author: SUGG, Justice, SMITH, Presiding Justice,

text:
    STANDARD LIFE INSURANCE COMPANY OF INDIANA v. Eugene VEAL.
    No. 49430.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Rehearing Denied Feb. 8, 1978.

      Butler, Snow, O’Mara, Stevens & Canna-da, Junior O’Mara, Jackson, for appellant.
    Merrida P. Coxwell, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

This appeal and cross appeal comes from the Circuit Court of the First Judicial District of Hinds County. Eugene Yeal, plaintiff, sued Standard Life Insurance Company of Indiana, defendant, for breach of contract for failing to pay the face value of a decreasing term life insurance policy in the initial amount of $1,008. The jury awarded plaintiff damages in the amount of $26,008, $1,008 actual damages and $25,-000 punitive damages.

Defendant assigns the following errors on direct appeal:

1. The lower court erred in refusing to direct the jury to return a verdict in favor of appellant.
2. The lower court erred in refusing to instruct the jury they could not return a verdict against appellant for punitive damages.
3. The lower court erred in instructing the jury with regard to construction of the insurance policy.
4. The lower court erred in overruling appellant’s motion for new trial, in particular, that the amount of the verdict of the jury was excessive.

Plaintiff cross appealed and assigned as error the action of the trial court in setting aside a default judgment rendered in his favor in the amount of $51,008.

On July 23,1973 plaintiff executed a brokerage contract with Ades Finance Company, a licensed broker under the small loan privilege act, to negotiate a loan for him. The face amount of the loan was $1,008 from which various charges were deducted as set forth in the following summary:

Face Amount of Loan $1,008.00
Less Deductions:
Discount to Ades Finance
Co. $ 79.12
Service charge to lender 342.83
Accident and health insurance premium 38.30
Credit Life Ins. premium 30.24 490.49
Balance disbursed to Veal 517.51

The indebtedness was to be repaid in thirty-six monthly installments of $28 each with the first installment due on August 23, 1973. When the brokerage contract was entered into, Ades Finance Company, acting as agent for defendant, issued a decreasing term life insurance policy on the lives of plaintiff and his wife, Jessie Lee Veal. The policy also insured plaintiff against physical disability.

Defendant entered into a contract on February 21, 1973 with Moses Ades, doing business as Ades Finance Company whereby defendant agreed to insure obligors upon payment of the premium specified therein. The contract contained the following provisions:

Each obligor of the Creditor Policyholder (except if either the principal obli-gor or spouse is past age 65, neither is eligible) in the following classes of indebtedness shall be eligible for insurance hereunder:
‘Insured obligor’ as uséd herein means the principal or first signatory on a contract of indebtedness and his or her spouse by marriage not dissolved by a divorce or legal separation at the inception of the debt. In the case of a single person, ‘insured obligor’ means the signatory on a contract of indebtedness.
If any premium is received for insurance on an obligor who is not eligible under the terms of this policy, the liability of the Company shall be limited to a refund of the premium to the Creditor Policyholder and any insurance charge to the obligor for such insurance will be paid by the Creditor Policyholder to the obli-gor or credited to his account.
Insurance shall become effective on the lives of all eligible obligors of the Creditor Policyholder whose names are reported to the Company under the terms and conditions hereinafter provided. The insurance with respect to any insured obli-gor shall automatically terminate (1) by renewal, refinancing, or repossession of the collateral for the indebtedness in connection with which the insurance was issued; (2) upon discharge of such indebtedness by payments by or on behalf of the obligor to the Creditor Policyholder; (3) by the indebtedness or any portion thereof being charged or required to be charged off by the laws applicable to the Creditor Policyholder; (4) by the expiration of the term of said indebtedness.
This is joint life insurance coverage and will pay only one death benefit. If a death benefit is paid as a result of the death of the insured obligor or the spouse no insurance will thereafter be in effect as to such obligor. Should the death of the insured obligor and the spouse occur simultaneously, one death benefit will be paid for the insured obligor only.
Each obligor insured hereunder shall be insured concurrently with the effective date of the indebtedness in connection with which the insurance is granted, and during the term of the indebtedness shall be insured for the amount necessary at any time to discharge the indebtedness, unless the initial indebtedness exceeds $10,000.00.
Individual certificates will be furnished by the Company to the Creditor Policyholder and the Creditor Policyholder shall deliver with each obligation a certificate describing the coverage. If the certificate is not delivered upon the inception of indebtedness, the Creditor Policyholder shall furnish a notice of proposed insurance and the certificate shall be delivered within thirty days of the inception of the indebtedness.

As authorized by the contract, Ades issued a certificate of insurance to plaintiff upon the inception of the indebtedness which contained the following provisions:

CERTIFICATE OF INSURANCE
NO. 218989J
Insured Obligor Mr. Eugene Veal Age 49 Social Security No. [ XXX-XX-XXXX ]
Spouse (Life Insurance Only) Jessie Lee Age 48 Social Security No. [ XXX-XX-XXXX ]
CREDITOR POLICYHOLDER Ades Finance Company_
Insurance Charge Code Term_Coverage_To Insured_No. of Months
Effective Initial Amount of Life Date Life Ins.
_7/23/73 $1008.00_$30.24_36
Acct. No Expiration Monthly Indemnity Disability Date
2157_8/23/76 $ 28.00_$38.30_36
Maximum Waiting Elimination Max.Amount of Max.Monthly Age Period Period Insurance Indemnity
65 Years Days Days$10,000.00$200,00
THIS IS TO CERTIFY that the Insured Obligor and the spouse (if any) named above, are insured JOINTLY against the hazard of death and that the Insured Obligor is insured SINGLY against the hazard of total disability under the terms and conditions of a Creditors Group Joint Life Policy with certain Single Total Disability Benefits, issued to the Creditor Policyholder by
STANDARD LIFE INSURANCE COMPANY OF INDIANA 300 E.Fall Creek Boulevard, Indianapolis, Indiana 46205
JOINT LIFE INSURANCE (Insured Obligor and Spouse): This is JOINT life insurance coverage and will pay only ONE death benefit. If a death benefit is paid as a result of the death of the Insured Obligor or the spouse, no insurance will thereafter be in effect under this Certificate. If the death of the Insured Obligor and the spouse occur simultaneously, ONE death benefit will be paid for the Insured Obligor only.
AMOUNT OF LIFE INSURANCE: The initial amount of insurance shall be equal to the initial indebtedness or the maximum amount of insurance stated above, whichever is less. Thereafter during the term of the indebtedness, the amount of insurance in force on the Insured Obligor or the spouse will be equal to the balance due on the unpaid indebtedness; provided, however, that if the initial indebtedness is greater than the initial amount of insurance, the insurance in force will be that proportion of the unpaid indebtedness which the initial amount of insurance bore to the initial indebtedness. In no event, however, shall the total amount of insurance at any time under this and like certificates issued to the Obligor by the Company exceed in the aggregate the maximum amount of insurance stated above.

Jessie Lee Veal died August 5, 1973 and proof of death was filed with defendant, in accordance with the terms of the policy. On October 15, 1973 defendant wrote Ades that the death claim of Jessie Lee Veal would not be honored. Defendant stated in its letter the following:

We regret we cannot honor this claim since Jessie’s name did not appear on the debt instrument; so she had no insurable interest, and there was no debtor-creditor relationship.

On October 24, 1973 plaintiff’s attorney wrote defendant requesting them to review the claim and forward their check without further legal proceedings. No reply was made to this letter so on November 30,1973 plaintiff’s attorney wrote defendant stating that it would be necessary to file suit unless they received a cheek in payment of the claim. Defendant replied on December 4, 1973 that they did not find the letter dated October 24. Defendant enclosed a copy of their letter to Ades dated October 15, 1973 and stated that the letter to Ades, “explains the position our company has decided upon relative to the policy that was issued.” Plaintiff then filed his declaration on March 20, 1974.

After suit was filed defendant’s House Counsel received a copy of the declaration and reached the conclusion that defendant was not liable, but after considering the claim from an economic standpoint, recommended that the company pay $1,008, the face amount of the policy. The offer was made to one of the attorneys representing the plaintiff who stated that he would talk with plaintiff and get back in touch with defendant’s House Counsel. Plaintiff’s attorney did not call defendant’s House Counsel so in about a week the offer was repeated to plaintiff’s attorney who informed the House Counsel that he was not interested in any settlement. Plaintiff testified that he was never told that defendant had offered to pay the $1,008.

I.

Defendant argues, in support of its first assignment of error, that it was entitled to a directed verdict on the question of liability under the insurance policy for two reasons: (1) plaintiff did not have the right to bring the action because he was not named as a beneficiary, and (2) no premium was paid for coverage on the life of plaintiff’s wife.

Defendant’s contention that plaintiff is precluded from recovering on the policy because he is not a beneficiary does not dispute the legitimacy of the claim, but simply raises the question of the standing of the plaintiff to maintain the action. Defendant’s argument is based on the following provisions of the policy:

Beneficiary: Benefits payable under this certificate shall be paid to the Creditor Policyholder, or at its direction to any subsidiary, affiliate, or other creditor to whom the Creditor Policyholder may have transferred title to the indebtedness, as irrevocable Credit Beneficiary, as its interest may appear. Such amount shall be applied toward the discharge of the indebtedness of such Insured Obligor and payment by the Company shall completely discharge the Company’s liability with respect to the amount so paid. Any balance remaining after payment of the Insured Obligor’s indebtedness to the Creditor Beneficiary shall be paid to the estate of the Insured Obligor as second beneficiary, or in the case of disability benefits, to the Insured Obligor.

