author: SCHOTT, Judge.

text:
    Lorenza WILSON v. EBASCO SERVICES, INC. et al.
    No. 11117 (Consolidated with No. 11166).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.

      See also La.App., 386 So.2d 375.
    John S. Keller, New Orleans, for plaintiff-appellant.
    Paul Deal and Darryl Foster, Lemle, Kel-leher, Kohlmeyer & Matthews, New Orleans, for defendant-appellee.
    Before REDMANN and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

This is a workmen’s compensation case in which plaintiff was awarded benefits for partial disability pursuant to LSA R.S. 23:1221(3) in connection with an accident on the job on June 29, 1977. Plaintiff has appealed seeking benefits for total disability as well as certain unpaid medical expenses. She also seeks penalties and attorney’s fees based on the alleged arbitrary and capricious refusal by employer’s insurer to pay certain medical expenses and compensation for the period from January 15 until July 21, 1978. Defendants have answered the appeal seeking a termination of benefits as of the end of July, 1979, and alternatively a reduction of the award to 100 weeks for residual disability pursuant to R.S. 23:1221(4)(p). The principal issue is whether the trial judge erred in his finding that plaintiff’s pain was not substantial so as to entitle her to benefits for total disability or that plaintiff’s pain resulting from phlebitis was neither caused nor aggravated by plaintiff’s injury of July, 1977. The other issues raised by the specifications of error and defendants’ answer will be discussed hereafter.

Plaintiff, who was a mail clerk, injured her back on June 29,1977, when she lifted a mail carrier box. A few days later she saw her internist, Dr. Louis Levy, II, who diagnosed a lumbosacral sprain and prescribed medication and heat treatments. She had first seen Dr. Levy in February, 1976, when she was admitted to the hospital and was found to be suffering from thrombo-phlebi-tis. She was treated for this condition by Dr. Levy from February, 1976, until and beyond the time of her accident. In September, 1977, she was admitted to the hospital for lumbosacral sprain and phlebitis where she was treated by Dr. Levy in consultation with Dr. Kenneth Adatto, an orthopedic surgeon. X-ray studies of the back were basically normal and conservative care was indicated. She remained under the treatment of Dr. Adatto for her back and improved until January 12, when he felt that her prognosis was favorable and that she was doing “really well.” He advised her to return to work as a mail carrier on January 16, 1978.

At this time plaintiff did take employment at the airport doing security checks for passengers boarding planes. This involved handling passengers’ hand baggage, and after a brief period she resigned because of constant pain in her legs and back. She returned to Dr. Adatto in March and he referred her to Dr. Dorsey Dysart, a neurologist, for an evaluation. In April Dr. Dy-sart conducted an electro-diagnostic examination on plaintiff and diagnosed her condition as a bilateral L4, L5 and SI radiculopa-thy. However, in May Dr. Adatto, after reviewing Dr. Dysart’s report, concluded that her condition “appears to be bruising reaction rather than a ruptured disc” and he advised her that she could return to work “as long as she protects her back from stressful activity.” While this report was given to the employer’s insurer, Dr. Adatto testified that Dr. Dysart’s studies indicated more than just a simple lumbar strain and suggested disc involvement, so that a mye-logram was recommended. She was hospitalized in July for this purpose and was found to have two ruptured discs. A lumbar laminotomy was performed bilaterally at L3 — 4 and L5-S1, along with a discogram at L4 — 5.

Following the surgery, plaintiff continued to be treated by Dr. Adatto who testified that by May of 1979 she was getting better but was not yet in a position to return to gainful employment. He felt that by June or July, 1979, she should be able to work from an orthopedic standpoint, assuming no difficulties with the phlebitis.

In the meantime, plaintiff continued to suffer with phlebitis, and in October of 1978 was admitted to the hospital by Dr. Levy for that condition. On the date of plaintiff’s last visit to Dr. Levy in April, 1979, he found no active phlebitis and felt that her condition should remain stable in the absence of any traumatic injury to her leg.

Plaintiff testified that she was still in great pain at the time of the trial in June, 1979, and was then wearing a “TNS machine” which is designed to relieve the patient’s pain and remove her from the need for medication. She was not working at the time of the trial and testified that she would not work as long as she continued to have such severe pain.

The first question is whether the trial court erred as a matter of law in limiting plaintiff to recovery for partial disability as opposed to total disability. As a matter of law a plaintiff able to work but only in substantial pain is totally disabled and entitled to the benefits conferred by R.S. 23:1221(2), Whitaker v. Church’s Fried Chicken, Inc., - So.2d - (La.1980, No. 65401). However, the determination of the degree of pain is a factual determination largely based on the testimony of the plaintiff who, in the final analysis, is the only one capable of describing her pain. While plaintiff’s testimony would support a conclusion that her pain was substantial, and this testimony was corroborated by her mother’s testimony, the trial judge apparently concluded that this pain was not of the severity which she described. Her treating physician, Dr. Adatto, concluded that she had a 20 to 25 percent disability and stated that she would “always have pain and discomfort on a permanent basis.” He also stated that the pain “should be controlled with the TNS machine, keeping her weight under control, over the counter medicine, it’s something she will learn to live with, most people do.” Dr. Adatto gave the unqualified opinion that her total disability from performing any employment was on a temporary basis only, and indicated that she could do general clerical work in the future provided she did not use her back in stooping or lifting.

Plaintiff’s biggest problem is that some of her pain and difficulty is caused by the phlebitis and not by her back problem. If the phlebitis had been caused or aggravated by her injury her case for total disability would be much stronger. Plaintiff attempted to prove that the phlebitis was aggravated by the surgery on her back together with post-operative immobilization in July, 1978, but in the final analysis fell short of carrying her burden of proof in this regard. Drs. Adatto and Manale, both orthopedists, seemed to think that her phlebitis was aggravated by the accident and/or the back surgery but both deferred to Dr. Levy, the acknowledged expert in this field, and he would not say that it was more probable than not' that the phlebitis was aggravated. His opinion that causal connection was only a possibility and not a probability was shared by Dr. Marion Williams, a thoracic and cardiovascular surgeon, who did not examine plaintiff but did review all of the medical reports on plaintiff at the request of defendants. Both Drs. Levy and Williams indicated that the absence of some symptoms following the July surgery, such as swelling and pain in plaintiff’s legs, precluded a conclusion that her phlebitis was aggravated by the surgery.

With the foregoing discussion we reach the conclusion that there is no manifest error in the trial court’s award of benefits for partial disability under R.S. 23:1221(3) and thereby dispose of the first three specifications of error by plaintiff as well as defendants’ contention that the award be reduced to benefits for temporary total disability under R.S. 23:1221(1) or residual disability to the spine under R.S. 23:1331(4)(p).

Plaintiff next contends that the trial court erred in not awarding her a judgment for the medical expenses which she incurred during her hospitalization in October, 1978. The judgment’s only pertinent provision was for “all medical expenses incurred in the treatment of the back injury” and it was stipulated that all expenses except the October hospitalization had been paid. We are thus unsure of the trial judge’s intent on this item. In any case, the record shows that Dr. Levy was the admitting physician at this time. Plaintiff was complaining of swelling in her legs along with chest and abdominal pains. During this hospitalization she was examined by Dr. Bernard Ma-nale, who was Dr. Adatto’s partner, and upon her discharge Dr. Levy diagnosed “anemia, post-lumbar laminectomy and possible phlebitis.” He explained that there were no overt signs of phlebitis except questionable calf tenderness in both legs, and he indicated that this hospital stay in retrospect was necessitated by both back pain and leg pain. In view of the fact that plaintiff was still under Dr. Adatto’s care in October, 1978, this hospitalization occurred only three months after the back surgery, she was examined by Dr. Manale in place of Dr. Adatto during this hospitalization, and according to discharge notes Dr. Manale referred her to physical therapy for instructions on back strengthening exercises, we have concluded that there is sufficient connection between the back injury and the hospitalization to warrant her expense recovery of the bill in the amount of $1484.10.

