author: BARRY, Judge.

text:
    Carmen Ball, Wife of/and Patrick L. BALL v. Roger H. FELLOM.
    No. 12155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.

      Frank P. Tranchina, Jr., Kenner, for plaintiffs-appellees.
    Maurice G. Indest, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

The defendant-lessor appeals a judgment which awarded damages as a result of his failure to return plaintiffs’ rental deposit under LSA-R.S. 9:3251 et seq.

Plaintiffs allege posting a $200.00 deposit when they rented an apartment on an oral month-to-month basis in January, 1978. The defendant subsequently purchased this property and testified that he received from the former owner $500.00 representing security deposits on five units. Plaintiffs gave oral notice to the defendant of their intent to vacate on October 1, 1979, but requested and were granted thirty additional days with the agreement to vacate by November 1, 1979. It is uncontested plaintiffs did move on November 1, 1979; that plaintiffs made written demand but the defendant did not refund their rental deposit; and that plaintiffs gave their forwarding address to the defendant and left their keys with the apartment manager.

Plaintiffs sued for return of the their deposit plus damages and attorney fees. Defendant filed a reconventional demand claiming that there was a tacit reconduction of the lease for the month of November, 1979, and that plaintiffs illegally withheld $45.00 from the August, 1979 rental. At trial defendant attempted to amend his re-conventional demand to include $218.00 representing repairs to the premises, but the amendment was not allowed. The trial judge awarded plaintiffs $450.00 without a breakdown of the amount.

After termination of the tenancy and plaintiffs’ request for return of their deposit, defendant testified that repairs to the premises were necessary and “I told them in order to find out who owed whom what, I would have to get a statement from the people who did the work. In other words, I told them you may owe me some money.” Defendant argues this was a timely explanation that a refund was not due (his testimony doesn’t say that) and his oral explanation fell under our holding in Flynn v. Central Realty of Louisiana, Inc., 338 So.2d 774 (La.App. 4th Cir. 1976) writ den. 341 So.2d 417 (La.1977). Flynn is easily distinguishable because that plaintiff sought a refund and damages in bad faith and the amount plaintiff owed in rent was more than the rental deposit. The Flynn court was explicit in warning at p. 776: “Confining our decision to the narrow facts of the instant case, we conclude that the purposes of the statute were met by the lessor’s oral explanation of his retention of the rent deposit. This is not to say that an oral explanation will suffice in every case. To so hold would defeat the clear language of the statute.”

Defendant’s reconventional demand claims that when plaintiffs stayed on the premises one extra day (the beginning of a new rental month) there was a tacit recon-duction of the lease under LSA-C.C. Art. 2689 and a full month’s rent is due. The parties orally agreed that the lease was to terminate October 31, 1979 and written notice was not required. Art. 2689 requires the tenant to remain in possession for one week without opposition after the lease has expired before there is a reconduetion of the lease. Here the tenants were on the premises one extra day for the purpose of moving and the defendant was present but made no request for additional rent. This is insufficient to constitute reconduction, tacit or otherwise, of the lease.

As to the other issue in defendant’s reconventional demand, the trial judge determined, and we agree, that plaintiffs were justified in withholding $45.00 from the rent to repair a leaking faucet.

On appeal defendant urges that he did not own the premises when the rental deposit was made and since the plaintiffs did not personally give the security deposit to him there was no cause of action for return of the deposit. We disagree. Allegations that the wrong defendant has been sued addresses itself to the merits. Marquis v. Cantu, 371 So.2d 1292, (La.App.3rd Cir. 1979). Defendant admits receiving a deposit and the only dispute is the amount, i. e., plaintiffs claim $200.00 and the defendant admits $100.00. We feel defendant’s admission places him in the same position as the former owner and results in privity which is sufficient to state a cause of action.

Defendant maintains that plaintiffs failed to carry their burden of proof as to whether any deposit was paid to defendant’s predecessor in title. This is moot with defendant’s testimony that he received a lump sum representing security deposits on all units and his determination that $100.00 was deposited by plaintiffs.

Defendant asserts that where a bona fide dispute exists over the amount of a security deposit, damages are not applicable under LSA-R.S. 9:3252. However, the law does not provide this exception in its requirement that the lessor shall return the rental deposit or furnish an itemized statement accounting for the deposit within one month after the tenancy terminates. Failure to do so within 30 days after written demand constitutes, ipso facto, “willful failure” under LSA-R.S. 9:3252 and is the basis to award damages. A dispute as to the amount of the deposit does not exculpate the lessor from strict compliance with the statute.

Defendant’s next contention is that statutory damages should not be assessed for a “technical” noncompliance with LSA-R.S. 9:3251. Defendant was obligated to act and his failure to do so was a willful, not technical, violation of the statute necessitating imposition of damages.

The lower court’s judgment for $450.00 did not specify the amounts representing return of the security deposit, damages, and/or attorney fees. Whether the trial judge felt a $100.00 or $200.00 deposit was posted is immaterial since the total award is sufficient to justify a refund of the deposit, plus damages up to $200.00, and attorney fees.

The judgment did not dispose of defendant’s reconventional demand which we now amend to dismiss. Otherwise, we find no error of fact or law in the judgment which is affirmed with defendant to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . LSA-R.S. 9:3251. Lessee’s deposit to secure lease; retention by lessor; itemized statement by lessor
      Any advance or deposit of money furnished by a tenant of lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit as is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish lessor a forwarding address at the termination of the lease, to which such statements may be sent.
      The foregoing provisions shall not apply when the tenant abandons the premises, either without giving notice as required, or prior to the termination of the lease.
      LSA-R.S. 9:3252. Damages
      The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.

      . LSA-C.C. Art. 2689. Reconduction of lease of house or room by continued possession after expiration of term.
      If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he can not be compelled to deliver up the house or room without having received the legal notice of warning directed by article 2686.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    INGRAM OIL COMPANY, a Division of Ingram Oil Corporation v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD; Felix N. LeBouef; Fernard A. Becnel; Maurice Entremont; Harry Robottom; Charles M. Duhon; Stanley H. Gring; Gary Keating; Charles J. Watkins; Alvin M. Perret and Francis X. Champagne. NORTHEAST PETROLEUM CORPORATION v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD.
    Nos. 12062, 12063.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 1981.
    Rehearing Denied Dec. 18, 1981.

      Richard L. Edrington, Carville & Edring-ton, LaPlace, for Ingram Oil Co., plaintiff-appellant.
    Monroe & Lemann, Kenneth P. Carter, Benjamin B. Blanchet, New Orleans, for Northeast Petroleum Corp., plaintiff-appellant.
    Chapman L. Sanford, Cangelosi & Sanford, Baton Rouge, C. William Bradley, Jr., Reserve, for St. John the Baptist Parish School Bd., defendant-appellee.
    Before SAMUEL, BOUTALL and KLIE-BERT, JJ.
   BOUTALL, Judge.

These two consolidated suits put at issue the right of a purchaser to obtain the refund of sales tax. Both suits were dismissed on exceptions of no cause of action based on failure to give notice of protest.

Ingram Oil Company, a division of Ingram Oil Corporation, and Northeast Petroleum Corporation each brought a suit against the St. John the Baptist Parish School Board, its treasurer and others, representing that they made purchases of fuel oil from Marathon Oil Company; that Marathon Oil Company collected a sales tax on the transaction for the school board under its ordinance of July 14, 1965, and required plaintiffs to pay the tax asserting it was subject to later refund; that plaintiffs are not subject to the tax because they are not consumers or retailers and the fuel oil was in turn sold by them to others as wholesalers or distributors; that they are entitled to a refund of the taxes from the school board.

After some preliminary proceedings were had in the case, the court set the matter for trial and at trial date the school board filed exceptions of no cause of action in each suit. The trial judge maintained the exceptions and dismissed plaintiffs’ suits, and they have appealed. The basic issues on these appeals are whether plaintiffs have sufficiently alleged that they are entitled to a refund of sales taxes imposed by the school board under its ordinance of July 14, 1965, (under the authority of L.R.S. 33:2737 and L.R.S. 47:301, et seq.) and whether they have followed the required procedure to permit bringing this suit either under the ordinance or under state law.

Because this appeal is from the maintaining of the peremptory exception of no cause of action, we are confined to a consideration of the petitions and not to a consideration of the other matters contained in the record, as, for example, the affidavits and depositions filed in support of the summary judgment proceedings had herein. There is some variance between the allegations in the two petitions, and we must therefore consider each petition separately.

