author: CHEHARDY, Judge.

text:
    Michael SWANSON v. The ESTATE OF Arthur AUGUSTA, Central Mutual Insurance Company, and the State of Louisiana.
    No. 12292.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Rehearing Denied Sept. 17, 1981.
    Martzell, Montero & Lamothe, John R. Martzell and Harold M. Wheelahan, III, Harry C. Graham, III, New Orleans, for plaintiff-appellee.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Jesse S. Guillot, New Orleans, for Louisiana Dept, of Transp. and Development, defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

The State of Louisiana, Department of Transportation and Development (formerly The Department of Highways), appeals a district court decision in favor of plaintiff, Michael Swanson, and against that defendant, in the sum of $510,659 together with legal interest from the date of judicial demand until paid and all costs of the proceedings. The court also found the State was negligent and therefore liable to the plaintiff for damages suffered by him as a result of the accident in which he was involved.

The plaintiff has answered the defendant’s appeal asking that the judgment of the district court be increased to $1,500,000 but that the judgment be affirmed in all other respects. In his argument, plaintiff has suggested an increase to $1,581,105.27.

In an amended judgment the district court also held that, in addition to the liability of the State, Arthur Augusta, pursuant to the stipulation of all parties, was negligent in his operation of the motorcycle in question and, therefore, the court found his estate also liable to the plaintiff for damages he suffered as a result of the accident. The court also held that, again, pursuant to the stipulation of all parties, Central Mutual Insurance Company, as liability insurer of Arthur Augusta, was liable to the plaintiff in the amount of $5,000. The judgment thereafter cast the defendants State of Louisiana and the Estate of Arthur Augusta in judgment in favor of the plaintiff, in solido, in the full sum of $510,659 together with legal interest from the date of judicial demand until paid and for all costs of the proceedings. The court further rendered judgment in favor of the plaintiff and against the defendant Central Mutual Insurance Company in the full sum of $5,000.

In his written reasons for judgment, the district court judge stated:

“Counsel for the State of Louisiana— Department of Transportation and Development relied heavily on a defense that the operator of the motorcycle was grossly negligent because he allegedly had been ‘drinking beer for several hours pri- or to the accident’. This Court might have reached the same conclusion except that the legally admissible evidence did not support such a defense to the plaintiff’s cause of action. The Court carefully considered the testimony of Mrs. Jacquelyn Lupo who happened to be travel-ling on the expressway leading to the site of the accident shortly prior to the unfortunate incident. Whereas she did state that the motorcycle changed lanes on more than one occasion she did not indicate at anytime that the operator was not in control of the motorcycle. On the contrary, she acknowledged that both the operator and the passenger (plaintiff) appeared to be ‘flirting with her’ and the she responded, although passively, to the flirtation. But she further testified that these actions (characterized as ‘clear irresponsibility’ and ‘inability to handle the motor bike’ by counsel for defendant) took place at a considerable distance from the accident site.
“In further support of the defense of intoxication, Counsel for the State attempted to have an expert testify regarding the alcohol content of the body of the operator who was found dead at the scene of the accident. This Court concluded that the witness called to testify could do so only on the basis of inadmissible evidence. But even if this Court had permitted such testimony to be elicited, after hearing other experts regarding other aspects of the case, this Court is convinced that the intoxication of the operator of the motorcycle, if he was in fact intoxicated, was not the proximate cause of the injuries suffered by the plaintiff.
“Whereas other aspects of the evidence consumed most of the time spent hearing this cause, the most important evidence in support of the plaintiff’s claim came when the Court became privy to the sketches of Trooper Netterville and the cogent testimony which led the Court to a rational reconstruction of the accident and the exact point of impact of the motorcycle and the guard-rail.
“The condition of the guard-rail at the point of impact was most compelling. It is undisputed that several feet of the permanent railing had been destroyed as a result of a prior accident. The La. Department of Highways made temporary repairs to the damaged area. It is admitted by all of the experts that guardrails, such as the one at this location, are designed to propel a vehicle back into the roadway when impacted by any vehicle leaving the roadway. However, the testimony adduced at trial shows that the repairmen at the time of making repairs to this site, installed large iron plates or beams perpendicular to the roadway. It is more probable than not (supported by expert testimony) that the plates or beams caused the motorcycle to come to a sudden stop and the bodies of the victims were propelled like trajectories almost seventy-eight feet to the ground below. This was the negligence of the Louisiana Department of Transportation and Development and this Court finds nothing in the record that relieves it of its liability to the plaintiff.
“This Court is very much concerned that the Louisiana Department of Transportation and Development has apparently failed to recognize that this portion of the highway system is fraught with danger. In this Court’s view, for example, it is inexcusable that the Department would so callously remove the barrier divider at this location because certain (extraordinarily) large tractor trailers are not able to negotiate the curved area without striking the barrier. Even if one ignores the expert testimony of Engineer Robert Lipp, there is overwhelming support for the conclusion that this accident occurred at a dangerous curve in the roadway, be it ‘highway’, ‘expressway’ or ‘approach-way’. It is admitted, even by the defendant, that this portion of the road does not meet today’s ‘highway design standards’. BUT when one ADDS another factor — i. e., the improper temporary repairs to the guard-rail ... the motorist is confronted with a condition that put the plaintiff in peril not connected with or related to the actions of the host motorcycle operator, who died in this accident.
“This Court itemizes the damages suffered by plaintiff as follows:
Medical Expenses (already accrued) $ 23,659.00
Needed Psychiatric Treatment 25,000.00
Future Bladder Surgery 2,000.00
Pain, Suffering, Inconvenience, Embarrassment, Loss of Sexual Capabilities, etc. up to time of trial 100,000.00
Loss of Income for at least thirty (30) years 90,000.00
Pain and Suffering and Physical impairment at $500.00 per month for forty-five (45) years 270,000.00
TOTAL: $510,659.00
1 — The Court places a minimum valuation on the loss of wages of plaintiff since this Court believes it is very likely that he will learn to perform meaningful work as soon as his physical and mental condition are stable.
2 — The Court notes that the life expectancy of a white male in 1978 was 69 years.”

The plaintiff was injured on the morning of April 2, 1978, at approximately 6:10, as he was riding on the back of a motorcycle driven by Arthur Augusta. Although the plaintiff remembered nothing of the accident, it was evident from the testimony of others who arrived at the scene shortly after the accident, that the motorcycle crossed lanes on the elevated portion of a loop ramp of Causeway Boulevard, going toward Jefferson Highway, where it struck either a part of the curbing or a part of the railing, projecting the driver and passenger over the side of the guardrail.

The investigating officer of the accident, Louisiana State Police Trooper Alden B. Netterville, testified he found the body of Augusta 78’/2 feet from the base of the overpass, and he determined the point of impact was where the braces or make-shift braces were on the outside guard railing.

Trooper Netterville noted that at the point of impact the temporary metal guard railing was defective, that it was “leaning out” and did nothing to restrain anyone who might be thrown against the the railing. He also stated it was darker than the rest of the railing making it more difficult to observe on approach. He added the roadway, due to a very slight mist, was a little bit slick on the morning of the accident.

Lieutenant Lynn Bertaut, Jr., another State Trooper, testified he investigated a motorcycle accident at approximately the same location as that in the present case on March 28, 1978. He said the driver of the vehicle failed to negotiate the right hand turn and also went over the guardrail, which had been previously damaged. The trooper added that there was not a permanent structure there at the time and the majority of the street lights in the area were out. He said he had also investigated other accidents involving collisions with that particular guardrail.

James R. Fister, who was accepted by the court as an expert in highway safety design, traffic engineering and accident reconstruction, referred to a manual entitled “A Policy on Geometric Design on Rural Highways,” published by the American Association of State Highway Officials, which was in effect at the time the subject highway was built, as well as the “as built” plans of the area of the highway involved in the present case, and also testified he had driven over the subject highway area. Fis-ter characterized the accident site as an “interchange” and explained that it was deficient because it was a two-way roadway rather than one way; the degree of curvature was not according to standards; the rate of superelevation and superelevation runoff was deficient; the designed pavement width was not sufficient; the vertical control, or method in which a change in elevation is obtained, was not in accordance with suggested practices; it was signed improperly; the regulatory speed was incorrect; and the warning signs were not sufficient and were confusing to the driver. He also said a later manual recommended a median barrier also be placed on such areas as the one in the present case.

Fister explained the width of the loop should have been 32 feet whereas it was only 28 feet wide, distracting from the maneuverability of the driver. He added the sharp horizontal movement of the roadway coupled with the sharp vertical movement required much more attention from the driver, and the tendency of a vehicle was to go straight rather than make the turn, much as the cycle did in the present ease. He described the situation as hazardous.

In continuance of his testimony, Fister added that the design speed of a roadway such as this one is 20.3 miles per hour but that the posted speed should be lower than the design speed. He noted that on the subject curve there was a 25-mile-per-hour posted speed limit, and the 20-mile-per-hour sign was not an actual speed limit sign.

