text:
    Jimmy SPEAGLE v. STATE of Mississippi.
    No. 52093.
    Supreme Court of Mississippi.
    Nov. 26, 1980.

      William B. Sullivan, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

Jimmy Speagle appeals from his conviction in the Circuit Court of Jones County for the crime of incest, as defined by Mississippi Code Annotated section 97-29-5 (1972), for which he was sentenced to serve a term of ten years in the penitentiary.

The evidence on which the conviction rests was conflicting and thus presented a question for the jury to resolve. At the conclusion of all the testimony, the defense moved for a peremptory instruction, which the lower court correctly declined to give. Peremptory instructions should be refused if there is enough evidence to support a verdict. Warn v. State, 349 So.2d 1055 (Miss.1977). The prosecuting witness testified in sufficient detail that the specific act of intercourse described in the indictment occurred on the date alleged, and this testimony was corroborated, in part, by other testimony.

The defendant’s principal assignment of error is that the lower court erroneously refused to grant him a continuance. He contends that his attorney needed more time to prepare for trial. The indictment was returned against Speagle on November 6, 1979. He appeared before the court on November 7, 1979, and stated that he had employed a lawyer. He was arraigned on November 12,1979, and was represented by counsel, Mr. Ed Stevens, at that time. He pleaded not guilty and the case was set for trial on November 20, 1979. On November 19, 1979, Mr. William Sullivan, then representing the defendant, filed a motion for continuance, which was denied.

One of the primary complaints in the motion was that counsel had not had an opportunity to interview the prosecuting witness. In ruling on the motion, the court directed the district attorney to advise counsel of the whereabouts of this witness. The district attorney indicated that he would do so in the next fifteen minutes, and the record indicates that the prosecutor made his witness available that very day, and that defense counsel spoke with the witness at length before the trial. He cross-examined her at length during the trial and he presented several witnesses to contradict her testimony. There is, on this record, no indication that any injustice resulted from the denial of the continuance.

Mississippi Code Annotated section 99-15-29 (1972) provides that the granting of a continuance is largely in the discretion of the trial judge and refusal to grant a continuance will not be grounds for a reversal unless that discretion has been abused, and the court is satisfied that an injustice has resulted therefrom. Having carefully reviewed the record, we cannot say that the trial court abused its discretion in overruling the motion for a continuance. See Shaw v. State, 378 So.2d 631 (Miss.1979); Brown v. State, 252 So.2d 885 (Miss.1971).

There was also alleged in the motion for a continuance that the accused had substituted counsel on or about November 14, 1979. In Ladnier v. State, 273 So.2d 169 (Miss.1973), we pointed out that the voluntary substitution of counsel by a litigant during the course of trial is not, of itself, grounds for a continuance. The sanie can be said for the voluntary substitution of counsel prior to trial. In sum, the record does not indicate that any injustice resulted from the failure to grant' a continuance.

Speagle also assigns as error the lower court’s failure to order a blood test of the prosecuting witness. The purpose of the requested blood test was to ascertain whether the prosecuting witness was actually the defendant’s blood relative.

The appellant has cited no controlling authority to support his proposition. In light of the fact that he has never denied that the girl was his daughter and, in fact, admitted on direct examination that she was his daughter, we do not deem it necessary to decide the question whether a defendant in an incest case may require the prosecuting witness to submit to a blood test. On this record it is clear that it was not an abuse of discretion to deny the request for a blood test.

The appellant also alleges the lower court erred in allowing testimony relative to other prior instances of sexual misconduct. The prosecuting witness was permitted to testify that other acts of intercourse had taken place during the month preceding July 28, 1978, and that these acts had occurred about three or four times a week. This testimony was admissible. Davis v. State, 367 So.2d 445 (Miss.1979); Brooks v. State, 242 So.2d 865 (Miss.1971).

In Brooks v. State, supra, we considered the same contention in a rape case. There, the defendant argued his confession was inadmissible because it showed that defendant was guilty of other similar or related offenses at times prior to the rape. This Court held the confession was admissible, overruling English v. State, 206 Miss. 170, 39 So.2d 876 (1949), stating as follows:

The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions. Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The “acid test is its logical relevancy to the particular excepted purpose or purposes” for which the evidence of prior offenses is sought to be introduced, and the considerations justifying the reception of evidence' of other similar crimes has been held by some courts to be peculiarly applicable in prosecutions for sexual offenses.” Id. § 321.
Accordingly, evidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by defendant with the prosecuting witness. The courts assign various reasons for the admission of this evidence such as corroboration of the offense charged, to show the intimate relation between the parties, the lustful disposition of defendant toward the prosecuting witness, and the probability of his having committed the offense charged. An exhaustive annotation in 77 A.L.R.2d 841, 852 (1961), discusses many cases from other jurisdictions upholding this rule. (242 So.2d at 869).

The same annotation lists several incest cases from other jurisdictions holding that evidence which shows, or tends to show, that the defendant committed the same offense upon the same female on an occasion prior to the offense for which conviction is sought is admissible for the purpose of showing the lustful or lascivious relations existing between the parties and the defendant’s disposition to commit the act, and to corroborate the testimony of the prosecu-trix as to the particular act relied upon from conviction. Annot. 77 A.L.R.2d 841, 878 (1961 and Supp.1975).

In 22A C.J.S. Criminal Law § 691(34) (1961), it is stated:

In accordance with the rules governing the admissibility of evidence of other offenses in prosecutions for sexual crimes generally, discussed supra § 691(29), in a prosecution for incest, evidence of prior acts of sexual intercourse between the same parties, or previous familiarities not amounting to actual intercourse, is admissible, not as affording proof of a separate substantive offense, but as corroborating other evidence of the act charged, and as tending to show the relations existing between the parties as bearing on the probability of the commission of the crime charged, if not too remote in point of time. This rule is applicable to prior acts of intercourse, although a prosecution therefor has been barred by the statute of limitations.

See also, 1 Wharton’s Criminal Evidence § 250 (13th Ed., Anderson, 1972).

In Skinner v. State, 198 Miss. 505, 23 So.2d 501 (1945), we held that the admission of the defendant’s confession of more than one act of incest, under an indictment charging a single offense, was error, even though the other crimes were of the same or similar nature.

The Skinner case cited Love v. State, 142 Miss. 602, 107 So. 667 (1926) for the proposition that proof of more than one offense under an indictment containing only one count was prejudicial error. But in Love, the evidence of prior offenses was held to be admissible to prove the defendant, on trial as an accessory to incest, knew that the parties were related as father and stepdaughter. However, Love was reversed because the lower court instructed the jury that they might convict if they believed the offense occurred on the date alleged in the indictment or on any prior date.

In the present case, before the court allowed the testimony of prior acts of incest to go to the jury it instructed the jury as follows:

Members of the jury, before we continue with this testimony I now caution you that the defendant is being tried for a crime that is alleged to have occurred on the 28th day of July, 1978, and if, when you have heard all of the testimony and received the instructions of the court his guilt or innocence of the crime charged on that date will be the only decision you will make in this case regardless of what this other proof shows.

This instruction was proper and distinguishes this case from Skinner v. State, 198 Miss. 505, 23 So.2d 501 (1945) and Love v. State, 142 Miss. 602, 107 So. 667 (1926).

We now hold that insofar as Skinner held that evidence of more than one crime of incest was inadmissible in a prosecution for a single incestuous offense, that decision was in error. Accordingly, on that point we overrule Skinner and hold that evidence of prior sexual acts with the same person in prosecutions for incest is admissible for the same reasons as outlined in Brooks v. State, supra.