Defendant contends that the insurance was issued for the purpose of paying the loan to Ades and that Ades (the creditor policyholder) is the primary beneficiary; and, therefore plaintiff had no standing to bring the lawsuit. Jessie Lee Veal, plaintiff’s wife, worked and helped support the family. By insuring his wife, Veal was protecting himself against the possibility of his wife’s death which would result in decreasing the family income.

We have no case directly in point on this question, but the principle announced in Stuyvesant Ins. Co. v. Motor Sales Co., 135 Miss. 585, 99 So. 575 (1924) is applicable to the facts of this case. Motor Sales Co. sued appellant, Stuyvesant Insurance Co. for a loss suffered by appellee in the burning of an automobile covered by the policy. Motor Sales recovered a judgment and appellant argued on appeal that there was no right of action in appellee, but that if one existed, it was in the Capital National Bank, to whom there was a mortgage loss payable clause in the policy of insurance. The Court stated:

In this case appellee had a beneficial interest in the proceeds of the insurance policy. The appellee was indebted to the Capital National Bank in an amount exceeding the loss under the policy; therefore any amount collected from appellant, on account of the loss, was due to go to said bank as a credit on appellee’s said indebtedness. It is true the Bank had the legal title to the cause of action when suit was begun by appellee. Nevertheless ap-pellee had a beneficial interest therein. That beneficial interest was the right to have the proceeds of the policy go to the bank on appellee’s indebtedness. This is a case, therefore, where the holder of the legal title to the cause of action did not sue, the suit being brought alone by the appellee, the beneficial owner of the proceeds of the policy.
Clearly, under section 775, Code of 1906 (section 558, Hemingway’s Code), appel-lee would have been entitled to amend by adding or substituting, as plaintiff, the Capital National Bank. Kelly v. Casualty Co., 87 Miss. 438, 40 So. 1; McCue v. Massey, 90 Miss. 124, 43 So. 2; Jones v. Clemmer, 98 Miss. 508, 54 So. 4. (135 Miss. at 593, 99 So. at 576).

In our case plaintiff executed a contract with Ades to borrow money, and following the death of his wife and rejection of the claim for the wife’s death by defendant, Ades demanded payment of the debt from plaintiff. Ades did not sue defendant, which it had the right to do, thereby leaving plaintiff liable for the debt. Although any amount collected from defendant, on account of the death of Mrs. Veal, was due to be paid Ades as a credit on plaintiff’s debt, and although Ades was the primary beneficiary named in the policy; nevertheless, plaintiff had a beneficial interest therein. Like the plaintiff in Stuyvesant Insurance Co., supra, the beneficial interest was the right to have the proceeds of the policy applied on his debt. If plaintiff was not permitted to maintain the action and Ades refused, or did not file suit, plaintiff would have no remedy to collect the proceeds from the insurance policy and apply it on his debt, but would be required to pay the debt. We hold that plaintiff’s beneficial interest in the proceeds of the insurance policy entitled him to maintain his action.

In Williams v. Home Insurance Co., 168 Miss. 443, 151 So. 728 (1934) Williams, the appellant, brought an action against Home Insurance Co., appellee, for his interest in the loss of a truck which burned. Appellee issued a policy of insurance containing a loss payable clause in favor of Universal Credit Company, the mortgagee. The policy provided that in case of fire the loss should be adjusted with appellant, but was to be paid, subject to all the conditions of the policy, only to Universal Credit Company “for account of all interests.” Appellant alleged that appellee had settled with Universal Credit Company 'but had not settled for his interest in the loss of the truck. The trial court sustained a demurrer to the declaration and this Court reversed and stated:

Concede that under the policy the legal title to the entire proceeds of the policy was in the Universal Credit Company for the use of itself and appellant, and for that reason appellant should have brought the suit in the name of the Universal Credit Company for his use; this question could not be raised by demurrer, it had to be raised by plea. If required so to do, the failure of appellant to sue in the name of the Universal Credit Company for his own use was a mere nonjoin-der. Section 514, Code of 1930; McInnis Lumber Co. v. Rather, 111 Miss. 55, 71 So. 264. (168 Miss. at 448, 449, 151 So. at 730).

The rule announced in these two cases, which permitted suit by a plaintiff who had a beneficial interest in the proceeds of an insurance policy, should not be limited to the mortgagor-mortgagee relationship but should be extended to the debt- or-creditor relationship involved in this case. Defendant knew that it was insuring payment of loans of debtors of Ades if these members died or were totally and permanently disabled. Ades was interested in the loan being paid, and the plaintiff as a debtor, was interested in his loan being paid in the event of his death or disability, or in the event of the death of his wife. Certainly plaintiff could have joined in a suit against the defendant because the contract of insurance was actually for the mutual benefit of Ades and the plaintiff, and the benefit to plaintiff was more than an incidental benefit.

If defendant had filed his objection of non-joinder as required by section 11 — 7— 21 Mississippi Code Annotated (1972) the trial court could have, before trial of the issue, permitted the declaration to be amended to sue in the name of Ades for the use of the plaintiff. The failure of Ades to file suit on the policy was, as held in Williams v. Home Insurance Company, supra, a mere non-joinder.

Section 11-7-21 was not repealed when section 11-7-59 Mississippi Code Annotated (1972) was adopted as Chapter 280 Mississippi General Laws of 1948. The section is still viable and we held in Wiener v. Pierce, 253 Miss. 728, 178 So.2d 869 (1965), with reference to section 11-7-23 Mississippi Code Annotated (1972) which deals with non-joinder or misjoinder of defendants, that:

The law is that in an action on a contract either in circuit or chancery court the nonjoinder or misjoinder of defendants cannot be raised by a special demurrer but must be raised by a plea as required by the statute. (253 Miss. at 733, 178 So.2d at 871).

The same rule applies to the statute dealing with non-joinder or misjoinder of parties plaintiff. (Section 11-7-21).

Defendant next contends it was entitled to a directed verdict because the estate of his deceased wife was the second beneficiary under the policy. The insurance policy named Ades as the creditor policyholder and provided for payment to the creditor policyholder to be applied by the creditor policyholder toward the discharge of the debt of plaintiff. The debt was incurred and the policy issued on July 23, 1973 and plaintiff’s wife died on August 5, 1973. The initial amount of insurance was $1,008, the note was for $1,008, and no payment was due nor had been made on the date of the wife’s death. The policy provided that the initial amount of insurance shall be equal to the initial indebtedness and thereafter during the term of the indebtedness the amount of insurance in force on the insured obligor or the spouse will be equal to the balance due on the unpaid indebtedness.

Plaintiff admits in its brief, under the factual situation involved in this case, the estate of plaintiff’s deceased wife did not become a second beneficiary because no payment had been made on the loan and the face amount of the policy equalled the debt. Under no conceivable set of facts could the estate of plaintiff’s deceased wife become a second beneficiary because the policy provides that the amount of insurance will never exceed the amount of the debt. Furthermore, the termination clause of the policy contains additional provisions which further limit the possibility of defendant ever becoming liable to the estate of plaintiff’s deceased wife.

II.

Defendant next contends that plaintiff is not entitled to recover because no premium was charged for insurance on the life of plaintiff’s wife. The contract between Ades Finance Company and defendant contains the following provisions:

The premium for this policy shall be computed at the following rates per an-num for each $100 of initial insurance and is to be paid in full to the Home Office of the Company on or before the 10th day of the month following the month in which the premium becomes due:
Joint Coverage $1.68
Single Coverage $1.00
The Company may, on or after the anniversary date of the policy, make retroactive premium adjustments, based on experience of the preceding year, but no such retroactive adjustment shall result in any increase in premium.
A grace period of thirty-one days will be allowed for the payment of any monthly premium due hereunder except the first. If any monthly premium is not paid within such grace period, this Policy and all insurances on the lives of insured obligors for which premiums have not been paid shall terminate at the end of such grace period except that such termination shall occur at an earlier date, not prior to the end of the period for which premiums have been paid, should the Creditor Policyholder give written notice of cancellation.
If the policy terminates during or at the end of the grace period, the Creditor Policyholder shall be liable to the Company for the payment of a pro rata premium for the time the policy was in force during such grace period.
On or before the 10th of each month the Creditor Policyholder shall furnish the Company on forms provided by the Company such data as may be required, respecting the obligors insured hereunder and the terms of their respective obligations and shall accompany such data with the monthly premium due under the terms hereof. The Company shall have the right to examine, at any reasonable time, such records of the Creditor Policyholder as have a bearing on this insurance.

Defendant states that the premium was computed on the single coverage rate of $1.00 for each $100 of initial insurance instead of the joint coverage of $1.68 for each $100 of initial insurance and states that the single coverage rate of $30.24 shown in the certificate of insurance issued to plaintiff reflects that the single coverage rate was charged. According to our computation the joint coverage rate would amount to $50.80 for the three years insurance. This argument of defendant is unsound for two reasons. First, the error in the premium was an error of the agent of defendant and an insured may not be prejudiced by the mistake of an insurance agent if the agent made a mistake in computing the premium. In case of a mistake in the premium being charged, defendant would be entitled to have the contract reformed to reflect the proper premium. In Johnson v. Consolidated American Life Insurance Company, 244 So.2d 400 (Miss.1971) we held that insurance policies may be reformed as other contracts in a proper case. We permitted reformation of a contract when the figure of $5,000 was mistakenly written instead of $19.20 in a payment option.

