author: WALKER, Justice, ROBERTSON, Presiding Justice,

text:
    Herbert A. CORTEZ v. Donna M. BROWN.
    No. 52243.
    Supreme Court of Mississippi.
    Nov. 4, 1981.

      Bryan, Nelson, Allen, Schroeder & Cobb, James N. Compton, Harry R. Allen, Biloxi, for appellant.
    Eldon L. Bolton, Jr., Gulfport, for appel-lee.
   ON PETITION FOR REHEARING

En Banc.

WALKER, Justice,

for the Court.

The petition for rehearing in this cause is sustained, the opinion entered on a former day of this Court is withdrawn, and this opinion substituted in the place thereof.

Appellee, Donna M. Brown, on March 10, 1977, filed suit in the Circuit Court of the Second Judicial District of Harrison County, against appellant, Herbert A. Cortez, for damages allegedly suffered by her when, on April 30,1976, the Toyota, in which she was a passenger, was hit in the rear by a Ford station wagon, owned and driven by Cortez.

This cause was first tried on November 27 and 28, 1978, and resulted in a jury verdict for the plaintiff on liability, but the jury assessed her damages at $0. The motion for additur was overruled, but the motion for a-new trial was sustained.

The second trial began on May 24, 1979, and was concluded on May 25, 1979, when the jury returned their verdict: “We, the jury, find for the plaintiff and assess her damages at $0.”

On plaintiff’s motion for additur or new trial, the court granted an additur of $16,-000, or a new trial for damages only. Cortez declined to accept the additur and elected to appeal from the order granting a new trial, as authorized by Mississippi Code Annotated section 11-7-213 (1972).

Approximately three months before the rear-end collision (the basis of this suit), on February 6, 1976, the appellee, while employed by the City of Biloxi, slipped on the wet floor of the municipal building and landed on her tailbone. She suffered pain in her lower back and in her left leg. Four or five days later she consulted Dr. M. F. Longnecker, Jr., orthopedic surgeon, who admitted her to the emergency room of Howard Memorial Hospital “because I had a severe backache and I could hardly stand up.” Donna testified: “I stayed in the hospital approximately a week to ten days in traction, on heavy medication for muscle spasms in my back.” Her back pains persisted, so about the third week in April Dr. Longnecker put her back in the hospital for a myelogram, which was performed on April 21, 1976, by Dr. Richard E. Buckley, a neurosurgeon. At both trials, Dr. Buckley, by deposition, testified:

[T]he myelogram which I performed showed asymmetry at the L5-S1 area, which is the last disc space down in the low back, in that the nerve root on the right side at that level did not fill out like the nerve root on the left side filled out. I felt that this was not of clinical significance, since she had no symptoms referable to the right side. My diagnosis at that time continued to be that of acute chronic lumbosacral strain, and I so advised Dr. Longnecker.

Continuing to complain of lower back pains, Donna was readmitted to the hospital by Dr. Longnecker where, on April 30,1976, a tomogram was performed. After the completion of this intensive and complicated test, Donna’s friend, Debbie Miller, picked her up at the hospital in her Toyota, and Debbie and Donna proceeded about 8:30 that night to a musical concert at Gulfport Harbor. Traffic was heavy, and after Debbie had turned west off of 20th Avenue and had stopped behind a car which was backing out, appellant Cortez, who was going to pick up his son at the Little League ballpark and, while observing the traffic policeman directing traffic, turned right at about 8 to 10 miles per hour and ran into the rear of Debbie’s Toyota. Cortez was driving a Ford LTD station wagon. The headlights on Cortez’ ear were not broken, neither were the taillights on Debbie’s Toyota. The damage to the Toyota was stipulated to be $233.18.

There were no complaints of injury by anybody at that time. Debbie took Donna to her mother’s home and later that night Donna went with her mother and younger sister to a restaurant to celebrate her sister’s birthday. She developed a severe headache and nausea, and had to be carried to her mother’s home. Not being able to reach Dr. Longnecker that night, she called his office the next day and talked to his assistant, who suggested increasing the dosage of pain pills that she was already taking for her previous back injury at the City Hall. Donna did not go to see Dr. Long-necker again until the latter part of June, 1976, when her prescription for pain pills was exhausted.

She continued to work for the city, but gave up her night work as hostess at Mary Mahoney’s restaurant. Later, she quit her job with the city and went to work at Howard Johnson’s at an increased salary.

In her declaration filed against Cortez on May 10, 1977, she alleged that because of the rear-end collision:

[She] was thrown in and about the vehicle and suffered injuries to her head, neck, and back. That as a result of such collision, the Plaintiff herein suffered excruciating pain and mental anguish. Plaintiff further was unable to work for a period of time and suffered a loss of wages and has incurred medical expenses.
That all injuries and damages suffered by the Plaintiff were the direct and proximate result of negligence on the part of the Defendant herein, Herbert A. Cortez.

In May of 1977, another myelogram was performed. Dr. Buckley, by deposition, testified:

I didn’t see her at all until sometime in May of 1977, the latter part of May. Again, Dr. Longnecker had seen her off and on with complaints. He asked me to see her in order to assist him in surgery. He had done testing on her which to him indicated that she had mechanical instability of her low back, and she continued to complain of low back pain, and complained of pain in her right leg. He had repeated the myelogram and noted some abnormality and had asked me to see her and assist him in the surgery for the fusion, and my opinion as to whether or not we should explore the right L5-S1 at the same time as the fusion was done. We reviewed the myelogram and talked to Donna, and she did complain of low back pain and stiffness, and complained of pain in her right leg. The myelogram, which I reviewed at that time and have reviewed very recently, was indentical to the myelogram which had been performed by me in 1976; that is, there was minor asymmetry at L5-S1, with the nerve root on the right side, not filling out as compared to the left side, and I agreed with Dr. Longnecker that the L5-S1 disc should be explored in conjunction with the fusion operation, since she was complaining of radicular pain in the right leg.

Drs. Longnecker and Buckley operated on Donna on June 1,1977, removed a ruptured disc and fused the spine. Donna was in the hospital for about a month recovering from this operation. Dr. Buckley testified:

Based on the history of the accident occurring, with increased back pain, progressing and radiating pain in the right leg, my opinion would be that in all medical probability the automobile accident did contribute to the necessity of her having surgery in 1977.
Q. You think that surgery, in your opinion and in all medical probability, would that surgery have been necessary had the automobile accident not occurred?
A. I don’t know how to answer that question. Obviously the automobile accident occurred, and it did hurt her back and her pain worsened thereafter, with pain in her right leg, and in my opinion it did produce the need for surgery. She did have a pre-existing problem on that date as shown in the myelogram. (Emphasis added).

After her operation in June, 1977, Donna and her attorney continued to press her claim against the City of Biloxi for all hospital, doctors and medical expenses and for loss of wages since her fall on February 6, 1976, while working for the City of Biloxi.

On October 31, 1977, after extended negotiations with the city attorney, a settlement with the City of Biloxi was agreed to and a release executed. According to the terms of the settlement, the City of Biloxi paid all hospital, doctors and medical expenses to and including October 31, 1977, totaling $9,000. This $9,000, of course, included all hospital, doctors and medical expenses for the operation for ruptured disc on June 1,1977, and her thirty-day recovery period in the hospital. In addition, the City of Biloxi paid Donna $2,500 in cash, and agreed to pay her $500 per month for thirty-six months beginning October 1, 1977. Thus, the City of Biloxi paid approximately $30,000 to settle all of Donna’s claims against the city.

After effecting this settlement with the City of Biloxi, plaintiff Donna, amended her declaration against defendant Cortez on January 10,1978. The amended declaration recites:

COMES NOW Donna M. Brown, Plaintiff, by and through the undersigned attorney, and presents this, her Amended Declaration, amending Paragraph V and the Prayer in such Declaration to read as follows, to-wit:
V
That as a direct and proximate result of the collision hereinabove described, the Plaintiff herein was thrown in and about the vehicle and suffered serious and permanent injuries to her head, neck and back. That as a result of such collision, the Plaintiff herein suffered a back injury, requiring extensive hospitalization for removal of a ruptured disc and for fusion of the spine. That as a result of such operation, the Plaintiff herein has incurred substantial loss of wages, hospital expenses and doctor bills. That as a result of such injuries, she has suffered excruciating and mental anguish and will continue to experience pain in the future as a direct and proximate result of the accident and injuries sustained therein. That the Plaintiff herein has suffered a permanent disability of her body. That all such damages set forth hereinabove were the direct and proximate result of negligence on the part of the Defendant herein.
WHEREFORE, premises considered, your Plaintiff demands judgment of and against the Defendant in the sum and amount of $250,000.00, plus all costs of this Court.

The first trial was on November 27-28, 1978. The jury returned a verdict for the plaintiff but assessed her damages at $0. A special circuit judge entered judgment based on the jury verdict. Plaintiff filed a motion for an additur or, in the alternative, for a new trial. The court, after carefully considering the matter and hearing argument, overruled the motion for an additur but did sustain the motion for a new trial on the issue of damages only.

The second trial took place on May 24 and 25,1979. Cono A. Caranna II testified outside the presence of the jury that he was Biloxi’s City Attorney and negotiated the settlement of Donna’s claim against the City with her attorney Eldon L. Bolton, Jr. The first official notice that he had of Donna’s claim was a letter, dated August 81, 1976, from Bolton. That letter stated:

Honorable Cono A. Caranna, III
Vlahos and Caranna
Attorneys at Law
Post Office Box 36
Biloxi, Mississippi 39533
Re: Donna Brown vs. City of Biloxi
Dear Cono:
This is to notify you that I represent Donna Brown, who was involved in an accident while working in the City Hall in Biloxi.
I am sure you are aware of the case in that Donna informs me that you have spoken with her about it. She has incurred both medical expenses and loss of wages.
I would like very much for you to call me upon receipt of this letter so that we may discuss the intentions of the City in regard to settlement of any possible claims that Donna might have.