Fister also reviewed work orders of the State stating that on February 10,1978 the guardrail was repaired and some further work, without materials, was done on February 23, 1978, but no other repairs were made prior to the April 2, 1978 accident. He characterized this as an extreme amount of delay in such a serious situation. He also said the guardrail was sticking out over the structure allowing itself to project anything that hit it off the ramp rather than being contained within.

This expert also estimated the speed of the cycle as between 33 and 39 miles per hour as it hit the guardrail, and added that, assuming that particular speed, the design characteristics were responsible for the accident because the driver was assuming the roadway continued and was not physically warned or brought into the reality of what he was going to encounter.

Fister also testified, according to accident records, that there were 13 accidents at the site in 1978, and 65 to 70 percent had crossed over the median and hit the barrier in the opposite lane, as in the present case. For 1977, the records revealed 14 accidents in approximately the same area; but six of the drivers had been drinking and six had been exceeding the speed limit. In 1976, he noted, there were eight accidents involving 15 drivers, only one of which had been drinking and only three of which had been exceeding the posted 25-mile-per-hour speed limit. Fister explicitly stated the design deficiencies of the loop and absence of a median barrier had no relationship to the condition of the driver.

Dr. Olin K. Dart, a civil engineer who works primarily in the field of highway and traffic engineering and analysis of traffic accidents, testified he had reviewed the scene of the accident, the police report and the “as built” plans of the site and said the minimum design standards in effect at the time the loop was designed were met by the facility. He also stated that although there was a roll curb in place as a lane divider on part of the loop, at points it had been broken out by traffic impacting it and had not been replaced. His opinion was that the primary cause of the accident was the excessive speed of the motorcycle, and he did not think the rail had anything to do with it.

Don L. Ivey, a civil engineer and highway safety researcher, stated the degree of curvature and superelevation of the loop met the minimum standards in effect at the time of construction and that the superele-vation runoff is better than the minimum standards. He said the design speed of 20 miles per hour was appropriate for the interchange and estimated the speed of the cycle on impact at 40 to 45 miles per hour. He felt the signing of the intersection was reasonable and his opinion was that excessive speed and reckless driving was the cause of the accident.

Geometric design engineer Patsy Miller and traffic operations engineer Boyd L. Gautreaux, employees of the Department of Transportation and Development, both felt the subject loop met design standards as of the date of its construction. Gautreaux, however, admitted that in 1971 and 1973 there were recommendations to repair the median curb barrier in the general area of this accident. He also stated that in April of 1976 a request was made by him for a study to make the structure one way, but he indicated in the report that should only be done as a last resort and other measures exhausted first to reduce the serious accidents. He said that after the subject accident he recommended the speed limit at the site be reduced to 20 miles per hour and that an overhead blinking light be installed with a 180-degree loop sign on it. He also had advised that chevrons be placed on the curve of the ramp to guide drivers around it. He did not advise a substantial barrier, however, because he felt it would take away from the width necessary to accommodate tractor-trailer vehicles.

Sharon Olman testified that both Augusta and the plaintiff entered a bar where she worked at about midnight on the evening before the accident occurred and that they drank approximately three or four beers apiece before leaving the premises at 3:15 a. m. She said that upon leaving both men appeared sober and were not driving recklessly; she added that neither ever drank mixed drinks or was a heavy drinker.

Jacqueline Lupo testified that immediately prior to the accident, the subject men on the motorcycle were proceeding ahead of her on West Metairie toward Causeway Boulevard and that she was traveling at a speed of 40 to 45 miles per hour. She said she slowed down when she reached the ramp and lost sight of the bike so that she could not say how fast the vehicle was traveling at that point or at the time of impact.

During the time she was following the motorcycle, Lupo said the driver, on occasion, switched lanes and also swerved within the lane and that the driver and passenger attempted to get her attention. She also said she did not think the cycle was being driven as carefully as it could have been.

In Breaux v. Louisiana Dept. of Highways, 347 So.2d 1290 (La.App. 1st Cir. 1977), the court said at 1293:

“It is generally accepted that ‘the Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The Department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the Department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.’ * * * ”

In regard to the question of when constructive knowledge of a dangerous condition exists, the court said in Gayle v. Department of Highways, 205 So.2d 775, 780-781 (La.App. 1st Cir. 1967):

“One is presumed to have constructive notice of a defect or dangerous condition when it is shown to have existed for such a long period of time that knowledge thereof can be presumed, or that it can be said that one ought to have had knowledge of the condition.”

This court also noted in the recent case of Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4th Cir. 1980), at 1308:

“The decision of whether a condition of a highway actually is a dangerous and hazardous one to an ordinary prudent driver is a factual one, and the court should consider physical aspects of the roadway, frequency of accidents at that place in the highway and testimony of expert witnesses in arriving at this factual determination.”

The case of Rue v. State, Department of Highways, 372 So.2d 1197, 1199 (La.1979), is also noteworthy for purposes of analysis of the present case:

“Under a simple ‘but-for’ analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s ‘substandard’ conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
“We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. * * * ”

It has also been held in U. S. F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976), at 785:

“ * * * The general rule has been recognized in our jurisprudence that a motorist using a public highway has a right to presume, and to act upon the presumption, that the highway is safe for usual and ordinary traffic, either in daytime or at night, and that he is not required to anticipate extraordinary danger, impediments, or obstructions, to which his attention has not been directed and of which he has not been warned. * * * ” '

Regarding the duty of the Highway Department in a case such as the present one, the court also said in U. S. F. & G. Co., supra, at 785:

“ * * * In the performance of this duty, the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies reasonable safety for any lawful or proper purpose. Kilpatrick v. State, 154 So.2d 439 (La.App.2d Cir. 1963). In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975).” (Emphasis ours.)

This court is also aware that in Townsend v. State, Department of Highways, 322 So.2d 139 (La.1975), the court said at 141—142:

“It is well settled that the plaintiff has the burden of proving causation by a preponderance of the evidence. It is only necessary that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962). This burden of proof may be satisfied by direct or circumstantial evidence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973); Jordan v. Travelers Insurance Company, supra; Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963). It suffices if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), on rehearing.”

In the present case this court can find no error in the district court’s determination that the State of Louisiana, Department of Transportation and Development, was responsible for the injuries of the plaintiff. In spite of some expert testimony to the contrary, and some testimony that the conduct of the driver of the motorcycle may have been somewhat substandard, we hold the plaintiff established it was more probable than not that the harm done to him was the result of a hazardous highway condition caused by improper signing of the site, deficient design (in relation to the standards in effect at the time of construction) and improper maintenance of the area (in regard to the railing and the median barrier) and that this condition, as borne out by accident statistics of the area, was hazardous to an ordinary prudent driver. We also find, due to the previous years’ accident statistics in connection with the site, as well as the testimony of Gautreaux that the State had notice of the dangerous conditions existing on the loop and, although it had sufficient opportunity, before the present accident occurred, to correct these conditions or at least warn motorists of them through sufficient signing and lowered speed limits, it failed to do so. Accordingly, we find the trial court’s holding that the State of Louisiana and the Estate of Arthur Augusta were in solido liable to the plaintiff was a proper determination.

Neither does this court find error in the district court’s refusal to admit evidence in the form of a pathology report of a urine test which was offered to determine the alcoholic content in the urine from the body of Arthur Augusta. As noted by the trial court judge, the State failed to offer the proper foundation for the admission of that report due to the fact that the witness called to introduce the document could not assure the court that proper testing procedures had been followed, that the receptacles in which the specimens were placed had not been washed out with ethyl alcohol, nor that precautions were taken to make sure the specimen, once removed, had not become contaminated. Before any such test result can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission by connecting the specimen with its source, showing that it was properly taken by an authorized person, properly labeled and preserved, properly transported for analysis, and properly tested. Pearce v. Gunter, 238 So.2d 534 (La.App.3d Cir. 1970).

This court will now address itself to the issue of quantum. In regard to the actual physical injuries of the plaintiff, Dr. Richard McCall, an orthopedist, tested that after the accident Swanson was admitted to the hospital with multiple injuries which included spinal fractures, resulting in paraplegia from the level of thoracic eight down.

Dr. McCall explained he would assume the paraplegia is permanent and that he performed surgery on the plaintiff inserting a Harrington rod in order to stabilize the fracture of the spine. He did a bony fusion of the back by use of a graft taken from the plaintiff’s right buttock. The physician said Swanson will be confined to a wheelchair, although such patients, with monumental effort, occasionally can ambulate using crutches and braces. He added that the plaintiff will be totally impaired and it will be difficult for him to support himself in an upright sitting position, requiring that he brace himself with his arms for balance.

Dr. William Brannon, a urologist, testified that although there was no major uro-logic injury per se to the plaintiff due to the accident, the injury to his spinal cord caused a paralysis of his bladder so that it does not empty nor completely retain urine. He said the injury also has caused paralysis of the rectal area and both of these conditions are permanent. He added the plaintiff must use a catheter and an external device, but recommended surgery on the urethra, which will render him totally incontinent, in order to eliminate the source of infection which previously required a hospital stay of ten days. He also stated such an injury as the plaintiff’s frequently eliminates sexual response.

