author: REDMANN, Chief Judge.

text:
    Lynn M. Zimmer, wife of Ronald J. WIGGINTON, Sr. v. Ronald J. WIGGINTON, Sr.
    No. 12700.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 19, 1982.

      Floyd J. Reed, New Orleans, for plaintiff-appellant.
    Manuel A. Fernandez, Chalmette, for defendant-appellee.
    Before REDMANN, C. J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

Plaintiff mother appeals from a judgment that increased defendant father’s child support obligation from $100 to $125 bi-weekly and that denied her attorney’s fees while awarding an arrearage of $6,600. The mother asks a greater increase in support plus attorney’s fees. The father neither appeals nor answers the mother’s appeal. We increase the support award but otherwise affirm.

The $100 amount had been determined in July 1975 and continued in the separation and divorce judgments. The child was about 7 years old in July 1975 because he was 12 as of the November 1980 trial of this matter.

The father earned $30,488.49 in 1978, $28,848.56 in 1979 (when a strike prevented his working from February 4 to April 15), and $8,880 up to November 12, 1980 (when strikes prevented his working most of the year). His latest recorded earnings indicate that for a full work year his earnings would significantly exceed $30,000. In addition the father has had the advantage of the use of the former community’s house (although he of course is paying the monthly mortgage note, about $238).

The mother earns $1,090 monthly, or $13,-080 annually. Thus, even apart from any consideration of her personal services in attending the child, see Gaidry v. Gaidry, 380 So.2d 644 (La.App. 1 Cir. 1979), the mother is not in a position to contribute as much financially to the support of the child as is the father. The child’s financial needs are fairly shown to approximate $600 a month, including $50 for orthodontics and $50 for persons to sit with him when the mother is not available, $400 for the common expenses of the household of his mother and himself and automobile costs, and $100 for his personal costs such as lunch and spending money, clothing, school items, haircuts and the like. Those are about the lowest amounts we can estimate, even disregarding many items the mother claimed as needed.

Considering both that the mother contributes substantially in a non-monetary way and that her disposable income (after providing her own essential needs) is so much less than that of the father (although he has remarried and his wife has no earnings), we conclude that a fair division of the child’s needs would require the father to pay about two thirds. We therefore determine that the bi-weekly child support should be increased to $185.

On the question of attorney’s fees in respect to past due child support, we first observe that the statute providing fees, La. R.S. 9:305, was enacted by Acts 1977 No. 462, effective September 9, 1977. Thus no fees are allowable in respect to the arrear-age before that date, for the statute is not retroactive; Almond v. Almond, 357 So.2d 875 (La.App. 1 Cir. 1978), writ denied 359 So.2d 1308.

After the effective date of the 1977 Act, the statute provided that the court “may” award fees, leaving much discretion to the trial court. The arrearages found during the effective period of the 1977 version of the statute only amounted to $600, and the husband disputed that arrearage, testifying that he had paid in cash. Although the trial court held against him on that $600, we cannot find a clear abuse of its discretion in failing to grant fees that it “may” award, under the circumstances.

The statutory wording was changed to “except for good cause, the court shall award” fees by Acts 1979 No. 326, effective September 7, 1979. After that date the husband’s nonpayment occurred while he was not working because of labor strikes, and the trial judge might not unreasonably have found that a “good cause” within the statute.

We therefore conclude that the trial judge acted within his authority in declining to award attorney’s fees.

The mother is entitled to legal interest on past due support payments from their due dates, Weeks v. Weeks, 349 So.2d 1008 (La.App. 2 Cir. 1977).

Finally, because we do increase the amount of support effective as of the trial court’s judgment, resulting in creating an arrearage, we do note that the father produced $1,276 in canceled checks payable to and endorsed by the mother (in addition to another $100 check payable to her and processed by the banks without her endorsement and without a showing of other disposition such as deposit to payee’s account). The mother at first denied receiving child support or any other money from the father during the period of the checks, but then admitted her endorsement of the checks. The trial judge did not explain why he did not give credit for those checks, and the question is only indirectly before us because of our increase’s being effective the date of the trial court’s judgment. We deem it impliedly prohibited by La.C.C.P. 2164, to allow the mother to recover for the arrear-age our judgment will create, without allowing the father a credit for the $1,276 portion of the arrearages awarded but unproven.

Amended to increase bi-weekly support to $185, effective the date of the trial court’s judgment (but with a credit of $1,276 against any arrearage resulting from our retroactive increase of $60 bi-weekly), and to award legal interest on the arrearages from due date until paid, and to cast the father for all costs.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    CONTINENTAL INSURANCE COMPANY, Plaintiff-Appellant, v. Joseph LUTE, Jr., Defendant-Appellee.
    No. 82-7.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.
    Rehearing Denied Aug. 30, 1982.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Joseph W. Greenwald, Shreveport, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiff-appellant, Continental Insurance Company (hereafter Continental), instituted this action against defendant-ap-pellee, Joseph Lute, Jr., seeking a declaratory judgment decreeing that Continental is entitled to discontinue payment of workmen’s compensation benefits to Lute. From a judgment of the trial court sustaining Lute’s exception of res judicata, Continental has perfected the present appeal.

The facts are undisputed. On January 21, 1978, while in the course and scope of his employment, defendant, Joseph Lute, Jr., was involved in an automobile accident in which he received permanently and totally disabling injuries. At the time of the accident, Lute was employed by Pendleton Guard and Security Service, Inc. (hereafter Pentleton) and was working at the instance of his employer at the Hercules, Inc. plant (hereafter Hercules) located near Lake Charles, Louisiana. Plaintiff-appellant, Continental, is the workmen’s compensation insurer of Pendleton. The accident occurred when William J. Rogers ran a stop sign and collided with the vehicle driven by Lute and owned by Hercules. As a result of the aforesaid accident, Lute instituted a tort action against Rogers, his insurance carrier, Dairyland Insurance Company, and Hercules’ automobile liability insurance carrier, Aetna Life and Casualty Company, the latter, pursuant to the uninsured motorist provisions of the policy issued to Hercules on the automobile driven by Lute. Thereafter, Continental intervened in the aforesaid suit to recover those amounts paid to Lute in workmen’s compensation benefits and for medical expenses.

Rogers and Dairyland were dismissed from the suit upon payment of $5,000.00 representing the extent of the liability insurance policy issued by Dairyland to Rogers. The aforesaid sum was paid to Continental pursuant to its intervention. The remaining action against Aetna was tried and the trial court held in favor of plaintiff and against Aetna awarding to plaintiff the sum of $693,750.00 plus legal interest. Continental’s intervention was dismissed since Lute’s suit against Aetna was filed pursuant to the uninsured motorist provisions of the automobile liability insurance policy issued by Aetna to Hercules. The trial court judgment, insofar as it rejected Continental’s claim for reimbursement from the proceeds of the judgment rendered in favor of Lute and against Aetna, was affirmed by us on appeal by judgment rendered February 4, 1981. See Lute v. City of Lake Charles, et al., 394 So.2d 736 (La.App. 3rd Cir. 1981).

On or about April 2, 1981, Aetna paid to Lute a sum in excess of $800,000.00 in satisfaction of the aforesaid judgment. Thereafter, Continental filed the instant petition for declaratory relief seeking a judgment decreeing that it is entitled to discontinue payment of workmen’s compensation benefits to Lute in light of Lute’s sizeable recovery from Aetna.

The issue presented on appeal is whether the present suit for declaratory relief is barred by the doctrine of res judicata.

In order for an exception of res judi-cata to be maintained, the subsequent action must (1) be between the same parties, (2) be based on the same cause of action, and (3) the thing demanded must be the same. La.C.C. Art. 2286; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La. 1976); McKean v. Campbell, 372 So.2d 652 (La.App. 1st Cir. 1979).

In McKean v. Campbell, supra, our brethren of the First Circuit stated:

“Louisiana jurisprudence is very clear that res judicata is stricti juris. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974), New Orleans Mortgage Co., Inc. v. City of Kenner, 362 So.2d 1217 (La.App. 4th Cir. 1978). A final judgment has the authority of res judicata only to those issues presented in the pleadings and conclusively adjudicated by the court, and where anv doubt exists the second suit will be maintained. McNeal v. State Farm Mutual Automobile Insurance Co., 278 So.2d 108 (La. 1973), Olsen Engineering Corporation v. Hudson Engineering Corporation, 289 So.2d 346 (La.App. 1st Cir. 1973), writ denied, 293 So.2d 170 (La.1974).”

It is readily apparent, and presumably the parties agree, that the demand in the instant matter and in the prior suit entitled Lute v. City of Lake Charles, supra, is based on the same cause of action and that such demand is between the same parties. However, Continental urges that the thing demanded in the present case is not the same, thus, the doctrine of res judicata is inapplicable. We disagree. As stated by the trial judge in his written reasons for judgment:

“The thing demanded in the appealed case was whether Continental was entitled to any of the proceeds owed by Aet-na to Lute under its UM coverage. The thing demanded in the instant action is whether Continental is entitled to discontinue compensation payments it is presently making due to Lute receiving a large sum of money (over $800,000.00) from Aetna. Regardless of how the thing demanded is phrased, that which was demanded as intervenor in the appealed case and that which is being demanded in its capacity as plaintiff in the instant case are the same: relief from its obligation to pay workmen’s compensation benefits out of the proceeds owed or paid by Aetna to Lute.”