Plaintiff further contends that the trial court erred in not awarding her compensation benefits unpaid for the period January 15 through July 21, 1978, along with penalties and attorney’s fees, for nonpayment. As to the benefits themselves, the judgment provides for payment of maximum benefits beginning June 29,1977, and continuing for 425 weeks so that this disputed period is included in the judgment. Since that portion of the judgment was in plaintiff’s favor, and defendants did not take a suspensive appeal, the judgment is final on this point and plaintiff is entitled to execute her judgment for the benefits for this period. As to penalties and attorney’s fees in connection with the benefits for this period we have concluded that plaintiff is entitled to make this recovery. Although the insurer was told as late as May 15, 1978, by Dr. Adatto that plaintiff could return to work and although the insurer had a report from Dr. Stoker in March that she could work, it was established in July that she had two ruptured discs so that her complaints of pain over the previous five months were clearly demonstrated to be true. At this point, the failure to pay benefits for the period from January 15 to July 21 became arbitrary, capricious and without probable cause and subjected defendants to the 12% penalty. Plaintiff is therefore entitled to recover the sum of $307.70 (12% times $95 times 27 weeks) plus attorney’s fees which we assess at $500.

Accordingly, that portion of the judgment appealed from awarding plaintiff benefits for partial disability and medical expenses is affirmed and is to include the sum of $1484.10 for the October, 1978, hospitalization. That portion of the judgment denying plaintiff penalties and attorney’s fees is reversed and she is awarded penalties of $307.70 and attorney’s fees of $500. In all other respects the judgment is affirmed. Defendants are assessed the costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    Lorenza WILSON v. EBASCO SERVICES, INC., et al.
    Nos. 11166, 11117.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Writ Granted Sept. 19, 1980.
    See also La.App., 386 So.2d 371.
    John S. Keller, New Orleans, for plaintiff-appellant.
    Paul Deal and Darryl Foster, Lemle, Kel-leher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees.
    Before REDMANN and SCHOTT, JJ. and SARTAIN, J., Assigned.
   SCHOTT, Judge.

This is a companion case to No. 11117, Wilson v. EBASCO Services, Inc., 386 So.2d 371 (La.App.) decided this date, the two cases having been consolidated for disposition in this court.

Following the judgment of the trial court in the previous case plaintiff filed a second suit alleging that she desired to become a patient at the Mercy Hospital Pain Clinic in the hope of easing her pain, but she was unable to procure defendants’ guarantee for the anticipated expense of $10,000 in this connection. Defendants filed exceptions of lis pendens and res judicata which were maintained by the trial court, and plaintiff has appealed. In this court, defendants have filed an exception of no cause of action which we maintain thereby affirming the judgment of the trial court insofar as plaintiff’s second suit was dismissed. A workmen’s compensation claimant is not entitled to an award for future medical expenses, but the right to claim such expenses is reserved to her. Defendants’ liability for them arises only when they are incurred. Anderson v. Eagle Asbestos Company, 355 So.2d 1082 (La.App. 4th Cir. 1978).

The judgment dismissing this suit is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    Vivian Fisk LARKIN v. James W. LARKIN, Jr.
    No. 11256.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1980.
    Rehearing Denied Aug. 14, 1980.

      Gerald P. Webre, Metairie, for plaintiff.
    Katherine L. Kennedy, Metairie, for defendant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

A divorced mother appeals from a custody judgment which took custody of her four children from their father and gave her custody of two girls, now ages 14 and 9, and gave the paternal grandmother custody of a girl 16 and a boy 7. The mother seeks reversal only with respect to the boy. (The mother has moved to Hawaii and she testified at trial that she respected, in view of the oldest daughter’s approaching college age, that child’s wish to stay in Louisiana with the grandmother, to whom she was very close.)

We reverse. In the absence of unusual circumstances, established in the record, a court may not award child custody to a grandparent instead of a fit parent and a court may not further break up a family and deprive the children of one another’s comfort and moral support by unnecessarily separating the children from one another.

Custody of all four children had initially been given to the mother. The all-too-usual and some unusual battles over support and visitation followed. The mother was hospitalized after an accident and the husband moved for a temporary change in custody to himself; but then the husband got into a gunfight which occasioned doubt as to whether the children should even visit him. A consent judgment awarded temporary custody to the paternal grandmother, reciting that the change was granted at the mother’s request to be relieved temporarily of custody, and that the mother would notify the court by motion when her “medical advisers conclude that she has had a sufficient period of time to be prepared to resume the custody of the four minor children.” Ten months later another consent judgment gave custody to the father, “subject to the right of [the mother] to file for custody in the future.” More battles followed over support and visitation (including visitation by overseas telephone). Almost a year later the mother filed a rule including a demand for custody. The court ordered psychiatric evaluations which it read but which were not introduced into evidence and are not in the record. (Another part of the judgment appealed from orders that not only the parties and their children but also the paternal grandmother and the mother’s second husband each have psychiatric treatment or family therapy.)

There is no support in the record for a conclusion that the mother is unfit and, indeed, the award to her of custody of the two young girls necessarily establishes that she is a fit mother. Nor is there any suggestion that she is unfit as to the boy (she is allowed to bring him to Hawaii for as long as four weeks for visitation). In short, the record reveals no basis for denying the mother the custody of the boy (while giving her the custody of the two girls) in order to give custody of the boy to the paternal grandmother.

Louisiana cases often recite the views that the child’s best interest is the paramount concern, La.C.C. 157A, and that one of the parents is ordinarily preferred over others as child custodian, Wood v. Beard, La.1974, 290 So. 675, and that children should not ordinarily be separated from one another, Earnest v. Earnest, La. App. 1 Cir. 1973, 286 So.2d 747, writ refused La., 290 So.2d 330; Gulino v. Gulino, La. App. 1 Cir. 1974, 303 So.2d 299; see also Tiffee v. Tiffee, 1969, 254 La. 381, 223 So.2d 840.

We find nothing in this case to except it from those ordinary principles.

Reversed; custody of James W. Larkin III is awarded to his mother on the same terms as that of Laure and Janie; and the order that the mother pay $75 monthly to the grandmother for support of James and Lisa is amended to $25 for Lisa; and the order that the father pay $75 for both is amended to make that payment for Lisa alone.


author: SARTAIN, Judge.

text:
    GOOD HOPE REFINERIES, INC. v. OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL, LOCAL 4-447.
    No. 11478.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 10, 1980.
    Rehearing Denied Aug. 5, 1980.
    Adams & Reese, Michael G. Crow, New Orleans, for relator.
    Hess & Washofsky, Dennis M. Angelico, New Orleans, for Local.
    Before GULOTTA, BOUTALL and SAR-TAIN; JJ.
   SARTAIN, Judge.

We granted writs in this cause to consider the validity of an order of the district court which transferred a rule for contempt from its civil docket to its criminal docket. The facts giving rise to the issue are not in dispute and present solely a question of law.

The litigants are Good Hope Refineries, Inc., a Texas corporation with its principal place of business situated in St. Charles Parish, hereinafter referred to as “Refinery”, and Oil, Chemical, and Atomic Workers International, Local 4-447, hereinafter referred to as “Local”, a labor organization whose members are employed by Refinery.

Pursuant to a vote of its membership, Local commenced a strike at 7:00 a.m. on March 1, 1980. On March 2 Refinery sought and obtained a temporary restraining order relative to certain activities of Local’s membership. On March 4, pursuant to a stipulation, a preliminary injunction was issued as to both Local and Refinery enjoining each, their respective agents, members, contractors, sub-contractors, and “all persons acting in concert or participation with them” from engaging in specified conduct, etc., and in general designating the manner in which each party should conduct their respective affairs concerning picketing and the movement of traffic to and from public thoroughfares and the plant facility. The parties thus enjoined waived, each as to the other, the necessity of posting bond.

There then followed reciprocal citations for contempt wherein each party accused the other of violations of the provisions of the preliminary injunction. Prior to the return dates Local moved the court to transfer these contempt proceedings to the criminal docket for trial by jury under the provisions of R.S. 23:848(3).

The trial court in its written reasons for judgment, while noting previous decisions relating to the inherent power of the court under appropriate constitutional authority, concluded:

“However, Const.1921, Art. 7(2) has been refined by Const.1974, Art. 5(2): ‘_ The power to punish for contempt of court shall be limited by law.’ And R.S. 23:848 has never received judicial scrutiny; And in U.M. W. v. Ark. Oak Flooring Co. [238 La. 108] 113 So.2[d] 899, the court stated ‘However, it does not necessarily follow from the fact that the injunction issued under the general law that the provisions of the Little Norris-LaGuardia Act, which have not been found unconstitutional were also inapplicable — .’ Further, in New Roads v. Dukes [La.App.] 312 So.2[d] 890, the court obliquely considered R.S. 23:848, and while holding it not applicable to the matter, since there was no labor dispute, it indicated that it would apply had the matter been a labor dispute. Finally, Board v. Bates [258 La. 1049] 249 So.2[d] 127, and Board v. Boisvert [258 La. 1062] 249 So.2d 132, were considered under the light of Duncan v. Louisiana, 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491] and other cases. The rationale of these cases would be to make applicable the provisions of R.S. 23:848, to contempt proceedings in labor disputes.
“This court is of the opinion that the rationale of Gaspard, Godchaux Sugars, and Const.1921, Art. 7(2) should prevail: To allow R.S. 23:848 to deprive this court of its power to enforce the injunctive restrictions by summary contempt proceedings will, or could, precipitate irreparable injury to property rights, endanger the lives and safety of the people of the community, and result in breaches of the peace, all before the contempt matters can be heard in criminal court before a jury.
“Nonetheless, the apprehensions and speculations of this court are insufficient to deny application of a seemingly valid statute.
“Reluctantly, this court will remove the contempt proceedings to the criminal docket for this court in St. Charles Parish, and, shall order them allotted and brought to trial in accordance with the Criminal Rules of Court.”

