author: DOMENGEAUX, Judge.

text:
    Otis HIGDON, Plaintiff-Appellee, v. ORKIN EXTERMINATING COMPANY, INC., Defendant-Appellant.
    No. 8713.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Guglielmo & Lopez, James C. Lopez, Opelousas, for defendant-appellant.
    Morrow & Morrow, James P. Ryan and Patrick C. Morrow, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is a jury suit for property damage (resulting from termite infestation) to the home of plaintiff-appellee, Otis Higdon, located in Krotz Springs, Louisiana. The defendant-appellant, Orkin Exterminating Company, Inc. (Orkin), appeals from the jury verdict awarding plaintiff judgment in the amount of Seventy Thousand and no/100 ($70,000.00) Dollars, plus interest, costs, and expert fees. We amend in part and affirm.

On appeal defendant contends that the jury erred in: (1) granting judgment in favor of plaintiff; and (2) awarding plaintiff judgment in excess to the amount allowed by law. Additionally, appellant contends that the trial judge erred in (3) failing to render a remittitur or alternatively a new trial; and (4) failing to give certain jury instructions requested by it.

On January 15, 1976, plaintiff entered into a subterranean termite agreement with Orkin wherein Orkin agreed to protect plaintiff’s home against invasion and infestation by subterranean termites. The plaintiff’s premises were inspected, and a graph containing certain references to treating specifications was prepared showing the location of the termites and the termite damage to plaintiff’s home. Those references were used by a representative of Orkin who actually treated the premises on January 16, 1976.

In June of 1978, plaintiff discovered live termites and termite damage in several areas of his home, and called Orkin to investigate. Norris Richard, Orkin’s Opelousas supervisor, responded to plaintiff’s request, but reported that he found no live termites upon inspection. Plaintiff’s problem persisted, and in November of 1978, he contracted with Ferris Habbit, another pest control operator, to retreat his home. Thereafter, plaintiff filed a claim for damages with Orkin. Orkin rejected plaintiff’s claim contending that the damage to plaintiff’s home predated the contract and treatment by Orkin, and further contending that plaintiff failed to maintain the condition of his home in accordance with the contract provisions, therefore voiding any liability on Orkin’s part. This suit followed.

Our jurisprudence is well settled that questions of fact are generally left to the trier of fact, and their findings should not be disturbed unless they are clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant’s first contention is that the jury erred in casting it in judgment because the evidence clearly shows that most of the termite damage predated plaintiff’s contract with Orkin, and furthermore, Orkin is relieved of any liability due to moisture conditions which existed on the premises. We do not agree.

The pertinent provisions of the Orkin contract “General Terms and Conditions” provide as follows:

“GENERAL TERMS AND CONDITIONS
1 It is agreed that under this contract, ORKIN is not responsible for the repair of visible damage existing as of the date of this contract except as such damage is described on the Graph and Specifications and for which a specific charge for the repair of the same is made. It is possible that damage may, as of the date of this contract, exist in unexposed areas of the structure or in areas which are inaccessible to visible inspection. For this reason ORKIN cannot guarantee that the damage disclosed by visual inspection of the premises (and which is indicated on the Graph and Specification) represents the entirety of the damage which may exist as of the date of initial treatment. It is specifically understood, therefore, that ORKIN shall not be responsible for the repair of any damage which existed in areas or in structural members which were not accessible for visual inspection as of the date of this contract.
* Si! * * * *
11. If moisture and/or structural conditions which are conducive to Subterranean Termites are subsequently found to exist, then ORKIN shall be relieved of any and all liability for damage repairs.”

Several witnesses testified concerning their opinion as to when the termite damage took place. Berkman Manuel, a former employee of Orkin, made the initial inspection, and drew a graft representing the plaintiff’s home. Mr. Manuel stated that it was the policy of Orkin to inspect both the interior and the exterior of the home when making the initial inspection. The reason for the inspection is to note any old damage (on the graft) before the contract is consu-mated between the parties. In spite of this policy Mr. Manuel testified that he “slipped” inasmuch as he did not inspect the interior of plaintiff’s home. Mr. Manuel further testified that he completely inspected the underneath side of the house by taking a screwdriver and probing the sills, and the only place he found any old termite damage and/or active infestation was underneath the bathroom area.

An inspector for the Louisiana Instructional Pest Control Commission, Mancil Smith, inspected plaintiff’s home in January of 1978. He testified that if someone was under the house crawling in January of 1976, a great deal of the termite damage, if then existing, would have been visible to the naked eye. Jimmy Arceneaux, another inspector for the Louisiana Structural Pest Control Commission, likewise testified that this alleged previous termite damage would have been visible upon inspection in 1976. As previously mentioned, however, no termite damage, other than the active infestation reported in the bathroom area, was noted by Orkin just prior to its treatment to plaintiff’s residence.

In June of 1978, approximately two and one-half years after Orkin’s treatment, plaintiff became aware that several areas of his home had become reinfested with termites. Plaintiff and Marshall Schnexay-der, a local contractor, both testified that they found live termites in the front porch area as well as in the rear of plaintiff’s home. Upon contacting Orkin, one of its employees responded to plaintiff’s complaint, and, according to plaintiff, retreated the area under plaintiff’s porch. Subsequently, in November of 1978, plaintiff contracted with Ferris Habbit, a Lafayette pest controller, to alleviate the continuing problem he was having with live termites. Mr. Habbit testified that he inspected plaintiff’s home, and discovered active termite infestation in four or five areas. Mr. Hab-bit treated plaintiff’s home in November, 1978, from which time all active infestation in plaintiff’s home has ceased.

Although defendant produced some expert testimony alleging that the termite damage, at issue in this suit, represents some five to eight years of active infestation, therefore suggesting that it existed prior to Orkin’s treatment, we find no manifest error on the part of the jury in concluding that such damage did not predate the initial Orkin treatment.

As already mentioned several experts both on behalf of the plaintiff and defendant testified that if the termite damage pre-existed the Orkin contract then it would have been visible during the defendant’s 1976 inspection. Defendant’s expert, Mr. Arceneaux, also added that if a 1976 pretreatment inspection revealed no other active infestation other than that under the bathroom area, and two years later live termites were found, then this infestation would have occurred after the initial treatment. Of particular importance also is the fact that defendant’s experts differed as to the amount of time required to cause damage to this extent. Finally, these same experts’ opinions are based on the proposition that only two colonies of termites (one in the front of the house and one in the back) were involved in the destruction, even though no evidence, either in support or deference of this proposition, was produced at trial.

Defendant’s second contention is that it should be relieved of liability due to plaintiff’s failure to eliminate all moisture condition in his home as required by paragraph 11 in the Orkin agreement. No less than four witnesses testified that they inspected plaintiff’s home in the latter part of 1978, and at that time there was no visible water damage or adverse moisture conditions. Although several of defendant’s witnesses testified to the presence of water damage in the plaintiff’s home, their observations were made in 1980, just prior to trial and long after the termite damage had ceased. Considering that all active infestation was terminated by Mr. Habbit’s treatment in November of 1978, and no water damage existed up until that time, we cannot say that the jury was clearly wrong in concluding that the deteriorating condition of plaintiff’s home created by the termite damage eventually led to the alleged water damage (i.e., moisture in the home) rather than vice versa. In fact all of the evidence establishes that there was no water damage prior to the effective treatment by Mr. Habbit.

After a three day trial the jury rendered a general verdict in favor of plaintiff in the amount of $70,000.00. For the reasons hereinafter stated, we feel that the maximum award allowable under the facts presented would be $65,879.00.

The award of quantum is a factual finding, which should not be disturbed unless it is clearly shown that the trier of fact abused its discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979) and the cases cited therein. Upon close review of the record, we find that the jury abused its discretion in awarding damages in excess of that proved at trial.

