author: BOWLING, Justice,

text:
    MISSISSIPPI HILL & DELTA SAVINGS & LOAN ASSOCIATION v. The VALLEY BANK.
    No. 52271.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Gail B. Richards, Blount, Tennyson, Richards & Reynolds, Charleston, for appellant.
    William S. Adams, Jr., Levingston, Jacks, Levingston & Land, Rosedale, for appellee.
    Before PATTERSON, ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This case, insofar as we can determine, is one of first impression in any jurisdiction. It arose in the Chancery Court of the Second Judicial District of Bolivar County. Appellant, Mississippi Hill & Delta Savings & Loan Association of Charleston, Mississippi, appeals from a money decree rendered against it and in favor of appellee, The Valley Bank of Cleveland, Mississippi. The unusual facts giving rise to the controversy are as follows.

On December 21,1976, George and Peggy Powell applied for and received an installment loan from appellant, Mississippi Hill & Delta Savings & Loan Association, in the principal sum of $21,000, and to secure the loan, the Powells executed a deed of trust on real property located in Bolivar County. The provision of this deed of trust which resulted in the present cause involves fees due the trustee and attorney in the event of foreclosure, and reads as follows:

In the event of foreclosure hereunder, the proceeds from the sale of said property shall be applied: First, to the payment of all expenses of the execution of this trust, including a five percent (5%) Trustee’s fee and fifteen percent (15%) attorneys’ fees (both of which fees shall accrue immediately upon instructions being given to the Trustee to foreclose); second, to the liquidation of all indebtedness secured hereby; and, third, to the Grantor or other persons thereto entitled as to any balance...

On March 21,1977, the Powells received a loan from appellee, The Valley Bank, and secured the loan by executing a second deed of trust on the same property involved in the Savings & Loan Association loan. This second indebtedness was in the amount of $13,410.39. The Powells defaulted in their indebtedness to appellant Savings & Loan Association. The trustee in this deed of trust was one James Bryant, an officer of the Association. Upon default in payment of the loan, the trustee turned the file over to Attorney Andrew Baker for foreclosure proceedings.

The most material evidence in the record appears in the testimony of Attorney Baker. He testified that when he and Mr. Bryant (the trustee and association official) went to Cleveland for the purpose of conducting the nonjudicial foreclosure sale, he was met by Attorney Gerald Jacks, who represented appellee, The Valley Bank, and a representative of the bank. Mr; Baker was advised that the bank was a junior lienholder and was asked by Mr. Jacks what would be necessary for him to bid on behalf of his client, The Valley Bank. Of course, what was necessary would include the expenses of the foreclosure, attorney’s fee, trustee’s fee, and payment of the balance of the indebtedness. Attorney Baker inspected a copy of the original deed of trust given the Savings & Loan Association. He had already compiled a tentative figure as to the requirements of the Savings & Loan Association from a personal inspection of the first deed of trust, and so advised Jacks and the Bank’s representative. Thereafter, at the sale, the Savings & Loan Association bid $27,000 on the property, and Attorney Jacks, representing The Valley Bank, bid $27,001, and thereby purchased the property on behalf of the bank.

The foreclosure sale was held on February 3,1978. On February 25,1978, appellee bank secured an instrument from Mr. and Mrs. Powell styled “Assignment of Interest,” under the terms of which the Powells’ assigned to the bank any and all title and interest, if any, to any of the proceeds resulting from the foreclosure sale, and expressly granted to the bank the right to take any and all action necessary either in the name of the Powells or in the name of the bank to enforce collection of any of the proceeds of the foreclosure sale which might be due and owing to the Powells.

On August 31, 1978, The Valley Bank filed a suit against Mississippi Hill & Delta Savings & Loan Association and James R. Bryant, Trustee, requesting an accounting in equity of all of the expenses in connection with the foreclosure sale and requested a finding that the fees and expenses charged by the defendants were grossly excessive and unjustified, and that the complainant bank was entitled to receive a decree against the defendants in an amount to be determined by the court representing alleged excessive attorney and trustee charges. The lower court found that it had the authority to inquire into the reasonableness of the fees stipulated in the deed of trust between the Powells and the Savings & Loan Association, and had the power to decide if those fees were unreasonable and excessive, and to grant the Powells’ assign-ee, The Valley Bank, a judgment for an amount found by the lower court to be in excess of reasonable fees. A decree was entered giving The Valley Bank a money decree against the Savings & Loan Association and its trustee.

Even though the briefs of the parties and the opinion of the lower court cite authorities, we have exhaustively researched the question of law presented in this appeal and can find no authority either for or against the cause of action involved in this particular case. There is an abundance of authorities giving the courts the right to find that attorneys’ fees and trustee fees in notes and deeds of trust are unreasonable. We find, however, that in all of these, suits had already been filed involving the collection of a note providing for either reasonable attorney fees or a set percentage attorney fee, or the question involved a judicial foreclosure already pending before the court or some other pending litigation. In addition, there are many cases involving the question under notes and chattel deeds of trust involving only personal property. We find no authority where the deed of trust involves only real property in a nonjudicial foreclosure and then a separate suit later brought by either a mortgagor or his assignee as was done here.

The lower court relies on three Mississippi cases: Travelers Indemnity Co. v. Clark, 254 So.2d 741 (1971); Tedcastle v. Garfinkel, 148 Miss. 507, 114 So. 326 (1927); and Turberville v. Simpson, 94 Miss. 154, 47 So. 784 (1908). Turberville, supra, involved personal property and had other judicial questions involved along with the collection of attorneys’ fees on notes upon foreclosure of a chattel deed of trust. Tedcastle, supra, involved a suit on a promissory note and a court interpretation in connection with the suit.

In Travelers, supra, a complicated receivership matter was involved in a chancery court action. Incidental to that action there was involved the question as to whether or not the collection of certain notes incidental to the action would justify an attorney’s fee of ten percent. This Court, in reinstating the ten percent attorney’s fee in regard to the notes incidental to the action pending in court, said:

The receiver contends that the court acted within its discretion in setting such attorneys’ fees at a figure less than the ten percent stipulated in the notes, but fails to cite any authority justifying reducing the attorneys’ fees below that contracted for in the notes. Absent a showing that the Bank would make a profit on the provisions in the note regarding the attorneys’ fees, and absent a showing that the attorneys’ fees were unreasonably high, we hold the contract was enforceable and that the Bank is entitled to the ten percent attorneys’ fees stipulated in the notes.

A number of authorities followed the above quote from the Court’s opinion in Travelers but an examination of those cases reveals that all of them involved either personal property, a judicial foreclosure, or a reasonable attorney’s fee question incidental to a decision of the entire case. The lower court and appellee here attached importance to the language in the above quote, saying “and absent a showing that the attorneys’ fees were unreasonably high.” As hereinbefore pointed out, there is ample authority under which this dicta statement may be used, but never has it been used or any similar statement in a suit after a nonjudicial foreclosure as we have in the present case.

There are a number of considerations this Court has to keep in mind. It may be safely said that the courts and the business world favor non judicial foreclosure sales. To establish a principle that would deter that procedure and encourage all foreclosures to be handled through judicial procedure would not be proper. An additional consideration with which this Court is concerned is that under a nonjudicial foreclosure sale involving only real property, if the mortgagor or his assignee, has a statutory limitation period to file a separate suit in either equity for an accounting or at law for unjust enrichment, or a wrongful and unreasonable fee charged, there possibly could be a cloud on the real property during the statutory limitation period for filing suits. However, we do not reach that question here. We point it out as possibly one reason there are no authorities in a similar case to that we have here.

As hereinbefore stated, we are dealing only with a deed of trust on real property. The method of disposition of proceeds under a deed of trust on personal property is provided for in the Uniform Commercial Code [Mississippi Code Annotated section 75-9-504 (1972)].

As indicated by this Court in Travelers, supra, the parties to a contract have a right to make contractual provisions among themselves and the courts will not limit freedom to contract except under certain situations such as the provision being against public policy, made under fraud or duress, and other considerations such as those hereinbefore discussed where the court in a legal proceeding has before it the unreasonableness of the contract provision. Of course, there are many other legal reasons why the court would be justified in setting aside contractual provisions between parties. We do not reach that question here except to say that only in clear situations should the court interfere with the right of parties to contract as they wish.

In deciding the case now before the Court, we first note that appellee, The Valley Bank, made a second loan to the Powells and took a second deed of trust on the property already secured by the deed of. trust to the Savings & Loan Association. Appellee accepted the second deed of trust and made the loan with full constructive notice of the provisions of the first deed of trust, including the provisions regarding trustee fees and attorney fees, the first deed of trust having been on record for a considerable period of time. On the day of the foreclosure sale, the representative of appellee bank verified with the representative of the Savings & Loan Association, and made his own verification, that the Savings & Loan Association bid would include the attorney fee and trustee fee stipulated in the first deed of trust. Appellee bank’s bid on the property was deliberately calculated to be an amount that would include payment of the fees according to the first contract. Under the peculiar facts of this case, and considering the hereinbefore set out statements regarding doubtful results if decided otherwise, and the lack of authority to do otherwise, we hold that appellee bank was estopped to later file its separate suit after the nonjudicial foreclosure and sale of the real property. This conclusion is amply justified under the general authorities on estoppel.