The second reason is that a premium was charged which was sufficient to keep the insurance in force until Mrs. Veal’s death. The certificate of insurance was issued by Ades to plaintiff on July 23, 1973 and his wife died on August 5, following. The contract between Ades and the defendant provided that:

Insurance shall become effective on the lives of all eligible obligors of the Creditor Policyholder whose names are reported to the Company under the terms and conditions hereinafter provided.
Each obligor insured hereunder shall be insured concurrently with the effective date of the indebtedness in connection with which the insurance is granted, and during the term of the indebtedness shall be insured for the amount necessary at any time to discharge the indebtedness, unless the initial indebtedness exceeds $10,000.00.

The policy requires the creditor policyholder to furnish the company on or before the 10th of each month such data as may be required respecting the obligor’s insured and the terms of their respective obligations and to accompany such data with the monthly premium due under the terms. After the certificate was issued by Ades Finance Company on July 23, 1973 it was not required to forward the monthly premium due until the 10th day of August, 1973. Ades had charged plaintiff with a premium in the amount of $30.24 which was sufficient to provide joint coverage on plaintiff and his wife for more than eighteen months. The policy does not require that the full amount of the premium for three years be paid in advance but provides for monthly premiums. We therefore conclude that the plaintiff had been charged a premium sufficient to keep the policy in effect for at least eighteen months past the date on which his wife died.

III.

In its second assignment of error defendant contends that this is not a proper case for assessment of punitive damages against it. We recognize that punitive damages are assessed as an example and warning to others and should be allowed only with caution and within narrow limits. In Snowden v. Osborne, 269 So.2d 858 (Miss.1972), the reason for allowing punitive damages was stated as follows:

Exemplary or punitive damages are those, of course, which are in addition to the actual or compensatory settlement. They are granted in the nature of punishment for the wrongdoing of the defendant and as an example so that others may be deterred from the commission of similar offenses thereby in theory protecting the public. Yazoo v. Mississippi Valley R. R. Co. v. May, 104 Miss. 422, 61 So. 449 (1913); Yazoo & Mississippi Valley R. R. Co. v. Hardie, 100 Miss. 132, 55 So. 42 (1911). See also U. S. Fidelity & Guaranty Co. v. State, 254 Miss. 812, 182 So.2d 919 (1966); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962); West Bros., Inc. v. Barefield, 239 Miss. 530, 124 So.2d 474 (1960); as well as the discussion in 15 Am.Jur., Damages, § 265, p. 698 (1938).
The basis in awarding such damages to the injured party is that of rewarding an individual for public service in bringing the wrongdoer to account. Fowler Butane Gas Co. v. Varner, supra; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861 (1929); and Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650 (1911). (269 So.2d at 860).

In Seals v. St. Regis Paper Co., 236 So.2d 388 (Miss.1970) the Court did not allow punitive damages under the facts in that case, but stated:

Punitive damages may be recovered for a willful and intentional wrong, or for such gross negligence and reckless negligence as is equivalent to such a wrong. (236 So.2d at 392).

Further in Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) the Court held:

In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. (244 Miss. at 150, 151; 141 So.2d at 233).

With reference to punitive damages in suits for breach of contract we stated in Progressive Casualty Insurance Company v. Keys, 317 So.2d 396 (Miss.1975) the following:

(b) Punitive damages are not recoverable for the breach of a contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. D. L. Fair Lumber Company v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); Hood v. Moffett, 109 Miss. 757, 69 So. 644 (1915). (317 So.2d at 398).

We come now to the query; Does the evidence support an award for punitive damages?

Defendant originally denied payment on the ground that “Jessie’s name did not appear on the debt instrument; so she had no insurable interest, there was no debtor-creditor relationship.” This position is contrary to the express definition of “insured obligor." The contract between Ades Finance Company and the defendant defines “insured obligor” in the following language:

‘Insured obligor' as used herein means the principal or first signatory on a contract of indebtedness and his or her spouse by marriage .

There is no requirement that the spouse of an insured obligor sign the note; therefore, the original reason assigned by defendant for failing to pay the claim for the death of plaintiffs wife is without any foundation whatever, and was not argued on appeal. Likewise, the other grounds raised at the trial and argued were without merit as previously, discussed in this opinion.

Defendant failed to honor the legitimate claim filed following the death of plaintiffs wife and there was no reason whatever to justify its action. Following its initial rejection of the claim plaintiff employed an attorney and defendant again rejected the claim for the original reason stated. It only offered to pay the face amount of the policy after plaintiff had filed his suit. •

This case demonstrates the necessity of awarding punitive damages when an insurance company refuses to pay a legitimate claim, and bases its refusal to honor the claim on a reason clearly contrary to the express provisions of its own policy. If an insurance company could not be subjected to punitive damages it could intentionally and unreasonably refuse payment of a legitimate claim with veritable impunity. To permit an insurer to deny a legitimate claim, and thus force a claimant to litigate with no fear that claimant’s maximum recovery could exceed the policy limits plus interest, would enable the insurer to pressure an insured to a point of desperation enabling the insurer to force an inadequate settlement or avoid payment entirely. We are of the opinion that the refusal to pay the legitimate claim in this case was an intentional wrong and constituted an independent tort as contemplated in Progressive Casualty Insurance Company v. Keys, supra.

Of course, if an insurance company has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages will not lie, but in this case the defendant had no reason to contest the claim filed with it. We therefore hold that punitive damages were allowable.

IV.

In its third assignment of error defendant argues that the following instruction should not have been given:

You are instructed that if you believe from the evidence, if any, that Standard Life Insurance Company of Indiana supplied the forms used by Ades Finance Company and given to Eugene Veal by Ades Finance Company then this is to be considered as a contract of insurance between the parties.
If the term ‘Obligor and Spouse’ are ambiguous or difficult to understand then there is a legal principal that a contract of insurance is to be construed strictly in favor of the insured, and most strongly against the insuror; that is to say in favor of Eugene Veal and against Standard Life Insurance Company of Indiana.

This instruction is error because difficulty of understanding a contract of insurance is not a reason to construe a policy against the insurance company. However, this does not constitute reversible error because this instruction deals with the liability of the defendant on the insurance policy. In our view of the case the plaintiff was entitled to a peremptory instruction directing the jury to find for him for the face amount of the policy; therefore, the instruction is harmless error.

V.

In its fourth assignment of error defendant argues that the trial court erred in overruling its motion for a new trial particularly with reference to the amount of the verdict of the jury. Defendant argues that the amount awarded for punitive damages is excessive. In Snowden v. Osborne, 269 So.2d 858 (Miss.1972) we declined to enter a remittitur in a case where punitive damages in the amount of $30,000 were awarded and stated:

We are of the opinion that the ends of justice will be better served by reversing that portion of the judgment awarding punitive damages and remanding the cause to the Circuit Court of Jackson County for a hearing upon the question of punitive damages only. (269 So.2d at 861).

We also stated in Snowden :

We are, in fact, on review, left in a complete quandary by the vacuum in the record as to the appropriateness of the judgment by way of punitive damages other than to say that it seems, on its face, to be disproportionate to the physical injuries inflicted. It is an insufficient basis for establishing a remittitur and particularly so since we stated in Yazoo & Mississippi Valley Railroad Co. v. Williams, 87 Miss. 344, 39 So. 489 (1905), the following:

. it is the long settled and uniformly adhered to rule in our jurisprudence that the amount of such puni-tory or exemplary damages is solely within the discretion of the jury, and, no matter what the sum of their finding might be, interference therewith, unless for exceptional causes, is discouraged . . . the reason being that, as the jury are the sole judges of the amount which ought properly to be assessed in order to inflict adequate punishment, the courts should scrupulously avoid any undue interference with their prerogative. ... (87 Miss. at 355-356, 39 So. at 491).

To the same effect see Yazoo & Mississippi Valley Railroad Co. v. May, 104 Miss. 422, 61 So. 449 (1913). (269 So.2d at 861).

In this case we are of the opinion that the award is not excessive. Defendant had no reason to deny the claim and has assets of in excess of $85,000,000. An award for punitive damages, if it is to accomplish its purpose, must be of sufficient size to deter the defendant from arbitrarily refusing to pay legitimate claims.

VI.

Plaintiff filed a cross appeal and urges this Court to reinstate a default judgment rendered by the trial judge on a writ of inquiry in the amount of $51,008; $1,008 actual damages and $50,000 punitive damages. Judgment on the writ of inquiry was entered on September 8, 1975 and on September 19,1975 defendant filed a motion to set aside the default judgment and judgment on writ of inquiry. After a hearing on the motion the judge set aside the default judgment and in this we find no error.

AFFIRMED ON DIRECT AND CROSS APPEALS.

PATTERSON, C. J., and WALKER and LEE, JJ., concur.

SMITH and INZER, P. JJ., and ROBERTSON and BROOM, JJ., dissent.

BOWLING, J., took no part.

SMITH, Presiding Justice,

dissenting:

This case involves a certificate of credit life insurance.

