source: Caselaw Access Project

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text:
    FIRST MISSISSIPPI NATIONAL BANK, Appellant, v. KLH INDUSTRIES, INC., Appellee.
    No. 54946.
    Supreme Court of Mississippi.
    Oct. 3, 1984.

      M. Ronald Doleac, Finch, Wicht & Dol-eac, Hattiesburg, for appellant.
    John Land McDavid, James M. Nix, Martin R. Jelliffe, McDavid, Edmonson & Nob-lin, Jackson, for appellee.
   ROBERTSON, Justice, for the Court:

ON PETITION FOR REHEARING

I.

We today inquire generally whether the Mississippi Rules of Civil Procedure, effective January 1,1982, regulate the procedural aspects of the form of action known as garnishment. A garnishment action is in the nature of a civil action and is certainly subject to the rule-making power of this Court and the Mississippi Rules of Civil Procedure the same as any other civil action. By operation of Rule 69(a), Miss.R. Civ.P., process supplementary to, and for the enforcement of, a judgment for the payment of money is expressly declared to be governed by heretofore existing statutes. Accordingly, by virtue of an express provision in the Rules the procedural rules whereby a party seeks to secure and enforce the remedy of garnishment are those provided by our garnishment statutes, Miss.Code Ann. §§ 11-35-1 to -61 (1972), supplemented by so much of the Mississippi Rules of Civil Procedure as may be found not inconsistent with the procedures prescribed in such statutes.

More specifically, the instant appeal asks that we consider just how long a garnishee served with a writ of garnishment may ignore the process of the court without being stuck for the entire original judgment debt. The question is controlled by procedural aspects of our garnishment statutes. We today hold that such a garnishee, even though the subject of an otherwise valid default judgment following service of the writ of garnishment and failure to answer, may nevertheless suspend execution and enforcement of that judgment at any time before completion of the execution of enforcement process thereon. Miss.Code Ann. § 11-35-31 (1972).

When all is said and done, we find that KLH Industries, Inc., the garnishee below and the Appellee here, filed its sworn declaration prior to the response of a third party upon whom execution of process by way of a supplemental garnishment had been levied. Accordingly, the trial judge correctly held KLH entitled to limit its liability to the extent of indebtedness held by it owing to the original judgment debtor, plus court costs and reasonable attorneys fees of First Mississippi National Bank, the original judgment creditor and the Appellant here. We affirm.

II.

On May 19, 1982, First Mississippi National Bank (FMNB) filed in the Circuit Court of Jefferson Davis County its suggestion for writ of garnishment against KLH Industries, Inc. (KLH).

FMNB alleged that it held an unsatisfied judgment against Cordelia Clark in the sum of $10,182.60. The judgment was said to have been entered on January 11, 1978, and to bear interest at the rate of 8% from that date.

The suggestion then charged “that KLH Industries, Inc., a Mississippi Corporation, of Jackson, Hinds County, Mississippi, is indebted unto said Defendant [Clark] or has property of said Defendant in its possession or under its control, or knows of some other person who is so indebted, or who has effects or property of the said Defendant in his hands.”

The record reflects that, on May 24, 1982, process — denominated “writ of garnishment” — was formally executed upon KLH Industries, Inc. via Kenneth G. Hum-er, an agent for KLH. The process advised KLH that it should answer on or before August 16, 1982. The process also advised KLH of FMNB’s claim that it held a judgment against Cordelia Clark.

For reasons unknown KLH filed no answer — not within thirty days nor by August 16, 1982.

On September 1, 1982, FMNB filed a motion for default judgment against KLH. A copy of the motion was served upon KLH. This motion charged that KLH had failed to answer

“thereby rendering itself in default and making itself liable to the Plaintiff and subject to default judgment;”.

On September 28, 1982, FMNB filed a request for entry of default, purportedly in accordance with Rule 55(a), Miss.R.Civ.P., accompanied by an affidavit setting forth the facts of KLH’s default. Insofar as the record reflects, these papers were not served upon KLH.

On September 28, 1982, KLH’s default was entered by the Circuit Clerk of Jefferson Davis County. On the following day, September 29, 1982, the Circuit Court entered judgment by default in favor of FMNB and against KLH in the amount of $9,782.60 plus interest and costs as allowed by law.

Thereafter, FMNB discovered that KLH had funds on deposit with Deposit Guaranty National Bank of Jackson (DGNB). On November 8, 1982, FMNB filed a second suggestion for writ of garnishment, this time against DGNB. FMNB there alleged that it held an unsatisfied judgment against KLH entered September 29, 1978, and that DGNB was indebted to KLH. The writ of garnishment appears to have been formally served on DGNB on November 9, 1982.

KLH’s first appearance insofar as the record reflects was made on January 6, 1983, when it filed a “sworn declaration”, invoking a procedure set forth in our garnishment statutes: Miss.Code Ann. § 11-35-31 (1972). Significantly, DGNB as garnishee had not, prior to this point in time, either answered or paid into court the funds caught by the garnishment. In its sworn declaration, KLH acknowledged that Cordelia Clark was in its employ and stated that it had been withholding from Clark’s wages the appropriate sum continuously since May 29, 1982, and that an aggregate amount of $1,110.95 had been so withheld. KLH denied that it was in any other way indebted to or in possession of the effects of Clark, thus suggesting that the execution on FMNB’s judgment against KLH should be suspended with respect to all amounts in excess of the amount that KLH had withheld to date.

On January 11, 1983, FMNB responded, insisting that the judgment of September 29, 1982, had become final and that no timely motion to vacate said judgment had been filed nor had any appeal been perfected.

Following a hearing thereon, the Circuit Court on February 4, 1983, entered its order in effect suspending enforcement of so much of the judgment as required KLH to pay to FMNB an amount in excess of the sums theretofore lawfully withheld from Clark’s wages, directing KLH to pay to FMNB all wages so withheld, and further directing that KLH continue to withhold from Clark’s wages the maximum amount allowable by law until such time as (a) the judgment held by FMNB against Clark be satisfied or (b) Clark should leave the employment of KLH, whichever first occurred. KLH was further ordered to pay to FMNB the sum of $500 as attorneys’ fees, plus court costs.

On March 21, 1983, FMNB filed a motion asking the Court to reconsider its order of February 4,1983, and to reinstate the original judgment. On the same day the Circuit Court entered its order overruling that motion. Immediately thereafter FMNB perfected its appeal to this Court.

III.

A.

The substantive remedy of garnishment has been created by legislative enactment codified as Miss.Code Ann. §§ 11-35-1 to -61 (1972). The procedure for enforcement of that remedy has heretofore been provided in the same code chapter. A question arises, however, whether that procedure has in any way been supplanted by the Mississippi Rules of Civil Procedure which became effective January 1, 1982.

Rule 1, Miss.R.Civ.P., provides that the Rules shall

“govern procedure in circuit .courts ... in all suits of a civil nature, subject to certain limitations enumerated in Rule 81.”

This garnishment action, aside from its picturesque nomenclature, has all of the appearances of a “suit of a civil nature”. It has been brought in the Circuit Court of Jefferson Davis County. A careful perusal of Rule 81, Miss.R.Civ.P., discloses no express indication that garnishment proceedings are exempt from procedural regulation by the Mississippi Rules of Civil Procedure.

On the other hand, there is in Rule 81 an implied indication to that effect. Rule 81(h) relates to statutes affected by the Rules:

(h) Statutes Affected. To the extent that the statutes listed in Appendix B of these rules prescribe rules of civil practice or procedure, such statutory rules shall be supplanted by these Mississippi Rules of Civil Procedure in all courts subject to these rules in all actions not excepted by these rules.

Appendix B is entitled: “Statutes Affected.” The introductory paragraph of Appendix B provides:

To the extent that the statutes listed in this Appendix prescribe rules of practice and procedure, such statutory rules shall be supplanted by the provisions of the Mississippi Rules of Civil Procedure,which shall govern any civil action authorized or contemplated thereby {see, M.R. C.P. 81).

The garnishment statutes [Section 11-35-1 et seq. of the Code] are not listed as statutes affected by the Rules. The fact that the garnishment statutes were not among those listed in Appendix B suggests that the Rules may not have altered the statutory garnishment procedure.

B.

Two other Rules are much closer to the mark. First, Rule 64, Miss.R.Civ.P., provides that “at the commencement of and during the course of an action” provisional remedies “are available under the circumstances and in the manner provided by law”. The unofficial Comment to Rule 64 expressly though erroneously mentions garnishment as one of those so-called provisional remedies available.