As stated in 31 C.J.S. Estoppel section 1, “Estoppel is a bar which precludes a person from denying the truth of a fact which has become settled in the contemplation of law.”

Estoppel is a term of wide implication, and implies that one who by his deed or conduct has induced another to act in a particular manner will not be permitted to adopt an inconsistent position, attitude, or course of conduct and thereby cause loss or injury to other. ..
Estoppel is also defined in terms of a preclusion, as the preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part or the part of those under whom he claims, or by an adjudication on his rights which he cannot be allowed to call in question...

We do not reach the question as to whether or not the trustee’s fee and the attorney’s fee in this particular case were reasonable for the reasons hereinbefore set out. We merely hold that in this particular case, appellee, with its knowledge and actions as hereinbefore stated, is barred by the law of estoppel from bringing the unusual suit that was brought. Therefore, we reverse and render judgment here for appellant.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

license: Public Domain

text:
    William Lynn LOGAN v. STATE of Mississippi.
    No. 52522.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    J. W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Tallahatchie County; Andrew C. Baker, Judge.

Affirmed.


text:
    Stephen Eugene FEATHERSTON v. Joseph J. BEVON and Doris Bevon.
    No. 52339.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    William P. Featherston, Jr., Jackson, for appellant.
    Derryl W. Peden, Stennett, Wilkinson & Ward, Jackson, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

REVERSED AND REMANDED FOR ENTRY OF A DECREE IN ACCORDANCE WITH THIS OPINION.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Gary L. BUTLER v. STATE of Mississippi.
    Misc. No. 1139.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Gary L. Butler, pro se.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PETITION DISMISSED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Edward R. POWELL, Jr., a Minor, By and Through His Father and Next Friend and Guardian, Edward R. Powell, Sr. v. George J. HOLLISTER and Sallie Hollister.
    No. 52335.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    J. Elmo Lang, Pascagoula, for appellant.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Raymond L. Brown, Megehee, Brown, Williams & Mestayer, Pascagoula, for ap-pellees.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    E. A. BUCKNER, Jr. v. R. W. McGUFFIE CONSTRUCTION CO.
    No. 52342.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    M. James Chaney, Jr., Teller & Teller, Vicksburg, for appellant.
    Paul Kelly Loyacono, Loyacono & Field, Vicksburg, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Warren County; John W. Prewitt, Judge.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


author: HAWKINS, Justice, BROOM, Justice,

text:
    Lois Ruth WILSON v. Larry Joe WILSON.
    No. 52324.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Donald B. Patterson, Brookhaven, for appellant.

      Ralph L. Peeples, Hobbs, Hobbs & Pee-ples, Brookhaven, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal from the Chancery Court of Lincoln County. The complainant-appellant Lois Ruth Wilson and the defendant-appellee Larry Joe Wilson married December 13, 1972. At the time of the marriage he was divorced, and the father of five children from the previous marriage. His former wife had custody of the children, but later Wilson gained custody of three of the children, who lived in the home of Wilson and their step-mother, Mrs. Wilson.

When the parties married, Wilson was in the Military Service, and during their marriage they lived at various places, including Germany.

The parties moved to Lincoln County, Mississippi, Wilson’s home, in August 1975. Their child, Cheryl Marie Wilson was born January 28, 1977. On February 3, 1978, Mrs. Wilson separated from her husband. She and their infant were carried to Jackson by the aunt and uncle of Wilson, a Paul and Mrs. Dora May Hall. Mrs. Wilson and the infant went to the home of her mother and step-father in the State of Washington. While she was in the State of Washington with the infant, Wilson made a trip in March attempting reconciliation. Also, there were telephone calls between the parties. In April 1978 Wilson returned to the State of Washington with a man he could only identify as “B. J.”, who he had picked up apparently as a hitchhiker on his first trip.

On April 10, 1978, Wilson forcibly took the child away from Mrs. Wilson in the State of Washington, and with B. J. driving, departed. Mrs. Wilson did not see her child again until October 1, 1979.

Upon returning to Mississippi, Wilson employed an attorney to file a petition on his behalf for legal custody of the infant, but did not pursue the matter.

Mrs. Wilson came to Mississippi, and on April 25, 1978, filed her original bill of complaint for divorce. In her bill of complaint, Mrs. Wilson prayed for temporary care and custody of their child, temporary alimony, temporary child support, temporary attorney’s fees, and other relief. Mrs. Wilson in her bill also asked for an absolute divorce, permanent care and custody of their child, permanent child support and alimony, and other permanent relief as to their property. The defendant was personally served with two summons, one requiring him to appear on the 2nd day of May 1978 at the regular term of the Chancery Court of Lincoln County to plead to the bill of complaint of Mrs. Wilson, and the other to appear on the same date and answer the complainant’s complaint for temporary child support, temporary alimony, temporary attorney’s fees and the immediate award of any personal effects belonging exclusively to the complainant. Both summons were personally served upon the defendant on April 26, 1978. The defendant failed to make any appearance whatever (deciding to leave the state as hereinafter set forth), and on May 19, 1978, the chancery court rendered a Temporary Decree and Writ reciting that personal service had been had upon the defendant and that both parties in the cause were represented by counsel on the first day of the term. The decree further recited that the defendant “has wholly defaulted and did not appear and the whereabouts of Cheryl Marie Wilson are unknown at this time.”

On the 28th day of August 1978, with Wilson and the infant still absent from the state, the cause came on for hearing upon the permanent relief prayed for by Mrs. Wilson in her bill, and evidence was taken in open court, after which the court found and adjudicated that the court had jurisdiction of complainant and the defendant, their minor child Cheryl Marie Wilson, and subject matter. The decree went on to recite that the defendant had wholly defaulted, and after hearing evidence the court found that the complainant was entitled to a divorce absolute of and from the defendant on the grounds of habitual cruel and inhuman treatment and she was granted a divorce. The decree further recited that Mrs. Wilson was entitled to the immediate permanent care and custody of their child Cheryl Marie Wilson. The decree also directed the Sheriff of Lincoln County and any other sheriff in Mississippi to take custody of the child upon locating it, and enlisted the assistance of the welfare department.

On April 28, following personal service of process upon him April 26, Wilson met a Miss Judith Rose Sullivan in a restaurant in Franklin County. Miss Sullivan as it developed was pregnant at the time with a child born October 16, 1978. Wilson discussed the proposition of hiring her to take care of the infant Cheryl, to which she agreed later that day, and she started taking care of her April 29. Either on April 29 or 30, Wilson and Miss Sullivan departed to Mobile, where they lived together in a trailer, and were married September 23, 1978. They returned to Lincoln County, Mississippi, in October 1978, and apparently remained there until the hearing on October 1, 1979.

Wilson’s mother was present in the chancery court proceedings on May 19 and 28, 1978. Mrs. Eula Mae Kimble, his sister, was present at the May 19 hearing, and on August 28 was asked the whereabouts of her brother by Mrs. Wilson. No information was forthcoming from Mrs. Kimble following the inquiry.

Wilson, following the separation, also forged his wife’s name to some insurance proceeds checks from a fire loss. He pleaded guilty to uttering forgery in the Circuit Court of Lincoln County.

On March 15, 1979, Mrs. Wilson, in the State of Washington, executed a motion to cite Wilson for contempt. This motion was not filed, however, until September 21, 1979, and on that date the chancellor issued his fiat directing process for the defendant returnable to September 27, 1979. The motion recited that Wilson had failed to surrender the care and custody of the child to complainant, had kept his whereabouts and the whereabouts of the child hidden from Mrs. Wilson and the legal authorities of Lincoln County. An amended motion was filed on September 27, repeating essentially the first motion and asking for a re-setting of the cause beyond September 27, and for the immediate custody of the child.

Wilson filed an Answer and Cross-Petition alleging a material change of circumstances and for the Court to award him the permanent care, custody and control of Cheryl Marie Wilson. Mrs. Wilson filed an Answer to this Cross-Petition.

The cause came on for hearing at 1:30 o’clock in the afternoon of October 1, 1979. The Court found Wilson was in contempt of its prior decree, and then proceeded to hear the petition for modification of the final decree.

In his petition for a modification of the final decree, Wilson alleged a material change of circumstances following the decree consisting of (a) abandonment, by Mrs. Wilson of the infant, (b) an unnatural relationship between Mrs. Wilson and her stepfather, and (c) the remarriage of Wilson to Miss Sullivan.

At the outset of the hearing, counsel for Mrs. Wilson moved to exclude any evidence concerning any alleged conduct of the parties prior to the divorce decree of August 28, 1978, but the court under reserved ruling heard testimony from Wilson that some time in 1973 Mrs. Wilson had informed him she had previously engaged in a sexual episode with her step-father.

At the conclusion of the hearing the chancellor held there had been a material change in circumstances and awarded custody of the infant Cheryl to Wilson.

Mrs. Wilson appeals from the decree of October 1, 1979, awarding custody of the child to her husband.

Following rendition of the decree, counsel for Mrs. Wilson filed a “Motion to Allow Appeal from Interlocutory Order or Decree,” which was sustained by the chancellor entering an order, or decree, allowing an interlocutory appeal on October 1, 1979. This Court is of the opinion the appeal is not interlocutory, however, and that in fact the decree rendered by the court on October 1, 1979, following an evidentiary hearing is a final decree, as final as a decree can get in a child custody case. There would be some question of jurisdiction of this Court were this an interlocutory appeal. Seaney v. Seaney, 218 So.2d 5 (Miss.1969).

