author: COFER, Justice, ROBERTSON, Presiding Justice, BROOM, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. ST. CATHERINE GRAVEL COMPANY.
    No. 51524.
    Supreme Court of Mississippi.
    Nov. 14, 1979.
    Rehearing Denied Feb. 27, 1980.
    A. F. Summer, Atty. Gen., Jackson, R. L. Netterville, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellee.
    Before ROBERTSON, P. J., and BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

Appellant, State Highway Commission of Mississippi, applied for the organization of a special court of eminent domain, "with St. Catherine Gravel Company, appellee, as defendant. Such court was organized in Adams County, in which county the subject land lay. In due course, the appellant’s petition was heard resulting in a jury verdict and judgment in such sum as caused appellant (Commission) to take this appeal. The condemnation was for title to 3.08 acres more or less, and a drainage easement of 1.23 acres, more or less.

Appellant assigned as error:

(1) The court’s allowing recovery for certain gravel, to be explained hereinafter.

(2) The court’s admission of evidence of proof of loss of future profits.

(3) The verdict and judgment were contrary to the overwhelming weight of the evidence; and

(4) A substantial part of the verdict resulted from proof speculatory and uncertain.

Defendant was and had for most of a half-century been, engaged in sand and gravel business, which entailed purchasing, or otherwise obtaining, gravel in place, transporting it to its place of business on property, part of which is being taken in this proceeding, washing it, and separating sand and gravel of various sizes and for various uses, all for the market. Its property extended a distance (not here important) into St. Catherine Creek. In the creek, there was a crook or bend where gravel, washed by nature from others’ land, settled into a sand and gravel bar, whence these materials were harvested, processed at a low cost (paying nothing for the materials) and sold on the market. For a number of years defendant had harvested the sand and gravel one or two times a year and had sold it for an average profit of slightly under $3,500 per year.

Two appraisers for the commission testified that due compensation for the land being taken was $28,060 and $30,360. (Their testimony was in accordance with the “before and after” rule, usually the measurement yardstick). Appellee adduced from two witnesses $76,500 and $78,635 (the latter being the exact figure as fixed by the jury), as being the due compensation. In the defendant’s witnesses’ testimony there was included a “before and after” figure, and also $35,000 and $32,000 for loss of the gravel bonanza which appellee had enjoyed through the years.

On the “before and after” figure, there is really no debate. Appellee put the case on appeal in rather clear perspective, saying,

The only question on appeal is the admissibility of evidence by appraisers for the landowner, as well as by one of the appraisers for the State. Mr. Milton, which evidence established a value for the loss of future profits from deposits of gravel on the gravel bar which was a part of landowner’s property and which was now being taken by the State Highway Commission and no longer available to the landowner for such.

Appellant asks remittitur of $35,000 or remand for a new trial on the damages. It contends that the proof as to the gravel loss is too speculative and uncertain to form a basis for that part of the verdict which necessarily had to be attributed to the loss of the gravel that periodically settled into a bar in the creek bend.

A part of the purpose of the condemnation was to straighten and revet the bank of the creek for the purpose of building a bridge or bridges to serve the expanded traffic area of U. S. Highway No. 61 at that point. Thus, the bend where the sand and gravel were more prone to settle would be taken away, and would not be a hindrance to the flow of the water which hindrance enlarged the deposit of these materials at that point. There was proof, however, that, at the lower end of the channel to be caused by the dredging process, where the channel came back to the creek bed, the sand and gravel would settle, and this bar would be on defendant’s land. This testimony was not without contradiction, however.

The defendant capitalized the income from this gravel and its witnesses, as shown above, arrived at $32,000 and $35,000 therefor, and defendant contends the award was just and should be affirmed.

There are, we conclude, at least these considerations in resolving the case:

(1) At the taking or the trial, there was no proof that any gravel or sand was in the creek on appellee’s land.

(2) The gravel had to be washed from others’ land upstream (to whom, for anything contrary thereto appearing in the record, it belonged), and was not defendant’s property unless it so became when 'it came to rest in the creek bed belonging to defendant.

(3) Although the washing of the sand and gravel into the bed on defendant’s land had been at least annually for a number of years, there was no proof (but a hard pressed presumption) that it would continue to do so for any number of years in the future.

(4) There was not eliminated the prospect that the upstream owners might decide to save the gravel for themselves, devising a means of preventing its washing down the creek.

(5) It was pointed out, too, that the Natchez Trace Highway is to be completed upstream from the defendant’s land (when is not shown), and its effect on the creek and the water flow could not be anticipated.

It is contended that this gravel and sand are not part of the land and its taking is separate and is properly considered as a separate item of damage, and, for this case, it was proper to be compensated according to the before and after rule plus payment for the deposits of sand and gravel.

Citing Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250 (1959), and Mississippi State Highway Commission v. Elizey, 237 Miss. 345, 114 So.2d 769 (1959), this Court said in Mississippi State Highway Commission v. Valen tine, 239 Miss. 890, 894, 124 So.2d 690, 692 (1960):

However, the test is the fair market value of the land before and after the taking, and does not inelude the highly speculative and uncertain profits which may be derived from a business.
(Emphasis added).

Loss of profits was recently held not to be a proper element of damages in Mississippi State Highway Commission v. Central Land & Rental Corp., 239 So.2d 335, 338 (Miss.1970), citing Mississippi State Highway Commission v. Ladner, 243 Miss. 139, 137 So.2d 791 (1962).

In Seago Enterprises, Inc. v. Mississippi State Highway Comm., 330 So.2d 588 (Miss.1976), it was again announced by this Court that:

Loss of profits by itself, as a separate item of special damages, is not compensa-ble in Mississippi. Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960). (330 So.2d at 590).

In Ligon v. Indian Creek Drainage District, etc., 247 Miss. 279, 284, 156 So.2d 810, 811 (1963), the lower court was affirmed on its finding that the presence of amounts of clay in land being taken and its quality were “based on too much speculation and upon too little actual quest for facts, for it to be of great weight.”

In obedience to these announcements, it is our opinion that the separate and special claim for damages- on account of the sand and gravel is based upon too weak, uncertain, and speculative testimony and an award therefor must not be allowed to stand. We accordingly, reverse the allowance of these damages as alleged due compensation in the amount of $32,000 and affirm the remainder of the award.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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

ON PETITION FOR REHEARING

ROBERTSON, Presiding Justice,

dissenting:

Being of the opinion that the Petition for Rehearing should be granted and the original opinion, reducing the jury verdict from $78,635 to $46,635, withdrawn, I respectfully dissent to the denial of the Petition for Rehearing.

In its Petition for Rehearing, St. Catherine Gravel Company cited to the Court for the first time Archer v. Board of Mississippi Levee Com’rs, 158 Miss. 57, 130 So. 55 (1930). In Archer, this Court said:

“It appears that the chief value of the property involved is the riparian rights of land in the river for procuring sand and gravel, and there was considerable evidence bearing upon the value of the said property, and there was proof of revenue derived from this source by the owner prior to the condemnation proceedings. The court, however, instructed the jury: ‘The court instructs the jury that in fixing the value of the land and property condemned you must not take into consideration any value of the gravel in the Mississippi River.’ Mrs. Archer’s title to the center or thread of the stream of the Mississippi river had been established by her in a suit for that purpose at a cost of $5,000 or more, and her riparian rights extended to the center of the stream. As the petition sought to condemn the riparian rights as well as the land lying outside of the river banks, and as the proof shows that gravel was a valuable part of the property within the rver channel, it is clear that the court was in error in so instructing the jury. The plaintiff was not only entitled, under the proceeding, to recover the value of the land outside of the river bed, but was entitled to recover for her riparian rights, which, as stated, included the right to take gravel and sand from the Mississippi river for commercial purposes. The proof shows that this was of considerable value. It is therefore necessary to reverse the judgment of the court below and remand the cause for a new trial.” 158 Miss. at 62, 130 So. at 56. (Emphasis added).

Besides taking 3.08 acres of land fronting on St. Catherine Creek and a permanent drainage easement over 1.23 acres of land, the Commission is taking away the landowner’s riparian rights to the middle of the Creek, just as the Board of Levee Commissioners was doing in Archer and just as in Archer the Commission is taking away the landowner’s right to take gravel to the middle of the Creek.

It bears repeating that in Archer this Court said:

“The plaintiff was not only entitled, under the proceeding, to recover the value of the land outside of the river bed, but was entitled to recover for her riparian rights, which, as stated, included the right to take gravel and sand from the Mississippi river for commercial purposes. The proof shows that this was of considerable value.” 158 Miss. at 62, 130 So. at 56. (Emphasis added).

