text:
    Frank M. PENNEBAKER, Imperial Associated Contractors, Inc., Venice Bus Lines Inc. and MCS Industries, Inc. v. The PARISH OF JEFFERSON.
    No. 10598.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 1980.
    See also, La.App., 383 So.2d 477.

      Denis Paul Juge, Gordon F. Wilson, Jr., Dodge, Friend, Wilson & Spedale, New Orleans, for plaintiffs-appellants.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON, GULOTTA, SCHOTT and CHEHARDY, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a dismissal of their suit on an exception of no cause of action filed by defendant. Plaintiffs sued for damages to their property from flooding, and the sole issue is the sufficiency of their pleadings to state a cause of action.

Plaintiffs allege in their petition as follows: They are the owners and tenants of real property in Jefferson Parish and beginning in 1972, their property began to flood. They complained to the Parish Drainage Department and in 1974 a larger culvert was constructed under railroad tracks near their property, and for about a year they experienced no flooding. Beginning in 1975 their property began to be flooded once again and they experienced severe flooding on August 22, 1977, and in May, 1978. They allege further:

“11.
Extensive development and construction on real property and paving and overpass construction has occurred in the area where the property described above is located in the four or five'years preceding the floods experienced by plaintiffs which have removed traditional areas of flooding and water absorption, accelerated water run off; and routed water to the culvert at Deckbar Avenue and the canal which it leads to which are inadequate to handle the increased flow of water.
12.
The Parish of Jefferson is liable in damages to plaintiffs under the provisions of Louisiana Civil Code Articles 660 and 667.
13.
The Parish of Jefferson is liable in damages to plaintiffs under the provisions of Louisiana Civil Code Article 2315 for the following acts of negligence:
a. improper design of the drainage system in the area;
b. failure to inspect, maintain, repair, update, and improve the drainage system;
c. failure to institute a program for coordination of street improvements, building construction, and street drainage to insure that water run off has not been accelerated or routed to the detriment of established property owners;
d. causing flooding in the area of plaintiffs’ buildings and businesses;
e. allowing street improvements, building construction and street drainage without taking steps to prevent flooding.”

In dismissing plaintiffs’ suit the trial judge distinguished the case from Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971), and found that a dismissal was consistent with Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977) writs refused, 343 So.2d 1068, and Fusilier v. Russell, 345 So.2d 543 (La.App. 3rd Cir. 1977) writs refused, 347 So.2d 261.

In considering an exception of no cause of action every reasonable interpretation must be accorded the language of the petition in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and. to avoid a miscarriage of justice. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La. 1975). The exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does plaintiff have a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975).

Applying these principles to the petition in question, we have concluded that the exception was improperly maintained. We arrive at this conclusion with full recognition that the allegations of the petition are rather vague but under the stated principles sufficient to state a cause of action under Eschete v. City of New Orleans, supra, and Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929).

The Eschete case held that plaintiff stated a cause of action in his allegations that the city had deliberately and therefore maliciously authorized new subdivisions, causing flooding during any ordinary heavy rainfall. While plaintiffs’ petition does not contain allegations of deliberate and malicious conduct on the part of defendant, the following language of the Eschete case causes us to question that the court was implying that these magic words had to be used in order to state a cause of action:

“ . . . The plaintiffs are seeking to hold the City, not for failing to provide adequate drainage, but for fault in adding new subdivisions, thus increasing the volume of water in the drainage area. In effect, according to the petition, the power to grant or withhold consent for new subdivisions in the Pines Village drainage area effectively controlled the volume of water being discharged in that area.”

Plaintiffs’ allegation in paragraph 13.c quoted above while non-specific seems sufficient to prevent maintenance of the exception of no cause of action.

Furthermore, paragraphs 11, 12 and 13.d are sufficient, albeit barely, to bring the case within the ambit of Chandler v. City of Shreveport, supra, in which the court recognized that a municipality may be liable in connection with the construction of drains, sewers and street improvements so as to collect surface water in artificial channels and discharge it in increased quantities, or in new and destructive currents, upon private property. The court found that the construction of the culverts opposite from plaintiffs’ property resulted in plaintiffs receiving an undue proportion of the surface drainage from the other side of the street. While there is some merit to defendant’s argument that plaintiffs’ inclusion of the phrase “accelerated water runoff” would seem to negate their right of recovery under the Chandler case, in the application of the presumptions stated in the Hero Lands Company and Guillory cases, we are compelled to conclude that plaintiffs have stated a cause of action considering the petition as a whole.

In its brief and argument to this court defendant speaks of matters which might later defeat plaintiffs’ claim, such as the defense that the parish is not liable for damage caused by extraordinary floods .or rains. For instance, plaintiffs allege that buildings were flooded with two to three feet of water in May, 1978, and we can take judicial notice of the fact that a deluge occurred at the time in the New Orleans area and at least 90% of the metropolitan New Orleans area had flooding. Even if plaintiffs had limited their allegations to damage from that flood we question whether the vehicle of an exception of no cause of action would suffice to defeat plaintiffs’ claim, but even so the allegations are not so limited and speak of flooding which began around 1975 and culminated with the great flood in May, 1978. While it may be highly questionable that plaintiffs can ever prevail on the merits of this case, and while it may be possible for defendants to secure a pretrial dismissal of plaintiffs’ case by the use of some other procedural device, such as motion for summary judgment, we are dealing only with the exception of no cause of action and have concluded that it was improperly maintained.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiffs and against defendant, overruling its exception of no cause of action. The case is remanded to the district court for further proceedings. The costs of this appeal are taxed against defendant.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

GULOTTA and CHEHARDY, JJ., dissent and assign reasons.

LEMMON, Judge,

concurring and assigning reasons.

Plaintiffs alleged that the Parish improperly designed the original system and constructed streets and overpasses which worsened drainage in this particular area. These allegations, in the light of the reasons stated in my concurring opinion in McCloud v. Parish of Jefferson, La.App., 388 So.2d 477, decided this day, state a cause of action and entitle plaintiffs to an opportunity to prove their allegations at a trial on the merits.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

In my opinion, the allegations of the original petition do not state a cause of action. In the companion case of McCloud v. Parish of Jefferson, (La.App. 4th Cir.) 383 So.2d 477, I concurred for the reason that I felt the supplemental and amended petition stated a cause of action although the original petition did not.

In the instant case no supplemental and amended petition stating allegations required and as set forth in Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (La. 1971) was filed. Although I would maintain the exception of no cause of action, I would remand the matter to the trial court to afford plaintiff an opportunity to amend in accordance with LSA-C.C.P. art. 934.

CHEHARDY, Judge,

dissenting.

I respectfully dissent for the reasons assigned in the case of McCloud v. Parish of Jefferson, 383 So.2d 477.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    AMERICAN MOTORISTS INSURANCE COMPANY and Paul D. Decamp v. Carl E. MILLER.
    No. 11479.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 1980.