Appellee Veal obtained a loan from Ades Finance Company in the sum of $1,008. As additional security for the loan, appellant, Standard Life Insurance Company, issued its certificate of credit life upon the lives of Veal and Veal’s wife, loss payable to Ades for the amount of the unpaid debt. Veal and his wife were named jointly as insureds although Mrs. Veal was not a signatory on the note evidencing Veal’s debt to Ades. The certificate reflected the following:

Insured Obligor Mr. Eugene Veal
Age 49
Social Security No. [ XXX-XX-XXXX ]
Spouse (Life Insurance Only) Jessie Lee
Age 48
Social Security No. [ XXX-XX-XXXX ]
CREDITOR POLICYHOLDER Ades Finance Company
Code Term Coverage Insurance Charge No. of _To Insured_Months
Effective Initial Amount Life
Date of Life Ins.
7/23/73 $1008.00 $30.24 36

The policy provided:

AMOUNT OF LIFE INSURANCE: The initial amount of insurance shall be equal to the initial indebtedness or the maximum amount of insurance stated above, whichever is less. Thereafter during the term of the indebtedness, the amount of insurance in force on the Insured Obligor or the spouse will be equal to the balance due on the unpaid indebtedness; provided, however, that if the initial indebtedness is greater than the initial amount of insurance, the insurance in force will be that proportion of the unpaid indebtedness which the initial amount of insurance bore to the initial indebtedness. In no event, however, shall the total amount of insurance at any time under this and like certificates issued to the Obligor by the Company exceed in the aggregate the maximum amount of insurance stated above.
* * * * * *
Beneficiary: Benefits payable under this certificate shall be paid to the Creditor Policyholder, or at its direction to any subsidiary, affiliate, or other creditor to whom the Creditor Policyholder may have transferred title to the indebtedness, as irrevocable Creditor Beneficiary, as its interest may appear. Such amount shall be applied toward the discharge of the indebtedness of such Insured Obligor and payment by the Company shall completely discharge the Company’s liability with respect to the amount so paid. Any balance remaining after payment of the Insured Obligor’s indebtedness to the Creditor Beneficiary shall be paid to the estate of the Insured Obligor as second beneficiary, or in the ease of disability benefits, to the Insured Obligor.
Termination: The insurance under this certificate shall be terminated (1) by renewal, refinancing, or repossession of the collateral for the indebtedness in connection with which the insurance was issued, (2) upon discharge of such indebtedness by payments by or on behalf of the Obli-gor to the Creditor; (3) by the indebtedness or any portion thereof being charge off or required to be charged off by the laws applicable to the Creditor; (4) by the expiration of the term of said indebtedness.
* * * * * *

Mrs. Yeal died shortly after the transaction with Ades was closed and the certificate issued. Yeal paid nothing on the debt and Ades, testifying as a witness, so stated.

Following Mrs. Veal’s death Ades wrote Standard Life requesting that it pay the amount due him by Veal under the terms of the certificate. Standard declined upon the stated ground that Mrs. Veal had not signed the loan instruments and was not a debtor to Ades. After considerable correspondence with attorneys employed by Veal, Standard’s general counsel offered to pay the amount of $1,008 in settlement of the claim. This offer, made to Veal's counsel who promised to submit it and to advise Standard’s counsel as to the result, was never communicated to Veal by his counsel. Having received no response to the offer, after a time Standard again contacted Veal’s counsel who, this time, rejected the offer out of hand. Again Veal was not informed of the offer and Standard was told by his counsel that they were “not interested” in the offer or in “any other offer.”

The case came on for trial and was stubbornly contested by able and reputable counsel representing Standard. At the conclusion of the case, the trial court submitted the liability of Standard for the $1,008 to the jury, and also instructed the jury that it might return punitive damages against Standard. This resulted in a verdict for Veal in the sum of $1,008, and, in addition, an award of $25,000 as punitive damages.

It is difficult to see how this case can be distinguished in any material particular from any other case where suit is filed upon a contract and the person against whom the suit is brought defends and loses. Veal had no standing to sue under the clear terms of the insuring certificate. This right was the exclusive prerogative of Ades so long as the debt to Ades was outstanding and unpaid. It is true that Veal might have sought a mandatory injunction to compel payment of the debt by Standard to Ades under the terms of the certificate, but Ades had the exclusive right to recover the money in an action at law. In the situation which has now resulted in the present suit, Ades has not been paid and Veal is being allowed to collect money which belongs to Ades under the policy and which Veal undoubtedly owes.

There was, and will be, no “balance” remaining “after payment of the Insured Ob-ligor’s indebtedness to the Creditor Beneficiary” to be paid to Veal or anyone else. It is conceded in Veal’s pleadings that this policy is a credit life insurance policy, and is, quite obviously, the type of policy which has come into common use in credit transactions. It is cheap, and protects both the lender and borrower with respect to the loan. Its low cost of only $1.68 for each $100 of initial insurance requires that the coverage afforded be strictly limited by the terms of the certificate. The decision in this case would increase the exposure of the insurer under this type of coverage (here about 26 times the amount of insurance afforded) to losses which cannot be estimated in advance and which are measured only by the emotional whim of a jury.

The wage earner, whose income stops with his death, by means of (presently) inexpensive credit life insurance may now borrow money which, without credit life coverage, he would not otherwise have been able to do. If a company writing a certificate insuring a thousand dollar loan is to be exposed to a judgment for $26,000.00 simply because it first rejected a claim, even if it turns out that it was mistaken in so doing, it may become difficult to obtain coverage and certainly will become substantially, and perhaps prohibitively more expensive. These things are of particular importance to people who work for wages.

In any event, the record in the ease before us discloses that Standard was represented by competent and reputable local counsel throughout and it must be assumed they acted upon advice of counsel. This, in itself, should destroy the claim of intentional wrongdoing. In no event should the mere declination to pay a debt, however, clearly owed, be held to be a “distinct and separate tort” justifying the imposition of punitive damages. The rule in Mississippi is to the opposite effect and is well established by the ease law of this state. Typical of these decisions are the following:

In Fowler Butane Gas Company v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) the Court held:

In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. (244 Miss. at 150, 151, 141 So.2d at 233).

In Progressive Casualty Insurance Company v. Keys, 317 So.2d 396 (Miss.1975) the Court held:

(b) Punitive damages are not recoverable for the breach of a contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. D. L. Fair Lumber Company v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); Hood v. Moffett, 109 Miss. 757, 69 So. 644 (1915).

(317 So.2d at 398).

Here, Standard sought to settle the case by payment in full of the face amount of the certificate, and its efforts were at first ignored and then finally rejected with a statement by Veal’s counsel that they were “not interested” in any settlement. And this without ever having submitted the offer to Veal. This is not a situation which casts Standard in the role of villain or that reflects that its actions were wanton or oppressive. Fraud is neither alleged nor proved.

Ades, if anyone, was entitled to recover under the security certificate given and accepted for the purpose. Ades Finance Company cannot be considered to have been a Babe in the Woods in a financial transaction of a type with which it dealt daily. The result in this case is that Veal has usurped Ades’ right to the proceeds of the policy. Veal will be permitted to receive under the conclusions and views expressed in the controlling opinion, money that is admittedly owing to Ades, leaving Ades and Standard in an anomalous situation, to say the least, as to the amount owed Ades and unpaid by Veal. I cannot agree that this is a proper disposition of the case, since it avoids the fundamental purposes of the contract and misconstrues the clear terms of the certificate. It seems to me that Standard had a reasonable, arguable defense, and that, moreover, its repeated offers to settle the case shortly after receiving a copy of the declaration filed against it, destroyed any suggestion of intentional wrongdoing.

The controlling opinion would dismiss the issue raised by Standard, that Veal had no standing under the contract to bring the suit, by citing the statutory requirement as to the manner of raising a question of non-joinder of parties. It seems to me, however, that in an action at law for money allegedly due on a contract, exhibited with the declaration, under the terms of which the plaintiff clearly had no standing to recover, was a question which went beyond a mere question of nonjoinder and was a matter apparent upon the face of the declaration and its exhibited contract, and was a defect so fundamental and fatal to plaintiff’s right that it might be attacked in any manner, even by motion for a directed verdict at the conclusion of the case when plaintiff’s right to recover under the contract sued on not only had not been established but has been negated by specified proof put on by him that his creditor, not he, was entitled to sue.

Section 24 of the Mississippi Constitution 1890 requires that “all courts shall be open.”

Article 3, section 25, Mississippi Constitution 1890, provides:

No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.

This means that every person against whom a suit is brought is entitled to defend it without exposing himself to punishment for so doing in the event he does not prevail.

The present case was sternly defended by competent reputable counsel and a number of defenses were interposed against Veal’s right to recover under the terms of the certificate. The case involved interpretation of an insuring certificate affording Ades security for a small loan made to Veal. Standard’s obligation was contractual. It was limited in express terms to paying to Ades the balance of the debt which remained unpaid at the time of the loss. There was nothing in the certificate that can be construed as having obligated Standard to pay anything to Veal. I do not believe that this Court can say that the case was not defended in good faith or that the defendant was not acting with the advice of counsel. Nor can the defense offered at the trial be characterized as having been so groundless as to have been no more than a mere sham. Certainly the objection that Veal was not entitled to recover the money that belonged to Ades was well taken. The trial court properly rejected Veal’s request for a peremptory instruction directing the jury to find in his favor, and granted numerous instructions for each party dealing with issues in the case. Moreover, much of the delay dwelt upon in the controlling opinion as having constituted wrongdoing by Standard was the result of an agonizing personal tragedy which occurred in the family of Standard’s counsel. It was during this period that discussions took place between counsel as to the granting of additional time to plead. No definite agreement had been settled upon and Veal’s counsel took a default judgment against Standard. The trial court, however, quite properly set this aside after a full hearing in which all of the facts were made known to him. I find myself unable to join in the conclusion that the delay, which was found by the trial judge to have been excusable to the extent that he set aside the default judgment, can justly be considered a circumstance which supports an award of punitive damages. The Constitutional right of a litigant to defend a suit brought against him will be severely chilled, to say the least, if he is to be required to expose himself to the prospect that in the event he and his counsel should prove to be mistaken in their position and he loses, he will be assessed with punitive damages. This has never been the law in Mississippi and should never be.