The Commission, in its application for a special court of eminent domain, requested the court to appoint a disinterested, knowledgeable person qualified to make an appraisal of the property under the quick-take statute [Mississippi Code Annotated section 11 — 27—83 (1979 Supp.)]. David Blough, an appraiser of Natchez, Mississippi, was appointed, and in his detailed appraisal he used the income or capitalization approach to appraise the loss of the gravel bar and the riparian rights to mine gravel. The value of the gravel bar and the permanent drainage easement over 1.23 acres was set at $40,687. His total appraisal was $60,500. The court thereupon entered its order that the Commission could take immediate possession of the lands being condemned upon payment of not less than 85% of the compensation and damages, as determined by the court-appointed appraiser. The Commission thus was required to pay into court at least $51,425.

The undisputed proof was that for 50 years the Gravel Company had harvested gravel from St. Catherine Creek. The last three years before the take (1976, 1977 and 1978) the proof was that the annual net income from the annual harvesting of gravel was $3,458.

The Commission’s witnesses, Herbert Miller, project engineer, and William B. Milton, appraiser, admitted that the annual mining of gravel from St. Catherine Creek had been going on for almost 50 years, that it was a valuable property right, that the depositing of gravel on the inside bend of the Creek on the Company’s land had been a certainty for 50 years, but that, when the Commission condemned and took the land and the riparian rights and straightened the channel of the Creek, the gravel would no longer be deposited on the company’s land adjacent to the Company’s main plant (including the gravel washing and processing facilities).

At the trial it was just a question of the value to be placed on these riparian rights, not that the right to mine gravel had no value at all, as this Court in its majority opinion has decided.

The Commissioner’s appraiser, Milton, valued the taking away of the landowner’s right to mine gravel at $5,495. Laurence O’Ferrall, one of the property owner’s appraisers, testified that using the capitalization method, the approved appraisal method usually used where there is an annual income (in this case $3,500), the damages to the property owner for the taking away of its riparian rights to mine gravel would be $35,000. His appraisal for the total take and damages was $75,500.

Robert Haltom, the landowner’s other appraiser, also used the capitalization method to determine damages for the loss of the right to mine gravel. He was of the opinion that the loss of this right would be $32,000, and that the total take and damages would be $78,635.

The jury heard all of the evidence and personally viewed the property. Without objection from the Commission, the court instructed the jury:

The Court instructs the jury for the Defendant that if you believe by a preponderance of the creditable evidence that the Defendant, St. Catherine Gravel Company, has mined sand and gravel in the past and if you further believe by the preponderance of the creditable evidence that St. Catherine Gravel Company, Defendant, could mine sand and gravel in the future based on past activity and if you further believe by the preponderance of the creditable evidence that the Defendant will not be able to mine said gravel in the future because of the taking of the property and easement by the Petitioner, State Highway Commission of Mississippi, then you may include in your verdict of damages the value of said source of gravel as of the date of the filing of the Petition.

After weighing the evidence and considering the court’s instructions, the jury returned this verdict:

“We the Jury vote unanimously (sic) to award the Defendants $78,635.00.”

In spite of the undisputed testimony that the riparian rights and the consequent right to mine gravel to the center of St. Catherine Creek were valuable property rights variously valued from a low of $5,495 (Commission’s appraiser Milton) to a high of $35,000 (Company’s appraiser O’Ferrall), this Court, in the majority opinion, says:

“[I]t is our opinion that the separate and special claim for damages on account of the sand and gravel is based upon too weak, uncertain, and speculative testimony and an award therefor must not be allowed to stand. We, accordingly, reverse the allowance of these damages as alleged due compensation in the amount of $32,000 and affirm the remainder of • the award.”

My thought is that this ground of reversal is not even before the Court. The Commission made no objection to the defendant’s instruction that the jury could take into consideration the value of the “source of gravel”. Also, in the Commission’s motion for a new trial, although assigning five grounds, the Commission no where complained of the instruction given that the jury could take into consideration loss of the gravel bar and loss of the right to mine gravel to the center of St. Catherine Creek. No where did the Commission complain that the property owner was not entitled to some damages for the loss of riparian rights to mine gravel. This Court thus, in taking away every penny that the jury awarded for the loss of riparian rights, the actual loss of the gravel bar itself, and the loss of income from the annual harvest of gravel, goes further than the Commission itself asked for. This Court is taking away even what the Commission’s appraiser said would be due for the loss of gravel. The Commission’s appraiser, William B. Milton, valued the gravel bar and right to mine gravel at $5,495.

This Court reduced the jury verdict from $78,635 to $46,635, the exact amount testified to as the value of the land alone. So now the landowner must refund to the Commission $4,790 (the difference between $51,425 paid under the quick-take statute and $46,635, the amount found due by this Court). The refusal to give any value to the loss of riparian rights to me flies in the teeth of Archer and also Section 17 of the Constitution of the State of Mississippi, which solemnly provides:

“Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; . . . ”

I am of the opinion that the jury was correctly instructed, that the verdict of the jury is supported by substantial evidence, that this Court should not substitute its judgment for that of the jury as to the value of the land and riparian rights taken, and that this Court shoulu affirm the jury’s verdict for $78,635.

I, therefore, respectfully dissent.

PATTERSON, C. J., and BOWLING, J., join in this dissent.

BROOM, Justice,

dissenting:

My views do not precisely conform to either those expressed by Cofer, J., in the majority opinion or with those expressed by Robertson, P. J., in his separate dissenting opinion.

Archer v. Board of Mississippi Levee Comrs., 158 Miss. 57, 130 So. 55 (1930) is relied upon in the dissent. I do not believe Archer is authority or precedent under which, in the instant case, the landowner should have been allowed to recover for future speculative profits which might possibly accrue on account of taking gravel from the waters of St. Catherine Creek. St. Catherine Creek waters make only a small stream and any possible future taking of gravel from such a stream is impermis-sively speculative to form the proper basis of recovery for such future profits in this case. My view is that, at the most, the jury in seeking to determine present value under the before and after rule, was correctly allowed to hear the testimony that the landowner had in recent years been taking gravel from the stream and selling it. Accordingly the jury could rightfully consider such evidence but not so as to include in its verdict loss of future speculative profits as happened at trial of this cause.

In the present case without objection from the Commission, the jury was instructed that “if you further believe by preponderance of the creditable [sic] evidence that St. Catherine Gravel Company, Defendant, could mine sand and gravel in the future based on past activity . . . ” (emphasis supplied) the jurors may consider in arriving at damages the value of “said source of gravel” as of the date of the filing of the petition. By the adroit instruction the jurors were allowed to consider any profits that “could” derive from possible future taking of gravel from the stream. This no doubt was calculated to obscure present value (the chief issue) of the property .at the time of the taking. In my opinion such highly speculative damages are not properly allowable, but in the instant case the instruction was given to the jurors without objection from the Commission. No objection having been made to the instruction, I would affirm because the jurors did no more and no less than what the instruction, though faulty and unobjected to, advised them. However, had proper objection been made to the instruction, in my opinion it should not have been given and in such event I would vote differently here. We should not leave any doubt that the instruction referred to is improper, and for failure of Mr. Justice Robertson to so state I dissent separately.

Upon the record as made, I would affirm.

BOWLING, J., joins in this dissent.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    E. C. GATLIN v. Jerry L. COOK et al.
    No. 51643.
    Supreme Court of Mississippi.
    Feb. 6, 1980.

      James J. Fougerousse, Jackson, for appellant.
    Cynthia L. Hewes, Jackson, for appellees.
    Before SMITH, SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

The question presented by this appeal is whether the Jackson City Council had the authority to remand a petition to rezone property to the Jackson City Planning Board for a rehearing after the City Council had adopted an ordinance rezoning the property and after an appeal was perfected in the circuit court.

E. C. Gatlin filed a petition (No. 1684) to rezone three lots located at 102 South Park Drive in the City of Jackson from R-l (single-family) residential district to R-2 (single-family and two-family) district. The City Planning Board denied the petition for rezoning, and on appeal to the City Council, the Council reversed the Planning Board and adopted an ordinance rezoning the property.

On November 3, 1978, an appeal to the Circuit Court of the First Judicial District of Hinds County was filed by the protestants to the petition. On the same day protestants filed a motion with the City Council for a rehearing on the petition to rezone. On January 10, 1979, the City Council granted a rehearing of the petition in zoning case No. 1684 and returned the petition to the City Planning Board for rehearing. On January 24,1979, the protestants dismissed their appeal to the circuit court.

Section 11-51 — 75 Mississippi Code Annotated (1972) governs appeals from decisions of municipal authorities. Persons aggrieved by the action or decision of municipal authorities may appeal under this section but we find no authority for aggrieved persons to petition the municipal authorities for rehearing a zoning ordinance adopted by the municipal authorities. The sole remedy of the protestants was by appeal. Accordingly, we hold the Jackson City Council did not have the authority to grant a petition for rehearing.

Moreover, the Jackson City Council could not grant a rehearing because an appeal was pending in the circuit court at the time the order was entered. It is well settled that where a case has been removed to an appellate court by appeal the lower tribunal is divested of any jurisdiction to subsequently modify its order or entertain a petition for rehearing. McGowan v. McCann, 357 So.2d 946 (Miss.1978); Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788 (Misc.1974); Crocker v. Farmers & Merchants Bank, 293 So.2d 444 (Miss.1974). The rule applies with equal force when an appeal is taken from a judgment or decision of municipal authorities.