      Amato & Creely, Jacob J. Amato, Jr., Gretna, for appellees.
    Hammett, Leake & Hammett, Dominic J. Gianna, New Orleans, for appellant.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   ON MOTION TO DISMISS

GULOTTA, Judge.

Plaintiffs have appealed from a December 21, 1979 trial court judgment setting aside and annulling a January 4,1979 judgment and granting a hew trial.

Citing Pate v. Crescent Motors Exchange, Inc., 256 So.2d 471 (La.App. 4th Cir. 1972) and Simmons v. Beauregard Parish School Board, 284 So.2d 668 (La.App. 3rd Cir. 1973), defendant seeks dismissal of this appeal on the grounds that the December 1979 judgment appealed from, granting a new trial, is neither a final judgment nor an interlocutory judgment which causes irreparable injury.

We are not here concerned with the timely filing of a motion for a new trial and a judgment granting a new trial, as in the Pate case, but are confronted with a December 4,1979 motion to annul a January 4, 1979 judgment in favor of plaintiffs, and a December 21, 1979 judgment annulling and setting aside the earlier judgment. Despite the language in the judgment appealed from, which states that a new trial is granted, the judgment actually annuls and sets aside the earlier judgment as sought in the motion for nullity. The judgment of nullity is final and appealable. See Levy v. Levy, 178 La. 407, 151 So. 635 (1933); Levy v. Stelly, 248 So.2d 845 (La.App. 4th Cir. 1971); Pertuit v. LeBlanc, 216 So.2d 863 (La.App. 2nd Cir. 1968). See also, LSA-C.C.P. article 2083.

Having so concluded, we deny the motion to dismiss the appeal.

Motion to Dismiss denied.


text:
    Sidney Davis SELVIDGE, Jr., Conservator for Genie Sandifer Selvidge and Martha S. Ingels v. Robert TAYLOR, Conservator of the Estate of Eugenia B. Allen.
    No. 51819.
    Supreme Court of Mississippi.
    April 23, 1980.
    Rehearing Denied May 28, 1980.
    Butler, Snow, O’Mara, Stevens & Canna-da, Robert C. Cannada, Jackson, Eugene M. Bogen, Wynn, Bogen & Mitchell, Greenville, for appellant.
    Dyer, Dyer & Dyer, Howard Dyer, Jr., Greenville, Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Jackson, for appellee.
   Appeal from Chancery Court, Washington County; J. D. Thames, Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


author:
SUGG, Justice, LEE, Justice,
      BOWLING, Justice,

text:
    Allen Phillip TURNER v. STATE of Mississippi.
    No. 51521.
    Supreme Court of Mississippi.
    April 23, 1980.
    Barry W. Gilmer, Robert M. Jones, Jackson, for appellant.

      A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

Defendant was indicted, tried, and convicted in the Circuit Court of the First Judicial District of Hinds County for the rape of a female child under the age of twelve years and sentenced to life imprisonment.

Defendant assigns as error: (1) denial of his right to a speedy trial, and (2) the jury verdict was against the overwhelming weight of the evidence. We do not reach the second assignment of error because we reverse for the reason that defendant was not tried within 270 days after his arraignment as required by section 99-17-1 Mississippi Code Annotated (Supp.1978), and good cause for failure to comply with the statute was not shown. The statute provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Defendant was arraigned on July 11, 1977, and tried on November 27, 1978, more than 270 days after his arraignment. The question is whether the state showed good cause for not trying the defendant no later than 270 days after his arraignment.

The attorney then representing defendant, filed a motion for a psychiatric examination on July 25, 1977. An order providing for the examination of defendant was signed on August 8,1977, but was not docketed and filed until April 7, 1978. Another firm of attorneys was appointed to represent the defendant in December, 1977. These attorneys made an investigation of the facts and unsuccessfully attempted to locate a witness who, according to the defendant, could establish an alibi.

The defendant remained incarcerated and wrote one of the Hinds County circuit judges inquiring about the status of his case. The Judge had the court administrator investigative and found that the order of August 8, 1977, was not entered on the docket but was loosely filed in the court file, and a copy of the order had not been delivered to the sheriff. Following a conference between the judge and the attorneys representing the defendant, and at the court’s request, the attorneys filed another motion requesting a psychiatric examination. The motion was filed and an order entered on June 30, 1978. The psychiatric examination was completed and a report returned to the court on July 13,1978. The attorneys for the defendant filed a motion on September 12,1978, to dismiss the indictment on the grounds that more than 270 days had passed since defendant was arraigned and that defendant had been prejudiced by the unreasonable delay in the trial of his case because he could not locate a material witness.

After an evidentiary hearing, the court overruled the motion to dismiss because the procedure in use at that time required the attorney who obtained an order for psychiatric examination to see that the order was docketed and a copy furnished the sheriff so the sheriff could deliver the accused to the proper authorities for psychiatric examination.

We hold the trial judge erred when he failed to dismiss the case. “A defendant has no duty to bring himself to trial; the State has the duty as well as the duty of insuring that the trial is consistent with due process.” Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Court stated that a balancing test necessarily compels courts to approach speedy trial cases on a case by case basis and set forth four factors to be considered in determining whether a particular defendant has been deprived of his right to a speedy trial. One of the factors was stated as follows:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. (407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117).

Our speedy trial statute, section 99-17-1, is plain and unambiguous and requires trial of a defendant no later than 270 days after his arraignment unless good. cause be shown for trial after 270 days. Payne v. State, 363 So.2d 278 (Miss.1978). The state bears the burden of bringing to trial one charged with crime within the time prescribed by statute or showing good reason for failure to comply with the statute. In this case the defendant was charged with the responsibility of seeing that the order for his psychiatric examination was timely filed and placed in the hands of the sheriff, thus requiring him to monitor the administrative process of the trial court and to bring himself to trial. This was error because the responsibility for having a psychiatric examination made in compliance with the order of August 8, 1977, rested upon the state rather than the defendant. Failure to carry out this responsibility cannot be charged to the defendant. The result of the inaction of the state deprived defendant of his constitutional right to a speedy trial within the time fixed by the legislature. We hold that good cause was not shown by the state for failing to try the defendant no later than 270 days after his arraignment, and the trial court erred when it denied defendant’s motion to dismiss.

Defendant also argued that he was prejudiced by the delay because a material witness became unavailable as a result of the delay in bringing him to trial. Barker v. Wingo, supra.

The state did not respond to this argument in its brief. Its failure to respond is tantamount to confession of error and will be accepted as such. The reason for the rule is that an answer to appellant’s brief cannot be safely made by this Court, without our doing what appellee should have done, namely, brief the appellee’s side of the case. This we are not called on to do. Stampley v. State, 284 So.2d 305 (Miss.1973); Lawler v. Moran, 245 Miss. 301, 148 So.2d 198 (1963); Gulf, M. & O. R. Co. v. Webster County, 194 Miss. 660, 13 So.2d 644 (1943). See also, other cases, cited in Stampley. Although these cases dealt with the failure of an appellee to file any brief, the rule applies where appellee fails to respond to a part of appellant’s brief.

