author: DAN M. LEE, Justice, for the Court:

text:
    Patricia R. HOGAN v. MISSISSIPPI BOARD OF NURSING.
    No. 55069.
    Supreme Court of Mississippi.
    Oct. 3, 1984.

      Charles I. Knauss, Jr., Gilmer & Jones, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BOWLING, DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice, for the Court:

The appellant, Patricia R. Hogan, is a certified registered nurse anesthetist (C.R. N.A.). Ms. Hogan was employed by the Lawrence County Hospital until an audit in 1981 revealed that a substantial quantity of controlled narcotics signed out to Ms. Hogan were unaccounted for as being either given to a patient, in her present inventory, or wasted. In a complaint by the Mississippi Board of Nursing Ms. Hogan was charged with seventeen (17) separate offenses constituting violations of § 73-15-29(l)(h) of the Mississippi Code Annotated (Supp.1982). During a hearing upon the matter the Board dismissed all but five (5) of the charges of its own motion. Each of the remaining charges alleged the misappropriation of Demerol. At the conclusion of the hearing Ms. Hogan was found guilty on each of the five (5) charges in that she failed to reasonably account for Demerol. As a result, her license to practice as a registered nurse in the State of Mississippi was revoked. Following that decision, Hogan perfected an appeal to the Chancery Court of the First Judicial District of Hinds County. The chancellor affirmed the decision of the Board and Hogan now brings this appeal.

The charges against Ms. Hogan and the findings of the Board of Nursing are as follows:

Charge: That from April, 1981, until August 10, 1981, you misappropriated Demerol placed in your custody for the use of patients at the Lawrence County Hospital, Monticello, Mississippi.
Finding: The Board found you guilty in that you failed to account for twenty-five 100 mg. ampules of Demerol, as evidenced by pharmacy sheet # 104643 coupled with your signature as having received the drugs. Further, that pharmacy sheet # 104357 indicates thirteen Demerol 100 mg. ampules unaccounted for with your signature as having received twenty-five ampules.
Charge: That you misappropriated Demerol in that on or about 4/6/81 from Floor Station # 2 you received two 100 mg. ampules of Demerol for patient Johnny Hartzog. On 4/8/81 you also signed out 50 mg. of Demerol from the anesthesia narcotic supply for this patient. On the anesthesia record dated 4/7/81 you recorded a total of 125 mg. of Demerol as administered to Hartzog.
Finding: The Board found you guilty in that you did not reasonably account for the narcotics missing in the instance as charged.
Charge: That you misappropriated Demerol in that on or about 4/9/81 from Floor Station # 1 you received 50 mg. of Demerol for surgery on 4/10/81; however, this Demerol was not charted as given to either of two patients who had surgery on 4/10/81.
Finding: The Board found you guilty in that you did not reasonably account for the narcotics missing in the instance as charged.
Charge: That you misappropriated Demerol in that on or about 4/10/81 you signed out one 50 mg. ampule of Demerol from the anesthesia narcotic supply to patient Bobby Hall. On the same date you signed out from Floor Station #2 one 100 mg. ampule and one 50 mg. ampule of Demerol for this patient. However, you recorded on the anesthesia records that you administered only 75 mg. of Demerol to Hall.
Finding: The Board found you guilty in that you did not reasonably account for the narcotics missing in the instance as charged.
Charge: That you misappropriated Demerol in that on or about 4/11/81 you signed out 50 mg. of Demerol from the anesthesia narcotic supply for patient Eugene Daughdrill; however, no Demerol is charted as given on the anesthesia record.
Finding: The Board found you guilty in that you did not reasonably account for the narcotics missing in the instance as charged.
(All Emphasis Added)

All of the charges stem from Mrs. Hogan’s role as the certified nurse anesthetist for the Lawrence County Hospital in Monticello, Mississippi. Her job involved anesth-esizing surgery patients before and during surgery. As a necessary component to that role, Ms. Hogan administered narcotics to surgery patients. She was generally responsible for the type and amount of narcotic a surgery patient was to receive. The Lawrence County Hospital distributed ■ narcotics through its head pharmacist, Phil Martin. Martin testified that the procedure for dispensing narcotics required the nurse or physician receiving the narcotics to sign their name at the top of a pharmacy sheet. The narcotics typically came in a box of 20 or 25 ampules. The type of drug issued was labeled across the top of the pharmacy sheet. The pharmacy sheet contained a corresponding number of parallel ruled lines for the person who checked out the drugs to record the date, time, patient, physician, dose and signature of the person administering the drugs. When all 20 or 25 lines were filled out, the pharmacy sheet could be returned to Phil Martin and he would then issue another box of the narcotics with a blank pharmacy sheet. Martin did not always require that a completed pharmacy sheet be returned to him before he issued more narcotics because to do so would have required a nurse to completely exhaust her supply before getting any more. As a result, Martin testified that it was possible that he would dispense narcotics to someone who already had some checked out. He stated that he did not regularly allow more than two boxes of a narcotic to be checked out before a pharmacy sheet was returned. Martin later testified that he had been reprimanded by the State Pharmacy Board for dispensing narcotics without requiring the person he issued the narcotics to first sign a pharmacy sheet. He admits that he was not conscientious in his work and in his accounting for narcotics.

Martin further testified that any drug remaining in an ampule after part of it had been administered to a patient was to be “wasted.” All waste of narcotics was to be reported to the pharmacy on a “waste sheet.” Rosemary Brister, Director of Nurses at Lawrence County Hospital, testified that she told Ms. Hogan of the hospital’s policy on waste of narcotics. Catherine Lambert, the operating room supervisor, testified that in May, 1981, Ms. Brister asked her to give waste report sheets to Ms. Hogan.

Ms. Hogan’s testimony was somewhat different. She testified that no one had ever said anything to her about waste procedures. She stated that she wasted narcotics by putting the unused amount in a syringe and dropping the syringe in an empty i.v. bottle. She testified that in all her work experience she had never been required to sign a separate sheet to account for waste. She further testified that there were times when she found her narcotic closet and anesthesia cart unlocked.

Ms. Hogan’s first assignment of error is that the chancery court erred in upholding the decision of the Mississippi Board of Nursing in that she was charged with misappropriation of controlled substances and the findings of the Board indicate only that she had failed to reasonably account for those substances. Her position is that the failure to account is not tantamount to misappropriation. We find this argument persuasive.

The applicable statute is § 73-15-29(l)(h) Miss. Code Ann. (Supp.1982). That provision reads as follows:

(1) The board shall have power to revoke, suspend or refuse to renew any license issued by the board, or to deny an application for a license, or to fine, place on probation and/or discipline a licensee in any manner specified in this chapter, upon proof that such person:
(h) Is addicted to or dependent on alcohol or other habit forming drugs or is a habitual user of narcotics, barbituates, amphetamines, hallucinogins or other drugs having similar effect, or has misappropriated any medication; (Emphasis Added).

Because § 73-15-29 permits revocation of a nursing license, it is penal in nature and therefore must be strictly construed against the governmental agency (the Nursing Board) when attempting to revoke a license. Boring v. Mississippi State Board of Dental Examiners, 300 So.2d 135 (Miss.1974); Mississippi Insurance Commission v. Savery, 204 So.2d 278 (Miss.1967); Mississippi State Board of Dental Examiners v. Mandell, 198 Miss. 49, 21 So.2d 405 (1945).

In Levi v. Mississippi State Bar, 436 So.2d 781 (Miss.1983), we reaffirmed the principle that in adversary proceedings of a quasi criminal nature the accusor is held to a higher standard of proof than the ordinary standard of “a preponderance of the evidence.” We also held that where the charge was fraud or an “equivalent form of misconduct” the accusing party must prove his case by clear and convincing evidence. 436 So.2d at 783.

Applying these principles to the instant case, the rule is derived that in a proceeding by the State Board of Nursing wherein a nurse is alleged to have misappropriated narcotics and faces a possible revocation of her license, the Board must prove that charge by clear and convincing evidence. We are of the opinion that the Board’s failure to find Ms. Hogan guilty of anything other than a failure to reasonably account for the missing narcotics does not reach the required standard of proof.