After thoroughly reviewing plaintiff’s petition, we conclude, as did the trial court, that the thing demanded in the instant suit is the same as that demanded in the prior action. Therefore, all of the necessary requisites for the application of the doctrine of res judicata as set forth in La.C.C. Art. 2286 have been met under the instant circumstances.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiff-appellant, Continental Insurance Company.

AFFIRMED.

      . In addition, the trial court, on its own motion, noted that Continental’s petition failed to state a cause or right of action. See LSA-C.C.P. Art. 927.

      . In Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir. 1978), writ denied, 363 So.2d 922 (La. 1978), the court held that a workmen’s compensation insurer may not recover from an Uninsured Motorist carrier those amounts it has paid under the Workmen’s Compensation law to the employee whose compensable injury was caused by an uninsured/underinsured tort-feasor.


author: LEAR, Judge.

text:
    Mrs. Romaine PELLERIN, Individually and On Behalf of the Estate of the Late Richard A. Pellerin v. GULF INSURANCE COMPANY, Bernard W. Tabony and Susan B. Tabony.
    No. 14835.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.
    William M. Detweiler, New Orleans, for plaintiff, appellant.
    Robert N. Ryan, New Orleans, for defendant, appellee.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

This suit arises from an accident in which plaintiff’s husband, Richard A. Pellerin, was struck and killed by an automobile driven by defendant, Susan B. Tabony. Also named as defendants in this suit were Mrs. Tabony’s husband, Bernard W. Tabony, the owner of the automobile, and the Tabony’s liability insurer, Gulf Insurance Company.

The accident at issue occurred on the bridge between Bay St. Louis and Gulfport, in the State of Mississippi. While both parties to the suit were domiciled in Louisiana, and therefore suit was filed in Louisiana, the substantive law of Mississippi, both statutory and jurisprudential, was applied by the trial court. After a trial on the merits, the court found that Mrs. Tabony was not negligent in any degree and, therefore, not liable to plaintiff under the Mississippi law of comparative negligence. Plaintiff’s suit was dismissed and from that dismissal she has appealed.

On the morning of May 5, 1976, at approximately 11:00 a. m., plaintiff and her late husband were fishing off the south side of the Bay St. Louis bridge (U. S. Highway 90) in Harrison County, Mississippi. Although on the same side of the bridge, Mr. and Mrs. Pellerin were fishing some distance from each other. This bridge carries a four lane highway which is divided by a raised median with two lanes on the south side of the bridge proceeding east and two lanes on the north side proceeding west. Mrs. Tabony, and her three year old child, were driving across the bridge in an easterly direction on its southern side. Except for Mr. Pellerin and her three year old child, Mrs. Tabony was the only person to actually witness the accident.

Mrs. Tabony testified that she had entered the bridge in the right-hand lane driving at approximately forty-five miles an hour. Being aware of some construction taking place on the bridge, she stated that she wanted an unobstructed view ahead, and therefore decided to pass a red car which was in the right-hand lane in front of her. As she pulled into the left-hand lane to pass, she increased her speed to fifty miles per hour. She testified that when she was about to reach the red car, and only a few feet from its rear bumper, she saw something flash to her right in front of her and in the next instant Mr. Pellerin ran into her lane in front of her. Mrs. Tabony further testified that at that moment Mr. Pellerin, appearing to be surprised by the presence of her car, stopped and slightly turned towards Mrs. Tabony and raised his left hand toward her oncoming car. Mrs. Tabony stated that this all happened very quickly and that she had no opportunity to apply her brakes or take other evasive action. She also stated that the red car, which she was only slightly behind, obstructed her view in that direction.

Referring to the Mississippi case of Williams v. Moses, 106 So.2d 45 (Miss.1958), the trial court stated that the law of Mississippi, with reference to a motorist’s duty to a pedestrian, imposes a duty to use reasonable care, to be alert for and keep a proper lookout for persons on the highway and to avoid injuring such persons that the motorist sees or should see.

We find that the Mississippi case of Oglesby v. Bagby Hall Motors, Inc., 209 So.2d 644 (Miss.1968) is controlling. In that case, the accident occurred on a four lane roadway, with the driver proceeding in the inner of the two northbound lanes of traffic. The driver testified that he was alongside of and passing an automobile traveling in the same direction and that, while passing, the pedestrian walked in front of his car from the lane occupied by the vehicle which he was passing. He stated that he was unable to apply his brakes or avoid the accident before the impact and that he had not seen the pedestrian previously for the reason that the vehicle he was overtaking on the right blocked his view in that direction. The testimony indicated that the accident occurred very fast, “in a split second,” and the driver testified positively he was unable to.avoid the accident.

Plaintiff called two experts in the field of accident reconstruction to testify concerning this accident. These experts testified only with regard to mathematical computations, and from these computations concluded that the accident could not have happened the way Mrs. Tabony described it. However, both expert witnesses stated that they lacked sufficient information to enable them to actually reconstruct this accident or to draw conclusions as to how it happened or whether Mrs. Tabony was negligent.

Expert testimony is to be weighed by the trier of fact in the same manner as other evidence. The weight of opinion testimony is determined by the professional qualifications and experience of the expert and the findings upon which his opinion is based. Middle Tennessee Council, Inc., Boy Scouts of America v. Ford, 274 So.2d 173 (La.1973); Necaise, Inc. v. Vicknair, 391 So.2d 1347 (La.App. 4th Cir. 1980); Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir. 1980).

The trial court chose to believe Mrs. Tabony’s version of the accident, concluding in its written reasons for judgment that Mrs. Tabony did not see the deceased until he suddenly appeared in her lane. While there may have been some conflict between the testimony of Mrs. Tabony and the expert witnesses, we find that the trial court was not clearly wrong in finding Mrs. Tabo-ny free of any negligence. Thus, in conformity with the standard of appellate review announced in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), the judgment of the trial court will not be disturbed.

For the foregoing reasons, the judgment of the trial court in favor of defendants, Susan B. Tabony, Bernard W. Tabony, and Gulf Insurance Company, and against plaintiff, Mrs. Romaine C. Pellerin, dismissing plaintiff’s suit, is hereby affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff, Mrs. Romaine C. Pellerin.

AFFIRMED.


text:
    Ronald Lee COBB v. Carroll MATHERNE, Kenneth Matherne and the Estate of Lee Matherne.
    No. 14855.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.
    Michael J. Samanie, Houma, for plaintiff and appellant.
    H. Minor Pipes, Sr., Joseph L. Waitz, Houma, Robert J. Zibilich, New Orleans, for defendant and appellee.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

This suit was brought by Ronald Lee Cobb (Cobb) against Carroll Matherne, Kenneth Matherne and the Estate of Lee Math-erne, claiming damages for injuries suffered as a result of an assault and battery.

Prior to trial, plaintiff settled with all but Carroll Matherne. At the time of the alleged incident Cobb was a full time deputy sheriff and Lee Matherne was a candidate for sheriff against Cobb’s employer. Kenneth was Lee’s son; Carroll was Lee’s brother.

The trial judge’s findings of fact are set out in well written reasons for judgment as follows:

“The preponderance of evidence shows as follows:
“On this date said Ronald Lee Cobb was employed as a deputy sheriff by the then incumbent sheriff, who was running for re-election. , Plaintiff was off duty, out of uniform, in his personal private motor vehicle, not marked as a sheriff or police vehicle, but on which was [sic] signs advertising the then incumbent sheriff for re-election. He was waring a pistol in a holster and his badge was in his wallet which was in his pocket. If he was on duty, it was not regular police duty. He was driving on West Main Street with said political advertisement on his car.
“When he approached the Texaco Service Station located about one-half (%) mile South of Broadmoor Subdivision in the Parish of Terrebonne, State of Louisiana, with the said service station being on his left and plaintiff driving in the fartherest [sic] of two traffic lanes, going in the same direction, Kenneth Matherne, the son of Lee Matherne, the latter being a candidate for sheriff in the upcoming election, was driving a motor vehicle off of the service station and onto the highway (West Main Street), entering the left traffic lane. A lady approaching in her motor vehicle in the left traffic lane slowed down and turned her vehicle partially into the right traffic lane occupied by the plaintiff. The plaintiff in turn reacted by driving his vehicle onto the right shoulder of the road and then back on to the road and right traffic lane.
“Kenneth Matherne was driving a motor vehicle on which he had election advertisement soliciting the public to vote for his father in the upcoming sheriff’s election.
“The most prominent feature of two vehicles was the election material on them.
“Both recognized the competing election activity of the other.
“Plaintiff, driving in the right traffic lane caught up with Kenneth Matherne driving in the left traffic lane and plaintiff signalled to him to pull over and stop and plaintiff testified he displayed his badge.
“At this point, and thereafter, the plaintiff declared that he did not have any intention to arrest Kenneth Matherne or give him a traffic citation; but that he wanted to talk to him about Kenneth Matherne’s reckless entry into the highway.
“Kenneth Matherne did not stop. He drove on and to the Lee Matherne Election Headquarters on West Park Avenue.
“Instead of letting the matter pass, plaintiff followed Matherne to the Matherne’s election headquarters, intent on talking to Kenneth Matherne about the event.
“What happened there is best stated and more accurately related by Mr. Langdon Anderson, whose testimony is reported on pages 197-212 et seq., inclusively, which I make a part hereof by reference.
“I was impressed favorably with Mr. Langdon Anderson’s conduct as a witness. His answers were immediate and direct. There was no evasion, no inconsistencies. He responded on cross examination with the same directness as on direct examination. I believe he testified truly as to that which he witnessed. I have weighed the fact that he was working for the election of Lee Matherne by answering the phone and have concluded such would not and did not color or affect his testimony.
“It is noted that the plaintiff still did not make an arrest or issue a citation to Kenneth Matherne, but still insisted that he wanted to talk to Kenneth Matherne. They argued back and forth, not just about the driving event but about election events such as who was tearing down whose signs and etc.
“Mr. Anderson characterized it as; 1_ just normal argument, you could tell both of them were mad at each other.’
“Here you do not have an event of the officer of the law issuing a traffic citation or arrest. It is more like two young men competing in electioneering, responding to territorial and other competitive instincts, one not wishing the other to have advantage.
“After Mr. Anderson broke up the argument by sending Kenneth Matherne into headquarters he learned Cobb was a deputy sheriff.
“Quoting Anderson:
‘Then I told him that, why don’t we just, it wasn’t that important, why didn’t we let it drop instead of creating a disturbance.’
“Anderson quotes the plaintiff as saying: ‘_It was important to him _
and plaintiff persisted in continuing the disturbance.
“Mr. Anderson was there. He was in a position better than all of us to evaluate the situation. I accept his evaluation as being true.
“The matter went from bad to worse.
“While plaintiff and Kenneth Matherne were talking, his mother came up. Later Mr. Lee Matherne and Carroll Matherne drove up. Argument continued at close quarters. Mrs. Matherne fell down. Plaintiff pushed Lee Matherne. Lee Matherne hit defendant in the stomach and elsewhere. Ronald Lee Cobb, set back by the blows, attempted to or did pull his pistol. To prevent the use of the gun on Lee Math-erne, Carroll Matherne hit plaintiff with his fists and disarmed the plaintiff. Carroll Matherne recovered the pistol from the ground, unloaded it and threw it over the house.
“Carroll Matherne had reason to believe that plaintiff might use the gun by shooting his brother. He was justified in disarming plaintiff, even though plaintiff was a deputy sheriff, off duty and out of uniform.
“The court finds that the evidence proves by a preponderance of the evidence that the plaintiff exercised poor judgment, was unreasonably aggressive throughout, demonstrated at least two overt acts, pushing Lee Matherne and drawing or attempting to draw his pistol on Lee Matherne, all of which provoked and justified the action by Carroll Matherne to disarm plaintiff.
“I do not rely solely on the testimony of Langdon Anderson. The testimony of other witnesses for the defendant reasonably corroborate [sic] Mr. Anderson’s testimony and forms the preponderance of the evidence.
“Evidence alleging tendency of Carroll Matherne to commit acts of violence and aggression in other cases is not relevant here; especially, when it is shown that, under the facts and circumstances of this case, he was justified in his conduct.
“The plaintiff, Ronald Lee Cobb, has the burden to prove his case by a preponderance of the evidence. The plaintiff has failed to do so. Prior to or during the trial, settlement was had between Ronald Lee Cobb and the defendants, Kenneth Math-erne and the estate of Lee Matherne.
“Plaintiff has failed to prove by a preponderance of evidence the liability of any of the defendants.”

It is a well settled principle of law that when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court will not disturb this factual finding in absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find no such error in the factual determination of the trial court and therefore adopt the reasons stated therein and affirm the trial court’s judgment at appellant’s costs.

AFFIRMED.


text:
    CITY OF HORN LAKE, MISS. v. DELTA UTILITY CO. and First Mississippi Corp.
    No. 53172.
    Supreme Court of Mississippi.
    May 26, 1982.
    Rehearing Denied Aug. 25, 1982.
    Taylor & Whitwell, Ltd., Ronald L. Taylor, Jack R. Jones, III, Southaven, Wayne C. Gulledge, Troutt & Moore, Nat G. Troutt, Senatobia, for appellant.
    Wise, Carter, Child & Caraway, Natie P. Caraway, Charles T. Ozier, Jackson, James R. Johnson, III, Senatobia, for appellees.
    Before WALKER, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Eminent Domain Court, Tate County; Andrew Baker, Judge.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    CITY OF STARKVILLE, Mississippi v. Ken HARRISON and Teresa Harrison.
    No. 53270.
    Supreme Court of Mississippi.
    July 14, 1982.
    Rehearing Denied Aug. 25, 1982.
    Gholson, Hicks & Nichols, John W. Cro-well, Columbus, for appellant.
    Stark &' McAlpin, William D. Stark, Starkville, for appellees.
    Before PATTERSON, C. J., WALKER, P. J., and DAN M. LEE, J.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Oktibbeha County wherein Ken Harrison and Teresa Harrison, plaintiffs/appellees, recovered damages in the amount of $2700 from the City of Starkville, Mississippi (city), defendant/appellant, in an action predicated upon the eity’s negligence in connecting electrical service to the Harrison’s vacant apartment. Following the connection of electrical power to the Harrison’s apartment, a fire erupted destroying numerous items of personal property belonging to the Harrisons who had not completed their move into the apartment. From an adverse verdict and judgment the city appeals. We reverse.

Ken and Teresa Harrison were married on August 4,1979. On August 1,1979, they leased Apartment 5E at the Parkside Apartment Complex in Starkville, Mississippi. The couple began moving certain items into the apartment on Saturday, August 11, 1979. However, there was no plan to occupy the apartment until the following weekend. Most of the items moved into the apartment were gifts the couple had received in connection with their wedding.

On August 9, 1979, Ken Harrison called the City of Starkville Electric Department to inquire as to information regarding the connection of electrical service to the apartment. When Ken asked for a specific date on which the connection could be made, he was allegedly told that no specific date could be given due to the amount of connections requested at that time of year. Ken expressed his desire that the power be supplied by Friday, August 17, 1979, when his wife had planned to return to the apartment. Teresa Harrison prepared a check for the amount of the deposit and attached a note stating she would be at the apartment on Friday, August 17, 1979.

The power connection' was evidently made on August 16, 1979, while the apartment was vacant. An eye on the stove was apparently in an on position and subsequently ignited boxes stacked on or near the stove. A similar situation had occurred in the city of Starkville in the summer of 1975.

According to city electric department officials and employees, electrical service was not connected in the absence of a specific date by a customer. Where a deposit was mailed in and no specific date requested, service was generally made on the date the deposit was received. Gwen Perkins, who prepared the meter order for the Harrisons, testified to the contrary. She asserted if a deposit by mail was received without a specific cut-on date, she withheld service until further notice by the customer. However, where specific orders accompanied the deposit, service was made on the date requested.

The jury returned a verdict in favor of the Harrisons and assessed their damages at $2700. Final judgment was entered accordingly.

I. Did the trial court err in failing to grant appellant’s request for a peremptory instruction?

Electrical companies are required to exercise the highest degree of care in dealing with their product, which is a deadly agency. However, the degree of care does not contemplate that such companies become absolute insurers regardless of fault. Tallahatchie Valley Electric Power v. Clinton, 347 So.2d 348 (Miss.1977).

26 Am.Jur.2d, Electricity, Gas and Steam, section 105 (1966), states in part the general rule as to liability for defective wires or appliances beyond the control of the company supplying the electricity:

It is generally held that where the electric wires or other appliances which have caused injury are not owned or controlled by the company furnishing the power, such company is not liable for the damage sustained. This rule has been held applicable to injuries to the person or property of the consumer who owns and controls or maintains such wires or appliances, and to injuries to third persons or trespassers, including an employee of a consumer, though in the case of injuries to third persons a contrary result has been reached. It has been held that where current is delivered to a consumer for use in appliances leased or furnished him by the company, there is no liability on the part of the company for injuries to third persons which arise from defects in such appliances.
The view is taken that both as to consumers and other persons who may be damaged by reason of the condition of wires and appliances controlled and maintained by the consumer, unless the current is supplied with actual knowledge of such conditions, the responsibility of the company supplying electricity ends when connection is properly made under proper conditions and it delivers the current in a manner which will protect both life and property. There is authority that the supplier of electricity is under no obligation to inspect such wires or appliances, (emphasis ours.)

Appellant contends it had no other duty in the present case than to make sure proper connections were made absent actual, knowledge of the fact that appellees’ stove was left in the on position. As a general rule, there is no duty to inspect poles, wires or appliances before supplying electrical power where such poles, wires or appliances are controlled by the customer. 26 Am. Jur.2d, Electricity, Gas and Steam, § 106 (1966).

In White v. Orlando Utilities Commission, 156 So.2d 879 (Fla. App.1963), White brought suit for damages which resulted from a fire when defendant’s employee connected electrical power to his dwelling without notifying or ascertaining whether anyone was present on the premises. White, in his complaint, alleged:

“ * * * defendant’s employee turned on electrical current from defendant’s power line to plaintiffs’ dwelling without notifying plaintiffs or ascertaining whether plaintiffs or other persons were present on plaintiffs’ premises, and without ascertaining by inquiry from the plaintiffs, or otherwise, whether plaintiffs’ premises and the electrical circuits, outlets and appliances situated therein were in a proper and safe condition to receive said electrical current. That in fact, at the time said current was turned on by defendant’s employee, the plaintiffs and the members of their family residing in said premises were away therefrom, and said premises were temporarily vacant and unattended; that defendant’s employee knew or should have known that if said circuits, outlets and appliances were not in a proper and safe condition to receive electrical current, and such current was turned on to the premises at a time when said premises were unattended, that a dangerous condition would thereby be created; * * (Emphasis added.) (156 So.2d at 880).

On appeal, the dismissal of White’s complaint was affirmed due to the failure to include an allegation that defendant knew or should have known that the circuits were defective.

Appellees in the case sub judice charged in their declaration that appellant was negligent in failing to arrange to have the electrical connection made at a time when someone was present in the apartment.