Defendant makes a strong argument that he was prejudiced by the delay in his trial. The failure of the state to answer this argument is tantamount to a confession of error and will be accepted as such.

REVERSED AND DEFENDANT DISCHARGED.

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

LEE, BOWLING and WALKER, JJ., dissent.

LEE, Justice,

dissenting:

I dissent from the majority opinion for reasons expressed in the dissenting opinion of Justice Bowling, and, in addition, I do not think that the statute mandates a discharge of the accused unless the statute is clearly violated and the accused has sustained prejudice by reason thereof.

Section 26, Miss.Const.1890, provides that in all prosecutions by indictment or information the accused shall have the right to a speedy trial by an impartial jury. In all Code sections subsequent thereto, the statute required a speedy trial. Mississippi Code Annotated Section 99-17-1 (1972), carried forward since the adoption of the constitutional provision, recited the following, prior to July 1, 1976:

“All indictments shall be tried at the first term, unless good cause be shown for a continuance.”

This Court, applying that statute where an indictment was not tried at the first term, held that the continuance of a cause from the return term did not entitle an accused to be discharged. In Heard v. Clark, 156 Miss. 355, 126 So. 43 (1930), the Court said:

“The constitutional right to a speedy trial is a very sacred right, of which neither the legislature nor the courts have the right to deprive the accused; but what constitutes a speedy trial is not defined by the Constitution, and we will assume, as the courts seem to hold, that within reasonable limits it can be defined by the legislature. The appellant contends that the legislature did this by enacting the statute set forth, and that the statute should be construed as if it read, ‘All indictments shall be tried at the first term, and cannot be thereafter, unless good cause be shown for a continuance.’
We do not so understand the statute. We have not undertaken to ascertain how long this statute has been in existence, but it appeared in the Code of 1871 as section 2785 thereof, and the case of Ex parte Caples, 58 Miss. 358, decided by this court in October, 1880, is very similar to, and seems to control, the one now at bar. In that case, the trial court adjourned for the term shortly after convening, without trying, and over the protest of, one accused of a felony. He thereupon sued out a writ of habeas corpus and was admitted to bail. On the appeal to this court he claimed immunity from further prosecution under the Constitution, which then, as now, gives an accused the right to a speedy trial. The court held that one arbitrary continuance did not entitle an accused to a discharge, but left open, as we do here, the effect of more than one such continuance on the right of an accused to a discharge.
It is true that the statute was not there referred to, but had it been, we are of the opinion that the result would not have been different. Moreover, the statute has been twice re-enacted since that decision was rendered, and had the legislature intended it to have the effect which the appellant here would have us give it, it would have re-written the statute in language clearly setting forth that purpose.” 156 Miss. at 357-58, 126 So. at 43-44.

Effective July 1, 1976, Section 99-17-1 was amended to read:

“Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Supp.1979).

The amended statute, like that prior to amendment, did not provide that the accused be discharged in the event he was tried more than two hundred seventy (270) days after arraignment. As the Court stated in Heard, supra, if the legislature had intended a discharge for failure to comply with the statute, that intent would have been expressed in the present statute.

I have no quarrel with the decisions of this Court and the Federal courts construing constitutional provisions with reference to speedy trials. Each case has to be decided on its own facts. I think that the provisions of the Federal and State constitutions and of Section 99-17-1 only require that an accused be discharged in denying him a speedy trial which results in prejudice and in the denial of a fair trial to him. Except for those reasons, I do not think an accused should be discharged and I do not think the legislature intended otherwise. The trial judge, on an evidentiary hearing for that purpose, found that appellant was not prejudiced and that his claim of an absent witness was incredible. I would modify, or overrule, Payne v. State, 363 So.2d 278 (Miss.1978) and cases in' support thereof, to the extent that the expressions here made control.

WALKER and BOWLING, JJ., join this dissent.

BOWLING, Justice,

dissenting:

I dissent from the majority opinion in this case.

The appellant, a convicted rapist, is being completely discharged because he was not tried within 270 days after being arraigned. The alleged failure is pursuant to Mississippi Code Annotated section 99-17-1 (1972), as set out in the majority opinion. The fallacy of the majority, in my humble opinion, is that the Legislature, in enacting the statute, clearly set out that the 270-day limit did not apply if “good cause be shown” for not having a trial during the required period. This exception clearly has been set out in prior opinions of this Court. In my judgment, there is no doubt that “good cause” clearly was shown which prohibits the discharge of the appellant.

In the first place, we have to look at the record of the case in the perspective of three different “sets” of attorneys who have handled the matter for the appellant. The first two were discharged at his request. All are competent attorneys but none seemed to satisfy appellant, although court appointed and paid for by the State. It is indicative of the course of the matter that the first attorneys handled appellant’s case through the phase of arraignment, and preliminary motions. The second set of attorneys handled the second request for a psychiatric examination and the hearing on appellant’s motion to dismiss under the statute. The third attorney handled the actual trial of the case and this appeal.

It is not determinative of the issues presented here, but any member of the bar with any appreciable trial experience knows that a defendant who gets three different sets of attorneys to handle his case at three different times and periods should expect delays.

On September 15, 1978, a hearing was had before the circuit judge by the second set of attorneys on the motion resulting in appellant’s discharge by the majority. It developed in that hearing, as stated in the majority opinion, that the first order for a psychiatric examination was placed in the file and was not brought to the attention of the sheriff by either the state or the then defense attorney. The majority opinion places the entire burden and responsibility of getting the accused examined on the state. I respectfully submit that this is an erroneous conclusion. The defense attorney is the one who requested the examination; he was the one who drew the order and had it executed by the circuit judge; he was the one who knew that a delay in the examination would result in a delay of appellant’s trial; he was the one who caused the order to be placed in the court file. The conclusion of the majority would serve to permit defendants to “sand-bag” and take action to delay psychiatric examinations. It is interesting to note that the second set of attorneys was appointed in December, 1977, yet, the so-called “missing order” secured by the first attorney was not “discovered” until April 7, 1978. It is admitted that the “lost order” was in the court file all the time. The only trouble was that its filing was not listed on the docket book. Is it not expected that the attorneys for the defendant inspect that defendant’s file the same as the state?

The majority quotes from the United States Supreme Court case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In examining that case, I do not find that it supports the majority opinion. Even the United States Supreme Court stated there that:

The right of a speedy trial is necessarily. relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. [Emphasis supplied].