Dr. James Bruce Johnson, a plastic surgeon, testified the plaintiff developed ulcers on both of his hips due to being in bed following his injury, which situation caused the breakdown of skin and tissue. He said he operated to provide a soft tissue cover over the bone, taking a piece of skin and the rectus femoris muscle, and he added the operation lasted approximately three hours. He stated the plaintiff was treated elsewhere for the other ulcer.

Dr. John C. Bowen, III, also testified that subsequent to the accident he performed surgery on the plaintiff to explore his abdomen in order to arrest suspected bleeding in that area; however, other than superficial lacerations of the liver no significant injuries were found. He stated the plaintiff also had a hemothorax, or blood in the chest, after the accident which required insertion of a chest tube.

Dr. George Guild, a psychiatrist, said on examination of the plaintiff he found he was maintaining psychic equilibrium through denial to himself of what has happened to him. He said plaintiff is suffering from severe depression, resulting from his situation and that he has a great deal of anxiety about his future. He added Swanson has lost interest in life and that if he began therapy, and his denial system broke down, there would probably evolve a very profound depression. As treatment, therefore, he recommended an in-hospital stay lasting from four months to a year or a year and a half. He said the hospital rate was approximately $150 per day and the five to six sessions of therapy required per week would cost $65 to $75 per hour.

Dr. Judy Feldman, a clinical psychologist, confirmed Dr. Guild’s diagnosis and recommendations for treatment through tests performed on the plaintiff and she also said his intelligence quotient was in the dull normal range.

Susan L. Smith, an occupational therapist and vocational evaluator, said, after testing the plaintiff, that he would have difficulty using his hands freely in any work because of his limited sitting balance which requires him to use his arms for support. She stated he would be unable to meet the physical demands of a general carpenter, the work he had been doing before the accident, and that he was not a candidate to return to a formal education program. Although she was not familiar with the job market in the New Orleans area, she noted that many paraplegics do re-enter the work field.

Seymore S. Goodman, accepted by the court as an expert in economics, testified a carpenter’s helper would earn $4 an hour and a carpenter’s apprentice would be making approximately $7 an hour at the time of trial. He estimated the plaintiff’s lost wages up until the trial date to be $12,-170.42, based on the $4 per hour figure. He also estimated, based on the plaintiff’s age and life expectancy, that his prospective earnings loss would be $399,975.85. On cross-examination he did note the plaintiff’s actual earnings for the first three months of 1978, the year of the accident, were only $777; however, he stated that December, January and February are slack months in the construction trades.

Perhaps the most convincing testimony of the pain, suffering, humiliation and incapacity the plaintiff sustains was presented in the form of a video tape of his daily activities as explained by his mother at the trial court and which also leaves no doubt that he is physically dependent on other members of his household in order to perform most of the basic, routine activities of daily life. In spite of this we feel the district court judge’s award of $370,000 to Swanson for past and future pain and suffering was not an abuse of the much discretion he is allowed in setting these damages. As to that court’s awards for medical expenses, psychiatric treatment and surgery, we also hold these amounts were in accord with the expert testimony presented on those issues. The award of $90,000 for loss of wages this court also feels is realistic in spite of the limitations the plaintiff will encounter upon re-entering the job market.

For the reasons assigned, therefore, the trial court judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    COMMUNITY ACCEPTANCE CORPORATION OF DENHAM SPRINGS, INC. v. Tommy Lee KINCHEN, et al.
    No. 14719.
    Court of Appeal of Louisiana, First Circuit.
    July 31, 1981.
    Calvin C. Fayard, Jr., Denham Springs, for plaintiff.
    Tommy Lee Kinchen, Carolyn Cobb and Michael Cobb, pro se.
    Before ELLIS, COVINGTON and LEAR, JJ.
   ON RULE TO SHOW CAUSE

ELLIS, Judge.

We issued this rule to show cause why the appeal herein should not be dismissed since it appeared from the face of the record that the appeal was not timely taken. The judgment was signed on April 20,1981, and a certified copy thereof was mailed to plaintiff’s counsel by letter dated April 22, 1981. Plaintiff filed his motion for appeal and obtained the order on May 6, 1981, more than 10 days after the date shown on the letter. To the brief filed in answer to our rule, plaintiff has attached the affidavit of the Clerk of the Denham Springs City Court to the effect that the letter of April 22 was not mailed until April 27. We accept this affidavit as a certificate of mailing, and April 27 as the date of the service of the notice of judgment under Article 4917 of the Code of Civil Procedure. Since the order of appeal was filed on the ninth day thereafter, the appeal is timely. Article 5003, Code of Civil Procedure.

The rule herein issued is therefore recalled.

RULE RECALLED.


text:
    DUB JOHNSON PAVING CONTRACTOR, INC. v. CUSTOM PIPE COATING OF LOUISIANA, INC.
    No. 14351.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1981.
    Warren L. Mengis, Baton Rouge, for plaintiff-appellee.
    Joseph W. Cole, Jr., Port Allen, for defendant-appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   On Appeal from the Eighteenth Judicial District Court, Parish of West Baton Rouge; Edward N. Engolio, Judge Presiding.

This appeal was fixed for August 21,1981 and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5 (b), this court, ex proprio motu, considers said appeal as abandoned; therefore it is ordered that the appeal of Custom Pipe Coating of Louisiana, Inc. be dismissed with prejudice.

This dismissal does not affect the answer to said appeal filed by attorney for appellee, Dub Johnson Paving Contractor, Inc. As to any issues raised in the answer, they remain viable and pending.

APPEAL OF CUSTOM PIPE COATING OF LOUISIANA, INC. DISMISSED.

RIGHTS OF DUB JOHNSON PAVING CONTRACTOR, INC. RESERVED.


author: PONDER, Judge.

text:
    SABINE PIPE AND SUPPLY COMPANY v. Shirley S. McNAMARA, Secretary, Department of Revenue and Taxation, State of Louisiana.
    No. 14599.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1981.
    D. Irvin Couvillion, Baton Rouge, for plaintiff-appellant, Sabine Pipe & Supply Co.
    Howard M. Romaine, Matt Callaway, Trial Atty., Dept, of Revenue and Taxation, State of Louisiana, Baton Rouge, for defendant-appellee Shirley S. McNamara, Secretary, Dept, of Revenue & Taxation, State of Louisiana.
    Before EDWARDS, PONDER and WATKINS, JJ.
   PONDER, Judge.

Appellant filed a pleading it calls “Motion to Dismiss.” The brief in support calls it a “Motion to Dismiss Appeal of Appellee with Respect to Penalties .... ”

Appellant sought relief in the Board of Tax Appeals from the assessment of taxes, interest and penalties. The Board affirmed the assessment of taxes and interest but “vacated and set aside” the penalties. Appellant secured a review of judgment of Board of Tax Appeals. Appellee filed an “Answer to Petition for Review of Judgment of Board of Tax Appeals” in which she denied that the “Board of Tax Appeals committed any error either of fact or law, and asserts that the judgment of the Board was in accordance with law and therefore should not be modified or reversed.”

The trial court affirmed the judgment of the Board of Tax Appeals and appellant’s appeal was lodged on May 20, 1981. Appel-lee neither appealed nor answered the appeal. Instead in a brief filed on her behalf on July 6, 1981, apparently in a change of tactics, “prays that the penalties for failure to file returns which were not imposed by the lower courts, be imposed by your Honors in accord with the explicit command of the law, .... ” There was no citation of authority or other explanation of how she can raise this question now after having taken a contrary position in the lower court and without appealing to, or answering the appeal to, this court.

Appellant’s “Motion to Dismiss” asserts that appellee is precluded from raising the question because of this failure to appeal or answer the appeal. We are inclined to agree that the question is not before us but we find inappropriate a motion to dismiss an appeal that is not an appeal. We decline to add to the confusion.

MOTION TO DISMISS DENIED.


text:
    Mary Frances FLINT, et al. v. Darby FLINT, et al.
    No. 52764.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
    Clayton Taylor Lewis, Philadelphia, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

AFFIRMED.


text:
    NULL UTILITIES, INC. v. Ralph HATHORN, Raymond Wheat, et al.
    No. 52821.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Joe Clay Hamilton, Hamilton, Williamson & Boling, Meridian, for appellant.
    Charles L. Lewis, Jr., Deramus, Lewis & Tucker, Louisville, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

AFFIRMED.


text:
    John Ralph NATIONS v. STATE, Eddie Lucas, Warden, Miss. Dept. of Corrections.
    No. 52862.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    John R. Nations, pro se.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellees.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Sentence and Fine Affirmed; there being no question of the correctness of the conviction presently before us.


author: SUGG, Justice,

text:
    Jack Robert DIAMOND v. Doris F. DIAMOND.
    No. 52833.
    Supreme Court of Mississippi.
    Sept. 2, 1981.