In Sisk v. State, 294 So.2d 472 (Miss.1974), this Court reversed a conviction of embezzlement where the state failed to prove that the allegedly embezzled machine parts were wrongfully converted. In that case Sisk was a county supervisor who was accused of embezzling certain heavy machinery parts owned by the county. Sisk had approved the payment of claims for the cost of these parts. The state’s witness testified that many of these parts would not have fit heavy machinery owned by the county but would have fit machinery once owned by Sisk and still in his possession. On these facts, this Court reversed Sisk’s conviction and held:

We have no difficulty in reaching the opinion that the machinery parts belonging to the county and charged to have been embezzled came into the appellant’s possession by color of his office. State v. Yeates, 140 Miss. 224, 105 So. 498 (1925). We have, however, an insurmountable problem in attempting to sustain a jury verdict of embezzlement in the absence of evidence of a wrongful conversion of the parts by the appellant to his individual use. In this regard we note that Sisk is not charged with wrongfully procuring the parts nor with wrongfully paying for them with public-funds, but rather is indicted for their conversion. An essential of embezzlement is the wrongful conversion of property lawfully possessed by the person charged with embezzlement. Temple v. State, 288 So.2d 835 (Miss.1974), and the authorities therein cited.
In considering the entirety of the evidence offered by the state, including that related to Auditors Brown and McDonald by the appellant, and the testimony on behalf of the defendant, the most that can be gleaned from it is that the machinery parts, unsuitable for public machines of the county, although purchased with public funds, came into the appellant’s possession by virtue of his office and they were suitable for machinery previously owned by the appellant.
There is no testimony that the parts were actually attached to the machinery of the appellant. In fact, the contrary is shown by the record since there is undisputed testimony that several of the parts listed in the indictment were either reworked by the appellant and used upon county machinery or were used in the construction of a winch for the county’s purposes.
We note also in reviewing the evidence that in several instances the parts ordered in the original order blanks did not correspond with those listed upon the completed invoices even though the order blanks and the invoices bore identical machinery numbers, strongly suggestive, we think, of clerical error in the shipment of parts unsuitable for the county’s machines and surely, precarious evidence upon which to base a conviction.
The difficulty of proving either embezzlement or attempted embezzlement is not lost upon us. However, conviction in criminal cases must rest upon finite evidence and not probabilities or surmise. Infamy and loss of liberty require more.
A detailed study of this record affords no conclusion, in our opinion, other than a total insufficiency of evidence upon which to find a wrongful conversion of the parts, an essential to the crime of embezzlement.
Reversed and appellant discharged. 294 So.2d at 474, 475.

To return to the instant ease, the Board’s finding was only that Ms. Hogan was unable to reasonably account for missing narcotics. There was absolutely no proof that she had converted those narcotics to her own use. Indeed, the evidence reflected that the Lawrence County Hospital’s procedure for controlling accounting for and securing narcotics was so porous that the inability to account for all of the hospital’s narcotics was an inevitable result. Narcotics were dispensed without requiring the person receiving them to sign out for them. They were also traded about from one department of the hospital to another. Furthermore, supplies of narcotics were not securely locked so that access to them was limited.

We agree with the Board of Nursing that upon these facts Ms. Hogan is guilty of failing to account for narcotics; however, “failure to reasonably account for narcotics” does not constitute grounds for revocation of a nursing license under § 73-15-29(l)(h).

The only other issue raised by Ms. Hogan’s appeal that is not rendered moot by our discussion on the above issue is the chancellor’s action in sustaining the Board’s motion to retax costs thereby requiring the appellant to pay all the costs of the appeal to the chancery court including the cost associated with the transcript of the record before the Board. Section 73-15-31(8) Miss. Code Ann. (Supp.1982) expressly requires: “That if the action of the Board is denying, revoking, suspending or refusing to renew the license, or finding or otherwise disciplining the person, be affirmed by the chancery court the nurse will pay the cost of the appeal and the action in the chancery court.” Therefore, had we affirmed the chancellor we would have also affirmed his action in taxing the cost of the appeal to Ms. Hogan; however, because we have reversed this cause we hereby tax all costs of the appeals in this cause to the State Board of Nursing.

We hold that as is reflected in its findings of fact, the State Board of Nursing failed to establish a legally cognizable ground for revocation of Ms. Hogan’s nursing license under § 73-15-29(l)(h) Miss. Code Ann. (Supp.1982). We therefore reverse the order of the Chancery Court of Hinds County sustaining the order of the Mississippi Board of Nursing which revoked Ms. Hogan’s license to practice as a registered nurse in the State of Mississippi and remand this cause to the State Board of Nursing with directions that Ms. Hogan’s license to practice as a registered nurse be restored.

REVERSED AND REMANDED.

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

PATTERSON, C.J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    William A. GRIFFIN and Irene C. Griffin v. Joe C. WARE and Mike Wootton, a Partnership, d/b/a Ware & Wootton, General Adjusters.
    No. 55092.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    W.E. Gore, Jr., Harry Kelley, Jackson, for appellants.
    Michael S. Allred, David A. Barfield, Sat-terfield & Allred, Jackson, for appellees.
    Before WALKER, P.J., ROBERTSON and SULLIVAN, JJ., and SUGG, Retired Supreme Court Justice.
   SUGG, Retired Supreme Court Justice, for the Court:

The question on this appeal is whether adjusters employed by an insurer, who were not parties to the agreement for insurance, are subject to an implied duty of good faith and fair dealing to the insured. We answer the question in the negative and affirm the judgment of the trial court.

Appellees were employed by the National Flood Insurance Program (hereafter Program) as adjusters to investigate a claim for damages to a home formerly owned by appellants under a flood insurance policy issued by the Program. Appellants settled with the Program on December 1, 1982, for $2,876.90.

After obtaining the settlement appellants sued appellees in the Circuit Court of the First Judicial District of Hinds County. Appellants charged that they formerly owned a home in Jackson, Mississippi, and had a flood insurance policy with the Program on or about May 1979, and at all times material thereafter.

Appellants also alleged:

1. The structure and foundation of their home was damaged by an underground flow of water which came about during a fifteen inch rain in April of 1979 which preceded the April flood of 1979, at which time the ditch next to their residence had “gotten out of its banks and came within approximately 2” of coming into the residence.”

2. Appellants discovered damage in the spring of 1981, jacked up the foundation, and inserted wooden blocks in an effort to realign the floors and sills of their home.

3. In 1982, appellants again noticed that a door in the house was misaligned and difficult to close. Appellants again jacked up the house and inserted more shims and blocks.

4. As a result of the continued settling of the foundation appellants notified Robinson & Julienne Insurance Agency, agents for the National Flood Insurance Program, about the problem and were advised that an adjuster would examine the house.

5. Appellees were employed to adjust appellants’ claim. According to Exhibit “2” annexed to the bill of complaint, appel-lees were assigned the responsibility of adjusting the claim on May 5, 1982, and sent Jack A. Cameron, a certified structural engineer, to inspect the premises in May 1982. Cameron made a report to appellees on May 10, 1982, a copy of the report being annexed as Exhibit “1” to the complaint.

6. Appellees wrote the Program on May 19, 1982, enclosed a copy of the Cameron report, and recommended that the claim be denied.

7. Appellants were able to get their claim reconsidered and settled with the Program based on the report of another adjuster.

8. Appellants charge that appellees acted in bad faith and, “deliberately, maliciously and willfully stated that the damage was caused by Yazoo clay” when ap-pellees should have known that the damage was not caused by Yazoo clay but by the sub-surface flow of water.

Appellees filed a motion to dismiss and for a judgment on the pleadings under Rule 12(b)(6), or in the alternative, for a summary judgment under Rule 56. Appel-lees alleged in their motion: (1) the complaint fails to state a claim or cause of action against the defendants upon which relief can be granted; (2) Defendants were employed by National Flood Insurance Program to investigate the claim of the plaintiffs and were at all times the known agents of a disclosed principal and at all times the defendants represented themselves to the plaintiffs to be such agents of a disclosed principal; (3) the complaint alleges various causes of action sounding in breach of contract and plaintiffs never had any contract with these defendants; (4) there was no privity of contract between plaintiffs and defendants and defendants owed no contractual or fiducial duties to the plaintiffs and are not therefore liable to the plaintiffs; (5) the plaintiffs contract was with National Flood Insurance program and any cause of action plaintiffs may have for breach of such contract or an independent tort arising out of the breach of such contract is a cause of action against National Flood Insurance Program and not against the defendants who were at all times the known agents of a disclosed principal and as such have no liability for the acts or omissions of the principal.

Attached to the motion was the following affidavit of Joe C. Ware:

1. I am Joe C. Ware, one of the partners of Ware and Wootton, General Adjusters, and as such I have full authority to make this affidavit on behalf of said partnership and in my own behalf.
2. On or about May 4,1982, Ware and Wootton, General Adjusters was Flood Insurance Program to investigate a claim of flood damages at 224 North Sunset Terrace, Jackson, Mississippi, the former home of William Griffin and Irene C. Griffin.
3. I conducted the investigation and at all times represented myself and Ware and Wootton, General Adjusters, to be the agents of National Flood Insurance Program.
4. Neither Ware and Wootton, General Adjusters, nor I ever contracted with the plaintiffs to do anything. Ware and Wootton, General Adjusters and my only obligation was to our principal, National Flood Insurance Program.
5. All of Ware and Wootton, General Adjusters and my actions were taken on behalf of our disclosed principal, National Flood Insurance Program.

The Circuit Court, Honorable Charles G. Barbour presiding, entered summary judgment for appellees. The 12(b)(6) motion of appellees was treated as one for summary judgment and the court considered matters outside the pleadings which were presented to it. The court found that appellees were entitled to a judgment as a matter of law and no genuine issue of material fact existed. Rule 12 provides in part as follows:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(6) Failure to state a claim upon which relief can be granted,
... If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; ...

The trial court properly treated the motion as a motion for summary judgment under Rule 56 and was authorized to consider the affidavit of Ware in passing on the motion. Appellants could have filed a counter affidavit, but instead of doing so elected to stand on their complaint. This put the question in this case squarely before the trial judge.

The gravamen of the action against ap-pellees was that they made false reports to their principal and thereby committed a tort against appellants. Stated differently, appellants charge appellees with a tort because appellees breached an implied duty of good faith and fair dealing which they owed appellants.