The opinion further imposes a duty upon the defendant’s attorney to take action in preparing for trial and not just wait out the state to see that pretrial procedures are had. In the present case, there was absolutely no action whatever by defendant’s attorney to expedite the pretrial order for examination. Barker, supra, holds that the defendant through his attorney is required to do something, even if little, to secure a speedy trial. As was said in Barker:

The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evi-dentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

An accused only can act through his attorney. The first of three attorneys filed the first motion for a psychiatric examination. He did absolutely nothing for the accused to justify later contending that any delay was caused solely by the state.

From the outset, the lower court advised all parties that considerable delay was being had in securing psychiatric examinations of persons accused of crime at the Mississippi State Hospital for the reason of the overcrowded patient load, and the lack of personnel. There is no evidence that the accused could have been examined even in the period of time from the indictment to his actual examination. In fact, because of the known delay, the lower court offered to have the accused examined by the Jackson Mental Health Center rather than wait for examination at the State Hospital.

The majority opinion states that a defendant has no duty to bring himself to •trial. Any member of the bar with trial experience knows that in a lot of cases it is advantageous for the defendant deliberately to cause delays. I respectfully submit that the duty of expediting court trials is on all members of the bar, whether state prosecutors or defense attorneys.

The trial court, in the opinion overruling appellant’s motion to dismiss, affirmatively stated that:

It was customary procedure at that time [when the former judge signed the examination order of August 8, 1977] as well as at the present time for an attorney who obtains an order from the court to see that the order is put on record and that a copy is furnished to the sheriff in order that he can carry out the directions of the court and deliver the defendant to the Mississippi State Hospital at Whitfield for examination. [Emphasis supplied].

We find no dispute with this ruling of the trial court in the record.

The majority opinion states that reversible error exists because the state did not respond to appellant’s contention that the delay caused him harm. With all deference to the majority, this is just not correct. There were only two assignments of error propounded in the pleadings in this Court. They were:

1. The defendant was denied the right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution and Article 3, section 26 of the Constitution of the State of Mississippi. [No mention is made of Mississippi Code Annotated Section 99-17-1 (1972)]. (Emphasis supplied).
2. That the jury verdict and judgment of conviction was against the overwhelming weight of the evidence.

It is clear to me that the person briefing the case before this Court for the state recognized that the contention of appellant of any harmful delay was not well founded and according to this record needed no answer. This was not charged in the assignment of errors and was only incidental argument. If this Court starts assuming that everything is true as contended by one party in a brief and not denied by another, then we will shortly be in a state of hopeless confusion. The lower court clarified the matter of harmful delay in which appellant’s second attorney contended that a material witness could not be located. At the hearing on the motion, appellant’s second attorneys placed a witness on the stand to try and show the fact of a missing witness. In ruling on the motion, the lower court, who has the duty of observing witnesses and making decisions on conflicting matters such as this, stated: “First, as a matter of finding of fact, I observed James Turner on the stand and find his testimony completely unbelievable.”

As stated above, why should there be any need for the state to answer further the testimony of witness James Turner? In addition to this and regardless of the disbelief of the contentions by the lower court, it advised defendant’s attorneys as follows:

I want to advise you and I will so instruct the district attorney that they will use their investigators to assist you in locating this person known as Phillip, and give him some guidance to follow. The information- furnished by Mr. James Turner from the stand would be of very little benefit to anyone in locating the witness. Do you understand my request?

As stated above, the' thrust of appellant’s argument under his constitutional assignment of error is the mathematical count of 270 days, and the question of “good cause,” not an alleged missing witness. This was secondary and did not enter into the disposition of the case in the trial court. No competent attorney writing a brief in opposition to appellant’s brief would have thought it important to affirmatively go into the proposition that the appellant was prejudiced because of any delay as shown by the record in this case. As stated, the issue was whether or not there was “good cause” to justify a delay in the trial, not the alleged absence of a witness at the time of trial. To hold that a reversible error exists because of the alleged missing witness and the state’s failure to stress that point, the testimony about which made such an impression on the trial judge, is placing an undue burden on the state. Under the majority opinion, every brief before this Court would be as long as possible to be sure and answer every statement of the opposing brief.

In my humble opinion, if there ever shall be a case where the 270-day trial rule should not be applied because the record shows “good cause” for not having a trial within that time, this is one. It is not a case of penalizing the accused. With deference, the majority opinion, when read after a full study of the record, penalizes the state and gives the accused who can fire attorneys at will, an advantage. No delay in this case was caused by the state. As hereinbefore seen, and as is known by trial attorneys, orders resulting in delays, which orders are prepared and presented to the trial court by attorneys and taken from the trial court’s presence by that attorney, carry with them the requirement that that attorney has the duty of doing the necessary acts to effect the purpose of the order. I would affirm.

WALKER and LEE, JJ., join in this dissent.


author: SMITH, Presiding Justice,

text:
    Ricky JORDAN v. STATE of Mississippi.
    No. 51767.
    Supreme Court of Mississippi.
    April 23, 1980.
    Rehearing Denied May 28, 1980.

      Cullen C. Taylor, Brandon, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Ricky Jordan was tried in the Circuit Court of Rankin County upon an indictment charging him with the felonious sale and delivery on September 29, 1978, of a controlled substance. The indictment for that offense, returned May 4, 1979, also charged Jordan with being, an habitual criminal under the provisions of Mississippi Code Annotated section 99-19-81 (Supp.1979), Paragraph 1 of Chapter 470 of the Laws of Mississippi of 1976.

That statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

It was charged that, on February 1,1973, Jordan had been convicted of burglary in the Circuit Court of Rankin County; that he had been convicted of burglary in the Circuit Court of Simpson County, on a plea of guilty on March 19, 1979; and that he had also been convicted of burglary, on a plea of guilty in the Circuit Court of Simpson County on March 19,1979. In each case Jordan had received a sentence of more than one year in a Mississippi State penal institution.

The indictment in this case, returned May 4, 1979, charging Jordan with the felonious sale of a controlled substance on September 29, 1978, also charged him with being an habitual criminal on the basis of the above previous burglary convictions.

In the trial court, counsel for Jordan attacked the indictment by demurrer and by motion to quash. The principal contention was that the March, 1979 convictions, having occurred after September 29, 1978, the date on which it was charged that Jordan had feloniously sold and delivered the controlled substance, did not fulfill the conditions specified in section 99-19-81, supra, that a defendant, to be punished as an habitual criminal, must “have been convicted twice previously” of a felony. The trial court rejected this argument, overruling the demurrer and denying the motion to quash.

Jordan was tried and convicted by the jury for having feloniously sold and delivered, on September 29, 1978, the controlled' substance as charged in the indictment.

The trial court, following the procedure outlined in Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice, conducted a separate hearing as to Jordan’s previous convictions set out in the indictment. On the basis of the proof of these convictions the trial court, under the provisions of section 99-19-81 supra, (Paragraph 1, Chapter 470 of the Laws of Mississippi of 1976), sentenced Jordan to a term of 20 years imprisonment and to the payment of a fine of $30,000, the maximum penalty fixed by law for his said offense of the felonious sale and delivery of the controlled substance.