After the appeal was dismissed, Gatlin filed a petition for writ of prohibition against the members of the Zoning Commission of the Jackson City Planning Board to prohibit them from rehearing petition No. 1684 as directed by the Jackson City Council. A temporary writ of prohibition was issued until a hearing could be held on the merits. On April 13, 1979, the circuit court entered an order dissolving the temporary writ and denying the application for a writ of prohibition. Gatlin appealed from this order contending that the City Council was without authority to order a rehearing.

Having determined the City Council did not have the authority to grant the petition for rehearing, we hold that Gatlin was entitled to a writ of prohibition prohibiting the Zoning Commission of the Planning Board from rehearing the petition to rezone. We therefore reverse and remand and direct the circuit court to issue the writ of prohibition as prayed for in the petition.

REVERSED AND REMANDED.

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


author: LEE, Justice,

text:
    STATE of Mississippi, for the Use and Benefit of Mrs. Effie J. POOLE and Mrs. Effie J. Poole, Individually, v. MARYLAND CASUALTY COMPANY, United States Fidelity & Guaranty Company, Fidelity & Deposit Company, and Board of Supervisors of Quitman County.
    No. 51630.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    Rehearing Denied March 12, 1980.

      Luckett, Luckett, Luckett & Thompson, W. 0. Luckett, Jr., Clarksdale, for appellant.
    Caldwell & Lewis, Ben M. Caldwell, Marks, for appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Effie J. Poole obtained judgment in the Circuit Court of Quitman County against Sheriff Lewis Q. Brunt in the sum of thirty-eight thousand dollars ($38,000) for personal injuries resulting from a collision between automobiles driven by her and the sheriff’s deputy. [When the suit was first filed, a demurrer was sustained by the trial court, and, on appeal here, the judgment was reversed as to Sheriff Brunt, and affirmed as to his bond company. Poole v. Brunt, 338 So.2d 991 (Miss.1976)]. Being unable to collect the judgment from Sheriff Brunt, who was not covered by liability insurance, Mrs. Poole filed suit against the individual members of the Quitman County Board of Supervisors and their sureties. A demurrer to that declaration was sustained by the trial court, and Mrs. Poole appeals from the judgment entered.

Appellant contends there was a duty on the individual supervisors to obtain liability insurance covering the vehicles in the sheriff’s office, they breached that duty and are liable to appellant in the amount of the judgment, together with punitive damages.

The declaration charges that the defendants, acting individually and collectively, as the Quitman County Board of Supervisors, approved the expenditure of funds, by inclusion in the budget of the sheriff’s department, for the purchase of liability insurance covering vehicles operated by the sheriff’s department, and particularly the vehicle involved in the collision with Mrs. Poole; and that the purchase of liability insurance was mandatory under the laws of the State of Mississippi, including Mississippi Code Annotated Section 19-25-13 (1972). It charged sufficient facts to constitute a violation of the alleged mandatory duty of the Board to obtain such insurance.

Mississippi Code Annotated Section 19— 7-8 (Supp.1979) provides that the Board of Supervisors of any county in this state is authorized, in its discretion, to obtain and pay for liability insurance covering motor vehicles of the county.

Mississippi Code Annotated Section 19-25-13 (Supp.1979) which is titled “Budgeting and Financing of Sheriffs’ Departments,” states that the sheriff shall submit a budget, estimating expenses of his office, to the Board of Supervisors at the July meeting in each year for the fiscal year beginning October 1, that the Board shall examine the proposed budget and determine the amount to be expended by the sheriff in the performance of his duties for the fiscal year, and that the Board may increase or reduce said amount as it deems necessary and proper. The section further provides that the budget shall include, among other things, amounts for insurance providing protection for the sheriff and his deputies in case of disability, death, and other similar coverage, and shall include amounts for the payments of premiums on bonds and insurance for the sheriff and his deputies which, in the opinion of the Board of Supervisors, are deemed necessary to protect the interests of the county or the sheriff and his deputies.

Appellant cites and relies upon Poole v. Brunt, supra, wherein the Court interpreted Section 19-25-13 as follows:

“The statute makes it mandatory that the budget of the sheriff shall provide insurance protection to the sheriff and his deputies. This protection obviously runs in favor of the injured person.” 338 So.2d at 995.

However, Section 19-7-8 allows the Board of Supervisors the discretion of obtaining and paying for liability insurance. Section 19-25-13 makes it mandatory for the sheriff to include liability insurance expenses in his budget, but does not make it mandatory upon the Board to obtain that liability insurance for the sheriff. The disbursements and expenditures under the statute are made by the sheriff’s department. In Walton v. Colmer, 169 Miss. 182, 147 So. 331 (1933), discussing mandatory and discretionary duties, the Court said:

“In dealing with a matter involving county depositories, the board of supervisors is under duty, as to which it has no discretion, to make advertisement as required by law, and to see that security agreed to be furnished the county for funds placed in banks is furnished. In these matters, the duty is ministerial, and not judicial. ...
* * * * * *
The line of cases relied upon by appellant holds that, where duties are discretionary, about which reasonable minds might differ, there is no liability. In other words, there is no liability for judicial or quasi judicial acts. These cases are sound on their facts, but are not applicable to the case at bar.
* * * * * *
Boards of supervisors have both ministerial and judicial duties to perform. If they acted in a judicial capacity, they are not liable, but, if they refused to act, and injury resulted from such refusal or negligence, recovery may be had upon their official bonds.
We find no reversible error in the trial of the cause, and the judgment of the court below will therefore be affirmed.” 169 Miss. at 184-186, 147 So. at 332.

In Davis v. Little, 362 So.2d 642 (Miss.1978), the Court said:

“The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction the official is immune only where that which he does in’ the performance of his lawful duty requires ‘personal deliberation, decision and judgment.’ ” 362 So.2d at 643.

We are of the opinion that the duty to obtain liability insurance in the present case was discretionary with the Board of Supervisors, that the approval of the sheriff’s budget by the Board did not impose a ministerial duty upon the Board to obtain the liability insurance and that the duty was not a mandatory one.

The appellees further contend that, if the Board of Supervisors had been required by law under a mandatory duty to secure liability insurance, failure to do so was the fault of the Board and not the individual members comprising the Board. We think that position is a sound one. In Wray v. McMahon, 182 Miss. 592, 182 So. 99 (1938), the Court said:

“This court, by several decisions heretofore rendered, has firmly committed itself to the rule, which generally prevails, that a governmental board or council, in the discharge of the duties imposed by law upon the board or council as such, acts in an official, and not in an individual capacity; and any neglect or failure in the exercise of its powers or in the discharge of its duties is the default of the board and not of the individuals composing it, and they are not liable for such neglect or default unless expressly made so by statute.” 182 Miss. at 603, 182 So. at 100.

See also Peoples Bank Liquidating Corp. v. Beashea Drainage District, 199 Miss. 505, 24 So.2d 784 (1946); State v. Forbes, 179 Miss. 1, 174 So. 67 (1937); Reese v. Isola State Bank, 140 Miss. 355, 105 So. 636 (1925); Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677 (1924).

The trial court, in our opinion, correctly sustained the demurrer to the declaration in this cause for the reasons stated, and the judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Dora CURCIO v. Steven CROCKER, Nadine E. Crocker and Gary S. Crocker.
    No. 51671.
    Supreme Court of Mississippi.
    Feb. 6, 1980.
    Rehearing Denied March 12, 1980.
    Luckett, Luckett, Luckett & Thompson, Kay Farese Luckett, Dan Bing, Clarksdale, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tol-linson & Khayat, Jane M. Wilbourn, Clarks-dale, for appellee.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

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

AFFIRMED.


author: WALKER, Justice,

text:
    Helen A. COLLINS v. Lynda Sue BLACK.
    No. 51651.
    Supreme Court of Mississippi.
    Feb. 20, 1980.

      Warner, Ray & Cobb, Harvey B. Ray, Meridian, for appellant.
    Eppes & Shannon, Walter W. Eppes, Jr., Meridian, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

Helen A. Collins filed suit in the Circuit Court of Lauderdale County, Mississippi, against Lynda Sue Black for personal injuries sustained in an automobile collision.

The trial court directed a verdict in favor of Collins on the issue of liability and submitted to the jury the issue of damages. The jury returned a verdict in favor of the plaintiff for $1,138.60 in actual damages and $5,000.00 punitive damages.