Both plaintiff and defendant introduced two experts whose testimony attempted to establish the cost of repairing and/or rebuilding plaintiff’s home. Plaintiff’s witnesses, Messrs. Schexnayder and Ellis, both testified that because of the extent of the damage known, coupled with the possible hidden damage, it would be economically practical to tear down plaintiff’s existing home and rebuild rather than attempting to repair the termite ridden premises. Defendant’s expert contractors, Messrs. Blum and Amy, on the other hand, were of the opinion that plaintiff’s home could be repaired or in any event rebuilt for much less than plaintiff proposes.

In view of the award granted, it is obvious that the jury adopted the testimony of Messrs. Schexnayder and Ellis to determine that it is not practical to repair plaintiff’s home. Such a finding is supported by the record, and, as such, is within the jury’s discretion. The amount of award, however, is not.

Both Mr. Schexnayder and Mr. Ellis are well acquainted with the cost of building in the Krotz Springs area. They both agree that the cost of building plaintiff a new home would be approximately $63,000.00, but their opinions differ as to the cost involved in removing plaintiff’s old home. Mr. Schexnayder feels that it can be razed for approximately $2,000.00 whereas Mr. Ellis estimates that it can be done for approximately $2,500.00. Mr. Blum and Mr. Amy’s estimates are much lower than those offered by Mr. Schexnayder and Mr. Ellis, however, it is well within the jury’s prerogative to differentiate between the witnesses’ opinions and adopt those which they feel are the most credible. Again, the award granted reflects that the jury gave greater weight to the testimony of Messrs. Schex-nayder and Ellis.

The only other damages proved at trial were the additional $379.00 of expenses incurred for the termite treatment by Mr. Habbit. We feel that the record clearly shows that had Orkin properly treated plaintiff’s home the first time, Mr. Habbit’s services would not have been required. Presuming we adopt Mr. Ellis’ $65,000.00 estimate for razing plaintiff’s home and rebuilding, coupled with the added $379.00 treatment expense of Mr. Habbit, the maximum award supported by the record, which could be awarded by the jury, would be $65,879.00. Inasmuch as the jury verdict surpasses this amount it should be reduced accordingly.

Orkin further contends that the judgment awarded plaintiff is excessive because it fails to take into consideration any adjustment for depreciation.

On the third day of trial, and after plaintiff had rested, counsel for defendant informed plaintiff’s counsel of his intention to call another witness in addition to those agreed to at the pre-trial arrangements. This witness was to testify concerning his opinion on the depreciation of the plaintiff’s premises. Plaintiff’s objection to the introduction of this witness’ testimony was sustained by the trial judge. Defendant now contends that in so holding the trial judge committed manifest error in excluding this testimony.

An orderly disposition of each case and avoidance of surprise are inherent in the theory of pre-trial procedure and are sufficient reasons for allowing a trial judge to require adherence to pre-trial order in conduct of an action. Eanes v. McKnight, et al, Fortenberry, et ux v. McKnight, et ux, 265 So.2d 220 (La.1972); Brown v. Hawkins, 244 So.2d 896 (La.App. 1st Cir.1971).

Although no written pre-trial order was prepared in this suit, counsel did exchange the names of the witnesses following the court’s instruction to do so. The district judge was of the opinion that to allow defendant’s counsel to deviate from the pre-trial arrangements so late in the trial would be prejudicial to the plaintiff. We conclude that the district judge committed no error or at least did not abuse his discretion in holding that Orkin was bound by the stipulations made in pre-trial arrangements. Therefore, the record is void of any evidence relative to the applicability of depreciation, leaving the jury without a standard to apply.

Orkin’s claim that the award should reflect the fact that plaintiff did not act to minimize his damages is without merit. Plaintiff is disabled with a heart condition. He and his wife were living on social security income of less than $600.00 per month. Certainly it would not have been feasible or advisable for Mr. Higdon to attempt to go out and repair the damages himself. All the testimony indicates that plaintiff acted immediately upon discovering that his home was infested with termites. He contacted Orkin at once, and still not satisfied, he contracted with another exterminator to prevent further damage. Furthermore, plaintiff attempted to get a HUD grant in 1978 to have repairs made, but was turned down when contractors bidding for the project realized the extent of termite damage present. We conclude that the jury was not clearly wrong in deciding that Mr. Higdon made every reasonable attempt to minimize his damages during this ordeal.

The trial court has wide discretion in determining whether a remittitur should be required as an alternative to a new trial. Fontenot v. Fidelity Casualty Company of New York, 217 So.2d 702 (La.App. 3rd Cir. 1969). Likewise, the granting or refusal of a motion for a new trial based solely on discretionary grounds is within the discretion of the trial judge, and his actions will not be disturbed on appeal unless it clearly appears that the trial judge abused his discretion. Hardy v. Kidder, 267 So.2d 582 (La.App. 3rd Cir. 1972), affirmed 292 So.2d 575 (La.1974). Insofar as our opinion reflects an adjustment in the amount of recovery, any error on the part of the trial judge in refusing to render a remittitur has been cured herein. Considering the wide discretion afforded the trial judge in granting or denying an application for a new trial, we find that the trial judge did not clearly abuse his discretion in refusing to grant defendant this relief.

Defendant’s final assignment of error is that the trial court erred in not giving certain jury instructions requested by it, more particularly defendant’s special instructions numbers 4, 5, and 7.

The trial judge in refusing to give defendant his jury instruction number 4, indicated that he was of the opinion that the jury instruction was included in the charges given. We agree with the trial judge that the subject matter of instruction number 4 was sufficiently covered by defendant’s special instruction number 3, which was given to the jury by the trial judge, and therefore, properly left out of the jury charges. Holder v. Gill and Davidge, 391 So.2d 1220 (La.App. 1st Cir. 1980).

Defendant’s special instructions number 5 and 7 read as follows:

“DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 5
If you find that the contract provides that Orkin is responsible to repair termite damage to the house only if there are live termites present when the damage is discovered, then you must find that live termites were present when the damage was discovered in order to hold Orkin responsible for the repair of such damage.
DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 7
If you should find that moisture, structural conditions, or defects which resulted in water leakage were conducive to the development of termite activity, then Or-kin has no liability for damage repairs. (Contract Provision).”

The source of these two special instructions is the Orkin policy itself which was introduced at trial. We find that if the trial judge erred in failing to so charge the jury that error was harmless. As discussed in our opinion above, both plaintiff and Mr. Schexnayder testified that they found live termites in the front porch area as well as in the rear of the house. Mr. Habbit testified that when he inspected plaintiff’s home he located active infestation in four or five areas of the premises. Although Mr. Hab-bit did not find any live termites in the front porch area, his inspection took place after an Orkin employee had retreated this area in the early part of 1978. We feel that there is ample evidence in the record indicating that live termites were present in the several areas of plaintiff’s home where damage was discovered.

The same is true for defendant’s instruction number 7. All of the testimony solicited at trial, as we have discussed above, reveals that any alleged water damage or moisture condition did not exist until well after the successful treatment of plaintiff’s home by Mr. Habbit. As such, the record simply does not support a finding that any leakage or moisture condition existed during any active infestation which could have been conducive to the development of termites.

For the above and foregoing reasons the judgment of the trial court is reduced from Seventy Thousand and no/100 ($70,000.00) Dollars to Sixty-Five Thousand, Eight Hundred Seventy-nine and no/100 ($65,879.00). Costs on appeal are to be assessed one fourth (Vi) against plaintiff-appellee, Otis Higdon, and three-fourths (%) against defendant-appellant, Orkin Exterminating Company, Inc.

AFFIRMED, AS AMENDED.

ON REHEARING

Since our original decision has been rendered, attorney for defendant-appellant has called our attention to a mathematical or typographical error contained therein.

We conclude that the error was typographical and concerns the figure of $65,-000.00 contained on the first line of page 8 of the decision. That figure should be $65,-500.00.