      Joseph R. Meadows, Graves, Riley, Meadows & Walker, Gulfport, for appellant.
    Alfred R. Koenenn, Gulfport, for appel-lee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

Appellant sued his wife for divorce in the Chancery Court of Hancock County. He alleged that the six-year old daughter of the parties was in the custody of appellee, who was a fit and suitable person to have the custody of the child, and that he was willing and able to pay $350 per month as child support. He prayed that custody of the child be awarded to appellee subject to his right to have the child visit him. Appel-lee filed an answer but did not file a cross-bill for affirmative relief. The trial court granted appellant a divorce, awarded appel-lee $1,200 per month alimony, custody of the child, together with $350 per month for child support, ordered appellant to furnish an automobile for appellee and the child during minority of the child, and to make all mortgage payments on the homestead of the parties.

On appeal, appellant contends the trial court erred by requiring him to pay alimony, to furnish an automobile to appellee and their minor child, and to make the mortgage payments on the homestead of the parties. Appellant does not question the award of support of the child and the other provisions of the final decree, so the question is whether the court erred in granting appellee affirmative relief as to the items appealed from without filing a cross-bill.

Appellee was awarded alimony pursuant to section 93-5-23 Mississippi Code Annotated (Supp.1980), which provides:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and may, if need be, require sureties for the payment of the sum so allowed. The court may af-terwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

Although the chancery court is authorized under the above statute to fix the amount of alimony as may seem equitable and just, taking into consideration the circumstances of the parties, this may be done only after the question of alimony is presented to the court by proper pleadings. In Fondren v. Batton, 348 So.2d 431 (Miss.1977), we held the chancery court was without authority to award a wife alimony in a divorce proceeding where the wife’s bill only prayed for divorce, restoration of her maiden name, and for general relief. We observed that due process required the husband to have fair notice in an appropriate pleading that alimony was being sought so that he might answer and offer evidence pertaining to the allowance of alimony.

In Scott v. Scott, 219 Miss. 614, 69 So.2d 489 (1954), we affirmed a decree denying the award of alimony because the wife did not ask for the allowance of alimony in her bill of complaint. In this case, if the wife desired to have the trial court consider the question of alimony, she should have filed a cross-bill. In Millsaps v. Pfeiffer, 44 Miss. 805 (1870), we held that a defendant cannot pray anything in an answer except to be dismissed with costs and if he desires affirmative relief, he must file a cross-bill. There are exceptions to the rule, but allowance of alimony to a defendant who does not file a cross-bill is not one of the exceptions.

The question of alimony was not presented to the court by appellee in her pleadings. Therefore, we hold the trial court erred by awarding alimony to appel-lee.

We reach a different conclusion regarding the provisions of the decree requiring appellant to furnish an automobile and to make mortgage payments because these allowances were elements of child support, and appellant injected the question of custody and support of the minor child in his original bill of complaint. This holding is not contrary to Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976) and Wansley v. Schmidt, 186 So.2d 462 (Miss.1966). In Fortenberry the husband filed suit for divorce and the wife did not file any pleadings asking for support of the minor children of the parties. The trial court ordered the husband to contribute $75 per month for the support of the children. On appeal, we reversed and stated:

It is true that the chancery court is authorized under Mississippi Code Annotated section 93-5-23 (1972) to make such order as is deemed equitable and just with respect to the support of minor children of a marriage. However, this may only be done after a full and complete hearing, after due notice of the purpose of the hearing, at which the parties have an opportunity to call witnesses in their behalf and be heard by themselves or counsel.
Praiseworthy as the chancellor’s actions were in attempting to provide for the support of these minor children, to do so without any pleading praying for same arbitrarily deprived appellant of due process. (338 So.2d at 807)

In Wansley the parties were before the court on a petition for change of custody, and the trial court increased a child support award without any pleading requesting such increase. We reversed, holding that due process required fair notice by an appropriate pleading that an increase in the amount of support was being sought so that the husband might have a reasonable opportunity to offer evidence touching both the needs of the children and his ability to pay. We distinguish Fondren and Wansley from this case because appellant placed the question of child custody and support in issue in his original bill.

Therefore, we affirm the provisions of the decree requiring appellant to furnish an automobile and to make all the mortgage payments on the homestead of the parties as a part of child support. However, we reverse the decree insofar as it requires appellant to pay alimony to appellee and modify the decree of the trial court by eliminating the allowance of alimony.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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

      . For a discussion of the exceptions to the general rule, see Griffith’s Mississippi Chancery Practice, section 376 (1st Ed. 1925).


author: HAWKINS, Justice

text:
    Joe Henry LEE v. STATE of Mississippi.
    No. 52577.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Stanley H. Hathorn, Hathorn & Hathorn, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   HAWKINS, Justice

for the Court:

Joe Henry Lee was convicted of burglary of a dwelling by the Circuit Court of Winston County, sentenced to a term of seven years in the state penitentiary with three years suspended, from which he appeals.

About 2:00 a. m. on Sunday morning, November 18, 1979, Mrs. Helen Hyde was awakened in her home when she observed the defendant (Lee) tiptoeing past her bedroom door. Her husband, E. L. Hyde, was sleeping in the country store they owned about two miles from their home. Their two teenage daughters Carol and Teresa Hyde were also sleeping in the home at the time.

Mrs. Hyde had known Lee practically all of his life. Lee and his family had worked for her husband for years, although Lee had not worked for Hyde for about a year prior to this night.

Mrs. Hyde testified she “froze,” lay on the bed for she did not know “how long,” then got out of bed, walked to the door and started screaming, “get out of here, get out of here!” She said Lee did not hurry out, but finally she heard the front door open and close.

Mrs. Hyde telephoned her husband, and when he got to their house, Mrs. Hyde discovered a $20 bill and a $1 bill missing from her purse. Carol Hyde discovered her purse had been gone through, but did not recall having had any money. Teresa Hyde discovered a $10 bill and a $1 bill missing from her purse.

The sheriff found Lee slumped over the steering wheel of his car parked alongside a road. The sheriff testified Lee was “pretty heavy drunk,” although he could walk. Lee was arrested, charged with public drunkenness and burglary, and paid a $25.00 fine for public drunkenness.

Lee, 23 years of age at the time of the trial in May, 1980, testified he started drinking about 10:00 o’clock in the morning of the previous day, a Saturday, and consumed a large amount of liquor. He had no recollection of going in the Hyde home.

Lee was employed at $5.00 per hour wages in November, 1979, and testified he had no need for money. He also testified he had eaten in the Hyde home when employed by Mr. Hyde and continued to trade at the Hyde store following November 18, 1979.

At the trial, Lee requested the following instruction:

To be found guilty of the burglary of an inhabited dwelling, the defendant must have had the specific intent to commit the act with which he is charged. Therefore, if you find that the defendant was so drunk or intoxicated at the time he went into the home of E. L. Hyde and Helen M. Hyde to the extent that he was unable to have the specific intent to commit a crime therein, and that he could not distinguish right from wrong, then you cannot find the defendant guilty of burglary in this case.

The circuit judge amended this instruction by adding the following paragraph:

However, if a Defendant, when sober, is capable of distinguishing between right and wrong, and the Defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

The court gave the instruction to the jury as amended.

The only error assigned on this appeal is the refusal of the trial court to give the instruction as initially requested by the defendant, and in giving it to the jury as amended.

In McDaniel v. State, 356 So.2d 1151 (Miss. 1978), the defendant was convicted of armed robbery while in a bizarre state of intoxication. He argued on appeal his intoxication rendered him incapable of forming any criminal intent. In a special opinion, concurred in by a majority of the Court’s members, Justice Sugg related the history of the numerous cases before this Court involving this defense, from which the Court evolved the following rule:

If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

Id. at 1161.

In Jackson v. State, 381 So.2d 1040 (Miss. 1980), the defendant was convicted of burglarizing a drug store while he was drugged. As in this case, however, his stupor did not prevent his having the mental capacity to take and remove property not his own from the building. The trial court granted the following instruction:

The Court instructs the Jury that before you may find the Defendant, Doyle Gene Jackson, guilty of Burglary, you must find beyond a reasonable doubt that he had the specific intent to commit such a crime. Therefore, if you find that the Defendant was under the influence of drugs at the time it is alleged that he broke and entered Eckerd’s Drug Store to the extent that he was unable to form the specific intent to burglarize said store, and that he could not then distinguish right from wrong, then you cannot find him guilty of Burglary.
Provided, however, if you find that the Defendant, Doyle Gene Jackson, formed the specific intent to commit the burglary in question before he came under the influence of drugs to the extent that he was unable to have the specific intent to commit the crime of burglary, if you do so find, and then voluntarily came under the influence of drugs, his use of drugs is no defense.

Id. at 1041.

Upon appeal we reiterated the rule announced in McDaniel, and held: “the court’s instruction, while not entirely free from ambiguity, phrases the relevant law more favorably to the accused than required by our decisions.” 381 So.2d at 1041.

Furthermore, in the case of Harris v. State, 386 So.2d 393 (Miss. 1980), we reaffirmed the McDaniel rule and held it was not error to refuse the appellant’s proffered instruction on voluntary intoxication. In Jackson we did not hold that the defendant was entitled to an instruction on voluntary intoxication, rather we held the instruction was more favorable to him than required by law.

The McDaniel rule prevents “submission to a jury the question of voluntary intoxication as a defense in specific intent offenses.” 356 So.2d at 1161. An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed. The rule was followed in Harris, supra.