Following the entry of final judgment on the jury verdict, a series of post-judgment events transpired:

DATE CHRONOLOGY OF POST-JUDGMENT EVENTS
February 6,1979 Jury Verdict is returned for $1,138.-60 actual damages and $5,000 punitive damages.
February 8,1979 Final judgment on jury verdict is entered for $1,138.60 actual damages, $5,000 punitive damages and all costs.
February 9,1979 Plaintiff files motion for additur.
February 14,1979 Plaintiff files motion for a new trial.
February 14,1979 Defendant files motion for remit-titur as to punitive damages.
February 25,1979 Following an extended hearing the court entered order granting additur as to actual damages and remittitur as to punitive damages. The trial court thereby held that the actual damages ($1,138.60) were inadequate as contrary to the overwhelming weight of the evidence and failed to take into account the physical pain and mental suffering experienced by plaintiff. The trial court also held that the punitive damages ($5,000) were excessive and contrary to the overwhelming weight of credible evidence and that there was insufficient evidence to support the defendant’s ability to pay same and the court was of the opinion that the $5,000 punitive damages award was intended to be actual damages beyond the court’s instruction that it must award at least $1,138.60. Thus an additur of $5,000 was granted respecting the actual damages increasing them to $6,138.60 and a remittitur of all punitive damages ($5,000.00) was granted. The parties were given one week in which to make known their election respecting the suggested additur and the suggested remittitur.
February 20,1979 Plaintiff files motion for new trial as to damages only.
February 22,1979 Defendant files defendant’s acceptance agreement of additur unquali-fiedly accepting additur of $5,000 and agreeing to suffer judgment for acutal damages in the amount of $6,138.60.
February 22,1979 Plaintiff files plaintiff’s rejection of amount of additur accepting additur “in principal” but rejecting the ordered amount of $5,000 as being insufficient.
February 22,1979 Plaintiff files plaintiff’s rejection of remittitur taking exception to the remittitur of $5,000 punitive damages.
February 22,1979 An extended hearing is held and order entered entitled “Order Respecting Post-Judgment Filings, Rescinding Former Judgment and Entering Amended Judgment.” By this order the trial judge adjudicated that the actual damages returned by the jury of $1,138.60 was inadequate as it failed to take into account any pain and suffering experienced but the inadequacy of actual damages was cured by the defendant’s agreement to suffer additur in the amount of $5,000 thereby increasing the actual damages to $6,138.60. The trial court also held that the punitive damages awarded by the jury ($5,000) was contrary to the overwhelming weight of the credible evidence and without supporting evidence and that a remittitur of all punitive damages was proper.
Thus an amended judgment was entered that the plaintiff recover $6,138.60 for actual damages only.
February 23,1979 Order overruling motion for a new trial and motion for new trial as to damages only.

Thus, in summary, the total amount of the original jury verdict of $6,138.60 (as to which $1,138.60 had been for actual damages and $5,000 was for punitive damages) was amended to make a judgment in the aggregate amount of $6,138.60 for actual damages only.

I.

In the first assignment of error, appellant alleges that error was committed by the trial court in refusing to permit Dr. Donald E. Cook (in the presence of the jury) to give testimony with regard to problems the plaintiff experienced in her right leg which the evidence showed was broken six months after the automobile collision between plaintiff and defendant. This assignment of error is wholly without merit.

II.

The appellant argues in her second assignment of error that the trial court erred in granting an insufficient additur of $5,000 to the special damages of $1,138.60 and in remitting the entire amount of punitive damages ($5,000) rendered by the jury verdict.

The jury returned its verdict for actual damages in the amount stipulated to as special damages ($1,138.60) for medical bills, loss of wages and property damages, and found punitive damages in the amount of $5,000.00. Numerous post-trial motions were filed concerning the verdict rendered and the trial judge found inter alia that:

(1) Punitive damages were excessive and contrary to the overwhelming weight of the credible evidence.

(2) There was no evidence to support defendant’s ability to pay $5,000.00 punitive damages.

(3) That all or a substantial part of the verdict for punitive damages was intended to be for additional actual damages over and beyond the court’s instruction as to the amount it must award the plaintiff.

It was against this background that the trial judge elected to remit the entire amount of punitive damages of $5,000.00 concurrently with entering an additur to the actual damages by the same amount.

The acceptance of the additur by the defendant in the amount of $5,000.00 increased the appellant’s actual damages to $6,138.60.

The proof revealed that Mrs. Collins was never hospitalized as a result of the accident of April 5, 1977. While Mrs. Collins was taken to a Meridian Hospital for first aid, she was discharged within a few hours. The attending physician, Dr. William Anderson, caused her to be x-rayed and he testified that all x-rays were negative for any fracture. She had no lacerations which required suturing although she had glass particles about her face and eyes. Mrs. Collins conceded that she was completely recovered from the eye problem in a short period of time. Mrs. Collins was bruised about the arms and body but she admitted a full recovery therefrom. The accident occurred on April 5,1977, and she returned to her work at Lockhead Aircraft Company by April 26, 1977. The stipulation that the parties had reached prior to trial included all monetary losses for medical bills, loss of wages and property damage related to the automobile accident. The only statement of damages omitted from the stipulation was for any pain and suffering that Mrs. Collins may have experienced as a result of the accident.

As to actual damages, i. e., specials and pain and suffering, the judgment of the trial court allowed the plaintiff to recover all of her specials of $1,138.60, plus the court’s additur of $5,000 for pain and suffering.

After a careful review of the record, we are of the opinion that the learned trial judge was imminently correct in allowing the additur and the same is reasonable and commensurate with the proof.

As to the issue of the remittitur of punitive damages by the trial judge, the appel-lee-defendant concedes that the trial court erred in remitting the entire award of punitive damages of $5,000.

The facts were undisputed that the appel-lee voluntarily consumed a sufficient amount of intoxicating beverages which affected her ability to safely operate a motor vehicle, that she ran into plaintiff’s vehicle, that when she did so, she was driving at an unreasonable rate of speed, on the wrong side of the highway, and did not stop after the collision.

Under the above circumstances, we are of the opinion that the trial court improperly disallowed the jury verdict of $5,000 in punitive damages.- It is the long settled and uniformly adhered to rule in our jurisprudence that the amount of punitory or exemplary damages is solely within the discretion of the jury, and, no matter what the sum of their finding might be, interference therewith, unless for exceptional causes, is discouraged. Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239 (Miss. 1978); Yazoo and Mississippi Valley Railroad Co. v. May, 104 Miss. 422, 61 So. 449 (1913); New Orleans, Jackson, and Great Northern Railroad Co. v. Hurst, 36 Miss. 660 (1859).

Also, the pecuniary ability to respond to a verdict for punitive damages may be considered by a jury, but it is not the sole factor to be considered by them. Allen v. Ritter, 235 So.2d 253 (Miss.1970). Therefore, the jury verdict as to punitive damages in the amount of $5,000.00 is reinstated.

For the above and foregoing reasons, the judgment of the trial court for actual damages in the amount of $6,138.60 is affirmed; the judgment of the trial court remitting the jury verdict of $5,000.00 for punitive damages is reversed and the punitive damages’ award of $5,000.00 is reinstated.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    Mamie PINSON v. MEYWEBB HOSIERY MILLS and American Mutual Liability Insurance Company.
    No. 51713.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Rehearing Denied April 16, 1980.
    Laurel G. Weir, Charles M. Little, Tupelo, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Douglas R. Duke, James F. Mixson, Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    Mamie PINSON v. MEYWEBB HOSIERY MILLS and American Mutual Liability Insurance Company.
    No. 51713.
    Supreme Court of Mississippi.
    Feb. 27, 1980.

      Laurel G. Weir, Philadelphia, Charles M. Little, Tupelo, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Douglas R. Duke, Jackson, for appellees.
   ON MOTION TO RETAX COSTS

SUGG, Justice,

for the Court:

Appellant’s motion to retax costs avers that the cost bill of the Circuit Clerk of Lauderdale County is incorrect because it includes $81.75 for 32,700 words at twenty-five cents per hundred words for filing the transcript in this cause. The motion also avers that the entire amount for preparation of the transcript should be deleted because the transcript consists solely of the original record made of the proceedings before the Workmen’s Compensation Commission.

The transcript contains both the original record of the proceedings before the Workmen’s Compensation Commission and the proceedings in the Circuit Court of Lauder-dale County. Part of the transcript was prepared by the clerk and part was the original record as aforesaid.

Supreme Court Rule 22(b) provides:

When a complaint is made, in a motion to retax the costs incurred in this Court, that a fee allowed based on the number of words of an instrument, or transcript thereof, or the transcript of the record as an entirety, is incorrect, the motion shall be accompanied by a written statement of the true number of such words, with a certificate of its correctness by a competent disinterested person, without which no such complaint will be considered.

The Rule requires a written statement of the true number of words in a transcript with a certificate of its correctness by a competent disinterested person. Absent the certificate, we do not consider motions to retax costs based on the number of words in the transcript.

We therefore deny the motion to retax costs because no written statement of the true number of words accompanied the motion and no certificate by a competent disinterested person was filed. It is apparent from the record that the clerk was entitled to some fee because the transcript includes more than the original proceedings before the Workmen’s Compensation Commission.

MOTION OVERRULED.