We find no mathematical error. The typographical error referred to herein does not affect the outcome of the case and consequently, with this correction, the rehearing is denied.

      . Mr. Manuel, as well as the other Orkin representatives who testified at trial, candidly admitted that one of the primary purposes of this pre-treatment inspection is to note, any old damage on the graph so that should a claim subsequently arise Orkin could escape liability for it.

      . Both Mr. Schexnayder and Mr. Ellis estimated that the cost of repairing plaintiffs home would be in the neighborhood of $89,000.00. In their opinion the cost of repairing the premises greatly surpasses the cost of building a new home.

      . This estimate represents building a 1,800 square foot home (approximately the size of plaintiffs home) at $35.00 per square foot totaling $63,000.00.

      . Plaintiff testified that after he discovered the termite damage and active infestation in the early part of 1978 he contacted Orkin. Plaintiff further testified that a day or so later one of Orkin’s employees came to his residence and sprayed the porch area, which, at that time, was infested with live termites.


source: Caselaw Access Project

author: SWIFT, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    Freddie CHARLES, Plaintiff-Appellant, v. Rives LAVERGNE, et al., Defendants-Appellees.
    No. 8743.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Glenn J. Armentor, Lafayette, for plaintiff-appellant.
    James P. Lambert of Voorhies & Labbe, Gachassin & Capretz, Nicholas Gachassin, Jr., Lafayette, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

This suit involves an accident which occurred when a tractor-trailer truck ran over an electrical cable stretched across the highway. The plaintiff, Freddie Charles, filed this action against the driver of the truck, Rives Lavergne, his employer, Moody Truck Lines, Inc., and the latter’s insurer, Maryland Casualty Companies. From the trial court’s judgment in favor of the defendants, the plaintiff has appealed.

On November 7, 1977, at approximately 8:30 o’clock in the morning two crews of Southwest Louisiana Electric Membership Corporation (Slemco) arrived near the intersection of Louisiana Highway 343 and Al-cide Clark Road in Lafayette Parish. The posted speed limit for Highway 343 at this point is 55 miles per hour. Its surface is asphalt, charcoal grey in color. Vehicles traveling on the highway have the right-of-way at the intersection.

The crews’ task was to move an electrical cable from an old utility pole to another pole approximately 40 feet further away from Highway 343. Each crew consisted of a supervisor and two workers. Normally, each crew had a supervisor and three workers.

Plaintiff’s crew located their yellow, 16 ton crane-bucket truck on Highway 343 slightly south of the intersection. The police officer who investigated the accident and defendant Lavergne testified the truck was located on the shoulder of the highway. The employees of Slemco said their vehicle was parked partially in the northbound lane of the highway. The other Slemco truck was located on Alcide Clark Road west of the intersection. Each vehicle was equipped with a four-way beacon lamp above the cab and alternating flasher signals on the front and rear. These were lighted when the accident occurred.

Several diamond-shaped “Men Working” signs with red flags attached were placed at all approaches to the intersection. One of these signs was located 10 to 20 feet south of the Slemco truck in the northbound lane of Highway 343. The preponderance of evidence is that a second sign was placed in this lane about 100 feet south of the truck.

A Slemco employee, Kerry Viator, had been designated as a flagman to slow the traffic on Highway 343 prior to the accident.

The plaintiff, a lineman, was on the new pole to which the cable was to be strung, attached thereto by his safety belt. The aluminum cable was approximately %th of an inch in diameter. It was originally shiny silver in color, but was duller and darker due to age and weather. It had to be deadened and dropped to the ground and then spliced to a length of new cable in order to reach the other utility pole. The old cable was laid flat across Highway 343 without any curls or kinks. Shortly before the accident Kerry Viator discontinued flagging the vehicles and went to aid another employee in splicing the cable.

Rives Lavergne, driving a tractor-trailer truck in a northerly direction on Highway 343 with a 48,000 pound load of rice, entered the southbound lane and proceeded around the Slemco truck. The tires of his truck struck the cable, evidently causing it to bounce off the pavement and become entangled in the rear axle of the trailer. The cable was attached to the utility pole on which plaintiff was working and upon its becoming taut the pole was broken in two places. The pole and the plaintiff fell to the ground, allegedly causing injuries to the plaintiff’s back, neck, leg and arm.

The trial court found that upon approaching the scene Lavergne was under a duty to slow down and to be attentive so as to avoid striking the workers. However, this duty did not encompass the particular risk of the cable becoming entangled in the axle of the truck and causing the pole to break and throw the plaintiff to the ground. Therefore, the defendant was not negligent.

The principal issue presented by this appeal is whether or not the conduct of the defendant constituted actionable negligence.

As this court said in Neathery v. State, Through its Department of Corrections, 395 So.2d 407, 409 (La.App. 3 Cir. 1981):

“Before a determination of liability can be made, we must first inquire as to whether any causal relationship exists between the harm to the plaintiff and the defendants’ alleged negligent conduct. Thus, if the plaintiff can show that he probably would not have suffered the injury complained of but for the conduct of the defendants, he has carried his burden of proof relative to cause-in-fact.” [Citations omitted.]

In the instant case there is no question that the accident would not have occurred but for the defendant, Rives Lav-ergne, driving his truck across the cable stretched across the road.

However, in addition to this finding of a causal relationship between the conduct of the defendant and the injuries suffered by plaintiff, it must be established that the conduct complained of constituted a breach of a legal duty imposed on the defendant to protect against the particular risk involved before the plaintiff can be permitted to recover damages for such conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972); Neathery v. State, Through its Department of Corrections, supra; and Lear v. United States Fire Insurance Co., 392 So.2d 786 (La.App. 3 Cir. 1980).

According to Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976), in making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the driver of the truck to the plaintiff? (2) Was there a breach of this duty? (3) Were the risk and harm caused within the scope of protection afforded by the duty breached?

Under Louisiana law a motorist is charged with the duty of seeing that which may be observed reasonably under the circumstances. Follins v. Barrow, 354 So.2d 609 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978). But a motorist may assume that the thoroughfare ahead is free from unusual hazards and he is not charged with the duty of guarding against unusual, unexpected or all but invisible obstructions which he had no reason to anticipate he would encounter on the road. Danna v. Howard Griffin, Inc., 388 So.2d 446 (La.App. 2 Cir. 1980); Parker v. Continental Insurance Co., 341 So.2d 593 (La.App. 2 Cir. 1977); and Page v. Green, 306 So.2d 847 (La.App. 2 Cir. 1975).

In Page the court was confronted with an analogous factual situation. The plaintiff’s vehicle collided with a winch cable which the defendant had stretched across the highway about 12 inches above the surface in an attempt to pull a vehicle from a ditch. The defendant’s version of the facts was that his emergency flasher lights were pulsating on the sides and front of his vehicle and that he stepped to the middle of the road waving his hands in time to warn the plaintiff of the cable. The plaintiff denied the defendant came to the middle of the highway and contended that he was unable to see the cable until it was too late to stop. The court said that under the defendants’ version a legal duty was imposed on the plaintiff to reduce his speed and to prepare to take action to avoid dangers that a reasonable person would anticipate under the circumstances. However, since the cable was an all but invisible hazard which the plaintiff had no reason to anticipate, the plaintiff was not under a legal duty to protect against the particular risk of striking it.

In the instant case the employees of Slemco did position two “Men Working” signs in the northbound lane south of the Slemco truck. They also had pulsating flashers and a four-way beacon lamp operating on their trucks. However, no one was flagging traffic when the accident happened. Considering these warnings, like the trial judge, we conclude that the truck driver was under a legal duty to reduce his speed and to take action to avoid dangers that a reasonable person would anticipate under the circumstances. Some examples of such dangers would be a worker entering the highway from behind the parked truck, striking the parked truck which was either partially in the northbound lane or on the shoulder and of colliding with any oncoming traffic. We must further inquire, however, whether there was a breach of a legal duty to avoid or protect against the particular risk and the harm involved in this case.