The only Mississippi case we find dealing with the liability of an adjuster to an insured is Progressive Casualty Insurance Company v. Keys, 317 So.2d 396 (Miss.1975). Keys filed suit against Progressive Casualty Insurance Company, General Adjustment Bureau, Inc., and Chesley Price, individually and as agent of the insurance company and General Adjustment Bureau. Keys alleged he had a policy of insurance with Progressive which provided collision coverage on his vehicle. He had a collision which totally demolished his vehicle and it became necessary to employ an attorney to secure a settlement with Progressive. General Adjustment was employed by Progressive to adjust the claim on the policy on which the suit was based and Price was the agent of General Adjustment.

After many months of negotiations Price made a firm offer of settlement which was accepted by Keys’ attorney on behalf of Keys. Keys charged General Adjustment and Price, while acting as agent for Progressive, with “willful and wanton breach of contract in that after said offer was made and accepted, they withdrew the offer and breached the contract.”

Keys also charged that Progressive, “by and through its agents has continuously delayed, harassed, embarrassed and flatly refused to make a settlement of the claim and that the defendant’s actions in refusing to pay Plaintiff his money in accordance with the terms of his policy were deliberate and malicious.”

Keys sought actual damages in the amount of $2,500.00 and punitive damages in the amount of $7,500.00. In his brief Keyes stated an independent tort was committed by the agent of the insurer, General Adjustment, “in its negotiation with counsel for appellee in settling the loss of appel-lee....”

General Adjustment Bureau and Chesley Price filed a motion to dismiss for the reason that the declaration did not state a cause of action against them on which relief could be granted. The trial court overruled the motion and on appeal this court reversed and held, “The trial court should have sustained the motion of General Adjustment Bureau and Chesley Price to be dismissed from the case at the beginning of the trial because ... the declaration did not set out facts sufficient to sustain a tort action.” 317 So.2d at 398.

The court did not give any reason for its holding, but, at the very least, the case establishes the principle that an adjuster is not liable to an insured for his actions in adjusting a claim for an insurer.

However, the precise question stated above was addressed by the California Supreme Court in Gruenberg v. Aetna Insurance Company, et al., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032, (1973). Gruenberg owned property which was insured for $35,000 by three different insurance companies. A fire occurred at the premises at which time Gruenberg went to the scene, became involved in an argument with a member of the arson detail and was placed under arrest. On the next day, the insurance companies hired P.E. Brown and Company, Adjusters, to investigate the fire and inspect the premises. Carl Busching, a claims adjuster for Brown, went to the premises and stated to the arson investigator that Gruenberg had excessive coverage under his fire insurance policies. A few days later Gruenberg was criminally charged with arson and defrauding an insurer.

The insurance companies retained a law firm to represent them and one of the attorneys for the insurance company demanded that Gruenberg appear and submit to an examination under oath and to produce documents as provided in the policies. Gruenberg’s attorney responded that he had advised Gruenberg not to make any statements concerning the fire loss while criminal charges were pending. The attorney for the insurance companies then advised the attorney for Gruenberg that the companies were denying liability because of Gruenberg’s failure to submit to an examination under oath and to produce documents. Later the criminal charges against Gruenberg were dismissed and his attorney advised the insurance companies that Gruenberg was then prepared to submit himself for an examination. The insurance companies advised the attorney for Gruen-berg that they would stand by their position and deny liability because of Gruen-berg’s earlier failure to appear and produce documents. The adjusters and the attorneys were named as defendants along with three fire insurance .companies.

All defendants filed a demurrer which was sustained but on appeal the court reversed the demurrer as to the insurance companies but affirmed as to the other defendants.

The California Court held:

... in every insurance contract there is an implied covenant of good faith and fair dealing. The duty to so act is imminent in the contract whether the company is attending to the claims of third persons against the insured or the claims of the insured itself. Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.
In the case at bench plaintiff has alleged in essence that defendants wilfully and maliciously entered into a scheme to deprive him of the benefits of the fire policies in that they encouraged criminal charges by falsely implying that he had a motive to commit arson, and in that, knowing plaintiff would not appear for an examination during the pendency of criminal charges against him, they used his failure to appear as a pretense for denying liability under the policies. We conclude therefore that while the complaint is far from a model pleading, it does allege in substance a breach on the part of defendant insurance companies of their duty of good faith and fair dealing which they owed plaintiff....
With regard to the defendants other than the three insurance companies, we reach a different result. Plaintiff alleges that Brown, the insurance adjusting firm, and its employee, Busching and Cummins, the law firm, and its employee, Ricketts, were the agents and employees of defendant insurers and of each other and were acting within the scope of that agency and employment when they committed the acts attributed to them. However, plaintiff contends that these non-insurer defendants breached only the duty of good faith and fair dealing; therefore, we need not consider the possibility that they may have committed another tort in their respective capacities as total strangers to the contracts of insurance. Obviously, the non-insurer defendants were not parties to the agreements for insurance; therefore, they are not, as such, subject to an implied duty of good faith and fair dealing. Moreover, as agents and employees of the defendant insurers, they cannot be held accountable on a theory of conspiracy....
In summary, we conclude that plaintiff has stated facts sufficient to constitute a cause of action in tort against defendant insurance companies for breach of their implied duty of good faith and fair dealing; ... On the other hand, since the remaining defendants were not subject to the implied duty arising from the contractual relationship, we conclude that the complaint does not state sufficient facts to constitute a cause of action against them and that the judgment of dismissal in their favor was proper.

Accord: Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 912 (Okl.1982); Egan v. Mutual of Omaha, 24 Cal.3d 809, 169 Cal. Rptr. 691, 620 P.2d 141 (Cal.1979); Austero v. National Casualty Co., 62 Cal.App.3d 511, 133 Cal.Rptr. 107 (1976); Iversen v. Superior Court of Los Angeles Co., 57 Cal.App.3d 168, 127 Cal.Rptr. 49.

Although we are not obliged to follow the decisions of courts in other jurisdictions, when we find the legal reasoning they have employed is compelling, we do not hesitate to adopt it. Berkline Corporation v. Bank of Mississippi, 453 So.2d 699 (Miss.1984). We find the rule stated in Gruenberg and its progeny sound and supportive of our holding in Progressive Casualty Insurance Company v. Keys, 317 So.2d 396 (Miss.1975). We therefore hold that adjusters employed by an insurer, who were not parties to the agreement for insurance, are not subject to an implied duty of good faith and fair dealing to the insured. In the case before us, appellees were employed by the insurer for the sole purpose of investigating appellants’ claim for flood damages. Appellees were not parties to the insurance contract between appellant and their insurer, hence were not subject to an implied duty of good faith and fair dealing with appellants. Appellees’ duty was to their principal, not to appellant.

The trial judge treated the 12(b)(6) motion of appellants as a motion for summary judgment under Rule 56. Having determined that appellees incurred no liability to appellants, we hold the judge properly entered summary judgment because there was no genuine issue as to any material fact and appellees were entitled to a judgment as a matter of law.

AFFIRMED.

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

PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ., 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.

      . The court also said the motion should have been sustained because the suit was based upon a contract and upon a tort which could not be maintained in one cause of action, but noted in footnote 1 that the law had been changed to permit a suit in contract and in tort in one action.


author: ROBERTSON, Justice, for the Court:

text:
    Norman George DENNIS v. Charles Roger SEARLE and Wife, Susan M. Searle.
    No. 54433.
    Supreme Court of Mississippi.
    Oct. 10, 1984.

      Rex K. Jones, Hattiesburg, for appellant.
    David R. Smith, Colette A. Oldmixon, Smith, Smith, Tate, Stuart & Cruthird, Pop-larville, for appellees.
    Before ROY NOBLE LEE, P.J., a*nd DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice, for the Court:

I.

This termite damage case presents issues bigger than termites. The purchaser of a residence in Pearl River County has found substantial termite infestation in his new home. The contract of sale having addressed the subject, albeit ambiguously, the purchaser has brought suit against the sellers seeking damages.

The Chancery Court of Pearl River County sustained the sellers’ motion for summary judgment, Rule 56, Miss.R.Civ.P., and entered final judgment against the purchaser, who brings this appeal. On at least one theory of recovery advanced by the purchaser plaintiff, we hold that the defendant sellers did not establish that there were no genuine issues of material fact or that they were entitled to judgment as a matter of law.

We reverse in part and remand for trial on the merits.

II.

A.

On April 10, 1980, Charles Roger Searle and Susan M. Searle, as sellers, and Norman George Dennis, as purchaser, entered into a contract for the sale and purchase of a dwelling in Poplarville, Mississippi. Paragraph 9 of the contract included the following language:

(9) SPECIAL PROVISIONS:
Sale conditioned on ... house free of termites based on certificate of pest control concern acceptable to purchaser and termite damage repaired_

On May 23, 1980, the final closing took place in the office of Dennis’ attorney. At that time, Mrs. Searle tendered to Dennis a document from All-I-Good Pest Control, Inc. According to Mr. Dennis, in his deposition, the paper he received at closing was a contract between the Searles and All-I-Good for pest control and termite treatment, not a certificate stating that the house was free of termite infestation at the time. As an exhibit to his complaint, Dennis attached a copy of this termite service agreement between the Searles and All-I-Good dated April 21, 1980, approximately one month prior to closing.

