author: HALL, Justice Ad Hoc .

text:
    STATE of Louisiana v. Carl E. PERRY and Bettye R. Perry.
    No. 81-KA-1407.
    Supreme Court of Louisiana.
    Jan. 26, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Bob Hester, Asst. Dist. Attys., for plaintiff-appellee.
    A. Edward Hardin, and Frank Middleton, III, of Middleton & Hardin, Baton Rouge, for defendant-appellant.

       Dennis, J., would grant a rehearing.

   HALL, Justice Ad Hoc .

In separate bills of information, Carl Perry was charged with two counts of contributing to the delinquency of juveniles, LSA-R.S. 14:92, and two counts of simple criminal damage to property, LSA-R.S. 14:56. Also in separate bills of information, Bettye Perry was charged with two counts of contributing to the delinquency of juveniles and three counts of simple criminal damage to property. Upon motion of the defendants, all charges against both defendants were consolidated for trial. After trial before a six-man jury, the defendants were convicted on all counts with which they were charged. Both defendants now appeal their convictions, presenting four assignments of error. The defendants specifically abandoned assignments of error Nos. 1 and 2, leaving only two assignments for our review.

The charges against the defendants stem from two incidents occurring in mid-March 1980 in the defendants’ suburban East Baton Rouge Parish neighborhood. Sometime between the hours of 8:00 p. m. on March 11 and 3:00 a. m. on March 12, 1980, the residences of Mary Morgan and Delores and Louis Thomas were vandalized. Both houses were “egged”; the term “nigger” was painted with blue spray paint on at least one window of each house; the front windows, screens, and shutters of both houses were defaced with blue spray paint. In addition to this damage, all four tires on an automobile belonging to the Thomases were slashed.

Mrs. Morgan discovered the damage when she returned home from work at about 3:00 a. m. on March 12 and called Mrs. Thomas to advise her of the damage that was done to her house. Mrs. Morgan also telephoned the police to file a complaint.

Approximately a week later, on March 18, 1980, the residence of Mrs. Debra Scott was vandalized in a similar manner. Mrs. Scott’s house was “egged” and was defaced with gold or silver spray paint.

An anonymous telephone call to the East Baton Rouge Parish Sheriff’s Department led investigators to certain juveniles who, upon questioning by the investigators, admitted their complicity in the acts of vandalism. Information provided by these juveniles implicated both defendants who were subsequently arrested and charged.

Assignment of Error No. S

By this assignment of error, the defendants contend that the trial court erred in allowing the state on rebuttal to present the testimony of the mother of one of the juveniles involved. The witness testified, over defense objections, that defendant Bettye Perry telephoned her and requested that the witness get her son to say that defendant Carl Perry did not have any influence on the juvenile involving the acts of vandalism done to the homes. Defendants argue that this testimony was inadmissible because (1) the state did not notify the defendants pursuant to LSA-C.Cr.P. Art. 768 of its intention to introduce an incul-patory statement into evidence; and (2) that the testimony elicited by the state exceeded the scope of permissible rebuttal testimony because it introduced an entirely new issue after the defense had rested.

Defendants argue that this rebuttal evidence should have been part of the state’s case in chief and that the trial court committed reversible error in admitting this evidence on rebuttal, particularly in view of the state’s failure to notify the defendants of its intentions pursuant to Article 768.

During the state’s case in chief, the prosecution elicited testimony from each of the juveniles who had admitted their participation in one or both of the incidents of vandalism. It was established through the testimony of these witnesses that defendant Bettye Perry asked one or two of the juveniles to gather a few other boys together and to come to her house on the afternoon of March 11 or 12. When the juveniles arrived late that afternoon, Mrs. Perry, with Mr. Perry present, told the children that something had to be done about the black families who had moved into the neighborhood or their parents would be forced to move away. She told the juveniles to return to her house after dark that evening. When the boys returned to the Perry house after dark, Mrs. Perry gave each of them some eggs to throw at the houses. Mr. Perry gave one of the boys some blue spray paint. The boys, aided by Mrs. Perry, proceeded to the Morgan and Thomas residences, threw the eggs that Bettye Perry had given them at the house and helped her deface the houses with blue spray paint. After this had been done, most of the juveniles left. One juvenile, however, remained and at the suggestion of Carl Perry and with his help, proceeded to the Thomas residence where he and Carl Perry slashed the tires on the Thomas vehicle.

The juveniles involved in the March 18 incident testified that Mrs. Perry once again provided them with eggs to throw at one of the neighborhood houses and actively participated with the children in vandalizing the residence of Debra Scott. Carl Perry was not involved in this incident.

During the case for the defense, both defendants took the stand and denied that they had participated in, suggested, or encouraged the acts of vandalism. Both defendants testified that on the evening of March 12, they went jogging around the neighborhood and then stopped briefly by a neighbor’s house to visit. They did not return to their home until 8:30 to 9:00 p. m., somewhat after the time the juveniles testified the acts of vandalism occurred. The neighbors which the Perrys visited also testified, corroborating the testimony of the defendants.

Regarding the March 18 incident, defendant, Carl Perry, established that he was at a work-related meeting on the evening of the 18th and did not return home until after 9:00 p. m. Mrs. Perry testified that she took her children out to dinner and then took them to a store to look at toys. She testified that she did not return home until approximately 8:30 p. m., again, after the time the juveniles testified the acts of vandalism occurred.

To counter this alibi defense, the prosecution in rebuttal called the mother of one of the juveniles to the stand. During her testimony, the complained of inculpatory statement was admitted into evidence. Defendants contend that this court’s decision in State v. Turner, 337 So.2d 455 (La.1976), compels the conclusion that the trial court committed reversible error in allowing the state to introduce defendants’ inculpatory statements in rebuttal.

In Turner, this court noted that “rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party.” See State v. Monroe, 205 La. 285, 17 So.2d 331 (1944). It was also noted that prior cases demonstrate two types of prejudice which may be sustained by a defendant through the admission in the state’s rebuttal of evidence which should more properly form part of the state’s case in chief:

“(1) Since in Louisiana ‘the defendant is without right to rebut the prosecutor’s rebuttal’, La.R.S. 15:282, the defendant may be prejudiced by the denial to him of an opportunity to defend against new issues; and
“(2) The production of strong prosecution evidence in chief after the defendant rests his case may unfairly emphasize the prosecution’s ‘rebuttal’ evidence, contrary to the legislatively intended order of proof, La.C.Cr.P. art. 765(5), designed from ancient experience to assure fairness in our criminal trials.
“The first type of prejudice may often be cured. If the trial court exercises its discretion to permit the state to offer in rebuttal material evidence inadvertently omitted from its case in chief, the prejudice thereby caused may normally be avoided by the trial court’s permitting the defendant to introduce additional evidence to defend against the new issue thereby raised. La.C.Cr.P. art. 765(5). See State v. Scott, 320 So.2d 538 (La.1975). Further, the failure of the defendant to request such reopening of the evidence in order to avoid such prejudice may under some circumstances be presumed to indicate that prejudice of this type is not presented for review. State v. Johnson, 141 La. 775, 783, 75 So. 678 (1917); State v. Smith, 120 La. 530, 532, 45 So. 415 (1908).
“The second type of prejudice is sometimes incurable. Whether reversible error has resulted may depend upon the nature of the new evidence offered by the state for the first time in improper rebuttal. Improper rebuttal with regard to a peripheral issue may be regarded as harmless. State v. Major, 318 So.2d 19 (La.1975). To the contrary, however, if the evidence injects an entirely new issue which should have been an important part of the state’s case in chief, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), or if it unfairly places extreme weight on a part of the state’s evidence which should have been introduced in the case in chief, cf. State v. Davis, 246 La. 383, 164 So.2d 589 (1964).”

After reviewing the entirety of the evidence presented in this ease, we conclude that the defendants here have suffered neither type of prejudice. The admission into evidence of the complained of inculpatory statement did not inject a new issue into the trial but was an attempt by the state to directly controvert the alibi evidence offered by the defense. See State v. Hills, 354 So.2d 186 (La.1977). Additionally, the rebuttal testimony was offered to controvert testimony by both defendants that they had not participated in the acts of vandalism. The rebuttal testimony did not add a great deal to the state’s case against the defendants, considering the strong evidence of guilt presented by the state through the testimony of the juveniles in the state’s case in chief.

As the court noted in State v. Hills, supra:

“Control of evidence presented by the State on rebuttal is within the sound discretion of the trial judge whose ruling ‘will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining an undue advantage of defendant.’ State v. Turner, supra, at 459.”

The state did not obtain an undue advantage of the defendants in this case and we find that the trial court did not abuse its discretion in allowing the state to elicit the complained of testimony on rebuttal.