Lavergne testified that upon seeing the “Men Working” sign which was approximately 10 feet behind the parked truck he slowed down, changing from 12th gear to 9th gear. Seeing the men at the poles and no one by the utility truck on or near the roadway, he continued on in the southbound lane at an estimated speed of about 45 to 50 miles per hour and eventually reentered his right lane. The defendant said that he did not see the cable until he was on top of it and it was then too late to avoid striking it.

Donald Boudreaux, an employee of Slem-co, testified that the defendant’s truck was going fast and he did not observe it slowing down at the time of the accident. The other Slemco employees said they did not actually see the truck before or at the time of the accident, but the noise indicated it was moving fast.

The trial judge accepted Lavergne’s testimony as being correct and we cannot say he was clearly wrong.

From our review of the record we do not believe that the risk and harm caused in this case were within the scope of the protection afforded by breach of any duty by the defendant. The particular risk involved was in striking the electrical cable stretched across the highway. This cable was only %th of an inch in diameter. Originally silver in color, it was darker and duller due to age. It was laying flat on the charcoal gray asphalt road surface, and it is obvious that in such place the cable was difficult to see. There was no warning given to the defendant to communicate this particular danger which caused the accident. We agree with the trial court that:

“There is no evidence presented that establishes that defendant could have reasonably anticipated a wire lying in the roadway, of which he was not made aware, and that would ultimately become entangled in the axle of his truck, thus causing the pole to which it was connected to snap and. to throw the plaintiff to the ground. The defendant’s duty to proceed slowly through the scene and to be attentive did not encompass the particular risk eventually causing plaintiff’s injury.”

For these reasons the judgment of the district court dismissing the plaintiff’s suit is affirmed. All costs are to be paid by plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting.

Applying any reasonable standard, I respectfully submit that the defendant Lav-ergne was guilty of negligence by traveling fifty miles per hour under the circumstances present and the scenario which he faced. He knew or should have known, and saw or should have seen the possibility of danger by virtue of the warnings which confronted him as he proceeded northward on this two-lane black-topped road. He was driving an eighteen-wheeler loaded to capacity with 48,000 lbs. of filled rice sacks placed on pallets and secured only by a tarpaulin. As defendant approached the work area he faced two bright yellow sixteen ton crane-bucket trucks, one near a utility pole west of the intersection and the other parked partially on the roadway under the pole to be moved. Both trucks were provided with police type yellow magnesium-filament beacon lamps above the cabs, and alternating flasher signals both front and rear. All signals were working. Additionally, there were two large “Men Working” signs, diamond* in shape, orange and black in color, approximately four feet in height, each with two large red flags jutting out in a “V” shape from the sign. One of these was placed approximately fifteen feet behind the parked Slemco crane-bucket truck which was partially on the roadway, and another about 100 feet from the intersection. Additionally, the six Slemco employees were in their respective positions, including some of them at the base of the utility pole. Confronted with all of these warnings, Lavergne should have slowed down substantially to meet his responsibilities while driving this monstrous vehicle which weighed 86,000 lbs. loaded. It is evident that Lavergne, by his own testimony, was paying scant attention to the myriad warnings which confronted him. He very candidly admitted that he did not see any emergency flashing signals, saying, “I didn’t pay no attention. I didn’t see it.” There is much testimony in the record that other vehicles which preceded Lavergne’s, upon being confronted with the warnings, slowed down dramatically before entering the intersection and passed over the cable with caution. Two or three of these vehicles were eighteen wheelers.

I have little difficulty finding that Lav-ergne was negligent, and that his negligent speeding was a proximate cause of the entanglement of the cable in the undercarriage of the eighteen wheeler, which ultimately caused the pole upon which plaintiff was perched to topple over and injure plaintiff. (The issue of whether or not Slemco or any of its employees may have been negligent, is not before us.)

I respectfully suggest that the application of duty-risk analysis here is strained. I submit that the trial judge and my colleagues of the majority erred in concluding that the duty owed plaintiff did not encompass the risk presented in this factual situation. My confreres have placed undue emphasis on foreseeability and anticipation, in absolving Lavergne from liability here. The Louisiana Supreme Court in the case of Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) stated:

“Foreseeability is not always a reliable guide, and certainly it is not the only criterion for determining whether there is a duty-risk relationship. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct. Neither are all risks excluded from the scope of duty simply because they are unforeseeable. The ease of association of the injury with the rule relied upon, however, is always a proper inquiry. Prosser, Law of Torts (3rd ed. 1964), 282 ff.” (Footnotes deleted and emphasis added).

It seems to me that a rule of law which would impose a duty upon a driver to slow down and proceed with extreme caution when confronting the circumstances described above, encompasses the risk here encountered. I face no difficulty in associating plaintiff’s injuries with the rule relied upon. It is quite apparent, at least in my eyes, that the defendant’s duty to slow down and proceed cautiously existed not only to prevent motorists from striking workers, as the trial judge suggests, but it álso existed to avoid any accident which could have reasonably been associated with the works going on in the area. I find it hard to rationalize that one should not anticipate the possibility of wires or cables on the highway when there are electrical crews on poles on both sides of the public road, especially when approaching vehicles are apprised of upcoming dangers by virtue of varying warning signs and signals.

Furthermore, to say that the cable on the highway was something not to be foreseen or anticipated, and thereby not encompassing the duty-risk ambit, is to give license to vehicle operators to completely disregard warning signals and speed excessively to their heart’s content.

Under the totality of circumstances in this case, Lavergne breached his duty to plaintiff. The risk here was within his ambit of responsibility. The warnings in this case telegraphed a message to any vehicle operator, and especially to defendant Lav-ergne, to be on the lookout for any danger associated with the Slemco work, including the presence of. the cable on the highway.

In view of the above, I would reverse the trial court, hold in favor of plaintiff against Lavergne, his employer and the liability insurer, and then proceed to a determination of plaintiff’s damages.

I respectfully dissent.


author: BROOM, Justice,

text:
    Joseph SCRUGGS v. STATE of Mississippi.
    No. 52866.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Rehearing Denied April 21, 1982.
    Roy Pitts and Franklin M. Coleman, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court.

Murder conviction and life imprisonment sentence resulted from the trial of the defendant/appellant Joseph Scruggs in the Circuit Court of Wayne County. The indictment charged him with the murder of Richard Roberts while “engaged in the commission of the crime of armed robbery.” On his appeal, defendant Scruggs argues that the lower court erred in: (1) allowing the defendant’s confession into evidence; (2) sentencing him to life imprisonment under Mississippi Code Annotated § 43-21-159(3) (Supp.1981), which statute he contends is unconstitutionally vague and lacking in standards; and (3) failing to dismiss the charge on account of the state’s alleged failure to divulge “exculpatory material” as requested. We affirm.

Facts of the case, summarized, are these. On October 29,1979, Wayne County Sheriff Farrior was notified in substance that an accident had occurred south of Waynesboro. Arriving at the scene shortly after 5 a. m., the sheriff observed a blue 1979 Monte Carlo car in a ditch approximately 418 feet off Highway 45. No keys were in the ear so the sheriff called a wrecker to have it towed to Waynesboro. When the front end of the ear was picked up, the sheriff observed a red substance (later determined to be human blood) dripping from the car trunk. Pertinent public records revealed that the car was registered to Marvin Leach, Jr. of Newton County, and in Newton, Mississippi, telephones were listed in the names of Marvin Leach, Jr. and Marvin Leach, Sr. Opening of the car trunk was accomplished by “hot-wiring” the vehicle and pushing the button in the dash compartment which released the trunk lid. Two white male corpses, Richard Roberts and Marvin Leach, Jr., were in the trunk of the car which was moved to the Wayne County Fire Station. Agents of the Mississippi Crime Lab and State Highway Patrol were called in to assist in the investigation.