Viewing the evidence as we must on motion for directed verdict or peremptory instruction, appellees’ proof established that appellant made a proper connection of electrical service to appellees’ apartment without actual knowledge of the dangerous or defective condition of appellees’ appliance. The evidence further established that appel-lees merely requested that electrical service be supplied by a specific date. However, there was no proof, or contention made, that appellees specified that service be installed only when the apartment was occupied by one of the appellees. We express no opinion as to whether a supplier of electricity could be held liable for negligent connection of electrical service where a certain date is specified or agreed upon between a customer and supplier and connection is made on a date other than that specified or agreed. Appellees’ proof simply failed to establish any negligence on appellant’s part.

Since we have concluded that appellees failed to establish appellant’s negligence in connecting electrical current to their apartment, appellant’s motion for a peremptory instruction should have been granted. The cause is therefore reversed and judgment rendered here for appellant.

REVERSED AND RENDERED.

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


text:
    Wilma C. GILLIAM v. Lawrence JOHNSON.
    No. 53365.
    Supreme Court of Mississippi.
    July 21, 1982.
    Rehearing Denied Aug. 25, 1982.
    William C. Spencer, Eugene D. Brown, Jr., Crutcher, Spencer & Brown, Holly Springs, for appellant.
    Talmadge D. Littlejohn, New Albany, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Union County; William R. Lamb, Judge.

AFFIRMED.


author: BROOM, Justice,

text:
    R. B. HARPER, d/b/a Harper House Movers v. Howard HUDSON.
    No. 53283.
    Supreme Court of Mississippi.
    July 21, 1982.

      Rex Gordon, Sr., Gordon, Myers & Gordon, Pascagoula, for appellant.
    A. Vincent Blackwell, Pascagoula, for ap-pellee.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   BROOM, Justice,

for the Court:

Storm damage (Hurricane Fredric) to the house of plaintiff Howard Hudson (appel-lee) occurring during the time contractor R. B. Harper, d/b/a Harper House Movers (appellant) was attempting to move it for Hudson, forms background to this case appealed from the Circuit Court of Jackson County, the Honorable Clinton E. Lockard, Circuit Judge, presiding. Hudson, the owner, sued contractor Harper for damages to the house admittedly resulting from the storm. The jury found “for the Plaintiff, Howard Hudson in the amount of $10,500.00 and for the Defendant R. B. Harper in the amount of $1,500.00 for labor and materials.” We reverse.

Harper appeals, contending that (1) the damages complained of were due to an act of God for which Harper cannot be legally liable, (2) erroneous jury instructions were given, and (3) the lower court erred in allowing into evidence an advertisement which Harper had bought in the local telephone directory.

Hudson’s declaration alleged that the parties had orally contracted to the effect that Harper would move a house which Hudson had purchased. Moving operations began on August 9, but he charged that Harper

[W]as negligent in not completing such moving operation prior to September 12, 1979. That the Defendant failed, refused and negligently did not secure such home as it was located on the trailer aforesaid, and that on or about September 12, 1979, such home was destroyed, and that as a direct and proximate result of the failure to move such home and the negligence on the part of the Defendant as aforesaid, the Plaintiff suffered loss in the amount of Forty-five Thousand and °°/ioo Dollars ($45,000.00).

Movement of the house was to be a distance of about a mile and a concrete slab was poured for the new location on August 17, 1979. Contractor Harper, the defendant, moved the den on September 11, but then bogged down when moving the garage and had to use a winch to get to the site. The two-story section of the house was loaded upon the trailer and fastened to steel beams. At that stage, Hurricane Fredric was posing a threat and, in order to protect the house situated on the trailer, the trailer was lowered and, according to Harper, he took every precaution and did everything reasonable to protect the house. Hudson takes the position that Harper did not properly brace the house so as to be prepared for the storm, which caused great damage to the upper two-story section of the house. Hudson offered testimony that the contract price for the house was $10,500.00.

SHOULD CONTRACTOR HARPER BE EXONERATED ON THE BASIS THAT THE DAMAGES WERE AN ACT OF GOD FOR WHICH HE CANNOT BE LEGALLY LIABLE? Harper contends that he “cannot be held to the degree of foreseeability as to reasonably know a hurricane of tor-nadic winds would strike the Mississippi Gulf Coast. To hold otherwise is to make the Appellant responsible for a mere possibility for the occurrence of an event that is not foreseeable.”

We think a jury issue was made as to whether Harper took the proper measures to protect the house from damage from the impending storm. There was at least some substantial testimony which would support the theory of Hudson’s case that Harper was negligent in taking inadequate means to secure the house after placing it on the trailer, which, if believed, could be a proper basis of liability.

Plaintiff Hudson testified, as follows, about his conversation with Harper:

And Mr. Spooner pulled up and we both got into a conversation with Mr. Harper and got to talking about that hurricane. It was coming in here the next day. We was pretty well sure that it was coming by then — that was the day before. And we asked him what we was going to do about it. He said, “Well,” he said, “we going to come in here. We’re fixing to move these two wings today.” He said, “We’re going to get them up there.” He said, “The first thing Thursday morning ... ” — that was on a Tuesday he told us this — he said, “First thing Thursday morning, I’m going to come back in here and we’re going to hook onto this part here and take it right on up yonder and set that thing up, you know, and get all that thing done where you can get your money, Mr. Spooner.” And he said, “Everything will be fine.” Said, “We don’t have to worry about a thing. We’ll all be through with it and everybody will be happy.” Well, that sounded good to me, but I knew as well as anybody there was a hurricane coming here that next day, and that thing was pretty vulnerable sitting up on that trailer. So, we went and talked to him about how we would secure it if that hurricane come in here, and he told us if that hurricane come in here, he would come up here and bind it down and auger it down and just, you know, told us how he would get it secured where there was no way it would blow down... . And I figured he would be coming any moment, you know, come up there and secure the house. He had it sitting up there on a trailer about two foot off the ground where, you know, you could just about grab it and rock it if, you know, you were strong enough. It wasn’t stable at all.

Dennis Clark testified that the house was jacked up about three weeks “on the trailer” and that he observed the house just prior to the hurricane and went to it with others to see if it was tied down. The following is excerpted from his testimony:

Q Was the house tied down?
A No, sir. It had some boards around it, kind of braced off, but there weren’t very many of them. They was small boards.
Q Alright. Where were these boards located?
A In the corners.
Q Alright. How many boards on each corner?
A Just one, I think.
Q And was there any other means of holding that house down to the trailer?
A No, sir. The trailer . . . the tongue of the trailer was on blocks .. . just had it level, but that’s all.
Q And the only thing that you observed to steady that was one board on each of the four corners of that house?
A Yes, sir, just to keep it steady on the trailer.

We think this testimony and the other testimony was sufficient to raise a jury issue on liability based on negligence. This case is distinguishable from Harry Dole Dodge of Pascagoula, Inc. v. Cox, 246 So.2d 918 (Miss.1971) and other cases cited, in that here there is substantial evidence showing that after Harper removed the house from its moorings and onto a trailer, he failed to use proper means to tie it down or protect it from the hurricane.

The next argument is that the lower court erred in granting instructions P-6a, P-7, and P-8. The argument is that the instructions do not set forth specific facts of negligence and are without sufficient evi-dentiary support in the evidence to make them appropriate upon the facts. He says further that the instructions are “vague and general instructions on negligence that do not furnish any guide whatever to the jury and they are at most abstract statements of the law.”

We do not view the language of the instructions as so faulty to warrant reversal, but P-8 on the measure of damages is not supported by proper proof of the before and after value, as pointed out later in this opinion.

We think the evidence was insufficient on the element of damages and for that reason, if no other, reversal would be required. As argued by Harper, Hudson did not introduce any knowledgeable or qualified person to testify as to the before and after value of the house. Of course, it is the burden of the plaintiff in a case of this sort to prove his damages by a preponderance of the evidence. The general rule is that if there is any remaining value to the damaged property (and there is no evidence to the contrary here), then the measure of damages is the difference in the value immediately before the casualty or loss and the value immediately after the damage or injury to the property. Stigall v. Sharkey County, 213 Miss. 798, 58 So.2d 5 (1952). Of course, if the property is totally destroyed and rendered absolutely valueless in the accident or casualty, the damages would be the value of the property at the time of such destruction. Federal Compress & Warehouse Co. v. Reed, 339 So.2d 547 (Miss.1976).

The only testimony about the measure of damages of the value of the property in question was given during the testimony of Theron E. Spooner, who testified that he sold the house in question to the plaintiff Hudson. After preliminary questions to witness Spooner about how his sale came about, he gave further testimony as follows:

Q And did you and Mr. Hudson enter into a contract for the purchase and sale of that home?
A Yes, sir, we did.
Q And what was the purchase price?
A $10,500.00.
Q Now, Mr. Spooner, I would hand you Plaintiff’s Exhibit 2 and ask you if you can identify that document?
A Yes, sir, I do.
Q What is that?
A Well, this is the document or agreement, contract between Mr. Hudson, myself and my wife as to his responsibility for the home. And ... I didn’t read it in its entirety here, but I think he took responsibility, and I believe it says so in here, on the day that I moved from the house. I had it agreed that he would accept responsibility of the house the day I moved out.
Q How much did he pay you?
A Well, he paid me $10,500.00, the purchase price of the home.

Although we think the purchase price might have some relevancy, it was incumbent upon plaintiff Hudson to give more enlightening testimony about the measure of his damages, since no other testimony was offered on the issue of damages.

