author:
SMITH, Presiding Justice, SUGG, Justice,
      BOWLING, Justice, LEE, Justice,

text:
    SEEDKEM SOUTH, INC. a/k/a Tenatek, Inc. v. Gary G. LEE.
    No. 51841.
    Supreme Court of Mississippi.
    Dec. 10, 1980.

      Frank W. Hunger, Lake, Tindall, Hunger & Thackston, Greenville, for appellant.
    Wayne 0. Lee, Gaines S. Dyer, Dyer, Dyer & Dyer, Greenville, for appellee.
    Before SMITH, BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Seedkem South, Inc. appeals from a judgment in favor of Gary G. Lee for $2,934.52 rendered against it by the County Court, and affirmed by the Circuit Court, of Washington County. Lee’s suit was brought originally against Seedkem and one Sanchez, an employee, and was for the recovery of damages to Lee’s automobile alleged to have resulted from a collision between Lee’s car, driven by him, and a bob truck leased by Seedkem and being driven by Sanchez. It was alleged that the collision and resulting damages were the results of negligence upon the part of Sanchez in the operation of the truck and that Seedkem was liable under the doctrine of respondeat superior.

Before the trial began plaintiff effected a settlement with Sanchez and he went out of the case as a party.

By agreement, the case was heard before the county court judge without the intervention of a jury. At the conclusion of the evidence, the trial judge applied the comparative negligence statute, holding that both Sanchez and Lee had been guilty of negligence which proximately contributed to the collision; that Sanchez was, at the time, acting within the scope of his employment by Seedkem and was about the business of Seedkem and that Seedkem, therefore, was liable to Lee.

There was no substantial conflict in the evidence with respect to the material issues.

Plaintiff Lee, in addition to his own eyewitness testimony, offered these witnesses on the issue of liability: Mississippi Highway Patrolman Williams, Greenville Police Officer Wages and Sanchez. Sanchez testified for the plaintiff, Lee, (the record shows an an “adverse” witness). In substance, Sanchez said that he had delivered the truck to National Car Rentals in Greenville, from whom Seedkem had leased it, for servicing in keeping with instructions from Seedkem, that he had waited until the truck had been serviced. The servicing of the truck was completed at about 3:00 in the afternoon. Sanchez then called Seedkem, whose place of business was near Lake Providence, Louisiana, and talked to a fellow employee. He instructed this employee to have him checked out at 4:30 p. m. and told him that afterward he would not return immediately to Louisiana but would visit with relatives in Greenville.

On cross-examination, Sanchez admitted that his statement that he was going to visit relatives in Greenville was “a complete fabrication and falsehood.” He testified that in reality what he intended to do was to go and have some drinks. He said that he left National Car Rentals at about 3:00 in the afternoon and drove the truck to a place known as the Riverdale Club where he stayed about three hours drinking beer and shooting pool. From there he drove to another similar establishment known as “B’s” where he stayed until about midnight and continued his beer drinking.

Sanchez testified that the reason he made a false report to Seedkem by telephone was that he knew that Seedkem had a “strict policy against drinking on the job.” He said that his instructions had been that when he returned to his home at Lake Providence to take the vehicle to his home and keep it there until he reported for work on Monday morning. There is no testimony that he had permission to use the truck for personal business or pleasure.

The account of the collision itself given by Sanchez was to the effect that, at about midnight, after some nine hours of beer drinking and pool playing, he decided to leave B’s and started back toward Louisiana on Highway 82. After going two or three miles, he had developed a headache (not surprisingly) and said that he intended to return to B’s, the place he had just left, in order to get an aspirin. On leaving B’s, he had proceeded only two or three miles in a westerly direction on Highway 82. Highway 82 is a four-lane highway and Sanchez turned south across the median for the purpose of entering the east bound lane of the highway. In order to return to B’s it was necessary that he proceed east to the next interchange and turn north and then west. He stated that he “was going to make a left turn at the median there,” and said that it was then that the collision occurred. He said that prior thereto he saw no vehicles to his rear and insisted that only one car was involved in the collision. He said he was slowing down to make a left turn, that he was on the inside lane next to the median.

On cross-examination, Sanchez admitted, as he had testified on a previous occasion, that his instructions had been that he was to have the truck serviced, go back home and park it there at his house. He admitted that he understood from his instructions that after the truck was serviced he was to bring it “right back” to his house in Louisiana and that he understood his instructions were to take the truck right on back to his house in Louisiana after it was serviced in Greenville.

The collision occurred at the intersection of Highway 82 and Cypress Lane Road, at the City of Greenville. It was investigated by Mississippi Highway Patrolman Williams. Williams testified for plaintiff. He said that two other vehicles had been involved in the collision with the vehicle driven by Sanchez. Although the evidence is incontrovertible that this was true, Sanchez denied it throughout his testimony. He stated that the damage to the truck had been to the left front tire, bumper and fender. Patrolman Williams said that Sanchez was drunk, (Sanchez had said that he didn’t “think” that he was). Patrolman Williams said that his conclusion was based upon the fact that “He (Sanchez) was unsteady on his feet, from the way he was talking, he was blushed around the face, his eyes were red and I could also smell alcohol-not only on him but on his clothes also.” He testified that plaintiff Lee told him at the scene that as he approached “travelling east toward Greenville” that he had seen the Sanchez truck “on the right shoulder of the road . . . headed east toward Green-ville.” As he (plaintiff Lee), approached Sanchez’s vehicle it began to pull to its left, out on the road, and he, plaintiff Lee, switched lanes. As he switched lanes Sanchez’s vehicle hit him. The other truck involved, was being driven by one McGee. Patrolman Williams said “-I talked to him (McGee) and he said he saw the first accident and was going to try to go around and that is when the other truck hit him-where the bob truck hit him.”

Patrolman Williams testified, without objection, that in his investigation that he had learned that just prior to the accident the bob truck had been parked off the right hand side of the road, facing Greenville and that the two pickups which collided with it, were also headed toward Greenville. He testified that plaintiff Lee had told him that as he (Lee) approached it (Sanchez truck) pulled out into the highway and as it did he (Lee) switched to the left lane, and in the process of switching to the left lane it was at that point in which the vehicles collided. Patrolman Williams said that when he arrived at the scene, none of the vehicles had been moved, the front of the bob truck was headed east.

Patrolman Williams testified “There were three vehicles involved, one vehicle being a bob truck (Sanchez) belonging to National Car Rentals and two pickup trucks involved. One of the pickup trucks was off in a barpit on the right side of the road which would be the east bound lane and was overturned.” Patrolman Williams took photographs of the scene which appear to support his testimony. These photographs indicated that the first vehicle and the bob truck collided in the right hand east bound lane and the second at about the center line of the east bound lane, the bob truck (Sanchez) coming to rest in the median.

Greenville City Police Officer Dyer also went to the scene and testified for plaintiff. He said that “The man (Sanchez) was unsteady on his feet; he wasn’t falling down drunk or anything of that nature, but he was unsteady on his feet and in my opinion should not have been operating a motor vehicle.” When Dyer was asked if he (Sanchez) was drunk or sober he answered “Drunk. Too much to be driving.” He stated that he noticed nothing abnormal about the drivers of the other vehicles.

Plaintiff Lee, testifying in his own behalf as an eyewitness, said:

He (Sanchez) was coming off the shoulder of the road and I was in the right hand lane, the eastbound lane-he had done come across that part, so I went to the left hand lane trying to get around him-there wasn’t no way I could stop it happened so fast and he was coming across the lane and I hit him.

He also testified that “It looked like he (Sanchez) was drunk-he was trying to direct traffic and they arrested him.” He testified that when he first saw the bob truck it was located on the right shoulder of the highway headed east. He said he first noticed the truck on the shoulder of the highway when it began pulling out into his lane of traffic. Plaintiff Lee testified further:

A. He (Sanchez) pulled off the shoulder-see, I was in the right hand lane and he pulled off the shoulder into the right hand lane, so I went to the left hand lane-it was still the eastbound traffic lane-to try to get around him.
Q. Where was your truck and the bob truck located with reference to the two lanes when the impact occurred?
A. In the center of the left hand eastbound lane.