The appellant next argues the lower court erred in failing to dismiss the charges before trial, basing this argument on an analogy to Mississippi Code Annotated section 99-17-1 (Supp.1979). That section deals with a delay in bringing the case to trial after arraignment. In this case the defendant was arraigned only one week pri- or to trial. The fact that the trial did not occur until over sixteen months after the alleged act did not deny the defendant any right to a speedy trial. Preindictment delays are controlled exclusively by the applicable statute of limitations. See, i. e., Campbell v. State, 309 So.2d 172 (Miss.1975).

The appellant also alleges the court erred in failing to allow proper voir dire. He complains that defense counsel was required to propound questions to the entire panel. Nearly the identical issue was raised recently in Gray v. State, 375 So.2d 994 (Miss.1979). The appellant has failed to show that he suffered any prejudice through the use of the Stennis method of voir dire rather than the jury-box method. Nor is there any showing, or even an allegation, that the jury selected in the case was not fair and impartial. The trial court did not abuse its broad discretion in conducting voir dire.

The remaining assignments of error have no merit. There being no prejudicial error asserted, the judgment and sentence appealed from must be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    Mrs. Harriet G. BOYD v. Charles R. SMITH & Charles R. Smith, d/b/a Smith Mechanical Service.
    No. 52231.
    Supreme Court of Mississippi.
    Nov. 26, 1980.

      William L. Waller, Jr., William L. Waller, Sr., Waller & Waller, Jackson, for appellant.
    Thomas H. Suttle, Jr., Daniel, Coker, Horton, Bell & Dukes, Jackson, for appel-lees.
    Before ROBERTSON, C. J., and BOWLING and COFER, JJ.
   BOWLING, Justice,

for the Court.

This appeal from the Circuit Court of the First Judicial District of Hinds County involves a suit by appellant, Mrs. Harriet G. Boyd, against appellee, Charles R. Smith, seeking damages for personal injuries sustained in a motor vehicle collision. There was a jury verdict for appellant in the sum of $5,000. Appellant appeals and appellee cross-appeals. In her assignments of error, appellant contends that:

1. Allowing cross-examination concerning claims for money arising from prior unrelated personal injuries, and the payment of that money was irrelevant, immaterial, and prejudicial, and such questioning constitutes reversible error.
2. Granting instruction D-9 which allowed the jury to consider the negligence of the Coca-Cola truck driver, not a party to this action, in relieving the defendant of liability for acts he may have done in reliance on the third party was reversible error.
3. The verdict of the jury was against the weight of the evidence and was grossly inadequate.

Appellee and cross-appellant propounds the following cross-assignments of error:

1. It was error for the economist to have been allowed to express any opinions relating to damages.
2. The court erred in giving instructions P-7,' P-8 and P-9.
3. The court erred in allowing plaintiff’s exhibit 8 to be withdrawn from the record.

The motor vehicle collision giving rise to this suit occurred during the afternoon hours of February 10, 1978, and involved vehicles driven by appellant and appellee. The collision occurred on U.S. Highway 80 within the city limits of Jackson, Mississippi, a few hundred yards west of the intersection of U.S. Highway 80 and Terry Road. Highway 80 consists of two eastbound and two westbound lanes of travel with a dirt and grass median between the two directional lanes. At various distance intervals there were cross-overs for vehicles either to make U-turns or make left turns to go across the opposite lanes of travel and onto the frontage roads on both sides of the highway. At the time of the collision, appellant was operating her vehicle in a westerly direction on the outside lane of travel. Appellee had been operating his vehicle in an easterly direction and was making a left turn at the first cross-over west of Terry Road, intending to go onto the frontage road on the north side of the highway. As he crossed the westbound lanes of travel, his vehicle was struck in the right side by appellant’s vehicle which, as stated, was traveling west. Immediately before and at the time of the collision, a large Coca-Cola delivery truck was in the inside or southern lane of the westbound lanes of travel and was stopped, waiting for eastbound traffic to clear before proceeding across those lanes to the frontage road and into the Coca-Cola plant located on the south side of the highway. Appellee, as an affirmative defense, contended that when he reached the cross-over and prior to making his left turn, the driver of the Coca-Cola truck motioned him to proceed, and that was the reason he drove out in front of appellant’s westbound vehicle.

At trial, even though not affirmatively pled, appellee’s attorney was permitted to cross-examine appellant about injuries received in a 1960 motor vehicle collision and money received in settlement of those claims and a workman’s compensation injury she had received in 1967. Cross-examination was permitted regarding all injuries received by Mrs. Boyd in both incidents as well as the amounts of money she received in settlement. All this testimony was permitted by the trial court over appellant’s objections. Appellant’s testimony was that she received a back injury in the 1960 motor vehicle collision but that she fully recovered therefrom within a reasonably short time. As stated, she was permitted over objection to relate settlement negotiations and the resulting amount she received.

Mrs. Boyd was permitted over objections to be cross-examined about a 1967 workman’s compensation claim resulting from an injury while pushing filing cabinets. She testified that she only received an injury to her low back; that she did not receive any compensation payments, only payment for medical expenses, and that she fully recovered in a short time. She testified that she had no problem with her back or cervical spine after that incident and until the collision involved in the present suit.

It was error for the lower court to permit appellant to be forced over objection to go into detail regarding settlement negotiations for injuries received in the 1960 vehicle collision. The law on the extent of rehashing injuries received in a prior accident is uniform in the various jurisdictions. The principal case in Mississippi on this issue was set out by the Court, through Presiding Justice Gillespie, in Walters v. McLaurin, 204 So.2d 866 (Miss.1967). There, appellee received a verdict for injuries sustained when a scaffold on which he was working broke, causing him to fall to the ground. His claim was for an injury to his back. He was permitted to be cross-examined about an injury to his back in 1960, from which he was still wearing a brace at the time of the February 11, 1964, injury giving rise to the suit being discussed. An orthopedic surgeon testified that he examined appellant in 1962 and treated him in connection with his back injury of September 22, 1960. The same orthopedic surgeon examined and treated appellee from January to March, 1961, for an injury to his back. Appellee was hospitalized in April, 1961. He was again hospitalized for his back in November, 1962, and again treated for his back in February, 1963. The orthopedic surgeon stated that he had a voluminous file on appellee which showed that in December, 1962, he saw appellee, at which time he advised that an exploratory operation for a protruding intervertebral disc was necessary. This earlier diagnosis was identical to that given after the February 11, 1964, injury. Examination further revealed that appellee received a back injury in August, 1962, when a scaffold broke. A claim for workmen’s compensation benefits was made by appellee after this incident.

In discussing whether or not appellant McLaurin’s attorney was correctly permitted to cross-examine appellee Walters about all the foregoing condensed medical history, the Court specifically noted that appellee had admittedly sustained similar injuries prior to the February, 1964, accident and was still wearing a back brace for those prior injuries. It was obvious that all of his injuries from the several incidents were the same, and, accordingly, the attorney for the defendant had the right under the authorities to inquire into those injuries to ascertain what part, if any, the incident giving rise to the suit being discussed contributed to the overall back injury picture.

In Walters, supra, the appellant assigned as error the refusal of the trial court to admit in evidence records of amounts paid appellee in, settlement of compensation claims against former employers in connection with injuries to the same area of the back, which appellee contended was injured in the February 11, 1964, fall. It was contended by appellant that he should have been permitted to introduce in evidence the workmen’s compensation file for the prior back injuries. This Court held that the file should have been permitted to be introduced as all of the injuries admittedly were to the same area of the body, were relatively close together, and obviously there was a connection between them. However, this Court refused to approve the introduction of attempts to compromise the claims and indicated clearly that the amount of compensation paid in the earlier claims was admissible solely because it was paid for the identical type of injury for which appellee was again seeking recovery. [The opinion clearly indicates that this Court in the present case does not approve of a detailed examination as to amounts received in settlement of an injury sustained eighteen years ago, particularly when there was no evidence connecting the prior and present injuries.]