The City Attorney testified that the following medical report, dated September 7, 1977, from Dr. Longnecker was furnished him by Donna’s attorney, Eldon L. Bolton, Jr.:

Re: Donna M. Brown
Dear Mr. Bolton:
Per our conversation, the following information is submitted on Donna Brown. As you know, Donna Brown injured her back while working for the City of Biloxi several months ago, in approximately February, 1976. Following her injury we saw her in my office at which time she demonstrated positive straight leg raising and stocking numbness of the first sacral distribution of the left leg and was admitted to the hospital for observation. She underwent myelography, which was essentially normal. She was treated conservatively for several months without improvement. She has recurrent episodes of the problem related to the back and leg.
In May or June of this year a myelogra-phy was again performed and revealed nerve root compromise of the L5-S1 level on the left side, consistent with a ruptured disc. Surgery was advised and exploration by Dr. Buckley and myself revealed a ruptured disc at the L5-S1 level. Also, she had marked instability of her back. Removal of the ruptured disc was accomplished as well as nerve root foram-inotomy and lateral spine fusion to stabilize the area. Her postoperative course initially was quite good. She noted immediate relief of pain in her left leg and was discharged from the hospital approximately three weeks postoperatively.
She has been seen in my office in followup and x-rays revealed the fusion to be solidifying satisfactorily. She continues to be on limited activity and I have advised her against bending and/or lifting and driving in a car for any length of time.
In summary, it is my opinion that Ms. Brown has progressed quite satisfactorily from surgery, however, I do not feel that maximum benefits of treatment have been obtained. If her progress continues as is, we hope that she will have no serious setback in the future that would necessitate treatment. Ms. Brown will have a permanent disability as a result of the injury which, if no complications arise, should be 15% of the body as a whole. (Emphasis added)
I hope this information will be of help to you. If I can be of further service, please contact me.

The bills which the city was called on to pay, and did pay, are specifically listed in a letter from Bolton to Caranna, dated October 17, 1977, as follows:

RE: Donna M. Brown
Dear Cono:
Enclosed please find a copy of a proposed release. If the release meets with your approval, then let me know and I shall send the original to Donna for her signature.
I am enclosing copies of medical bills which I have in my file. Gulf Coast Community Hospital is due $5,902.31. Richard Buckley is due $900.00. Dr. Longnecker’s bill, a copy of which you have, totals $941.00. The First Mississippi National Bank is due $216.80. This amount is due because of the injury. The First Mississippi National Bank took over all accounts receivable from the Coastal Medical Center, and, therefore, payment of that account should be made directly to them. In addition to these bills, Dr. Longnecker is due $46.00 for previous medical services under account No. 70-24758. That amount was not included on the bill forwarded to you. In addition, Dr. Longnecker is due an additional $100.00 for the brace which Donna wore. When it became necessary to purchase the brace, Donna did not have enough money to pay for it. Dr. Longnecker advanced her the $100.00 for the brace, and, therefore, he should be reimbursed. In addition to the Community Hospital bill of $5,902.31, there is another account which shows an additional $145.00 due. That account is No. 5036132. That is for previous medical expenses arising out of the injury. To keep all this straight, Gulf Coast Community Hospital is owed $6,047.31. Dr. Longnecker is owed $1,087.00. Dr. Buckley is owed $900.00. The First Mississippi National Bank is owed $216.80. In addition, there should be one check forthcoming for Donna’s October 1st payment in the amount of $500.00. That check can be made payable to Donna M. Brown and forwarded to Charles Ponder at the First Mississippi National Bank. All subsequent $500.00 checks should be forwarded to Mr. Ponder, who will deposit same in Donna’s account. The remaining check in the amount of $2,500.00 shall be made payable to Donna M. Brown and myself, as her attorney.
In addition to the above, I have paid Dr. Longnecker $50.00 for a medical report. The medical report was furnished at your request. Donna has not reimbursed me for that and I would appreciate it if you would do so.
If the enclosed release meets with your approval, then I shall forward same immediately to Donna, and when it returns, I will exchange the release for the checks. Donna informs me that she has had some additional medical treatment. She is to forward the bills to me. I shall forward same to you when received. I do not think they amount to very much at this point.
If you have any further questions, please call me upon receipt. Donna is very anxious to have this matter resolved.

City Attorney Caranna answered questions asked by defendant Cortez’s attorney in this way:

Q Now, in the process of making this claim, did, did, uh, Mr. Bolton ever advise you or did the Plaintiff ever advise anyone you know of in the City that, uh, that she had been in an automobile accident in which she claimed her back was injured?
A No.
Q Uh, when did you first learn of that?
A I believe I learned of it from you office . . .
Q All right. In the process of the claim negotiations, was it asserted by Mr. Bolton that the City had any legal responsibility, a tort responsibility, as a result of that accident?
A That was the basis of us proceeding with this ....
A Payment of all of the, uh, medical expenses that the City has made was based on the fact that, uh, that their representation, as well as that of the attending Physician, was that it arose from the fall on the third floor of City Hall. (Emphasis added).

Other claims predating the fall at City Hall were paid by the city’s insurance carrier. One claim dated March 19,1975, where Dr. John B. O’Keefe filled out the claim form recites:

Acute Lumbosacral Strain
3-17-75 Examination of back, patient fell down steps of trailer 9 months ago. 25.00
3-17-75 X-Rays Lumbar Spine 35.00

The city was still paying doctors’ and medical expenses on July 21, 1978. The record reflects a payment of $106.14 to Donna to cover this item, among others:

Dr. Irwin, Baton Rouge, La. Lumbo-Sacral Sp Multi 55.00

Cortez’s counsel moved that the terms of the October 31, 1977, settlement with the city and the general release to the city be admitted into evidence before the jury. This motion was overruled.

In ruling on whether the terms of $30,000 settlement with the City of Biloxi and the release executed pursuant thereto to the City of Biloxi dated October 31, 1977, should be allowed in evidence, the court stated it “looks like the city was a volunteer to me,” basing his reason on the case of Clary v. Global Marine, Inc., 369 So.2d 507 (Miss. 1979).

At the completion of this second trial, which was presided over by a regular circuit judge, the jury returned the following verdict: “We, the Jury, find for the Plaintiff and assess her damages at $0.” The court entered a final judgment based on the jury verdict of May 25, 1979. Again a motion for an additur or, in the alternative, for a new trial was filed. Thereafter, the court rendered an opinion granting an additur of $16,000 or, in the alternative, a new trial for damages only in the event defendant Cortez declined to accept the additur.

I.

THE COURT ERRED IN NOT ALLOWING THE JURY TO HEAR THE TESTIMONY WITH REGARD TO THE PRIOR CLAIM AGAINST THE CITY OF BILOXI AND THE AMOUNT OF COMPENSATION RECEIVED BY THE PLAINTIFF BECAUSE OF THAT CLAIM.

II.

THE COURT ERRED IN GRANTING A NEW TRIAL ON THE ISSUE OF DAMAGES AS THE JURY VERDICT WAS RESPONSIVE TO THE EVIDENCE AS THERE WAS NO DAMAGES PROVEN BY COMPETENT MEDICAL TESTIMONY BY THE PLAINTIFF; AND FURTHER, THAT CONSIDERING THE COMPENSATION RECEIVED BY THE PLAINTIFF IN HER CLAIM AGAINST THE CITY OF BILOXI, THE JURY VERDICT WAS ADEQUATE.

In our original opinion we distinguished Clary v. Global Marine, Inc., supra, from the facts presented in this case and held that unlike Exxon in Clary, the City of Biloxi was clearly not a volunteer, nor did it gratuitously pay any part of the $30,000 settlement finally effected on October 31, 1977, and implicitly held that the court erred in not allowing the settlement and subsequent release to be admitted in evidence. We were also of the opinion that there was a lack of apportionment of injuries and damages attributable to the automobile accident as distinguished from her slip and fall at the City Hall under the holding of Dennis, et al. v. Prisock, 254 Miss. 575, 181 So.2d 125 (1965). Thus, in our opinion, the zero dollar verdict was justified and we held that the trial court had erred in granting a new trial conditioned upon Cortez accepting an additur of $16,000. We reversed and reinstated the $0. verdict.

On petition for rehearing the appellee, Donna M. Brown, strongly argues that “The majority was in error in allowing an appeal to be taken under Mississippi Code Annotated section 11-7-213 (1972) on issues other than the amount of verdict.”

We concede that the court erred in allowing the appellant to raise issues other than the “excessiveness or inadequacy of the verdict.”

It is well settled that when a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial. City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972); Biloxi Electric Company, Inc. v. Thorn, 264 So.2d 404 (Miss. 1972) and Screws v. Parker, 365 So.2d 633 (Miss. 1978).

In the Screws’ case, the Court said:

In this case the defendants seek to have us review the action of the trial court in directing a verdict against them on the issue of liability and the refusal of an instruction requested by one of them. These questions are beyond the scope of review in this appeal; therefore, we will review the evidence to determine if the trial court abused its discretion by granting a new trial on damages only. (365 So.2d at 634).

