author: PATTERSON, Chief Justice,

text:
    G.E. GADD, et al. v. Rayford Wallace STONE and Betsy Gibson Stone.
    No. 54275.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Nov. 28, 1984.
    Winn Davis Brown, Jr., Brown, Tillman & Rutherford, Southaven, for appellants.
    Christian T. Goeldner, Southaven, for ap-pellees.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Chancery Court of DeSoto County, Rayford W. and Betsy G. Stone, husband and wife, filed a bill of complaint to confirm and quiet title, to remove cloud on title and for permanent injunction against Grady E. and Cleo Gadd, husband and wife. The Gadds filed a separate answer and a cross-bill to remove cloud on title.

The chancellor found for the Stones and ordered that title in fee simple be confirmed and quieted in them and that the defendants be permanently enjoined from entering the subject property. Aggrieved with this judgment, the Gadds appeal. They argue the chancellor’s decision, that the Stones had acquired title to the Gadds’ land by adverse possession, was error because it was reached in absence of proof (1) of the ouster of the Gadds for the ten year statutory period; or (2) that the Stones’ use of the property was exclusive and hostile. Further the Gadds assign as error that the court failed to apply the doctrine of constructive possession-for the benefit of the Gadds, and that the court failed to recognize that the Stones’ use of the Gadds land was a mere continuation of a permissive use.

This case is a boundary dispute between owners of adjacent tracts of land outside the Olive Branch city limits in DeSoto County. According to the deeds of both parties and the admission of the Stones, the common boundary is the section line common to sections 23 and 24. See Appendix “A”. Therefore the Gadds hold record title to the disputed area, which contains a gravel road used by both parties.

When the Gadds acquired title to their property from Cary Garrett in 1951, Garrett informed Gadd that the barbed wire fence near the eastern boundary was not a property line fence. Instead, the property line was east of the gravel road.

When Rayford Stone bought his property in 1952, he assumed the barbed wire fence marked the western boundary. No one told him otherwise until 1976, when the Gadds sold a IV2 acre lot to a local church. Shortly after the sale, Mrs. Stone discovered church members taking down the fence. She informed them that this was the “line fence” and that they should speak with her husband before continuing to take it down.

This led to a confrontation between Stone and Gadd. According to Gadd,

Well, I told him that the fence wasn’t the property line, that it was East [sic] of the road, where the property line was. He asked me, said, “Did you have yours surveyed?” I said, “Naw.” I said, “Did you have yours surveyed when you bought it?” He said, “Naw.” I said, “Well,” I said, “Let’s get a surveyor in here and have it surveyed and I’ll pay half and you pay half,” and he wouldn’t do it.... He asked me, “Well, what do you want me to do, build me another road?” I said, “Naw, use this road that’s already here.”

Shortly thereafter, Gadd took down the fence and hauled away the posts and wire.

No one attempted to rebuild the fence, and there was no more controversy until the summer of 1980, when the Gadds’ son Quinton Gadd completed a house on the northeast corner of his parents’ property. The Gadds connected Quinton’s new driveway with the road, prompting the Stones to forbid the Gadds to use the road on the disputed area. Further, the Stones filed this suit against the Gadds.

The issue presented is whether the Stones proved their title based on adverse possession. As we held in Eady v. Eady, 362 So.2d 830, 832 (Miss.1978),

... Persons relying on adverse possession as basis for their claim of title have the burden of proof on the issue. Kayser v. Dixon, 309 So.2d 526, 528 (Miss.1975). For title to ripen in a claimant by adverse possession, the occupancy must be “actual, adverse, hostile, exclusive, peaceful, uninterrupted and continuous, under claim of ownership, open, notorious, and visible for the statutory period often years.” (Citation omitted.) (Emphasis added.)

Having reviewed the evidence, we conclude it is insufficient to support a finding of adverse possession.

Turning first to the question of exclusive possession, we note testimony by both parties shows that since the Stones acquired title to their property, use of the disputed land has been joint or scrambling. The Stones and the Gadds used the road for access to their lands. It is well settled that joint use of property is insufficient to establish adverse possession. Fant v. Standard Oil Co., 247 So.2d 132 (Miss. 1971).

Secondly, Stone’s own testimony disproves the hostility of the Stones’ possession for the ten year statutory period. On cross-examination Stone stated he had seen the Gadds use the road on the property in question but did not direct them to stop until July 1980. Further, Grady Gadd testified when he informed Stone in the summer of 1976 that the property line was east of the road, Stone replied, “Well, what do you want me to do, build me another road?” to which Gadd replied, “Naw, use this road that’s already here.”

In addition to establishing that the Stones’ possession of the property was not hostile for the specified amount of time, the foregoing testimony reveals the Stones’ use of the road was a permissive one at least until July 1980. As we held in Patterson v. Harris, 239 Miss. 774, 785-86, 125 So.2d 545, 550 (1960):

In the case of Weaver v. Pitts, 1926, 191 N.C. 747, 133 S.E. 2, 3, the Court said: “The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon ‘to go to law’ to protect his rights.”

In his findings of fact the chancellor referred to the disputed fence as a “boundary fence” and appears to have relied on this characterization in reaching his decision. We have held adverse possession is proved where “the appellants 'took possession of said land, enclosed same with a fence, built a storage house upon it, cultivated a garden, and claimed and used the land as their own against the world for a period of twenty-five years.” Pittman v. Simmons, 408 So.2d 1384, 1386 (Miss. 1982). (Emphasis added.)

However, we are of the opinion factual distinctions render Pittman inapplicable to this case. First, the Stones did not build the fence in question; it was standing at the time they purchased their property. Cary Garrett, the Gadds’ predecessor in interest, permitted the fence to be moved westward away from the property line so as to make higher ground available for a roadway between the properties, an act of courtesy toward tenants of the Stones’ predecessor in interest. Thus by the time the Stones acquired title, the fence was no longer a boundary fence but a pasture fence. Further, as previously discussed, the Stones have not used the disputed land “as their own against the world” for the statutory period.

Because the Stones failed to prove hostile and exclusive possession for a period of ten years of the land to which the Gadds hold record title, we conclude the trial court erred in holding the Stones acquired title to the disputed property through adverse possession.

REVERSED AND RENDERED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

APPENDIX A


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    Lizzie Mae WILLIAMS v. STATE of Mississippi.
    No. 55180.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Rehearing Denied Dec. 12, 1984.
    Charles E. Webster, Wood & Twiford, Tom T. Ross, Jr., Ross & Ross, Clarksdale, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON, and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Lizzie Mae Williams, sixteen (16) years of age, was indicted in the Circuit Court of Coahoma County for the murder of one Albert Jones. She entered a guilty plea to manslaughter, which was accepted by the court, and was sentenced to serve ten (10) years in custody of the Mississippi Department of Corrections with the last five (5) years suspended. Upon acceptance of the guilty plea, Williams’ attorney filed a motion to transfer the case as a delinquent child committing a delinquent act to the Coahoma County Youth Court. The lower court denied the motion, and, after a series of petitions were filed and heard, resulting in an appeal to this Court, which was dismissed, Williams filed a petition for writ of error in the lower court. That court entered an order September 6, 1983, denying the relief sought in the petition for writ of error, and Williams has appealed to this Court. The sole assignment of error follows:

The circuit court does not have jurisdiction to accept a juvenile’s plea of guilty to manslaughter even if the cause of action was initiated by murder indictment.

The Grand Jury of Coahoma County returned an indictment on June 28, 1983, charging appellant with the murder of Albert Jones-, April 2, 1983. Albert Jones was appellant’s boy friend. She stood mute upon arraignment, and the circuit judge entered a plea of not guilty for her.

On July 21, 1983, the case was called for consideration of a guilty plea to manslaughter, the case having been set for trial during the term of court then in session. At such time, it was made known to the court that the appellant desired to enter a plea of guilty to manslaughter, and, in the event such a plea was accepted by the court, appellant’s attorney would immediately file a motion with the court to transfer the case to the Youth Court of Coahoma County. The court then stated that it would not have to accept any plea and declared the hearing closed.

Appellant was before the court again for consideration of the manslaughter plea, on July 25, 1983. The circuit judge indicated that he would set aside the not guilty plea to murder and accept her guilty plea to the lesser-included offense of manslaughter, should he determine that the plea was voluntarily, knowingly, understandingly and freely entered.

After an appropriate hearing, the circuit judge found that the plea of guilty to the crime of manslaughter should be accepted and he ordered a pre-sentence investigation before imposing sentence. On August 11, 1983, appellant filed a motion in the County Court of Coahoma County, Mississippi, Youth Court Division, to transfer the case from the Coahoma County Circuit Court to the Youth Court and to enjoin the Circuit Court from sentencing appellant. That motion was overruled by the county court judge. Subsequently, the proceedings mentioned at the outset were had in the Circuit Court of Coahoma County finally resulting in the present appeal to this Court.

Paragraph (4) of the petition for writ of error states the case for the appellant and her brief and argument follow that contention. Pertinent parts are stated:

IV.

It is your petitioner’s position that when it was determined that the charge would be reduced from one of murder to one of manslaughter, the Circuit Court of Coahoma County, Mississippi, lost all jurisdiction to try the issues or accept a plea to the non-capital offense of manslaughter. Section 43-21-151(1), Mississippi Code, Annotated (1972), states that the Youth Court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child. Section 43-21-105© states that a “ ‘delinquent child’ means a child who has reached his 10th birthday and who has committed a delinquent act.” Section 43-21-105(a) states that a “ ‘delinquent act’ is any act, -which if committed by an adult, is designated as a crime ... other than offenses punishable by life imprisonment or death.”

