text:
    Mary Lou Shackman, wife of/and Joseph SHACKMAN v. Shelly DAIGLE, Liberty Mutual Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. CA-1236.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    Victor A. Dubuclet, III, Borrello & Huber, Metairie, for defendant-appellee.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff, Mary Lou Shackman, appeals a trial court judgment awarding her $3,000.00 general damages and $626.00 medical expenses for injuries sustained in an automobile accident involving defendant Shelly Daigle.

Plaintiff alleges the trial court erred in refusing to allow any testimony concerning loss of future wages by plaintiff’s vocational rehabilitation expert.

On March 28, 1979, while plaintiff was stopped at a yield sign waiting to enter Jefferson Highway, defendant ran into her from behind. Thus began a series of medical consultations for plaintiffs complaints of injury to the neck and back.

Plaintiff, 43 years of age, had returned to school after having raised a family and was finishing her sophomore year at Loyola University when the accident occurred. She alleged that her neck injuries made it impossible to read, write, type and even sit in class for any period of time without great pain, and that she was forced to withdraw from the University for that reason. She contended that her injuries made it impossible for her ever to become a psychiatric nurse, the goal she had set for herself before the accident. Plaintiff prayed for the difference between her present wages and the amount she would have earned had she attained employment as a psychiatric nurse after graduating in Spring of 1982, a date she targeted based on full-time summer, fall and spring semester attendance. Plaintiff introduced an expert witness in vocational rehabilitation who testified, based upon a personal consultation with plaintiff, how much future wages she would have lost since Spring of 1982. The trial court, however, excluded the rehabilitation expert’s testimony from the jury’s deliberation. Plaintiff alleges that this was error in that her disability was proven such that the question of future wages should have gone to the jury.

The court in Boatner v. McCrory Corp., 341 So.2d 1174 (La.App. 1st Cir.1977), citing Billiot v. Bourg, 338 So.2d 1148 (La.1976), noted:

When as here the evidence is conflicting, an appellate court should not disturb reasonable evaluation by the trier of fact of one set of witnesses as credible, and its rejection of the testimony of the opposing set of witnesses; nor should the reviewing court disturb reasonable factual inferences drawn by the trier of fact from such testimony found by it to be credible.

Plaintiff testified that her alleged neck trouble forced her to reduce her usual courseload over the year following the accident with defendant until she quit school entirely after the spring semester of 1980. Plaintiff admitted, however, that she continued part time employment as manager of her apartment complex. She also admitted to two subsequent occasions in which she had been stopped at the same yield sign and had been run into from the rear by another automobile. Plaintiff insisted that these were mere “taps” and had had no effect on the physical condition caused by defendant’s accident. Plaintiff further testified that the reason she had not returned to school at the time of trial was that she was recovering from a hysterectomy which she underwent after diagnosis of a tumor.

Discrepancies between plaintiff’s testimony and that of plaintiff’s lay witnesses were numerous. Plaintiff’s husband testified that he felt his wife’s injuries had “pretty much gone away”. While plaintiff testified she was driving her Cadillac when the accident with defendant occurred, plaintiff’s daughter testified plaintiff was in their small Volkswagen — the automobile plaintiff testified to having driven in the later accidents she had dismissed as mere “taps”. Plaintiff’s friend, Elizabeth Murray, testified that she saw plaintiff every day during 1979, yet remembered only the March 28 accident and neither of the two later ones. She said she had discussed the accident over dinner with plaintiff the night before trial and also that very morning. Leslie Davis, who had been driving with plaintiff during the March 28 accident and one of the later accidents testified that the March 28 accident had been more severe than the April 12 accident. She insisted that there was no reason to know why plaintiff would have told her doctors that her body flopped back and forth in the April 12.

Dr. Williams, the first doctor plaintiff consulted, testified that within three months of the accident he found plaintiff to have recovered normal neck motion, and was told by plaintiff that she felt she could continue her regular activities. He added, in direct contradiction to the testimony of plaintiff and plaintiff’s friend, Leslie Davis, that plaintiff had described the April 12 accident to him as having enough force “to flop her body back and forth.” Dr. Cook felt, even on plaintiffs first visit to her, that plaintiffs ability to type or read was not restricted because her difficulty lay in extending her neck backwards, not flexing it forward. The electromyograms she conducted on plaintiff yielded normal results. Dr. Terezekias testified that she could treat plaintiff only symptomatically — in response to plaintiffs complaints — because she could not find any observable evidence of injury. Plaintiffs family physician, Dr. Gaines, never once was told of any neck or back complaint during any of plaintiffs fairly regular visits to him after the accident. Defendant in turn had plaintiff examined by Drs. Soboloff and Levy who both felt plaintiff had a full range of motion in her neck, save perhaps for a slight limitation toward the left which they did not feel was disabling. Dr. Levy, a neurosurgeon, found no basis for neurological defect.

We find the trial court reasonably evaluated medical testimony as refuting plaintiffs claims of disability. Although plaintiff alleged error in the trial court’s refusal to consider that the testimony of plaintiff and her lay witnesses established sufficient predicate for a claim for loss of future wages, we find no abuse of discretion in the trial court’s low estimation of the testimony of plaintiff’s husband, daughter, and two friends.

What plaintiff sought to introduce was the testimony of a man who had merely spoken in an office with her for one and one-half hours. He had examined none of plaintiff’s medical reports; he was not a doctor himself. He computed plaintiff’s damages on the hypothesis that but for the March 28, 1979, accident, plaintiff would have continued through school full-time in fall, spring and summer to graduate in spring 1982 and successfully assume her desired career. He was completely unaware, however, of the intervening hysterectomy which kept plaintiff out of school regardless of any auto accidents. Moreover, his projection of future earnings assumed that the career goal expressed to him by a college sophomore would become a physical reality. Mr. Roberts’s plotting of plaintiff’s future was too speculative for us to consider, and, even had disability been proven, would have provided no basis for a claim for future wages.

After careful review of the record, we can find nothing which would indicate that the trial court’s decision to exclude the testimony of plaintiff’s vocational rehabilitation expert was manifestly erroneous. Canter v. Koehring, 283 So.2d 716 (La.1973).

For the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Anthony F. BRUSCATO, Jr.
    No. CA-1242.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Arthur S. Mann, III, Tucker & Schone-kas, New Orleans, for plain tiff-appellee.
    Thomas G. Donelon, Donelon & Donelon, Kenner, for defendant-appellant.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court awarding plaintiff General Motors Acceptance Corporation [GMAC] a deficiency judgment in a suit filed against defendant after the sale of an automobile pursuant to foreclosure.

In January, 1980, GMAC filed a petition for executory process against defendant alleging that he failed to pay the balance of a promissory note that secured an automobile he had purchased. The trial court granted the request in the petition, and the Sheriff of St. Bernard was commanded to seize and sell the automobile with appraisal. The sale was advertised, and defendant purchased the automobile for $2,017.00. GMAC later resold the automobile to Classic Auto Sales for $2,326.00, and credited the higher amount to defendant’s account. The trial court granted the deficiency judgment in the amount of $3,130.10 plus attorney’s fees in the amount of 25%, provided for by the mortgage, plus legal interest from the date of judicial demand, and all costs. It is from this judgment that defendant appeals.

Defendant appeals alleging three errors were committed in the court below: (1) the trial court’s failure to grant an exception of no cause of action based on GMAC’s removal of the original promissory note and certified copy of the chattel mortgage from the record; (2) there was insufficient evidence introduced at trial to sustain a finding of a deficiency; and (3) executory process was unavailable to plaintiff to enforce its rights.

I. REMOVAL OF PROMISSORY NOTE AND CHATTEL MORTGAGE

Plaintiff GMAC moved that it be allowed to remove the original promissory note and certified copy of the chattel mortgage from the record after the seizure and sale of the car, but before the petition for the deficiency judgment was filed. This motion was granted by the trial court. The documents were later filed with the petition for the deficiency judgment. Defendant argues that he has been prejudiced by the removal because he would not have been able to detect any defect in the promissory note.

GMAC suggests to this court that there is no authority whatsoever to prohibit the removal. GMAC refers to where a situation that could exist when a deficiency judgment may have to be sought in a court in a venue different from that in which the seizure and sale had taken place, in which instance the original promissory note would be used in two proceedings. Furthermore, GMAC argues that the note is still negotiable, no matter whether it is involved in a lawsuit, and the holder still has the right to transfer it. The mortgage and the note were withdrawn after the seizure and sale, but refiled with the supplemental petition for deficiency judgment. The defendant has made no showing that he has been prejudiced by this withdrawal. He has not alleged that there has been any modification or alteration of the note or the mortgage. Under these circumstances, we cannot find that defendant’s rights have been prejudiced by GMAC’s actions.

II. SUFFICIENCY OF EVIDENCE FOR DEFICIENCY JUDGMENT

The defendant asserts that the deficiency judgment should not have been granted because the plaintiff had failed to introduce sufficient evidence to sustain a finding that an appraisal had taken place.

An appraisal is required by La.R.S. 13:4365 and in Article 2771 of the Louisiana Code of Civil Procedure.

In brief to this court, GMAC has attached the official appraisal by the appraisers appointed by the Sheriff of St. Bernard. This appraisal, however, is not found anywhere in the record. Nevertheless, in the record, there is an order commanding the Sheriff to seize and sell the automobile with appraisal. On the back of this order, there is a notation by the Civil Deputy, stating that the property was seized in accordance with the Writ and that it was appraised at $3,000.75. At trial, defendant did nothing to question whether appraisal had taken place.