For reasons hereinafter stated, we hold that the trial judge erred.

The judge a quo was correct in his observation that the application for R.S. 23:848 (Acts 1934, No. 203) “has never received judicial scrutiny”. However, we disagree with his conclusion that the 1974 Constitution [Art. 5(2)] “refined” or in anywise modified the earlier provisions of the 1921 Constitution [Art. 7(2)].

The 1921 Constitution, Art. 7, § 2, provided in pertinent part:

“The Supreme Court, the Courts of Appeal, and each of the judges thereof, . and each district judge throughout the State . . ., may issue writs of habe-as corpus, in behalf of any person in actual custody in cases within their respective jurisdictions; and may also, in aid of their respective jurisdictions, original, appellate, or supervisory, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs, orders and process, and where any of said writs are refused, the appellate courts shall indicate the reasons therefor.”

Art. 19, § 17 states:

“The power of the courts to punish for contempt shall be limited by law.”

The relevant provision in the State Constitution of 1974 is found in Art. 5, § 2, which provides:

“A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court. Exercise of this authority by a judge of the supreme court or of a court of appeal is subject to review by the whole court. The power to punish for contempt of court shall be limited by law.”

A reading of the above constitutional provisions does not reflect any essential change. The 1974 article is simply a condensed or shorter version of provisions of similar import contained in the Constitution of 1921.

It is also clear from a reading of the proceedings of the constitutional convention that no change was intended. After the article was read to the convention, Judge Dennis (now Justice), chairman of the judiciary committee, explained:

“Fellow delegates, this represents no essential change from the present constitutional provisions which are contained in Section 2 and Section 17 of Article VII, of the 1921 Constitution.
“We have simplified the language somewhat but have not changed the substance of the law.” (Proceedings, August 15, 1973, p. 207)

In response to a question from a fellow delegate concerning the significance of the phrase “may be limited by law” contained in the last sentence of the article, Justice Dennis replied:

“It relates primarily to statute law. We have proceeded upon the traditional theory that the power to punish is, for contempt of court, is inherent in the court but that the reasonable limitations may be placed upon it by legislative act.” (Proceedings, August 15, 1973, pp. 707-708)

See also Hargrove, The Judicial Article of the Louisiana Constitution of 1974, 37 La.L. Rev. 765, 793 (1977).

R.S. 23:841, et seq., have their legislative origin in Act 203 of 1934, referred to as the “Little Norris-LaGuardia Act”, modeled after the federal act of the same name. The purpose of the act was to limit the power of the court in the granting of injunctions in matters growing out of labor disputes. The earlier application of the act apparently presented no problem. In Dehan v. Hotel & Restaurant Employees, etc., 159 So. 637 (La. App. 2nd Cir. 1935), and Johnson v. Milk Drivers & Dairy Employees Union, etc., 195 So. 791 (La.App. 2nd Cir. 1940), it was held that under the provisions of the act and the particular facts presented, the court was without jurisdiction to issue an injunction. A review of these cases reveals that the purpose of the injunctions therein sought were to restrain peaceful picketing. To this extent we find these authorities are distinguishable on-the facts from those cases that we hereinafter cite.

In Twiggs v. Journeymen Barbers, etc., 58 So.2d 298 (Orl.La.App.1952), cert. denied July 3, 1952, the issuance of a preliminary injunction against two competing unions was upheld on the theory that it was within the court’s constitutional grant of authority to issue a preliminary injunction to prevent irreparable injury to “complainant’s property”.

In Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954), the Supreme Court of this state was presented with its first confrontation between the provisions of the anti-injunction statutes, R.S. 23:841 et seq., and the injunctive power of the court under its constitutional authority. In Douglas writs were granted to review the trial court’s termination of a previously issued temporary restraining order and dismissal of plaintiff’s suit for injunc-tive relief. In reversing and remanding, the court stated:

“For the courts to function in an orderly manner, and with equal protection to all, the Constitution not having provided otherwise, it became necessary for the legislature to establish the rules and regulations that would govern the procedure to be followed by those seeking this guaranteed protection, including the issuance of all needful writs and processes. Such procedural statutes will be upheld in our courts so long as they do not violate our basic law. However, any act of the legislature, whether procedural or substantive, that infringes or trenches upon the constitutional prerogatives of the courts, cannot stand.
“With these fundamental principles so well known, and universally recognized under our republican form of government as absolutely essential for the maintenance of our way of life, it is difficult for us to understand how our learned brother below could find complainant’s petition failed to allege an injury done it in its private and property rights and, by the dismissal of its suit, to, in effect, close the doors of his court to it in its effort to have these rights protected.
“The petition clearly states that the twenty-one named defendants are trespassing upon the private property of the petitioner and are committing numerous acts of violence, coercion, and intimidation with respect to its property rights and with respect to the rights of its employees and those of the employees of its customers, which acts continued even up until the day of the trial of the case, when a supplemental petition was sought to be filed showing additional acts of violence that had just that day occurred, including the cutting of the petitioner’s lines of communication.
******
“It follows that the provisions of the so-called anti-injunction act that seek to limit the jurisdiction of the district courts of this state in the granting of immediate relief, if that is necessary for the protection of rights and property, are illegal and ineffective.”

While one concurring opinion agreed with the result on the basis that the statutes do not apply to acts of violence, the author felt that there was no need to question the validity of the statutes themselves. The dissenting opinion expressed the view that the statutes were a reasonable legislative restraint on the court’s authority. For a criticism of the majority holding, see 15 La.L.Rev. 324 (1955).

In reaffirming its position in the Douglas case, the Supreme Court in Goudchaux Sugars v. Chaisson, 227 La. 146, 78 So.2d 673, 682 (1955) stated:

“In the Douglas Public Service Corp. case we held that the legislative statutes prescribing procedural rules for obtaining needful writs and processes would be upheld so long as they did not violate our basic law, but that such acts, whether procedural or substantive, infringing or trenching upon the constitutional prerogatives of the courts, could not stand. As in that case, it is evident under the facts here that resort to these statutory provisions would, in effect, have closed the doors of the courts to the plaintiffs seeking relief from impending irreparable injury as well as destruction of the private and property rights. Additionally, it would have so hampered the court in granting relief their constitutional guarantee of protection would amount to no protection at all and would, actually, deprive them of their property without due process of law. These exceptions are, therefore, without merit.”

While a perusal of the above authorities leaves some doubt as to whether the sections under the act, now R.S. 23:841-844, were in fact declared unconstitutional in the Douglas and Goudchaux cases, above, or whether the attempted invocation of these sections under the facts presented would have resulted in an unconstitutional infringement upon the court’s authority, one result of these authorities seems clear. The statutes themselves do not apply where in-junctive relief is sought to prevent acts or threats of violence, intimidation or coercion to the extent that the public’s health, safety or general welfare is at stake. The statutes themselves appear to make this exception.

The transcript of the proceedings in this cause on the rule for the preliminary injunction makes it quite clear that there were serious acts of violence, threats and intimidation which posed a serious danger to the public. The trial judge during the course of the hearing made it quite clear that this was his primary concern.

Accordingly, we hold that the provisions of R.S. 23:841 et seq., and particularly R.S. 23:848, are not applicable and the general law relating to the injunctive relief applies.

For these reasons the writ issued herein is made peremptory, and the order of the district court transferring these proceedings to the criminal docket is reversed and set aside. The stay order previously issued by this court is recalled and this matter is remanded for further proceedings on the civil docket.

All costs relating to this writ are assessed against respondent.

WRIT MADE PEREMPTORY, REVERSED, AND RECALLED.