The appellant relies upon State, ex rel. Johnson v. Blackburn, 384 So.2d 402 (La.1980); State, ex rel. Moore v. Warden, 308 So.2d 749 (La.1975); Metcalf v. Commonwealth, 338 Mass. 648, 156 N.E.2d 649 (1959); and People v. Murch, 263 N.Y. 285, 189 N.E. 220 (1934); which support her position. On the other hand, the appellee relies upon Dicus v. Second Judicial District Court, 97 Nev. 273, 625 P.2d 1175 (1982); People v. Davenport, 43 Colo.App. 41, 602 P.2d 871 (1979); Gray v. State, 6 Md.App. 677, 253 A.2d 395 (1969); Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223 (1953); and Howland v. State, 151 Tenn. 47, 268 S.W. 115 (1925); which state the opposite view and support its position.

In the Maryland case of Gray v. State, 6 Md.App. 677, 253 A.2d 395 (1969), a similar question as here was before the Court. The appellant there conceded that the circuit court has exclusive jurisdiction when a delinquent child is indicted for first degree murder since the crime is punishable by death or life imprisonment, but contended that the court has no jurisdiction over a juvenile delinquent charged with second degree murder or manslaughter, since such crimes are not punishable by death or life imprisonment. The Court said:

On the surface the appellant’s argument appears logical, persuasive, and it would appear to be supported by cases in Louisiana and New York cited in his brief. [Citations omitted]. We are of the opinion, however, that the proposition advanced by the appellant (and the rationale of the decisions he relies upon) overlooks the fundamental principle of law that once a court lawfully acquires jurisdiction over the person and the subject matter of the litigation, subsequent events will not ordinarily deprive the court of its jurisdiction, although had they existed at the time, they may have initially precluded the court’s jurisdiction. The rule was well articulated in Collins v. Robbins, 147 Me. 163, 84 A.2d 536, at p. 538, where it was stated:
“It has long been accepted as a well known principle of law that ‘the jurisdiction of a court depends upon the state of affairs existing at the time it is invoked, and if the jurisdiction once attaches to the person and subject matter of the litigation, the subsequent happening of events, though they are of such a character as would have prevented jurisdiction from attaching in the first instance, will not operate to oust the jurisdiction already attached. * * * 12 Encyclopedia of Pleading and Practice, page 171.”
# * * * * *

In Howland v. State, 151 Tenn. 47, 268 S.W. 115, it was held that notwithstanding a statute conferring jurisdiction upon juvenile courts of all crimes committed by a child under sixteen years of age, except rape and murder, the trial court did not lose jurisdiction over a child indicted for murder where the jury brought in a verdict of manslaughter. The court said (at p. 116):

“But where the grand jury presented an indictment for murder against one under 16 years of age, as was done in this case, the jurisdiction of the criminal court over the offense of murder being exclusive, that court would not thereafter lose its jurisdiction by a verdict assessing a degree of homicide below murder. 16 C.J. 181, pars. 246, 247.”
To the same effect is State ex rel. Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223 (cert. denied, Hinkel v. Skeen, 345 U.S. 967, 73 S.Ct. 954, 97 L.Ed. 1385) where it was held that a state circuit court, having acquired jurisdiction of a capital offense by virtue of an indictment charging a juvenile with murder, did not lose jurisdiction of the person or the offense by accepting a plea of guilty to the non-capital crime of murder in the second degree, notwithstanding a State statute giving exclusive jurisdiction to juvenile courts in those cases involving juveniles charged with non-capital offenses. See also Hinkel v. Skeen, 117 F.Supp. 846.
Likewise in Reynolds v. Commonwealth, 94 Va. 816, 27 S.E. 427, it was held that a court having jurisdiction of an indictment is not ousted thereof by a conviction of a misdemeanor included in a felony, although it had no original jurisdiction ■ of such misdemeanor. [253 A.2d at 398-99].

We are of the opinion that this Court has adopted the general rule in Bynum v. State, 222 Miss. 632, 637, 76 So.2d 821, 823 (1955), where the Court said: “As a general rule, jurisdiction once acquired is not defeated by subsequent events even though they are of such a character as would have prevented jurisdiction from attaching in the first instance.” The Court in Bynum further stated that the rule was approved and adopted by the Court in the case of Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949).

We think the sounder rule has been stated and followed in those states holding that once jurisdiction is acquired, it is not lost by accepting a plea to a lesser-included offense or conviction for a lesser-included offense, even though such offenses would not originally confer jurisdiction in the circuit court. It would be a mockery of the law and justice to hold that when a juvenile is indicted for murder that the circuit court must proceed with a trial on the murder charge, or lose jurisdiction, if a plea or conviction for a lesser-included offense occurs. In the present case, the circuit judge could have imposed a fine and jail sentence, or could have suspended the entire sentence. His powers are almost the same as those conferred upon the Youth Court.

Therefore, we hold that the lower court had jurisdiction to entertain a guilty plea to the lesser-included offense of manslaughter and that it committed no error in accepting such plea and imposing sentence thereon. The judgment of the lower court is affirmed.

AFFIRMED.

WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: SULLIVAN, Justice,

text:
    Frank COVINGTON v. Anna COVINGTON.
    No. 55202.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Rehearing Denied Dec. 12, 1984.
    David Oliver, Gulfport, for appellant.
    Paul Snow, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

These parties were divorced on January 4, 1982, and the judgment of divorce provided, among other things, that appellant would pay unto the appellee lump-sum alimony in the amount of $50,000, which was to be paid in yearly installments of $10,000 per year, the payments being due on June 1, 1982, June 1, 1983, etc. Appellant was also ordered to contribute $8,000 to appel-lee’s attorney’s fees, plus $500 for expenses, these fees and expenses to be paid by March 4, 1982.

On June 21,1982, appellee was granted a judgment for $10,380, on the first lump-sum alimony payment, which appellant failed to pay by June 1st. This judgment included $350 attorney’s fees and court costs. On June 7, 1983, when appellant failed to pay the second installment of the lump-sum alimony, he was. again adjudged to be in contempt and appellee was awarded a judgment of $10,465, which included attorney’s fees and costs of court.

The original judgment of divorce was appealed to the Mississippi Supreme Court and was there affirmed and petition for rehearing was denied. Covington v. Covington, 440 So.2d 544 (Miss.1983).

On August 5, 1983, yet a third motion to find the defendant in contempt was filed in the Chancery Court of the First Judicial District of Hinds County, Mississippi, requesting that the appellant be incarcerated in the Hinds County jail until he had purged himself of the contempt of court by paying unto the appellee the sum of $29,-345 for the outstanding indebtedness owed on the lump-sum alimony, plus interest from the date of the judgments, less the sums already paid by the defendant.

Appellee’s attorney sent' notice of this motion to the appellant, Dr. Frank L. Cov-ington, Jr., Biloxi, Mississippi, and his attorney, Honorable David P. Oliver at 1922 22nd Street, Gulfport, Mississippi. Both Appellant Covington and Attorney Oliver received this notice.

Five days after the filing of the motion, appellant’s attorney filed a special appearance for dismissal, in which he alleged that his proper address was 1922 23rd Avenue, and, as process was not served by a Harrison County deputy sheriff on the respondent, that the proceedings should be quashed. Appellant further moved in his special appearance for dismissal for a judgment on the pleadings under Mississippi Rules of Civil Procedure 12(c).

On the 29th day of August, the motion came on to be heard and Chancellor Paul G. Alexander denied the motion for dismissal on special appearance and proceeded to hear the contempt.

At the commencement of the contempt hearing, appellee’s counsel offered to stipulate that appellant had paid $5,000 on the arrearage and was now in arrears in a total of $24,345, to which appellant’s counsel responded that he could not argue with that. Thereupon, appellee rested. Appellant offered no proof and the chancellor found Frank L. Covington, Jr. to.be in arrears in his lump-sum alimony payment in the amount of $24,345. He further assessed to appellant the sum of $250 toward attorney’s fees for this hearing and all costs of court, for a total arrearage of $24,595. The chancellor then ordered appellant incarcerated in the custody of the sheriff of Hinds County, Mississippi, until such time as he shall have purged himself of said contempt by the payment of $24,595 into the registry of the court.

The issue presented by this appeal is: Must the defendant in a contempt proceeding be served with process to confer personal jurisdiction on the chancery court when the court had personal jurisdiction over the defendant at the time of the divorce, or is actual notice by letter under motion practice of the Mississippi Rules of Civil Procedure sufficient?

The answer is that when the chancery court had personal jurisdiction of the defendant at the time of the divorce that personal jurisdiction continues and notice to the defendant by mail is sufficient and actual service of process upon the defendant is not required.

The Mississippi Rules of Civil Procedure pertinent to the question follow:

Rule 81(d)
(d) Domestic Relations. Complaints, petitions, or motions for temporary relief pending a divorce or separation action, for modification of custody, support, and alimony judgments, and for enforcement of such judgments by contempt proceedings or otherwise, shall be governed by the provisions of these rules as to motions, (emphasis added).
Rule 6(d)
TIME
(d) Motions. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

Rule 81(d) clearly brings proceedings for contempt or to enforce judgments under motion practice. The comment to Rule 81 says that “in any instance ... in which the controlling statutes are silent as to a procedure, such as ... form of summons and methods of service of process and notices, ... the Mississippi Rules of Civil Procedure govern.” Section 9-5-87, Mississippi Code Annotated (1972), is the statute addressing the power of contempt of court in situations where a party does not comply with a chancery court’s injunction, order or decree. It provides:

The chancery court ... shall have power to punish any person for breach of injunction or any other order, decree, or process of the court, by fine or imprisonment; ... but such person shall first be cited to appear and answer.

The statute is silent as to methods of service of notices and, therefore, the Mississippi Rules of Civil Procedure govern.

Mississippi Rule of Civil Procedure Rule 5 provides in pertinent part:

Rule 5

(a) Service: When Required. ... every written motion other than one which may be heard ex parte, and every written notice, ... shall be served upon each of the parties.