In order for testimony regarding specific amounts to be permissible, some clear and close connection between the prior and present claims must be shown. Coker v. Five-Two Taxi Service, 211 Miss. 820, 52 So.2d 356 (1951). In Walters, even though there was the extremely close connection in time and type of injury, the court handled the matter by ordering a remittitur or in the alternative a new trial on the issue of damages only.

We hold that it was permissible for appellee’s attorney here to have interrogated appellant as to whether or not she had received and been treated for similar injuries in prior accidents or incidents. In the event similar injuries had been received, it would be proper to interrogate further as to whether or not they had any connection with the claim then being presented. It was improper and error to permit examination about settlement negotiations and the amount of settlement made.

We find that all jurisdictions to which the question has been presented have made the same findings as set out above. The general rule for testimony relative to prior injuries or claims for money for prior unrelated injuries is set out in 25A C.J.S. Damages § 147 (1966), as follows:

Evidence showing the plaintiff had suffered an injury as the result of an occurrence which took place before the accident in question ordinarily is inadmissible unless a causal connection between such injury and the accident or injury in question is established.
... evidence showing that prior to the injury in question, plaintiff sued for personal injuries sustained by him in a previous accident is inadmissible where it serves no useful purpose, since it involves the danger of undue prejudice and a time-wasting confusion of issues... .
Evidence showing the plaintiff accepted a certain sum of money for personal injuries sustained by him prior to the injury in question is inadmissible where the circumstances are such that it is clearly irrelevant and immaterial and has no probative value in that it sheds no light on the nature, extent or cause of the injury in question.

This same question was developed in 69 A.L.R.2d 593 (1960), as follows:

Most of the cases in which the question has been raised have held or recognized that the plaintiff may properly be cross examined as to his previous injuries, physical condition, claims, or actions for injuries similar to that constituting the basis of the present action, for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused, wholly or partially, by an earlier injury or pre-existing condition.. . This recognition of the propriety of such cross examination is based upon the reasoning that the matter so inquired about is pertinent to the issue of the plaintiff’s present physical condition and the evidence thereby elicited is admissible in respect to the matter of damages, because the defendant is liable only for injuries resulting from his negligence and not for the residual effects of a prior injury or pre-exist-ing condition. Such recognition is not, however, unlimited, it being implicit in most of the cases that such cross examination is to be restricted to the nature and extent of previous injuries and in some instances the courts have specifically characterized as improper, in connection with cross examination as to previous claims or actions, inquiry with respect to whether plaintiff had consulted a lawyer with reference thereto and the nature of the legal advice received, whether he had obtained a settlement or recovery for his previous injury, and the amount of such settlement or recovery, such matters being irrelevant to the issues being tried.

See also Ferriola v. Burdick, 146 Conn. 574, 153 A.2d 319 (1959); City of Wichita Falls v. Chandler, 348 S.W.2d 48 (Tex.Civ.App.1961); Martinez v. Knowlton, 88 N.M. 42, 536 P.2d 1098 (App.1975); Greim v. Sharp Motor Lines, 101 Ill.App.2d 142, 242 N.E.2d 282 (Ill., 3d Dist. 1968); Mitchell v. Colquette, 93 Ariz. 211, 379 P.2d 757 (1963); Henderson v. Morris, 476 S.W.2d 471 (Tex.Civ.App.1971); Horton v. Brooks, 325 So.2d 912 (Miss.1976).

Appellee requested and was granted his Instruction D-9, which reads as follows:

The court instructs you that if you believe from a preponderance of the credible evidence that the driver of the Coca-Cola truck motioned to Mr. Smith for him to go ahead and cross the two lanes of highway 80 West, and if you further believe from a preponderance of the credible evidence that in doing so the driver of the Coca-Cola truck did not act with reasonable care in failing to ascertain that it was safe for Mr. Smith to cross the two lanes of traffic, then the Court instructs you that the failure to use reasonable care on the part of the driver of the Coca-Cola truck was negligence, and, therefore, if you believe from a preponderance of the credible evidence that the negligence of the driver of the Coca-Cola truck, if any, was the sole proximate cause of the accident and the damages claimed by Mrs. Harriet Boyd, then the court instructs you that you must return a verdict for the defendant....

This instruction clearly stated to the jury that if the driver of the Coca-Cola truck waved appellee Smith through the crossover and into the westbound lane of travel, then appellee was absolved from negligence. The fallacy of this argument is clear. It is contrary to all authorities, both statutory and case law, which prohibited appellee from making a left turn across the westbound lane of travel without first ascertaining that such could have been made with reasonable safety.

Mississippi Code Annotated section 63-3-707 (1972) states:

No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner provided in this article in the event any other vehicle may be affected by such movement.
A signal of intention to turn right or left shall be given continuously for a reasonable distance before turning.
No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in this article to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

Code section 63-3-803 states:

The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard. However, said driver, having so yielded and having given a signal when and as required by Article 15, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.

See Lynch v. Suthoff, 220 So.2d 593 (Miss.1969); Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350 (1957); American Creosote Works v. Rose Bros., 211 Miss. 173, 51 So.2d 220 (1951).

It is clear that in preparing to make his left turn, appellee did not have the legal right to rely on the truck driver before driving his vehicle out into the heavily traveled Highway 80 westbound lanes. He had a duty to ascertain whether he could do so with reasonable safety. Admittedly, he did not do so and appellant would have been entitled to a peremptory instruction on liability had one been requested.

Appellee advances the argument that if granting the discussed instruction was error, it is now moot as there was a verdict for the plaintiff. We cannot say that it is moot as the statement by the court regarding the disputed and contradicted actions of the Coca-Cola truck driver which might possibly absolve appellee of his legal duty would certainly tend to confuse the jury of average laymen. That confusion could and probably would enter into the question of damages to be assessed against appellee.

Appellant is a certified public accountant. She had worked for many years and at the time of the collision was earning a livelihood for herself and her husband who was disabled. She described in detail the loss of her ability to do full time work. At the time of the trial, some one year and ten months after the collision, she was not able to work but half her usual time. Her gross income in 1977 was around $20,000; in 1978, she grossed $9,000 and netted $4,600. She anticipated a loss of $11,000 for the year 1979. She testified that she could only work a couple of hours and then would have to lie down and rest, and this condition existed at the time of trial. As of the trial date, her medical, drug and physical therapy expenses as a result of the collision were itemized in the total sum of $4,548.52. She was permitted to give an estimate of lost past and future income if her condition persisted, and, as hereinafter will be shown, the reasonable probability was that it would continue.

A number of lay witnesses, including those who employed appellant’s services, testified to the diminished amount of work appellant could do after the collision and the difficulty that they personally observed when appellant attempted to perform her work.

Extensive testimony was taken from Dr. T. W. Talkington, a prominent orthopedic surgeon. He had examined appellant as a result of the workmen’s compensation injury in 1967, and testified positively that her complaint then was a low back strain that gave her very little trouble and from which she fully recovered. She had no cervical problem at that time and none from then until after the collision in question. He had seen her on occasions for other problems since 1967. Dr. Talkington confirmed appellant’s inability to do full time work subsequent to the collision. He described in detail the injury to her cervical spine and the disability she had incurred and would continue to experience. He testified that his examination showed a pre-existing arthritic condition in appellant’s cervical spine but that she had had no appreciable trouble with it prior to the collision. He testified positively that the collision with appellee’s vehicle “precipitated the symptoms” which resulted in appellant’s disability. He testified positively that appellant’s injuries were permanent, and that her injury would greatly interfere with her work as a CPA, particularly sitting at a desk. In his opinion, she would need to continue medication and physical therapy for an indefinite period. She had been taking physical therapy treatments for a number of months. The physical therapist testified as to the many treatments that had been given appellant.