      . R.S. 848(3) reads:
      “The right to remove the said proceeding to the criminal docket for a speedy and public trial by an impartial jury of five from the judicial district wherein the contempt shall have been committed, provided that this requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court.”


text:
    Sam BROWN, Jr. v. STATE of Mississippi.
    No. 52122.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Donald W. Bond, Winona, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Charles Lee ALEXANDER, et ux. v. Harvey CARTER.
    No. 51946.
    Supreme Court of Mississippi.
    July 23, 1980.
    Rehearing Denied Aug. 20, 1980.
    Sekul, Hornsby, Wallace & Teel, Walter W. Teel, Biloxi, for appellants.
    Jimmy D. McGuire, Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

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

Affirmed.


author: BOWLING, Justice,

text:
    The STATE BOARD OF EDUCATION of the State of Mississippi et al. v. BUS SUPPLY COMPANY, INC.
    No. 51941.
    Supreme Court of Mississippi.
    July 30, 1980.

      A. F. Summer, Atty. Gen. by Stephen J. Kirchmayr, Jr., and J. Stephen Wright, Sp. Asst. Attys. Gen., Jackson, for appellants.
    Reeves & Reeves, R. B. Reeves, Morgan & Price, John P. Price, McComb, for appel-lee.
   BOWLING, Justice,

for the Court:

This case originated in the Chancery Court of the First Judicial District of Hinds County. The defendant, Mississippi State Board of Education, appeals from an adverse decree.

The basic issue involved in the case is the interpretation of Mississippi Code Annotated section 37-41-101 (1972) as amended. Bus Supply Company, Inc. [a seller of school bus bodies], in the prayer of its bill of complaint for a mandatory injunction, requested a decree requiring the State Board of Education to comply with the provisions of the above stated statute. The lower court placed its interpretation on this statute and issued its decree accordingly, as hereinafter shall be discussed.

In order to set the issues in perspective, we set out the principal statute in question. First, it should be noted that a paramount consideration in the determination of the appeal is that the Legislature amended the statute, the amendment becoming effective after July 1, 1977. A determination of the legislative intent in amending the statute is required. Before the amendment, the statute read as follows:

The state board of education is hereby authorized, empowered, and directed to advertise for and receive bids and proposals for sale of school transportation equipment and supplies to the counties and school districts of this state and to enter into contracts relative thereto ,and to fix prices which counties or school districts may not exceed in purchasing such school transportation equipment and supplies. County boards of education and the trustees of school districts may make purchases under such contracts [at] the prices so fixed without additional advertisement for bids.

After the 1977 amendments the statute now reads as follows:

The state board of education is hereby authorized, empowered and directed to advertise for and receive sealed bids and proposals for sale of school transportation equipment and supplies to the counties and school districts of this state, and to enter into contracts relative thereto based upon the lowest and best bids, which counties or school districts may not exceed in purchasing such school transportation equipment and supplies. In determining the lowest and best bids received for such equipment and supplies, there shall be included as part of the total cost thereof any transportation or freight charges which will be incurred. County boards of education and the trustees of school districts may make purchases under such bids and according to the provisions of this section without additional advertisement for bids.

A brief history of the controversy between the parties, as revealed by the briefs and the record, is as follows. In December, 1978, appellee, through its representatives, appeared before appellant board complaining that the board was not setting prices for the purchase of transportation equipment by the school districts and county school boards of the State pursuant to law and particularly pursuant to Code section 37-41-101. Under this complaint the board admitted that in November, 1978, it had fixed the maximum price to be paid by the county and district school boards for transportation equipment at the April, 1978, price, plus seven percent.

The present injunction suit was filed on March 9,1979. It thereupon developed that on March 6, 1979, the board by order on its minutes had discontinued and abandoned the method of fixing transportation equipment prices that was being used in November and December, 1978. The new procedure adopted on that date, allegedly pursuant to Code section 37-41-101, as amended, and as shown by the minutes of the board as of that date, was that from and after November 1,1979, the date of the new bids, th% board would, according to law, accept the lowest and best bids and enter into contracts based upon those bids, and that those contractees would be the only persons or firms authorized to sell transportation equipment and supplies within the State. The appellant board initially contended that its action taken on March 6, 1979, rendered the March 9, 1979, bill of complaint a moot issue for the reason that at the time of the filing of the suit the board was conforming to the request of the prayer of the suit— that is, abiding by the terms of Code section 37-41-101 as amended.

The lower court declined to dismiss the suit and it was tried mostly on stipulations of undisputed facts. After a hearing, the lower court issued its decree enjoining appellant board from proceeding as it had determined at the March 6, 1979, meeting and held that the appellant board could not enter into contracts with the lowest and best bidders and require that the school districts purchase only under those contracts. The pertinent part of the court’s opinion is as follows:

The present suit was filed March 9, 1979, and process was issued. However, on March 6,1979, the Board determined that after November 1, 1979, that only the lowest and best bidder would be the only persons authorized to sell school transportation equipment and supplies within the State of Mississippi, departing from the previous position that the Board would permit others to sell at prices fixed. The Court is of the opinion that the Board has no authority to award any contract to only the lowest and best bidder. Since the Board does not purchase any school buses, it would be the Court’s opinion that it could not enter into any contract for the purchase of any school buses.

The first issue raised by appellant is that the lower court should have sustained its demurrer based on the ground that an adequate remedy at law existed, that is, the remedy of mandamus. It is sufficient to say that under the authorities the lower court was correct in overruling the demurrer. See Mississippi State Board of Veterinary Examiners v. Love, 246 Miss. 491, 150 So.2d 532 (1963); Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 67 So.2d 378 (1953); Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190 (1923).

The basic question to be decided by this Court is whether or not in amending Code section 37-41-101 the Legislature intended that the State Board of Education, after advertising for and determining the lowest and best bid, be required to enter into a contract with those bidders and that local school boards are then required to purchase transportation equipment solely under those contracts. At the outset we recognize the persuasive argument as agreed to by the lower court that the statute in question did not mandate the school district boards to purchase transportation equipment only under the state board’s contract. The lower court stated that the districts are entities which pay the bill and should be permitted to purchase from any reputable seller so long as the purchase price did not exceed the lowest bid secured by the state board.

As stated by the lower court in its opinion, the questions in this case probably should be reconsidered by the Legislature. This Court cannot exercise that function. We necessarily are required to interpret the statutes as written and assume that there was a valid and compelling reason for their enactment.

We first look to the general statutes regarding the powers given by the Legislature to the State Board of Education pertaining to the transportation of pupils in the entire state. Code section 37-41-1 [among other things] provides that the State Board of Education is authorized, empowered and directed to promulgate rules and regulations for “formulating specifications for use in purchasing school buses, equipment and supplies; getting bids on school buses, equipment and supplies; and fixing prices which counties or districts may not exceed in purchasing buses, equipment and supplies for said buses.”

It is noted that this section was not amended at the time of the amendment to section 37-41-101 in 1977. Section 37-41-85 provides as follows:

No county board of education or board of trustees of a municipal separate school district shall purchase any transportation equipment or establish, erect and equip school bus shops or garages, or purchase land therefor, as authorized by section 37 — 41-81 except in the manner prescribed by the applicable rules and regulations of the state board of education. No transportation equipment shall be purchased or otherwise acquired which does not conform to the specifications for school transportation equipment provided by the state board of education.

Code section 37-41-87 provides:

All contracts for the purchase of school transportation equipment and the employment of drivers therefor shall be subject to the approval of the state board of education.

Code section 37-41-103 provides:

For the further purpose of carrying out the provisions of sections 37-41-81 and 37 — 41-101, the state board of education is further authorized and empowered to adopt and promulgate reasonable rules and regulations not inconsistent with the law for such purpose. Said state board of education shall have, in addition, all power and authority conferred upon it by the provisions of sections 37 — 41-1 to 37-41-51 or any other statute.

We now address what we heretofore have said is the primary issue in the case, that is, what did the legislature intend when it amended section 37 — 41-101 in 1977? First, we note that the statute prior to amendment authorized the state board “to fix prices which counties or school districts may not exceed in purchasing such school transportation equipment and supplies.” For some reason, obviously intentional, the amended statute omitted this provision. The old statute further only required the state board “to advertise for and receive bids and proposals.” After the deletion and change of these provisions, the 1977 amendment reads as follows:

The state board of education is hereby authorized, empowered and directed to advertise for and receive sealed bids and proposals for sale of school transportation equipment and supplies to the counties and school districts of this state, and to enter ipto contracts relative thereto based upon the lowest and best bids, which counties or school districts may not exceed in purchasing such school transportation equipment and supplies.