Rule 5(b) in pertinent part says:

(b) Service: How Made. Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such an attorney unless service upon party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court_ Service by mail is complete upon mailing.

Under the Mississippi Rules of Civil Procedure it is clear on the facts of this case that the Mississippi Rules of Civil Procedure as they pertain to motions apply. It is also apparent that under those rules the court had jurisdiction based upon personal receipt of notice of the motion hearing by the defendant.

The question raised by this appeal concerns the reasonable advance notice component of the federal and state due process clauses, see Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), not in per-sonam jurisdiction. The chancery court retained continuing personal jurisdiction of the parties to the divorce in matters concerning the divorce action. Campbell v. Campbell, 357 So.2d 129, 132 (Miss.1978). The principle of continuing jurisdiction has long been recognized in domestic relations cases. See Crum v. Upchurch, 232 Miss. 74, 98 So.2d 117 (1957); Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414 (1945). Rule 5 is based upon the presumption that the court has already gained jurisdiction over the parties and that is the case here. Actual service of process would not be again required to give the court personal jurisdiction over Covington. All that would be required would be notice.

However, we must address the issue of whether or not the “notice” was sufficient to give due process. In our view, it is, based upon Mullane v. Central Hanover Bank & Trust Company, supra, where the United States Supreme Court said:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (citations omitted) This notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance, (citations omitted) But if with due regard for the practicalities and pecularities of the case these conditions are reasonably met, the constitutional requirements are satisfied.

Id. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873.

Where, as here, the defendant himself as well as his attorney received the notice of motion it cannot be said that the requirements of Mullane have not been met. The court obtained personal jurisdiction of Cov-ington in the divorce action and that jurisdiction was continuous. Covington actually received notice of the contempt that was reasonably calculated under the circumstances to apprise him of the pendency of the action and to afford him an opportunity to be heard. He was also afforded more time than the Mississippi Rules of Civil Procedure require for him to make his appearance. Therefore, under these circumstances the constitutional requirements of due process were satisfied.

The chancellor was, therefore, eminently correct in not quashing the process, as service of process was not required and the chancery court had jurisdiction to enter its decree adjudging Covington in contempt. We, therefore, affirm.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., and DAN M. LEE, J., not participating.


author: PRATHER, Justice, for the Court:

text:
    PEARL RIVER COUNTY BOARD OF SUPERVISORS, L.K. Sones, G.W. Moody, E.M. Clark, Glenn Dossett and Hollis O. Mitchell v. SOUTH EAST COLLECTIONS AGENCY, INC., d/b/a South East Collections.
    No. 55151.
    Supreme Court of Mississippi.
    Oct. 31, 1984.

      James Lonnie Smith, Williams, Smith & Stockstill, Picayune, for appellants.
    James R. Hayden, Hattiesburg, for ap-pellee.
    Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.
   PRATHER, Justice, for the Court:

This is an appeal from an order of the Circuit Court of Pearl River County granting summary judgment in favor of the ap-pellee, South East Collections Agency, Inc., and against the appellant, the Pearl River County Board of Supervisors, in the amount of $14,591.70.

Pearl River appeals, assigning as error:

(1) The circuit court erred in granting summary judgment because genuine issues of material fact existed in the case.

(2) The circuit court erred in granting summary judgment because South East Collections was not entitled to judgment as a matter of law.

On September 15, 1979, Roby Mason was arrested by a Mississippi State Highway Patrolman. Mason was charged with driving under the influence and possession of marijuana. Mason was incarcerated in the City Jail of Picayune, Mississippi.

On September 19, 1979, Mason received a gunshot wound while in his cell. Mason was hospitalized in the Lucius Olen Crosby Memorial Hospital in Picayune, Mississippi. Mason was under the care of Dr. Thomas Purser from September 19, 1979 until November 15, 1979, incurring expenses for medical treatment of $14,591.70.

Southeast Collections, Inc., the assignee of Crosby Memorial Hospital, brought suit against the Pearl River County Board of Supervisors seeking judgment in the amount of $14,591.70. The circuit court was of the opinion that the case presented no material issues of fact, “but rather a strict interpretation of the law as defined by section 47-1-59 of the Mississippi Code of 1972, as amended.” The court accordingly granted summary judgment in favor of Southeast Collections, relying upon Miss. Code Ann. § 47-1-59 (1981), which provides:

(1) When the sheriff, marshal or any other peace officer of this state has in his lawful custody a prisoner who, through accident, injury or illness, is in need of hospitalization, such officer may take such prisoner to the nearest hospital ... and if upon arrival at such hospital any physician licensed to practice medicine in this state certifies that in his opinion such prisoner is in need of hospitalization, such prisoner shall be hospitalized in such hospital for as long as in the opinion of such physician it is necessary to so hospitalize such prisoner....
(2) The actual expense of guarding the prisoner in the hospital shall be paid out of the general funds of the county where the prisoner was originally confined or arrested. The expense contracted incident to the hospitalization aforesaid shall be paid by the prisoner; otherwise he may be hospitalized as a state aid patient. However, if the prisoner is ineligible for state aid or the amount available for hospitalization as a state aid patient is inadequate to pay all such hospital expense of a prisoner who is financially unable to pay his own expenses, the board of supervisors of the county where the prisoner was originally confined or arrested shall, upon presentation of the certificate of the physician certifying that said prisoner was in need of hospitalization, pay from the general funds of the county the reasonable and customary charges for such services or as much thereof as is not paid by state aid. Any such payment to a hospital shall be discretionary with the board of supervisors if its county supports the hospital involved by a special tax levy for its operation and; maintenance.

Summary judgment is appropriate only where "... the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” MRCP 56 (1972). The power to grant summary judgment is not discretionary with the trial court and the above test must be met in all cases. National Screen Serv. Corp. v. Poster Exchange Inc., 305 F.2d 647 (5th Cir.1962); see also Wright & Miller, Federal Practice & Procedure § 2728 (1983). A fact is “material” if it tends to resolve any of the issues that have been properly raised by the parties. Scott Paper Co. v. Adair Truck & Equipment Co., 542 F.2d 1257 (5th Cir.1976).

The county contests several material facts, i.e., that the prisoner was a county prisoner, indigent and unable to pay, that the prisoner was in need of hospitalization for the entire length of time, and that the charges were reasonable and customary, as well as others. These represent genuine issues of material facts. The summary judgment of the court below reflects direct or indirect factual findings by the trial court on these disputed issues. This is inappropriate under Rule 56. MRCP 56, Comment (1982).

Our review of the record reveals substantial deficiencies in the form of the affidavits of the movant for summary judgment. Affidavits, where used, should be on personal knowledge. MRCP 56(e). The affidavit filed by the plaintiff in support of his motion was not on personal knowledge. The burden is on the movant to establish (a) the facts necessary to support the judgment he seeks and (b) that there is no genuine issue of material fact. The mov-ant has failed to shoulder this burden. So that the parties will understand our decision, our reversal is predicated on movant’s inadequate showing. We note, however, that defendant’s response is also deficient in that it is not verified. “Only sworn denials providing a credible basis therefor in evidentiary fact will suffice” to defeat a motion for summary judgment when properly supported. Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss.1984).

This Court has interpretated the Summary Judgment Rule 56 in recent cases. Extensive discussion in Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1984) sets forth procedural and evidentiary matters necessary to prevail on such a motion to which we refer the parties and the Court. See also: Pearl River County Board of Supervisors, L.K. Sones, G.W. Moody, E.M. Clark, Glenn Dossett And Hollis O. Mitchell v. South East Collections Agency, Inc. d/b/a South East Collections, 459 So.2d 785 (1984); Dennis v. Searle, 457 So.2d 941 (1984); Biggers v. Fox, 456 So.2d 761 (1984); Holland v. Kennedy, 454 So.2d 1305 (1984).

The legal questions involved in this case necessarily require a full factual development. We do not address the second assignment of error for this reason. Therefore, the order of the court below granting summary judgment in favor of the appel-lee, Southeast Collections, Inc. is reversed, and this cause is remanded for trial.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


author: WALKER, Presiding Justice,

text:
    PEARL RIVER COUNTY BOARD OF SUPERVISORS, L.K. Sones, G.W. Moody, E.M. Clark, Glenn Dossett and Hollis O. Mitchell v. SOUTH EAST COLLECTIONS AGENCY, INC. d/b/a South East Collections.
    No. 55146.
    Supreme Court of Mississippi.
    Oct. 31, 1984.

      James Lonnie Smith, Williams, Smith & Stockstill, Picayune, for appellants.
    James R. Hayden, Hattiesburg, for ap-pellee.
    Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Pearl River County, Mississippi, wherein the Court granted to plaintiff, South East Collections, judgment in the amount of $4,856.48. We reverse.

The plaintiff brought suit on a promissory note allegedly executed by Sam Bodie, deputy sheriff of the Pearl River County’s sheriff’s department, purporting to bind the sheriff’s department and the County of Pearl River. The bill of complaint names as defendants, the Pearl River County Board of Supervisors, Sam Bodie and Willie Brown, a county prisoner.

The Board of Supervisors answered the complaint denying any liability premised on the note allegedly signed by Bodie.

Summary judgment on the complaint was granted upon motion of Sam Bodie dismissing the action against him. In response to the motion the Board of Supervisors again denied liability stating “Deputy Sam Bodie was not authorized to execute the alleged promissory note on behalf of the Board or individual members.”

On motion for summary judgment brought under Rule 56 of the Mississippi Rules of Civil Procedure, the plaintiff alleged it was entitled to judgment against the Pearl River County Board of Supervisors stating:

That pursuant to Section 47-1-59 of the Mississippi Code of 1972, as amended, the Plaintiff is entitled to Summary Judgment against the Defendants herein, that being the Pearl River County Board of Supervisors, in the sum sued for.
WHEREFORE, the Plaintiff herein, South East Collections Agency, Inc., d/b/a South East Collections, prays for a Summary Judgment in its favor as to all of the relief sought by the Plaintiff in this action.