The verdict of the jury was barely more than actual medical and drug expenses incurred up to the time of trial. Nothing was allowed for the undisputed pain, suffering, mental anguish and loss of income. The medical proof as to appellant’s permanent injuries resulting from the collision was undisputed except for the doubtful and nebulous cross-examination that her neck had been hurt eighteen years before. Undisputedly, appellant also suffered serious injuries to her arm and knee. We find clearly that the verdict of the jury was grossly inadequate and against the overwhelming weight of the evidence. The only question is whether or not to set an additur or in the alternative a new trial on the issue of damages only. The amount of damages is a question of fact. This Court does not hesitate to set additurs or remittiturs when we have a reasonably accurate basis on which to fix an amount. Due to the complexity of this case, and the voluminous medical evidence, it is our opinion that we should not order an alternative additur in this case but should reverse it for a new trial on the issue of damages only.

CROSS ASSIGNMENT OF ERROR

Appellant was permitted to introduce the testimony of Dr. Paul Oliver, a professor of Economics at the University of Mississippi School of Business. This witness clearly was an expert. His testimony assumed that appellant would lose the amount of $10,000 each year from her profession because of her permanent injuries. The expert was permitted to project this loss for the time that a person of Mrs. Boyd’s age would be expected to work before retirement. Appellee objected to this testimony as being speculative and not within the realm of Dr. Oliver’s expertise. We are constrained to say that any layman could have projected the same figures with the same number of years. The principal addition by Dr. Oliver was the statistics showing those years. Of course, had this been a death case his testimony would have been more appropriate. We do not think that we should hold on this cross-assignment of error that his testimony was erroneously received. It was admissible for what it may have been worth.

Cross-appellant alleges error in three instructions requested by plaintiff and approved by the court. We do not find error in any of these instructions when considered with all other instructions. Due to the disposition of the case, it is necessary to affirm as to the cross-assignment of error.

REVERSED ON DIRECT APPEAL AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES ONLY; AFFIRMED ON CROSS-APPEAL.

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


text:
    James Edward LEE, Jr. v. STATE of Mississippi.
    No. 52276.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Albert S. Johnston, III, Johnston & Stein-berger, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jackson County; Robert A. Pritchard, Judge.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


author: LEE, Justice,

text:
    G. E. HART v. E. V. CATOE, Jr. et al.
    No. 52244.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    J. B. Van Slyke, Jr., Pope & Van Slyke, Hattiesburg, for appellant.
    F. Douglas Montague, III, Gray, Montague & Pittman, Hattiesburg, for appel-lees.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

G. E. Hart filed suit in the Chancery Court of Forrest County against E. V. Ca-toe, Jr., to confirm title on a 40-acre tract of land situated in said county. Catoe filed an answer and cross-bill seeking cancellation of (1) a tax deed executed to Hart and (2) Hart’s claim as a cloud on his title to the 40-acre tract. The lower court, Honorable Howard L. Patterson, Jr., presiding, entered a decree dismissing the original bill of complaint and cancelling the Hart deed and all claims he asserted on the land as a cloud on Catoe’s title, and Hart has appealed.

Appellant assigns three (3) errors in the trial below, but the sole question presented is whether or not the chancellor erred in holding that appellant did not satisfy the notice provisions of Mississippi Code Annotated Section 27-43-3 (1972), as amended.

Appellee acquired the 40-acre tract of land in 1939. Each year thereafter, he wrote the tax assessor for tax statements and paid the ad valorem taxes due. Through some oversight or mistake, he failed to pay the 1975 taxes, although he continued to tender taxes as they became due in succeeding years.

The land'was sold to appellant for delinquent 1975 taxes on September 20,1976. It was not redeemed within the statutory two-year period and title matured in appellant. On October 10, 1978, the chancery clerk executed and delivered to appellant a tax deed covering the land. This suit subsequently was filed by appellant to confirm the tax deed and to cancel claims asserted by appellee.

Mississippi Code Annotated Section 27-43-3 (1972) provides for the giving of notice to a landowner before title to land sold at a tax sale matures in a purchaser. The section was amended, effective October 1, 1975, and the pertinent parts of the amended statute follow:

“In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the Clerk shall make further search and inquiry ... if personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the Clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the Clerk and such action shall be noted on the Tax Sales Record.
* * * * s& *
. .. The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the Clerk and sheriff have complied with the duties herein prescribed for them.” (Emphasis added) MCA § 27-43-3, as amended 1975.

An examination of the amended statute indicates that stringent requirements were placed upon the chancery clerk to notify a landowner of the tax sale and the fact that title to the land sold would mature in the purchaser on a certain date.

Without detailing the acts of the chancery clerk in attempted compliance with the statute, to locate and notify appellee, it is uncontradicted that appellee’s name and address appeared in the register of landowners maintained in the tax collector’s office and it is undisputed that the chancery clerk failed to file the supporting affidavits required by the statute.

The chancellor found and adjudicated the following:

“That Section 27-43-3 of the Miss. Code of 1972 Ann., as amended was not strictly complied with in that the search for the landowner’s proper mailing address was not diligent and thorough, as reflected by the availability of said landowner’s address on file in the office of the Tax Collector of Forrest County, Mississippi, and for the further reason that the required affidavit specifying the acts of search and inquiry made by the Chancery Clerk, was not filed of record or noted in the tax sale record.
That the address of the landowner at the time the statutory notice was given, was on file in the office of the Tax Collector of Forrest County, Mississippi, and was therefore available as a reasonable place of search and inquiry.
That the landowner made a bona fide effort to ascertain by mail the amount of taxes due at the time that same became payable, which was his usual and customary practice.”

Appellant cites Rains v. Teague, 377 So.2d 924 (Miss.1979). However, that case is not authority for the question here, since it was decided under the 1972 section and before the 1975 amendment was enacted.

The public policy of this state favors and protects owners of land from loss by its sale for taxes. Carmadelle v. Custin, 208 So.2d 51 (Miss.1968).

72 Am.Jur.2d State and Local Taxation § 1019, at 293 (1974) states the general law with reference to requirements of a statute such as Section 27-43-3 as follows:

“The requirements of the statute as to the service and proof of service of the notice required to terminate an owner's right to redeem from a tax sale are usually considered to be mandatory and required to be strictly followed. It has been held that no presumption that the requirements of such a statute have been complied with may be indulged. There must be strict compliance with the requirement of the filing of an affidavit showing the making, manner, and place of service, or, in the case of inability to serve the notice a strict compliance with the provisions regarding the proof to be filed showing the excuse for not serving the notice.” (Emphasis added).

The statute involved here must be given a strict construction, and its requirements fully satisfied. Essential mandates of the statute were not followed and the failure so to do renders the tax deed to appellant void. The chancellor was eminently correct in cancelling same and the judgment of the lower court is affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Mrs. Etta Lee Jackson RICHMOND v. Marguerite LAMB, Administratrix of Estate of Jessie Richmond, Deceased.
    No. 52245.
    Supreme Court of Mississippi.
    Dec. 3, 1980.