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


author: COFER, Justice,

text:
    Johnny Lee NETTLES v. STATE of Mississippi.
    No. 51635.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Travis T. Vance, Jr., Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

The appellant Johnny Lee Nettles was tried in the Circuit Court of Warren County on an indictment charging him with being an habitual criminal. Mississippi Code Annotated, section 99-19-83 (Supp.1979). The particular charge was aggravated assault. He was convicted and sentenced as an habitual criminal.

On appeal he assigned errors, which he has discussed in three propositions two of which he has orally argued. These are:

1. The lower court erred in failing to allow the trial attorney to withdraw as attorney for appellant where the trial attorney proclaimed to the court that he could not adequately represent the appellant, and the appellant blurted out in court before the jury his dissatisfaction with his trial attorney. The lower court should have allowed the appellant further time to hire adequate assistance of counsel for his trial defense.
2. The appellant has a constitutional right to a limiting instruction upon the prior convictions entered into evidence upon the charge of habitual criminal under the due process clause of the Fourteenth Amendment of the Constitution of the United States. The appellant’s trial attorney failed to secure due process of law for the appellant when he did not prepare and submit to the court an instruction admonishing the jury not to consider the appellant’s prior convictions as evidence of the substantive crime. The lower court likewise failed to provide the appellant with due process of law where it did not request such an instruction or give the instruction on its own initiative. The appellant is entitled to a reversal of the verdict and sentence.

An examination of the first of these alleged errors and of the record leads us to the conclusion that it is without merit.

We acknowledge that real differences arise between litigants and their attorneys, but are of the view that such differences appearing at the last minute before the beginning of the trial must necessarily be examined for good faith or efforts thereby to procure a continuance. Although the defendant gave expression to his unhappiness with his employed trial attorney, thereafter excellent cooperation between them appeared, and in disposing of post-conviction matters, the judge commented complimentarily upon the attorney’s services and the appellant’s cooperation with him.

The granting of a delay in this case was addressed to the sound discretion of the Court. Burnett v. State, 285 So.2d 783 (Miss.1973). We do not find that denial of delay was an abuse of the court’s discretion. The present case might be summarized in an excellent manner in the words of this Court in Evans v. State, 273 So.2d 495 (Miss.1973):

It must be concluded that Evans was guilty and that he had no bona fide defense and that his tactics with reference to counsel were not in good faith but were purposely obstructive and intended to disrupt and delay the judicial process. Evans’ guilt of the offense charged was overwhelmingly established by the evidence.
(273 So.2d at 499).

The second of these propositions is not without difficulty, but we conclude that appellant was not deprived of any of his constitutional rights in the trial.

The trial was in a single stage, and the aggravated assault charge and the habitual criminal charge were tried together. As a part of the state’s proof, there were introduced documentary evidences of appellant’s indictments and convictions in cases of rape, manslaughter, and furnishing false information, upon which the habitual criminal conviction was sought and based.

At the conclusion of the state’s case, the defendant-appellant took the witness stand, and on direct examination, testified freely as to the offenses made a part of the indictment, and as freely admitted on cross examination numerous convictions of other offenses carrying lesser penalties.

No cautionary or limiting instruction was requested informing the jury that it was not to consider the defendant’s prior convictions as evidence of the substantive charge of aggravated assault. Appellant argues that the failure so to instruct the jury operated a denial to him of due process of law, and that to insure him of his constitutional protection, the Court, on its own motion, should have instructed the jury on the purpose of evidence of prior convictions.

In Newell v. State, 308 So.2d 71 (Miss.1975), we authorized instructions by the court on its own motion, but we held there that the trial judge would not be put in error if he failed to instruct on a point of law on which he was not specifically requested in writing to instruct. Appellant argues that his right to have the jury instructed on this weighty constitutional issue rises above our declining to hold as error the Court’s failure here to instruct the jury.

In Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), the Court was considering the failure of the trial court to give an instruction on the presumption of innocence which the Supreme Court of Kentucky considered to be constitutionally indispensable in a criminal trial. The United States Supreme Court, however, said in reversing the case,

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.
(441 U.S. at 789, 99 S.Ct. at 2090, 60 L.Ed.2d at 643).

We view that the quotation from the Whorton decision may be equally and as wisely applied to the set of facts here.

In United States v. Barnes, 586 F.2d 1052 (5th Cir. 1978), the trial court’s failure to instruct the jury that evidence of the defendant’s prior drug transactions could be used only to show his state of mind rather than to show that he was of bad character came under review, and the court held, in part:

Plain error appears only when the impeaching testimony is extremely damaging, the need for the instruction is obvious, and the failure to give it is so prejudicial as to affect the substantial rights of the accused. United States v. Garcia, 530 F.2d 650, 656 (5th Cir. 1976), citing Upham v. United States, 328 F.2d 661 (5th Cir. 1964).
(586 F.2d at 1058).

We do not undertake to determine what influenced the appellant’s counsel not to request the cautionary instruction. He probably considered that it would be wiser not to emphasize the evidence of the former convictions by instructing the jury on them. United States v. Barnes, supra, 1058-1059.

We affirm the conviction and sentence.

The one-stage, trial had for its authority this Court’s decision in Lay v. State, 310 So.2d 908 (Miss.1975).

Since that time, this Court has approved, on August 10,1979, the Mississippi Uniform Criminal Rules of Circuit Court Practice, of which Rule 6.04 reads as follows:

Procedure for proof of prior convictions under the habitual criminal statute.
In cases involving enhanced punishment for subsequent offenses under the Habitual Criminal Statute [Miss.Code Ann. § 99-19-83 (Supp.1978)]:
(1) The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment.
The indictment shall not be read to the jury.
(2) Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous convictions will not be mentioned by the state or the court except for impeachment purposes.
(3)If the defendant is convicted on the principal charge, a hearing before the court will then be conducted on the previous convictions.

Davis and Brooks v. State, 377 So.2d 1076 (Miss.1979), was an appeal from a life conviction resulting from a single-stage trial. We there took note of the circuit court rule next above set out, and directed the attention of trial courts thereto, “which supersedes our opinion in Lay v. State, 310 So.2d 908 (Miss.1975).”

AFFIRMED.

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


text:
    William Ray TORRENCE v. STATE of Mississippi.
    No. 51720.
    Supreme Court of Mississippi.
    Feb. 27, 1980.

      Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein the defendant, William Ray Torrence, was indicted, tried and convicted of the unlawful sale of marijuana and sentenced to serve a term of five years imprisonment in the custody of the Mississippi Department of Corrections and to pay a fine of $1,500.00.

The defendant contends that a police informer supplied the narcotics which provided the basis for the charges against him and that this constituted entrapment as a matter of law. We agree and reverse.

The state’s case consisted of the testimony of investigators Dewey Bryant and Bennie Nutt of the Hinds County Sheriff’s Department, and, that of Officer Milburn Truelove of the Jackson Police Department. The substance of their testimony related to the information received from Sue Jordan, a confidential informer, who informed the officers of a suspect who was selling drugs, and advised them how a sale could be consummated.

Dewey Bryant testified that although Jordan was not a paid employee, she did, from time-to-time, provide information concerning drug sales, to be repaid in turn by a favorable recommendation to the district attorney’s office, where several counts of burglary were then pending against her. Bryant further testified how the sale was actually consummated at a local tavern, known as the “Town Pump,” with Sue Jordan present at the time of the sale. Sue Jordan, the confidential informant, did not testify at the trial and no explanation was given by the state for her absence.

The defendant testified in his own behalf that he had known the police informer, Jordan, for ten years prior to the arrest; that prior to April 8, 1979, the day of the sale, Jordan had called him on several days wanting him to do a favor for her; that she needed to make a sale of marijuana, because she was in a bind for money. The defendant testified that he did not want to get involved and refused to sell the marijuana for her. However, on the morning of April 8, 1979, she called again and asked that he make a sale for her. Refusing again, he went to the “Town Pump” Tavern. Jordan called him there later that day with the same story, i. e., that she owed a man some money with whom she had arranged a sale, but if she sold it to him directly, he would be expecting the money back that she owed him, and she needed the money.

The defendant then described how Jordan furnished the marijuana and how the sale was consummated. He stated that Sue Jordan introduced the state agent to him as a painter and that after consummating the sale, he gave the money to Jordan. Following the defendant’s case in chief, no evidence was presented by the state in rebuttal which would contradict the defendant’s story as to Sue Jordan’s role in the transaction.

It is the defendant’s sole contention that his uncontradicted testimony establishes entrapment as a matter of law, and, that the burden was on the state to rebut such evidence and the state fail'd to sustain that burden. This Court had the same question before it in the recent case of Sylar v. State, 340 So.2d 10 (Miss.1976). There it was shown that Sylar, after declining on several occasions, consented to a Mississippi Narcotics Bureau undercover agent’s request to deliver a one-pound package of marijuana to a “friend,” who was also an undercover agent. Sylar was also instructed to collect from the latter $120.00. Sylar consummated the sale and returned the state funds back to the first agent’s residence. In reversing and discharging the defendant, the Court quoted with approval from State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976), wherein the New Jersey Supreme Court stated this rule:

This appeal poses the issue whether entrapment is established as a matter of law if an informant, while acting in concert with an undercover police officer, but unknown to the officer and contrary to instructions, supplies the defendant with heroin for the purpose of then arranging a sale of the heroin by defendant to the undercover officer, which sale is then consummated. We hold that it is. (364 A.2d at 10).