Therefore, since all questions except the sufficiency or insufficiency of the evidence to support the verdict with respect to damages is the only question that comes within the scope of review on appeal under section 11-7-213, we must look to the evidence as we find it in the record as though all of the rulings of the trial judge were correct. By the very act of appealing, under section 11-7-213, an appellant, under the facts presented here, must be willing to accept the verdict in all other respects, including the determination of liability. City of Meridian, supra. This acceptance includes all rulings of the trial court on the admissibility of evidence, rulings on instructions to the jury, motions for a directed verdict, peremptory instructions and other errors. In short, by appealing under section 11-7-213, Cortez says to this Court that for the purpose of this limited appeal, he is liable and that he accepts the evidence as admitted and other rulings of the court. He may only complain that the verdict was not against the overwhelming weight of the evidence and that the trial court erred in granting a new trial conditioned upon an additur.

This Court is equally bound to look only to the evidence admitted and must consider all rulings of the trial court as correct in determining whether the trial court erred in granting a new trial because of the inadequacy of the verdict. This is true even though there appears to be error with respect to the admission or exclusion of evidence properly objected to, because what appears to be glaring error is not so glaring or error when properly briefed. Thus, it cannot be considered by this Court.

The majority is of the opinion that there was evidence upon which the jury could base an apportionment of damages arising out of the automobile collision as opposed to the slip and fall at City Hall.

Having determined that the petition for rehearing should be granted, we must now review the record with the above rule in mind to determine whether the trial judge erred in granting a new trial, conditioned upon an additur because the jury verdict was inadequate and against the overwhelming weight of the evidence.

When the record is viewed in this light, there being no evidence before the jury from which it could justifiably find that all of her injuries and damages had been compensated for by the settlement and release executed by her to the City of Biloxi, such evidence not having been admitted in evidence, and in view of the court’s peremptory instruction to the jury to find for the plaintiff, it is readily evident that the jury wholly failed to give any consideration whatsoever to the hospital and medical expenses, which the court ruled, we think, erroneously, were voluntarily paid by the City of Biloxi. Further, in view of the court’s instruction to the jury to find for the plaintiff, it is evident that they failed to give any consideration whatsoever to the appellee’s testimony as to pain that she suffered or the doctors’ testimony that her back surgery was necessitated by the automobile collision even though she did have a preexisting back injury. We would point out, however, that when a peremptory instruction to find for a plaintiff is granted, the jury is still the judge of the weight and worth to be given evidence in response to the court’s instructions, but they must demonstrate by their verdict in some manner, such as a verdict expressed in terms of dollars and cents or an appropriate finding why they have not returned a compensatory verdict and should be so instructed.

The next question for determination is whether the trial court was manifestly wrong in conditioning the order for a new trial on the acceptance by ^Cortez of an additur of $16,000. We have carefully considered the record in this regard and are unable to say that fixing the additur at $16,000 was not supported by the evidence to the extent that he committed manifest error.

For the reasons given above, the judgment of the circuit court is affirmed, and the appellant is granted fifteen (15) days in which to signify his acceptance of the addi-tur of $16,000. Upon his failure to accept the additur within fifteen (15) days, a new trial shall be had on the question of damages only.

AFFIRMED.

PATTERSON, C. J., and LEE, BOWLING and HAWKINS, JJ., concur.

ROBERTSON and SMITH, P. JJ., and SUGG and BROOM, JJ., dissent.

ROBERTSON, Presiding Justice,

dissenting:

I respectfully dissent.

The majority opinion correctly states that when a defendant does not accept an addi-tur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial.

In Screws v. Parker, 365 So.2d 633 (Miss.1978), holding that the trial judge abused his discretion in granting a new trial on damages only unless the defendants accepted an additur of $10,650, and that the jury verdict should be reinstated, we said:

“The principal question involved is whether the trial judge abused his discretion in granting a new trial because damages were inadequate. Section 11-1-55, Mississippi Code Annotated (Supp.1975) authorizes trial courts to overrule a motion for a new trial upon condition of an additur or remittitur if the court finds the damages are excessive or inadequate for the reasons stated in the statute. The statute further provides that if the addi-tur or remittitur is not accepted, then the court may direct a new trial on damages only. The additur was not accepted by the defendants so we must determine if the court abused its discretion in granting a new trial because of inadequate damages. (Emphasis added).
“It was settled in City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972) that, on appeal under section 11-7-213, ‘The only issue that the party appealing can raise is whether the trial court abused its discretion in granting a new trial on the question of damages only.’ (Emphasis added).
“In Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972), the defendant, Biloxi Electric Co., did not accept the addi-tur, appealed, and we reinstated the jury verdict of $6,500 holding the trial court abused its discretion by granting a new trial. Plaintiff did not cross-appeal. We reversed the action of the trial court which granted plaintiff a new trial unless the defendant accepted an additur of $6,000, and stated: (Emphasis added).
“ ‘Therefore, the decisive question in this case is whether appellant has shown that the trial court manifestly abused its discretion in granting a new trial. As heretofore stated, a careful review of the evidence in this case convinces us that $6,500 was ample compensation for appellee’s injuries. It is manifest to us that the trial court abused its discretion in granting a new trial.’ (264 So.2d at 406). (Emphasis added).
“In Dorris v. Carr, 330 So.2d 872 (Miss. 1976), plaintiff, Carr, obtained a judgment for $4,500 against the defendant, Dorris. The trial court granted plaintiff a new trial unless the defendant agreed to an additur of $3,000. Defendant appealed, and we affirmed the action of the trial court in granting a new trial for the inadequacy of damages holding the trial court did not abuse its discretion in granting plaintiff a new trial based on the inadequacy of the damages awarded by the jury. After determining that the trial court properly granted plaintiff a new trial because of inadequate damages, the amount of the additur was then considered. A majority of the court was of the opinion that the amount fixed by the trial judge was proper and justified by the evidence. We provided for an addi-tur on the same amount fixed by the trial court. (Emphasis added).
“From the foregoing it is clear that, when a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial.” 365 So.2d at 634 (Emphasis added).

In the case at bar, the majority opinion rules that all we can consider is the evidence before the jury and the scope of our review is limited to whether the verdict of the jury was against the overwhelming weight of the evidence. The majority opinion goes on to hold that even though the trial court was wrong in its reasoning, that the City of Biloxi was a volunteer in making a $30,000 settlement with the plaintiff IV2 years after the April 30, 1976, accident with Cortez, that this Court cannot consider the evidence before the trial court, nor its reasons for granting an additur, or in lieu thereof a new trial.

If this Court cannot review before the trial court and its reasons for granting a new trial, then pray tell how this Court can determine whether the trial court abused its discretion in granting a new trial.

Instead of bringing an end to litigation, we are prolonging it and thus defeating the intent and purpose of both Sections 11-1-55 (the additur-remittitur statute) and 11-7-213 (the appeal statute on the excessiveness or inadequacy of damages assessed).

We can’t fault the Legislature because both Sections 11-1-55 and 11-7-213 have beneficent purposes and are good law. The responsibility is ours alone and our mistaken and tortuous interpretation of Section 11-7-213 is to blame. Under our interpretation of Section 11-7-213, any appeal under it becomes an exercise in futility. Again I ask: How else can this Court determine whether the trial court abused its discretion in granting a new trial unless we can consider the evidence before the trial court and its reasoning in applying the law to the facts?

In ruling on whether the terms of the $30,000 settlement with the City of Biloxi and the release dated October 31,1977, executed by plaintiff to the City of Biloxi should be allowed in evidence, the court stated it “looks like the city was a volunteer to me,” under Clary v. Global Marine, Inc., 369 So.2d 507 (Miss.1979). Clary is clearly distinguishable. Clary was Exxon’s drilling superintendent on an off-shore drilling rig owned and operated by Global Marine, Inc. for Exxon. It was his responsibility to see that Exxon’s policies were followed. On October 28, 1974, he was standing on the drill floor in conversation with Moore, who worked for Global Marine, when an employee for Global Marine actuated a mechanism which pulled taut a nearby cable lying slack across the drill floor. The cable caught Clary from behind and pitched him into the air. In falling, he was seriously injured.

Clary sued Global Marine. It was undisputed that Clary’s employer, Exxon, had voluntarily paid Clary “his regular pay as well as reimbursement for any out-of-pocket travel and medical expenses plus doctors’ and hospital bills.”

In Clary, this Court said:

“We think the chancellor should have applied the ‘collateral source’ rule and awarded Clary a sum to cover these items even though Exxon had paid them. Under this rule:
‘... courts generally have held that benefits received by the plaintiff from a source wholly independent of and collateral to a wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. This is known as the “collateral source” rule. Thus, as a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account when computing damages. (22 Am.Jur.2d Damages § 206 (1965).’ ” (Emphasis added).

369 So.2d at 509.

Unlike Exxon in Clary, the city of Biloxi was clearly not a volunteer, nor did it gratuitously pay any part of the $30,000 settlement finally effected on October 31, 1977.

This settlement with the city was effected after extended negotiations between plaintiff’s counsel and the city attorney, under threat of a lawsuit to enforce Donna’s claims against her former employer. The compromise settlement was finally effected on October 31, 1977, because the plaintiff, her attorney and her attending physician, Dr. Longnecker, represented to the city that all of her injuries, including the operation on her back, resulted solely “from the fall on the third floor of city hall”, on February 6, 1976.

In the case at bar, the trial court based its action in granting a new trial on the false premise that the City of Biloxi was a volunteer. The detailed testimony of the City attorney, the general release, and the itemized $30,000 settlement (all before the trial court) proved beyond peradventure that the City of Biloxi was not a volunteer, did not settle willingly and finally settled only to avoid a threatened law suit. The majority finds that the trial court ruled erroneously that the City of Biloxi was a volunteer. Yet the majority say that this Court cannot consider the fact that the very foundation and sole reason for granting an additur or new trial was wrong.