The trial judge delivered an opinion in which he stated a number of conclusions, including the following:

Sanchez was at various times about the business of his principal acting as agent and at other times had deviated from his agency relationship and was engaged in certain personal activities. For example, the time he spent at the Riverdale Lounge was a deviation from his agency relationship-it was his personal pursuit. The time that he spent at “B’s” place was a deviation from his agency relationship and was his personal pursuit. Earlier he had the truck serviced which was in the service of his principal. During those periods of time when he was moving that truck in the direction of Lake Providence, Louisiana, between the episodes of his drinking in these lounges or beer joints he was, nevertheless, in the service of his principal.... [Although he in some respects violated rules of his principal or master he, nevertheless, had a common understanding as to sufficient latitute (sic) about his taking care of the truck; . . . Now, at the precise moment when the accident took place was he in a deviation from the agency relationship or was he on his master’s business-his principal’s business? There is substantial testimony that he was making a “U” turn at the time. This “U” turn would have taken him from a generaly (sic) easterly direction toward a generally westerly direction or toward the Mississippi River bridge and presumably to Arkansas and Louisiana on the other side. In other words, back home-back to the place of his principal’s place of business. . . . Whatever his intent was in his fairly into-cicated (sic) state his actions were to divert this truck from a direction away from Louisiana in a “U” turn to go toward Louisiana where it was his duty to return the truck. . . . Finally, the Court concludes that at the time of the impact with the plaintiff’s vehicle Mr. Roy Sanchez was indeed and in fact acting as the agent of his principal at that precise moment Seedkem South a/k/a Tenatek, Inc. This is not to say this was not an interesting itenerary (sic). It is almost as if to say that if he had had a collision with someone while driving into one of these beer joints in the driveway, he would have been in a period of deviation. If he had hit somebody while driving out of the beer joint toward Louisiana, he would have been resuming his employment. Notwithstanding the difficulties of the exact sequence of times and moments of time, the Court has concluded that which the Court has found here. So much for the agency relationship.
(R.106).

The trial court made it clear in its opinion that Sanchez’s activities during the nine hour beer drinking spree had indeed constituted a deviation from the scope of his employment by Seedkem. The court noticed, however, that Sanchez had left B’s and had driven two or three miles in a westerly direction on Highway 82 toward Louisiana before he made a decision to return to B’s for an “aspirin.” On making that decision, Sanchez had made a U-turn left, entering the east bound lane on Highway 82 and had proceeded along Highway 82 in an easterly direction toward Green-ville. It was Sanchez’s further purpose or intention (in his secret mind) to make another U-turn and, that completed and the median crossed, to turn back west and proceed for a couple of miles in order to return to B’s. Apparently it is only assumed that, having gone back to B’s and taken his aspirin, Sanchez, at some unspecified future time, would again leave B’s and again start back in the direction of Louisiana. It is clear from the eye-witness testimony of plaintiff Lee that only the first act which can be construed as having been consistent with this projected procedure had been performed, when Sanchez, from a parked position on the right shoulder of the east bound lane, reentered the highway from the right, into the path of plaintiff Lee who himself was travelling in the right hand east bound lane and it is there that the collision occurred, all vehicles “pointed toward Green-ville.”

We have found no case in which the facts were comparable to the undisputed facts in this case. An examination of the authorities would indicate that each case has been decided on the basis of its own peculiar facts and circumstances. The plaintiff, Gary Lee, testified in his own behalf as an eye-witness to all of the facts and circumstances immediately prior to, at the time of and following the collision. He is bound by his own testimony. He stated unequivocally that when he observed the truck operated by Sanchez it was parked on the right shoulder of the east bound lane headed toward Greenville and that the collision occurred when it pulled into his lane, which was the right hand east bound lane of the highway, and that he tried to go around the truck, but was unable to do so.

We think the conclusion of the trial court that Sanchez was making a U-turn “at the time” is contrary to the testimony of the plaintiff as an eye-witness. Sanchez had made a U-turn but it was to travel east. The trial court said that when and if the second U-turn had been completed Sanchez would have then been headed back to his principal place of business in Louisiana, if he had turned west to go to B’s. Sanchez did say that it was his purpose to make another turn and go back west to B’s. Actually, the testimony of Sanchez was that he purposed to make a U-turn in order to go back to B’s for an aspirin. There can be no question that all of the vehicles were headed easterly toward Greenville at the time of the collision. The plaintiff is bound by his own eye-witness testimony that this was a fact. The same thing applies to Sanchez’s statement that he was in the left lane when the plaintiff testified positively that Sanchez was on the right shoulder of the east bound lane, that he, plaintiff, was in the right hand east bound lane, and that it was when Sanchez turned left into the right hand east bound lane that the collision occurred.

The trial court said: “Whatever his intent was in his fairly intoxicated state his actions were to divert this truck from a direction away from Louisiana in a “U” turn to go toward Louisiana where it was his duty to return the truck.” Actually, of course, Sanchez only said that he was returning to B’s for an aspirin.

No one can know what Sanchez, in his intoxicated condition, had intended to do if the collision had not occurred. It is clear from the record that Sanchez remembers little about it. He even denies colliding with two automobiles, although it is an incontrovertible fact that he did. In any event whatever he intended to do eventually, it was only something he “intended” to do but had not done. As a matter of fact, it is quite likely that throughout the nine-hour drinking spree he “intended” at some time or other to return home to Louisiana.

We have concluded that the correct rule in cases of this kind with regard to the liability of employer for tortious acts of his employee is correctly stated in 35 Am.Jur., p. 989, Master and Servant, par. 555, which this Court quoted with approval in International Shoe Co. v. Harrison, 217 Miss. 152, 63 So.2d 837 (1953):

“The general rule is that if an employee who is delegated to perform certain work for his employer steps or turns aside from his master’s work or business to serve some purpose of his own, not connected with the employer’s business, or, as it is often expressed, deviates or departs from his work to accomplish some purpose of his own not connected with his employment-goes on a ‘frolic of his own’-the relation of master and servant is thereby temporarily suspended, and the master is not liable for his acts during the period of such suspension; he is then acting upon his own volition, obeying his own will, not as a servant, but as an independent person, even though he intends to and does return to his employer’s business after he has accomplished the purpose of his detour from duty. The test of the employer’s liability for the act of an employee who departs from the employer’s business for purposes of his own is whether he was engaged in his employer’s business at the time of the accident, and not whether he purposed to resume it. The employee is, so long as he is engaged in affairs of his own or in pursuing some purpose unrelated to his master’s business, acting as much outside the scope of his employment as he would be were his working day ended, or his task completed, and thus his employer is relieved from liability for the consequence of any tortious conduct committed by the employee during that period, however short it may be.” (Emphasis added).

Applying the above rule to the particular facts of the present case, we have reached the conclusion that under the testimony offered by plaintiff, including his own eye-witness testimony by which he is bound, the deviation having been established, no such return to duty had taken place as would place the acts of Sanchez as having been performed within the scope of his employment by Seedkem so as to render Seedkem liable therefor under the doctrine of respondeat superior. The case will be reversed and a judgment will be entered here for Seedkem.

REVERSED AND JUDGMENT ENTERED HERE FOR SEEDKEM.

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

BOWLING, J., PATTERSON, C. J., and LEE, J., dissent.