Defendant Scruggs and his companion, Dennis Hicks, were arrested by law officers acting without a warrant at about noon time or a little later on October 29, 1979. Their presence in the area had been reported by Mrs. Dot Hartley who advised the sheriff by telephone that she had seen the two boys at her store in Buckatunna. Another call to the sheriff was from a Mr. Sumrall who reported around 11 a. m. that he had seen two desperate appearing boys a few minutes earlier walking and “thumbing” on the road. Both Mrs. Hartley and Mr. Sumrall gave a description of the two boys who were then spotted on Highway 45 by law officers Cochran and Snyder. The officers testified that the boys broke and ran into the woods when they saw the officers, but were later captured. The next day at about 5 p. m., the defendant made an incriminating statement which went into evidence at trial. Other facts will be set forth on the following pages.

WERE THE DEFENDANT’S INCRIMINATING STATEMENTS INADMISSIBLE BECAUSE THEY WERE THE PRODUCT OF AN ILLEGAL ARREST AND NOT VOLUNTARILY MADE? The first contention is that the warrantless arrest of the defendant was without probable cause and therefore illegal. On that basis it is urged that his later incriminating statement was poisonous fruit of the illegal arrest and inadmissible into evidence.'

Our established law is that a war-rantless arrest may be made if it is established that (1) a felony has been committed, and (2) reasonable grounds exist to suspect and believe that the person arrested committed the felony. Powell v. State, 394 So.2d 326 (Miss.1981); Jones v. State, 358 So.2d 414 (Miss.1978). Without doubt the first element of probable cause — belief that a felony had been committed — is present here. The evidence is clear that the two arresting officers had seen the two homicide victims’ bodies (both obviously shot and one stabbed) in the trunk of the Leach car abandoned on a road in a rural area of Wayne County.

Thus we turn to the second element of probable cause for defendant’s arrest: Did the officers have reasonable grounds to believe that defendant Scruggs and his companion Hicks committed the felony? Testimony was that the officers obtained a gasoline credit card receipt from the victims’ car reasonably indicating that the victims had purchased gasoline at Cheeseman’s Gulf Station in Eight Mile, Alabama on October 28, the date of their deaths. Having the receipt, one of the officers called Mr. Cheeseman who remembered not only the gasoline sale, but also the car in question. Cheeseman also recalled that at the time he sold them the gasoline the person on the passenger side of the front seat of the car was Leach who paid for the gasoline with a credit card. Cheeseman remembered that seated on the rear seat of the car were two young long-haired white boys, one of whom wore a blue plaid shirt and the other who had a red handkerchief in his back pocket.

Some time during the morning of October 29, Mrs. Hartley reported to the sheriff by telephone that two boys who she thought acted suspiciously came in her store in Buckatunna and bought soft drinks. Her testimony was that the two boys were hitchhikers; each had long hair; each carried a blue coat; and each appeared to be nervous. The older boy had on a shirt which appeared to have a blood spot on the shoulder. According to her, the younger boy had a red handkerchief hanging out of his pocket.

Additionally, the sheriff received a telephone call from a Mr. Sumrall a,t about 11 a. m. on the 29th reporting that he had seen two white boys hitchhiking on Highway 45 between Mount Zion Road and Buckatunna some two to three miles south of where the victims’ car was found. Sumrall described the boys as having long hair with one of them wearing a blue coat, and he indicated that both of them appeared desperate for a ride. The aforesaid information concerning the two boys had been received by the sheriff’s office and relayed to Officers Cochran and Snyder who were patrolling the area near the scene of the abandoned car. Having received this information, the two officers observed two young, long-haired white boys a short distance south of Bucka-tunna on Highway 45 each carrying a coat in his hand, one coat being a loud blue and the other a western-styled denim coat. According to the officers, the boys appeared to be nervous, and hurried into the woods after seeing the police car. Officer Cochran asked them to stop, but they continued to run farther and surrendered a short time later when surrounded by police officers.

After the two boys surrendered, they were ordered onto the ground, handcuffed, placed in the patrol car, and carried to the sheriffs office without being informed that they were under arrest for murder or armed robbery.

The defendant’s brief asserts

that they were under arrest for murder or armed robbery; rather, the sheriff testified at the preliminary hearing that there were no formal charges entered at that time. “I guess they were under arrest for investigation.”

We think it significant that prior to taking the two boys into custody, the law officers had received descriptions (including the sex, age, race, hair style, and clothing) of the boys from the store owner (Mrs. Hart-ley) and from Cheeseman, the gas station operator in Alabama. The descriptions received from the two sources substantially matched that of the two boys. Additionally, before they made the arrest the officers had the testimony of citizen Sumrall who had just seen the two boys hitchhiking. Then while searching the area where the “boys” had recently been seen, an area not far from where the car which contained the two bodies had been discovered, Officers Cochran and Snyder observed defendant Scruggs and Hicks fitting the general description which had been given them of the boys who were last seen with the victims while alive. Observation of the boys showed they appeared to be desperately seeking to hitch a ride. Before the officers even indicated to them that they were suspects, the boys suddenly ran off into the woods and continued their flight after obviously knowing that the officers were interested in them.

Under these circumstances we are unwilling to hold that the officers were illegally acting when they took Scruggs and Hicks into custody. It matters not that the arrests at that time were for investigation because the arrests were made with probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), relied upon by the defendant, are not controlling because they were cases where the investigatory arrests were accomplished without probable cause.

Secondly, the appellant argues that his inculpatory statement was inadmissible into evidence because it was not voluntarily given. In support of this argument he claims, first, that he was not taken before a magistrate for a period of at least 72 hours. Our scrutiny of the record indicates that defendant Scruggs (and Hicks) were taken into custody in the early afternoon of October 29 and on the following day at about 5 p. m. (less than 30 hours later), Scruggs by his own statement incriminated himself. It appears that an affidavit was filed against the defendant in justice court on October 31 at some time not certain. He contends that under Mississippi Code Annotated § 99-3-17 (Supp.1981), failure of the sheriff to take him before the magistrate “without unnecessary delay” is an example of “official misconduct” within the provisions of Brown v. Illinois, supra.

Reid v. State, 266 So.2d 21 (Miss.1972) held-

It is only when a confession is obtained as a result of unreasonable delay in taking the prisoner before a magistrate for a preliminary hearing that his confession of guilt is to be excluded on this basis. (Emphasis added).
Id. at 26.

See also Dickens v. State, 311 So.2d 650 (Miss.1975). Here no contention below was made, nor is it shown that the confession resulted from the delay in presenting the case to a magistrate. Cases relied upon by the defendant are based on the federal McNabb-Mallory rule and are not in point on this issue. Our opinion in Parker v. State, 244 Miss. 332, 141 So.2d 546 (1962) noted that the rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) was based upon the supervisory powers of the United States Supreme Court over the lower federal courts and had not been extended to the states. See also Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). We declined adoption of a like rule for Mississippi, and reasoned that inasmuch as the confession was free and voluntary and not induced by threats, force or promises, the omission to have a “committing trial” (preliminary hearing) did not nullify its validity. 244 Miss. at 347, 141 So.2d at 552. In Tyson v. State, 237 Miss. 149, 112 So.2d 563 (1959), reversed for other reasons, the defendant was incarcerated and interrogated for six days without being taken before a magistrate prior to confessing. There we held that the delay was one factor for consideration in determining whether a confession is valid, and such determination should be made by means of the totality-of-the-circumstances analysis of the voluntariness of a confession.