Although we cannot properly consider the evidence presented to us in brief, but not contained in the record, we nevertheless find that there is sufficient evidence in the record on which a trial judge could base a finding that an appraisal had taken place. This argument, therefore, is without merit.

III. RIGHT TO EXECUTORY PROCESS

Defendant argues that executory process is not available to plaintiff in the instant case because the chattel mortgage was not an authentic act, i.e., signed in the presence of two witnesses and a Notary Public.

Plaintiff argues that there is no authority for a requirement of an authentic act in instances such as this. Plaintiff cites La. R.S. 32:710(K) which states that “all laws and rules and all remedies in processes including executory process, under confessions of judgment as well as proceedings via ordinaria, now or hereafter made available to creditors for the protection or enforcement of their rights under mortgages affecting movables are available to creditors of obligations secured by mortgages affecting vehicles, whether evidenced by authentic acts or by acts under private signature, duly acknowledged.” (emphasis added). Furthermore, Article 2635 of La. Code of Civil Procedure clearly allows for an act of mortgage to be done by private signature duly acknowledged if it is on movable property, as is in the instant case.

Defendant acknowledged in court that he had signed the document. There was no attempt on the part of the defense to traverse the allegation that it was a properly acknowledged document containing a confession of judgment. Defendant’s argument, therefore, is without merit.

For the foregoing reasons, the decision of the trial court granting plaintiff GMAC a deficiency judgment is AFFIRMED, all costs are to be assessed against appellant.

AFFIRMED.


author: CIACCIO, Judge.

text:
    RAFTERY ELEVATOR CORPORATION v. Charles MALONEY, et al.
    No. C 1911.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 1984.
    W. Keith Hurtt, Jr., Metairie, for relator.
    Corwin B. Reed, Floyd J. Reed, New Orleans, for respondent.
    Before SCHOTT, GARRISON and CIAC-CIO, JJ.
   CIACCIO, Judge.

Upon application of plaintiff, Raftery Elevator Corporation, we granted certiorari to review the ruling of the trial judge which maintained defendants’ peremptory exception urging failure to join an indispensable party.

Plaintiff filed suit against defendants— both of whom are attorneys — alleging that defendants had obtained a consent judgment on behalf of plaintiff against Pisces, Inc. Plaintiff further claims that all creditors with recorded liens or judgments against Pisces, Inc. have been paid in full. But, because defendants did not record plaintiff’s judgment against Pisces, Inc., it successfully depleted its assets without satisfying its judgment indebtedness to plaintiff. Plaintiff seeks to recover from defendants the unsatisfied amount of the judgment against Pisces, Inc.

Defendants filed a peremptory exception wherein they argue that the officers and directors of Pisces, Inc. should have been impleaded by the plaintiff as defendants because they are indispensable parties. Defendants base their argument upon State law prohibitions providing that corporate officers and directors may not deplete corporate assets in fraud of creditors, and that the officers and directors of the corporation shall be liable to corporate creditors for such conduct. Defendants argue that since plaintiff alleges that Pisces, Inc. depleted its assets in fraud of creditors, then the officers and directors of Pisces, Inc. are liable to plaintiff and are indispensable parties.

The judgment of the trial court maintained defendants’ exception and ordered plaintiff to join “Pisces, Inc., its officers and stockholders.” We are not persuaded by defendants’ arguments. We do not find that the record contains facts which indicate that Pisces, Inc., its officers, directors or stockholders, are indispensable parties. For the following reasons, therefore, we reverse the judgment of the trial court and remand for further proceedings.

La.C.C.P. art. 641 defines indispensable parties and requires their compulsory join-der. The article provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.”

Great care must be exercised to insure a proper factual analysis of a party’s interest in a case before a determination of the party’s classification is made. Classification as an indispensable party should be applied only after the facts clearly establish that no complete and equitable adjudication of the controversy can be made in the party’s absence.

The Louisiana compulsory joinder statutes place the entire emphasis upon the rights of the absent party. Our Code article has as its goal the prevention of injustice to absent parties resulting from litigating cases in their absence which, while not legally binding upon them, nevertheless factually affect their rights. Our courts have concluded that parties should be deemed indispensable only when that result is absolutely necessary to protect substantial rights. See State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973).

Neither defendants nor the trial judge have provided us with any facts which indicate that any rights of Pisces, Inc., the absent party, would be affected by the litigation between plaintiff and defendants. We have reviewed the entire record before us and we conclude that whatever the result of the litigation between plaintiff and defendants, the rights of Pisces, Inc. will be unaffected.

If plaintiff should prevail against defendants, the nature of the judgment against Pisces, Inc. will not be altered, nor will any liability of the officers, directors or stockholders of Pisces, Inc. This is also true if defendants should prevail against plaintiff.

Defendants argue that plaintiff should be able to collect from Pisces, Inc., its directors, officers or stockholders. This may be true, but this does not preclude the assertion of plaintiff’s claim for damages based upon the alleged negligence or malpractice of defendants.

We conclude, therefore, that upon the showing made neither Pisces, Inc. nor its officers, directors or stockholders are indispensable parties to the present litigation. Accordingly, the judgment of the trial court is reversed, and defendants’ peremptory exception is hereby overruled. This matter is remanded to the district court for further proceedings not inconsistent with views here expressed. The defendants-respondents are to pay the costs incurred in connection with this proceeding in this court; all other costs to await final determination.

REVERSED AND REMANDED.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Henry DORSEY.
    No. KW 84 0183.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 1984.
    Houston C. Gascon, III, Dist. Atty., for plaintiff-respondent.
    C. Jerome D’Aquila, New Roads, for defendant-relator.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an application for a supervisory writ from a judgment denying an application for post conviction relief which sought to vacate a guilty plea because the defendant did not have the mental capacity to enter it.

FACTS

On September 20, 1982, Henry Dorsey, Jr. was indicted by the Iberville Parish Grand Jury for the second degree murders (La.R.S. 14:30.1) of Troy Dorsey and Nathaniel Dorsey, his children, on August 10, 1982. He was arraigned on September 21, 1982, and pled not guilty and not guilty by reason of insanity to both charges. A sanity commission was appointed to examine Dorsey. A sanity hearing was held on November 24, 1982, and the district court ruled that Dorsey understood the charges pending against him and was capable of assisting counsel. The court minutes of this hearing do not reflect that objection was made to this ruling. Trial was fixed for February 7, 1983.

On February 3, 1983, after an extensive Boykin examination and against the advice of his court-appointed counsel, Dorsey withdrew his previous pleas and pled guilty to the second degree murder of Troy Dorsey. (The written minutes on the indictment for second degree murder of Nathaniel Dorsey show it was continued without date.) Dorsey waived the sentencing delay and was sentenced to imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence.

On December 16, 1982, and February 14, 1983, Dorsey was examined by Dr. Francisco A. Silva, a psychiatrist. On February 18, 1983, he was examined by Dr. Curtis Vincent, a clinical psychologist. Silva and Vincent subsequently testified on behalf of Dorsey that he was mentally incapable of entering a guilty plea on February 3, 1983.

This motion to set plea of guilty aside was filed on February 22, 1983. When filed, the time for taking an appeal from the conviction had expired. La.C. Cr.P. art. 914. Accordingly, we consider this motion as an application for post conviction relief. La.C.Cr.P. art. 924 et seq.; La.C.Cr.P. art. 924.1. Dorsey contends that his guilty plea is constitutionally infirm because he did not have the mental capacity to knowingly or voluntarily waive his constitutional rights. Such a claim may be considered in an application for post conviction relief. La.C.Cr.P. art. 930.3(1).

On July 22, 1983, Dorsey was examined by Drs. Aris Cox and Theresita Jiminez. Dr. Jiminez was a member of Dorsey’s sanity commission and previously examined him on October 5, 1982. Dr. Jiminez testified on behalf of the State that when she examined Dorsey on October 5, 1982, and July 22, 1983, he was mentally capable of proceeding to enter a guilty plea. She would not give an opinion on Dorsey’s condition on February 3, 1983, but indicated that his condition was substantially the same both times she examined him. Further, she knew of no reason why he would not have been capable of proceeding on February 3, 1983. Dr. Cox testified on behalf of the State that Dorsey was mentally capable of entering a guilty plea when he examined him. Although he would not give an opinion on Dorsey’s condition on February 3, 1983, he indicated that the way Dorsey described what happened in February “did not sound like he was having psychotic symptoms at that time.” Dorsey told both Drs. Jiminez and Cox that “he realized he was facing long period of institutionalization and a correctional setting would be more satisfactory to him than a psychiatric hospital.”

On October 13, 1983, the taking of evidence on this motion was completed with the testimony of Dr. Vincent and the filing of Dorsey’s extensive records (218 pages) from East Louisiana State Hospital. These records show a history of admissions commencing in January of 1977. His last admission was April 20, 1982. He was discharged on June 18, 1982. At the time of discharge, he had occasional auditory hallucinations but was considered capable of maintaining himself outside the hospital. His condition was diagnosed as paranoid schizophrenia. On October 13, 1983, the district court judge (who also received Dorsey’s guilty plea) denied the motion. Dorsey applied to this Court for a supervisory writ on February 13, 1984. La. Const, of 1974, art. V, § 10; cf. La.C.Cr.P. art. 930.6.

