no merit to this assignment of error. There was only one objection to any cross-examination of appellant in regard to drugs, about which, as hereinbefore stated, he readily volunteered information regarding their use by the present generation. There was no testimony regarding prior or subsequent use of drugs by appellant. He was examined about his use of drugs on the night in question, which he readily admitted, obviously without any remorse. As stated above, any reference on cross-examination by the State regarding other drug use did not meet with any objection, and, in fact, on being questioned, appellant explained without objection that he had taken similar drugs on a “number of occasions in the past, I would imagine. It goes on every day.”

We find no reversible error in this cause. It is hard to see how any reasonable jury could have returned a verdict other than guilty as charged. Undisputedly, this unfortunate death and conviction of appellant arose from what appellant readily described as the widespread use of drugs “by this generation.” We hope that he was incorrect in this assessment and would certainly hope that the results of the party on the night in question in Biloxi will serve to deter any of appellant’s classified people from meeting the same end. As is generally recognized, criminal laws are mainly to deter other crimes. All this Court can do is to interpret those laws in each individual case and hope that the persons having knowledge of the final decision will learn some lesson as a result.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COF-ER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Tommy M. SAIK v. STATE of Mississippi.
    No. 52079.
    Supreme Court of Mississippi.
    Sept. 10, 1980.

      Gerald Hosemann, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Tommy Saik was convicted in the Circuit Court of Warren County for attempting to obtain possession of a controlled substance by reason of a forged medical prescription and was sentenced to serve a term of three (3) years in the Mississippi State Penitentiary with two (2) years suspended. He has appealed and assigns two (2) errors in the trial below.

I.

Appellant first contends that the court erred in refusing to grant his requested peremptory instruction of not guilty.

Evidence for the State indicated that appellant and his wife, Mary Louise Saik, lived in Jackson. On May 25, 1979, they went to Vicksburg, with appellant driving the automobile, and stopped at Super G Discount Drugs. Mrs. Saik entered the drugstore while appellant remained in the car. She presented a counterfeit prescription to Nancy Fuller, a clerk, for Talwin tablets (pentazozine), a controlled substance, and requested that the prescription be filled. The prescription purported to be from Jackson Mental Health Center, signed by R. J. Thomas, M.D. for Mrs. Billy Wade, patient. Mrs. Fuller delivered the prescription to pharmacist Glenn Russell to be filled.

Russell was able to determine that the prescription was counterfeit, and, while Mrs. Saik was talking to the female clerk, he telephoned the police department. For the purpose of delay, Russell asked Mrs. Saik whether Dr. Thomas was still in his office and stated that he needed to contact Dr. Thomas about the prescription. When that statement was made to her, Mrs. Saik left the store, got back into the automobile, and appellant drove off. Russell was able to get a description of the automobile and the tag number, and gave them to the police, along with a description of Mrs. Saik.

A- short while later, appellant and his wife were arrested by Vicksburg police and were taken to the police department. Upon searching appellant, his billfold was found to contain another prescription from Jackson Mental Health Center with the patient name of Mr. Bob Wilson and for the same amount of Talwin. The doctor’s name appearing on the prescription was R. Jones, and the handwriting compared favorably with that of the first prescription presented at Super G Discount Drugs.

Detective Phil Solomon of the Vicksburg Police Department advised appellant of his constitutional rights and testified that appellant made the following free and voluntary oral statement to him:

“A. Yes, sir, I did. Mr. Saik informed me that he and his wife had gotten this prescription, the one attempted to be passed at the Super G Drug Store and also the prescription he had in his possession, from some friends in Jackson-which he declined to name-and had come together in a car to Vicksburg. And he was driving, and he let her out at the Super G Drug Store, knowing that she was going in to attempt to pass this prescription. He waited for her on the outside to return hopefully, apparently, with the pills. And then she returned without it, without the pills and they drove off, and he was driving.
Q. He was driving?
A. Yes, sir.
Q. Did he make any statement with reference to the alleged prescription found in his possession?
A. He said they got both prescriptions from the same friend at the same time in Jackson. And they came together, he and his wife, to Vicksburg to pass the prescriptions.
Q. They came from Jackson to Vicksburg for what purpose?
A. To pass these prescriptions for the Talwin tablets.”

In deciding the question of whether or not the trial court should have granted a requested peremptory instruction, this Court considers all evidence favorable to the State, together with reasonable inferences flowing therefrom, and, if such evidence is sufficient to present a guilt question for the jury, the peremptory instruction should be refused. Roberts v. State, 379 So.2d 514 (Miss.1979); Minor v. State, 379 So.2d 495 (Miss.1979); Warn v. State, 349 So.2d 1055 (Miss.1977).