Scruggs complains that he was held incommunicado for a period of at least 72 hours, but the record shows otherwise. Although Scruggs more than once informed the sheriff that he wished to speak to his mother, the sheriff testified that he allowed Scruggs to dial his mother’s telephone number, but Scruggs failed to reach her because the line was busy. After the defendant failed several times to reach his mother because of busy signals, the sheriff asked the telephone operator to break through and thereby Scruggs’ mother was reached. At the suppression hearing and at the trial in chief, the defendant testified that no officer either threatened or abused him in any manner. He testified that Sheriff Far-rior was polite to him.

The defendant’s brief states that “of special concern” is the fact that the defendant was only sixteen years old at the time of his arrest. Although the age of defendant and his request to communicate with his mother are to be considered in determining the voluntariness of his statement, these factors are to be considered along with other factors and circumstances presented by the record. Coleman v. State, 378 So.2d 640 (Miss.1979); Davis v. State, 320 So.2d 789 (Miss.1975).

Examination of the testimony shows that at about 7:30 a. m. on October 29, the two corpses were discovered. Several hours later (about 1 p. m.) the defendant Scruggs and his companion Hicks were arrested. Accepted by the trial judge was the sheriff’s testimony that he interrogated the defendant shortly after the arrest at 1 p. m., and prior to interrogation he, the sheriff, fully advised the defendant of his rights. The sheriff further testified that when he concluded his advisory to the defendant about his rights, the sheriff asked him, “Do you understand?” and Scruggs replied, “Yes.” During this interrogation the defendant gave no inculpatory statement. At trial, Scruggs testified that he only told the sheriff that he understood his rights because he was “nervous and scared.” It is interesting to note that Scruggs’ testimony indicates that in a prior youth court proceeding, after which he was committed to a training school, he had had his rights explained to him.

According to the sheriff, he advised the defendant that he was investigating a murder. He further testified that the defendant was in his office from about 1 p. m. until 4 p. m. on October 29 and that the questions asked him pertained to his name, place of residence, and his activities during the preceding night. During this time, the defendant indicated no desire to make a telephone call and was removed to the city jail around 4 p. m. Around 11 p. m., after he had been carried to the hospital where tests were made on him by a doctor and hospital employees, the defendant asked permission to call his mother. Shortly af-terwards when the sheriff arrived at the jail, he allowed the defendant more than once to attempt to telephone his mother, but each time her number was busy. During the remainder of the night, the defendant was not interrogated. On the next day (October 30), after the defendant was given breakfast, the record shows that the chief of police placed a city jail trusty in the defendant’s cell. Strong indication is in the record that the purpose of the chief of police in placing the trusty in the cell may have been to see if the defendant would relate anything to the trusty. The trusty testified that he was not instructed as to why he was being put in the jail cell with the defendant. Established by the defendant Scruggs’ testimony is the fact that the trusty made no effort to learn anything about the crime from the defendant. No serious argument appears in the defendant’s brief concerning the trusty having been placed in his cell although he refers to the action in his rebuttal brief as being an exertion of “emotional and psychological pressure.”

Testimony of highway patrol investigators Hooks and Rogers is that about 11 a. m. on October 30 they visited the defendant at the city jail. They both testified (which Scruggs denied) that they read the defendant his Miranda rights to which he replied that he understood and made no request for a lawyer. Further, they testified that Rogers asked Scruggs if he would like to call his parents, but he made no request to do so. To the contrary, it was Scruggs’ testimony that he asked to call his mother but was not permitted to do so.

During the afternoon of that day, Alabama service station operator Cheeseman came and identified both defendant Scruggs and Hicks in a line-up. At about 5 o’clock that afternoon after the defendant was returned to the city jail, he was asked by the sheriff if he would like to make a statement. It appears that the defendant replied that he had already made a statement, to which the sheriff responded that he would not need a statement because an eyewitness had placed the defendant in the car. Testimony of the defendant on this was that the sheriff told him that he could help him or hurt him and that it was the defendant’s last chance to tell the sheriff anything. Sheriff Farrior denied so advising the defendant. Then the testimony is that the defendant again expressed a desire to call his mother and the sheriff permitted him to place the call, but again he failed to reach her and was put back in his cell. A short time after being put back in the city jail a city policeman, Windham, overheard the defendant crying and made inquiry as to what was wrong. It was then that the defendant expressed a desire to talk to the sheriff. The sheriff came and when he asked the defendant if he wanted to see him, the defendant stated, “I didn’t shoot the boys. Dennis shot them.” According to the sheriff, he again advised the defendant of his rights and the defendant orally described the killings in which he put most of the blame on Hicks. His confession relates how he and Hicks hitched a ride with Roberts and Leach (the two victims), and during a subsequent stop Roberts and Leach were forced into the trunk of the car, and later brutally shot, stabbed and robbed. No one was present when the oral statement was made except the sheriff and defendant Scruggs, who made no request at that time for permission to call his mother or anyone.

Following his making of the oral inculpa-tory statement, the defendant indicated his willingness to give a statement to a state investigator. At that time the defendant was given a written form which advised him of his rights and he stated that he understood his rights and what he was doing; then he signed a waiver. Testimony of the defendant at the suppression hearing was that he admitted stating to state investigator Hooks that he understood his rights. He made no request for his mother or a law yer and at no time did the defendant ask for the questioning to stop. After Hooks advised the defendant that he could write his own statement, or that Hooks would do it for him, the defendant asked Hooks to write his statement because he (the defendant) was nervous. Hooks put the defendant’s statement in writing after which the defendant read and signed it. A transcript of the statement implicating the defendant and Hicks is attached to this opinion as Appendix “A”.

After the defendant’s statement was reduced to writing, he agreed to go with the sheriff the next day to the crime scene. Again, according to the sheriff, the defendant asked to call his mother, and when the permission was granted, he tried to call her but the line was busy. Following two unsuccessful tries the sheriff prevailed upon the telephone operator to break in on the defendant’s mother’s conversation, and in that manner the defendant communicated by telephone with his mother for a few minutes. On the same occasion the sheriff also spoke to the defendant’s mother and advised her that she could see the defendant the next morning at 11 o’clock. When she arrived on the next morning, preparation was being made by the sheriff to take the defendant to the scene which the defendant had agreed to do, and the defendant’s mother was not permitted to see him until that afternoon.

Other significant testimony produced on behalf of the state was that of witness Henry Hosey. .Some two months after the killings a pistol was found in the area where defendant Scruggs and Hicks entered the woods while running from the police. Location of the gun resulted largely from information given the sheriff by jail inmate Hosey, who testified that defendant Scruggs told him all about what occurred in connection with the two killings. According to Hosey, about a month after Scruggs’ arrest, he and Scruggs were standing inside the jail where they could see the sheriff, who was spinning a pistol in his office. The inmate’s impression was that Scruggs seemed to think that the pistol which the sheriff was handling was the gun used in the killings. Hosey said that a “funny expression” came on Scruggs’ face, after which Scruggs went back to his jail cell and told Hosey about the killings. The version of the incident (as Hosey stated Scruggs told him) is quite different from that given by Scruggs in his statement and from Scruggs’ testimony at trial. Hosey, appearing as a state’s witness, testified that Scruggs told him that on the occasion of the killings, he (Scruggs) was armed with a knife and Hicks with a pistol. Hosey testified that Scruggs told him that Scruggs and Hicks escorted the two victims to the rear of the car and locked them in the trunk. Further, Hosey said that Scruggs told him Scruggs and Hicks then unsuccessfully tried to crank the car, and he (Scrubs) got the driver out of the trunk to crank it, but after it still would not crank they put the driver back in the trunk. Then Hosey’s version was that .Hicks told Scruggs that they were going to have to kill them both after which Scruggs used a knife and Hicks had the gun. As related by Hosey, Scruggs told him that Hicks shot both victims and Scruggs stabbed one and, after finishing the job, they were “just standin’ up tripped [on drugs] just laughin’.” They pushed the car off the road and walked down Highway 45 toward Mobile to an abandoned house where they spent the night. Hicks told Scruggs they should flip a coin to see “who shoots the rest of 'the dope.” The next morning while hitchhiking they were spotted by the police, ran into the woods, jumped a fence behind a house, and Hicks threw the gun away. It was to this area that the inmate Hosey, the sheriff, and a deputy went in December and the gun was found.