The reason Rule 64 has no application is that it refers to “provisional remedies” available “at the commencement of and during the course of an action”. The action by FMNB against Cordelia Clark was commenced August 22, 1977. That action ended on January 11,1978, with the entry of a final judgment in favor of FMNB and against Clark. This action was not a procedure employed by FMNB at the commencement of or during the course of the original action against Cordelia Clark. Rather it was a separate albeit successor action in which FMNB sought to enforce its judgment against Clark.

Beyond that, the substantive remedy of garnishment has never been available in this state “at the commencement of and during the course of an action”. Mississippi law allows a creditor to proceed against another said to be indebted to the creditor’s debtor only after the creditor has obtained a judgment against such debtor. Miss. Code Ann. § 11-35-1 (1972). Of course, the substantive aspects of the garnishment remedy he may receive have in no way been altered by the advent of our Civil Rules, nor could they be.

C.

Rule 69(a), Miss.R.Civ.P., is the applicable and governing rule. This Rule pertains to enforcement of judgments, and provides:

(a) Enforcement of Judgments. Process to enforce a judgment for the payment of money shall be by such procedures as are provided by statute. The procedure on execution, in proceedings supplementary to and in aid of judgment, and in proceedings on and in aid of execution, shall be as provided by statute.

Garnishment is not a pure, independent action but instead is more in the nature of “an ancillary or auxiliary proceeding, growing out of, and dependent on, another original or primary action or proceeding, ...” 38 C.J.S. Garnishment § 2(4) at 206. Garnishment is a process which may be “resorted to in aid of an execution for the enforcement of a judgment recovered in the principal action or proceeding, .... ” Id.

This Court observed in First National Bank of Hattiesburg v. Ellison, 135 Miss. 42, 99 So. 573 (1924), that garnishment was “the process by which money and goods due a judgment ... debtor by third persons were attached.” 99 So. at 574. Garnishment is a process to enforce a judgment, as well as being supplementary to and in aid of judgment and a proceeding on and in aid of execution as contemplated by Rule 69(a).

According to Rule 69(a), the procedure required by the Rules themselves by which the holder of a judgment seeks to enforce that right and to secure that remedy, “shall be as provided by statute [the garnishment statutes].” [Emphasis added], The Rules, therefore, defer to the garnishment statutes with regard to procedures to be followed in a garnishment action.

The official comment to Rule 69(a) reiterates the point:

“Rule 69(a) provides that the traditional Mississippi legal devices continue to be available for the enforcement of judgments, and that the statutory procedures governing their use still prevail; there is no departure from prior law.” [Emphasis added].

Accordingly, the procedural rules whereby a party seeks to enforce, or resist the enforcement of, the remedy of garnishment is that provided by our garnishment statutes, Miss.Code Ann. §§ 11-35-1 to -61 (1972) supplemented only by so much of the Mississippi Rules of Civil Procedure as may be found not inconsistent with those statutes.

IV.

Turning to the merits of this appeal, we find FMNB arguing strenuously that KLH has waited too late to file its sworn declaration, that its judgment of September 29, 1982, against KLH for $9,782.60 plus interest and costs had become irretrievably final, subject to enforcement by execution or other similar process as any other final judgment. In support FMNB relies heavily upon Mississippi Action for Community Education, Inc. v. Montgomery, 404 So.2d 320 (Miss.1982) (hereinafter “MACE”). The rule of that case ultimately proves FMNB’s undoing.

In MACE, C.M.I. recovered a judgment against Montgomery, an employee of MACE. C.M.I. then commenced garnishment proceedings against MACE to enforce that judgment. MACE failed to answer and final judgment was entered against it by default. Subsequently, C.M.I. sought to enforce the MACE judgment and to that end issued process in the form of a writ of garnishment against the First National Bank of Greenville, suggesting that the Bank held property of or was indebted to MACE. On July 11, 1980, the Bank answered that it held funds on deposit for the account of MACE sufficient to cover the judgment and paid into the registry of the court the amount sought in the garnishment process. The circuit clerk dispersed the funds, and the judgment against MACE was marked satisfied.

On August 28, 1980 — some six weeks later — MACE filed a sworn declaration in which it invoked the limitation of liability provisions of Section 11-35-31. MACE asked that the court enter an order suspending the execution of the judgment C.M.I. held against MACE and that its liability be limited to the total amount of funds (wages) held by MACE and owed to the original judgment debtor, Montgomery. This Court held that the sworn declaration was filed six weeks too late.

“MACE, in order to suspend the execution of the writ of garnishment, ... [had to have filed] a sworn declaration in the court before the garnishee (FNB) had answered and paid into Court the funds caught by the garnishment. In other words, MACE ... [could] not wait to file a declaration to suspend the execution until the execution ... [had] been completed, the answer filed, the funds paid into Court and dispersed by the clerk to the judgment creditor.”
404 So.2d at 322. [Emphasis added]

The controlling distinction between MACE and the case at bar is that, KLH’s sworn declaration, however tardy it may have been, was filed on January 6, 1983— before the garnishee (DGNB) had either answered or paid into Court the funds caught by the garnishment, while in MACE the declaration was filed after.

We are ultimately concerned with Miss. Code Ann. § 11-35-31 (1972), which provides:

If a garnishee, personally summoned, shall fail to answer as required by law, or if a scire facias on a judgment nisi be executed on him, and he fail to show cause for vacating it, the court shall enter a judgment against him for the amount of plaintiffs demand; and execution shall issue thereon, provided, however, that the garnishee may suspend the execution by filing a sworn declaration in said court showing the property and effects in his possession belonging to the debtor, and his indebtedness to the debt- or, if any, or showing that there be none, if that be true; and by such act and upon a hearing thereon, the garnishee shall limit his liability to the extent of such property and effects in his hands, and such reasonable attorney’s fees of the judgment creditor in said garnishment action.

This statute has been authoritatively construed in MACE.

The statute itself places no time limit on the filing of a sworn declaration such as that filed KLH on January 6, 1983. Indeed, that statute does not appear to invalidate the judgment, only to suspend enforcement via execution or other similar process. Upon proper proof the garnishee may limit its liability

“to the extent of ... such indebtedness due by him to the debtor, plus court costs and reasonable attorney’s fees of the judgment creditor in said garnishment action.” Miss.Code § 11-35-31

MACE construes the statute and holds that, so long as the garnishment defendant files its sworn declaration before completion of the enforcement process, i.e., before the party levied upon has answered or paid monies into the Court, the limitation of liability protections of the statute remain available. By virtue of Rule 69(a), Miss.R. Civ.P., the statute Section 11-35-31, as construed in MACE, furnishes the rule of decision for today’s case.

On February 4, 1983, the Circuit Court of Jefferson Davis County entered its final order upholding KLH’s claim of the protections of the limitation of liabilities features of Section 11-35-31. That order provided that KLH should pay into the registry of the court all sums withheld from the wages of the original judgment debtor, Cordelia Clark, since the date of the original garnishment caused by FMNB to have been served upon KLH (which sum appears to have been at the time a minimum of $1,110.95); that KLH should pay FMNB the sum of $500.00 as reasonable attorney’s fees allowed under Section 11-35-31 and that KLH should continue to withhold from the salary or wages of Cordelia Clark the amounts required by law until such time as the original debt is satisfied or Clark should leave the employment of KLH. Finally, KLH was required to pay all costs.

The Circuit Court was asked to reconsider this ruling and on March 21, 1983, entered its order overruling the motion to reconsider, in effect reaffirming the order of February 24, 1983. For the reasons set forth hereinabove, we affirm.

PETITION FOR REHEARING DENIED; FORMER OPINION WITHDRAWN AND MODIFIED; FINAL JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY AFFIRMED.

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

PATTERSON, C.J., not participating.