For emphasis it is noted that the legislature “directed” the state board to receive sealed bids and “enter into contracts relative thereto based upon the lowest and best bids.” It is inescapable from this language that the persons, firms or corporations who submitted “the lowest and best bids” would be entitled to the benefit of selling the equipment under those bids. It would be an exercise in futility and would even be an inconsistency to interpret the amended legislative mandate to hold that after determining the “lowest and best” bids and entering into contracts thereunder, the county boards and school districts could then purchase from whomever they pleased. An example of such an interpretation would be that any of the other bidders could immediately contact and sell the county board or school district its equipment for a price reduced even slightly under the lowest and best bid even though it was the highest bidder. Such an interpretation is completely incompatible with the language of the amended statute.

The reason the legislature amended the statute requiring contracts be let to the lowest and best bidder is clear. If a bidder is assured that it will be able to sell transportation equipment and supplies under its bid, if its bid is low, the bidder will submit its lowest bid in an effort to sell the bid items. On the other hand, if a bidder knows it can sell transportation equipment and supplies at a price equal to the lowest and best bid submitted by any other bidder, there is no incentive for the bidder to bid its lowest figure. The amendment to the statute was made for the purpose of encouraging bidders to submit their lowest bids, and the construction of the statute urged by appellees would defeat the purpose of the amendment.

As stated above and as stated by the lower court, the interpretation we are required to place on the amended statute mandates that the school district or county board use its own money to purchase under a contract entered into by the state board. This might seem to usurp the powers of the local boards, but as hereinbefore stated, this is clear from the legislative mandate, and any change necessarily would have to be made by that branch of state government. We hasten to say, however, that the statutes other than amended section 37-41-101 clearly give the state board extensive jurisdiction over the purchase of transportation equipment by the local boards.

Therefore, we hold that the adoption of the procedure by the State Board of Education as shown in its minutes of March 6, 1979, unless subsequently changed or amended, is the legal procedure for advertising for bids regarding the purchase of transportation equipment and under the statutes the state board has the authority and duty to promulgate rules and regulations to implement that procedure. The cause is therefore reversed and rendered and the bill of complaint of appellee is dismissed.

REVERSED AND RENDERED.

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


author: WALKER, Justice,

text:
    I. A. ROSENBAUM, Jr., et al. v. T. S. McCASKEY et al.
    No. 52014.
    Supreme Court of Mississippi.
    July 30, 1980.

      Deen, Cameron, Prichard & Young, R. B. Deen, Jr., C. Jerome Kittrell, Meridian, for appellants.
    Thompson, Alexander & Crews, Arlin C. Ruthven, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

I. A. Rosenbaum, Jr., Maude R. Fliegel-man, individually, and Maude R. Fliegel-man, as trustee for Sidney L. Rosenbaum, filed suit to remove clouds and confirm title to an undivided one-fourth interest in all oil, gas and minerals in 40 acres of land in Wayne County described as the SW Vi of the NW Vi of Section 21, Township 6 North, Range 6 West. They appeal from the final decree of the Chancery Court of Wayne County dismissing their bill of complaint with prejudice.

The facts necessary to present the issue before the Court may be briefly stated. On March 19, 1947, I. A. Rosenbaum, Sr., conveyed by quitclaim deed to T. S. McCaskey approximately 1700 acres, including the above described 40-acre tract. The deed contained the following recital:

It is understood and agreed that the grantor herein is to retain one-half (%) of all oil, gas and mineral rights in the above described lands, together with one-half (Vá) of all rentals and royalties.

At the time of this conveyance Rosenbaum owned the entire surface and one-half the minerals, having previously conveyed an undivided one-half interest in the minerals in the 40 acres to one W. G. Terry. The record does not reflect what interest Ro-senbaum owned in the other property conveyed, this suit being confined to the one 40-acre tract.

I. A. Rosenbaum died and devised all of his estate to the appellants, I. A. Rosenb-aum, Jr., Maude R. Fliegelman and Sidney Rosenbaum. The appellees’ interest is derived from the conveyance by Rosenbaum to T. S. McCaskey.

The question before this Court is whether I. A. Rosenbaum reserved any estate in the minerals by the quitclaim deed to T. S. McCaskey. The appellees (successors in title to T. S. McCaskey) claim the reservation in this quitclaim deed was merely an exception of the one-half mineral interest previously conveyed to W. G. Terry. The appellants (Rosenbaums) claim it was an additional severance of one-half of the one-half interest then owned by Rosenbaum.

Had this instrument been a warranty deed, there is no question that Rosen-baum would have retained no interest, notwithstanding the recital in the deed that he was to retain a half interest in the minerals. If a grantor conveys and warrants land but excepts or reserves one-half the minerals, at a time when one-half the minerals are outstanding in a third party, he is held to have conveyed the whole surface and one-half the minerals. Since one-half the minerals was all he had to convey the grantor is left with no interest, the rationale being that the grantor’s warranty obligation to convey half the minerals is superior to his reservation rights. See, e. g., Lucas v. Thompson, 240 Miss. 767, 128 So.2d 874 (1961); Brannon v. Varnada, 234 Miss. 466, 106 So.2d 386 (1958); Garraway v. Bryant, 224 Miss. 459, 80 So.2d 59 (1955); Salmen Brick & Lumber Co., Ltd. v. Williams, 210 Miss. 560, 50 So.2d 130 (1951).

All the above cases involved warranty deeds. As pointed out in 1 Williams & Meyers, Oil and Gas Law, § 311 (1978), there are two rationales to sustain the result that the grantor retains no interest, both of which appear in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940). The first characterizes the problem as one of construction only. Construed as a whole the deed shows an intent to convey to the grantee all the surface and one-half the minerals. The reservation clause merely withdraws that one-half interest which the grantor does not own from the operation of the grant. The second rationale is that the grantor retains the one-half mineral interest that he owns, but he is estopped to assert his reservation, by analogy to the doctrine of estoppel by deed against assertion of after-acquired title.

As stated above, this Court has consistently reached the same result as in Duhig in cases involving warranty deeds. We have found no similar cases in this or any other jurisdiction involving a deed without a warranty. By statute a deed with no warranty has the same legal effect as a quitclaim deed. Such a deed passes to the grantee whatever interest the grantor has in the land conveyed, along with a contingent right to claim any interest the grantor may later acquire in the conveyed land.

A quitclaim deed operates only as a conduit to pass the grantor’s interest to the grantee. To determine what interest passes by a quitclaim deed, a grantee, or any interested person, must look to the chain of title prior to the deed to determine what interest the grantor had to convey and subtract therefrom any express reservation in the quitclaim deed. If the grant- or had a smaller interest than the deed purports to convey, the grantee may not complain. The grantor by a quitclaim deed makes no representation, covenant or warranty of title and has no duty or obligation to protect the conveyance against any prior conveyance to others in the chain of title. In such a situation our statute affords the grantee the right to claim for himself any interest in the land covered by the description in the deed, even if that interest is not then owned by the grantor, but is subsequently acquired by him.

Viewed in this light the quitclaim deed from Rosenbaum to McCaskey is unambiguous. It reserves or retains unto Rosenbaum an undivided one-half mineral interest in the entire 40 acre tract and transfers to McCaskey whatever is left — in this case, the surface.

The learned chancellor erred in dismissing the bill of complaint. He apparently relied, in part, on an analogy to the doctrine of estoppel to assert an after-acquired title. This doctrine is not applicable to the facts of this case. The quitclaim deed unambiguously reserves a one-half interest in the title to McCaskey. Since the quitclaim deed does not convey the interest Rosenbaum retained, his heirs are not es-topped to assert title to that interest. It was neither conveyed nor subsequently acquired.

The appellants admit, however, that it was intended that the appellees should have an undivided one-fourth mineral interest in the 40 acres and seek only to confirm their title to an undivided one-fourth mineral interest. In view of this admission we, therefore, now hold that the quitclaim deed from Rosenbaum to McCaskey transferred an undivided one-fourth mineral interest to McCaskey in this particular 40-acre tract, and we quiet and confirm the Rosenbaum heirs’ title to an undivided one-fourth mineral interest therein.

For the above reasons, the case is reversed and rendered.

REVERSED AND RENDERED.

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

      . Mississippi Code Annotated section 89-1-37 (1972) provides: “A conveyance without any warranty shall operate to transfer the title and possession of the grantor as a quitclaim and release.”

      . Mississippi Code Annotated section 89-1-39 (1972) provides: “A conveyance of quitclaim and release shall be sufficient to pass all the estate or interest the grantor has in the land conveyed, and shall estop the grantor and his heirs from asserting a subsequently acquired adverse title to the land conveyed.”