On appeal it is argued on Jordan’s behalf that section 99-19-81, Mississippi Code Annotated (Supp.1979), does not clearly specify whether the previous convictions it refers to must have occurred prior to the date on which the third or principal felony was committed. In support of this argument appellant cites several cases dealing with the question of enhanced punishment following successive convictions of an offense by a defendant who had previously committed that offense. Among the authorities cited was Miles v. State, 51 So.2d 214 (Miss.1951), interpreting section 2613 of the 1942 Code. That section dealt with the sale of intoxicating liquor under the prohibition laws and provided, for the first offense, a fine of not more than $500 or imprisonment not more than three months or both. By subsequent paragraphs it provided enhanced punishment for a second and third violation of the statute.

Section 99-19-81, supra, is not a statute providing for more severe punishment for each succeeding violation of a particular statute. In express terms it provides that a person who has been previously convicted of two felonies shall receive the maximum sentence authorized for his conviction of a third felony. The fixing of punishment in criminal cases is a question “peculiarly ... of legislative policy.” Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958).

A somewhat analogous situation was dealt with in the case of United States v. Bridgeman, 173 U.S.App.D.C. 150, 523 F.2d 1099, 1121 (1975), cert. denied 425 U.S. 961, 96 S.Ct. 1743, 48 L.Ed.2d 206. In Bridgeman the Court said:

Brown’s counsel also contends that his client was not subject to be sentenced as a person “convicted more than once of having . . . committed a crime of violence in the District of Columbia” because the prior sentence was not adjudged by the court until October 17, 1972, some five days after the armed kidnappings charged in the instant indictment had occurred on October 11 and 12, 1972. The statute, however, does not require that the second crime occur after sentence is adjudged on the prior “crime of violence.” It speaks in terms of a prior conviction existing at the time of a subsequent sentencing: a defendant who has been convicted of one violent crime at the time he is sentenced for a second crime of violence clearly comes within the purview of the statute, even though his sentence on the first conviction was not adjudged until after the second crime was committed. Because Brown’s armed robbery conviction preceded his sentencing in this case, the mandatory minimum sentence was required.
Finally, Brown argues that the minimum sentence provision is unconstitutional because it divests the trial court of all discretion concerning the duration of punishment or the granting of probation. In 1916 the Supreme Court held that a United States District Court was not free to ignore a congressionally imposed minimum sentence. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The Court reiterated that the statutory boundaries of criminal sentences are “peculiarly questions of legislative policy” in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). These decisions effectively foreclose appellant’s constitutional attack on the mandatory minimum sentence.

The trial court correctly overruled the demurrer and denied the motion to quash, upholding the validity of the indictment. Jordan was properly tried, convicted and sentenced as an habitual criminal under section 99-19-81, supra.

A second assignment of error deals' with the refusal of the trial court to grant two instructions requested by appellant. An examination of the instructions in question shows clearly that their intent was to submit to the jury for decision purely legal matters with which the jury had no concern. The trial court properly declined to grant the instructions.

We find no error in the trial, conviction, or sentencing of Jordan and the judgment appealed from is affirmed.

AFFIRMED.

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


author: LEE, Justice,

text:
    C. B. JONES v. STATE of Mississippi.
    No. 51770.
    Supreme Court of Mississippi.
    April 30, 1980.
    Rehearing Denied May 28, 1980.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

C. B. Jones was convicted in the Circuit Court of Forrest County for carrying a deadly weapon, when he had been convicted of a felony previously, and was sentenced to serve five (5) years in the Mississippi State Penitentiary, from which sentence and judgment he has appealed to this Court.

On September 4, 1978, appellant entered Eddie’s Lounge, a bar in Forrest County, and began shooting pool with several individuals in the establishment. Faye' Barber, the proprietor of the bar, observed the appellant remove a pistol from his boot and wave it around. He then placed the pistol back in his boot and continued shooting pool. Mrs. Barber notified the sheriff’s office. Approximately ten (10) minutes later two (2) deputy sheriffs arrived at the tavern. After entering the building, the officers were directed to appellant by the proprietor. They asked him to step outside the establishment and, as he was leaving the building, both officers observed that he was staggering and his speech was slurred. Appellant was placed under arrest for public drunkenness and was searched by Officer Clark, who discovered a .22 caliber revolver hidden inside appellant’s boot.

The question presented is whether or not the appellant was entitled to a directed verdict and peremptory instruction of not guilty for the reason that the indictment was fatally defective.

The indictment charged that appellant, on the fourth day of September, 1978, in Forrest County “did unlawfully, willfully, and feloniously carry a certain deadly weapon, to-wit: a 22 caliber pistol, when he had been previously convicted of a felony, to-wit: the crime of Murder said conviction having been had on the 4th day of January, 1957, in the Circuit Court of Hinds County, Mississippi, and sentenced to a term of Life in the Mississippi State Penitentiary, at Parchman, Mississippi, . . ”

Mississippi Code Annotated Section 97-37-1 (1972) provides the following:

“Any person who carries, concealed in whole or in part, any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm, or uses or attempts to use against another person any imitation firearm, shall upon conviction be punished as follows :
(a) By a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or both, in the discretion of the court, for the first conviction under this section.
(b) By a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00), and imprisonment in the county jail for not less than thirty (30) days, nor more than six (6) months, for the second conviction under this section.
(c) By imprisonment in the state penitentiary for not less than one (1) year, nor more than five (5) years, for the third or more convictions under this section.
(d) By imprisonment in the state penitentiary for not less than one (1) year, nor more than five (5) years, for any. person previously convicted of any felony, who is convicted under this section.” (Emphasis added)

Mississippi Code Annotated Section 97-37-5 (1972) states:

“The possession of any deadly weapon as described in section 97-37-1 by any person who has been convicted of a felony under the laws of this state, any other state, or of the United States,. shall be prima facie evidence of a violation of that section.”

Appellant first contends that the indictment was fatally defective for the reason that it did not charge he carried “concealed in whole or in part” the deadly weapon, and that he is entitled to be discharged. The State of Mississippi argues it was not necessary to charge that the deadly weapon was concealed, but simply that appellant had possession of same as stated in Section 97-37-5.

The Instruction #S-1, granted at the request of the State, submitted to the jury the issue exactly as charged in the indictment. The Instruction #D-1 , granted at the request of defendant, also submitted the same issue. Neither appellant nor the State contended that the deadly weapon was required to be charged and proved concealed as set forth in Section 97-37-1. The evidence is undisputed that the weapon was carried concealed in appellant’s boot.

Mississippi Code Annotated Section 99-7-21 (1972) provides that “All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, . . .”