Defendants also complain that the inculpatory statement should not have been admitted into evidence because the state failed to notify the defendants of its intention to use the inculpatory statement in evidence as required by LSA-C.Cr.P. Art. 768. Defendants are correct in this regard. It is not disputed that the statement complained of was an inculpatory statement and that the state failed to advise the defendants of its intention to introduce the statement prior to trial. While we agree with the defendants that the trial court erred in admitting the inculpatory statement into evidence, we conclude that the error was harmless. The evidence pointing to the guilt of the defendants was overwhelming. Each of the juvenile witnesses called by the state testified that both defendants had encouraged and participated in the acts of vandalism. The contrary testimony of the defendants, being self-serving, is not persuasive. Additionally, the alibi evidence introduced by the defendants was extremely weak. Under these circumstances, we are convinced that the admission of the inculpatory statement, only obliquely inculpatory and of little probative value, worked no substantial prejudice on the rights of the accused. Therefore, we conclude that the trial court’s error was harmless. State v. Smith, 401 So.2d 1179 (La.1981) and State v. Gautreaux, 377 So.2d 289 (La.1979).

This assignment of error lacks merit.

Assignment of Error No. 4

By this assignment of error, the defendants contend that the trial court erred in its instruction to the jury regarding the definition of “owner” as used in LSA-R.S. 14:56, the statute defining the crime of simple criminal damage to property.

LSA-R.S. 14:56 provides in pertinent part:

“Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion....” (Emphasis supplied)

The trial court in its general charge to the jury gave the following instruction which the defendants complain of on appeal:

“Without the consent of the owner, in the context of this statute, means without permission or approval of the one who has the right of residency, use or occupancy.”

Defendants contend that this instruction was erroneous and that “owner” should be defined more restrictively. Specifically, it is the contention of the defendants that the term “owner” means the person who has the right of direct, immediate, and exclusive authority over a thing; the “owner” is that person who may use, enjoy, and dispose of a thing under the conditions established by law. See LSA-C.C. Art. 477.

During the state’s case in chief the residents of each of the three homes that were vandalized testified that they did not consent to the damaging of their property. The defendants established that none of the residents who testified had record title to the houses which had been vandalized. Rather, the victims of these acts of vandalism were tenants or lessees merely possessing the property that was vandalized.

It is axiomatic that the state must prove every element of the crime with which the defendant in a criminal case is charged. An essential element of the crime of simple criminal damage to property is that the damage was done without the consent of the owner. Contrary to the argument of the defendants, “owner” should be defined in accordance with, the common meaning and understanding of the term, not in accordance with the technical definition of ownership of immovable property. The meaning of the term is to be gathered from the connection in which it is used and from the subject matter to which it is applied. See LSA-R.S. 14:3. The term “owner” has been defined in many ways. See Black’s Law Dictionary (4th Edition). “Owner” may be defined as the person in possession of a thing or the one with dominion, control and management of a thing at the time in question. “Owner” is not always defined as the person who holds the record title to property.

In this case, proof that damage to a house was inflicted without the consent of the person living in the house is sufficient to establish lack of consent of the owner. Additionally, we note that lack of consent of an owner to malicious vandalism of an owner’s property can often be inferred circumstantially from the evidence presented, and such is the only reasonable inference under the evidence presented in this case.

Under the circumstances presented by this case, we think the trial court’s definition of “owner” as including persons with the right of use, residency or occupancy was not erroneous. The instruction to the jury fairly dealt with the issue of proof of lack of consent. It is well established that the ruling of a trial court on an objection to a portion of his charge to a jury will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be erroneous and prejudicial. State v. Dardar, 353 So.2d 713 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, 154 La. 295, 97 So. 449 (1923). Under the facts presented in this case, we do not find the disputed portion of the charge to the jury to be erroneous or prejudicial. This assignment of error lacks merit.

Decree

For the reasons assigned the convictions and sentences appealed from are affirmed.

LEMMON, J., concurs.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . LSA-R.S. 14:92 reads in pertinent part:
      “A. Contributing to the delinquency of juveniles is the intentional enticing, aiding or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to: ...
      “(9) Violate any law of the state or ordinance of any parish or village, or town or city of the state; ...
      “B. Lack of knowledge of the juvenile’s age shall not be a defense.
      “C. Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both....”

      . LSA-R.S. 14:56 states:
      “A. Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.
      “B. Whoever commits the crime of simple criminal damage to property, where the damage is less than five hundred dollars, shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
      “Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.
      “Where the damage amounts to fifty thousand dollars or more, the offender shall be fined not more than ten thousand dollars, or imprisoned with or without hard labor for not less than one nor more than ten years, or both.”
      In this case, both defendants were charged with simple criminal damage to property where the damage is less than five hundred dollars.

      . LSA-C.Cr.P. Art. 768 provides:
      “If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Willie CAIN, Sr., and Easter S. Cain v. GOLDKING PROPERTIES COMPANY.
    No. 14427.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    J. David Bourland, Baton Rouge, for plaintiffs-appellees Willie Cain, Sr., and Easter S. Cain.
    Christopher E. Janke, New Orleans, for defendant-appellant GoldKing Properties Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This suit, styled “Petition for Possession of Premises”, is brought by Willie Cain, Sr. and Easter S. Cain, against GoldKing Properties Company, asking that defendant be ordered to vacate plaintiffs’ property, and that, if defendant fails to comply with this order within 24 hours, a writ of possession issue to eject the defendant from the premises. Trial was had on the merits, and judgment was rendered as prayed for, ordering the eviction of defendant. From that judgment, defendant has appealed.

The record reveals that as of July 19, 1979, plaintiffs had signed a mineral lease, on four acres of land owned by them, with Stack Oil Corporation as lessee. This lease provided that no surface operations could be carried out on plaintiffs’ property without their special permission. The lease was subsequently assigned by Stack to defendant GoldKing. Thereafter, plaintiffs entered into an agreement with GoldKing waiving all surface restrictions contained in the original lease, and allowing defendant to drill on the property. Apparently, a well was drilled on plaintiffs’ property thereafter, but no production was drawn therefrom.

On November 5, 1979, plaintiffs and defendant entered into a surface lease by virtue of which defendant was granted the right to drill a well on the site of the first well drill, to be bottomed on property not owned by plaintiffs. That lease contains the following provisions:

“Lessor and Lessee do hereby agree as follows:
“1. In consideration of the sum of ONE THOUSAND EIGHT HUNDRED AND NO/lOO ($1,800.00) DOLLARS, cash, Lessee shall have the right for a period of one (1) year to utilize the property covered by the Subject Lease for use as a surface location for a rig and related facilities, including production facilities, in connection with Lessee’s operations thereon for the purpose of drilling a directional well to be bottomed on property not owned by Lessor;
“2. Lessee shall have the right to utilize the tract on which the rig is presently situated which was used in drilling the GoldKing-Willie Cain Well No. 1 as a surface location for the purpose of drilling a directional well to be bottomed on property not owned by Lessor and also in connection therewith, to locate production and transportation facilities only to the extent necessary to treat and market any production that may be obtained from said well;
“3. Lessee agrees to pay Lessor for so long as Lessee needs the surface location, the sum of ONE HUNDRED FIFTY AND NO/100 ($150.00) DOLLARS per month, payable semi-annually in advance, the first payment to be due one (1) year from the effective date hereof.
“3. This agreement shall terminate six (6) months after Lessee no longer needs the surface location or the facilities to be located on the tract herein leased and upon request, Lessee shall execute an agreement formerly terminating and revoking this agreement.”

From allegations contained in defendant’s brief, but not substantiated by the record, we learn that the second well was drilled and production obtained. As a result, a drilling and production unit was created by the Commissioner of Conservation on June 10, 1980, which contains a portion of plaintiffs’ property.

On October 1, 1980, defendant sent a check for $900.00 to plaintiffs, covering six months’ rental under the surface lease for the period beginning November 5, 1980. On October 28, 1980, plaintiffs’ attorney returned the check, advised defendant that the lease had expired, and demanded that defendant vacate the leased property by midnight November 30, 1980.

This suit was filed on December 11,1980, and the petition described the property and the lease as follows:

“Said property is also located at a street address in East Baton Rouge Parish known as Route 3, Box 612 Pecue Lane, Baton Rouge, Louisiana, and was leased to said defendant by an instrument dated September 20, 1978, effective as of July 19, 1979, recorded in the conveyance records of East Baton Rouge Parish, Louisiana, in Original 772, Bundle 9290, for a period of one year to utilize the property for use as a surface location for a rig and related facilities, including production facilities, in connection with defendant’s operations thereon for the purpose of drilling a directional well to be bottomed on property not owned petitioner, for a sum of Eighteen Hundred ($1,800.00) Dollars.”