      . The Comment to Rule 64 states
      Rule 64 provides that the provisional remedies available under Mississippi law for the seizure of persons or property as security for satisfying a judgment that ultimately may be entered in a civil action continue to be available under the MRCP.
      The term "provisional remedies” clearly concerns pre-judgment remedies such as attachment, replevin, sequestration, and the like. The point is reinforced by the reference to these remedies as providing “security" for satisfying a judgment that “may be entered". This language would seem to exclude our garnishment remedy-
      The Comment goes on to provide that Mississippi’s various provisional remedies “are to be resorted to in accordance with statutory law; see, e.g., Miss Code Ann_ §§ 11-35-1 et seq. (garnishment)...This statement is unfortunately imprecise if not incorrect. First, garnishment in Mississippi is not a provisional remedy. Second, whether a judgment creditor as a matter of substantive right is entitled to the garnishment remedy certainly continues to be governed by our statutory law. The procedure by which he seeks to enforce that right and secure that remedy is that provided in the statutory law supplemented only by so much of the Mississippi Rules of Civil Procedure as may be found not inconsistent with the statutes.
      This miscomment probably derives from the pre-eminent status of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), has acquired in recent years. Sniadach invalidated Wisconsin's prejudgment garnishment procedure — a procedure this state does not have and has not had. Nothing in Sniadach touches our garnishment laws. Sniadach and progeny, however, have served to invalidate certain procedural features of our replevin, attachment and sequestration laws. Keelon v. Davis, 475 F.Supp. 204, 206-13 (N.D. Miss.1979) (Mississippi sequestration statutes in part invalid); MPI, Inc. v. McCollough, 463 F.Supp. 887, 895-901 (N.D.Miss.1978) (Mississippi chancery attachment statutes in part invalid); Mississippi Chemical Corp. v. Chemical Construction Corp., 444 F.Supp. 925, 934-37 (S.D. Miss. 1977) (Mississippi attachment at law statutes in part invalid). These developments have obscured the fact that in Mississippi garnishment is different.


text:
    Hillman LADNER, et ux. v. Annie Belle Washington SCHINDLER.
    No. 54436.
    Supreme Court of Mississippi.
    Oct. 10, 1984.

      Nicholas M. Haas, Bay St. Louis, for appellants.
    Lucien M. Gex, Jr., Waveland, for appel-lee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice, for the Court:

The Chancery Court of Hancock County, Honorable Jason H. Floyd, Jr., presiding, entered a decree setting aside a deed of conveyance executed by Frank J. Schindler and Annie Belle Washington Schindler, husband and wife, to Mr. and Mrs. Hillman Ladner, and the Ladners have appealed to this Court.

The Ladners have assigned four errors in the trial below, but we consider only the question of whether or not the mental incapacity of the Schindlers and gross inadequacy of consideration for the deed rendered the instrument void. Since an issue of fact was presented to the chancellor, we refer only to the evidence favorable to the appellee.

Mr. and Mrs. Schindler, aged 77 and 83 years, respectively, had no children. They were close friends of the Ladners, who were much younger than they. The Schin-dlers had indicated that when they died it was their desire the Ladners have their home property in Hancock County and indicated their desire to execute a will to such effect. The Ladners customarily did small favors for the Schindlers, although Mrs. Schindler said that presents were given to the Ladners for such services.

On April 28, 1982, Attorney Cornelius Ladner, accompanied by the Ladners (no relation to the attorney), went to the home of the Schindlers and presented to them an instrument, which Mrs. Schindler said was forced upon them for signing without reading the same. At any rate, the instrument, which was referred to by the Ladners as a “death deed”, was executed on that occasion by the Schindlers.

According to witnesses, Mr. Schindler was seriously ill with emphysema, which caused mental dullness, confusion and lethargy; that his mind was failing and he could no longer read; that he was unable to concentrate and was unaware of the nature of the transaction; that Mrs. Schindler was at the point of exhaustion, having waited upon and cared for Mr. Schindler in his ill condition; that she had been without rest for days and slept in a chair while caring for her husband; that at or near the time of the deed’s execution, her mind was stupefied; and that she was worn out physically and mentally.

It is clear from the record that neither the Schindlers nor the Ladners understood the import of the deed as opposed to a will.

Mr. Schindler died eighteen (18) days after execution of the deed as a result of congestive heart failure and emphysema. Sometime later, Mrs. Schindler was considering a sale of the property, talked to her banker about it, and was advised that she could not sell the property, since it had been deeded to the Ladners, with the Schin-dlers reserving a life estate. Suit was filed by Mrs. Schindler on September 15, 1982, to set aside the deed of conveyance. Although the deed recited as consideration “$10.00 and other consideration,” it is undisputed that no consideration was paid, other than the small favors which the Lad-ners had bestowed upon the Schindlers. The evidence reflected that the value of the Schindler property was $34,000.

The chancellor found that no consideration had been given for the deed; that both Schindlers thought they were signing a will, as evidenced by Mrs. Schindler’s diary entry and discussions with her banker and neighbors about selling the property; that Mr. Ladner did not understand the significance of the instrument and thought the Schindlers could sell the property; that Mrs. Schindler was physically exhausted by the constant care required by Mr. Schindler, who was gravely ill and about to die; and that both lacked the mental capacity to execute the deed instrument.

We think the principle stated in Puryear v. Austin, 205 Miss. 590, 39 So.2d 257 (1949), and followed since that decision, is dispositive of the question now before the Court. In Puryear, the Court, quoting from Allore v. Jewel, 4 Otto 506, 94 U.S. 506, 24 L.Ed. 260 (1876), said:

The question presented for determination is, whether the deceased, at the time she executed the conveyance in question, possessed sufficient intelligence to understand fully the nature and effect of the transaction; and, if so, whether the conveyance was executed under such circumstances as that it ought to be upheld, or as would justify the interference of equity for its cancellation.
... It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely incapable of executing a valid deed. It is sufficient to show that, from her sickness and infirmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred. [205 Miss, at 606, 39 So.2d at 260, 261].

See also A.L. McElveen v. H.S. McElveen, 233 Miss. 672, 103 So.2d 439 (1958) and Lampley v. Pertuit, 199 So.2d 452 (Miss.1967).

In Kemp v. Kemp, 254 So.2d 876 (Miss.1971), this Court affirmed the decision of the lower court, which held that a deed executed by a 77-year-old feeble-minded widow, conveying $35,000 worth of property, should be cancelled, where the conveyance was in consideration of $10.00 and some past favors of no particular monetary value.

We are of the opinion that the ap-pellee met her burden of proof and established that the instrument executed April 28, 1982, by the Schindlers was not a valid deed of conveyance and, certainly, that the chancellor was not manifestly wrong in so holding. Therefore, the decree of the lower court is affirmed.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    John Clayton MARBLE v. Rebecca Jane Schenk MARBLE.
    No. 54989.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Lester F. Smith, Robert L. McArty, Perry, Morrison & Smith, Jackson, for appellant.
    Rufus Creekmore, E. Michael Marks, Jackson, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   PATTERSON, Chief Justice, for the Court:

John Clayton Marble appeals a judgment of the Chancery Court of the First Judicial District of Hinds County denying his prayer for divorce and awarding $500.00 per month separate maintenance to his wife, Rebecca Schenk Marble.

The parties were married on June 3, 1972, and had a son on September 14, 1975. In October, 1982, John Marble departed the family residence and has not since cohabited with his wife.

The record contains no evidence of abuse, physical or verbal, of either party by the other; but it is evident John and Rebecca can no longer live together. John stated the marriage had become intolerable to him and that he could not return to Rebecca under any circumstances. While Rebecca testified she “would love to try” to make her marriage a success, she could not agree to accept her husband back into their home unless he consented to consult with a therapist of her choice.

John Marble first contends the chancellor improperly denied his prayer for divorce on the ground of habitual cruel and inhuman treatment. While the record indicates it is now impossible for John to resume cohabitation with Rebecca, we are of the opinion her behavior does not constitute “habitual cruel and inhuman treatment” as this Court has defined. In Burnett v. Burnett, 271 So.2d 90, 93 (Miss.1972), we stated:

In discussing habitual cruel and inhuman treatment as grounds for divorce, we said in Howard v. Howard, 243 Miss. 301, 303-304, 138 So.2d 292, 293 (1962).
“The popular idea is that, like charity, it covers a multitude of marital sins, and is the easiest road to freedom from the marital bonds. As a result suits are often brought, based on petty indignities, frivolous quarrels, general incompatibility and the petulant temper of one or both parties, seeking divorce for habitual cruel and inhuman treatment, without ever realizing or understanding, in the remotest degree, what is meant by the words as used in the statute. They do not realize the nature, gravity, or duration of the cruelty required to warrant a divorce. * * * The cruelty required by the statute is not such as merely to render the continuance of cohabitation undesirable, or unpleasant, but so gross, unfeeling and brutal as to render further cohabitation impossible, except at the risk of life, limb, or health on the part of the unoffending spouse; and that such risk must be real rather than imaginary merely, and must be clearly established by the proof.” (Emphasis added.)

The parties are not compatible. Rebecca Marble’s religious views differ from her husband’s, and she is unable or unwilling to be as fastidious a housekeeper and as demonstrative as he would like. While John Marble appears genuinely unhappy in this marriage, in our opinion he has not proved this dissatisfaction is caused by any cruel and inhuman treatment on Rebecca’s part.