The chancellor was in error in hearing and considering the alleged statement Mrs. Wilson made to her husband in 1973 concerning the purported episode with her step-father. This would constitute reversible error. Honeywell v. Aaron, 228 Miss. 284, 87 So.2d 562 (1956); McManus v. St Dizier, 174 Miss. 344, 164 So. 407 (1935).

In view of the magnitude of this case, however, involving as it does a small child, this Court must state further that in its opinion there were no material changes shown at the evidentiary hearing justifying any custodial alteration of the solemn decrees theretofore entered awarding custody of this child to Mrs. Wilson.

As to that portion of the opinion that charges Mrs. Wilson had not done everything she could to locate her child, the record reflects she hired an excellent local attorney, she made inquiry of her husband’s sister, made a trip to Mississippi with her step-father in December 1978, and in March 1979 executed a motion to cite her husband for contempt. She testified she had written two senators, had hired a detective, and had spent over $20,000 to locate her child. Her husband evaded the chancery court and absconded with the child. She lived 2,800 miles away. All of her husband's people and friends lived in Lincoln County. Her inquiries were met with silence or deceit.

This Court can also understand how a mother who has been deprived of her child for a year and a half, is in a strange territory, might not comport herself as an otherwise normal person would. It would not be surprising if under these circumstances Mrs. Wilson was on the verge of a nervous breakdown.

Finally, we agree a change will be made in this child's life. But, who is to say anything is greater than the love of a natural mother for her child? There is nothing in this record to suggest Mrs. Wilson is an unfit or improper person to have the custody of the only child she has.

Without further laboring this opinion, this Court finds there was no proof of any material change justifying a modification of the final decree of August 28, 1978, and the case should be reversed and rendered with reinstatement of the August 28, 1978, decree of the Chancery Court of Lincoln County.

REVERSED AND RENDERED WITH REINSTATEMENT OF THE CHANCELLOR'S DECREE OF AUGUST 28, 1978.

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

PATTERSON, C. J., took no part.

BROOM, J., and SMITH, P. J., and SUGG, J., specially concur.

BROOM, Justice,

specially concurring:

I concur with the opinion as written by Justice Hawkins for the Court, but would go further and overrule certain language of some prior decisions cited by appellant: Case v. Stolpe, 300 So.2d 802 (Miss.1974); Brocato v. Walker, 220 So.2d 340 (Miss.1969); Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918 (1951); and Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951). Set forth in the cited cases is a ruling to the effect that in child custody cases appealed here, we sit as chancellors and are not bound by the rule which requires affirmance of the trial court's decree entered upon conflicting evidence or where such decree is supported by substantial evidence. My thinking is that we should overrule these cases to the extent that they or any other case holds that we sit as chancellors in child custody litigation. As to the evidence upon which chancellors make fact findings and rulings in child custody cases, I think the same rules should apply in child custody cases as in other cases. No longer should we apply any different rules in this regard as to child custody cases. In all other respects, I accept the opinion as written for the majority.

      . The pertinent portions of the Decree of the Chancery Court of May 19, 1978, recites the following:
      * * * * * *
      4. That Lois Ruth Wilson is entitled to the immediate temporary care and custody of Cheryl Marie Wilson and this decree shall serve as a Writ to the Sheriff of Lincoln County, Mississippi, or to any Sheriff of any county within the State of Mississippi where the said Larry Joe Wilson and Cheryl Marie Wilson may be located, to immediately take custody of Cheryl Marie Wilson and to deliver said child to Lois Ruth Wilson, if she is still within the State of Mississippi, or to deliver said child into the care of the Lincoln County Welfare Department, who shall immediately notify complainant’s attorney, Donald B. Patterson, that said child is in their care and said welfare department shall deliver said child to complainant, Lois Ruth Wilson.
      5. That the Sheriff of Lincoln County, Mississippi, or any other Sheriff within the State of Mississippi, who takes said child under the terms of this Decree and Writ, shall serve a copy of said Decree and Writ upon the defendant Larry Joe Wilson, and shall make return of same to this Court in the manner provided by law.

        % $ sj« sfc $
      8. That this cause is set for hearing on permanent relief sought by the Bill of Complaint on August 28, 1978, at 9:30 A.M. at the Courthouse in Brookhaven, Lincoln County, Mississippi.
      SO ORDERED, ADJUDGED AND DECREED this the 19th day of May, A.D. 1978.

      . The pertinent parts of the Final Decree rendered by the chancellor on August 28, 1978, are as follows:
      % sfc # $ * *
      (b) That Lois Ruth Wilson is entitled to the immediate permanent care and custody of Cheryl Marie Wilson and that this Decree shall serve as a writ to the Sheriff of Lincoln County, Mississippi, or to any Sheriff of any county within the State of Mississippi where the said Larry Joe Wilson and Cheryl Marie Wilson may be located, to immediately take custody of Cheryl Marie Wilson and to deliver said child to Lois Ruth Wilson, if she is still within the State of Mississippi, or to deliver said child into the care of the Lincoln County Welfare Department, who shall immediately notify Complainant’s attorney, Donald B. Patterson, that said child is in their care and said welfare department shall deliver said child to Complainant, Lois Ruth Wilson.
      (c) That the Sheriff of Lincoln County, Mississippi, or any other Sheriff within the State of Mississippi, who takes said child under the terms of this Decree and writ, shall serve a copy of said Decree and writ upon the Defendant Larry Joe Wilson, and shall make return of same to this Court in the manner provided by law.
      * * * * * *
      (h) That defendant, Larry Joe Wilson, be, and he is hereby granted reasonable visitation rights with the parties’ minor child, Cheryl Marie Wilson, at the complainant’s place of residence.
      * * # # * *
      4. That all costs herein be, and the same are, hereby taxed against the Defendant. SO ORDERED, ADJUDGED AND DECREED, this the 28th day of August, A.D. 1978.


author: BROOM, Justice,

text:
    Willie Myrtis HOLLEY v. FUNTIME SKATELAND SOUTH, INC.
    No. 52310.
    Supreme Court of Mississippi.
    Jan. 21, 1981.

      Davis Hall Smith, Jacksoii, for appellant.
    Christy D. Jones, Rhesa H. Barksdale, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Skating resulted in accidental injuries to the plaintiff Willie Myrtis Holley, who filed a tort action in the Circuit Court of the First Judicial District of Hinds County against Funtime Skateland South, Inc., operator of the rink wherein the accident occurred. When the plaintiff rested her case, Funtime requested and was granted a directed verdict. Now on appeal plaintiff contends that her proof made out a prima' facie case which should have gone to the jury.

Testimony of the plaintiff which we accept as true in passing upon the directed verdict, establishes the following facts. An experienced roller-skater, plaintiff went to Funtime’s rink in Jackson and paid an admission charge. While skating on roller skates rented from Funtime, the plaintiff noticed a “catching” of the right skate’s front wheels which were not turning freely. Aware the skate was “catching,” she continued to skate around the rink twice after which she fell. In the fall, her left arm was fractured causing her to incur medical expenses, loss of income, and impairment in the use of her arm.

Sole issue is whether the trial court erred in granting Funtime’s motion for directed verdict. The plaintiff’s declaration charges that Funtime negligently failed to (1) provide proper equipment for her use; (2) warn her of the hazards involved in skating with defective skates; (3) insure that the skating rink was in a safe and proper condition; and (4) provide adequate supervision of patrons of the rink.

Plaintiff’s testimony established that she has been skating for more than forty years. She has skated many times at different rinks and was well acquainted with how skating rinks operate. The time of her injury was not the first time that she had skated at Funtime, and until her accident, she had no complaints concerning the rink’s operation. Called as adverse witnesses were employees of Funtime whose testimony the plaintiff presented. These witnesses outlined maintenance procedures used at Funtime and identified the skates which the plaintiff wore at the time of the accident. Testimony of rink manager Kunz was that he examined the skates immediately after the accident and found nothing wrong with them; this testimony stands undisputed.

In her brief, the plaintiff correctly states, “The operator of a public amusement such as a skating rink has a duty to keep the skating rink and equipment in a reasonably safe condition for invitees. Elias v. New Laurel Radio Station, Inc., [245 Miss. 170] 146 So.2d 558, 92 A.L.R.2d 1065 (1962).” She argues that her evidence made out a prima facie case establishing that Funtime furnished to her a pair of dangerously defective roller skates. She correctly states the rule to be that in passing upon the correctness of a directed verdict, we must accept as true all of the evidence favorable to the plaintiff and reasonable inferences flowing therefrom.

Upon this record, we think that the lower court correctly directed a verdict against the plaintiff. The significant and critical part of her proof is that after she began to skate and noticed that the front wheels on the right skate were “catching,” she nevertheless continued skating. Aware of the “catching” she skated around the rink two times and fell during her third trip. According to her testimony when she fell, she was leaning heavily on her left leg because she knew that any defect in the right skate might cause her to fall. Her adverse witness, manager Kunz, testified that as he was assisting plaintiff from the floor, she stated to him that she had lost her balance and fell.

Testimony in the record shows that Fun-time routinely examines the skates used at its rink at regular intervals and also when the skates are returned to the counter by customers. These procedures were followed as to the skates used by the plaintiff on the occasion of her accident. When the plaintiff discovered that the right skate was “catching,” she continued skating and made no complaint to anyone at the rink about the skate.