SUGG, Justice,

specially concurring:

I specially concur in the majority opinion. Sanchez admitted he was told to drive the truck directly from Greenville, Mississippi to Lake Providence, Louisiana immediately after the truck was serviced in Greenville. On cross-examination the following appears in the record:

Q. The fact of the matter is that Mr. Vining told you did he not to get the truck serviced in Greenville and bring it right on back to Louisiana. That is correct is it not?
A. He said keep the truck at home over the weekend.
Q. But he told you after you got it serviced to bring it right on back didn’t he?
A. He didn’t say right on back-he said just come on back and I’ll see you Monday morning.
Q. But he said after it was serviced to come on back-he said that didn’t he Mr. Sanchez?
A. I assume-I guess he did. I don’t know.
Q. Well, earlier you gave me a deposition in this case and I asked you that very question, if Mr. Vining didn’t tell you to get the truck serviced and bring it right on back and you said yes, didn’t you? MR. DYER:
If the Court' please, I would like him to refer to the deposition page and answer to the question.
THE COURT:
The Court will pretermit its ruling pending the predicate that may be laid.
Q. Mr. Sanchez, do you remember giving me a deposition-when you came to my office and I asked you some questions?
A. I remember, yes.
Q. Do you remember me asking you as to whether Mr. Vining said when you get the truck serviced you were to come on back and park it at your house?
A. Yes, I remember that.
Q. Now, I’m handing you your deposition-at the bottom of page 22 starting at line 17 I asked you “Did he not tell you to bring it back and park it just after you got it serviced?” You said, “No, he didn’t say that.” I said, “What did he say then?” Your answer was, “He said when I get the truck serviced, you know, just come on back home and park it there at the house.” My next question was, “So it’s your testimony that he said when you get the truck serviced come on back and park it at your house.” You answered, “Yes.” My next question says, “Didn’t you understand from that that after the truck was serviced you were to bring it right back to your house in Louisiana?” Your answer was, “Say what now?” Then I said, “Didn’t you understand after you talked to Mr. Vining that after the truck was serviced here in Greenville you were to leave the National Car Rental people and take the truck right on back to your house in Louisiana?” Your answer was, “Yes, I guess so.” Then I asked again, “I’m sorry I didn’t understand you.” You said, “I said yes.” So, it is correct is it not that you understood that after you talked with Mr. Vining that immediately after the truck was serviced you were to take it right on back to Louisiana?
A. Yes.
Q. And that is your testimony today?
A. Yes, sir.

John Bertram, a witness for Seedkem, testified that he had a conversation with Sanchez on the afternoon of May 27, 1978 and, with reference to the conversation, stated:

A. Well, he was over here in Green-ville somewhere when I talked to him and he said he was-he was supposed to have serviced the truck over here which he did, and he said he was through and it would take him about two hours to get back home-that he was going to stop by his brother-in-law’s or cousin or something for a few minutes, and then would proceed to his house, and told me to go ahead and give him the two hours it takes to get from our warehouse to here and clock him out.

Sanchez was directed to drive the truck directly from Greenville to Lake Providence immediately after it was serviced, and according to Sanchez’s statement to Bertram, the truck could have been driven from Greenville to Lake Providence in about two hours. Sanchez deviated from the directions given him by his employer and the accident occurred during the deviation.

WALKER, J., joins in this opinion.

BOWLING, Justice,

dissenting:

I dissent.

Under our system of jurisprudence certain entities have the duty, responsibility, prerogative and right to make findings of fact in disputed litigation issues. That duty and right is never in this Court unless it can be said with reasonable certainty that the first obligor was manifestly wrong. In this case, the trial was had before the County Judge in Washington County sitting without a jury. His findings of fact were held to be correct in the appeal to the circuit court. With deference, the majority opinion consists in a large part of findings of fact, some of which are unsupported by the record.

As indicated in the majority opinion, the basic issues in the case revolve around whether or not the driver of appellant’s truck was engaged in a deviation from his duty as an employee or had abandoned a deviation and resumed what he was obligated to do under his employment.

It is undisputed that appellant’s driver was instructed to make three deliveries in Arkansas on Saturday morning, after which he was to take the truck to Greenville, Mississippi, for repairs. He was then specifically instructed to take his employer’s truck home for safe-keeping over the weekend and return it to the employer’s place of business on Monday morning. There is only one route from Lake Providence, Louisiana, to and from Greenville, Mississippi, and that is Highway 82 which consists of a bridge over the Mississippi River. It is undisputed that the admitted deviations to the two “night spots” were along this sole and direct route back to Arkansas.

It is undisputed that appellant’s driver deviated on the route back to his home where he was to store the truck [at no specific time] when he deviated two times to enter two nights clubs for the purpose of beers and pool. It is undisputed that he left the second night club and headed in a westerly direction toward the Mississippi River and Arkansas. It is undisputed that because of a severe headache he decided to return to the last night spot and secure either BC’s or aspirins, there being no other place to purchase such going westerly. Contrary to the implications of the majority opinion, the driver stated positively, and as obviously believed by the trier of fact, that he was not going to get another beer or engage in any other activity. The trier of fact believed him even though the majority here does not. With all due deference, it is obvious that the fact that appellant’s driver had been drinking has greatly influenced the writer of the majority opinion, and certainly unjustifiably in this instance. I respectfully submit that the statute and case laws regulating situations such as that before us were designed to protect the traveling citizens from inebriated drivers as well as those who are cold sober. The majority opinion quotes excerpts from the opinion of the county judge. Parts not quoted include the following:

Actions taken in other words to further the purpose of taking this truck back home where from the totality of circumstances the court concludes that the established employer-employee relationship permitted him to keep this vehicle overnight or during weekends, there being no evidence here that there was any objection to that arrangement on the part of the employer. Notwithstanding the areas of seeming contradiction as to the timeliness of his return of the truck, the court concludes that he had the truck in his possession with his principal’s approval until the following Monday morning. He was not obligated to take it back to the employer’s place of business when he got back to Lake Providence...
Suffice it to say that there was no restrictions previously imposed that would prevent his having access to the truck, provided that he ultimately brought it back to Lake Providence, Louisiana.

The lower court then found as a fact that the driver was engaged in making a “U-turn” to resume his westerly travel on his direct route when the collision occurred. The court stated:

To narrow this down, however, we must look to the question of what is the effect of his assertion that he had a headache, and that he was going to make this “U” turn in order to go back to what is inferred here as “B’s” Lounge although there seems to be some difficulty of recollection by the witness Mr. Sanchez as to the exact name of this place. He was prompted about that and the court concludes that it was a place called “B’s” place that he was headed to. He asserted that he was going to get an aspirin or BC powder to deal with his headache. He rejected the notion that he might have done that over across the bridge in Arkansas because he didn’t know of any place that was open. He knew that “B’s” was open and that is where he was headed. It may be significant that he did not assert in his testimony that he needed to go back to Greenville and get this aspirin or this BC. He was making a “U” turn, thus turning his vehicle in a westerly direction headed toward Louisiana if that notion is correct. The court concludes that in this sense whatever may have been the reason for his headache, and we have no medical testimony-no expert testimony here-as to what may have induced the headache although we do know about the drinking, the court would only be speculating to surmise the reason for the headache, if, indeed, his purpose was to reduce the impact of that headache it can reasonably be concluded that his purpose was to be able to drive his vehicle better to go in whatever direction he was going. This would not be unlike the operation of an airconditioner in the face to wake the driver of a truck up so that he could better drive the truck. Even if that be in error, actions sometime speak louder than words.

The majority opinion quotes from the testimony of appellee, Gary G. Lee, in justifying the writer’s opinion that appellant’s driver was not attempting to make a U-turn as found factually by the trier of fact. He only quotes Lee as testifying that the driver was coming off the shoulder of the road and was in the righthand lane and made no reference to what appellant’s driver was attempting to do when observed by Lee. With all due deference, the writer of the majority opinion is misleading in discussing Lee’s testimony. On page 68 of the record, appellee testified as follows:

Q. What, if anything, unusual happened on the route home?
A. There was a white bob truck on the right hand side of the road making a “U” turn. When I got upon him he was making a “U” turn and I tried to go around him. I couldn’t get around him and my truck caught the front of his truck and tore the side up and I slid sideways down into the ditch and turned over.

On page 85 of the record, we find the following testimony from appellee Lee:

Q. When you first saw the bob truck, tell the Judge where it was located?
A. On the shoulder of the highway.
Q. Off the right hand shoulder of the highway?
A. Yes, sir.
Q. Was it stopped?
A. I don’t know if it was stopped-the first time I noticed him he was on the shoulder of the highway starting to make a “U” turn.

It is abundantly clear, therefore that in order to reverse the trier of fact on his finding that appellant’s driver was attempting a “U” turn at the time of the collision, the above testimony would have to be entirely ignored. The majority opinion attempts to confine Lee’s testimony, and, with deference, this just cannot be done with the above positive testimony. The majority opinion states that “Lee is bound by his own testimony.” We would go further and say that this Court is bound by the lower court finding the above quoted testimony to be true. How can the majority say that the trial court’s finding regarding the “U” turn is contrary to the testimony of appellee as an eyewitness in the face of the above quoted testimony?