In Langford v. State, 239 Miss. 483, 123 So.2d 614 (1960), the indictment failed to charge the ownership of property alleged to have been embezzled. The Court was called upon to decide whether the failure to charge ownership of the property was a mere defect in the indictment or was an essential element of the crime charged. The Court held:

“If the insufficiency of the indictment was due to a defect which could have been remedied by an amendment, then the point is waived by the accused if he fails to interpose a demurrer, . . 239 Miss. at 487, 123 So.2d at 616.

The Langford court held that the charge of ownership of the property was essential, that although Langford failed to demur to the indictment, he objected to the testimony as to the ownership of the property, and that the case should be reversed for trial under a new indictment charging ownership of the property.

We distinguish the present case from the Langford case for the reason that Sections 97-37-1 and 97-37-5 complement each other and must be read and considered together in passing on the question. There is no statute which makes it a violation to carry a deadly weapon, unless it be concealed in whole or in part. The indictment charged appellant with “unlawfully, willfully and feloniously carrying a certain deadly weapon, to-wit: a .22 caliber pistol . . . ” (Emphasis added). Section 97-37-5 makes possession of the weapon prima facie evidence of a violation of Section 97-37-1. Considering the two sections together, we are of the opinion that the indictment informed the accused with accuracy the charge against him, and that it is sufficient to constitute former jeopardy on conviction or acquittal.

As stated above, the evidence is un-contradicted that appellant had possession of the deadly weapon and that it was concealed. No effort was made by appellant to overcome the prima facie case made under Section 97-37-5 and we reject the contention of appellant that the trial court erred in refusing to grant him a directed verdict and a peremptory instruction of not guilty.

The appellant next contends that his prior felony conviction was had in the Second Judicial District of Hinds County, and that the indictment was fatally defective in that it charged he was convicted in the Circuit Court of Hinds County without naming the judicial district in which the same occurred. The question was answered in Bolen v. State, 309 So.2d 524 (Miss.1975). Bolen contented that the indictment against him was fatally defective for the reason that it failed to charge in which of two judicial districts of Panola County the crime was committed. The Court held that the alleged defect in the indictment was a formal one, could be amended, and, being amendable, the defect may not be raised for the first time on appeal. There is no merit in this contention.

We again repeat, the indictment did not charge that appellant carried concealed in whole or in part, the .22 caliber pistol. The heading of Section 97-37-1, sets forth “Deadly weapons—carrying deadly weapon and use of imitation firearm prohibited— penalties.” The back of the indictment correctly recited the charge “Carrying concealed weapon after conviction of a felony.” The indictment itself should have contained the word “concealed,” following Section 97-37-1. We can only conjecture as to the reason for ■ the omission. Many criminal cases come before this Court involving careless and inefficient handling by prosecutors. It is hoped that full-time prosecuting attorneys, now furnished with adequate facilities and assistance, will see that such conditions are eliminated.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    LEFLORE COUNTY, Mississippi v. BIG SAND DRAINAGE DISTRICT.
    Nos. 51805, 51085.
    Supreme Court of Mississippi.
    April 30, 1980.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    Kimbrough, Kimbrough & McLean, G. Hite McLean, Greenwood, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court.

Big Sand Drainage District [Drainage District] filed suit in the County Court of Leflore County against Leflore County, Mississippi seeking the sum of seven thousand five hundred ninety-four dollars twenty-nine cents ($7,594.29) reimbursement for expenses incurred by it in constructing bridges and culverts on two (2) public roads in Leflore County. The County Court sustained a demurrer to the declaration, and, on appeal to the Circuit Court the judgment on the demurrer was reversed. Leflore County declined to plead further, and default judgment was entered in behalf of the Drainage District in the amount sued for. Leflore County appeals here from the judgment entered in the Circuit Court.

The question presented, as raised by the demurrer, is whether or not Leflore County is liable to the Drainage District for reimbursement of • the costs of removing and constructing culverts and bridges across two public roads.

Mississippi Code Annotated Section 51-29-95 (1972) provides in part:

“The commissioners of the district shall have the right and power to carry the ditches, either main or lateral, across any highway; and the board of supervisors shall construct suitable bridges across such ditches.”

Mississippi Code Annotated Section 51-31-95 (1972) contains the following:

“If in the construction of such ditches the same shall cross any public road, it shall be the duty of the drainage commissioners to notify the board of supervisors of such county in which such public road is located,- at some regular meeting of said board held prior to a day which is thirty days next before the time fixed in such notice for the time at which the proposed work shall be constructed across said public road, stating in such notice the width and depth of such proposed work. It shall be the duty of the board of supervisors to cause to be removed and constructed, at the expense of the county, all bridges necessary to be removed, or constructed, same to be done at such time as is reasonable, with a view to the convenience of the public and without unreasonable delay to the prosecution of such work.
Contracts may be made by the board of supervisors for such removal and construction of such bridge or bridges, without first advertising for bids where the cost of any one bridge does not exceed one hundred dollars.”

The sections impose the duty upon the board of supervisors to construct suitable bridges across ditches of the drainage district and provide that all necessary bridges, removed or constructed, shall be at the expense of the county. The statute does not give the drainage district the authority to construct the bridges and culverts. Neither does the statute provide that, if the board of supervisors declines to construct such bridges, the drainage district may then perform the work. Section 170, Miss.Const. 1890, vests jurisdiction over roads and bridges in the board of supervisors of each county. Mississippi Code Annotated Section 19-3-41 (1972) provides that “The boards of supervisors shall have within their respective counties full jurisdiction over roads, ferries and bridges, except as otherwise provided by section 170 of the constitution and all other matters of county police.

Sections 51-29-95 and 51-31-95 also leave to the determination of the board of supervisors what shall constitute suitable bridges across drainage districts and what bridges are necessary to be removed or constructed. If the determination of the board of supervisors in those respects is improper, arbitrary or capricious, the drainage district has lawful remedies to pursue.

The law recited in 1877 in Brabham v. The Board of Supervisors of Hinds County, 54 Miss. 363 (1877) still applies today. The Court there said:

“The plaintiff in error sued the defendant in error to recover damages for the death of her husband, produced by the falling of a county bridge while he was crossing it with his wagon and team.
If a county can be held liable for damages suffered in consequence of neglect to repair a county bridge in any case, it should be held so in this. At common law, a county could not be so held liable. No statute makes it liable. The ‘demands,’ ‘accounts’ and ‘claims’ contemplated in the statutes to be audited and allowed by boards of supervisors, and authorized to be sued on, if allowance is refused by the board, are manifestly such liabilities of the county as are- provided for by some statute. A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the State, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are quasi corporations, invested by statutes with certain powers, arid subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute. The right to maintain a suit like this against a county is not only outside of the contemplation of the statutes, but is opposed by every consideration of sound policy.” 54 Miss. at 364.