The only time there can be double recovery of medical, hospital and doctor’s expenses and wages is where such expenses were first paid by a volunteer. Yet the trial court found on the mistaken premise that the City of Biloxi voluntarily paid $9,000 medical and hospital expenses and $18,000 lost wages that the jury was mistaken in not again awarding these damages to the plaintiff.

Since the trial court was in error in finding that the City of Biloxi voluntarily paid all of Donna’s expenses, it follows that the court was in error in not letting in for the jury’s consideration the City Attorney’s testimony, the itemized settlement, the general release and all details of the negotiated settlement with the City.

After two extended trials, 1222 pages of testimony and exhibits filling 9 volumes, we have now traveled full circle and are back where we began.

In the first trial on November 27 and 28, 1978, testimony of the $30,000 settlement with the City was admitted into evidence. The jury, after considering all the evidence, returned a verdict for the plaintiff but assessed her damages at $0. A new trial was granted. The new trial was held by another judge before another jury on May 24 and 25, 1979. The evidence of the settlement with the City was not admitted before the jury this time, yet this new jury returned a verdict for the plaintiff but assessed her damages at $0. Now this third time around, this Court says that the City not being a volunteer, the evidence of the settlement with the City of Biloxi should be admitted before the jury.

We have said times without number that the jury is the trier of facts. They can accept or reject all or any part of any witness’s testimony.

In the case at bar, the jury had before it strong evidence that the impact between Cortez’s car and the Miller Toyota was slight. Neither the headlights on Cortez’s car nor the taillights on Debbie Miller’s car were broken, the complete damages to Debbie Miller’s Toyota were $233.18, and Cortez’s auto was traveling six to eight miles an hour when the impact occurred. Donna herself testified that the impact was akin to the ups and downs of a roller coaster ride.

The jury also had before it Dr. Longnecker’s testimony (by deposition) that all of his charges had been paid by the City of Biloxi. The jury also had before it Dr. Longnecker’s letter of August 25,1977, to Mr. Bolton, plaintiff’s attorney. This letter started with this language:

“As you know, Donna Brown injured her back while working for the city of Biloxi, several months ago, approximately February of 1976.”

This letter traced in detail Donna’s symptoms, his treatments, the operation for ruptured disc in May or June, 1977. The automobile accident of April 30, 1976, was not mentioned in Dr. Longnecker’s letter. Everything was attributed by Dr. Long-necker to the February 6, 1976, fall at the City Hall.

In his September 7, 1977, letter to plaintiff’s attorney, Dr. Longnecker again gave a detailed report of Donna’s back troubles, his treatment of her, her surgery and recovery. Again no mention was made of the Cortez April 30, 1976, slight rear-end accident. Again, all symptoms, injuries, operation, etc. were attributed by Dr. Longnecker to her fall at City Hall “in approximately February, 1976”.

A letter from Dr. Longnecker to Mr. Bolton, plaintiff’s attorney, dated October 8, 1976 (5 months after the Cortez accident) never mentions the Cortez incident and attributes all injuries to the February, 1976, fall at City Hall.

Dr. Richard E. Buckley, neurosurgeon, who performed a myelogram on April 21, 1976, at Dr. Longnecker’s request, and who reviewed a later miyelogram performed in May, 1977, on Donna, testified (by deposition) as to the two myelograms:

“The myelogram, which I reviewed at that time and have reviewed very recently, was identical to the myelogram which had been performed by me in 1976; that is, there was minor asymmetry at L5-S1, with the nerve root on the right side not filling out as compared to the left side, and I agreed with Dr. Longnecker that the L5-S1 disc should be explored in conjunction with the fusion operation, since she was complaining of radicular pain in the right leg.” (Emphasis added).

The first myelogram (April 21, 1976) was performed after the fall at city hall (February 6, 1976), but was performed 9 days before the Cortez incident (April 30, 1976). The second myelogram was performed in May, 1977, over a year after the Cortez incident, yet Dr. Buckley found them identical. Dr. Buckley was not informed of the automobile accident of April 30, 1976, until after surgery on Donna in June, 1977. Dr. Buckley further testified:

“Q You think that surgery, in your opinion and in all medical probability, would that surgery have been necessary had the automobile accident not occurred?
“A I don’t know how to answer that question. Obviously the automobile accident occurred, and it did hurt her back and her pain worsened thereafter, with pain in her right leg, and in my opinion it did produce the need for surgery. She did have a pre-existing problem on that disc as shown in the myelogram.
“Q Let me rephrase my question to this extent—
“A Some other type trauma may well have produced symptoms which would have ultimately required surgery with or without an automobile accident.”

Both Dr. Longnecker’s and Dr. Buckley’s testimony was equivocal. Both injuries had this equivocal medical testimony squarely before him. From both Donna’s testimony and Cortez’s testimony, the proof was that the impact was slight. Neither the headlights on Cortez’s car nor the taillights on Debbie Miller’s car were broken, the complete damages to Debbie Miller’s Toyota were $233.18, and Cortez’s auto- was traveling six to eight miles an hour when the impact occurred. Donna herself testified that the impact was akin to the ups and downs of a roller coaster ride.

In the very recent case of Gathright v. State, 380 So.2d 1276 (Miss.1980), Justice Walker, writing for a unanimous court, said:

“This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the state’s witnesses and the appellant’s witnesses, including the appellant himself. We have repeatedly held that in á criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court. Davis v. State, 320 So.2d 789 (Miss.1975); Wilson v. State, 264 So.2d 828 (Miss.1972); McLelland v. State, 204 So.2d 158 (Miss.1967).” 380 So.2d at 1278. (Emphasis added).

The burden was on the plaintiff to prove with reasonable certainty her damages suffered in each incident of non-concurring negligence, so that the jury could reasonably apportion the damages sustained in two distinct and non-related accidents. Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965).

With absolutely no testimony as to how the jury should apportion damages between the fall at the municipal building on February 6,1976, and the slight rear-end accident on April 30, 1976, with Dr. Longnecker’s written reports of August 25, 1977, and September 7, 1977, attributing all of Donna’s back problems including surgery exclusively to the February 6, 1976, fall at City Hall, and with the knowledge that a settlement had been effected with the City on October 81, 1977, IV2 years after the Cortez incident, both juries were justified in their verdicts under two different theories: one that she had suffered no actual damages as a result of the April 30, 1976, rear-end collision for which Cortez was responsible, or that she had recovered complete damages for all of her injuries from the City on October 31, 1977.

Because the trial court abused its discretion in granting a second new trial on damages alone when its sole reason for doing so was its admittedly erroneous reasoning that the City of Biloxi was a volunteer and gratuitously paid plaintiff Brown $30,000 in settlement of her claims against the City; and because the $0. damages verdict of the jury is supported by substantial evidence, I think that this Court should reverse the order of the trial court granting a new trial and reinstate the verdict of the jury.

SMITH, P. J., and SUGG and BROOM, JJ., join in this dissent.

      . Section 11-7-213. Every new trial granted shall be on such terms as the court shall direct; and no more than two new trials shall be granted to the same party in any cause. Provided, however, that when the sole ground for a new trial is the excessiveness or inadequacy of damages assessed, the party aggrieved may elect to appeal from the order granting a new trial.


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice, HAWKINS, Justice,

license: Public Domain

text:
    Alan McFADDEN, Delores Edwards and Carnell Young v. STATE of Mississippi.
    No. 52909.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    As Modified on Denial of Rehearing Jan. 20, 1982.

      J. Kennedy Turner, Philadelphia, for appellants.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Alan McFadden, Delores Edwards and Carnell Young were jointly indicted in the Circuit Court of Neshoba County for the crime of armed robbery of City Jewelry, Inc., on July 8, 1980.

In the indictment they were charged with willfully, unlawfully and feloniously taking men’s and ladies’ diamond rings, diamond wedding sets, and diamond clusters valued at $49,000, the property of City Jewelry, Inc., by putting Mrs. Waudine Whittle (an employee of City Jewelry, Inc.) “in fear of immediate injury to her person by the exhibition of a deadly weapon, namely, a pistol.”

After hearing and disposing of a number of motions filed by and presented by defense counsel on behalf of defendants, a full trial was held and the following verdict rendered:

“We, the Jury, find the Defendants Alan McFadden, Delores Edwards and Carnell Young, guilty as charged and fix their punishment at imprisonment in the penitentiary for life.”

The court accepted the verdict of the jury and imposed on each defendant a sentence of life imprisonment in the Mississippi State Penitentiary.

Defendants assign as error:

I. The right to a fair trial and due process of law was violated by the State of Mississippi through the action of the lower court by the refusal of the lower court to grant the appellant’s motion for continuance to allow for reasonable time to prepare for trial.
II.The lower court erred in partially denying item 3, and then denying totally items 4, 5, and 8 of the appellants’ motion for discovery and production.
III. The trial court erred in overruling the appellant, Carnell Young’s motion for a severance.
IV. The lower court erred in overruling the appellant’s motion to suppress in-court identification which was irreparably tainted by an unconstitutional and prejudicial pretrial confrontation and which was not shown to have a source independent of the pretrial identification.
V.The court erred in overruling the appellant, Carnell Young’s motion for a directed verdict in that the state of Mississippi’s case against said appellant failed to make out a prima facie case; or, alternatively, the court erred in refusing to grant a new trial because the verdict of the jury went against the evidence in the case.
VI.The trial court erred in overruling the appellant, Carnell Young’s, motion for dismissal, or mistrial, on the ground that the jury was polled by the court improperly and without authority of law.
VII.The indictment is insufficient as a matter of law in that it fails to set forth all of the elements of the offense charged; specifically, the indictment fails to charge an intent to steal.

I.