        .See McLaurin v. Royalties, Inc., 231 Miss. 240, 95 So.2d 105 (1957), where the Court held that a quitclaim deed which purports to convey “all my right, title and interest” does not purport to convey any interest other than that vested in the grantor at the time of the execution of the quitclaim deed. In such a case the grantor is not estopped to assert an after-acquired title and such after-acquired title does not inure to the benefit of the grantee in the deed, since the estoppel is coextensive only with the estate, right or title conveyed.

      . Various memoranda, mineral leases and a ratification and rental division order show that the Rosenbaums have always recognized that the McCaskeys owned at least an equal interest with them in the minerals.


text:
    Jimmy Wayne HARRELL v. STATE of Mississippi.
    No. 50440.
    Supreme Court of Mississippi.
    July 30, 1980.
    Richard D. Foxworth, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

ON MOTION FOR LEAVE AUTHORIZING MARION COUNTY CIRCUIT COURT TO HEAR MOTION TO VACATE SENTENCE

Jimmy Wayne Harrell has filed a motion with this Court to authorize the Marion County Circuit Court to hear a motion to vacate a sentence imposed upon him. The reason given for the motion filed in the Circuit Court was that the statute under which he was indicted, tried and convicted, the so-called “fondling statute,” was later declared unconstitutional by this Court.

We affirmed Harrell’s conviction under Mississippi Code Annotated section 97-5-23 (1972), in Harrell v. State, 357 So.2d 643 (Miss.1978). We subsequently held that section 97-5-23, the “fondling statute,” was discriminatory in that it unconstitutionally denied equal protection of law to males because it did not apply to females as well. Tatro v. State, 372 So.2d 283 (Miss.1979).

Our decision in Tatro was occasioned by the United States Supreme Court’s new interpretation of the equal protection clause of the Constitution, reflected in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

The questions presented are whether our decision in Tatro must or should be given retroactive effect. The answer is no in each instance.

There are statements in United States Supreme Court cases indicating that an unconstitutional law must be treated as having no effect whatsoever from the very date of its enactment. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886); Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880). On the other hand, there are many statements which indicate the United States Supreme Court has clearly rejected any all-inclusive principle of retroactivity for court decisions declarative of a change in the law. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254 (1932).

Retroactive effect has often been given to those decisions dealing with new constitutional rules of criminal procedure, especially those which substantially improve the accuracy of the fact-finding process at trial. See, e. g., Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) [use at trial of absent witness’ preliminary hearing testimony is not justified unless state made a good-faith effort to secure the witness’ presence]; Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) [right to counsel when arraigned at preliminary hearing]; McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 35, 21 L.Ed.2d 2 (1968) [right to counsel at hearing to revoke probation]; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) [admission at a joint trial of a defendant’s extrajudicial confession implicating codefendant violated codefendant’s right of cross-examination]; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) [right to counsel at trial]; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) [right to counsel on appeal].

But it is firmly settled that the United States Constitution does not require every new interpretation of the Bill of Rights to be retrospectively applied. See, e. g., Williams v. U. S., 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 308 (1971) [case narrowing the permissible scope of a search incident to arrest was inapplicable to searches conducted prior to that case]; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) [exclusionary rule applied to states prospectively].

Neither has the common law ever attached complete retroactivity to the repeal of a criminal statute. The rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule; but repeal of a statute abated pending prosecutions and required reversal of convictions still on appeal when the law was changed. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 438, 78 L.Ed. 763 (1934); United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153 (1871); Yeaton v. United States, 5 Cranch. 281, 3 L.Ed. 101 (1809). The courts have regularly enforced 1 U.S.C. § 109, the federal savings statute, which generally provides that the repeal of a statute does not extinguish a penalty incurred under the repealed statute unless the repealing Act so provides. The courts have never suggested that it is constitutionally infirm or even fundamentally unfair and frankly recognize that the government is free to maintain the integrity of the law by insisting that those who violate it suffer the consequences.

The posture of this case is not unlike that of Wainwright v. State, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). There, in separate trials, two defendants were convicted of violating the Florida statute which proscribed “the abominable and detestable crime against nature, either with mankind or with beast.” Prior to the convictions the State Supreme Court had held the statue was not unconstitutionally vague. Delaney v. State, 190 So.2d 578 (Fla.1966), appeal dismissed, 387 U.S. 426, 87 S.Ct. 1710, 18 L.Ed.2d 866 (1967). Subsequent to the convictions, however, the State Supreme Court ruled that the statute was void for vagueness, but expressly ruled that its decision was not retroactive. Franklin v. State, 257 So.2d 21 (Fla.1971). The United States Supreme Court, in a per curiam opinion expressing the unanimous views of the Court, held that the convictions were not improper on the grounds that the statute was unconstitutionally vague, since at the time of the convictions the highest court of the state had long held that the acts for which the defendants were convicted were covered by the statute, stating:

But this holding did not remove the fact that when appellees committed the acts with which they were charged, they were on clear notice that their conduct was criminal under the statute as then construed. (414 U.S. at 23, 94 S.Ct. at 193, 38 L.Ed.2d at 182).

The Court also held that the State Supreme Court was not “constitutionally compelled to make retroactive its new construction of the Florida statute,” citing Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254 (1932).

At the time Harrell committed the offense, and at the time of his conviction and appeal, section 97-5-23 was presumed to be a valid law, and a violation of the law was a crime. The existence of a statute, prior to a determination of its invalidity, is an operative fact and may have consequences which cannot be ignored. Having failed to raise the question, Harrell can now be in no better position than if he had raised the question unsuccessfully, in which case what was said in Sunburst, supra, would apply:

A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions.

In Tatro we did not specify whether our decision was to be given retroactive effect or prospective effect only.

In deciding this question, we note that Tatro did not deal with conduct that constitutionally cannot be prohibited, such as freedom of the press, freedom of speech, etc. The acts prohibited by the “fondling" statute are detestable and are accorded no protection by law. Therefore, because of the nature of the acts constituting the crime of “fondling”, we now hold that Ta-tro shall be given prospective effect only.

For the above reasons, the motion of Jimmy Wayne Harrell to permit the Circuit Court of Marion County to hear his motion to vacate his sentence for the crime of “fondling” is overruled.

MOTION OVERRULED.

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

      . In Ex parte Siebold, Justice Bradley declared: “An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction of it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no word of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ.’’

      . In Sunburst, the court rejected the claim that the Montana Supreme Court could not constitutionally refuse to make its ruling retroactive. Mr. Justice Cardozo held: “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly, that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted. On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning.
      The alternative is the same whether the subject of the new decision is common law or statute. The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. 287 U.S. 358 at 364-365, 53 S.Ct. at 148, 77 L.Ed. 360 at 366, 367 (citations omitted, footnotes omitted, emphasis in original).”
      In Chicot County Drainage District, the Court was faced with the question whether retroactive effect should be accorded an earlier decision declaring a Federal statute unconstitutional. Referring expressly to Norton, supra, Chief Justice Hughes stated that the broad language in that opinion “must be taken with qualifications.” As he asserted: “The actual existence of a statute, prior to [a determination of unconstitutionality] is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” 308 U.S. at 374, 60 S.Ct. at 318, 84 L.Ed. at 332-333.

      . In Chambers, the court was faced with the question of what effect the repeal of the Eighteenth Amendment would have on criminal prosecutions. In an opinion by Chief Justice Hughes, the Court applied the common-law rule of Tynen and Yeaton and held that pending prosecutions would be abated. However, defendants whose convictions had become final before the Twenty-First Amendment was ratified had to serve their sentence.


author: ROBERTSON, Presiding Justice,

text:
    Oscar HARRIS v. STATE of Mississippi.
    No. 51876.
    Supreme Court of Mississippi.
    July 30, 1980.

      Gerald, Brand, Watters, Cox & Hemle-ben, J. I. Palmer, Jr., Jackson, George S. Monroe, Newton, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Appellant, Oscar Harris, was indicted, tried and convicted in the Circuit Court of Newton County, Mississippi, of armed robbery. He was sentenced to 30 years in the Mississippi State Penitentiary.

Harris assigns as error:

I. The trial court erred in overruling the motion to rescind the appointment of counsel on the ground of conflict of interest.
II.The trial court erred in denying defendant’s motion for a psychiatric examination.
III. The trial court erred in denying defendant an instruction on the issue of insanity according to the rule announced in Collins v. State, 361 So.2d 333 (Miss. 1978).
IV. The trial court erred in denying defendant an instruction regarding intoxication by drug ingestion.
V.The trial court erred in overruling defendant’s motion for a new trial.
VI.Requiring defendant to serve a full sentence without parole is invidious class discrimination constituting cruel and unusual punishment and is attributable to an abuse of discretion by the Mississippi Legislature.