In City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682 (1917), the City of Grenada filed a claim with the board of supervisors of Grenada County for reimbursement for the costs of one-third (V3) of paving streets adjoining the courthouse property. The board of supervisors declined to pay the claim, the City sued and obtained judgment in the Circuit Court against Grenada County. This Court reversed the judgment and held that no suit can be maintained against a county to recover for liability unless such liability is authorized by some statute, expressly or by necessary implication. See also Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936).

The Drainage District argues that appellate attacks the constitutionality of Sections 51-31-95 and 51-29-95. However, appellant does not attack the constitutionality of the sections, but simply argues that there is no provision in them for the action taken by the Drainage District, with which we agree.

Since the statutes in question, and no other statute brought to the attention of this Court, neither authorize the Drainage District to remove and construct bridges and culverts, as it did, nor authorize it to institute suit for the reimbursement of expenses therefor, the declaration did not state a cause of action against the appellant, Leflore County. Therefore, the judgment of the circuit court is reversed and judgment is entered here for appellant.

REVERSED AND RENDERED.

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


author: ROBERTSON, Presiding Justice,

text:
    Ray MALLETTE v. William V. HURT.
    No. 51558.
    Supreme Court of Mississippi.
    April 30, 1980.
    Rehearing Denied May 28, 1980.

      Megehee, Brown, Williams & Mestayer, Raymond L. Brown, Pascagoula, for appellant.
    Bryan, Nelson, Allen, Schroeder & Back-strom, Vincent J. Castigliola, Jr., Pascagou-la, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court.

William V. Hurt sued Ray Mallette in the Circuit Court of Jackson County for damages sustained by him when Mallette came over to his house in the early morning hours of October 18, 1974, and shot him in the abdomen with a shotgun.

Plaintiff charged in his declaration that his injuries, suffering and disability resulted from the following acts of the defendant:

a. Defendant negligently and carelessly allowed a dangerous instrument to be discharged striking the Plaintiff.
b. The Defendant negligently and carelessly failed to take due care to make sure the Plaintiff would not be injured as a result of his discharging said weapon..

After a full trial, the jury returned a verdict in favor of the plaintiff and against the defendant for $20,000 damages.

Mallette assigns as error that the Court erred:

1. In overruling his motion for a directed verdict;

2. In refusing to grant a peremptory instruction for the defendant;

3. In refusing to give defendant’s instructions 4 and 5; and

4. That the verdict of the jury is contrary to the overwhelming weight of the evidence and contrary to law.

Hurt cross-appeals, assigning as error that:

1. The verdict of the jury is so grossly inadequate as to evince bias, passion or prejudice on the part of the jury; and

2. The trial court erred in allowing Defendant to introduce evidence of his previous indictment and conviction for aggravated assault.

Early in the morning of October 18,1974, Mrs. Mallette awakened her husband and they entered into a lengthy conversation. Mrs. Mallette admitted to her husband that she had had an affair with Hurt, who lived nearby. Mallette got his shotgun, loaded it and drove to Hurt’s home. He rang the front doorbell; Hurt came to the front door and stepped outside to talk with Mallette. A heated conversation took place and ended with Mallette shooting Hurt in the stomach.

Hurt filed his tort action against Mallette on February 12, 1975. Mallette in his answer denied the charges of negligence set out in the declaration, and alleged that the entire matter was brought about by the wrongful conduct of Hurt in disturbing the domestic tranquillity of Mallette’s home.

Mallette and Hurt were the only witnesses to the incident. Hurt’s wife came from the house after the shot was fired and found her husband on the ground. She requested assistance from Mallette but her request was refused with rather strong language.

It is undisputed that Mallette shot and injured Hurt and the extent of his injuries and the amount of damages to be awarded were questions for the jury to decide. There is ample evidence in the record supporting the jury’s verdict for $20,000 damages.

The trial court correctly refused to grant defendant’s instructions 4 and 5. Instruction 4 stated in part:

“[I]f you find from the evidence that the shooting was not done negligently and carelessly, but that at the time of the shooting Ray Mallette intended that William V. Hurt be shot, then the shooting would be intentional and the Plaintiff would have failed to prove the allegations of his suit.”
Instruction 5 stated in part:
“If you find from the evidence that RAY MALLETTE did not ‘negligently and carelessly’ shoot WILLIAM V. HURT, and if you find that the shooting was an assault and battery, an intentional act, then the Plaintiff has failed to meet the burden of proof on the allegations of his suit, and you should find for the Defendant, RAY MALLETTE.”

It is hard to understand why Defendant Mallette even requested these instructions and still harder to understand why the refusal to grant these instructions would be assigned as error. If these erroneous instructions had been granted, it would have laid defendant Mallette open for a finding of the jury not only for actual damages but also for punitive damages. Clearly it would have been against Mallette’s best interests to get these two instructions. The trial court was imminently correct in refusing to grant them.

In his reply brief, appellant advances the thought that appellee staked his entire case on “negligence and carelessness”:

“. . . for the obvious reason, we believe, that the Appellee wants to try to collect a judgment from Appellant’s comprehensive dwelling policy, rather than pursue an unlikely collection under the other label. Appellant does not wish for Appellee to collect anything from any source, and it would be wrong for it to occur here under the wrong label."

The complete answer to this question is that Hurt’s was an action in tort against Mallette only. No insurance company was a party to this tort action. Any question of liability under an insurance contract of any kind would necessarily have to be raised and decided in an action in contract brought against the insurance company directly or possibly by way of garnishment. These contract questions cannot be raised and answered in a tort action against the tort-feasor alone.

Kelly v. Cherokee Insurance Co., 574 S.W.2d 735 (Tenn.1978), resembles remarkably the case at bar. William Kelly sued Joe A. Hemphill for damages because of injuries sustained by him when Hemphill shot him with a shotgun. Hemphill was a named insured in a homeowner’s policy issued by Cherokee Insurance Company. Cherokee denied coverage and refused to defend the suit. Hemphill also did not defend, and a default judgment for $25,000 was entered against him. In its opinion, the Supreme Court stated these further facts:

“After a nulla bona return on execution issued to collect the judgment from Hemphill and Cherokee’s denial of liability under the homeowner policy, this suit was brought.” 574 S.W.2d at 736.