MENTAL CAPACITY TO ENTER GUILTY PLEA

The essence of Dorsey’s claim is that when he entered his guilty plea he lacked the requisite mental capacity to proceed. Mental incapacity to proceed is defined in La.C.Cr.P. art. 641 as follows:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

A defendant in a criminal case is presumed sane and responsible for his actions, and the burden of proving otherwise in this proceeding is on the defendant. La.R.S. 15:432; La.C.Cr.P. art. 930.2; cf. State v. Narcisse, 426 So.2d 118 (La.1983). The standard of proof is a preponderance of the evidence, and the defendant must show it was more probable than not he lacked the mental capacity to enter the plea. Cf. State v. Rogers, 419 So.2d 840 (La.1982). The ruling of a district court on a defendant’s mental capacity to proceed (enter a guilty plea) is entitled to great weight on appellate review and will not be overturned absent an abuse of discretion. State v. Brogdon, 426 So.2d 158 (La.1983).

In his oral reasons for judgment, the district court judge placed emphasis on the fact that he Boykinized Dorsey for approximately one hour and fifteen minutes before accepting his guilty plea. The transcript of the guilty plea shows extensive and probing questions by the district court judge and responsive answers by Dorsey. Cf. State v. Trahan, 412 So.2d 1294 (La.1982). Further, implicit in the district judge’s ruling is that he accepted the testimony of Drs. Jiminez and Cox and rejected that of Drs. Silva and Vincent. We have reviewed the record and cannot say that the district court judge abused his discretion.

DECREE

For the foregoing reasons, this application for a supervisory writ is denied.

WRIT DENIED.

      . Compare State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983), writ denied, 433 So.2d 721 (La.1983), where the defendant attempted to vacate his plea shortly after sentencing and then raised the failure of the district court to allow him to do so as an assignment of error in a timely appeal.


author: PER CURIAM.

text:
    Bennie SIMMONS, Plaintiff-Respondent, v. HOPE CONTRACTORS, INC., et al., Defendants-Relators.
    No. 84-178.
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 1984.

      Robert L. Picou, Jr., Houma, for defendants-relators.
    Brittain & Williams, Jack 0. Brittain, Natchitoches, for plaintiff-respondent.
    Michael J. Maginnis of McGlinchey, Staf-fard, Mintz & Cellini, New Orleans, for defendant-respondent.
    Before FORET, CUTRER and KNOLL, JJ.
   PER CURIAM.

The defendant-relator, Hope Contractors, Inc., seeks supervisory writs from an interlocutory judgment of the trial court denying relator’s exception of improper venue.

The plaintiff, Bennie Simmons, filed suit in Natchitoches Parish against relator and Odeco, Inc., alleging that he sustained injuries while aboard the vessel, The Southern Cross. At the time of the accident the vessel was working in the waters of the Gulf of Mexico off the shores of Terre-bonne Parish, Louisiana.

Relator is a domestic corporation with its principal office in Terrebonne Parish, Louisiana. Odeco, Inc. is a foreign corporation domiciled in the State of Delaware, with its principal office in New Orleans, Louisiana.

Relator filed an exception of improper venue. Subsequently, Odeco, Inc. filed an answer. The trial court denied the exception of improper venue ruling that the suit could proceed in Natchitoches Parish. The trial court’s ruling provides in pertinent part as follows:

“Plaintiff filed suit on July 19, 1983, for personal injuries sustained in an accident in international waters off the coast of the State of Louisiana. The plaintiff named as defendants Hope Contractors, Inc. and ODECO, Inc., asking that damages be awarded in sol-ido against defendants.
“On August 3, 1983, Hope Construction, Inc. filed an exception of improper venue. On August 15, 1983, ODECO, Inc. filed an answer.
“Article 73 of the Louisiana Code of Civil Procedure provides that:
An action against joint or solidary obligors may be brought in any parish of proper venue.'
“When ODECO, Inc. filed an answer without objecting to the venue, Natchi-toches Parish became the parish of proper venue.
“The exception of improper venue is therefore overruled and Hope Construction, Inc. is given until February 3, 198j to file any further pleadings.

Relator seeks immediate relief.

ON THE MERITS

Louisiana Code of Civil Procedure Article 42 provides in pertinent part:

“The general rules of venue are that an action against:
(2) A domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located.
(4) A foreign corporation licensed to do business in this state shall be brought in the parish where its principal business establishment in the state is located, as designated in its application to do business in the state. ”

Under the above article, venue is not proper in Natchitoches Parish for either relator or Odeco, Inc. However, when Odeco, Inc. filed an answer it waived its right to object to venue. LSA-C.C.P. art. 925.

The general rules of venue provided in art. 42 are subject to the exceptions provided in LSA-C.C.P. articles 71 through 85 and otherwise provided by law. LSA-C.C.P. art. 43. However, since the exceptions are in derogation of a common right, they must be strictly construed and the party claiming the benefits of an exception must bring itself within the exception. Hawthorne Oil & Gas Corp. v. Continental Oil, 377 So.2d 285 (La.1979). Louisiana Code of Civil Procedure art. 73 provides in pertinent part:

“An action against joint or solidary obligors may be brought in any parish of proper venue under article 42, as to any obligor who is made a defendant. ”

Therefore, the issue is whether or not one party can retroactively waive an objection which is personal to another party.

Relator contends that the phrase in LSA-C.C.P. art. 73, “any parish of proper venue, under Article 42,” establishes that domicile will determine the parish of proper venue for individuals. For corporations the principal place of business or registered office will determine venue. Relator argues that the source of art. 73 is the former code of practice art. 165(6), which states:

“When the defendants are joint or soli-dary obligors, they may be cited at the domicile of any of them. ”

It is relator’s contention that this reference indicates that domicile is still the essential factor in determining proper venue. Relator cites as authority for its argument the case of Alpha v. Rose, 171 La. 753, 132 So. 222 (1931). The court stated:

“Subdivision 6 of article 165, C.P., does not say that where a court has obtained jurisdiction of one joint obligor, it shall thereby have jurisdiction of the other; what it does say is that joint defendants may be cited at the domicile of either of them. ”

In conclusion relator contends that it should not be forced to litigate a suit in a venue where none of the defendants are domiciled or have their principal place of business or registered office.

A review of the jurisprudence reveals that this issue is de novo. We find that, to establish venue under art. 73, the place of filing suit must be a proper venue under art. 42 of one of the solidary defendants. In the present case, Natchitoches Parish is not a proper venue under art. 42 for either relator or Odeco, Inc. The only reason that Odeco, Inc. is subject to the venue of Natchitoches Parish is by its waiver of its right to object to venue.

Further, the defendants are solidary obligors only by operation of law; therefore, the obligors had no selection as to whom they were to be bound. We find that it would be error to force a party to litigate a suit in an improper venue due to the waiver of its rights by another party over whom it had no control in selecting.

For these reasons, the writ shall be granted and made peremptory. The judgment of the trial court denying the exception of improper venue of defendant-relator, Hope Contractors, Inc., is reversed. The exception of improper venue filed by relator is hereby sustained. The suit is dismissed without prejudice as to this defendant. The suit is hereby remanded to the trial court for further proceedings according to law.

WRIT GRANTED. REVERSED AND REMANDED.

      . The requirement of irreparable injury is met in this case in light of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).


author: ROY NOBLE LEE, Justice,

text:
    CITY OF MERIDIAN, A Mississippi Municipal Corporation v. Gary O. HILL.
    No. 54147.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Rehearing Denied March 14, 1984.
    William J. Gunn, Williams, Gunn & Cren-shaw, Meridian, for appellant.
    Joe R. Odom, Adams & Odom, Meridian, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Circuit Court of Lauderdale County, Honorable Henry Palmer presiding, after reviewing an order of the Board of Civil Service Commission, City of Meridian, Mississippi, fixing the employment status of Gary 0. Hill, reversed that order and directed the Civil Service Commission to classify Hill as a fireman in the Fire Department and awarded him back pay from the date of termination, October 1, 1981, to the date of his reinstatement. The City of Meridian (City) has appealed from the lower court judgment.

The City has assigned four errors alleged to have been committed by the lower court in reversing the Civil Service Commission order, but we consider only one question which is presented by the assignment, viz, did the lower court err in reversing the order of the Board of Civil Service Commission, contrary to the substantial evidence ruling governing the review of decisions of administrative boards, and in directing that the Board of Civil Service Commission recognize and enter on its records that Hill is classified as a fireman in the Fire Department and awarding back pay from October 1, 1981, to the date of reinstatement?

Hill began work as a fireman for the City April 16, 1965, after passing the required examination. On September 26, 1969, he sustained a back injury while working for Sears, Roebuck & Co., on a separate and independent job (moonlighting), and subsequently was hospitalized and placed in traction. On April 9, 1970, he underwent surgery for a ruptured disc and, as a result, was unable to perform any heavy lifting or firefighting for a long period of time.

About the middle of 1970, Hill had exhausted all of his sick leave, but was still employed as a firefighter. Other firemen in the department were helping by filling in for him. On July 17, 1970, Hill wrote a letter to the Civil Service Board requesting that he be considered for transfer to a position as booth operator, where a vacancy had occurred. Hill stated in the letter, “I am fully aware while holding the position of booth operator, I will be disqualified for any promotions in rank.” Additionally, Hill asked for either temporary or permanent placement in that job.