Jeanette Smith worked in her husband’s trailer office. On September 5, 1978, Harris, who had been released from prison on a work-release program, entered Smith’s office and inquired as to the whereabouts of Mr. Smith. When Mrs. Smith informed him that her husband was not in, the defendant went outside, looked up and down the street, then re-entered the office, pointed a gun at Mrs. Smith and demanded money. She gave him the small amount of money in her billfold, and also wrote him a $200 check. Harris then ordered Mrs. Smith to hand over her car keys which she did. He then jerked the phone from the wall, struck Mrs. Smith on the head with the gun knocking her to the floor. When Harris left, Mrs. Smith crawled to the back door of the office-trailer and screamed for help.

Darvis Vance, who worked in an office nearby, heard Mrs. Smith and proceeded to her office. Vance saw Harris moving toward Mrs. Smith’s automobile, and told Harris to leave the Smith car alone, but Harris replied that he was taking the car to the shop for repairs. Harris then got in the car and drove off in a reckless fashion. Harris was later arrested at Evelyn Gallas-py’s home after he had wrecked Mrs. Smith’s automobile.

I.

J. I. Palmer, Jr., who was appointed by the court to defend Harris, soon after his appointment filed a motion to be allowed to withdraw as defense counsel because the victim, Mrs. Smith, had talked to the senior member of his law firm about the civil liability of Harris for the wrecked automobile. After a hearing on the motion, in which it was brought out that the actual details of the conference with Mrs. Smith were not made known to Palmer, that no civil suit would be filed and, therefore, the law firm did not actually represent Mr. or Mrs. Smith in this particular matter, the court overruled the motion to withdraw.

Mississippi has adopted the “actual prejudice” rule in Augustine v. State, 201 Miss. 277, 28 So.2d 243 (1946). In Augustine, this Court stated that the test is “whether the accused has been protected, so far as counsel can do so, in all of his legal rights.”

It is clear to us, from a careful study of the record in this case, that Palmer represented the defendant well and protected Harris “in all of his legal rights.” See also Dunn v. State, 264 So.2d 823 (Miss. 1972).

The trial judge did not abuse his discretion in overruling the motion of the court-appointed defense counsel to withdraw.

II.

MCA § 99-13-11 (1972) provides in part:

“In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist selected by the court to determine his ability to make a defense; . .” (Emphasis added).

A pre-trial hearing was held on the motion for a psychiatric examination. Ed Cumberland, sheriff of Newton County, and Charles Jackson, a deputy sheriff, testified that during the year that defendant was in jail he always appeared normal and rational and served as a trusty for about 3 months.

Melvin Anderson, who had known Harris most of his life, testified that defendant “didn’t have good sense”, that he did foolish things. However, Anderson admitted that the defendant had never been treated for a mental condition or psychiatrically examined.

Jim Allen, who had worked with the defendant, testified that some days the defendant was normal while at other times he seemed to be in a daze. It was his opinion that defendant was not right in the head.

The trial court was not in error in overruling the motion for a psychiatric examination under our holding in Bell v. State, 360 So.2d 1206 (Miss. 1978), wherein we said:

“Evidence of the probability that the accused is unable to assist in his own defense must be presented, (citation omitted). The trial judge has reasonable discretion in determining whether the accused should be examined by a psychiatrist.” 360 So.2d at 1209.

No testimony was offered that the defendant was not able to assist in his own defense.

III.

The instruction, refused by the trial court which is urged as error on appeal, does not appear anywhere in the record. It is a well settled rule of this Court that we will not consider any matter outside the record. Brown v. Elton Chalk, Inc.,, 358 So.2d 721 (Miss. 1978). We stated in Canal Insurance Company v. Howell, 253 Miss. 225, 175 So.2d 517 (1965), that it is up to the appellant to see that instructions questioned are in the record so that this Court can intelligently act on any question about an instruction.

Even if this point were properly before the Court, in Collins v. State, 361 So.2d 333 (Miss. 1978), we did not adopt the Parsons rule but instead reaffirmed the M’Naught-en rule.

There is no merit in this assignment of error.

IV.

The trial court’s refusal to give the appellant’s proffered instruction on voluntary intoxication is supported by our holding in McDaniel v. State, 356 So.2d 1151 (Miss. 1978), wherein this Court said:

“If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.” 356 So.2d at 1161.

V.

There is no merit in this assignment of error. Appellant’s 6-line argument presents no facts nor does he cite any authority. In Ramseur v. State, 368 So.2d 842 (Miss. 1979), we said:

“Where assignments of error are unsupported by argument and authority, the court does not, as a general rule, consider them.” 368 So.2d at 844.

VI.

Appellant contends that the Mississippi Legislature abused its discretion when it enacted MCA § 47-7-3 (Supp. 1979), denying parole to anyone convicted of robbery where the perpetrator of the crime displays a firearm. The Supreme Court of Louisiana answered this question in State v. Howard, 262 La. 270, 263 So.2d 32 (1972) wherein it said:

“Reform and rehabilitation are not the only legitimate objects of a sentence for crime. Deterrence, both to the accused and others, is a legitimate object of a sentence for criminal conduct. It is only in theory that rehabilitation is provided for those convicted of other crimes. All those convicted of armed robbery are treated alike. Defendant has not been denied the equal protection of the laws.” 263 So.2d at 35.

In addition, this assignment of error is rendered moot by the recent amendment to MCA § 47-7-3 passed by the 1980 Mississippi Legislature. § 47—7—3(d) was amended by adding this language to the no eligibility for parole provision where a person was convicted of robbery through the display of a firearm:

“[Ujntil he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person.”

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    Nancy Wyse Shoffner GARZA v. Charles Edward SHOFFNER.
    No. 52040.
    Supreme Court of Mississippi.
    July 30, 1980.
    McGee & Bogen, Edward J. Bogen, Jr., Leland, for appellant.
    Dyer, Dyer & Dyer, Howard Dyer, III, Greenville, for appellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

A petition for writ of habeas corpus was filed by Nancy Wyse Shoffner Garza in the Chancery Court of Washington County, Mississippi, to get custody of Charles Edward (Chucky) Shoffner, Jr., her minor son, against Charles Edward Shoffner, the father, whom she claimed was illegally detaining their son.

After a full hearing, the chancellor entered an order denying the petition for a writ of habeas corpus.

Mrs. Garza assigns as error:

I. The lower court committed reversible error in admitting into evidence, over objection, the testimony of Mrs. Della Shawblosky, Miss Pamela Shoffner and Mrs. Ethel Shoffner, in regard to the question of Appellant’s fitness to maintain custody of her son, Charles Edward Shoffner, Jr.
II. The lower court committed reversible error and was manifestly wrong in finding that a material change of circumstances had occurred justifying the denial of the writ of habeas corpus, thereby effectively modifying the original divorce decree rendered in the First Judicial District Court of Caddo Parish, Louisiana, in regard to the custody rights of the parties.

A judgment of final divorce was entered by the Louisiana court on May 4, 1977, granting Shoffner a divorce from Nancy Wyse Shoffner. The Louisiana court also awarded the permanent custody of the minor children, Melanie Shoffner, Pam Shoff-ner, and Charles Shoffner, Jr., to Mrs. Shoffner, and provided that Shoffner pay $300 per month child support to her.

During the summer of 1978, 14-year-old Pam Shoffner, with her mother’s permission, came to live with her father in Green-ville, Mississippi. Pam testified at the hearing on the petition for writ of habeas corpus that the reason she came to live with her father was that Bobby Garza, the man that her mother was living with, would come over to their home drunk and get mad at her mother and hit her and push her into a closet and throw knives at the closet door, and that one night when this happened he pulled the phone off the wall and threw it at Pam, hitting her on the back. After that incident, Garza told Pam to call her grandfather and her dad and to leave. In response to her telephone call, her father flew to Louisiana and picked her up. Pam further testified that Garza would come over and live with her mother about 3 days a week before they were married, and that about 2 days a week her mother would go over to Garza’s home and live with him and leave the children to fend for themselves.