Defendant filed answer, alleging that it had a right to utilize the surface of plaintiffs’ property without restriction by virtue of the original mineral lease and the amendment thereto removing the surface restrictions.

Trial was then held on the merits, and judgment was rendered in favor of plaintiffs ordering defendant to vacate the premises. From that judgment, defendant has appealed.

In the trial court, defendant objected to the introduction into evidence of the surface lease, on the ground that by date and recordation data, plaintiffs had described the original mineral lease, and that the surface lease was therefore not at issue. The trial judge permitted the introduction into evidence of the surface lease, and defendant now assigns error to that ruling. It is further contended that the trial court erred in finding that the surface lease had expired, and that, in any event, defendant is entitled to drill on plaintiffs’ property under the original mineral lease as amended.

We find no merit in the first assignment of error. Although the date and the recordation information given is that of the original mineral lease, the description of the document which follows makes it clear that the surface lease is the instrument referred to. We do not believe that defendant was surprised or prejudiced in any way by the inconsistency of the allegations. Under the liberal rule relative to interpretation of pleadings which pertains in this state, we find no error in admitting the surface lease into evidence. Articles 865, 5051, Code of Civil Procedure; Paxton v. Ballard, 289 So.2d 85 (La.1974).

Although the surface lease is not well drafted, we think it is clear that it was for a primary term of one year, and that the lessee, GoldKing, was granted the right to extend the term of the lease, six months at a time, by payment of $150.00 per month, semi-annually in advance. The term of the lease is “so long as Lessee needs the surface location” and the lease terminates six months after “Lessee no longer needs the surface location or the facilities to be located on the tract. . . . ” The trial judge found that the latter provisions created a lease in perpetuity, and he therefore restricted the term of the lease to the primary term of one year.

Article 2674 of the Civil Code provides as follows:

“To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.”

This article has been interpreted so as to prohibit leases in perpetuity, but not to require that leases be for a specific term. Leases which have stipulated to continue during the existence of a condition have been held valid. Poole v. Winwell, Inc., 381 So.2d 926 (La.App. 3rd Cir. 1980). In the Poole case, for instance, a surface lease for “so long as oil, gas and other minerals are being produced” was held valid.

In this case, the only reasonable interpretation to be placed on the language fixing the term is “so long as Lessee needs the location to produce, treat and market the production from the well drilled thereon.” This is a condition, the existence of which may be easily determined, and which is not entirely dependent on the will of either party.

The record reflects GoldKing’s present “need” for the location, and that the lease money was timely tendered to plaintiffs. We therefore find that the lease remains in effect and that plaintiffs are not entitled to the relief sought.

The judgment appealed from is therefore reversed and set aside, and there will be judgment in favor of defendant dismissing plaintiffs’ suit at plaintiffs’ cost.

REVERSED AND RENDERED.


text:
    Kenneth JACKSON v. STATE of Mississippi.
    No. 53073.
    Supreme Court of Mississippi.
    Jan. 13, 1982.
    Rehearing Denied Feb. 24, 1982.
    Mayfield & Smith, C. Emanuel Smith, Tupelo, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    In the Matter of the ESTATE and Last Will & Testament OF Asie Harrison LOWRY, Dec’d. Leigh H. RUDACILLE, Conservator, etc. v. Winfred E. HARRISON.
    No. 53010.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Robert S. Murphree, Jackson, J. Andrew Hannon, Raymond, for appellant.
    William W. Ferguson, Raymond, Gerald B. Carmichael, Utica, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

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

AFFIRMED.


text:
    WAGNER ELECTRIC CORP., a Self-Insurer v. Ester SMITH.
    No. 53237.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Riddick & Carpenter, Robert M. Carpenter, Jackson, for appellant.
    Smith, Smith, Tate, Stuart & Fitzpatrick, E. C. Stuart, Jr., Poplarville, for appellee.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    Jimmy CHRESTMAN v. Vince VENUTI, d/b/a Vince’s Service Center.
    No. 53297.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    William M. Clower, Jr., Leland, for appellant.
    Wynn, Bogen & Mitchell, Harold H. Mitchell, Jr., Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    Mrs. Inez HUFF v. Dr. Octavius D. POLK.
    No. 53182.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Rehearing Denied Feb. 24, 1982.
    Banks & Nichols, C. C. Anderson, Jr., Jackson, for appellant.
    Snow, Covington, Temple & Watts, W. Arlo Temple, Ready & Prichard, P. A., William E. Ready, Meridian, for appellee.
    Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal comes from the Circuit Court of Lauderdale County. Appellant Mrs. Inez Huff filed her suit against appellee Dr. Octavius D. Polk alleging that Dr. Polk was guilty of malpractice leading to the death of appellant’s husband Dr. J. E. Huff. There was a jury verdict for the defendant (appellee here, Dr. Polk). Appellant assigns only one alleged error; that is:

The court erred in overruling appellant’s motion in limine and continuing objection to the testimony of the appel-lee’s expert witnesses.

The facts on the issue presented to this Court are practically undisputed, and we will discuss the record as it pertains to the only issue involved.

The trial of the case in the circuit court started on the morning of February 18, 1981. The alleged error occurred immediately prior to the start of the trial when appellant’s attorney filed a motion in limine objecting to the testimony of three doctors whom appellee’s attorneys advised would testify for appellee. They were Doctors John Atwood, Joe S. Covington, and John Clay. The first two doctors were named in a written instrument handed appellant’s attorney styled “Supplemental Answers to Interrogatories.” The possible testimony of Dr. Clay was related to appellant’s attorney orally.

On May 5,1980, appellant’s attorney filed interrogatories to be answered by appellee Dr. Polk pursuant to the provisions of Sections 13-1-201-226, Mississippi Code Annotated (Supp.1980). Interrogatory No. 35 was as follows: “Is there any person that the defendant expects to call as an expert witness at trial?” Interrogatory No. 36 coincided with the statute regarding discovery involving expert witnesses, as shall hereinafter be discussed.

On July 4, 1980, appellee’s attorneys secured five days additional time to file answers to the interrogatories. The answer to Interrogatory No. 35 was “Not determined at this time.” The answer to No. 36 was “Not applicable.” These answers were filed on August 4, 1980. No further answers or information of any kind regarding these interrogatories and the answers were given appellant’s attorney prior to the morning of the trial as hereinbefore related.

On August 29, 1980, appellant’s attorney filed a motion for a peremptory setting of the cause for trial. A similar motion was filed by appellee’s attorney on September 2, 1980. The lower court then entered an order setting the case for trial on November 3, 1980. On October 28, 1980, an order was entered by the lower court resetting the case for trial on February 2, 1981. On January 27,1981, appellee’s attorney filed a motion for a continuance due to medical disability of appellee. The court then entered another order setting the case for trial on February 18, 1981.

As heretofore stated, shortly before the trial began on February 18, 1981, one of appellee’s attorneys handed appellant’s attorney the supplemental answers to interrogatories listing two doctors that would be called as experts and orally advised that another might be called. Appellant’s attorney promptly dictated into the record his motion to exclude the testimony of the proposed expert witnesses as their names were not divulged to him until the day of the trial and he had no chance to prepare as far as they were concerned.

One of the appellee’s attorneys gave as one reason in his argument that no harm was done appellant, as appellant’s attorney could not communicate with the experts; this being prohibited by the privileged communications statute [Section 13-1-21, Miss. Code 1972 Ann.]. A disposition of this contention may readily be made by examining the statute which clearly makes privileged only communications made to a physician or surgeon by a patient. There is no contention in the case sub judice that the alleged experts to be called ever treated appellant’s deceased husband. Appellant’s attorney therefore had a clear right, if not a duty, to further investigate the proposed experts after that information was divulged to him. Furthermore, it was revealed that appellee had talked with appellant’s expert days before the trial date.

We need next to look at the discovery statutes in question, which statutes were passed by the Mississippi Legislature in 1975 and went into effect on January 1, 1976. [The quoted parts have been made a part of the “New Rules” under Rule 26 adopted by a majority of the Court to be effective as of January 1,1982. The writer of this opinion dissented to their adoption, and still does. It falls my duty to write this opinion.] The language of the statutes are clear as to their requirements. Section 13-l-226(b)(4) titled “Trial Preparation: Experts” states:

Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this section, and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subsection (b)(4)(C) of this section, concerning fees and expenses as the court may deem appropriate.

As we heretofore have seen, appellant’s attorney, in filing his interrogatories many months prior to trial, strictly followed the provisions of the above legislative mandate.

Subsection (e) of the discovery statute in question under the title “Supplementation of Responses” provides:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

As we heretofore have seen, the original answer to the interrogatory under the above discovery statutes merely stated: “Not determined at this time.” No supplement or other information regarding experts was given appellant’s attorney until immediately prior to the start of the trial.