There was strong evidence for the State that appellant and his wife left Jackson for Vicksburg with the common design and intent to obtain Talwin by passing counterfeit medical prescriptions, that appellant drove to the Super G drugstore for that purpose, and that the plan was thwarted when the pharmacist called the police. Appellant was present, aiding and abetting in the attempt to obtain possession of a controlled substance, and the evidence amply supports the verdict of the jury.

II.

Appellant next contends that State’s Exhibits # 2, # 3 and # 4 were improperly admitted into evidence.

The Exhibit # 2 was the counterfeit medical prescription which was taken from appellant’s billfold a short time after his wife passed the counterfeit prescription at Super G drugstore. Evidence of other crimes is relevant and admissible to prove scienter, guilt, intent, motive, and a common design, plan and scheme, or where another crime is part of the same transaction as the crime charged. Harrington v. State, 336 So.2d 721 (Miss.1976); Thompson v. State, 309 So.2d 533 (Miss.1975); Malley v. State, 271 So.2d 448 (Miss.1973); Ellis v. State, 255 So.2d 325 (Miss.1971); Pierce v. State, 213 So.2d 769 (Miss.1968).

In Sanders v. State, 357 So.2d 943 (Miss.1978), a prosecution for uttering a forged check, quoting from Keyes v. State, 166 Miss. 316, 148 So. 361 (1933), the Court said:

“On a trial under this statute, it is necessary to prove knowledge on the part of the accused.
This evidence may, of course, be supplied by circumstances as well as by positive proof, and the usual rule is that it is proven by circumstances. It is usually proven by showing that the accused had in his possession other bills of like tenor which were forged . . . .” 357 So.2d at 946.

Exhibits # 3 and # 4 were a recognizance bond and application for driver’s license signed by appellant, and were introduced in evidence for the purpose of permitting the jury to compare the known handwriting of the appellant with the writing on the counterfeit prescriptions.

The Court said in Harrison v. Eagle Lumber & Supply Co., 152 Miss. 466, 119 So. 203 (1928):

“We conclude that writings shown to be genuine are admissible in evidence for the purpose of comparison with a disputed writing, either by witnesses on the stand or by the jury, without the intervention of witnesses.” 152 Miss. at 475, 119 So. at 205.

See also Garvin v. State, 52 Miss. 207 (1876).

The lower court properly admitted Exhibits # 2, # 3 and # 4 into evidence, and there is no merit in the second assignment.

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.


text:
    Mrs. Lois MORRISON, Administratrix of Estate of Willie Morrison, Deceased v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 52113.
    Supreme Court of Mississippi.
    Sept. 10, 1980.

      William W. Ferguson, Raymond, for appellant.
    Charles T. Ozier, Richard D. Gamblin, Wise, Carter, Child & Caraway, Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Mrs. Lois Morrison, Administratrix of the Estate of Willie Morrison, Deceased, filed suit in the Circuit Court of the Second Judicial District of Hinds County, Honorable Charles T. Barber, presiding, under the Federal Employers’ Liability Act [45 U.S. § 51, et seq., (1972)] against Illinois Central Gulf Railroad Company [ICG] for damages resulting from the death of her husband, Willie Morrison. At the conclusion of the plaintiff’s case, the lower court sustained a motion for directed verdict in favor of ICG. The administratrix has appealed and assigns as error that the lower court erred in granting the motion for directed verdict.

The appellant charged in her declaration that the ICG was negligent and that such negligence was either a proximate cause or proximate contributing cause of a stroke sustained by Mr. Morrison which resulted in his death in that (1) it employed insufficient number of employees in Morrison’s area, (2) it required him to work many hours in excess of the legally designated maximum for an employee at any one time, (3) it failed to restrict Morrison’s duties due to his physical condition, and (4) it was reasonably foreseeable to ICG that Morrison would likely sustain a stroke or heart attack, if his work activities and duties were not diminished.

Under the Federal Employers’ Liability Act, a railroad company is liable for damages, if it is guilty of negligence which contributed even to the slightest degree in producing the employee’s injury. Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Davis v. Burlington Northern, Inc., 541 F.2d 182 (8th Cir. 1976). However, such negligence must be proved in order to recover under the act. Mississippi Export R. R. v. Williams, 266 So.2d 28 (Miss.1972); Mobile & O. R. R. v. Clay, 156 Miss. 463, 125 So. 819 (1930).

In determining whether or not a motion for directed verdict should be granted, the Court is required

. . to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied. . . . ” Georgia-Pacific Corp. v. Blakeney, 353 So.2d 769, 772 (Miss.1978).