      William W. Ballard, Hernando, for appellant.
    Joel P. Walker, Hernando, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Jessie Richmond died on March 31, 1978, as a result of a collision between the automobile in which he was riding and a train. Two brothers, two sisters and the children of a deceased sister of Richmond filed a petition in the Chancery Court of DeSoto County to determine the heirs of Richmond and named as defendant, Ella Lee Dickens Jackson, an adult nonresident of Mississippi whose residence, post office and street address was 416 Howard Street, Grand Rapids, Michigan. Process was served on the defendant by publication and the defendant having failed to answer, a final decree was rendered September 12, 1978, holding defendant was not an heir of Jessie Richmond but that his brothers, sisters and children of a deceased sister were his heirs. On February 7, 1979, the chancellor signed an order directing that a certified copy of the final decree be sent to Ella Lee Jackson by registered mail with return receipt requested. On February 12, 1979, Ella Lee Jackson signed a receipt for certified mail from the Chancery Clerk of DeSoto County.

On August 2, 1979, Etta, Lee Jackson Richmond filed a petition requesting a rehearing of the petition to determine the heirs of Jessie Richmond and also prayed for other relief. The petition for rehearing came on for hearing and Ella Lee Jackson testified that her maiden name was Etta Lee Dickens. She testified that she married Jessie Richmond in Lafayette County on December 14, 1946, and introduced a certified copy of a marriage license showing that Jessie Richmond and Etta Lee Dickeys were married on December 14, 1946. Defendant then testified that she married Er-ris Jackson in Michigan in 1955, lived with him six years, that two children were born to the marriage, and thereafter she divorced Erris Jackson. She also testified that her employer in Grand Rapids called her by the name of Ella. Her Social Security card was introduced in evidence signed Ella Jackson which was signed by her in 1956. A Michigan temporary operators permit was introduced showing her name as Ella Jackson, 416 Howard, Grand Rapids, Michigan. She testified that she signed the temporary operators permit as Ella Jackson, the date of the permit being April 25, 1975.

Defendant admitted that she received a certified copy of the decree adjudicating the heirs of Jessie Richmond, but claims she was entitled to a rehearing because the letter containing the decree was addressed to Ella Lee Jackson instead of Etta Lee Richmond. The proof is overwhelming that defendant had adopted, and was using, the name of Ella Lee Jackson in her business affairs and was generally known by that name in Grand Rapids, Michigan where she lived. In State Board of Dental Examiners v. Mandell, 198 Miss. 49, 21 So.2d 405 (1945), we said:

The name by which a person is generally known, although not his original name, but used by him in all of his business affairs becomes his legal name and is not a fictitious name. (198 Miss. at 67, 21 So.2d at 410)

We hold that defendant was properly served with a copy of the decree under the name of Ella Lee Jackson.

The chancellor held that defendant was not entitled to a rehearing because she filed her petition for rehearing more than three months after the date of the service of the final decree on her. Section 11-5-89 Mississippi Code Annotated (1972) provides:

Decrees against nonresident, absent, or unknown defendants, rendered upon proof of publication only, without such defendant having appeared, shall be final and conclusive from the date of rendition, unless a rehearing shall be applied for within one year thereafter; but if the complainant shall serve a copy of said decree on the defendant within six (6) months of its rendition, a rehearing shall be applied for within three (3) months after the date of such service. But decrees for divorce, or for the sale of property, in the administration of the estates of decedents, or on petitions of guardians, or in any other case in which it is so provided by law, are not included in the provisions of this section for rehearings.

The statute does not prescribe the method for serving a copy of a decree on nonresident, absent, or unknown defendants. Sections 13-31-1, et seq., Mississippi Code Annotated (1972) provide for service of summons and subpoenas but contain no provision for service of a decree under section 11-5-89. Section 13-3-101 Mississippi Code Annotated (1972) provides that subpoenas for witnesses shall be served personally as a summons is required to be served, but section 11-5-89 does not contain such a provision. Since the legislature did not prescribe a method for serving a certified copy of a final decree on nonresident, absent, or unknown defendants, a chancellor may order service of such decree in any manner which affords a defendant due process. In this case the chancellor directed service by certified mail with a return receipt requested.

In compliance with the order, a certified copy of the final decree was sent to defendant by certified mail within six months after the final decree was rendered, defendant received the certified copy of the decree within six months, signed a receipt acknowledging delivery, and the receipt appears in the court file. We are of the opinion that service of a certified copy of the final decree on the defendant in this case in the manner set forth above satisfies the requirements of section 11-5-89 and afforded defendant due process. We therefore hold that service of a certified copy of a final decree on a nonresident defendant under section 11-5-89 is sufficient when a copy of the decree is sent to a defendant by certified mail and a receipt signed by the defendant acknowledging delivery is returned to the clerk of the court and filed in the cause.

Defendant did not apply for a rehearing for more than six months after receiving a certified copy of the final decree. We therefore hold that her petition for rehearing was properly dismissed by the chancellor under the provisions of section 11-5-89 Mississippi Code Annotated (1972).

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Don B. HUEY v. PORT GIBSON BANK.
    No. 52024.
    Supreme Court of Mississippi.
    Dec. 3, 1980.

      Nick B. Roberts, Jr., Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellant.
    Geoffrey C. Morgan, Morgan & Morgan, Kosciusko, Allen L. Burrell, Drake & Bur-rell, Port Gibson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

A judgment for $32,442.33 and attorneys’ fees of $6,488 was entered in the Circuit Court of Winston County against Don B. Huey as a personal endorser on two notes executed by Sav-Rite Drugs of Port Gibson, Inc., to the Port Gibson Bank. Aggrieved, Huey appeals and contends the trial court erred (1) in permitting the jury to carry all evidentiary exhibits into the jury room following the bank’s case in chief and prior to the submission of the case for the jury’s verdict, (2) in refusing Huey’s motion for a directed verdict, (3) in refusing Huey’s jury instruction D-4, (4) in permitting the jury to consider testimony of the value of the collateral other than market value, (5) in overruling Huey’s motion for a remitti-tur, and (6) in overruling Huey’s motion for a new trial.

The Bank of Port Gibson (hereinafter bank) filed suit on two promissory notes personally endorsed by Don Huey, Secretary and Treasurer of Sav-Rite Drugs of Port Gibson, Inc. (hereinafter Sav-Rite), the maker. The notes were executed to obtain capital to purchase inventory, furniture, and equipment for Sav-Rite.

The first for $29,508.12 was executed on March 31, 1977, and was to be repaid by monthly installments of $819.57. Sav-Rite was the corporate maker of the note with personal endorsement by R. Lewis Rieger, Ellis J. Jenkins, and Don B. Huey, the appellant, all corporate officers of Sav-Rite. As collateral, a security agreement was imposed on all inventory, furniture and appliances located in Sav-Rite and owned by the maker. To protect its interest in this note, the bank filed a financial statement evidencing the agreement on collateral with the Chancery Clerk of Claiborne County wherein the inventory, furniture and appliances were located. The bank, however, did not file such financial statement evidencing the security interest with the Secretary of State.

A second note was executed by Sav-Rite on May 11, 1977, for $25,000 at 9% interest with no monthly schedule for repayment. The personal endorsers on this note included R. Lewis Rieger and the appellant Huey. Across its face there was written “Further advance under the security agreement on furniture and fixtures and personal finance statement of endorsers.”

Both notes provided for reasonable attorneys’ fees for collection if not timely paid. Under this agreement, the bank incurred a loss in the collection process.

The bank required Huey to submit personal financial statements before closing the loans to demonstrate his financial ability to support the credit extended to the corporate maker. This portrayed a net worth of $174,395 on July 23, 1976, and a net worth of $260,785 in December 1976.

Sav-Rite executed a third note for $9,005 to the bank following the execution of the notes mentioned. This note bears the personal endorsement of Julian Robinson and is not in direct issue on appeal as Huey did not endorse it. However, it has some significance because it was paid in full as a Creditor of Sav-Rite from bankruptcy proceeds.