Secondly it is argued the chancellor erred in awarding Rebecca separate maintenance. Citing Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which held unconstitutional the Alabama statute providing that husbands but not wives may be required to pay alimony upon divorce, John Marble contends the gender based cause of action of separate maintenance is unconstitutional. However, under the long standing rule that the court will refrain from deciding constitutional issues unless absolute necessary, we dispose of this issue on other grounds. Tribou v. Gunn, 410 So.2d 378 (Miss.1982).

We are of the opinion the award of separate maintenance was improper for two reasons. First, when Rebecca was asked on cross-examination, “Do you contend that the marital problems were the fault of just John, or both of you?” she replied, “Both of us.” It is well settled that a wife is not entitled to separate maintenance where her conduct has materially contributed to the separation. Cox v. Cox, 279 So.2d 615 (Miss.1973); King v. King, 246 Miss. 798, 152 So.2d 889 (1963). By her own admission Mrs. Marble was partly responsible for the marital difficulties. Therefore, in our opinion, she is not entitled to separate maintenance.

Further, she placed a condition on her offer to have her husband return to her: that he undergo counseling with a therapist of her choice. This statement establishes Mrs. Marble’s willingness to have her husband resume the marriage relationship was not complete. It therefore will not support an award of separate maintenance, which is a “judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance for her until such time as they may be reconciled to each other.” Bunkley & Morse’s Amis, Divorce and Separation in Mississippi, Section 7.00 (1957). Unless the wife is willing to live with her husband, she is not entitled to separate maintenance. Smith v. Smith, 293 So.2d 466 (Miss.1974).

For the foregoing reasons, we are of the opinion the chancellor erred in awarding separate maintenance to Mrs. Marble. The judgment is therefore reversed and the cause remanded without prejudice.

REVERSED AND REMANDED.

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


text:
    Jerry Preston REDMOND v. STATE of Mississippi.
    No. 55091.
    Supreme Court of Mississippi.
    Oct. 17, 1984.
    V.T. Valias, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein appellant was convicted of burglary and larceny of a dwelling and sentenced to a term of ten years in the custody of the Mississippi Department of Corrections to run consecutively to the sentence in Cause 893 of that court. Being unhappy with the judgment and sentence, Redmond has perfected an appeal to this Court.

On August 9, 1982, Mrs. JoAnn Taylor, upon arriving at her residence on Pecan Boulevard in Jackson between 5:00 and 6:00 p.m., discovered the home had been burglarized. The front door was open and the facing knocked off the wall surrounding the backdoor. The police were already on the scene and it was determined two portable televisions had been taken.

Earlier that afternoon Larry Esco and his sister were driving down Pecan Boulevard when they noticed what appeared to them to be a burglary taking place. Mr. Esco saw a black male wearing a “little ole hat” leaving Mrs. Taylor’s house and carrying two televisions. The man left the front door of the home open and placed one television in the trunk of a black Lincoln occupied by a second black male and placed the second television on the rear seat of the car. As it was raining, neither Esco nor his sister were able to clearly identify the suspect’s face; however, they did obtain the license number of the suspect’s car. Esco reported his observations to the police department.

That afternoon Officer William Gladney and his partner, Steve Renfrow, patrolmen with the Jackson Police Department, observed a car matching the description given by Eseo parked outside Apartment B-2 of the Wood Village Apartments. A television was seen on the backseat of the car.

Gladney knocked on the door of Apartment B-2 and identified himself to the woman answering. He heard a lot of rumbling inside the house and what he thought sounded like a screen being knocked out of a window. Behind the apartments, Redmond, the appellant, was found hiding beneath some underbrush, a green baseball cap lying beside him. Dennis Robinson was found standing with one hand on a window sill of an open window and one foot partially off the floor. The window screen had been knocked out on the ground.

An inventory was done of the car outside of Apartment B-2 after Robinson and Redmond were placed under arrest. A television was located on the rear seat of the car as well as one found in the car’s trunk. Both televisions were later identified by Mrs. Taylor as those taken from her home.

Walter Sims, a nephew of Robinson, testified he was with Redmond on August 9, riding in his uncle’s dark blue Lincoln. Redmond asked Sims to stop the car on Pecan Boulevard at what he was said was his mother’s house. Redmond told Sims to wait in the car. Sims observed Redmond go to the side door of the home and knock. He later observed Redmond coming out of the front door with a television and stereo (Sims later testified Redmond had two televisions) leaving the front door open. After placing one television in the trunk and one on the rear seat, Redmond advised Sims to return to his uncle’s. When the police arrived at Robinson’s apartment, Redmond went out the window and Sims hid in the attic. He later turned himself into the police and told them his version of what had occurred on Pecan Boulevard.

Redmond, testifying in his own behalf, admitted being with Sims on Pecan Boulevard, but related the story that Sims entered the house and brought out the televisions. He assisted Sims in putting them into the car and both went to Robinson’s apartment. Redmond was a drug user and had taken some pills prior to the incident. He never questioned Sims about the televisions as he was affected by the drugs and described his thinking at that point as “too — too good ...” He ran from the police at Robinson’s apartment because he had not seen his probation officer in approximately three months.

Detective Joe Wade with the burglary division of the Jackson Police Department questioned Redmond on two separate occasions. The first questioning took place the morning of August 10 in the interrogation room at police headquarters. Detective Conston was also present. Redmond was advised of his rights. Redmond stated that Dennis Robinson was not involved in the case. When questioned as to his own involvement, Redmond stated that he did not want to answer any other questions. He was then returned to the city jail.

The second interrogation occurred later that afternoon at approximately 3:30 to 4:00 p.m. Wade was at the city jail on other business when Redmond called to him and said he wanted to talk. Wade was near the front of the jail near the exit and Redmond was in the doorway near the drunk tank. Wade and Redmond went to a small conference area used by attorneys. Redmond stated that he wanted to tell what had happened and to tell the truth and get things straight. He was again advised of his rights after which he informed Officer Wade he did break into the house and got two televisions and then proceeded to the Wood Village Apartments. Wade stated that no threats or promises were made to Redmond in order to get this information.

According to Redmond, on the afternoon of August 10, Conston and Wade took him from his jail cell unwillingly and transported him to the interrogation room. He told them he did not want to talk. Redmond said that the police informed him that if he would “cop out to this burglary”, they would drop two other forgery charges against him and let him serve six months on the county farm. “I just told them that if they would get the charges dropped, I would accept it.” He testified that he was feeling bad as he was undergoing withdrawal from the drugs and would have asked more questions if his head had been clearer. He denied taking the televisions or having any knowledge of the burglary being committed. Redmond had a prior conviction of receiving stolen property.

Following trial by jury, the appellant was found guilty as charged.

I.

THE COURT ERRED IN ALLOWING TESTIMONY BY DETECTIVES THAT APPELLANT HAD CONFESSED.

Although appellant contends he did not confess, he also asserts any statements made by him were not made voluntarily. He contends the voluntariness of his statements was affected by:

(1) the officers who questioned him were wearing guns;

(2) at the time he had a serious drug problem and was suffering withdrawal symptons; and

(3) he was offered six months on the county farm in exchange for his statements.

First, during the court’s hearing on a motion to suppress, Officer Wade, who was with appellant at the time of the confession, testified that he was not armed as it was against policy to take a weapon inside the city jail. Secondly, Officer Conston testified that in the morning when he was involved in the interrogation Redmond did not appear to be nervous. Officer Wade stated that Redmond was shaky to some éxtent but that he did not know of his involvement with drugs. The appellant himself testified that he was aware of what was going on around him, he understood what the detectives were telling him, and he also understood that he did have the right to have an attorney present. Third, Officer Wade, who was with the appellant, denied any offers, threats or promises were made to the defendant in exchange for his statements.

The voluntariness of a confession and its admissibility into evidence is a question of law for the trial judge to determine. Ratliff v. State, 317 So.2d 403 (Miss.1975). The court determined appellant’s statements were voluntarily given.

Once the determination of voluntariness is made, the question as to whether or not the confession had in fact been given is a question for the jury, if put in issue by the defendant. See Caldwell v. State, 443 So.2d 806 (Miss.1983).

II.

THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

The appellant cites no authority in support of his argument but merely reiterates his contention that without the detective’s testimony concerning the alleged confession, the State’s case would be greatly weakened and would have presented to the jury a more fair and accurate representation of the facts. Where no authority in support of alleged error is cited, this Court is under no obligation to consider the same on appeal. Smith v. State, 430 So.2d 406 (Miss.1983); Gandy v. State, 373 So.2d 1042 (Miss.1979).