DID THE LOWER COURT ERR IN ADMITTING THE TELEPHONE DIRECTORY ADVERTISEMENT OP HARPER INTO EVIDENCE OVER OBJECTION? The advertising consisted of a written ad which is common to telephone directories:

HARPER HOUSE MOVERS SERVING JACKSON COUNTY SINCE 1953
There is no substitute for experience “We have the tools, modern equipment & the know-how to do the job right” BUY-SELL-MOVE LAUNCH
LICENSED -_ & CONDITIONAL GUARANTEE
ALL TYPES FOUNDATION WORK
FREE ESTIMATES 762-1121 3217 INGALLS AV PASCAGOULA MS
“LEVELING “RAISING
BOAT MOVING & LAUNCHING 30' to 70' LONG

Contained in the ad are the words “Licensed & Conditional Guarantee”, and the appellant argues that such language in the ad could have no probative value and could not help but “inflame the jury against” contractor Harper. We agree that the language “Conditional Guarantee” may be construed as suggestive of insurance, and very likely would convey to the jurors the impression that Harper was an insuror of any damages that might occur during the process of moving the property, regardless of negligence on his part.

Appellee Hudson contends that “the advertisement was placed into evidence without objection and Appellant waived any such objection if in fact he had one.” As noted in the reply brief of contractor Harper, his counsel made objections which the court overruled but made slight modification in the advertisement before allowing its introduction into evidence. Error in placing the ad into evidence is heightened and aggravated here because the evidence of liability is close.

Careful study of the record indicates that owner Hudson failed to introduce proper testimony as to the measure of his damages. Furthermore, introduction of the telephone directory ad was clearly erroneous. These two errors together with the closeness of the liability issue are sufficient to warrant reversal.

REVERSED AND REMANDED FOR RETRIAL OF ALL ISSUES.

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

DAN M. LEE, J., dissents.

PRATHER, J., takes no part.


author: BOWLING, Justice,

text:
    W. Howard KISNER, M.D., H. Vann Craig, M.D., William Calhoun, M.D., Margaret Veller, M.D., and Charles Martin, M.D. v. John D. COFFEY, M.D. and John J. Bennett, M.D., as Shareholders of and for and in Behalf of Natchez Medical Group, Inc.
    No. 53334.
    Supreme Court of Mississippi.
    July 28, 1982.
    Rehearing Denied Aug. 25, 1982.

      David C. Bramlette, Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, for appellants.
    John E. Mulhearn, Jr., Mulhearn & Mul-hearn, Walter Brown and Joseph S. Zuccaro, Natchez, for appellees.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

This appeal is from the Chancery Court of Adams County and involves a controversy among present and former members of a medical clinic.

Prior to 1966 the appellees, complainants below, Dr. John D. Coffey and Dr. John Bennett, were in a partnership known as Natchez Medical Clinic with appellants, defendants below, Dr. W. Howard Kisner, Dr. William Calhoun, Dr. Margaret Veller and Dr. John I. Davis. The latter in 1975 withdrew from the partnership and is not involved in this litigation. In 1966 the partnership consisted of the above named physicians and added thereto Drs. H. Vann Craig and Charles Martin. The partners organized a corporation under the laws of the State of Mississippi and issued stock to each partner on an equal basis. The purpose for organizing the corporation was for it to construct a building in Natchez and lease it to the members of the partnership. This was done and a twenty-year lease was executed on February 16,1966, between Natchez Medical Group, Inc., as lessor, and Drs. Calhoun, Bennett, Kisner, Coffey, Davis and Veller as lessees. The rental for the lease recited the sum of $2,150 per month until and including March 1, 1986.

Dr. Coffey withdrew from the medical partnership in January 1978. Dr. Bennett withdrew in 1979. Dr. Craig withdrew shortly thereafter. This left as members of the partnership the above named five appellants.

On December 14, 1979, appellees, Coffey and Bennett, filed their bill of complaint against the individual appellants, alleging that appellants were not operating the corporation properly and that alternatively, the court should either require that a receiver take charge of the corporation or that the corporation be dissolved. The original complaint in addition to these alternative prayers for relief, further prayed for such other and different relief to which they might be entitled.

On April 11, 1980, appellees filed an amendment to the bill of complaint in which they further prayed that appellants be enjoined from surrendering certain life insurance policies purchased by the corporation on the lives of the shareholders; that payment of any legal fees by the corporation to appellants be enjoined; and that the corporation and appellants be enjoined from charging less rent than $3,710 per month.

Appellants filed their answer which in effect denied that appellees were entitled to any relief requested.

It would serve no useful purpose to relate in detail all the testimony and evidence introduced at trial. It is mostly undisputed. The principal testimony pertinent to the decision of the cause is: The original bylaws of the corporation provided for four directors to be elected by the shareholders. Sometime after the relationship of the parties developed, a policy was adopted whereby all shareholders served as directors. This was done by mutual agreement and placed on the minutes of the corporation. On at least three occasions during the 1970’s, the shareholders and the clinic partners, all the same people, agreed that the monthly rental paid by the clinic to the corporation be changed. At the time the cause was filed, this change had been set at $3,710 per month. It is practically undisputed that the changes in rent were made because of increased activities of the corporation such as purchasing life insurance policies on the lives of the shareholders, purchasing the stock of Dr. Davis upon his withdrawal and paying each shareholder $100 per month called “deferred compensation” and compensation for serving as a director.

At the trial and on this appeal, appellees have relied on Mississippi Code Annotated, Section 79-3-193 (1972), as to their contention for dissolution of the corporation. This section provides that the chancery court shall have full power to liquidate the assets and business of a corporation under certain conditions, one of which is that “the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent.” It is admitted that none of the other conditions of this statute possibly could apply. Appellees contend that the operation of the corporation in question by the directors was “oppressive”.

At the conclusion of the trial, the chancellor made several findings as follows:

He found that the actions of appellants in managing the corporation were “oppressive” under the terms of the statute for the reason that “There was such a conflict of interests that the conduct of the defendants in handling the corporate affairs became oppressive.” This conduct according to the opinion of the chancellor consisted of Dr. Coffey and Dr. Bennett not being re-elected directors of the corporation after they withdrew from the medical clinic and that their deferred compensation of $100 per month was thereby terminated. We find no other substantial reason given by the chancellor for ordering that the corporation be dissolved in 1986 under the provisions of MCA § 79-3-193 (1972).

The chancellor found the lease executed February 16, 1966, between the parties is a valid and binding lease but ordered that the rental of $3,710 per month be continued on the legal ground of estoppel.

The court further ordered that the deferred compensation of all directors be equalized so that appellees receive payments that were not made after they withdrew from the clinic and after they were not elected directors under the by-laws, which then provided for only four directors.

The chancellor ordered that the corporation pay no legal fees to any party to the litigation. He further ordered that there be no expenditures of monies or payment of dividends by the corporation without the unanimous consent of the board of directors or stockholders.

The threshold assignment of error by appellants is the action of the court in ordering that the corporation be liquidated in 1986. It is contended that the evidence was not sufficient to justify the chancellor in holding that the action of the corporate directors was oppressive under the statute.

We should state here that after the suit was filed in December 1979, the shareholders of the corporation held a regular meeting in January 1980 and properly amended the by-laws of the corporation to require that all shareholders be directors.

This Court has had before it questions as to the extent of corporate directors’ actions that would make those actions “oppressive” under the statute and thereby require corporate dissolution. It is agreed by all that the chancellor specifically held that no actions of the directors were either illegal or fraudulent. In Capitol Toyota, Inc. v. Gervin, 381 So.2d 1038 (Miss.1980), we said: “Dissolution is an extraordinary remedy to be sparingly administered in exceptional cases only.” In reversing a corporation dissolution by the lower court, we relied on Exadaktilos v. Cinnaminson Realty Co., Inc., 167 N.J.Super. 141, 400 A.2d 554 (1979), and Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507 P.2d 387, 56 A.L.R.3d 341 (1974). In Baker, supra, the Oregon court in discussing what is necessary to constitute oppressiveness under an identical statute as that before us, made the following observations:

In considering the meaning and application of the term “oppressive” conduct it is first to be noted that by the very terms of ORS 57.595 conduct need not be fraudulent or illegal to be “oppressive” within the meaning of that statute.
While general definitions of “oppressive” conduct are of little value for application in a specific case, perhaps the most widely quoted definitions are that “oppressive conduct” for the purposes of such a statute is:
“burdensome, harsh and wrongful conduct, a lack of probity and fair dealing in the affairs of a company to the prejudice of some of its members; or a visual departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely.”
We agree, however, that the question of what is “oppressive” conduct by those in control of a “close” corporation as its majority stockholders is closely related to what we agree to be the fiduciary duty of a good faith and fair dealing owed by them to its minority stockholders.
Thus, an abuse of corporate position for private gain at the expense of the stockholders is “oppressive” conduct. Or the plundering of a “close” corporation by the siphoning off of the profits by excessive salaries or bonus payments and the operation of the business for the sole benefit of the majority of the stockholders, to the detriment of the minority stockholders, would constitute such “oppressive” conduct as to authorize a dissolution of the corporation under the terms of ORS 57.-595.
On the other hand, it has been said that a single act in breach of such a fiduciary duty may not constitute such “oppressive” conduct as to authorize the dissolution of a corporation unless extremely serious in nature and that even a continuing course of “oppressive” conduct may not be sufficient for that purpose unless it appears that, as a result, there has been a disproportionate loss to the minority or that those in control of the corporation are so incorrigible that they can no longer be trusted to manage it fairly in the interests of its stockholders.
In other words, although a showing of “imminent disaster” is not required, liquidation is not available upon a showing of mere vague apprehensions of possible future mischief or injury or to extricate minority stockholders from an investment that turns out to be a bad bargain. We also reject the concept that a “close corporation” is like a partnership to the extent that a minority stockholder should have the same right as a partner to demand a dissolution of the business upon substantially the same showing as may be sufficient for the dissolution of a partnership. After all, the remedy of a forced dissolution of a corporation may equally be “oppressive” to the majority stockholders.