The lower court, in an attempt to expedite the questions before him, first stated that he would permit appellee to introduce one of the doctors and only ask him a hypothetical question. The court was then informed by one of the appellee’s attorneys that it was their intention for the experts to testify further than merely being asked hypothetical questions. The lower court then stated that it would grant appellant [plaintiff below] a continuance to further prepare his case. This attorney advised the court that his medical expert whose name previously had been given appellee’s attorney was then on his way from Jackson to Meridian and expenses had been incurred. He relied on his assumption that under pri- or legal authority the court would be in error if it permitted appellee’s experts to testify. Appellant’s attorney and his main expert witness, with all the expenses involved, were either in Meridian or on their way. The case had been peremptorily set for some time, and appellant’s attorney insisted on the lower court giving him the legal rights to which he thought he was entitled and therefore turned down the court’s offer for a continuance.

The court thereafter changed its mind about allowing only one of the appellee’s experts to testify and then only in answer to a hypothetical question. He allowed both Drs. Covington and Atwood to testify and their testimony consumes 110 pages of the record. It should be pointed out that the primary reason given the court by ap-pellee’s attorneys for the failure to conform to Section 13-l-226(e) was that they had done the preparation for trial the night before, even though they were to begin the trial early the next morning under which their client was being sued for 1.5 million dollars.

This Court had before it a similar, if not identical question, in the case of Clark v. Mississippi Power Co., 372 So.2d 1077 (Miss.1979). There the situation was the same except the parties were switched. On the morning of the trial, plaintiff’s attorney had not divulged in writing the name and further statutorily required information pertaining to experts in answer to defendant’s interrogatories. He had filed a similar answer as that made by appellee here. On the morning of the trial in Clark, supra, plaintiff’s attorney stated that he would use a certain expert witness at trial. The defendant’s attorney stated he would object thereto as the plaintiff did not follow the hereinabove set out statutes by not filing supplemental responses to the interrogatories in sufficient time for the opponent to be prepared regarding that expert. In Clark, on the second day of the trial, the expert was presented as a witness and on objection the court ruled he could not testify due to the failure of appellant to conform to the discovery statutes. On appeal by plaintiff, after an adverse jury verdict, we held that the lower court was correct in refusing to permit the testimony of the expert witness and stated:

In the present case the record shows that about six weeks prior to the trial date, during a conversation between attorneys for appellant and appellee, the attorney for appellant advised the name and address of the expert in question who would testify at the trial. The question now is whether or not, taking all the foregoing occurrences and pleadings into consideration, this Court can say that the trial court abused its discretion. There are two paramount considerations that in our opinion make this decision. In the first place, appellant gave no answer to any of the three interrogatories in question except to say that he was unable to answer each at that time but would file supplemental answers at a later date. This was not done. In addition to this, as before stated, on March 24,1978, approximately three months after the original answers were filed, appellee filed a demand for its answers. These were not given. (372 So.2d at 1080).

In the present case, appellant’s attorney had no information whatever either written or oral regarding appellee’s experts until the morning of the trial. In Clark, as seen above, it was undisputed that six weeks prior to the trial, the plaintiff’s attorney had told the defendant’s attorney orally about the expert that was to be used.

The Legislature in enacting the discovery statutes involved in this appeal had a purpose in so doing. Court cases should not be tried in an atmosphere of secrecy or intentional undue influence. As has been said by both the Legislature and this Court, the rules of Court are supposed to be for the purpose of promoting justice and fair play. If a member of the bar intends to try cases in court, he is presumed to know the rules. The statutes hereinabove quoted are clear, concise, plain and could not possibly be misinterpreted. If rules are going to be promulgated, they cannot apply to different cases in a different manner. As has been commonly stated, “What is good for the goose is good for the gander.” A practicing attorney cannot strongly advocate applying one rule and contend that some other rule should not be enforced in the same manner.

Appellee contends that the noncompliance of the statute in question was cured when the lower court offered appellant a continuance. First, we have seen that appellant already had incurred the expense of preparation for trial, including the payment to a medical expert who was on his way from Jackson to Meridian. We can almost take judicial knowledge that this would be rather expensive.

The main point, however, is that under the lower court’s ruling in this case, in justifying his actions by offering a continuance, the court is setting up a situation where either party to a cause in litigation may decide that he will not be ready for trial on the day it is set and wishes a delay. He could get one by not conforming to the above quoted discovery rules until the morning of the trial, knowing that he would get a continuance by the court giving the already prepared opposition a continuance. We certainly cannot condone the possibility of a situation such as that being legalized.

In summary, the rules of court procedure have been promulgated. As stated above, the particular discovery procedure in this appeal was first adopted by the legislature. The quoted parts were carried over (with additions) into the new rules. We recognize that some members of the bar are going to be unhappy when forced to conform. Regardless of this, we have no choice but to reiterate that attorneys are required to conform to the rules of procedure, regardless of how obnoxious or penal some are thought to be.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P.JJ., and WALKER, BROOM, ROY NOBLE' LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    QUEEN VICTORIA SQUAIRE, et al. v. John L. BLANKS, et al.
    No. 53063.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Gambrell, Anderson & Gambrell, John H. Anderson, Hattiesburg, for appellants.
    Riddell & Dabbs, Tally D. Riddell, Quit-man, for appellees.
   Appeal from Chancery Court, Clarke County; William Neville, Chancellor.

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

AFFIRMED.


text:
    Albert VOWELL v. STATE of Mississippi.
    No. 53021.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Rehearing Denied Feb. 24, 1982.
    Robert N. Brooks, James E. Smith, Carthage, for appellant.
    Bill Allain, Atty. Gen. by Phillip C. Carter, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    Phillip Gordon STOVER v. STATE of Mississippi.
    No. 53224.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

J. W. Miller, Biloxi, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.


text:
    Henry C. NELSON v. Sarah E. NELSON.
    No. 53248.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Helen J. McDade, Lowry C. Edwards, De-Kalb, for appellant.
    Graham, Segrest & Johnson, J. Tyson Graham, Columbus, for appellee.
   Appeal from Chancery Court, Noxubee County; Woodrow W. Brand, Jr., Chancellor.

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

AFFIRMED.


text:
    In the Interest of J. B.
    No. 53317.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Cook, Tucker & Sharp, James G. Tucker, III, Bay St. Louis, for appellant.
    Favre, Genin & Scafide, John L. Genin, Bay St. Louis, for appellee.
   Appeal from Youth Court, Hancock County; Michael D. Haas, Youth Judge.

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

AFFIRMED.


text:
    Earl Lee BOONE v. ACE INDUSTRIES, INC. and Home Insurance Company.
    No. 53274.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Jack A. Travis, Jr., Faye Murphree, Jackson, for appellant.
    McCoy, Wilkins, Noblin & Anderson, James M. Anderson, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


text:
    Henry Ernest McKNIGHT v. Carla Ann H. McKNIGHT.
    No. 53020.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Charles C. Jacobs, Jr., Cleveland, for appellant.
    Levingston, Jacks, Levingston & Land, Alfred A. Levingston, Cleveland, for appel-lee.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


text:
    Thomas E. HILL v. STATE of Mississippi.
    No. 53136.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Barlow & Jones, Richard G. Jones, Donald G. Barlow, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Judge.

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

AFFIRMED.


text:
    Octavius YARBROUGH v. Joel COCKRELL.
    No. 53254.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

Deramus, Lewis & Tucker, C. Taylor Tucker, Louisville, for appellee.

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

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Freddy Lamar KING v. STATE of Mississippi.
    No. 53179.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Danny L. Lowery, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

On the evening of March 21, 1980, Ricky Alexander died after being stabbed by Freddy King. King was tried for murder, convicted of manslaughter, and sentenced to fifteen years in the Mississippi Department of Corrections with seven years suspended. He appeals from this action by the Circuit Court of Alcorn County, and assigns for reversal the introduction of a photograph of the deceased which he contends prejudiced the jury.

No question arises concerning the accuracy of the photograph portraying the body of Ricky Alexander depicting the stab wound on his chest. Neither is there any question that the stabbing caused the death. The objection of defense counsel was,

Your Honor, I would interpose an objection at this time to it being introduced into evidence and would state that the photograph in itself would be prejudicial in view of — if the Court would look at the photograph, — it would just prejudice the client. There is no probative value involved in this photograph at this — in this particular case at this particular time. It is not disputed there was a stab wound on Mr. Alexander, therefore, since that is not disputed, it does not have any probative value and it would just be prejudicial.

After viewing the photograph the judge ruled,

All right, of course the offer at this time is the one photograph of the deceased, depicting a wound on his chest. The Court is of the opinion, since there has been no really direct testimony of anyone who saw the actual stabbing and to the knife, and the stabbing take place, who could testify directly to that. There would be some probative value to the photograph. The Court will allow one photograph and one only to be marked and received as an exhibit.