The record indicates that it was customary for sick or injured men to work in the dispatch booth until they were well; that Hill wanted the job as booth operator on a temporary basis because his recovery was not complete and he still wanted to continue receiving a paycheck; that Hill was never notified in writing by the appointing authority, or city manager, as to any official designation classifying him as a radio communications dispatcher; and that a classification sheet appearing in Hill’s personnel file indicated that Hill was classified as an alarm operator in 1970.

In September, 1974, Hill again had surgery on his back for a pinched nerve, after which he fully recovered and was able to perform the physical duties required of a firefighter. He returned to work as a dispatcher October 19, 1974, but was interested in trying to get back on the fire truck. On August 31, 1978, he wrote a letter to the city manager and Civil Service Board requesting a transfer from communications dispatcher to firefighter. The Civil Service Board responded that it was without authority to reinstate him to the current eligibility list and recommended that he apply for the next firefighter exam. On November 15, 1978, the Civil Service Board reiterated that conclusion. Prior to these events, on August 3, 1978, the City of Meridian passed a resolution adopting a job classification plan recommended by the United States Civil Service Commission, setting up salary grades with maximum and minimum pay ranges for each employee classification. Publication of the resolution was not made until September 28, 1981. The City Manager sent a memorandum dated October 10, 1978, to all department heads directing that any employees within their department who desired to appeal their classification assignment as established October 1, 1978, should appeal by a designated procedure no later than October 1, 1978.

Without detailing the matters further, it is sufficient to say that Hill did not appeal, pursuant to that notice, prior to the stated deadline. Hill decided to take a Firefighter II examination to be given September 20, 1979, but was not permitted to do so because he was not classified as a Firefighter I. He was advised that he should consider bidding on an opening as dispatcher in the police department. He was notified August 6, 1981, that the position of communications dispatcher in the fire department would be abolished effective October 1, 1981, that he would be placed on lay-off status, but that he could avoid layoff by requesting in writing to transfer to dispatcher in the Police Department.

The Civil Service Commission made a finding from the evidence and, pursuant thereasto, ordered:

1. That Mr. Hill is not a fire fighter as required by the Laws of the State of Mississippi and the rules and regulations of the Civil Service Commissions of the City of Meridian, Mississippi. Mr. Hill, after appointment as a Fire Alarm Operator pursuant to his letter of July 27, 1970, is a Fire Alarm Operator.
2. That Section 8.15 does not require an employee to apply for transfer from one department to another. It only requires that the employee affected be afforded an opportunity to be heard by the Commissions before approval of the transfer. The appointing authority has full power under this Section to transfer the employee as a “Communication Dispatcher” from one department to the other with the approval of these Commissions. The employee would have had the right to have been heard as set forth in rule 8.15, but not the right to veto the transfer. The employee has now been heard and no valid reason has been given, in the opinion of these Commissions, to prevent such transfer.
3. That Mr. Hill should not have been terminated as a “Communication Dispatcher” and should be reinstated as such.
4. Because of the circumstances surrounding this problem, the Commissions find that Mr. Hill be restored to duty and pay as a Communication Dispatcher effective the day he shall report for duty following notice to him of this decision. Failure to report within five (5) days thereafter shall constitute resignation on his part from this position.
5. If Mr. Hill desires to become a fire fighter, the Commissions reaffirm the above mentioned letter of October 31, 1978 and suggests that Mr. Hill apply to take the next examination.
ORDERED, this the 20th day of November, 1981.

On appeal to the Circuit Court of Lauder-dale County, that court reversed the Civil Service Commission and ordered:

... that this Court has jurisdiction of the parties and the subject matter; that that part of the Order of Commissions appealed from is hereby reversed and with directions that the Civil Service Commission recognize and enter on its records that Gary 0. Hill is and be classified as a Fireman in the Fire Department and that he be awarded his back pay from the date of termination of October 1, 1981 to the date of his reinstatement, along with all rights and benefits.

Mississippi Code Annotated § 21-31-23 (1972) sets forth the procedure in the removal, suspension, demotion, and discharge of persons in the classified Civil Service. That part of the section dealing with appeals to the circuit court from the Civil Service Commission’s orders provides:

The said circuit court shall thereupon proceed to hear and determine such appeal and the accused shall have the right of trial by jury. However, such hearing shall be confined to the determination of whether the judgment or order or removal, discharge, demotion or suspension made by the commission, was or was not make [sic] in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds.

On appeal here, the question before us is whether or not the action of the Civil Service Commission was in good faith for cause. Intertwined with this question is whether or not there was substantial evidence before the Civil Service Commission to support its order and whether it is arbitrary, unreasonable, confiscatory, and capricious.

In City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951), the Court considered an order of the Civil Service Commission of Meridian, discharging a member of the fire department, and the interpretation of the statute reciting “good faith for cause”. The Court said:

That is to say, the circuit court would not be permitted to determine the guilt or innocence of the employee of the charge or charges against him, since the fact that the circuit court may disagree with the commission as to the guilt or innocence of the employee would no more necessitate a finding that the commission had not acted in good faith and on the basis of what reasonable men could deem a sufficient cause than our disagreement with the conclusion of a chancellor on an issue of fact would impute bad faith to him. The fact that we may think the weight of the evidence is contrary to his finding does not even require a reversal unless he is manifestly wrong and furnishes no basis in itself alone for an inference of bad faith on the part of the trier of the facts, whether an executive or administrative agency, a jury or a trial judge
... And it was further stated that the only sound, practicable or workable rule that can be announced is to hold that the court to which the appeal is taken from an administrative agency shall only inquire into whether or not the judgment appealed from is reasonable and proper according to the facts disclosed before the board that is to say whether or not its decision is supported by substantial evidence or is arbitrary or capricious, etc. or in other words whether or not it was made in good faith for cause. [211 Miss, at 693, 695, 53 So.2d at 52, 53].

See also City of Jackson Police Dept. v. Ruddick, 243 So.2d 566 (Miss.1971); City of Hattiesburg v. Jackson, 235 Miss. 109, 108 So.2d 596 (1959); Stegall v. City of Meridian, 230 Miss. 176, 92 So.2d 331 (1957); and Scott v. Lowe, 223 Miss. 312, 78 So.2d 452 (1955).

We are of the opinion that the order of the Commission was supported by substantial evidence; that it is not arbitrary, capricious or unreasonable; that it was entered in good faith; and that the lower court erred in setting that order aside and ordering an entirely new classification.

Therefore, the order of the lower court is vacated, and the order of the Civil Service Commission is reinstated.

REVERSED AND RENDERED.

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

      . Same as a dispatcher, radio communication dispatcher and fire alarm operator.

      . He denied knowledge of the notification until sometime in 1979.

      .The positions in the fire department and police department were being combined into the police department. Although classified as a dispatcher, Hill had filled in from time to time as a firefighter since 1974.


text:
    TERMPLAN, INC. and Jim Watkins v. Sonya A. KEEN.
    No. 54156.
    Supreme Court of Mississippi.
    March 14, 1984.
    Rehearing Denied April 18, 1984.
    Gary D. Thrash, Powell & Thrash, Jackson, for appellants.
    Charles H. Ramberg, T. Frank Collins, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

CONSIDERED EN BANC AND AFFIRMED.


text:
    James K. WILLIAMS v. BOARD OF SUPERVISORS OF JACKSON COUNTY, MS, et al.
    No. 54012.
    Supreme Court of Mississippi.
    March 14, 1984.
    Rehearing Denied April 18, 1984.
    Wallace R. Gunn, Hattiesburg, for appellant.
    Carl A. Megehee, Linda D. Baggett, Me-gehee, Brown, Williams & Mestayer, Pasca-goula, Robert W. Smith, Biloxi, for appel-lees.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED WITHOUT PREJUDICE.


author: PRATHER, Justice,

text:
    Rexie COLLINS v. STATE of Mississippi.
    No. 54746.
    Supreme Court of Mississippi.
    March 21, 1984.
    Stephen P. Livingston, Robert T. Cornelius, New Albany, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROY NOBLE LEE, PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:

I.

The defendant, Rexie Collins, was tried for the murder of Eloise McAllister Judon in the Circuit Court of Union County, Circuit Judge W.W. Brown presiding. The jury found the defendant guilty, and he was sentenced to life in the Mississippi Department of Corrections.

The defendant brings this appeal arguing that the court erred:

(1) In allowing certain pictures to be introduced into evidence;

(2) In refusing to grant a circumstantial evidence instruction; and

(3) In refusing a new trial on the ground of state’s non-disclosure prior to trial of two witnesses’ written statements, which were contradictory to the witnesses’ testimony at trial.

We affirm.

II.

On June 15, 1982, the badly decomposed body of Eloise McAllister Judon was found in a rural area of Union County, near Brat-ton Road, a road known as a “lovers’ lane”. The body was clothed in blue jeans and a light pink blouse, and barefooted. The cause of death was confirmed by pathologist Michael Todd to be multiple wounds to the chest area.

Bubba Johnson, who lived about 200 yards from where the body was found, and an acquaintance of the decedent Judon, told the Sheriffs Department that the decedent and defendant Collins had frequently used Bratton Road as a route to a fishing spot. Johnson also told the officers that the decedent and Collins were having a relationship, but recently decedent had been going with another man named Mac Bean.