The plaintiff attempted to convert its cause of action by way of motion for summary judgment from a suit on a promissory note to one for relief under Mississippi Code Annotated section 47-1-59 (1972) which provides for payment of hospitalization of prisoners who through accident, injury or illness while in custody become in need of such care. Such a change, however, cannot be accomplished in this manner. The proper procedure was for plaintiff to amend its bill of complaint to allege a cause of action existed under section 47-1-59.

In response to plaintiffs motion for summary judgment, the Board through and. by D.R. Davis, Chancery Clerk of Pearl River County and Clerk of the Board of Supervisors, filed its affidavit stating:

As Clerk of the Board of Supervisors and after review of the minutes of the Board including the Board’s order and authorizations, Deputy Sam Bodie was not authorized to execute a promissory note on behalf of the Board of Supervisors or individual board members for medical services to a prisoner nor was the Sheriff so authorized.

We reverse and remand as there was a genuine issue of material fact as to the authority of Deputy Bodie to bind the county to be decided at trial and summary judgment should not have been entered.

REVERSED AND REMANDED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: DAN M. LEE, Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. James NESTER and Mary Nester.
    No. 54437.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Rehearing Denied Dec. 12, 1984.
    James N. Compton, Carter O. Bise, Bryan, Nelson, Allen, Schroeder & Compton, Biloxi, for appellant.

      Ben F. Galloway, Owen, Galloway & Dickinson, Gulfport, for appellees.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Harrison County wherein the cause was heard by the circuit judge, sitting without a jury on facts stipulated to by the parties. The circuit court held that appellee, Mary Nester, was entitled to coverage under the uninsured motorists coverage of an insurance policy on her car paid for by her father, appellee James Nester. The court entered a judgment against State Farm Mutual Automobile Insurance Co. (State Farm) in the amount of $40,000. From the circuit judge’s ruling, State Farm brings this appeal and assigns as error:

The Trial Court erred as a matter of law in holding that Mary Nester was entitled to uninsured motorist benefits from the appellant State Farm Mutual Automobile Insurance Company, because her injuries were neither caused by an uninsured motorist, nor an uninsured motor vehicle, nor another and separate motor vehicle owned or operated by one without liability insurance.
STIPULATION OF FACTS
1. The Plaintiffs, James Nester and Mary Nester, are adult resident citizens of Harrison County, Mississippi, First Judicial District.
2. Mary Nester is the daughter of James Nester and resides with her father and mother, Jessie Nester, at Route 1, Box 591, Commission Road, Long Beach, Mississippi.
3. The Defendant, State Farm Mutual Automobile Insurance Company, hereinafter referred to as State Farm, is an Illinois corporation qualified to do business in the State of Mississippi.
4. The Defendant, Henry Council, Jr., is an adult resident citizen of Harrison County, Mississippi, First Judicial District.
5. Henry Council is an issuing agent of State Farm and maintains his sales office at 206 Jeff Davis Avenue, Long Beach, Mississippi.
6. On August 22, 1981, one Patrick Sullivan met Mary Nester after she got off work. They went to D. J.’s, a stereo lounge in Biloxi, in Mary Nester’s car. They left, with Sullivan driving and Nes-ter a passenger, and were en route elsewhere when an accident occurred at about 1:58 a.m. on August 23. The accident was proximately contributed to by the negligence of Patrick Sullivan and involved a collision with a City of Biloxi police car. Mary Nester was injured in the accident, her injuries including: ruptured spleen, fracture of the pelvis, fracture of the right clavicle, cerebral concussion and fracture of the right maxillary lateral incisor.
7. Mary Nester was the record owner of the 1974 Mustang, and James Nester, the named insured on the State Farm policy covering the 1974 Mustang. Patrick Sullivan had no independent liability insurance coverage. James Nester and Jessie Nester had forbidden Mary Nester to allow anyone else to drive the car, and in particular, Patrick Sullivan. Patrick Sullivan had driven Mary’s car before and was driving with her permission the night of the accident. Mary was the primary driver as well as the owner of the Mustang.
8. The State Farm policy covering the 1974 Mustang forbids Mary Nester of the named insured, James Nester, from making a claim under the liability coverage of the policy. Specifically, no liability claim can be made against what the policy defines as a permissive operator.
9. At the time of the accident, James Nester was the “named insured” on four separate State Farm automobile policies issued through Henry Council, covering the following vehicles
1) Policy 145-6836-F09-24 1974 Mustang
2) Policy 127-2109-021-24 1971 Firebird
3) Policy 97-7108-A04-24G 1979 Firebird
4) Policy 97-7109-A04-24D 1967 Chevrolet
10. The State Farm policies shall hereinafter be. referred to as policies “One”, “Two”, “Three”, and “Four”. Each policy covered by the terms of State Farm policy form 9824.1, a copy of which is attached hereto as Exhibit A.
11. Each policy had uninsured motorist coverage for personal injury in the amount of $10,000.00 per policy or a total of $40,000.00 coverage available if all four policies were determined by the Court to be applicable.
12. Policy “One” covering the 1974 Mustang, owned by Mary Nester, was rated by State Farm for use by a female driver, although James Nester appears to be the “named insured” on policy “One”.
13. As a result of the injuries Mary Nester sustained in the accident of August 23, 1981, she incurred $7,238.00 in medical expenses.
14. State Farm has issued Mary Nes-ter a $5,000.00 draft under the “med-pay” provision of policy “One” but has not paid any of the uninsured motorist benefits under any of the four State Farm policies in effect at the time of the accident.
15. Mary Nester’s injuries exceed $40,000.00 if the Court finds uninsured motorist coverage available under all four policies and said injuries exceed $30,000.00 if the Court finds coverage only under policies “Two”, “Three”, and “Four”.
16. In the event the Court finds uninsured motorist coverage under all four policies or under policies “Two”, “Three”, and “Four” only, the parties agree to arbitrate the property damage claim concerning the 1974 Mustang, and this action is strictly limited to the personal injury claim of Mary Nester.

DISCUSSION OF LEGAL ISSUES

Simplified, the question may be pared down to the following: Whether an insured who is injured while riding as passenger in her own car is entitled to recover from her uninsured motorist coverage where her policy expressly forbids her to make a claim based on liability and the driver of the car is otherwise uninsured?

The parties first approach this question by addressing whether Patrick Sullivan, the driver of the car was a permissive user so as to be insured under the policy purchased by Mary Nester’s father, James Nester. The determination of this question does not go far in answering the ultimate one. This is because if Sullivan was a permissive user and therefore insured under the policy, as State Farm argues, Mary Nester is still forbidden to make a liability claim against him as a permissive user. If Sullivan was not a permissive user and therefore uninsured, as the Nesters argue, there is also no liability insurance applicable to the accident. Therefore, regardless of whether Sullivan was a permissive user there is still no liability insurance applicable to Mary Nester. If there is any insurance applicable, it must be the uninsured motorist coverage.

Under § 83-11-101 Miss.Code Ann. (Supp.1983) uninsured motorist coverage is required to be offered with all bodily injury liability policies. Because the legislature has directed that our state’s motorists be so protected, every automobile liability insurance policy issued after January 1,1980, has also de jure provided uninsured motorist coverage of at least the statutory minimum, unless the insured expressly rejected that coverage. Any attempt to contractually limit an insurer’s duty of coverage is necessarily confined to the boundaries of the statute and may not be effective to narrow the requirements of that statute.

The Code defines an uninsured motor vehicle as:

(c) The term “uninsured motor vehicle” shall mean:
(i) A motor vehicle as to which there is no bodily injury liability insurance; or
(ii) A motor vehicle as to which there is such insurance in existence, but the insurance company writing the same has legally denied coverage thereunder or is unable, because of being insolvent at the time of or becoming insolvent during the twelve (12) months following the accident, to make payment with respect to the legal liability of its insured; or
(iii) An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; or
(iv) A motor vehicle as to which there is no bond or deposit of cash or securities in lieu of such bodily injury and property damage liability insurance or other compliance with the state financial responsibility law, or where there is such bond or deposit of cash or securities, but such bond or deposit is less than the legal liability of the injuring party; or
(v) A motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured. (Emphasis supplied).

§ 83-ll-103(c) Miss.Code Ann. (Supp.1983) Numerous decisions of this court have held that the uninsured motorist statute is to be liberally construed so as to provide coverage, and exceptions from coverage are to be strictly construed. Stevens v. United States Fidelity and Guaranty Co., 345 So.2d 1401 (Miss.1977); Parker v. Cottonbelt Insurance Co., Inc. 314 So.2d 342 (Miss.1975); Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767 (Miss.1973); Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969).

In Hodges, supra, this Court held that Hodges’ uninsured motorist coverage was applicable where the insurance company of the person with whom she collided refused to pay on the grounds of that person’s failure to cooperate. Speaking for the Court, Justice Gillespie wrote that in determining whether uninsured motorist coverage is available, one must view the matter from the perspective of the injured insured.

In our opinion it would not be consistent with the purpose the uninsured motorist provisions of the policy purports to serve if it is narrowly construed so as to deny its protection if at the instant the accident happens there is a policy “applicable”, although the coverage of the tort-feasor’s policy is later lawfully disclaimed. As said in Whitney [v. American Fidelity Co., 350 Mass. 542, 215 N.E.2d 767 (1966)], supra, “applicable” can be said to mean “capable of being applied”. A policy is applied, or is “applicable,” at the time the policyholder is entitled to its protection.
The purpose of the uninsured motorist provision is to provide the insured a means of collecting that to which he is legally entitled for bodily injuries caused by accident arising out of the ownership, maintenance and use of an uninsured automobile. This provision must be construed from the perspective of the injured insured, from whose standpoint a tort-feasor operating an automobile with no insurance available is an uninsured motorist. It is all the same to him whether there is no insurance at all, or a policy that is incapable of being applied to satisfy his claim because the tort-feasor’s insurer lawfully disclaims liability. (Emphasis Added).