We are of the opinion the photograph had some evidentiary value and it was not inordinately gruesome to an adult jury acquainted with the norms of life and death. We are therefore of the opinion the trial court did not abuse its discretion in permitting its introduction. See Bruce v. State, 349 So.2d 1068 (Miss.1977).

It is true there was no issue concerning the cause of Alexander’s death, but there was some doubt from the evidence, as to the posture of Alexander and King at the time the knife blade entered Alexander’s body. The appellant’s testimony was,

He took his jacket off and he slapped me with it and I stood there and he seen I stood there and he ran his right hand in his pocket and he come back out with his right hand and I couldn’t say if he dropped something or had something in his pocket, but he went down and come back at me like a lineman would hit a receiver. When he hit me, I just come up to push him off. The knife went in him. I thought the knife had closed. I looked at my hand and I seen blood on it. I looked at him and he was coming at me and I backed up from him again and I started around the corner and his brother come out later and said, “Hey, what you done did to my brother?”.

The photograph had the potential of clarification, or making more certain, that which occurred. In any event we do not think it was introduced solely for the purpose of prejudicing the jury in view of its eviden-tiary value and surely we cannot state the judge abused his discretion in permitting its introduction.

AFFIRMED.

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


text:
    Obadiah COLLINS v. STATE of Mississippi.
    No. 52974.
    Supreme Court of Mississippi.
    Feb. 3, 1982.

      Chill, Chill & Dove, Bernard W. N. Chill, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Rankin County Obadiah Collins, in a joint trial with George Williams, was convicted of armed robbery and sentenced to fifteen years in the Mississippi Department of Corrections, with five years suspended.

On January 18,1980, Ms. Jimmie Morgan, an employee of Institutional Foods Distributors, was robbed as she was taking a deposit to the bank for her employer. At approximately 10:40 a. m. Ms. Morgan left her place of employment carrying a basket of bank deposit bags to her car. She placed it on the backseat of her automobile, then sat down on the backseat and leaned across it to pick some paper off the floor on the opposite side of the vehicle. While she was leaning over a black male approached the car and, as she raised up, pointed a gun at her and commanded that she stay down. After seizing the basket of bank bags and the employee’s purse, the assailant went to a car parked perpendicular to Ms. Morgan’s vehicle. As he was walking away, Ms. Morgan again raised herself up, at which time another black male, seated in the driver’s seat of the getaway ear, yelled at her to stay down. As the car departed Ms. Morgan observed its color and obtained its license plate number.

Ms. Morgan described her accoster to the police as a dark complexioned black man with a scar under his eye on the right side of his face. She stated he was 5'10" tall, 160 lbs., with slim build, medium length afro haircut and slender face and that he spoke with a speech impairment. She identified Obadiah Collins in court as the man who robbed her. She also described the driver of the getaway car as a black male with a gold tooth, goatee, sunglasses, and hat. She identified George Williams, co-defendant, in court as the driver of the getaway vehicle.

On the evenings of January 18 and 19, 1980, Ms. Morgan was shown a group of approximately 20 photographs of black males by the police of the City of Pearl. On both occasions she identified the co-defendant George Williams. On March 19, 1980, she was shown another group of approximately 15 photographs of black males. A few days after that another group of photographs was displayed to her. Each time she identified a photograph of Obadiah Collins as the person who robbed her. This photograph revealed Collins as a heavyset, full faced man; evidence was introduced that he weighed approximately 200 pounds.

The license tag number observed by Ms. Morgan was traced and disclosed the getaway car was registered to the defendant George Williams.

Collins testified in his own behalf, stating that he worked as a driver for Jackson Packing Company. Collins testified that on January 18, 1980, he went to work at approximately 2:00 a. m. to take a load of meat to an A&P warehouse in New Orleans, Louisiana, where he arrived about 7:00 a. m. and unassisted, transferred the boxes of meat from the truck onto a pallet for removal by the warehouse employees. He testified this task was completed about 9:45 a. m. and that he had the merchandise checked and the drayage ticket stamped and signed. He further testified that he left New Orleans returning to Jackson at approximately 10:00 a. m. Collins stated that he stopped enroute in Brookhaven, Mississippi, for gas for which he paid in cash and received a receipt. Upon arriving in Jackson at approximately 3:00 p. m. he cleaned the truck, turned in his sheet, turned in the cash ticket for the gas he had purchased, and received a refund. He testified that upon his return he spoke with John McAllister, his supervisor.

John McAllister, a shipping foreman at Jackson Packing Company, testified that he was not at the Jackson Packing Company at 2:00 o’clock a. m. on January 18, and did not see Collins leave in the truck. However, he did see him when he returned that afternoon. McAllister testified that there is no log for drivers to sign in and out as they leave in a truck, but there is a watchman at the locked gate who verifies the drivers by sight. He testified that Collins was chosen as the driver for the New Orleans trip because he was one of two or three drivers for Jackson Packing Company certified by the Interstate Commerce Commission to cross state lines.

Various documents concerning Collins’ alibi were introduced into evidence. Collins’ timecard showed that he had punched in for work at approximately 2:00 o’clock a. m. on January 18 and punched out at approximately 4:00 o’clock p. m. the same day. The card was initialed by McAllister to verify the time worked by Collins. A handwritten memo of McAllister, showing that Collins was assigned to the New Orleans route on January 18, 1980, was also introduced. The cash receipt for the gas, showing Collins name and McAllister’s initials authorizing repayment to Collins, was also introduced into evidence. There was also a Jackson Packing Company sales ticket showing the purchaser of meat as the A&P warehouse, the amount of purchase, and the January 18, 1980, date of purchase.

The receiving clerk from the warehouse in New Orleans testified that he signed the dray receipt indicating receipt and approval of the shipment from Jackson Packing Company on January 18, 1980, whereupon the receipt was introduced into evidence. The clerk did not recall Obadiah Collins, but stated that 15 to 22 trucks came to the warehouse every day with numerous drivers. Additional documents from the warehouse were introduced indicating that on January 18, 1980, a Jackson Packing Company truck arrived at 7:20 a. m. and was released at 9:45 a. m. The A&P warehouse manager testified that any person entering the A&P warehouse through the gate was required to sign in with the guard. However, their security logs are destroyed after 30 days and since this time had expired they were no longer available.

One of the attorneys representing Collins testified about one phase of his investigation of the case. He stated that he went to the gas station in Brookhaven to ascertain if anyone there recalled selling gas to a Jackson Packing Company truck on the date in question. He testified that no one could remember who had been on duty that particular day. The state responded by calling an employee of the gas station in Brookhaven who testified about the usual procedure for issuing a cash receipt. He testified that the purchaser’s name was usually placed on the top of the form, not at the bottom as it was on Collins’ receipt, and that the salesman would usually write his signature on the receipt. There was no salesman’s signature on the receipt in question, instead there were initials which the employee did not recognize. This employee named the persons who he believed worked the daylight hours of January 18,1980, and none of the initials on the receipt corresponded with those employees.

A Pearl police officer was called in rebuttal by the state and testified that after Collins was read his Miranda rights he was asked if he knew George Williams and that he responded that he did not. This contradicted Collins’ testimony at trial that he knew Williams. Another officer testified in rebuttal that when Collins came to pick up his personal property after being released on bond, he was asked if he had seen Williams lately and Collins responded by stating he had just talked to Williams on Highway 80.

The jury found Obadiah Collins guilty of armed robbery. He appeals to this court, assigning numerous errors of the trial court for reversal, foremost of which concerns the conduct of the district attorney and his assistant during the course of the trial. Collins contends that the cumulative effect of the different instances of improper conduct was to prejudice the jury and deny him a fair and impartial trial. In support of his argument Collins cites several examples of alleged misconduct by the state’s attorneys.

The first instance of alleged misconduct occurred during the state’s examination of Ms. Morgan. The district attorney attempted to demonstrate the prone position of the witness as she was reaching across the backseat of her automobile at the time of the robbery by lying down on the floor in front of the jury and attempting to portray her position. An objection was made several minutes after this display. The trial court, in overruling the objection, stated that it was untimely, and that the posture of the state’s attorney was no different from other gestures that attorneys made while interrogating witnesses.

Collins next complains of questions asked Collins’ supervisor from Jackson Packing Company, John McAllister, by the assistant district attorney. These queries sought McAllister’s opinion concerning the credibility of Collins’ testimony and the documents from the Jackson Packing Company by the following questions and answers:

Q. And we’re taking Obadiah’s word that he is the one who punched that time slot there, is that correct? Is that a fair statement?
A. That is correct.
Q. Okay, in other words, if Obadiah is being honest with us, then these documents back up his testimony, do they not?
A. That’s correct.
Q. But if he is being dishonest with us—

Collins objected, claiming that the documents spoke for themselves and that the jury was entitled to draw its own opinion from the documents and testimony. The objection was overruled.