In addition to the finding of fact regarding the ending of the deviation by appellant’s driver, it is undisputed, abundantly clear, and without any doubt, that the driver was doing exactly what he was instructed to do. He was taking appellant’s truck home to safeguard it over the weekend and return it to the place of business on Monday morning.

The leading case on the question of deviation of an employee is Barmore v. Vicksburg, Shreveport and Pacific Railway Co., 85 Miss. 426, 38 So. 210 (1904). This Court said:

The master is responsible for the negligent acts or omissions of his servants in the course of their employment, though unauthorized or even forbidden by him and although outside of their “line of duty,” and without regard to their motives. . .
In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, was he at the time doing any act in furtherance of the master’s business? If a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable; but if the servant, while engaged about his master’s business, merely deviates from the direct line of duty to accomplish some personal end, the master’s responsibility may be suspended, but it is established when the servant resumes his duty. Even if in violation of expressed orders, a deviation from is not an abandonment of the master’s service.
... in cases where the servant has made a temporary departure from the service of the master, . . . when the object of that departure has been accomplished, and the servant re-engages in the discharge of his duty (returning the truck to Louisiana as Roy Sanchez had been instructed to do), the responsibility of the master instantly attaches. Any other conclusion would leave us without any definite rule, in cases of temporary abandonment of duty, to determine when the servant re-entered the scope of his employment. (Emphasis ours).

This Court, in Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495 (1924), stated that:

In order to hold a master liable for the act of his servant, it is not necessary to show that the act in question was either expressly or impliedly authorized by the master. If the servant, at the time that the wrongful act was engaged for the master in a general scope of his employment, though acting contrary to the expressed instructions of the master, still the latter is liable. Or putting the same principle in another way, if the servant, when he committed the wrongful act, was acting in furtherance of the master’s business for which he was employed, the master is liable, although the servant in the doing of the act has, contrary to the instructions of the master, stepped beyond his authority.

In Jenkins v. Cogan, 238 Miss. 543, 119 So.2d 363 (1960), this Court stated:

. . . The general rule is well recognized . . . that where a servant commits a tor-tious act in furtherance of his master’s business and within the real or apparent scope of his authority, the master becomes liable notwithstanding the fact that the act may not have been within the actual scope of the servant’s employment.

Jenkins, supra, cited as authority 35 Am. Jur., Master and Servant, page 994, as follows:

. . . when it is asserted that the employee acted without the knowledge of the employer and without his approval, or in violation of his orders and instructions, the question of liability, as in other cases, is determined by whether the employee was in fact acting within the scope of his implied or apparent authority.

The above principles were further set out by this Court in Thrash v. Jackson Auto Sales, 232 Miss. 845, 100 So.2d 575 (1958), and Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 666 (1956).

As stated at another point in this opinion, the law of agency as set out above was, of course, promulgated to protect employers from wrongful liability. I state without hesitation, however, that those principles of law and jurisprudence have also been promulgated in this jurisdiction, as well as others, for the purpose of protecting all the other users of the highway in addition to the employer’s vehicle.

I reiterate that this Court should be extremely careful to find that the trial judges who hear these questions of fact and witness the participants in the trial be given their due respect regarding their findings. To do otherwise would weaken the court system greatly. Specifically, I cannot be a party to picking out certain parts of a record and using that and immaterial facts to justify stating that the lower court erroneously refused to reach a sound factual conclusion. I would affirm the cause.

PATTERSON, C. J., joins in this dissent.

LEE, Justice,

dissenting:

I would affirm the judgment of the lower court, and, therefore, I respectfully dissent from the majority opinion.

The record reflects, and the trial judge found, that there were no restrictions previously imposed upon Sanchez that would prevent his having access to the Seedkem truck, provided that he ultimately took it to Lake Providence, Louisiana. No routes were designated for him to follow, he was not prohibited from stopping along the way, nor was his conduct outlined. Also, the trial judge found that Sanchez was en route to his Lake Providence home at the time of the collision. Under those facts and findings, and the authorities cited in the dissent by Mr. Justice Bowling, in my opinion, the judgment of the lower court should be affirmed.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    Willie M. CARROL, Jr. v. STATE of Mississippi.
    No. 52317.
    Supreme Court of Mississippi.
    Dec. 17, 1980.

      Rex K. Jones, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Willie M. Carrol, Jr. was indicted for murder in the shooting death of J. W. Hart-well. He was tried on that charge in the Circuit Court of Lawrence County, convicted and sentenced to life imprisonment. He has appealed, assigning as error requiring reversal:

(1) The trial court committed error in admitting evidence tending to show the commission of other crimes by appellant, such evidence not tending to establish identity, guilty knowledge, intent or motive.

(2) The trial court committed error in orally instructing the jury after the jury had retired for the purpose of considering its verdict.

Carrol and Hartwell were friends and neighbors in the China Lee Community of Lawrence County. On the afternoon of September 10, 1979 an argument between the two occurred on Hartwell’s porch. Car-rol began walking away from Hartwell in the direction of his nearby house trailer. The evidence is conflicting as to what occurred at this point. Carrol testified that Hartwell had followed him, taunting and threatening him. He said that Hartwell pulled a knife and advanced upon him. Carrol said that it was then that he had shot Hartwell and that in doing so he acted in self-defense. Hartwell died as the result of six gunshot wounds.

• Carrol’s claim that he had acted in self-defense was corroborated by the testimony of his daughter, who was an eyewitness to the shooting. Two other eyewitnesses disputed this testimony. They testified to the effect that they saw Carrol shoot Hartwell but did not see Hartwell advance upon Car-rol with a knife.

After the shooting, Carrol asked a bystander to take him to the sheriff’s office so that he might surrender. After having been driven about a mile, Carrol asked the driver to return to the scene as he was afraid that someone might remove the knife from Hartwell’s body.

Afterward, when the sheriff arrived, he found Carrol at his trailer. Carrol pointed to Hartwell’s body, told the sheriff that he had shot him, and gave the sheriff his gun. Hartwell was dead at the time. On examination of the body by the sheriff the only possible weapon found by him was a pocket knife “folded up” in Hartwell’s back pocket.

POINT I:

The testimony which forms the basis of this assignment was elicited by the district attorney. Its purpose was to show that Carrol had carried a gun on his person prior to the killing of Hartwell.

Under questioning by the district attorney, the witness stated that he had seen Carrol carry a pistol. When the witness was asked if he had seen Carrol carry the pistol “around the house” there was an objection by defense counsel:

I object to this line of questioning, your Honor.
BY THE COURT:
I’ll overrule the objection at this time.
(The district attorney continued)
Q. Where did he usually carry the pistol?
A. Well, when he would-
BY DEFENSE COUNSEL:
I object to that.
(District Attorney, Continuing)
A. -Carry it.
BY DEFENSE COUNSEL:
That has nothing to do with this case.
BY THE COURT:
All right, I’ll sustain the objection unless a predicate is laid in the proximity of the time this occurred.
(The District Attorney Continuing)
During that day or maybe the day before this happened, did you ever see Willie Carrol with a pistol?
A. Oh, yeah.
Q. Right during this time?
A. Yeah. I didn’t see him with it that day until he shot Hartwell.
Q. But did you see him with a pistol the day before-
DEFENSE COUNSEL:
I object to that, your Honor. That has nothing to do with it.
BY THE COURT:
I’ll overrule the objection to that question.
(The District Attorney Continuing)
Q. Okay, you can answer that.
A. Well, I worked everyday. I didn’t hardly see him everyday-I worked everyday.
Q. Well, within a few days right before this happened, did you ever see Willie Carrol tote a pistol around with him?
BY DEFENSE COUNSEL:
I object to that question. It’s immaterial.
BY THE COURT:
I’ll overrule the objection.
(The District Attorney Continuing)
A. Yes, I have seen him tote it.
Q. Do you know why he was toting it?
A. No, sir, I sure don’t.
Q. Was he taking it to work with him?
A. Well, I don’t know. I never did work with him. I don’t know whether he was carrying it to work with him or not.
Q. But he was toting a pistol around?
A. He would tote one when he would be going off somewhere-just out riding around-
BY DEFENSE COUNSEL:
I object to that question and answer and move that the answer be striken.
BY THE COURT:
All right, I’ll sustain the objection and advise the jury to disregard the answer.