In this case defendant was not entitled to the instruction in question, either as submitted by him, or as modified by the trial judge.

We hasten to add that voluntary intoxication is not a substitute for intent. Trial courts must remember that the purpose of the McDaniel rule is to remove voluntary intoxication as a defense, not to provide an affirmative instruction for the state which might mislead a jury into thinking that it is not necessary to prove intent, when intent is a requisite ingredient of the offense.

In this case, there was sufficient evidence for the jury to believe that the defendant intended to commit larceny while in the house because of the evidence from the occupants that their purses had been rummaged through and money was missing.

Finding no error, we affirm.

AFFIRMED.

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

      .Defendant was charged with burglary of an inhabited dwelling proscribed by section 97-17-21 Mississippi Code Annotated (1972). We commend to the bench and bar the instruction in Mississippi Model Jury Instructions (1977) § 122.09 relating to burglary of an inhabited dwelling which follows:
      The defendant,_, has been charged by an indictment with the crime of burglary by breaking and entering [name]’s dwelling house with the intent to commit some crime once inside while the dwelling house was occupied by [name], a human being.
      If you find from the evidence in this case beyond a reasonable doubt [and to the exclusion of every other reasonable hypothesis consistent with innocence] that
      1. the [building/house/apartment] was used by [name] as [his/her] dwelling, and
      2. the defendant, _, broke and entered [namej’s dwelling by [here state essential facts tending to show use of some force by defendant], and
      3. at the time the defendant entered this dwelling, [name], a human being was inside, and
      4. the defendant, _, intended, once inside the dwelling, to [state act], which is a crime under the laws of Mississippi, then you shall find the defendant guilty of burglary of an inhabited dwelling.
      If the state has failed to prove any one or more of these elements beyond a reasonable doubt [and to the exclusion of every other reasonable hypothesis consistent with innocence], then you shall find the defendant not guilty of burglary of an inhabited dwelling.


author: HAWKINS, Justice,

text:
    Robert E. COX, Former Superintendent of Madison County Board of Education; John C. Williams, Superintendent of Madison County Board of Education, et al. v. Evelyn K. THOMAS.
    No. 52798.
    Supreme Court of Mississippi.
    Sept. 2, 1981.
    Rehearing Denied Sept. 30, 1981.
    John W. Christopher, Canton, for appellants.
    Christopher A. Tabb, Canton, for appel-lee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

The County Superintendent of Education and Board of Education of the Madison County School District have appealed from a final decree of the Chancery Court of that county directing appellants, defendants in the court below, to employ the appellee, and complainant below, as school teacher in the Madison County school system. We reverse and render.

The only issue we will address on this appeal is the jurisdiction of the chancery court to hear the case as an original bill of complaint raised in that court by a general demurrer.

Mrs. Thomas was employed as a music teacher at the East Flora School attendance center of the county school system from 1974 until May, 1979.

On March 8, 1979, Robert E. Cox, Superintendent of the Madison County schools wrote her the following letter (R. 61): Dear Mrs. Thomas:

I did not recommend you for employment by the Board of Education since you had violated the policy of the Board of Education in regard to the enclosed photocopy of the previously adopted policy.
Since the statute provided that you be accorded a hearing before the Board of Education as to the reasons for not being offered employment, you are hereby notified that you may appear before the Board of Education in its next regular meeting on April 2, 1979, at 7:00 P.M. in the office of the Superintendent of Education.
If you desire to present your case before the Board of Education please notify me in order that the necessary preparations may be made.
In case you choose to ask for a hearing you have the right to be represented by counsel of your choosing and at your expense.
If you have any further questions in regard to this matter feel free to contact me at the office in person or by telephone at 859-4616 or (Jackson) 355-7412.

The policy referred to in the letter, previously adopted by the school board, and in effect at the time, is recorded on the official minutes of the Madison County Board of Education (R. 61-A):

WHEREAS the number of writs of garnishment served upon the Superintendent of Education by creditors of employees of the school system has continued to increase and has become burdensome and costly to the Madison County School District; and
WHEREAS a uniform method of dealing with such employees is considered wise;
NOW, THEREFORE, any employee who allows a writ of garnishment for more than one indebtedness to be issued by any creditor of that employee and to be served upon the Superintendent of Education will not thereafter be re-employed by this board or by any individual acting for this board unless extenuating circumstances are found to exist by this board, and the gist of such circumstances spread upon the minutes of this board.

Following receipt of this letter enclosing a copy of the board’s policy, upon oral request by Mrs. Thomas, the Board conducted a hearing April 9, 1979, through Mr. E. L. Henderson as hearing officer in the office of the county superintendent, Mr. Cox. Mr. Henderson was chairman of the school board. A court reporter took stenographic notes and transcribed the proceeding. Mrs. Thomas was represented by legal counsel prior to and during this hearing. On May 7,1979, the county board reviewed the transcript and affirmed the action of the county superintendent in not recommending Mrs. Thomas for employment. By letter dated and delivered to her on May 8, 1979, Mrs. Thomas was notified as follows (R. 46):

Dear Mrs. Thomas:
The Madison County Board of Education in regular meeting of May 7th, 1979, discussed the record of the previously held hearing and voted to concur in my original recommendation to not offer employment to you for the 1979-80 session.
Sincerely,
(signed)
Robert E. Cox, Superintendent
Madison County Schools

Mrs. Thomas did not appeal the board’s decision, electing instead to file an original bill of complaint on October 2, 1979, in the chancery court of Madison County praying for damages and an injunction reinstating her as an employee of the school system, naming as defendants the superintendent and the Madison County Board of Education as a body politic.

A general demurrer was filed by the defendants on November 12, 1979, and pursuant to court order authorizing her to do so, Mrs. Thomas filed two amended bills of complaint December 4, 1979, and March 17, 1980. Again, the defendants filed a general demurrer.

The main thrust of the general demurrer was that the court lacked original jurisdiction, no appeal having been filed from the school board’s decision on May 7,1979. The chancellor overruled the demurrer, assigning as reason therefor that the mandatory procedures of the “School Employment Procedures Law” had not been followed.

The cause then went to trial, following which the chancellor rendered his opinion that the defendants had failed to follow mandatory provisions of the “School Employment Procedures Act of 1977” (Miss.Code Ann. §§ 37-9-101, 37-9-105, 37-9-109, 37-9-111 and 37-9-113 (Supp.1980)) in the following respects:

1. Failing to afford Mrs. Thomas an opportunity to appear before the school board on her own behalf, either in person or by her attorney, prior to final decision by the board.

2. The letter of May 8, 1979, failed to give her the reasons for the decision of the board.

3. While the chancellor deemed it insignificant, he also held the letter of May 8, 1979, was deficient in not being from the board as required by statute, being instead from the superintendent.

The transcribed record of the proceedings before the hearing officer was never offered in evidence or considered by the chancellor.

The School Employment Procedures Act of 1977 substantially amended 1974 Miss. Laws Ch. 577, known as the “Public School Fair Dismissal Act” under which law this court has considered several cases. See Calhoun County Board of Education v. Hamblin, 360 So.2d 1236 (Miss.1978); Lamar County School Board v. Saul, 359 So.2d 350 (Miss.1978); Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977); McDonald v. East Jasper County School District, 351 So.2d 531 (Miss.1977).

The preamble to the present law states the intent of the Legislature is to establish “procedures for providing public school employees with notice of the reasons” for not offering a renewal contract, provide an opportunity for the employee to present matters in extenuation or exculpation to enable the school board to determine whether the recommendation of non-employment is a proper employment decision and not contrary to law, and “not to establish a system of tenure or require that all decisions of nonreemployment be based upon cause with respect to employment in the school district.”

There was a technical failure by Mrs. Thomas to comply with § 37-9-109 in that she did not make a written request for relief provided by the act following receipt of the letter of March 8, 1979. A hearing was conducted, in any event, as provided by the act.

The chancellor was correct in ruling the act requires the board to notify the employee of the reasons for its decision, and also if the matter is heard by a hearing officer to nevertheless afford the employee an opportunity to appear before the board and present a statement in her own behalf, in person or by an attorney, prior to a final decision by the board. Miss.Code Ann. § 37-9-111(4) (Supp.1980).

In this case, however, Mrs. Thomas was represented by an attorney, and these are purely procedural matters. These deficiencies could very quickly have been abated upon request by Mrs. Thomas or her attorney. Furthermore, since the record made before the hearing officer had never been considered by the chancellor, or made a part of this record, there was no way for the chancellor then or this Court now to determine as a fact whether the matter of her right to appear before the board was contained or set forth in the record made before the hearing officer.

While there may have been some procedural defects on the part of the board under the act, there was a substantial and manifestly good faith attempt by the superintendent and the school board to comply with the law. Mrs. Thomas as the aggrieved employee had a right to appeal the decision of the board under § 37-9-113 by filing a petition with the chancery clerk, and executing a $200 surety bond within twenty days following May 8,1979. This she failed to do, electing instead to file an original bill of complaint in the Chancery Court of Madison County five months later.