The other instances of conduct which we believe merit comment and to which Collins’ objects as improper were comments made by the district attorney and his assistant in their closing arguments to the jury. The assistant district attorney commented on Collins’ failure to call certain witnesses to testify and on Collins’ prior criminal record, although no evidence of past criminal convictions was presented during the trial. He stated:

Why didn’t they bring that guard up here if the guard could recognize him as taking the truck off. Because the guard never saw him, that’s why. Why didn’t they bring the other folks?... I submit to you ladies and gentlemen, another one of those drivers made that trip for Obadiah. Obadiah is a sophisticated criminal.

An objection was interposed and sustained, and the jury was instructed to disregard the comments.

The assistant district attorney, however, continued this line of argument by stating that Collins had cased Institutional Foods for several days prior to the robbery. Objection was made and sustained by the trial judge who stated:

The jury has been adequately instructed ... by the written instructions that any comment or argument of counsel that has no foundation in the evidence is to be disregarded, so it is for the jury primarily to determine whether these arguments have any foundation in the evidence.

Yet immediately after the court's statements, the assistant district attorney persisted, “I believe Obadiah Collins watched and knew the procedure.” Objection was made again. The court in overruling the objection stated:

I’m going to overrule the objection, but I am going to caution you to do your best to keep your argument within the bounds of the evidence. And I specifically instruct the jury to disregard any statement ... that you find has no basis in the evidence.

In his rebuttal argument, the district attorney commented that the co-defendant, George Williams had produced the names of his witnesses as “he was supposed to do .... The other side didn’t.” An objection was interposed but was overruled. Collins complains of that comment because, under the Mississippi Uniform Criminal Rules of Circuit Court Practice, the defendant must produce a list of the names of his witnesses only after a written demand by the prosecuting attorney. There had been no such written demand in the present case.

We are of the opinion that the cumulative effect of the conduct of the district attorney and his assistant was to prejudice the jury against Obadiah Collins and deny him a fair trial, as required by due process of law. While the trial court, in some instances, sustained the objections made by Collins and admonished the jury to disregard some of the comments, we find that such action was insufficient to avoid prejudice to the appellant. The reference to non-existent testimony, the innuendos arising from the defendant’s not calling witnesses, which were readily available to the state, and the beliefs of the assistant district attorney, again not supported by the evidence, were such that they could not be removed, in our judgment, from the minds of the jurors by the judge’s admonishments. As is evident this case presents a close question as to the guilt of Collins. In reality it was the testimony of Ms. Morgan, who identified Collins, versus that of Collins who presented alibi evidence which was corroborated to the extent mentioned. In such situation, the conduct of the state’s attorneys had the likely probability of prejudicing the jury, thereby denying the defendant a fair and impartial trial.

We recently stated in Henderson v. State, 403 So.2d 139, 140 (Miss.1981):

In most cases, when an objection is made to improper questions by a district attorney and the court sustains the motion and admonishes the jury to disregard the improper questions and evidence, we have held that any prejudice created by the questions was cured and the trial court properly overruled the motion for a mistrial. Reid v. State, 266 So.2d 21 (Miss.1972); Thomas v. State, 285 So.2d 148 (Miss.1973). However, in the final analysis, each case must be decided on its own peculiar facts. If the only error presented in this case was that the district attorney had inquired of the defense witness, Ricky Scott, whether he had been indicted by the grand jury for the burglary of a dwelling house, we would probably hold that the court’s admonishment to the jury to disregard such statement cured any prejudice caused by the question, even though we have stated many times that similar questions by a district attorney were improper.

In Henderson we reversed and remanded for a new trial because of the prejudicial effect upon the jury in spite of the trial court’s admonitions.

As we stated in Henderson, this court has previously and repeatedly stated that certain comments are improper. E.g., Morgan v. State, 388 So.2d 495 (Miss.1980). We are of the opinion, under the circumstances of this case, the prejudicial effect upon the jury was so great that the court’s admonitions to disregard improper statements and allusions to evidence not in the record were given in vain. To insure that Collins receives his constitutional right to a fair and impartial hearing, we reverse and remand for another trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . The jury could not reach a verdict as to the guilt or innocence of co-defendant Williams and a mistrial was declared as to him.

      . There is no evidence that anyone other than Collins drove the truck to New Orleans. Likewise there is no evidence to support the state attorney’s belief that Collins “watched and knew the procedure” although there was testimony that Collins had previously worked for Institutional Foods, Inc., and that the bank deposit procedures were routine and probably known by its employees which would have included Collins.


author: ROY NOBLE LEE, Justice,

text:
    Ruth T. WHEELER v. Radolfo N. ARRIOLA, M.D.
    No. 53192.
    Supreme Court of Mississippi.
    Feb. 3, 1982.

      Mitchell, McNutt, Bush, Lagrone & Sams, Jean S. Magee, Tupelo, for appellant.
    Jimmy E. McElroy, Fulton, for appellee.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Ruth T. Wheeler appeals from a judgment of the Circuit Court of Itawamba County, Honorable Thomas J. Gardner, III, presiding, reversing the Board of Review, Mississippi Employment Security Commission, which allowed unemployment insurance benefits arising from her discharge while in the employ of Rodolfo N. Arriola, M.D.

The appellant contends that the lower court erred in finding that the cause of her discharge was for misconduct connected with her employment, in reversing the Board of Review’s decision, and in ordering the commission to disallow appellant’s benefits.

Appellant was employed by appellee from March 11,1978, to August 5,1980, when she was terminated by him. Appellee testified that appellant failed to properly post $15 on a July 30, 1980, receipt and $10 on July 10, 1980, and that similar incidents occurred on January 10, June 19 and June 20,1980. He further indicated that appellant permitted persons to give her haircuts in appellee’s office during work hours, which displeased him.

Appellant filed a claim for benefits under the Mississippi Employment Security Law and the claims examiner allowed same, holding there was no evidence, under the law, to support appellant’s discharge for misconduct connected with her work. The employer appellee appealed and the referee, Mississippi Employment Security Commission, determined that appellant’s actions did constitute misconduct, reversed the decision of the claims examiner allowing unemployment benefits and disqualified the appellant for them.

Appellant appealed to the Board of Review, which made the following findings of fact:

FINDINGS OF FACT AND OPINION: The claimant was employed by Rodolfo N. Arriola, MD, Fulton, Mississippi, for some two years as a secretary-receptionist and bookkeeper. She was discharged from her employment on August 5,1980 because the employer was dissatisfied with her work performance, and because of some errors in the bookkeeping procedure. There is no evidence to show that the claimant failed to perform the work to the best of her ability or wilfully failed to follow any instructions given by the employer. The evidence also does not show that any errors in the bookkeeping were due to any wilful or intentional neglect on the part of the claimant or any misappropriation of funds by her. The employer certainly had the right to discharge the claimant if he was dissatisfied with her work performance, but the evidence does not substantiate a finding that the claimant was discharged for misconduct connected with her work, within the meaning of the Law. The disqualification for benefits, therefore, is not warranted.

Accordingly, the decision of the referee was reversed, the disqualification of appellant was cancelled, and she was awarded unemployment benefits. Appeal was taken to the Circuit Court of Itawamba County which reinstated the decision of the referee, disqualifying appellant from benefits.

The threshold question is whether or not the charges against appellant, and her conduct, constituted misconduct under the law, and whether or not the findings and decision of the Board of Review were supported by substantial evidence.

Section 71-5-513, Miss.Code Ann. (1981 Supp.) states the following:

A. An individual shall be disqualified-for benefits:
(2) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the commission, and for as many additional weeks, and fractions thereof, which immediately follow such week, not exceeding twelve (12) weeks, as the commission prescribed in each case.

In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the Wisconsin Court addressed the question of what constituted misconduct in unemployment compensation statutes. The Court held that the meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

In Jacobs v. California Unemployment Insurance Appeals Board, 25 Cal.App.3d 1035, 102 Cal.Rptr. 364 (1972), the Court said:

The conduct may be harmful to employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton, or equally culpable. (25 Cal.App.3d at 1037, 102 Cal.Rptr. at 366)

The general law on the subject is stated in 26 A.L.R.3d 1356:

There is little disagreement that work-connected negligence or inefficiency constitutes “misconduct” within the meaning of the applicable statute precluding a discharged employee from unemployment compensation benefits when of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional and substantial disregard of an employer’s interests or of an employee’s duties and obligations. Conversely, mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, isolated instances of ordinary negligence, or good-faith errors in judgment or discretion are not considered “misconduct” precluding a discharged employee from unemployment compensation benefits. (26 A.L.R.3d at 1358)

The Board of Review found that appellant was discharged from her employment on August 5, 1980, because her employer, appellee, was dissatisfied with her work performance and because she made some errors in the bookkeeping procedure. The board further found that there was no evidence to show that appellant failed to perform the work to the best of her ability or that she willfully failed to follow any instructions given by the employer, and that the evidence did not reflect errors in the bookkeeping were due to any willful or intentional neglect on the part of the appellant or any misappropriation of funds by her. The board stated that the employer had the right to discharge the claimant, if he was dissatisfied with her work performance, but that the evidence did not substantiate a finding against appellant of misconduct connected with her work.