The Searles have placed in the record a wood infestation report prepared by All-I-Good dated March 27,1979 — some fourteen months prior to closing. That report indicates no termite damage present in the house at that time. Dennis contends that he never saw the actual wood infestation report until it was attached as an exhibit to the Searles’ answer in this lawsuit.

At the closing no further question was raised regarding the termite provision of the contract. Insofar as the record discloses, the purchase and sale were at that time otherwise consummated in accordance with the contract.

Subsequent to closing, Dennis discovered that there was substantial termite infestation of the home. Dennis has produced a statement of one J.C. Arban dated June 12, 1980 — just twenty days after the closing— to the effect that there was “apparent termite damage” inside the sill on the back wall and possibly across the front under the front door. Approximately a year later Stephen R. Leker, District Entomologist, Department of Agriculture and Commerce, State of Mississippi, examined the residence and found extensive and serious termite damage in the lumber of the floor support beams, inside sills, plates and sub-flooring. Entomologist Leker stated in his affidavit,

In my judgment this damage had been incurred one and one-half to two years prior to my inspection. In other words, the termite damage had occurred well before the 15th day of December, 1979.

Dennis charges that the cost of repairing the termite damage is approximately $5,621.56.

B.

On February 2, 1982, Norman George Dennis commenced this civil action by filing his complaint against Charles Roger Searle and Susan M. Searle in the Chancery Court of Pearl River County, Mississippi. In his complaint, Dennis alleged two theories of recovery: fraud and breach of contract. He demanded as damages $1,600 as the cost of a termite treatment job, $5,621.56 for repair of the termite damage in the house, and $25,000 for the loss or decrease of the fair market value of the house because of the termite damage, for a total demand of $32,221.56. Dennis also demanded that the Searles be required to pay his attorneys fees.

The Searles answered denying the fraud charges and asserting that they had complied with all of their obligations under the contract and in any event that Dennis, by accepting the certificate of All-I-Good at closing and proceeding with the purchase of the property, was estopped from seeking relief.

Amended pleadings were subsequently filed and discovery was indulged in. Matters were brought to a head, for the moment at least, on September 2, 1982, when the Searles filed their motion for summary judgment in accordance with Rule 56, Miss. R.Civ.P. The chancellor took up and heard the motion on September 22, 1982. At that time he had before him the sworn complaint and amended complaint, the admissions made in the answer of the Searles, the deposition of Norman George Dennis taken June 16, 1982, the affidavit of Patty Palmer dated July 9, 1982, the affidavit of Norman George Dennis dated September 11, 1982, the affidavit of Entomologist Stephen R. Leker dated September 9, 1982.

Following the hearing the learned chancellor held that there was no genuine issue of material fact and that the Searles were entitled to judgment as. a matter of law. Accordingly, he entered judgment summarily in favor of the Searles and against Dennis. Enroute the chancellor held on the fraud count that Dennis had simply not presented credible evidence that the Searles had been guilty of a fraudulent misrepresentation or that they knew of the termite infestation in the house at the time of contract and sale. On the contract count, the court reasoned that Dennis had

... agreed that the defendants employed a pest control concern as provided for in the contract which issued a certificate acceptable to plaintiff [Dennis] and his attorney as being in compliance with the terms and conditions of the contract and based thereon elected to proceed to final closing and purchase the property.

From this summary judgment, Dennis prosecutes the instant appeal.

III.

The procedure whereby in a civil action final judgment may be entered summarily and without plenary trial on the merits has been a part of our law since January 1, 1982. Rule 56, Miss.R.Civ.P. Its contours and nuances are becoming familiar and established. See Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983); Bourn v. Tomlinson Interests, Inc., 456 So.2d 747 (Miss.1984); Holland v. Kennedy, 454 So.2d 1305 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984); Dethlefs v. Beau Maison Development Corporation, 458 So.2d 714 (Miss.1984).

For present purposes we need keep well in mind the admonition of the Advisory Committee in its Comment to Rule 56:

A motion for summary judgment lies only where there is no genuine issue of material fact; summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.

In Brown v. Credit Center, Inc., we stated:

The trial court must review carefully all of the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.
444 So.2d at 362.

Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says just the opposite. Issues of fact, as a matter of proper construction of Rule 56, also exist where there is more than one reasonable interpretation that may be given undisputed testimony, where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts, or where the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

In Brown we further recognized that
Reasonable minds may differ on the question of whether there is a genuine issue of material fact .... If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial.
444 So.2d at 362-363.

Brown v. Credit Center, Inc. also noted that Rule 56(d), Miss.R.Civ.P., authorizes partial summary judgments, that is, the granting of summary judgment on those issues where there are no disputes of fact and where the moving party is entitled to judgment as a matter of law and leaving the remainder of the case for trial.

Partial summary judgments when granted have the effect of removing from trial issues that ought not be there. The courts and litigants are thus free to concentrate on the real to the exclusion of the pretended.
444 So.2d at 363.

Where motions for summary judgment are filed in the circuit court, care must be taken that a litigant’s right to trial by jury is not abridged. Brown v. Credit Center, Inc., 444 So.2d at 362. The case at bar has been brought in chancery court. In such cases some chancellors, consciously or unconsciously, will no doubt study the depositions of the parties, “assume” that they have before them all that the parties have to say about a matter, and decide the case summarily. Yet, if we are to give substantial deference to findings made by a trial judge sitting without a jury because that judge has had the opportunity to smell the smoke of the battle, Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983), we expect that he or she will in fact have smelled that smoke. Put more legalistically, Rule 56 means the same and should be construed the same whether the motion for summary judgment is filed in circuit court or chancery court, whether the case is to be heard by a jury or is to be tried to the court without a jury.

IV.

A.

The trial judge was eminently correct when he granted summary judgment on so much of the complaint as charged the Searles with fraud. From the matters before us there can be no serious doubt but that the Searles had no actual knowledge of the termite infestation at the time they made the contract with Dennis or at the time of closing. Dennis offered nothing of any consequence to dispute this proposition or to establish actual fraudulent conduct on the part of the Searles. Indeed, Dennis recognizes the weakness of his claim here, for at oral argument he announced his abandonment of his appeal on this issue.

B.

The breach of contract issue is more troublesome. Because we believe there was a genuine issue of material fact presented and doubt that the Searles were entitled to judgment as a matter of law, we reverse on this issue.

1.

Where a contract is clear and unambiguous, its meaning and effect are matters of law which may be determined by the court. Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975). On the other hand, where the contract is ambiguous and its meaning uncertain, questions of fact are presented which are to be resolved by the trier of the facts after plenary trial on the merits. Biggers v. Fox, supra.

In Baylot v. Habeeb, 245 Miss. 439, 147 So.2d 490 (1962), this Court stated:

“Whenever the terms of a contract are susceptible of more than one interpretation, or an ambiguity arises, or the intent and object of the contract cannot be ascertained from the language employed, parol evidence may be introduced to show what was in the minds of the parties at the time of making the contract. * * *» 20 Am.Jur., Evidence, Sec. 1147. The ambiguity may arise from words which are uncertain when applied to the subject matter of the contract. Traders’ Ins. Co. of Chicago v. Edwards Post, 1905, 86 Miss. 135, 38 So. 779. 53 Am. Jur., Trial, Sec. 266, states: “Where a contract is to be construed by its terms alone, it is the duty of the court to interpret it; but where its meaning is obscure, and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation should be submitted to the jury, under proper instructions.” It is for the jury to determine what is the agreement of the parties, where there is uncertainty of a written contract because of ambiguity or doubtfulness. 53 Am.Jur., Sec. 267, 269; Harris v. Williams (Miss.1949), 43 So.2d 364; Frisby v. Grayson, 1953, 216 Miss. 753, 63 So.2d 96. This case was specially followed in Hadad v. Booth, 225 Miss. 63, 82 So.2d 639 (1955); and Covington Cadillac Company v. South Aire, Inc., 242 Miss. 716, 136 So.2d 866 (1962).
245 Miss, at 446-447, 147 So.2d at 494.

The interpretation of an unclear contract generally involves questions of fact sufficient so that our summary judgment procedure will be an inappropriate vehicle for final decision. See, Dobson v. Masonite Corporation, 359 F.2d 921 (5th Cir.1966), interpreting Mississippi law and 3 Corbin on Contracts, § 554 pp. 218-227. In Biggers v. Fox, supra, we expressly so held, even though the action had been brought in chancery court. Like other questions of fact, these too, generally ought not be resolved by summary judgment—rather they require a trial. Brown v. Credit Center, Inc., supra.

We have carefully reviewed the language in the contract in question. It provides

Sale conditioned on ... house free of termites based on certificate of pest control concern acceptable to purchaser and termite damage repaired.

There are any number of “ambiguities” in this language. On the one hand, this language may arguably be construed to mean that “house free of termites” is an absolute condition precedent to the obligation of Dennis to purchase the house and that the “certificate of pest control concern” is merely a procedural mechanism for determining when the sale should be closed. On the other hand, it may be argued that the contract means that the acceptance of a termite certificate by Dennis binds him and does not, under the language of the agreement, permit him any relief if he subsequently finds that the information contained in the termite certificate was inaccurate.