See also Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

The evidence indicated that Willie Morrison suffered a stroke on January 24, 1976, after having worked long hours during the immediately preceding week. On his return home, he required assistance to get into the house, and early the next morning was taken to St. Dominic’s Hospital in Jackson, where his condition was diagnosed, he was treated, and he expired five (5) days later.

Mr. Morrison had been employed by ICG for twenty-eight (28) years and, at the time of his death, was working as a track supervisor covering the Meridian district with headquarters in Jackson, which district included approximately one hundred twenty-eight (128) miles of track. In 1968, Mr. Morrison was examined by Dr. J. Gordon Dees, who recommended that he go to the Illinois Central Hospital in Chicago for a complete checkup. Laboratory tests were conducted, and the findings were within normal limits, except for a diagnosis of “possible diabetes mellitus.” On May 28, 1968, he was examined by Dr. Edwards, an associate of Dr. Dees, and the next day was given a glucose tolerance test which had some suggestion of a pre-diabetic condition. At Dr. Edwards’ suggestion, Mr. Morrison returned to him on August 5,1968, at which time his blood sugar reading was normal. He was not prescribed any treatment for diabetes.

Dr. Dees continued to see Mr. Morrison until January 8, 1973, and, on examination, his blood pressure reading was 160 systolic over 80 diastolic. The doctor was of the opinion that this mild elevation was not serious and he did not prescribe any treatment. This was the last visit by Mr. Morrison to Dr. Dees’ office, because ICG decided to discontinue examinations for employees in positions similar to that of Mr. Morrison’s. Dr. Dees was of the opinion, on the basis of his examinations, that Mr. Morrison was physically able and capable of doing his work.

As stated, Mr. Morrison’s workload during the week prior to his illness was heavy because of a series of derailments in his district. When seen by Dr. Tyson at St. Dominic’s Hospital, Mr. Morrison’s blood sugar was slightly elevated, but Dr. Tyson said that such was an expected finding in a person who had sustained a stroke. Dr. Tyson found no evidence to support a diagnosis ’ of diabetes, and the certificate of death signed by him indicated the immediate cause of death as cerebral thrombosis due to hypertensive cardiovascular disease.

Appellant presented no evidence that the number of ICG employees in Mr. Morrison’s area were insufficient. Mrs. Morrison merely testified that her husband had worked long hours for the year or so prior to his death and that he was supervisor over the section foremen in his territory. There was no evidence as to how many section foremen were employed, or the number of other employees. Also, as to the allegation of negligence in that ICG required Mr. Morrison to work many hours over the time designated by law, there is no proof in the record to sustain that allegation-only that Mr. Morrison worked long hours.

The third allegation of the declaration to the effect that ICG negligently failed to restrict Mr. Morrison’s duties and, due to his condition, it was reasonably foreseeable that he would likely sustain a stroke or heart attack, if his duties were not diminished, likewise was not supported by the evidence. No proof was introduced that Mr. Morrison was a diabetic or that his blood pressure was elevated more than a slight degree.

There was no evidence that either his physical condition or the hours he worked proximately caused or contributed to his stroke and death, except that Dr. Irving H. Cronin, who testified as an expert medical witness for the plaintiff, stated that, in his opinion, Mr. Morrison’s working conditions and the accompanying strain were contributing factors thereto. However, his testimony indicated that he had no knowledge of Mr. Morrison’s duties other than time involved and type of work. He did not know what the work habits of Mr. Morrison consisted of the week prior to his illness, and he had no knowledge or information as to what Mr. Morrison did and what his work involved. Obviously, when considered with, and compared to, other medical evidence, it was without probative value.

The allegation that ICG failed to exercise the requisite degree of medical care in the examination and treatment of Mr. Morrison is not supported by the proof. There is nothing in the record to indicate that physicians employed by ICG and examining and treating Mr. Morrison failed to comply with required standards of medical care in those examinations and treatment.

The case of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), is cited by appellant. That case dealt with silicosis contracted by the plaintiff and is distinguished from the present case. There, the Court said:

“[W]hen the employer’s negligence impairs or destroys an employee’s health by requiring him to work under conditions likely to bring about such harmful consequences, the injury to the employee is just as great when it follows, often inevitably, from a carrier’s negligent course pursued over an extended period of time as when it comes with the suddenness of lightning.” (Emphasis added). 337 U.S. at 186-187, 69 S.Ct. at 1033, 93 L.Ed. at 1301.

We are of the opinion that the appellant failed to prove a prima facie case against ICG and that the lower court did not err in sustaining the motion for a directed verdict. Therefore, the judgment is affirmed.

AFFIRMED.

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

PATTERSON, C. J., took no part.