Section 71-5-531 Miss.Code Ann. (1972), provides:

In any judicial proceeding under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.

In Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 116 So.2d 213 (1959), the Court stated:

The legislature has clearly provided that judicial review of decisions of the Board of Review shall be confined to questions of law. (237 Miss. at 747, 116 So.2d at 214)

The principle is well settled that an order of the Board of Review of the Employment Security Commission on the facts is conclusive upon the lower court, if supported by substantial evidence and in the absence of fraud, and the scope of review requires the determination of the sufficiency of the evidentiary basis of the decision. Miss. Emp. Sec. Comm’n v. Fortenberry, 193 So.2d 142 (Miss.1966); Williams v. Mississippi Employment Sec. Comm'n., 395 So.2d 964 (Miss.1981).

We are of the opinion that the finding and order of the Board of Review of the Mississippi Employment Security Commission is supported by substantial evidence. The order of the lower court reversing the decision of the Mississippi Employment Security Commission is reversed and judgment is rendered here reinstating the decision and order of the Board of Review of the Mississippi Employment Security Commission allowing unemployment security benefits for appellant.

REVERSED AND RENDERED.

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

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


text:
    H. D. PITTMAN and Adlaide McCarty Pittman v. Russell SIMMONS and Agnes Elizabeth Simmons.
    No. 53186.
    Supreme Court of Mississippi.
    Feb. 3, 1982.

      Mitchell M. Lundy, Jim McRae Criss, Grenada, for appellants.
    A. E. (Gene) Harlow, Grenada, for appel-lees.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Russell Simmons and Agnes Elizabeth Simmons, husband and wife, filed suit in the Chancery Court of Grenada County, Honorable L. E. Hannaford, Sr., presiding, against H. D. Pittman and Adlaide McCarty Pittman, his wife, seeking to remove clouds upon their property title and for injunctive relief. The chancellor entered a decree in favor of the Simmons and the Pittmans have appealed here.

The appellants assign three errors in the trial below, but the question of whether or not the lower court manifestly erred in finding that the appellants made no claim to the disputed property by adverse possession, and in rendering a decree for the appellees, disposes of all other questions.

In 1941, the appellants occupied a home and lot in the city of Grenada immediately north of the Eastview Subdivision. On March 15„ 1955, they purchased certain property from Charles W. Arneson and Milton J. Percival for the purpose of enlarging the southern part of their lot. They received a deed covering what they thought to be the property involved here, it was surveyed by the city engineer and the appellants constructed a fence along the survey lines, which fence has remained intact to the present time. However, the deed to appellants did not include the disputed property which is described as twenty feet off the north end of Lot No. 6 and Lot No. 7 of the Eastview Subdivision.

On April 10, 1956, appellees purchased Lot No. 6 from Charles W. Arneson and on November 20,1958, they purchased Lot No. 7 from him. At the time, appellants’ fence extended across, and enclosed, the north twenty feet of said Lots 6 and 7. Appellants continued to occupy that part of the lots enclosed by the fence. They had erected and used a small storage building thereon and had planted a garden on the property. Appellants used same and claimed it until June 25,1979, when this suit was filed.

According to the pleadings and the proof, the disputed property is described as:

The North 20 feet of Lot No. 6 and Lot No. 7 in the Eastview Subdivision in the North Half of the Southeast Quarter of Section 17, Township 22 North, Range 5 East, City of Grenada, Grenada County, Mississippi, according to the official plat of record in the office of the Chancery Clerk of Grenada County, Mississippi.

In his finding of fact, the chancellor stated:

[FJurther, the Court finds based upon testimony offered by and on behalf of H. D. Pittman and Adlaide McCarty Pittman that they make no claim to the disputed property by virtue of the Adverse Possession Statute applicable in the State of Mississippi, Section 15-1-13 of the Mississippi Code of 1972, Annotated, as amended; to the contrary, the Court finds that the Defendants, in offering proof as to ownership, relied solely upon the allegation that same had been conveyed to them under the aforementioned Warranty Deed and that they had bought and paid for the subject property.

The decree entered in this cause recited that the appellants elected not to show acquisition of title and ownership of the disputed property by adverse possession, but only claimed the property of which they were record owners. The court further held, as a matter of law, that adverse possession must be pled and proven, otherwise such affirmative defense is waived, and that title cannot vest in a party under claim by adverse possession unless a bill of complaint or cross-bill has been filed by that party. The decree ordered that within sixty days of its date, the defendants (appellants) must remove the fence and improvements placed upon the disputed property and that the complainants (appellees) have full, complete, and peaceful occupancy of same.

The record reflects that, after acquiring a deed to what they thought was the disputed property, the appellants took possession of said land, enclosed same with a fence, built a storage house upon it, cultivated a garden, and claimed and used the land as their own against the world for a period of twenty-five years. At one point in the record, the chancellor said, “Let's get to the elements of adverse possession, if that’s what you are trying to prove rather than ask her a legal question.” Thereupon, Mrs. Pittman testified that she had claimed and used the disputed property for twenty-five years, that she never let anyone else use it, that no one had ever tried to move her fence line, that she would fight for the land and that no one had ever tried to interfere with their ownership. Although the appellants did not file a cross-bill seeking to cancel the claim asserted by appellees, they did deny all averments of ownership on the part of appellees, and they charged that they have used said property in the same way for the past twenty-five years. We think that the averments of the answer were sufficient to raise the defense of adverse possession. Downing v. Starnes, 35 So.2d 536 (Miss.1948); Dochterman v. Marshall, 92 Miss. 747, 46 So. 542 (1908).

The appellants thought that they had bought the disputed property and that their deed correctly described it. Even so, they vehemently claimed the land for the period of twenty-five years, though under the mistaken belief that it was included within the calls of their deed. The chancellor apparently thought they had abandoned their claim of adverse possession when they insisted that their deed covered all the property, including the disputed 100 X 20 foot strip. In Alexander v. Hyland, 214 Miss. 348, 58 So.2d 826 (1952), the Court said:

In the case of Metcalfe v. McCutchen, 60 Miss. 145, and Jones v. Gaddis, 67 Miss. 761, 7 So. 489, the Court held that even though a party has claimed the land in controversy as being within the calls of his deed and has relied upon his deed as the foundation of his claim, when in fact the land was not within the calls of his deed, yet, if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession; that it is the fact of adverse possession under the claim of right for the statutory period that establishes title. In its opinion in the Metcalfe case, the Court said: “We adopt the views of those courts which hold that that possession is adverse in which the holder claims, and intends to claim title, without regard to the fact that the possession and claim is held and made under an honest, but mistaken, belief that the land is within the calls of his deed. It is the fact that possession is held, and that title is claimed, which makes it adverse possession, or claim, or both, though they may have resulted from a mistake; but it is their existence and not their cause that the law considers, and existing, they constitute adverse possession.”
In the ease of Evans v. Harrison, 130 Miss. 157, 93 So. 737, 738, the Court held that where a person enters into the possession of land under the belief that it lies within the calls of his title deed, and occupies it adversely against the world for the statutory period under such belief, he will acquire title thereto, although it is shown later that the land does not lie within the calls of his deed, but lies within the calls of the deed of his adversary, who has paid taxes thereon during the entire period of the adverse possession. In that case the Court said: “The decisions of this court fully sustain the doctrine that it does not make any difference whether the land lay within or without the call of the title deed of the person in possession, where he in good faith, though mistakenly, thinks the land lies within the calls of his own deed, when in fact it actually lies within the calls of his adversary’s deed. This has been distinctly held by this court in a number of cases.”
(214 Miss. at 357-358, 58 So.2d at 829-830)

The evidence is overwhelming that appellants claimed the disputed property and established title by adverse possession. Although appellants did not seek by cross-bill to cancel appellees’ claim to the property and confirm and quiet title in themselves, their defense of adverse possession was raised sufficiently in the answer and denied any relief to the appellees. Therefore, the judgment of the lower court is reversed and judgment is rendered here for the appellants dismissing the bill of complaint with prejudice.

REVERSED AND RENDERED.

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


author: DAN M. LEE, Justice,

text:
    Everett BRACEY v. Betty Jean Galloway BRACEY.
    No. 53268.
    Supreme Court of Mississippi.
    Feb. 3, 1982.