As we previously have seen, the sole reason given by the chancellor to order a future dissolution of the corporation was that in 1979 the shareholders, who then remained in the clinic, did not re-elect appel-lees directors and that this interfered with their deferred compensation.

Although appellants list as an assignment of error the court’s order equalizing deferred compensation benefits to appellees, it was stated in oral argument by appellants’ attorney that no real objection was made to catching up with these payments now that appellees were again on the board of directors after a legal amendment to the bylaws. We accept statements in oral argument at their face value and find the action of the lower court in equalizing the deferred payments to appellees to be correct.

We are of the firm opinion that the chancellor was manifestly in error when he held that the evidence discussed above was sufficient for him to order a future dissolution of the corporation. The evidence did not rise to that of being “oppressive” as required under the statute.

We further are of the opinion that the lower court was in error in increasing the rent from that set out in the original lease. As hereinbefore stated, the agreed on increases and decreases were for the corporation to secure funds for specific purposes. This was in effect taking money out of one pocket and putting it in another to purchase insurance, stock of a withdrawing partner and other such expenses. The language of the lease is clear and in our opinion the chancellor was manifestly wrong in decreeing that the monthly rental should be that last agreed upon by the parties to the lease: to-wit, $3,710 per month.

Appellants further allege as error the court’s action in prohibiting the corporation from paying the attorneys’ fees incurred by appellants as individuals. In our opinion the court was entirely correct on this question and its decree in that regard should be affirmed.

In summary, we make the following findings:

1.The lower court was manifestly in error in ordering a dissolution of the corporation and its action in doing so is reversed and rendered.

2. The decree of the lower court in ordering that no expenditures of money or payment of individuals may be made without the unanimous consent of the board of directors is reversed and rendered.

3. The decree of the lower court in establishing the monthly rental at $3,710 per month is reversed and the monthly rental is ordered to remain according to the terms of the lease at $2,150 per month.

4. The decree of the lower court in prohibiting the corporation from paying attorneys’ fees of any party to the suit is affirmed.

5. The order of the chancellor in overruling the general demurrer of appellants, or in the alternative not dismissing the cause at the close of appellees’ evidence, is affirmed.

The above pronouncements dispose of all assignments of error propounded by the appellants. The cause is, therefore, affirmed in part, reversed in part and rendered.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SUGG and WALKER, P. 33., and BROOM, ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    John L. WOZENCRAFT, Admr.: In the Matter of the Estate of Anna Lene Brooks Wozencraft, Dec’d. v. Thomas Coyt “Dale” BROOKS.
    No. 53599.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
   Appeal from Chancery Court, Jackson County; Robert H. Oswald, Chancellor.

Edmund A. Wilson, Pascagoula, for appellant.

Sadler & Ranson, E. Foley Ranson, Ocean Springs, for appellee.

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

AFFIRMED.


text:
    Jerry L. HUTCHERSON and John B. Rockar v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY and Fireman’s Fund American Life Insurance Company.
    No. 53189.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Richard W. Hamilton, Jerry L. Hutcher-son, Pascagoula, for appellant.
    Scruggs & Williams, Eddie C. Williams, Bryant & Stennis, Joe R. Colingo, Pasca-goula, Perry, Crockett, Morrison & Starling, Mark D. Herbert, Jackson, for appellee.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

AFFIRMED PER CURIAM by BOWLING, J.


text:
    Fred TISDALE v. Jimmy Lee CURRY, et al.
    No. 53349.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Walls, Buck, & Irving, Tyree Irving, Greenville, for appellant.
    Joseph S. Zuccaro, J. Walter Brown, Natchez, Everett T. Sanders, Port Gibson, for appellees.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   Appeal from Chancery Court, Claiborne County; Frank W. Walden, Chancellor.

REVERSED.

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

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


text:
    Agnes Louise Robertson COUSINS v. STATE of Mississippi.
    No. 53653.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Lydia Quarles, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Chickasaw County; W. W. Brown, Judge.

AFFIRMED.

SUGG and W A LICK R, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS and PRATHER, JJ., concur.


author: WALKER, Presiding Justice,

text:
    Joe Barnett BRADSHAW v. Rosalynde Johnston BRADSHAW.
    No. 53356.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, William G. Willard, Jr., Clarksdale, for appellant.
    Sullivan, Hunt, Spell, Shackelford & Henson, F. Ewin Henson, III, Clarksdale, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Tallahatchie County, Mississippi, wherein appellant’s petition for modification of a divorce decree entered May 11, 1976, was dismissed for lack of jurisdiction. Aggrieved with the lower court’s decision, appellant has perfected his appeal to this Court. We reverse and remand.

In 1976 Rosalynde Bradshaw, appellee, was granted a divorce from Joe Bradshaw, appellant, while both were residents of Tal-lahatchie County. Appellant was awarded custody of the couple’s son while custody of their two minor daughters was awarded to appellee, both parties to have reasonable visitation privileges with the children.

On September 30,1980, four months after appellee and her youngest daughter, Barbara Ann, had moved to the State of Florida, the appellant filed a petition for modification in the Chancery Court of Tallahat-chie County, seeking custody of Barbara Ann on the basis that there had been a material change in circumstances since the original decree was rendered or in the alternative an interpretation of the term “reasonable visitation rights.”

There is no question raised as to whether or not appellee was served with notice of the proceedings against her. On October 6, 1980, she acknowledged receipt of a copy of the order of publication to non-resident defendants sent by certified mail. Process was also secured pursuant to Mississippi Code Annotated section 13-3-19 (1972)'by publication in the Sun Sentinel.

The chancellor, upon special appearance of appellee, quashed process of publication and dismissed appellant’s petition for modification holding the court lacked jurisdiction to modify the original decree as the appellee and the couple’s daughter became residents of the State of Florida prior to commencement of appellant’s petition.

The appellant asserts the lower court rendering the original divorce decree retains jurisdiction to subsequently modify its custody order even after the custodial parent We and child have moved from the State, find appellant’s assertion to be well taken. This matter is controlled by Campbell v. Campbell, 357 So.2d 129 (Miss. 1978), a case involving modification of an award of child support against a defendant on process by publication. We stated that it is well settled that chancery courts may modify final decrees concerning such matters as alimony, custody of children and child support. Further, such courts retain personal jurisdiction over the parties even though one party has left the State and a decree may be modified on notice by publication in lieu of personal service of process when the requirements of section 13-3-19 are met.

The appellee wants us to distinguish between those cases involving a petition to modify child support and those involving petitions to modify child custody, but we can see no logical distinction that would alter the ruling in Campbell involving the court’s jurisdiction.

Although it has no application to this case, we call the Bench and Bar’s attention to the Uniform Child Custody Jurisdiction Act (Miss.Gen. Laws, Ch. 414, Senate Bill 2088 (1982), which became effective July 1, 1982).

We, therefore, reverse and remand this cause for a trial on the merits of appellant’s petition.

REVERSED AND REMANDED.

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


author: ROY NOBLE LEE, Justice,

text:
    James L. OTIS v. STATE of Mississippi.
    No. 53357.
    Supreme Court of Mississippi.
    Aug. 11, 1982.

      Sanders, Sanders & Clark, Alix H. Sanders, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

James L. Otis was convicted in the Circuit Court of Grenada County, Honorable Clarence E. Morgan, Jr., presiding, on a charge of forcible rape and was sentenced to fifteen (15) years in the custody of the Mississippi Department of Corrections. He has assigned and argued five (5) errors in the trial below. We address three (3) of the assigned errors and reverse.

Background

On July 14, 1980, the Grenada County Grand Jury returned three (3) indictments against appellant charging him with separate forcible rapes of the prosecutrix. The first alleged offense occurred in October, 1979, the second in December, 1979, and the third in March, 1980. Appellant was tried on the first indictment, involving the October, 1979 offense, and was acquitted. He subsequently was tried on the third indictment, which is the subject of this case, was found guilty and sentenced to fifteen (15) years imprisonment.

Facts

The appellant is a black male. During the times the incidents are alleged to have occurred, he was a special education teacher in the Lizzie Horn School, Grenada County, Mississippi. He had a BS degree in Education, and a Master’s Degree in Special Education. The prosecutrix is a white 15-year-old female and a student in the special education class. She had an IQ of 77 or 78, and the mentality of about an 11-year-old child.

The State’s case is based upon the testimony of the prosecutrix. According to her, in March, 1980, she was in the classroom and the appellant told her to go outside the room and stand in the hall because of misbehavior in class. In a few moments, appellant exited the classroom, took the prosecu-trix by the hand, and indicated he was taking her to the principal’s office. Instead of going to that office, he took her to the teachers’ restroom, and locked the door leading into it. Appellant then unzipped the prosecutrix’s pants, pulled them down to a point above her knees, lowered his own pants above the knees and then proceeded forcibly to rape her. During the act, she was standing against the wall. The prose-cutrix testified that she resisted with all her strength, but could not prevent appellant from raping her. She also stated that appellant held his hand over her mouth and she was unable to scream. She did not report the matter until five (5) weeks later when a female principal questioned her about it. The prosecutrix’s excuse for not reporting the matter was that appellant had paddled her in the hand previously and she was afraid of him; and that she was afraid to tell her sister, with whom she lived.