223 So.2d at 633, 634.

In Harthcock v. State Farm Mutual Automobile Insurance Co., 248 So.2d 456 (Miss.1971), this Court reaffirmed the principle that the decision as to whether uninsured motorist coverage is available is a matter to be decided from the perspective of the injured insured. In that case, Harth-cock was injured while a passenger on a motorcycle being driven by Horne. The accident was caused by Horne’s negligence and Harthcock brought suit against Horne. Horne’s insurance company denied coverage citing a provision in Horne’s insurance policy which excluded bodily injury coverage to any person while “on or getting on or alighting from the insured vehicle.” Because there was no bodily injury, liability insurance on the motorcycle available to Harthcock, this court held that she was entitled to recovery from her own uninsured motorist coverage. We also held that a provision in Harthcock’s uninsured motorist coverage which forbade her from making any settlement was invalid as against public policy where applied to a tort-feasor other than the uninsured motorist. The Court held:

The insurer may not cut down on the coverage the statute requires. The statute intends to provide a source for the collection by the insured of all sums which she shall be legally entitled to recover as damages against the owner or the operator of an uninsured motor vehicle. The coverage afforded by these policies is mandatory under the statute and may not be cut down by a policy exclusion.

248 So.2d at 459.

This Court again held an exclusion of uninsured motorist coverage to be void as against public policy in Lowery v. State Farm Mutual Automobile Insurance Co., supra. In that case the policy contained a provision which read:

This insurance does not apply ... to bodily injuries to an insured while occupying or through being struck by a land motor vehicle owned by a named insured or any resident of the same household, if such vehicle is not an owned motor vehicle,

“Owned motor vehicle” was defined by the policy as those motor vehicles described in the policy, temporary substitute automobiles newly acquired automobiles, and certain other automobiles described in the policy.

Lowery was injured while riding a Honda motorbike not mentioned in the insurance policy. The Court held that Lowery was “clearly within the terms of the exclusionary provision of the policy.” The person with whom Lowery collided was uninsured. The Court again stated the rule that the uninsured motorist statute is to be liberally construed so as to accomplish the purpose of the legislature in attempting to protect the public from the negligence of financially irresponsible drivers. After an extensive discussion of the law in a number of other jurisdictions, this Court held that the exclusionary clause in Lowery’s insurance contract violated the public policy of the state as manifested by the Mississippi Uninsured Motorist Act.

In Preferred Risk Mutual Insurance Company v. Poole, 411 F.Supp. 429 (N.D. Miss.1976), Judge Ready followed the dictates of this Court as set forth in Hodges and Harthcock. In Poole, three persons were killed when one of them driving the truck they were riding in lost control of the vehicle as it careened off the road. The three dead travelers were employees of the' owner of the truck. One of them was driving and the other two were the only passengers. A cross-employee exclusion, similar to the family exclusion in the instant case, excluded liability coverage to Poole’s employees where their injury, sickness, disease or death was the result of another employee’s actions arising out of the maintenance or use of the employer’s automobile. The Court acknowledged that if considered alone, the cross-employee exclusion would be directly applicable and relieve Preferred Risk of any duty of coverage. Regardless, the Court carefully analyzed the Mississippi Vehicle Safety Responsibility Act and the Uninsured Motorist Vehicle Act, along with decisions of this Court (particularly Hodges and Harthcock) and arrived at the conclusion that the exclusion of coverage made the uninsured motorist provision of the employer’s policy applicable. The Court held:

Though the facts are dissimilar, Harthcock is legally indistinguishable from the instant case. As we have demonstrated, no liability insurance coverage under Preferred Risk’s policy is available to the Gattis or Morris death beneficiaries. Viewing the statute from the perspective of the injured insured, as Hodges and Harthcock command us to do, it is beyond cavil that the death vehicle was an “uninsured motor vehicle” under § 83-11-103 and that Preferred Risk has a duty of coverage.
We therefore hold that Preferred Risk’s attempt to exclude Morris and Gattis, as occupants of Poole’s pickup truck, from insurance protection under the uninsured motorist endorsement contained in Poole’s policy clearly conflicts with the Mississippi Uninsured Motorist Vehicle Act and is ineffectual to deny uninsured motorist coverage to anyone statutorily qualified to invoke such coverage. The terms of the statute and the interpretation given it by the state’s highest court, as well as the declared purposes of the automobile insurance industry in providing uninsured motorist coverage, leave no room for Preferred Risk to avoid its uninsured motorist obligation fixed by law.
We declare that Preferred Risk, although freed of any payment responsibility to the Morris and Gattis death beneficiaries as liability insurer to Poole, is nonetheless obligated, within the applicable statutory limits, to pay the death claimants for any losses which may be due to the deaths of Morris and Gattis incurred as the proximate result of Lovelace’s negligent operation of Poole’s pickup truck.

411 F.Supp. at 439.

The only reported decision in which this Court has failed to follow the rule announced in Hodges, Harthcock, Lowery and Poole, is Aitken v. State Farm Mutual Automobile Insurance Company, 404 So.2d 1040 (Miss.1981). In that case Ait-ken was driving his fiancee’s car and she was riding as a passenger. Due to Ait-ken’s negligence, he lost control of the car and caused it to run into a telephone pole. His fiancee, Robin Black, was insured. Ms. Black then married Aitken and sued State Farm to recover damages under both the liability and uninsured motorist provision of the policy. The bulk of the Court’s opinion was directed toward the doctrine of interspousal immunity; however, the Court also held that Black’s uninsured motorist coverage was not applicable.

The Aitken decision failed to cite any of this Court’s previous opinions which have held that the statute is to be liberally construed. There is no mention in the opinion of Hodges, Harthcock, Parker or Stevens. Indeed, the opinion gave the uninsured motorist statute a very narrow construction by holding that it covered only injuries caused by “another and separate motor vehicle owned or operated by a person who did not have liability insurance on his automobile or had such coverage in an insurance company that became insolvent or bankrupt.” 404 So.2d at 1043.

The Aitken decision is an anamoly in this state’s jurisprudence. It rejected a rule of law which has been steadily followed since 1969. Not only did it reject that rule of law but it failed to cite the cases in which that rule is announced and, moreover, it failed to cite authority for the rule it purported to announce. Indeed, the trial court in the instant case held that the Aitken decision was inapplicable because it was primarily founded in the doctrine of inter-spousal immunity and because “to give the Aitken case the meaning urged by the defendant would overrule a number of long standing precedent without a positive, plain and explicit directive from the Supreme Court and would be in violation of our statutes on uninsured motorist coverage.”

Commentators on the subject have universally recognized that the humanitarian purpose of the uninsured motorist statute is best served when the applicability of the coverage is viewed from the standpoint of the injured insured:

It must always be noted that uninsured motorists coverage is designed for the benefit of insureds and not insurors.

Couch on Insurance, 2nd Ed. § 45:624, p. 35, 36.

Under certain policy provisions and in certain factual situations, the vehicle is uninsured despite the existence of liability insurance where the driver is excluded from coverage under the policy.

Couch at § 45:640, p. 160.

In referring to exclusion clauses which prohibit family members from recovering under liability coverage and which prevent recovery under the uninsured motorist provision, noted insurance commentator Apple-man has written: “It almost resembles Amos and Andy’s definition of an insurance policy as a paper where “the big print gives it to you, and the little print takes it away.” Insurance Law and Practice by Appleman, § 5080.35. Appleman has also written as follows:

It has properly been stated that uninsured motorist protection is not coverage for vehicles but for persons, even though it is contained within a policy otherwise insuring an automobile and that it would be unconscionable to permit an insurer to collect premiums on the one hand and remove protection with the other by redefining “insured” under the UM coverages. If an automobile cannot be insured for the purpose of liability coverages and uninsured for UM coverage, the insurer cannot exclude from the UM coverage a class of persons required to be included under the liability section.

Appleman at § 5080.

The briefs in this cause have been of great assistance to this Court. We have carefully studied State Farm’s legal argument and the decisions from other jurisdictions which support it; however, we do not find those arguments persuasive. The numerous decisions of this Court which require that we view the situation from the perspective of Mary Nester, permit no conclusion other than that Patrick Sullivan was an uninsured motorist and that as such it would be against public policy of our state, as expressed by the legislature, to allow State Farm to exclude Mary Nester from coverage. As the trial court observed, the Aitken decision did not overrule any prior decisions of the Court. It stands alone in the face of those other decisions and is not supported by authority nor binding to the case sub judice. Any language in that opinion contrary to today’s decision is mere dictum and is hereby expressly disfavored.

Finally there is a point raised by the appellees as to the “stacking” of insurance policies. James Nester had four policies on which he paid premiums. Each of these policies extended uninsured motorist coverage to Mary Nester. The trial court held that each of these policies was applicable and enforceable. State Farm conceded as much during oral argument of this cause.

In Government Employees Insurance Company v. Brown, 446 So.2d 1002 (Miss.1984), this Court once again reaffirmed the rule that where an insured purchases more than one policy and pays the premiums on more than one policy, that insured is entitled to collect on all such policies. Stacking is therefore permissible in Mississippi and the circuit court committed no error in aggregating the four insurance policies. See also Southern Farm Bureau Casualty Ins. Co. v. Roberts, 323 So.2d 536 (Miss.1975).

Based on all of the foregoing, we hereby affirm the decision of the circuit court.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, P.J., not participating.


author: ROBERTSON, Justice,

text:
    Roger FAIRCHILD v. STATE of Mississippi.
    No. 55158.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    Rehearing Denied Dec. 12, 1984.