      Johnson & Mills, Jerry L. Mills, Clinton, for appellant.
    Albert Dickens, Jr., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Hinds County wherein Betty Jean Galloway Bracey, petitioner/appellee, sought an increase in child support payments for the parties’ four minor children, who were placed in appellee’s custody, control and care by a January 15, 1977, final decree for divorce. The divorce decree awarded appellee child support payments in the amount that their children were entitled to receive from social security and Veterans Administration benefits due to their father’s total permanent disability. At the conclusion of the hearing, the chancellor found a material change in circumstances had occurred since the rendition of the divorce decree, thereby awarding an increase in support payments in the amount of $100 per month per child. Aggrieved of this finding, Everett Bracey, respondent/appellant, appeals and assigns the following error for review:

No material or substantial change in the circumstances of the parties relative to the after-arising circumstances following the original decree were shown sufficient to justify modification of the original decree.

Everett Bracey and Betty Jean Galloway Bracey were married August 26, 1967. Five children were born during this union. Everett subsequently filed for divorce charging Betty Jean with habitual cruel and inhuman treatment. On June 15, 1977, the Chancery Court of Hinds County granted Everett a divorce on the aforementioned grounds. The final decree awarded Betty Jean permanent care, custody and control of the minor children, and also awarded child support in an amount equal to all monies or benefits Betty Jean and the children were entitled to receive from the Veterans Administration and Social Security Administration, Everett being permanently and totally disabled.

At the time the divorce was granted, Betty Jean was employed by Packard Electric where she netted approximately $249 per week plus $50 withheld for deposit in the credit union. She was subsequently disabled from a ruptured disc, which required her to cease her employment activities. During her period of disability, Betty Jean drew $215 weekly from Packard, which would continue until January 21, 1982, and thereafter at $770 per month for eight years if the disability continued.

Betty Jean subsequently filed her petition to modify the award of child support provided for in the June 1977 decree for divorce. Although she admitted her total monthly income ran about $1,514.50, and her living expenses amounted to approximately $1400 per month, Betty Jean asserted she was unable to provide for the children’s necessities. At the time this action was instituted, only four children remained at home. The ages of the children were eighteen, seventeen, fifteen and ten. The oldest of these four children neither worked nor attended school, even though social security benefits would have increased had the youth been scholastically enrolled.

Everett Bracey, who was permanently and totally disabled, received approximately $2466 per month in social security and Veterans Administration benefits. On March 26,1980, he also received a lump-sum award of $68,000 from the government. Of this lump sum, Everett asserted he had only $79 remaining after paying $18,000 down on a house, lending his oldest child $10,000 to buy a car, giving each child $1000, paying $5000 down on a ear, paying his wife $400, and paying $2080 for insurance.

At the conclusion of the hearing, the chancellor found a material change in circumstances had occurred since the rendition of the parties’ divorce; therefore, Everett was ordered to pay an additional $100 per child per month, bringing support payments to $990 per month.

Did a material change in circumstances occur subsequent to the rendition of the June 15, 1977, decree so as to warrant an increase in child support payments?

To justify a change or modification of an original decree for divorce, there must be a material change in circumstances of the parties arising subsequent to the rendition of the original decree. Shaeffer v. Shaeffer, 370 So.2d 240 (Miss.1979). In McKee v. McKee, 382 So.2d 287 (Miss.1980), this Court recognized that children’s expenses increase with age, and that inflation is a factor in the determination of whether a material change in circumstances has occurred.

The chancellor’s increase in the children’s support from $6,000 to $10,000 per year is amply supported by the evidence adduced. The children are older (one is in college), and all of their expenses have greatly increased, due in no small measure to an average inflation factor of 8% a year for six years (1972-1978).
(382 So.2d at 289)

Appellee averred that a change in circumstances occurred due to her disability and the fact she was earning $84 a week less than at the time the divorce decree was rendered. On examination, she testified as follows:

A. I haven’t worked since the 13th of January. It was about two weeks after that I went in the hospital.
Q. Now, prior to the time you were disabled, how much were you able to make working for Packard?
A. In my bring-home pay was 249 a week.
Q. $249 a week?
A. Right. And I was putting $50 into the Credit Union.

When modification of alimony has been sought, a slight decrease or increase in income has been held insufficient to constitute a material change in circumstances. In Keller v. Keller, 230 So.2d 808 (Miss.1970), this Court held:

Mrs. Keller contends that no evidence of a material change in circumstances was presented that would justify a reduction of the amount of insurance to be maintained for Mrs. Keller’s benefit from $50,000 to $15,000. There has been a slight increase in Keller’s gross income, and depending on the amount of his 1968 income taxes, a possible small reduction in net income; however, the change in his income is not a material one. According to his testimony concerning his living costs, loan payments, high house rent in New Orleans, and other financial responsibilities, his financial situation is not encouraging; but the facts do not justify a finding of a material change in the circumstances of which account may be taken in determining whether the original decree should be modified. Therefore, the trial court erred in modifying the original decree by reducing the amount of life insurance required to be maintained for Mrs. Keller’s benefit.
(230 So.2d at 809-10)

However, there is no doubt that the $68,-000 lump-sum benefit received by appellant was a major factor in seeking modification. The petition was filed immediately following appellant’s receipt thereof.

Once again, where the subject was modification of alimony, this Court has stated that a substantial increase in earnings by one party since the rendition of the divorce decree should be considered by the chancellor. Spradling v. Spradling, 362 So.2d 620 (Miss.1978). Although the present case concerns child support, many of the same guidelines are used in determining child support and alimony. Compare Bunkley & Morse’s Amis, Divorce and Separation in Mississippi, §§ 6.08 and 9.02 (1957).

The children in the present case had advanced in age since the decree for divorce was rendered in 1977. Inflation has also continued to rise. The earning capacity of appellee had changed substantially since the rendition of the original decree so as to constitute a material change in circumstances. The fact that appellant received a substantial increase in his monthly benefits should also be considered. A chancellor is given broad discretion in matters relating to support and custody of minors.

It is also unclear from the record what the lump-sum payment represented, and whether it was in lieu of future benefits or whether his monthly benefits would continue. Therefore, this Court cannot say the chancellor was manifestly wrong in finding a material change of circumstances had occurred in the present case. However, that is not to say that the chancellor was correct in awarding an increase of $100 for each child when the eldest (age eighteen) child at home would not work or go to school. We quote from testimony of appellee as follows:

Q. Is he going to school?
A. No, he’s not.
Q. Do you know whether or not if you required him to go to school he would be eligible for further benefits from the VA?
A. Well, when school started, my former husband told him that if he would go to school, I think that the VA would have paid him about $350 a month or whatever. But he didn’t go. He enrolled in school for about a month and then he just dropped right back out.
******
Q. Is this child doing anything?
A. Not at the present.
Q. Not working and not in school.
A. No.
Q. So you really are supporting him out of choice. Is that correct?
A. Yes, sir, I am.
Q. He’s capable of earning a living on his own, though, isn’t he?
A. Yes, if he’ll get out and do it, yes.

Bunkley & Morse’s Amis, Divorce and Separation in Mississippi, section 9.02 (1957), suggests a father is not required to support a child in idleness when he is able to work or attend school. It is uncontra-dicted in this case that the eighteen-year-old male child had refused to go to school and would not work. It is further uncon-tradicted that if he had continued to go to school, the Veterans Administration would pay him approximately $350. The inescapable conclusion is that not only would this child not go to school and not work, but by refusing to go to school the Veterans Administration and social security benefits to the appellee for the benefit of this child were reduced. Certainly, no father should be required to support a child in idleness, particularly when that idleness would cause a reduction in governmental benefits to the family unit. It therefore logically follows that no such father should be required to increase the child support for such a child, which was done here by the chancellor in awarding a $100 per month increase for each of the four children. We therefore, find that the chancellor was manifestly wrong in awarding an increase of $100 per month for the support and maintenance of the eighteen-year-old child.

For the foregoing reasons, the Court affirms the chancellor’s award increasing the child support of each of the three children, ages ten, fifteen and seventeen, totaling $300 per month, plus the award of $250 for attorney’s fees, and reverses the chancellor on his award of $100 for an increase in the support of the eighteen-year-old child who has quit school and refuses to work.

Appellee has asked this Court for an award of attorney’s fees for representation on this appeal. With an income of $1,514.50 per month, in addition to the $300 per month increase awarded herein, we feel that appellee has sufficient means to meet the obligation of attorney’s fees on appeal. Aldridge v. Aldridge, 200 Miss. 874, 27 So.2d 884 (1946); and Tighe v. Tighe, 239 Miss. 666, 123 So.2d 623 (1960). The attorney’s fees for the appellee on appeal are denied.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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