The Court continued:

We hold that where an informer or other agent generally acting in concert with law enforcement authorities, furnishes a defendant with heroin for the purpose of then arranging a sale of the heroin by the defendant to an undercover officer, which sale is then consummated, defendant has been entrapped as a matter of law even though predisposition to commit the crime may appear, and notwithstanding that the furnishing of the heroin is unknown to and contrary to the instructions of the law enforcement authorities. Those authorities, having set the agent to work in enticing the defendant, the prosecution should bear the onus of the means selected by the agent. See State v. McKinney, 108 Ariz. 436, 501 P.2d 378, 381-382 (1972); State v. Boccelli, 105 Ariz. 495, 467 P.2d 740, 742 (1970); People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, 768 (1961); State v. Overmann, 220 N.W.2d 914, 816-917 (Iowa Sup.Ct.1974); Jones v. State, 285 So.2d 152, 159 (Miss.Sup.Ct.1973); State v. Sainz, 84 N.M. 259, 501 P.2d 1247, 1248 (Ct.App.1972); Lynn v. State, 505 P.2d 1337, 1344 (Okl.Cr.App.1973). But see Proposed New Jersey Penal Code § 2C:2-12 (1971). (364 A.2d at 13).

We also held in Jones v. State, 285 So.2d 152 (Miss.1973), that a conviction for the sale of narcotics must be reversed where the state failed to controvert defendant’s testimony that the confidential informant supplied the marijuana which appeared to be the subject of an illegal search. In our decision in the Jones’ case, we relied on People v. Carmichael, 80 Ill.App.2d 293, 225 N.E.2d 458 (1967), in which case the Illinois Appellate Court, faced with the same contention, held that where a defendant testified that he was supplied by a police informer with narcotics which were the subject of an illegal sale, and the testimony of the informer did not controvert the defendant’s claim nor did any other testimony, defendant proved entrapment and should have been discharged.

Since the state did not call Sue Jordan as a witness to refute the defendant’s testimony that she supplied him with the marijuana and arranged the sale or to controvert that claim by any other evidence, Torrence proved entrapment as a matter of law. Jones v. State, supra, and Sylar v. State, supra.

By giving credence to the uncontroverted testimony of the defendant, we do not mean to imply that Investigator Bryant either supplied the confidential informant, Jordan, with narcotics or knew that Jordan supplied the defendant. Nonetheless, the state is responsible for the undenied actions of their informer when the defense of entrapment is raised.

The conviction and sentence of appellant are reversed and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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

      . There may well be circumstances where the authorities, in order to flush out criminal activity, may furnish a suspect with contraband and subsequently purchase that contraband from him. Compare United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). But, this is not such a case.


author: SUGG, Justice, BOWLING, Justice,

text:
    Richard L. McKLEMURRY v. UNIVERSITY MEDICAL CENTER.
    No. 51719.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Paul D. Snow, III, Jackson, for appellant.
    Carl F. André, Jackson, for appellee.
   SUGG, Justice,

for the Court.

Plaintiff filed suit in the First Judicial District of Hinds County against the University Medical Center and two physicians employed by the Medical Center for damages based on the negligence of the servants in treating plaintiff. A settlement was made with the individual defendants and the case is on appeal as to the Medical Center only.

The University Medical Center filed a demurrer raising the defense of sovereign immunity. The trial court sustained the demurrer and dismissed the case as to the Medical Center.

This case is controlled by our opinion in Jones v. Knight, 373 So.2d 254 (Miss.1979) and numerous cases in which we have declined to abolish the doctrine of governmental immunity. The trial court properly sustained the demurrer.

AFFIRMED.

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

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

BOWLING, Justice,

dissenting:

I dissent from the majority opinion in this case for the reasons stated by me in my dissenting opinion in Jones v. Knight, 373 So.2d 254 (Miss.1979).

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


author: PATTERSON, Chief Justice,

text:
    Larry CRAFT, v. STATE of Mississippi.
    No. 51685.
    Supreme Court of Mississippi.
    Feb. 27, 1980.

      Robert S. Reeves, McComb, for appellant.

      A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Larry Craft was convicted of armed robbery and sentenced to fifteen years by the Circuit Court of Pike County. Aggrieved by the verdict and sentence, he appeals.

In March of 1977 the Grand Jury of Pike County returned an indictment charging Larry Craft, Raymond Webb and James (Bilbo) Jackson with armed robbery. Webb and Jackson pleaded guilty. Craft denied his guilt and was tried with the result mentioned.

On December 21, 1976, three unidentified black males robbed the Seago Quik Mart of $352.11. Investigating the robbery, the McComb police could not find the culprits, but for some undisclosed reason they suspected Larry Craft and therefore processed his name through a nationwide crime broadcast which ultimately disclosed that Craft and Jackson were in the custody of the Chicago, Illinois Police Department.

Officers Barkdull and Oliver of the McComb Police Department obtained custody of Craft and Jackson on January 22, 1977, and returned them to McComb, Mississippi by automobile. The uncontradicted evidence shows that prior to departing Chicago both Craft and Jackson received their Miranda warnings. However, during the trip to McComb, Craft and Jackson, overheard by officers Barkdull and Oliver, argued about who had the possession of the weapon used in the armed robbery of December 21, 1976.

On January 23, the day after Craft was returned to McComb, he again received a Miranda warning and signed a waiver acknowledging this fact. Thereafter, evidently believing Craft would make a statement, Barkdull summoned the police department stenographer, Whittington. Craft then related his participation in the crime to officers Barkdull, Kennedy and stenographer Whittington. The officials then transcribed the oral statement, but Craft refused to sign it.

Subsequently, Craft was removed from the city jail in McComb to the Pike County Jail in Magnolia, Mississippi, from which he escaped. He was later apprehended in Flint, Michigan. During his detention there, Craft related to officers Caterer and Brink of the Flint Police Department the details of the robbery in McComb, Mississippi on December 21.

The trial court conducted suppression hearings concerning the admissibility of the statements made by Craft on the automobile trip from Chicago to McComb, the statement made in the McComb Police Department, as well as the statements made in Flint, Michigan. The trial court determined the statements to be admissible, and the state consequently introduced them during its case in chief. The propriety of permitting the statements into evidence forms the crux of this appeal.

Appellant contends the requirements of Agee v. State, 185 So.2d 671 (Miss.1966), require reversal. As observed, the statements were made at different times, in different places, to different officers, under-different circumstances, each requiring our attention.

Appellant first notes that police officer Oliver, who accompanied Barkdull to Chicago to return the co-indictees, failed to appear on behalf of the state as a witness to the conversation between Craft and Jackson, and argues the state therefore failed to comply with Agee. We observe as did the trial court, that the police officers did not elicit exchange between the co-in-dictees, but rather incidentally overheard the voluntary conversations between the two. No testimony suggests that these conversations resulted from violence, threats, or coercion, subtle or otherwise, intended to produce admissions. Craft made the allegation that sometime before the conversation in the automobile Barkdull “roughed [him] up” in Chicago. Barkdull denied this. While it is true that Oliver did not testify concerning the alleged incident, it must be emphasized that no testimony in any way connected the “roughing up” to the conversation which later occurred in a different place. Indeed, the car conversation appears to have been purely voluntary, as the trial court found. The pronouncements of Agee, supra, apply only to statements alleged to have been involuntarily made either as the result of threats or coercion by police officers to elicit a confession. The conversations here fall outside the ambit of the Agee rule, in our opinion.

Craft next contends the statement given by him in the McComb jail was inadmissible under Agee because produced by force. At the suppression hearing he testified that officer East came to his cell alone and sprayed him with mace, thereby through intimidation eliciting the statement later made to other officers. Additionally, he argues his refusal to sign the transcribed statement rendered it inadmissible.

East denied Craft’s charge, and the trial court resolved the issue by rejecting Craft’s testimony and accepting East’s denial. In view of East’s denial and the fact that no other officers were present,. we find no Agee problem with the statement given after the alleged mace incident.

With respect to the admissibility of the unsigned statement, the issue becomes that of the accuracy of the statement rather than its voluntariness. Although unnecessary to the decision we reach, we do observe that each of the officers present when the oral statement was made testified. None used any manner of coercion to obtain the statement, and Craft does not contend otherwise apart from his reference to the alleged mace incident. The officers present when Craft gave his oral statement testified to the accuracy of the transcript of it. Indeed, Craft virtually admits the accuracy of the transcript, arguing simply that his refusal to sign somehow deprived it of admissibility. Under these circumstances, we are of the opinion that Agee has no application, because it concerned voluntariness, not accuracy. In Wong Sun v. U. S., 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court stated: “The fact that the statement was unsigned, whatever bearing this may have upon its weight and credibility, does not render it inadmissible; Wong Sun understood and adopted its substance . .” We think this language controlling here, because Craft himself corroborated the testimony of the officers by contemporaneously acknowledging the accuracy of the transcript. Cf. Ray v. State, 213 Miss. 650, 57 So.2d 469 (1952), in which we held an accused’s confession taken by a tape recording was properly admitted into evidence when it was shown to be an accurate reproduction of the accused’s statement. See also Sanders v. State, 237 Miss. 772, 115 So.2d 145 (1959), and cf. Jordan v. State, 320 So.2d 376 (Miss;1975). We conclude the trial court properly admitted the authenticated unsigned transcript.