Collins admitted having a close relationship with the decedent, but stated that he had not seen her during the two weeks prior to the discovery of her body.

However, two persons, William Ivy and Michael Ivy, saw Collins with the decedent on Sunday, June 13, two days before her body was found. William Ivy saw the couple around 6:00 p.m. that Sunday on Brat-ton Road. Michael Ivy saw them leave a local pool hall in New Albany around 10:45 p.m. Sunday night. At that time the decedent was wearing blue jeans and a pink or maroon halter top.

Further, a man named George Smith, while walking along Bratton Road between 11:00 and 11:30 p.m. on Sunday night, saw Collins and decedent on Bratton Road. He noticed that the decedent was walking barefoot along side Collins’ car, as Collins drove. The car stopped and Collins got out. He threatened the decedent and then hit her an estimated five or six times in the chest. The hitting was consistent with that of a stabbing motion. Smith was unable to determine if Collins had anything in his hand. After the fight, Smith lost0sight of decedent and- saw Collins walk around to his car trunk. Smith then left. Decedent’s body was found at the location where Smith saw the fight. Testimony that prior threats were made toward decedent by Collins was given by decedent’s daughter, Are-tha McAllister, and a mutual acquaintance, Shirley Dixon.

Pathologist Michael Todd testified that the amount of decomposition to Ms. Ju-don’s body was consistent with death having occurred late Sunday, June 13 or early Monday, June 14, 1982.

Ill A.

Was it error to allow the jury to see pictures of the decomposed body of Eloise McAllister Judon?

This Court has addressed the gruesome photograph issue many times and has held that the admission of photographs is within the sound discretion of the trial judge and will not be reversible error unless he abuses that discretion. Mallette v. State, 349 So.2d 546 (Miss.1977). Also, the fact that pictures of a homicide victim might arouse the emotions of the jurors does not of itself render them incompetent in evidence provided they serve a legitimate evidentiary purpose. Shearer v. State, 423 So.2d 824 (Miss.1982); Butler v. State, 320 So.2d 786 (Miss.1975).

In West v. State, 218 Miss. 397, 67 So.2d 366 (1953), this Court stated:

[I]f photographs which describe the gruesome aspect of a crime are not pertinent, relevant, competent, or material on any issue in the case and serve the purpose solely of inflaming the minds of the jurors and prejudicing them against the accused, they should not be introduced in evidence. (Id. 218 Miss, at 408, 67 So.2d at 370).

The pictures shown to the jury in this case served two legitimate evidentiary purposes. First, the pictures corroborated testimony as to what the victim was wearing when last seen. Second, the amount of decomposition placed the time of death at a time consistent with the eyewitness testimony of George Smith. No error was committed by admitting these pictures into evidence.

Ill B.

Next, was it error to refuse defendant’s circumstantial evidence instruction?

Instruction D-12 offered by the defendant was essentially a circumstantial evidence instruction. Where a conviction is based upon eyewitness testimony, the refusal of such instructions is proper. King v. State, 315 So.2d 925 (Miss.1975); Irvin v. State, 258 So.2d 241 (Miss.1972), Gilleylen v. State, 255 So.2d 661 (Miss.1971). Therefore, no error was committed by refusing such instruction here.

Ill C.

Lastly, was it error to overrule defendant’s motion for a new trial on the basis that the state did not disclose the written statements of Michael Ivy and George Smith prior to trial?

Discovery requests had been made by defense counsel for any and all evidence exculpatory to defendant pursuant to Uniform Criminal Rule 4.06, which provides in part that:

Upon request of the defendant, the prosecution shall furnish to the court in camera any prior written statements of witnesses. If these materials are found to be materially inconsistent with the witness’s testimony, the statements shall be supplied to defense counsel prior to cross-examination.

Prior to trial the prosecution disclosed to defense counsel the “names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial.” After trial of Collins, defense counsel came into possession of written statements made by prosecution witnesses Ivy and Smith, the existence of which was unknown by counsel prior to trial.

Defendant argues to this Court that the prosecution had a duty to disclose the written statements of Ivy and Smith for two reasons; one being that the statements were exculpatory in nature, the other being that the statements were materially inconsistent with the witnesses’ testimony. Such a request was made by defense counsel prior to trial in a motion to compel discovery, but no such request was made at trial.

In Knowles v. State, 341 So.2d 913 (Miss.1977), this Court held that the trial court did not err by denying defendant’s motion to require the state to produce a written statement of one of the witnesses. In

Knowles, prosecution witness Johnson testified without referring to his statement. Furthermore, the statement was not used in any manner during the trial. Cross-examination of Johnson revealed no contradictions in his testimony and no request was made by defendant to inspect the witness’s statement to determine whether there were any contradictions. In the Knowles case this Court stated:

In Mattox v. State, 243 Miss. 402, 137 So.2d 920 (1962), on suggestion of error 139 So.2d 653 (1962), we held that granting or refusing an accused’s request for the production or inspection of a writing in the possession of the prosecution lies in the sound discretion of the trial court. The procedure for laying a proper foundation was stated in Mattox, as follows:
Refusal of an accused’s request for production of such a writing may be based upon the failure to lay a proper foundation by taking the necessary preliminary steps and by showing that the statement is at variance with the writer’s testimony. Anno., 156 A.L.R. at 350. Since there were no material contradictions in Grayson’s testimony, it was the duty of appellant’s counsel to lay a proper foundation in some other way for inspection of the. statement. This may be done by submitting the statement to the trial court for an inspection by the presiding judge as to whether it reveals any contradictory matter. Appellant’s counsel did not do this, and laid no foundation for otherwise requiring production of the statement.
The foregoing principles are in accord with the great weight of authority and with the practice in this state, as indicated by Eaton v. State (163 Miss. 130, 140 So. 729), and the discussion in Bellew v. State, 238 Miss. 734, 752, 756, 106 So.2d 146 (1958), app. dismissed, 360 U.S. 473, 79 S.Ct. 1430, 3 L.Ed.2d 1531, 361 U.S. 858, 80 S.Ct. 43, 4 L.Ed.2d 96. (243 Miss. at 418, 419, 420) [137 So.2d 920]; 139 So.2d at 654. (Id. at 916).

In the case sub judice, the statements of Ivy and Smith were not used in any way at trial. Cross-examination of the witnesses revealed no material contradictions. A review of the statements by this Court revealed no material inconsistencies with the trial testimony and neither statement was exculpatory in nature. Therefore, it was not error to deny a new trial on this basis.

AFFIRMED.

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


text:
    Lawrence SHIRLEY v. Brad MILES, et ux.
    No. 54195.
    Supreme Court of Mississippi.
    March 21, 1984.
    Roy 0. Parker, Roy 0. Parker & Associates, Tupelo, for appellant.
    Tim Ford, Carnathan & Malski, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.

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


text:
    Thomas Wayne EVANS, Jr. v. STATE of Mississippi.
    No. 54180.
    Supreme Court of Mississippi.
    March 21, 1984.
    Richard W. Hamilton, David A. Stewart, Jr., Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Niles McNeel, Judge.

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

AFFIRMED.


text:
    Quillar Michael GAMMAGE v. STATE of Mississippi.
    No. 54185.
    Supreme Court of Mississippi.
    March 28, 1984.
    Thomas Q. Brame, Jr., Bay Springs, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jasper County; L.D. Pittman, Judge.

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

REVERSED AND REMANDED.


author: SULLIVAN, Justice,

text:
    Lenzie ALLISON v. STATE of Mississippi.
    No. 54306.
    Supreme Court of Mississippi.
    March 28, 1984.
    See also, 436 So.2d 792.
    Harry L. Kelley, Jackson, 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 PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

Lenzie Allison was indicted for murder and convicted of manslaughter in the Circuit Court of Rankin County and Judge Alfred Nicols sentenced him to serve twenty (20) years in the custody of the Department of Corrections.

The sole issue before us is whether or not it was error to allow the state to cross-examine its own witness when that witness testified that the version he was giving from the stand was the same version that he had given to the state prior to the trial. We hold that it was not error and affirm the conviction.

On the night of November 6, 1981, at a club operated by Allison, a man and woman got into a fight and the woman was cut. The deceased, C.L. Rankin, attempted to separate the combatants. Allison came into the room carrying a .32 caliber pistol. A shot was fired and Rankin died as the result of a .32 caliber bullet wound in the back of the neck.

At the trial the state’s first witness was 19-year-old Thomas Jefferson, who testified that when Allison came from the back room that he assumed that Allison tripped and the gun fired. The District Attorney claimed surprise and, over objection, the trial court excused the jury and an extensive hearing was held upon the matter. A recording of a prior inconsistent statement by Jefferson was played and the police officer who interviewed Jefferson testified that Jefferson never told him that Allison had tripped. Jefferson testified that he had told the state on a prior occasion that Allison tripped. The trial court then ruled that the state had shown surprise by the addition to Jefferson’s testimony, that the evidence was material to the case, and that the state would be allowed to cross-examine Jefferson.

The appellant then objected on the ground that the statement was not in contradiction of a prior statement but was merely in addition thereto. This was overruled. At the conclusion of the state’s case, the appellant offered four witnesses who testified that Allison had tripped when the gun was fired. Upon rebuttal, Officer Dickerson testified that two of these witnesses had made no mention of any stumble in prior interviews and that the first he had heard of any tripping was at the preliminary hearing.