The petition of Ingram Oil Company recites that it is a Delaware corporation in the business of buying and selling fuel oil in Louisiana and elsewhere, and that on or about January 1, 1978, it applied for a wholesaler’s license, better known as a “W” number, with the Louisiana Department of Revenue. The purpose of the “W” number is to enable the recipient to avoid the payment of advance sales taxes which are required under the Louisiana laws and in order to receive the number, petitioner must demonstrate that within a three month period greater than fifty percentum of its transactions were sales for resale. During this three month period, petitioner was required to tender its advance tax to the vendor, Marathon Oil Company, which in turn tendered the advance tax to the taxing bodies, the State of Louisiana and the Parish of St. John the Baptist School Board. The payments of advance sales taxes to Marathon Oil Company were made between the period March 31, 1978, through April 17, 1978, in the amount of $42,046.38. At the time of these payments, plaintiff informed Marathon Oil that the payments of advance sales taxes were not required by law. At the expiration of the three month period, the State of Louisiana made a refund of the advance tax paid to it, but although the defendants have been requested to make the refund of its share of the tax on numerous occasions it has refused; a formal written request for payment being made on April 24, 1978. Petitioner further alleges that the refusal to refund the taxes by the School Board is a breach of contract and an illegal action carried out with malice and in bad faith because the Louisiana statute granting the state authority to collect advance sales taxes prohibits school boards from collecting advance sales taxes; plaintiff at all times was a wholesaler and exempt from the payment of sales taxes in advance; and the taxes assessed are an unreasonable and undue burden on interstate commerce and are unconstitutional. By amended petition Ingram made the sales tax ordinance of the school board a part of its petition and alleged it was in violation of the Federal and State constitutions. It is specially noted that the only allegations contained in the petition relating to notice or protest to defendants are those contained in Article Xlll:

“On numerous occasions, the defendants herein have been requested to make the refund, but have refused, a formal written request for payment being made on April 24, 1978.”

The School Board bases its peremptory exception of no cause of action on the following: 1) The petition discloses that the taxes in question were voluntarily paid, 2) that the taxes were not paid under protest, 3) that the statutory authority does not provide for a suit for refund unless the taxes were paid under protest, and 4) the School Board is immune from suit except by authority given by the legislature.

The general statutory scheme by which the School Board may impose a sales tax is as follows. The Louisiana legislature, by the enactment of L.R.S. 47:301 et seq., has authorized the imposition by the state of a general sales tax upon certain retail sales and transactions, and by the enactment of L.R.S. 33:2737 has authorized school boards to impose similar taxes. St. John the Baptist Parish School Board has imposed a one cent sales tax by virtue of an ordinance adopted July 14, 1965, to become effective August 9, 1965. While that ordinance follows in general the general format of the state sales tax law, we note that there are considerable differences in many particulars. Additionally, we note that L.R.S. 33:2737 provides that the school board sales tax shall be levied on those transactions within the parish as defined in L.R.S. 47:301 through 47:317. Similarly that statute requires that the school sales tax shall be collected at the same time and in the same manner and pursuant to the definitions, practices and procedures set forth in L.R.S. 47:301 through 47:317.

With these statutory provisions in mind, and referring to the well-pleaded factual allegations of the petition, which we must accept as true, it is evident that the petition does indeed state a case that the taxes were improperly assessed upon these transactions. Under these allegations, the case rests upon a threefold base: 1) The sale or transaction is not one defined in the ordinance, and no tax can be imposed upon it, 2) that the taxes imposed meet the definition of advance taxes defined in L.R.S. 47:306B and the school board is prohibited from imposing such a tax, and 3) that the tax was paid under the provisions of Section 4.05 of the School Board Ordinance, which provides for a refund upon obtaining a certificate of registration. Accordingly, plaintiff’s petition shows that he is aggrieved by the imposition of the tax and he is entitled to proceed in court to correct that grievance unless he is barred from proceeding in court for failure to have paid the tax under protest, or to use other appropriate procedures to permit suit for recovery. The Louisiana Constitution of 1974 in Article 7 Section 3 requires that the legislature shall provide a complete and adequate recovery of an illegal tax paid by the tax payer. The legislature has provided for a remedy for persons aggrieved under the state sales tax law in L.R.S. 47:1576. Similarly, the School Board has provided for remedies in its ordinance, which remedies under Section 12.10 thereof are not exclusive.

The remedy provided in the state law, L.R.S. 47:1576, provides a remedy at law and a resort to the court by all persons aggrieved under the provisions under the sales tax laws delineated in L.R.S. 47:301 through 318 and the additional sales tax law set out in Sections 321 through 323. As noted above, L.R.S. 33:2737 authorizes the School Board to impose and collect a sales tax within the provisions of Sections 301 through 317. It does not require that the provisions of Section 1576 be adopted or utilized. Nevertheless, under the constitutional mandate of Article 7 Section 3 the legislative remedy afforded in Section 1576 does apply, and especially in view of the express provisions of Section 12.10 of the ordinance that nothing therein shall be construed to deprive the dealer or the board of any remedy in the review of any tax, or in any proceedings to collect the tax given by any other law. Additionally, the right of action given in Section 1576 covers the “enforcement of any provisions of this Sub-title.” It is, of course, contended that the collection of the tax is in violation of the provisions of L.R.S. 47:306 B, relating to advance taxes. However, the remedy granted only arises when the taxpayer has paid the tax and at the time has given notice of intention to file suit. No allegations having been made that notice of protest of tax and intention to file suit being given, the petition fails to state a cause of action under L.R.S. 47:1576.

Because of the tripartite basis of plaintiff’s suit, we cannot conclude that L.R.S. 47:1576 controls the entire suit. We conclude that the remaining bases of the suit are covered by the provisions of the ordinance, and that the exception was properly sustained under those provisions also. In the School Board Ordinance, those portions comparable to L.R.S. 47:1576 are the provisions of Section 11.01, Section 11.02 and Section 11.03. Plaintiff argues to us that it is not a dealer and that it has a remedy provided under Section 11.02 which does not require notice of intention to file suit at time of payment of taxes as provided in either Section 11.01 of the ordinance or L.R.S. 47:1576. Section 11.02 states as follows:

“SECTION 11.02. This section shall afford a legal remedy and right of action in any State, City or Federal Court having jurisdiction of the parties and subject matter, for a full and complete adjudication of any and all questions arising in the enforcement of this ordinance, as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such actions service shall be upon the Treasurer of the School Board.”

This section is taken almost verbatim from the second paragraph of L.R.S. 47:1576. We are of the opinion that these three sections of the ordinance, 11.01, 11.02 and 11.03, must be read together as one section like § 1576, and that the legal remedy created is dependent upon the giving of notice at the time of payment of the tax. However, we are convinced from the allegations of the petition that the petitioner is a “dealer” as defined in the ordinance and that it comes under the provisions of Section 11.01, regardless of our consideration of 11.02.

The ordinance defines “dealer” in Section 1.04. That section provides in pertinent part:

“ ‘Dealer’ shall include every person who:
(4.) has sold at retail, or used or consumed or distributed or stored for use or consumption in this Parish, tangible personal property and who cannot prove that the tax levied by this ordinance has been paid on the sale at retail, the use, the consumption, the distribution, or the storage of said tangible personal property; or * * * * * #
(9.) Is engaged in business in the Parish.”

Engaging in business in the Parish is defined in Section 1.06 and includes the “having within this Parish * * * any property, * * * protected by the laws and courts of this Parish.” Ingram Oil has alleged that it purchased the property, i.e., fuel oil from Marathon and it was delivered in the Parish. Thus under the allegations of its petition, Ingram Oil Company comes within the definition of a dealer and its remedies, insofar as payment as a result of illegal imposition of tax are concerned, are governed by Section 11.01, which requires the giving of notice of protest and intention to sue at the time of payment of the amount due. Having failed to allege giving of such notice, the exception must be sustained insofar as that portion of the suit is concerned.

The last issue to be disposed of on this exception concerns those allegations which allege entitlement of a refund of the tax paid. Section 11.01 is not the sole remedy that may be afforded to a dealer under the allegations of this petition. The allegations also fairly show that the tax paid was paid under the provisions of Section 4.05 of the ordinance which provides as follows:

“A manufacturer, wholesale dealer, jobber or supplier not included under and subject to the provisions of this ordinance, shall refuse to accept a certificate that any property upon which a tax is imposed by the ordinance is purchased for resale, and shall collect the tax imposed by this ordinance unless the purchaser shall have filed a certificate of registration and received a certificate of authority to collect the tax imposed by this ordinance; provided, however, that the payment of the tax by such purchaser shall not relieve the purchaser of the duty herein imposed upon such purchaser to collect the tax upon any resale made by him; but such purchaser who shall thereafter file a certificate of registration and receive a certificate of authority to collect the tax may, upon application therefor, receive a refund of the taxes paid by him upon property thereafter resold by him, and upon the receipts from which he shall have collected and paid over to the Parish the tax herein imposed.”

Anyone paying under this section, besides the payment under protest which is required to contest either the constitutionality of the tax or the conflict with the statutory provisions of R.S. 47:306 B, may have the additional remedy for refund under Section 11.04. The allegations of this petition do not set out facts which support a finding that plaintiff has complied with the notice provided therein, and accordingly we maintain the exception on this facet of the suit. Nevertheless, it has been argued to us, and the answer filed by defendant indicates the possibility, that the refund was refused upon a finding made by the treasurer. C.C.P. Art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by an amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. Accordingly, in this case, we deem it proper to affirm the judgment of the trial court sustaining the exception, but remand the matter in order to afford Ingram Oil Company an opportunity to amend to state a cause of action within the limits of the views expressed hereinabove.