Of course, we have a question of fact as to whether a termite certificate was furnished at closing. Dennis says that he was merely furnished with a copy of the termite control agreement of April 21, 1980. That document clearly is not a termite certificate. On the other hand, the wood infestation report produced by the Searles is 14 months out of date and its effect, even if it were furnished, is susceptible of argument.

Finally, the language in the agreement “termite damage repaired” is susceptible of the construction that the Searles remained obligated to repair any termite damage existing at the time of closing, period. Those three words could reasonably be read as meaning that any termite infestation or damage existing at the time of closing would be the Searles’ responsibility, even though not disclosed in the infestation report. It cannot be said that the agreement expressly provides that the damage must be discovered and that Dennis on pain of waiver, must insist upon its repair before closing.

These musings are not intended to suggest the final and authoritative construction of this agreement and language in question. They are presented as under-girding for our conclusion that, as a matter of law, the language employed in the agreement is ambiguous. Having in mind that, on a summary judgment procedure, the evidence must be viewed in the light most favorable to the party against whom the motion has been made, we have merely tried to demonstrate that there are reasonable constructions of the language of the agreement favorable to the Searles. Because of these, we find the document ambiguous and its proper construction to present questions of fact which ought not to have been determined on summary judgment. Biggers v. Fox, supra.

2.

The trial judge’s decision seems not so much based upon a construction of the contract adverse to Dennis but rather that Dennis’ acceptance of the “paper” tendered at closing somehow waived any right he may have had to complain of termite infestation existing at that time. The trial judge based this conclusion upon Dennis “agreement” in his deposition

that Defendants [Searles] employed a pest control concern as provided for in the contract which issued a certificate acceptable to Plaintiff and his attorney as being in compliance with the terms and conditions of the contract and based thereon elected to proceed to final closing and purchased the property.

This conclusion regarding the facts simply cannot stand in view of Dennis’ unequivocal insistence at his deposition that, at the time of closing, he was furnished a copy of the termite service agreement, not the wood infestation report.

As far as Dennis’ “acceptance” is concerned, the relevant colloquy from Dennis’ deposition taken by counsel for the Searles follows:

Q. And you accepted that as complying with the terms of the contract?
A. I think I accepted more the sincerity of the person giving the document to me rather than the print in the document itself.
Q. But you did accept the document as complying with the contract?
A. I accepted the document as given ' me by Mrs. Searle. I probably wouldn’t have accepted it from somebody else.
Q. Doctor, I’m not trying to put words in your mouth, but after you were furnished this document from All-I-Good by Mrs. Searle, you accepted that and proceeded to go on with the final closing, did you not?
A. As given to me by Mrs. Searle, yes.

This is not the sort of stuff of which summary judgments ought be made. This is particularly so when it is borne in mind that at the time of closing Dennis had no practical means of verification of the purported termite-free conditions of the house.

For present purposes, there are sufficient ambiguities and uncertainties in the circumstances surrounding the closing that we cannot say, on this limited record, that there are no genuine issues of material fact or that the Searles are entitled to judgment as a matter of law. Under Rule 56 the moving party — in this instance the Searles — carry the affirmative obligation to establish that there are no genuine issues of material fact. The Searles had the obligation to clear up any ambiguities and uncertainties in the facts or in the interpretations or inferences that could be made therefrom. We hold on this record that, with respect to the breach of contract issue, the Searles failed to carry this burden, as a result of which they lose their summary judgment.

V.

In conclusion, we hold that the chancellor correctly granted summary judgment on the fraud issue. So much of the judgment of September 22, 1982, as dismisses finally and with prejudice the claims of Norman George Dennis against Charles Rogers Searle and Susan M. Searle based on a fraud theory is affirmed.

On the other hand, with respect to the contract theory, we find that the Searles have failed to establish that there are no genuine issues of material fact or that they are entitled to judgment as a matter of law. To that extent the judgment below is reversed. Summary judgment for the Searles having been correctly granted only partially, Rule 56(d), Miss.R.Civ.P., this case is remanded for plenary trial on the merits of the breach of contract theory advanced by Dennis and any and all defenses thereto asserted by the Searles. It goes without saying that nothing said here should be taken as suggesting in any way, shape, form or fashion how the issues remaining in the case ought ultimately be decided after trial on the merits.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALKER and ROY NOBLE LEE, PJJ., and HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

PATTERSON, C.J., and BOWLING and SULLIVAN, JJ., not participating.

      . Under the Mississippi Rules of Civil Procedure, it is not necessary that a complaint be sworn before it may be filed in a chancery court. On the other hand, the fact that this complaint was sworn rendered its allegations eligible for consideration in opposition to the motion for summary judgment. See Rule 56(e), Miss.R.Civ.P.


author: PRATHER, Justice, for the Court:

text:
    Mildred H. Holden HAILEY v. Norman O. HOLDEN.
    No. 54179.
    Supreme Court of Mississippi.
    Oct. 10, 1984.

      John A. Scafide, Jr., Favre, Genin & Scafide, Bay St. Louis, for appellant.
    Aaron D. Adams, Gex & Adams, Wave-land, for appellee.
    Before ROY NOBLE LEE, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice, for the Court:

This is an appeal from a final decree of the Chancery Court, Hancock County, dismissing Mildred H. Holden Hailey’s claim against her former husband, Norman 0. Holden, for past due child support payments. Hailey appeals and assigns as error:

(1) The admission of testimony by the appellee as to representations allegedly made by attorneys representing the appellant.

(2) The chancellor’s finding that appellant was equitably estopped to claim any past due child support from the appellee.

(3) The chancellor’s finding that a Louisiana judgment which reduced by half the amount of child support was entitled to full faith and credit in the present action.

I.

Mildred H. Holden Hailey, appellant, and Norman 0. Holden, appellee, were divorced on June 29, 1969 by decree of the Superior Court of Fulton County, Georgia. The divorce decree granted custody of the parties’ eight year old child, Tracy Robbin, to Mrs. Hailey and ordered Mr. Holden to pay $50.00 a week child support.

In early 1971, proceedings were instituted against Mr. Holden, who was then living in Baton Rouge, Louisiana, for extradition to Georgia for nonpayment of child support. According to Mrs. Hailey, these proceedings were instituted by the Adult Probation Department of Atlanta which supervises child support payments under the Uniform Reciprocal Enforcement of Support Act (hereinafter called URESA). The chancellor, however, found as a matter of fact that the proceedings were instituted by Mrs. Hailey. The present record does not contain any copy of these proceedings.

On April 20, 1971, Mr. Holden petitioned the Family Court of East Baton Rouge Parish, Louisiana for a reduction of his child support payments as ordered under the Georgia decree of 1969. Pursuant to Louisiana law, an attorney, as curator ad hoc, was appointed by the court to represent Mrs. Hailey who was then living in Kinston, North Carolina. This attorney notified Mrs. Hailey of the action by registered mail, return receipt requested, on May 7, 1971 and enclosed a copy of the petition. An answer was filed on behalf of Mrs. Hailey by her curator on May 25, 1971. The answer does not challenge the jurisdiction of the Louisiana court. Mrs. Hailey did not personally appear in the family court action. Judgment was entered on June 29, 1971 reducing Holden’s child support payments to $100.00 a month. The record does not reflect whether this modification petition was filed within the URESA proceeding. The chancellor’s opinion found that the URESA action was terminated.

In January of 1972, attorneys representing Mrs. Hailey sent Mr. Holden a “consent to adoption” form for Tracy Robbin. Mr. Holden signed the form and mailed it back to Mrs. Hailey’s attorneys. Holden testified that it was his understanding that upon signing the form he was relieved of any further obligation to support Tracy Robbin; accordingly, he stopped making child support payments.

According to Mrs. Hailey, in August of 1973 she contacted Mr. Holden by telephone, explained that the adoption was never completed, and asked him to send money to help pay Tracy Robbin’s school expenses. Mrs. Hailey testified that Mr. Holden told her and Tracy Robbin at that time that as far as he was concerned they were both dead. According to Mr. Holden, he received no communication from either his ex-wife or Tracy Robbin until after the present action was initiated.

Mrs. Hailey filed the present petition on April 14, 1981 seeking past due child support of $28,150.00 and attorneys’ fees. At this time Tracy is a twenty-year old, working to earn money to attend college.

The chancellor found as a matter of law that the Louisiana court order reducing child support was entitled to full faith and credit. The chancellor further found that Mrs. Hailey was equitably estopped to claim any past due child support based upon Holden’s reliance upon the representation that Tracy Robbins was being adopted by Roger Wilson, Hailey’s then husband. The chancery court dismissed her complaint, giving rise to this appeal.

I.

Appellant first assigns as error the admission, over objection, of Mr. Holden’s testimony as to his understanding of the effect of his consent to the adoption of Tracy Robbin. Appellant argues that any understanding would be based upon the out-of-court statements of Mrs. Hailey’s attorneys and thus constitutes inadmissible hearsay, relying upon Pevey v. Alexander Pool Co., Inc. 244 Miss. 25, 139 So.2d 847 (1962). In Pevey a witness read from an advertising brochure which explained the function of a swimming pool valve. This Court held that the advertisement constituted inadmissible hearsay. 139 So.2d at 849. This case is factually distinguishable.

In the case sub judice, Mr. Holden was not permitted to testify as to the statements of Mrs. Hailey’s attorneys. The question then is whether testimony as to an understanding based upon those statements, constitutes hearsay.