The next argument concerns the statements of Craft made to the police officers in Flint, Michigan. He contends the court erroneously admitted the statements, because he there received no Miranda warning. Officer Caterer of Michigan testified that he did advise Craft of these rights. The other Michigan police officer did not testify. However, we observe Agee, supra, antedated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and necessarily did not envision the myriad implications of that seminal case. Under the present state of the law, we reject the appellant’s contention that Agee requires all officers present to testify as to whether the Miranda warning was given. Though it might be better practice to offer all present when delivery of the warning is factually disputed, Agee does not compel such a burdensome parade of witnesses.

Agee speaks only to the question of voluntariness, and Craft raised no issue as to the voluntariness of the Flint statement. Miranda requires the warning of constitutional rights prior to interrogation, adding that the state bears a heavy burden of proving compliance; but nothing in that decision indicates compliance can only be established by presenting all persons present when the warning was allegedly given. We decline the appellant’s invitation to expand the narrow rule of Agee to accommodate the distinct rule of Miranda. In our opinion, the court below correctly decided, following a properly conducted suppression hearing, that both rules had been completely satisfied in admitting the out-of-court statements in issue.

Craft next contends the court improperly denied his motion to quash the special venire which he moved for and obtained. The venire consisted of forty-five names. Only twenty-three of those whose names were drawn appeared. Of these twenty-three, four were dismissed, leaving nineteen prospective jurors, fifteen white and four black. The appellant, a black male, contends the jury composition was racially biased. The trial court held, and we think properly so, that no notice of race was taken in the venire’s selection,- and additionally, that the defendant had access to the regular panel of jurors called for that week. The evidence submitted by the appellant totally fails to show any purposeful discrimination by the state. If it did, of course, the burden would be upon the state to prove the absence or underrepresentation of blacks on the jury resulted from something other than intentional discrimination. Spencer v. State, 240 So.2d 260 (Miss.1970). It is settled that persistent absence or un-derrepresentation of a race on juries raises a prima facie case of discrimination. Williams v. State, 210 So.2d 780 (Miss.1968); Watts v. State, 196 So.2d 79 (Miss.1967); Shinall v. State, 187 So.2d 840 (Miss.1966); Bass v. State, 254 Miss. 723, 182 So.2d 591, 183 So.2d 483 (1966); and Harper v. State, 251 Miss. 699, 171 So.2d 129 (1965). On the record before us, however, no testimony whatsoever shows such a history of discrimination. We therefore conclude that the appellant failed to establish a prima facie case of discrimination and accordingly uphold the trial court’s denial of the motion to quash.

The appellant next contends that the court erred in denying an instruction concerning the statements made by him to police officers and to his co-indictee Jackson. The proffered instruction states that the jury should consider the circumstances under which the statements were made to determine their admissibility as evidence. In Ratliff v. State, 317 So.2d 403 (Miss.1975), we said that “[t]he jury does not pass upon the competency of the confession, but the jury does pass upon the weight and credibility of the confession.” See also Rhone v. State, 254 So.2d 750 (Miss.1971). We again decline to put a trial court in error for refusing an instruction which sets forth in incorrect principle of law. In brief, the trial court rules upon the admissibility of a statement; the jury determines its weight just as it considers the weight and worth of other relevant evidence.

The final assignment relates to the sufficiency of the evidence to support a verdict of guilty. We have reviewed the evidence in detail and repeat that which has been stated many times before. The sufficiency of the evidence is largely left to the sound determination of the jury, and if there appears testimony in the record to support the verdict, it will not be disturbed. In our opinion, there is ample evidence to support the verdict and accordingly, it will not be disturbed.

AFFIRMED.

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


text:
    WHITE HEAVY HAULERS, INC., et al. v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 51729.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Shell, Buford, Bufkin, Callicutt & Perry, Harold D. Miller, Jr., Butler, Snow, O’Mara, Stevens & Cannada, K. Hayes Callicutt, Jackson, for appellants.
    Robert B. Prather, Columbus, for appel-lee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    T. M. COKER, d/b/a Coker Trucking Service v. H. L. STANTON et al.
    No. 51750.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Cothren, Pittman & Ferrell, Crymes G. Pittman, Jackson, for appellant.
    Young, Scanlon & Sessums, Pat H. Scan-lon, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Bessie M. BRADLEY v. Wilson EATHERLY et al.
    No. 51733.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Buchanan & Haltom, G. Truett Roberts, Jr., Indianola, for appellant.
    Upshaw & Ladner, Tommie Williams, Greenwood, for appellees.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

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

AFFIRMED.


text:
    Lindy Wayne MARTIN v. IRBY CONSTRUCTION COMPANY et al
    No. 51694.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Cothren, Pittman & Ferrell, Leonard A. Blackwell, II, Jackson, for appellant.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, Larry E. Clark, Taylorsville, for appellees.

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

AFFIRMED.


text:
    Joyce Gay Dumas KENNEDY v. Roy A. DUMAS.
    No. 51696.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Robert N. Brooks, Carthage, for appellant.
    Alford, Mars, Thomas & Kilgore, Donald L. Kilgore, Philadelphia, for appellee.
   Appeal from Chancery Court, Leake County; G. M. Case, Chancellor.

Before SMITH,' P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    In the Matter of the ADOPTION OF Kendra Mae PAULEY. Kenneth Bruce FERGUSON v. John Audley PAULEY.
    No. 51776.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Mcllwain & Cox, John H. Cox, III, Green-ville, for appellant.
    Robertshaw & Merideth, Gary P. Snyder, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Nat W. Bullard, Chancellor.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    NORTH TIPPAH CONSOLIDATED SCHOOL DISTRICT and Board of Trustees v. Elton Ford BULLOCK, as Principal, Falkner High School.
    No. 51752.
    Supreme Court of Mississippi.
    March 5, 1980.
    Charles R. Brett, Tupelo, for appellants.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Jeremy J. Eskridge, Tupelo, for appellee.
   Appeal from Chancery Court, Tippah County; William H. Anderson, Chancellor.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Retha CUMMINS and Joe Cummins v. HAPPY HOLLOW DEVELOPMENT, INC.
    No. 51682.
    Supreme Court of Mississippi.
    March 5, 1980.
    Stephen S. Cooke, Grenada, for appellants.
    Jon M. Barnwell, Greenwood, for appel-lee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    RALPH WALKER, INC. v. Robert Eugene STRICKLER and Edward Walter Strickler.
    No. 51763.
    Supreme Court of Mississippi.
    March 5, 1980.
    Courtney & Courtney, Richard A. Courtney, Jackson, for appellant.
    Gordon, Myers & Gordon, William H. Myers, Pascagoula, for appellees.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

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

AFFIRMED.


author: PER CURIAM. TORBERT, Chief Justice

text:
    TEXTRON, INC., a corporation, Jones & Lamson Division Waterbury/Ferrell, a Textron Corporation, et al. v. Hubert F. WHITFIELD.
    No. 78-409.
    Supreme Court of Alabama.
    Dec. 7, 1979.
    Rehearing Denied Feb. 8, 1980.
    John F. Whitaker of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for Tex-tron, Inc.
    Frank 0. Burge, Jr. and James H. Wet-termark, Birmingham, for appellee.
   PER CURIAM.

This appeal raises the question as to whether a trial court may amend a summary judgment granted a defendant more than nine months later to read “without prejudice” instead of “with prejudice” under ARCP 60(b)(6). We hold it can and affirm.

Plaintiff Whitfield sustained a personal injury on October 22,1974, and brought suit against defendant Textron in Jefferson County Circuit Court based upon the Alabama Uniform Commercial Code. Textron filed a motion to dismiss, or in the alternative, motion for summary judgment on May 25, 1977, claiming that Whitfield’s suit was barred by the Alabama statute of limitations. The circuit judge overruled the motion with leave to Textron to refile the motion upon the rendering of a decision by the Alabama Supreme Court in Grimes v. Massey-Ferguson, Inc., 355 So.2d 338 (Ala.1978).

The law in Alabama concerning the statute of limitations under the Alabama Uniform Commercial Code was unclear until the Grimes decision was rendered January 27, 1978. During the interim, between Tex-tron’s motion arid the release of Grimes, Whitfield brought suit on the same cause of action in the Federal District Court of Vermont.