The appellant denied that he had intercourse with, or molested, the prosecutrix. He testified that after the incident was investigated by the school authorities, he was suspended with pay and that, since his suspension, he had become a minister of the gospel.

Law

I.

Should the appellant be discharged under the principles of former jeopardy and collateral estoppel?

The appellant contends that the facts and evidence in the case of October, 1979 (acquittal) and the case sub judice are the same and that the doctrines of former jeopardy and collateral estoppel apply. He cites Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), as authority. Ashe is distinguished on the facts from this case. There, the defendant was charged with multiple counts of robbery at a gambling game. The issues, including the issue of defendant’s identity, were the same. He was acquitted when tried on the first charge and was convicted on a second trial. The evidence of identity was stronger at the second trial. The United States Supreme Court held that the issues litigated were the same and that former jeopardy and collateral estoppel applied.

In the case sub judice, separate and distinct offenses were charged and the trials proceeded on those separate offenses. Although the parties are the same and some of the evidence was pertinent to both trials, the acts charged were at different times and the issues were not the same.

In Hughes v. State, 401 So.2d 1100 (Miss. 1981), the Court said:

It is true that much of the same evidence was presented at both of defendant’s trials. Overlap of evidence in the two trials was permissible. The fact that one has been in jeopardy for one act is no bar to a prosecution for a separate and distinct act though the acts are so closely connected in point of time that it is impossible to separate the evidence relating to either on the first trial. The guarantee against double jeopardy contained in the Federal Constitution and in Article 3, Section 22 Mississippi Constitution (1890) does not extend to different prosecutions for different offenses but for repeated prosecutions for the same offense. [401 So.2d at 1105],

See also State v. Clements, 383 So.2d 818 (Miss.1980).

Former jeopardy and collateral estoppel do not apply here.

II.

Was the verdict of the jury against the overwhelming weight of the evidence?

The testimony of the prosecutrix is positive and unequivocal. It covered all the essentials required to make out a case of forcible rape. Although she was not corroborated as to the actual rape itself, there were other facts surrounding the incident which had corroboration. It is conceded that a person may be found guilty of rape on the uncorroborated testimony of the prosecuting witness. Killingsworth v. State, 374 So.2d 221 (Miss.1979); Dubose v. State, 320 So.2d 773 (Miss.1975); Goode v. State, 245 Miss. 391, 146 So.2d 74 (1962); Blade v. State, 240 Miss. 183, 126 So.2d 278 (1961).

We are of the opinion that the verdict is not contrary to the overwhelming weight of the evidence.

III.

Did the lower court err in admitting testimony of other acts committed by the appellant?

The appellant assigns as error testimony relating to other crimes of rape against the prosecutrix allegedly committed by him and acts of fondling her. Although the assignment is not strenuously argued in the appellant’s brief, it is responded to by the State.

The testimony of the prosecutrix, over objection, indicated that in December and October, 1979, prior to the offense for which appellant was tried in this proceeding, the appellant raped her. She also testified to acts of fondling committed upon her by the appellant:

BY THE COURT:
The objection is overruled. You may proceed, Mr. Gore.
BY MR. GORE:
Q. . . ., what did Mr. Otis do to you in the classroom?
A. Well, he would feel all over me— he’d feel all over me.
Q. Where would he feel?
A. Right there in the classroom.
Q. Where on your body?
A. In my shirt and pants.
Q. When he would feel on your pants where would he feel?
A. On my breast.
Q. In your pants, where would he be feeling?
A. Where my private part is.
Q. All right. Between your legs?
A. Right.
Q. Where was his hand? Was it inside your pants or outside your pants?
A. Inside.
Q. And how often would this happen, ...?
A. Just about every day.
Q. When did this start happening? A. Right when he came to teach.
Q. Do you remember when that was? A. No, sir.
Q. When was the last time that happened before he raped you in the bathroom? Before spring holidays?
* # * * * *
BY MR. GORE:
Q. Can you tell us whether or not he felt on you after Christmas that year? A. Yes, sir.
Q. Did he?
A. Yes, sir.
Q. All right. The other times that you said that Mr. Otis put his private part into your private part, did you notice anything unusual about your own body? A. What do you mean by that?
Q. Well, let’s say the first time you say it happened. Did you notice anything unusual about your own body after that? A. Yes, sir.
Q. What?
A. I bled.
Q. Did you bleed the second time that it happened?
A. No, sir.
Q. Or the third time that it happened? A. No, sir.

Other witnesses, pupils in the classroom with the prosecutrix, testified to acts of fondling they saw appellant commit upon the prosecutrix. Some of the testimony was not objected to.

The State argues that such evidence was admissible to show the lustful, lascivious disposition of the appellant to rape the prosecutrix. In Speagle v. State, 390 So.2d 990 (Miss.1980), the defendant was tried for incest, and the Court stated that other acts of sexual relations between the defendant and the victim were admissible for that purpose.

Davis v. State, 367 So.2d 445 (Miss.1979), a case involving the “crime against nature” with an eleven-year-old female child, held that it was not error for the victim to testify that the defendant had subjected her to the same acts on former occasions, in view of the nature of the offense and the circumstances.

In Brooks v. State, 242 So.2d 865 (Miss. 1970), the defendant was convicted of statutory rape. The Court held that, in cases involving females under the age of consent, evidence of other sexual acts were admissible. English v. State, 206 Miss. 170, 39 So.2d 876 (1949), was partially overruled, and the Court said:

In this holding, we think that the decision in English was in error. It did not consider or cite any of the numerous authorities from other jurisdictions analyzing the almost universal rule, that in prosecutions for rape upon one under the age of consent, acts of sexual intercourse or related acts between the same parties prior to the act charged in the indictment is admissible as tending to show the lustful disposition of the accused toward the girl. Accordingly, on this second point in English v. State, we overrule that decision, and hold that evidence of prior sexual acts with the same girl under the age of consent in prosecutions for statutory rape is admissible. Gillespie v. State, 215 Miss. 380, 61 So.2d 150 (1952), which cited English, is not inconsistent with this decision. There the prosecuting witness testified concerning a charge of attempted rape, made by her against defendant during the preceding summer. This was too remote. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962), involved a conviction for false pretenses. It cited English on the general rule, but recognized appropriate exceptions, and on its facts is not related to the instant question. [242 So.2d at 870].

It is elementary that evidence of other crimes may not be introduced in a criminal prosecution, with certain recognized exceptions. In Doss v. State, 156 Miss. 522, 126 So. 197 (1930), quoting from Collier v. State, 106 Miss. 613, 64 So. 373 (1914), the Court said:

“It is not permissible in a prosecution for rape for the state to prove, independent and distinct crimes to the one on trial, unless they form part of a system, or a part of the res gestae, or to identify the accused,” — and in the third syllabus that: “Upon the trial of an indictment, a previous or subsequent crime committed by defendant can only be proved: (a) Where it is connected with the one charged in the indictment and sheds light upon the motive of defendant, or (b) Where it forms a part of a chain of facts so intimately connected, that the whole must be heard in order to interpret its several parts, or (c) In cases of conspiracy, uttering forged instruments or counterfeit coin, and receiving stolen goods, for the sole purpose of showing a criminal intention.” [156 Miss, at 532, 126 So. at 200],

See also Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956).

Here, evidence of two other rapes of the prosecutrix and fondling her (a retarded pupil by a special education teacher) was highly prejudicial and, in our opinion, prevented the appellant from receiving a fair trial and constitutes reversible error.

The judgment of the lower court is reversed, and the case is remanded for a new trial.

REVERSED AND REMANDED.

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

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

      . Prosecutrix’s sister had told her if she ever engaged in sexual relations, she would be sent away.


text:
    Winford Dee HOLLIDAY, Jr. v. STATE of Mississippi.
    No. 53355.
    Supreme Court of Mississippi.
    Aug. 11, 1982.

      Farese, Farese & Farese, John B. Farese, Ashland, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Tippah County, Mississippi, wherein the appellant was indicted for murder but convicted of manslaughter and sentenced to a term of eighteen years in the Mississippi Department of Corrections, with six years suspended. From this conviction and sentence, he appeals. We affirm.

On April 13,1980, the appellant, Dee Hol-liday, and one Jerry Akins passed the time drinking beer they had purchased earlier in the afternoon in Tennessee.

While sitting in appellant’s pickup, Jerry Mohundro approached and asked if they cared to share his gin. Mohundro also had a premixed canned alcoholic beverage he was drinking. Akins and appellant turned down the gin offer as they continued to drink their beer. Mohundro joined them in the cab of the pickup. Shortly thereafter the three were joined by Mickey Raul. As the truck became crowded all four went into the kitchen of appellant’s home where they sat at the table drinking their libations. Approximately one hour later, Raul left.

Mohundro and appellant discussed the possible sale of appellant’s car. According to Akins both kind of got to arguing about it. Akins left the kitchen for a short period of time. After he came back in and sat at the table Mohundro spit on the floor but denied doing it upon being questioned.

Appellant asked Mohundro to leave. Both Akins and the appellant testified that Mohundro threatened Holliday stating, “I’ll be laying for you, and I’ll get you.” Again appellant asked Mohundro to leave to which he answered he would leave when he got ready to. According to appellant Mohun-dro’s exact words were “I’ll leave when I get damn good and ready too.” From this point the testimony as to Mohundro’s actions is conflicting.