In a prior opinion we dealt with the duties and responsibilities of skating rink operators. In Blizzard v. Fitzsimmons, 193 Miss. 484, 491, 10 So.2d 343 (1942), a case wherein a child was injured, we stated:

On the opening question of liability, there is brought into view two well established rules. One is that a person who participates in the diversion afforded by an amusement or recreational device accepts, and assumes the risk of, the dangers that adhere in it so far as they are obvious and necessary. 4 Shearman & Redfield on Negligence, Revised 1941 Ed., § 647, p. 1566. And the other is that the proprietor engaged in the business of providing public recreation or amusement must exercise a reasonable degree of watchfulness to guard against injuries likely to happen in view of the character of the amusement. Meridian Amusement Concession Company v. Roberson, 188 Miss. 136, 193 So. 335.

Absent from the record before us is any testimony whatever that Funtime ever knew or should have known that the skates used by plaintiff were defective. The skates were visually inspected each time a customer returned them, and in addition to that they were routinely examined each month. During the examinations, the wheels, toe stops and shoe laces were checked and replaced if needed. None of the evidence before us indicates that the procedures followed by Funtime were inadequate or improper. The testimony here is undisputed that immediately after the accident, Kunz personally inspected the skates and found no. defect or malfunction. At trial the skates that the plaintiff wore when she fell were introduced into evidence and identified by Kunz who further testified that they were in the same condition as at the time of the accident. With the skates present in court, they were not shown to be defective in any manner whatever.

Our view of the evidence is that when the plaintiff began to skate and noticed a “catching” or malfunction, she should have ceased her skating and reported the malfunctioning to someone in charge. To the contrary, she continued skating and leaned heavily on her left leg because, according to her testimony, she was aware that a defective skate might cause her to fall and sustain injuries. Aware that the skate was malfunctioning, she assumed the risk that an accident might occur if she continued skating. The following are pertinent excerpts taken from the plaintiff’s testimony:

Q. As I understand your testimony, from the minute you got on the floor, you realized something was wrong with the skates?
A. Shortly after I got on the floor, yes.
Q. And the whole time you were on the floor, you noticed this catching?
A. Yes.
Q. And I believe you told me you went completely around the rink about two and a half times and were on the way around the third time, weren’t you?
A. Yes.
* % * * * *
Q. And during that entire time, the skates were catching?
A. Yes.
Q. And you realized, of course, being an expert skater, that if something was wrong with the skates, you might fall, didn’t you?
A. Well, I watched how I was skating. I didn’t -try to skate like I normally do.
Q. I understand that but one of the reasons that you were concerned was you knew there was something wrong with the skates and you’re on four wheels and if one of them catches or something, you might fall'. You knew that, didn’t you?
A. Well, not exactly, no, because I was going slow enough I thought I could watch myself.
Q. I understand you were trying to watch yourself, Mrs. Holley, and my understanding is that you were skating mostly with your left leg and using this, left leg to skate with because that skate was all right, is that correct?
A. That’s right.
Q. In fact, you really had all your weight on your left leg as you were skating around there, didn’t you?
A. Yes.
Q. And one of the reasons you were being so cautious and so careful was that you realized the danger involved if there was something wrong with the skates?
A. Yes.
(Emphasis added).

Testimony of the plaintiff shows that she was aware of a malfunctioning skate and appreciated the danger created by that condition. Nevertheless, she deliberately continued to skate thereby exposing herself to the danger which resulted in her injury. Such action on her part obviated any liability on the part of Funtime upon the facts presented, and we cannot say that there was error in granting the directed verdict.

AFFIRMED.

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


text:
    LEAF RIVER FOREST PRODUCTS, INC. v. B. Alton HARRISON.
    No. 52327.
    Supreme Court of Mississippi.
    Jan. 21, 1981.

      R. Web Heidelberg, R. W. Heidelberg, Heidelberg, Sutherland & McKenzie, Hat-tiesburg, for appellant.
    James A. Becker, Jr., Watkins & Eager, Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Respondeat superior highlights this tort action appealed from the Circuit Court of Scott County. There plaintiff B. Alton Harrison won a $433,000 jury verdict and judgment for severe personal injuries he received when his car, driven by him, collided with a log truck driven by Hartis Donald, an employee of defendant Claude McDonald d/b/a C & D Logging (McDonald herein). Theory of plaintiff’s case is that McDonald was the employee-servant of defendant/appellant Leaf River Forest Products, Inc. (Leaf River herein) at the time of the accident thereby making Leaf River vicariously liable for the negligent acts of McDonald’s driver. Chief issue is whether the evidence was sufficient to make out a jury issue of respondeat superior.

Before daylight, May 2,1978, Hartis Donald was operating McDonald’s log truck on Highway 35 in Scott County near Home-wood headed South and attempting to back the rig into a woods road which intersects the highway. Because he passed the intersection a short distance, he had to back the trailer into the woods road. While backing up, the trailer jack-knifed across Highway 35 about the time that plaintiff Harrison came over a hill about one-fourth mile South of the truck. Realizing he could not get his logging rig off the highway before the oncoming (Harrison’s) car arrived, McDonald’s driver got out on the gas tank of the truck and with his hands attempted to flag Harrison. Apparently the truck’s headlights were directed southerly along Highway 35 and blinded Harrison as he headed North. Harrison crashed into the truck’s coupling pole which extended across the highway. There were no flares, flashing lights or warning devices to put Harrison on notice that the highway was blocked. Harrison was grievously and permanently injured, and no argument is made that the $433,000 verdict is excessive. McDonald’s insurance carrier paid $102,525, its policy limits, to the plaintiff. Other facts will be stated where appropriate herein.

Leaf River took the position below and here that Claude McDonald was an independent contractor, and therefore Leaf River could not be vicariously liable for the negligence of Hartis Donald, driver of McDonald’s log truck. Plaintiff Harrison took the position that McDonald was not an independent contractor but an employee of Leaf River. The issue of whether McDonald was an independent contractor or employee-servant of Leaf River was submitted to the jury which found against McDonald and Leaf River. Only Leaf River appeals.

McDonald for many years has been a large operator in the business of logging. Leaf River neither cuts nor hauls logs but has a sawmill operation where it manufactures lumber. McDonald owns his equipment including trucks, trailers, loaders, skidders, saws and related items. Leaf River has its own sawmill equipment and since it began operating in 1977 has bought logs from various logging contractors across central and south Mississippi. About fifteen months prior to the accident in which plaintiff was injured, McDonald was hauling timber for Leaf River and (though in lesser amounts) for other mills: Masonite, St. Regis, Scott Paper, and Crown-Zellerbach. He continued to cut and haul timber for Leaf River after the accident. He goes from one job to another with Leaf River when they have timber available. Leaf River paid McDonald on a weekly basis according to unit volume of production; and such payments totaled $165,449 in 1977 and $310,552 in 1978. During 1977 and 1978, McDonald produced and sold from tracts to others which had no connection with Leaf River. He purchased some hardwood from Leaf River and sold it on his own to other mills which was the case on the tract being cut when the accident occurred. Leaf River gets approximately fifty percent of its logs from timber it purchases and the remainder from contractors who purchase and sell to Leaf River. McDonald and the other contractors doing business with Leaf River, while contracting with Leaf River, also purchase timber on their own.

For each timber tract which Leaf River purchases, there is a contract governing the cutting and hauling. Using a “logging cost analysis” sheet basis, the price payable is computed in the field. The contract involved in this case designates McDonald as an independent contractor not subject to Leaf River’s control. According to the contract, hiring, firing, paying, and controlling of McDonald’s employees is vested in him. Further, it provides that he will carry his own insurance: workmen’s compensation and public liability. In his cutting and hauling from tracts other than those of Leaf River, McDonald did not execute written contracts.

Timber to be felled by McDonald was marked by Leaf River whose forester, Ray Sims, sometimes once a week, sometimes once a month, inspected to see if the proper timber was being cut at prescribed heights. Sims never supervised the details of how the loggers did the actual timber cutting. If trees were missed, Sims would tie ribbons around them and ask McDonald to return and cut them. If Sims complained about trees being cut too high or too low, McDonald would try to adjust his cutting accordingly.

In deciding whether the plaintiff made out a jury issue as to respondeat superior, both parties agree that we accept as true all testimony and reasonable inferences favorable to the plaintiff. Hobbs v. International Paper Company, 203 So.2d 488 (Miss.1967). In workmen’s compensation cases we liberally construe the evidence in favor of the claimant in order to carry out the beneficent purposes of the act. Significant in cases like the case now before us is the contract executed by McDonald and Leaf River. Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191 (1929) states:

The contract between appellant and Magee fixed the relationship between the latter and the former, and that relationship was not one of master and servant, but instead, under the plain provisions of the contract, Magee was an independent contractor.
(122 So. at 193).

Here the applicable contract between McDonald and Leaf River consists of four typewritten pages and a “logging cost analysis” sheet. The contract states the various factors which are considered in order to come up with the per ton price which is entered upon the contract itself before the parties sign it.