In reversing the trial court’s summary judgment against Cherokee Insurance Company and remanding the case for a trial on the merits, the Court said:

“In the present posture of this lawsuit the controlling issue is whether or not Cherokee is estopped, or otherwise precluded from litigating the question of whether Hemphill’s acts that injured Kelly were expected or intended, because of the adjudication in the prior suit that Kelly’s injuries were directly and proximately caused by Hemphill’s negligence.
Plaintiff’s principal argument in support of his insistence that Cherokee is precluded from ‘relitigating’ the issue of whether Kelly’s injuries were negligently pr intentionally inflicted is that Cherokee was obligated to defend Hemphill, and in refusing to do so Cherokee is bound by the prior judgment in the tort action, which was explicitly decreed to be predicated upon negligence. We have no quarrel with the general rule that in the absence of fraud or collusion an insurer, who has the duty to defend, has timely notice and defends or elects not to defend, is bound by the judgment in such a case as to issues which were or might have been litigated therein. See, e. g., Pyle v. Bituminous Cas. Corp., 42 Tenn.App. 145, 299 S.W.2d 665 (1956). But, it is our view that this case does not come within the purview of that general rule. The precise issue upon which coverage depends, to wit, whether the insured Hemphill’s acts that inflicted the injuries were ‘expected or intended’ was not and could not have been litigated in the tort case. Defense of the insured in the tort action would cast the insurer and the insured in the untenable position of attempting to cooperate when their interests are adverse, and in the absence of an identity of interest judgment by estoppel does not apply. If in the tort action the insurer sought to exculpate itself from policy coverage by showing that its insured acted intentionally, that position would breach its duty to contest any liability and could render insured liable for punitive damages. That result would strip insured of coverage for compensatory damages, as well as punitive damages.
‘It is, however, obvious that the binding effect of a judgment against the insured does not extend to matters outside the scope of the insurance contract, and that the Insurance Company is neither obligated to defend nor bound by the findings of the court if the claim against the insured is not covered by the policy. To hold otherwise would be to estop the Insurance Company by the acts of parties in a transaction in which it has no concern and over which it has no control, and to deprive it of its day in court to show that the transaction is foreign to the contract of insurance.
It was not possible for the company in these suits to defend the insured, and at the same time to protect its own interests. It could not exculpate itself by showing that the injurious acts of the insured were beyond the scope of the policy, for this showing would establish the liability of the insured to the injured parties to an even greater extent than that claimed in the complaints.’” 574 S.W.2d at 737-38. (Emphasis added). See also, Alabama Farm Bureau Mutual Casualty Insurance Co., Inc., v. Moore, 349 So.2d 1113 (Ala.1977); McCarty v. Parks, Defendant, Royal Globe Insurance Co., garnishee defendant, 564 P.2d 1122 (Utah 1977); and Jackson v. Maryland Casualty Co, 212 N.C. 546, 193 S.E. 703 (1937).

After carefully examining the evidence adduced, we cannot say that the verdict of the jury was so grossly inadequate as to evidence bias or prejudice on the part of the jury nor can we say that the verdict for $20,000 was so small as to shock the conscience of this Court.

For these reasons, the judgment of the trial court is affirmed on both direct and cross-appeals.

This case was considered by a conference of the judges en banc.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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


text:
    I. D. PARKS v. BANK OF MISSISSIPPI.
    No. 51861.
    Supreme Court of Mississippi.
    April 30, 1980.
    Rehearing Denied May 28, 1980.
    Armis E. Hawkins, Houston, Roger M. Flynt, Jr., Jackson, for appellant.
    Riley & Weir, Frank A. Riley, Tupelo, for appellee.
   Appeal from Circuit Court, Chickasaw County; William R. Lamb, Judge.

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

AFFIRMED.


text:
    James W. WASHINGTON v. STATE of Mississippi.
    No. 51812.
    Supreme Court of Mississippi.
    May 7, 1980.
    James W. Washington, pro se.
    A. P. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

Affirmed.

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


text:
    William E. RAMEY v. LONGLEAF FOREST PRODUCTS COMPANY and Argonaut Insurance Company.
    No. 51890.
    Supreme Court of Mississippi.
    May 7, 1980.
    J. C. Martin, Jr., Waynesboro, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, K. Hayes Callicutt, Jackson, for appellees.
   Appeal from Circuit Court, Wayne County; Henry Palmer, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

Affirmed.


text:
    Everin NEAL, Jr. v. STATE of Mississippi.
    No. 51800.
    Supreme Court of Mississippi.
    May 7, 1980.
    H. W. “Sonny” Jones, Meridian, for appellant..
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

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

Affirmed.

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


text:
    Kenneth HENDERSON, a/k/a Kenny Collier v. STATE of Mississippi.
    No. 51844.
    Supreme Court of Mississippi.
    May 7, 1980.
    Rehearing Denied May 28, 1980.
    Laurel G. Weir, Terry L. Jordan, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Wayne M. Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J. and SUGG and WALKER, JJ.

AFFIRMED.


text:
    James Clyde McDONALD v. STATE of Mississippi.
    No. 51845.
    Supreme Court of Mississippi.
    May 7, 1980.
    William B. Sullivan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    GREATER MISSISSIPPI LIFE INSURANCE COMPANY and United States Fidelity and Guaranty Company v. Roy E. HURT.
    No. 51906.
    Supreme Court of Mississippi.
    May 7, 1980.
    Hamilton & Williamson, Joe Clay Hamilton, Meridian, for appellants.
    Warner, Ray & Cobb, Harvey B. Ray, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Joe GODWIN and Preferred Risk Mutual Insurance Company v. Pance COLLINS.
    No. 51889.
    Supreme Court of Mississippi.
    May 7, 1980.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, James D. Johnson, Jackson, for appellants.

Jim Davis Hull, Moss Point, for appellee.

Before SMITH, P. J., and BROOM and COFER, JJ.

REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON CROSS APPEAL.

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


text:
    H. E. HENRY v. James D. JOHNS.
    No. 51877.
    Supreme Court of Mississippi.
    May 14, 1980.
    James E. Brown, Starkville, for appellant.
    Ben F. Hilbun, Jr., Jackson M. Brown, Starkville, for appellee.
   Appeal from Chancery Court, Oktibbeha County; Lenore L. Prather, Chancellor.

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

AFFIRMED.

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


text:
    CHIN INDUSTRIES, INC. and Chin Garment Rental Service v. Arthur JONES, Jr.
    No. 51866.
    Supreme Court of Mississippi.
    May 14, 1980.
    Robert F. Drake, Hattiesburg, for appellants.
    Karl W. Kepper, Hattiesburg, for appel-lee.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    David R. OLSEN v. STATE of Mississippi.
    No. 51885.
    Supreme Court of Mississippi.
    May 14, 1980.
    Fair & Mayo, James C. Mayo, Louisville, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Vernon YATES v. JACKSON COUNTY BOARD OF EDUCATION.
    No. 51872.
    Supreme Court of Mississippi.
    May 14, 1980.
    Henry L. Tillman, Pascagoula, for appellant.
    C. R. McRae, Henry P. Pate, III, Pasca-goula, for appellee.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

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

AFFIRMED.


text:
    Katie Mae OSBORNE et al. v. Sylvia HERNDELL.
    No. 51882.
    Supreme Court of Mississippi.
    May 14, 1980.
    Varner & Parker, David M. Sessums, G. Gilmore Martin, Vicksburg, for appellants.
    E. Clifton Hodge, Jr., University, John W. Prewitt, Vicksburg, Guthrie T. Abbott, Oxford, for appellee.
   Appeal from Chancery Court, Warren County; J. D. Thames, Chancellor.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.