We now proceed to a consideration of the petition of Northeast Petroleum Corporation in the second of the consolidated suits.

Northeast Petroleum Corporation in its supplemental and amending petition recited that it had purchased fuel oil from Marathon Oil Company delivered at Marathon’s Garyville terminal located in St. John the Baptist Parish, and that the purchases took place between July 2, 1977, and May 31, 1978. Its petition recites in detail that the sales tax could not be imposed upon it because it did not factually or as a matter of law come within the authorized tax, and that the fuel oil had been resold to purchasers in sales for resale. Northeast alleges its facts in greater detail, and also alleges more legal conclusions and urges a greater variety of constitutional reasons why the tax paid should be refunded to it. Besides those issues of payment in error, illegality of the imposition under the statutory and ordinance provisions, collection as advance tax forbidden by the provisions of R.S. 47:306 (B) and the failure to make an administrative refund under Section 11.04 of the ordinance, Northeast alleges a system of arbitrary discrimination amongst wholesalers previously qualified to do business in Louisiana, capricious refusal to make refunds upon facts identical to which other tax payers had received refunds, and that the ordinance is so vague as to be unconstitutional and a denial of due process.

We point out that we are not required to accept the conclusions of law contained in a petition as correct, but only well-pleaded allegations of fact. In considering the allegations of this petition, we conclude that the factual allegations are basically the same as those made by Ingram Oil, although they are made in greater detail. Assuming all of the facts to be true, it is apparent, just as it was apparent in Ingram’s petition, that the plaintiff shows that it is aggrieved, that it has stated a cause of action, and that it would be entitled to recover the taxes paid, provided that it had complied with the requirements necessary to bringing its suit. Nowhere in its petition does it allege that it gave notice of protest or intention to file suit at the time of the payment of the taxes either under L.R.S. 47:1576 or Section 11.01 of the sales tax ordinance. That notice is a prerequisite to the preservation of plaintiff’s right to the remedy afforded. Similarly, there are no allegations in the Northeast petition of compliance with the notice provision of Section 11.04 of the ordinance providing for an appeal to the courts from a finding or assessment of the Treasurer.

Accordingly, we conclude that the exception of no cause of action was properly sustained against Northeast. However, there has been argument before this court in which Northeast has presented its representation that it had made complaints or protests to the Treasurer, and it may be possible that Northeast could show compliance with Section 11.04 such as to enable it to proceed in court for the refund. Under the provisions of C.C.P. Article 934, we would remand this matter in order to afford Northeast an opportunity to amend to state a cause of action within that limitation.

For the reasons above expressed, we affirm the judgment appealed insofar as it sustains the peremptory exception of no cause of action filed by the St. John the Baptist School Board against the petitions of Ingram Oil Company, a division of Ingram Oil Corporation, and Northeast Petroleum Corporation, but amend the judgment to permit each plaintiff an opportunity to amend its petition to state a cause of action within the limitations of Section 11.04 of the St. John the Baptist Parish School Board Sales and Use Tax Ordinance, remanding this matter to the trial court with instructions to order such amendment within a reasonable delay allowed by it, failing which their petitions shall be dismissed.

Costs of this appeal to await the final disposition of the case.

AFFIRMED IN PART, AMENDED IN PART AND REMANDED.

      . “SECTION 11.04. If any dealer shall be aggrieved by any finding or assessment of the Treasurer, he may, within thirty (30) days of the receipts of notice of the assessment or finding, file a protest in writing signed by him or his duly authorized agent, which shall be under oath and shall set forth the reasons therefor, and he may request a hearing. Thereafter, the Treasurer shall grant a hearing to such dealer, if a hearing has been requested, and may make an order confirming, modifying or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for non-payment nor shall it stay the right of the Treasurer to collect the tax in any manner herein provided unless the dealer shall furnish security of a kind and in an amount satisfactory to the Treasurer. Appeals from the decision of the Treasurer shall directed to any State, City or Federal Court of competent jurisdiction as provided for in Section 11.02.”


author: PER CURIAM. REDMANN, Judge, SCHOTT, J.,

text:
    SUCCESSION OF Viola Alexander CLIVENS.
    No. 12669.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1981.
    Rehearing Denied Dec. 18, 1981.
    Roger R. Roy, New Orleans, for adminis-tratrix-appellee.
    Nils R. Douglas, New Orleans, for inter-venor-appellant Dorothy Clivens Vantrass.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL, SCHOTT, GARRISON, CHEHARDY, BARRY, KLIEBERT and KLEES, JJ.
   PER CURIAM.

This is an appeal by Dorothy Clivens Vantrass from a dismissal of her petition of intervention in the Succession of Viola Alexander Clivens, widow of George Clivens. Appellant asserted a claim on property being administered in this succession on allegations that the Succession of George Cli-vens owned an interest in part of the property and she is the acknowledged illegitimate child of George Clivens, was her father’s sole heir and was entitled to be recognized as the owner of her father’s interest in the property. The trial court maintained exceptions of no cause of action on the basis of LSA-C.C. Art. 919 despite the holding that this article was unconstitutional in Succession of Brown, 388 So.2d 1151 (La.1980). The issue in this case is whether Succession of Brown should be applied retrospectively so as to permit appellant to assert her claim.

This issue was decided by this court in Succession of Ross, 397 So.2d 830 (La.App.4th Cir. 1981). Accordingly, the judgment is affirmed.

AFFIRMED.

REDMANN and SCHOTT, JJ., dissent and assign reasons.

KLEES, J., dissents for the reason assigned by SCHOTT, J.

REDMANN, Judge,

dissenting.

The Supreme Court of the United States rules that the Equal Protection clause, U.S. Const, amend. 14, prohibits (to use that Court’s words) “discrimination against ille-gitimates in a state intestate succession law,” Trimble v. Gordon, 430 U.S. 762, 774, 97 S.Ct. 1459, 1467, 52 L.Ed.2d 31.

The majority discriminate against an acknowledged illegitimate child by refusing to her a right that Louisiana law certainly grants to a legitimate child. If claimant Dorothy Clivens were a legitimate child, as from an unrevealed earlier marriage, the majority would concede that Dorothy could demand her inheritance notwithstanding an eight-year-old mistaken judgment of possession in favor of her father’s widow. The majority denies this right to Dorothy Cli-vens on no other ground than that she is illegitimate — that her father was not married to her mother, a matter utterly beyond her control. The majority thus judicially legislates, to repeat the United States Supreme Court’s words, “discrimination against illegitimates in a state intestate succession law.”

The judgment appealed from should be reversed.

SCHOTT, J.,

dissenting.

In my opinion, Succession of Ross, 397 So.2d 830 (La.App. 4th Cir. 1981) should be overruled and the judgment appealed from should be reversed. The facts of this case are indistinguishable from Ross. Here George Clivens died on September 24, 1971. He left no legitimate children and no ascendants so that his widow was sent in possession of his property, which was all community property, on December 17, 1974. The widow of George Clivens died on October 19, 1978, and her succession was opened the following November. Appellant intervened in the proceedings to assert her claim as the sole heir of George Clivens on June 27, 1979. In the Ross case Henry Ross died on August 11, 1971, his widow was sent in possession of ,his property on September 28 and his illegitimate children asserted their claim in 1979 in a suit to annul the judgment of possession.

In discussing whether Succession of Brown should be given a retroactive effect or not the court in Succession of Ross considered the three factors discussed in Chevron Oil Company v. Hudson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971):

“. .. (1) the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question; and (3) the inequity imposed by retroactive application must be weighed. .. . ”

I have carefully considered the reasoning of the court in applying the three factors to the situation at hand and have concluded, with all due respect to my colleagues, that the court’s treatment of the second factor was erroneous.

The Supreme Court of the United States in the Chevron Oil Company case took this second factor from Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In that case the question was whether the rule of the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, applying the exclusionary rule to the states should operate retrospectively upon cases decided prior to the Mapp case. The court reasoned that the primary purpose for the extension of the exclusionary rule to the states was to deter lawless police action. The court stated:

“. .. We cannot say that this purpose would be advanced by making the rule retrospective. Misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late . . . . ” “. .. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.”

The Ross decision was based in large measure on Lovell v. Lovell, 378 So.2d 418 (La. 1979) in which our Supreme Court declined to give retrospective application to its decision, declaring C.C. Art. 160 unconstitutional. However, the second factor to be considered under the Chevron Oil Company case as in the Linkletter case supported the conclusion that the court’s action in Lovell would not be applied retroactively.

In Lovell the question was over the constitutionality of Art. 160 considering that it provided an opportunity for alimony for divorced women but not divorced men. The obvious purpose of the Lovell rule was to afford the same rights to men as the article afforded to women. The purpose was not to take away from women the right to seek alimony. Consequently, the retrospective application of the rule that the article was unconstitutional would not in any way further the purpose of the rule. But in the instant case a different result obtains when this factor is considered.