Excerpted from the contract before us are the following provisions:

8. CONTRACTOR shall select and pay his own agents, servants, employees, for the performance of the duties assigned by him to them in the performance of this contract. Such agents, servants and employees shall not be subject to any orders, directions or control of LEAF RIVER, but shall receive instructions from and be solely responsible to the CONTRACTOR. No relationship of master and servant shall exist between LEAF RIVER and the CONTRACTOR, or between LEAF RIVER and any agent, servant, employee of the CONTRACTOR and LEAF RIVER shall have no right to control the time, manner or method of doing the work. LEAF RIVER shall, however, have the right to inspect CONTRACTORS operations hereunder for the sole purpose of determining whether or not such operations are being conducted in accordance with the terms and conditions of this contract....
******
10. Only by mutual consent, the performance of this contract may be suspended without penalty by either party during such time as either party is unable to perform because ... causes over which the parties have no control; ... if such stoppage shall continue for as long as 30 consecutive days, either party may, with the written consent of the other, terminate the contract without penalty or liability. (Emphasis added).
11. LEAF RIVER shall in no way be liable for any injuries or damage done or occasioned by the action and operation of CONTRACTOR under this contract, and CONTRACTOR binds and obligates himself to pay and satisfy any and all claims arising on account of his operations, of or caused by injuries to his employees or other persons or for damages resulting to any type of property, and to save and hold harmless LEAF RIVER on account of any such claims. (Emphasis added).
12. CONTRACTOR binds and obligates himself to carry:
(A) Workmen’s Compensation Insurance fully covering CONTRACTOR’S operations hereunder.
(B) Public, Contractor’s and Vehicular Liability Insurance covering fully the liability in connection with his operations in the amount of not less than $100,000-$300,0000 and Property Damage not less than $50,000 and, upon request, to furnish LEAF RIVER satisfactory evidence that such insurance is being carried.

According to the contract, McDonald had the right and obligation to hire, fire, and pay his own employees including his driver Hartis Donald who drove the log truck when plaintiff was injured. Further, the contract gave Leaf River no right of control over the time, manner or method of doing the work although it had the right to inspect to insure that McDonald complied with the contract. Another feature of the contract was that McDonald was required to carry his own insurance (workmen’s compensation and public liability) out of which plaintiff here was paid $102,525. There is no proof or indication before us that the contract was a sham or a device employed as a scheme to contravene legal requirements pertaining to operational procedures of those in business.

As we have previously held, the contract is relevant on the issue of the legal relationship between Leaf River and McDonald, but there are other factors to be considered. Miss. Empl. Sec. Comm’n. v. Heidelberg Hotel Co., 211 Miss. 104, 51 So.2d 47 (1951); First Nat. Bank of Oxford v. Miss. Unemp. Comp. Comm’n., 199 Miss. 97, 23 So.2d 534 (1945). As we held in Hederman v. Cox, 188 Miss. 21, 40, 193 So. 19, 24:

[ Cjourts must look at transactions in their actual character, piercing through the screen of technical attitudes to what are the realities, and must regard substance rather than formal similitudes.

Our decision in Kisner v. Jackson, 159 Miss. 424, 428-9, 132 So. 90 (1931) delineates factors to be considered in determining whether one is an independent contractor or employee; there we stated:

There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand. For this reason these tests cannot be stated in any precise order of importance, but they are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done arid receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Here McDonald was a prudent operator to the extent that he carried public liability insurance from which the plaintiff has been paid over $100,000. Leaf River is not the type entity referred to by us in Hobbs v. International Paper Company, 203 So.2d 488, 490 (Miss.1967) where we stated:

Where persons and firms put worn-out trucks into the possession of penniless persons, to be operated upon the heavy-laden highways of this state under the guise and legal fiction that such operators are independent contractors or timber buyers and sellers, when in fact and truth they are financially unable to buy gasoline or tags with which to operate the trucks, or even food for themselves, without obtaining advance funds, these facts and circumstances are for the jury’s consideration, and may be the turning point in their deliberations.

Our study of the record reveals the following facts which strongly militate toward our holding, as we must, that McDonald was an independent contractor. Leaf River’s logging supervisor Sims did not supervise any of McDonald’s employees and did not communicate with them but dealt only with McDonald. Details of McDonald’s work were not controlled or directed by Leaf River or its representative Sims. Timber cutters who cut for Leaf River were not moved from one tract to another and were not told by Sims or anyone representing Leaf River when or whether to work. McDonald’s driver, Hartis Donald, was in no manner paid or given directions about his work by Leaf River; he was under the sole and exclusive control of McDonald. From time to time when extra help was needed by McDonald due to unforeseen circumstances, such help was obtained by McDonald at his discretion and expense without involvement of Leaf River. On the day of the accident Leaf River was without knowledge that Donald was driving for McDonald. McDonald supplied its own equipment and financing, and is as much an independent contractor as is possible in an instance where such a person or entity does a large volume of timber cutting for another.

Carr v. Crabtree, 212 Miss. 656, 671, 55 So.2d 408 (1951) was a logging case in which this Court held that the logger was an independent contractor and not “employee of Crabtree.” The opinion authored by Justice Kyle deemed it significant that “Crabtree was interested only in the overall result of their (the loggers) work,” and that the logger (as is true of McDonald herein) controlled the “physical management of the instrumentalities used, and the physical conduct of the workmen.... ” Such is the case before us now.

Turner v. Williams, 257 So.2d 525 (Miss.1972) is not controlling because of factual differences. In Turner, there was no written contract such as was present in the case now at issue. Another difference is that proceeds of the timber harvested were split among the owner, the laborer who did the physical work, and the timber consultant who arranged for and supervised the harvest of the timber.

In summary, the significant facts which, together with other circumstances presented, require our holding that McDonald was an independent contractor are the following: (1) Leaf River never supervised McDonald or McDonald’s employees though there were inspections, (2) McDonald exclusively used his own equipment, (3) payment from Leaf River to McDonald was computed on the basis of volume unit or production, (4) McDonald paid his own workmen, (5) McDonald regulated the time of his workmen, (6) McDonald financed his operation, and (7) McDonald, not Leaf River, controlled the physical management of the equipment used and controlled the physical conduct of the workmen.

Upon this particular record, we think there is no rational basis or more than a scintilla of evidence upon which one could logically conclude that McDonald was the employee or servant of Leaf River. It follows that the case should not have been submitted to the jury, and we must reverse and render.

REVERSED AND RENDERED.

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

LEE, J., takes no part.


author: SMITH, Presiding Justice,

text:
    Zebbie D. BEARD v. STATE of Mississippi.
    No. 52397.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Patricia A. Catchings, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Zebbie D. Beard was tried in the Circuit Court of the First Judicial District of Hinds County upon an indictment charging him with aggravated assault upon one Fletcher. He was convicted of that offense and sentenced to twenty years imprisonment with five years suspended on supervised probation.

The incident out of which the prosecution arose occurred in a bar following an argument between Beard and Fletcher. According to Beard’s version, Fletcher had taunted him verbally and then had “jumped up”, started around the bar toward him with his hand in his pocket and Beard thought Fletcher might be armed as Fletcher was “known to cut people up”. Fletcher, on the other hand, testified that he had not been armed and had made no attack on Beard. Fletcher said that Beard came out of the rest room and started shooting at him as he sat at the bar. They struggled for the gun and Beard’s “friend” threw Fletcher on a table where Beard continued to shoot him. Fletcher was shot nine times.

The only assignment of error is that the trial judge erred by failing to accept Beard’s guilty plea which he alleges he had tried three times to enter.

The record indicates that prior to trial, in the course of plea bargaining with the district attorney, the latter had offered to recommend, in the event Beard should plead guilty, that Beard be sentenced to twenty years imprisonment with all but two years suspended.

Before the trial began, the trial judge explained Beard’s rights to him and the possible consequences of a trial and conviction. When the trial judge had concluded and Beard was asked if he had a valid defense or if he wished to plead guilty he told the court “I’m not guilty”.

On that statement, the trial proceeded until the state had rested. At that point, Beard indicated that he wished to pled guilty. The trial judge renewed his interrogation of Beard as to his guilt or innocence and as to the consequences of a conviction. Beard persisted in saying that he desired to plead guilty and, as he expressed it, “take the two years”.

The court explained to Beard that the court could not accept a plea of guilty so long as Beard continued to deny that he was guilty and to maintain that he was innocent.

Beard persisted in saying that he was not guilty but wanted to plead guilty and “take the two years”. With the utmost patience the trial judge persevered and did everything within reason to make clear to Beard that, if he insisted that he was not guilty, a guilty plea could not be accepted. Beard refused to deviate from his insistence that he was not guilty because, he said, he had acted in self defense, but he again expressed a desire to plead guilty and “take the two years”. This stalemate continued unchanged through innumerable repetitions and, despite the efforts of the trial judge, the impasse could not be resolved. Thereupon the trial was resumed.

The verdict of the jury finding Beard guilty is amply supported by the evidence and its sufficiency is not challenged on appeal.

The trial court committed no error in declining to accept a plea of guilty from a defendant who adamantly maintained that he was innocent.