If the premise should be granted that Standard was mistaken and that there was a breach of contract, there is nothing to indicate that it was “attended by intentional wrong, insult, abuse or such gross negligence as to constitute an independent tort.”

INZER, P. J., and ROBERTSON and BROOM, JJ., join in this dissent.

      . Termination: The insurance under this certificate shall be terminated (1) by renewal, refinancing, or repossession of the collateral for the indebtedness in connection with which the insurance was issued, (2) upon discharge of such indebtedness by payments by or on behalf of the Obligor to the Creditor; (3) by the indebtedness or any portion thereof being charged off or required to be charged off by the laws applicable to the Creditor; (4) by the expiration of the term of said indebtedness.


source: Caselaw Access Project

license: Public Domain

text:
    Maurice S. McGEE v. STATE of Mississippi.
    No. 50084.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Rehearing Denied Feb. 8, 1978.
    McTeer, Walls, Bailey & Buck, Robert E. Buck, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.

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


author: LEE, Justice,

text:
    Hugh W. SHACKELFORD et al. v. CENTRAL BANK OF MISSISSIPPI.
    No. 49849.
    Supreme Court of Mississippi.
    Jan. 4, 1978.
    As Corrected on Denial of Rehearing Feb. 8, 1978.

      Binder, Lucas & Lohrmann, Jerome L. Lohrmann, William B. Howell, Jackson, for appellant.
    McLaurin, Nicols & Kelly, George T. Kelly, Jr., Brandon, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Rankin County entered judgment against Hugh W. Shackel-ford in favor of Central Bank of Mississippi in the amount of two hundred one thousand four hundred forty-eight dollars sixty-five cents ($201,448.65) and Shackelford appeals.

Appellant first contends that the trial court erred in overruling his motion to dismiss and in holding that he was subject to jurisdiction of the court under Mississippi Code Annotated Section 13-3-57 (1972) [Long-Arm Statute].

On December 13, 1973, appellant executed a loan guaranty agreement in favor of appellee wherein he agreed to indemnify appellee to the extent of sixty thousand dollars ($60,000) in the event of default on an indebtedness owed by Pilgrim Properties, Inc. to appellee. The loan guaranty agreement was executed in order to enable Pilgrim Properties, Inc. to obtain credit at intervals from appellee. Appellant signed the agreement in Albany, Georgia, his place of residence. The instrument provided that the guaranty was to be construed according to the laws of the State of Mississippi and was to be performed by appellant in said state. It was accepted by appellee at its office in Brandon, Mississippi.

Thereafter, on January 21, 1975, Pilgrim Properties, Inc. executed a note in the sum of seventy-five thousand dollars ($75,000) to Central Bank of Mississippi, which note (contract) was endorsed and guaranteed by appellant and other individuals. The note provided that it was negotiable and payable at Central Bank of Mississippi in Brandon, Mississippi. Therefore, appellant agreed that, upon default of same, he would pay the amount of the note together with interest in the State of Mississippi.

Appellant made at least one trip to the office of appellee and from 1973 until the date suit was filed, he (1) was engaged in the business of acquiring real estate in and around Jackson, Mississippi, (2) was a partner in the Regency Apartment Developers, Ltd., which did considerable work for Pilgrim Properties, Inc., and (3) executed notes and deeds of trust to various individuals and firms in connection with his business enterprises, which finance arrangements involved in excess of five million dollars ($5,000,000).

Mississippi Code Annotated Section 13-3-57 (1972) provides the following:

“Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. . . .”

(Emphasis added)

The case of Miller v. Glendale Equipment and Supply Company, 344 So.2d 736 (Miss.1977), disposes of the question as to whether or not appellant entered into a contract with a resident of the State of Mississippi to be performed in whole or in part by any party in this state. In that case, the contract was made over fhe telephone by Glendale, a non-resident corporation, with Miller, a resident of this state. Miller obtained and mailed a twenty-one thousand dollar ($21,000) check from Mississippi to Glendale in Ohio for the purchase price of a bulldozer. Glendale delivered the machine through its agent to Miller in Mississippi using the roadways of this state. The Court held that the contract was performed in part by Glendale and Miller in the State of Mississippi. Here, both instruments provided that they be performed (paid) in the State of Mississippi, and they were accepted by appellee in Mississippi. The trial court had jurisdiction under the Long-Arm Statute, and the first assignment of error is without merit.

Appellant next contends that the trial court erred in overruling appellant’s motion for new trial and that attorneys’ fees fixed by the jury were excessive and contrary to the law and evidence.

During the trial, the parties stipulated that appellant owed appellee the sum of one hundred fifty-one thousand one hundred sixteen dollars forty-nine cents ($151,-116.49), principal and interest, on the secured instruments. The jury fixed reasonable attorneys’ fees at fifty thousand three hundred seventy-two dollars sixteen cents ($50,372.16) [thirty-three and one-third percent (33V3%) of the amount due].

Appellant argues that the loan guaranty agreement provided for “reasonable attorneys’ fees at any time paid or incurred in endeavoring to collect said indebtedness, liabilities and obligations, and in and about enforcing this instrument.” (The note endorsed by appellant provides for reasonable attorneys’ fees, if placed in the hands of an attorney for collection). He further contends that the proof does not show appellee either paid or incurred attorneys’ fees and that the same should not have been allowed. There is no merit in that contention. It is not reasonable to say that even though appellees had employed an attorney, instituted suit, and the suit was actually tried to verdict and judgment, no attorneys’ fees were incurred.

In 22 Am.Jur.2d Damages § 170, at 240 (1965), it is stated:

“Previous payment of expenses incurred by reason of the wrongful or negligent act of another is not essential to the recovery of those expenses in an action against the wrongdoer for damages. Liability for expenses incurred by the plaintiff by reason of an injury rests on the ground that such expenses have been rendered necessary by the defendant’s neglect of duty, and not upon the ground that they have been paid at the time of the trial. It is immaterial what arrangement the plaintiff may have made for the payment of such expenses or whether he ever pays them, provided a legal liability to pay them exists. If he is under such liability and has properly pleaded that liability as special damages and supported his pleading by competent proof, the plaintiff is entitled to have the jury consider this liability for expenses in fixing his damages, although he has not, as a matter of fact, paid them.”

Appellant contends that 33V3% attorneys’ fees was exorbitant, and excessive. The appellee introduced as a witness a Jackson attorney who has had considerable experience in the field of commercial law and in the collection of past-due obligations. He testified that a reasonable fee is partially based upon the amount of work required, that the larger the amount, the more work is involved, and the more risk taken, that it was probable any judgment obtained in Mississippi would have to be reduced to judgment in Georgia and execution brought there (no appeal with supersedeas was taken), and that '33V3% of the amount to be recovered is a reasonable fee in a contested case. This testimony is undisputed and appellant introduced no evidence to the contrary.

In Jack Cole-Dixie Hwy. Co. v. Red Ball Motor Freight, Inc., 254 So.2d 734 (Miss.1971), this Court held that attorneys’ fees in the amount of forty-two thousand one hundred nine dollars seventy-one cents ($42,109.71), which represented 33Vá% of the amount involved on a one hundred thousand dollar ($100,000) note, were not unreasonable. Members of this Court may exercise their own independent judgment on appeal, based upon knowledge and experience, as to what amount constitutes a reasonable attorneys’ fee. Koehring Company v. Hyde Construction Co., 236 So.2d 377 (Miss.1970).

We are of the opinion that the attorneys’ fees in the amount of 33V3% of the amount owed were reasonable in this case, and that there is no merit in the second assignment of error.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Charles HARPER v. STATE of Mississippi.
    No. 50135.
    Supreme Court of Mississippi.
    Jan. 18, 1978.
    Rehearing Denied Feb. 8, 1978.
    Don H. Evans, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: BROOM, Justice,

text:
    Tommy EDWARDS, Joseph S. Donnell and James O. Ryals, Jr. v. Mrs. Ina McIntyre HARPER et al.
    No. 49858.
    Supreme Court of Mississippi.
    Jan. 18, 1978.

      Johnston & Adams, Jerry T. Johnston, Brandon, for appellants.
    McLaurin, Nicols & Kelly, John C. McLaurin, Brandon, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

Sixteenth section leasehold interests in lands situated within the city limits of a municipality (Brandon, Mississippi) was extended for an additional period of ninety-nine years. Mrs. Ina McIntyre Harper, Mrs. Maxine Harper Carr, Orville Earl Harper, and Dale Lamar Harper (lessees, appel-lees) filed their bill in the Chancery Court of Rankin County, Mississippi, to confirm said ninety-nine year leasehold interest. The bill was filed October 20, 1973, and subsequently Tommy Edwards, Joseph S. Donnell, and James O. Ryals, Jr. (appellants) intervened in opposition. Appellants set up as affirmative defenses the aver-ments that (1) the Board of Supervisors lacked authority to extend an existing lease prior to its termination, and (2) the consideration for the ninety-nine year extension was so grossly inadequate as to “shock the conscience” and conflict with Mississippi Constitution of 1890 § 95 in that it amounted to a donation. The matter was tried by the Chancery Court of Rankin County, which held in favor of the appellees, and from said decree the objecting intervenors appeal. We affirm.

DID THE BOARD OF SUPERVISORS ON SEPTEMBER 2, 1946, HAVE AUTHORITY TO EXTEND THE EXISTING LEASES FOR A TERM OF NINETY-NINE YEARS AFTER THAT DATE1 Mississippi Constitution of 1890 § 211 became effective in 1944, and in part provides:

[Ejxisting leases of the sixteenth section lands situated in the municipalities of the state may, for a gross sum, be extended for a term of years not exceeding ninety-nine (99) years from the date of such extension .