The purpose of the rule announced in Succession of Brown, supra was to remove the unconstitutional discrimination against illegitimates imposed by C.C. Art. 919. Among the rights of legitimate children, of which acknowledged illegitimates were deprived by Art. 919, was the right to assert a claim as an heir long after a judgment of possession was rendered, C.C. Art. 1030. By refusing to apply the rule of Succession of Brown retroactively, the primary purpose of the decision, i.e., putting an end to the discrimination against acknowledged il-legitimates, is defeated. Thus, I have concluded that a consideration of. the second factor of the Chevron Oil Company case dictates the opposite conclusion than that reached by my colleagues in Succession of Ross.

I am not unmindful of the court’s legitimate concern in the Ross case that inequity might result if prior judgments of possession relying on Art. 919 were declared invalid and that such a holding might engender new litigation in each case where there had been justified reliance on the articles’ validity. However, this concern must be considered in the light of Chevron Oil Company’s third factor that the inequity imposed by retroactive application must be weighed. While concerns about stability of land titles and the inequities which might result in the relatively few cases of claims asserted by acknowledged illegitimates are properly placed on one side of the scale, and inequity resulting to such acknowledged il-legitimates by a refusal to apply the holding that Art. 919 is unconstitutional must be placed on the other side. C.C. Art. 1030 confers on legitimate heirs the faculty of accepting or renouncing a succession for at least 30 years. Since it is unconstitutional to discriminate against acknowledged ille-gitimates with respect to succession proceedings occurring after Succession of Brown, it must likewise be unconstitutional to deprive acknowledged illegitimates of the same right presently available to legitimate heirs. This tips the scale in favor of retroactivity in the application of the holding.

      . The whole court evidently accepts, as properly presented by intervention in the father’s widow’s succession, the child’s demand against her father’s widow’s heirs, as does this writer (while noting that suit to annul the judgment in the father’s succession might be preferable, although it, too, would have to be brought against the widow’s heirs).


author: REDMANN, Judge.

text:
    Mary WEAVER, divorced wife of Peter Weaver v. WINN-DIXIE OF LOUISIANA, INC.
    No. 12362.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1981.
    Rehearing Denied Dec. 18, 1981.

      Robert P. Charbonnet, Charbonnet & Charbonnet, New Orleans, for plaintiff-ap-pellee.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff, pushing a shopping cart, tripped and fell on a mat just as she entered the defendant’s store. The question is whether the evidence supports a conclusion of causative fault on the part of defendant. We conclude that it does.

The only eye-witness testified “When she [plaintiff] was falling I looked, and her foot was under the rug. . .. [H]er foot got caught under the rug.” That evidence supports an inference that the mat was not lying flat.

Defendant argues that such an inference is impermissible because elsewhere that witness indicates the rug was “flat.” Defendant emphasizes the same witness’s (1) having stricken through a typewritten statement the words “is not level” from the sentence “The rug or carpet is not level with the entryway, that is to say it is slightly elevated, and the lady ahead of me caught her foot on the edge of it and this caused her to stumble and to fall,” and (2) having written at the end of the statement “The Rug is Flat Has Rubber Base I said. She slid’s Her Foot When she Walk and that cause her to tilt the Rug and Fall.”

Notwithstanding that defendant’s inference is not an unreasonable one, we cannot substitute other reasonable inferences for a reasonable one that the trial judge adopted, Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

The trial judge’s factual inference is reasonable because that witness does testify that plaintiff caught her foot “under the rug,” and one may infer that the obviously unsophisticated witness was unsure of the meaning of the statement’s “is not level with the entryway” (defense counsel concedes that that phrase is correct in that no mat lying atop a level floor is level with the floor itself); and to say “the Rug is Flat” in that context is not the same thing as saying that the rug was lying completely flat. Furthermore, because that witness was behind plaintiff and her vision presumably partially obstructed by plaintiff, one may doubt that she could have seen every inch of the 72-inch width of the mat, and especially the portion immediately in front of plaintiff and thus in plaintiff’s path. It is thus not unreasonable for the trial judge to infer that plaintiff’s “foot got caught under the rug,” as the independent witness testified, because the mat was not lying flat— because some rise in the mat’s leading edge allowed plaintiff’s shuffling foot to go beneath the mat and caused her to trip.

As part of the general duty to keep aisles, passageways and floors in safe condition, Kavlich v. Kraemer, 315 So.2d 282, 283 (La.1975), there is a duty upon a self-service store that places mats at its entrance, owed to patrons entering with shopping carts, to have a mat that lies flat (even as many patrons and carts pass over it) so that a patron’s foot will not catch under some rise in the mat, causing him or her to fall. The fact that plaintiff “shuffled” her feet (rather, one understands, than lifting them fully clear of the floor) is no defense; a foot lifted high must return to the floor in a forward motion and could also be caught under an elevated edge of a mat. We thus conclude that plaintiff’s shuffling is not established as a cause-in-fact (a “but for”) of the accident.

A thorough analysis of a storekeeper’s duty in respect to mats is provided in Molaison v. West Bros. of Thibodaux, 338 So.2d 726, 730 (La.App. 1 Cir. 1976), whose final reasoning we find applicable: “the procedure employed ... to discover or protect against the dangerous condition which might be created by the mat was obviously inadequate since [plaintiff] was injured.”

Defendant’s argument that the mat was not proven defective does not dispute the fact that the mat was not flat, reasonably inferred from the quoted testimony (not divergent from the witness’s deposition that “shuffling .. . caused her to fall, her feet got caught on that mat”). The mat may well not have been defective but the record supports the inference that the premises were.

Affirmed.


author: PATTERSON, Chief Justice, for the Court: HAWKINS, Justice,

text:
    Malcolm Joe DAVIS v. STATE of Mississippi.
    No. 52659.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Opinion Modified On Denial of Rehearing Dec. 16, 1981.

      F. Kent Stribling, Dixon L. Pyles, Pyles & Tucker, Jackson, David R. Smith, Smith, Smith, Tate & Stuart, Poplarville, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   PATTERSON, Chief Justice, for the Court:

In the Circuit Court of Pearl River County, Malcolm Joe Davis was tried and convicted of rape and sentenced to thirty years in the Mississippi Department of Corrections. Davis appeals, assigning several errors.

1. The failure of the court to grant the defendant a speedy trial violated his constitutional rights under Amendment VI of the United States Constitution, aggravated his mental condition because the prolonged incarceration prior to his trial was unduly oppressive, maximized his anxiety and concern which accompanied the public accusation of the appellant, and greatly impaired his ability to defend himself.

2. The conduct of the trial judge amounted to an intrusion into the jury’s fact finding role because it structured the verdict of guilty; it relieved the state of establishing “beyond a reasonable doubt” the charge against the defendant in the indictment; and it shifted to the defendant the burden of persuasion of his innocence.

3. The defendant’s rights under Amendments VI and XIV of the Constitution of the United States and under MCA § 13-5-2 (1975) were violated by the failure of the state to select the special venire from a fair cross section of the population of Pearl River County.

4. The procurement, use and admission into evidence of the several involuntary confessions deprived the defendant of the essential elements of due process guaranteed by Amendment V of the United States Constitution, of the right to the effective assistance of counsel in violation of Amendment VI of the United States Constitution, and of the protection afforded by the “Mississippi Criminal Rules of Circuit Court Practice.”

5. Davis’ right to a fair trial under Amendments V, VI, and XIV of the United States Constitution were abrogated by the trial court’s actions:

(a) in refusing to grant a mistrial on the motion of the defendant when Mason Sistrunk, a witness for the state, purposely exhibited, displayed and exposed certain prejudicial objects to the jury before the objects were admitted into evidence; and, thereafter, when the state failed to offer the prejudicial objects into evidence, denying the defendant the right to cross-examine the witness and procure testimony favorable to the accused;
(b) in refusing to grant a mistrial when the assistant prosecutor was allowed over objection to argue and comment on the failure of the defendant to testify in his own behalf;
(c) in refusing to grant the motion of the defendant to dismiss and discharge him at the conclusion of the state’s case when the proof of the elements of the corpus delicti were wholly lacking, and again refusing at the conclusion of the trial to dismiss and discharge the defendant;
(d) in refusing to sustain the objections of the defendant to certain testimony of the state, and in sustaining the objections of the state to the evidence of the defendant.

6. The court abused its discretion in permitting Sheriff L. W. Holliday to serve as a bailiff and remain in the courtroom to hear the testimony of other witnesses and mingle with the other witnesses in the witness room, and in permitting him to testify over the objection of the defendant after all witnesses had been placed “under the rule” at the outset of the trial.

The prosecutrix, on the morning of March 9, 1979, was raped, after a struggle, in her home by a man wearing knee-high stockings over his head and hands. After the rape the man led the prosecutrix into the bathroom and made her take a douche. After he left, the prosecutrix went to her husband’s office and with him to the police. She identified her assailant in court as Malcolm Davis, a man who had been to her home to repair the washing machine on a previous occasion. There were witnesses who recalled seeing, just before the time of the rape, Malcolm Davis walking near the prosecutrix’ home and his truck parked in the vicinity of the home. Four knee-high stockings were found under a bridge near the prosecutrix’ house. The containers were found in Davis’ truck. A checkout girl in a local market recalled selling the stockings to Davis a few days before the rape.