The corporate maker, Sav-Rite, subsequent to executing the notes, filed for bankruptcy in the Middle District Court of Louisiana. On November 14, 1977, the bank filed its proof of claim with the Trustee in Bankruptcy seeking $55,964.30 plus accrued interest from the date of bankruptcy on the notes as a secured creditor of Sav-Rite. The bank received two checks totaling $15,365.25 from the bankruptcy proceedings, $12,500 of which was received as a secured creditor. The bank credited the bankruptcy proceeds of $15,365.25 among the three promissory notes as follows: The first note, $3,602.98; the second note, $4,029.01; and the third note for $9,005, not endorsed by Huey, was paid in full.

Although the bank sought $55,964.30 as a secured creditor in Sav-Rite’s bankruptcy proceeding, only $12,500 was found to be secured with priority over other creditors of Sav-Rite. The difference remaining was considered by the Trustee in Bankruptcy to be unsecured and without priority because the bank had not filed its financial statement with the Secretary of State, thereby failing to put third party creditors on notice of the bank’s security interest in the inventory, furniture and appliances of Sav-Rite in Claiborne County. The bank now seeks to hold Huey personally liable for $46,904.83 still owing it on the two notes personally endorsed by him.

Huey first contends the court erred in permitting the jury to carry the exhibits into the jury room following the bank’s case in chief and prior to submitting it for a verdict. He relies upon Mississippi Code Annotated section 11-7-151 (1972), which provides, “All papers read in evidence on the trial of any cause may be carried from the bar by the jury” which he argues was clarified by Whittaker v. State, 169 Miss. 517, 142 So. 474 (1932). It was there held that permitting a map which had been read into evidence to be taken by the jury into its room when it retired to consider its verdict was not error. The present argument is that Whittaker, supra, precluded the perusal of exhibits prior to retirement for consideration of the verdict. We are presently of the opinion this was not error for the reason the defendant introduced several exhibits, as did the complainant, which were also taken into the jury room, and there is no testimony of any prejudice flowing from the incident. This leaves appellant’s argument that this action was the equivalent of singling out the plaintiff’s evidence thereby giving undue emphasis to it, without merit. Moreover, Whittaker, supra, as we read it, made no restrictions on permitting the jury to view evidence prior to retiring. Although we think better practice would suggest that exhibits be withheld from the jury room until the jury retires for a verdict, we find no prejudice and no error to the defendant under the present circumstances.

Huey next argues he was entitled to a directed verdict on the facts. He contends that after taking a security interest on the collateral of the corporate maker, the bank did not file a financing statement with the Secretary of State which resulted in the bank’s holding an unperfeeted security interest in the collateral, thereby permitting the lien to become subordinate to the interest of the trustee in bankruptcy. Mississippi Code Annotated section 75-9-401 (1972) designates the office in which a security interest should be filed to give it the protection of the statute. Subsections (l)(b) and (c) provide:

(1) The proper place to file in order to perfect a security interest is as follows:
* * * * * *
(b) when the collateral is goods which at the time the security interest attaches are or are to become fixtures, or which thereafter become fixtures, then in the office where a mortgage on the real estate concerned would be filed or recorded under the real estate laws of this state;
(c) in all other cases, in the office of the secretary of state and in addition, if the debtor has a place of business in only one (1) county of this state, also in the office of the chancery clerk of such county, or, if the debtor has no place of business in this state, but resides in the state, also in the office of the chancery clerk of the county in which he resides.

The bank did not avail itself of subsection (c) in protecting its interest, but rather filed its financial statement with the Chancery Clerk of Claiborne County even though its collateral agreement included all furniture, appliances and fixtures owned by the maker. The protection of the statute was available to the bank which either overlooked or chose not to use it. This precipitates the contention that the bank had the duty to perfect its security interest to protect Huey, the endorser, because it required his endorsement before closing the loan. Section 75-3-606{l)(b), Impairment of recourse or of collateral, provides:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder.
s|í sjs s¡« s}c sfc #
(2) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.

The security interest on the first note appears to be “all inventory of furniture and appliances.” On the second note the security agreement covered “furniture and fixtures.” Pursuant to the statutes cited, the security interest was not perfected. We therefore think the trial court erred in not directing a verdict for the defendant to the extent that the collateral had been impaired.

In Chrysler Credit Corp. v. Bank of Wiggins, 358 So.2d 714 (Miss.1978), a loan by the bank was secured by “all shop equipment, tools, furniture, and • fixtures, accounts receivable, office equipment, parts and inventory.” The financing statement was filed with the Chancery Clerk but not with the Secretary of State. This Court stated the filing should also have been with the Secretary of State for the security interest to be perfected. However, because Chrysler, a third party creditor, had actual knowledge of the bank’s security interest when it removed certain collateral contained in the security agreement, it was not entitled to the benefit of the statute. The Court cited Mississippi Code Annotated section 75-9-401(2):

(2)Except as provided in subsection (4B) of Section 9-313 [§ 75-9-313], a filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this chapter and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement, (emphasis added).

Presently, the filing with the chancery clerk was insufficient to secure the collateral, thereby permitting its impairment.

We find the case of First Bank & Trust Co., Palatine v. Post, 10 Ill.App.3d 127, 293 N.E.2d 907 (1973), persuasive to the above viewpoint. In it the Court on almost identical facts held that a lender by not filing a financing statement held only an unperfect-ed security interest in collateral which was subordinate to the interest of the trustee in bankruptcy of the corporate borrower. The failure to file was held to be an unjustifiable impairment of collateral, thereby relieving the corporate officers of their obligations as personal guarantors of the indebtedness.

Somewhat similarly, the West Virginia Supreme Court of Appeals in Peoples Bank, Etc. v. Pied Piper Retreat, Inc., 209 S.E.2d 573 (W.Va.1974), held that when the bank failed to perfect its security lien on some television sets used as collateral, it lost its priority, thus constituting an unjustifiable impairment to the endorsers of the note. In sum, we are of the opinion the bank’s failure to file the financing statement with the Secretary of State, thereby permitting other creditors to gain priority, was an unjustifiable impairment.

The next assignment of error, related to the above, is that the trial court erred in not granting defendant’s instruction D-4. It requested the court to rule as a matter of law, from uncontradicted evidence, that Huey was entitled to the defense of unjustifiable impairment to the extent that his recourse against the security had been destroyed by the bank’s failure to file its financing statement with the Secretary of State. This contention is disposed of by that previously stated. However, the court amended the instruction from its original form and granted it. The amendment, however, resulted in the submission of two issues to the jury; namely, whether there was an unjust impairment and if so, to what extent.

We are of the opinion the issue of unjust impairment was a matter for the trial court’s resolution arising from noncon-flicting facts and the second was properly submitted to the jury. We stated in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975): “The jury resolves conflict of fact-the court resolves issues of law arising from nonconflieting facts.” Although probably repetitious, the noncon-flicting facts reveal the agreement concerning collateral consisting of inventory, furniture and appliances was not filed in accord with the provisions of Mississippi Code Annotated section 75-9-401(l)(c) (1972).

It is next contended the court erred in permitting the jury to consider testimony of the value of the collateral other than market value. We believe this contention to be correct under Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So.2d 892 (1963), wherein it is held the usual measure of value for loss or destruction of personal property is the market value. By analogy, we think the market value of the lost collateral, though not destroyed, would be the same. Indeed, the appellee cites no cases on point to the contrary; but rather argues that the value of collateral was more correctly determined by an invoice dated shortly before the first loan was made, and sin.ce the jury had before it this invoice price, the liquidation price in bankruptcy, as well as testimony concerning the fair market value at the time of the bankruptcy, consideration of values other than fair market value did not constitute error. We disagree with ap-pellee’s contention. It is true that the reasonable fair market value might be that found by the trustee in bankruptcy since that is the date the endorser no longer had recourse against the collateral; nevertheless, we have no method to determine whether or not this was relied upon by the jury.