As noted earlier the testimony offered by Walter Sims and the appellant was conflicting as to what actually transpired at Mrs. Taylor’s house on Pecan Boulevard on August 9. Also, the evidence was conflicting as to whether or not a confession had been made.

We have often stated that the jury is the sole judge of the credibility of the witnesses and the weight and worth to be given their testimony. Campbell v. State, 278 So.2d 420 (Miss.1973); Carter v. State, 310 So.2d 271 (Miss.1975). The jury resolved the conflicts in this case against appellant. After our careful review of the record, we find the evidence sufficient to support his conviction and thereby affirm the judgment of the trial court.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    Taylor KING v. PONTOTOC WAREHOUSE COMPANY & Maryland Casualty Company.
    No. 54378.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Barry W. Ford, Ford & Ford, Tupelo, for appellant.
    Robert M. Carter, Darden, Sumners, Carter, Trout & McMillin, New Albany, for appellees.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ., and SUGG, Retired Supreme Court Justice.

Affirmed.

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


text:
    Anthony HESTER v. STATE of Mississippi.
    No. 54363.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Wren C. Way, Way & Field, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

REVERSED AND REMANDED.

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

WALKER, P.J., dissents.

BOWLING, J., not participating.


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

text:
    Rachel Henderson BARNES v. STATE of Mississippi.
    No. 55109.
    Supreme Court of Mississippi.
    Oct. 31, 1984.

      T. Larry Wilson, Ransom P. Jones, III, Pascagoula, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, 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 appeal stems from a shooting incident which occurred in front of Freeman’s Bar in Pascagoula. As a result of that shooting the appellant, Rachel Henderson Barnes was found guilty in the Circuit Court of Jackson County of the murder of Audrey Faye Malone Stevens. Ms. Barnes was subsequently sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections.

It is undisputed that Ms. Barnes fired the two pistol shots which killed Ms. Stevens; however, there is considerable dispute as to who the aggressor was at the time of the shooting. Four of the state’s witnesses testified that Stevens made no threatening actions toward Barnes. Three other witnesses, including Barnes, testified that Stevens provoked Barnes and attacked her with various implements including a knife and liquor bottles. Obviously, Barnes’ claim that she shot Stevens in self defense was critical to her case. For that reason she objected to, and now assigns as error, the granting of Instruction S-5 which reads:

The Court instructs the Jury that if a person provokes a difficulty, arming himself in advance and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self defense. It is within the sole province of the Jury to determine who the aggressor was in this case.
In other words, if you find from the evidence in this case beyond a reasonable doubt that the Defendant, Rachel Barnes, provoded (sic) a difficulty, arming herself in advance and intending, if necessary, to use her weapon to overcome the victim, Audrey Faye Malone Stevens, then the Defendant, Rachel Barnes, became the aggressor and is then deprived of the right of self defense.

On numerous occasions this Court has cautioned that an instruction such as S-5 is to be given only in exceedingly rare circumstances where the facts of the case meet all of the elements necessary to cut off a defendant’s right to claim self defense. In McMullen v. State, 291 So.2d 537 (Miss.1974) this Court addressed the issue and held:

The second instruction is in the following language:
“The Court instructs the jury for the State that the law of self-defense as defined in the instructions presented to them by the State of Mississippi and by the defendant does not imply the right of attack. If you believe from the evidence in this case that the Defendant, Olia Mae McMullen, armed herself with a deadly weapon and sought the deceased with the formed felonious intent of invoking a difficulty with the deceased, or brought on, or voluntarily entered into and [sic] difficulty with the deceased, Tommie Kirkwood, Jr., with the felonious intent to kill and murder the deceased then, the Defendant, Olia Mae McMullen, cannot invoke the law of self-defense no matter how imminent or urgent the peril, in which she found herself.”
A similar instruction was granted in Tate v. State, 192 So.2d 923 (Miss.1966). This Court held that the instruction substantially restricted or cut off appellant’s right to defend upon the ground of self-defense and was, therefore, erroneous. The Court said:
“In Lofton v. State, 79 Miss. 723, 31 So. 420 (1901) this Court said:
“... This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, ... It can never be proper, save in the few, very, rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — not part of them, nor nearly all of them — essential to the estoppel.” 79 Miss, at 734, 31 So. at 421.” 192 So.2d at 924.
An almost identical instruction to the one in issue was held to be erroneous in Ellis v. State, 208 So.2d 49 (Miss.1968) and in the recent case of Craft v. State, 271 So.2d 735 (Miss.1973).
In Patrick v. State, 285 So.2d 165 (Miss.1973) the appellant argued that his right to plead self-defense was cut off by one of the State’s instructions. The Court stated:
“... [W]e reiterate and reemphasize what has already been said many times by this Court, and that is that it is a rare occasion when an instruction cutting off the right of self-defense is proper in a murder prosecution.” 285 So.2d at 168.
In light of the cases discussed above, it appears that the giving of the instruction was error. From a close reading of the record in this case, there is no evidence nor inference therefrom that the appellant armed herself with the felonious intent of provoking a difficulty with the deceased.

291 So.2d at 540, 541.

The state contends that Barnes armed herself in the afternoon after she received a phone call telling her that Stevens had been sitting on Barnes’ boyfriend’s lap at another bar earlier in the day. The state’s theory is explained by Mr. Guirola of the district attorney’s office in his argument urging the granting of Instruction S-5:

BY MR. GUIROLA: That’s what this whole altercation was about. Someone had called the Defendant and told her that so and so is messing with your man. She armed herself at that time. Her own statement said she didn’t usually carry a gun. She armed herself at that time and then went hunting her. She went from place to place until she finally ran into her.

Theory without proof simply cannot support the granting of an instruction. Our review of the record leads us to the conclusion that the state failed to support its theory with evidence. The state never established at what point Barnes armed herself, indeed the only testimony in that regard is that of Barnes herself. She stated that she took her gun with her when she left her house early in the morning the day of the shooting. She testified that she did so because she knew she would be out late and that she had been robbed on several prior occasions. There is simply no evidence to suggest that she armed herself after receiving a call reporting her boyfriend’s and Stevens’ activities.

Based on the foregoing we are of the opinion that the facts of this case do not warrant it being labeled one of those “few, very rare, cases” wherein an instruction depriving the accused of asserting a claim of self defense should have been granted. Therefore, we hereby reverse and remand this cause to the Circuit Court of Jackson County for proceedings consistent with this opinion.

We find no merit to the other assignments of error; however, upon retrial we caution all the attorneys involved as to what we said in Scott v. State, 446 So.2d 580 (Miss.1984) and its progeny, about instructions such as S — 4:

Our decision today should be a clear indication that instructions such as S-8 (S-4 here) are condemned and should not be used upon retrial of this matter.

446 So.2d at 584.

REVERSED AND REMANDED.

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

WALKER, P.J., dissents.

PATTERSON, C.J., not participating.


author: PER CURIAM. OVERTON, Justice, McDONALD, Justice, EHRLICH, Justice, SHAW, Justice,

text:
    Lorean S. EVANS; Henry McDermott; Lucille McDermott; and Cheryl Lee Harrison, Appellants, v. George FIRESTONE, as Secretary of State of Florida; and Reason ’84: the Committee For Citizens Rights In Civil Actions, a political action committee, Appellees.
    No. 65898.
    Supreme Court of Florida.
    Opinions Oct. 3 and 11, 1984.

      Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, and Arthur England of Fine, Jacobson, Block, England, Klein, Colan & Simon, Miami, for appellants.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and Erie J. Taylor, Asst. Atty. Gen., Tallahassee, Chesterfield Smith, Julian Clarkson and Lynn M. Dannheisser of Holland & Knight, Tallahassee, Robert L. Shevin and James A. Minix of Sparber, Shevin, Shapo & Heil-bronner, Miami, and Donald W. Weidner, Reason ’84: The Committee for Citizen’s Rights, Jacksonville, for appellees.
    Karen A. Gievers of Anderson, Moss, Russo & Gievers, Miami, amicus curiae for Florida Consumers Federation, Inc.
   PER CURIAM.

The declaratory judgment entered in this cause September 14, 1984 by the Honorable Ben C. Willis, Circuit Judge for the Second Judicial Circuit of Florida is hereby reversed and proposed amendment nine, titled Citizen’s Rights in Civil Actions, is stricken from the November ballot. An opinion setting forth our reasons for this decision will issue at a later date.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

PER CURIAM.