Appellant contends that the district attorney was not surprised and should not have been allowed to cross-examine Jefferson, as Jefferson had told him about the tripping in a statement before the trial began. Appellant further argues that it was improper for the state to impeach Jefferson on immaterial and collateral issues.

Appellant relies upon Dunk v. State, 84 Miss. 452, 36 So. 609 (1904), which held that the state may not impeach its own witness unless surprised by the testimony of the witness. Even when surprise is shown, the prior contradictory statements must be about a matter material to the real issue and not merely collateral and immaterial. There this Court said that the state had not shown surprise when .the district attorney had not interviewed the witness prior to calling him and that when the officer denied that Dunk was armed at the time he was arrested it was improper to call witnesses to testify that the officer had told them that Dunk was armed when he was arrested as this was a statement that was purely collateral and had no bearing upon the real issue. The facts of these two cases are readily distinguishable.

Appellant cites Williams v. State, 73 Miss. 820, 19 So. 826 (1896), as authority for the proposition that the trial court did not properly apply the test as to the collateral nature of the prior inconsistent statement. That case holds: “The test as to whether a matter is collateral within the meaning of the rule is this: that the cross-examining party be allowed to prove it in support of his case.” 73 Miss, at 829, 19 So. at 829. This test applies to the subject matter of the inquiry and not to the admissibility of the evidence offered to prove it.

In Hooks v. State, 197 So.2d 238, 240 (Miss.1967), we held that in order to cross-examine and impeach its own witness the state must establish that the evidence had taken it by surprise and that the witness is hostile. The state may show, absent the jury, that the witness has made contradictory statements and at the trial has changed his testimony.

Was this merely an addition by Jefferson to his prior statement or was it a material change in his testimony that constituted surprise? We hold that the trial court correctly found that it was material, going directly to the real issue, and not merely collateral, and that the state had shown that it was surprised and was, therefore, entitled to cross-examine Jefferson. In a trial of murder, how the shooting occurred cannot be anything but material.

In Denton v. State, 348 So.2d 1031 (Miss.1977), we held that such a ruling was left to the sound discretion of the trial judge. Here that discretion was not abused.

Allison contends that the cross-examination and attempted impeachment of Jefferson prejudiced his defense. He does not specify what constitutes the prejudice (unless we can assume he means the verdict) and yet he offers four other witnesses who also testified that Allison tripped. This, as well as Jefferson’s testimony, is exculpatory. It became a question for the jury and the jury resolved it by finding that Allison was guilty of manslaughter.

We affirm.

AFFIRMED.

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


author: HAWKINS, Justice,

text:
    Walter McCOLLUM v. STATE DEPARTMENT OF PUBLIC WELFARE.
    No. 54064.
    Supreme Court of Mississippi.
    March 28, 1984.

      Suzanne Griggins, Mendenhall, for appellant.
    Donna Nead, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

Walter McCollum appeals from a decree of the Chancery Court of the First Judicial District of Hinds County requiring him to make monthly support payments to his minor child.

This was a suit to establish paternity and child support brought by the Mississippi Department of Public Welfare under two separate statutes, and because the chancellor erred in refusing to sustain either a motion for a change of venue, or motion to make the natural mother a party and hear a cross-bill against her for custody, we reverse and remand. Our reasoning follows.

On December 30, 1981, the State Department of Public Welfare (DPW) filed a bill of complaint against Walter McCollum for child support of his daughter Wendy L. Carr, born October 2, 1973. The complaint was filed in the First Judicial District of Hinds County, the residence of the mother, Queen Collins; McCollum was an adult resident of Simpson County.

McCollum was served on January 11, 1982, with a citation to appear before the Chancery Court on February 25, 1982. On that day he appeared, filed an answer admitting paternity and an ability to support the child, and also a cross-bill praying for custody. He also filed three motions: (1) to change venue to Simpson County; (2) for a continuance; and (3) for the mother to be made a party to the cross-bill.

The chancellor overruled the three motions and conducted a hearing. McCollum testified he had last seen his daughter in July, 1981, when he kept her for three weeks. Also, McCollum testified the child was kept in a ghetto and that he had been unable to see her in December, 1981, when he wanted to assist her with food and clothing.

Queen Collins testified she lived in Jackson, and that she had been receiving welfare assistance for Wendy and her other children. She said' she was married to Joe Willie Collins, but separated from him, and that her home condition was good. She denied ever interfering with McCollum seeing his daughter.

During the hearing the chancellor stated that if McCollum was contributing to Wendy’s support, he was entitled to know where she was at all times, and he was going to provide for visitation rights. He further observed that the welfare department would need to keep McCollum informed as to her whereabouts at all times.

In the course of the hearing, McCollum tendered his wife as a witness. The following transpired:

BY MS. GRIGGINS:
Your Honor, we have a witness.
BY THE COURT:
Are you going to call his wife?
BY MRS. GRIGGINS:
Yes, Your Honor.
BY THE COURT:
I know that she will testify that they have a good home. I am going to give him visitation. (P. 50)

The chancellor did not permit a proffer of proof, and the pertinent portion of his final ruling is as follows (P. 51):

BY THE COURT:
... I am going to find that he is entitled to visitation rights. If you are not satisfied with reasonable visitation rights to have her visit with him and him to visit with her, then on motion of either party if you can’t agree I will fix the visitation rights. I am going to require him to pay $75.00 a month toward the support of the child beginning the first of April.

On March 24, 1982, the chancellor entered a final order: “Order of Filiation and for Child Support”. This decree adjudicated paternity of the child in McCollum, and that he pay $75.00 a month child support to the Hinds County Welfare Department. The decree also awarded reasonable visitation rights to McCollum, permitting him to have the child on stated weekends, holidays, and two weeks during the summer.

LAW

There is no merit to the assignment of error that McCollum was entitled to a continuance.

Miss.Code Ann. § 43-19-31(a), (b) (Chapter 483, Laws 1976), authorizes the DPW to institute paternity and support proceedings against the father of a child who is receiving aid from the department. This statute also authorizes the proceeding to be brought in the county where either the mother, father or child resides.

In this case the complainant stated the proceedings wére being instituted under the authority of the above statute and Miss.Code Ann. § 93-9-9.

Prior to the enactment of the statutes authorizing a child support unit in the DPW, Miss.Code Ann. § 43-19-31, et seq. (Ch. 483, Laws 1976), Miss.Code Ann. § 93-9-9 (Ch. 312, Laws 1962) were in ef-feet. To some extent, their provisions overlap.

Miss.Code Ann. § 93-9-9 is a part of the Mississippi Uniform Law on Paternity, is not limited to actions by the DPW, but provides that paternity may be established upon the petition of the mother, child, or by “any public authority chargeable by law with the support of the child”. Under Miss.Code Ann. § 93-9-9, if paternity is lawfully determined, the liabilities of the father may be enforced. Also, there is a time limitation of one year against the mother’s seeking to secure support under this section.

It may be readily seen that in a proceeding brought by the legal section of the DPW to adjudicate paternity and responsibility for child support, the mother is not a necessary party. The only interest of the DPW is in seeing that the taxpayers are relieved of some, or all of the burden in supporting an indigent child.

A natural father has a right to institute a custody action independently of any action by the DPW, and it would be a most unusual factual situation involving any custody ease between parents in which the DPW would be a necessary party. We certainly have no such case here.

If the DPW had instituted this action solely under the authority of Miss. Code Ann. § 43-19-31, and if the only issue before the chancellor was a cross-bill against the natural mother for custody, and a motion to make her a party, it would have been entirely within the discretion of the chancellor to sustain or overrule the motion, and whether to hear the cross-bill.

He could have overruled the motion, or in the interest of judicial economy heard the original and cross-bills in a single proceeding.

The chancellor was not faced with this precise situation in this case, however. In the first place, the DPW brought the action under both Miss.Code Ann. § 43-19-31 and Miss.Code Ann. § 93-9-9, and in addition to the suit, there was a motion for a change of venue.

Under our recent case of Metts v. State Department of Public Welfare, 430 So.2d 401 (Miss.1983), we held a person charged with being the natural father in a paternity action under both these sections is entitled to be sued in the county of his residence. We held the venue provision of Miss.Code Ann. § 93-9-17 under the Uniform Law on Paternity controlled. This section requires that any paternity suit brought under the provisions of this chapter must be brought in the county where the father resides.

The chancellor could have sustained the motion to make the mother a party and entertained the cross-bill, in which event the Chancery Court of the First Judicial District of Hinds County would have had authority to hear the case, because one of the issues would have been child custody, and Miss.Code Ann. § 93-11-65 would have been applicable. This last section is a child custody statute which would give the Chancery Court of the First Judicial District of Hinds County to hear and determine this issue. Had the chancellor done so, it would have been quite proper to overrule the motion for a change of venue.

Under the law, however, he was obligated to sustain one or the other of these motions.

Moreover, the chancellor decreed visitation rights affecting the mother, and a pre-requisite for such a decree having any binding effect on the mother was that she be a party to the action.

We reverse and remand for the chancellor to determine whether he will hear all issues or transfer venue to Simpson County for further proceedings. Paternity having been established, the only issue remaining is child support.

In this case McCollum was represented by a tax-supported legal aid service. A symbiotic relationship thus exists between a tax-supported DPW legal section which enforces child support and a tax-supported legal aid service defending natural fathers in such suits. If a child custody suit ensues, no doubt the natural mother on public welfare will require the assistance of yet another tax-supported legal aid service, a three-way symbiotic relation supported not by the laws of nature, but by the laws of our society.