In Williamson v. State, 388 So.2d 168 (Miss.1980), this Court dealt with a similar situation, saying:

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the United States Supreme Court held that a criminal defendant has no absolute right to have his guilty plea accepted by a trial court, and that the trial judge may decline to accept such a plea in the exercise of sound judicial discretion.
The Fifth Circuit Court of Appeals has decided that a trial judge should not reject guilty pleas without good reason, where they are freely and voluntarily entered, and that good reason for rejecting the pleas could exist when there was a possibility of a later collateral attack on the judgments entered pursuant to such guilty pleas. United States v. Martinez, 486 F.2d 15 (5th Cir. 1973). However, in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court held it is not error for a trial court to accept a plea of guilty in spite of a defendant’s unwillingness, or inability, to admit guilt where compelling reasons exist for entering the plea when there exists substantial evidence of the defendant’s guilt.
In the case sub judice, appellant denied his guilt, claimed the defense of entrapment, and his attorney attempted to develop that defense through cross-examination of the State’s witnesses. We are of the opinion that the trial court did not abuse its discretion in declining to accept the guilty plea and that the first assignment is not well taken. (388 So.2d at 170).

In Hulsey v. United States, 369 F.2d 284 (5th Cir. 1966) the United States Fifth Circuit Court of Appeals dealt with a qualified guilty plea. The Appeals Court stated:

[ A] fundamental requisite of a plea of guilty is that it manifest an unequivocal and knowledgeable admission of the offense charged and should not be accepted if so limited or conditioned that it constitutes, as in the instant case, little more than an ambiguous expression of qualified guilt coupled with a protestation of innocence. (369 F.2d at 287).

In the instant case Beard’s guilty plea was neither unequivocal nor an admission of the offense.

The conviction and sentence appealed from must, therefore, be affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice LEE, Justice,

text:
    Elizabeth N. TAYLOR v. O. B. TAYLOR, Jr.
    No. 52031.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    B. Stirling Tighe, Tighe, Ross & Robinson, Jackson, for appellant.
    Joe R. Fancher, Jr., Powell & Fancher, Canton, for appellee.
   PATTERSON, Chief Justice

for the Court:

Elizabeth N. Taylor filed a petition in the Chancery Court of Madison County against O. B. Taylor, Jr. for modification of a divorce decree previously entered by that court. The Chancellor dismissed the petition on demurrer holding as a matter of law that the petitioner was not entitled to the modification sought. Aggrieved, Mrs. Taylor appeals.

She has filed three assignments of error but the primary question involved is whether or not the final divorce decree, involving property rights and alimony, is subject to modification.

The decree was rendered July 14,1977, on the ground of irreconcilable differences. On July 8, 1977, the parties executed an instrument entitled “Separation, Alimony and Property Settlement Agreement.” Among other things, it provided, “Husband and wife are each represented by counsel and now desire to settle and agree among themselves with reference to separation, alimony and property rights between them arising from said marriage.” Alimony was stated as follows:

“... $2000 per month alimony until February 1981.
.. . $1000 per month alimony from February 3, 1981, and thereafter,
... the mortgage payments of $271.31 monthly on the condominium, as additional alimony,
. .. the premium on $30,000 life insurance policy on the husband of which the wife is beneficiary in additional alimony,
... the premium on $50,000 life insurance policy in an alimony trust for the wife is additional alimony.”

The court held in its decree that the parties had made adequate provision for alimony and maintenance of the wife and the disposition of their properties. It was ordered that the agreement be incorporated into, and made a part of, the decree and each party was ordered to abide by its terms.

The Chancellor, in sustaining the demurrer, reasoned that a divorce decree which incorporates an agreement of the parties in settlement of property and alimony and which explicitly provides the agreement is a full and final settlement of all claims for alimony is not subject to modification as to the alimony alone. And, indeed, the agreement was and is between two mature and competent persons who were each represented by able counsel when the contract was drawn and which unquestionably does incorporate unambiguously an intention of finality. In part the agreement states:

“This agreement shall constitute a full and final settlement of any and all claims and demands of Elizabeth N. Taylor against O. B. Taylor, Jr., or by O. B. Taylor, Jr., against Elizabeth N. Taylor for alimony of any kind or nature and shall constitute a full and final settlement and adjustment of all property rights of the parties, including either party from any further demand against the other in any event.”

As mentioned the divorce was obtained because of the irreconcilable differences existing between the parties. The authority for the divorce is found in Mississippi Code Annotated, Section 93-5-2 (Supp.1979) and follows in part:

“Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint bill of the husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. No divorce shall be granted on the ground of irreconcilable differences unless the court shall find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce....” (emphasis added).

The issue presented is whether the legislature intended by the emphasized language above to carry into the statute on irreconcilable differences the right of modification of periodic payments of alimony as it has long existed by statute and case law in divorce decrees which were based upon other grounds. Unquestionably, alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material changes in circumstances subsequent to entry of the decree because of public policy. See Keller v. Keller, 230 So.2d 808 (Miss.1970); and Hughes v. Hughes, 221 Miss. 264, 72 So.2d 677 (1954), wherein the court approved that stated in Bunkley & Morse’s Amis, Divorce and Separation in Mississippi, Section 209 (now Section 6.14), the following pertaining to consent decrees:

“Such a consent decree merely dispenses with the necessity of taking proof and making an allowance based thereon. And in all cases it is the decree of the court, rather than the contract of the parties, and may be enforced, modified, or revoked, in the same way as if it had been an adjudication based on testimony duly taken. There is much authority on the contrary, holding that a judgment by agreement or consent, is a mere record contract and that it may not be changed or modified by the court. That is the rule in other classes of cases; but the duty of the husband to support his wife is a matter in which the state has an interest, and the statute has accordingly authorized the court to change or modify any decree for continuous alimony, and to make new decrees from time to time as the necessities of the case may require. Such being true, the parties may not by contract or agreement deprive the court of that power, nor may the court itself renounce it. It is a continuing duty of the court as well as a continuing power. The whole question of the wife’s alimony, and all its incidents is committed by the 'statute to the court, as a continuing power and duty; and it would be a strange proceeding, if the court, by adopting the agreement of the parties and incorporating it into the decree as its adjudication could thereby estop itself, or abdicate the duty, power and authority conferred on it by statute. Whatever may be the rule elsewhere the statute in this state is supreme; and every agreement in reference to alimony, to be incorporated in any decree of the court, is made subject to the power of the court to modify or revoke it, which is necessarily incorporated in every such agreement.” (221 Miss. at 267, 268, 72 So.2d at 677, 678).

We again approved and affirmed that set forth above in Stone v. Stone, 385 So.2d 610 (Miss.1980), a suit involving both alimony and property.

Section 93-5-23 of Mississippi Code Annotated (Supp.1979) provides in pertinent part:

“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and may, if need be, require sureties for the payment of the sum so allowed. The court may af-terwards, on petition, change the decree, and make from time to time such new decree as the case may require....” (emphasis added).

We considered this section in McKee v. McKee, 382 So.2d 287 (Miss.1980), on petition for rehearing, and once again approved the principal of modification. Although McKee was not a case based upon a divorce for irreconcilable differences, it did concern a consent decree as to property, maintenance of children, and alimony for the wife in a final decree for divorce. In considering this section we held:

“It is apparent to this Court from the careful wording of this detailed and specific ‘Final Decree of Divorce’, dated February 25, 1972, that Curtiss McKee and Mary Griffin McKee intended to settle once and for all, all property questions and all alimony questions existing between them. They were being divorced each from the other, and it was certainly desirable that they settle once and for all, all differences between them. They both were mature and intelligent adults; both were advised by competent and experienced counsel. We held in In re Estate of Kennington, 204 So.2d 444 (Miss.1967), that such ‘[mjarital settlement agreements are not contrary to public policy.’
This simply means that each case must sit on its own bottom; each must be considered on its own merits; each must be decided on the facts and circumstances of that particular case.
While it is true that an agreed decree as to alimony is subject to review because of a material change of circumstances, careful consideration will always be given to the intent and purpose of the parties at the time the Final Decree of divorce is entered, and such a decree as to alimony, will not be modified unless the change in circumstances is clear and substantial.” (382 So.2d at 288)

A scrutiny of Section 93-5-2 reveals that it does not literally use the word “alimony”, but rather speaks in direct terms only to “sufficient provision by written agreement” for the maintenance of children of the marriage and “for the settlement of any property rights between the parties.” Although this statute is silent regarding alimony, indicating the parties are not absolutely required to make provision for such in order to obtain a divorce on the grounds of irreconcilable differences, in this case the parties voluntarily chose to reach an agreement providing for periodic payments of alimony to the wife, thus bringing their Final Consent decree under the purview of the modification clause contained in Section 93-5-2. It could be argued that the legislature did not intend any alimony in divorces based upon irreconcilable differences but only intended adequate provision for the minor children of the parties as well as an adjustment of property rights. In our opinion such construction upon the legislative intention would be strained and unrealistic because the question of alimony normally arises in a great majority of divorce suits, a factor of which the legislature was undoubtedly aware at the time the statute was passed. To so construe the legislature’s intent would limit the application of the irreconcilable differences statute to the wealthy few with sufficient property for division between themselves for their maintenance without the necessity of considering alimony and its obligations. We are of the opinion the legislature did not intend this result and in its wisdom enacted the statute for the benefit of all the citizens, including those without property or sufficient wealth for a lump sum alimony settlement; for after all they, on occasion, also have irreconcilable differences to arise.

If not limited as mentioned, did the legislature by the clause, “the agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce ...” intend only the modification of child support awards when no question has ever arisen concerning not only the right but the necessity of modification of an award when the best interest of children require it? Or did it propose the modification of property rights when heretofore it has been held that property rights, as distinguished from alimony, are not subject to revision? Stone, supra; Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958). We think the legislature intended neither of these things because the first was totally unnecessary, and the second would undoubtedly create an open invitation to confuse ownership or title to property when the law favors stability and repose of title.