The joint indictment was returned on September 16. On that day the court, noting the poverty of the defendants, appointed the public defender, J. Kennedy Turner, to represent defendants.

On September 18, defense counsel filed a “Motion to Suppress Identification Testimony,” a detailed 3-page “Motion for Discovery and Production,” and a “Motion to Quash.” On September 19, defense counsel filed these additional motions: “Motion for Severance as to Carnell Young,” a “Motion for Continuance”, and a “Motion for Special Venire.”

In the Motion for Continuance, defense counsel stated, among other things, that the case was set for trial on Monday, September 22,1980, that each defendant intends to offer “separate and distinct alibis for the time in question”, that counsel, as public defender, was busy on other cases, and asked for a continuance to the next term of court.

Mississippi Code Annotated section 11-7-123 (1972) provides:

“On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may-grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.” (Emphasis added).

The motion for continuance did not comply with the mandatory statutory requirements in that the affidavit for continuance failed to comply with statutory requirements.

In Barnes v. State, 249 So.2d 383 (Miss.1971), this Court noted the difference between a motion for continuance based on the lack of reasonable time for an attorney to prepare for trial and an application for continuance based on the ground of absent witnesses.

“The application for continuance upon the ground that the attorney for the defendant has not had a reasonable time to prepare for trial is different from an application for continuance on the ground that there is an absent witness. When a witness is absent the movant must continue his effort to obtain the witness after having filed the motion required by Section 1520 Mississippi Code 1942 Annotated (1956). See: King v. State, 251 Miss. 161, 168 So.2d 637 (1964). On the other hand, a motion for continuance upon the ground that an attorney has not had sufficient time to prepare for trial is subject to proof and also as to facts as they may appear from that which is known to the trial court.” (249 So.2d at 384).

No proof whatsoever was offered as to the workload of the public defender. The trial court, of course, was personally cognizant of the public defender’s workload, that the September term was only 12 days long, and that the next term would not be until February, 1981.

Applying the rule stated in Jackson v. State, 254 So.2d 876 (Miss.1971), we cannot say the trial judge abused his discretion in refusing a continuance in this case.

The Motion to Suppress Identification Testimony was called for hearing at 8:30 a.m., Tuesday, September 23, 1980. In this motion, the defendants contended that they were not represented by counsel at the pretrial confrontation (line-up on September 11,1980), and that the line-up was unnecessarily suggestive and conducive to irreparable mistaken identification.

The defendants had been placed in jail at Ackerman in Choctaw County on a bank robbery charge. According to the testimony of the four police officers who transported them from Ackerman to Philadelphia for the line-ups, after their Miranda rights had been read and explained to them, they consented to come to Philadelphia for the lineups.

The court, after hearing the testimony of all three defendants, three other witnesses and the four police officers, overruled the motion to suppress.

The motions for continuance, severance as to Carnell Young, and a special venire, were also heard on September 23. The motion for special venire was sustained by order dated September 23, 1980, and the case set for trial on Friday, September 26.

The order also provided:

“[T]hat the Sheriff of this County shall serve on the attorney for the Defendants, not later than 8:00 a.m., Thursday, September 25, 1980, a certified copy of the venire facias showing the service on each of the persons whose names are so drawn, . . ."

The six motions filed by defense counsel were vigorously and ably presented by defense counsel and carefully considered by the court and, after disposition of these motions, a full trial was held on September 26, 10 days after indictment, and 10 days after appointment of counsel, and three days after the presentation, argument and decision on the six pre-trial motions.

On September 26, the date set for trial, defense counsel announced “ready”. The two-volume record reflects that appointed counsel (the Public Defender) ably, skillfully, and vigorously defended defendants. This Court is satisfied that the defendants were ably, intelligently, skillfully and vigorously represented by their appointed counsel (the public defender and an experienced criminal lawyer) at the trial, and that no injustice resulted from the denial of the motion for continuance.

II.

The court, after carefully hearing and considering the motion for discovery and production, granted discovery of all witnesses and documents that it was required by statute and by Rule 4:06, Uniform Criminal Rules of Circuit Court Practice, to grant. See Scott v. State, 359 So.2d 1355 (Miss.1978).

The court was correct in partially denying item 3, and in totally denying items 4, 5 and 8 of defendants’ motion for discovery and production.

Ill, V, AND VI.

These assignments of error have to do with Carnell Young only, III being with reference to the court’s overruling Young’s motion for severance, V having to do with the court’s overruling a motion for a new trial because the verdict of the jury was against the weight of the evidence, and VI having to do with the court’s overruling of Young’s motion for a dismissal or mistrial because the court sua sponte polled the jury to determine whether the first verdict finding Carnell Young not guilty was the verdict of each juror.

In view of our decision on V, it will be unnecessary for us to discuss and rule on III and VI.

After carefully reviewing the evidence, we are of the opinion that the verdict of the jury finding Carnell Young “guilty as charged” and fixing his punishment at life imprisonment is against the overwhelming weight of the evidence. The only witness against Young was T. J. Collier, who identified Young as being in front of City Jewelry talking with the other two defendants and another unidentified black female a few minutes before the robbery. Collier did not see Young go into the jewelry store, nor did any of the other four witnesses (who positively and unequivocally identified McFadden and Edwards) identify Young as being in the jewelry store at any time during the robbery. No other evidence connected Young with the crime.

At the close of the case, the court should have granted Jury Instruction D-l(a) “to find the Defendant Carnell Young not guilty.”

IV.

In this assignment of error, defendants contend that the court erred in overruling their motion to suppress the in-court identification of them because the in-court identification was “irreparably tainted by an unconstitutional and prejudicial pretrial confrontation and which was not shown to •have a source independent of the pretrial identification.”

Mrs. Waudine Whittle was an employee of the jewelry store and observed both McFadden and Edwards face to face during the robbery and when she was ordered to the back of the store and ordered to lie down under threat of great bodily harm. She positively and unequivocally identified both McFadden and Edwards.

Judy O’Berry, a customer, positively and unequivocally identified McFadden as being the one who ordered her to the back of the store and ordered her to lie flat on the floor with her 10-month old child, and threatened her with death if she didn’t do so.

Gwendolyn Thompson, a customer, positively and unequivocally identified McFadden and Edwards as being the robbers.

Sylvia Franklin, an employee of City Jewelry, who returned from lunch during the robbery, positively and unequivocally identified McFadden as being one of the robbers.

In this case, not one but four eyewitnesses made positive in-court identifications of McFadden and Edwards. It is undisputed that the robbery occurred about Noon and the jewelry store was well lighted. Defendants McFadden and Edwards were inside the store about 15 minutes.

Each of these four witnesses had an excellent opportunity to personally view the robbers during the actual commission of the robbery. Each was positive, certain, and unequivocal in her identification of McFadden, or Edwards, or both McFadden and Edwards.

We are of the opinion that the trial court did not err in overruling the defendants’ motion to suppress the in-court identification of McFadden and Edwards because of the pre-trial line-ups (where there was some disparity in the heights and weights of the participants). See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Barron, 575 F.2d 752 (9th Cir., 1978); Oliver v. State, 285 So.2d 897 (Miss.1973); Poole v. State, 216 So.2d 425 (Miss.1968).

VII.

In the last assignment of error, defendants contend that “the indictment is insufficient as a matter of law in that it fails to set forth all of the elements of the offense charged; specifically, the indictment fails to charge an intent to steal.”

Mississippi Code Annotated section 97-3 — 79 (1972) defines the crime of armed robbery. The indictment charged that Alan McFadden, Delores Edwards, and Carnell Young:

“[D]id willfully, unlawfully, and feloni-ously, take from and from the presence of Mrs. Wadean Whittle, a human being against her will by putting the said Wad-ean Whittle in fear of immediate injury to her person by the exhibition of a deadly weapon, namely, a pistol, ...”

This Court said, in Thomas v. State, 278 So.2d 469 (Miss.1973): “[W]e hold that the words ‘unlawfully’ and ‘feloniously’ are sufficient to make the necessary charge of ‘intent to steal’.” 278 So.2d at 471.

There is no merit in this assignment of error.

For these reasons, we are of the opinion that the conviction and sentence of McFadden and Edwards should be affirmed, and the conviction and sentence of Carnell Young should be reversed and Young discharged.

AFFIRMED AS TO McFADDEN AND EDWARDS, REVERSED AS TO CAR-NELL YOUNG AND YOUNG DISCHARGED.

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

HAWKINS and BOWLING, JJ., dissent.

HAWKINS, Justice,

dissenting.

I respectfully dissent from the majority opinion as to the defendants Alan K. McFadden and Delores Edwards, and I concur with the result reached as to the defendant Carnell Young, but for a different reason than stated in the majority opinion.

These three defendants were jointly indicted September 16, 1980. None of them employed counsel. There is no order in the record showing their arraignment, or showing them indigent or unable to employ counsel, but they were represented by a local attorney who is a public defender in Neshoba County.

On September 18, 1980, their attorney filed motions to suppress identification testimony, for discovery and production, and to quash the indictment. The motion for discovery was sustained in part by the court, the others were overruled. A motion for continuance was filed September 19, 1980, together with a motion for a special venire and motion for a severance as to the defendant Young.

On September 23, 1980, a hearing was held on the motion to suppress the identification of the defendants. On the same day orders were entered overruling the motions for a severance and motion for a continuance. Also on this date an order was entered for a special venire of 40 persons returnable at 8:00 a.m., September 26,1980.

The motion for continuance sets forth the appointment of one lawyer by the court for all three defendants, and the case being set for trial September 22, 1980. I add parenthetically there is no record of this, except the statement in the motion and a later comment by the court during trial. The motion proceeds to allege there is insufficient time to prepare the defense, reciting there were a number of alibi witnesses, some 15 state witnesses, and counsel needed more time to prepare. The motion was sworn to by counsel.