In the absence of judicial activism, this Court can do no more than state the facts. Upon remand this case may well become a menage a trois.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


author: BEATTY, Justice. FAULKNER, Justice

text:
    Lyndell A. WHITTEN, as personal representative of the estate of Harry H. Whitten, deceased v. ALLSTATE INSURANCE COMPANY.
    82-1083.
    Supreme Court of Alabama.
    Feb. 10, 1984.
    Robert Wyeth Lee, Jr. of Wininger & Lee, Birmingham, for appellant.

      Jasper P. Juliano of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   BEATTY, Justice.

Plaintiff, Mrs. Lyndell Whitten, appeals from the trial court’s denial of her motion for a new trial. We reverse and remand.

The following issues are presented for review:

(1) Whether extraneous facts were introduced into the jury’s deliberations;

(2) Whether the- trial court could have found that the effect of such extraneous facts, if any, was not prejudicial; and

(3) Whether the trial court erred in denying Mrs. Whitten’s motion for a new trial.

Mrs. Lyndell A. Whitten, as personal representative of her deceased husband’s estate, instituted an action on June 18, 1979, against Allstate Insurance Company to recover under a policy of liability insurance. Mrs. Whitten made the following allegations in her complaint:

“1. On or about the 23rd day of May, Plaintiff’s deceased husband was involved in an automobile accident at or near the intersection of Decatur Highway and Boydga Road, in the City of Birmingham, Alabama, with one David Lee Shelton. On said date and at said place, the said David Lee Shelton so negligently operated the motor vehicle which he was operating as to cause it to collide with the automobile which the Plaintiff’s deceased husband was operating.
“2. As a proximate consequence and result of the negligence of the said David Lee Shelton at said time and place, the Plaintiff’s deceased husband suffered serious bodily injuries from which he died.
“3. Plaintiff further avers that at the time of said accident, David Lee Shelton did not have a policy of liability insurance providing coverage for the automobile in the above described accident.
“4. Plaintiff further avers that at the time of said accident, Plaintiff’s deceased husband was insured under a policy of liability insurance issued to him by the Defendant, Allstate Insurance Company, said policy being in full force and effect and containing uninsured motorist provisions promising to pay all sums which the insured or his legal representative should be entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injuries sustained by the insured, caused by the accident, and arising out of the ownership, maintenance, or ... operation of an uninsured automobile.
“5. Plaintiff avers that the Defendant has notice of the accident and of the Plaintiff’s claim in the amount of Twenty Thousand Dollars ($20,000.00) and that the Defendant has failed and refused to pay the same.”

On April 20, 1983, the trial court submitted the case to the jury. Following their deliberations, the jury returned a verdict for Allstate. Mrs. Whitten filed a motion for a new trial based upon an affidavit of Elizabeth Ann Armstrong, one of the jurors in the case. The motion stated:

“1. That the above styled matter came on for trial on April 18, 1983;
“2. That a jury was impaneled on said date;
“3. That said case was submitted to the jury by the Court on April 20 with no verdict being reached on that date;
“4. That jurors were allowed to return to their homes on the evening of April 20 and to renew deliberations on April 21;
“5. That the evening of April 20 three jurors made an unauthorized examination of the intersection of Decatur Highway and Boydga Road where the accident which is the basis of this suit occurred;
“6. That said jurors went to said scene specifically with the intention of observing the intersection with respect to the deliberations and incorporated said inspection into their deliberation process;
“7. That said visit to the scene was an unauthorized examination by jurors and without authority of the Court or consent of the parties.
“8. That said examination was for the purpose of determining the controverted question of whether the uninsured motorist could have avoided the collision that was made the basis of this suit and that said unauthorized examination amounts to misconduct within the case law of Alabama;
"9. That on April 21 after said examinations occurred the jury returned a verdict for the defendant.
“WHEREFORE, plaintiff urges this Honorable Court to grant a new trial and as grounds therefor says:
“1. That the attached affidavit incorporated and made a part hereto proves that unauthorized examination was made by three jurors of the scene of this collision with regard to a subject of conflicting evidence;
“2. That these jurors did represent as a fact of their own knowledge the results of their visit and examination of this intersection which was not evidence in the case;
“3. That a jury may consider only evidence deduced from the witness stand and law as charged by the Court and no other evidence.
“WHEREFORE, plaintiff prays this Honorable Court to grant a Motion for a New Trial.”

After a hearing, the trial court denied the motion for a new trial.

The general rule in Alabama is that affidavits of jurors will not be accepted for the purpose of impeaching their own verdict. Weekley v. Horn, 263 Ala. 364, 365, 82 So.2d 341, 342 (1955). This general rule is subject to an exception which arises when the affidavits tend to show extraneous facts which have influenced the verdict. 263 Ala. at 366, 82 So.2d at 342 (holding that remarks between jurors during their deliberations, even though improper, are not extraneous facts).

Ms. Armstrong stated in her affidavit:

“I found out the next day that during the night three jurors had been to the scene where the traffic accident occurred. Their names are to the best of my knowledge, Connie Bailey, Patricia Jordan and Annette Collins.... ”

Two other jurors in the case, Connie Bailey and Patricia Ann Jordan, testified at the hearing on the motion for a new trial that they had visited the scene of the accident during an overnight break in the deliberations.

A similar fact situation was before this Court in Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961). In that case, a juror took an unauthorized view of the scene of the accident at issue in the lawsuit. This Court found that the extraneous facts exception to the general rule against jurors’ impeaching their own verdict was invoked. Under the authority of Allman v. Beam, the evidence of Connie Bailey’s and Patricia Ann Jordan’s unauthorized views of the accident scene is sufficient to show that extraneous facts were before some members of the jury.

Mrs. Whitten argues that this evidence of the introduction of extraneous facts into the jury’s deliberations requires a finding of prejudice as a matter of law. She cites Nichols v. Seaboard Coastline Railway Co., 341 So.2d 671 (Ala.1977). Although the Nichols opinion contains several reasons for the decision to reverse for a new trial on account of juror misconduct, all the Justices agreed (with the exception of Hef-lin, C.J., who concurred in the result) that prejudice had resulted under the facts of that case. The Court did not hold that prejudice could not be presumed as a matter of law. Six of the Justices agreed in a special concurrence stating that prejudice must be shown; however, that case did not hold that prejudice could not be presumed from extraneous facts as a matter of law.

Nevertheless, this Court recently wrote to that issue in Jones v. McMonigal, 409 So.2d 1381 (Ala.1982). In that case, jurors visited the scene of the accident on which the lawsuit was based, and this Court affirmed the trial court’s denial of plaintiff’s motion for a new trial, stating:

“While the jurors’ conduct was improper, the law in Alabama is that such impropriety must indicate bias or corruption of the jurors or that the misconduct affected the verdict of the jurors before the denial of a motion for new trial becomes reversible error.” 409 So.2d at 1382.

That statement of legal principle is, of course, too narrow, for it would prevent the recognition by this Court of instances demonstrated by extraneous matters from which it might be presumed that a party was prejudiced as a matter of law. To the extent that Jones v. McMonigal is so limited, therefore, it is overruled. Juror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law.

Alabama case law appears contradictory on the issue of what a court may consider in determining whether a jury’s verdict was unduly prejudiced by extraneous facts.

For example, in Weekley v. Horn, 263 Ala. 364, 366, 82 So.2d 341, 342 (1955), this Court stated that the extraneous facts exception “arises when the affidavits tend to show the extraneous facts which have influenced the verdict.” (Emphasis in original.) The juror’s affidavit which was offered to impeach the verdict in that case was held to be inadmissible, because it concerned the jury’s deliberations. This Court found that those deliberations were not extraneous facts.

The Weekly opinion was cited in Allman v. Beam, supra, 272 Ala. at 115, 130 So.2d at 198, for the following premise: “[T]he general rule is subject to an exception, the exception being that the affidavits tend to show that there were extraneous facts brought before the jury and such extraneous facts influenced the verdict.” (Emphasis added.)

In Jones v. McMonigal, supra, two jurors visited the scene of the accident which was the basis of the case on which they were serving. One juror testified that she thought the juror’s discussions of those unauthorized views caused some of the other jurors to be biased. The other jurors testified that they were not biased. This Court upheld the trial court’s denial of the motion for a new trial.

The trial courts and this Court considered the affidavits of jurors in Allman and Jones to determine the existence of extraneous facts and also to determine prejudice. Leith v. State, 206 Ala. 439, 90 So. 687, (1921), provides ample precedent for the rule applied in Allman and Jones allowing consideration of such affidavits. In Leith, supra, this Court stated:

“In McCormick v. Badham, 204 Ala. 2, 85 South. 401, 407, the authorities are collected to the effect that it is forbidden by public policy to permit a juror to testify as to what transpired between the jurors in their deliberations, or their manner of reaching a verdict on the evidence duly submitted to them on the trial, and that the affidavit of a juror may be received in support of a motion for a new trial, showing extraneous fact which may have influenced their verdict, and which was unduly before members of the jury while deliberating and before verdict rendered.” (Emphasis added.) 206 Ala. at 443, 90 So. at 690.