      Leon Mangum, W.H. Johnson, Jr., Decatur, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case has exposed to us a slice of life we seldom encounter. A ne’er do well, a dope addict and a drifter — none of whose life experiences had been characterized by excessive regard for the norms and mores of society — met by chance and for a few days pursued a drunken odyssey across the Southern United States. One died a violent death in Newton County, Mississippi. The other two, including the Appellant Roger Fairchild, now reside at the Mississippi State Penitentiary at Parchman under life sentences.

Our law has no less regard for the life of Joe T. Davis because he was a friendless drunk. One falls within the protections of our homicide statutes because he or she is a human being — nothing else is required. Nor are Timothy Lee Dickson and Roger Fairchild any less (or more) accountable for their actions because they appear to have lived their lives on the fringes of society.

In the case at bar, Fairchild has been lawfully convicted of the capital murder of Davis. He has been sentenced by the Circuit Court of Newton County to imprisonment for life. We have carefully reviewed the record, the assignments of error, and the briefs and arguments of counsel. We affirm.

II.

A.

On December 29, 1982, Joe T. Davis, age 50, was driving through Arizona on his way to Florida. His vehicle was a 1972 Ford van. Near Toletee, Arizona, Davis picked up a 23 year old hitchhiker named Timothy Lee Dickson who was en route to his home in North Carolina. Davis had been drinking beer prior to picking up Dickson. Af-terwards, Dickson joined Davis in his beer consumption as the two traveled east on Interstate Highway 10 — stopping only to maintain the van, to visit bars, and to buy more beer.

Roger Fairchild, the Defendant below and Appellant here, was a 42 year old drifter from Pennsylvania. On New Year’s Eve, December 31, 1982, Fairchild was hitchhiking on Interstate Highway 20 near Longview, Texas. Davis stopped to pick him up. Dickson was still riding with Davis. Fairchild soon joined Davis and Dickson in their beer libations, as the three headed east on 1-20.

According to Dickson, Davis had been “flashing” around a lot of cash. During a bathroom stop near Shreveport, Louisiana, Dickson told Fairchild that Davis had a lot of money and that he, Dickson, believed that he and Fairchild could “knock him out and rob him”. Dickson testified that Fair-child agreed that this was a good idea. At a later stop, while looking for a bar, Dickson asked Fairchild if he had a knife. Fair-child responded affirmatively and handed Dickson his knife.

Thereafter that afternoon the trio located a likely looking “tonk” in Monroe, Louisiana. They stopped and again imbibed profusely. Several hours later they recommenced their journey east on Interstate Highway 20. At this time Dickson was drunk and driving, Fairchild was drunk in the front seat and sleeping, and Davis was drunk in the back of the van and sleeping. They continued in this fashion until sometime after they crossed the Mississippi River and entered the State of Mississippi.

Late on New Year’s Eve Dickson was still driving and Davis and Fairchild were still sleeping. Dickson pulled the van off the road. According to his testimony, “I went back there and I started choking the man [Davis], and I pulled the knife out and stabbed him a couple of times.” Dickson then took all of the money out of Davis’ pockets and “as I started driving, I woke Fairchild up and told him it was done”. According to Dickson, Fairchild responded that they should look for a bridge with some water in it. Fairchild then went to the back of the van and took rings, jewelry and travelers checks off of Davis, then returned to the front part of the van with Dickson.

Dickson testified that he had an agreement with Fairchild that they would split everything fifty-fifty. However, Dickson testified that he received $2,000 in travelers checks while Fairchild kept $3,000 for himself. They divided the two watches found on Davis’ body and jointly spent the cash on beer and gas. Fairchild kept the rest of the jewelry.

Shortly after Dickson killed Davis, they arrived at a bridge located in Newton County, Mississippi. According to Dickson, “I pulled off the road, and I opened the side door, and we both drug him out and threw him in the water, and got back in the van and took off”.

On February 4, 1983 — some five weeks later, Newton County Deputy Sheriff Robert Earl Dean discovered the body of a white male approximately 50 years of age near the marker for mile 102 on Interstate Highway 20. The body was found approximately 150 to 200 feet north of the highway in some bushes near a north running creek. It was clothed in a light brown sport-type jacket, light brown or tan pants, a flowery shirt, with the rear back pockets turned inside-out. The body was taken to Jackson where an autopsy was performed under the direction of Dr. Rodrigo Galvez, pathologist. The cause of death was massive internal bleeding from a stab wound to the heart.

B.

On March 24, 1983, Fairchild and Dickson were jointly charged with the capital murder of Joe Davis in an indictment returned by the Newton County Grand Jury. The indictment specifically charged that Dickson and Fairchild murdered Davis while they were engaged in the commission of the crime of robbery. Miss. Code Ann. § 97-3-19(2)(e) (Supp.1983).

Immediately thereafter, the State entered into a plea bargain agreement with Dickson whereunder Dickson, on March 28, 1983, pled guilty to the separate crimes of murder and armed robbery. Upon these convictions, Dickson received sentences of life imprisonment and 35 years, respectively, the sentences to run consecutively.

On August 24, 1983, the case against Roger Fairchild Was called for trial in the Circuit Court of Newton County, Mississippi. After hearing all the evidence and receiving the instructions of the Court and the arguments of counsel, the jury found Fairchild guilty of capital murder. Thereafter, the State put Fairchild to trial on the question of sentence. Miss. Code Ann. § 99-19-101 (Supp.1983). At approximately 6:45 p.m. on August 25, 1983, the jury returned a verdict, to wit: “We, the jury, find the Defendant should be sentenced to life imprisonment.” Immediately thereafter, the Circuit Judge imposed sentence in accordance with the verdict.

Thereafter, Defendant Fairchild, acting by and through his attorney, timely filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. On September 2, 1983, the Circuit Court entered its order overruling these alternative motions. Fairchild now appeals to this Court.

III.

A.

On this appeal Fairchild first urges reversal on the asserted grounds that the verdict of the jury was contrary to the overwhelming weight of the credible evidence. Although he attacks the evidence in its entirety, a study of Fairchild’s brief makes clear that his primary contention is that the State never proved that the body found in Newton County on February 4, 1983, was that of Joe T. Davis. The point is not well taken.

Fairchild’s accomplice, Timothy Lee Dickson, testified that the $2,000 in travelers checks handed him by Fairchild were in the name of Joe T. Davis. Dickson also identified Davis’ driver license as belonging to the person he killed. In addition, Dickson described the deceased as having been dressed in a brownish-like suit, pants and a flowery shirt — a description comparable to that given by Deputy Sheriff Dean of the clothing found on the body he discovered on February 4, 1983.

It is true that the State must prove that the person killed is one and the same person named in the indictment as having been killed. Duke v. State, 243 Miss. 602, 604-605, 139 So.2d 370, 371-372 (1962); Dooley v. State, 238 Miss. 16, 18-19, 116 So.2d 820, 821 (1960). In the case at bar, we hold that the testimony regarding the name of Joe T. Davis on the travelers checks, the testimony regarding his drivers license and the matching testimony from Dickson and Deputy Dean regarding the clothing of the deceased are more than sufficient to enable a reasonable jury to conclude beyond a reasonable doubt that the person killed on December 31, 1982, and whose body was discovered on February 4, 1983, was one and the same Joe T. Davis the killing of whom has been charged in the indictment.

B.

Considering the evidence and the verdict more generally, we observe that there is in this record no evidence that Fairchild wielded the fatal blow at Davis, or any other blow for that matter. Still, Fairchild has been tried and convicted as a principal to the crime of capital murder, and this by virtue of Miss. Code Ann. § 97-1-3 (1972), which provides:

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such,

The evidence in this record is sufficient to establish that Fairchild participated in advance planning of the robbery of Davis, furnished Dickson the knife used in the murder, and that after Davis had been killed Fairchild took charge of dividing the “take” and assisted in disposing of the body. This is enough. Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Young v. State, 425 So.2d 1022, 1029 (Miss.1983); White v. State, 330 So.2d 877, 879-880 (Miss.1976); Jones v. Thigpen, 741 F.2d 805, 816 (5th Cir.1984).

To be sure, the evidence which produced the conviction from which Fairchild here appeals was provided by his co-indict-ee and accomplice, Timothy Lee Dickson. We have repeatedly recognized that a defendant may be lawfully convicted on the uncorroborated testimony of an accomplice, Gandy v. State, 438 So.2d 279, 285 (Miss.1983); Jones v. State, 381 So.2d 983, 988 (Miss.1980); Culberson v. State, 379 So.2d 499, 503 (Miss.1979), although we frequently caution that such testimony should be viewed with suspicion and must be reasonable and not improbable, self-contradictory or substantially impeached. Mason v. State, 429 So.2d 569, 571 (Miss.1983); Catchings v. State, 394 So.2d 869, 870 (Miss.1981).

Because of its importance to this case, we have carefully reviewed the testimony of Timothy Lee Dickson. It is imprecise and vague at points. On the critical matter of the involvement of Fairchild in the murder and robbery of Davis, Dickson’s testimony is credible. It is certainly not improbable or self-contradictory nor was it substantially impeached.

These preliminaries out of the way and looking at the evidence as a whole, we find that we must affirm.

Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). When' we apply this standard to the evidence in the record, we may only state that the trial judge correctly denied Fairchild’s request for a peremptory instruction as well as his subsequent motion for judgment of acqdittal notwithstanding the verdict of the jury.

The motion for a new trial is somewhat different. That motion is addressed to the sound discretion of the trial court. Neal v. State, 451 So.2d 743, 760 (Miss.1984). When he moves for a new trial, a defendant in a criminal case necessarily invokes Rule 5.16 of our Uniform Criminal Rules of Circuit Court practice which in pertinent part provides:

Rule 5.16

New Trial

The court on written notice of the defendant may grant a new trial on any of the following grounds:

(1) if required in the interest of justice;
(2) if the verdict is contrary to law or the weight of the evidence; ....