In order to constitute hearsay the statement must be offered to prove the truth of the matter asserted. McCormick, Evidence § 246. Mr. Holden’s testimony was not offered to prove the actual legal effect of his signature on the consent to adopt form. Nor was it offered to prove the substance of his conversation with Mrs. Hailey’s attorneys. See Young v. State, 146 Ga.App. 167, 245 S.E.2d 866, 868 (1978) (in action by mother to recover past due child support, defendant father’s testimony that “he didn’t think he was supposed to continue paying child support after he signed the adoption agreement” was admissible hearsay).

We conclude that Holden’s testimony as to his understanding of the effect of his signature is admissible for the purpose of stating his understanding, but not for the purpose of proving the truth of the matter asserted. This Court finds no merit in appellant’s first assignment of error.

II.

Appellant’s second assignment of error challenges the chancellor’s finding that appellant is equitably estopped to claim any past due child support.

The chancellor concluded that attorneys for Mrs. Hailey obtained Mr. Holden’s consent to the adoption of Tracy by Mrs. Hai-ley’s then husband, Roger Wilson; that Mrs. Hailey “did not meet the burden of proof to show that she did in fact contact Mr. Holden and inform him that the adoption had not taken place”; and that Mrs. Hailey was equitably estopped from claiming child support payments.

The question presented is whether the consent of a natural father at the request of the mother for the adoption of his child estops the mother from recovering child support arrearages where the adoption in fact never took place.

We consider first the legal obligations involved in this question. Mississippi statutory enactments provide that both separated or divorced parents who have separate incomes or estates may be required to support children according to their relative financial ability. Miss.Code Ann. § 93-5-23 (Supp.1983) and § 93-11-65 (1972). Reimbursement for welfare expenditures for children receiving aid to dependent children is permitted. Miss.Code Ann. § 43-19-35 (Supp.1983). Additionally Miss.Code Ann. § 97-5-3 (1972) provides for criminal liability against parents for non-support of minor children under sixteen years of age. In Mississippi the duty to support is a statutorily imposed duty on parents.

A child support judgment is awarded to the custodial parent for the benefit and protection of the child. Miller v. Miller, 29 Or.App. 723, 565 P.2d 382, 100 A.L. R.3d 1120 (1977). There is a public policy consideration involved because of the interest of society to provide for its children’s needs and to decrease society’s financial burden when a child is supported through public assistance. The underlying principle here is the legal duty owed to the child for the child’s maintenance and best interest. McManus v. McManus, 428 So.2d 854 (La.Ct.App.1983).

We, therefore, conclude that since both the child’s interest and society’s interest are involved, both interests are to be considered in resolution of any dispute involving child support. The child’s maintenance and best interest are to be satisfied; on the other hand, the parties cannot undermine the state’s interest. Of equal importance in this situation is the inherent power of the court to enforce its own orders and decrees.

In Mississippi judicial interpretation of this legal duty to support minor children has firmly established that, once ordered, installment of child support become fixed and vested when due and unpaid. Cunliffe v. Swartzfager, 437 So.2d 43 (Miss.1983); Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980); Howard v. Howard, 191 So.2d 528 (Miss.1966).

Additionally, a court cannot relieve the civil liability for support payments that have already accrued. Cunliffe, supra; Duncan, supra; Howard, supra.

The chancery court may enforce the support obligations by contempt proceeding and may modify the order on proper proof. Miss.Code Ann. § 93-5-23 (Supp.1983). It follows, therefore, that if the order is not terminated by the court, the liability may continue to accrue and contempt may lie for non-payment.

We are faced with the announced rule that this Court is without authority to reduce the amounts of accrued child support as they constitute a civil liability. Cunliffe, supra, Howard, supra. The application of equitable estoppel would be a departure from this rule.

We reverse the chancery court in his finding that Mrs. Hailey was not entitled to a judgment for vested child support payments. We hold that equitable estoppel did not terminate her right to support from and after her affirmative action in securing a consent to adoption from her ex-husband until the date of her notification to him that the adoption failed. We remand this cause for factfinding to determine the amount due on this judgment.

III.

Appellant’s third assignment of error challenges the chancellor’s finding that the Louisiana judgment was entitled to full faith and credit in the present action. This order would reduce by half the amount of the monthly payment.

Two questions are involved in resolving the full faith and credit issue. First, did the Louisiana court have subject matter jurisdiction, i.e., authority to modify the child support award. Second, did the Louisiana court have personal jurisdiction over Mrs. Hailey.

The question here is whether the Louisiana court had the authority to modify the child support obligation imposed by the Georgia divorce decree. As a general rule, an order still subject to modification in the state that rendered it may be modified by another state. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 906, 91 L.Ed.2d 1133 (1946); cf. Barber v. Barber, 323 U.S. 77, 81-82, 65 S.Ct. 137, 138-139, 89 L.Ed. 82 (1944). Under Georgia law, an award of future child support rendered pri- or to July 1, 1977 is subject to modification upon petition by either the husband or the wife showing a change in financial status. Ga.Code Ann. § 19-6-18 (1981); Young v. Young, 252 Ga. 564, 315 S.E.2d 878 (1984). Arrearages in child support payments, however, are not subject to modification. Anderson v. Anderson, 230 Ga. 885, 199 S.E.2d 800, 801 (1973); Thacker Construction Co. v. Williams, 154 Ga.App. 670, 269 S.E.2d 519, 521 (1980). The order of the Family Court of East Baton Rouge Parish modified only the future payments of child support and was based upon a change in Mr. Holden’s financial status. Accordingly, under the general rule, the Louisiana court had authority to modify the Georgia divorce decree as to future support payments, not arrearages.

Appellant, however, contends that the action of the Family Court of East Baton Rouge Parish was pursuant to the Uniform Reciprocal Enforcement of Support Act, and therefore, had no effect on the support obligation set forth in the Georgia divorce decree. Section 31 of the URESA provides as follows:

“A support order made by a court of this State pursuant to this Act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this State.”

In Howard v. Howard, 191 So.2d 528 (Miss.1966) this Court held that a reduction in child support payments ordered by the court of a responding state in proceedings under URESA did not supersede the original order of support. This Court stated:

This brings us to the principal question in this case, which is one of first impression before this Court. In deciding this question, it is necessary to determine whether the orders of the court of a responding state in proceedings under the Uniform Reciprocal Enforcement of Support Act supersede original orders of the court of the initiating state, in this case, Mississippi. This question can be settled by reference to the terms of the Uniform Act itself. Title 34, section 116(b) of the Alabama Code Recompiled (1958) reads as follows:
Any order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both. (Emphasis added).
Section 27 of the Uniform Reciprocal Enforcement of Support Act, being section 456-27 of Mississippi Code Annotated (1956), is in the same language as the above-quoted Alabama section. These provisions of the statute clearly state that an order of support in effect prior to the initiation of proceedings under the Uniform Act is not superseded by a subsequent order of support issued by the court of a responding state.
An examination of the language of the Uniform Reciprocal Enforcement of Support Act indicates that it is intended as only an auxiliary or supplemental remedy in the courts of a sister state for the enforcement of orders of support. Consequently, the original order of support rendered in the court of the initiating state is unaffected by the orders subsequently rendered in another state under the Uniform Act, except to the extent that payments made pursuant to one must be credited against payments accruing or accrued under the other for the same period or periods. Consequently, the holding of the chancellor that the reciprocal support proceedings in the state of Alabama were in addition to, and not in substitution for, the proceedings in Mississippi was eminently correct. The Alabama proceedings had the effect only of providing Mrs. McDonald with a supplemental remedy for the enforcement of the Mississippi decree. The appellant was in no way relieved of his duty to continue paying the $130 monthly support payments ordered in Mississippi. As these payments became due, they became a judgment against him, and he is entitled to credit for only the amounts he has actually paid under this decree or under the reciprocal support decree rendered in Alabama. Therefore, the trial court was not in error in finding that appellant was in arrears in the amount of $3,576.

191 So.2d at 530-531.

In the trial court the chancellor found as a matter of fact that the Louisiana proceedings were instituted by Mrs. Hailey. Mrs. Hailey, however, testified that the proceedings were instituted by the Adult Probation Department of Atlanta which supervises child support payments under URESA. Under Louisiana law the Family Court of East Baton Rouge Parish has jurisdiction over URESA actions brought by other states. La. Const. Art. 7 § 53. This Court finds no documentary evidence in the record to support the chancellor’s finding. Without documentary evidence of the initiating party in the suit in Louisiana, Mrs. Hailey or the Adult Probation Department, we hold that the court was manifestly wrong in finding that Mrs. Hailey initiated the suit. This evidence is essential to a determination that the Louisiana Court had jurisdiction. There is no basis in the record to conclude that Mrs. Hailey brought the suit conferring jurisdiction to the Louisiana Court and if so, to what extent, if any, the Georgia decree could be changed. There is no proof that she or the child was in Louisiana at the time of filing suit. Nor is there proof that this was a URESA action.

Therefore, since the record in this case is incomplete, the issues of subject matter and personal jurisdiction cannot be evaluated. Accordingly, this case must be remanded for a determination of the nature of the Louisiana proceedings to ascertain whether full faith and credit applies.