Then the Court went on to discuss the following exception to this general rule:

“It has not been held incompetent to show by members of the jury whether they did read or were influenced by a paper or other extraneous fact that was improperly before them, and not introduced on the trial. McCormick v. Badham, supra; L. & N. R.R. Co. v. Sides, 129 Ala. 399, 403, 29 South. 798; Caldwell v. State, 203 Ala. 412, 420, 84 South. 272; B.R., L. & P. Co. v. Moore [148 Ala. 115, 42 South. 1024].” (Emphasis added.) 206 Ala. at 443, 90 So. at 691.

However, the opinion of this Court in Dulaney v. Burns, 218 Ala. 493, 497, 119 So. 21, 25 (1928), interprets the extraneous facts exception more narrowly than Leith, supra: “In the case of McCormick v. Bad-ham, supra, this court held that a juror, to impeach the verdict, may not testify as to what transpired in their deliberations, further than the fact that extraneous matter was received and read by the jury.” This interpretation would limit the use of jurors’ affidavits to proof of extraneous matter, and would not allow jurors to state whether or not they were influenced by the extraneous matter.

The Dulaney and Leith decisions both cited an earlier decision, McCormick v. Badham, 204 Ala. 2, 85 So. 401 (1919), but they differ on the law stated in McCormick. Actually, neither Dulaney nor Leith states the law precisely as it appears in McCormick. In that case, this Court stated the general rule prohibiting a juror from testifying about the jury’s deliberations and went on to give the following exception: “The affidavit of a juror may, however, be allowed to show extraneous facts which may have influenced their verdict.” 204 Ala. at 9, 85 So. at 407. Therefore, McCormick did not specifically allow for jurors to testify concerning the influence of the extraneous matter, as Leith makes it appear; nor did McCormick specifically deny the allowance of jurors’ affidavits to determine the influence of extraneous matter, as stated in Dulaney.

The Leith opinion also relies on Louisville & N.R. Co. v. Sides, 129 Ala. 399, 29 So. 798 (1901). In Sides, the brief of defendant’s counsel was accidentally placed in the file of papers which went into the jury room when the jury retired to consider their verdict. Affidavits of all jurors serving on the case were considered. Those affidavits showed that the jury did not consider the brief of counsel as evidence in the case and that it did not have any influence or effect upon the verdict. Sides, supra, 129 Ala. at 403, 29 So. at 799. Accordingly, the Court’s interpretation of the “extraneous exception” rule as expressed in Leith follows a well-established precedent, and Dulaney, insofar as it contradicts Leith, is hereby overruled.

A review of the affidavits and testimony in the case at bar shows that the jurors were affected in different ways by the unauthorized views of three jurors and the subsequent discussions about those views.

Elizabeth Ann Armstrong stated in her affidavit:

“They [the jurors who viewed the scene] further said that their visit to the scene caused them to change their opinion about the case. Their discussions with me about their visit to the scene caused me to change my decision about the case. I feel that the verdict of the jury was affected by these three jurors visiting the scene of this traffic accident.”

Connie Bailey, one of the jurors who visited the scene, testified at the hearing on the motion for a new trial:

“Q. Connie, did your visit to the scene affect your decision in the case?
“A. Yes, sir.”

However, she also testified:

“Q. And the photographs showed all the scene of the accident, did it not, please ma’am?
“A. Yes, sir.
"Q. (BY MR. McDANIEL:) You did listen to all the evidence in this case, did you not, please, ma’am?
“A. Yes, sir.
“Q. And you followed the evidence in this case and his Honor Judge Callaway's instructions to you, did you not?
“MR. LEE: That goes into the deliberations.
“JUDGE CALLAWAY: Overruled.
“Q. You can answer. You followed His Honor’s instructions about this case, did you not?
“A. Yes, sir.
“Q. And you followed the evidence in this case that came from this witness stand under oath, did you not?
“MR. LEE: That requires—
“JUDGE CALLAWAY: Overruled.
“JUDGE CALLAWAY: Let me ask you something, please ma’am. I don’t know whether you can answer this, recall it or not, but was the scene as you saw it on April the 20th of 1983 substantially the same as the scene which was presented to you by pictures that were presented in evidence in the case?
“A. Yes, sir.”

Another juror who visited the scene was Patricia Ann Jordan, who testified:

“Q. Okay. Did it look the same to you as the pictures?
“A. Yes, it did.
“Q. And the fact that you went out there and anything that you saw, that didn’t have anything to do with your decision in this case, did it?
“MR. WININGER: I object. He objected to the same question.
“MR. LEE: He’s been objecting to it all along.
“JUDGE CALLAWAY. Overruled.
“MR. JULIANO: You can answer.
“A. It didn’t have any effect.
“Q. All right. Would it be an accurate statement that you based your decision on the evidence you heard in the courtroom from the witness stand?
“A. Yes, it would.
“MR. WININGER: Object.
“Q. And in addition to the law that the Judge instructed the jury on?
“A. Yes.”

Several other jurors stated in their affidavits that their decision was based upon the evidence presented in the case and that they were not influenced by the discussions among the jurors of the unauthorized views.

In Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 497, 111 So. 237, 239-40 (1927), this Court observed:

“The action of a juror in going by the store and viewing the locus in quo during the recess of the court, and while the jury was considering their verdict, is shown to have been without knowledge or suggestion of any party. While improper, no corrupt motive appears. It further appears the verdict was not influenced thereby; that the juror learned no new fact, but merely saw the same conditions already shown by photographs in evidence ....
“... Parties should not be penalized for the thoughtless conduct of a juror, unless under all the circumstances the ends of justice require it. Clay v. City of Montgomery, 102 Ala. 297, 14 So. 646; Ala. Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Leith v. State, 206 Ala. 439, 90 So. 687; B.R. & E. Co. v. Mason, 144 Ala. 387, 39 So. 590, 6 Ann.Cas. 929; L. & N. R.R. Co. v. Sides, 129 Ala. 399, 29 So. 798.”

The case at bar is distinguishable from Reed, supra, because in that case there was no evidence of prejudice. In the case before us, Connie Bailey and Patricia Ann Jordan both testified that the scene of the accident appeared the same as the scene which was admitted into evidence by photographs. However, Connie Bailey, at the hearing, and Elizabeth Ann Armstrong, in her affidavit, each said that she was influenced to change her decision about the case by the extraneous material which was before the jury. The record shows that no evidence was offered to contradict these statements. For example, no evidence was offered showing that these two jurors voted the same way before and after the unauthorized views and discussions about them took place. Therefore, the evidence is undisputed that these two jurors were influenced to change their decisions about the case by the extraneous material which was before them.

On the basis of these undisputed facts, we conclude that the trial court could not have found that the effect of the unauthorized views and the discussions about them were not prejudicial. It follows that the trial court’s ruling which denied Mrs. Whitten’s motion for a new trial must be reversed and the cause remanded. It is so ordered.

REVERSED AND REMANDED.

All the Justices concur except FAULKNER, J., who dissents.

FAULKNER, Justice

(dissenting).

I dissent.

Jones v. McMonigal, 409 So.2d 1381 (Ala.1982), is a correct statement of the law and should not be overruled or even modified as held by the majority.

The evidence and logic used by the majority to reverse the ruling of the trial judge in this case are less than substantial. Moreover, to reverse the trial judge in this case is a message to him that “Whatever you did at the trial with facts and evidence, we can do it better.”

The majority premises its holding on the affidavit of Elizabeth Ann Armstrong and the testimony of Patricia Jordan and Connie Bailey. The majority states that these jurors were influenced to change their decision by a visit to the scene of the accident.

Connie Bailey’s testimony does not reveal that her visit to the scene affected her decision at all. On the contrary she testified that she followed the trial judge’s instructions, and that the scene of the accident was substantially the same as the scene presented by the photographs. Patricia Ann Jordan, who also visited the scene of the accident, stated categorically in her testimony at her hearing on the post-trial motion that her visit to the scene did not have any effect on her decision.

The majority further states, “Several other jurors stated in their affidavits that their decision was based upon the evidence presented in the case and they were not influenced by the discussions among the jurors of the unauthorized views.” I do not know how to count “several” in arriving at the number 12, but jurors Bibeau, Ferguson, Fox, and Hayes must have been among those counted. They testified they were not affected. I do not know whether Annette Collins, who also visited the scene of the accident with Connie Bailey and Patricia Jordan, was affected by the visit. There is no mention of her by the majority.

So, two out of the three jurors who visited the scene of the accident testified at the motion for new trial that their decision was not affected by their visit. It is not known whether the third visitor was affected. That brings me to the affidavit of Elizabeth Ann Armstrong. In the stark reality of the testimony of Patricia Jordan and Connie Bailey that they were not affected by their visit to the scene of the accident, Ms. Armstrong stated, “They [the jurors who viewed the scene] further said that their visit to the scene caused them to change their opinion about the case.” Obviously, Ms. Armstrong must not have been aware of the testimony of visitors Jordan and Bailey. She says that their discussions with her caused her to change her decision. It appears to be strange indeed, that she changed her decision, and yet Jordan and Bailey did not change theirs.

There is simply not sufficient evidence to support the majority’s conclusion that there was any bias or prejudice on the part of the jurors in reaching their verdict. There is not sufficient evidence that their verdict was affected by the jurors’ visit to the scene. The trial judge was certainly in a better position to weigh the evidence and to determine whether there was any bias or prejudice because of the misconduct of the three jurors, and I do not think he committed error by overruling the motion for new trial. I would affirm.