Having due regard for the evidence recited at the outset of this opinion, we hold that the trial judge acted well within his discretion when he denied Fairchild’s alternative motion for a new trial.

IV.

Fairchild argues that the trial court erred in overruling his motion for a directed verdict made at the close of the State’s case on the grounds that the State had failed to establish venue in Newton County. The argument advanced by Fairchild seems to be that there is no credible proof where Davis was killed and, accordingly, there is an insufficient evidentiary predicate to establish venue in Newton County — or anywhere else for that matter, although it is clear without serious dispute that Davis was killed somewhere in the State of Mississippi. Carried to its logical extreme, Fairchild’s argument would result in a homicide in Mississippi of which no county would have venue.

The body of Joe T. Davis was found in Newton County. The evidence offered by Deputy Sheriff Robert Earl Dean is sufficient to establish that the bridge Davis’ body was thrown off of was likewise situated in Newton County. Timothy Dickson testified that, shortly after dumping the victim’s body off the bridge, he and Fair-child stopped at a truckstop in Newton County to wash up and get something to eat. Dickson testified that he saw several state troopers. Larry Wayne Muse, an officer of the Mississippi Highway Patrol, testified that on New Year’s Eve he saw Dickson and another man enter the truck-stop, which Muse identified as being in Newton County.

Without doubt Fairchild had the right to be tried “by an impartial jury of the county where the offense was committed”. Miss. Const, art. 3, § 26 (1890). He is correct when he reminds us that this Court has traditionally taken quite seriously the requirement that a criminal matter be tried in the proper venue. Clark v. State, 230 Miss. 143, 146-47, 92 So.2d 452, 453 (1957).

Venue, of course, may be proved by circumstancial evidence or inferentially. Sanders v. State, 286 So.2d 825, 827 (Miss.1973). Of importance here is a legislative enactment on the subject, Miss. Code Ann. § 99-11-3 (1972)

The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties ... the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.

See Phillips v. State, 177 Miss. 370, 374, 171 So. 24, 25 (1936); Hill v. State, 112 Miss. 375, 382, 73 So. 66, 67 (1916).

Under our law, the fact that Davis was found dead in Newton County raises a rebuttable presumption, or supports an inference, that all or part of the homicide took place in Newton County. Sanders v. State, 286 So.2d 825, 827 (Miss.1973); State v. Fabian, 263 So.2d 773, 779 (Miss.1972). Fairchild having offered nothing to rebut this presumption or make unreasonable the inference, we hold the evidence sufficient to undergird a finding that venue was proper in Newton County.

We note that the uncertainties raised by Fairchild regarding venue were the product of Dickson’s unfamiliarity with Mississippi county lines coupled with his obvious state of intoxication at the time "of the murder. These are the sort of uncertainties in the evidence which, section 99-11-3 directs, shall not avail to procure the acquittal of the defendant.

This assignment of error is without merit and must be denied.

V.

A.

Fairchild finally charges that the trial judge committed error when he refused to charge the jury regarding two lesser-included offenses, murder and manslaughter.

The record reflects that Fairchild’s attorneys requested Instruction No. D-24 which would have submitted the lesser-included offense of murder and Instruction No. D-25 which would have submitted the lesser-included offense of manslaughter. Each of these instructions was refused by the trial judge on the grounds that there was not a sufficient evidentiary basis in the record for granting either.

Our law is well-settled that jury instructions are not given unless there is an evidentiary basis in the record for such. Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983); Johnson v. State, 416 So.2d 383, 388 (Miss.1982). Where under the evidence a reasonable jury could find the defendant not guilty of the principal charge made in the indictment but guilty of a lesser included offense, the trial judge ordinarily should instruct the jury regarding the elements of that lesser-included offense. Knowles v. State, 410 So.2d 380, 382 (Miss.1982). Ruffin v. State, 444 So.2d 839, 840 (Miss.1984), expressly declares that, only where the evidence could only justify a conviction of the principal charge should a lesser included offense instruction be refused.

This rule is wholly applicable in prosecutions brought under this state’s capital murder statute. Lanier v. State, 450 So.2d 69, 79-81 (Miss.1984); see also, Hill v. State, 432 So.2d 427, 440-441 (Miss.1983); Johnson v. State, 416 So.2d 383, 387-388 (Miss.1982); In Re Jordan, 390 So.2d 584, 585-86 (Miss.1980); Spencer v. State, 348 So.2d 1030, 1030 (Miss.1977). Where the state seeks imposition of the penalty of death, the rule takes on constitutional proportions. Beck v. Alabama, 447 U.S. 625, 632-33, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392, 400 (1980); Hopper v. Evans, 456 U.S. 605, 611-12, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367, 373 (1982); Jackson v. State, 337 So.2d 1242, 1254-1255 (Miss.1976).

B.

Looking first at the “simple murder” instruction — Instruction No. D-24 — the trial judge refused that instruction because there was substantial evidence that the homicide was committed in conjunction with a robbery. In so holding, the trial judge appears to be echoing the view of the United States Court of Appeals for the Fifth Circuit expressed in Bell v. Watkins, 692 F.2d 999, 1004-1005 (5th Cir.1982) and Jones v. Thigpen, 741 F.2d 805, 816 (5th Cir.1984). That view in a nutshell is that, under Mississippi law, no murder committed during the course of a robbery can be simple murder. It becomes, by definition, capital murder under section 97-3-19(2)(e), or so the theory goes.

The theory is flawed. It determines what instruction will be granted at the request of the capital murder defendant on the basis of a presumption that he has already been found guilty of the underlying felony. The theory forgets that there is no such thing as a directed verdict of guilty in a criminal case, either on the principal charge in general or on any of its components. Its logic requires the determination that the proof offered by the State where not substantially contradicted must perforce be believed by the jury and so acted upon in their verdict. True, the evidence that Fairchild participated in a robbery in this case is substantial. What the trial judge has done, however — following the theory advanced by the Fifth Circuit — has been to find as a matter of law that Fairchild is guilty of robbery before the case is ever submitted to the jury. This constitutionally he has no authority to do.

The issue presented is whether the evidence in this case was such as to warrant the giving of an instruction on the lesser-included offense of simple murder. In applying the “if-the-evidence-warrants-it” test, we clearly do not ask which way the evidence preponderates — in favor of capital murder or the lesser-included offense. We likewise do not merely ask if there is sufficient evidence to sustain the jury’s verdict of guilty of capital murder. The answer to that question in this and other cases may be “yes” (as explained in Section III above) and there still be reversible error in not giving the lesser-included offense instruction. See Lanier v. State, 450 So.2d 69, 80 (Miss.1984).

The correct test is this: Only if this Court can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, and considering that the jury may not be required to believe any evidence offered by the State, that no hypothetical, reasonable jury could convict Roger Fairchild of simple murder, can it be said that the refusal of the lesser-included offense instruction was proper. Ruffin v. State, 444 So.2d 839, 840 (Miss.1984).

In a capital murder case, of course, all doubts should be resolved in favor of the accused. Gambrell v. State, 92 Miss. 728, 736, 46 So. 138, 139 (1908). On the other hand, a lesser-included offense instruction should never be granted on the basis of pure speculation, People v. Simpson, 57 Ill.App.3d 442, 448-49, 15 Ill. Dec. 463, 466, 373 N.E.2d 809, 812 (1978), as will be explained in Subsection C below.

The point is made in another way. If the trial court had given a simple murder instruction, and if the jury had then returned a verdict that Roger Fairchild was guilty of simple murder, the State could hardly argue that the evidence did not support such a conviction. In such an event, on appellate view, we would clearly have had to affirm on the sufficiency of the evidence issue. Because this is so, it follows that the simple murder instruction should have been given.

We hold that the trial judge’s refusal to grant the simple murder instruction—Instruction No. D-24—was error. If at the sentencing phase the jury had returned the death penalty, reversal would have been required. Beck v. Alabama, 447 U.S. 625, 645-56, 100 S.Ct. 2382, 2393-94, 65 L.Ed.2d 392, 407-08 (1980); Lanier v. State, 450 So.2d 69, 79-81 (Miss.1984).

In the case at bar, the jury found and determined that Fairchild should be sentenced to life imprisonment. If the trial judge had granted the simple murder instruction, as he ought to have, and if Fair-child had been found guilty of simple murder, the sentence would have been the same, to wit: “imprisonment for life in the state penitentiary”. Miss. Code Ann. § 97-3-21 (Supp.1983). Had the erroneously-denied instruction been given and, of course, had the jury elected to pursue the route it charted, Fairchild’s lot would have been improved not one iota over that he drew. Under these circumstances, the refusal to grant the simple murder instruction was harmless error.

C.

The manslaughter instruction—Instruction No. D-25—presents a separate question. Here it appears that Defendant Fairchild was requesting that the jury be charged that it could consider the lesser-included offense of manslaughter, as that defense has been defined in Miss. Code Ann. § 97-3-35 (1972), although the. instruction tendered does not precisely track the language of the statute.

This instruction would have presented to the jury the affirmative proposition that Fairchild’s actions were “without malice aforethought” and presumably in the heat of passion. We find no evidence in the record from which a rational jury could conclude that Fairchild’s actions constituted manslaughter, particularly in view of our established rule that voluntary intoxication is no defense in a criminal prosecution. Hall v. State, 427 So.2d 957, 961-962 (Miss.1983); McDaniel v. State, 356 So.2d 1151, 1153-54 (Miss.1978).