The jury was allowed to consider several values on the collateral including the invoice price, the bankruptcy price, and the market price. The intermingling of these diverse values compounded by a determination of the legal question left to the jury, i. e., whether it should indulge unjust impairment as a defense, could have affected the verdict. However, given the perplexing intermix of the legal question and myriad values presented to the jury, it is impossible for this Court to discern what measure the jury employed in reaching its verdict.

Overall, we are of the opinion the cause should be reversed on the issue of the extent of unjust impairment to the collateral so that the amount of the endorser’s discharge by impairment may be ascertained in accord with that which is stated in Bender’s U.C.C. Service, Hart & Wilder, Commercial Paper section 13.24(4) (1976), as follows:

Any discharge under subsection (1) of Section 3-606 is available only “to the extent” that the conduct affects the accommodation party’s obligation. This can be fairly readily determined where the conduct affects collateral. The question is, what was the collateral worth of which the accommodation party was deprived or as to which his rights were otherwise diminished? If a holder releases or otherwise impairs the collateral so that it is no longer available to satisfy all or part of the obligation of the principal debtor, its value must be determined as of that time and subtracted from the accommodation party’s obligation. He remains liable for that part of the debt due which is not adversely affected. If the value equalled or exceeded the debt, the discharge is total.

REVERSED AND REMANDED.

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


text:
    Sidney D. WOODS v. Hollis R. LEE.
    No. 51996.
    Supreme Court of Mississippi.
    Dec. 3, 1980.

      Walter W. Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellant.
    Nicholas M. Haas, Bay St. Louis, for ap-pellee.
   ON MOTION TO DISMISS APPEAL

SUGG, Justice,

for the Court:

Sidney D. Woods, appellant, filed suit in the Circuit Court of Hancock County seeking damages for the wrongful death of his minor son. The cause was tried in vacation by agreement of the parties whereupon the jury returned a verdict for the defendant. The jury verdict was filed December 7, 1977, and the following day the court granted appellant an additional ten days in which to file post trial motions. On December 9, 1977, appellant filed a motion for judgment notwithstanding the verdict or in the alternative a motion for a new trial. The motion was taken under advisement by the trial judge who neither ruled on nor entered an order on the motion. Neither has a final judgment been rendered.

After the trial court kept the motion under advisement for more than a year, appellant appealed by prepaying the costs on November 19, 1979. After the record was filed in this Court, appellee filed a motion to dismiss the appeal contending the appeal should have been perfected within six months and forty-five days after the trial judge took the motion under advisement. Appellee relies on sections 11-51-5 Mississippi Code Annotated (Supp.1979) and 11-1-17 Mississippi Code Annotated (1972) in support of his position. Appellee argues appellant could appeal only within the forty-five days immediately following the expiration of six months from the time the trial judge took the motion under advisement. Appellant counters with the argument that he was entitled to take an appeal under section 11-1-17 Mississippi Code Annotated (1972) at any time after the expiration of six months following the trial judge’s failure to rule on the motion, and was not required to appeal within the forty-five days immediately following the six months the trial judge had the motion under advisement.

Sections 11-1-17 and 11-51-5 provide:

Section 11-1-17:
All chancellors or judges of the chancery and circuit courts of the state of Mississippi shall render their final decree on any and all matters taken under advisement by such chancellors or judges not later than six (6) months after the date when same are taken under advisement or not later than six (6) months after the date on which the chancellors or courts or judges set as a date for the final brief or memoranda of authority is required to be filed on or as to the cause taken under advisement, whichever is the latest date after the date on which the cause or case is taken under advisement.
In the event a final decree has not been entered within the six months period hereinbefore referred to, then any party to said law suit shall have the right to appeal on the record as otherwise provided the same as if a decree has been rendered adversely. Said appeal shall be to the supreme court of the state of Mississippi and shall be treated as a preferred case over other cases except election contests.
Section 11-51-5:
Appeals to the Supreme Court shall be taken within forty-five (45) days next after the rendition of the judgment or decree complained of, and not after, saving to persons under a disability of infancy or unsoundness of mind the like period after the disability shall have been removed. However, in cases where the appellant infant or person of unsound mind was a plaintiff or complainant, and in cases where such a person was a party defendant and there had been appointed for him or her a guardian ad litem, appeals to the Supreme Court shall be taken within two (2) years after the rendition of such judgment or decree, and not after.
This section shall only apply to all judgments or decrees rendered and filed for record after December 31, 1972.

Section 11-1-17 applies only to final judgments and does not apply to interlocutory orders. An order sustaining or overruling a motion for judgment notwithstanding the verdict or a motion for a new trial in the circuit court is an interlocutory order.

Section 11-7-213 Mississippi Code Annotated (1972) authorizes an appeal from an order granting a new trial when the sole ground for the new trial is the excessiveness or inadequacy of the damages assessed. In Bowman v. Rutledge, 369 So.2d 768 (Miss.1979) we held that an appeal from an order granting a new trial on all of the issues in an automobile accident case was an interlocutory order, and this Court had no jurisdiction to entertain an appeal therefrom.

In Farned v. Aetna Casualty and Surety Co., 263 So.2d 790 (Miss.1972) we held that, while an interlocutory appeal from an order or decree of the chancery court is authorized under section 11-51-7 Mississippi Code Annotated (1972) if the restrictive conditions of the statute are met, no appeal lies from a judgment of the circuit court except on an order for a new trial where the basis is the excessiveness or inadequacy of damages. In the case before the Court, the question of excessiveness or inadequacy of damages is not one of the grounds of plaintiff’s motion and could not be because the jury verdict was for the defendant. If the trial judge had sustained the motion for a judgment notwithstanding the verdict or for a new trial, the order sustaining the motion would have been an interlocutory order and would not have been appealable under the statute and our decisions. Appellant has attempted to appeal under the provisions of section 11-1-17 which permits a party to treat the failure of a judge to rule on a matter within six months as an adverse ruling. If an order had been entered on the motion, it would have been an interlocutory order, so the appellant is attempting to do indirectly what he could not do directly; namely, appeal from an interlocutory order. Appellant’s remedy was by writ of mandamus to compel the trial judge to rule on the motion rather than by appeal. We therefore dismiss the appeal and remand the case for further proceedings.

If the trial judge does not rule on the motion after remand, appellant should apply for a writ of mandamus. When the motion is presented to the trial judge following remand he may either sustain or overrule the motion. If the motion is sustained a new trial will be granted, if it is overruled, a final judgment should be entered based on the jury verdict. In either event, after a final judgment is entered in the case then any aggrieved party may perfect an appeal from such final judgment.

MOTION SUSTAINED.

All Justices concur.


author: BROOM, Justice,

text:
    Peyton W. WILLIAMS, Jr., et al., v. Boswell STEVENS et al.
    No. 51684.
    Supreme Court of Mississippi.
    Dec. 10, 1980.