It is now argued that this testimony was fatally prejudicial and that the trial court’s actions with respect to it constituted reversible error. However, several aspects of the matter immediately present themselves. It is to be noted that, although objections were made from time to time, no specific grounds for such objections were assigned except that the testimony was “immaterial” or had “nothing to do” with the case. This Court has held repeatedly that where no specific ground for an objection is assigned that, ordinarily, the trial court cannot be put in error for overruling it. Stringer v. State, 279 So.2d 156, 158 (Miss.1973). See also: Williamson v. State, 330 So.2d 272 (Miss.1976); Pierce v. State, 289 So.2d 901 (Miss.1974), Berry v. State, 288 So.2d 457 (Miss.1974).

Be that as it may, at the conclusion of the examination relating to this subject, on objection of defense counsel the trial court sustained the objection and stated:

BY THE COURT:
All right, I’ll sustain the objection and advise the jury to disregard the answer.

It is the well established rule in Mississippi that where a trial judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of the jurors. Forrest v. State, 352 So.2d 1328 (Miss.1977), Herron v. State, 287 So.2d 759 (Miss.1974), Myrick v. State, 290 So.2d 259 (Miss.1974).

In Johnson v. State, 341 So.2d 660 (Miss.1977), this Court stated that when a trial court sustains an objection to improper testimony and admonishes the jury not to consider it, it is presumed that the jury followed the directions of the trial judge.

Moreover, in this case, when the trial judge sustained defense counsel’s objection and advised the jury not to consider the testimony, defense counsel did nothing further. Under the circumstances, the trial judge was justified in assuming that defense counsel was satisfied with his disposition of the matter, the objection having been sustained and the jury having been advised not to consider the objectionable testimony.

Under the stated circumstances, if defense counsel considered the admonitions by the trial judge inadequate, or if he considered that the matter was of such a prejudicial nature or had so inflamed the minds of the jurors against the defendant that the admonitions of the trial judge were ineffective in removing its harmful effect, it was necessary at that point that defense counsel move for a mistrial. The facts and circumstances reflected by the record in this case are not such as would require the trial judge, on his own motion, in the absence of any request by defense counsel therefor, to enter a mistrial. No reversible error was committed by the trial judge in connection with his handling of this matter.

POINT II:

A more difficult question is presented by appellant under this assignment. Written instructions were prepared by counsel for both sides and presented to the trial judge for granting or rejecting. Among those granted the State were S-4 (Appendix No. 1) and S-6 (Appendix No. 2).

Both the State and defense were granted instructions defining manslaughter and, on the evidence, there was a real factual question of whether the homicide was murder or manslaughter.

After the jury had retired and had begun its deliberations the following occurred:

BY THE COURT:
All right, the bailiff advised me that one member of the jury has stated to her that they might want to ask me a question; is that the purpose of the jury coming back in the Courtroom or has the jury reached a verdict?
BY JURY MEMBER:
No, sir, we want to ask a question. BY THE COURT:
All right, sir, what is the question?
BY JURY MEMBER:
We need an interpretation of premeditation.
BY THE COURT:
All right, now, the only thing I can say to the jury is what is already covered in the instructions. Now, on the instructions, the word malice aforethought has been used. Is that the same definition that you need?
BY JURY MEMBER:
Possibly, we were considering premeditation-a length of time.
BY THE COURT:
Let me go to Jury Instruction S-4, which states: The Court instructs the jury that murder is the wilful, unlawful and felonious killing of a human being with malice aforethought without authority of law by any means or in any manner when done with deliberate design to effect death of the person killed and not in necessary self-defense. Now, that is the definition of murder, and I have looked at the instructions again and premeditation is not used in the instructions. So, the jury is instructed with the phrase malice aforethought.
BY JURY MEMBER:
Could you give us an interpretation of malice aforethought?
BY THE COURT:
In what regard, now?
BY JURY MEMBER:
Is it planned or is it just the thought?
BY THE COURT:
All right, let me say this. All I can say about malice aforethought is that there is no time limit as long as the malice aforethought existed before the incident occurred, and there is no definition of law of any length of time.
BY JURY MEMBER:
All right, I think that answers that.
BY THE COURT:
Does that answer your question?
BY JURY MEMBER:
Yes, sir.
BY THE COURT:
All right, if the jury will go and retire, and when you have reached a verdict, knock on this door and the bailiff will so advise me.
THE FOLLOWING PROCEEDINGS WERE HAD OUT OF THE PRESENCE OF THE JURY:
BY MR. TURN AGE:
Comes now the defendant and moves the Court for a mistrial on the grounds of the jury has been orally instructed by the Court and further, that the province of the jury has been invaded by the comments made to the jury by the Court. BY THE COURT:
All right, let the motion be and the same is hereby overruled.

It is argued on behalf of the State that the trial judge did not give a “full” definition of malice aforethought and, for that reason, did not offend against the ruling of this Court in Smith v. State, 237 Miss. 626, 114 So.2d 676 (1959). It is suggested by the State that the Court merely enlightened the jury as to whether malice aforethought had to be entertained for any length of time or not. The State asserts that the judge’s instructions were in line with principles stated in Goldsby v. State, 226 Miss. 1, 78 So.2d 762 (1955) and Carter v. State, 199 Miss. 871, 25 So.2d 470 (1946). It is pointed out that no contemporaneous objection was interposed “while the court was instructing the jury.” It is argued, therefore, that in the absence of a specific contemporaneous objection the action of the trial judge cannot be .made the basis of error for the first time on appeal. Rayburn v. State, 312 So.2d 454 (Miss.1975).

The case had been tried, submitted to the jury and the jury was engaged in its deliberations for the purposes of deciding the eventual outcome. To require intervention and objection by defense counsel during the colloquy between the jury and the trial judge, in which the jury was seeking information and the trial judge was giving it, would be unreasonable and prejudicial. A motion for a mistrial was made by defense counsel immediately upon the return of the jury to the jury room and was overruled by the trial court.

It is pointed out by appellant that the homicide in this case occurred as the result of a sudden quarrel between friends and neighbors and that the State, itself, requested and was granted several instructions informing the jury that it might convict appellant of manslaughter. Under the facts and circumstances and the instructions referred to, it is argued that the action of the trial court in entering upon the above discussion, and in defining malice aforethought or premeditation to the jury was extremely harmful and prejudicial and influenced the jury to convict of murder rather than manslaughter. Ordinarily, parties are afforded an opportunity to examine and object to instructions proposed to be given to the jury. Here, no reasonable opportunity was afforded the appellant to object until the jury retired. When that happened, the defense motion for a mistrial was entered immediately. We have concluded that substantial justice and traditional notions of fair play require that the case be reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

APPENDIX 1:

The court instructs the jury that murder is the wilful, unlawful and felonious killing of a human being with malice aforethought, without authority of law, by any means or in any manner, when done with the deliberate design to effect the death of the person killed, and not in necessary self-defense.

APPENDIX 2:

The court charges the jury that murder is the felonious killing of a human being with malice aforethought, and with the premeditated design to take the life of the party killed: And that manslaughter is the felonious killing of a human being in the heat of passion and in sudden combat and without malice aforethought and without the deliberate design to take the life of the party killed.


author: SMITH, Presiding Justice:

text:
    L. B. BANKSTON v. STATE of Mississippi.
    No. 52316.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Stephen S. Cooke, Grenada, for appellant.

      Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and LEE, JJ.
   SMITH, Presiding Justice:

L. B. Bankston was indicted for the crime of armed robbery. He was tried on that charge in the Circuit Court of Grenada County, convicted, and sentenced to serve a term of thirty years imprisonment.

On appeal he has assigned the following grounds for reversal:

(1) Failure of the trial court to sustain appellant’s motion to suppress his identification by the victim;

(2) Allowing testimony on redirect examination of a witness upon a matter not brought out on cross-examination;

(3) The evidence was insufficient to support the verdict of the jury and appellant’s motion for a directed verdict should have been granted; and

(4) The sentence of thirty years imprisonment, without parole, was excessive, arbitrary, capricious and violative of the Constitution of the United States and the law of the State of Mississippi.