Effective April 10, 1946, General Laws of Mississippi, Chapter 443 provided in § 3 thereof that:

When any such lands are situated in a municipality, the owner of an existing lease of such lands, upon filing an application for an extension of such lease with the board of supervisors at any time prior to or within ninety days after the expiration of such lease, shall have the right to have such existing lease extended for a term not exceeding ninety-nine years from the date of such extension for a gross sum .

As authorized by constitutional § 211, supra, the legislature by General Laws of Mississippi Chapter 443, § 3, supra, in clear and explicit language authorized, upon proper application, extensions of existing leases of sixteenth section lands within a municipality “for a term not exceeding ninety-nine (99) years from the date of such extension for a gross sum.” The quoted language from Chapter 443 of the General Laws of 1946, supra, now appears in substantially the same words in the last paragraph of Mississippi Code Annotated § 29-3-61 (1972). Appellants refer to § 29-3-61 and say that it “specifically prohibits the Board of Supervisors from granting extensions to existing leases prior to the expiration of the existing lease.” Our scrutiny of the statute does not reveal such a prohibition.

Ethridge v. Drinkwater, 252 So.2d 788 (Miss.1971), involved a similar question which we answered affirmatively, and held that such a ninety-nine year extension of an existing lease was valid, Our opinion in Ethridge stated:

We find no statutory authority prohibiting nor do we find any case relating to the appellee’s right to terminate his present lease which had fourteen years remaining and to enter into a new lease for ninety-nine years.

Appellants argue that Mississippi Code Annotated § 29-3-63 (1972), precludes the Board of Supervisors from granting such an extension. ■ We do not agree because that statute merely provides that the owner of an existing lease of such lands shall have priority, exclusive of all others, to release or extend an existing lease..

Appellants cite Richburg v. Board of Supervisors, 317 So.2d 389 (Miss.1975), as authority for their argument that the Board of Supervisors could not legally grant the ninety-nine year extension. Richburg is not precedent or authority for anything other than the law of that particular case, because in it no opinion was written or published, and the facts of this case are not analogous.

No argument is made that the extension of the existing lease involved here was not done upon proper procedure in compliance with statutory requirements. We hold that the applicable sections of our constitution and legislative enactments, supra, as they existed on September 2, 1946, authorized the extensions, and no proof in the record establishes that the Board of Supervisors acted without proper authority.

DID THE CHANCELLOR ERR IN HOLDING THAT THE CONSIDERATION PAID FOR THE LEASE IN QUESTION WAS REASONABLE AND FAIR COMPENSATION? The record shows that in August 1946 the Board of Supervisors appointed three appraisers to appraise the subject property and report their findings, which was done. Their report gave an appraised fair market value of $400. The Board by its order accepted and ratified the appraisal, and executed the ninety-nine year extension. We held in Oliver v. Board of Supervisors, 211 Miss. 447, 51 So.2d 766 (1951), that the Board of Supervisors, in carrying out its responsibilities, is presumed to have complied with the law and that what they did was lawful and necessary. Here, there was no proof to the contrary.

The record is devoid of any proof that the market value of the land on September 2, 1946, was more than $400. To the contrary, the record shows uncontra-dicted expert testimony of real estate appraisers that the appraised market value of $400 on September 2, 1946, was reasonable. The land was about seventy-five acres, of which about fifty-five acres were given largely to growing trees, and about twenty acres were suitable for farming. In 1946 the land had no sewerage or water facilities. At trial below, the court found that the price for the lease was reasonable and that the requirements of law pertaining to extensions of such leases were followed in every respect. In this case the appellants asserted their affirmative defense that the consideration paid for the lease extension was not reasonable and just compensation. By pleading in that manner, the appellants assumed the burden to support their affirmative defense by competent, credible evidence. Having failed to present any testimony at all to establish that the consideration was unreasonable and not just compensation, we cannot say that the chancellor was manifestly wrong, or that his finding that the consideration was reasonable and just compensation was contrary to the evidence. Our decision here is not to say that the market value of the lands with which we are concerned is not now much greater than $400. As stated in the opinion of the trial court, thirty years ago no one could foresee how much the value of the American dollar would shrink by 1977. Our decision is based upon specific uncontradict-ed evidence with reference to the value of the property as of September 2, 1946, and not upon present values. No competent testimony to the contrary was introduced.

No reversible error has been established in the briefs or oral argument, and therefore the decree entered below must be affirmed.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, LEE and BOWLING, JJ., concur.


author: AFFIRMED.

text:
    Thomas Leroy LOTT v. STATE of Mississippi.
    No. 50487.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    Rehearing Denied Feb. 8, 1978.
    Rex K. Jones, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: BOWLING, Justice,

text:
    Benny Roy ROGERS v. COMMERCIAL CREDIT CORPORATION and Waters Truck & Tractor Company, Inc.
    No. 49856.
    Supreme Court of Mississippi.
    Jan. 25, 1978.

      Pair & Mayo, James C. Mayo, Terry Haimes, Gene Stringer, Louisville, for appellant.
    Sims & Sims, Shields Sims, Darrell Reeves, Columbus, for appellees.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Benny Roy Rogers, appeals from a replevin judgment in the Circuit Court of Winston County. We reverse and remand.

At the conclusion of the evidence offered by both plaintiff-appellees and defendant-appellant, the lower court sustained appel-lees’ motion for a directed verdict, stating that the decision was a question of law and there was no fact issue to submit to the jury. We hold that the cause should have been submitted to the jury. In discussing reasons for this, we need to relate the pertinent parts of the record.

On January 23, 1970, appellant, Benny Roy Rogers, and his partner, Byron Cannon (now deceased) purchased a new 1970 International truck from appellee, Waters Truck & Tractor Company, Inc. The purchase was financed by a retail installment contract providing for thirty-six monthly payments, which contract was then assigned with recourse to the appellee, Commercial Credit Corporation.

On January 21, 1971, appellant and his partner were delinquent in two monthly payments on the purchase contract. They lived and operated the truck in Winston County. Agents of appellees filed an affidavit in replevin before the Circuit Court of Lowndes County, the principal place of business of appellees, and a writ of replevin was issued thereon to the Sheriff of Winston County. On the same day the sheriff seized the truck as it was being driven with a load of either sand or gravel on a street in Louisville. The driver requested permission to carry the load to its destination, which was the Louisville Redi-Mix Concrete Company. This was agreeable with the sheriff and appellees’ representatives. All three went to the Redi-Mix plant, following behind the truck in the sheriff’s car. On the front seat of the sheriff’s car was Bob Wilkerson, an employee of appellee Waters Truck & Tractor Company, the retailer of the truck, and on the back seat was a Mr. Swanzee, an employee of appellee Commercial Credit Corporation.

While the truck was being unloaded, the sheriff went into the office of Redi-Mix and had a conversation with its owner, Jimmy McMillin. Wilkerson and Swanzee remained in the car. About that time appellant Rogers drove up in his car and went into the office and requested an explanation of what was occurring. There is a discrepancy in the testimony among the witnesses as to exactly what occurred and what was said after that time.

Rogers testified that McMillin owed him several thousand dollars and McMillin agreed to let him have whatever money it took to pay appellees’ representatives immediately and retain possession of the truck; that he went to the car where Wilkerson and Swanzee were seated and conveyed the information to them that he would secure whatever money was necessary to make the payment from Mr. McMil-lin immediately; that the Commercial Credit Corporation representative did not enter into the conversation but that Mr. Wilkerson told him that his company and Commercial Credit Corporation wanted full payment of the balance of the contract or the truck. Rogers testified that he told the two men that he could get the money immediately from Mr. McMillin and pay them any amount necessary, including costs and late charges. Rogers went back to the office and discussed the matter again with Mr. McMillin, who then accompanied him to the car and offered Wilkerson any amount that would bring the payments current; that Wilkerson again stated he would not accept any part payment, but that he and the Commercial Credit Corporation representative would only accept complete payment of the contract.

Rogers further testified that McMillin was standing beside him and the car during this second conversation so that he would be available to get the money immediately.

Jimmy McMillin testified that he owned the Redi-Mix business and was also in the real estate and insurance business in Louisville, and that he had done business with appellant and the deceased Cannon for many years. He testified as to his version of what occurred on January 21, 1971. He described the truck of Rogers and Cannon being brought to his place of business for unloading, with the sheriff and two men following the truck and parking their car near the business office; that the sheriff got out of the car and came into the office, but that the other two men, Wilkerson, whom he knew, and the Commercial Credit Corporation representative stayed in the car. He described the arrival of appellant Rogers and told of his conversation with Rogers when he learned the truck was being seized. He testified that he told Rogers then and there that he would let him have whatever money was needed to retain possession of the vehicle; that he walked back to the car with Rogers and was leaning against the car right behind Rogers when the latter told Wilkerson that he was ready to pay any amount required to bring the account current and retain possession of the truck; that he heard Wilkerson say that they would not take part of the money but that the contract had to be paid off in full.

McMillin’s testimony was direct and positive that he heard this conversation while he was standing at the car immediately behind Rogers; that Rogers told Wilkerson and the Commercial Credit Corporation representative that he, McMillin, who was standing right there, was ready and willing to give him any money needed, and that he had it at that time. McMillin testified, “It was as good as in his hand if I told him I would let him have it.”