This cause is before the Court for review of a declaratory judgment rendered September 14, 1984, in which the Honorable Ben C. Willis found the proposed amendment to the Florida Constitution, Amendment 9: Citizen’s Rights in Civil Actions, and its ballot summary were constitutionally valid. Appellants filed an appeal to the First District Court of Appeal which, upon motion by both parties, certified the question to this Court as being of great public importance, without passing on the merits. We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution.

In the circuit court, appellants challenged the validity of appellee Firestone’s placing on the November ballot the following amendment:

CITIZEN’S RIGHTS IN CIVIL ACTIONS

In civil actions: a) no party can be found liable for payment of damages, in excess of his/her percentage of liability; b) the Court shall grant a summary judgment on motion of any party, when the Court finds no genuine dispute exists concerning the material facts of the case; c) noneconomic damages such as pain and suffering, mental anguish, loss of consortium, and loss of capacity for the enjoyment of life shall not be awarded in excess of $100,000 against any party,

which would actually appear on the ballot in guise of the following title and summary, pursuant to section 101.161, Florida Statutes (1983):

CITIZEN’S RIGHTS IN CIVIL ACTIONS

Amendment establishes citizen’s rights in civil actions: provides a party in a lawsuit shall not be required to pay more damages than the jury found him/her responsible for personally; requires courts to dispose of lawsuits when no dispute exists over the material facts thus avoiding unnecessary costs; and allows full recovery of all actual expenses such as lost wages, accident costs, medical bills, etc., but limits non-economic damages to a maximum of $100,000.

Appellants’ challenge alleged that the amendment violates the one subject limitation imposed in article XI, section 3, Florida Constitution and that the title and summary are deceptive and ambiguous, thus failing to give the notice required by section 101.161, Florida Statutes (1983). Additionally, appellants raised a federal constitutional issue, claiming that the amendment’s facial invalidity violated the due process clause of the fourteenth amendment of the federal constitution.

Judge Willis held that the amendment embraced only one subject and matter directly connected thereto and that the title and summary were neither ambiguous nor misleading. He declined to reach the due process issue, finding it not to be ripe for adjudication at that point in the amendment process.

After this Court accepted jurisdiction, the cause was fully briefed and orally argued. Our order striking the amendment from the ballot issued October 3, 1984. This opinion follows to explain our earlier decision.

We find the amendment clearly and conclusively defective on both grounds considered by the circuit court: it embraces more than one subject, and the ballot summary fails to satisfy the notice requirements of Florida Statute 101.161 as construed in Askew v. Firestone, 421 So.2d 151 (Fla.1982). As these holdings dispose of the case, we do not reach the due process claims raised in appellants’ brief.

I. Single-Subject Requirement.

The power of the citizens of the state of Florida to amend their state constitution by initiative, set forth in article XI, section 3, Florida Constitution, is subject to only one rule of restraint — that the “revision or amendment shall embrace but one subject and matter directly connected therewith.” (Emphasis supplied.) Proponents of the amendment have identified the single subject involved as “citizen’s right in civil actions” and distinguished this amendment from the multi-subject amendment which was stricken in Fine v. Firestone, 448 So.2d 984 (Fla.1984), by pointing out that amendment 9 is self-contained and would create no conflict with any other existing constitutional provision.

Fine stands for the axiomatic proposition that enfolding disparate subjects within the cloak of a broad generality does not satisfy the single-subject requirement. There we held that the single subject “revenue” encompassed at least three subjects. Similarly “citizen’s rights in civil actions” is so broad as to fail to delineate the subject or subjects of this amendment in any meaningful way. As in Fine, we must look to the functional effect of amendment 9 to determine whether it satisfies the single subject requirement.

In Fine, we receded from earlier language indicating that conflict with multiple sections of the existing constitution has no place in determining multiplicity of subject in initiative amendments, 448 So.2d at 990 (expressly receding from Floridians Against Casino Takeover v. Let’s Help Florida, 363 So.2d 337 (Fla.1978)), and found Citizen’s Choice defective in part because of its multiple conflicts. We did not, however, establish that as the exclusive test for the single-subject requirement. In Fine we also discussed the primary and fundamental concern of the one-subject restriction — the prevention of logrolling. Where separate provisions of a proposed amendment are an “aggregation of dissimilar provisions [designed] to attract support of diverse groups to assure its passage,” 448 So.2d at 988, the defect is not cured by either application of an over-broad subject title or by virtue of being self-contained.

The test, as set forth in Fine, is functional and not locational, and where a proposed amendment changes more than one government function, it is clearly mul-ti-subject. In Fine, we found multiplicity of subject matter because the proposed amendment would have affected several legislative functions. The proposed amendment now before us affects the function of the legislative and the judicial branches of government. Provisions a and c of the amendment, which limit a defendant’s liability, are substantive in nature and therefore perform an essentially legislative function. On the other hand, provision b, elevating the summary judgment rule currently contained in Florida Rule of Civil Procedure 1.510, is procedural and embodies a function of the judiciary. We recognize that all power for each branch of government comes from the people and that the citizens of the state have retained the right to broaden or to restrict that power by initiative amendment. But where such an initiative performs the functions of different branches of government, it clearly fails the functional test for the single-subject limitation the people have incorporated into article XI, section 3, Florida Constitution.

Nor can we hold that the summary judgment provision is “directly connected” to the other two provisions. The general effect of provisions a and c is to limit the amount of damages for which any defendant will be liable. A summary judgment is a procedural mechanism whereby liability and damages may be adjudicated when material facts are undisputed. The existence of this mechanism in no way limits the generalized concepts of liability or damages. Furthermore, the provision would reach far beyond those civil actions in which liability and damages are at issue, e.g. declaratory judgments, mortgage foreclosures, dissolution proceedings. The ballot summary reveals that the purpose for including subsection b is that it would, arguably, lower litigation costs. Those costs, however, are qualitatively different from liability for damages and cannot be held to be “directly connected” for purposes of curing a “single subject” defect.

We hold therefore, that “Citizen’s Rights in Civil Actions” does not delineate a single subject such that all three provisions are directly connected therewith. Within the broad generality of the amendment title we find provisions which effect both legislative and judicial functions.

II. Legal Sufficiency of the Ballot Summary

Section 101.161, Florida Statutes (1983) provides, in pertinent part:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot .... The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

In Askew v. Firestone, 421 So.2d 151 (Fla.1982), we construed this provision, holding that “the law required ... that the ballot be fair and advise the voter sufficiently to enable him intelligently to east his ballot.” Id. at 155 (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954)). In Askew we held clearly and conclusively defective a ballot summary which represented an amendment as granting citizens greater protection against conflicts of interest in government without revealing that it also removed an established constitutional protection. Appellants contend that the ballot summary now before us is similarly misleading. We agree.

The summary states that it “establishes” citizen’s rights in civil actions. This is clearly inaccurate as applied to provision b, relating to summary judgment. This provision has long been established in Florida. The effect of the amendment is to elevate this procedural rule to the status of a constitutional right, protected in the same manner and to the same degree as are other constitutional rights. We do not pass on the merits of the effect nor do we question the citizens’ right to do exactly this. We do find, however, that the voter must be told clearly and unambiguously that this is what the amendment does.

The summary for that same subsection, after describing the legal effect of summary judgment, ends with the editorial comment, “thus avoiding unnecessary costs.” We note in passing that the validity of this statement was hotly contested. But whether it be accurate or not, no logical explanation was given of how a constitutional summary judgment rule would be more effective in avoiding costs than is the existing summary judgment rule. Moreover, the ballot summary is no place for subjective evaluation of special impact. The ballot summary should tell the voter the legal effect of the amendment, and no more. The political motivation behind a given change must be propounded outside the voting booth.

Even more disturbing, and more obviously analogous to Askew, is the material recasting of provision c from language of limitation in the amendment to language of affirmation in the ballot summary. Nothing in the amendment “establishes” the citizen’s right to “full recovery of all actual expenses such as lost wages, accident costs, medical bills, etc.” These damages are neither enumerated nor alluded to in the language of the amendment. To the extent a citizen’s right is established in the amendment, it is the right to have his liability for “noneconomic damages such as pain and suffering, mental anguish, loss of consortium, and loss of capacity for enjoyment of life” capped at $100,000.