Under the circumstances of this case, the only jurisdiction the chancellor could have had in this case was an appellate review of the record made before the school board. Such review under § 37-9-113 is limited to determining whether the action of the school board was unlawful because: (a) not supported by any substantial evidence; (b) was arbitrary or capricious; or (c) in violation of some statutory or constitutional right of the employee. As to any procedural omission detected on such appeal, if harmless, the chancellor is obligated to grant no relief; if prejudicial, to remand the cause for a rehearing consistent with the finding of the chancellor.

It therefore follows the chancellor did not have original jurisdiction to hear this cause, and should have sustained the general demurrer of the defendants and dismissed the cause.

Reversed and judgment rendered here for appellants.

REVERSED AND RENDERED.

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


text:
    Mary Alice COOPER v. STATE (Eddie Lucas, MDC).
    No. 52838.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Jon M. Barnwell, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Circuit Court, Holmes County; Arthur B. Clark, Judge.

AFFIRMED.


text:
    Lawrence HINES v. STATE of Mississippi.
    No. 52554.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Larry F. Harold, McComb, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Walthall County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Jimmy Lee BRANCH v. STATE of Mississippi.
    No. 52962.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Jimmy Lee Branch, pro se.
    Bill Allain, Atty. Gen. by Charles W. Maris Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.


text:
    ENGLE ACOUSTIC TILE, INC. and Aetna Ins. Co. v. Lydell E. ROBERTS.
    No. 52893.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Gary K. Jones, Frank C. Horton, Daniel, Coker, Horton & Bell, Jackson, for appellant.
    Paul D. Snow, III, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.


author: PER CURIAM.

text:
    Gable HENDERSON v. STATE of Mississippi.
    No. 52804.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    W. E. McLellan, III, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   PER CURIAM.

The appellant was charged, along with his twin brother, Michael Henderson, with the armed robbery of the Save Chief, No. 6, Service Station at the intersection of Old Canton Road and Charity Church Road, in Madison County, Mississippi, which was robbed on the night of January 12, 1980. Approximately $2,500 in cash and coins was taken in the robbery.

The appellant, Gable Henderson, and his twin brother, Michael Henderson, were indicted in May, 1980, for the armed robbery by a grand jury convened by the Madison County Circuit Court.

The appellant, Gable Henderson, was granted a severance. Thereafter, his twin brother, Michael Henderson, was tried and convicted for his part in the robbery at the June 1980 Term of the Madison County Circuit Court. The appellant was tried and convicted on September 15, 16, 1980. The jury being unable to agree on his punishment, the trial judge imposed a twenty-five year sentence. His motion for a new trial was promptly overruled, and, feeling aggrieved, he prosecutes this appeal. We reverse and remand for a new trial.

The appellant assigns as error that “The lower court erred in not sustaining appellant’s motion for a mistrial requested when the State improperly attempted to impeach defense witnesses, Ricky Scott and co-in-dictee, Michael Henderson, by bringing out highly prejudicial facts about each witness under the guise of impeachment, when impeachment on the facts sought to be elicited was improper.”

The appeal presents the question of whether the lower court should have declared a mistrial when the defendant’s witness, Ricky Scott, was improperly asked on cross-examination by the district attorney whether he had been indicted for burglary. The witness had previously answered, “No,” on direct examination to the question by his attorney, “Have you ever been convicted of a felony?” Also presented is the impropriety of the district attorney inquiring, on cross-examination, of co-indictee, Michael Henderson, if the jury had convicted him for the same offense of armed robbery for which the defendant was being tried. Before an objection could be interposed, the witness answered, “Yea, because of you-”

Objections and motions for a mistrial were immediately and timely made in both instances and the errors properly preserved.

In each instance, the trial judge very properly sustained the objection but overruled the motions for a mistrial, and in lengthy statements admonished the jury to disregard the improper questions asked by the district attorney and the answers thereto.

In most cases, when an objection is made to improper questions by a district attorney and the court sustains the motion and admonishes the jury to disregard the improper questions and evidence, we have held that any prejudice created by the questions was cured and the trial court properly overruled the motion for a mistrial. Reid v. State, 266 So.2d 21 (Miss. 1972); Thomas v. State, 285 So.2d 148 (Miss. 1973). However, in the final analysis, each case must be decided on its own peculiar facts. If the only error presented in this case was that the district attorney had inquired of the defense witness, Ricky Scott, whether he had been indicted by the grand jury for the burglary of a dwelling house, we would probably hold that the court’s admonishment to the jury to disregard such statement cured any prejudice caused by the question, even though we have stated many times that similar questions by a district attorney were improper. In Haralson v. State, 314 So.2d 722 (Miss. 1975), this Court stated:

The defendant had every opportunity to discredit the witness Watkins, and the fact that the witness was charged, or thought to be guilty, of other crimes for which he had not been tried, [was] not competent evidence to further impeach the state’s witness. A witness may be examined as to his interest in the case on trial or his former convictions of crime by the authority of Mississippi Code Annotated Section 13-1-13 (1972) ... but he cannot be questioned as to mere charges of the commission of offenses.... Moreover, the witness may not be asked nor proof made of the details of an alleged crime said to have been committed by the witness sought to be impeached. (314 So.2d at 723-24).

We doubt very seriously whether there is a district attorney in the State who does not know that asking such a question is improper. At the same time, we recognize that there are times when the district attorney unwittingly and unintentionally falls into asking such questions. In most of those instances, where the jury is admonished to disregard the district attorney’s improper question, we can safely and in good conscience hold that there was no prejudice and the trial court correctly overruled defendant’s motion for a mistrial.

However, when the improper conduct is compounded by the district attorney after having heard the court’s admonishment to the jury on a prior occasion with reference to the same subject matter, the prejudicial effect on the jury is sometimes so great that we have no alternative but to reverse the conviction and sentence and remand the ease for a new trial. In this case, the district attorney, after hearing the court’s lengthy admonition to the jury to disregard his improper question with reference to Ricky Scott’s indictment for the burglary of a dwelling, he thereafter, by a question, advised the jury that the appellant’s co-in-dictee and twin brother, Michael Henderson, had been previously convicted for his participation in the same offense for which the defendant was on trial. In Griffin v. State, 293 So.2d 810 (Miss. 1974), this Court said:

The only other error assigned ... is that the state was allowed to bring out on cross-examination of James Griffin, a co-indictee, that he had been tried and convicted the preceding week and found guilty of the same murder. While this evidence was brought out by the state under the guise of showing the previous conviction of James Griffin, it was done in such a manner that the jury could not help knowing that James Griffin had been tried for the same offense the preceding week and found guilty. It was proper for the state to show that the witness James Griffin had been convicted of murder even though this conviction was on appeal.... However, it was not proper to do so in such a manner as to inform the jury that James Griffin, a co-indictee had been tried and convicted of the same offense.... (293 So.2d at 812).

See also Pieper v. State, 242 Miss. 49, 134 So.2d 157 (1961); State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); Buckley v. State, 223 So.2d 524 (Miss. 1969); McCray v. State, 293 So.2d 807 (Miss. 1974); Ivy v. State, 301 So.2d 292 (Miss. 1974).

The jury was made aware earlier in the trial that Michael Henderson was involved in the crime. But, it was only when the State’s attorney asked Michael: “And the jury convicted you, didn’t they?”, and Michael answered: “Yea, because of you ... I already had my trial,” that the jury became aware that he had been convicted of the same crime for which the appellant was being tried.

Under the circumstances, once the jury was apprised of the fact that Michael Henderson had previously been charged and convicted for his participation in the offense for which the appellant was being tried, the jury’s verdict of guilty was such a certainty as to deny the appellant a fair trial.

We are, therefore, of the opinion that the prejudicial effect upon the jury was so great that the court’s learned and lengthy admonition to the jury to disregard the improper evidence was in vain. Therefore, this cause must be reversed and remanded to the trial court for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: BROOM, Justice,

text:
    ANVIL MINERAL MINING CORPORATION v. Mack RAVENHORST.
    No. 52849.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Matthew Harper, Jr., Holifield & Harper, Laurel, for appellant.
    Robert H. McFarland, Bay Springs, Eugene C. Tullos, Raleigh, for appellee.
    Before PATTERSON, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court.

Cancellation of a contract and whether such cancellation in writing bars recovery of amounts allegedly owed prior thereto are featured in this appeal from the Circuit Court of Jasper County. Mack Ravenhorst (plaintiff) appellee, sued Anvil Mineral Mining Corporation, appellant, for sums the plaintiff claimed were due him for services he rendered as a consultant to Anvil. A $15,275 jury verdict and judgment were rendered for Ravenhorst. Anvil argues here on appeal that its requested peremptory instruction should have been granted without the case going to the jury because the contract upon which the plaintiff sued

had been cancelled and released by virtue of the execution of the instrument . . . dated May 23,1977 at the specific request of the appellee.

We find Anvil’s argument to be meritorious, and must reverse.