Witness Bob Wilkerson was called by ap-pellees. He was employed by appellee Waters Truck & Tractor Company, and had been for a number of years in the capacity of a salesman. Part of his duties included the collection of overdue accounts. He and his company had agreements with appellee Commercial Credit Corporation to assist in this duty as the finance agreements were assigned to Commercial with recourse. Wilkerson denied any conversation with Rogers at the Redi-Mix plant. He denied that Rogers made any offer to bring the payments current.

After conclusion of all the evidence the lower court, on motion of appellees, rendered the following opinion:

The court finds that at the time the truck was repossessed, the defendant was by his own admission two months in arrears and that under the contract, the Plaintiff had the right to repossess the vehicle. Whether he could have or not without replevin, he has filed the replevin and the question of the right of possession is before the Court, and the Court finds from this evidence and from the evidence of the Defendant that he has not paid — subsequently paid past due installments; that the Plaintiff is entitled to immediate possession. The Court finds that the evidence clearly shows that no tender was made to pay these payments, that the only evidence offered in support of the tender was some statement from a delinquent debtor, the Defendant himself, to the effect he could pay it from an unliq-uidated claim he had with Louisville Redi-Mix, which is not a tender. The motion of Plaintiff is sustained.

The law is clear that if a proper tender was made to appellees after the truck was seized, the appellant had the right to bring the installment payments up to date, including all costs and late charges, and retain possession of the vehicle. Mississippi Code Annotated section 89-1-59 (1972) was in effect at that time and reads as follows:

Where there is a series of notes, or installment payments, secured by a deed of trust, mortgage or other lien, and a provision is inserted in such instrument to secure them, to the effect that upon a failure to pay any one note, or installment, or the interest thereon, or any part thereof, or for failure to pay taxes, or insurance premiums on the property described in such instrument and the subject of such lien, that all the debt secured thereby should become due and collectible, and for any such reason the entire indebtedness shall have been put in default, or declared due, the debtor, or any interested party, may at any time, before a sale be made under the terms and provisions of such instrument, or by virtue of such lien, stop a threatened sale under the powers contained in such instrument, or stop any proceeding in any court to enforce such lien, by paying the amount of the note, or installment then due, or past due by its terms, with all accrued costs, attorneys’ fees, and trustees’ fees on the amount actually past due by the terms of such instrument or lien, rather than the amount accelerated, and such taxes, or insurance premiums due and not paid, with proper interest thereon, if such should have been paid by any interested party to such instrument. Any such payment, or payments shall reinstate, according to the terms of such instrument, the amount so accelerated, the same as if such amount not due by its terms, had not been accelerated, or put in default. Provided, that this section shall not apply to loans made by federal land banks.

The question then is whether or not the lower court should have permitted the jury, under proper instructions, to decide whether the appellant legally tendered the amount of money necessary under the statute in order to retain possession of the vehicle. In examining the above quoted opinion of the lower court, we note that he did not mention the testimony of Mr. McMillin. As hereinbefore set out, both Rogers and McMillin testified positively that the conversations took place at the car with Wilkerson and the Commercial Credit Corporation’s representative. McMillin’s testimony was positive and direct that he went with Rogers to the car for the purpose of offering to make the necessary payments; that he stood right by the car when Rogers made the offer and Wilkerson stated that they would not accept any money other than full payment of the contract.

Appellees contend that since Rogers did not have the cash money in his hand and hold it out as a tender to Wilkerson and the Commercial Credit representative, that this did not amount to a legal tender. The law on this point is clear and has been announced by this Court in several cases, mainly: Cooley v. Stevens, 240 Miss. 581, 128 So.2d 124 (1961); Lauchly v. Shurley, 217 Miss. 728, 64 So.2d 898 (1953); Bonds v. Rhoads, 203 Miss. 440, 35 So.2d 437 (1948); Sovereign Camp, W.O.W. v. McClure, 176 Miss. 536, 168 So. 611 (1936); McLain v. Meletio, 166 Miss. 1, 147 So. 878 (1933); See also, Frostad v. Kitchens, 377 F.2d 475 (5th Cir. 1967).

All of the above cases hold that “the law does not require one to do a vain and useless thing. A formal tender is never required where it appears that the money, if tendered, would not have been received. Failure to make a formal tender may be excused if it appears the tenderee would not have accepted the tender if made, but to avail himself thereof, the tenderor must show that he was able and desired to make the tender.”

The testimony of appellant Rogers and the only independent witness, McMillin, was clear that the offer was made to appel-lees’ representatives who stated in clear and unmistakable language that the payments would not be accepted and that they would accept only full payment of the contract. Wilkerson denied the accuracy and truthfulness of this testimony. This denial made it a question for the jury as to whether the tender by appellant was actually made.

Therefore, we hold that it clearly was a question for the jury as to whether or not appellant made a proper tender to make the necessary payments and retain possession of the vehicle. The cause is, therefore, reversed and remanded.

REVERSED AND REMANDED.

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


text:
    F. J. Clarke McADORY v. STATE of Mississippi.
    No. 50121.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant appeals from his conviction under a charge of armed robbery in the Circuit Court of Attala County. The jury was unable to agree on punishment and the court sentenced appellant to ninety years in the penitentiary. We affirm.

Appellant alleges two assignments of error, namely: (1) The verdict of the jury was against the overwhelming weight of the testimony, mainly because the testimony of the prosecuting witness was incredible, inherently unbelievable, and unreasonable, and (2) the sentence of the lower court is unusual and excessive punishment in violation of Amend. 8 of the United States Constitution and Section 28 of the Constitution of the State of Mississippi.

Appellant did not file a motion for a new trial in the lower court. Therefore, he is legally barred from prosecuting assignment of error number one. This Court has held this in many cases and clearly has- set out the rule that a trial judge cannot be put in error on a matter which was not presented to him for decision, and that a contention that the verdict of the jury was contrary to the overwhelming weight of the evidence may not be raised here for the first time. Ponder v. State, 335 So.2d 885 (Miss.1976); Young v. State, 212 Miss. 460, 54 So.2d 671 (1951); Justice v. State, 170 Miss. 96, 154 So. 265 (1934).

Due to the nature of the case and the severity of the punishment, we shall discuss the evidence which clearly shows that the jury had ample evidence to convict appellant of armed robbery.

The first witness was Mrs. David McMul-lan. She is an elderly person and lived with her elderly husband about ten miles southwest of Kosciusko, Mississippi, in what is known as the McVille Community. She testified that on the evening of July 20, 1976, she and Mr. McMullan had gone to bed and both were asleep. She was awakened sometime between 9:30 P.M. and midnight by a person bending over her bed with the barrel of a pistol touching her. The person said: “Don’t say a word — don’t you say a word or I’ll kill you.” Mrs. McMullan grabbed his hand and pushed the gun away, and he then stated to her, “Turn this 38 loose or I’ll kill you.” She awakened her husband, who asked the person to leave his wife alone. He was ordered to lay down in bed and stay there. The robber first went around and searched several purses that were hanging in the bedroom. He had a flashlight with a piece of cloth tied over the lighted end. In searching these purses and Mr. McMullan’s pocketbook, he secured a total of $11. The man then told Mrs. McMullan to get out of bed but she refused so he carried her to another bedroom and sat her down on the bed. She began talking to him and begged him not to kill them. After this conversation, the person made a search of all five rooms of the house while commanding that the McMullans stay where they were. The person stayed in the house until approximately four o’clock A.M. He then left and ordered the McMullans not to call the police, saying, “I kill them bears,” and that if he heard anything of the matter he was going to come back and kill them. After the person had left, Mrs. McMullan waited for sometime and then called her son-in-law.

Mrs. McMullan positively identified appellant at the trial as the person who committed the acts related above.

The second witness was Marvin Lawrence, Sheriff of Attala County. He testified that he received a call about 5:15 A.M. on the morning of July 21 regarding the incident; that he went directly to the McMullan home, arriving there about 5:30 A.M.; that he found the screen on the door on the east side of the house had been cut and the house entered from there; that he found footprints in the yard of the home; that the ground was dusty and dry, but dew was still showing. He testified that these were big footprints and that they were the only ones he found in the area. He followed the footprints out to the road where they turned to the left; that he continued following the footprints until they turned off into an old field road which came out near Jenkins Store at McVille; that the footprints then entered a gravel road and led directly to the home of appellant’s grandmother where appellant was then staying.

The sheriff arrested appellant and took him to the Attala County jail. One of appellant’s shoes was retained by the sheriff. He testified that he compared the shoe with the footprints and that the prints were the same size and width and corresponded with the shoe.

Witness Donald Bray testified that he was employed as an investigator with the State Highway Patrol and that his duties consisted of assisting local officers in investigation of crimes. He arrived in Attala County between 10:30 and 11 o’clock A.M. on the morning the incident occurred. He went to the McMullan home, arriving there around 1 o’clock P.M. He determined that entry to the house was made where the screen had been cut from the door. He secured a purse that contained various items, sealed it in an envelope and carried it to the State Crime Laboratory in Jackson. He also made photographs of the house. He then made a plaster cast of one of the footprints shown him by Sheriff Lawrence that led from the McMullan house to the place where appellant was staying. Witness Bray took photographs of the footprints. He also secured standard inked fingerprints from appellant and carried these fingerprints and the plaster cast of one of the prints to the Crime Laboratory in Jackson.