Davis was taken into custody about 1:50 p. m. on March 9, 1979. Although Davis was advised of his Miranda rights, he signed a waiver of those rights and requested counsel. Deputy Sistrunk phoned Davis’ attorney and Davis conferred with him over the phone. Some interrogation was continued that afternoon, but no prejudicial or incriminating statements were obtained from Davis, although Deputy Sistrunk later testified at trial that at some time in the afternoon he encouraged Davis to cooperate. Sistrunk testified:

... If you will talk to us, we’ll cooperate with you every way we can, and I told him, I said, “Do you want a lawyer, there’s the phone. I’m not going to be hostile to you in anyway.” I have a tendency to talk boisterous to people. That’s my nature, and a lot of people take me wrong in doing that, but I’m known to be loud, and I was possibly was loud with him. I’m always loud.
... I told him it would be best. It would make it lighter on yourself. I always feel that way.

At 11:00 p. m. on the same day, Sheriff Holliday and Auxiliary Deputy McCaleb talked with Davis when he was again advised of his rights and again signed a waiver of those rights. From this questioning, the sheriff obtained two signed statements from Davis admitting the rape. Sheriff Holliday testified that Davis did not make a request to contact his attorney, explaining as follows: “Whenever I read him his rights, and he signed that waiver of rights, he told me that he had spoken to his attorney, but he was still willing to talk to me at that time.” Davis was indicted for rape on March 16,1979, and arraigned on November 15, 1979. Trial began April 10, 1980.

Although Davis assigns numerous errors in the trial court, we are of the opinion only five of these errors warrant discussion as the remaining errors are believed to be without merit.

First, Davis contends the trial court failed to grant a speedy trial, violating his sixth amendment rights. Specifically, Davis asserts undue delay from the time of indictment, March 16, 1979, to the time of arraignment, November 15,1979, and to the time of trial, April 10, 1980.

On April 3, 1980, Davis filed a motion to dismiss the indictment based on the state’s failure to bring him to trial within the 270 day time period of MCA § 99-17-1 (Supp. 1980). This motion was overruled because the delay, was the result of continuances granted.

We are of the opinion there was no untimely delay between the arraignment and trial date. MCA § 99-17-1 (Supp.1980) provides that “[u]nless 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.”

Since the time prior to arraignment is not computed to determine compliance with this statute and less than 150 days passed between the date of arraignment and the date of trial, we conclude the State adequately met the 270 day limitation as set forth in § 99-17-1. See Speagle v. State, 390 So.2d 990 (Miss.1980).

Moreover, the delay of 150 days is not unreasonable in view of the fact that the court below has two terms of criminal court each year, the March and November terms. Defendant cannot be heard to complain about the first continuance from the March 1979 to the November 1979 term because defense requested it to complete psychological tests of defendant. The State requested and was granted the continuance from the November 1979 term to the March 1980 term, so this delay was not incurred by the defendant; however, the continuance, in our opinion, was not unreasonable because the trial court found the District Attorney was required to be before the grand jury the entirety of that term and there were no assistant district attorneys to try the case at this term. Although the appellant now contends that he objected to this continuance we are unable to find any support for it in the record. We, therefore, think both continuances were necessary and reasonable and within the sound discretion of the trial judge and surely not violative of MCA § 99-17-1 (Supp.1980), which permits continuances for good cause, as here.

Turning to the eight month delay from indictment to arraignment, Davis asserts it was the custom of the trial judge not to arraign criminal defendants unless they were to be tried at the term. Again there is no evidence of this in the record. We, therefore, are of the opinion the delay did not infringe on Davis’ constitutional right to a speedy trial. We emphasize, however, the importance of early arraignment within a reasonable time. Although there is no evidence in the record to support the argument, the procedure of arraigning criminal defendants at the term set for trial, if true, has the potential to violate the defendant’s right to a speedy trial through the four prong balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 101 (1972), and adopted in Wells v. State, 288 So.2d 860, 862 (Miss.1974), namely: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”

Presently, on balance, we are unable to state there was error in not dismissing the indictment. Although there was some testimony that the appellant’s incarceration contributed to both his mental and physical deterioration, it was not conclusive upon the trial judge as he had other factors to consider in conjunction with it, such as the appellant’s physical appearance and demeanor, the testimony of the deputies and the sheriff as to the appellant’s mental and physical condition. We, therefore, are of the opinion the appellant’s right to a speedy trial was not violated.

Davis also assigns as error the admission into evidence of the two signed confessions. There are two aspects of the admission of these statements which are troublesome, whether they were voluntarily given and whether there was an intelligent waiver of counsel.

The Pearl River County deputies and the sheriff testified in the suppression hearing concerning the arrest and questioning of Davis that no threats, coercion, or promise of reward was made to him. The trial judge ruled the confessions voluntary and thus admissible. After the suppression hearing and during the case-in-ehief, Deputy Sistrunk stated on cross-examination by defense counsel that he had told Davis on the afternoon of March 9, 1979, that it would be best if he would cooperate, that it would be lighter for him. No objection to the introduction of the confession was made at that time based on the ground that, “it would make it lighter on yourself.” The point was not raised until Davis moved for a new trial after the verdict.

In Stubbs v. State, 311 So.2d 339, 342 (Miss.1975), we stated “[t]he trial court correctly held after preliminary inquiry that the confession was competent evidence and in the absence of a motion to exclude during the course of the trial, the testimony of the appellant only went to the weight and credibility of the confession.” In Stubbs, a police officer had testified at a preliminary hearing that the defendant made a voluntary confession without threat, promises, or inducement. The defendant offered no evidence to refute the voluntariness of the confession. Thus the trial court admitted the testimony concerning the statement into evidence. In the trial-in-chief the defendant testified that he had requested the presence of his attorney during the questioning in which he made the statement, and this request was denied. However, the defendant made no motion to exclude the testimony of the officer concerning the confession. This Court, finding no error in the admission of the confession at the hearing, held the defendant’s testimony applicable only to the weight and credibility of the confession. Similarly, in this case, absent a contemporaneous motion to exclude during the trial, the objection to the admission of the confession was waived.

Davis cites a recent U.S. Supreme Court case, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as determinative of error in the admission of Davis’ confessions. The Edwards case involved an oral confession of a man charged with murder. Edwards was arrested on January 19, 1976, and informed of his rights. After being told that another suspect had implicated him in the crime, Edwards indicated he wanted to “make a deal.” After speaking briefly with the county attorney Edwards requested counsel. Questioning then ceased until the next morning when two detectives came to talk with Edwards. The jail guard informed him that the detectives wished to see him, but Edwards indicated that he did not want to talk to anyone. The guard then told Edwards that “he had” to talk with the detectives and took him to meet them. After the detectives read Edwards his rights, an oral confession was obtained from him. The U.S. Supreme Court held that Edwards had not made a valid waiver of his right to counsel, stating:

. . . and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Id. at 484, 101 S.Ct. at 1884. (Emphasis added)

The circumstances in this case parallel rather closely the facts of Edwards, but with some significant differences. Both cases concern a second police-initiated interrogation, but here Davis made an express waiver of his right to remain silent while Edwards evidenced opposition to the interrogation. Moreover, in Edwards the second interrogation occurred before counsel had been made available to him. Yet here Davis’ request for counsel was immediately complied with during the afternoon interrogation. The officer telephoned Davis’ attorney and permitted him to speak with the attorney. After talking with the attorney, Davis reported to the officer that the attorney would come to the sheriff’s office that afternoon and confer with him; however, the attorney did not come to the sheriff’s office that afternoon and did not confer with Davis that date except in the telephone conversation. Some nine hours later the sheriff and a deputy talked with Davis and obtained his confession. Although this interrogation was initiated by the sheriff, Davis was advised of his rights and waived them. Davis told the sheriff he had spoken to his attorney, but he was still willing to talk to the sheriff at that time. We conclude that after Davis’ counsel failed to appear in the afternoon, he willingly waived the presence of counsel and willingly answered questions of the sheriff. Comparison of these cases reveals both access to counsel and an express willingness to talk in this case which were not present in Edwards.

In Edwards the Court emphasized that “the voluntariness of . . . an admission on the one hand, and a knowing and intelligent waiver on the other, are discreet inquiries.” Id. at 484, 101 S.Ct. at 1884. The error in the Edwards’ case, as we view it, lay in the state courts’ failure to focus on whether Edwards intelligently and knowingly relinquished his right to counsel. Here the trial court in ruling on the motion to suppress made specific findings as to both voluntariness and knowing and intelligent relinquishment of rights.

The Edwards Court stressed throughout the opinion that the Court was not abandoning prior decisions, rather reconfirming and emphasizing the importance of the Miranda safeguards surrounding an accused’s right to counsel. In considering the factual distinctions between these two cases it appears to us that Edwards is not presently controlling because the record reveals that Davis’ constitutional right to counsel was meticulously protected as required by Miranda and Edwards. We, therefore, think this assignment of error is without merit.

Davis next contends he was denied a fair and impartial trial by the failure of the State to establish the corpus delicti of the crime. The crime of rape consists of a person having carnal knowledge of a woman over the age of 12, against her will. MCA § 97-3-65 (Supp.1980). Thus, it is necessary that both aspects of the act — carnal knowledge and force — be proved by the State.