In June, 1979, appellant sent Chucky to appellee to spend the summer with him. When appellee failed to return Chucky to her, she made two trips to Greenville to pick him up. Both trips resulted in altercations with appellee or members of his family. On the second trip Chucky was riding his bike in the neighborhood and when his mother approached him he ran into his grandmother Shoffner’s home. He was forcibly put into his mother’s car by his older sister, Melanie, who still lived with her mother. Appellant was stopped at the state line after a high-speed chase and ordered to surrender custody of Chucky.

It was after this episode that the petition for writ of habeas corpus was filed. In rendering his opinion, the chancellor said:

“My question is whether the facts in this case do constitute a material change.
Now, the changes that I noted are first of all, that there has been this illicit relationship for an extended period of time prior to this marriage to Mr. Garza. This was. known to the children and continued over a substantial period of time depending on the witness — it varied from three months to approximately a year, as I recall the testimony, but it was unquestionably for a substantial period of time that she was absent from the home, known to be at his home overnight, leaving her children there at her home. Then the occasions when he would be at her home where they were oftentimes in the same bedroom overnight.
The second change that I note is that it was an agreed change of custody of the sister, Pam, and she was given to her father.
The third change is that there is testimony of marital discord of varying severity, depending on which witness was testifying. This appears to have existed for a substantial period of time during the course of the subsequent marriage.
The question is whether the changes to which I made reference constitute sufficient material change to justify refusal of the writ. Now, subsequent to the illicit relationship the petitioner has married the man and apparently is attempting to establish a substantial home. Whether this is sufficient recompense for the previous misconduct and [demonstrates] that she has been sufficiently [rehabilitated] to justify overlooking her previous conduct is a difficult matter to pursue.
This child who is the subject of this writ is nine years old. Obviously from the testimony — and I did not permit the child to testify for obvious reasons — this child has a good relationship with the father and with the sister that was living with the father by agreement. I find under all the circumstances that there has been a material change and that it is in the best interest of the child that the writ be denied.”

The two assignments of error are interrelated and will be discussed together. The appellant contends that the appellee should not have been allowed to show any material change of circumstances in a hearing on a petition for writ of habeas corpus since this could result in a modification of a Louisiana divorce decree, which was required to be given full faith and credit by a Mississippi court.

In Brashers v. Greene, 377 So.2d 597 (Miss.1979), this Court said that there are at least three procedures available to test and decide the rightful custody of minors. These procedures are outlined in MCA § 93-5-23, § 93-11-65, and § 11-43-1 (1972). In the case at bar, the petition was brought under § 11-43-1, the regular statute on habeas corpus. In Brashers, we held that a Mississippi court on a petition for writ of habeas corpus could conduct a full hearing to determine whether there had been a material change of circumstances and that for the best interests of a minor child another state’s decree of divorce and custody could be modified. This was consistent with our holding in Haynie v. Hudgins, 122 Miss. 838, 85 So. 99 (1920), wherein we said:

“The question as to what weight this court should give to the Tennessee decree has had our careful consideration. We think the proper rule, and that announced by the great weight of authority, is that full faith and credit should be given to this decree as adjudicating all matters therein settled at that time, but that it has no controlling effect in this state upon facts and conditions arising subsequently to its rendition, and that this court is at liberty and should award the custody of the child to the parent entitled thereto, upon proof of matters, subsequent to the decree, which justify such award in the interest of the welfare of the child; that the paramount consideration of the court is always the best interest of the child. [Citations omitted].
“When this father brings the child into the state of his residence with a view of properly caring for and maintaining it, and the mother then institutes habeas corpus proceedings for the custody of the child, the bona-fide residence of the father in this state, coupled with the natural relationship of father and child, gives this court the right to inquire into and pass upon the merits of the question of whether or not, since the rendition of the decree of divorce, the mother has become an unsuitable and unfit person for the care and custody of the child.” 122 Miss, at 857-58, 85 So. at 102-03.

Haynie was also followed in Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (1957).

In Neal, et al. v. Neal, 238 Miss. 572, 119 So.2d 273 (1960), this Court said:

"This State has adopted the majority rule that in habeas corpus proceedings a prior decree of custody is not binding upon proof of circumstances and conditions arising since the date of its rendition, which show that the party awarded custody thereby is unfit to exercise such right or has forfeited it. The best interest and welfare of the child is the prime consideration. The decision here is confined to a situation where a parent has invoked the aid of a court other than that which made the initial custodial decree awarding her custody, and the defendants 'were not parties to that decree.” 238 Miss, at 577-78, 119 So.2d at 275. (Emphasis added).

In Neal, the mother was awarded custody of the children in a final decree of divorce rendered by the Chancery Court of Washington County. The mother subsequently filed a petition for writ of habeas corpus in Sunflower County, seeking to regain custody of the children from the children’s paternal grandparents and aunt.

The limitation in Neal would not apply to the case now before us because the case at bar involves a Louisiana decree of divorce. Where the best interests of minor children are involved, the parties litigant should not be limited to, nor absolutely required to return to, the foreign court of their residence at the time of their divorce for relief.

The chancellor had jurisdiction and was correct in conducting a full hearing in this habeas corpus proceeding in order to determine whether there had been a material change of circumstances affecting the welfare and best interests of Chucky, the minor son. Shoffner could also have come into a Mississippi court and secured a change of custody upon proving a material change of circumstances under the provisions of MCA § 93-11-65 (1972).

The chancellor was correct in denying the petition for writ of habeas corpus, and thereby in effect modifying the Louisiana Court’s decree granting custody of Charles Shoffner, Jr., to Nancy Wyse Shoffner.

AFFIRMED.

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


text:
    MISSISSIPPI BOARD OF NURSING v. Eunice BELK.
    No. 51907.
    Supreme Court of Mississippi.
    July 30, 1980.
    A. F. Summer, Atty. Gen. by Fay Nobles Pascoe, Sp. Asst. Atty. Gen., Jackson, for appellant.
    John L. Hatcher, Cleveland, for appellee.
   Appeal from Chancery Court, Bolivar County; Harvey T. Ross, Chancellor.

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

APPEAL DISMISSED.

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


text:
    Adele B. HEMPHILL v. Jerry ROBINSON.
    No. 51936.
    Supreme Court of Mississippi.
    July 30, 1980.
    Brewer, Deaton, Evans & Bowman, Gray Evans, N. Craig Brewer, III, Greenwood, for appellant.
    Sullivan & Sullivan, R. M. Sullivan, Petal, Gray, Montague & Pittman, James C. Pittman, Jr., Hattiesburg, for appellee.
   Appeal from Chancery Court, Carroll County; John C. Love, Jr., Chancellor.

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

AFFIRMED.


text:
    Patricia BURGOS, a Minor v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 52050.
    Supreme Court of Mississippi.
    July 30, 1980.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, William G. Willard, Jr., Clarksdale, for appellant.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Jr., Judge.

Levingston, Jacks, Levingston & Land, Gerald H. Jacks, Cleveland, for appellee.

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

AFFIRMED.


text:
    Lillian B. Pearce JAMES v. BANK OF LEAKESVILLE.
    No. 52034.
    Supreme Court of Mississippi.
    July 30, 1980.
    Horton Hillman, Leakesville, for appellant.
    Curtis Breland, Leakesville, for appellee.
   Appeal from Chancery Court, Greene County; Glenn Barlow, Chancellor.

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

AFFIRMED.


text:
    Douglas T. LUCE v. Pal Hillman HICKS and Martiel Hillman Breland, Executrixes of Estate of S. J. Hillman, Sr., Deceased.
    No. 52033.
    Supreme Court of Mississippi.
    July 30, 1980.
    Curtis Breland, Leakesville, Hurt & Dickerson, Lucedale, for appellant.
    T. Horton Hillman, Leakesville, for appel-lees.
   Appeal from Chancery Court, Greene County; Robert H. Oswald and Glenn Barlow, Chancellors.

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

REVERSED AND REMANDED.

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


text:
    Raymond PURDON v. DeSOTO READY MIX COMPANY and Commercial Union Insurance Company.
    No. 52039.
    Supreme Court of Mississippi.
    July 30, 1980.
    Caldwell & Lewis, Charles W. Easterling, Marks, for appellant.
    Bailey, Trusty, William L. Cook, Jr., Batesville, William L. Rone, Mills E. Bar-bee, Hernando, for appellees.
   Appeal from Circuit Court, Tate County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    J. T. REDD v. STATE of Mississippi.
    No. 51989.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    John L. Clay, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

Affirmed.


text:
    Robert Harold KEYES and James Conners v. STATE of Mississippi.
    No. 51994.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Harry L. Kelley, Jackson, Jeanenne Pacific, Ellisville, William B. Sullivan, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

Affirmed.