The Grimes decision decided .the questions concerning the statute of limitations adverse to plaintiff Whitfield’s position and defendant Textron again moved to dismiss, or in the alternative, for summary judgment. Its motion was granted on April 21, 1978, the court not specifying whether with or without prejudice. But see ARCP 41(b) which states, “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.”

After the case was dismissed in Alabama, Textron made a motion for summary judgment in Vermont, alleging that the judgment rendered in Alabama constituted an adjudication on the merits and therefore barred the Vermont suit under the doctrine of res judicata.

While the Vermont motion was pending, on January 31,1979, more than nine months after the summary judgment dismissing the Alabama action, Whitfield filed a motion to alter or amend the judgment.

Whitfield sought to have the judgment reworded to read “without prejudice” so as not to affect the maintenance of his action in Vermont. The circuit judge granted Whitfield’s motion and amended the order. Hence, Textron’s appeal.

First, we must determine the nature of Whitfield’s motion. The motion would have to fall within Rule 60(b)(6) to be timely. It is obvious that the motion does not fall within Rule 60(b)(2)-(5) and the time periods under Rule 59(e) and Rule 60(b)(1) have elapsed. Therefore, our inquiry should be whether the motion can properly be considered a Rule 60(b)(6) motion for “any other reason justifying relief from the operation of the judgment.”

There is no doubt that Rule 60(b)(6) is an extraordinary remedy. A party has only four months to obtain relief from a judgment entered by the court on such grounds as fraud, misrepresentation, or misconduct by a party under ARCP 60(b)(3). A motion under 60(b)(6) may be filed within a reasonable time.

The 60(b)(6) motion should be permitted only in those exceptional circumstances when the party can show the court sufficient equitable grounds to be entitled to relief. Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).

On review of a ruling of a trial court on a Rule 60(b)(6) motion, the appellate court will not disturb the decision of the trial court except where it is determined “that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Nunn v. Stone, supra. The decision of whether to grant or deny the motion is within the sound discretion of the trial judge, and our standard on review is whether the trial judge abused that discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). We find that in this case, there was no such abuse of discretion.

The dismissal of plaintiff Whitfield’s claim in the Jefferson Circuit Court was not such a disposition on the merits so as to invoke the doctrine of res judicata. Whitfield’s claim was dismissed because it was barred by the Alabama statute of limitations, a procedural matter. The dismissal was a bar to recovery in Alabama. Should Whitfield try to relitigate his claim in Alabama the defendants will, of course, have available to them the defense of the statute of limitations. But such a bar in Alabama should not bar Whitfield’s substantive claim elsewhere. We are of che opinion that if the plaintiff can present his claim elsewhere, in a jurisdiction which has a longer or different statute of limitations, and prevail on the merits of his claim, he should have that opportunity. Sack v. Low, 478 F.2d 360 (2d Cir. 1973).

In Sack v. Low, supra, an almost identical factual situation existed as in the case at bar. There, a Massachusetts federal district court dismissed an action because of the applicable Massachusetts statute of lim-Rations. Subsequently, plaintiff filed an identical action in a New York federal district court. The New York court granted summary judgment for defendant under the doctrine of res judicata, relying on the previous Massachusetts dismissal. Plaintiff appealed and at the same time filed a motion in the Massachusetts court to amend the prior order of dismissal to show “without prejudice.” The Massachusetts court granted the motion. The Second Circuit, on appeal, reversed the New York district court’s dismissal, holding the plaintiff’s motion in the Massachusetts district court seeking to amend the judgment was under 60(b)(6) and was effectual so that the Massachusetts dismissal did not bar the subsequent New York suit.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and BEATTY, JJ., concur.

TORBERT, C. J., and SHORES and EM-BRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

The plaintiff-appellee’s motion to revise the judgment of dismissal to read “without prejudice” was made more than nine months after the entry of that judgment; therefore the issue determinative of this appeal is' whether plaintiff’s “Motion to Alter or Amend Judgment” was properly treated as a Rule 60(b)(6) motion which may be made “within a reasonable time,” or whether that motion was in fact a 59(e) motion, which must be made within “30 days after entry of the judgment,” or a 60(b)(1) motion which must be made within four months after entry of judgment. Since there is little, if any, Alabama law in this area, I will rely largely on the interpretation which federal courts have given to the parallel Federal Rules of Civil Procedure inasmuch as our rules are patterned after the federal rules.

Plaintiff’s “Motion to Alter or Amend Judgment” (though it is given a name which is strikingly similar to the title the Rules give a 59(e) motion, i. e., “Motion to alter, amend or vacate a judgment”) is allegedly made pursuant to Rule 60(b)(6) which allows the court to grant a party relief from a prior judgment for “any other reason justifying relief from the operation of the judgment.” The plaintiff’s characterization of the motion is not, however, decisive of this issue because it is clear that a party may not escape the time limits imposed on 59(e) motions or 60(b)(1) motions simply by characterizing it as a 60(b)(6) motion. United States v. Cirami, 563 F.2d 26 (2d Cir. 1977); Sezysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972); Blackstone v. Gulf, Mobile and Ohio R.R. Co., 28 F.R.D. 385 (D.Conn.1961).

The appellant, defendant below, contends the motion is a 59(e) motion to alter or amend judgment or in the alternative a 60(b)(1) motion for relief from judgment because of “mistake, inadvertence, surprise, or excusable neglect.” The trial court granted plaintiff Whitfield’s motion and amended the order, thus treating it as a 60(b)(6) motion.

The majority holds, in reliance on Pierson v. Pierson, 347 So.2d 985 (Ala.1977), that: “The decision of whether to grant or deny the motion is within the sound discretion of the trial judge, and our standard on review is whether the trial judge abused that discretion.”

I agree with that general proposition of law, but I believe the majority side-stepped the threshold issue which is: Whether the circuit court’s treatment of the motion as a 60(b)(6) motion was error. I believe the scope of our review as to that issue is broad because the characterization of that motion under the ARCP is a question of law.

The first point which must be made in attempting to properly classify the instant motion is that Rule 60(b)(6) allows the court to vacate a final judgment only if a set of EXCEPTIONAL CIRCUMSTANCES is alleged demonstrating a situation of extreme hardship. Rinieri v. News Syndicate Co., 385 F.2d 818 (2d Cir. 1967); Sears, Sucsy and Co. v. Ins. Co. of N. America, 392 F.Supp. 398 (N.D.Ill.1974); Carrethers v. St. Louis—San Francisco Railway Co., 264 F.Supp. 171 (W.D.Okl.1967); Mach v. Pennsylvania Railroad Company, 198 F.Supp. 473 (W.D.Penn.1961). “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969). The policy behind the rule requiring exceptional circumstances, as stated by Judge Waterman for the United States Court of Appeals for the Second Circuit, is one of respect for the finality of judgments:

Very high among the interests in our jurisprudential system is that of finality of judgments. It has become almost a judicial commonplace to say that litigation must end somewhere, and we reiterate our firm belief that courts should not encourage the reopening of final judgments or casually permit the relitigation of litigated issues out of a friendliness to claims of unfortunate failures to put in one’s best case.

United States v. Cirami, 563 F.2d 26 at 33 (2d Cir. 1977). “To be sure, the power to upset judgments [must] be exercised guardedly.” Carr v. District of Columbia, 177 U.S.App.D.C. 432 at 442, 543 F.2d 917 at 927 (D.C.Cir.1976).

The language of Rule 60(b)(6), ARCP, provides insight essential to the proper classification of the instant motion by setting forth the two requisites of a 60(b)(6) motion: “[A]ny [1] other reason [2] justifying relief from the operation of the judgment.” 60(b)(6), ARCP.

It is important to note, however that clause (6) contains two very important internal qualifications to its application: first the motion must be based upon some reason other than those stated in clauses (l)-(5) and second, the other reason urged for relief must be such as to justify relief.

7 Moore, Federal Practice, § 60.27[1] p. 343 (2d ed. 1972).

The federal courts interpreting 60(b), FRCP, have held that 60(b)(1) and 60(b)(6) are not pari passu but are mutually exclusive. United States v. Cirami, supra ; Carr v. District of Columbia, supra; Renieri v. News Syndicate Co., supra; 7 Moore, Federal Practice, § 60.27[1] (2d ed. 1972). Clearly then, if relief from the judgment is requested because of a mistake in understanding a court’s order, a 60(b)(6) motion is not appropriate. Transit Casualty Co. v. Security Trust Co., 441 F.2d 788 (5th Cir. 1971).

The trial judge gave no reasons for granting the 60(b)(6) motion. The plaintiff-appellee assigned as his grounds the uncertainty concerning the Alabama statute of limitations. Nevertheless, the plaintiff should have timely moved to amend the order. Whether his failure to do so was due to oversight or to a misunderstanding of ARCP 41(b) (which states that a dismissal is with prejudice- unless otherwise provided) the reason for that failure was not the extraordinary circumstances “justifying” relief under 60(b)(6), but mistake. Therefore, I would hold the instant motion was a 60(b)(1) motion which was not timely filed.

SHORES and EMBRY, JJ., concur.