Upon remand the trial court should determine the effect, if any, of the Louisiana modification order on the Georgia support order, all consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER HEARING.

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

PATTERSON, C.J., not participating.

      . MCA § 93-11-55 (1972).


text:
    Charles H. THOMPSON v. STATE of Mississippi.
    No. 54471.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Paul G. Swartzfager, Jr., Laurel, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      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 Jones County wherein the -appellant, Charles H. Thompson, was found guilty of knowingly possessing stolen property: a set of silver flatware allegedly belonging to Mitsy Harding. Thompson was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal. We reverse.

Thompson was indicted for violation of § 97-17-69 Miss. Code Ann. (1972). That section reads:

If a person buy or receive in any manner or on any consideration personal property of any value, feloniously taken away from another, knowing the same to have been so taken, he shall be guilty of receiving stolen goods, and, on conviction, shall be punished by imprisonment in the penitentiary not more than five years, or by imprisonment in the county jail not more than six months, and by fine, no more than two hundred and fifty dollars.

Perhaps the clearest pronouncement of this Court as to the requirements of proof needed to secure a conviction for violation of § 97-17-69 appears in Johnson v. State, 247 So.2d 697 (Miss.1971). We therefore quote extensively from that opinion:

In Sanford v. State, 155 Miss. 295, 124 So. 353 (1929), we stated:
The unexplained possession of stolen property shortly after the commission of a larceny is a circumstance from which guilt of the larceny may be inferred, but no inference can be drawn therefrom alone that the one in possession of the property received it from another knowing that it had been stolen. Sartorious v. State, 24 Miss. 602; Manning v. State, 129 Miss. 179, 91 So. 902. (155 Miss, at 297, 124 So. at 353).
Again, in Crowell v. State, 195 Miss. 427, 15 So.2d 508 (1943), we stated:
* * * One guilty of larceny or burglary necessarily knows the facts and circumstances connected with the crime, but in a prosecution for receiving stolen property, guilty knowledge is the very gist of the offense. Such knowledge must be both alleged and proved. * * * (195 Miss, at 436, 15 So.2d at 511)

And, further, in Crowell, while discussing the propriety of an instruction, we said:

From the foregoing authorities, we conclude that it is never proper in a case for receiving stolen goods knowing them to have been stolen, for the jury to be instructed, in effect, that the unexplained possession alone of such recently stolen property is either a circumstance from which guilt may be inferred or that such possession is a circumstance strongly indicative of guilt which will justify, support, or warrant a verdict for the state, where such possession is unaided by other proof tending to show that the accused received such property knowing it to have been stolen. (Emphasis added) (195 Miss, at 436, 437, 15 So.2d at 511)

More recently, in the case of Madere v. State, 227 So.2d 278 (Miss.1969), it was necessary to reverse a conviction of receiving stolen property where an instruction was granted for the state which permitted the jury to infer from the fact of possession of recently stolen property knowing the same to have been lately stolen. From these authorities, and others not necessary to cite, it is well established in the criminal jurisprudence of this state that guilty knowledge is the very gist of the offense of receiving stolen property and that such knowledge must be both alleged and proved.

The most that can be said of this testimony in the light most favorable to the state is that it proved the defendant had in his possession property that was very recently stolen. There is no evidence that he received it knowing it to have been stolen. This knowledge, guilty knowledge, is the gist of the offense and there miist be evidence thereon before a conviction of receiving stolen property knowing it to have been stolen can be upheld. The standards portrayed above permit no other alternative. (Emphasis Added).

247 So.2d at 698, 699.

Thompson argues that based on the rule set forth in Johnson, supra, he should have been granted a directed verdict at the close of the state’s evidence. The well known rule in this state is that in passing on motions for a directed verdict or a request for a peremptory instruction, all evidence on behalf of the state must be taken as true, together with the reasonable inferences that may be drawn therefrom, and if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled and the peremptory instruction must be denied. Wilks v. State, 408 So.2d 68 (Miss.1981); Goldman v. State, 406 So.2d 816 (Miss.1981).

What was the tenor of the evidence at the close of the state’s case? Mitsy Harding had identified a set of silverware that had been stolen from her home on February 8, 1982. Bill Burton, a professional jeweler, testified as to the value of the silver. It was generally sold new for approximately $4,500 and had a value as scrap silver between $1100 and $1200. Wayne Lucas, a Jones County Deputy Sheriff, testified that he executed a search warrant on a mini warehouse rented by Charles Thompson. Inside that warehouse he found numerous items but nothing that was described in his search warrant. Inside a box of new stereo equipment Lucas found a postal receipt for a package which had been mailed to the Pioneer Mint in Greenville, Ohio on February 9, 1982. A note was attached to the receipt with the following notations: 167.75 ounces, 1.50 ounces, Stirling (sic) silver, value $1300. Thomas Doyle, an officer with the Green-ville, Ohio Police Department, testified that he was contacted by the Jones County Sheriff’s Department and asked to go to the Pioneer Mint to look for silver which the Mint had received from Charles Thompson. Doyle was asked to see if it matched a description of the silver Mitsy Harding reported stolen.. Doyle located that silver and was able to verify that silver pattern was identical to that reported stolen from Ms. Harding.

Paul Little, Deputy Chief of Police of Laurel, Mississippi, testified that he was present at the time Deputy Lucas executed the search warrant on Thompson’s mini warehouse. He stated that inside the warehouse they found a number of boxes containing stereo equipment identified as belonging to Roses Department Store. Inside one of those boxes was the postal receipt. Other evidence included testimony from handwriting experts that the handwriting on the postal receipt was consistent with samples known to have come from Charles Thompson.

Viewing the evidence in the light most favorable to the state, did the state prove that Thompson knew that the silver he had shipped to the Greenville, Ohio Mint was stolen? It is not sufficient that he possessed the stolen merchandise. Johnson, supra. The only proof whatsoever that the state presented which went to guilty knowledge is the very tenuous argument that because the postal receipt was located in a storeroom where some of Roses Department Store’s merchandise was also located, Thompson must have known that the receipt represented stolen merchandise. The state admits that this is the only proof they have of guilty knowledge. No witness testified that the merchandise in the storeroom was stolen because the judge excluded that testimony; however, the judge admonished the jury to disregard evidence of other stolen goods and therefore placed the matter before the jury himself. The state never proved that Thompson had knowledge that the goods in his storeroom were stolen. In fact, when he took the stand in his defense he denied having such knowledge. He admitted purchasing the silverware and sending it to the Mint. He simply denied having knowledge that it was stolen.

We are of the opinion that the state has failed to meet its burden of proof in this case. There was absolutely no evidence which established that Thompson knew the silverware was stolen. As stated in Johnson, supra, guilty knowledge is the essence of this crime. Without proof of that knowledge a conviction cannot be sustained. Thompson should have been granted a directed verdict at the close of the state’s evidence and a peremptory instruction at the close of all the evidence. Because he was not, we hereby reverse his conviction and discharge him.

REVERSED AND DEFENDANT DISCHARGED.

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

PATTERSON, C.J., and BOWLING, J., not participating.


author: HAWKINS, Justice, for the Court:

text:
    James Curtis TAYLOR v. STATE of Mississippi.
    No. 54434.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Kenneth Thomas, Rosedale, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice, for the Court:

James Curtis Taylor appeals from his conviction of the crime of rape in the Circuit Court of the Second Judicial District of Bolivar County and sentence to 35 years. We affirm.

On the sufficiency of the evidence, Taylor claimed to have been elsewhere. There was ample evidence to prove a rape, and Taylor’s guilt.

The other two assignments of error, namely: admission of testimony of a State Crime Laboratory employee as an expert, and refusal to permit the jury to inspect Taylor’s automobile, are likewise without merit.

Finding no error, we affirm.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    Bobby Leroy EVANS v. STATE of Mississippi.
    No. 55085.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    A.H. McRae, Jr., Laurel, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice, for the Court:

Bobby Leroy Evans was indicted and tried in the Circuit Court of Jones County, Honorable James D. Hester, presiding, for murder of Allen Edison. The jury returned a verdict of manslaughter and Evans was sentenced to serve a term of ten (10) years in the custody of the Mississippi Department of Corrections. He has appealed to this Court assigning three errors in the trial below.

Evans and Edison, both married, were romantically involved with one Bonita Mof-fett. She testified that she was the mother of two children by Edison and one by Evans. Bad blood existed between the two men because of their relationship with Bonita Moffett, and their difficulties finally terminated in the death of Edison and the conviction of Evans. About 8 p.m., on February 11, 1983, Evans and Edison met at Roosevelt’s Place, a lounge, in the City of Laurel. Both were armed with six shooters. Words passed between them, they drew their guns and both fired six shots. Obviously, and luckily, they were not in the class of gunmen in the olden days, because neither was hit by the other’s bullets.' Moffett registered a complaint with the police, and Edison was arrested but freed on bond.

Evans went home, armed himself with a .30-.30 rifle, and returned to Roosevelt’s Place. He saw Edison sitting in an automobile outside the place. Witnesses testified that Evans emerged from his automobile and walked over to within a car’s length of Edison’s vehicle, armed with the .30-.30 rifle. Edison was talking to a woman by the name of Carlene Perryman. She said that Edison had his left hand on the steering wheel and his right hand was full of money, which he was giving to her. At that time, Evans shot Edison twice with the .30-.30 rifle, one bullet striking him in the back and the other in the chest.