Plaintiff Ravenhorst was a founder and former president of Anvil which made and shipped fertilizer minerals. On account of ill health, in May 1976 he ceased his duties as president and on May 28, 1976, entered into a contract with Anvil whereby he would serve as Anvil’s consultant for five years at a fee calculated on each ton of minerals. The consultant type contract was effective as of May 1,1976, and a year later on May 17, 1977, Ravenhorst asked by way of a letter to the corporation’s president, to be released from his consultant duties under the contract because of health problems. In the letter, Ravenhorst requested that he be paid any compensation which had accrued under the contract, if the corporation decided that the agreement should be terminated. However, the letter did not contain language that the requested termination was conditioned upon payment of any accrued compensation to Ravenhorst.

On May 23, 1977, Ravenhorst and Anvil executed a one-page document headed “Cancellation and Release of Contract” as follows:

CANCELLATION AND RELEASE OF CONTRACT
WHEREAS, under date of June 28, 1976, Anvil Mineral Mining Corporation and Mack Ravenhorst entered into a contract whereby the said Mack Ravenhorst was to perform certain services as a consultant for and on behalf of Anvil Mineral Mining Corporation, a xerox copy of said contract being attached hereto and made a part hereof; and
WHEREAS, the said parties have now mutually agreed to cancel said contract in its entirety, all terms and conditions provided for therein having been performed to date:
NOW, THEREFORE, in consideration of the premises, it is hereby agreed and understood that the aforesaid contract entered into by and between the parties hereto under date of June 28,1976 be and the same is hereby canceled, released and held for naught.

Ravenhorst testified that at the signing of the release, Anvil president M. M. Kalish orally told him he would “have my money within a few days.” Testifying further, Ravenhorst stated this money was his so-called “commission” under the contract for the period January through April, 1977, but Kalish denied making such an oral promise. According to Ravenhorst, he never received the commission and therefore brought suit to obtain the money.

Ravenhorst’s son, Vernon, who was Anvil’s plant supervisor during the time in question, testified that he examined the tonnages sold by Anvil during the months of January through April 1977, multiplied it by the contract prices and determined that Anvil owed his father $15,275.52 for the four months. Vernon, who was also present at the signing of the release, testified that Kalish said Ravenhorst would “be getting a check in the mail for everything within a few days.”

Kalish stated that Anvil refused to pay Ravenhorst because Ravenhorst had worked against Anvil’s interest by helping competing companies. This he said was in violation of a non-competition clause in the contract. Ravenhorst denied working against the company’s interest, and stated he was responsible for selling approximately 5,000 tons of fertilizer for the corporation during the contract period.

DID THE WRITTEN RELEASE EXTINGUISH ANY DEBT ANVIL OWED RAVENHORST FOR SERVICES RENDERED PRIOR TO THE INSTRUMENT’S EXECUTION? Anvil’s argument here as appellant is that its former employee, plaintiff Ravenhorst, forfeited any rights under the contract when he signed the cancellation and release instrument which Anvil contends was clear and unambiguous, and that any rights Ravenhorst had under the consultant type contract ended by his execution of the document. Anvil relies upon the general rule that where a contract is rescinded by agreement while in the course of performance, any claim in respect of performance, or of what has been paid and received thereon, will ordinarily be referred to the agreement of rescission and in general no such claim can be made unless expressly or impliedly reserved in the rescission contract. 17 Am.Jur.2d Contracts § 517 (1964).

Ravenhorst argues that the “Cancellation and Release” document did not forfeit his right to sue for the commissions accrued prior to the date of the execution of the document. He says that the language of the cancellation instrument is ambiguous and subject to interpretation and therefore the issue was properly submitted to the jury for resolution. He cites Hadad v. Booth, 225 Miss. 63, 82 So.2d 639 (1955) for the general rule that it is the duty of the jury to determine the agreement of the parties when there is uncertainty in a written contract because of ambiguity or doubtfulness. Ravenhorst asserts the contract is ambiguous or silent as to accrued commissions, and therefore the trial court correctly allowed him and his son to give parol evidence as to the intent of the parties at the time of the execution of the release in order to assist the jury in making its decision.

No cases directly in point are cited by the litigants but we have decided a case having similarities, Southern Ry. Co. v. Anderson & Fuller, 158 Miss. 543, 130 So. 743 (1930). In writing our decision there, Justice Anderson stated the issue as follows:

Where the parties to a written contract subsequently agreed that the contract be cancelled and terminated, to take effect on a past date, does such agreement have the effect of extinguishing the rights and obligations arising under the cancelled contract prior to the effective date of the cancellation?

Id. at 547, 130 So. at 744.

In that case, the parties entered into a written three-year lease on June 10, 1925, for steel rails. On July 27, 1925, another lease was signed with identical provisions except that the tonnage was lowered. Each lease stated that the appellee would pay taxes on the leased property. On December 21, 1926, the parties signed a contract can-celling both leases, to take effect as of July 31, 1926. When the appellee failed to pay the taxes for the property for the year beginning October 1, 1925, the appellant brought suit. The appellee defended by claiming that the cancelling contract terminated his obligation to pay the taxes. Our opinion in Southern Ry. Co., supra, set forth the general rule that when the contract is rescinded by mutual agreement, the parties are restored to their original rights and cannot bring an action for breach. In writing the opinion, Judge Anderson was careful to note that this principle had no application where the cancelling contract expressly “or by necessary implication” preserved the rights and obligations under the original contract. The appellant argued that the final language in the cancelling contract which stated that the agreement would be effective July 31, 1926, had the effect of preserving the rights under the contract since the cancelling contract was signed December 21, 1926.

This Court agreed that the contract language had such an effect.

What did the parties mean by making the effective date of the cancelling contract July 31, 1926? It must not be treated as meaningless — mere idle, futile language. It would have been easy for the parties merely to have canceled the lease contracts, leaving the effective date as of the date of the canceling contract. If the word “cancelled” had been used, and no more, that would have been the effect. But they did not do that; they went further, and used the phrase “to take effect as of the 31st day of July, 1926.”

Id. at 548, 130 So. at 744.

The Court quoted with approval the New York decision in Roe v. Conway, 74 N.Y. 201 (1878), wherein that court stated:

The cancellation and surrender was not absolute but qualified and restricted by its terms, and the correct interpretation of the language employed is, that prior to the time named the covenants and conditions of the lease should remain in force. The taxes which remained unpaid as well as other obligations of the lessees were not affected thereby and as to these the liability of the defendants remained the same as if no such instrument had been executed. . . . The agreement that the lease was “canceled and surrendered as of the 1st of April, 1875,” did not mean that it was annihilated and destroyed absolutely but that it continued' in force as to all obligations which existed at the time named. It was a reservation of any liability which had been incurred prior to that time and not a discharge of the same.

Id. 158 Miss. at 549, 130 So. at 745.

On this basis it was concluded in Southern Ry. Co., supra, that any obligations arising prior to the effective date of the cancellation, July 31, 1926, were not extinguished.

Does the instrument before us entitled “Cancellation and Release of Contract” contain an implied or express reservation in the contract of Ravenhorst’s intent to reserve a claim for accrued commissions? A reading of the plain language of the instrument shows no express reservation of such intent; neither does it show any implied reservation of rights. Instead of showing any implied reservation of rights, the cancellation instrument before us states on its face that it is to be effective May 23, 1977, the date when the parties signed and executed the instrument. Writing for the Court in Southern Ry. Co., supra, Judge Anderson spoke to a case like the instant case when he said that no rights would be preserved if the parties cancelled their prior contract leaving the effective date as the date of the cancelling contract — he used the language “if the word ‘canceled’ had been used, and no more, that would have been the effect.” Id. at 548, 130 So. at 744.

The contract reveals that Ravenhorst did nothing either expressly or impliedly to reserve his right to the commissions. Raven-horst, according to the record, is an experienced, intelligent and successful businessman, and was not shown to be under duress or any disability when he voluntarily executed the rescission instrument. His suit charged “fraud and misrepresentation” on the part of Anvil; however, the lower court found in favor of Anvil on the fraud aspect from which Ravenhorst did not appeal. Ra-venhorst requested Anvil to release him (from their prior contract) which Anvil did in clear and unambiguous language set forth in the rescission instrument which upon this record is not subject to variation by parol evidence. Accordingly, Raven-horst cannot escape the clearly expressed terms of his own solemn act: his joinder in the rescission instrument dated May 23, 1977. In 15 Williston on Contracts § 1827 (3d ed. 1972), the following is stated concerning the rescission of bilateral contracts:

Where at the time of rescission of a bilateral contract it has been partly performed on one or both sides, the parties may agree simply tó forgo further performance and let past matters stand where they are, or they may agree not only to forgo future performance but also to make restitution by returning payments already made or paying for other performance which has been rendered.
Which of these contracts the parties in a particular case have made can depend on no rule of law, but on a determination of what the terms of their contract in fact were; and if that contract, while providing for cessation of further performance, does not provide for the return of past payments or compensation for past performance, there can be no recovery of such payments or compensation, for the burden of proving any right is on one who asserts it, nor may prior breaches of the original contract be redressed. (Emphasis added).