No proof whatever was offered in support of this motion.

On September 26, 1980, the case was called and both sides announced ready for trial. A jury was then selected and the case proceeded to trial.

During trial defense counsel approached the bench, and there was an off the record discussion, following which the jury was excused. Out of the presence of the jury the following transpired:

BY THE COURT:
Mr. McFadden, you had something you wanted to address to the Court?
BY THE DEFENDANT McFADDEN:
Yes, sir, I do. Your Honor, we would like the proper time to prepare our case, to get witnesses here to testify in our behalf. We are going to be sent to the penitentiary and the people are sitting here under oath and lying. We don’t have any defense at all. I mean, I don’t —I feel that I’m not getting a fair trial. My lawyer is overworked. I mean, he doesn’t have time to get out and try. He needs time to work on the case because this is our life. It’s not something to play with as far as I’m concerned.
BY THE COURT:
No one is playing with your case at all, Mr. McFadden. I think your lawyer has capably and ably represented you.
BY THE DEFENDANT McFADDEN:
I no longer want him as our attorney. BY THE COURT:
He’s the Public Defender. On the day that you were arraigned, I appointed Mr. Turner to represent you. You established through your answers that you were unable to afford an attorney. He has summoned witnesses for you, he has filed a motion, he has ably presented those motions. The request of McFadden comes at five minutes to 12:00 o’clock. I have already heard the testimony of Mrs. Jim Whittle, Mrs. Morgan Hardy, Mr. Jim Whittle, Jr., Mr. Morgan Hardy, and Mrs. Judy O’Berry. We have started the testimony earlier this morning. The Defendants have been present at all stages of the trial of this case and the request of this Defendant will be denied.
BY THE DEFENDANT McFADDEN:
This is the request of all three of us, Your Honor.
BY THE COURT:
That is what you say.
BY THE DEFENDANT EDWARDS:
Mine, too.
BY THE COURT:
Do you want another attorney or what? You want to employ one?
BY THE DEFENDANT EDWARDS:
If we can get one.
BY THE COURT:
Wait a minute, lady. Stand up when you address the Court.
BY THE DEFENDANT EDWARDS:
If he can go on, I do not want to go on.
BY THE COURT:
You want to employ an attorney?
BY THE DEFENDANT EDWARDS:
I will do my best to see if I can get another one.
BY THE COURT:
I’m not going to continue the case. I will make attorneys available to you during this lunch hour. I’ll not discharge this attorney either, but if you want to employ one to join with Mr. Turner, I’ll permit that.
BY THE DEFENDANT McFADDEN:
We have been trying to raise money to defend us, people that know we are innocent and accused of a crime.
BY THE COURT:
All right. Bring in the Jury.

I.

Did the trial judge err in trying the case without giving the defendants time to prepare a defense?

In the brief for the appellants, counsel as his first point argues the court erred in not granting a continuance, and in support of this very strong assignment he states that from the time of arraignment September 16, until the following Tuesday, September 23, he was in court on other court appointed cases, interviewing witnesses, and attempting to structure defenses on all those cases. He states further from September 23, until the trial of this cause on September 26, he was actually in trial “each and every day.” Here is his calendar of events:

September 23 - defending Boyd v. State (now on appeal to this Court);
September 24 — defending Cole v. State (now on appeal to this Court);
September 25 - defending Yates v. State (now on appeal to this Court).

He then proceeds to inform this Court of the serious nature of the above cases occupying his time.

In view of these allegations, I am perplexed by the following conduct of counsel shown by the record:

1. He offered no proof in support of his motion for continuance.
2. He never renewed his motion for continuance following its filing. None of the information shown in his brief appears anywhere in the record.
3. On the day set for trial, September 26, the record states: “both sides announced ready for trial.”
4. Even when his clients told the trial judge out of the presence of the jury their lawyer had not had time to prepare the case for trial, counsel himself remained silent.
5. In his motion for a new trial, counsel did not see fit to specifically assign the refusal to grant his motion for continuance as error.

This Court has repeatedly held errors preliminary to, or during trial not brought to the attention of the trial judge will not be considered on appeal. Ponder v. State, 335 So.2d 885 (Miss.1976). This is especially true of a motion for a continuance, unsupported by any proof in the record. Fermo v. State, 370 So.2d 930 (Miss.1979). We cannot ignore plain error, however, and this Court has the right to take notice of harmful errors appearing in the record; and further, when justice requires, take the appropriate action to correct such errors. Newburn v. State, 205 So.2d 260 (Miss.1967); Kendall v. State, 217 So.2d 35 (Miss.1968); Burnett v. State, 285 So.2d 783 (Miss.1973).

In my view the trial court should not have placed the defendants on trial in such a short time, and it was reversible error for the court to do so.

The record shows these three defendants were taken from a Choctaw County jail, indicted on September 16 in Neshoba County, where they were apparently strangers. The court appointed a lawyer for them, also a stranger to them. They remained in jail. Ten days later they were placed on trial, and in a trial lasting one day, convicted and each given a sentence of life imprisonment in the state penitentiary.

To me such action by the trial court was precipitate and unfair to three defendants tried jointly on a crime as serious as this, and probably unfair to the state.

While the time necessary to prepare for the defense of a case is not subject to mathematical formula, under the circumstances of this case I cannot conceive any possibility of defense counsel having time to prepare a creditable defense. He had time for a facade, but no more. In profound deference I suggest able trial lawyers in this state will be appalled at any suggestion by this Court that the counsel for defendants had time to prepare an adequate defense, and there was no denial of due process in putting these defendants to trial in such a short time.

In Cruthirds v. State, 190 Miss. 892, 2 So.2d 145 (1941), we stated:

Section 26 of the Constitution of Mississippi guarantees to every person a fair and impartial trial. A fair and impartial trial includes a reasonable opportunity to prepare for trial.

Id. at 896, 2 So.2d 145.

Then, we quoted with approval, p. 897, the following language from Coker v. State, 82 Fla. 5, 89 So. 222 (Fla.1921):

“Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into dispute.”

See also, Barnes v. State, 249 So.2d 383 (Miss.1971); Martin v. State, 312 So.2d 5 (Miss.1975).

The language in Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973), also seems appropriate:

No more fragile rights exist under our law than the rights of the indigent accused; consequently those rights are deserving of the greatest judicial solicitude.

II.

As to the defendant Young, I concur in the result reached by the majority opinion that he should be discharged, but for a different reason. Because of the unusual circumstances involving the jury verdict in this case, I think something should be stated by this Court in the sanguine hope such a problem may be obviated for circuit judges in future instances.

Following instructions by the court and argument of counsel, the jury retired at 3:15 on the day of trial to deliberate its verdict. At 4:50 p.m. the jury returned to the courtroom.

The circuit judge told the foreman of the jury to listen to him carefully, and give a yes or no answer. He then asked if the jury had been able to agree upon a verdict. The foreman answered “yes.”

The court then directed the jury to hand the envelope with their verdicts to the clerk. This was done.

The court then stated: “Read the verdicts. File them first.” The record states the verdicts were filed by the clerk.

The clerk then read the following verdicts:

“We, the jury, find the Defendant, Car-nell Young, not guilty.” “We, the jury, find the Defendants, Allen (sic) McFadden and Delores Edwards, guilty as charged and fix their punishment at imprisonment in the penintentiary (sic) for life.”

The court then directed the rest of the documents be handed to the clerk.

Following the above, the court asked the question: “Are these your verdicts?”

A juror answered, “no.” The court then asked: “These are not your verdicts?” A juror replied, “No, sir.”

The court then directed the jury be given two clean sheets of paper, and instructed the jury to return to the jury room, with the admonition their verdicts “must be unanimous.”

The foreman then asked the judge, “Where we have a hung jury, what are the instructions in that case?” The court replied he would let them deliberate further.

At 5:30 the jury reported it was able to agree on a verdict as to two of the defendants, but unable to agree on the third defendant. Upon inquiry by the court, the jury reported it was divided 11 to 1. The court then gave the following instruction:

BY THE COURT:
If you would listen to me very carefully while I read this to you.
I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but if it is possible to reconcile your differences of opinion and decide this case, then you should do so. Accordingly, I remind you that the Court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after each impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberation.
With that, ladies and gentlemen, I will let you retire to the jury room.

The jury retired and at 5:35 p.m. the foreman came before the judge and asked if the jury was unable to agree as to a verdict on the third defendant, what would be the disposition of the case. With both sides assenting, the court replied he would declare a mistrial as to this one defendant.

The foreman returned to the jury room, and at 6:10 p.m. one verdict was returned, reading as follows:

“We, the jury, find the Defendants, Allen (sic) MeFadden, Delores Edwards, and Carnell Young, guilty as charged, and fix their punishment at imprisonment in the penintentiary (sic) for life.”

Two further observations should be made. When the judge was initially instructing the jury, he told them all twelve had to agree before a verdict of guilty could be returned. Also, a very weak case was made against the defendant Young. The only testimony connecting him in any way with the crime was one witness who testified he saw Young in the company of MeFadden and Edwards and other blacks on the street in front of a store adjacent to the jewelry store about the time of the robbery, and another witness who was in the jewelry store at the time of the robbery testified one of the unidentified robbers, “had the build and everything” of Young.

Was the verdict of “not guilty,” first rendered by the jury, binding upon the court?

Of course, a court can instruct a jury to return to the jury room and correct a defective verdict, such as one not in accord with the instructions of the court, or for some error apparent on its face. Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257 (1950). Also, as the verdict is being read, we have held that if a juror speaks out that the verdict is wrong, the court may send the jury back for further deliberation. Anderson v. State, 231 Miss. 352, 95 So.2d 465 (1957).