At about 1:30 in the morning of January 9, 1980, Dhirubha Desai, desk clerk of the Parkview Motel in Grenada, was on duty. A man entered the motel and inquired of Desai whether the driver of a white pickup truck which was parked outside had checked into the motel. As Desai moved to check the register a second man entered, approximately a minute after the first. This second man had a mask over his face and was carrying a shotgun. At this time the man who had first entered pulled his cap down into a face mask, took the gun and led Desai into another room while the second man took the money from the cash box. This man also took Desai’s wallet. The amount taken from the cash box was $258.00 and that in Desai’s wallet was $25.00.

Desai described the man who had entered the motel first as having worn a light brown jacket, cream colored pants and as having a mustache. Afterward, Desai identified Bankston as this man who had held the gun on him during the robbery.

The robbery completed, the robbers fled on foot. The police were summoned and when they arrived found a ski mask and a loaded sawed-off shotgun near the motel. Approximately an hour after the robbery, a Grenada policeman saw Bankston at a taxicab stand about three blocks from the motel. This policeman had seen Bankston two days earlier and at that time, the policeman said, Bankston was wearing his customary mustache. However, when seen by the policeman the morning after the robbery Bankston no longer had the mustache but the policeman observed that Bankston’s skin was light around his mouth and under his chin as if it had been fresh shaven. A taxicab driver also had seen Bankston earlier in the day which preceded the robbery and at that time Bankston had his mustache. The cab driver testified that when he saw Bankston after the time of the robbery the mustache had been shaved off.

The day after the robbery, the chief of police presented four photographs (including a photograph of Bankston) to Desai for possible identification of the robber. Although there were four photographs, only three people were depicted. The third and fourth photographs were of the same person which was not Bankston. Immediately upon seeing the photograph of Bankston, Desai identified him as the robber.

About a week after the robbery, Desai was asked to inspect a lineup for possible identification of the robbers and at this time Desai again identified Bankston as the robber who had held the shotgun on him while the robbery was being committed. Bankston was arrested on January 10, 1980.

Bankston was indicted for the crime and prior to trial there was an evidentiary hearing on Bankston’s motion to suppress certain evidence. Bankston contended that he had not been afforded counsel prior to the lineup, that the method of identification from photographs was unnecessarily suggestive and that the lineup had been unconstitutionally conducted. At the conclusion of the hearing on the motion it was denied by the trial judge.

Under the proposition presented on appeal it is Bankston’s contention that his right to counsel under the sixth amendment to the United States Constitution was violated at the lineup conducted by the police department, and, therefore, his in-court identification by Desai should have been suppressed. In the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and its companion case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) the United States Supreme Court held that a pretrial corporeal identification conducted after a suspect was indicted was a critical stage in a criminal prosecution to which the sixth amendment right to counsel applied. In Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court made it clear that the right to counsel attaches only “at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Appellant cites Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), as supporting his contention that he should have been afforded counsel in his preindictment lineup. Moore, however, applied the Wade — Kirby standards and held that the defendant should have been afforded counsel at a preliminary hearing where he was identified by the victim. Moore made no change in the previously announced rule that representation by counsel is not required at a preindictment investigatory lineup.

This Court has held consistently that the right to counsel does not extend to preindictment lineups. Scott v. State, 359 So.2d 1355 (Miss.1978); Fells v. State, 345 So.2d 618 (Miss.1977); Cox v. State, 326 So.2d 794 (Miss.1976).

Based upon the above authorities we have concluded that Bankston was not entitled to representation by counsel at the preindictment lineup in this case.

It is next argued by appellant that the procedure at both the photograph identification and at the lineup was so impermissi-bly suggestive that it violated Bankston’s right to due process of law.

He argues that (1) the victim (Desai) was shown police mug shots with their police markings the day after the robbery, (2) of the three men depicted in the photographs only he had a mustache and the mustache was one of the characteristics of the robber recalled by Desai, (3) the other two men in the photographs were much younger than Bankston. Bankston also made the following criticisms of the lineup procedure: (1) only one of the five men in the lineup was of comparable height with the appellant and (2) the police had suggested to Desai that Bankston had been the robber.

In an effort to minimize the risk of erroneous identification of a suspect prior to trial, the Supreme Court of the United States has laid down certain guidelines by which the identification procedure is to be tested, holding that a charge of impermissible suggestiveness must be supported by the “totality of the circumstances” in each case. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

An examination of the photographs of the lineup in the present case shows that the five other men in it were of reasonably comparable height to Bankston. His second objection, that the police told Desai that he was the robber, is not borne out by the record. The officers who investigated the crime repeatedly testified that they had made no such suggestion to Desai and Desai himself said the police had told him nothing.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court dealt with risks inherent in pretrial photographic identification. Although recognizing that a suggestive pretrial identification might lead to a misidentification of a suspect that would be adhered to throughout his trial, the Court recognized that such methods of identification enjoy wide and effective use by police and declined to bar their use. The Court held that a pretrial identification by photographs will be set aside “only if the photographic procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (390 U.S. at 384, 88 S.Ct. at 967, 19 L.Ed.2d at 1247).

The defendant was the only one of the three men depicted in the photographs who had a mustache. The victim specifically remembered the robber had a mustache. Courts which have considered the question of whether the defendant was prejudiced by photographs where he was the only one depicted with a distinctive feature, have decided that such action is impermissibly suggestive. United States v. Keller, 512 F.2d 182 (3rd Cir. 1975), (identification of defendant who was blonde, age fifty, and wore glasses from among photographs of younger women, with dark hair and not wearing glasses); People v. Carter, 46 Cal.App.3d 260, 120 Cal.Rptr. 181 (1975), (defendant was the only person depicted in photographs wearing turtleneck sweater which was sole item of clothing victim recalled from robbery); State v. McBain, 24 Or.App. 737, 547 P.2d 188 (1976), (defendant’s photograph was only one of nine photographs which depicted darkly bearded, heavy set man, where victim had described her assailant as darkly bearded and heavy set). We have found, therefore, that showing the victim only one photograph of a man with a mustache when a mustache was one of the features of the robber recalled by the victim was impermissibly suggestive.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that even if the pretrial identification procedure had been unnecessarily suggestive the identification did not have to be excluded if upon consideration of the totality of the circumstances there was no substantial likelihood of mis-identification. The Court set out five factors to be used in analyzing the totality of circumstances. These factors include:

(1) The opportunity of the witness to view the criminal at the time of the crime;
(2) The witness’s degree of attention;
(3) The accuracy of his prior description of the criminal;
(4) The level of certainty demonstrated at the confrontation; and
(5) The time between the crime and the confrontation.

(432 U.S. at 110-14, 97 S.Ct. at 2250-53, 53 L.Ed.2d at 151, 153, 154).

This Court applied the Neil tests in Stewart v. State, 377 So.2d 1067 (Miss.1979) and Scott v. State, 359 So.2d 1355 (Miss.1978). In each of those cases this Court found that the in-court identification of a defendant possessed the requisite degree of reliability despite suggestive pretrial identification.

Applying the Neil criteria to the totality of the circumstances in this case we find:

(1) Desai, the victim, testified that he saw the robber, full face, at a time when his face was not covered, for about a minute to a minute and a half from a distance of ten feet, in a brightly lighted room.

(2) The witness was the motel desk clerk (and victim) and it is logical that he would direct his full attention upon a person who entered the motel at such a late hour and engaged him in conversation, and the evidence so shows.

(3) After the robbery, the victim gave the following description of the robbers: One was approximately six feet two inches, weighed around 200 pounds and was wearing a brown coat, the other was tall, skinny and had on a long, big overcoat, bluish in color. It cannot be said that this description of the latter does not bear a real resemblance to the defendant.

(4) Desai made a positive in-court identification of Bankston.

(5) The record shows that Desai was shown the photographs only hours after the robbery and the lineup occurred only a week later.

From a consideration of all the above circumstances we are convinced that Desai’s identification of Bankston as the robber who entered first, engaged him in conversation, with no mask on his face at the time, in a well lighted motel office, is entitled to great weight and it is not surprising that he was able to recognize Bankston’s photograph the next day. The circumstances under which Desai faced the robber were such as to afford him an excellent opportunity to observe him and to impress his appearance upon his mind. Under the stated circumstances, Desai’s in-court identification of Bankston possessed the required degree of reliability despite the suggestive photographic identification. We find no merit in Bankston’s contention that the trial court’s failure to suppress Desai’s identification was error.