This limitation is clearly the chief purpose of provision c within the meaning of section 101.161, Florida Statutes. Just as it is clearly misleading to reveal only one half of a constitutional “trade off” in the ballot summary, Askew, 421 So.2d at 157 (Ehrlich, J., concurring), so is it fatally misleading to imply a constitutional trade-off where none is, in fact, contemplated. The only constitutional protection proposed here is for the benefit of the defendant in civil actions. No constitutional protection is added to the rights of the plaintiff. Again, this is not a criticism of the merits of the amendment nor a diminution of the citizens’ right to afford this protection to defendants. We merely stand firm on the fundamental right of the voter to be given fair notice so that he or she may make an informed decision on the merits of the provision.

Because of the ballot summary here was clearly and conclusively defective and because the amendment embraced more than one subject, we have ordered the amendment stricken from the ballot.

NO MOTION FOR REHEARING WILL BE ALLOWED.

BOYD, C.J., and ADKINS and ALDERMAN, JJ., concur.

OVERTON, J., concurs with an opinion.

McDONALD, J., concurs with an opinion in which EHRLICH J., concurs.

EHRLICH and SHAW, JJ., concur specially with an opinion.

OVERTON, Justice,

concurring.

I write this concurring opinion to emphasize my strong belief that the ballot language in the instant case is clearly misleading. I believe, however, that the problem of misleading ballot language on future proposals can and should be corrected by the legislature. I also wish to emphasize that the initiative petition process, when used properly, is a viable alternative means to amend our constitution. Contrary to some assertions, I find that our decisions in this area are consistent.

It would be easy, from a political standpoint, to ignore the one-subject restraint in the constitution, which is not fully understood by the public, and take the populist view that all initiative petitions should be allowed to remain on the ballot for the vote of the people. To do so, however, would not only violate our judicial oath of office but would also place in jeopardy the right of the people to be knowledgeable about how the proposed amendment would affect the constitution.

It is totally incomprehensible to me that proponents of a constitutional amendment can freely admit that they do not know how important parts of the proposal should be applied and that it should be left to the discretion of this Court to make this determination. Such admissions were made in Fine v. Firestone, 448 So.2d 984 (Fla.1984), by the Citizens’ Choice proponents, who did not know which constitutional provisions were amended by the proposal and left to this Court the responsibility of identifying and redrafting those provisions by judicial construction after the initiative proposal’s adoption by the people. In the present case, the proponents of Reason ’84 admitted in oral argument that they do not know whether the $100,000 limitation on non-economic damages, as contained in the proposal, applies for each individual litigant or whether that limitation applies to one incident, regardless of how many individuals are involved. They want to leave this important choice regarding the application of the proposal to the total discretion of this Court.

The ballot summary language compounds the amendment’s problems by implying that this proposed constitutional provision “establishes” certain rights that previously did not exist in civil lawsuits. The ballot summary language conveniently leaves out any reference to existing rights that are “changed” by the proposed constitutional provision. This may meet advertising criteria for the marketing of a product, but it cannot be tolerated for constitutional ballot language that is intended to inform the voter of what changes in the constitution are being proposed. We emphatically stated in Askew v. Firestone, 421 So.2d 151, 155 (Fla.1982), that the ballot language must be objective and fair and must sufficiently advise the voter so as to permit a knowledgeable decision on the merits of the proposal. In my view, the ballot language in the instant case appears to have been intentionally drawn to create an erroneous perception of the effect of this constitutional proposal. I am at a loss to understand why the proponents of this amendment did not take heed of the Askew v. Firestone decision.

With regard to misleading ballot language, I again reiterate my comment in Askew v. Firestone that “the legislature and this Court should devise a process whereby misleading language can be challenged and corrected in sufficient time to allow a vote on the proposal.” 421 So.2d at 157 (Overton, J., concurring specially). Devising such a process does not require a constitutional change but only necessitates a statutory enactment and possibly some court rule changes to allow for an expedited court proceeding. The state of Oregon has such a process which directs the attorney general to prepare a ballot summary that is “a concise and impartial statement of not more than 75 words of the chief purpose of the measure” for constitutional proposals from both the legislature and the initiative process. § 250.075, Or.Rev.Stat. (1983). The language can be challenged in the Supreme Court of Oregon whose role is to determine whether the language is “insufficient or unfair.” See Zajonc v. Paulus, 292 Or. 19, 636 P.2d 417 (1981); Priestley v. Paulus, 287 Or. 141, 597 P.2d 829 (1979). If it so finds, that court has the authority to modify and correct the language to reflect the chief purpose of the proposal and then have the constitutional proposal properly presented to the people for their vote. See Zajonc. The problem of misleading ballot language which now results in the removal of a constitutional proposal from the ballot is correctable by legislative action and it should be accomplished at the next legislative session.

Further, I agree that the single-subject requirement has been violated in this case. The single-subject requirement serves two important functions. First, the requirement is intended to guard against “logrolling.” See Fine v. Firestone, 448 So.2d at 989. Second, it directs the electorate’s attention to only one functional addition or change to the constitution because, unlike other means for amending the constitution, the initiative process does not provide for a filtering mechanism for the drafting of a proposal through amendments, public debate, and legislative vote. This lack of input in the drafting of an initiative proposal is an important reason for the single-subject limitation. Id.

I conclude that our decisions in Weber v. Smathers, 338 So.2d 819 (Fla.1976), Floridians Against Casino Takeover v. Let’s Help Florida, 363 So.2d 337 (Fla.1978), Fine v. Firestone, and the instant case are totally consistent in their application of the single-subject requirement. I recognize that our Floridians decision has caused confusion, but find that the result reached in that case is consistent with our other decisions interpreting the single-subject requirement.

In Weber, we approved as a single subject the ethics-in-government provision, which set forth the standards of conduct for governmental officials and employees, and concluded that it did not affect other constitutional provisions and was complete in itself. 338 So.2d at 822.

In Floridians, we approved as a single subject the legalization of casino gambling and determined that the provision for the distribution of tax revenue from such casinos was “directly connected” to the legalization of casino gambling. 363 So.2d at 340.

In Fine, we found that the Citizens’ Choice amendment violated the single-subject requirement in that it substantially affected at least three distinct functions of government. Specifically, we found that the proposal limited (1) all tax revenue available for governmental operations, e.g., police, fire, health, education, and roads; (2) the operation and expansion of all governmental user-fee services, e.g., electric, water, gas, garbage collection, and transportation services, where the user pays for the services he receives; and (3) the funding of capital improvements through revenue bonds which are repaid from revenue generated by the capital improvements. 448 So.2d at 990-92. There was no dispute that the Citizens’ Choice proposal substantially affected multiple provisions of the constitution.

In the instant case, we have found that the single-subject requirement has again been violated because, as explained in the majority opinion, this proposal affects two distinct functions of government.

In my view, this Court has set down understandable guidelines for the preparation of an initiative proposal that will meet the single-subject requirement. It is important to note that, although we have receded from certain language in Floridians, we have not retreated from our decision in Floridians determining that the casino gambling proposal meets the single-subject requirement, nor have we receded from our decision in Weber determining that the ethics-in-government proposal meets the single-subject requirement.

Hopefully, with these guidelines, and legislation that would allow the correction of misleading ballot language, this Court will not again be faced with the problem of having to remove a constitutional amendment from the ballot because of inartful drafting.

McDONALD, Justice,

concurring.

I concur. In doing so I reiterate the views I expressed in my concurring opinion in Fine v. Firestone, 448 So.2d 984 (Fla.1984). The most restrictive and most difficult method of amendment to the constitution is the initiative process. The one subject restriction placed in the initiative process is deliberate. Such amendments must be specific, well-defined in scope, and limited to one subject and matter directly connected therewith. The 1885 constitution became larded with special interest amendments; the framers of the 1968 constitution and the 1972 amendment sought to minimize the possibility of that recurring. It was neither envisioned nor contemplated that the initiative process would be used for multiple subject special interest legislation.

The amendment under consideration does not trespass the one subject matter rule to the same degree that the one in Fine did. The question, however, is not one of degree but whether or not the rule is violated. More than one subject is plainly evidenced in this amendment. Thwarted multiple subject matter legislation cannot be imposed in the guise of a constitutional amendment. Our state constitution needs to be constant, viable, and subject to limited modification.

I thought, when we announced Askew v. Firestone, 421 So.2d 151 (Fla.1981), that proponents of constitutional amendments would fairly and accurately summarize them without any misleading comments. My faith was ill placed because this summary clearly is both misleading and uncertain of effect if enacted. Because the ballot summary is defective, the amendment must be struck.

EHRLICH, J., concurs.

EHRLICH, Justice,

specially concurring.

I concur in the second portion of the Court’s opinion, designated “Legal Sufficiency of the Ballot Summary.” I concur in the result only in the first portion, “Single-Subject Requirement,” for the reasons I set forth in my concurring opinion in Fine.