This is not such a case. The trial judge carefully asked the jury if they had agreed upon a verdict. The foreman responded “yes.” The court directed the verdicts be handed to the clerk. He then instructed the clerk to file them and read them.

The clerk read the verdicts, worded precisely in accordance with the instructions and on the issue presented for them to decide. One verdict found the defendant not guilty. The other verdict found the remaining defendants guilty.

The court then directed the jury to hand the remaining papers to the clerk. During this entire time no juror voiced any objection. The court then asked the jury, “Are these your verdicts”?

It was only then, after the verdicts had been filed, read in open court, and accepted that some juror, galvanized by the current of the court’s question, said “no.”

There were three defendants. This Court has no way of knowing whether the dissatisfaction was with the verdict as to Young, or the other two defendants. Furthermore, we do not know if this dissatisfaction was an afterthought of a juror after initially voting to return a verdict of not guilty.

In any event, under the facts of this case I believe the die was cast, the Rubicon crossed, when the jury verdict was filed and read in open court finding Young not guilty.

Since we have no way of knowing from the record (a) whether or not the verdicts when read represented the true verdicts of the jurors reached in their deliberations in the jury room, and whether or not the dissatisfaction arose from a juror who had changed his mind after coming into the courtroom, and having the verdicts read, or (b) whether the dissatisfaction was as to the verdict finding Young not guilty, the verdict of not guilty reached as to Young was final and binding, in my view.

I do not know whether this Court should or could set forth a map to guide a court in determining at the fateful moment a jury is brought into court to announce its verdict, precisely when the court may, and when the court may not send the jury back for further deliberations. The difficulty in defining the boundary is the best reason for a few more cautionary questions from the circuit judge to the jury before receiving the verdict in open court. The problem would then be avoided. In any event, in my view, the verdict of not guilty rendered under the circumstances of this ease clearly crossed that line.

Although the facts are different, the language in State v. Chambliss, 142 Miss. 256, 267, 107 So. 200, 202 (1925) is helpful here:

It has never been the practice in this state and, so far as we are advised, in other states having similar constitutional provisions for trial by jury in criminal cases to that embraced in section 26 of the constitution of Mississippi to permit the court to refuse to accept a verdict complete in substance and responsive to the issues.
The right of trial by jury is one of the most sacred constitutional rights that a citizen has, and it would have but little value were it in the power of the trial judge to refuse to receive it or to act upon it when it is received, provided it is in due form and responsive to the issues. * * * * * *
A trial by jury has been the greatest instrument of liberty in the history of English and American government, and was greatly, esteemed at the time of the Revolution. No country ever lost its liberty where an independent jury trial existed. No country retained its liberty where it was abandoned.

Id. at 272, 107 So. at 204.

For the reasons stated, the initial jury verdict as to Young, being responsive to the instructions, was final, and Young should have been discharged when the verdict was returned in open court and filed.

I reiterate, with great respect for all parties concerned, that the case appears to me to have gone to trial before either side was properly prepared. Thus, the result before us.

BOWLING, J., joins in this dissent.

      . The order overruling the motion for a continuance (R. 15) recites “the Court having heard evidence in support of said motion,” but this language is not supported by transcribed proof in the record.

      . Although the actual time span may have been brief, it was pregnant with meaning.

      . No criticism is implied of the trial judge in this case, who manifestly exercised considerable care before receiving the verdict. This case simply again reminds us that we learn most by experience.


author: SUGG, Justice,

text:
    James A. “Shorty” ENIS v. STATE of Mississippi.
    No. 53127.
    Supreme Court of Mississippi.
    Dec. 30, 1981.

      W. A. Grist and Boudie A. Jaggers, Pon-totoc, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

James A. Enis was indicted for murder, tried in the Circuit Court of Pontotoc County, convicted, and sentenced to life imprisonment.

In his first assignment of error appellant argues the trial court erred by permitting Mrs. Norma G. Sanders to testify as a witness for the state because appellant and Mrs. Sanders had entered into a common law marriage in the State of Idaho which had not been dissolved by a divorce.

Appellant secured a divorce in 1967 and on the following day he and Norma G. Sanders went to the State of Idaho and began a relationship which lasted for approximately ten years. During this ten year interval, they traveled to Idaho four times and remained in that state some six to eight months each time where defendant was engaged in seasonal farm work. They held themselves out to be husband and wife while living in Idaho and when they returned to Mississippi following one of their trips to Idaho, they acquired a home which was deeded to them as husband and wife. Norma G. Sanders made an entry in the Enis family Bible that they were married in 1967 and she also received her pay checks as Norma Enis. A child was born to the couple and the birth certificate listed appellant as the father. The parties separated, Norma G. Sanders married Thomas Sanders on January 29, 1978, and appellant married approximately seven months later. Neither of the parties secured a divorce before they entered into their ceremonial marriages in 1978.

Common law marriages are recognized in Idaho under the following statute:

32-201. What constitutes marriage. —Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations. [1877, p. 24, § 1; R.S., § 2420; reen. R.C. & C.L., § 2611; C.S., § 4591; I.C.A., § 31-201.]

Two elements are required for a valid common law marriage to exist under the Idaho statute. They are, (1) agreement of the parties to enter into a common law marriage, and (2) either solemnization, or a mutual assumption of marital rights, duties, or obligations. It is obvious from the proof that the second element for a valid common law marriage in Idaho was met because both parties mutually assumed marital rights, duties, or obligations. However, satisfaction of the second element is not sufficient to constitute a common law marriage unless the parties also mutually agreed to become common law man and wife.

Both parties entered into ceremonial marriages after the termination of their relationship without securing a divorce. This presents the question of whether appellant is estopped from claiming the parties mutually consented to a common law marriage as required by the Idaho statute.

In Walker v. Matthews, 191 Miss. 489, 3 So.2d 820 (1941) this Court held that when a woman who was intestate’s common law wife, separated from intestate, and the woman and intestate thereafter went through statutory marriages to others and recognized such marriages as valid, the woman was estopped from asserting heir-ship to intestate’s estate.

Appellant claims that he and Norma G. Sanders agreed to enter into a common law marriage but Norma G. Sanders said that appellant never asked her to marry him nor did she ever consent to be married to him. It is a familiar rule that when an alleged prior common law marriage is interposed for the purpose of having a subsequent marriage duly solemnized according to law declared invalid, there is a strong presumption in favor of the validity of the ceremonial marriage against the claimed former common law marriage, and all the essential elements of the common law marriage must be shown by clear, consistent, and convincing evidence. Warren by Stuckey v. Warren, 218 Miss. 785, 67 So.2d 707 (1953). See cases cited in Mississippi Digest, Marriage, Key No. 50(1).

When appellant entered into a ceremonial marriage with another woman without seeking a divorce terminating his claimed common law marriage, his ceremonial marriage to another was inconsistent with his claim that he and Norma G. Sanders agreed to enter into a common law marriage. We therefore hold that appellant is estopped from claiming that he and Norma G. Sanders consented to a common law marriage in the State of Idaho.

We adopt this rule of estoppel under the facts of this case and hold: when one party claims a valid common law marriage but both of the parties to the claimed common law marriage subsequently enter into ceremonial marriages without securing a divorce, such parties are estopped to claim there was a mutual agreement to become common law husband and wife.

We therefore hold that the trial judge correctly held that Norma G. Sanders was competent to testify against appellant.

We have carefully considered the other assignments of error, and finding no merit in any of them, we affirm.

AFFIRMED.

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

      . Common law marriages contracted after April 5, 1956 are not valid in Mississippi. Section 93-1-15 Mississippi Code Annotated (1972). However, common law marriages entered into in states recognizing common law marriages will be recognized in Mississippi. George v. George, 389 So.2d 1389 (Miss.1980).


text:
    Lucious TURNER v. BOARD OF TRUSTEES OF the JACKSON PUBLIC SCHOOLS.
    No. 52987.
    Supreme Court of Mississippi.
    Jan. 13, 1982.
    Charles H. Ramberg, Samuel L. Walters, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Christopher A. Shapley, Jackson, for appel-lee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    BON SECOUR FISHERIES, INC. v. James BARRENTINE, d/b/a Papa’s Fish Company.
    80-595.
    Supreme Court of Alabama.
    Dec. 18, 1981.
    Daniel E. Robison, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   MADDOX, Justice.

This is an appeal from a summary judgment granted to the defendant Barrentine in a suit on an open account. The legal issue is whether, as a matter of law, the debt sued upon was the debt of a corporation or of an individual the creditor claims was its alter ego.

Plaintiff Bon Secour Fisheries, Inc. filed its complaint against Kenny Bass and James Barrentine, d/b/a Papa’s Fish Company. Bon Secour claimed that the defendants owed it money due on an open, account for goods sold and delivered; plaintiff sought damages of $10,500, interest and costs. Defendant Barrentine filed a motion in which he claimed that Bon Secour failed to state a claim upon which relief could be granted; he also asserted that the debt was owed by Papa’s Fish Company, Inc., a corporation, and that he was not personally indebted. At the same time, Barrentine filed his motion for summary judgment, accompanied by an affidavit in which it was stated that a corporation known as Papa’s Fish Company, Inc. was formed on July 5, 1978, that it did business under the name Papa’s Fish Company, Inc., and that the debt which was incurred in 1979 and 1980 was owed by Papa’s Fish Company, Inc., and not by Barrentine. (Defendant Bass is not involved in this appeal.)

Bon Secour filed a counter-affidavit in which it stated that it “always relied on the Barrentines to pay” and “the checks we received didn’t say anything different [than before the incorporation date].” After a hearing, the trial judge granted Barren-tine’s motion for summary judgment. Bon Secour appealed to this Court.