What then did it intend by the reference to modification as permitted in other decrees for divorce? If the words are not superfluous, and we think they are not, and have meaning, as we think they do, the legislature, in our opinion, intended alimony agreements based upon divorce for irreconcilable differences to be considered and treated as other consent alimony agreements are treated. While it is true that alimony awards in other divorce cases have heretofore been predicated upon fault; nevertheless, the need of alimony for necessities of life are just as urgent and real to a wife whose husband is without fault.

To hold that divorce decrees based on irreconcilable differences are modifiable only as to child support and property rights and continuous alimony agreed upon by the parties is not modifiable because the legislature did not expressly require the parties to reach a consent agreement on alimony would indeed have far-reaching implications. If Mr. and Mrs. Taylor choose to make provision for alimony, they are, of course, contractually free to do so. But public policy dictates, and we are of the opinion the legislature intended such alimony agreements to be modifiable on a showing of a clear and substantial change of circumstances. Suppose Mrs. Taylor remarries? Is Mr. Taylor required to continue the alimony payments because alimony under the irreconcilable differences statute is not modifiable? This would certainly work an injustice. Suppose Mr. Taylor becomes disabled and is unable to meet his alimony obligations? Do we require him to continue making these payments simply because his divorce was predicated on no-fault rather than fault? Again injustice and hardship would prevail. Suppose Mrs. Taylor becomes disabled and ill and requires more support money than the consent decree provided. Again, a rigid rule of non-modification of alimony in a no-fault context would legally preclude either the wife or husband seeking modification even when the facts and circumstances of the case would so necessitate a revision. Thus, it is imperative that a flexible rule be promulgated and we think this coincides with the legislature’s intent. This rule, simply stated, is that fault is not a predicate for modification of continuous alimony awards. To hold otherwise would unnecessarily penalize those who seek a divorce on the ground of irreconcilable differences. We therefore are of the opinion alimony agreements in divorces based upon irreconcilable differences are subject to modification as are other decrees.

This accords with the public policy of this state as heretofore expressed in divorce decrees wherein alimony is awarded. It continues the interest of the state in its citizens as expressed in Hughes. We think we should add that the agreed alimony terms of such decree be modified only upon a change of circumstances that are clear and substantial as expressed in McKee.

REVERSED AND REMANDED.

ROBERTSON, P. J., and SUGG, BROOM and HAWKINS, JJ., concur.

SMITH, P. J., and LEE and WALKER, JJ., dissent.

BOWLING, J., takes no part.

LEE, Justice,

dissenting:

I respectfully dissent from the majority opinion.

Appellant relies upon Mississippi Code Annotated Section 93-5-23 (Supp.1980) and decisions relating thereto. The section provides:

“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and may, if need be, require sureties for the payment of the sum so allowed. The court may afterward, on petition, change the decree, and make from time to time such new decrees as the case may require.” (Emphasis added)

The law is well established in Mississippi and the cases are legion that decrees entered under the above section may be modified from time to time, except where lump sum alimony is provided. Bond v. Bond, 355 So.2d 672 (Miss.1978); Bunkley and Morse, Amis on Divorce and Separation in Mississippi, § 60.05 (1957).

The law also is settled that where the wife is at fault in a divorce proceeding, she is not entitled to alimony except under certain circumstances, i. e., where she has no property or estate, and is incapable of supporting herself, or where public policy requires support by the husband.

In Beacham v. Beacham, 383 So.2d 146 (Miss.1980), the Court granted Mr. Beacham a divorce at the fault of his wife, but granted custody of minor children to Mrs. Beach-am and directed support for them in the sum of two hundred dollars ($200.00) per month, together with four hundred twenty-five dollars ($425.00) per month to Mrs. Beacham as alimony. The children became independent, and Mr. Beacham filed a petition for modification of the divorce decree seeking discontinuance of alimony payments. In holding that Mrs. Beacham no longer was entitled to alimony, the Court said:

“Now that this duty (looking after the children) no longer rests upon Mrs. Beach-am and the circumstances are such as no longer to require contributions to Mrs. Beacham from Mr. Beacham upon the basis of any need or otherwise, he should not be required to continue them. Beach-am was the innocent party in the divorce and the divorce decree so adjudicated. The destruction of the marriage was the result of misconduct on the part of Mrs. Beacham. Mrs. Beacham no longer has the responsibility of the minor children. She cannot be said to be in any sense needy, in poor health, or unable to lead an independent life with ample means of support without further payment to her of alimony by Beacham. In such circumstances, requiring Beacham to continue to pay alimony to her should cease.
The policy in Mississippi regarding the award of alimony in such a case has long been established. This Court held in Coffee v. Coffee, 145 Miss. 872, 111 So. 377 (1927), that alimony will not be allowed to the wife unless the decree for divorce is in her favor. While exceptions to this rule have been noted in later cases, such as, for instance, where the wife is without estate and has no means of support or the husband’s property is an accumulation of the joint efforts of the parties, or where the wife is sick and unable to earn a livelihood. None of these exists in this case.
******
Alimony is not a bounty to which Mrs. Beacham became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to Beacham. In the divorce decree, it was judicially established that the marriage had been broken up and terminated because of her own misconduct. It cannot be said that she is in any way dependent for a livelihood upon receiving alimony from Beacham. The divorce effectively and finally dissolved and ended their relationship with each other and with it their reciprocal responsibilities. Unless some reason, based upon public policy, could be pointed out that, in good conscience, there is a compelling need to require support from her former husband, he should be relieved of the burden of making contributions to her. No such reason can be pointed out in this case and we are compelled to hold that none exists.” 283 So.2d at 147, 148.

See also Russell v. Russell, 241 So.2d 366 (Miss.1970).

The legislature enacted the irreconcilable differences divorce ground in 1976. It now appears as Mississippi Code Annotated Section 93-5-2 (Supp.1980) and provides in part as follows:

“No divorce shall be granted on the grounds of irreconcilable differences unless the court shall find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement maybe incorporated in the decree, and such decree may be modified as other decrees for divorce.” (Emphasis added)

The statute requires the parties to make adequate and sufficient provision by written agreement for the custody and maintenance of any children of the marriage (none involved here) and for the settlement of any property rights between the parties. No mention of alimony is made in the irreconcilable differences divorce statute. It may be that the legislature was familiar with established legal principles that alimony has been granted as a matter of right when the wife was blameless. Under that statute, both parties are without fault. Thus, the ground of irreconcilable differences.

Since neither party here was at fault, it is reasonable to assume that the parties intended the property settlement to supplant alimony, regardless of whether the agreement used the words “alimony” or “property settlement.” Likewise, since no mention of alimony is made in the statute, the legislature apparently intended the words “The agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce” to refer only to the agreement for custody and maintenance of minor children, which the parties could not remove by agreement from the jurisdiction of the court. A property settlement agreement is final and cannot be modified, even with that wording in the statute. Stone v. Stone, 385 So.2d 610 (Miss.1980).

In McKee v. McKee, 382 So.2d 287 (Miss.1980), the final divorce decree contained the following provisions:

“ ‘[A]nd the parties having announced to the Court that they have settled and compromised the property division and alimony questions in accordance with the terms hereinbelow set forth,
5. Defendant shall pay to the complainant monthly alimony of $700.00 per month commencing March 1, 1972, through July 1,1972. Thereafter defendant shall pay to complainant monthly alimony each month of $500.00 commencing August 1, 1972, until the death of one of the parties or remarriage of complainant.” 382 So.2d at 288.

The lower court increased alimony and child support on petition of Mrs. McKee to modify the divorce decree. This Court, in reversing the chancellor on that part of the decree increasing alimony, said:

“It is apparent to this Court from the careful wording of this detailed and specific ‘Final Decree of Divorce,’ dated February 25, 1972, that Curtiss McKee and Mary Griffin McKee intended to settle once and for all, all property questions and all alimony questions existing between them. They were being divorced each from the other, and it was certainly desirable that they settle once and for all, all differences between them. They both were mature and intelligent adults; both were advised by competent and experienced counsel. We held in In re Estate of Kennington, 204 So.2d 444 (Miss.1967), that such ‘[mjarital settlement agreements are not contrary to public policy.’ ” 382 So.2d 288.

The Separation, Alimony and Property Settlement Agreement involved here is different from those in other cases which have come to our attention in that it contains the following:

“This agreement shall constitute a full and final settlement of any and all claims and demands of Elizabeth N. Taylor against O. B. Taylor, Jr., or by O. B. Taylor, Jr. against Elizabeth N. Taylor for alimony of any kind or nature and shall constitute a full and final settlement and adjustment of all property rights of the parties, including either party from any further demand against the other in any event.” (Emphasis added)

It is apparent from the above provision that the parties intended the instrument to be a final determination of all rights of every kind between them, particularly since no minor children were involved. If the “alimony” had been designated ás lump sum alimony, payable in the manner agreed upon in the instrument, we probably would not be faced with the question here.