PROPOSITION NO. 2

During the course of the trial police officer Tilghman had testified for the prosecution and had been turned over to defense counsel for cross-examination. Defense counsel asked the witness: “In your experience as a police officer ... when a piece of physical evidence is sent down to the crime lab, isn’t it true that they usually check for fingerprints?” When the cross-examination had been completed the district attorney took the witness on redirect at which time the following occurred:

BY MR. SNYDER:
Q. Mr. Tilghman, have you ever had any training or experience in the lifting of fingerprints?
A. Yes, sir, I have.
Q. What is your training and experience in that regard?
BY MR. COOKE:
Your Honor, I object to this line of questioning. It wasn’t brought out on cross-examination.
BY MR. SNYDER:
He brought it out, Your Honor, checking for fingerprints.
BY THE COURT:
Yes, sir, I believe you did, Mr. Cooke. You opened the fingerprint question up. BY MR. COOKE:
But as far as his qualification as to fingerprints, we did not open that up. All I asked was it his experience for him to check, his physical evidence checked.

Defense counsel then requested leave to further cross-examine the witness as to the above testimony brought out on redirect. This leave was granted and a brief further cross-examination of the witness by defense counsel occurred. Appellant’s complaint is that it was error to allow the witness to give testimony on redirect not relative to the matter about which he had been cross-examined. We find no merit in this contention.

PROPOSITION NO. 3

Bankston asserts that his sentence of thirty years imprisonment without parole is unconstitutional. He acknowledges, however, that the 1980 session of the Mississippi legislature amended the statute which had not permitted parole to persons who had been convicted of armed robbery and had provided that such prisoners would be eligible for parole after serving ten years. Mississippi Code Annotated 47-7-3(d) (1972) was amended and became effective July 1, 1980.

In Harris v. State, 386 So.2d 393 (Miss.1980), this Court declared the question to be moot because of the passage of the legislation above referred to. Bankston’s eligibility for parole is a matter under the jurisdiction of the State Probation and Parole Board which must follow section 47-7-3(d) supra, as amended.

Finally, Bankston contends that the evidence was insufficient to support the verdict. An examination of the record clearly reflects that this contention is without merit.

The evidence of Bankston’s guilt amply supports the jury’s verdict. Bank-ston did not testify in his own behalf upon the trial and offered no witnesses.

A conviction will be upheld by this Court if it is based upon competent evidence. Gandy v. State, 373 So.2d 1042 (Miss.1979), McLelland v. State, 204 So.2d 158 (Miss.1967).

There being no merit in any of the matters assigned by Appellant as error his conviction and sentence must be affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Keith BAKER v. STATE of Mississippi.
    No. 52194.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Lee B. Agnew, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice,

for the Court:

Keith Baker was indicted for murder, convicted of manslaughter, and sentenced to a term of twenty (20) years by the Circuit Court of the First Judicial District of Hinds County. The only error assigned is the failure of the court to give the following instruction:

The court instructs the jury that under the law the defendant, Keith Baker, is a competent witness in his own behalf.

This instruction, in differing forms, has been considered by the Court in numerous cases with varying results.

In McVay v. State, 26 So. 947 (Miss.1900), the Court held in a one sentence opinion that it was error to refuse the following instruction:

“The Court instructs the jury that under the law the defendant is a competent witness in his own behalf, and his testimony is entitled to whatever weight the jury, as judges of the evidence may see fit to give it.”

In four cases, this Court held that the defendant was entitled to the instruction when the state obtained an instruction which told the jury it could disregard the testimony of a witness if the jury believed from the evidence such witness had sworn falsely to any material matter in the case. These cases held that, if there was any error in such instruction given for the state, it was cured by the instruction given for the defendant. These cases are: Vails v. State, 94 Miss. 365, 48 So. 725 (1908); Murphy v. State, 119 Miss. 220, 80 So. 636 (1918); Thompson v. State, 158 Miss. 121, 130 So. 112 (1930). In Murphy, supra, the Court stated:

The granting of any instruction either for the state or the defendant, which in express language compares one witness with any other witness in the case, is of doubtful propriety. The jury without any instruction of the court are left unfettered to make comparisons between witnesses, and may reject the testimony of any witness in whole or in part. The jury, in their search for the truth may accept and believe some of the statements of a witness and disregard all doubtful statements made by the same witness. It is their exclusive province to sift the whole evidence and separate the wheat from the chaff; to pick up a thread of truth here, and another there, and weave a completed tapestry of truth. And they may and should do this without an instruction either for the state or the defendant singling out and pointing to any particular witness, and asking specially that the jury give to the testimony of such witness “consideration,” or view the testimony of such witness with suspicion. There may be exceptions to this general rule, but certainly when the defendant takes the witness stand the court is not justified in either discounting or bolstering up his testimony.

In four cases this Court held it was not error to refuse an instruction in the following language:

“The Court instructs the jury for the defendant that this defendant is a competent witness in his own behalf and you have no right to discard his testimony, or look upon his testimony with suspicion, merely because he is the defendant in this case, and that if you have no other reason to disbelieve him, than the fact that he is the defendant, then you must believe his testimony to be the truth.”

These cases are: Coleman v. State, 22 So.2d 410 (Miss.1945); Conn v. State, 205 Miss. 165, 38 So.2d 697 (1949); Parrett v. State, 205 Miss. 651, 39 So.2d 272 (1949); Clark v. State, 206 Miss. 701, 39 So.2d 783 (1949). In Conn, supra, the Court held the defendant was not entitled to an instruction in the form set forth above, but was entitled to an instruction that he was a competent witness in his own behalf and that jurors had no right to disbelieve him merely because he was the defendant, and his testimony was entitled to such weight, faith, and credit as the jurors think proper to give it. The Court then stated: “That is the extent of the right and the rule.”

We have four cases holding that the defendant is entitled to the instruction only when the evidence against the defendant is wholly circumstantial. These cases are: Dunbar v. State, 159 Miss. 603, 132 So. 748 (1931); McNamee v. State, 313 So.2d 392 (Miss.1975); Phillips v. State, 374 So.2d 824 (Miss.1979); Gray v. State, 387 So.2d 101 (Miss.1980).

In the case under consideration defendant was not entitled to the instruction because the prosecution was not based wholly upon circumstantial evidence. Dunbar, McNamee, Phillips, Gray, supra. We therefore affirm for this reason, but take this opportunity to examine the propriety of giving the instruction in any case.

When McVay, supra, was decided in 1900 an accused had recently been accorded the right to testify in his own defense contrary to the common law rule. Apparently the McVay court permitted an accused to obtain the instruction because of the recently enacted statute which made an accused a competent witness in his own behalf. None of our cases have discussed the reason for the enactment of the statute, now section 13-1-9 Mississippi Code Annotated (1972), which follows:

The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.

The statute merely gives an accused the right to testify in his own behalf but does not authorize an instruction to this effect.

At common law, a party to a civil action was not a competent witness, and an accused on trial for crime was not competent to testify in his own behalf. 97 C.J.S. Witnesses, § 120; 81 Am.Jur.2d, Witnesses, § 110. Although documentation of the rationale underlying this rule is scarce, the common law regarded the accused’s testimony as incompetent upon the theory, among others, that the frailty of human nature and the overpowering desire for freedom would ordinarily induce a person charged with crime, if permitted to testify, to swear falsely. State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943).

In Murphy v. State, 28 Miss. 637 (1855) we held that a person interested was not a competent witness in civil and criminal cases. The United States Constitution did not change the common law rule and accord an accused the right to testify in his own defense. Neither did the Mississippi Constitution nor amendments to the United States Constitution change the common law rule. The right of a defendant in a criminal case in Mississippi to testify in his own defense rests entirely on statute.

Under early English common law, a defendant was not allowed to produce any witnesses. In 1702, for the first time, a defendant was allowed to produce witnesses in his behalf. Plucknett, A Concise History of the Common Law, Lawyer’s Co-Op (1936), p. 386-388. The common law was generally accepted in the United States in its entirety, and most changes in the common law were by statute. Such was the case with the rule declaring a criminal defendant incompetent to testify at trial in this state. The rule was abrogated in Mississippi in 1880 and an accused was afforded the right to testify by section 1603, Mississippi Code of 1880. This date antecedes the date the rule was abrogated in England, 1898. Plucknett at 388-389.