      John E. Hughes, III, Wells, Wells, Marble & Hurst, Jackson, for appellant.
    M. M. Roberts, Hattiesburg, A. F. Summer, Atty. Gen. by Ed Davis Noble, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   BROOM, Justice,

for the Court:

La Bauve Trustee voting rights relative to membership on the Board of Trustees (the Board) of State Institutions of Higher Learning under Section 213-A of the Mississippi Constitution of 1890 highlight this ease. Complainants (appellants) are: Pey-ton Williams, Jr. and Jane Koelz, faculty and staff employees of Mississippi State University, and Katherine J. Mosley, a staff employee of Jackson State University. Named as defendants were Boswell Stevens, Dr. Verner S. Holmes, Dr. R. C. Cook, William M. Shoemaker, Sr., Travis E. Parker, Bobby L. Chain, Mrs. Miriam Q. Simmons, Dr. Robert Walker Harrison, Charles C. Jacobs, Jr., Dr. John R. Lovelace, Mrs. Betty A. Williams, Neal Denton Rogers and Robert L. Shemwell, Jr., the membership of the Board of Trustees of State Institutions of Higher Learning when suit was commenced, and Dr. E. E. Thrash, Executive Secretary of the Board. Originally filed in the Chancery Court of Noxubee County, suit was transferred to the Chancery Court of the First Judicial District of Hinds County. The lower court sustained appellees’ (defendants) general demurrer and the complainants appeal here.

The controversy resulting in the litigation before us arose from action taken April 28, 1977, when the Board considered a motion

[T]o allocate $100,000.00 to Delta State University and $300,000.00 to the University of Mississippi before allocating according to the formula the remaining increase for on-campus general support for 1977-78.

By a 7 to 6 vote, the La Bauve Trustee voting affirmatively, this motion was approved by the Board. The appellants correctly point out that except for the La Bauve Trustee vote, the motion would have failed on a tie vote. Argument of the appellants is that the La Bauve Trustee was not entitled to vote on the motion because it did not exclusively pertain to the University of Mississippi. Appellants (complainants) aver in their bill that they “individually have been damaged monetarily and in their inability to fulfill the terms and conditions of their contract.” Their action sought a permanent injunction precluding

.. . the “Trustee for the La Bauve Fund”, and his successors in office, if any, to participate in any business of the Board whatsoever, unless said business of the Board pertains exclusively and uniquely to the University of Mississippi, and does not affect in any manner any other institution of higher learning.

In making his ruling, the chancellor stated:

This court cannot do that which is requested by the complainants. Since the provisions of the section of the Constitution in question provide that the La Bauve Trustee shall be a trustee in addition to the other trustees, he is in fact a member of the Board of Trustees of Institutions of Higher Learning. The section restricts him to voting “only in matters pertaining to the University.” The context of the word university indicates clearly that this does mean the University of Mississippi, and no question is raised about that part. But the limitation placed on the La Bauve Trustee to voting only in matters pertaining to the University of Mississippi is clear and unambiguous. In effect, when any matter is put to a vote before the Board, the question must be first answered, “Does the matter before the Board for a vote pertain to the University of Mississippi?” If it pertains to the University of Mississippi, then the La Bauve Trustee has the right to vote. If it does not pertain to the University of Mississippi, the La Bauve Trustee does not have a right to vote.

Along with their answer and demurrer the appellees filed as separate defenses: (1) a plea contending that the appellants lacked “standing to bring this suit;” and (2) a plea in bar contending that no appeal had been taken “from the action of said Board” in the proper manner. Along with and as a part of their pleas was their request that the pleas “be heard prior to a hearing on the merits. ... ” Nevertheless, without addressing or ruling on the separate defenses, the chancellor sustained the demurrer and stated:

The demurrer raised questions of jurisdiction and standing to sue, but the main thrust of the matter has to do with the interpretations of the words used in Section 213-A of the Mississippi Constitution. * * *

Left unresolved were the issues of the complainants’ “standing” and the “plea in bar.” Both these issues should be decided at an evidentiary hearing before reaching other issues.

True it is that the parties proceeded to trial on demurrer without pressing for a resolution of the “standing” issue. However, our view is that the issue of “standing” is a jurisdictional question which can and should be raised by us on our own motion-this is especially true where, as here, a constitutional interpretation is sought. To conclude otherwise would permit the “standing” issue to be resolved with the accompanying possibility that it might be determined adversely to the complainants, thereby leaving this Court in the awkward posture of having interpreted the constitution for complainants who had no legal right to invoke the jurisdiction of the Court.

Established law is that constitutional issues are not reached if cases can be resolved upon other bases and surely this includes the right to invoke the jurisdiction of the Court. This is in accord with the following statement of Justice Frankfurter excerpted from his concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951):

But in a case raising delicate constitutional questions it is particularly incumbent first to satisfy the threshold inquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions “appropriate for judicial determination?” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617, 108 A.L.R. 1000. (341 U.S. at 150, 71 S.Ct. at 637, 95 L.Ed. at 842).

And see Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979):

We first address three preliminary questions not raised by the parties or the Alabama Courts below, but which nevertheless may be jurisdictional and therefore are considered of our own motion.
The first concerns the standing of Mr. Orr
(440 U.S. at 271, 99 S.Ct. at 1107, 59 L.Ed.2d at 314). (Emphasis added).

We stated in Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808 (1940):

[O]ne of the fundamental principles in invoking a court’s jurisdiction is that the plaintiff or complainant, as the case may be, must show a right in himself to invoke the jurisdiction of the court. (188 Miss. at 164, 193 So. at 810).

The threshold issue of standing to sue and the plea in bar should be resolved by remand to the trial court before we reach the constitutional issue.

Accordingly we remand for the trial court to resolve the issues of (1) standing, and (2) the plea in bar, stated above. If these issues are resolved favorably to the appellants, the court should hear proof on the bill and answer. The case should not be decided on a general demurrer because the case involves close questions of constitutional interpretation. This accords with our long standing rule stated in Griffith’s Mississippi Chancery Practice, § 310, 2d Ed. (1950), as follows:

In accordance with the trend of modern judicial opinion it has been definitely established as a rule by our latest cases that attempts should not be made to settle close and difficult questions of law and right on a demurrer. If the demurrer raise merely a doubtful question or if the case be such that the cause of justice will probably be promoted by a determination of the ultimate right only on answer and proof, the court ought to exercise a fair judicial discretion to that end, although it may be that in technical point the grounds of the demurrer are sustainable in strict law.

The evidentiary hearing should address the creation and history of the La Bauve Trust, the legislative and constitutional history of the La Bauve Trustee, the voting rights accorded the La Bauve Trustee, and any other matters relevant to the issues so this Court will have a complete record in the event of another appeal.

REMANDED FOR FURTHER ACTION BY THE LOWER COURT IN ACCORDANCE WITH THIS OPINION.

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

      . Dr. Cook and Mr. Shemwell are deceased. Tommy Munro succeeded Dr. Cook; Betty A. Shemwell succeeded Mr. Shemwell.


text:
    Frances L. Roberts McNAIR v. Ronald W. McNAIR.
    No. 52274.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Harold Leon Miller, Miller, Miller & Stewart, Pearl, for appellant.
    Fred M. Harrell, Jr., Brandon, for appel-lee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

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

AFFIRMED WITHOUT PREJUDICE.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    Jane C. MICELE v. Ignatius John MICELE.
    No. 52269.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Jimmy D. McGuire, Gulfport, for appellant.
    Walter W. Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Special Chancellor.

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

AFFIRMED IN PART AND REVERSED AND REMANDED FOR NEW TRIAL IN PART.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    L. C. COLEMAN v. STATE of Mississippi.
    No. 52284.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    J. Martin Mooney, Seminary, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Covington County; L. D. Pittman, Judge.

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

AFFIRMED.


text:
    ALLSTATE INS. CO. v. Jerri Lou PRINCE et al.
    No. 52270.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Lucius B. Dabney, Jr., Dabney & Dabney, Vicksburg, for appellant.
    Everette Verhine, Robert M. Koestler, Vicksburg, for appellees.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.