In Hopkins v. Hopkins, 379 So.2d 314 (Miss.1980), the Court held that a final divorce decree could not be modified on petition seeking additional alimony. With reference to alimony, the decree stated:

“ ‘It is further,
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay unto the Complainant the sum of $2,000.00 on or before Jan. 1, 1977, thereby discharging him from any and all claims of the Complainant. That in addition to the lump sum payment, Defendant is hereby ordered to pay unto Complainant, beginning on January 1, 1978, the sum of $150.00 per month, temporary alimony for eight (8) consecutive months, in the full sum of $1,200.00 .. . ’ ” 379 So.2d at 315.

In the case sub judice, the agreement provided for two thousand dollars ($2,000) per month alimony until February, 1981, one thousand dollars ($1,000) per month alimony from February 3, 1981, and thereafter. Other payments for mortgage and life insurance premiums were designated as additional alimony.

I am of the opinion that the lower court was correct in sustaining the demurrer to the petition for modification and that the judgment should be affirmed.

SMITH, P. J., and WALKER, J., join this dissent.

BOWLING, J., took no part.

      . The Court held that, although the decree might be modified, the change in circumstances must be clear and substantial.


text:
    Wayne GRAY et ux. v. WILLMUT GAS & OIL CO. and Kenny Miller.
    No. 52374.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Fred T. Rucker, Scales & Scales, Jackson, for appellants.
    Richard L. Forman, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

AFFIRMED.


text:
    George D. PULLEN, Jr. v. Eva T. PULLEN.
    No. 52371.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Richard E. Stratton, III, Brookhaven, for appellant.
    Robert O. Allen, Allen & Allen, Brookha-ven, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Chancery County, Lincoln County; Mike Carr, Chancellor.

AFFIRMED.

PATTERSON, C. J., took no part.


text:
    Raymond CASABELLA and Jackie Casabella v. WILLIAM RUSSELL BONDS CO., INC.
    No. 52362.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Duncan Lott, Langston & Lott, Boone-ville, for appellants.
    L. F. Sams, Jr., Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Tishomingo County; Fred Wicker, Judge.

AFFIRMED.


text:
    Lee Allen THOMAS v. STATE of Mississippi.
    No. 52404.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Albert S. Johnston, III, Karl R. Steinber-ger, Johnston & Steinberger, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.


text:
    Doris M. BAKER v. STATE of Mississippi.
    No. 52331.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Thomas D. Berry, Jr., Wittmann & Berry, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Jerry WEST and Joel Friendel d/b/a J Bar J Ranch v. Leslie V. JENNINGS, Jr. et ux. and W. D. Hinton, et ux. and L. L. Adkins and Jerry Adkins.
    No. 52319.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
   Appeal from Circuit Court, Perry County; Jack B. Weldy, Judge.

Jerry A. Evans, Barefield, Riley & Evans, Hattiesburg, for appellant.

Jack H. Pittman, Hattiesburg,,for appel-lees.

Before PATTERSON, C. J., ROBERTSON, P. J., and WALKER, J.

REVERSED AND REMANDED.

SMITH, P. J., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    Roy Estine FORNETT v. STATE of Mississippi.
    No. 52385.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    H. Bernard Gautier, David A. Stewart, Jr., Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Roy Estine Fornett was indicted, tried and convicted in the Circuit Court of Jackson County for the murder of Levernon Thompson, alias “Monkey Man”. He was sentenced to life imprisonment in the Mississippi Department of Corrections.

On the morning of February 23, 1979, Fornett, through a window in his home, saw Thompson enter Collier’s Place. He armed himself with a 12-gauge single-barrel shotgun, loaded with buckshot, and proceeded next door to Collier’s Place. Fornett testified that his purpose was to ask Thompson why he had robbed him a few days earlier.

Thompson and several others were standing around talking in the back room of Collier’s Pool Hall. Percy L. Williams and Edgar Earl Collier testified at the trial that Fornett walked into the room, shot Thompson in the left chest, and then left. Both testified that no words were spoken nor was any movement made by Thompson toward Fornett. Thompson died instantly.

Defendant testified that he asked Thompson why he had robbed him, that Thompson did not answer but just looked at him, that he then shot Thompson and left. Defendant admitted on the witness stand that he did not see a gun in Thompson’s hand, nor did Thompson make any move toward him.

In response to a police radio call about the shooting, Patrolmen Robertson, Massey and Miller of the Pascagoula Police Department, proceeded to Collier’s Place to investigate the shooting. Upon being advised that Fornett did the shooting, they proceeded to his apartment in Carver Village. Officer Robertson testified that he knocked on the door, that defendant Fornett came to the door, opened it and said: “I’m the man you want. I’m the one that shot him.” Robertson further testified that, after placing defendant under arrest, he noticed a shotgun lying on a chair and he asked defendant was that the gun, and defendant replied “Yeah”.

Defendant was then taken to the police station where his Miranda rights were explained to him and where he signed a waiver of these rights in the presence of Anthony L. Best and Norvel Robertson. After again explaining to defendant his Miranda rights, Criminal Investigators Bullock and Best took a five-page statement from defendant, which he signed and they witnessed. In his statement, Fornett admitted that, upon seeing Thompson go into Collier’s Place, he got his shotgun, went across the street and entered Collier’s Place and confronted Thompson, that when he asked Thompson why he robbed him Thompson “didn’t say nothing, he just looked at me.” Whereupon, Fornett said that he shot Thompson. When asked by Investigator Bullock if the shotgun found in the chair in the apartment was the one used, defendant Fornett answered “yes”.

Defendant assigns as error:

I. The court erred in overruling the defendant’s Motion to Suppress his statement for the reason that the same was inadmissible as being involuntarily made.
II. The court erred in sustaining the state’s objection to testimony proffered by the defendant as to the reputation of the deceased for violence.

I.

Defendant made his written confession only after his Miranda rights had been fully explained to him and after he had signed a waiver of these rights. The uncon-tradicted testimony was that there were no threats, promises, duress, fear or pressure of any kind. The testimony was that For-nett’s confession was freely and voluntarily made, after a full explanation of his rights to him.

Defendant contends that, before his Miranda rights were explained to him and after he had spontaneously stated that he shot Thompson, Officer Robertson wrongly asked him if the shotgun lying on a chair was the gun used. Defendant answered “Yeah”. Defendant contends that this one question asked violated his rights and constituted reversible error. There is no merit in this contention.

The evidence is undisputed that when Officer Robertson knocked on defendant’s door, the defendant opened the door and, upon seeing the two officers in uniform, blurted out “I’m the man you want. I’m the one that shot him.” The shotgun lying across the chair was in plain view, and Robertson asked one question after defendant had already confessed, “Was that the gun used?”, to which question the defendant answered “Yeah”. The defendant admits that, the spontaneous statement “I’m the one that shot him”, made before any question was asked, was admissible. The latest case where we have held such a spontaneous statement admissible is Neal v. State, 386 So.2d 718 (Miss.1980).

In Neveis v. State, 216 So.2d 529 (Miss.1968), we also held that a question concerning the weapon used was admissible under the Miranda exception of “general on-the-scene investigation.” In Neveis, we said:

“In the instant case, the statements were given ‘freely and voluntarily without any compelling influences.’ These initial admissions by defendant, as he walked toward the patrolman, in which he confessed to the crime of stealing the wire, were ‘volunteered statements’ not barred by the Fifth Amendment. Nor do we think that the subsequent conversation of Nevels with Patrolman Langford affects the admissibility of Nevels’ volunteered statements. It was substantially within another Miranda exception, general on-the-scene investigation and questioning as to facts surrounding a crime. 384 U.S. [436] at 477, 86 S.Ct. [1602] at 1629, 16 L.Ed.2d [694] at 725. To the very limited extent, if any, that it was not of this nature, it was cumulative and entirely harmless. Miss.Sup.Ct. Rule 11 (1967); see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
“State v. Gosser, 50 N.J. 438, 236 A.2d 377 (1967), somewhat analogous to the present case, states:
‘The decision [Miranda] recognized, however, at least two exceptions. One is general on-the-scene questioning as to facts surrounding a crime, and the other, statements freely volunteered without compelling influences. 384 U.S. at pp. 477-478, 86 S.Ct. at p. 1629, 16 L.Ed.2d at pp. 725-726.”
216 So.2d at 531.

II.

The trial court was correct in excluding any evidence of the deceased’s reputation for violence because a proper predicate had not been laid for the introduction of such evidence.

McCormick on Evidence, § 193 at page 461 (2d Ed. 1972), has this to say about such evidence:

“When the accused has produced evidence that the deceased attacked him, thus grounding a claim of self-defence, this when met by counter-evidence raises an issue of conduct: was the deceased or the accused the first aggressor? It is almost universally held that when such evidence has been produced the accused may introduce testimony of the reputation of the deceased for turbulence and violence.” (Emphasis added).

By the defendant’s own testimony from the witness stand, and by his own written statement, freely and voluntarily given, he made it clear that he, the defendant, was the aggressor, that he had sought Thompson out and that he shot Thompson when Thompson did not have a weapon in his hand and had made no move toward him. No overt act, hostile move or threat was made by Thompson, according to the defendant’s own testimony. Under our rule announced in Tillman v. State, 225 Miss. 275, 83 So.2d 86 (1955), and reiterated in Freeman v. State, 204 So.2d 842 (Miss.1967), such proffered testimony was clearly inadmissible and the trial court was correct in excluding it.

There being no reversible error committed in the trial of this case, the conviction and sentence are affirmed.

AFFIRMED.

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