Scruggs testified in his own behalf. His testimony tracked his earlier statement in that he said Hicks shot the men while he watched frozen. He gave no explanation as to how the victim Roberts received the multiple stab wounds. Scruggs denied that they were on drugs that night.

Co-defendant Hicks testified in rebuttal. Hicks earlier had pleaded guilty to two counts of murder and received two life sentences in connection with the killings. Hicks testified to the following: he and Scruggs made plans to rob the young men during one of the several stops they made after being picked up; Hicks had a revolver and Scruggs had a knife, both of which came from a house burglary they had committed two days before the crime. Hicks testified further that Scruggs put the victims in the trunk while he held the gun on them. Hicks’ version was that he and Scruggs talked and agreed that they had to kill the men: “We had a discussion about who was going to stab ’em and who was going to shoot ’em, and I had the gun on me. At this time I had got it back from Joe. He said, ‘Since I haven’t ever stabbed anybody, I’ll use the knife’.” Hicks related how Scruggs tied the knife onto his right hand with the bandana and they opened the trunk, and he began shooting and Scruggs began stabbing. According to Hicks, Roberts was fighting Scruggs and* trying to come out of the trunk, and so he shot him and then shot the other young man. Hicks also denied that they were taking drugs that night.

Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) held that it was proper to apply the totality-of-the-circumstances approach in determining whether a juvenile had effectively waived his rights. In the case now before us there was conflicting evidence as to whether the confession of the defendant was voluntary, but we have held numerous times that such conflicts are to be resolved by the presiding trial judge. The trial judge’s finding that Scruggs’ statement was voluntary was supported by substantial evidence. Argument that the defendant was being held incommunicado is without merit. Clear evidence is that on several occasions the defendant was allowed to use the phone in an attempt to communicate with his mother, and he was seen at the hospital by a doctor and others where he was given tests and observed. Careful examination of the testimony and the totality-of-the-circumstances revealed by the record causes us to conclude that the defendant’s confession was proven beyond a reasonable doubt to be voluntary and not the result of any form of physical abuse, or psychological coercion, or delay for a preliminary hearing, or of anything other than the defendant’s free will. The defendant here was a literate 16-year old young man, and there was no indication that he had any mental deficiencies or health problems. Evidence accepted by the court was that the defendant was not abused, but that he was informed of his rights sufficiently before he gave any incul-patory statement. Our ruling is that the lower court did not err in overruling the defendant’s motion to suppress the incriminating statements made against his own interests, or in allowing the jury to hear these statements.

Another argument made by the defendant on his appeal is that sentencing him to life imprisonment “under Mississippi Code Annotated § 43-21-159(3) constituted a denial of his constitutional rights because that statute provided the sentencing judge with no standards to make such a determination.” We find no merit in this argument. Mississippi Code Annotated § 97-3-21 (Supp.1981) is obviously the statute upon which Scruggs’ sentence was based. This is pointed out by the state in its brief to which no reply was made by the defendant in his rebuttal brief, and we cannot order reversal on account of the alleged unconstitutionality of § 43-21-159(3). The defendant’s argument as to this proposition is not easily understood. Apparently he argues that there are no written standards to guide a trial judge as to whether the trial judge should sentence a juvenile charged with murder under § 43-21-159(3) or under § 97-3-21.

Section 43-21-159(3) allows for alternative sentencing of juveniles convicted in circuit court. It provides in pertinent part:

[I]f any child shall be convicted by any circuit court, the trial judge, if he deems it for the best interest of such child and the public welfare, may, in his discretion, and in lieu of other statutory punishment, commit such child to any state institution now or hereafter established for delinquents, or may commit such child to the county jail for any term not in excess of one (1) year, or he may suspend sentence and release on probation, under such terms and conditions as he may prescribe, .... (Emphasis added).

Section 97-3-21 provides:

Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the state penitentiary.
Every person who shall be convicted of capital murder shall be sentenced to death or to imprisonment'for life in the state penitentiary.

Whatever discretion was vested in the trial judge, the record shows that the sentencing judge exercised his discretion and considered alternatives under § 43-21-159(3). The judge stated:

The court feels that — and finds that the offense was done in a particularly heinous manner, that this was a crime against people as compared to one solely against property, that you are in the upper edge of the age range between 13 and 18, and that those in connection with my decision would be considered aggravating or damaging to determination against you, and for that reason I would not utilize or invoke the discretion that I have under this act to sentence you to anything other than life imprisonment. That would be my sentence and is at this tiem [sic].

May v. State, 398 So.2d 1331 (Miss.1981) dealt with § 43-21-159(3). There the defendant May was a fourteen-year old retarded youth, and we affirmed his conviction but remanded with directions that the trial judge “consider those alternatives enumerated in” § 43-21-159(3). Section 43-21-159(3) was also focused upon in Bougon v. State, 405 So.2d 101 (Miss.1981), where remand was ordered for clarification of sentence. In the present case the defendant was sixteen years old when tried, and the record shows from the court’s language last quoted above that he seriously considered the alternatives of § 43 — 21—159(3).

Last argument asserted by the defendant in his appeal is that the state committed reversible error in its failure “to provide exculpatory material requested by the defense.” He cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) in support of this proposition. The information which Scruggs claims was not disclosed was a statement which the prosecution obtained from Richard Crane of Mobile who sáid that he had a .38 caliber revolver stolen from his home and he “suspected” Hicks of stealing it. According to Crane, the burglary of his home occurred during the end of November or the first of December, 1979.

Crane was on a list of possible witnesses to be called by the state, which the state furnished to the defendant. After the state rested without calling Crane, the defendant asked the court for additional disclosure. Defense counsel stated he had not been specifically told that Crane would testify but he “assumed” he would.

The prosecutor responded that he did not call Crane because Crane’s gun had not been identified by serial number as the one used to commit the murders. According to the prosecutor, a check on the gun traced it to Crane who did not take down the serial numbers. The prosecutor responded that Crane, therefore, could not testify as to whether the gun found by Wayne County authorities and introduced as the probable murder weapon was his.

Defense argument is that the fact that the burglary apparently occurred approximately a month after the murders was highly exculpatory because it went to the credibility of the inmate Hosey who led police to where the gun was found based upon a conversation he said he had with Scruggs. The defense moved for a mistrial because of the failure to disclose Crane’s statement concerning the revolver. Defense counsel stated he had undertaken to interview Crane but Crane would not talk to him. There is no indication that any effv.”t was made by the defense to compel Crane’s appearance in court by using the Uniform Witness Attendance Law or any compulsory process returnable to the trial in chief or to the hearing on the motion for a new trial.

In overruling the motion for a mistrial, the court stated that even if Crane were allowed to be called as a witness his testimony would be inadmissible because it involved conjecture or speculation that Hicks stole the pistol.

Defense counsel then made an oral motion for continuance to allow him time to secure Crane as a witness. The oral motion was not supported by any affidavit or sworn testimony of any kind. He told the court he had contacted Crane the night before when the state indicated it was not calling Crane as a witness. The court then directed the clerk of the court to contact Crane by phone and advise him of the court’s need for him to testify. Then the defense put on a day’s testimony, and next day the clerk told the court she had tried to call Crane at the number provided by the defense four times and was unable to reach him. At this point, the defense made another oral motion for continuance (again unsupported by proof) to secure Crane’s presence. His motion was denied, and the defense rested.