The Supreme Court of Florida has a fundamental responsibility to determine the constitutionality of all laws enacted by the legislature as well as the constitutional sufficiency of amendments proposed to the constitution whether by the legislature or by citizens’ initiative. The people of Florida have provided in their constitution that the legislature may propose the amendment of a section or revision of one or more articles of the whole constitution. From 1885 until 1968, the people of Florida did not permit amendment of the constitution by initiative. The 1968 revision of the constitution for the first time permitted the people themselves to propose amendment of a section of the constitution. In 1972, after this Court’s opinion in Adams v. Gunter, 238 So.2d 824 (Fla.1970), the constitution was amended to permit the revision or amendment by citizens’ initiative of any portion or portions of the constitution, provided that, “any such revision or amendment shall embrace but one subject and matter directly connected to therewith.” In short, the people of Florida, providently declining to reserve to themselves the unbridled freedom to propose constitutional amendments granted to the legislature, imposed a rule of restraint, limiting constitutional initiative proposals to the “one-subject” rule. Only the judiciary has the authority or the obligation to enforce this vital one-subject rule. Unless we fulfill our duty, the protection the people enacted in the one-subject rule is illusory and meaningless.

I say again, as I did in my concurring opinion in Askew, that the people ought to be able to vote on amendments to their constitution. But at the same time we dare not ignore our sworn duties as justices of the Supreme Court by closing our eyes to the obvious constitutional deficiencies in any proposed amendment to the constitution of Florida. Fine laid out in clear language the guidelines for determining compliance with the one-subject requirement. If drafters of an initiative petition nonetheless choose to violate the one-subject requirement, this Court has no alternative but to strike it from the ballot. To do less is to violate our oath of office and to betray the trust the people of Florida have reposed in this Court since the founding of this state.

A proposed constitutional amendment, whether proposed by the legislature or by the citizens’ initiative, does not appear on the ballot. Instead, the legislature has provided in section 101.161, Florida Statutes, that the substance of the proposed amendment “shall be printed in clear and unambiguous language on the ballot” and that such substance shall be “an explanatory statement, not exceeding seventy-five words in length, of the chief purpose of the measure.” (Emphasis supplied.) Again, it is the sole responsibility of the judiciary to make certain that the legislative mandate is followed.

The ballot summary now before us is nothing more than a blatant attempt to violate the unequivocal legislative mandate of the people of Florida that the explanatory statement set forth the chief purpose of the proposal in clear and unambiguous language. How easy it is to comply with the terms of section 101.161, Florida Statutes! For example, taking the proposal in question, compliance with the statute could be achieved as follows:

Provides that a party in a law suit shall not be required to pay more damages than a jury found him/her responsible for personally, places in the constitution the present rule that courts dispose of law suits where no dispute exists over the material facts, and limits non-eeo-nomic damages to a maximum of $100,-000

—all in fifty-three words.

However, the Court’s ability to draft a constitutionally adequate summary does not itself confer the authority to place that summary on the ballot. The legislature, in spite of the strong recommendation of Justice Overton in a special concurrence to Askew (in which Justice McDonald and I joined), has not revisited section 101.161 to permit judicial correction of a defective summary. We must fulfill our responsibility, but we must not exceed the authority vested in us.

The drafters of the ballot summary in question have not simply set forth the chief purposes of the sections of the proposed amendment. Instead, the proponents have led the voters to believe that part b, dealing with the summary judgment, is something new which will reduce costs, whereas in actual fact the summary judgment provision has been a rule of court at least since the adoption of the Common Law Rules (a precursor of our current rules) in 1950. Any avoidance of costs attributable to this provision occurs whether or not the provision is adopted. All that part b would do is constitutionalize the current rule of procedure. The people of Florida have the right to put such a provision in the constitution, but they have demanded through legislative enactment to be told the chief purpose in clear and unambiguous language. This was not done.

Provision c is relatively simple. It places a cap of $100,000 on non-economic damages assessable against a party, and nothing more. There is not one word in provision c that deals with the recovery of actual expenses such as lost wages, accident costs, medical bills, etc., but the proponents would have the voters believe that the proposal deals with these items of damages. The proponents could just as easily — and with as little justification — have added that the proposal would allow filing for one’s homestead exemption. Without impugning the drafters’ motives, I fear it could be easily concluded that the summary of provision c was purposefully misleading. If Askew had been read and followed, this danger and this aspect of this litigation would have been avoided.

Again, we could have closed our eyes to these misrepresentations and violations of the statute. But in so doing we would have betrayed our oaths of office and our duties as justices of this Court. The popularity of a decision is not our lodestar. We would be undeserving of the public trust if ever we succumbed to any temptation to compromise our oaths of office and our duty to the people of Florida in order to gain the favor of a litigant, to appeal to the prevailing sentiment of the moment, or to try to curry favor with a special interest.

The decisions which determine compliance with the requirements of the constitution and the Florida Statutes rest with the proponents. This Court should not be charged with the inevitable result of their choice.

SHAW, Justice,

specially concurring.

I am persuaded that the ballot summary of amendment nine is sufficiently misleading as to require removal of the amendment from the November 1984 ballot for the reasons articulated by the majority in Part II.

In Fine v. Firestone, 448 So.2d 984 (Fla.1984) (Shaw, J., concurring in result only), I expressed concern that as a practical matter the function of government test would make the one-subject limitation of the constitution practically insurmountable. This test apparently has now been canonized in Part I of the majority opinion which states that “where a proposed amendment changes more than one function of government, it is clearly multi-subject.” This overbroad statement is unnecessary, as was the similar statement in Fine. Even more seriously, there is nothing in the constitution to warrant this interpretation of' the one-subject limitation.

In Fine, I stated that I saw the one-subject limitation as serving two purposes:

1. Ensuring that initiatives are sufficiently clear so that the reader, whether layman or judge, can understand what it purports to do and perceive its limits.
2. Ensuring that there is a logical and natural unity of purpose in the initiative so that a vote for or against the initiative is an unequivocal expression of approval or disapproval of the entire initiative.

Id. at 998. Applying this two prong test, I find that the initiative amendment itself passes muster. The amendment, unlike the ballot summary, is sufficiently clear so that a reader, whether layman or judge, can understand that it purports to limit defendant liability. In my view there is a natural and logical unity of purpose to the three provisions of the amendment so that a voter can unequivocally express either approval or disapproval of the entire initiative proposal. The obvious purpose of provisions (a) and (c) is to limit damages paid by defendants in civil suits. While provision (b) benefits both plaintiffs and defendants by raising to constitutional status the current rule on summary judgments, the rule is more frequently beneficial to defendants in summarily disposing of nuisance suits where a cause of action is unsupported by evidence. Food Fair Stores, Inc. v. Patty, 109 So.2d 5 (Fla.1959); Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956); Anderson v. Maddox, 65 So.2d 299 (Fla.1953). At least in theory, this limits the exposure of defendants to time-consuming and expensive nuisance suits. Summary judgments also, again in theory, offer a speedy vindication of the defendant’s reputation when the suit is in professional malpractice or negligence. The fact that summary judgments may sometimes benefit plaintiffs offers insufficient grounds to strike the amendment from the ballot. The majority’s analytical approach to the single-subject issue is hypertechnical and fails to show that the amendment is “clearly and conclusively defective.” Askew v. Firestone, 421 So.2d 151, 154 (Fla.1982).

In contrast to the amendment itself, the ballot summary is a misleading and inaccurate description of what the amendment purports to do. It is for this reason that I concur in striking the petition from the November ballot.

I concur with Justice McDonald’s suggestion in his concurring opinion to consider placing the responsibility for preparing the ballot summary on a disinterested third party, such as the Secretary of State, thus removing the inclination to politicize the amendment in the ballot summary.

       The thought occurs to me that to avoid this in the future the legislature might consider placing the responsibility of the preparation of a ballot summary on a third party, such as the Secretary of State.

       I recognize that because summary judgments bypass the constitutional right to a trial by jury they are strongly disfavored. Yost v. Miami Transit Co., 66 So.2d 214 (Fla.1953). Consequently, particularly in negligence suits, summary judgments are in practice difficult to sustain and may well result in prolonging rather than shortening litigation. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The critical question is not whether there is a right to summary judgment when there is no genuine issue of material fact. That is the current law and no one suggests that there should be trials when there are no issues. The critical and difficult question is always whether there is a genuine issue of material fact. Provision (b) does not contribute to the resolution of that question.