Witness Bill Roberts testified that he was employed at the Mississippi Crime Laboratory as a criminalist, which is a person who uses scientific methods for the analysis of evidence in crime investigations. He qualified as an expert. He identified the shoe and the plaster east of the footprint that had been delivered to the laboratory, and concluded that the plaster cast print was produced by a shoe having the same overall characteristics as appellant’s shoe. He testified primarily about the prints made by the heel, saying they were the same size and had the same markings — such as nail marks and trade marks.

Witness Alex Bass testified that he was employed with the Mississippi State Crime Laboratory in the latent fingerprint development section. He qualified as a fingerprint expert. He identified an envelope that was taken from the purse delivered to the Crime Laboratory, which was the purse brought from the McMullan home that had been searched by the person committing the robbery. There were fingerprint smears and smudges but one print was identifiable on the envelope. A photograph was made of this print and it was properly developed and retained.

Witness Sam Ivy testified that he was director of the Investigative Division of the Highway Patrol; that he had twenty-five years’ experience and qualified as a fingerprint expert; that the print taken from the envelope positively was identical to the left middle finger of the prints taken from appellant. The State rested after the testimony from witness Ivy.

The first witness for the defense was Della Clark, the grandmother of appellant. She testified that appellant had been staying with her since he was released from Parchman on April 30 of that year; that on the night he was accused of entering the McMullan home, the appellant left her house about 7 o’clock in the evening and returned about 3:20 A.M.; that she was up at that time taking some medicine.

The appellant took the stand and testified in his own behalf. He stated that he left home about five minutes before seven in the evening of July 20th and walked to the home of his Aunt Mary Jane and stayed there about twenty minutes; that he then left and went to the home of Jim Snow, and from there he left in a car owned and driven by his cousin, James Frank Harmon; that they rode to Thomastown and stayed there until around midnight; that about that time he ran into a “mob crowd” and was taken in custody by the constable in that district. He testified that when the constable stopped his car at the home of the justice of the peace he (appellant) got out of the car on the other side and left. During the course of the evening he had taken a shotgun from a Bernice Pearson and he took the gun and walked back to his grandmother’s house, arriving there at 1:25 A.M. His explanation of his grandmother thinking he arrived at 3:20 A.M. was that at 3:20 the afternoon before he had disconnected the plug from the electric clock and that this was not known to his grandmother. He testified that he did not leave the house until arrested by the sheriff the next morning.

He further testified that he was sentenced to the Mississippi State Penitentiary in 1966 on three felony charges and had been in that vicinity only two weeks from that year until his release 'in April. The two weeks’ release was in 1970. He denied he had ever been in the McMullan home and denied owning a flashlight. He testified that he did not own a watch, and the reason he knew he arrived at his grandmother’s house at 1:25 A.M. was from the radio.

No other witnesses were offered by appellant. It is noteworthy that none of the persons related by appellant to have seen him on the night of July 20 were offered as witnesses.

Therefore, we are forced to the conclusion that the jury had ample evidence to return a verdict of guilty against appellant. We reach this conclusion, as hereinbefore stated, even though the question is not properly before the Court.

We do not agree with appellant’s assignment of error that the sentence of the lower court was manifestly excessive and constituted unusual and excessive punishment in violation of both the United States and the Mississippi Constitutions. Under the provisions of Mississippi Code Annotated section 97-3-79 (Supp.1977), the jury could have imposed a life sentence. In the event the jury failed to impose sentence, as was done in this case, the lower court had the discretion under the statute to impose a life sentence.

In Ainsworth v. State, 304 So.2d 656 (Miss.), cert. denied, 422 U.S. 1012, 95 S.Ct. 2637, 45 L.Ed.2d 676 (1975), this Court said: “It is well settled that the imposition of a sentence is within the discretion of the trial court and this Court will not review the sentence if it is within the limits prescribed by statute.” See also Flake v. State, 296 So.2d 692 (Miss.1974); Boone v. State, 291 So.2d 182 (Miss.1974); McCormick v. State, 279 So.2d 596 (Miss.1973); Crapps v. State, 221 So.2d 722 (Miss.1969).

Therefore, we conclude that the sentence of 90 years imposed by the lower court was within the statutory limitation and from the record in this case, the Court cannot say that this sentence was cruel, unusual or excessive punishment. The cause is therefore affirmed.

AFFIRMED.

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


text:
    Edgar M. WILLIAMS v. STATE of Mississippi.
    No. 50116.
    Supreme Court of Mississippi.
    Jan. 25, 1978.

      J. W. Kellum, Sumner, for appellant.
    A. F. Summer, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Murder conviction and life imprisonment sentence resulted from trial of Edgar M. Williams (defendant, appellant) in the Circuit Court of the First Judicial District of Tallahatchie County. As grounds for a new trial, it is argued that the trial court committed reversible error in (1) admitting into evidence photographs of the victim’s body, (2) granting state’s instruction No. 4, and (3) refusing to grant certain defense instructions. We reverse.

Testimony indicates that the defendant was an employee of a drug store in Charleston, Mississippi. During late afternoon, December 19, 1974, he went from the drug store to a nearby hardware store where he obtained a 12-gauge automatic shotgun which he loaded. He promptly returned to the drug store and fatally shot a coemploy-ee, Reardon. While shooting Reardon, the defendant stated: “I am going to put an end to this kidding me about bird -hunting . .” Present was one Aultman (owner of the drug store) who, after hearing the statement and witnessing the shooting, asked the defendant if he realized what he had done. Answer of the defendant was affirmative. The arresting officer, Campbell, testified that at the time he arrested the defendant it was stated by the defendant that “they pushed me too far.” Asserted by the defendant as his defense was the proposition that he was insane at the time of the killing.

Admitted into evidence over objection were photographs and x-rays of the body of the deceased. At the time these items were introduced, the corpus delicti and identity of the deceased had been well established by the state’s witness, Dr. A. W. Hulett. Dr. Hulett said he examined John Reardon’s body at the hospital emergency room and “determined that the cause of death was due to a gunshot wound of the chest.” The shooting of the deceased by appellant was not denied or contradicted in any manner. Although considerable discretion is vested in trial judges as to the admissibility of photographs of the corpse of a homicide victim, such items can have no probative value upon a record such as this where the killing is not disputed in any respect. Standing alone, admission of the photographs and x-rays might not constitute reversible error, but at retrial the items should not be admitted upon a similar record.

WAS STATE’S INSTRUCTION NO. 4 ERRONEOUSLY GRANTED? This instruction was:

The Court instructs the jury that the jury itself is not deprived of the right to use common sense or of applying the lessons of human experience in resolving the question of whether the defendant had or had not appreciated the nature and consequences of his act and did or did not know that it was wrong, and that even though there is an expert opinion of a psychiatrist, his opinion is not conclusive on that issue. (Emphasis added.)

We think that upon this record the granting of this instruction constitutes reversible error, notwithstanding it may be said to be a correct statement of law in abstract form. In the state’s brief the statement is made that “the county attorney noted that the instruction was drawn verbatim from the case of Smith v. State, 245 So.2d 583, 585 (Miss.1971), wherein the Court said:

. . . . It was the prerogative of the jury, and it was its duty, to consider all of this evidence. The jury was not deprived of the right to use common sense or of applying the lessons of human experience in resolving the question of whether the appellant had or had not appreciated the nature and consequences of his act and had or had not known that it was wrong. The expert opinions of the psychiatrists were not conclusive upon that issue.

The state also cites the case of Herron v. State, 287 So.2d 759 (Miss.1974), and Saucier v. State, 328 So.2d 355 (Miss.1976), but upon inspection of our decision in Smith v. State and the other cases, we note that the instruction was not drawn verbatim from any of the cases. In the instruction as given, there has been added the language “even though” which amounts to a comment on the weight of the evidence with reference to the expert opinion of the psychiatrist. “Even though” certainly would logically give to the jurors the impression that in this particular case the psychiatrist’s opinion was, in the judgment of the court, worthy of little if any consideration at all.

We do not say that in every case the granting of the instruction complained of would be reversible error. The vice of the instruction here is most significant in view of the record which showed that the staff at Mississippi State Hospital at Whitfield diagnosed the appellant as having “the diagnosis of Schizophrenia, Paranoid Type. This means that he is suffering from a serious mental illness, and will need to remain in the hospital, for further treatment.” This diagnosis was made February 6,1975, after which appellant was placed on medication. Then on January 28,1976, having had almost a year of medication in Whitfield, appellant was evaluated by a split vote (three staff members abstained) of the hospital staff as “competent to stand trial” with instructions that he remain daily on his prescribed medication (Mellaril and Stelazine). At trial, Psychiatrist Dr. Donald C. Guild testified that schizophrenia is a severe “mental illness . . . Dr. Guild also testified that he did not believe that at the time of the alleged crime the appellant possessed “criminal responsibility.” Hardly any evidence in the record contradicts Dr. Guild’s opinion that the appellant lacked criminal responsibility on the date of the offense. Several witnesses testified in behalf of the appellant, including a nurse, that he did have serious mental problems. The nurse said that something was “psychiatrieally” wrong with Ed. His cousin said that he would put appellant “in the insanity class.” Others gave similar testimony and stated that he seemed to think that his friends were “turning against him.” One witness testified that appellant “thought everybody was against him. That he was head of the Mafia.”

One of the last things appearing in the record is an order signed by the circuit judge ordering that the appellant again be admitted to the Mississippi State Hospital at Whitfield for further psychiatric treatment while awaiting appeal to the Supreme Court. Upon this record, the language of State Instruction No. 4 amounted to an improper comment on the weight of the evidence, and was misleading. Because of this error, appellant is entitled to another trial. Other propositions argued do not merit discussion.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, LEE and BOWLING, JJ., concur.