The prosecutrix testified that the defendant after pulling a pillowcase over her head “turned me over and forced me to have sexual intercourse. What I mean by sexual intercourse is he forced his penis into my vagina.” This Court has stated “that the testimony of the victim of a rape may be sufficient to support a guilty verdict where the victim’s testimony is neither contradicted nor discredited by other evidence or by surrounding circumstances.” Dubose v. Mississippi, 320 So.2d 773, 774 (Miss.1975). The testimony of the prosecutrix was corroborated by witnesses who knew Davis and saw him, as well as his truck, in the vicinity of the prosecutrix’ home at the time.

The prosecutrix also testified the sexual intercourse with Davis was against her will, stating that she struggled with him, was pushed to the floor, that she screamed, and was threatened with harm if she didn’t cooperate. Although no signs of external injury or sperm were found, the presence of either is not considered absolutely determinative of rape. “The rule is that physical force on the part of the assailant, or physical resistance on the part of the victim, is not necessary if the proof shows beyond a reasonable doubt that the female surrendered because of fear arising out of a reasonable apprehension of great bodily harm.” Fields v. State, 293 So.2d 430, 432 (Miss.1974). The testimony of the prosecu-trix evidenced a reasonable apprehension of bodily harm. The examining physician testified that his examination was complicated by the douche and by menstrual bleeding. All that was necessary for the crime was “some penetration of the female’s private parts by the sexual organ of the assailant.” Lang v. State, 230 Miss. 147, 158, 87 So.2d 265, 268 (1956). The testimony of the pros-ecutrix, corroborated by the surrounding circumstances and other evidence, was sufficient, in our opinion, to prove the corpus delicti of the crime.

The appellant also contends there was reversible error because the trial court refused to grant a mistrial when the assistant prosecutor in the closing argument was allowed to comment on the failure of the defendant to testify in his own behalf. Since defense counsel did not preserve the closing argument for the record by a bill of exceptions or otherwise, we must assume the court’s ruling in this regard correct. The trial court dictated into the record the following:

Let the record show that the Assistant Attorney was arguing the case, and in his argument of speaking of the times that the statements were made by the defendant and in reference to those statements, he made the statement that all the defendant had to do at that time was deny that he had committed the offense. Upon him stating that, the defense attorneys have now moved the Court for a mistrial. The Court finds that the statements made by the Assistant District Attorney were made in regard to 9 March, ’79, and in the early morning of 10 March, 1979, and in conjunction with the statements that were made to the Sheriff and the other witness at said time and place and were not in any manner referring to any other time, place, circumstance or situation, and for this reason, the motion be and the same is hereby overruled.

If the attorney’s statement could reasonably be construed by the jury as a comment on Davis’ failure to testify, then it would be immaterial that the attorney intended to refer to a situation other than the trial-in-chief. Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895). Without the precise words of the argument or the context in which it was made, we have difficulty in determining a reasonable construction of the statement or in determining possible prejudicial effect on the jury’s verdict. In this situation we must assume the trial court properly resolved the question as indicated by his above statements. In reaching this conclusion we note the testimony that Davis first denied his participation in the crime but later confessed, a fact which possibly evoked the comment. Nor do we have, as did the trial court, the benefit of defense counsel’s argument which might have prompted the comment of the assistant district attorney in reply. In any event we have long declined to rule on matters not preserved in the record in sufficient detail for purposes of appeal. Shelton v. Kindred, 279 So.2d 642 (Miss.1973). Thus, we conclude this contention to be without merit.

Finally the appellant contends that he was greatly prejudiced by the sheriff’s presence in the courtroom after the rule had been invoked, particularly since the sheriff was a witness in the case. While it is true that Davis objected to the sheriff’s presence after the rule had been invoked, nevertheless the sheriff was exempted by the court because he was needed in the courtroom. The judge gave the following explanation:

. . . [Djuring most of this trial, because of the other deputies being under the rule, the Sheriff has been the only law enforcement official in the Courtroom and available to the Court and has been performing his normal duties as Sheriff during the trial of this cause.

There is no suggestion by the defendant, as we view the record, that the sheriff acted with any impropriety, the only contention being that he must have heard the other witnesses testify; and therefore, we suppose, in some fashion not pointed out, either altered his testimony or by his very presence prejudiced the jury. We do not ascertain from our research of the record or from this argument that the trial judge in any way abused his discretion in permitting the sheriff to remain in the courtroom. Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). The present factual situation does not rise to the proportions of those in Dunn v. State, 264 So.2d 823 (Miss.1972), Perkins v. State, 244 So.2d 414 (Miss.1971), or Smith v. State, 251 Miss. 241, 169 So.2d 451 (1964).

We have meticulously examined the other assignments of error and find them without merit. In sum, the record reveals sufficient credible evidence to support the jury’s verdict and there being no prejudicial error in the record in our opinion, the cause is affirmed.

AFFIRMED.

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

HAWKINS, J., dissents.

HAWKINS, Justice,

dissenting:

Respectfully, I must dissent.

Mississippi Code Annotated § 13-1 — 9 (1972) requires, and this Court has held in numerous decisions, that no comment whatsoever shall be made upon the defendant’s failure to testify in a case. We have gone further and held no comment can be made which could be construed by the jury as a comment on failure by the accused to testify. Brown v. State, 340 So.2d 718 (Miss.1976); Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946); Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895).

As this Court stated in Prince v. State, 93 Miss. 263, 46 So. 537 (1908), the jury cannot avoid being keenly cognizant of the defendant’s failure to testify, and the defendant being manifestly the one person most interested in the outcome of the case, the jury can only wonder why he did not testify. To make any kind of comment that can be construed as a statement to the jury as “Well, if he was not guilty, he could have denied it,” can only result in serious prejudice to the defendant’s statutory and Constitutional rights under the Fifth Amendment to the Constitution.

The Court stated in pertinent part:

. . . The Assistant Attorney was arguing the case, and in his argument of speaking of the times that the statements were made by the defendant and in reference to those statements, he made the statement that all the defendant had to do at that time was deny that he had committed the offense.

For twelve jurors under those circumstances to restrict their thoughts solely to the defendant’s statements to the law officials, and not also instantly be alerted by this comment the defendant could have denied his guilt as a witness from the witness chair, each would first require a lobotomy. In my view, the statement by the assistant prosecutor can only be construed as a comment on the failure of the defendant to testify.

This Court has taken pains so often to warn and urge prosecuting attorneys to refrain from any comment of this nature. It is also probably true that most cases of this nature never reach this Court because the trial judges as a rule declare a mistrial on the spot. That, at least, has been the experience of the author of this dissent, as a district attorney and an observer of criminal trials over the years. In this particular record, with the proof of the guilt of the defendant so strong, it was as strange as it was unnecessary to make the comment made by the state.

The learned trial judge in this case I am sure did everything possible to prevent the unfortunate inference being impressed upon the jurors’ minds, but I think the inference inescapable and unavoidable.

I specially concur with the majority opinion relative to the confession of the defendant. Ordinarily, any statement made by a law enforcement officer to an accused, as was made in this case, that it would be better for him to cooperate and “it would be lighter for him,” would taint the admission or confession and render it totally incompetent. Citation of authority is unnecessary to this well-settled proposition of law.

In this ease, however, the revelation that such a promise had been made to the accused was first elicited from the officer during the trial by defense counsel on cross-examination. Yet, counsel made no objection, no motion to exclude the confession, and the first we learn of his taking umbrage from such disclosure was in the motion for a new trial. We can only assume defense counsel either approved or was unperturbed. To wait until the jury has returned a verdict of guilty before voicing any complaint was somewhat late, and the accused thereby clearly waived a definite right that he once had to object.


text:
    Jerry Curtis LEWIS v. Lela Earline Penton Lewis Mitchell NYBO.
    No. 53030.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Cornelius J. Ladner, Bay St. Louis, for appellant.
    Stewart, Burks & Pace, Delos H. Burks, Picayune, for appellee.
   Appeal from Chancery Court, Pearl River County; Howard L. Patterson, Jr., Chancellor.

Before BROOM, LEE and HAWKINS, JJ.

AFFIRMED.


text:
    John FORYT v. SOUTHWEST MISSISSIPPI REGIONAL MEDICAL CENTER.
    No. 52876-A.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    T. Mack Brabham, McComb, for appellant.
    Roach, McMillan, Welch & Ott, John Gordon Roach, Jr., McComb, Wise, Carter, Child & Caraway, George O. Evans and Douglas E. Levanway, Jackson, for appel-lee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

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

AFFIRMED.


text:
    William T. JACKSON and Essie M. Jackson v. Nick FITZGERALD, d/b/a Fitzgerald Water Well Service.
    No. 53134.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Keith Starrett, Magnolia, for appellants.
    Guy, Dowdy & Whittington, W. Stewart Robison, McComb, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

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

AFFIRMED.


text:
    Ernest H. BROWN and Virginia Brown v. Thomas R. COMPTON and Margaret D. Compton.
    No. 53163.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Graves, Terry & Sheely, Ben E. Sheely, Gulfport, for appellants.
    Rushing & Guice, William Lee Guice, III, Biloxi for appellees.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

AFFIRMED.


text:
    Joey M. WILLIAMS a/k/a Roberta House v. STATE of Mississippi.
    No. 53151.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Lundy & Lundy, Mitchell M. Lundy, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.