According to Holliday, Mohundro told him “... I know you’ve got that little gun, so just make your move.” Again appellant asked Mohundro to leave. Mohundro stated, “I’ll just kill you now.” Appellant testified that Mohundro “.. . jumped up from the table; knocked his chair over, and he had his hand in his pocket when he came up . . . and lunged toward me. That’s when I shot him ... I just shot ’til he quit coming. ...” Mohundro was shot at least six times.

Akins testified that Mohundro got up and jumped back from the table and was shot by appellant. He was completely up when the shots rang out. Akins did not notice the position of Mohundro’s hands when he jumped back from the table nor did he see Mohundro with any sort of weapon. No weapon of Mohundro’s was found at the scene.

E. B. Jones, an emergency medical technician, responded to a 10:30 p. m. call concerning the shooting. He found Mohundro in the kitchen of Holliday’s residence between the table and wall lying on his side. Holliday admitted shooting Mohundro. Jones placed Mohundro in the ambulance and transported him to the hospital. Sheriff Crum of Tippah County arrived at the scene shortly after Mohundro’s body was moved from the house. Holliday told the sheriff he shot Mohundro and handed him a .25 automatic pistol containing two live rounds.

Dr. Benton M. Hilburn, a practicing surgeon, and Dr. John Michael Hoya, a practicing physician, treated Mohundro at the North Mississippi Medical Center. Dr. Hil-burn testified he believed there were six gunshot wounds on Mohundro’s body and Dr. Hoya drew a diagram for the jury locating seven gunshot wounds. Mohundro died several days after being admitted to the hospital as a result of “an overwhelming infection secondary to his injuries.”

The appellant was indicted for the murder of Jerry Mohundro. Following a trial by jury, he was convicted of manslaughter and sentenced to a term of eighteen years in the Mississippi Department of Corrections, with six years suspended.

The appellant assigns the following as error:

I.

The lower court erred in not directing a verdict of acquittal for appellant at the conclusion of all of the evidence, there being no competent evidence to contradict appellant’s version of the homicide which made out a clear case of self-defense.

Upon conclusion of trial, the appellant moved for a directed verdict “based on the fact the State has not presented evidence establishing a prima facia [sic] case against the defendant. . . ” and also made a request for a peremptory instruction. Both requests were denied.

The case clearly presents an issue for the jury’s determination and their verdict is supported by the evidence. Cutrer v. State, 410 So.2d 1308 (Miss.1982).

II.

The lower court erred in not directing a verdict of acquittal at the close of all of the evidence in this case because the state failed to prove corpus delicti.

Dr. Benton M. Hilburn testified as to the cause of Mohundro’s death as follows:

Q. Who declared him dead?
A. I did.
Q. And what was the cause of death of Jerry Mahundra? [sic]
A. We felt the cause of death was overwhelming infection secondary to his injuries.
Q. The injuries being ...
A. From the wounds, the gunshot wounds.
Q. Doctor, in fact, what you’re saying is the cause of death was gunshot wounds?
A. Yes.

Mohundro died in the hospital several days after his admission for treatment of his gunshot wounds and the jury was justified in determining the gunshot wounds were a substantial contributing cause of death. In Schroer v. State, 250 Miss. 84, 160 So.2d 681 (1964), we stated:

The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause. 40 C.J.S., Homicide, § 11. (250 Miss, at 91, 160 So.2d 681).

III.

The lower court erred in not sustaining appellant’s motion for a new trial because the conviction for manslaughter was against the overwhelming weight of the evidence.

The deceased and appellant both had been drinking on the day of the shooting incident. An argument ensued while both were seated around appellant’s kitchen table. The deceased aggravated appellant by spitting on his floor and denying it. Upon being asked to leave appellant’s home, the deceased became belligerent and refused to leave. When he arose from the table Mo-hundro was shot at least six times. No weapon was found on or near Mohundro’s body. The testimony was conflicting as to whether or not Mohundro lunged toward the appellant as if to cause him great bodily harm.

In Stennis v. State, 234 So.2d 611 (Miss. 1970), we stated:

Furthermore, we have held that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm; that where a person repels an assault with a deadly weapon, he acts at his own peril and the question of whether he was justified in using the weapon is for determination by a jury unless there is no reasonable inference in the evidence except that the use of the deadly weapon appeared necessary to protect the person from death or great bodily harm at the hands of his assailant. Blackwell v. State, 44 So.2d 409 (Miss.1950); Howard v. State, 18 So.2d 148 (Miss.1944); Bangren v. State, 196 Miss. 887, 17 So.2d 599 (1944). (234 So.2d at 614).

The appellant asserts the facts in this matter make out a clear case of self-defense. In his argument he stated that one may act on reasonable appearances of danger, the law requiring only that one be in danger, real or apparent. Further, he need not prove he acted in justifiable self-defense, but only that he raise a reasonable doubt of his guilt on the charge against him. Scott v. State, 203 Miss. 349, 34 So.2d 718 (1948).

In the recent case of Cooley v. State, 391 So.2d 614 (Miss.1980), we carefully reviewed several cases which set forth the conditions upon which a plea of self-defense may lie as follows:

Insulting words can never justify a homicide unless they are of such nature as to cause defendant to believe he is threatened with grave, impending danger. [Reed v. State, 197 So.2d 811, 814 (Miss. 1967) ].
Be that as it may, there is no principle of criminal law better settled — none more necessary to the peace of society, and the safety of human life — than that threats, however deliberately made, do not justify an assault and battery, much less the taking the life of the party making them. That is excused when done in the necessary defense of one’s own life, or to escape great bodily harm.
[T]he law tolerates no justification, and accepts no excuse for the destruction of human life, on the plea of self-defense, except that the death of the adversary was necessary, or apparently so, to save his own life, or his person from great bodily injury, and there shall be imminent danger of such design being accomplished. The danger to life, or of great personal injury, must be imminent, present at the time of the killing, real or apparent, and so urgent that there is no reasonable mode of escape except to take life.
[Evans v. State, 44 Miss. 762, 773 (1871) ].
It is not true that a party has a right to kill another on the first appearance of danger. The rule is that to defend on alleged threats and apprehension of threats there must be a demonstration by the party making the threat which would induce a reasonable man to believe that there was danger of such threat being immediately executed.
[.Molphus v. State, 124 Miss. 584, 598, 87 So. 133, 135 (1921)].
The instruction requested by appellant is clearly erroneous. By it the appellant sought to have the court charge the jury that appellant had the right to kill the deceased because he knew deceased had threatened his life. This is not the law. It took more than a threat by deceased against the life of appellant to justify the latter in killing the deceased. There must have been in addition, at the time of the homicide, an overt act on the part of the deceased indicating a purpose to carry out such threat.
[James v. State, 139 Miss. 521, 524, 104 So. 301, 302 (1925) ].
To make a homicide justifiable on the grounds of self-defense, danger to slayer must be either actual, present and urgent, or slayer must have reasonable grounds to apprehend design on part of deceased to kill him or to do him some great bodily harm and, in addition to this, to apprehend that there was imminent danger of such design being accomplished; mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life or to do him some great bodily harm will not justify former taking life of the latter.
[Bright v. State, 349 So.2d 503 (Miss. 1977)].

The testimony of the state’s witness, Akins, with regard to the posture of Mo-hundro prior and at the time of the shooting clearly raised an issue for the jury’s resolution. The jury is the sole judge of the credibility of the witnesses and the weight and worth given to their testimony. Gathright v. State, 380 So.2d 1276 (Miss.1980).

The jury was properly instructed as to the appellant’s theory of self-defense. It was within their province to consider appellant’s version of self-defense along with the evidence which contradicted his testimony in determining his guilt or innocence. The issue of appellant’s guilt was properly presented to the jury. Based upon the evidence introduced, we find appellant’s contention that the verdict was contrary to the overwhelming weight of the evidence is without merit.

IY.

The lower court erred in not sustaining appellant’s motion for a new trial for the reason that appellant was denied due process of law when the trial court allowed the state to engage in jury argument which was inflammatory, prejudicial and which invaded the province of the jury. We find this assignment of error to be wholly without merit and warrants no discussion.

Finding no reversible error, the judgment and sentence are affirmed.

AFFIRMED.

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


text:
    Thurmon HOLLAND v. STATE of Mississippi.
    No. 53617.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Thomas M. Fortner, Public Defender, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, P. JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Jackson County, Mississippi, denying appellant’s postconviction motion to correct sentence and to allow credit to appellant for time served in jail in Lafayette, Tippecanoe County, Indiana, while contesting his extradition to the State of Mississippi on a charge of kidnapping.

Appellant vigorously contends that he should be allowed credit for the 614 days that he spent in jail (he was unable to post $50,000 bail) in Indiana before being released to the State of Mississippi pursuant to the extradiction proceedings.

The question presented is whether credit for time allowed under Mississippi Code Annotated section 99-19-23 (1972) is applicable to time served in another state while an accused is awaiting removal to Mississippi. That section provides:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

We are of the opinion and hold that section 99-19-23 has no application to time served in another state while an accused is awaiting return to this State to face criminal charges. For us to hold otherwise would encourage an accused to flee this State and seek refuge in a state or locality of his own choosing, and fight extradition knowing that any time spent in jail in such state would be credited to any sentence received by him upon conviction. Such holding would be an impediment to, rather than an aid to, criminal justice.

It is not necessary to address the other question raised on appeal as that question is now moot.

The judgment of the circuit court is affirmed.

AFFIRMED.

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