According to Evans, he was walking over to talk with Edison, when it appeared to him that Edison was reaching for something. He was afraid Edison was going to shoot him, and Evans then shot Edison with the .30-.30 rifle. No weapon was found in Edison’s car or on his person.

I.

Evans first contends that the lower court erred in refusing to allow him to fully pursue the events that led up to the shooting of the deceased.

He cites Harley v. State, 345 So.2d 1048 (Miss.1977); Washington v. State, 307 So.2d 430 (Miss.1975); Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946); Cotton v. State, 31 Miss. 504 (1856); and Davis v. State, 259 Ark. 403, 533 S.W.2d 202 (1976); in support of his position. Evans argues that the lower court did not permit him to fully show the events preceding the homicide and complains that the court did not permit him to show previous threats, communicated and uncommunicated, made against him by Edison. Of course, it is elementary that threats (not remote) made against a defendant, and the conduct of the deceased at, and within a reasonable time prior to, the homicide are admissible, being relevant to show who was the aggressor, and to show the state of mind of the deceased. Wilson v. State, 390 So.2d 575 (Miss.1980); Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946).

In the present case, the record reflects that the confession of Evans was introduced by the State without objection, Evans’ counsel stating to the court: “We have no objection, your Honor.” Counsel apparently regarded the statement as being favorable to Evans. In fact, it set out Evans’ defense, as testified to by him at trial, and, in addition, stated the following matters:

(1) Detailed testimony about the shootout, prior to the homicide.

(2) Two years previously, he stopped at the home of Bonita Moffett, Allen Edison drove up and threatened to kill Evans.

(3) Those threats continued since that time and had gotten worse.

(4) February 7, 1983, someone called Evans’ wife and said, “Plug Edison (the deceased) was going to kill him.” That statement was also testified to by Evans’ wife.

(5) On February 7, 1983, Samuel Porter said that a friend of Plug’s (Edison) said that they were going to set me (Evans) up and kill me. After these incidents, Evans started carrying a gun.

(6) On February 11, 1984, some person called and said he was “Plug” (Edison) and was going to set him (Evans) up. The call was to Evans’ wife, she told Evans about it, and didn’t want him to go out for fear something might happen to him.

We are of the opinion that the lower court was patient and lenient in permitting Evans’ counsel to show the events leading up to the homicide and previous conduct of the deceased, together with alleged threats made by him.

II.—III.

Appellant contends second that the lower court erred in admitting all of the State’s instructions because the State failed to abide by Rule 5.03, Mississippi Rules of Criminal Procedure, in that the instructions of the State were not filed until 2:30 p.m. on the day of the trial. We are of the opinion that the appellant neither suffered prejudice because of a failure of the State to fully comply with the rule, nor did the lower court err in granting the State’s instructions.

Appellant contends third that the lower court erred in refusing to grant appellant’s instruction # 13, which was a self-defense instruction.

The court granted defendant’s self-defense instruction # 14, which adequately informed the jury of the appellant’s right of self-defense, and there is no merit in Assignment III.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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

PATTERSON, C.J., not participating.

      . For threats against her.


text:
    STATE of Mississippi v. Donald Wayne WILLIS.
    No. 55090.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Philip Singley, Former Dist. Atty., Alfred B. Jernigan, Jr., Richard L. Douglass, Columbia, for appellant.
    Fred Cooper, Columbia, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice, for the Court:

Donald Wayne Willis was indicted June 4, 1982, in the Circuit Court of Marion County, Mississippi, on a charge of manslaughter for the death of an unborn quick male child. The trial judge sustained a demurrer to the indictment and the State of Mississippi has appealed to this Court assigning one error in the trial below, viz, the lower court errred in sustaining a demurrer to the indictment.

The charge of the indictment follows:

DONALD WAYNE WILLIS
did wilfully, unlawfully and feloniously kill and slay a certain human being, to-wit: an unborn unnamed quick male child of one Brenda McLendon, by then and there wilfully, unlawfully and feloni-ously and of his malice aforethought killing and murdering Brenda McLendon, a human being, contrary to and in violation of Section 97-3-19 (l)(a) of the Mississippi Code of 1972, as amended, said charge of manslaughter being contrary to and in violation of Section 97-3-37 of the Mississippi Code of 1972, as amended; ...

The indictment was drawn under Mississippi Code Annotated § 97-3-37 (1972):

The wilful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be manslaughter.

In considering the question presented to the Court, we are concerned only with the legal sufficiency of the indictment and the interpretation of the above section.

No Mississippi cases have been cited interpreting the statute, and the parties agree that the question is one of first impression in this state. Other jurisdictions have statutes similar to the Mississippi statute, and have upheld the statute in cases where the mother survived. State v. Harness, 280 S.W.2d 11 (Mo.1955); Passley v. State, 194 Ga. 327, 21 S.E.2d 230 (1942); Williams v. State, 34 Fla. 217, 15 So. 760 (1894). However, a case such as here, where the mother died and an indictment was returned and prosecution followed for the death of the child, has not been cited to us.

The argument of the appellee is tantamount to the position that, if the mother dies from an assault, or injury, the two-fold crime merges into one crime of murder. The argument concedes that, if a person assaulted the mother, but she survived, the assailant could conceivably be convicted of aggravated assault, and, if the assault resulted in the death of the unborn child, he could be tried and convicted for manslaughter, viz, two separate crimes. We think the same reasoning applies, in the event the mother died from such aggravated assault, viz, there could be separate charges of murder for the death of the mother and manslaughter for the death of the unborn child. We so interpret and construe the statute, Section 97-3-37, and hold that the trial judge erred in sustaining the demurrer to the indictment. Therefore, the judgment of the lower court is reversed and the case is remanded for trial on its merits.

REVERSED AND REMANDED.

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

PATTERSON, C.J., not participating.

      . Appellant also was indicted for the murder of Brenda McLendon, the mother, was convicted, and sentenced to life. That case is on appeal to this Court.

      . Of course, we do not know what the proof on behalf of the State will show at a trial, nor do we know whether or not the State can prove the charge as laid in the indictment.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Ex parte Lewis FLOYD, Jr. (Re Lewis FLOYD, Jr. v. STATE of Alabama).
    82-1143.
    Supreme Court of Alabama.
    May 11, 1984.
    Robert S. Milner, Wetumpka, for petitioner.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

We granted the writ of certiorari to the Court of Criminal Appeals, 434 So.2d 871, to review that court’s affirmance, without opinion, of the trial court’s dismissal of the petition for habeas corpus of Floyd, who sought to reverse a prison disciplinary board ruling that deprived him of “good time” benefits. We reverse.

The dispositive issue is whether the due process requirements that a prisoner in a disciplinary hearing, the outcome of which could result in revocation of “good time” benefits, must be given written notice in advance (not less than twenty-four hours) of the charges against him, a written statement of the evidence relied upon by the board, and the reasons for its action, have been satisfied.

The record in this case does not contain an answer or return to the petition for writ of habeas corpus denying the allegations of fact in that petition. The memo-randa and affidavits filed with the State’s motion to dismiss the habeas corpus petition contain few, if any, facts which contradict those facts set out in the petition. Accordingly, the unrefuted facts set out by the petitioner must be taken as true. Vaughan v. State, 415 So.2d 1231 (Ala.Cr.App.1982); Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981).

The only evidence of record which indicates that Floyd was ever served with written notice of the charges against him may be found in the “Disciplinary Report.” This report sets out a charge of “Failure to obey a direct order.” The report contains a notation, however, that Floyd refused to sign. The only notation on this report showing that Floyd ever received a copy of the written charge is dated “12-31-82,” three days after his disciplinary hearing.

In contrast to the single charge set out by the “Disciplinary Report,” an “Institutional Incident Report” contained in the record depicts the incident in question as “Failure to obey an order/Use of Force/Assaulting an Officer.” It is evident to this court that the precise nature of the charge brought against Floyd was never clearly defined by the prosecuting administrators and, therefore, Floyd was denied any opportunity “to marshal the facts in his defense and to clarify what the charges are, in fact.” Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974). In light of the foregoing, we must conclude that the due process requirements articulated in Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974), have not been satisfied in the present case. This omission alone would require reversal.

Regarding the insufficiency of the written statement of the evidence relied upon by the board and the reasons for its action, it is patent that supposition based upon supposition, stemming from hearsay, was the only thing upon which the board’s conclusion could be based. For all the above reasons, it is clear the decision of the board did not comport with due process and was, therefore, arbitrary or capricious.

The judgment of the Court of Criminal Appeals must be, and it is hereby, reversed, and the case is remanded to that court for entry by it of an appropriate opinion or order directing the trial court to hold an evidentiary hearing on Floyd’s petition for writ of habeas corpus.

REVERSED AND REMANDED WITH INSTRUCTIONS.

FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, J., concur in the result.

TORBERT, Chief Justice

(concurring in the result).

I concur in the result reached by the majority because the record does not clearly indicate that written notice of the charge was given to petitioner prior to the disciplinary hearing as required by Wolff v. McDonnell, 418 U.S. 539, 564-65, 94 S.Ct. 2963, 2978-79, 41 L.Ed.2d 935 (1974).

MADDOX, J., concúrs.