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


text:
    Ura KERR v. STATE of Mississippi.
    No. 52963.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

F. Kent Stribling, Jackson, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.

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


text:
    John R. CARLIZE v. STATE of Mississippi.
    No. 52549.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Boyd P. Atkinson, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

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

AFFIRMED.

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


author: BROOM, Justice,

text:
    Stephen GREENE v. STATE of Mississippi.
    No. 52953.
    Supreme Court of Mississippi.
    Dec. 2, 1981.

      Boerner & Underwood, William D. Boer-ner, Brookhaven, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Grand larceny is the offense for which the defendant/appellant Stephen Greene was charged and convicted in the Circuit Court of Amite County. The indictment charged that Samuel Case, Roger Case and Stephen Greene “acting in concert each with the others” stole certain copper wire, the property of Mississippi Power & Light Company (MP & L herein). Defendant Greene was sentenced to serve a term of two years in the custody of the Department of Corrections. On appeal, he argues: (1) he was wrongfully denied a continuance, (2) he should have been allowed to make challenges for cause to prospective jurors in chambers rather than in open court, (3) erroneous evidentiary rulings were made by the trial judge, (4) witness Vamado was erroneously allowed to testify as to the cost of the wire, (5) testimony of co-indictee Roger Case was erroneously allowed, (6) the evidence was insufficient, and (7) the lower court erred in overruling his objections to the state’s jury instruction. We affirm.

The following facts are established by the testimony. One of MP & L’s employees was travelling on a public highway in Am-ite County during the night of April 3,1980, and observed a pick-up truck parked by the road with a ladder up against a utility pole. This employee, Bob Duncan, notified law officers who came to the scene and found several rolls of wire together with the ladder and a blue and white Chevrolet pick-up with a Lincoln County license. The truck was owned by Samuel Case. A search was launched for the suspect, and Roger Case was taken into custody early the next morning as he walked down a highway some seven or eight miles away from the scene. Defendant/appellant Stephen Greene was found and taken into custody at approximately midnight as he walked along the highway about two miles from the scene. He was wearing jogging shoes and blue jeans — wet from the knees down. '

Roger and Samuel Case, who were jointly indicted along with the defendant Greene, pled guilty to the charge and at trial were state’s witnesses. According to the testimony of Roger, he was searching for wire along with his brother Samuel and the defendant Greene. Roger testified that the defendant helped take the wire over the fence, but later he equivocated and indicated uncertainty as to whether the defendant helped him, and stated it was so dark that he could not see the defendant. Substance of Samuel Case’s testimony was that Roger and the defendant were with him arid hunting wire on the night in question. Samuel testified he climbed the ladder and cut the wire, but he was unable to say who rolled the wire because he “was watching the electricity.”

First argument made is that the trial judge erred in refusing to grant defendant a continuance. Primarily, the motion focused upon the assertion that the state failed to timely provide the defendant with copies of jury instructions in accordance with the 24-hour prefiling rule and failed to “produce certain essential information” which the defendant had requested by prior motion. The long established rule in this jurisdiction is that trial judges have vested in them broad discretionary powers in granting or refusing to grant a continuance. Miss.Code Ann. § 99-15-29 (1972). The appeal before us does not have in it a record of proceedings or evidence presented showing prejudice to the defendant in support of the motion for continuance, and •upon such a record we are unwilling to hold that the lower court acted erroneously in denying the continuance.

The second argument of the defendant is that he was erroneously not allowed to make his challenges for cause to prospective jurors in chambers instead of in the presence of the jury in open court. The record shows that the defendant asked the trial court to allow him to make his challenges for cause in chambers and not in open court. In actuality, counsel at oral argument stated that he made no challenges for cause. In his brief, the defendant correctly notes that “this Court has no way to actually review the questions, answers or demeanor of each of said members of the jury panel pursuant to said questioning due to the fact that the voir dire examination was not taken down, much less transcribed.” Since the record does not contain the dialogue between the court and the jurors, it is impossible for us at the appellate level to ascertain whether any juror was prejudiced because of partiality and therefore erroneously allowed to remain on the jury. The burden of making a record to reflect partiality or impropriety regarding the selection of jurors rests upon the complaining litigant (defendant here). Skelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Absent any record of the proceedings that developed in the jury selection process, we are unable to say that the jurors selected were unfair or prejudiced in any respect. The defendant correctly cites Peters v. State, 314 So.2d 724, 728 (Miss.1975) where we did state that it is “a much better system for the trial court to conduct the discussion as to the jury challenges in an anteroom.” We also stated in Peters:

It is not necessary for the attorneys to call their individual names in public and to advise them that they are not wanted as jurors. It is far better for the trial Judge to announce the names of the jurors selected rather than the names of the jurors rejected. (Emphasis added.) Id. at 729.

Although, as stated in Peters, it is the better practice in criminal cases for the trial judge to hear challenges for cause in chambers rather than in open court, the record does not show that the defendant was prejudiced in any way. Accordingly, the argument made about the request to make challenges to jurors in chambers does not require reversal.

Thirdly, the defendant argues that the lower court erred in overruling his objections concerning the introduction of physical evidence. Assertion is made by the defendant that in developing its case the state failed to “establish any chain of custody, but merely asked the witness, Chief Leroy Smith, to identify the wire.” There was no error because the items complained of were never actually admitted into evidence but were merely marked for identification purposes. Likewise, there was no request (which could have been made outside the jury’s presence) that the physical evidence be removed from the courtroom.

Fourth argument made by the defendant is that the lower court erred in allowing testimony about the cost or value of the stolen wire in question. Complaint is made that a part of state witness Omar Varnado’s testimony as to the value of the wire was hearsay. When the defendant’s objection was made to the testimony, the court was considering the matter and discussing it at which time the state withdrew the question propounded, and then qualified the witness Sturgeon to testify as to the value of the wire in question. Sturgeon’s testimony established that he had sold copper wire before for as high a price as ninety cents and during the week before trial had sold wire for sixty-five cents. The following is excerpted from Sturgeon’s testimony:

Q. Were you able to ascertain the value of copper on April the 4th?
A. Yes, Sir.
Q. And what was that figure, Sir?
BY MR. BOERNER:
Objection, Your Honor.
A. Seventy-five cents a pound.
BY THE COURT:
Overrule your objection.

The substance of Varnado’s testimony was that he had sold scrap copper wire to different buyers at different times for different prices. Based upon his testimony, we think the lower court acted within its discretion in allowing him to give his estimate of value of the wire. After his testimony, there was no other testimony or cross-examination of him in impeachment or in contradiction of his testimony concerning the value of copper. His testimony was not hearsay, and we think the trial court properly allowed the testimony to go to the jury.

As to his fifth argument, the defendant asserts that the trial court erred in allowing the jury to hear the testimony of co-indictee Roger Case. Outside the jury’s presence, Roger was examined by the state and testified that the defendant was with him for the purpose of hunting wire and that the defendant helped him take the wire over a fence. On cross-examination still outside the jury’s presence, Roger testified that no one had threatened him and thereby compelled him to testify against the defendant. His testimony was that all three of the co-indictees were concerned with getting the wire. After a luncheon break and still on cross-examination Roger equivocated his testimony somewhat and stated that it was dark where the wire was taken and he could not see the defendant and that the defendant did not help him. Then the court of its own motion carefully examined Roger and elicited from him testimony that no one had intimidated him and that his purpose was simply to tell the whole complete truth. Then in the presence of the jury, Roger again testified and stated essentially the same as he had testified outside the jury’s presence except he declined to specifically testify that defendant Greene helped him. The record also shows that outside the jury’s presence on cross-examination Roger said that he had pled guilty to the charge and was given a fine of $1,000 and a one-year suspended sentence with probation. He also indicated that he had been drinking on the night of the crime and had passed out on the way to the place where the wire was taken.

The defendant correctly states the rule that testimony of a co-defendant is to be viewed with great caution and suspicion and where uncorroborated it must be reasonable, and not improbable, self-contradictory or substantially impeached. Parker v. State, 378 So.2d 662 (Miss.1980); Moody v. State, 371 So.2d 408 (Miss.1979); Jones v. State, 368 So.2d 1265 (Miss.1979); Feranda v. State, 267 So.2d 305 (Miss.1972). Although the defendant states the correct rule, at trial the record shows no request for any instruction to advise the jury that they should view Roger Case’s testimony with great caution and suspicion. Having failed to request such an instruction, he is not in a position now to obtain reversal on this basis.