Section 13-1-9 was enacted for the sole purpose of abrogating the common law rule which prohibited an accused from testifying in his own behalf. The requested instruction would have told the jury that the defendant was a competent witness in his own behalf. His competency as a witness was evident by his appearance on the witness stand. If he had not been competent, he would not have been permitted to testify. There is no sound reason for a trial court to instruct a jury that any witness, including the defendant, is a competent witness. The jury, in its search for truth, is the sole judge of the worth and weight of the testimony of any witness, and should be free to make this judgment without instructions singling out or pointing to any particular witness stating such witness is competent.

Accordingly, we hold that defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf. To the extent that our cases, heretofore cited in this opinion, are contrary to the conclusions reached here, the cases are overruled.

AFFIRMED.

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

      . § 1603. The accused shall be a competent witness for himself in any prosecution for an offense committed on or against the person or property of another, when the person on or against whom or whose property the offense is alleged to have been committed shall be introduced as a witness by the state; and when admissions or confessions of the accused are admitted as evidence, he may testify as to them, but he shall not be competent as a witness in the inquiry as to the admissibility of his admissions or confessions; and the failure of the accused in any case to testify in his own behalf shall not operate to his prejudice nor be commented on by counsel.
      Section 1603 was amended by Chapter 78 Mississippi General Laws of 1882 to the language contained in Section 13-1-9 Mississippi Code Annotated (1972).


author: LEE, Justice,

text:
    ALTAMIL CORPORATION v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52447.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    J. Elmo Lang, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frank E. Shan-ahan, Jr., Asst. Atty. Gen., Jackson, Karl Wiesenburg, Sp. Asst. Atty. Gen., Pasca-goula, for appellee.
   ON MOTION TO STRIKE

En banc.

LEE, Justice,

for the Court:

Mississippi State Highway Commission (Commission) filed suit in the Circuit Court of Jackson County against Altamil Corporation (Altamil), Treadwell Ford, Inc. (Tread-well), and others for damages to the Esca-tawpa River bridge caused when the dump body of a truck struck it. At trial, the lower court sustained motions for directed verdicts in favor of Treadwell and Ford Motor Company, dismissing them from the suit. The jury returned a substantial verdict against Altamil whose motion for judgment notwithstanding the verdict, or in the alternative, a new trial, was overruled. Al-tamil then filed its petition for appeal, prepaid the costs, and executed a supersedeas bond. The only parties involved here are Altamil, the Commission and Treadwell.

From the time of Treadwell’s dismissal, no proceedings or documents were served on it until the Commission filed a cross-assignment of errors and brief, which were mailed to Treadwell’s trial counsel. Thereupon Treadwell filed a motion to strike the cross-assignment of errors and brief insofar as they pertained to it.

Altamil answered Treadwell’s motion to strike by simply stating that Altamil had no objection for enlargement of time in order that Treadwell might file whatever documents it felt necessary, and cited no authority.

The Commission responded to the motion and contended that it is authorized by law and the rules of this Court to cross-appeal as to errors claimed by it to have occurred in the trial below, if an appeal was perfected by any defendant. Further, it contended that the appeal by Altamil with supersedeas brought the entire judgment on appeal before this Court, that the Commission was entitled to file its cross-appeal as authorized by Miss.Sup.Ct. Rule 6, that the Commission brought the action in its official capacity as an agency of the State of Mississippi, and that it was not required by the statute to execute an appeal bond.

The supersedeas bond referred to was executed by Altamil and its surety in the sum of fifty-two thousand dollars ($52,000). The sole obligee in the bond is Mississippi State Highway Commission. Altamil was the only direct appellant in the action. In fact, Treadwell had no reason or right to appeal since it was not aggrieved by the lower court’s action in dismissing it.

In Bolls v. Sharkey, 226 So.2d 372 (Miss.1969), the Court said:

“On June 20, 1967, the appellee filed suit against the appellant and Hartford for recovery of the seven thousand dollar judgment. After hearing all of the testimony in the case, the judge directed a verdict in favor of the defendant, Hartford, and directed a verdict in favor of the appellee and against the appellant in the sum of five thousand dollars. Whereupon, the appellant filed an appeal to this Court. The appellee also attempted to appeal as to Hartford, but no bond was filed, and, upon motion by Hartford, the appellee’s cross-assignment of errors and that portion of the appellee’s brief which related to Hartford were stricken from the record.” 226 So.2d at 374.

The Commission in the case sub judice, and the appellee above are similarly situated.

Altamil occupies a position akin to Junkins, where, in Junkins v. Brown, 238 Miss. 142, 117 So.2d 712 (1960), it was stated:

“As to the second assignment of error the appellant cannot complain of the trial court’s granting a peremptory instruction in behalf of his codefendant Eric Cru-thirds. In this State joint tortfeasors are jointly and severally liable and may be proceeded against, at the election of the plaintiff, either singularly or jointly, individually or collectively. Bailey v. Delta Electric Light, Power & Mfg. Company, 86 Miss. 634, 38 So. 354; Sawmill Construction Company v. Bright, 116 Miss. 491, 77 So. 316; Miller v. Phipps, 161 Miss. 564, 133 So. 128, 137 So. 479; Buckley v. United Gas Service Company, 176 Miss. 282, 168 So. 462; Moore v. Foster, 182 Miss. 15, 180 So. 73; Hutto v. Kremer, 222 Miss. 374, 76 So.2d 204.” 238 Miss. at 150-151, 117 So.2d at 715.

The Commission, however, argues that it was not required to execute a bond since the suit was brought in its official capacity as an agency of the State of Mississippi. Such is true, but the Commission was not relieved from taking a direct appeal against Treadwell, which was not a party to Altam-il’s appeal, if it desired appellate relief.

Mississippi Code Annotated Section 11-51-13 (1972) and 11-51-15 (Supp.1980) provide the method of appeal in such a situation as exists here:

“The mode of obtaining an appeal from any judgment or decree, other than such as are provided for to be granted by the court or chancellor, shall be by petition, in writing, to the clerk of the court where the judgment or decree was rendered, or where the record of the judgment or decree to be appealed from may be.” MCA § 11-51-13 (1972).
“The petition for appeal need only state the rendition of the judgment or decree to be appealed from, and ask for an appeal. Such petition shall be marked by the clerk “filed,” and shall be dated and the marking filed shall be signed by him. The clerk shall copy said petition, with the endorsements on it, in the transcript of the record to be made by him. The time of presenting such petition for an appeal shall be considered the time of taking the appeal, if costs be then paid as required.” MCA § 11-51-15 (Supp.1980).

In Duckworth v. Allis-Chalmers Manufacturing Co., 247 Miss. 198, 150 So.2d 163 (1963), the Court said:

“There are no statutes or rules of this Court providing for cross-appeals. However, by long continued custom and practice, an appellee may take a cross-appeal against the direct appellant without the execution of an appeal bond, by simply filing a cross-assignment of errors, provided the entire record, or so much of it as is necessary for consideration of the cross-appeal, has been brought to this Court by the direct appeal. A cross-assignment of errors may be filed when appellee’s brief is due. [Citations omitted].” 247 Miss. at 207, 150 So.2d at 166-167.

and

“The appellee does not have the right to introduce new parties to the appeal before this Court, without making an appeal bond as to such parties who do not come before the Court on direct appeal. The decree of the trial court as to the latter is separable and independent from the decree as between the direct appellant and his appellee, Allis-Chalmers.” 247 Miss. at 210, 150 So.2d at 168.

We are of the opinion that, since Altamil was the only direct appellant in the case sub judice, and, since the Commission did not perfect a direct appeal against Treadwell in the manner provided by law, Treadwell is not now before this Court and the motion of Treadwell to strike the cross-assignment of errors and appeal insofar as they relate to it, is sustained. This motion was considered by a conference of the justices en banc.

MOTION SUSTAINED.

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

      . Miss.Sup.Ct. Rule 6 provides for cross appeals.