Having concluded that the “cancellation” instrument before us contains no express or implied reservation to commissions on the part of Ravenhorst when he signed the instrument, he forfeited or surrendered any right to recover such alleged commissions. Therefore, no jury case existed and the trial court should have granted Anvil’s requested peremptory instruction. Reversal is accordingly required.

REVERSED AND RENDERED.

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

BOWLING, J., takes no part.


author: LEE, Justice,

text:
    Willie RAGLAND v. STATE of Mississippi.
    No. 52868.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    William Sebastian Moore, Jackson, Patrick D. O’Rourke, Nashville, Tenn., for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Willie Ragland was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, for armed robbery, and was sentenced to serve twenty years in the Mississippi Department of Corrections with five years suspended, fifteen years to serve and placed on probation for five years. Ragland has appealed to this Court and contends (1) that the state failed to prove a prima facie case of robbery with a deadly weapon, (2) that the lower court erred in declining to grant a directed verdict of not guilty and (3) that the verdict of the jury is against the overwhelming weight of the evidence.

The evidence for the state indicated that at about 8:00 p. m. on May 22, 1980, seventeen-year-old David Smith was driving his father’s car in Jackson, Mississippi en route to visit a girl friend. He was unable to find her home and he stopped at a convenience store on Northside Drive and telephoned her for directions. As Smith walked back to the automobile, he saw appellant standing beside it. Appellant asked Smith to let him ride up the street, Smith declined, but appellant entered the automobile. Smith got in on the driver’s side and asked appellant to get out of the vehicle, whereupon appellant pulled a Buck knife, opened it, waved it in Smith’s face and said: “Well, don’t make me have to hurt you.” Appellant then told Smith to drive him to Rose’s on Clinton Boulevard and Smith complied with that request.

A short time later, the appellant ordered Smith to drive to Highway 49 and proceed toward Yazoo City. Smith obeyed appellant’s command and, as he drove upon Highway 49, the appellant pointed the knife at him and told Smith to give him all his money. Smith, fearing for his life, gave the appellant $4. When they reached Ya-zoo City, the appellant told Smith to drive off on a side road and head toward Belzoni, saying that Smith was lucky he didn’t kill him, beat him up or take his car. Following the instructions of appellant, Smith drove several miles down various country roads until appellant told him to stop the car and let him out. Smith stopped in a residential neighborhood somewhere in Belzoni, appellant got out of the car, gave Smith $2 for gas on his return trip to Jackson and instructed Smith on how to get back to Highway 49. Smith drove away and at about 1:30 a. m. he stopped at a convenience store in Yazoo City where he told the store manager what had happened.

The manager called the police and an officer was dispatched to the convenience store. The officer subsequently requested the assistance of the highway patrol and Sheriff Jones of Humphreys County in the search for appellant. Smith gave the officers a detailed description of appellant and took them to the place where appellant had gotten out of the car. The officers and Smith drove to a cafe near the spot; Sheriff Jones went inside to check persons for the description given by Smith and saw appellant sitting at a table with three male companions. Appellant fit the description given by Smith and the sheriff requested him to come outside, where he was arrested for armed robbery.

At trial, appellant testified that he met Smith at the convenience store on North-side Drive, paid Smith $10 to take him to (Belzoni, and bought beer for them to drink on the way. Appellant denied that he pulled a knife on Smith or robbed him, and claimed that Smith voluntarily took him to Belzoni.

In contending that the state failed to make out a prima facie case of armed robbery, that the motion for a directed verdict of not guilty should have been granted, and that the verdict of the jury was against the overwhelming weight of the evidence, the appellant argues that the only witness who testified about the facts of the crime was the victim Smith, and that the state had the duty to produce the knife with which appellant threatened Smith. Appellant overlooks the well established rule that a person may be found guilty on the uncorroborated testimony of a single witness. In Freeland v. State, 285 So.2d 895 (Miss.1973), the Court said:

Regardless of all the procedural rules argued, the testimony of a single witness may be sufficient to sustain a conviction even though there may be more than one witness testifying to the contrary. Nash v. State, 278 So.2d 779 (Miss.1973); Cochran v. State, 278 So.2d 451 (Miss.1973). In the case at bar there was the testimony of the state’s main witness, an officer named Thompson, who said he observed appellant cultivating the plants on property of St. Regis Paper Company. This was denied by the appellant. Thus a conflict was created which only the jury could resolve. It was resolved against the appellant, and we find no reversible error in the record.

(285 So.2d at 896)

In Murphree v. State, 228 So.2d 599 (Miss.1969), this Court answered the contention of appellant that a prima facie case was not made because of failure to introduce the weapon:

... The proof in this case is overwhelming that the tire tool was the lethal weapon used by appellant. The state was under no obligation to even introduce the tire tool....

(228 So.2d at 601)

Appellant also argues that the case sub judice is a circumstantial evidence case and that the state was required to prove appellant guilty to the exclusion of every other reasonable hypothesis consistent with his innocence. That contention is misplaced for the reason that the ease is based on direct testimony of Smith and not on circumstantial evidence.

The facts of this case presented a question for the jury to determine as to the guilt or innocence of the appellant and the lower court correctly refused appellant’s motion for a directed verdict of not guilty. Also, the verdict is not against the overwhelming weight of the evidence, but is supported by the evidence. Saik v. State, 387 So.2d 751 (Miss.1980), Warn v. State, 349 So.2d 1055 (Miss.1977), Redwine v. State, 149 Miss. 741, 115 So. 889 (1928).

AFFIRMED.

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


author: BOWLING, Justice,

text:
    Catherine WEEKS v. Edward W. WEEKS.
    No. 52857.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    David L. Coleman, Coleman & Phipps, Corinth, for appellant.
    John C. Ross, Jr., Smith, Downs, Ross, Trapp & Coleman, Corinth, for appellee.
    Before SMITH, BOWLING and HAWKINS, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Catherine Weeks, and appel-lee, Edward W. Weeks, were granted a divorce on the ground of irreconcilable differences under a joint bill of complaint. As required, the parties entered into a property settlement agreement. Appellant received certain items of property. The agreement further provided that “second party [appel-lee] shall have the exclusive use, possession and control of the home owned by the parties herein,” and “both parties agree that when said home is sold, the indebtedness shall be paid off and the profits left therefrom divided equally between the parties hereto.” The divorce was granted by the Chancery Court of Alcorn County on December 1, 1978.

The parties had purchased the home in question in August 1977 by using a combination of funds from the sale of a prior home and money borrowed from appellee’s father.

On May 16, 1980, appellant filed her petition requesting partition of the property under Section 11-21-3, Mississippi Code Annotated (1972). It was contended by appel-lee that appellant was not entitled to par-tite the property because of the provisions of the divorce property settlement, as set out above. The lower court decreed that appellee, under the terms of the divorce settlement, was entitled to the use, possession and control of the home owned by the parties and that this was a binding agreement that prevented appellant’s attempt to partite. Appellant appeals from the court’s decree. We affirm.

Appellant primarily relies on the cases of Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977), and Welborn v. Welborn, 386 So.2d 722 (Miss.1980). An examination of those cases reveals that the wife was granted the use and occupancy of the home of the parties being divorced and she later brought a suit for partition. It is readily seen that such a situation does not exist in the case sub judice. Appellee was granted the use and possession of the home so long as he lived therein, and he did not wish to move at the time the cause was tried in the lower court.

In the case of Weiner v. Pierce, 203 So.2d 598, 603 (Miss.1967), we expressly stated:

Although the statute gives joint owners the right to have their property partitioned, the right is not one that cannot be restricted or limited for a reasonable length of time by contract, will, or deed. It is a well settled general rule that the right of partition may be limited by the provisions of the deed under which the parties claim and that joint owners may contract that their property will not be partitioned for a reasonable length of time.

We have held that property settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration. See Stone v. Stone, 385 So.2d 610 (Miss.1980), and Bunkley & Morse’s, Amis on Divorce and Separation in Mississippi, §§ 11.03 and 16.09.

In 68 C. J. S., Partition § 44, we find the following:

The general rule is well settled that partition will not be granted at the suit of one in violation of his own agreement, since the agreement operates as an estop-pel against the right to partition. An agreement within the operation of this rule may be oral where it has been so far performed that to allow its repudiation would be tantamount to allowing the commission of a fraud, but not otherwise. The agreement not to partition may be implied as well as express; and will be readily implied and enforced if such implication proves necessary to secure a fulfillment of an agreement between the cotenants, or if the granting of partition would destroy the estate sought to be partitioned.

We are not called on to adjudicate what a reasonable time would be in a divorce settlement for the party given the full use and occupancy of the home to exercise that right. In the present case appellee is paying $174 a month toward the debt owed on the property and the balance thereon at this time is over $11,000. Appellant is presumed to have known what she was agreeing to in the separation agreement. There is no evidence contrary in the record. We, therefore, hold that appellee is entitled to retain the exclusive use, possession and control of the property without partition by appellant so long as this use and occupancy does not extend to a time that clearly could be said to be unreasonable. Obviously, the reasonableness of such occupancy would depend on the facts of each particular case. It follows that the decree of the lower court was correct and the cause should be and it is hereby affirmed.

AFFIRMED.

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