Sixth argument of the defendant is his contention that he was erroneously denied his request for a directed verdict, and that the verdict was against the overwhelming weight of the evidence. Review of the testimony indicates that MP & L employee Duncan on the night of April 3, 1980, discovered a pick-up truck and an aluminum ladder against the utility pole at the scene. When he returned to the scene after notifying law officers, several rolls of MP & L wire were found on the ground. Search for the suspect thief or thieves resulted in the arrest of Roger Case walking down a highway seven or eight miles away on the next morning. The defendant was spotted and taken into custody about midnight wearing blue jeans (wet from the knees down) at a place about two miles from the scene where the wire was found. Roger Case, one of the co-indictees, testified that the three of them, including the defendant, were in Amite County hunting wire. He said they located wire and his brother Sammy Case was the one who stood on the aluminum ladder and cut the wire down. Thus Roger established that the defendant, who participated in hunting wire, was present at the scene although Roger was unable to see what the defendant was doing. Samuel Case, also a co-indictee, testified that on the night of April 3, he and the other two were out to steal wire and according to him the defendant was with them although he was not specific as to just what part in the transaction was done by the defendant.

We agree that the testimony against the defendant was not as clear and specific as it could have been had the occurrence taken place during the daytime. Nevertheless, we think the testimony was sufficient to justify the trial judge’s action in refusing to grant a directed verdict. Having heard the evidence which was presented, we think the jury had the prerogative to accept or reject the case made out by the state (the defendant did not testify) and resolve the issue adversely to the defendant. In passing upon the weight and worth of the testimony, and having heard the equivocation of the witness Roger Case, we are unable to say that the jury acted irrationally or that their verdict of guilty was not adequately supported by the evidence.

Seventh and final argument made is the contention that the trial judge erroneously overruled the defendant’s objection to the state’s instructions. The crux of the argument is that the state did not prefile its jury instructions in accordance with Miss. Uniform Crim.R. of Cir.Ct.Pract.R. 5.03 (1979) and that therefore he was denied adequate time within which to review the instructions and make objections to them. The record does show that well thought out objections were made by defense counsel to the instructions which the state presented to the court. Perusal of the record does not reveal any showing that the defendant was prejudiced or harmed by the failure of the state to prefile its instructions. There being no indication from the record as to how or in what manner the defendant was prejudiced, the trial judge’s failure to require prefiling of the instructions does not constitute reversible error. Gray v. State, 387 So.2d 101 (Miss.1980); Ferrill v. State, 267 So.2d 813 (Miss.1972).

Our conclusion is that the evidence, as the jury found, established the defendant’s guilt beyond a reasonable doubt and, no reversible error being established, affirmance is required.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Willard JOHNSON d/b/a Dotty Cab Company v. Dependents of William ROUNDTREE, Deceased.
    No. 52961.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Banks & Nichols, Isaac K. Byrd, Jr., Jackson, for appellant.
    Jim Phyfer, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Hinds County affirming a two to one decision of the Mississippi Workmen’s Compensation Commission which allowed benefits to the dependents of William Round-tree.

Roundtree was employed as a taxicab driver by Dotty Cab Co., usually .kept the cab twenty-four hours a day, and was permitted to use it for personal business. Ordinarily, Roundtree worked until three or four o’clock a. m. At approximately 11:00 o’clock p. m. on April 21, 1979 the radio dispatcher for the company instructed Roundtree to pick up a fare on Bell Street. Between one and two hours later, the police found Roundtree and another man who had been killed by gunshot wounds to their heads. The bodies of both men were found about one block away from the cab Round-tree was driving and the doors of the cab were locked. There was no evidence of robbery and the homicides have not been solved. It was not determined whether the man found dead with Roundtree was a passenger. In their investigation the police questioned a person living at the address on Bell Street where Roundtree was supposed to pick up a fare, but the person questioned knew nothing about a call for a cab.

The majority of the Commission held that Roundtree’s death was compensable under the Positional Risk Doctrine; that Round-tree was exposed to the hazard of robbery or assault because of the nature of his employment; and, that his death would not have occurred except for the fact that his employment conditions placed Roundtree in the position where he was injured by a force neither personal to him nor associated with his employment. One of the cases relied on by the Commission in reaching its opinion is Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 890, 891 (Miss.1980) in which the Court stated:

Mississippi Code Annotated section 71— 3-3(b)(1972), provides in part:
“Injury” means accidental injury . . . arising out of and in the course of employment . . . and also includes an injury caused by the wilful act of a third person directed against an employee because of his employment while so employed and working on the job. .. . [emphasis added].

The statute employs inclusive, not exclusive, language and mandates recovery for injury caused by a third party whenever it can fairly be said that the employee was injured “because of” his employment. The words “because of,” like the other broadly-construed words of causation with the act, such as “arising out of,” express the necessity of a nexus between the injury and employment. The base line is simply a rational connection of employment and injury.

We are of the opinion that claimants presented facts from which the Commission could reasonably infer that Roundtree was engaged in defendant’s business at the time of the attack, and his employment exposed him to the hazard of robbery or assault. The evidence was sufficient to show a rational connection between Roundtree’s employment and his death.

AFFIRMED.

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

      . The positional risk doctrine is stated in 1 Larson’s Workmen’s Compensation Law, Section 11.11(a) (1978) as follows: Since every jurisdiction now accepts, at the minimum, the principle that a harm is compen-sable if its risk is increased by the employment, the clearest ground of compensability in the assault category is a showing that the particular character of claimant’s job or because of the special liability to assault associated with the environment in which he must work.
      Among the particular jobs that have, for self-evident reasons, been held to subject an employee to a special risk of assault are ... those jobs that specially expose the employee to lawless or irresponsible members of the public, ... or that merely subject the employee to increased and indiscriminate contact with the public, such as the jobs of streetcar conductor, bus driver, taxi driver or hotel manager.


text:
    Johnny William TAYLOR v. STATE of Mississippi.
    No. 53019.
    Supreme Court of Mississippi.
    Dec. 2, 1981.

      William Robert Taylor, Jr., Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice, for the Court:

Johnny William Taylor was convicted in the Circuit Court of Forrest County of aggravated assault and sentenced to twenty years in the Mississippi Department of Corrections. Taylor assigns several errors in the trial court, one of which is dispositive of this appeal. We are of the opinion reversal and remand for a new trial is necessitated by the State’s failure to advise appellant of his constitutional rights prior to custodial interrogation.

At the time of the aggravated assault with which Taylor was later charged, he was an inmate in the Forrest County Regional Law Enforcement Complex. A week or so prior to the incident he had testified in a case (Ruffin) concerning alleged police brutality toward prisoners. On July 18, 1980, Taylor was embroiled in an altercation with Donnie O’Flynn and possibly others which resulted in his being placed in a holding cell within the jail.

Aware of the past accusations of police brutality, the district attorney invited the news director of a local TV station, Bob Ford; the president of the NAACP, Percy' Watson; and the county attorney to the jail so that they might hear and observe Taylor’s tirades concerning police brutality and jail conditions.

Without apprising Taylor of his constitutional rights by the giving of Miranda warnings, a meeting with him was held and videotaped. During the interview, the district attorney and the county attorney questioned Taylor about the altercation with O’Flynn. Taylor’s responses were videotaped and reproduced at trial before the jury. Prior to the trial, Taylor moved to suppress the tape, which was overruled by the trial court.

We think the responses of Taylor to the taped interview were highly prejudicial and should have been suppressed. This necessitates reversal. In Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307 (1980), the United States Supreme Court held “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” We are of the opinion this case fits squarely into the area of in-custody express questioning. Moreover, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) demands no less than strict compliance which was not accorded Taylor. Under the dictates of the Miranda and Rhode Island decisions, we must reverse and remand for a new trial.

We caution that disregard for the decisions of the United States Supreme Court can only lead to continued reversals until there is compliance with the Miranda warnings in order to safeguard to the accused his constitutional rights.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    William H. CAMPBELL & Martha K. Campbell v. Dr. Marion M. SHERMAN.
    No. 53026.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Pete Halat and Cecil G. Johnson, Biloxi, for appellants.

Bryan, Nelson, Allen, Schroeder & Back-strom, Vincent J. Castigliola, Jr., Biloxi, for appellee.

Before BROOM, BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    James L. DOWNER v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and MFC Services.
    No. 53071.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Martha Bergmark, Hattiesburg, for appellant.
    Fred J. Lotterhos, Jackson, for appellees.
   Appeal from Circuit Court, Lamar County; R. I." Prichard, III, Judge.

Before WALKER, BROOM and HAWKINS, JJ.

AFFIRMED.

BOWLING, J., took no part.


text:
    Lora Jean H. ALLGOOD v. Victor Brown ALLGOOD.
    No. 53036.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Graves, Riley, Meadows & Walker, Joseph R. Meadows, Gulfport, for appellant.
    Joe Sam Owen, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County, Jason H. Floyd, Jr., Chancellor.

Before BROOM, LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Corrine JONES v. STATE of Mississippi.
    No. 53286.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

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

AFFIRMED.


text:
    Roosevelt STEWART v. STATE of Mississippi.
    No. 53024.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Lindsey C. Meador, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

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

AFFIRMED.

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


text:
    Willie Charles CURRY v. STATE of Mississippi.
    No. 53037.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Lawyer & Hudson, Don W. Fredericks, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

AFFIRMED.

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