We agree with plaintiff Bon Secour that Barrentine failed to sustain his burden of showing that Bon Secour could not recover under any discernible set of circumstances; therefore, the granting of summary judgment was improper.

The rule of law in such cases has been oft stated. In order for summary judgment to be proper, the pleadings and affidavits submitted by the movant must show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. A.R.C.P. 56(c). The moving party must show that the other party could not recover under “any discernible set of circumstances.” Woods v. Commercial Contractors, Inc., 384 So.2d 1076 (Ala.1980); Chiniche v. Smith, 374 So.2d 872 (Ala.1979). All reasonable inferences must be considered in a light most favorable to the non-moving party. Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975). Plaintiff could conceivably succeed if at trial the factfinder determines that the corporate firm was being used to evade personal responsibility. Woods v. Commercial Contractors, Inc., supra. In Woods, this Court stated:

. It is the law in Alabama and elsewhere that the court will disregard the corporate entity when it is used solely to avoid personal liability of the owner while reserving to the owner the benefits gained through use of the corporate name. Dixie Coal Min. & Mfg. Co. v. Williams, 221 Ala. 331, 128 So. 799 (1930). It is also true that a “separate corporate existence will not be recognized where a corporation is so organized and controlled and its business conducted in such a manner as to make it a mere instrumentality of another .. .. ” Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 28, 29 So.2d 298, 302 (1947). More recently this Court held that the theory of separate corporate existence can properly be discarded, even in the absence of fraud, to prevent injustice or inequitable consequences. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975).

384 So.2d at 1079.

We do not address or decide whether the individual defendants are liable for the debt. We merely decide that Barren tine failed to show that he was entitled to a judgment as a matter of law based upon the record before us. We find that Bon Secour produced at least a scintilla of evidence that Barrentine might be personally liable to it. The judgment of the trial court is due to be reversed.

REVERSED AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The granting of a motion for summary judgment is only appropriate where it appears that the non-moving party could not prevail under any conceivable set of circumstances. Whitehead v. Davison Oil Co., Inc., 352 So.2d 1339 (Ala.1977). If there is a scintilla of evidence supporting the position of the party against whom the motion is made, a genuine issue as to a material fact exists. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979). “The scintilla rule only requires that the evidence furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, in support of plaintiff’s complaint.” Watkins v. St. Paul Fire & Marine Insurance Co., 376 So.2d at 662. I concur because it appears that a “glimmer” exists in this case.


author: TORBERT, Chief Justice.

text:
    Christopher McARDLE v. STATE of Alabama, acting By and Through the ALABAMA STATE DOCKS DEPARTMENT, an agency of the State of Alabama.
    80-40.
    Supreme Court of Alabama.
    Dec. 23, 1981.

      Bert S. Nettles and J. Harley McDonald, Jr. of Nettles, Cox & Barker, Mobile, for appellant.
    Joseph C. Sullivan, Sr. and Joseph C. Sullivan, Jr. of Butler & Sullivan, Mobile, for appellee.
   TORBERT, Chief Justice.

This is a condemnation case in which the value of certain property and the house thereon is disputed. The landowner appeals, claiming error by the trial court in submitting certain evidence to the jury. We reverse.

Christopher McArdle, appellant herein, owned a tract of land containing approximately 3.7 acres together with his home located thereon. A large portion of this property was condemned and taken in 1967 by the Alabama State Docks Department (State Docks) for the purpose of widening the public canal of Deer River. In the 1967 condemnation, a small portion of McArdle’s dwelling house, which included the carport, part of the utility room, and part of the kitchen, was included in the property taken. At that time, the value of the property taken was appraised at $40,-000, but in a settlement McArdle was awarded $50,000.

The 1967 petition to condemn the property described the property to be taken and stated:

The interest or easement to be acquired by the State of Alabama in said lands is a right-of-way on, over and across said lands for the construction of said public canal by the widening of the Middle Fork of Deer River which presently abuts said lands, said lands to be used perpetually as a public canal. The uses and purposes for which said lands are to be taken are for the necessary right-of-way for said canal with the right to dredge, excavate, cut away and remove all or any portion of said lands and the right to clear and remove all trees, buildings, improvements, structures and obstructions of every nature within said right-of-way.

Nothing in that petition, or in the settle-.ment, alleged that the State Docks would receive or pay for any part of the property at issue now in these 1978 proceedings, nor did the State Docks acquire any right or interest in the remainder of the property which was not taken.

From 1967 until 1978, the appellant continued to reside in the entire dwelling, paid taxes on the property, and made improvements to the dwelling. In 1978, the remainder of the property (.61 acres), including the larger portion of the house, was condemned by the State Docks. At this time, the appellant was offered $24,000 for his property, including that portion of the home located thereon, which was the appraised value of the land as though it was unimproved. In the jury trial that followed, McArdle was awarded $36,000, although his appraisers testified that the property was worth at least $84,075.

The issue to be determined in this case is whether it was reversible error for the trial court to allow the jury to determine, as an issue of fact, whether compensation for the entire dwelling had been paid to McArdle as part of the 1967 proceedings. We find that this was error.

Over the appellant’s continuing objection, the trial court allowed the State to introduce into evidence its 1967 appraisal, which showed that the total value of the dwelling was allowed even though only a portion of it was being taken at that time. At the close of the trial, the trial judge, holding that the question was one of fact for the jury to determine, instructed the jury as follows:

I allowed evidence over the objection of the Defendant to be brought in relative to the taking in 1967. I will point out to the Jury that that taking in 1967 was also a pártial taking or partial condemnation of the property belonging to Mr. McAr-dle. The testimony is that Mr. McArdle owned all of that property as shown on Plaintiff’s Exhibit as has been described to you during the course of the trial. That is parcel fifteen and the other tract is thirteen — A. Mr. McArdle at one timed owned all that property, parcel fifteen and parcel thirteen — A, and has been stated to you before in the evidence, they only took part of his land, namely, and we’re tal[k]ing about thirteen — A, and that little st[r]ip in the corner which he still owns, and that’s where apparently all the problems are coming up relative to the homeplace. That is for you to determine. The facts are uncontroverted however, that they took in the first taking in ’67 a portion or part of the homeplace. They did not and again, that’s for you to determine whether or not the whole homeplace, was compensated, to Mr. McArdle or not compensated to Mr. McArdle, or whether or not he received damages for the whole homeplace. I have allowed that to come in, the taking in ’67, so that you may consider as an element for your consideration in arriving at your verdict in this case. The taking in 1967. You may consider as to whether or not there is a similarity between the parcel taken in 1967 and the parcel taken in 1978. I felt that you should be informed as to all the facts, and you are to determine what value is to be awarded to Mr. McArdle. [Emphasis added.]

That charge was in error. It was uncontro-verted that McArdle retained full legal title to the remaining .61 acres not taken in 1967, on which most of his dwelling was situated. The only question to be decided relating to the 1967 condemnation proceeding was the legal effect of the taking by the State Docks of a portion of McArdle’s property as it relates to the subsequent condemnation proceedings involving the remainder of his property. While it is the duty of the jury to try the facts and apply those facts to the law, it is the duty of the Court to determine questions of law, to declare the law, and to direct the application of the law to the facts. Southern Railway Co. v. Terry, 268 Ala. 510, 109 So.2d 919 (1959); City of Anniston v. Oliver, 28 Ala.App. 390, 185 So. 187 (1938).

It is a well established rule in a condemnation proceeding that where only a part of a tract is taken the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, and that the jury should consider such facts and circumstances which would lessen the value of the remaining part in any way. State v. McLemore, 387 So.2d 827 (Ala.1980); State v. Moore, 382 So.2d 543 (Ala.1980); Kayo Oil Co. v. State, 340 So.2d 756 (Ala.1976); State v. Huggins, 280 Ala. 538, 196 So.2d 387 (1967); St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683 (1961). This proposition of law, however, is applicable to the 1967 taking and court proceedings and not the 1978 condemnation proceedings, since the present taking is, in effect, a complete taking. We must conclude that in 1967 this rule was followed. Once that partial taking occurred, its legal effect on subsequent takings became a question of law for the trial court to decide. Thus, it was the trial court’s duty to determine the legal consequences of the 1967 taking.

Stated another way, in 1967 McAr-dle was compensated for that portion of his property taken and the damage to the remaining property belonging to him. McAr-dle retained full title to the remaining .61 acres, upon which the larger portion of his dwelling house was located, until 1978, when it too was condemned by the State Docks. At that time, the 1967 condemnation had no effect on the 1978 fair market value of the property and the amount to which McArdle was entitled as compensation for his property. As compensation for the taking of the final .61 acres, Mr. McAr-dle is entitled to receive by way of damages the fair market value of his land at the time of its taking, considering all facts and circumstances that would go toward establishing a reasonable basis for determining such fair market value of the land taken and which are relevant and proper at this time. Kayo Oil Co. v. State, 340 So.2d 756 (Ala.1976); Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973); Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308 (1959). One factor to be considered is the well known rule that when a piece of improved land is taken by eminent domain, so far as the improvements on that land add to its market value, those improvements must be considered in determining the compensation to be awarded to the owner. State v. Woodham, 288 Ala. 608, 264 So.2d 166 (1972); Cumbaa v. Town of Geneva, 235 Ala. 423, 179 So. 227 (1938). Thus, any improvements on the property are factors to be considered by the jury.

Under the authorities cited above, it is obvious that the trial court erred in submitting this issue to the jury. It is for this reason that the case is due to be reversed and a new trial ordered.

REVERSED AND REMANDED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.