The state argues that the information came to the attention of the defense during the trial giving him time to secure Crane’s presence as a witness. According to the state Scruggs should not be allowed to argue the denial of the continuance as error since the denial was not specifically assigned as error under Miss.Sup.Ct. Rule 6(b) (1976). The state says even if such an argument is allowed to be made it should be denied because the granting of a continuance is a matter resting in the broad discretion of the trial judge. Correctly the state points out that this Court has repeatedly refused to find an abuse of discretion when a motion for continuance does not comply with Mississippi Code Annotated § 99-15-29 (1972) which requires the movant to support such a motion with “facts” in affidavit form not done here.

Regardless of whether the continuance should have been granted, upon the record this part of the defendant’s argument lacks persuasion because it is clear that the testimony of the absent witness would not have created a reasonable doubt of Scruggs’ guilt. In United States v. Agurs, supra, the United States Supreme Court held that a new trial should be ordered only if the withheld material created “a reasonable doubt that did not otherwise exist . . . . ” 427 U.S. at 112, 96 S.Ct. at 2401. The Court said the omitted evidence should be evaluated in the context of the entire record and if there is no reasonable doubt about guilt, with or without the additional evidence, then “there is no justification for a new trial.” Id. at 113, 96 S.Ct. at 2402.

In the instant case the trial judge overruled the defense’s motion for a mistrial for the reason that Crane’s testimony would be inadmissible even if he were present to testify. According to the state’s information, Crane told officers that he bought a .38 caliber revolver and that it was stolen in November or December, 1979. He said he “suspected” Hicks was the culprit. Not having recorded the serial numbers of the weapon, it does not appear that Crane could testify beyond a reasonable doubt that the weapon found at the direction of inmate Hosey was his (Crane’s). Thus, Crane’s testimony would be of little, if any, use to Scruggs and certainly would not create a reasonable doubt of his guilt. Evidence of Scruggs’ guilt of the crime charged is very great, and the sufficiency of the evidence is not even attacked here by Scruggs.

Careful review of this record reveals that the evidence against the defendant is obviously overwhelming, and establishes his guilt beyond a reasonable doubt. As is usually the case, he was not given a perfect trial, but he was given, a fair trial. The record clearly shows that he was represented by able and experienced counsel who vigorously represented him in a commendable manner. No reversible error having been shown, affirmance of the conviction and sentence is required.

AFFIRMED.

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

APPENDIX

VOLUNTARY STATEMENT

DATE Oct. 30.1979 PLACE Chiefs Office Waynesboro. MS. TIME STARTED 7:26 P.M. I, the undersigned Joseph Dewavne Scruggs am 16 years of age, having been born on 7-18-63 . at Meridian. MS._

I now live at Rt. 1. Box 165 A. Satsuma. Ala.__

I have been duly warned and advised by H. M. Hooks a person who has identified himself as a state investigator . that I do not have to make any statement at all, nor answer any questions or do anything that might tend to go against me or incriminate me in any manner, and that any statement I make, can and will be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I was also warned and advised of my right to the advice and presence of a lawyer of my own choice before or at any time during my questioning or statement I make, and if I am not able to hire a lawyer I may request and have a lawyer appointed for me, by the proper authority, without cost or charge to me.

I do not want to talk to a lawyer, and I hereby knowingly and purposely waive my right to the advice and presence of a lawyer before and during any questioning or at any time before or while I voluntarily make the following statement to the aforesaid person, knowing that anything I say can and will be used against me in a court or courts of law.

I declare that the following voluntary statement is made to the aforesaid person of my own free will without promise of hope or reward, without fear or threat of physcial harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.

Written by H. M. Hooks at request of Joseph Dewayne Scruggs.

On Sunday, Oct. 28, 1979 around 8 or 9 o’clock, Dennis Hicks and myself were on 1-65 at Mobile, Ala, trying to catch a ride to Meridian, Miss. A Monto-Carlo blue in color with a T-Top with 2 W/M’s stopped, I think it was a 79 model. The passenger asked us where we were going and I said Meridian. He said come on we are going that way. We then went up the ramp and went to 8-mile Ala, to a Gulf oil service station. We bought $10.10 worth of gas and the passenger paid for it with a credit card. This was around 9:00 o’clock or later. We then proceeded North on Hi-Way 45 toward Meridian. We were all talking about songs and those things. The driver had ,told us his name was Richard or something and the passenger said his name was Ricky or Richard or something like that. We all got quite for app. 30 minutes and the passenger went to sleep. Before he had gone to sleep, he had put his hand real close to the drivers leg and asked him “Are you still mad at me baby?” We then stopped the car and the driver, Dennis and myself got out and used the bathroom. We were between Citronelle and 8-mile Ala. We had stop|)ed at a 76 service station with a grocery store in it. The driver used the bathroom in front of the car, but Dennis and myself went behind the service station. It was closed at this time. We then headed North again. Dennis then asked the 2 boys where they were from. The driver said he was from Jackson and the passenger said he was from Newton. Dennis then asked me what I was going to do tomorrow night when I got back. I told him I didn’t know. We then just started talking about songs and etc. The passenger was asleep at this time. I then asked the driver to pull over so I could use the bathroom and Dennis said he had to go too. The driver said he needed to get a drink or something from the trunk so we pulled over. I saw a car coming so I told the driver to pull down that side road cause that car might be the police and they don’t like for you to use the bathroom beside the road. The driver then pulled down the road a little piece. I got out first when the driver leaned forward and released the seat, because I was sitting behind him. Then the driver got out and streached, and Dennis got out last. We all got out on the drivers side. I went to the front and used the bath room beside the road. The driver went back and opened the trunk. I was still at the front of the car and I heard a gun shot. I think Dennis fired over the drivers head. I then heard Dennis say “Bitch get in the trunk.” He threw a lot of stuff out of the trunk so he could get in. I then heard him moaning and cry'ng from the trunk, but I couldn’t see what Dennis was doing. I had walked back to the drivers door at this point and the passenger got out and said “Whats going on?” Dennis then told him to get in the trunk. He then got in beside the driver who was already in the trunk. Dennis then closed the trunk and asked me to help push the car off the road. I helped him push the car off the road. I didn’t hear the 2 people saying anything. I asked Dennis what he was going to do and he didn’t say anything. Then Dennis opened the trunk and started shooting. He shot 3 or 4 times. He then closed the trunk and said “let’s run.” Dennis then picked up some of their stuff and started going through it. He had it under the hood of the car so he could use the hood light. Two vehicles come by about this time. One was a pick-up truck but I didn’t see the other one. Dennis threw a lot of their stuff out in front of the car and one suitcase to the right of the car on the passenger side. Dennis got the billfold from the glove compartment. He went through it and throw it to me and I put it on the seat. He then took it and threw it up in the trees and I didn’t hear it hit the ground. When we first stopped at this place, I had looked at the car clock and it was 12:04 A. M. When we left the scene and started South on Hi-Way 45, it was app. 15 minutes later. From the time of the shooting till now, I never saw the gun again. I know it was a blue steel, short barrel, revolver, with brown handles, but I don’t know the brand name of it. It was a 38 Cal. When we walked past the first house on the right south of the shooting, Dennis said “I got one bullet left” and put it in his top jacket pocket. He then put his hand in his pocket and handed me $5.00. Later we came to a house and it was empty except for a old l>ed. We slept there and stayed till about 9:00 o’clock the next morning. We then went to a store and bought some chocolate milk and some cookies. I also bought some cigarettes. I paid for mine and walked outside. We continued south and stopped at another colored ladys house. We got water but no ride. We left walking south. The next house we stopped at, we got a ride with Buck Worsham to Buck-atunna, Miss. We went into the woods just south of there and when we came out on the hi-way again, we saw the police car and we ran. They caught us at this point. I have read this statement consisting of 4 page(s), and I certify that the facts contained therein are true and correct. I further certify that I made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

This statement was completed at 8:26 P. M. on the 30 day of Oct._, 1979.

WITNESS: H. M. Hooks

Joe Scruggs_ Signature of person giving voluntary statement

WITNESS: Marvin Farrior Sammy Windham