We emphasize the distinction between the situation presented by the requested manslaughter instruction and that discussed in Subsection B above regarding the murder instruction. The manslaughter instruction was correctly refused because a manslaughter verdict could not on these facts have been reached solely by the jury’s disbelieving a portion of the State’s case. The jury could only have returned a verdict of manslaughter by finding affirmatively that Fairchild acted without malice aforethought and in the heat of passion, matters with respect to which there was no evidentiary basis in the record. Such matters may not be inferred. People v. Simpson, 57 Ill.3d 442, 448, 15 Ill.Dec. 463, 467, 373 N.E.2d 809, 813 (1978).

In the case of the murder instruction, the necessary affirmative findings— that Fairchild acted with malice aforethought and as a principal with Dickson— were undergirded by substantial evidence. The State obviously admitted as much when it requested and obtained submission to the jury of a capital murder instruction, one of the elements of which was murder. Malice or intent here, as a matter of law, may be proved or inferred from the use of a deadly weapon. Shields v. State, 244 Miss. 543, 548, 144 So.2d 786, 788 (1962). In order to defeat that inference, evidence must be offered to change the character of the killing. Hendrieth v. State, 230 So.2d 217, 219-20 (Miss.1970). To return a verdict of murder, the jury would merely have had to determine that the evidence did not establish beyond a reasonable doubt that Fairchild participated in the robbery. Since all of the testimony came from Fairchild’s scurrilous accomplice, we cannot say that a jury’s negative determination of the robbery issue would have been irrational.

In short, the murder instruction should have been granted because all that was necessary for the jury to find Fairchild guilty of murder was that it disbelieve or find unconvincing a part of the State’s proof. That instruction did not ask the jury to make an affirmative finding on an issue of ultimate fact where the record contained no supporting evidentiary facts. As explained above, asking the jury to make such a finding is the vice in the manslaughter instruction and the reason why it was correctly refused.

Our review of the evidence in this case makes it clear that the manslaughter instruction which was tendered by the Defendant in this case should not have been given. There is simply no evidence in the ease — offered by the State or by the defense — which would change the character of the killing so that a reasonable jury could affirmatively find that the killing of Davis was manslaughter as defined in Section 97-3-35 or in any of our other statutes defining manslaughter. We hold that the trial judge did not commit error in refusing to submit this instruction to the jury.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.


author: SUGG, Retired Supreme Court Justice,

text:
    Hazel D. ABSHIRE v. Weston J. ABSHIRE.
    No. 54441.
    Supreme Court of Mississippi.
    Nov. 14, 1984.

      Frank G. Power, McGee & Bogen, Leland, for appellant.
    Stephen L. Thomas, Mansour & Thomas, Greenville, for appellee.
    Before WALKER and ROY NOBLE LEE, P.JJ., PRATHER, J., and SUGG, Retired Supreme Court Justice.
   SUGG, Retired Supreme Court Justice,

for the Court:

Hazel Abshire sued her husband, Weston J. Abshire, for divorce on the ground of adultery. Mrs. Abshire prayed for a reasonable amount of lump sum alimony, a reasonable amount as permanent alimony, an adjudication and determination of her interest in certain property held by the parties, and a reasonable amount for attorney fees.

In addition to a divorce the Chancery Court of Washington County granted Mrs. Abshire periodic monthly alimony payments of $750.00; lump sum alimony in the amount of $200,000.00, with payment deferred for five (5) years and payable thereafter in yearly installments of $5,000.00 without interest on the deferred installments; and suit fees in the amount of $12,000.00.

On appeal, Mrs. Abshire contends the trial court committed reversible error by deferring the payment of the Two Hundred Thousand Dollars ($200,000.00) lump sum alimony for a period of five (5) years and by ordering payment at the rate of Five Thousand Dollars ($5,000.00) per year without interest.

The parties were married on April 17, 1949, in Kaplan, Louisiana. In 1957 they moved with their two daughters to Green-ville, Mississippi, where they purchased a house with title in both their names. In 1959 Abshire purchased a 240 acre farm known as the “Tamburo Place”. With the proceeds from the sale of the parties’ house and from an FHA loan, Abshire built a house on the Tamburo Place and the family, which now included a third daughter, moved into it in 1962 or 1963. Between that time and Mrs. Abshire’s award of separate maintenance on May 10, 1967, Abshire purchases in his own name five separate tracts of land totaling 910.671 acres for an aggregate consideration of $229,000.00. Down payments on these purchases were made from the parties’ joint bank account.

It is undisputed that Abshire’s adultery caused the separation of the parties in 1967. On May 10th of that year, the Chancery Court of Washington County awarded Mrs. Abshire separate maintenance and the possession of the marital residence. She and the children lived there until 1969, when Abshire’s conduct with his paramour became too disturbing and led Mrs. Abshire and her daughters, aged 18, 17, and 8, to move back to Kaplan, Louisiana, to the home of Mrs. Abshire’s parents. Shortly thereafter the two elder daughters returned to Mississippi to attend college, while the youngest child remained in Kap-lan.

Abshire and his paramour applied for a marriage license in Arkansas in 1971. Although they were never married, Abshire adopted her child. The affidavit attached to the petition for adoption stated that Ab-shire and his paramour were husband and wife.

With the help of her father Mrs. Abshire bought a lot and borrowed $16,000.00 to build a small 2-bedroom house. The balance due on the loan at the time of trial was about $11,000.00. From 1970 to 1974 Mrs. Abshire worked at a TG & Y store. She later became a secretary at the Rost Middle School with a take home pay of $540.00 and separate maintenance of $300.00. Intermittently since 1968 she has been under the care of a psychiatrist and is presently being treated for hyperthyroid, hypertension and anxiety. When asked to compare her present standard of living' with that to which she was accustomed during her marriage, Mrs. Abshire testified:

A. First of all, I have to work now where I didn’t at thg time. I have to watch expenses pretty carefully. I don’t have any left over for — except for necessities. I had a maid and we would take vacations, and I don’t now — just to come see my children.

The only issue presented on this appeal is whether the chancellor abused his discretion in deferring the payment of the $200,-000.00 lump sum alimony award for a period of five years and ordering payment in annual installments of $5,000.00 without interest.

Mrs. Abshire argues that in view of her age (53 at time of trial) and health, this payment scheme was manifest error. She submits that, unless Mr. Abshire predeceases her, she will not receive the full amount of the lump sum alimony award until she is 98 years old.

The rationale behind the payment scheme was to prevent oppressive liquidation of Abshire’s assets. We first observe the chancellor found Abshire had “a net worth now that is in the range of $2,000,000.00.” His assets consist of land, stocks, certificates of deposit, and notes receivable. The chancellor’s finding as to Abshire’s net worth is conservative.

The record also reveals Abshire was able to make hundreds of thousands of dollars in improvements to his property without borrowing money.

In Jenkins v. Jenkins, 278 So.2d 446, 449, 450 (Miss.1973), this Court held that an award of lump sum alimony was proper to provide security for the future in addition to periodic alimony payable monthly. In Jenkins, the court stated:

The appellant next contends that the trial court erred in not awarding lump-sum alimony in view of the appellee’s present wealth, all of which was accumulated during their marriage. She cites Harrell v. Harrell, 231 So.2d 793 (Miss.1970), wherein it was argued that the chancery court was without authority to decree lump-sum alimony in combination with future monthly payments. In rejecting this point we stated: "... [W]e are unable to discern any plausible reason why a lump-sum award if reasonable in amount as determined from the circumstances of the parties, would violate the terms of the statute even though made in conjunction with other alimony.” (231 So.2d at 796). Harrell, as we view it, upholds and thus authorizes alimony in lump sum, either alone or in conjunction with other awards. It appears to us that a lump-sum award in conjunction with an award of monthly alimony would have been proper in this case. As heretofore stated, this couple was married for approximately twenty-four years. At the beginning of the marriage they had no assets and the husband made a salary of $85 per week. At the time of the divorce the appellee admitted assets of $800,000. The appellant’s worth was meager by comparison. It seems to us in a case such as this where the wife has contributed to the accumulation of the property of her husband, doing her part as a housewife, it would not be improper that she be allowed a reasonable amount as lump-sum alimony on retrial.

******

... We conclude the award was grossly inadequate and are of the opinion the lower court erred in not making a greater award so that the wife might be supported in accord with her station in life as well as provided security for the future ....

Abshire does not contend the amount of the monthly alimony or the lump sum alimony is unreasonable. When the parties were married they had very few assets, and the bulk of the land owned now by Abshire was acquired before their separation. In this case, as in Jenkins, a lump sum award together with monthly alimony was proper. However, the chancellor deferred payment of the lump sum alimony to keep from putting Abshire “into a situation that would require liquidation of the business or the sale of the farm, or other major structural problems in the financial assets.” The chancellor stated that he was providing Mrs. Abshire with lump sum alimony as “simply something that’s out there protecting you in the event of your husband’s death.” Payment of the lump sum award within a reasonable time should have been ordered by the chancellor.

We note from the record that Abshire had a carry over of his crop and certificates of deposit in an amount sufficient to pay the $200,000.00 lump sum alimony without requiring liquidation of his business or sale of his farm. We hold the chancellor erred by deferring payment of the lump sum award for an unreasonable length of time.

Accordingly, we direct that the lump sum alimony be paid within 18 months, that interest on the lump sum alimony from the date of the original decree be paid within 30 days, and that interest accrue thereafter on the lump sum alimony until paid by Abshire at the statutory rate of 8%.

We allow a $6,000.00 attorneys fee for representation on appeal to be paid by Ab-shire within 30 days from the date this decision is handed down.

REVERSED AND RENDERED.

WALKER and ROY NOBLE LEE, P.JJ., BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., and DAN M. LEE, J., not participating.

      . Sitting pursuant to Mississippi Code Annotated, Section 9-3-6 (Supp.1982). The above opinion is adopted as the opinion of the Court.